C2002/1545, Transcript of Proceedings [2002] AIRCTrans 1597 (13 May 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03686
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/1545
C2002/1643

AUSTRALIAN NURSING FEDERATION

and

WARLEY HOSPITAL INC

Notification pursuant to section 99
of the Act of an industrial dispute
re progression between pay points
for Division 2 Nursing Staff

Application under section 170LW of the Act
for settlement of dispute re pay
point progression

MELBOURNE

2.36 PM, MONDAY, 29 APRIL 2002

PN1

MR P. GILBERT: I appear for the Australian Nursing Federation with MR M. CROSBY and MR P. CORDOVA.

PN2

MR S. McCULLOUGH: I appear for the Service Industry Advisory Group seeking leave to appear on Warley Hospital Incorporated. Appearing with is MR D. WAIN, the Chief Executive Officer of Warley Hospital Incorporated.

PN3

THE COMMISSIONER: Thank you, Mr McCullough. Mr Gilbert, do you have any objections to Mr McCullough seeking leave?

PN4

MR GILBERT: No, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Mr McCullough. Yes, Mr Gilbert.

PN6

MR GILBERT: Thank you, Commissioner. This dispute relates to an agreement entered into between the Australian Nursing Federation and the Health Services Union of Australia Victoria Number 1 Branch and the Warley Hospital Incorporated. It is a certified agreement that was certified by Senior Deputy Kaufman on 29 November 2001. Does the Commission have a copy of that agreement there or would prefer - - -

PN7

THE COMMISSIONER: No, no.

PN8

MR GILBERT: - - - if I handed one up?

PN9

THE COMMISSIONER: Thank you.

PN10

MR GILBERT: As you can see, Commissioner, it is only a recently certified agreement at the end of last year and has a life through until 2004. Like a number of agreements applying in the private sector, it adopted a number of provisions arising out of your recommendations in C No 35605 of 2000 or generally known as the General Nurses Case and the particular issue between the parties today is the additional pay points for Division 2 nurses.

PN11

Currently in the Nurses Victorian Health Services Award, there are five pay points and those five pay points have attached to them a variety of criteria to do with experience and skill indicators and otherwise if a person meets those experience and skill indicators, they translate on an annual basis from one pay point to the next. In the public sector claim and in your subsequent recommendations, there became available to Division 2 nurses, pay point 6 and pay point 7. In the public sector that means a Division 2 nurse who has reached pay point 5, on her additional year of experience, can advance to pay point 6 and another additional year of experience can advance to pay point 7.

PN12

If I could take the Commission to clause 7 of the agreement, relationship to parent award, a common provision in all agreements:

PN13

That the agreement is to be read wholly in conjunction with the award provided that where there any inconsistency the agreement will take precedence to the extent of the inconsistency.

PN14

And in terms of over the page, there is a clause 11 and that is the clause that gives effect to the additional pay points and is the clause that we now find ourselves in dispute with in respect to Warley Hospital.

PN15

The parties agree that two new pay points will be introduced, namely pay point 6 and pay point 7. Pay point 6 is $12 per week more than pay point 5 and pay point 7 is $24 per week more than pay point 5.

PN16

Employees will translate to these new pay points according to the requirements of the award as follows -

PN17

and then it goes on to show that they were to be introduced incrementally. There is no more to that clause than what you see in front of you and that clause is also to be found in virtually the same or very similar terms in the public sector recommendations and also in most, if not all, acute private sector hospital agreements and in both the public sector and in acute private hospitals, that particular set of words or words similar to those words are without disputation taken to mean that an enrolled nurse or a Division 2 nurse who has met the criteria to be classified at pay point 5 translates to pay point 6 and pay point 7 solely on experience.

PN18

So it is just a mere additional year to pay point 6 and an additional year to pay point 7. That is how our members understood this clause to be. That is how the Australian Nursing Federation understood this clause to be and how we submit to the Commission it ought to be interpreted and the hospital on the other hand has put to the ANF that it prefers to see and for reasons I am not entirely sure of understood there was to, criteria other than years of experience attached to the translation in those pay points.

