C2002/2928, Transcript of Proceedings [2002] AIRCTrans 2627 (12 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
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TRANSCRIPT OF PROCEEDINGS

O/N 8567

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2002/2928
C2002/3002
C2002/1354

AUSTRALIAN NURSING FEDERATION - TASMANIAN BRANCH

AND

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Application under section 170LW of the Act for
settlement of dispute (certification of agreement)
re clause 14 - rostering, patient acuity, staffing
mix of the agreement

DEPARTMENT OF HEALTH AND HUMAN SERVICE

and

AUSTRALIAN NURSING FEDERATION - TASMANIAN BRANCH

Application under section 170LW of the Act for
settlement of dispute (certification of agreement)
concerning the application of clause 13.3,
post-graduate allowance of the agreement

MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

and

AUSTRALIAN NURSING FEDERATION AND OTHERS

Application under section 170LW of the Act for
settlement of dispute (certification of agreement)
concerning the application of clause 13.3,
post-graduate allowance of the agreement

HOBART

4.38 PM, WEDNESDAY, 26 JUNE 2002

Continued from 19.6.02

PN454

THE DEPUTY PRESIDENT: Thank you. This is listed for a report following proceedings last Wednesday. Mr Blake?

PN455

MR BLAKE: If I could before we commence, could I announce that MR R. BURROWS for the ANF is also appearing at the bar table today, thank you.

PN456

THE DEPUTY PRESIDENT: Fine, thank you. Mr Targett, would you like to start?

PN457

MR TARGETT: I am happy to start, it just depends on which order people would like to proceed with reporting back?

PN458

THE DEPUTY PRESIDENT: I don't care as long as someone tells me.

PN459

MR TARGETT: Okay. The department provided correspondence to members of the steering committee, as it undertook to do that, correspondence was provided on 24 June and a copy of that correspondence I believe was forwarded to yourself, your Honour, for information purposes.

PN460

THE DEPUTY PRESIDENT: Yes.

PN461

MR TARGETT: The meeting took place, a meeting of the steering committee took place on the 25th as had previously been scheduled. The discussions as I - I wasn't present at the meeting, the report on provided - the discussions that occurred at the meeting covered a range of issues in the context of the correspondence that we provided and associated matters and as I understand the way the meeting went there were a number of issues that the ANF raised concerns over and they did seek from the department undertakings in relation to certain commitments that they wanted in relation to what happened if the negotiations failed to achieve an outcome, and those commitments related to either - as we understand it related to either agreement for private arbitration or prior commitment to accept recommendations from the Commission, if the process failed.

PN462

THE DEPUTY PRESIDENT: This is all related to the clause 14 issue?

PN463

MR TARGETT: This is related to clause 14, yes.

PN464

THE DEPUTY PRESIDENT: Yes.

PN465

MR TARGETT: And again there was general discussion over a whole range of issues and I am sure the unions will seek to provide quite specific details if they choose to. I hadn't intended to unless the Commission wanted to get in to the minutia of the discussion.

PN466

THE DEPUTY PRESIDENT: No, not at this stage.

PN467

MR TARGETT: So at the outcome of that meeting there were a couple of issues that the department did undertake to do: one of those is to provide a range of information in relation to Mr Jones who is mentioned in the correspondence we provided as far as coming and undertaking a range of work, and that information will be provided to the unions. In addition the question was asked by HACSU as I understand it in relation to some terms of reference that may be established for the work to be undertaken by Mr Jones, and we have undertaken to provide that to the unions.

PN468

My understanding of - and I am sure the unions will speak for themselves - but from the department's perspective we understood that HACSU supported the general approach with qualifications about seeking information in relation to the consultant and the terms of reference. As we understand it the ANF had concerns about agreeing to go down the path of having Mr Jones come in and do that work unless those prior commitments were given. Again it is up to the ANF to speak to them.

PN469

THE DEPUTY PRESIDENT: And those were the commitments as to how you resolve it in the event of no agreement?

PN470

MR TARGETT: True.

PN471

THE DEPUTY PRESIDENT: Yes.

PN472

MR TARGETT: They also I believe want information on Mr Jones, etcetera, which we have already said we will be providing.

