C2001/1441, Transcript of Proceedings [2001] AIRCTrans 2130 (31 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 8798

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/1441

AUSTRALIAN NURSING FEDERATION

and

ROYAL DISTRICT NURSING SERVICE

Notification pursuant to section 99 of the Act
re notification of an industrial dispute

MELBOURNE

3.39 PM, THURSDAY, 9 AUGUST 2001

PN1

MR M. MURPHY: I appear for the Department of Human Services.

PN2

MR C. HICKS: I appear for the Victorian Hospitals Industrial Association.

PN3

MS M. CHAMBERS: I appear for the Health Services Union of Australia (Victoria) No 3 Branch.

PN4

MS J. BRENMER: I appear for the HSUA No 4 Branch.

PN5

MR P GILBERT: I appear for the Australian Nursing Federation.

PN6

MR HICKS: Commissioner, I wonder if I may before proceeding raise a threshold issue. The question goes to the participation of the ANF in these proceedings. The Commission will be aware that in matters before the Commission as constituted there were orders made with regard to termination of bargaining periods, and also orders that no industrial action in the form of bed closures occur as a result of the ANF inability to be able to provide to the Commission a commitment to the 111AA process.

PN7

Commissioner, we would submit to you today that on the basis that the ANF is unable - or has not yet provided to the Commission an undertaking to abide by the 111AA process, we would submit that it would be inappropriate for the ANF to be considered part of these proceedings on the basis that the inability of the ANF to commit to the 111AA process would throw in doubt, from the VHIA's perspective, their commitment to whatever outcome may fall from today's proceedings.

PN8

The Commission will also be aware that the matters in relation to the ANF in respect of various termination of bargaining periods are now the subject of Full Bench proceedings and also a number of appeal proceedings before the Commission. If I could inform the Commission, Senior Deputy President Watson has this afternoon made a recommendation to the effect that any industrial action that is occurring by the ANF or its members should not so occur. I am aware this afternoon, Commissioner, that there is in fact a stop work meeting of ANF members, meeting in order to determine what we say could only be characterised as the contemplation of taking further industrial action.

PN9

So for those reasons we would submit to the Commission that unless the ANF is in a position to give a clear and unequivocal undertaking to abide by the section 111AA process, and indeed, abide by all of those outcomes, including no bed closures, that until such time as such an undertaking is capable of being given, that their involvement in these proceedings should be seriously considered by the Commission if it pleases.

PN10

THE COMMISSIONER: Thank you. Mr Gilbert>

PN11

MR GILBERT: Thank you, Commissioner. The Commission as currently constituted is well aware of the ANF's position on these matters. I mean the issue that is the subject of Full Bench proceedings is limited to the matter of nurse patient ratios. There are no other matters the subject of your recommendations that are before the Full Bench at the moment. We remain committed to the 111AA process as it relates to this four clear days off matter. To the extent that it goes to the issue of recommendations we are here today because the employers in some cases have been unable, and in others I would suggest unwilling, to abide by recommendations of the Commission in respect to four clear days off.

PN12

I just emphasise that the dispute in relation to ratios is before the Commission. I have no instructions about what the intent of the stop work meeting is this afternoon, except to say to my knowledge it is a meeting aimed at updating members of matters that have gone on in the Commission in recent days. I certainly have no capacity to give the Commission any commitment relating to bed closures one way or the other. I am not an elected official of the ANF and I don't have the capacity to make such a statement, but I do give the commitment that we are here to abide by the recommendation of the Commission in relation to this particular matter. If the Commission pleases.

PN13

THE COMMISSIONER: Mr Gilbert, Mr Hicks raises the issue about the total commitment to the 111AA process. The ANF appears to be giving a selective commitment.

PN14

MR GILBERT: I would have to get instructions on that, Commissioner. I am not in a position to give an answer. I don't know what has been said to you in other proceedings and said to the Bench in other proceedings. I am sure that question has been asked in other proceedings before you and been answered in other proceedings before you.

