C2002/4958, Transcript of Proceedings [2002] AIRCTrans 4339 (6 November 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT10011
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/4958
C2002/5034

MELBOURNE HEALTH (ROYAL
MELBOURNE HOSPITAL)

and

HEALTH SERVICES UNION
OF AUSTRALIA - VICTORIAN
NO 1 BRANCH

Notifications pursuant to section 99 of the Act
of various disputes

MELBOURNE

12.32 PM, THURSDAY, 17 OCTOBER 2002

MR C. HICKS: I appear for Melbourne Health; appearing with me also is MR C. PRENTICE.

MS M. CHAMBERS: I appear for the Health Services Union of Australia, together with MR T. LAWSON.

THE COMMISSIONER: Thank you. Right. Now, there are two matters. One matter is an application under section 99 concerning the union directive that patient related equipment not be cleaned by clinical assistants. And the second file is concerning the threat of industrial action relating to the changes to rosters, duties and work practices within SPS of the Health Service. Now, the Commission, in looking at the files, took the impression that both matters were related. Am I right or wrong?

MR HICKS: Perhaps for clarity, Commissioner, in respect of C number 2002/4958, at the Commission's indulgence if we could proceed with that matter first.

THE COMMISSIONER: Right.

MR HICKS: And in terms of C number 2002/5034, my colleague Mr Kelly will be making submissions in relation to that matter.

THE COMMISSIONER: Right, okay.

MR HICKS: If that assists the Commission.

THE COMMISSIONER: I am not sure whether it does, but off you go.

C2002/4958

Dispute re the threat of industrial action
relating to changes to rosters, duties and work
practices within the SPS of the Health Service

MR HICKS: Thank you. Commissioner, thank you for bringing this matter on so expeditiously. This matter relates to the sterile processing service within the Royal Melbourne Hospital campus of Melbourne Health. Essentially the SPS is responsible for the cleaning and sterilisation of instruments used in a variety of operating procedures at the hospital. As the Commission can appreciate, it is a fairly integral unit within the operations of the operating suite in that having clean and sterile equipment is a necessity in running an operating suite.

The parties have been involved in some discussions over a number of months concerning a range of matters: rosters, position description, occupational health and safety, and a number of other items. Melbourne Health I guess is at a point now where it is needing to look at some rostering practices within the department and I guess there is a concern from the Health Service that in moving down the path of looking at those rosters there is a threat of industrial action which we perceive.

And, Commissioner, obviously bringing this matter before you SPS, because of its position within the Health Service, if we suffer any disruption within that area it can have a fairly material impact on the surgical throughput of the organisation. I would, however, indicate that at this point it is only the threat of industrial action. There has not been any industrial action per se.

Commissioner, we are heartened - there has recently been a heads of agreement reached between the Health Services Union, the Department of Human Services and the VHIA on behalf of public hospitals which, in our view, will deal with a number of matters that are presently the subject of discussions between the parties. However, with regard to the issue of the rosters, we seek the Commission's assistance in perhaps establishing some ground rules with regard to certain things.

The ground rules which we would seek the Commission's endorsement of, firstly, relates to industrial action. We would be proposing that with regard to the roster issue, the parties - that is Melbourne Health and the HSUA - confer on a timetable whereby we can have a series of meetings to look at the rostering issues. In terms of establishing that timetable, if that occur in an environment where there is no industrial action either threatened or occurring by persons who are members of or eligible to be members of the HSUA. And similarly that, depending on the course of those discussions, that the parties report back to the Commission at some stage advising the progress or otherwise of those discussions.

Specifically, Commissioner, an issue that does trouble us relates to overtime. We would prosecute, Commissioner, that overtime is not an industrial entitlement. However, we do recognise that there is a need for procedures in the event that additional shifts are required to be worked within our sterile processing service. And, indeed, Commissioner, if I could perhaps take you through a number of points as to how we would see such a protocol working, in fact.

The first, that Melbourne Health would endeavour to maximise the use of its permanent employees. Secondly, that Melbourne Health would agree to replace staff on planned or unplanned absences where practicable, subject to operational requirements. Where additional shifts are required to replace unplanned absence - for example, sick leave - then Melbourne Health would give preference to existing part time employees to work such shifts. However, if that was not possible, Melbourne Health would then seek to use bank employees as an interim measure.