PN473

THE DEPUTY PRESIDENT: This isn't that Mr Jones on the radio, is it?

PN474

MR TARGETT: No. I am happy to say the Mr Jones we are talking about isn't that gentleman but - - -

PN475

THE DEPUTY PRESIDENT: Good.

PN476

MR TARGETT: - - - he is certainly the gentleman that has undertaken the work in relation to the nursing as per the patient-day model that has been implemented in Western Australia, hence the reason we believed he was an appropriate person.

PN477

THE DEPUTY PRESIDENT: Yes.

PN478

MR TARGETT: I also understand the ANF were keen to get timeframes for commencement and completion of the process, which is understandable - again, we would certainly be providing that to the unions following finalising details with Mr Jones. Now as I understand it in relation - the ANF were seeking commitments in relation to what happens if it all fails, and it was indicated to the unions at the meeting that it is not our view that we should be giving those - attempting to give those sorts of processes up front because it almost guarantees failure as far as the negotiation process is concerned.

PN479

We undertook to consider the unions' request and provide that information back at this report-back meeting. The agency's position hasn't altered. We don't believe it is appropriate to try and set those sorts of processes in place if a particular outcome is or isn't going to eventuate at the end of the process. We have entered into this process in an attempt to try and achieve a satisfactory negotiated outcome, that is our intention. If we are unable to do that then I believe that would become fairly evident shortly after the outcome of the processes being undertaken by Mr Jones. We would then look at how we dealt with it further on.

PN480

We have asked for this matter to be conducted under the auspices of this Commission all the way through so it is not a matter of where we are sort of heading off in tangents without control because we are very keen to ensure that this Commission remains involved in the process as we work down the negotiation process. Subject to any issues that may be raised by the unions in their version of the report-back I would make no further comment at this stage.

PN481

THE DEPUTY PRESIDENT: Just before you sit down, where to now? There are further meetings scheduled, are there?

PN482

MR TARGETT: We are in the throes of finalising the details in relation to Mr Jones' involvement, the dates and CVs and all that we will be providing to the unions. We would hope to be able to provide that information over the next few days and we are happy to set another meeting with the unions for, say, next week to continue this followed by a report-back to this Commission.

PN483

THE DEPUTY PRESIDENT: Right.

PN484

MR TARGETT: And we are happy to set those dates today.

PN485

THE DEPUTY PRESIDENT: All right, that is good, thank you. All right, who is going to -Mr Blake, are you the spokesman?

PN486

MR BLAKE: Thank you, your Honour. I am happy to report on behalf of the ANF - - -

PN487

THE DEPUTY PRESIDENT: Were you at the meeting? I think you said last week that you may not be there.

PN488

MR BLAKE: Yes. No, I did go to the meeting. I was able to attend - the meeting yesterday you are referring to?

PN489

THE DEPUTY PRESIDENT: Yes.

PN490

MR BLAKE: You may recall that the hearing before your self on 11 June in relation to the bed closures and the - - -

PN491

THE DEPUTY PRESIDENT: Yes.

PN492

MR BLAKE: - - - and the resolution of that part of the dispute incorporated a commitment from the department to provide to the unions their response to the nursing hours per patient day - - -

PN493

THE DEPUTY PRESIDENT: The model that you proposed.

PN494

MR BLAKE: - - - model that we had totalled before the steering committee in March of this year, some three months ago. We expressed our serious views to the Commission at the time that the department were using every avenue available to them to delay responding to the particulars of that model. That is: do you support the model as endorsed by a Full Bench of this Commission in relation to the acute sector and other sectors in Western Australia? We also indicated to the department, and we have indicated to other members of the steering committee that we are prepared to examine any areas where they feel that that model was not appropriate to the Tasmanian context.

PN495

Now Mr Targett has indicated that the department have responded and have send you a copy of their response and did so yesterday - we also received a copy yesterday and that meeting was discussed at the steering committee. But essentially, Deputy President, that response is as follows: there is no commitment by the department to any outcome in relation to the nursing hours per patient-day model. What they seek from the union is that we enter into another working party process, a subcommittee of the steering committee, where we would investigate these matters for a period of, we understand, 8 to 12 weeks, perhaps longer, that we would engage - we would support the engagement of a member of the Health Department who currently is employed in Western Australia to do similar work that he has undertaken in WA in terms of that sector, and he would make a series of recommendations.

