C3560/500, Transcript of Proceedings [2001] AIRCTrans 1803 (7 August 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8436
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C No 35605 of 2000

VICTORIAN HOSPITALS INDUSTRIAL
ASSOCIATION

and

AUSTRALIAN NURSING FEDERATION

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

MELBOURNE

9.05 AM, WEDNESDAY, 18 JULY 2001

Continued from 9.7.01

PN526

THE COMMISSIONER: Good morning. Is there any change in appearances that the Commission would normally expect on behalf of the organisations? No? All right. Thank you. So the Commission would assume that MR R. BURROWS along with MS B. MORIESON represent the ANF. MR D. EDEN represents the HSUA. MR B. SULLIVAN represents the DHS and MR A. DJONEFF along with MR C. HICKS represent the VHIA.

PN527

The Commission has called this matter on in its own motion. Given that it - and one would have to be somewhat isolated not to know that there are a number of media reports leading up to yesterday's meeting of ANF members and subsequent media reports following that meeting and the alleged outcomes of that meeting. The Commission has brought the matter on to seek clarification of the ANF position in regards to yesterday's meeting of its members. Mr

PN528

Burrows.

PN529

MR BURROWS: Thanks, Commissioner. If I could tender a copy of resolution which has been - we did fax a copy to the Department and a copy to the HIA and a copy to the Commission.

PN530

THE COMMISSIONER: Yes, thank you.

PN531

MR BURROWS: It is essentially the same document. There was also another resolution which I didn't fax through to anyone - a move from the floor - well, they were both moved from the floor but this was something that was in addition to the resolution that has been faxed through to all the other parties. That is not typed. It was handwritten and I have just copied the - it was moved as a separate motion rather than an amendment but effectively it adds to the substantive motion.

PN532

I assume the parties have had a chance to look at what has been tendered. Basically, Commissioner, it is a two page preamble which we believe sets out some of - not all but some of the background in relation to the matter. The resolution is page - they are unnumbered but it is page 3 of the bundle, which effectively resolves as from PM shift today, effectively to work with less patient ratios, both those that were part of the Commission's decision and those that have been characterised as the second group of ratios. It goes on to explain the position from the ANF members' point of view as to the use of bank and agency nurses and also attempts to set in place a process between A and E, charge nurses and charge nurses in wards and units to minimise any disruption to service delivery, and further resolves that another meeting be held on 14 August for a report.

PN533

The second resolution - the handwritten resolution I think again is self explanatory. It notes the appreciation of the decision to impose ratios by the Commission decision, to address the workload issues which I think were common ground between the parties prior to the decision of the 31st. It goes on to say that in the view of the members, if the ratios were either eroded or abolished, then it would have a number of effects including undermining the ability to provide proper patient care and would result in - in the view of the members, of nurses leaving the system which would put us back to where we were prior to the dispute.

PN534

I don't know, Commissioner, how much time you have allocated today and how much you wish us to go over the background or other issues. We have been concerned I guess that in the last week or so there have been a number of media releases and advertisements in the paper that seem to indicate a new position from the Department in relation to both the numbers of nurses employed and the purpose for which they are to be employed.

PN535

Some confusing messages in relation to whether or not they are funded, whether they will continue to be funded, whether therefore provision of ratios or growth or some component of both. I have a number of statements and advertisements and exhibits that we could go to but I am only conscious of the fact that you have another matter listed at 9.30 and obviously other parties would have matters they wish to raise. I guess I am seeking some indication, Commissioner, of whether - - -

PN536

THE COMMISSIONER: Right. What I might do, Mr Burrows, given that the ANF have sent their resolution to the other parties, I might get some comment from those if I could. Thanks.

PN537

MR BURROWS: Thank you, Commissioner.

PN538

THE COMMISSIONER: Mr Sullivan.

PN539

MR SULLIVAN: Commissioner, essentially Mr Djoneff still carries the matter in relation to the direct employers in this situation but because Mr Burrows has raised the apprehension that there seems to be some confusion about as to what the Government's intentions are, first I should begin by clarifying exactly what the Government's intentions are.

PN540

The Government's intentions are exactly what they have always been conveyed to this Commission. That is, it is funding and will continue to fund the 1300 extra nurses required to meet your decisions in August and March of this year. In addition to that, the Government is now able to inform the Commission formally that the 1300 extra staff are in place - have been recruited in aggregate in the system and in addition on our data there are a further 1000 nurses EFT in the system as well.

