AM2008/13, Transcript of Proceedings [2008] AIRCTrans 817 (15 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19388-1

COMMISSIONER SMITH
COMMISSIONER CRIBB

AM2008/13

s.576E - Award modernisation

Application by
(AM2008/13)





Melbourne

10.02AM, WEDNESDAY, 3 DECEMBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Hearing continuing

PN1

COMMISSIONER SMITH: Good morning. This is a consultation and for those that have been involved previously you'll know that it's not an opportunity to recite your submissions, it's an opportunity to highlight any matters that you wish to draw to our attention. It's also appropriate that I disclose that I have a daughter who is a speech pathologist and a parent entering aged care. If there are nay issues you can let me know.

PN2

Has there been any discussion about who'll start? I normally look to a lectern to find out that.

PN3

MR N BLAKE: If the Commission pleases, the Australian Nursing Federation sent correspondence to all the parties that have been involved in the informal conferences before Commissioner Cribb, indicating that we propose that the ANF kick off this morning because essentially, our position has very little support amongst the employers and some unions so we thought that it may be preferable that we put our position and then the remaining unions can put their position, followed by the employers. Generally, the feedback has been fairly positive to that approach, although some organisations have indicated some concerns about that.

PN4

MR A KENTISH: Commissioner, if it pleases, the CEPU is the only party present in Sydney. We would be only seeking to make very short submissions today. I was hoping to get the indulgence of the Commissioner and the other parties a week ago, if not before the Nurses, then shortly after and thereafter be excused, if it pleases.

PN5

MR R WARREN: If the Commission pleases, I'm appearing for the AFEI. I don't object at all the Nurses going first. I have a personal difficulty in being here longer than today. If I could get a quarter of an hour of the Commission's time at some stage today to put our position, it would be appreciated.

PN6

COMMISSIONER SMITH: Those that want to put brief submissions, when we adjourn at the luncheon break, if you can chat to your colleagues and as best we can we will accommodate those matters. This timetable has been in the list for a very long time so we're quite relaxed about trying to accommodate people as best we can. Mr Blake.

PN7

MR BLAKE: If the Commission pleases, the first thing I would like to do is seek some directions from the Bench as to whether or not the Commission has an expectation that the parties need to respond or make a comment about a number of the later submissions that have been filed, it appears, on the award modernisation website. We note that there has been some latitude provided to the parties in terms of submitting their position post 31 October, but there were three new ones on the site last - - -

PN8

COMMISSIONER SMITH: I think the correct characterisation of that is it has gone up on the site.

PN9

MR BLAKE: We do note that there were three on the site last night and two again this morning. I haven't read the two this morning. We don't seek to make any comment about those submissions. In particular I understand there was a witness statement some 100 pages long filed yesterday or on the site yesterday.

PN10

Commissioners, I think it's fairly clear as to what the position of the Australian Nursing Federation is but I'll state it once more for the record. We seek a new modern award to apply to the nurses employed under the classifications of registered nurse, enrolled nurse and assistants in nursing and we have submitted in previous consultations before this Commission that it is our understanding that in the event that a new modern award on an occupational basis is made by this Commission, it will subsume around 50 existing federal awards and around
50 NAPSAs.

PN11

If the Commission pleases, you'll be aware that most employers, most employer groups and some of the unions are opposed to our position and favour various industry approaches or industry awards. I should note for the record that not all organisations are opposed to the ANF's position in terms of a Nursing Occupational Award and occupational awards generally. I would like to note for the record that organisations such as the Australian Services Union, the CEPU, ASMOF and others have supported occupational awards in the past and we are of the view that at least two of the awards dealt with in the first group, known as the priority group, have arguably had an occupational basis to them.

PN12

I should also note for the record that a number of nursing organisations and nurses themselves have indicated to the Commission that they support the approach of their union and other - - -

PN13

COMMISSIONER SMITH: I've received the letters, thank you. We both have.

PN14

MR BLAKE: I think it's worth indicating for the record, Commissioner, that over 7000 nurses signed a petition. That petition was promulgated by our union and we sought their support in signing that petition but over 7000 nurses signed the petition. There was also a number of resolutions of delegates at council meetings and around 15 nursing organisations, which are separate to the Australian Nursing Federation, and 30 individual nurses submitted letters of support for the federation's approach.

PN15

If the Commission pleases, the ANF have filed two written submissions in relation to our proposal, the first being a submission filed in June of this year in the first round of consultations before the Full Bench. That submission in broad deals with the union's proposals about how they would meet with section 576A and 576B of the Act and also in relation to the Ministerial Request, in particular the objects and related factors in paragraphs 1 to 3 of that request.

PN16

It's important to note that the initial submission that we filed contained two attachments. The first attachment is a list of federal awards and NAPSAs that currently apply to nurses and the second attachment that formed part of our first written submission was a list of awards that we submit apply exclusively to nurses and a list of awards that apply to nurses and other employees in the health and welfare industries.

PN17

If the Commission pleases, the second submission that we filed on 31 October is more extensive and seeks to take the Commission to a range of detail in relation to the demographics of the nursing industry, where they're employed, under what circumstances they're employed and in terms of their recent history in relation to collective bargaining and movements in the awards that currently apply to nursing staff. It also addressed in that submission some issues around pay equity in relation to women workers generally and nurses in particular and also in relation to what we say is the clear distinction between the award coverage between nursing staff and other health workers. We do think that there has been a great deal made by some organisations about the proposal, or at least a proposal by ANF to expand its award scope in relation to nursing staff and others. We did address that in our written submissions

PN18

We have also provided the Commission with three additional documents that we seek to address today and we've sent a copy of those documents to the Commission and also provided a copy of those documents to the other parties, that were also on Commissioner Cribb's email address list as being involved in the informal conferences.

PN19

If I can start by referring the Commission to one of those documents titled Exemplar Nursing Occupational Award. I've got a number of spare copies here if any of the parties here today may have not got an email.

PN20

COMMISSIONER SMITH: Are you referring to the draft award that you put in?

PN21

MR BLAKE: No, not yet.

PN22

COMMISSIONER SMITH: Another document, are you?

PN23

MR BLAKE: Just another document. I sent it to yourself. It deals with the draft award but it's an additional document. We did attach to our submission on
31 October what we term a draft exemplar award. We thought we made it clear as to the purpose of preparing that draft award. It was to encourage discussions between the relevant industrial parties and also to set out in our opinion as to what a new occupational award for nurses may look like in the event that the Commission supported our proposals.

PN24

The document that I have referred you to, that was circulated a couple of days ago, deals with that draft exemplar award. It is a document that's dealt with in three columns, table of contents. It comes from the draft exemplar award. The first column deals with the particular clauses in the draft award, the second column titled Sources of Clauses provides information for the Commission and the other parties as to where each clause was derived from. You will note that in many cases we have based it on the exposure drafts of awards that have been circulated by the Full Bench in relation to the priority awards and in other cases we have taken existing safety net provisions from awards that currently apply to nurses and in other cases we have drafted new clauses that we say reflect in broad terms the safety net and we have called those clauses hybrid clauses.

PN25

In our draft exemplar award that was attached to our written submission of 31 October we sought to indicate in that document once again the sources of those clauses with a view to providing a clear understanding to the parties as to where we derived each clause. We thought it may attract some criticism from one of the employer groups and we were certainly right in that and they were very concerned as to the alleged cost to their particular businesses that may impact through the draft award.

PN26

In this document, Commissioners, we have added an additional column and that column is called Clause Précis where we have sought to reduce to very simple terms what we say the rights, entitlements and obligations of the particular clauses are. We think it's important that the Commission at least have an indication from our union as to what we see the application of each clause and how we see it operating in the field. I'm happy to address the Commission on that clause if there are any questions in relation to our analysis of the particular clauses.

PN27

I did wish to take the Commission to the clause relating to superannuation, which is on the third page. In our draft exemplar award we have included HESTA as the preferred fund. This is, of course, an industry fund which applies throughout the country, primarily to the private sector but we acknowledge and we put on the record that it is our expectation, depending on the scope of the award, the final scope of any award, that it's quite likely that other industry funds will be included as the relevant funds for the purpose of a clause relating to superannuation.

PN28

Commissioners, I table that document to assist the Commission in considering what the ANF is proposing in relation to each and every clause in respect of our draft award. Clearly, whatever the outcome there'll be some changes; clearly, whatever the outcome there'll be some transitional matters that will need to be dealt with, but we put it on the table to assist the Commission in their deliberations as to what they're supporting or otherwise in terms of our approach.

PN29

In relation to the draft award that we've submitted, we are of the view that the draft occupational award does a number of things. We say it's consistent with the award modernisation requirements of the Act and of the ministerial request. It reflects importantly the Commission's statement of 29 April which in part directed the parties to develop modern awards by using a principal federal award as a starting point. We indicate to the Commission that we have sought to use as the principal federal award in relation to our draft nursing award, the South Australian Public and Private Sector Awards. They are very similar in terms of their current content and they have been used in the past by this Commission and by the union as vehicles to consider similar matters to these.

PN30

As I indicated before, the draft award broadly reflects existing safety net entitlements. The rates of pay that we're proposing and the classification structure are based on the South Australian awards as we indicated. Both the rates of pay and the structures themselves, classification structures, were confirmed as properly fixed minimum rates by the pay rates Full Bench in decision C7661.

PN31

COMMISSIONER SMITH: Sorry, what was that, Q?

PN32

MR BLAKE: 7661. The rates that we seek to incorporate into the award we say are consistent across the federal award structure in relation to nursing awards.

PN33

If I can ask the Commission to refer to one of the other documents in those three that we've sent to you. It's titled Award Rates of Pay Key Classifications Entry Level. We've prepared this document to assist the Commission for two reasons. The first is to provide evidence as to what we say is the consistency in the weekly rates of pay across the safety net awards in relation to the federal awards, but also to address what seems to us a recurring theme, particularly in the employers' submissions that the ANF is seeking to re-establish some parity between wages paid to public sector nurses and wages paid to nurses in other settings. If the Commission pleases the document entitled, “Award Rates of Pay Key Classifications Entry Level” is divided into two parts. The top table deals with assistants in nursing, enrolled nurses and registered nurses at the entry level covered by federal awards. If I can refer the Commission to the column that’s entitled, “Registered Nurses Level 1” we have indicated that there are six entry level minimum weekly wage rates in federal awards in relation to the entry level registered nurses and that rate, a current award rate, varies across the country of less than $5 per week.

PN34

Similarly, in relation to the enrolled nurse entry level rate, there’s a very small variation and in relation to the assistant nursing rate, we have only two awards in the federal system that currently have AIM classifications and there’s only one award, that’s the Private Employment Award in the ACT that the ANF is responding to.

PN35

The bottom table provides similar information but does it across the existing NAPSA awards in Queensland and in New South Wales. There clearly is some variation in those rates of pay, both in terms of the difference between Queensland and New South Wales but also in relation to the difference between the existing NAPSA and those currently applying to nurses covered by federal awards.

PN36

But what the table does show, in other submission, is that there is some continuity in the levels of rates within the existing federal award structures. And the disparity, we would submit, that is the major concern of a number of employer groups essentially comes out the collective bargaining outcomes and bargaining outcomes rather than the existing rates within the award system.

PN37

COMMISSIONER SMITH: Now, for the purposes of your draft, do I take it that if we enter the appropriate rate, RN Level 1, into your pay scale that then gives us the rest of the salaries?

PN38

MR BLAKE: Yes, it certainly does. Each award has a very similar structure. There’s a series of registered nurse levels and there are senior positions but across the federal award structure, Commissioner, they are virtually identical. There are some minor differences in Victoria at the entry level, historical differences, but generally they are the same structure and that was the structure determined by this Commission as part of the professional or national rates case in the late 1980s, early 1990s and it hasn’t changed.

PN39

COMMISSIONER SMITH: Would that fit into all practice set5tings?

PN40

MR BLAKE: That does fit into all practice settings. I’m about to take the Commission to a further document that deals with the existing broad scope of those awards. I think it will - - -

PN41

COMMISSIONER SMITH: All right.

PN42

MR BLAKE: Just finally, in relation to the draft occupational award, we submit that it does provide a fair and reasonable safety net for nurses which is reflected by the existing safety net and we also say that it encourages bargaining between the parties.