PN496

Now my understanding in regard to that issue - and Mr Targett can correct me if I am wrong -but there is no commitment from the department to accept any of the recommendations of Mr Jones and that at the end of that process all the department is committing to at this stage is to taking those matters back to Cabinet and through those processes so we have no commitment to the nursing hours per patient-day model. We have no commitment to any outcome at the end of that additional exercise. I would remind the Commission that the agreement provides that September 2001 was to be the conclusion of those processes.

PN497

We understand that there are concerns expressed by senior nurse employees of the department who understand some of the detail of this and we do see some merit in that process but what we remain fearful of is that at the end of this additional work there is no commitment or no process to resolve these matters in an orderly manner and Mr Targett has stood before you on a number of occasions and expressed serious concerns about various kinds of industrial actions that the nurses in the public sector have taken and seeking to avoid that with the assistance of the Commission. Well what they are not prepared to do is indicate to you that they are prepared to - or the unions - prepared to accept a process whereby in the event that there are some issues outstanding that the parties agree to a method of resolving those issues.

PN498

They are not prepared to give that commitment and we are quite concerned that in three months time we will be back before you saying, "There is no agreement, and there is no way of resolving these issues." That is essentially the report I have to give to you today. We seek the assistance of the Commission in breaking this impasse. We also know another thing that needs to be raised, that there is a State poll in a few weeks, and there are problems associated with the election period. We recognise that. We understand those conventions but we do believe that given the history of this matter some of these processes need to be sorted out and sorted out quickly. We are not attracted to what the department is putting to us at this point in time and we seek the assistance of the Commission.

PN499

THE DEPUTY PRESIDENT: And that is to have a further meeting? Well they are going to come back to you, as I understand it, with Mr Jones' CV and the like.

PN500

MR BLAKE: Yes, but with respect to your Honour, what they come back with is nothing. On time and time and time again they have come back with nothing but a commitment to do further work. What the nurses are seeking is some clear commitment as to a resolution of the safe staffing problem, that is what we need. Thank you.

PN501

THE DEPUTY PRESIDENT: All right. Well, if Mr Jones does his thing and comes up with some recommendations what is the position of the ANF? Is it the position of the ANF that they would accept those recommendations without question or without any reservation?

PN502

MR BLAKE: We are not in a position today to say we will accept the recommendations in toto.

PN503

THE DEPUTY PRESIDENT: No, but isn't that what the Government is saying, that they are not prepared to commit to accepting everything that comes out of the recommendations?

PN504

MR BLAKE: No, I think the Government are not - they are saying that.

PN505

THE DEPUTY PRESIDENT: Yes.

PN506

MR BLAKE: But they are also saying - - -

PN507

THE DEPUTY PRESIDENT: They are going further and not saying how the process can be resolved.

PN508

MR BLAKE: They are also going further. It seems to us, and it is a deficiency in the clause of the agreement quite clearly - - -

PN509

THE DEPUTY PRESIDENT: There is a deficiency in the Act to start with, yes.

PN510

MR BLAKE: Yes, a deficiency in the Act. There is - where do we go, if we agree to establish a subcommittee, if we agree that Mr Jones should do his work as an expert in the field, he makes a few recommendations about the problem and there is no agreement between the industrial parties to the agreement, the certified agreement?

PN511

THE DEPUTY PRESIDENT: Where do you go from there is the question.

PN512

MR BLAKE: Yes.

PN513

THE DEPUTY PRESIDENT: All right.

PN514

MR BLAKE: Thank you.

PN515

THE DEPUTY PRESIDENT: Okay, Mr Jacobson, do you have something to add?

PN516

MR JACOBSON: Yes, thank you, Deputy President. I agree with the ANF in terms of the frustration we are in in this particular process and the length of time it is taking to - - -

PN517

THE DEPUTY PRESIDENT: I don't think it is only the ANF who are suffering frustration.