PN541

Now what that means in effect and what has been pretty clearly conveyed in my view is that the 400 that was for growth in 2000 and 2001 have been recruited. They are in the system. And the 400 for growth for the next year are already in place in the sense that in the aggregate, there are that many nurses there already. There is also another figure of about 200 I suppose which may be attributable to either filling of funded vacancies or conversion of agency nurses or some of the recruitment of the extra 150, 200 specialist nurses.

PN542

What I should make quite clear to the Commission is that it is the Government's intention to continue to fund to the level of 2300 additional nurses that have now come into the system since August last year. It will continue to fund in aggregate that number. There is in fact something of a mal-distribution of those numbers at the moment because some organisations have recruited considerably beyond what their allocation of the 1300 were, or any allocation that they had for growth.

PN543

So there is no doubt and as the Commission and others are aware, we have in front of us a job of resolving the situations where the over recruitment has occurred but leaving that aside and that will occur not in any precipitated way, it will happen through a managed process that has been foreshadowed by the Commission in its June recommendation. So I just wanted to make clear, in case there is any confusion and I don't see how there could be in fact, but that the Government has met - more than met the recommendations of the Commission of August in 2000 and March of this year. It has implemented, strictly in accordance with your requirements, the recommendation of 18 June of this year.

PN544

Commissioner, since there is a limited time available this morning I will go through what the position of the Government is. It is very clear. The Government and the hospitals are implementing the Commission's recommendations and we want to continue to implement them. The hospitals, with the support of DHS, have recruited to the levels that I have just indicated. That recruitment effort in fact has been more successful than people contemplated I guess. The 1300 go to fulfil the recommendations of this Commission. 1000 have already been taken in and can be utilised for necessary growth in the system.

PN545

The point I must make here, Commissioner, is not being allowed to utilise the 1000 that are there for growth in the system is equivalent to closing beds because the growth is there, the demand is there, and unless the growth and the demand is met, then in effect patients are denied treatments. The aggregate figure will continue to be funded as I have indicated. There will need to be adjustments as to where those people are. We have distributed, Commissioner, in respect of your recommendation of 18 June, individual advices to all hospitals as to their allocation of the 1300 and also any allocation that they had, we indicated what it was for the 2000 and 2001 year.

PN546

Commissioner, all the salaries and conditions improvements of your recommendations have now been flowed, the ones that were required to be flowed by now, to the field, and other steps are still in place to continue with the recommendations you have made. Commissioner, overall the Government is funding, on a recurrent basis, something in order or up towards a quarter of a billion dollars per annum of additional benefits and workload relief for nurses out of your recommendations. That money is flowing now.

PN547

In response, Commissioner, we take it from yesterday's resolutions as have been now clearly identified by Mr Burrows, that the ANF is now threatening to take this dispute back to square one and implement widespread disruption. Effectively, Commissioner, we don't see this now as a complicated matter. The ANF is now saying, "We will take the myriad of advantages that we have had from those recommendations, and we now feel free to create further disruption in pursuit of the few things that fell short of our expectations". These expectations obviously include the additional ratios claimed after the August 2000 decision, the B ratios.

PN548

Commissioner, from the Government's point of view, this is not reasonable or acceptable behaviour. The Commission should be aware that the actions that are threatened will have immediate and serious consequences if implemented. It is equally important to the Commission, I believe, or it should be, that they represent a direct challenge to the Commission's recommendations and are not compatible with section 111AA proceedings.

PN549

Commissioner, yesterday's stop work meeting was industrial action. It was unprotected industrial action and it caused problems. It actually caused disruptions, it caused cancellation of procedures, and it meant patients weren't treated. The ANF now foreshadows continuing and continuous further disruption in the context of these 111AA proceedings.

PN550

Finally, Commissioner, the Government's position is clear and we should signal what we would seek to have out of this morning's proceedings. Firstly, that the Commission formally confirm that hospitals and the DHS are complying with the Commission's recommendations. Secondly, that the ANF be directed to advise its members immediately that the resolutions of 17 July have no effect. Thirdly, the ANF be directed to cooperate in the allocation implementation phase as directed or as recommended in your recommendation of 14 June - sorry, 18 June I think it was, 2001.