PN43

If I can now take the Commission to the third document, which is entitled, “Nursing Awards by Sector”. Commissioners, we’ve prepared this table to address another theme that seems to be running through the - particularly the employers submissions in relation to what the ANF is seeking to do. This table entitled, “Nursing Awards by Sector” breaks down the existing federal awards and NAPSAs base broadly on their existing scope.

PN44

We have divided it into five different columns, the first being awards that currently apply to public, private and aged care and there’s only one award that does that and that’s the award here in Victoria. The next column is in relation to the private sector but not aged care. The next column is the private sector and aged care. The fourth column is those awards that apply only to the aged care sector and the fifth column is what we would view as being enterprise awards for purposes of this exercise.

PN45

We prepared this table to demonstrate to the Commission that rather than create a new animal which is a nursing occupational award, we would submit that the existing federal and state awards are broadly occupational awards but the making of industry awards, particularly in the aged care sector, would be a dramatic shift away from the historical approach this Commission has taken to awards in the health and welfare industries particularly in relation to nursing.

PN46

Commissioners, I would like to now address briefly some of the issues that we think need to be responded to in relation to the employers’ position and that of the Health Services Union. We indicated at the outset of the proceedings that parties have been filing submissions up until this morning. We only seek to address two of the employers’ submission, in broad terms, that being the Private Hospitals submission as submitted by the Private Hospitals Association of Queensland and also the Aged Care Employers Group and the Health Services Union Australia.

PN47

We do say in relation to the two employer submissions, because they both claim to represent, in the case of Private Hospitals, over 80 per cent of the hospital beds within the country. And in relation to the Aged Care Group they purport to represent over 95 per cent of the aged care sector. If the Commission have any questions in relation to the other submissions that have been filed we’re happy to respond to those but we don’t seek to address those in detail.

PN48

In broad terms, Commissioner, you would note that the employers have submitted that the Commission ought to make industry awards within the health and welfare industries primarily on the basis of their business interests. For example, the aged care employers on an Aged Care Award, the hospital employers on a Private Hospitals Award, medical imaging employers on a Medical Imaging Award, a Pathology Award and so forth.

PN49

All of these industry subgroups, in our submission, seek their own industry award and they seek that that award provides for a different safety net to each other and also to that the unions are proposing. The last count, Commissioners, is that we understand there is a proposal on the table for over 14 separate industry awards and if I can just run through what I understand to be a list of those industry awards.

PN50

They include the Aged Care Industry Award, Aboriginal Health Service Industry Award, Private Hospitals Including Day Surgeries Award, Nurses Other than Hospitals Award, Medical Imaging, Private Pathology, Dental Industry, Private Medical Practice, Public Hospitals, Aboriginal Services, Ambulance Industry, Medical Health Services, Health and Medical Services Industry and Private Practice Award. That’s 14 of them. There are probably others that have been supported in the various submissions.

PN51

COMMISSIONER SMITH: There’s one area that I’m not sure that you have covered - correct me if I’m wrong - and that is contractors. Have you dealt with that at all in your submissions; that agencies that might provide professional staff to hospitals and the award regulation that should apply to them? The host employer concept?

PN52

MR BLAKE: We haven’t addressed that specifically in our submissions, Commissioner. The current situation in relation to nursing awards is that agencies, commonly called “nursing agencies”, are respondents to those awards and observe those awards. But we haven’t addressed it. In particular I do note that there is at least one submission that I read earlier in the piece from a labour hire company - - -

PN53

COMMISSIONER SMITH: Yes.

PN54

MR BLAKE: - - - seeking the Commission ensures that their interests are protected but I don't recall that submission dealing with health and welfare, but I might be wrong about that.

PN55

COMMISSIONER SMITH: So at the moment in your sector you say that any nurse who goes into a practice setting from a contractor is bound by the relevant award involving nurses?

PN56

MR BLAKE: Yes. Certainly the nursing agencies are named in terms of the awards. I mean, that might have just over the last couple of years because of the inability to vary and extend the respondents to awards but historically that's been the case, and nursing agencies historically have been the providers of nursing labour under the sort of labour hire model.

PN57

THE COMMISSIONER: Yes.

PN58

MR BLAKE: Thank you. It's our broad submission, Commissioners, that no employer has submitted cogent arguments as to why employees in their particular part of the health and welfare industries should have a separate award, and also no arguments as to why that award should provide for a different safety net of minimum terms and conditions for nursing staff. The employers' position appears to us to be based on a number of key criteria, first and foremost that they don't want to be part of a passive industry, particularly the public sector, and secondly, they wish to observe a fewer number of awards than they currently do. And while these goals may not be inconsistent with the award modernisation objects and principals we would submit most strongly that they don't override and shouldn't override the broad responsibility of this Commission to provide a fair and equitable safety net to our members and other nurses.

PN59

In relation to the private hospital industry the employers broadly submit that they desire a single award covering the private hospitals industry, but I note that they don't define the private hospitals industry, providing for a set of key conditions, safety net conditions applying to all employees except doctors I think, and then separate classification structures and rates of pay and allowances for a number of streams, clerical, admin, engineering, nursing and adult health workers. They openly acknowledge in their submission that their proposal for the draft award is a minimum safety net provision providing a range of basic entitlements to employees.

PN60

They make a number of sweeping statements in their submission that we think are problematic and we seek to address those briefly. They say at page 4 for example that there are currently significant differences in the wages and conditions governing various disciplines in the private hospital employees and the awards applicable to them across each state and territory. They say that these differences have evolved in part as a consequence of the funding model in relation to the private hospitals operations. We submit that there is simply no evidence to support that and it runs counter to the historical approach that this Commission and state tribunals have taken to be making and are agreeing of nursing awards. They say at page 8 of their submission, Commissioners, that the occupation of nursing - - -

PN61

COMMISSIONER SMITH: Is that relevant? Mr Blake, is the funding model relevant?

PN62

MR BLAKE: The funding model is not relevant in relation to the private hospitals sector in our submission.

PN63

COMMISSIONER SMITH: Is it relevant to the fixation of a safety net wage?

PN64

MR BLAKE: It has no relevance in our submission. In our submission they make a great deal out of the fact that health, private health institutions fund private hospitals based on a series of benchmarks including case mix and the number or types of operations that they may undertake in particular hospitals, but in our view that's never been a criteria for this Commission in determining the safety net or reviewing the safety net in relation to any award in the health and welfare industry. Perhaps the employers can address that issue today because we just don't think it is relevant. It certainly may be relevant in relation to enterprise bargaining negotiations in a particular hospital or state or territory, but in terms of the award we submit it has no relevance. Similarly at page 8 of their submission, Commissioner, they submit, and I quote:

PN65

The occupational nursing cannot be unilaterally applied to all personnel in a clinical services environment, acute or otherwise, as there are significant variances in a role as performed, the skill sets required, the hours of operation, allowances, et cetera, depending on the setting in which the nurse is employed.

PN66

Now, once again, they provide no evidence to support that view, and we would strongly submit that that is not the case in relation to the employment of nurses, the standards of qualifications that they must have to work in the various health settings in terms of the regulatory requirements, in terms of their education levels. We would also submit in broad terms the roles are not markedly different between the different private hospitals across different states and territories, and we say that that's reflected in the current award.

PN67

If I can now turn and I'll refer the Commission to the draft award that's proposed by the private hospitals group. As I submitted earlier, the employers provide the draft as a - - -

PN68

COMMISSIONER SMITH: Yes, go on.

PN69

MR BLAKE: As a bare bones award intended only to act as a safety net in relation to their industries, and they indicate that at the last paragraph of their submission on page 5. Unfortunately the draft award doesn't provide the Commission with any information as to the source of the particular clause that they're proposing should apply to their employees, and in our view can't or are unable to say whether that draft award would result in a reduction in the existing safety net entitlements of employees covered by the draft award. Does the Commission have a copy of the draft award?

PN70

COMMISSIONER SMITH: Yes.

PN71

MR BLAKE: I just want to take you both to the proposed safety net provision because the employers in their submission and in their draft award have indicated quite strongly that the safety net provision that they propose underpins the draft award and, in their submission, provides a protection for all employees against any reduction in their current entitlements. It's our strong submission that this savings position provision is not something that should be supported by the Commission for various reasons.

PN72

COMMISSIONER SMITH: What clause is it?

PN73

MR BLAKE: This is clause 23.

PN74

COMMISSIONER SMITH: Clause 23, yes.

PN75

MR BLAKE: It's clause 23.1.2 and also point 3, and I just read it out for the Commission:

PN76

The making of this award would not result in the pay, applicable shift penalties or allowances of any existing employees being reduced below the levels of pay in an award, NAPSA, enterprise bargaining or collective agreement that applies to employees immediately before this award comes into effect.

PN77

And 23.2:

PN78

Notwithstanding the rates of pay and conditions contained within this award new employees covered by this award who commence employment on or after 1 January 2010 will be entitled to receive the same rates of pay, applicable shift penalties and allowances of those applying to existing employees classified at the same level as the new employee at the time the employee commenced at a private hospital employer.

PN79

Now, Commissioners, our reading of that savings provision essentially is that no employee will derive benefits from this award. The private hospital employers indicate in their submission that in most settings there are enterprise bargaining agreements applying to private hospitals, and we would agree with that view, and they are saying that this award will not apply to those people and this award will not apply to anyone employed after 1 January 2010 if the rates in those particular hospital or other settings are - or conditions of employment, particularly conditions of employment are higher than the safety net award they propose. We don't see how it can work in practice.

PN80

We think it is problematic in relation to the requirement of the Commission to remove state based differences over a five year period. We think it has difficulties in relation to what we understand the government's intentions are in respect to existing awards, federal awards and NAPSAs that may be subsumed into the new modern awards in relation to their ongoing life in terms of their current entitlements, but also whether or not those instruments can be relied upon in terms of the employees' legal entitlements. There's no capacity for example for the Commission to review those awards in terms of the proposed four year review of awards, so we think it's problematic.

PN81

We understand what the private hospital employers are seeking to do but we think it's problematic and simply won't work. And in the absence of that savings provision we submit that the draft award that they propose severely cuts and reduces the existing safety net provisions of employees, including nursing members. Commissioners, if I can now deal briefly with the aged care industry approach. As I indicated, the aged care employers have submitted that they represent over 95 per cent.

PN82

COMMISSIONER SMITH: Definitely.

PN83

MR BLAKE: Commissioners, you'd be aware that the aged care employers support an industry award covering all employees in what they say is the residential aged care industry. We would submit that there is no such thing as a residential aged care industry, and we addressed that at length in our written submissions on 31 October. But putting that to one side, we wish to make some brief comments about the submissions and the draft award itself. If I can ask the Commission firstly to turn to page 5 of the submission and paragraph 7(a). I would just like to make the point that the aged care employers have submitted that they have agreement with the relevant unions in respect to the proposed scope of their Aged Care Industry Award.

PN84

It's our strong submission that the only organisation that they do have agreement with is the Health Services Union of Australia. They don't have agreement, certainly they indicate they don't have agreement with our union, and we would submit that they have no agreement with any other union, and there's a range of different views as to what the scope of an industry award might look like. For example the Australian Workers Union indicate that they would like community care included in an industry award in terms of the scope. The LHMU in their written submissions have indicated their scope is marginally different. Certainly we don't support the scope.

PN85

We would submit that the other unions who would be making presentations and made written submissions in this industry also have not supported the proposed scope. So broadly speaking, Commissioners, there's no agreement from the unions in our view on the proposed scope of the award. Generally the submission of the aged care employers in our view that support an industry approach is based on two key criteria. Firstly, that the services that are provided by aged care employers are different to the services provided by all other parts of the health and welfare industries, and we submit that is simply not the case, that there is no part of the aged care sectors business that is demarcated on the basis of that view.

PN86

We have addressed at length in our written submissions of 31 October what we say is the broad role and function of nursing staff in the aged care sector, and we are strongly of the view that the aged care sector and nurses employed in that sector utilise the same skills, have the same responsibilities, the same work loads as employees, nurses that may be employed in public and private hospitals, and we think it's incumbent on the aged care employers to indicate where the differences are, and they have not done so.

