C2001/6177, Transcript of Proceedings [2002] AIRCTrans 109 (3 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 1911

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2001/6177

HEALTH SERVICES UNION OF AUSTRALIA

and

ANGLICAN AGED CARE SERVICE GROUP

Notification pursuant to section 99 of the Act
of a dispute re the failure to recognise correct
classification

MELBOURNE

12.08 PM, THURSDAY, 20 DECEMBER 2001

PN1

MR C. HEUSTON: I appear on behalf of the Health Services Union of Australia and appear together with MS N. LINDSAY.

PN2

MR B. APPLEBY: I am here to appear on behalf of Anglican Aged Care Services Group.

PN3

THE COMMISSIONER: Mr Heuston, are you going to lead today?

PN4

MR HEUSTON: Yes, thank you, Commissioner.

PN5

THE COMMISSIONER: Although Mr Lindsay signed the section 99, I wonder whether you go ahead.

PN6

MR HEUSTON: Thank you, Commissioner. As you are aware, Commissioner, this dispute is regarding the classification of a member of ours, Ms Debbie Holloway who is currently employed as a personal care worker grade 1, year 3 at Anglican Aged Care and has been employed since 22 February 1995. It is the HSUAs submission that she is currently incorrectly classified as a grade 1 personal care worker and should be classified as a personal care worker grade 2.

PN7

The Health and Allied Services Private Sector Consolidated Award 1998 which covers Ms Holloway and to which Anglican Aged Care is a respondent defines a personal care worker grade 2 as performing the same duty as a personal care worker grade 1 and upon employment is required by the employer to hold a TAFE certificate which is aged care specific, or who provides proof to the employer that they hold such a certificate, or is being employed and is being required by the employer to obtain such a certificate such as the requirement being given in writing prior to the undertaking of the course.

PN8

Ms Holloway has a certificate from TAFE. She received a certificate in working with older people from Illawarra Institute of Technology in December 1992 with a distinction, which is a two year part time course. It is a New South Wales campus of TAFE and in 1995 she applied for a position at Anglican Aged Care which was advertised as being for a division 2 nurse or equivalent preferably bilingual. Ms Holloway isn't qualified as a div 2 but thought she would apply for the position nonetheless.

PN9

Ms Holloway then attended an interview for the position where a photocopy of her qualification was taken and she was asked to further elaborate on the course content of the TAFE certificate course that she has completed. She then started employment on 22 February 1995 and was told by her supervisor that the main reason for the success of her application was the certificate which she had completed. When she started she was employed as a grade 1 personal care worker and has been since then.

PN10

In the last few years there have been a number of other staff members who have been requested by the employer to undertake and complete a certificate 3 in aged care to meet accreditation standards. Now, these staff were required to do so by the employer and the costs of this course were met by the employer. In approximately May 1999 - - -

PN11

THE COMMISSIONER: What classification when they successfully completed?

PN12

MR HEUSTON: They were to be classified as a grade 2 personal care worker.

PN13

MR APPLEBY: A certificate 3, Commissioner.

PN14

MR HEUSTON: Yes. In approximately May 1999 when staff were being asked to complete this course Ms Holloway approach her supervisor during a performance appraisal to find out if she was going to be required to complete this course also and was informed that she was required to complete the course as she already had a certificate. The issue was again raised in June of last year by the manager from St George's who asked for copies of certificates from the employees who had such certificates and earlier this year a notice was put up at that site pointing out correct wage rates and classifications of personal care workers.

PN15

The employer in all instances during her employment has recognised Ms Holloway's qualification as being appropriate and acceptable with the exception being in the issue of wages and classification. When the issue of wages and classification has been raised the validity of that classification has been questioned and it is not until that issue was raised that the employer has suggested further training and assessment of Ms Holloway.

PN16

THE COMMISSIONER: I don't quite follow what you said that, Mr Heuston. It wasn't until the validity of the qualification or the - - -

PN17

MR HEUSTON: It was only once the issue of classification was raised.

PN18

THE COMMISSIONER: By Ms Holloway.

PN19

MR HEUSTON: By Ms Holloway that the substance of the qualification was being questioned by the employer.

PN20

THE COMMISSIONER: So previously it was regarded as adequate you say.

PN21

MR HEUSTON: Yes.

PN22

THE COMMISSIONER: And the passage of time indicates that.

PN23

MR HEUSTON: Yes.

PN24

THE COMMISSIONER: Against a background where other people were required to go and do the course and they were upgraded.

PN25

MR HEUSTON: That is correct.