PN19

That additional criteria was provided to us only late last week and we have had some brief discussions with the employer representative before coming in here today and our position remains unchanged. Our members had this agreement explained to them in accordance with the requirements of the Act. The members understood that there were no additional criteria than what the Commission sees in front of it in clause 11 which is that they translate on years of experience and that if we were, for whatever reason, inclined to consider Warley's proposal to attach additional criteria, that it goes against the reasons why agreements are explained and voted on in the way that the Act requires and would also suggest, I guess, to employers that agreements, once negotiated, can be altered in a substantial way.

PN20

We say there is no reason to grant the pay points other than on years of experience and that is the matter we seek the assistance of the Commission on today and subject to what the other side have to say we would like to adjourn briefly into conference to try and explore some resolution to it but failing that we would be seeking the assistance of the Commission in a more formal way to bring the matter to a conclusion. If the Commission pleases.

PN21

THE COMMISSIONER: Thank you. Yes, Mr McCullough.

PN22

MR McCULLOUGH: Commissioner, I am just going to borrow the words of someone else to start:

PN23

Arguments are best avoided, they are always vulgar and often convincing.

PN24

To that extent the ANF are correct. Experience should be a relevant aspect for consideration with regards to progression to pay point 6 and 7. As Mr Gilbert has pointed out, clause 11 of the agreement is signed. Other than saying that employers will translate to the new pay points according to the requirement of the award. The difficulty is that the award doesn't not have any requirement with regards to pay points 6 and 7. That is, there is nothing enforceable at law with regards to progression to these particular points.

PN25

For every pay point under the Nurses Award, there is a requirement with regards to experience. Logic says that with regards to progression to pay point 6 and 7, experience should be part of that criteria. The only different between the parties is whether it should be the sole criteria. The ANF has submitted to the Commission and it has put in its correspondence that the employer is seeking to impose criteria with regards with progression to pay point 6 and 7 unilaterally. Further it is said the employer does not have a right to impose that criteria.

PN26

The point is neither did the ANF. The ANF is itself proposing a criteria that is not provided for either by the agreement or by the award by saying that experience should be means of progressing to pay points 6 and 7. That is not to suggest that it is not a logical route to take. Only that the ANF are seeking to do the exact same thing as the employer in this matter, that is develop a criteria that doesn't currently exist. Without an agreed criteria there is no reason for something, for example, at pay point 2 to claim that they should not be at pay point 7.

PN27

On any logical basis that would be absurd but it is not as though they are not satisfying the criteria. In terms of what the criteria for progression should be, the ANF say experience, we agree. We also say that progression to pay point 6 and 7 should be consistent with progression to every other pay point under the award. We say that the second necessary element is that the nurse should progress having been assessed as competent at the previous pay point. Competence is always a key consideration.

PN28

For it to be requirement at every other pay point up to pay point 5 but not for the most senior pay points would, in our view, be absurd. Further, education, either in-service or through education modules, are a feature of other pay points. They should be for pay point 6 and 7 also. The thing the parties need to reach agreement on is the quantum in terms of hours or the modules that would be reasonable in all the circumstances. To this point the parties have been arguing over whether or not there should be a criteria. We say that it is an inescapable conclusion that there must be whether it is experience or something more.

PN29

Fundamental to any discussion about a proposed criteria will be its impact on Division 2 nurses in the workplace. Any criteria has to be reasonable having consideration for those nurses. We also to emphasise that there has been no refusal to this time to progress an employee, only an argument as to how it should occur. The employer wishes to resolve this matter in order that progression might take place, that is the employer is not seeking to unilaterally impose a criteria, it is seeking to reach agreement with regards to criteria.

PN30

The ANF's application had a second part to it seeking that the Commission use its discretion under section 170LW of the Workplace Relations Act. I would like to speak to that very, very briefly. Clause 26 of the relevant agreement outlines the procedure for the avoidance of industrial disputes and grievances. The ANF has outlined in its submissions that it is seeking or in its application that the Commission act in accordance with subclause 26, subclause 6 of the agreement which provides that:

PN31

If a grievance still exists, the matter may be referred to the Australian Industrial Relations Commission for decision and that the decision shall be accepted by the parties as ending the matter.