PN15

THE COMMISSIONER: Well, the question has been asked and the answer has been provided and the answer is no, they would not give a commitment to the 111AA proceedings and the ANF have not only given - sorry, have not given a total commitment to the 111AA proceedings. They have in fact defied a direct order of the Commission. It would appear that Mr Hicks raises a valid point. I mean either there is a total commitment to the 111AA process or there is not. It is not selective. If the Commission allows the ANF to be selective, then it allows every other organisation to be selective and the Commission is not prepared to do that?

PN16

Mr Gilbert, it might be appropriate if you withdraw and get some instructions.

PN17

MR GILBERT: What particular instruction are you seeking?

PN18

THE COMMISSIONER: Either there is a commitment to the total process, not selective, of 111AA, all the outcomes under 111AA and we will proceed and you come in when you are ready - when you have got some instructions and indicate to the Commission what they are.

PN19

MR GILBERT: I can indicate I will be unable to get those instructions during the course of the matter today, as we have a meeting on currently, as has already been indicated to you.

PN20

THE COMMISSIONER: It might be appropriate then to - it might be convenient I suppose for everybody if the ANF were to withdraw at this point, reserve their right to make submissions at an appropriate time concerning this particular matter. Now, that would obviously give you an opportunity to get some instructions and reserve your right to at some point make some submissions concerning the ANF's perspective of this particular issue. Now, when that might be an appropriate time the Commission can't say.

PN21

Obviously I think some of it would depend on what is happening in this place in other circumstances. What do you say about that?

PN22

MR GILBERT: It is up to the Commission to make whatever recommendation or directions it seeks to make, but it would then raise the question of what is the status of the four clear days off recommendation as it applies to ANF members currently.

PN23

THE COMMISSIONER: Well, all the recommendations are there. There is an argument, of course, as to whether they have actually been complied with and two Full Benches are dealing - you never know, we might end up with a third - dealing with that. The issue of the four clear days, we are dealing with in terms of its application for the HSUA and we are intending to deal with the ANF. I suppose it is just one of those issues that will still be there and will sit there, and if you choose to implement it strictly in accordance with the recommendations without any further submissions to the Commission, then I suppose it will just go under the basket with the nurse patient ratio issue.

PN24

MR GILBERT: Thank you, Commissioner, we will respond as you have requested.

PN25

THE COMMISSIONER: Thanks, Mr Gilbert. I have correspondence from the DHS which indicates that they are in a bit of a difficult position in that there was a - how would you call it, Mr Murphy? Do you call it a questionnaire or do you call it a questionnaire?

PN26

MR MURPHY: I call it a questionnaire, Commissioner.

PN27

THE COMMISSIONER: You are one of mine. The questionnaire was issued and this was developed in order, according to the DHS, to obtain detailed information concerning the extent to which the hospitals are presently unable to meet the four clear days requirement. Now, it apparently has taken longer than anticipated in order to get the information back and to collate it. But the DHS's view was that they didn't wish to interrupt proceedings today, so the proceedings should continue and then at some point, once the detail of the questionnaire has been put together, then a further hearing would be put in place to have that presented. Is that correct?

PN28

MR MURPHY: That is correct, Commissioner.

PN29

THE COMMISSIONER: All right. Does anyone have a particular objection to that particular course from the DHS in terms of dealing with the material arising from the questionnaire? Ms Chambers, Mr Hicks?

PN30

MR HICKS: No, Commissioner.

PN31

MS CHAMBERS: Commissioner, the only concern that I would like to raise is that we first put this proposal in writing to the Department on 8 June and the proposal is essentially in identical terms to the joint unions proposal that was forwarded on 27 July in accordance with your direction. Now, I appreciate that what has occurred is that due to Mr Hicks being unavailable the survey couldn't go out in time and subsequently I think the workforce planning unit requested that additional material be brought in from the survey.