PN26

THE COMMISSIONER: Ms Holloway's was regarded you say as adequate. One could take it that the fluxion of that much time, several review periods as it were, just doesn't a dead issue. It was an issue of currency with other staff.

PN27

MR HEUSTON: Yes.

PN28

THE COMMISSIONER: Nothing was done. Ms Holloway says what about me and is your point that then the employer took a critical assessment, well, must have a look at your certificate and see whether it is any good?

PN29

MR HEUSTON: That is correct. That is correct.

PN30

THE COMMISSIONER: All right.

PN31

MR HEUSTON: Today we seek from the Commission a recommendation that Ms Holloway's correct classification be a personal care worker grade 2 based on the fact that her qualification complies with all requirements of the award for a grade 2 personal care worker.

PN32

THE COMMISSIONER: Well, my acting associate is getting me a copy of the award now. Can you tell me, do you say that it has to be deemed? Until I see the - - -

PN33

MR APPLEBY: Commissioner, I have got the award if that would help.

PN34

THE COMMISSIONER: All right, Mr Appleby. Yes, I will hear from you in just a minute but it is Heuston but I will get - just speak to it for the time being, Mr Heuston. What do you say, does it require - - -

PN35

MR HEUSTON: The award requires that a personal care worker grade hold a TAFE certificate specific to aged care. Now, we say that Ms Holloway's qualification which is four a certificate in working with older people meets those requirements.

PN36

THE COMMISSIONER: What is it called, her certificate?

PN37

MR HEUSTON: I have a copy of it with me if you would like a copy. The total title of it is a certificate in working with older people.

PN38

THE COMMISSIONER: Well, that is pretty much precisely what you just said, isn't it? Yes, all right, so your general description is in the fact the title of the certificate.

PN39

MR HEUSTON: Yes, yes.

PN40

THE COMMISSIONER: All right.

PN41

MR HEUSTON: The wording for the award is slightly different in that it says aged care specific but I think that meets that criteria. One of the issues which has been discussed in the fact that the certificate that has been obtained may be - was received in December 1992, so it is not as recent as the qualifications received by - - -

PN42

THE COMMISSIONER: And who has raised that point?

PN43

MR HEUSTON: Sorry?

PN44

THE COMMISSIONER: Who has raised that point, Mr Heuston?

PN45

MR HEUSTON: I do believe the employer has raised that point in questioning whether or not the content of that course is still relevant. The award doesn't specify time frame in a course should be completed or how close to the time of employment. It doesn't specify within three years or any such provision. There have also been some questions raised about the fact that the certificate itself was issued from an interstate campus.

PN46

THE COMMISSIONER: Who has raised these two points?

PN47

MR HEUSTON: I believe the employer has raised those two points.

PN48

THE COMMISSIONER: And do you know who particularly?

PN49

MR HEUSTON: I am not sure if it is Mr Appleby or a supervisor or manager. I am not sure.

PN50

THE COMMISSIONER: But an official?

PN51

MR HEUSTON: Yes.

PN52

THE COMMISSIONER: All right.

PN53

MR HEUSTON: We also understand that some discussions have taken place between the administrators of that case in Illawarra and the employer about the content of that course which largely is similar to the certificate 3 in aged care. There are some areas, as you would expect, between different providers where the course does vary. There are some areas where the course which has been completed by Ms Holloway is more in depth and comprehensive, particularly in the theoretical side of the course. However, I think it has been raised by the employer there may be other areas where it is not as comprehensive.

PN54

We submit that by and large the courses are comparable despite the course content varying somewhat. Thank you.

PN55

THE COMMISSIONER: Thank you, Mr Heuston. And Ms Holloway here, Mr Heuston?

PN56

MR HEUSTON: Unfortunately she is working night shifts and was unable to attend today for that reason.

PN57

THE COMMISSIONER: Thank you. Yes, Mr Appleby.

PN58

MR APPLEBY: Commissioner, for the record I am very concerned about the accuracy of that submission apart from the quotation of the award which is accurate. If I may take the Commissioner back to a sequence of events that led to this disputation. On 11 May we were notified by Fiona Darwin who is in this room today that there was an issue around classification at Anglican Aged Care. Moreover - - -

PN59

THE COMMISSIONER: It is Ms Darwin is it?

PN60

MR APPLEBY: Yes, Fiona Darwin.

PN61

THE COMMISSIONER: All right, thank you.

PN62

MR APPLEBY: A representative of the HSUA Number 1 Branch.

PN63

THE COMMISSIONER: Yes, thank you.