PN87

The second part of their submission which takes up a great deal of their time and effort is that the aged care sector is in dire financial straits, that they're not able to compete with other parts of the health and welfare industries, and that the Commonwealth funding model is such that the Commission should acknowledge and address that they have a different funding regime, they have different funding outcomes and that in their opinion it is support for their view that they should have a separate and different safety net award covering their employees.

PN88

We are aware of the view that in relation to the aged care employers there's a real disconnection between what they're seeking to achieve and why they seek to achieve that, and what the Government is seeking to achieve in relation to the modernisation of awards, both federal and state. We think one of the problems quite clearly is that the aged care employers have been represented in the broad by New South Wales based organisations and they have a somewhat different award history to the rest of the country, and we think that's been a problem in relation to their submission and their draft award.

PN89

They claim for example that the ANF are seeking to run a work value case in relation to trying to re-establish parity between the aged care sector and the hospitals sector, and there's no evidence in support of that, and clearly that is not the case. And they warn the Commission, in our submission, that the Commission ought to avoid making any decisions that may result in what they call unfunded parity, that is to say any changes to the current conditions of employment applying to the aged care sector may result in a move towards any other part of the health and welfare industries. But our strong view is that the current safety net for nurses both at the federal and the state levels does not make that distinction at the present time.

PN90

The safety net that applies to registered, enrolled and assistants in nursing is not distinguishable on the basis of the business of an employer, and there are good reasons for that which we address at length in our written submissions. The aged care employers provide a draft award that we submit does reduce the safety net, that provides a bare bones approach to the safety net for employees in the aged care sector, and that provides virtually complete flexibility to employers in relation to that sector. I do ask the Commission to turn to the second last paragraph of the aged care employers submissions. I think this is the - - -

PN91

COMMISSIONER SMITH: The original or the further submissions?

PN92

MR BLAKE: Of 31 October, the second one, sorry. It's paragraph 15(c) of their written submission on page 13, and I'll quote it for the Commission.

PN93

With respect the Commission will be very wary of transferring working conditions for all nurses into one occupational award, especially in consideration of the current funding issues facing the aged care sector as already discussed above, and the fact the majority of award and NAPSA wage rates in the industry operate as paid, not minimum rates of pay arrangements.

PN94

Clearly in the view of the employers in this industry, over 95 per cent of them, the wage rates that they provide or are obliged to provide in their various awards are the actual wage rates. And one of our key concerns that we have submitted at length and over and over again is that we are fearful that should the aged care industry have a separate award that that will be the death knell of enterprise bargaining in that industry. And I think this submission at paragraph 15(c) acknowledges that the aged care sector have not embraced collective bargaining and, in our view, in the event that they are successful in getting a separate award, there is no chance that they will embrace collective bargaining because they will fall back on their inability to convince the federal government in their view to provide additional moneys for collective bargaining outcomes.

PN95

And we think the Commission should be very concerned about making a new award in an industry that acknowledges that it does not have a collective bargaining approach to its dealings with its own employees and their representatives.

PN96

COMMISSIONER SMITH: What do you say is the distinguishing factor as between an occupational and an industry award with the encouragement to bargain collectively?

PN97

MR BLAKE: Well, the difference is that - the first difference that we would submit, Commissioner, is that our view will be that there will be a consistent safety net applying to the different nursing levels within that occupational award so all employers would be required to compete for labour on the same benchmark.

PN98

COMMISSIONER SMITH: That's what you say happens now?

PN99

MR BLAKE: It does happen now. There has been resistance from aged care employers to bargain, particularly where there has been federal awards, and the New South Wales and Queensland system where there is a different regime they've been able to bargain through their award system. We have had some limited success in getting agreements up in this sector but they are inferior to other parts of the health and welfare industry.

PN100

COMMISSIONER SMITH: I'm sorry, my point is, the position now, they're reluctant to bargain with you. Why are they going to be more reluctant if they go to an industry award?

PN101

MR BLAKE: Well, because they will be competing with labour in our view primarily with other aged care employers.

PN102

COMMISSIONER SMITH: I see.

PN103

MR BLAKE: So that's the main consideration. They don't see themselves as being part of the labour market for nursing nationally but rather, particularly in our view if they have their own separate distinct award with a different set of conditions of employment, they would consider themselves as an aged care industry competing for labour in the aged care industry, whatever that may be.

PN104

COMMISSIONER SMITH: Yes, thank you.

PN105

MR BLAKE: The other issue that I want to raise with the Commission in terms of the draft award is that they propose a severely truncated classification structure applying to nursing staff. Their submission is that it doesn't currently apply in New South Wales so it ought not apply across the country. We think once again that would be a significantly detrimental impact on the aged care industry to attract and retain nursing labour and consequently the level of services provided to aged care residents. But once again the employers provide no reasons as to why these employers ought to have a different, separate and truncated nursing classification structure to the rest of the health and welfare industries.

PN106

In conclusion, Commissioner, can I just make some very brief comments on the proposal by the Health Services Union of Australia? You'd be aware that they submit, once again, there should be industry awards covering employees in these industries. There's a range of different awards including an Aged Care Award. Part of those submissions includes draft awards. A significant aspect of those draft awards in relation to all of their industry sector, their proposed industry sectors, is a new classification structure, a generic classification structure covering, broadly speaking, support workers, health professionals and management staff, and they have submitted that all employees in the industries can be translated into these new classification structures and the Commission ought to support that approach in relation to their industry awards.

PN107

We have very little knowledge as to how those new structures would work, and we do note that the term nurse is not included in any of the draft awards, and we are fearful that that will be detrimental to the profession of nursing in relation to both those currently employed in the industry and also people who are looking to enter nursing as an occupation. We think that's problematic. But the major concern that we do have is their proposed definitions in respect of these generic job descriptors. I don't ask the Commission to go to a particular award because they're very similar. I just want to read out one of the descriptors that I think applies to each award in relation to the health professional stream which concerns our members, and they have a title, health professional, and they have a descriptor and then they have a broad description as to the types of employees that would be classified under their proposed generic descriptor. And if I can just read one example which I think is indicative of the approach, and it is the current descriptor for a level 1 health professional in the health professional stream, and I quote:

PN108

An employee at this level, this level is the entry level for new graduates who meet the requirements to practice as a health professional (where appropriate in accordance with their professional association's rules and be eligible for membership of their professional association) or such qualification as deemed acceptable by their employer.

PN109

Now, we think there are a whole bunch of issues that arise immediately from having that approach in relation to a single descriptor that would cover every health professional in the health and welfare industries from nurses through to medical officers and everything in between, but we are very concerned that the HSU propose a classification structure that includes descriptors where the employer can make a decision about whether or not that qualification that the employee holds is suitable in their view to operate at a particular level. There are, as the Commission will be aware, state and territory regulations about professional standards and regulations about who can do what in relation to the provision of care to patients and residents. We think that's a factor, and we think it is incumbent on those who support this massive change in relation to the current classification structures which have been developed over many years and have been trialled in workplaces.

PN110

COMMISSIONER SMITH: But in a legislative sense the employer can't deem a Div 1 nurse can they?

PN111

MR BLAKE: No.

PN112

COMMISSIONER SMITH: They can't deem a practising psychologist.

PN113

MR BLAKE: No, they can't. But in our view they can deem that a practising psychologist ought to be the health professional that supervises for example a number of registered, enrolled or assistants in nursing. Now, I think that there would be issues that would be of concern from the professional boards, the regulatory boards about how that would all work. So historically the descriptors in awards, particularly nursing awards, have been developed with an eye to what is required by regulation at the different state and territory levels in terms of both the scope of practice but also in relation to the extent to which different levels of nursing can supervise and be responsible for other different levels of nursing within a particular workplace.

PN114

I'm not saying, or we're not saying that the Health Services Union haven't considered those matters and would have an appropriate response, but based on their submission and their proposed awards there are some difficulties that we would submit the Commission need to be fully conversant with before you would support this approach, particularly in relation to the need to translate every award employee from their existing classification structures to these new generic streams.

PN115

Commissioners, I have made the main points that I would like to make in relation to these matters. We're available to answer any questions in relation to our submissions or the other submissions filed by the other parties, but that broadly reflects our view as to some of the issues the Commission ought to give consideration to in terms of moving our members out of their occupational awards into an industry approach. If the Commission pleases, thank you.

PN116

COMMISSIONER SMITH: Thanks Mr Blake.

PN117

COMMISSIONER CRIBB: Mr Perica, are you going to - - -

PN118

MR PERICA: Yes, I was going to suggest before Mr Kentish might be put out of his misery up there first.

PN119

COMMISSIONER SMITH: Mr Kentish?

PN120

MR KENTISH: Thank you. I hope that meant that it's my turn and not something else, but thank you.

PN121

COMMISSIONER SMITH: Well, we've turned to you for two reasons. You are going to be brief, and we have no confidence in the technology.

PN122

MR KENTISH: Thank you. Commissioner, the CEPU has lodged written submissions with the Commission on 31 October and again this week on 1 December. Commissioner, the latter submission raises a number of issues concerning the HSU's proposed draft awards, and if I could just give a one minute outline of the CEPUs concerns?

PN123

COMMISSIONER SMITH: Yes.

PN124

MR KENTISH: Firstly, the CEPU opposes the proposed use of the expression "in or in connection with" in the application clauses of the drafts. We submit that that expression lacks sufficient certainty in application to be appropriately used in a modern industry award. Secondly, the CEPU seeks an exclusion for work done by electrical contractors who service the health and welfare sector. Thirdly, the CEPU does not support the manner in which electrical trades employees are dealt with in the HSU drafts. The CEPU instead submits that either electrical trades employees should be excluded completely or, if that is not ultimately accepted, that key terms applying to electrical trades employees be given a greater consistency with other awards which apply to engineering employees and, in particular, the CEPU goes to matters in our written submissions concerning classifications, allowances and, to a lesser extent, the apprenticeship regime. Commissioner, unless you had any questions in relation to what we've put in writing, that we will be content to rely on those written submissions, if it pleases.

PN125

COMMISSIONER SMITH: Thanks Mr Kentish.

PN126

COMMISSIONER CRIBB: Just a question for clarification if I may. I haven't had an opportunity to peruse in detail your submissions of 1 December, but I recall in the earlier ones that there was a concern about putting into whatever draft award classifications relating to electrical tradespersons where they had not existed previously. I mean, my understanding of the Health Industry Awards is that most of them, and the NAPSAs, have tradesperson/handyman classifications.

PN127

MR KENTISH: Yes.

PN128

COMMISSIONER CRIBB: They have handyman/tradesperson. So what is your view about how to deal with whatever health modern awards are made?

PN129

MR KENTISH: Commissioner, given what we say is the inconsistent treatment of trade classifications in the existing NAPSAs and pre reform awards, our primary submission is that it would be more appropriate if electrical trades employees were covered by an occupational award for electrical trades employees. And in making that submission we note that the exposure draft for the Manufacturing and Associated Industries Award is presently termed in part as an occupational award for electrical trades employees. So that would be our primary submission.

PN130

If that is ultimately not accepted we would be seeking a classification structure relating to electrical trades employees which has a much greater consistency with the Metals Awards and awards like it than that has been proposed by the HSU draft award, and the written submissions essentially go to those points.

PN131

COMMISSIONER CRIBB: So just to reflect back what I've heard, that the primary submission is that those classifications should only exist in the Manufacturing Award and should not actually be recorded in any way in whatever modern awards apply to health?

PN132

MR KENTISH: Our primary submission would be that electrical trades classifications not be included in a Health and Welfare Sector Award, yes.

PN133

COMMISSIONER CRIBB: So therefore if an employer in health and welfare who had, for example, in a private hospital or an aged care facility had an electrical tradesperson, that employer would need to go to the Manufacturing Award in order to find out what the safety net would be for their electrical tradesperson?

PN134

MR KENTISH: They would need to go to another award, that is correct, yes.

PN135

COMMISSIONER CRIBB: Has the CEPU got a position about having the classifications for electrical tradesperson in a modern Health Award, and those classifications actually reflecting what's in what one could describe as - I'm not being sexist here - looking around the room there are a lot of gentlemen - but in the mother award which, you know, for the professions you're interested in, would be the manufacturing?