The situation presently, Commissioner, is that we don't really have a pool of bank employees, and we have a situation where many of our full time staff are regularly working shifts in excess of the standard 38 hours per week. Obviously we are mindful of that. It has a significant cost imperative to the organisation. There is some occupational health and safety considerations. And whilst in this matter the four clear day recommendation which the Commission handed down in print S9958, we would be mindful of that in establishing rosters. The organisation would also, in terms of that process, concede that we would only want to use agency staff for unexpected absences such as sick leave where we have been unable to replace absences either with our part time or our bank staff.

So in essence, Commissioner, what we are I guess seeking endorsement from the Commission that overtime is not an entitlement; that there needs to be a process by which the organisation and the union go through in terms of dealing with their respective matters; that that process occurs in the absence of industrial action; and that there is the potential for a report back to this Commission. We would also - in terms of this matter, we would concede that there has been some fault on the side of the employer with regard to certain rostering practices, and we would undertake to the Commission that that as part of these discussions is one aspect that we are going to be addressing.

Perhaps at this junction in relation to the SPS, I don't have any further matters that I would like to add. I have had the opportunity of having some discussions with Ms Chambers prior to this hearing, and Melbourne Health has prepared a draft document which it believes would give efficacy to the matters that we are seeking the Commission's assistance of. However, I understand that HSUA has some reservations with what we are seeking there. So perhaps, accordingly, if I could rest for the time being, if it pleases.

THE COMMISSIONER: Thank you. Yes, Ms Chambers.

MS CHAMBERS: Thanks, Commissioner. I did have an opportunity to speak to Mr Hicks about what he was seeking from you, and my concern specifically rests with a recommendation being issued by you in relation to threatened or impending industrial action in a context where I make it quite clear there has been no threat of industrial action at all and, in those circumstances, I would think it was inappropriate for the Commission to pre-emptively issue a recommendation. I say that in this context, that in my discussions with Mr Hicks we certainly support a program of ongoing discussions in relation to this issue and, in fact, we have been seeking to have discussions in relation to this issue for quite some time. And we are happy to have those discussions auspiced by the Commission, Commissioner, and report back to you on progress. And the HSUA certainly understands, Commissioner, that under our grievance process no industrial action is to occur during that process.

THE COMMISSIONER: That would be a novelty, wouldn't it?

MS CHAMBERS: Thank you. But I think it would certainly be pre-emptive to issue a recommendation in the manner sought by the VHIA. Can I say that - - -

THE COMMISSIONER: Sorry, Mr Hicks actually has a change in employment status.

MS CHAMBERS: Of course. I miss him. Can I say that the issue that has arisen with Melbourne Health has quite squarely arisen as a result of poor management practices where we have a manager in this department who consistently fails to issue rosters 14 days in advance; consistently makes changes to the rosters on an ad hoc basis. There is no doubt that a lot of overtime is being performed and that arguably is arising out of poor rostering practices. We are seeking, the members are seeking a change to those, and what we have been seeking to negotiate certainly for rosters to be posted two weeks in advance in accordance with the award as a minimum. But what we have been seeking is negotiations on fixing rosters - either having a fixed roster over a two week period or fixed but albeit rotating roster over a four week period - to try and both minimise the overtime impact, but to bring some regulatory to the whole shemozzle.

So we certainly welcome ongoing negotiations within that framework. In relation to the further issues - or further protocols that Melbourne Health are seeking, I am glad to see them there, Commissioner, because they are lifted straight from the Heads of Agreement, so I love it when employers come along and agree to everything we are asking. But they are, they are quite clearly word for word what has been signed up on behalf of the hospitals by the VHIA in respect of the replacement of staff, utilisation of bank staff and permanent part-time staff and, as a last resort, agency staff. So we can take yes for an answer on those.

THE COMMISSIONER: Ms Chambers, you have just knocked Mr Hicks off the pedestal that the Commission put him up on because it thought it was innovative words and forward thinking, but obviously he is a plagiarist.

MS CHAMBERS: Indeed, sir.

THE COMMISSIONER: It is a worry, isn't it?

MS CHAMBERS: So in those circumstances, we are happy to look at a time frame for reporting back to you on the process of our discussions, but as I said, I think it is a bit early to be seeking formal recommendations from the Commission in relation to industrial action.

THE COMMISSIONER: What time frame would you suggest?

MR HICKS: Commissioner, I would probably envisage a report back, say, in two weeks - three weeks hence, Commissioner.

THE COMMISSIONER: All right.

MR HICKS: Three weeks would be - - -

THE COMMISSIONER: Thanks for that. I mean, there appears to be some common ground in terms of acknowledging that there needs to be something constructive put in place to address the issue of overtime. There is an acknowledgment, it appears, by both parties, whether it goes to the full extent in acknowledging it by management as put by the HSUA, but there does appear to be acknowledgment that there were some difficulties within management themselves in terms of dealing with this particular issue.