PN64

MR APPLEBY: Moreover, the issue was concerning one of our facilities which was Corowa Court down at Mornington. We responded to Ms Darwin's correspondence which we responded on 11 May. We responded on 14 May after receiving some advice from the Service Industry Advisory Group about the issue. Their advice was that if people did hold a certificate 3 upon employment that they should be classified as a personal care worker grade 2, or if there was written request from the employer to the employee that such course shall be undertaken then that person upon successful completion of that certificate would be reclassified at personal care grade 2.

PN65

We responded to Ms Darwin on 14 May to say that we would look into the issue and basically clarified the information that we got from the Service Industry Advisory Group. In terms of the interpretation of the award we believe Anglican Aged Care has taken a fairly generous interpretation insomuch as we looked at all our employees across 17 facilities if they indeed did have a certificate 3 upon employment. We then calculated back pay from the time they were employed and awarded back pay.

PN66

We then recognised that there was an equity issue and I believe that is what we are discussing today, there is an equity issue in that staff did go along after they were employed and attained certificate 3 and it wasn't at the direction of the employer, never has written directions being given from Anglican Aged Care to a staff member to go and do this. However, they were supported in attaining their certificate in terms of release and engagement of an RTO to do that, a Registered Training Organisation.

PN67

We recognise that there would be some inequities so we wrote to every personal care worker at Anglican Aged Care, so it was at our instigation, not at Debbie's instigation. We wrote to every personal care worker on 15 June 2000 outlining to every staff member if they had a certificate 3 qualification that had attained during employment that they were to approach their manager and they would be reclassified to personal care worker grade 2 from 1 July thereafter.

PN68

Debbie Holloway then wrote to her manager, Fabio Mayo of St George's, wrote on 27 July asking that she be reclassified. That letter was then forwarded on to me with her qualification which is indeed a certificate in workplace - sorry, a certificate in working with older people that was issued through the TAFE through New South Wales, Illawarra TAFE, and indeed the issue of where it was issued within Australia has never been discussed with Debbie.

PN69

With followed Illawarra TAFE up and spoke to them to ascertain the correct certification level of Ms Holloway's qualification. Their advice, whilst close to a certificate 3, the qualification came out of the old structure and was not quite to the level of the current certificate 3. They suggested the gaps would be around areas of personal care, showering, toiletting and feeding. Their advice was that for someone who had been working in the field for any length of time and accredited RPL process, recognised prior learning process, would probably identify that the skills were now covered off and that she could be awarded a certificate 3. So we then wrote to - - -

PN70

THE COMMISSIONER: Do you mean some nominal way or that New South Wales Illawarra would issue a certificate?

PN71

MR APPLEBY: No, Commissioner, what we would have to do is go through the competencies of the certificate 3, assess Ms Holloway and upon assessment and to the satisfaction of Illawarra TAFE they would then re-issue her certificate at certificate 3 level and then we would re-classify her as a personal care worker grade 2.

PN72

THE COMMISSIONER: Yes.

PN73

MR APPLEBY: On 10 August we wrote to Ms Holloway and advised Debbie that we had spoken to Illawarra who advised - - -

PN74

THE COMMISSIONER: Sorry, what date was that, Mr Appleby?

PN75

MR APPLEBY: 10 August.

PN76

THE COMMISSIONER: Thank you.

PN77

MR APPLEBY: I have all the correspondence if the Commission would like

PN78

THE COMMISSIONER: No, go on.

PN79

MR APPLEBY: Debbie was offered the opportunity to participate in the certificate 3 being offered across the organisation so that she would be eligible for reclassification. As a result of what Ms Darwin brought to our attention we thought, well, there are staff members who didn't have their certificate 3 so let us provide the opportunity for them to attain that certificate so 35 staff members are now nearing the completion of their certificate 3.

PN80

So this was offered to Ms Holloway to participate in this program and if she was engaged in employment during that time that she needed to attend the work shops that she would be paid for that time release. Unfortunately after that correspondence Debbie didn't follow it up and we received on the same day a letter from Marianne Lindsay stating that Anglican Aged Care failed to address the issue of classification for Debbie Holloway and that the grievance procedure would be initiated as per the award.

PN81

I spoke to Ms Lindsay and explained that we had indeed contacted Illawarra and that this is what they had said, that there was deficient areas in her qualification. So on 14 September we went back to Illawarra TAFE and we spoke to Illawarra TAFE and again they have repeated basically what they had said previously and their advice was that for someone who had been working in the field for any length of time an accredited RPL process would identify that their skills were now at certificate 3 level and they would be happy to issue a certificate 3 if Anglican Aged Care assessed Debbie's competencies against those set out in the certificate 3 aged care.