PN32

In its notice, the ANF have stated that the parties have exchanged correspondence and representatives of the employer and the ANF have met to seek a resolution to the matter without success, that is the steps according to the ANF's application do not satisfy the steps under clause 26 of the agreement. We submit that the discretion under section 170LW should only be exercised in accordance with the relevant dispute settling procedures. In this instance those procedures have either not been followed or not been followed in full.

PN33

The steps admitted are not discretionary, they are compulsory. Accordingly we respectfully submit that the Commission should not exercise its powers under 170LW of the Act however we do welcome an opportunity for conciliation with a view to attempting to resolve this matter. If the Commission pleases.

PN34

THE COMMISSIONER: Thank you. It is a very interesting argument, Mr McCullough. Very interesting arguments. There are a number of questions that arise from the argument. Mr Wain produces a statutory declaration that says the agreement has met all the requirements of section 170 and the clause that the ANF refers to does not provide for any criteria. Your argument is that because the criteria exists under the award for the existing five pay points it follows that there is criteria for pay point 6 and 7 but the agreement doesn't say that. So is the statutory declaration that Senior Deputy Kaufman relied upon, wrong?

PN35

MR McCULLOUGH: Thank you, Commissioner, for the reminder. I should have addressed that. With regards to the statutory declaration, the parties have a difference of opinion as to what was explained to the nurses. My understanding and the ANF can make this clear, that they believed there was nothing in the explanation with regards to progression to the pay points or alternatively that people were given the impression that it would be automatic. My client has a different recollection.

PN36

My client's recollection is that the matter did arise during discussions to explain the agreement and staff were told that there would be a criteria. There is a difference in recollection as to how the agreement was explained to the parties. That shouldn't go in any way to the statutory declaration but certainly, your Honour, as my client recalls the process. The point that I was making in terms of those submissions as to what was in the agreement and what was not was that experience is, of itself, a criteria and experience is not included in the agreement either. If the Commission pleases.

PN37

THE COMMISSIONER: But the agreement doesn't refer to experience.

PN38

MR McCULLOUGH: No, it doesn't.

PN39

THE COMMISSIONER: But the agreement does say that where there is any inconsistency in regards to the relationship with the award, then the agreement shall take precedence over the award. If the agreement does not provide for criteria and the agreement has been certified without criteria and makes no mention of the development of criteria, then one can reasonably assume that there is none.

PN40

MR McCULLOUGH: The difficulty - - -

PN41

THE COMMISSIONER: And there wasn't intended to be.

PN42

MR McCULLOUGH: Commissioner, the difficulty with that proposition is that the ANF's position is to introduce a criteria being a single year of experience more than pay point 5.

PN43

THE COMMISSIONER: Well, I would have to say that the Commission disagrees because if - one goes by the written word and the written word in the agreement refers to progression and as I understand all the ANF seeks to do is to have what the written word says and that is to move.

PN44

MR McCULLOUGH: Yes, Commissioner. There is still the concern if there is no criteria whether or not people at pay points 2 or 3 could apply to be progressed to pay points 6 and 7. My instructions are that some employees have already made inquiries to that end, that is while the path to pay point 5 is clearly defined, you must have satisfied the criteria for the previous pay point, there is no such barrier to pay point 6 and 7, that is it is easier to progress to 6 and 7 than it may be to go through to pay point 4 or to pay point 5.

PN45

In terms of a career structure, it would be our view that that would not be consistent with a reasonable or - well, with the term "career". It would simply undermine that somewhat.

PN46

THE COMMISSIONER: And I can understand the logic of your argument and I think it is valid. That it would be absolutely ridiculous for people to move to pay point 6 and 7 simply based on years of service when to get to pay point 4, they must go through a range of criteria, based on skills and knowledge to get there. One is contradictory to the other however, it is not the issue here. The issue here is that there is a certified agreement, one of very few I must say that have arisen out of the General Nurses case that says that there is progression to pay point 6 and 7.