PN551

And finally, Commissioner, and this is quite important, that the Commission make clear that nursing growth recruitment, that is the recruitment of the 1000 extra into the system, allows for the opening of new beds to meet growth targets. If this doesn't occur, Commissioner, effectively there are patients untreated. There is a natural growth in the system every year which is met by that allocation of funds and if it is to be the situation where the ANF has the option of also not opening new beds, it is exactly the same effect as closing beds in a growth for demand situation.

PN552

Commissioner, we seek that the matter be dealt with to finality now and we have indicated what directions and recommendations we seek, but we also finally must indicate that in the Department's view, that if the threatened action proceeds, the ANF has abandoned the section 111AA process and its commitments and DHS will necessarily have to review all options to maintain public health and safety. If the Commission pleases.

PN553

THE COMMISSIONER: Thank you. Mr Djoneff.

PN554

MR DJONEFF: Commissioner, I will be much more brief. I am in a position to fully support and adopt the submissions that Mr Sullivan has put to you in relation to these developments. Frankly we are a little mystified that having regard to the terms of your decision of 18 June, that why we are in this position at all.

PN555

There was an agreed or a determined process of allocation to be carried out and that allocation letter from the Department went out to the hospitals recently, and that it was well understood here in the proceedings that led to your determination of 18 June, that many of these matters had to be dealt with at the local level and in the event that there was a dispute about a matter relevant to the allocation, then the status quo would remain and a process of dispute resolution would be implemented.

PN556

It would appear that that very important element of the 18 June set of recommendations is now being disregarded and potentially the union is signalling the distinct prospect of walking away from those obligations. If that is so, then the implications for the operational capacity of hospitals is obvious and I don't have to make a speech about the implications of that. They are well understood and well known to the parties and to the Commission.

PN557

Accordingly, Commissioner, I repeat my support of the proposals and the requests that Mr Sullivan has made of the Commission, and that the ANF give an undertaking to desist from this course of action. If there are matters that they are concerned about, there is a process by which that can be dealt with and certainly not be refusal or a denial of opening beds or the closure of beds or some derivative action associated with those courses of industrial behaviour.

PN558

So, Commissioner, we would seek that the Commission make the strongest recommendations to the ANF that the course of action that they have outlined in their resolutions not be proceeded with, and that any matter in dispute continue to be the subject of processes that we have all come to understand and participate in in the last - best part of 12 months. If the Commission pleases.

PN559

THE COMMISSIONER: Thank you. Mr Burrows.

PN560

MR BURROWS: Briefly, Commissioner, our understanding and in our correspondence to members to attend the meeting yesterday, it was made clear that adequate minimum levels of staffing would be left and that did occur. In relation to the assertion that the ANF would not allow nurses or part of the additional nursing EFT to be used for growth, that is not correct. We certainly would allow nurses to be used for growth, provided the appropriate ratios are met. That is where we have come to this point.

PN561

I think it should be remembered that this is not something that we have done lightly. These matters go back now well over 12 months when we commenced negotiations with the Department and the VHIA and despite the fact that in recent advertisements the Minister and Premier, and it is their right to do so, claim credit for the initiatives and the recruitment of staff and the increased benefits to nurses, people that have been involved throughout the process will know that that was not the case in the early days.

PN562

The response we had to our claims before the private arbitration was a limited response to five claims and a negative response to the rest. We then went through a process before yourself and had a decision on 31 August. There were huge delays in implementation and funding. There were again, despite the Minister's recent statements of how happy he is to have the highest paid nurses and have recruited the most nurses in Australia, when we have come before you on various times over these matters, there is a consistent argument about lack of finance, lack of funding, there shouldn't be more than a certain number of nurses employed, we can't make changes.

PN563

We can't implement the four clear days which is part of your decision because the Department is not prepared to accept anything that will increase the funding. In the last week or two - and I won't go to the documents, Commissioner, yet, given the time constraints but there is an indication in the documents or at least some of the documents that the 2300 will not only help the nurse patient ratio but it implies in the advertisements in the paper that the nurse patient ratios will actually be better because of the 2300.

PN564

We are now told that in effect the 2300 is a bringing forward of the figures for growth over the next two to three years. We are also told apparently that there were no such thing as pre-existing vacancies, although we have letters from the Department signed by Lance Wallace clearly indicating it was the case, and in your own decision of 13 March, which introduced the 1300 EFT, you go on to say that those 1300 are in addition to pre-existing vacancies.