The Commission is more than happy to recommend that the parties actually meet over the period and there will be a report back date which I will set in a minute. The Commission is prepared to take on face value what the HSUA has said in regards to there being no threat of any industrial action, so therefore it would be inappropriate to issue a recommendation accordingly.

However, there should be no misunderstanding on the part of any of the parties at all that if there is any industrial action at all, then there won't be a recommendation, there will be a direction and, if necessary, an order in terms to get things back on track, so there should be no misunderstanding about that whatsoever. If we look at three weeks hence, we are looking at the week beginning the 4th and I wouldn't expect Tuesday to be an appropriate day, unless somebody has a corporate tent somewhere, so how is Thursday, the 7th? Is that okay? Is that all right with you, Mr Lawson?

MR LAWSON: No, Commissioner. We have got a training day all day in the union that day, sir. It is pretty much all scratched.

THE COMMISSIONER: Okay, what about the morning of Wednesday, the 6th, is that okay?

MR LAWSON: Yes, that is fine.

THE COMMISSIONER: Now, I know that Ms Chambers absolutely has apoplexy when I say it is going to be at 8.30, so I won't. I will say it is at 9.30.

MS CHAMBERS: Thanks, Commissioner.

THE COMMISSIONER: Yes, Mr Hicks.

MR HICKS: Commissioner, with regard to the point of overtime, I wonder if I may - the Commission may have already made this clear, but I may have not picked up on it, but am I right in saying that from the Commission's perspective, the Commission would view overtime as not being an entitlement?

THE COMMISSIONER: The Commission is going to make its position abundantly clear and thanks for that. I intended to do so.

MR HICKS: Thank you. My apologies, Commissioner.

THE COMMISSIONER: The position that the Commission takes is consistent with not only this industry, but other industries. Overtime is not a right and it is not to be taken as a given. It is a bonus. If you can get it, good luck to you, but it is to be done properly, but if people believe that there is an automatic right to overtime, by hook or by crook, then they are absolutely, totally wrong and that should be understood very clearly from the outset. Okay?

MR HICKS: Thank you, Commissioner.

THE COMMISSIONER: We will go on to the next one.

MR HICKS: Perhaps before the other C number, Commissioner, there are a number of other matters which are not presently formally before the Commission in terms of a section 99 notification. However, I guess the process which we have just discussed in relation to this matter has application to how we would see a way forward. There are a number of matters in the laboratory and pathology services of Melbourne Health and there have been meetings between the parties.

However, from Melbourne Health's perspective, we would see some real benefits in I guess a Commission auspiced process of the parties having further discussions to narrow their points of difference, in the same vein as the - with the same commitments that have been given with regard to industrial action, with a possibility for I guess a report back to the Commission. Now, at this juncture and I don't believe there has been - there has been no formal notification to the Commission per se, but because of the commonality in terms of process, subject to the HSUAs views, we would I guess support or seek a similar process in respect to those matters.

THE COMMISSIONER: Ms Chambers.

MS CHAMBERS: Yes, if I can just give you a bit of background to this issue. Pathology staff at the Royal Melbourne Hospital, Commissioner, back in 2001 - if I can just hand up to you two documents - an agreement was reached, Commissioner, and I start really where it reads:

In essence, the proposal is as follows, that a discrete roster would be developed ...(reads)... for all other work when not on that roster.

Now, that proposal was implemented, Commissioner, and if you just move to the second document, they became known as ID4 positions.

THE COMMISSIONER: Right.

MS CHAMBERS: You will see at point 5 there were to be shifts made available to enable pathology collectors to rotate through CSR, and once they were doing that, they were paid the higher duties allowance that were made available to ID2 staff, and they were shifts that went from 2 till 6, from 9 till 5, going from CSR to - OP stands for Outpatients - from 7.30 to 3.30 from Outpatients to CSR, and from 8 o'clock to 1600 hours from Outpatients to CSR.

Commissioner, what has happened since that time is that there has been a huge loss of staff from the pathology collectors department, from the pathology department, such that the agreement that was reached to enable rotation of trained staff through CSR was actually suspended, and I have actually got minutes of a meeting that show that that was - well, first of all, it was suspended on 10 June to allow for additional training to take place, and that happened on 10 June, but since then it has not been reintroduced because staff have left and we have gone from an EFT of something like 13 down to five.

THE COMMISSIONER: EFT.