PN47

Now, there are two courses that we can go down. One is that the employer simply abide by 6 and 7, pay point 6 and 7, as they are in the agreement and at the renewal of the agreement, if there is a criteria that has been developed in the general sense, inserted into a new agreement or secondly if no arrangement can be reached from this, in order for the agreement to be prosecuted properly, I mean the ANF do have their rights through a court of competent jurisdiction in terms of breach.

PN48

Now, there is a third option. That if a criteria is developed during the life of this agreement, then Mr Wain may seek an agreement with the ANF which would be a reasonable attempt to fix it to vary the agreement to include that new criteria but until such time as he does, the written word says that there is none. There has got to be a progression. That is the difficulty.

PN49

MR McCULLOUGH: There are a number of difficulties with regards to that but thank you to the Commission for outlining that. I should also say that with regards to the Commission as currently constituted and the variation to the agreement to the Nurses Award and refusal to progress to a pay point, there has not been a refusal to this point in time and we do accept - - -

PN50

THE COMMISSIONER: It is just that no-one has moved.

PN51

MR McCULLOUGH: No-one has moved but what we do accept is that if there is a refusal that the onus effectively rests on the employer to demonstrate why that should be. With regards to setting other limits for - or other criteria, we do say that at the very least, that it would be regrettable if there wasn't at least some assessment of competence agreed by - before progressing to pay points either 6 or 7. If the Commission pleases.

PN52

THE COMMISSIONER: No, I understand that. But unfortunately the agreement doesn't provide for it. That is the issue that the ANF is raising. The agreement doesn't provide for it and I am surprised that this wasn't part of any basis of negotiations in which the agreement was founded. I mean Mr Wain, I would assume, was involved in the negotiations. I mean was there - I am not sure who from the ANF and we will find out in due course but I mean was there any discussion about criteria?

PN53

MR McCULLOUGH: In terms - - -

PN54

THE COMMISSIONER: Before the agreement was actually certified?

PN55

MR McCULLOUGH: I couldn't answer that, Commissioner, I certainly was not involved.

PN56

THE COMMISSIONER: He is sitting alongside you.

PN57

MR McCULLOUGH: Sure enough. Is there anything in regards to criteria that was discussed during the negotiation?

PN58

MR WAIN: It was my understanding, Commissioner, that from the meeting we had with our staff and Michelle Crosby from the ANF that a criteria would be developed and it is my understanding and this has been borne out in some minutes of our aged care staff.

PN59

THE COMMISSIONER: Right.

PN60

MR WAIN: Where there was an agreement that the staff would set up a small working party and meet with me to discuss a criteria. It is my understanding, on the advice of the ANF, that never, ever took place but - - -

PN61

THE COMMISSIONER: The working party never took place?

PN62

MR WAIN: Yes. And - but the minutes of the minutes of the meeting I think are an indication that the staff had an understanding that there would be a criteria.

PN63

THE COMMISSIONER: What minutes of which meeting?

PN64

MR WAIN: We have - it was an aged care - our nursing home staff meeting.

PN65

THE COMMISSIONER: Okay. Yes. Right.

PN66

MR WAIN: Thank you.

PN67

THE COMMISSIONER: Thank you. Mr Gilbert.

PN68

MR GILBERT: Can I just make a couple of quick comments before you quiz me?

PN69

THE COMMISSIONER: Yes.

PN70

MR GILBERT: Good. It is certainly my understanding from Michelle and that is why she is here today so that there is no difficulty in clarifying people's - or to the best we can, clarifying people's recollections. Michelle advises me that there was no discussion regarding criteria other than attempting to put into the agreement what had occurred in the public sector and the private acute sector. We know nothing of any meeting of any aged care staff group but the agreement is an agreement between Warley Hospital and an organisation of employees namely the ANF and it would be appropriate that if those sort of discussions were occurring that we would be a part of them and to the best of my knowledge and Ms Crosby tells me that the ANF has not been a part of those discussions so we know nothing of them.