PN565

THE COMMISSIONER: Funded vacancies, wasn't it?

PN566

MR BURROWS: Well I think you used both terms, Commissioner. If you could give me a moment. At paragraph 2 of the decision of 13 March:

PN567

1300 nurses EFT additional to those already funded including funded vacancies.

PN568

THE COMMISSIONER: And there is a process at the moment in place, isn't there, to identify whether or not there has been funding available for vacancies that existed prior to 31 August. Is that right?

PN569

MR BURROWS: There is a process but there is also a difficulty when we are looking at it as a statewide issue because of a number of - the amount of data available from hospitals in general, as the Commission is aware, is fairly sparse. We are in the process of trying to gather some data at specific hospitals. We don't believe it will be possible across the board.

PN570

But it is the principle of the matter, Commissioner, if the Department and the VHIA are also quoted in some of these documents as saying basically that there weren't funded vacancies. Now I guess on the other hand we could take the view that it is possibly a waste of time to argue whether there is a bunch of nurses that exist in the pre-existing vacancies, whether there is a bunch for growth and whether there is a bunch for nurse patient ratios because to some degree, it is a bit of an academic semantic argument.

PN571

If the Department is saying, for example, that you have ward X at the Royal Melbourne which clearly comes under the ratio question, and that part of the 1300 can be used to meet the ratio, but then when that ward is providing a growth service and opens another five beds, that somehow they can use part of the 1000 nurses for growth, but somehow or other the ratio doesn't apply. We are a bit non-plussed, Commissioner.

PN572

Whether the nurses are - and we have said this before, there is not going to be a holding bin of nurses with growth written on their forehead who will just come in and do a certain type of work. There is not going to be another group of nurses wearing a nurse patient ratio badge which will just do a certain type of work.

PN573

If the Department is saying that there is an additional 2300 nurses, and if they are also saying, as the advertisements do, that they are still recruiting and they are going to recruit more nurses, then maybe in total we are getting close to the figure which is necessary to meet the ratios and maybe we would be better concentrating on having the nurses employed and having the ratios applied across the board rather than trying - I mean we have been trying for months to identify things that depend on data from the Department and the hospitals and I am not saying this as a criticism, I think it has been conceded by everybody including the Commission that there is a lack of data to such a degree that the Commission made, as part of its recommendations, a direction that the Department embark on a process that will enable them to provide data on an annual basis.

PN574

I think it is really relevant to take into account the fact that the resolution that the nurses passed yesterday is something like 15 or 16 months after the claim was first started. It is almost 11 months after your decision and it is possibly about 9 months since the ratios were to be implemented. It is not something that ANF members have embarked upon lightly. They also have a genuine belief which we certainly share with them, that the ratios are necessary to address the workload issues. That, I would have thought, has been conceded by all parties.

PN575

If the nurses believe that they may be working in areas where ratios are not applied, or are insufficient in their view, that jeopardises their provision of duty of care and it also jeopardises - potentially jeopardises their registration. The meeting was extremely well attended and it was universal in their support for the resolution and I think, as I say, Commissioner, we may, rather than argue over where certain nurses are put for ratios and certain nurses are put for growth and whether or not there are funded vacancies, now that we have some - and this is the first direct clarification we have had from the Department about the provision of funding of 2300 nurses.

PN576

Apart from what we have read in the papers, we have had no correspondence or contact, verbal or written, from anyone in the Department in relation to this. I don't believe - it is up to the VHIA to say, but I don't believe that they were aware of the resurrection of the advertising campaign or the numbers involved until the advertisements appeared so it has been a bit of - if you like, a bit of negotiation by media release where the Premier and the Minister are happy to claim what they see as the benefits for nursing and the community, but in our view and the view of the nurses, it is unclear as to whether in fact the major benefit, the nurse patient ratio, is going to be allowed to be in place across the board. If the Commission pleases. We have nothing to add at this stage.

PN577

THE COMMISSIONER: Thanks, Mr Burrows. Mr Eden.

PN578

MR EDEN: If the Commission pleases. The HSUA haven't any stop work meetings etcetera. However, we have had a number of organisers' meetings throughout Victoria and where the bulk of our membership lies in C and D class facilities, nurses are becoming increasingly disillusioned in the 111AA decision, especially in some facilities where the only part of the decision that has been implemented are the pay rises and no other part of the decision has even been implemented.