MS CHAMBERS: Yes, with enormous workload consequences obviously, but a related consequence is that in breach of that agreement no-one is now being translated through and achieving the ID4 rate of pay, despite position descriptions making it quite clear - and I will provide you with a copy of that position description - making it quite clear that the ID4 is available.

THE COMMISSIONER: That drop from 13 to five EFT, are you aware whether that is a deliberate or whether it is something that just through the turnover of staff they simply haven't been able to recruit staff?

MS CHAMBERS: Well, that was all the subject of quite a long meeting last week with management. It appears there has been an appalling failure to advertise and seek to replace staff. We were provided subsequent to that meeting with copies of two ads for part-time staff, but for this rotating system to work, you really need a complement of full-time staff is our position.

It is also in breach of agreements - the '99 Heads of Agreement and now the 2002 Heads of Agreement - which make it clear that there is to be prompt advertisement of vacancies internally and then externally. So that is what we are seeking to have happen so that commitments given about access to ID4 can be honoured. So we are happy to enter into a process of quite intense negotiations with Melbourne Health over this because it is causing a lot of discontent in this department.

THE COMMISSIONER: The Commission can appreciate that if there has been a reduction of just under two-thirds.

MS CHAMBERS: Yes.

THE COMMISSIONER: Yes, okay, thank you. So you are happy to - although there has been no formal application, are you happy to follow the process outlined in the previous matter and - - -

MS CHAMBERS: Yes, and report - and bring that matter back in under this C number if that suits.

THE COMMISSIONER: It may be that you might resolve the issues under this C number, but there still might be some outstanding and then it is a question of whether or not you wish to formally lodge - - -

MS CHAMBERS: Yes, yes. Okay.

THE COMMISSIONER: Yes, okay. All right, thanks for that.

C2002/5034

Dispute re a union directive that patient related
equipment not be cleaned by clinical assistants

PN1

THE COMMISSIONER: We will deal with the next one then which if 5034 of 2002.

PN2

MS CHAMBERS: Commissioner, can I just ask for a brief moment? I haven't had an opportunity to speak to Mr Kelly about this matter as yet, so if we could just adjourn briefly.

PN3

THE COMMISSIONER: Yes, no worries. The Commission will adjourn for five minutes.

SHORT ADJOURNMENT [12.56pm]

RESUMED [1.02pm]

PN4

THE COMMISSIONER: Right. Who would like to - although it is Melbourne Health's application, isn't it? Could I have appearances, therefore?

PN5

MR J. KELLY: Thank you, Commissioner. I represent Melbourne Health, and I appear together with MS R. BEATTIE-MANNING and MS J. COLLEY.

PN6

MS M. CHAMBERS: I appear for the Health Services Union of Australia with MR T. LAWSON.

PN7

THE COMMISSIONER: Thank you. Yes, Mr Kelly.

PN8

MR KELLY: Commissioner, this has been a drawn out matter and the parties have met on a number of occasions in an effort to try and get a resolution to the issue. In my submission, it is a very straightforward matter but obviously my colleagues on my right will have a different view. But Melbourne Health seeks the assistance of the Commission in resolving the current impasse between ourselves and the HSUA number 1 branch.

PN9

Commissioner, on or about Thursday, 22 August, Mr Lawson, the union organiser in the company of Mr Maltezos, who is one of our clinical assistants, and some other shop stewards officially advised us that the clinical assistants would not be cleaning the dialysis machines. It is my submission, Commissioner, that the bans in place are not legal as they are in breach of the North Western Health Care Network (General Health of Allied Services) Consolidated Agreement 1999.

PN10

Accordingly, Melbourne Health requests that the Commission as it is currently constituted gives directions that the ban on the cleaning of dialysis machines by clinical assistants employed by Melbourne Health be lifted forthwith and that the clinical assistant who has been cleaning the dialysis machine until recently recommence that cleaning process and that Mr Maltezos - and i note he is in the Commission today - who is at the centre of this current impasse commence cleaning the dialysis machines.

PN11

Commissioner, I said earlier that the bans were not legal and I said this because of clause 12 of the award. I have with me an exhibit which I would like to hand up. I have photocopied the front page of the North Western Health Care Network (General Health and Allied Services) Consolidated Agreement '99, which was ratified in this Commission and following that cover page I have attached the clause 12 which I have just referred to, which is headed No Extra Claims. For the purpose of the record, I would read that clause 12:

PN12

During the period of operation of the agreement, the parties will not seek any further increases ...(reads)... will be absorbed into the wage increases as set out in this agreement and will not be in addition to those prescribed wage increases.

