C2005/6201, Transcript of Proceedings [2006] AIRCTrans 178 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14116-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/6201

APPLICATION BY AUSTRALIAN NURSING FEDERATION
s.113 - Application to vary an Award
(C2005/6201)

MELBOURNE

11.06AM, TUESDAY, 31 JANUARY 2006

PN1

MR M BLAKE: I appear for the Australian Nursing Federation.

PN2

MS L BLAIR: I appear on behalf of the Commission for Public Employment, with me MS R MOHRBACH.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Blake?

PN4

MR BLAKE: In respect of the Public Sector Award, Senior Deputy President, along with the other awards before you this morning, I provide your associate with a copy of the orders. We have been in discussions essentially via email with the representative from the Northern Territory Public Service this morning. The order is not agreed. There is a difference of opinion between the parties as to the terms of the order. We would submit that the order before you this morning seeks to insert into the terms of the Public Sector Award the reasonable hours test case standard.

PN5

We seek - I don't know if your Honour has a copy of the award in front of you.

PN6

THE SENIOR DEPUTY PRESIDENT: I have the overtime clause part of it.

PN7

MR BLAKE: We're seeking to vary clause 15 of the award.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, I have it.

PN9

MR BLAKE: If I just read the clause as it currently stands, clause 15.1:

PN10

Employees shall be liable to be called for duty at any time that they're required or for any duty in excess of their rostered hours of duty on any day. Payment shall be made -

PN11

the overtime rate and so on. We're seeking to amend that clause, your Honour, to place in its stead a new 15.1 which is, as we so understand the provisions, are 15.1.1, subject to clause 15.1.2:

PN12

An employee may require an employee to work reasonable overtime at overtime rates -

PN13

and then the balance of the order sets out the reasons why - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. So the argument is about the wording of clause 15.1.1?

PN15

MR BLAKE: Yes, as I understand it, and Ms Blair can speak for herself, but I understand that they wish to retain the right to recall employees at any time.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, although the 15.1.2 gives employees the right to refuse to work overtime.

PN17

MR BLAKE: In the order or the award?

PN18

THE SENIOR DEPUTY PRESIDENT: In the order that they propose.

PN19

MR BLAKE: I haven't seen the order. I'm sorry, your Honour. The order that we propose is the one that's before you.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. I have a draft. Ms Blair, you've provided me with an alternative, haven't you?

PN21

MS BLAIR: Yes, your Honour. The alternative - sorry?

PN22

THE SENIOR DEPUTY PRESIDENT: The alternative retains the old clause 15.1 except it starts off the words, "Subject to clause 15.1.2."

PN23

MS BLAIR: That's correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Then the balance of it is the same as Mr Blake's order. Have you not seen that, Mr Blake?

PN25

MR BLAKE: No.

PN26

THE SENIOR DEPUTY PRESIDENT: Well, I'll show you mine because it seemed to me that there's a difference in wording rather than a difference in substance. If I could just have a look at that for a minute, Mr Blake.

PN27

MR BLAKE: Sure.

PN28

THE SENIOR DEPUTY PRESIDENT: Ms Blair, why didn't Mr Blake get it?

PN29

MS BLAIR: Your Honour, we've been liaising with Debbie Richards and Anna by email. All our correspondence has gone to them and we've only received correspondence from them.

PN30

THE SENIOR DEPUTY PRESIDENT: I see. They're with the union?

PN31

MR BLAKE: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, somebody hasn't briefed you, Mr Blake.

PN33

MR BLAKE: Your Honour, the provisions that we seek to have inserted into the award are the same provisions.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN35

MR BLAKE: The requirement that the government are seeking to maintain, as I understand it, is their right to call nurses back to duty at any time.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, subject to the employee being able to work overtime in the normal circumstances. Ms Blair, why do you want to change the standard provision?

PN37

MS BLAIR: Your Honour, we're looking to keep the wording consistent. That wording already exists in the current award, clause 15.1. It also sits in the nurses' certified agreement which is when the reasonable overtime provisions were inserted into the agreement in 2004, uses the same wordings we have proposed. So we're just looking to maintain wording that has already been agreed in regard to nurses.

PN38

THE SENIOR DEPUTY PRESIDENT: Well, it's no longer agreed in relation to this proposed variation which is sought to be made consistently with the test case provision. Why do you want to deviate from the test case provision other than, well, that's the way it's been done in the past? Do you have a substantive reason, a reason related to the operation of the organisation?

PN39

MS BLAIR: Your Honour, only in regard to the operation where nurses are called back when required to perform duty.

PN40

THE SENIOR DEPUTY PRESIDENT: And you say that, or do you say that by making the change that Mr Blake wants, there would be no longer an ability to call nurses back for duty?

PN41

MS BLAIR: Your Honour, we're purely looking to keep some consistency between what's applied in the certified agreement in regard to reasonable overtime.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Is there anything in the award other than clause 15.1 as it currently stands that enables the employer to require nurses to be called back for duty?

PN43

MR BLAKE: Certainly, your Honour, if I could just comment on that. There are provisions in relation to on call and recalled, where it's open for the employer to recall nurses to duty. That can be an on call roster. They are normally on an on call roster.

PN44

THE SENIOR DEPUTY PRESIDENT: 15.1 as it currently reads is subject to the on call/recall provisions anyway, is it?

PN45

MR BLAKE: If you look at the following page - sorry. The award also provides that there is a specific clause, on call and recall, which are paid at overtime rates but allows the employer to recall and have people on call for recall.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, and this variation wouldn't affect that?

PN47

MR BLAKE: No, it doesn't affect that at all.

PN48

THE SENIOR DEPUTY PRESIDENT: And the on call/recall clauses then enable the employer to do what 15.1 currently does, do they?