PN136

MR KENTISH: Commissioner, as I understand you, that is our secondary submission, yes, that if it's not accepted that electrical trades are effectively excluded we would be seeking a classification structure which looked very similar to that contained in the Manufacturing Award.

PN137

COMMISSIONER CRIBB: All right, very similar or the same, that's my point?

PN138

MR KENTISH: Substantially similar, yes.

PN139

COMMISSIONER CRIBB: I'll let you off the hook. All right, substantially similar. Thank you.

PN140

MR KENTISH: Thank you, if it pleases.

PN141

COMMISSIONER SMITH: Thank you, you're free to go Mr Kentish.

PN142

MR KENTISH: Thank you, Commissioner.

PN143

COMMISSIONER CRIBB: Thank you.

PN144

COMMISSIONER SMITH: Yes, Mr Perica?

PN145

MR PERICA: Commissioners, I did say that I would take 15 minutes or less, so I will try to meet my KPIs in that respect. Our oral submissions, Commissioners, will predominantly address the issues of scope. Now, up to this modernisation process our involvement has been pretty much focused on protecting the integrity of the industry of state government administration with the constitution or competence of the Commission of course, which is the subject of an award modernisation process in stage 4, and to avoid its dismemberment in various industry sectors through the AMP. Our written submissions at pages 4 to 7 call for a conceptual break between what might be called frontline welfare or health administration and state government administration which involves work outside the health and welfare industries.

PN146

We submit that state government administrators as opposed to frontline administrative staff should be expressly excluded from each award or awards which are made through this process in the terms we propose in paragraph 17 at page 7 of our written submissions. So that's the exclusion. As far as the inclusion is concerned, as well as state government administrators we have extensive membership of true health and welfare workers who work pursuant to federal awards and NAPSAs that are the subject of this modernisation process. Our membership and coverage in these areas are predominantly but not solely based in Queensland and South Australia, and our membership in these areas in many ways are counter intuitive - I mean, it was counter intuitive to me - and extends to what might be described as to both public and private sector areas.

PN147

Now, for example, at page 7 and 8 of our submission that elucidates that in South Australia we have allied health professionals, para professionals, dentists, dental therapists and technicians, social workers, speech pathologists and others. In Queensland we have resident medical officers, professional and technical officers, dentists and various classifications and callings in the private pathology industry. Now, we also have coverage of persons employed in the Red Cross Blood Service in Queensland, South Australia and Western Australia. Now, given that coverage, as to the split of awards concerned we say the terms of Part 10A and the Request demand a level of aggregation of the various segments of the health and welfare industry.

PN148

We are furiously agnostic on the issue of whether or not separate occupational awards should be made for nurses and for medical officers, but we would urge the Commission to ignore the claims made by many employers in their submissions who seem to have confused the process of award modernisation which of its nature is directed towards creating awards primarily along industry or occupational grounds with a process of industry segmentation. The idea that there could be separate awards made for medical imaging, dental or pathology services separate from other health sectors in our submission anathema to the statutory foundation of the process in Part 10A and the terms of the Request.

PN149

Furthermore, the directions in the Request to create fair standards and not to disadvantage employees connotes the construction of modern awards are to be made by reference to existing relevant industry standards including pre reform awards, and that the safety net bear a strong relationship to the standards that the employees currently enjoy. It follows from this you should reject the year zero approach that is sought by employer groups such as ABI, AFEI and private hospitals in their submissions. Leaving aside the issues of the Nurses and Medical Officers Award, we support the split proposed by the ACTU for separate aged care, health services and ambulance awards. As I have indicated - - -

PN150

COMMISSIONER SMITH: Why?

PN151

MR PERICA: Pardon?

PN152

COMMISSIONER SMITH: Why?

PN153

MR PERICA: We think it's logical.

PN154

COMMISSIONER CRIBB: But why take out nurses and medical as you have and split the rest? Why split it into three? Why not split it into five, two, none?

PN155

MR PERICA: I don't want to quite take the Nuremburg on that but, well, ambulance of its nature is a separate conceptual area.

PN156

COMMISSIONER CRIBB: But should it be on its own? Are there other emergency services?

PN157

MR PERICA: Well, can I say off the bat from the bar table that if they were to be joined in the emergency services generally, particularly those state employees, that might make some sense. For example, if you were to hive off ambulances and put them in a later stage, including other emergency services, that's something that might be attractive to our union.

PN158

COMMISSIONER SMITH: I suppose my question, Mr Perica, and following on from Commissioner Cribb, is that why is it not possible to have an occupational award for all health services employees? Why should a psychologist have a different entry rate depending upon the area in which they work? Why should a nurse, why should any health professional who works in the health sector have a different entry rate depending upon the practice setting?

PN159

MR PERICA: Well, if, Commissioner Smith, if you're getting to a conception of a hybrid type of situation like, for example, under the metals exposure draft, that might be a middle ground which people may or may not accept. That concept is something that might prove quite attractive in this area. So I'm not discounting the idea of a hybrid, but that is something that could sort of be a middle ground between the two major unions in this. It has been done before and Metals is the obvious antecedent.

PN160

COMMISSIONER SMITH: Yes, thank you.

PN161

MR PERICA: As I say, we have members who would be bound by aged care and health care services, if that was what was required. In relation to ambulance, and this is something I have only discovered recently, we have coverage of dispatch operators in each state under the various Ambulance Services Award, and if an Ambulance Services Award is made and it includes scope for dispatch operators, of course we'd want to be named as an organisation to whom the Ambulance Services Award applies.

PN162

COMMISSIONER SMITH: Are they public sector employees or private sector?

PN163

MR PERICA: Some are and some are not in Victoria.

PN164

COMMISSIONER SMITH: Is it only Western Australia where there's a private sector ambulance service?

PN165

MR PERICA: Yes, I think there is in Victoria as well. I think the Country Fire Authority and that, they go to - it's whatever the - whoever took over Intergraph that has continued.

PN166

COMMISSIONER SMITH: Yes, I follow.

PN167

MR PERICA: Should the Commission be minded to make nursing or medical officer occupational awards we'd request the Commission to include the CPSU as a party. We have very limited coverage of nurses but we have coverage of resident medical officers in Queensland.

PN168

COMMISSIONER SMITH: You support parties to awards do you?

PN169

MR PERICA: No. I'm trying to move away from the conception. As I say, I had 10 days trying to work out the covered or applying to. I still can't get my head around it. But whatever the new nomenclature is that's - we looked to the - - -

PN170

COMMISSIONER SMITH: I looked to the Bill.

PN171

MR PERICA: Yes. I've read it 10 times, I still can't make head or tail of it.

PN172

COMMISSIONER SMITH: Thank you.

PN173

MR PERICA: In relation to conditions we rely on our written submissions in relation to those areas. There is only one other thing that I'd want to address the Commission on, and I've been given a supplementary submission from our PSU group to hand up, it's only two paragraphs and only deals with one discrete issue. It's to do with the Australian Hearing Award 2006, which is AW846045. I'm instructed, Commissioners, that that is an enterprise award.

PN174

COMMISSIONER CRIBB: I think we've got submissions on this award, yes, from Ms Fromano.

PN175

MR PERICA: Yes, we do, and I think that's a joint position that it is an enterprise award.

PN176

COMMISSIONER CRIBB: And so as I understand it, the Request is therefore as it's worded - - -

PN177

MR PERICA: Yes. If the Commission pleases, I have nothing further unless you have some questions for me.

PN178

COMMISSIONER CRIBB: We could question you until after the 15 minute mark, Mr Perica.

PN179

MR PERICA: Thank you.

PN180

COMMISSIONER SMITH: Thanks Mr Perica. Yes, Ms Doust?

PN181

MS DOUST: Commissioners, I take it that you've seen our submissions, and you'll see from those submissions that we advocate three industry awards, neither two nor five nor seven.

PN182

COMMISSIONER SMITH: In your own time you could address the question I put to Mr Perica.

PN183

MS DOUST: And that's a very interesting question, and it is actually something that at face value I think may have some merit, but it may be something that we would need to perhaps caucus in some further detail before I put any submissions to you, Commissioner. And I'm grateful in that sense that we have three days to go through this process, and this might perhaps not be the only time I'll be getting to my feet to say some things.

PN184

COMMISSIONER SMITH: You're probably the only person in the room that's grateful.

PN185

MS DOUST: I was only feeling a great deal of regret that it wasn't longer, Commissioner. But you'll see, Commissioners, that we've provided draft Health and Medical Service Industry Award, a draft Aged Care Award and a draft Ambulance Services Award. We read the terms of the legislation and the Award Modernisation Request as really inviting unions to attempt to undertake a process of harmonising the disparate awards that are across the health industry, and it seems that - and I'll be corrected if I'm wrong - but we're really the only union that's really made an attempt to try and do that with the classification structure that we have proposed in our Health and Medical Services Industry Award, and we've done that really in a context where we haven't had a series of discussions with employers or much in the way of feedback apart from some ad hoc feedback since our draft was proposed.

PN186

We accept that the distinctions that we make in terms of the separation of the health industry into health and medical services, aged care and ambulance doesn't really have a solid basis in principle, they're pragmatic distinctions really. We accept that the task of the Commission in this process is to try and establish industry based awards, and our starting position was to look at the overall industry. In the case of aged care however we got to the position where we propose a draft award not because it's our position that nurses in aged care or any worker in aged care doesn't work as hard or provide work of the same value as the work provided by those in the health sector generally, but it was more pragmatic considerations which informed our position.

PN187

COMMISSIONER CRIBB: What were those considerations?

PN188

MS DOUST: One of the considerations was the fact that aged care is quite an identifiable growing and large part of the overall health care sector, and we say by reason of its size you could justify treating it separately. Also as a matter of practicality employers in the aged care sector appear to be more identifiable and run in packs if you like, we're more organised, and so we were able to have some very meaningful negotiations with the aged care employers to reach what is substantial agreement as to terms and conditions to include in the draft award. There are some areas of difference still and I'll attempt to highlight them shortly.

PN189

And we agree with what my friend from the CPSU said, that ambulance services are a conceptually different group within health care. They're physically often located separately. They're regarded by many as being within the emergency services sector and they're not involved in the direct provision of care and treatment. I'd like if I could to speak briefly to the reasons we oppose the splintering of the health industry into occupational awards, whether for nurses or for other occupational groups, and in particular we respond to the position that's been put by the Australian Nursing Federation today.

PN190

The first is this. That once one occupational group is removed then it seems to us that there's no reason in principle why the Commission wouldn't then proceed to splinter the industry into a range of occupational groups. If it starts with nurses then equally it's hard to say why that same approach shouldn't apply to doctors, shouldn't apply to physiotherapists, shouldn't apply to sonographers and so on. And we see that splintering as being something which is contrary to the process. This process is about getting industry coverage, and we accept what you've said, Commissioner, about industry coverage being something that's likely to promote bargaining within the industry.

PN191

The process of splintering health awards into the various occupations is something we'd submit is contrary to the last 30 years of industrial history which has seen a substantial harmonisation within the health industry, particularly in the area of allied health. It's true that nurses are a large part of the health workforce, but in our submission award modernisation is not about allocating a quota of awards per head of population that an occupation has. Rather we see this process as being an attempt to create an award that all workers in the industry can look at to ascertain their terms and conditions of employment, and workers working side by side with allied health, personal care assistants, assistants in nursing, doctors and so on, if they're working within the same teams should be able to refer to the same award.

PN192

In our submission, given the intention of the legislation and also the terms of the Award Modernisation Request the onus should really lie upon the Australian Nursing Federation to establish why terms and conditions which provide an appropriate safety net for nurses cannot be accommodated within a Health Industry Award, so can't be somewhere set out within an award that has application in the industry generally. And on our review of those submissions we can't see why any nurse should not be able to be provided with the proper safety net of terms and conditions in the context of a Health Industry Award.

PN193

One of the other matters that's been raised by the Australian Nurses Federation is the fact that nurses are regulated by statute, and that's the case across the states and they have a particular disciplinary regime. There's two matters we say in response to that. The first is this. That there's similar statutory registration and disciplinary regimes for doctors and in the main other health professionals, but perhaps the more important point to be made about that issue is this. That nothing in the statutory regulation and disciplinary arrangement for nurses leads to the conclusion that they require any particular term and condition of their employment of such moment that a separate award is required. And in our submission that's really the test. Whether or not there's something applicable to nurses that could not properly be accommodated within a health industry setting.