PN32

But I can just indicate this is not the first survey on this issue to go out. It is indeed the second from the VHIA, the first survey having gone out on 18 March, the next survey having gone out in May and indeed, from the No 3 Branch, we have surveyed our membership and the No 4 Branch I know have surveyed their membership on this issue. So clear responses - now, it may well be that that doesn't still give the Department the information it needs about costings. But from the point of view of our membership we advised the Department on 8 June that our radiographers were going to be moving to implement the four clear days out of a frustration in progress in this issue.

PN33

That was two months ago. They have had this proposal to cost for two months. So it is a big ask to be asking our radiographers to hold off yet again whilst they should be doing something they should have done when this proposal was fairly put to them in June. So I would certainly seek - I don't know how long Mr Murphy is going to take and I understand he has got some jurisdictional issues to raise, but I would be seeking to respond to those today.

PN34

THE COMMISSIONER: Even if what you say is right in terms of this material isn't going to provide any greater information or material than previous surveys, and in fact it may not assist the Department at all in getting accurate costings, there is still going to be a time lag in terms of today's proceedings in getting a decision, as you are aware.

PN35

MS CHAMBERS: Yes. Look, if that is the case and the costing information comes through, the Department wants to put that as a separate - and we would have an opportunity to respond. What I am wanting to do is to complete these proceedings as much as possible today. What the Department was proposing was to put its position today, the unions hold off until the whole matter comes back before - if we could leave the costing as a discrete issue to be addressed. I am happy to address you on the substantive - on our proposal today and then the issue of costings. I understand that the surveys are now to be returned by next Monday.

PN36

THE COMMISSIONER: Right.

PN37

MS CHAMBERS: So you would think in that - next week, then the Department's position in relation to the costing of our proposal could be made available to the parties and to the Commission.

PN38

THE COMMISSIONER: Right. Mr Murphy.

PN39

MR MURPHY: Thank you, Commissioners. Certainly it wasn't the Department's intention to delay things, but I must say that the survey was sent out specifically in order to - with information to assist with costings, which was requested by the Commission. From our perspective I think it would have been premature to work off proposals that had been put to us by the unions informally, and I think that it would - was sensible and appropriate that we waited until we had the combined unions' proposal of 27 July before taking action to set work under way with that costing exercise.

PN40

And as Ms Chambers already mentioned, there have been a couple of difficulties - anticipated difficulties in completing the exercise with Mr Hicks being away ill and the need to confer within the Department and include further material to better assist us in collecting material on recruitment strategies, for example. But as I say, it is not our intention to delay things unnecessarily. We have come along today with essentially all our submissions to present, other than the matter of costings, and we are happy to present those here today.

PN41

THE COMMISSIONER: All right. So you agree with Ms Chambers that the issue of costings can be a discrete issue and everyone can deal with their submissions today and then once you have got the costings, if you can get them arising from the questionnaire, you will forward them to the Commission and to the unions and they will have an opportunity to respond to those?

PN42

MR MURPHY: We can do that, Commissioner, and I would be in your hands as to whether we do that out of session. We would want to, from the Department's perspective, present some submissions around the costings once we obtain them. Whether we reconvene to do that or whether it would be sufficient to provide the Commission with a written submission, it is obviously up to the Commission.

PN43

THE COMMISSIONER: Right. I suppose for the matter of convenience it might be appropriate that the parties simply provide written submissions I think, because next week is not available in terms of hearings and the week after seems to be pretty full anyway.

PN44

MR MURPHY: Yes.

PN45

THE COMMISSIONER: So in order to progress the matter maybe written submissions would be appropriate. Now, Ms Chambers threw one in from left field, something about jurisdictional issues.

PN46

MR MURPHY: Well, I don't know whether I would characterise it as jurisdictional, Commissioner. Certainly one of our submissions is that the proposal as it has been presented to us from the Department's perspective, constitutes a new claim. It is not something that was contemplated within the usual log of claims which gave rise to the dispute, which in turn was referred to section 111AA processes. So to that extent we say that it actually stands outside the processes which we have made a commitment to work through.