PN13

Commissioner, I submit that at one of the meetings one of the shop stewards said - and it was Mr Alex Nin if I recall correctly, who is also present with us in the Commission today, said that if the hospital pays us more then we will clean the machines. At the end of that meeting Mr Lawson departed saying it is my job - my job is to get more money for as little work as possible. They are quotes from Mr Lawson. I suggest that their comments and their actions, by saying if you give us more money, we will do the job, contravenes that no extra claims clause.

PN14

In addition, Commissioner, clause 7, which is the enterprise flexibility clause of the Health and Allied Services Public Sector - Victoria - Consolidated Award 1998, at subclause 7.3 - and this is from the award, which needs, necessarily, to be read in conjunction with the enterprise agreement - provides my justification for my next exhibit. Commissioner, if you would care to turn the page - and it is clearly marked at clause 7.3 and it reads as follows:

PN15

An employer may direct an employee to carry out duties that are incidental and peripheral to the work normally performed where those duties are within the employee's skill, competence and training and are consistent with the classification structure of this award.

PN16

Commissioner, I think that that is self-explanatory and I would like to add that this matter has been under discussion with Mr Maltezos, who is refusing to clean the dialysis machines, and Mr Lawson and others, since 1 August of this year. So we have spent a fair bit of time trying to work our way through this. The three principal arguments relied on by Mr Maltezos and Mr Lawson and other shop stewards to justify their position of refusal to clean the machines are: (a) there is not enough time to clean them on Mr Maltezos' shift, (b) the machines are not patient related equipment, and (c) cleaning dialysis machines is not contained in their position descriptions.

PN17

That leads me to my next exhibit, Commissioner, this is a position description which took something in the order of 18 months to finalise. It had its origins out of the 1999 enterprise agreement where the hospital wanted to introduce a classification at the behest of the union and our employees - and we thought it was a good idea - called clinical assistants. It is not a specific classification in the award but they were paid at level 3 prior to the introduction of this clinical assistant classification and in good faith, at the outset, we lifted their pay rates from level 3 to level 5 and then commenced to negotiate and record the functions that clinical assistants were going to be required to do.

PN18

We did that in conjunction with them over a protracted period of time. One of the functions, and this goes to the heart of my submission, is contained on page 4 and I have marked that for identification, Commissioner. The critical function there is "secondary clean patient related equipment on a routine basis", and it gives a couple of examples because there would be many more and we didn't want to clutter up a document with a million and one examples. Those examples are IV poles, wheelchairs, commodes, commode chairs and Imed pumps, etcetera.

PN19

Looking at an Imed pump or an infusion pump, it is a, I submit, small version of a dialysis machine. Dialysis machines are only a large piece of patient related equipment and Mr Lawson recognised this fact when he rang me on 22 August, following our meeting, and said, "We will probably lose the argument about patient related equipment", and he went on to ask me if the hospital could get the night shift clinical assistants to clean the dialysis machines.

PN20

Now, I think that that is a very significant point that he made. Up until that time he was saying it is not in their PD and I think that I have demonstrated that it is. I am sure they will argue that if it is not specified, therefore, it is not in. But I think the critical line there is "naming a few examples", and ends in that bracketed sentence with "etcetera", because we didn't want to go to too much of a protracted and lengthy PD, which it already is. So we argue that it is very much a piece of patient related equipment.

PN21

Mr Maltezos argued during one of our meetings that he did not have enough time to perform the cleaning function. The hospital responded by saying that his workload would be measured to ensure Mr Maltezos had sufficient time. At our meeting on 22 August the hospital commenced to detail the actual working time per day of Mr Maltezos, including shift starting times, and it was at this stage that Mr Lawson said he was sick of this, he wasn't going to listen, and they all walked out on us.

PN22

So annual leave, etcetera, has intervened between that time and now and that is why the matter is back before the Commission after this break. The machines take three to four minutes to clean, Commissioner. They are a secondary clean. We arranged for Mr Lawson to come to the hospital and let me demonstrate how to clean the machine, and he didn't come. Prior to the bans, there was a morning shift clinical assistant who cleaned the machines for about 18 months. Prior to that, one of our clinical assistants cleaned it for several years and I have spoken with her and I have spoken with the NUMs who are with me today.

PN23

So we say that firstly we ask for a direction that the machines be cleaned by the appropriate staff because it is part of their job, and we ask that they commence that duty forthwith, because for years we have had them cleaned by clinical assistants and now we have one person who has time on his hand to clean them and has refused with the backing of the union. If the Commission pleases.

PN24

THE COMMISSIONER: Thank you. Yes, Ms Chambers.