PN518

MR JACOBSON: Yes, it has taken some time to get to the point where it appears that there is some progress being made, certainly, and some end date in sight for the resolution of this particular matter and we are pleased that there is some tangible processes occurring in relation to addressing the nursing shortage across Tasmania. In terms of the models that have been proposed, certainly would appears to have been proven if you look at the literature across Australia, is that there has never been a one-size-fits-all-model applied to a particular State and we would obviously require a model that fits the Tasmanian context and would certainly support a process that does that.

PN519

Therefore, in our view, there needs to be some latitude in terms of the scope of the process and we need some addition information in relation to that. We did ask yesterday for terms of reference in relation to the review so that we are satisfied that the review itself that is conducted by Mr Jones goes to all of those areas that are of concern to us.

PN520

THE DEPUTY PRESIDENT: Are there any terms of reference yet or is that yet to be determined?

PN521

MR JACOBSON: Not at this point.

PN522

THE DEPUTY PRESIDENT: Right. Okay. So is your position similar to the ANF, that the proposal that has been put - to use Mr Jones - has some merit - - -

PN523

MR JACOBSON: Yes.

PN524

THE DEPUTY PRESIDENT: - - - but the concern is that if they are end-up issues where no agreement can be reached - - -

PN525

MR JACOBSON: Well, I would hope that it wouldn't get to that point.

PN526

THE DEPUTY PRESIDENT: - - - where you go from there?

PN527

MR JACOBSON: However - - -

PN528

THE DEPUTY PRESIDENT: Well, we always hope that.

PN529

MR JACOBSON: Yes. Obviously that issue is always in the back of our mind as it would be.

PN530

THE DEPUTY PRESIDENT: Yes, I understand the intention of the Act is that that is what you do, you reach agreement, but that doesn't always work, obviously.

PN531

MR JACOBSON: No, we would certainly be doing our best to do that and as I understand it, this process will be monitored by the Commission so I think that at any point the option is open for us to seek some intervention.

PN532

THE DEPUTY PRESIDENT: Yes, I would be concerned that the whole process just fell in a heap because we don't have - or the parties don't have a process as to final resolution. There is a dispute settlement procedure in the agreement which refers to the award, having read it a couple of times I am not too sure what it means, and that could open up a whole - another area of debate but the process needs to continue and we need to work out what we do in the event that there is no agreement. Of course it is hoped, certainly by me, that agreement can be reached but one has to be a bit negative at times.

PN533

MR JACOBSON: Absolutely.

PN534

THE DEPUTY PRESIDENT: All right, thank you.

PN535

MR JACOBSON: Thank you.

PN536

THE DEPUTY PRESIDENT: Did you want to respond to any of that?

PN537

MR TARGETT: I just want to raise one issue, Deputy President, and that is in relation to comments by Mr Blake about the Department not actually committing to anything; in fact, that isn't correct, we provided correspondence on 22 April to all parties to the steering committee where we quite clearly said that we are prepared to implement a formal nursing hours per patient day model. That has been our position in writing since April.

PN538

The only issue we raised, again in that correspondence, was what is the appropriate number of nursing hours. And the proposal that we put forward in relation to bringing Mr Jones in to do this work is around what is the appropriate number of nursing hours. So the question of whether there will or won't be a nursing hours per patient day model has never been an issue. We have already done that in writing. It is only around the numbers.

PN539

THE DEPUTY PRESIDENT: Yes. The issue seems to be - and it is possibly a negative approach - - -

PN540

MR TARGETT: It is a very negative approach.

PN541

THE DEPUTY PRESIDENT: - - - I would prefer it to be positive but in the light of the past history maybe it is understandable - what happens in the event that there is no agreement. It is a significant issue that has to be dealt with, perhaps. I don't know what your view of the dispute settlement procedure is and I won't ask you, I won't put you on the spot.

PN542

MR TARGETT: I won't give it, your Honour.

PN543

THE DEPUTY PRESIDENT: Pardon?

PN544

MR TARGETT: I won't give it at this stage, either.