PN194

Or even following from the hypothetical, Commissioner, that you've proposed, one of a general award that covers all of the health occupations, that would appear to be certainly an answer to the submission of the nurses that a Nursing Industry Award should be separate, and that would appear to be another appropriate way to provide for terms and conditions. The ANF submission of 31 October refers to the existence of nurses in non health industry settings, so there's reference to nurses, for example, in Defence Forces and mines and so on, and we acknowledge that this is the case. And we certainly say that the professional position and qualifications of those nurses should be acknowledged and properly valued in an award context.

PN195

It's not our submission that those nurses don't count or that they're not important or that they're not as valuable as nurses within the health industry. It's simply a matter of where they fall in an industry sense as to what's the most appropriate and convenient method of regulation of their terms and conditions of employment. It is notable we say that in the ANF's submissions - - -

PN196

COMMISSIONER SMITH: Sorry, what's your view on that? Did I miss you expressing a view as to whether they should be in the award that you propose or whether for example nurses in schools?

PN197

MS DOUST: Yes, they wouldn't fall within our industry based award, those particular - - -

PN198

COMMISSIONER SMITH: Do you see those falling into an education if we get one?

PN199

MS DOUST: They may. I understand there's a proposal about the nurses in other settings, a catch all type award, and that's one other way of dealing with the matter.

PN200

COMMISSIONER SMITH: I follow, thank you.

PN201

MS DOUST: And we say that it's noteworthy that in the ANF's submission there's a great deal of information about the demographics of nursing, but I don't think there's much to identify the precise numbers of nurses in those non health settings. I understand that's a very difficult task to undertake, but in our submission it's probably not controversial at all that those nurses would certainly comprise the very small minority of nurses in the country, the vast majority would be employed within the health industry and, in our submission, the Commission should not allow its approach to the health industry to be driven by the position of employees who are outside the industry, in other words, that they are the exception rather than the rule in terms of their occupation and this industry.

PN202

The final point that we have to say about whether or not there should be a separate nursing occupational award is this. There's reference in the ANF's submissions to the question of pay equity. In our submission that is not a consideration that militates in favour of a separate occupational award, nor is it a consideration which really makes a separate award necessary. In our submission there's no reason why equitable pay arrangements for nurses cannot be accommodated within a broadly based Health and Medical Services Industry Award and an Aged Care Industry Award that applies to them.

PN203

Before I move on to dealing with the particular draft awards that we have proposed I think, Commissioner, you indicated in a question to my friend from the CPSU why should any health professional have a different entry rate based upon their sector was one of the questions you posed, Commissioner. Our reply to that is, first of all, that's certainly not a position that we advocate. We certainly don't propose that as a desirable position. Second of all, there's no reason why there couldn't be consistent health professional rates across more than one award, and we think the structure that we have proposed is one which is not unduly onerous upon either employers or employees.

PN204

The distinctions that we've proposed within the health industry reflect distinctions which are broadly recognised and they're quite few, so it's not that there's complicated delineations between the industry into a variety of sectors with the principal delineation between health generally and aged care is one which is very easy to identify and apply in practice. Our final submission about the position contended for by the nurses is that the scope of their Nursing Award by reference to the provision of care is one which is likely to be productive of considerable confusion in terms of how that applies.

PN205

In our submission there's no logical reason why persons who are termed assistants in nursing and, first of all, care assistants, should also fall within that award and be separated off because the same considerations that apply to registered nurses and enrolled nurses certainly don't apply to those persons in terms of protecting the professional nature of the occupation if you like.

PN206

COMMISSIONER SMITH: Apart from the award structures that you propose, or the extra awards, aged care and ambulance, is there any difference in approach between your proposal and the ANF's proposal?

PN207

MS DOUST: Perhaps that's a matter that I can - - -

PN208

COMMISSIONER SMITH: Apart from the fact that ANF don't want anybody else.

PN209

MS DOUST: A minor difference, Commissioner. That is perhaps a matter - - -

PN210

COMMISSIONER SMITH: Other than nurses. I wasn't talking about organisations.

PN211

MS DOUST: Yes.

PN212

COMMISSIONER SMITH: The Act or the Bill deals with those matters.

PN213

MS DOUST: I'm sorry?

PN214

COMMISSIONER SMITH: The Bill deals with those matters.

PN215

MS DOUST: Yes. Is that a matter that we could perhaps take on notice and perhaps put some more considered submissions to you in due course, Commissioner?

PN216

COMMISSIONER SMITH: If you're looking for a response to that I suggest you consider the questions as quickly as you can.

PN217

MS DOUST: We certainly will.

PN218

COMMISSIONER SMITH: Thank you.

PN219

MS DOUST: Just in response to the matters that were raised by Mr Kentish from the CEPU, the first issue that he raised was the question about the use of the words "in or in connection with," and that's a matter that we'd hope to address fairly swiftly as well, Commissioner. We may be able to provide some examples of the sorts of workers who we say would be caught particularly by the use of those words "in connection with" and to illustrate our point. The second issue that was raised by Mr Kentish was that of the position of electrical contractors. And our position in relation to contractors is this. We say if the contractor is based on site they should be covered by the industry award because they are in the industry, and in the experience of this union numerous contractors are actually based within the health industry providing ongoing services particularly of a security nature and the like. We wouldn't be putting the position that occasional contractors who came on and off health industry sites would be covered by this award.

PN220

COMMISSIONER SMITH: Let's go back to the electrical contractors then. You have in mind importing all of the training packages that go with electrical work into the award, industry award?

PN221

MS DOUST: I think again, Commissioner, regrettably that's something that we're going to have to take on notice.

PN222

COMMISSIONER SMITH: That's the impact of Mr Kentish's submission in answer to Commissioner Cribb.

PN223

MS DOUST: Yes.

PN224

COMMISSIONER SMITH: If you take us, you take us completely.

PN225

MS DOUST: Well, I've never had that invitation made to me before, Commissioner, but it's very enjoyable. And I followed Commissioner Cribb's question in relation to that position with some interest, and I think that's just a matter we have to discuss. But we certainly do say that persons in electrical classifications are within the health industry, so there are people who are based in our industry performing electrical roles. We'd have to give some consideration to the question of training.

PN226

Going back to our draft Health and Medical Services Industry Award, it's probably apparent from that document that we have borrowed a great deal from the exposure drafts which were circulated by the Commission in the last round, not least the format of which was of considerable assistance to us, and many of those terms and conditions won't be controversial. In terms of adopting the terms and conditions we attempted by reviewing the awards across the industry to identify the terms and conditions which were of broadest application so that we could provide a draft with an appropriate safety net for workers across those classifications. Our draft General Award hasn't been produced as a result of negotiations with employers, and we've had some discussions with other unions but I think our position is we'd welcome further discussions with any employer group and any other union about what the appropriate safety net conditions should be in each instance.

PN227

COMMISSIONER SMITH: May I ask one view? The industry has a number of persons in it that you can identify by educational qualifications. Do you have a view as to whether or not, for example, if we take the draft exposure manufacturing and associated industries, there are relativities for three and four year degrees. Do you have a view about those relativities depending on the qualifications of the persons concerned?

PN228

MS DOUST: Would you excuse me for a moment, Commissioner?

PN229

COMMISSIONER SMITH: Yes, of course. Particularly in your area as professional scientists.

PN230

MS DOUST: Well, I think our position is reflected, Commissioner, particularly in the health professional stream, which is page 73. Mine is numbered, Commissioner, and I hope it's the same for you.

PN231

COMMISSIONER SMITH: Yes.

PN232

MS DOUST: It's not very far from the end. And while I'm on the point I think - well, just to address your question first, Commissioner, I apologise, I nearly distracted myself. We have attempted in the way that we have constructed a classification system here to reflect the current relativities between the various qualifications, particularly amongst health professionals. And you see the entry level for level 1 is new graduates if you like, so people who are in possession of a three year degree qualification.

PN233

COMMISSIONER SMITH: Well, that might not be the case in all areas of allied health professionals. It might be a four year degree, it might be a masters.

PN234

COMMISSIONER CRIBB: For psychologists for example.

PN235

MS DOUST: Yes. That particular issue is perhaps something that's best addressed by Ms Bradbury from the HSU, who can talk to you about the clinical stream classifications particularly. That's probably not a matter that I should address you on right at the moment, Commissioner.

PN236

COMMISSIONER SMITH: Who do you appear for?

PN237

MS DOUST: HSU.

PN238

COMMISSIONER SMITH: Very well.

PN239

MS BRADBURY: Commissioner, whilst we've omitted to elucidate it very clearly, it was our intention that level 1 year 1 would be for a new graduate with a three year degree, that there would be essentially accelerated progression through that level based on the years of your degree. So a four year graduate might start at a second step of level 1. We haven't provided rates and we haven't provided those steps but that is our intention, and that's reflected in how awards operate in a number of jurisdictions, that there is accelerated progression based on the years of your degree.

PN240

COMMISSIONER SMITH: But you haven't put that in your draft.

PN241

MS BRADBURY: It's not there. It was our intention but it was omitted from the draft, so I apologise.

PN242

COMMISSIONER SMITH: Thanks Ms Doust.

PN243

MS DOUST: Thank you, Commissioner. Commissioner, just in response to - and that's actually been a helpful question for articulating the union's position so we are grateful for that. Commissioner, I think there was discussion by Mr Blake from the Australian Nurses Federation about that particular part of the classification system, and I think Mr Blake's words were that were a whole bunch of problems with that particular classification. Our position is that that classification is disjunctive as is indicated by the word "or," and so entry level is not whatever qualification is deemed acceptable by the employer. Rather what this classification provides is that entry level graduates go direct into level 1 and, alternatively, the employer may accept the qualifications of an employee as being, if you like, equivalent to that level.

PN244

So really the use of the disjunctive there doesn't attempt to - it means that the latter doesn't qualify the former part of that description, so it's not at the discretion of the employer to deem that there are additional qualifications required for entry to that level.

PN245

COMMISSIONER CRIBB: Can I just clarify that? Does that mean that the employer may accept a qualification that's not strictly three years, or how does it work? How can you be, in one sense, a little bit pregnant?

PN246

MS DOUST: Well, as I understand it, it's directed towards the position of nurses who had not actually obtained a degree qualification but who still operate within the sector having achieved equivalent qualifications in the pre tertiary education era. So that's the type of - and that's also the case with other health professionals.

PN247

COMMISSIONER CRIBB: Thank you.

PN248

COMMISSIONER SMITH: Now, can I indicate one thing that arouses my interest if your job descriptions, and that is, I wonder whether it's too generic to be able to specifically classify various groups properly? You see, one normally looks to a job description for some form of identification of work performed which allows you then to identify a classification level. And in your area - I'm sorry, let me put it another way. In allied health professionals, dieticians, OTs, social workers, psychologists varying between four year, three year degree, pharmacists, physios, podiatrists, prosthetists, medical scientists, I mean, they're in different practice settings from time to time, and I'm just wondering about the generality of approach in being able to accurately identify somebody in a safety net sense, that's all.

PN249

MS DOUST: Well, in part the difficulty that you identify, Commissioner, is something which arises necessarily in the task of attempting to create an industry wide award, that you will necessarily be covering a range of workers operating in different settings within the industry, and it's obviously difficult to get the right balance between a classification system which is workable and eliminates complexity.

PN250

COMMISSIONER SMITH: I assure you I'm the last one to underestimate the challenge.

PN251

MS DOUST: I'm sorry, Commissioner?

PN252

COMMISSIONER SMITH: I'm the last one to underestimate the challenge that's faced.

PN253

MS DOUST: Commissioner, you can see how we've attempted to break up the various types of worker in the industry. In part some of the descriptions that we've employed are clearly understood by workers in the industry. And we've taken our classification system from a New South Wales award, or we've been influenced in large part by that, that has current application, and in our experience that's worked reasonably well in that context. Commissioners, just to move back to the issue of our draft Aged Care Award, if I can give the Commissioners a summary of the matters where the HSU and the employers aren't in agreement, and they are these.