PN49

MR BLAKE: Yes, if they're on an on call roster or if there is an emergency, they can certainly recall them for duty immediately.

PN50

THE SENIOR DEPUTY PRESIDENT: And that would be in excess of their rostered hours of duty?

PN51

MR BLAKE: Yes, certainly.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. There's possibly an inconsistency between 15.1 as it stands, yes. Ms Blair, do you want to say anything else?

PN53

MS BLAIR: In regard to the on call and restrictive duty provisions, that's certainly where the employee leaves the work place, but is placed on an on call or recall situation. There's also the situation where an employee may be required to continue on after a shift - - -

PN54

THE SENIOR DEPUTY PRESIDENT: Is that provided for in the on call/recall clauses? How is 15.1 used now?

PN55

MS BLAIR: I can't give you the practical application of that, your Honour. I don't have anyone here from the Department of Health, but only to say that nurses are often required to work beyond their rostered hours and by accessing that clause 15.1.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that's overtime and that's what the reasonable test case provision provides for:

PN57

Subject to clause 15.1.2 an employer may require an employee to work reasonable overtime.

PN58

MR BLAKE: And they do, your Honour. If someone doesn't turn up for their rostered shifts, they'd have to stay back until they can get extra staff. A range of different reasons.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Blair, I can't see any reason to deviate from the test case provision, quite frankly.

PN60

MS BLAIR: Your Honour, the only other thing I need to raise is the possibility of nurses being covered by provisions in two different awards for reasonable overtime. There was a variation sought for the Northern Territory Public Sector General Conditions of Service Award in November. Parties had until 27 December in which to raise any objections to the proposed order. I've not received an order finalising that matter, but when it is made it shall contain reasonable overtime provisions of which the nurses will access via their award and reference to specific clause 16 overtime of the General Conditions of Service Award. The variation - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Well, which award will apply to nurses?

PN62

MS BLAIR: The nurses at the moment refer to the Northern Territory Public Sector General Conditions of Service Award for all of their overtime provisions. That award is in the process of being varied to include the reasonable overtime provisions.

PN63

THE SENIOR DEPUTY PRESIDENT: Which award binds them?

PN64

MS BLAIR: Well, the Nurses' Award binds them but incorporates the provisions of the General Conditions of Service Award. The Nurses' Award does not contain overtime provisions at the moment, apart from 15.1.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Blake, what do you have to say about the General Conditions Award? I don't want to create inconsistency.

PN66

MR BLAKE: It won't be inconsistent, your Honour. Because nurses in the Northern Territory are public servants, there are provisions that are referenced in the General Conditions of Employment Service Award. Ms Blair knows quite well that when this was brought to our attention last year we wrote to the Department indicating that we did not support the proposed variation. We advised - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Which proposed variation?

PN68

MR BLAKE: The General Conditions of Service variation.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR BLAKE: We were advised that the major parties to the award, that is the Department, the LHMU and the CPSU had consented to the variation and because we were not a major party to the award, we didn't press our objection and she's well aware that it was objected to.

PN71

THE SENIOR DEPUTY PRESIDENT: Well, will there be an inconsistency?

PN72

MR BLAKE: No, there will not be an inconsistency. Clearly, the parent award provides the circumstances in which overtime shall be worked and provides the payment for that work. As far as I'm aware, there are no other issues to be dealt with. On call and restrictive duty is dealt with because it's a public sector wide provision in the Northern Territory, not specific to nurses, but there will be no inconsistency.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MS BLAIR: Your Honour, the only inconsistency may be when the General Conditions of Service Award is varied. It's varied in the terms that our draft order is in.

PN75

THE SENIOR DEPUTY PRESIDENT: So it will provide an overtime clause in terms of your draft order?

PN76

MS BLAIR: Yes, your Honour, with the exception of payment shall be made for overtime at the rate of time and a half for the first three hours, and double time for - all the other words are the same.

PN77

THE SENIOR DEPUTY PRESIDENT: Well, why are two awards providing for the same matter?

PN78

MS BLAIR: Your Honour, I raised the fact that the Nurses' Award refers to the General Conditions of Service Award when this application was first submitted, but the ANF decided to proceed with the application.

PN79

THE SENIOR DEPUTY PRESIDENT: And before which member of the Commission is the General Services Award?

PN80

MR BLAKE: Variation.

PN81

MS BLAIR: Before yourself.

PN82

THE SENIOR DEPUTY PRESIDENT: And when am I dealing with that? Is that listed?

PN83

MS BLAIR: The General Conditions of Service was heard in early December.

PN84

THE SENIOR DEPUTY PRESIDENT: Have I varied the award, have I?

PN85

MS BLAIR: You gave the parties till 27 December on which to raise objections, otherwise you had indicated you would make the variation.

PN86

THE SENIOR DEPUTY PRESIDENT: And have I done so?

PN87

MS BLAIR: I haven't received anything as yet, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Blake, can you help me there? Do you know whether I've varied that award or - - -

PN89

MR BLAKE: No, I haven't seen any documentation to that effect. But I think - I don't believe it's relevant.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Well, what I'm going to do is adjourn this matter. I will make a decision in relation to this matter concurrently with my decision in the General Services Award.

PN91

MS BLAIR: Thank you, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Could I have that document back, Mr Blake, please?

PN93

MR BLAKE: Is it this one?

PN94

THE SENIOR DEPUTY PRESIDENT: The one that we had, yes. So that I've got it on the file. I will make the draft proposed by the Office of the Commissioner of Public Sector Employment, at the same time as I vary the General Conditions Award, having regard to the provisions of that award in order to ensure that there is consistency between the two awards.

<ADJOURNED INDEFINITELY [11.22AM]