PN25

MS CHAMBERS: Commissioner, there is one vital link in all this that hasn't been put to you. The work that is being asked to be performed here has customarily and is usually being performed by specialist nurses in that department. Historically and even now on afternoon shift, that work is performed by specialist nurses who have received specialist training. The background to this is that those nurses are now refusing to perform a function that historically, and I am instructed for at least the 15 years that our members have been employed there, the nurses have performed.

PN26

I can tell you, Commissioner, because we contacted delegates at other hospitals today - we contacted delegates at the Western, at Sunshine, at the Royal Women's. That function is performed at all those hospitals by a nurse and not by a PSA, which is the analogous classification under our award. What Melbourne Health is facing here is a refusal by the nurses to continue to perform that function in contrast to the imposition of a ban by our membership on performing a function. What Melbourne Health are faced with is the ANF saying, we are no longer going to perform that role.

PN27

What nurses will be performing and what is being continued to be asked of nurses is that they will clean spills on the machine. So they will still be required to clean them but then the clinical assistants come in and perform a further clean of those machines. Now, that is in answer to a problem Melbourne Health have with the Nursing Federation. Nursing Federation aren't here today.

PN28

It is true, Commissioner, that we have had a clinical assistant on a morning shift show has assisted nurses in that role. It was never done by way of a formal arrangement with the union as a concession that it is part of their role. It is seen by the membership, Commissioner, as something that is a step above what has been agreed in the position description which is the secondary clean of patient related equipment where you are talking about wiping down wheelchairs, walking frames, etcetera. This is a dialysis machine. It is a piece of medical equipment that is run at the time it is cleaned so it is actually being cleaned internally at the same time as being cleaned externally. And it is a sophisticated piece of medical equipment.

PN29

Now, the members are concerned about Melbourne Health making directives of them absent any requirement of nurses that they continue to perform functions that have been customarily performed by nurses.

PN30

THE COMMISSIONER: What is happening at the moment with - - -

PN31

MS CHAMBERS: Nurses are continuing to perform the work.

PN32

THE COMMISSIONER: Right.

PN33

MS CHAMBERS: So, Commissioner, that is the substance of the complaint. Now, can I just make - - -

PN34

THE COMMISSIONER: Can I just clarify something. Mr Kelly says there has been an issue raised regarding money, and the point was that, well, give me some more money and I will clean the machine. Is that right?

PN35

MS CHAMBERS: I wasn't present at those discussions again.

PN36

THE COMMISSIONER: No, no. Well, Mr Kelly said it today, this afternoon.

PN37

MS CHAMBERS: Yes, yes. Perhaps if Mr Lawson answers that question. Can I just make this point though, Commissioner. I do have a concern about two things. One is comments being attributed to Mr Lawson in this Commission without them being put on oath and the opportunity to cross-examine, particularly where they are quite inflammatory. The other concern I have, without in any way conceding comments that have been attributed to Mr lawson, is a revelation on the record of what were clearly without prejudice discussions on an issue; that is inappropriate. So I just make those two points. But perhaps Mr Lawson will answer your question.

PN38

THE COMMISSIONER: Thank you. Yes, Mr Lawson.

PN39

MR LAWSON: Thank you, Commissioner. Basically what took place at the meeting that Mr Kelly refers to is that the issue was raised about these extra duties being performed by the clinical assistants. I raised the issue that it was a delicate issue, given that we had taken so long to work through the position description initially, which took us 18 months which had a lot of people on edge during that whole time. That we basically outlined that the position description that we negotiated acknowledged the role that the clinical assistants performed, and hence that they were remunerated to reflect that.

PN40

I think I am being taken out of context in the fact that we said that you can't continually put extra duties on to us and expect us to cop the same amount of money that we are receiving now. So that is basically what took place at that meeting, Commissioner.

PN41

THE COMMISSIONER: Okay. All right. Thanks for that. You have concluded, Ms Chambers, have you?

PN42

MS CHAMBERS: Yes, Commissioner. Look, there are - in relation to no extra claims, well, we dispute that. I think this is really to the point that the question of whether or not these are duties customarily performed by our membership or could be reasonably expected to be performed by our membership. And our submission is, quite simply, it is a duty not normally performed by clinical assistants. It is not performed by clinical assistants or an equivalent role elsewhere in the health system.

PN43

THE COMMISSIONER: Thank you. Mr Kelly.

PN44

MR KELLY: Thank you, Commissioner. Firstly, in respect of Ms Chambers' concern about naming Mr Lawson in transcript, I have Ms Beattie-Manning with me who was at that meeting and she is perfectly happy to take oath and give evidence to the effect that that is what he said.