PN545

THE DEPUTY PRESIDENT: Yes. It is one of those warm and fuzzy type provisions that could lead to extra litigation and that is the last thing we want but it seems to me that the process shouldn't falter on the fact that there maybe is a question mark over how you resolve anything that is outstanding. Certainly the Commission intends to monitor the process. There will be regular report-backs and conciliation, if necessary, to try and steer the parties to agreement, that always being the best result. If that is not possible then we need to seriously look at how it is resolved.

PN546

The Commission has indicate on a number of occasions it is bereft of any powers to do anything very much except encourage, coerce, bludgeon, bluff and all of those non-legal things, so that could create some difficulties.

PN547

MR TARGETT: But they have been very effective, they have been very effective at times.

PN548

THE DEPUTY PRESIDENT: Oh, indeed, yes, yes, I certainly acknowledge that, they can be most effective and most things get resolved at some stage but it can't drag on. There is a lot of history that has got us to this stage and I think we need to set a time-frame, regular meetings, regular report-backs, and if necessary conciliation where there will be some tender head bashing if necessary to try and reach agreement and in the event that there are some issues outstanding there will certainly be some recommendations from me as to how they can be resolved.

PN549

MR TARGETT: And certainly in the context of time-frames you mention we are certainly prepared to go down that path. We just need a couple of days to get the information together from Mr Jones to be sure that we - - -

PN550

THE DEPUTY PRESIDENT: Is he based in Western Australia?

PN551

MR TARGETT: No, he is based in Sydney.

PN552

THE DEPUTY PRESIDENT: Okay, all right.

PN553

MR TARGETT: He in fact travels to Western Australia to do the work.

PN554

THE DEPUTY PRESIDENT: Yes, right.

PN555

MR TARGETT: And he has undertaken - - -

PN556

THE DEPUTY PRESIDENT: So he would have to physically come to Tassie?

PN557

MR TARGETT: Yes, but an amount of the work actually doesn't require his physical presence here, some does, some doesn't, and he has already factored in to take what work he can do from a distance and what work he needs to be here to actually do.

PN558

THE DEPUTY PRESIDENT: Yes. All right, my concern was that everything had to be timed to suit his availability, that is obviously not the case?

PN559

MR TARGETT: No, what we said to the unions was that we can start this work that he has undertaken within the next couple of weeks and it is anticipated it would take six to eight weeks.

PN560

THE DEPUTY PRESIDENT: All right. Is that the time at which he would be having a recommendation ready? Is eight weeks - - -

PN561

MR TARGETT: That is our - from what he has advised us, yes.

PN562

THE DEPUTY PRESIDENT: Right, so within eight weeks he could have a recommendation that we can look at and the parties can then decide which parts they agree, which parts they don't, and then it is a case of looking at anything that is outstanding?

PN563

MR TARGETT: Correct.

PN564

THE DEPUTY PRESIDENT: All right. Well, we might set a program based on that eight weeks. Did you want to respond to anything, Mr Blake?

PN565

MR BLAKE: Yes, only through you, Deputy President, to request that the materials that Mr Jones will be providing to the Department are shared amongst the parties to the industrial agreement.

PN566

THE DEPUTY PRESIDENT: This is a collective joint effort, as I understand it, so I would imagine that they will show you theirs and you will show them yours, so to speak.

PN567

MR TARGETT: To satisfy Mr Blake, just to interrupt, we are prepared to provide the information.

PN568

MR BLAKE: Thank you.

PN569

THE DEPUTY PRESIDENT: Is there any information that has already been provided that the unions are not aware of?

PN570

MR TARGETT: Not that I am aware of, no.

PN571

THE DEPUTY PRESIDENT: Okay, all right. It is not going to be successful if it is not a shared exercise, surely.

PN572

MR BLAKE: Yes, I agree, I agree with that.

PN573

THE DEPUTY PRESIDENT: Yes.

PN574

MR BLAKE: The other issue is that we are pleased that Mr Targett has confirmed - the verbal advice was yesterday that we are looking at about an eight-week period; I would just like to get some indication for the ANF's view as to the timing thereafter. It has to go through - - -

PN575

THE DEPUTY PRESIDENT: In the event that there is some issues that are outstanding?