PN71

THE COMMISSIONER: So when the meeting took place to vote on this agreement, who briefed the meeting? Yes, Ms Crosby.

PN72

MS CROSBY: Commissioner, yes, we had a couple of meetings. I addressed the ANF members and the group separately to Mr Wain's meeting. We didn't actually discuss - - -

PN73

THE COMMISSIONER: Collectively.

PN74

MS CROSBY: Sorry.

PN75

THE COMMISSIONER: You didn't discuss it collectively at the meeting?

PN76

MS CROSBY: No, not at the meeting.

PN77

THE COMMISSIONER: All right.

PN78

MS CROSBY: I went through the agreement and put the clauses to the members. There was no discussion that I had with the members there would be education and experience or that the education requirement to those pay points. It was purely on progression to pay points 6 and 7 on years of progression as it was in line with the public sector agreement. There was another officer involved, Elizabeth Cheligoy.

PN79

She has no recollection of meetings with Mr Wain on a criteria attached to the pay points and the meetings that I had with the CEO, again I have no recollection of discussion on experience and I have had no involvement with the working party or the job groups representative at Warley concerning developing criteria.

PN80

THE COMMISSIONER: Well, what would the parties hope to get out of a conference because the ANF position is there is no criteria, wasn't any discussion about a criteria, pay by the agreement. SIAG says well, although it is not written, this is a precis of it as the Commission sees your argument, although it is not written, it is expected because it is inconsistent with the existing award that says there is criteria from 1 to 5, there should be criteria from 6 to 7. 1 to - sorry, 5 to 6 and 6 to 7, which is a reasonable argument except the agreement doesn't provide for it.

PN81

What is going to happen? I have provided three scenarios; anyone got any more?

PN82

MR McCULLOUGH: Sorry, Commissioner, there is one point on which I have probably not made myself clear. Certainly the Commission has pointed out quite rightly there is no provision with regards to additional education or any other criteria are contained in the agreement. Neither is there a provision with regards to experience. There is no provision with regards to experience in either the agreement nor is there a requirement in the award. The ANF's position is the same as that of the employer, that is that a criteria should be imposed, simply that it is a different criteria.

PN83

What does exist and has been pointed out by the ANF is an element for want of a better term could be described as "peer pressure". Most private acute facilities have applied this without introducing a criteria, simply utilised experience similar to the public sector but there is nothing in either the agreement or the award that says that experience should be relevant at all. If the Commission pleases.

PN84

THE COMMISSIONER: What are the two dates alongside pay point 6 and pay point 7?

PN85

MR GILBERT: The agreement was introduced incrementally in terms of when access to those payments would occur so half of the first pay point 6 increment was available from 1 January 2001.

PN86

THE COMMISSIONER: Okay.

PN87

MR McCULLOUGH: And the other half available from 1 January 2002.

PN88

THE COMMISSIONER: What did the parties understand the term "to the requirements of the award as follows":

PN89

Employees will translate to these new pay points according to the requirements of the award as follows:

PN90

What does that mean?

PN91

MR GILBERT: The award already contains criteria for translation from pay point 1 through to pay point 5. You enter at pay point 1 and then through - with four years experience, so much education - - -

PN92

THE COMMISSIONER: Go to pay point 5.

PN93

MR GILBERT: - - - and so much - you go to pay point 5. We are not -what we are saying is that we are not attempting to interfere with that. That remains as it is and for pay point 6 and 7 they are additional automatic increments on top of a person who already meets the award criteria.

PN94

THE COMMISSIONER: It says:

PN95

Pay point 6 is $12 per week more than pay point 5 and pay point 7 is $24 per week more than pay point 5 employees will translate to these new points -

PN96

and there is no full stop there -

PN97

employees will translate to these new pay points according to the requirements of the award as follows -

PN98

but there is - I mean I have to say - upon reflection I would have to agree with Mr McCullough's argument. Both of you intend to provide criteria. Yours is based on service. The agreement doesn't provide for movement through service. Mr McCullough's argument is that they are trying to provide a criteria but it is a criteria based on skills and knowledge consistent with what the award says.