PN254

There's an issue about dispute resolution training leave, there's an issue about the level of regulation of part time work, so we understand the employer position, and Mr Boyce will certainly explain this I imagine. They don't want to commit to having to identify prior to entry into the employment the days of work and hours of work or difference in the redundancy provisions. The difference in relation to allowances, but in a sense that is an issue that needs some further discussion between the parties given that it will necessarily hang off the rates that are ultimately set. And we haven't proposed any rate at this stage.

PN255

There's a difference between about eight hour day shift and 10 hour night shift, there's a difference about span of hours. Our proposal about five weeks annual leave is not agreed. There are currently discussions occurring, or there have been discussions between the HSU and the aged care employers about classifications appropriate for the award, and I think as a matter of general principle that we accept that perhaps a flatter classification structure than applies in the health industry is appropriate to reflect how the aged care industry operates in practice. I think they're all the matters that I need to address the Commission about at this stage, unless the Commission will just excuse me for a moment to see whether there's anything I've left off.

PN256

COMMISSIONER SMITH: Sure.

PN257

MS DOUST: Yes, I think that's all we have to say for the moment apart, Commissioner, from reserving our position if we might to respond to the question, Commissioner, that you posed earlier about a Health Occupational Award.

PN258

COMMISSIONER SMITH: Yes.

PN259

MS DOUST: That's something I think we'd like to give some consideration to.

PN260

COMMISSIONER SMITH: You don't have to reserve your position. I'd be happy to hear your answer.

PN261

MS DOUST: We'd certainly like to consider that one, and also, Commissioner, we'd perhaps like to give some further consideration to the questions that you've raised about the position of health professions, and that probably falls within that same subject heading, and we'd also want to obviously reply to anything further that comes out during the consultations.

PN262

COMMISSIONER SMITH: Well, I think the President has referred to in somebody's emails. I forget whose email came past my eyes, said that there weren't - this is a different process, that people are reserving their rights as a concept to reply, as a concept that's relatively unknown. But we're happy to hear from people as long as they don't take advantage of our good nature.

PN263

MS DOUST: I'd certainly hope that I'm not doing that, Commissioners.

PN264

COMMISSIONER SMITH: Thank you, Ms Doust.

PN265

MR GRIMES: Thank you, Commissioners. My name is Michael Grimes and I'm representing the ASMOF today. The position of ASMOF is that we are seeking an occupational award for nurses. In support of that we've put submissions to the Commission on 31 October, and with a slight amendment on 5 November.

PN266

COMMISSIONER SMITH: Yes.

PN267

MR GRIMES: In approaching this matter could I say that in our submissions we covered what we thought at that point were the main issues, and in addition we attached a draft award. The concept of the draft award is to stimulate discussion, and we're happy to announce right at the outset that we're happy to enter into discussions with any parties. But I'd like to illuminate that today and I'd like to do so by commencing by saying that a lot of Australians were killed in World War I. A study of the history of that conflict shows that while the generals knew how many men and guns they had and all the other logistics that went with it they continued to make a series of fundamental mistakes. One of those great fundamental mistakes was made at Fromelles of course. And we can look with the wisdom of hindsight at what happened at that time, and we recall the generals were pretty good at appearing on the battlefield usually the day after the battle and congratulating the chaps that were left on the good job that they'd done.

PN268

But a distinguishing mark when you look at that period of time is that in almost every case of a disaster those in charge, the generals, did not look at the battlefield before the battle. And that comes out over and over. Now, I make that point on the basis that at Fromelles had they have gone to the battlefield they would have seen that the Germans were substantially higher than the attacking Australians. In other words, what they missed as they went forward was the context, the context of the battleground. We say context is important.

PN269

COMMISSIONER SMITH: Well, I think you can be confident that both Commissioner Cribb and I have had extensive experience in this sector.

PN270

MR GRIMES: I appreciate that, Commissioner, but I would like to paint the specific context of doctors awards if I may.

PN271

COMMISSIONER SMITH: I'd be grateful.

PN272

MR GRIMES: Thank you. The context includes the background of the industry or occupation and the landmarks that we all need to recognise as we go forward. Mass employment of salaried doctors is a comparatively recent development. Traditionally doctors were sole practitioners who all worked in small partnerships. And, indeed, if you look across the whole of the medical workforce that is currently the case. Until the 1970s many senior doctors provided services to hospitals free of charge. They were known as honoraries and they performed their public service, if you like, maybe a day or a day and a half a week when they'd go to a public hospital, teach the students and provide procedures free of charge.

PN273

The rapid expansion of public health under the Medicare systems saw large numbers of specialist doctors attracted to full or part time employment, although whilst many of them have gone that way they are still, as I said, the minority. This movement led to the development of doctors unions to represent doctors collectively with most unions as registered associations having been formed in the last 30 to 40 years. Health is a state responsibility hence the increasing demand and requirement for industrial regulation was almost invariably played out in state jurisdictions. Now, of course, there are those awards that were generated in the federal jurisdiction, but most initially had their genesis in the state jurisdiction.

PN274

In those jurisdictions the awards that emerged reflected the environment in which they were set. In almost all cases doctors rights and entitlements are spelt out in doctor only awards. There are one or two variations from that, but almost universally I can say that. Accordingly there's no parent instrument and no consistency of nomenclature, and that created a difficulty for us in trying to put a draft award together because there are different titles in different places. However, there are three clear categories of doctors however titled, and this applies nationwide. There are doctors in training that encompasses the groups from interns through resident medical officers through to registrars through to senior registrars, there are career medical officers, that is experienced doctors who work for a salary but have not proceeded to undertake specialist training, and then finally at the top of the stack are the consultants or the specialists.

PN275

Each category of doctors, and I've named the three, has its own requirements which need to be separately acknowledged in their employment arrangements because they have different skills, experience and responsibilities. We say you can't just go along and say we've got a classification of doctor, because different doctors at different points in the continuum do different work, notwithstanding the fact that they are all registered medical practitioners. At the same time salaried medical practitioners are employees with rights and responsibilities similar to other health sector workers, so of course there are connectors to other workers but there are also substantial differences.

PN276

So I'd like to spend a moment or two on why we say doctors are different and therefore why they need to be separately regulated by the Commission. First of all there is the question of responsibility. Their responsibility is exercised at the highest possible level. Then there is the question of regulation, and there has been some discussion about regulation here today before the Commission. Doctors are not only regulated by the state through the medical registration boards, but also by the profession through the learned colleges. And in addition to that they are required to be credentialed to perform a specific function in any individual institution. So there's really three levels of regulation there that doctors must work within.

PN277

Only the highest level professional employees are required to meet such stringent requirements. The stand out I think between doctors and other employees in the health sector at large are their training regimes. First of all there is the length of the training regime to go through from commencing study to become a medical practitioner at university until you finally become classified as a specialist or consultant can be 16 or more years. And we say that's not reflected anywhere else in the health profession. There is also then the question of complexity. I've got here there's little margin for error, and we would hope that when consulting a physician that there's no margin for error, that everything goes just tickety boo. They have to be right up to speed at all times.

PN278

And then there is the control of the training regimes for medical practitioners, and these are split between universities, medical boards and learned colleges, all of whom have a say as to how the training will take place, what the training will be and what hurdles you have to jump. Finally there is the question of rotation. This element is one that impacts most directly on the employment relationship. Training regularly requires moving to a different hospital often involving a different employer and very often in a different state or territory. So for example you're a trainee radiologist and you're working in a hospital in Adelaide, and the college determines that you will need to do a six month stint, say in the Northern Territory, in order to be exposed to not just the working conditions but the types of illnesses et cetera that are prevalent in that area. So the college will make the decision as to where you will be located in many instances.

PN279

Most training placements are for 12 months or less, and employment relations arrangements are geared to this. Doctors in training programs need to obtain placement for the following year and need certainty of employment rights and responsibilities. So you can be moving from state to state, you could be moving on, as I say, a 12 month rotation and, indeed, you'll see a flurry in major teaching hospitals around about June or July each year as doctors try to obtain their training position for the following year either in that institution or elsewhere. Without industrial regulation via awards that recognise the specific and unique elements of these doctors' employment realties a medical practitioner in training could potentially be open to unfair demands and be at risk of losing basic entitlements other employees can take for granted. In other words, this mandated mobility creates a series of problems and issues that need to be addressed.

PN280

COMMISSIONER SMITH: This is your clause 52 in your proposed award is it, recognition of previous service?

PN281

MR GRIMES: Correct, yes, thank you, that's right. Which, by the way, is taken from an existing federal award. I think it's, from memory, the Victorian instrument, but I stand corrected on that, I'd need to check my notes. Of course that's junior doctors. But what about senior doctors? Well, first of all there's the issue of clinical practice. First and foremost salaried medical practitioners must practice their discipline at a constant high level. Their primary role is as clinicians. So if you're employed as a specialist in a particular setting your first role is as a clinician.

PN282

But of course if we get into our teaching institutions then you'll find that they also have a major teaching role, and the teaching is at both undergraduate and postgraduate level and is a basic requirement of senior medical practitioners in those practice settings. In addition salaried medical practitioners are very often required to undertake research, and this function more lies at the core of high level teaching organisations. And the research and the teaching elements are two of the elements that drive that concept of sabbatical leave which comes from the Victorian award and is contained in our draft.

PN283

Finally, many of them have management responsibilities. They're professional leaders in their fields and are required to manage sections of the workplace, especially units covered by their specialist skills, and sometimes whole divisions. But other factors impact as well, and I'll simply briefly list three of them. First of all there is private versus public practice. The reality is that for a salaried medical practitioner by and large they would earn much, much more if they were in the private sector operating as sole practitioners or in small partnerships. Private practices on a fee for service basis is much more lucrative compared to salaried employment. A Doctors Award should at least give some guarantees to those people who are in salaried practice in order to retain them in salaried practice for the benefit of the community at large.

PN284

Secondly there's the question of shortage. There's a nation wide shortage with increasing reliance on what are known as international medical graduates, and the drain of Australian trained medical practitioners into the international market. So at one level we're drawing people very often from Third World countries but also at the same time there's the attraction of the best and brightest to move overseas, so we are in the international market.

PN285

Finally, the third distinguishing mark that I've chosen, is the question of right of private practice. Now, this is an unusual concept that applies to senior salary medical practitioners, the first two categories I name, and it again makes the need for doctor specific awards encompassing all the unusual elements that are included in medical practitioners' employment arrangements, and indeed, sir, you'll see in our draft award we've listed I think incorrectly in retrospect outside private practice. I think it should be just "rights of private practice" because much of the private practice that is undertaken say in public institutions is undertaken within the hospital itself, not just to the benefit of the doctor, but to the benefit of the hospital in terms of the moneys that they are able to access.

PN286

COMMISSIONER SMITH: Why do you say that's a matter for award regulation?

PN287

MR GRIMES: We say that it needs to be mentioned in the award so that when we are returning to the safety net to see what is appropriate and available we at least have some guidance for the bargaining enterprise agreements et cetera that will flow and be based upon the safety net.

PN288

COMMISSIONER SMITH: Is your proposition that it needs to be mentioned so that it can then be bargained for?

PN289

MR GRIMES: Yes. We say that it is a right that is now extended almost universally. I don't know of any cases of senior medical practitioners that don't have a right of private practice, but we say that it needs to be listed on the menu and it needs to be listed on the menu because of all of these other elements that I've been through internationalization about shortages et cetera.

PN290

COMMISSIONER SMITH: I understand that but my question is this, is it your view that unless it's listed in the award you can't bargain about it?

PN291

MR GRIMES: No, I can't claim that.

PN292

COMMISSIONER SMITH: All right, and so why do you say that private practice is a matter for award regulation and not a matter contained in the contract of employment?

PN293

MR GRIMES: Well, in preparing our draft award we surveyed doctors' awards across Australia and it is mentioned in some awards.

PN294

COMMISSIONER SMITH: Yes.

PN295

MR GRIMES: The reason why we didn't pick up the Western Australian provision was that it was (a) lengthy and it was West Australian-specific and so we said it's there now, it's a right that's there now, we need to bring it across. How we do that is still - - -

PN296

COMMISSIONER SMITH: What do you describe as the right? Somebody who is employed full time and is not called upon to perform public duties during that full time employment because they can exercise a private practice?