PN45

THE COMMISSIONER: Well, let me make the Commission's position clear. I mean, firstly, today I don't have time for any of that. Secondly, there seems to be a primary issue and that is that it is alleged by the HSUA that the cleaning of the dialysis machine is a function that has traditionally been performed by specialised nurses specifically trained in this type of operation. Any work being done by the clinical assistant is simply ancillary to what is the primary function of the nurse, and that is the cleaning.

PN46

So there appears to be a big contrast there because the picture painted by Melbourne is that it is the function, or one of the functions of the clinical assistant in cleaning. The picture painted by the union is, no, that they might assist but the primary function of cleaning that machine is that of a specialist nurse. Which is right and which is wrong?

[1.24pm]

PN47

MR KELLY: Commissioner, traditionally nurses have always done the primary clean of the machine and will continue to do so. That is the first hit clean. Clinical assistants have for a number of years now done the secondary clean on the machine. Now, that is a wipe-over with a dampened piece of cloth, dampened with a solution similar to methylated spirits, so there is a wipe-over only. It is something, a function, and if the Commission cares or deems appropriate to go on inspections to see these machines, I am available to clean the machine in the form of a demonstration and I have been shown how to do it once and that took about three minutes. Commissioner, the secondary clean is the very important aspect that we are here today about, given its history.

PN48

THE COMMISSIONER: Okay, how long do you say that the clinical assistant has been secondary cleaning the dialysis machines?

PN49

MR KELLY: Certainly the current employee has been doing it, that is the lady in the mornings, has been doing it for 18 months thereabouts and prior to that there was another clinical assistant who cleaned it for some years. I have been advised that it has never been done on the afternoon shift and at the time of the conclusion of the PD for the clinical assistants was at the time when the hospital had received permission to put on more nurses because of the increasing patient acuity and numbers, so nurses went up in numbers that carry the extra work load that was coming in and the PD for the clinical assistants came in at about that time and it seemed very logical, given that the morning shift machines were being cleaned, that the afternoon shift had been cleaned and we made particular note of the amount of work that Mr Maltezos was doing in the afternoon and we were thoroughly satisfied that he had a very adequate amount of time to do it and therefore he was asked to do the same to the machines, that is clean them, as the morning shift CA and that is when the whole issue started.

PN50

THE COMMISSIONER: So the gentleman that you refer to on afternoon shift, has he performed the secondary clean?

PN51

MR KELLY: No, I don't think so, but I would take that on advisement. No, he hasn't cleaned the machine, but he would get the training which would take about five minutes to show him what to do. He has worked in that particular dialysis ward for some years.

PN52

THE COMMISSIONER: Well, the Commission got the impression from your earlier submission that he actually had been cleaning the machine.

PN53

MR KELLY: No, I am sorry, if I didn't express myself clearly. For a number of years the morning shift CA cleaned the dialysis machines.

PN54

THE COMMISSIONER: Has been cleaning it, yes.

PN55

MR KELLY: Has been cleaning it. The current morning shift CA has been cleaning it for about 18 months. She continued on from the previous employee.

PN56

THE COMMISSIONER: Yes, right.

PN57

MR KELLY: That was all going well. Earlier this year, March, April, the nurses got an extra EFT to run the dialysis area and just prior to that, the clinical assistants' PD had been concluded and specifically written into the PD was that line that I referred to earlier and it was at that time that the NUMs in that ward, after consultation, said, all right, we have got more work to do, we have got one extra EFT, but to give us a bit of a hand, we need the clinical assistant to do what they would normally do and that is wipe down as a secondary clean the dialysis machines.

PN58

THE COMMISSIONER: So the clinical assistant on afternoon shift, they wanted to perform the same duties as the clinical assistant on the morning shift?

PN59

MR KELLY: Yes.

PN60

THE COMMISSIONER: Okay. Well, that is not the impression you gave me. The impression you gave me was that - and I forget the gentleman's name - had been cleaning the dialysis machine and then refused to clean it.

PN61

MR KELLY: No, no, no, I gave you the wrong impression, if that is the one you got, Commissioner. I do not mean to give that impression. All I am saying is - - -

PN62

THE COMMISSIONER: All right, now, let me try and clarify it. The person on the morning shift, are they still cleaning the dialysis machine, the secondary clean?

PN63

MR KELLY: No, they are not because the union put the ban on on the 22nd and said it is all over.

PN64

THE COMMISSIONER: And the issue you raised, not enough time to clean the machine, was raised by the gentleman on the afternoon shift?

PN65

MR KELLY: That is right.