PN99

MR GILBERT: In respect to pay points 1 through 5, you could - I mean, I wish I had written this clause then I could hit myself perhaps for what the Commission is referring to. I would have had a full stop between 5 and employees and a colon after follows neither of which appear in my copy. The - it would hard - I mean you could imagine how someone might have accidentally not made it as clear as one perhaps would have in retrospect to show that it was meant to be two automatic increments on top of pay point 5.

PN100

[3.05pm]

PN101

How you could then translate that into accidentally leaving out that sort of criteria that Warley Hospital have put to us today or Friday, they couldn't have accidentally left that out by poor draftsmanship. Poor draftsmanship, to the extent there is any, is that it perhaps says "translate" instead of "progress", but then you look at it in the context of where it came from, and without dispute, it came from the general nurses decision into a recognition, not peer group pressure as suggested, but a recognition from the private hospital sector that if they wanted to recruit and retain nurses in this market, that they had to meet the market and pay the relevant going rate, and they adopted those additional increments, not only for division 2 nurses, but also for division 1 nurses, as this agreement does, and in terms of the wording used, it is not in any significant way different than the wording that is used both in the public sector - save for the draftsmanship - and in the private acute sector.

PN102

You couldn't, with respect, read into clause 11, no matter how it is drafted currently, that the parties really meant 160 hours of in-service education plus self-directed learning modules, plus this, plus that. It was clearly aimed at applying to the nurses at Warley the same provisions that were being applied to numerous hospitals. If it was feasible to read into this that that sort of criteria ought to be attached to it - pages and pages of it - then it is feasible to read that into every private acute agreement we have already done, where no such discussion occurred when the agreement was being drafted, or considered for ballot.

PN103

THE COMMISSIONER: Well, I must say, it is completely idiotic the words that are used, where it says:

PN104

Employees will translate to these new pay points, according to the requirements of the award -

PN105

if the award does not require movements based on years of service. It is based on meeting criteria of skills and knowledge.

PN106

MR GILBERT: And years of service.

PN107

THE COMMISSIONER: But what is the purpose? What is the purpose? Yes, but not years of service, per se. Not alone.

PN108

MR GILBERT: Not alone.

PN109

THE COMMISSIONER: Which is what is required here. Which is what you say is here.

PN110

MR GILBERT: Can I - - -

PN111

THE COMMISSIONER: So, I mean, what is meant by "according to the requirements of the award".

PN112

MR GILBERT: The award requires an employee to be translated to the relevant pay point on their anniversary date, where they meet the criteria.

PN113

THE COMMISSIONER: That is right.

PN114

MR GILBERT: And that is no more than what is understood by the parties, as far as the ANF side of the table are concerned, that these - - -

PN115

THE COMMISSIONER: But there is no criteria. There is only one criteria and that is the anniversary date.

PN116

MR GILBERT: Yes, because you meet all the other criteria.

PN117

THE COMMISSIONER: Well, you do up to pay point 5.

PN118

MR GILBERT: Yes.

PN119

THE COMMISSIONER: Look, I am not quite sure where you go, to be honest. You could strike a compromise, being in the tradition of the Commission. You could progress from pay point 5 to pay point 6, based on a written criteria, and then pay point 6 to pay point 7 based on the anniversary date.

PN120

MR GILBERT: All right. We are happy to explore alternatives in conference, if that is what the Commission desires. We are happy, if it need be the case, that we take it to the relevant place to have it enforced. The agreement, as you can see, thankfully, by the code at the bottom of the page, wasn't one that we had entire carriage of drafting of. I am always pleased when people leave the code down the bottom. We certainly understood it to mean as we put to the Commission today. Our members understand it to mean as it was put to the Commission today.