PN297

MR GRIMES: It usually works the other way round, that they're employed full time and are granted the right of private practice within that full time contract so that if they are a proceduralist (sic) they may have a list once a fortnight where they perform private work.

PN298

COMMISSIONER SMITH: Yes.

PN299

MR GRIMES: Now, remember, when you've had this in the public hospital setting the public hospital wishes to encourage that because it allows them to draw in additional revenues, additional reward to the doctor, but there's additional revenue that flows to the institution as well, and some of you would have been familiar with the recent case at the Alfred Hospital where the right of private practice, the moneys that were generated in there and the way they were disbursed have now become a matter of considerable debate and investigation.

PN300

COMMISSIONER SMITH: So it's permissive of a salary being paid for time not worked on behalf of the employer?

PN301

MR GRIMES: Yes. Of course there's a fine line there too because you may not be doing the appendectomy on behalf of the employer, but at the same time students may very well be observing and you may be teaching. So there is an overlap and that's why we say that doctors need their own specific regulation. There are so many unusual points of difference between them and employees at large. Many points where they reflect the morays of other employees - - -

PN302

COMMISSIONER SMITH: Should we get into the other area of fees charged by hospitals for the use of facilities?

PN303

MR GRIMES: We're not suggesting that at all. We're seeking to incorporate in the safety net award that there are certain rights available to them in the bargaining process.

PN304

COMMISSIONER SMITH: Yes.

PN305

COMMISSIONER CRIBB: Mr Grimes, can I just take you back to the issue of right of private practice.

PN306

MR GRIMES: Certainly, Commissioner.

PN307

COMMISSIONER CRIBB: You indicated that it wasn't in all of the awards or NAPSAs that apply, in the circumstances where the right of private practice isn't there, do you know where it is? Is it in EBAs or contracts of employment or whatever for your members?

PN308

MR GRIMES: It tends to be in contracts of employment, yes. I haven't surveyed all the EBAs to know whether or not it's there because it's the awards that we were concentrating on, but generally speaking it's site agreements, yes, and there's a consistency when you start to look at different parts of Australia about how it's done.

PN309

COMMISSIONER CRIBB: So if it's not in an award it will be in a contract of employment for your member?

PN310

MR GRIMES: Yes, or a further side agreement. But as I say, in the Western Australian case it's clearly, from my understanding, spelt out in the award, but very WA-centric. So that's why we didn't pick it up. We've got more work to do there.

PN311

COMMISSIONER CRIBB: Thank you.

PN312

MR GRIMES: I'd like now hopefully, having pointed out some of the differences that we think are important, just to turn briefly to the other submissions that we've been able to review. To this point we've reviewed some 24 submissions as published on the Commission's website. While not all submissions were clear on the issue of award coverage and some argue for multiple industry awards, we looked to see if there was a clear pattern and I realized when Mr Blake stood to speak this morning that we really performed a similar exercise to what the ANF did, but we looked at the issue through a different prism.

PN313

We looked at it through the prism of what is the type of award regulation that other parties are seeking as we were able to discern from their submissions and what we found was that - and we think we've done this accurately, we're not seeking to do anybody down on it, we think that two of the submissions, one for doctors excluded, 11 submissions called for an aged care industry award with one wanting doctors and nurses excluded and that was the ACTU's submission. We found that three of them were looking for a medical imaging award. We think that there were three calling for an award for pathology services. There were six that we thought made it clear that they oppose occupational awards, that they wanted industry awards.

PN314

Four are seeking award for ambulance services. Five want a general health services award, one excluding doctors and nurses, once again it's the ACTU's submission. Two called for separate public and private awards. I've got two but I think from what I've heard here this morning there might be three of the submissions were looking for award for Aboriginal services. One seeks a private medical practice award, but interestingly enough most of them were silent on the issue of doctors. Perhaps it was just assumed that doctors would be in there, but most of them in our reading didn't specifically mention medical practitioners.

PN315

Three of them, including ours, recognized the need for occupational awards. So we say there's no consistent approach from the employer parties, and indeed, it mightn't be from the parties at all. In part we think this reflects a range of structural and funding arrangements which have been discussed here this morning, but also the disparate interests of the employers whether they operate in the aged care sector or solely provide diagnostic services or operate in private for private hospitals, all of which of course have their own arrangements.

PN316

Most submissions in our view seem to have been made through the prism of their respective business interests and I found it was interesting when Mr Blake was talking this morning that he drew a similar conclusion and it's understandable that people should do that, but it's not necessarily congruent with the Act or the task of the Commission as outlined in section 567B(2). Those submissions that sought to include doctors in industry structures as opposed to stand alone occupational awards seem to have done so on the basis of administrative convenience and not because they sought to address the specific issues that arise from medical practitioners' employment.

PN317

We are pleased that the ANF, the ASU and the ACTU have flagged their support for a medical practitioner's occupational award and ASMOF acknowledges and supports the claims for occupational awards advanced by those parties. I'd just like to spend a moment or two on concluding, if you like, and that is, I've headed it Other Factors, it's firstly that doctors came late to formal industrial regulation and I've already covered that. They did so, they came to industrial regulation because there's a need to provide suitable conditions for a then emerging employee group and in a way that addressed discipline specific issues that needed to be documented.

PN318

Doctors currently have the protection of awards in the Federal industrial system and both the public and private sector. This need has not evaporated. We're not here saying, "Well, it doesn't matter now." We say it does matter now, that doctors have as much need for a safety net award as any other group of employees. Doctors waited years for recognition. The organization I'm representing here today, ASMOF, was formed in 1986 and 1987. It wasn't registered until 8 February 1991. Most of the parent State unions usually date from about the 1970s. So we're relative newcomers in the field compared to many of the other parties.

PN319

Doctors, we say, have a right to the protection of the safety net award and that meets the needs of the group of employees and addresses the particular matters that impact on these workers because of the nature of their work. Award Modernisation process is not about denying employees' rights that they already enjoy, but it's about codifying those rights in an appropriate modern format within the framework of allowable matters established by the Act. Doctors' training, work patterns and work requirements all call for doctor specific regulation.

PN320

Occupational awards are admissible under the Act and reference and our request for an occupational award is supported by the ACTU. Doctors, through their national union, ASMOF, urge the Commission to create a Modern Occupational Safety Net Award for salaried medical practitioners. Thank you.

PN321

COMMISSIONER SMITH: Thank you for your submissions.

PN322

COMMISSIONER CRIBB: Thank you, Mr Grimes.

PN323

MR S MAXWELL: Commissioners, I am from the CFMEU. Commissioner, we put in a very brief written submission and the issues we wish to address you on are those similar to those raised by the CEPU and I also understand a similar submission from the AMWU dealing with the issue of maintenance workers. Commissioner, I don't wish to go further than the written submission and perhaps just to respond to a number of issues that were raised today. Similar to Mr Kentish we will seek exclusion for building maintenance contractors.

PN324

In regard to the issue of the coverage with building maintenance trades as opposed to metal maintenance trades we will state that because the award is the - whatever comes out of the crossover between construction and manufacturing Stage II there was a proposal for an offsite construction award which covers mining maintenance and some discussion about the appropriate name of that award which occurred in the few days of construction. But whatever award comes out of that, it was intended that that award would cover mining maintenance.

PN325

Now, the difference between minor maintenance and major maintenance is that major maintenance involves the structural alterations for a building and the rearranging of forms et cetera.

PN326

COMMISSIONER SMITH: If you go to light towers I'll stop you.

PN327

MR MAXWELL: Yes, Commissioner. Commissioner, in regard to the issue that if the minor maintenance trades were included in any awards in this sector that we have submitted a list of conditions in a submission that we made to the Full Bench to do with authority awards about the appropriate clauses that should be included. Now, I just put one caveat on that and that is a number of those conditions are based on existing award conditions and there may be some changes to those than will happen with the off-site award.

PN328

The only other issue I wish to address you on is in regard to the submissions of the HSU this morning where they sought that the award applied in or in connection with the health industry and the submission that if a contractor were based on site then they should be covered by the industry award and I understand the submission to be that that would not apply to those contractors that were on site on an occasional basis. Our concern there is what happens with the contractors that are engaged on the Royal Women's Hospital extension and the other major hospital extensions that are going on in Victoria at the moment where those contractors may be on site for three years and I'm talking in particular about construction contractors, that we would seek, on the basis of the submission made this morning, we would seek a specific exclusion in the construction industry in any awards that are made.

PN329

COMMISSIONER SMITH: Thanks, Mr Maxwell.

PN330

MR T FERRAN: Commissioners, Ferran, initial T, for the LHMU.

PN331

COMMISSIONER SMITH: Yes, Mr Ferran.

PN332

MR FERRAN: Thank you, Commissioner. Commissioners, the LHMU has coverage of non nursing staff in Western Australia, South Australia, South-East Queensland, the Northern Territory and the ACT with importantly the coverage of enrolled nurses in Western Australia. We also have coverage of ambulance workers in four States and territories. Commissioners, we've been involved in the process or the meetings of the ACTU, processes of the Commission from the word go because of our coverage and our interests.

PN333

We have of recent times become concerned about the way in which the various submissions a multitude of parties in this industry are bringing about the fracturing of any idea of a new modern award for the health industry as possibly one award for the health industry. We had suggested as a union that there should be a logical scope and application for an Aged Care Industry Award, a Hospitals and Health Award and an Ambulance Award and I probably could deal with ambulance at some other time if the Commissioners understand that we're heading up towards lunch if it's appropriate.

PN334

But the Aged Care and Health and Hospitals Awards are propositions that we don't resile from so much as wanting to indicate to the Commission that we're moving on from because, as one of the advocates this morning indicated, we've now got 14 drafts of 14 different awards for the health and welfare services industry and really our union has a view that that is not an acceptable outcome and it shouldn't be an acceptable outcome under the Award Modernisation process.

PN335

So we take the view that this is a once in a lifetime opportunity for the Commission, for the parties, for the industry, it's a once in a lifetime opportunity to do something positive and we've come to the conclusion that we believe, taking into account how fractured the exercise has become, that there should be primarily one Health Industry Award without ambulance officers, and we can talk about ambulance officers, paramedics, where they go, how they're dealt with, whether they're part of emergency services or not, whether they should stand side by side with Police officers and firefighters and work out whether they're all on double time under one award or otherwise at a particular circumstances. So that's got its peculiarities and we don't resile from the fact that our knowledge of ambulance workers and their history and, you know, stretcher bearers since 1923, I think, they're covered by relevant awards, should continue to be covered by their own awards around the country

PN336

But when we see a situation where we have enrolled nurses, registered nurses, ward attendants, health professionals, radiologists working side by side in hospitals and other settings including aged care facilities, then one has to think, well, isn't there going to be an enormous benefit, not only potentially to the workforce, but also to the employers from having one set of uniform bare minimum conditions in that industry? People can bargain and do all their special things on top, no doubt about that. But wouldn't it be wonderful to have a situation where people aren't looking over their shoulder as to whether somebody's on a particular shift rate or a penalty rate or an allowance for doing work side by side in the same sorts of circumstances?

PN337

So we're pretty keen to have the Commission explore the idea of one award for the industry. As I say we're not sort of resiling from the other scenarios, but they look as though they're getting very, very complicated and I think the employers are doing themselves a disservice by, as we advise them not to, fracture the proposals that are being put and ask for their pathology and their imaging and radiology and so forth and it just has become bigger than Ben Hur. So we think that one award is possible in answer to some of your questions earlier today.

PN338

Of course, the Metals Industry Award or the Manufacturing Industry Award, which we're party to, provides one reasonable example of how I think the preferred ACTU situation of an Occupational and Industry Hybrid Award can be examined. We as a union have taken the hard but principle position and difficult position for us all the way through this exercise of looking at the industry of the employer. So in security and cleaning, if they're a security company, they're covered by Security Award. If they're going to be a retail establishment with a security guard, they're going to be covered by the Retail Award, even though we've traditionally had coverage and responsibilities for security guards.

PN339

So we've taken that view that the industry of the employer is particularly important and we don't think it's any less important in health that we all keep in mind what is the industry of the employer. The ANF have a view that they would like the award to extend further as an Occupational Award to employers who are not in the health industry but happen to employ a nurse. Well, you know, we've opposed that approach because we've taken a different approach on principle as to try and substantiate and encourage proper industry awards. We have a view about industry awards. We think they're better in the longer term than occupational awards.