PN47

It is certainly something that wasn't contemplated initially by the parties. It is not something that was discussed, that there should be additional paid time off, or there should be additional penalties in the event that it is not possible to provide four clear days. That will be one of our submissions, Commissioner.

PN48

THE COMMISSIONER: Is it not simply an interim measure? I could understand your argument if it were a permanent fixture, but it is not proposed to be. It is an interim measure until such time as other things happen to allow the four clear days issue to be fully implemented.

PN49

MR MURPHY: Commissioners, we have heard the views of the union on that. We also note that the proposal from the union doesn't contain any sunset clause or expiry date. One might say, well, that is something that could be addressed. But, nevertheless, the fact whether or not it is an interim measure does not, to our way of thinking, change the fact that it is not something that was contemplated within the original log of claims and, therefore, falls outside the 111AA process. What we would say is, Commissioner, that what we are doing here and now is working through processes of clarification and dealing with issues of implementation.

PN50

We are not here dealing with new claims which are being presented over and above the initial claims which gave rise to the dispute.

PN51

THE COMMISSIONER: The only concern that the Commission would have is that unless some interim measure could be found - and this is what the Commission thought it was dealing with - the alternative as flagged by the HSUA collectively is that they will simply implement the recommendation as it is, which everyone acknowledges would cause enormous disruption to the provision of services.

PN52

MR MURPHY: Well, Commissioner, I mean we are essentially getting into areas that I was hoping to address in our submissions, but our view on that is that this is a problem of implementation. The recommendations as they currently stand in relation to four clear days by and large are being implemented. The fact of the matter is that in some hospitals in some areas those hospitals are unable to fully comply. We say that the relevant recommendation should be amended to acknowledge that, as has happened on other occasions in relation to the nurses' decision, with nurse to patient ratios.

PN53

But at the same time there should be measures put in place to assist - to address the problem in the meantime. We put forward a proposal, as you would be aware, Commissioner, to the union in terms of additional funding, recruitment initiatives, training initiatives, funding to assist with engagement of locums and that sort of thing. From our perspective that is not a take it or leave it proposition. That is something we would want to work out with the unions, but we would see that as the appropriate way of addressing this issue rather than awarding additional penalties, which we say don't address the root cause of the problem.

PN54

THE COMMISSIONER: Can I ask the Department a specific question and that is this? If the Commission takes what the DHS propose in terms of additional training places, upgrading of some levels of radiologists and so forth, as an example, and the Commission says, well, look, that is fine, but in the interim there will be this step, whatever it may be, is the Department going to abide by it?

PN55

MR MURPHY: Commissioner, we will abide by any recommendations of the Commission in relation to the 111AA process. You are asking me a question about if we are characterising recommendations, should the Commission see fit to make recommendations to support the union proposal, I would have to reserve our position on that. I mean the clear fact of the matter is we have given undertakings to the Commission to fully fund - commitments on behalf of government to fully fund the implementation or recommendations arising from the 111AA processes.

PN56

Our submission is that a recommendation to support the proposal as it currently stands would be a recommendation to support a new claim which stands outside that process. Now, that is not to say we would or wouldn't fund, but I am saying that here and now I have no authority to indicate that we would be prepared or in a position to support that. Funding has been secured from Treasury in relation to those recommendations made by the Commission, coming of the 111AA processes. We believe that the union proposal as it currently stands for additional paid time off and/or for penalty payments, constitutes a new claim outside that process.

PN57

THE COMMISSIONER: I don't what the Commission is doing here, I really don't. DHS are in no better position than the ANF; it is selective. If we like the recommendation we will abide by it and we will fund it. If we don't we reserve our position. The Department could have made this position abundantly clear to the Commission a couple of weeks ago. The Commission stands adjourned.

ADJOURNED INDEFINITELY [4.03pm]