PN66

THE COMMISSIONER: Okay, thanks. That is all I want. You have no bans on, do you?

PN67

MS CHAMBERS: We don't. Commissioner, the situation was for 18 months the woman on the morning shift had been assisting, helping out.

PN68

THE COMMISSIONER: The secondary clean?

PN69

MS CHAMBERS: With the secondary clean. It had never happened on afternoon shift. It was not the subject of negotiations in relation to the development of this position description. It would have appeared in the position description, if it had been, so it had never been performed on the afternoon shift, it is not done anywhere else.

PN70

THE COMMISSIONER: That might be your argument, but the difficulty that the Commission has is this. Regardless of whether or not it is part of the position description, the lady on the morning shift has been performing the function. I accept what you say because the hospital has now clarified the position to the Commission that the gentleman on afternoon shift had not been doing it but there was an expectation that he would and - - -

PN71

MS CHAMBERS: Well, from the time the nurses - - -

PN72

THE COMMISSIONER: Yes, that is right, that is right.

PN73

MS CHAMBERS: From the time the nurses - - -

PN74

THE COMMISSIONER: Well, they are saying that - well, the issue is not so much that the nurses aren't refusing to do it. They are doing the primary clean. The secondary clean has been done on afternoon shift by the nurses but they wanted to free up a bit more time and, therefore, give it to the clinical assistant.

PN75

MS CHAMBERS: I think that is putting it a bit clinically, if you wouldn't mind, Commissioner, because what - I mean, what Mr Kelly told me is that the nurses got together and refused to do it.

PN76

THE COMMISSIONER: Well, whatever - - -

PN77

MR KELLY: Well, I beg your pardon. Objection, your Honour.

PN78

MS CHAMBERS: Well, that is what I understood you were saying.

PN79

THE COMMISSIONER: I will give you anything you want; call me your Honour, I will give you anything you want.

PN80

MS CHAMBERS: Can I just say - can I just say - - -

PN81

MR KELLY: That is just totally untrue. I did not say that.

PN82

MS CHAMBERS: These dialysis machines are cleaned after every patient so the nurse - if there is primary - the primary cleaning has to be performed by the nurse after every patient.

PN83

THE COMMISSIONER: Yes.

PN84

MS CHAMBERS: Then what they are asking is for the clinical assistant to come in and perform a further clean after every patient. So it does extend the workload but - and there are also issues - - -

PN85

THE COMMISSIONER: But, hang on, let me - but - - -

PN86

MS CHAMBERS: Yes.

PN87

THE COMMISSIONER: - - - I don't have a difficulty with the gentleman on the afternoon shift saying: well, hang on, it was not part of my responsibilities and I have a difficulty with it because of possible difficulties with workload. So I don't have a difficulty with that because he hasn't done it.

PN88

MS CHAMBERS: Yes.

PN89

THE COMMISSIONER: The difficulty I have, whether it is right or wrong, is that you have somebody on the morning shift that has been doing it.

PN90

MS CHAMBERS: Yes.

PN91

THE COMMISSIONER: Okay. And they have now stopped. That is a ban.

PN92

MS CHAMBERS: Yes.

PN93

THE COMMISSIONER: Now, the ban is to come off because your grievance procedure says that if there is an issue in question, you go through the procedure and it also says that the status quo shall remain until the matter is resolved. That is, that if the lady has been doing it on the morning shift, she continues to do it. You have ongoing discussions. If you can't fix it through those discussions - and I understand the issue of whether or not there needs to be a re-assessment of the workload, and whether or not it was part of the initial concept of clinical assistant, I understand all that. But you need to work through that and, if you can't fix it, you come back. But you don't impose the ban.

PN94

MS CHAMBERS: Yes, okay.

PN95

THE COMMISSIONER: Okay. So can the Commission have the undertaking that the ban will be lifted in terms of the - - -

PN96

MS CHAMBERS: That ban will be lifted, and I can give that undertaking, Commissioner.

PN97

THE COMMISSIONER: Okay. Well, the Commission will direct that the parties go away and have discussions about this. If you can't come to an agreement, either party is free to have the matter brought back to the Commission. Okay, is that clear?

PN98

MR KELLY: Thank you, Commissioner.

PN99

THE COMMISSIONER: Now, in terms of the gentleman on afternoon shift, he is not to be asked to do it. He hasn't done it. He is not to be asked to do it until the parties are able to reach an understanding.

PN100

MR KELLY: I understand that, Commissioner. Thank you.

PN101

THE COMMISSIONER: Okay. All right. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [1.33pm]