PN121

We would find it difficult to explain to members how it can be that what was really meant by that was that the parties wanted criteria developed for pay point 6 or pay point 7, or both of 6 and 7. It is just a very difficult stretch for our imagination to take it that far. I might briefly say, in respect to the grievance settling procedure and the discretion of the Commission, just briefly, that there have been exchanges of correspondence and discussions at the level of the Service Industry Advisory Group and the ANF, as is contemplated by the grievance settling procedure in the agreement, so I am not sure where that argument came from about the Commission not exercising its discretion.

PN122

Clearly, the Commission can do that, and we say, at the relevant time, should do that, but at the moment, we are keen to see our members properly progressed through the increments. At the moment is not fair to say that members aren't progressing, although there is not an intention to progress. As long as there is a dispute, then there is the potential for that progression to be denied, and it needs to be, in our view, dealt with preferably more quickly.

PN123

I would sooner see that the employees who are currently employed - that is, those who voted on the agreement - be quite rightly entitled to progress on the simple and logical translation of the clause as it currently reads, and to the extent that there might be some need for criteria into the future, that we look at that in respect of people who didn't - who weren't the ones who voted on the agreement as it currently stands.

PN124

THE COMMISSIONER: How many would be affected?

PN125

MR GILBERT: In terms of those who have been employed since the agreement? I don't have an answer to that.

PN126

THE COMMISSIONER: No, how many would be affected from those that at the time of making the agreement?

PN127

MR GILBERT: It might be a question better asked of ..... . I wouldn't able to give you a factual answer.

PN128

THE COMMISSIONER: Right. Mr McCullough?

PN129

MR McCULLOUGH: If the Commission pleases. There are currently 17 part-time division 2 nurses, 10 of which are on pay point 5. Of those 10, four have been at pay point 5 since approximately 1999, or during the course of that year. Two progressed during the year 2000, and between three to four have less than a year's experience at pay point 5. So, in terms of any immediate progression, that would not be an issue for those particular employees. Just to set Mr Gilbert's mind at ease about two things.

PN130

First of all, the concern raised about a similar clause existing in other agreements. I share with him the benefit of not having drafted this agreement, with the additional benefit of having been interstate, but I would say that we are not seeking to set a particular precedent here, we are seeking to just simply resolve this dispute, as it pertains to all the hospital incorporated. The second matter was with regards to the draft criteria sent to the ANF on Friday. The purpose of doing that is not to seek to impose that criteria, simply as a starting point for discussion. If the Commission pleases?

PN131

THE COMMISSIONER: Sure. Well, I mean, I must say, the Commission, when it does get any of these agreements in future, will be looking at that clause very quickly, and maybe seeking some understanding on transcript, if it is not already clear in the document.

PN132

MR McCULLOUGH: The Commission won't be alone in that regard, I wouldn't have thought.

PN133

THE COMMISSIONER: Can we go off transcript for a minute please?

OFF THE RECORD

RESUMED [3.18pm]

PN134

THE COMMISSIONER: The Commission has made the comment that it is really not quite sure where the Commission can go with this at this point. It has made the comment to the parties that the ANF has indicated they would need to talk to their members, firstly, about the issue of red circling those that were there at the time of making the agreement, and their expectations arising from that agreement. Secondly, if the ANF would talk to their members about whether a compromise could be reached in developing criteria from going to pay point 5 to pay point 6, and to move from pay point 6 to pay point 7. It may be based on years of service.

PN135

Equally, Warley Hospital would need to consider what options are reasonable options available to them, including the criteria from 5 to 6, and maybe, years of service from 6 to 7. Also, some sums that would need to be done to determine the cost implications of applying simply a years of service, and red circling those that were there at the time at the making of the agreement. If the parties - and the parties to have further discussions. If they are unable to reach an agreement from those further discussions, then either party is free to bring the matter back to the Commission, but it would have to say, if they are unable to reach an agreement, it finds itself in the same position as it is today, and that, obviously, would try to seek further compromise from both parties. Having said that, the Commission will stand adjourned.

ADJOURNED INDEFINITELY [3.20pm]