PN82

The cost to the individual was going to be $110 to go through this process to enrol in it. So on 26 September we forwarded out another letter to Debbie Holloway confirming that again we had spoken to Illawarra regarding her qualifications and classifications and we offered two options for Debbie to get her qualification up to certificate 3 level. One being that we could enrol her and she would pay the enrolment fee of $110 and we would assess her against those competencies and forward it through to Illawarra, or two, she could participate in the certificate 3 program that we were running across our facilities and that most likely she wouldn't have to attend many of those workshops and that she would just be assessed as being competent. She took up neither of those two options, Commissioner.

PN83

We didn't hear else from Debbie and we assumed that she was happy in the workplace. I cannot comment on what Mr Heuston has put forward in terms of discussions with supervisors previously but indeed this is the sequence of events. Debbie hasn't come forward to me with any grievance and we received a letter of notification on 13 December. Thanks, Commissioner.

PN84

THE COMMISSIONER: Mr Appleby, I just want you to make it clear to me what it is that the two options that you see available to Ms Holloway should she choose to take one of them up and the first one is that she enrol perhaps through some distant learning, I don't quite understand this but let me just put it to you, these are the two options as I understood you to indicate. There would be a fee of $110 and she would have to enrol and I assume, as I say, there would be some distant learning through Illawarra and they would issue whatever the updated certificate might be?

PN85

MR APPLEBY: She would enrol in the certificate, we as the employer would assess her competencies against those competencies identified in the certificate 3. We would then sign it off, forward it to Illawarra and if they were satisfied with that they would issue the cert 3. That was option 1 and option 2 was that we had engaged an RTO Mediquest, which is a provider of a certificate course that we are putting all our other staff through, she could enrol in that.

PN86

She probably wouldn't have to go to many of the workshops because she has already got those competencies and she would just be assessed and then awarded a certificate which is nationally recognised so that the issue of where it was issued, what State doesn't matter. But she would get a certificate from Mediquest instead of Illawarra at certificate 3 level and then she would be reclassified.

PN87

THE COMMISSIONER: With the first of those options how long is it thought that that would take?

PN88

MR APPLEBY: It would be of minimal length. Once we got the competencies we could undertake that. It would be a relatively quick and painless exercise.

PN89

THE COMMISSIONER: Because you would apply the RPL techniques and which would involve an assessment of Ms Holloway, wouldn't it?

PN90

MR APPLEBY: We are talking a couple of weeks, Commissioner.

PN91

THE COMMISSIONER: Yes, and what about the second option?

PN92

MR APPLEBY: Well, with that, Commissioner, the course is being offered to all staff but if she could demonstrate that she had competencies she wouldn't have to attend the workshops and she would just be what we call RPLd. So again, given that what Debbie is putting forward and I don't dispute that she has been employed since 95 with our organisation, indeed she has got a certificate and it is relating to working with older people but the institute itself has said there are deficiencies.

PN93

It is not that we are trying to preclude this person from being reclassified. Indeed we have offered two options for this person and she hasn't taken up any.

PN94

THE COMMISSIONER: Yes, thank you. Mr Appleby, what do you say the deficiencies are, that is, the shortfall of the existing qualification?

PN95

MR APPLEBY: The deficiencies as per Illawarra, they have said that the deficiencies are gaps in areas of personal care such as showering, toiletting and feeding. Now, Ms Holloway does that every day.

PN96

THE COMMISSIONER: Yes, I am really asking - I understand that is what you had said was their assessment as it were of a distinction that could be drawn between the certificate and presumably the course as it is presently offered by them in certificate 3 level and what Ms Holloway undertook in 1992.

PN97

MR APPLEBY: In 92.

PN98

THE COMMISSIONER: Now, in a practical sense what do you understand the shortfall to be? Having heard what Illawarra said what is it? What is the difference?

PN99

MR APPLEBY: Well, having not known Debbie intimately there is no performance issues and she does this on a daily basis. However, there has to be, I suppose, a line drawn in the standards recognised within the industry people will be reclassified at grade 2 upon achieving the cert 3 in aged care. If we were to say to Debbie, well, don't worry about it, we know you can do it, don't worry about it, we will reclassify you, then there is a right for every staff member. Why have we got 35 staff members participating extending themselves to go and participate in the cert 3 course?

PN100

THE COMMISSIONER: I understand that answer, thank you, Mr Appleby. We will go into conference now. Mr Heuston, is there anything you want you to say? I don't invite you to - - -

PN101

MR HEUSTON: I think it can be said in conference.

PN102

THE COMMISSIONER: All right. We will go off the record.

NO FURTHER PROCEEDINGS RECORDED