PN576

MR BLAKE: - - - the Government processes, the Government processes and are we looking at a period of weeks after that or a period of months? I am just trying to get a feel for what we are looking at?

PN577

THE DEPUTY PRESIDENT: Yes. Just before you do that, what is the impact of the election, does it have any - - -

PN578

MR TARGETT: It doesn't impact on the work that needs to be done in the interim.

PN579

THE DEPUTY PRESIDENT: Right.

PN580

MR TARGETT: And the election date, as everyone is aware, is 20 July.

PN581

THE DEPUTY PRESIDENT: So it is within the time-frame.

PN582

MR TARGETT: Assuming two weeks to the declaration then that process is finalised within this time-frame anyway. The process of making any recommendations to Cabinet is about two, maximum three, weeks because our process - - -

PN583

THE DEPUTY PRESIDENT: So that is three weeks after the eight weeks?

PN584

MR TARGETT: Yes, if we are in a position at the end of eight weeks to make a recommendation to Cabinet going through the Cabinet process is about three weeks, tops - could be a bit shorter depending on timing.

PN585

THE DEPUTY PRESIDENT: So would it be fair to say that within 12 weeks, provided that everything goes according to plan - and we hope that is the case - within 12 weeks there could be a position where this matter is resolved in some way, either by the parties reaching agreement or through a conciliation process or some determination if necessary at the end, some recommendation or whatever. Is 12 weeks a reasonable view?

PN586

MR TARGETT: I would have thought in 12 weeks we should be able to have an outcome.

PN587

THE DEPUTY PRESIDENT: All right.

PN588

MR TARGETT: Including the process we are required to go through.

PN589

THE DEPUTY PRESIDENT: Yes, that will be the time-consuming one, I guess. Is that the - - -

PN590

MR TARGETT: Well, it can be, yes. I think we have all been through that process one way or another.

PN591

THE DEPUTY PRESIDENT: Regrettably, yes. Okay, so it looks like in 12 weeks we might have a position that might finally settle this issue by various different methods; does that go some way to addressing your concerns, Mr Blake, that if there are some issues that still remain not agreed that we can go through the process of conciliation and some of the powers that the Commission has can be exercised and it may then be that if necessary the Commission can issue a recommendation to try and fix whatever it is that is outstanding? That is if there is anything outstanding, you may surprise yourselves and reach agreement on everything and I will become superfluous. That would be nice.

PN592

MR BLAKE: Your Honour, we are very pleased to hear today that there is an end to this process - one way or the other. It is going to come to an end.

PN593

THE DEPUTY PRESIDENT: It has got to be resolved.

PN594

MR BLAKE: Yes.

PN595

THE DEPUTY PRESIDENT: Some time.

PN596

MR BLAKE: We remain sceptical but that is all it is. Come September if the Department come here with empty hands then we will pursue the matter industrially.

PN597

THE DEPUTY PRESIDENT: Okay, but in the meantime the negotiations continue, Mr Jones gets into the picture and does whatever it is that you are asking him to do. Can I ask to be updated regularly on what is happening? Each time you meet if you can either - I don't want to necessarily have a formal proceeding, but if you can keep me in the picture at to what you are doing and what issues you are looking at, and if necessary, conferences can be listed at pretty short notice to deal with any issues if there are hiccups on the way through.

PN598

It certainly sounds more positive than it did this time last week, and I am pleased about that, so it may be that it is back on track and there is a process now in place to look at this issue, which is an important issue that has to be resolved, and within 12 weeks we are all hopeful that there will be an end to this. So on that basis, unless anyone has anything else they wish to add, I indicate my willingness and availability, which is always a question mark but certainly I shall make every attempt to be available if necessary to assist if discussions go off the track because I want to keep this moving and get it fixed within the 12 weeks that we are looking at.

PN599

All right, nobody has anything else they want to say? All right, thank you for your attendance. On that basis I will adjourn the proceedings and indicate that the parties are to keep me informed as to what is happening and that a listing can be arranged at short notice, if necessary. This matter is adjourned, the Commission adjourns sine die.

ADJOURNED INDEFINITELY [5.05pm]