PN579

So the feedback we are getting is that some of these long term nurses have seen this little bit of light at the end of the tunnel if you like, are basically saying, "Well, if this doesn't come through, we are prepared to walk away from nursing". If the Commission pleases.

[9.36am]

PN580

THE COMMISSIONER: All right, thank you. The Commission would have to say and place on record that it is extremely concerned that since the issuing of the recommendation in August of 2000, and a series of other recommendations issued since the original recommendation in August 2000, there is still some confusion, or appears to be some confusion, as to the outcomes of those recommendations and the implementation of those recommendations to the extent where a meeting was held yesterday of ANF members where - I think it is two resolutions were carried, is that right.

PN581

MR BURROWS: Yes.

PN582

THE COMMISSIONER: Thank you, Mr Burrows - two resolutions were carried. It would appear prima facie that both those resolutions appear to challenge the recommendations of the Commission issued since August 2000, and the subsequent recommendations, to deal with the implementation of the recommendations that flow from the August 2000 decision.

PN583

The Commission has stated earlier in this morning's proceedings, in the case that there is a process in place to try and identify any funded vacancies that existed prior to the August 2000. The Commission does acknowledge that that is a difficult process, but at least it is a process in place to at least address the concerns raised by the ANF. The Commission would have to acknowledge, though, that at a given point in time, that is in August 2000, it did acknowledge to the parties that there was a crisis within the nursing sector within the public hospital system.

PN584

To address that crisis a nurse/patient ratio was put in place along with a number of other initiatives to try and attract nurses back to this system. There was a cap, however, put on the nurse/patient ration of 1300 EFT. Since then 1000 extra nurses, taking it to 2300, have been brought into the system through the recruitment process initiated by the DHS with the cooperation of the ANF and the VHIA and the HSUA.

PN585

The DHS argue that the 1000 extra nurses that have been brought into the system, over and above the 1300 cap identified by the Commission's recommendation issued in June of 2001, is to accommodate for growth and, in fact, those nurses, the funding for those nurses, has been brought forward by approximately two years. The resolution of the ANF on Tuesday, 17 July, as indicted earlier, appears to challenge the Commission's recommendation of August 2000 and the series of recommendations since that August decision.

PN586

The DHS have sought a number of directions from the Commission. One of those is that the Commission seek a firm commitment from the ANF in complying with the Commission's recommendations. The other directions that they seek is that the resolutions from the ANF have no effect. Thirdly, that the ANF is to comply with and assist in implementing the recommendations in their entirety. The fourth point is, that the 1000 additional nurses recruited over and above the 1300 EFT be used to deal with growth and not to be used to cover nurse/patient ratio. And fifthly, there is an issue of whether or not the ANF are prepared to continue to comply with the 111AA process or by carrying the resolutions that they carried on 17 July or whether in fact they have abandoned the 111AA process.

PN587

In regards to the last point, whether or not the ANF have abandoned the 111AA process, the Commission is not satisfied at this point that the ANF have. But the Commission will make its position fundamentally clear so that the parties are under no misunderstanding. There are 1300 EFT nurses in the system to accommodation for the nurse/patient ratios, and that was identified in the June 2001 recommendation.

PN588

The 1000 additional nurses that are currently in the system are to deal with growth, and are not to be used under any circumstances to cover the nurse/patient ratio issue. Any bed closures will not be tolerated by this Commission and will, in fact, raise doubts as to whether or not there is to be an ongoing implementation of the Commission's August decision of 2000.

PN589

Fundamentally what this means is that the Commission would seriously have to consider the ANF's commitment under section 111AA process and its commitment to that process. If the Commission is of the view that the ANF have abandoned their commitment then there is a strong possibility that the recommendations in their entirety may be withdrawn by this Commission.

PN590

In terms of the ANF resolutions of 17 July 2001, the ANF should understand very clearly that the Commission does not welcome those resolutions. For what it has said is that they appear to challenge the Commission's recommendations and the Commission will not have its recommendations challenged given that all parties gave commitments to abide by the 111AA process. If at any point in time the Commission felt, as indicated earlier, that there was an abandonment of those commitments, not only by the ANF but by any of the parties, then it would seriously have to withdraw as indicated all those recommendations, not only the nurse/patient ratio issue.

PN591

The Commission hopes it makes its position clear. The Commission stands adjourned.

ADJOURNED INDEFINITELY [9.43am]