PN340

But if at the end of the day one award with an occupational stream for nurses or for radiologists or for medical doctors or physiotherapists, and if they all need to be streamed, they all need to be streamed. If they're too difficult to bring together I haven't heard anything from anybody this morning that suggests that while it's a complex exercise that particular streams can't be established within the one award. If it's going to take the giving of an occupational cross-industry status to the ANF to get their acceptance of one award we'd encourage them to take that on board.

PN341

We'd also encourage the Commission to take that on board and we as a union would reluctantly, if it's going to solve this problem, we'd reluctantly come on board as well. It's not our preferred position. We have supported industry awards. But we are aware of the significant number of nurses in the industry. We have a lot of enrolled nurses in WA. If it's going to help resolve this question that they get an occupational status, maybe that means an occupational status for physiotherapists working in a fitness centre. Well, you know, so be it, and let's try and move on with a sensible form of award regulation rather than multiples.

PN342

The ANF this morning put up an exemplar award and usefully they provided a summary, Commissioners, which was the Table of Contents of that exemplar award. We've looked at both of those documents pretty carefully, what the nurses have put forward, and we are very familiar with what the HSUs put forward and we've been part of some of those discussions, but frankly what the ANF have put forward are documents that we can't really quibble too much with. As a Federal standard document we consider that there's a few omissions or there's some gaps that could be filled for specific issues, but generally it's a document that adopts Federal standards.

PN343

We're not talking about, or we don't adopt or agree with giving too much credence to awards that come out of Queensland, for example. As a general rule, and we've looked at a lot of these, because they're in a lot of sectors, we have a view that the Queensland awards are deficient, sub-standard and they've been on a good wicket for too long frankly, and that's what they need to get used to, that we do have some Federal standards that have been worked out over a number of years now and find their way into Federal standards in clauses that have been generally adopted by the nurses and by the HSU.

PN344

So there are some gaps and if I can take the Commissioners to the
exemplar - well, no, probably the summary and I think, Commissioners, over the next couple of days people really do need to get down to the tin tacks of what's in these clauses because, as I said, we as a union don't take too much exception to what the nurses have put forward. We think it generally adopts minimum standards that are there reasonable, not out of this world, they're not in another world. They're in our world and we though do see some small gaps and, you know, changes that you could make.

PN345

For example, tea breaks. The nurses put forward two 10 minute tea breaks. In Western Australia we've got seven minute tea breaks. But in the Northern Territory we've got two 15 minute tea breaks. So we'd like as a union to see our members in the Northern Territory continue to receive forever and a day two 15 minute tea breaks, but the nurses have put forward 10s and there's some sevens running around the place and you can look across and probably see that 10s are the most common.

PN346

So again, while we would have a preferred position that 15 minute breaks go in for everybody else, for Northern Territory's sake, we understand some of the realities and that's one where what the nurses have put forward seems to be the most common and I think they've sought to adopt that and so has the HSU in their drafting as well. So we're not trying to sort of pick and choose here. Both unions have adopted Federal standards where possible. The nurses haven't got any provision about on-call telephone rental costs. So somebody's on-call, they pay for their phone, they're expected to be on the other end of a phone, they don't have anything in their award about that, but the HSU have that in their draft and we have that for our enrolled nurses in WA where they get 1/52nd of their rental costs for every week that they're on-call.

PN347

So let's talk about some of the sort of detail in some of these clauses and I think the real challenge is for the employers, some of whom are coming from some pretty sub-standard areas, frankly, to say, what is wrong with these clauses? Because we say that they're pretty fair and they're nothing out of the ordinary. So it's up to them to sort of properly question these. Another example is annual leave where the nurses have put up five weeks and one week for rotating rosters. Well, in public hospitals in WA we've got six weeks and one week for rotating rosters. But the nurses have put five and one. Others have generally got five and one but there are exceptions. There's people who were employed prior to 1990 in WA who get seven weeks and so forth.

PN348

So, you know, there's some sort of giving and taking in this exercise and I don't think the ANF have necessarily tried to cherry pick as much as some people might suggest they have. Another example, the minimum call-out for a casual, two hours for the nurses. Well, we've got three in the Northern Territory and that's important to some casuals to have a minimum call-out, five and two. Another example, I've only go a couple of more I think, the nurses don't have an access to the award clause. A simple matter. We do in the Northern Territory. Some other awards do. Let's probably put one of those in.

PN349

Yes, I'll probably leave it at that because we don't, as I said, have too much exception to what the nurses have put forward as being fair and reasonable minimum standards that are Federally, and that's the important question, that they've been Federally determined. We'll hear a lot about what happens in New South Wales. We all know what happens in New South Wales. That is, over the last 20 years there's been plenty of industry deals to do things through the Commission and that's been part of the system, but they don't necessarily fit with how the Federal system has worked up minimum standards without necessarily endorsing unusual industry deals.

PN350

COMMISSIONER SMITH: In the National Rates Case we had Australia filled in every State except New South Wales.

PN351

MR FERRAN: I can understand that, Commissioner. Commissioner, the other issue that I'd like to touch on is the scope and try to get the nub of the issue because this is where we come adrift with the nurses big time and it's in the scope. If I can take you to their draft exemplar award you have to read the words. We can't just say we've got a problem with the scope. We've actually got to see what they're saying and see, hopefully, to understand why people like me representing personal care workers and assistants in nursing have a problem with what award they should be employed under.

PN352

Clause 4, Application. It says:

PN353

This award applies to the occupation of nursing and shall apply to all persons employed in the classifications and who are primarily employed to provide or assist in the provision of nursing care and/or nursing services. Nursing care and nursing services encompass any care or services provided in the course of the provision of care to persons in need of the medical or health care and/or in need of assistance in daily living.

PN354

Well, how broad is that? That's our problem and Mr Blake knows that that's been our problem from word go, even though I think it's had some slight amendment, that nursing care is just so broad under his definition. He says they only want to represent registered nurses, enrolled nurses and assistants in nursing. Well, our people and people who do have a view about the sanctity and appropriateness of awards that have been doing a good job for their members in our branches say that's just way too wide and, really, it's almost top to bottom coverage because we've never heard the nurses suggest that the provision of care, the person is in need of medical or health care or in need of assistance in daily living is anything other than extremely broad or extremely deep into areas of award coverage that ourselves, the HSU, the AWU and others have dealt with over very many years.

PN355

I haven't got necessarily a solution to it. We've reached some stalemates with the ANF with respect to this. Haven't been able to go further. They've got some decisions from the '80s and '70s, probably the '80s that seem to suggest that nursing care can deal with anything you want as long as it deals with a patient, whether it's provision of a bed pan or otherwise and those decisions under provisions like section 118 and so forth we think have their place, but they're not necessarily or shouldn't necessarily be definitive of how a new Modern Award structure looks.

PN356

They're all right for demarks and things that we used to do. This is supposed to be a new exercise where if the nurses want their own award they should stick to their knitting and look after those people in a particular way that doesn't encourage demarcation every day of the week every week of the year, which in some areas it has. The entry rate issue, Commissioners, we would believe that with our enrolled nurses going to get potentially out of the exercise a massive entry rate increase of about $10 that the rates, as Mr Blake said, are not that necessarily dissimilar as far as the nurses are concerned.

PN357

We believe there are relevant entry rates that can be set with reference to either Certificate III qualified people or Degree qualified people or look at the Federal Health Services Award in Victoria and have a look at the entry rate there and then let's start looking at how those rates can be divvied up, up and down within a reasonable relativity regime that may or may not look like Metals at the end of the day because Metals is Metals and was dealt with by way of generally agreement between the parties of their circumstances.

PN358

So we think that's all possible. If people have difficulty with bringing their classifications into one set of classifications, then potentially they might stay there for a while until we have one of these new work value exercises under the new legislation or however a new Modern Award might be dealt with to fix a problem that we can't fix right now before the Commission makes its exposure draft and final award. So happy to come back to ambulance, Commissioners, but I do understand our friend over here wanted to shoot through before lunch if possible, so I'll leave my submissions on that and maybe come back after the employers have a go.

PN359

COMMISSIONER SMITH: That's right. Hunger has overtaken him, so he'll come back after lunch. If there's something else you wanted to put now?

PN360

MR FERRAN: No, not at the moment, thank you.

PN361

COMMISSIONER SMITH: Thank you, Mr Ferran. We'll adjourn till 2.15.

<LUNCHEON ADJOURNMENT [12.46PM]
<RESUMED [2.09PM]

PN362

MR C SIMPSON: May it please the Commission, I’m appearing on behalf of the Australia Workers Union of Employees Queensland. We have filed some submissions in the matter. The AWUEQs interests in the health and community sector primarily lie in non-government areas. We have significant interest in the public sector, but in no-government areas which is the scope of these proposed areas, with the exception of the Victorian situation as we understand it are in private hospitals and in the aged care industry, and also in the disability care sector which I’ll come to later in terms of the way that has being dealt with in submissions so far.

PN363

In Queensland we’ve had a long history of enterprise bargaining, and virtually all the private hospitals in Queensland have been regulated by enterprise agreements for the last 12 or 13 years. We’re up to about around seven now. In the aged care sector as well the bulk of the industry has been under enterprise agreements now since the 1990s. In terms of the key issues I’ll try and be brief and I won’t repeat written submissions. I’ll deal with issues of scope first and then there are a few other issues I wanted to touch on before wrapping up. In relation to the proposed scope of an award - well initially I will say the AWU does want to address an issue which has been raised a couple of times so far this morning, and a question was raised when the ANF were on their feet in relation to the issue of agency nurses, and whether or not it would be proposed that they would be regulated by an award; the same award as nurses working in hospital settings.

PN364

In Queensland the history of awards is that we’ve operated under a common rule system for most of the last century, as opposed to the federal jurisdiction; and more latterly with the Victorian system moving to common rule awards, that has now become a feature of the federal system, and obviously the model that we’re now moving to is looking very much at that across the board. In relation to areas where the AWUEQ has had an interest, and that is essentially in the areas of operational staff, support staff, environmental services staff and personal care staff in the aged care sectors, all of the awards that we’ve had carriage of, whether it be in the private hospital sector or the aged care or community care sector, or disability care sector, have provided for in their application clauses that they bind contractors and subcontractors performing work in the industry.

PN365

This has been a particular issue for our union, particularly in the areas of contract cleaning, contract catering, and to a far lesser extent a peripheral area is contract security. You are no doubt familiar with the debates that have revolved around this area historically. Some employers will argue that they are actually not part of the industry of health or aged care, but are in fact part of a contracting industry. I guess because we are now moving to a common rule system it’s an opportunity to deal with this issue more clearly. It hasn’t been a problem in Queensland under our awards because our awards have dealt with it in that way. They’ve done it, even though the common rule awards have historically, we would have always said, covered a worker who is performing work in callings such as cleaning, catering. If they’re working in that facility they’re in that industry. The Queensland Commission over a period of 20 or 30 years made sure that that was clear by including those words in application clauses. So it hasn’t been an industrial question at least in that state jurisdiction.

PN366

My union’s experience has been that where primarily when you’re talking about a clause for employees to perform cleaning work on a service contract basis, they embed in the industry; they perform contracts on a long-term basis. Sometimes those contracts come up for retendering and they’re successful in regaining those contracts, sometimes many times over. They are generally for at least a minimum of three years; often the same company will hold a contract for 10 or 20 years even. So what happens then is that the employees who work for that employer will often work in the same hospitals cleaning the same wards, some alongside other workers who are directly employed for many, many years; in some instances 15, even 20 years. Our experience has been that sometimes when contracts turn over the employee will follow the new employer who has picked up that contract. So even though they might actually work for a different employer or a number of different employers, they are continuing to work in the health industry, performing work as part of the health industry for extended periods of time; for decades or periods that clearly would qualify them for things like long service leave.

PN367

So I guess what we submit is that this issue should be dealt with when we develop the scope clause to ensure that we don’t have a situation where workers who are currently working in the industry are potentially disadvantaged or have their job security disadvantaged by having one award which might purport to cover another industry applied in the health industry, and provide for terms and conditions that are in theory. Because in labour intensive areas often the labour itself is the most important component of a business’s commercial success or otherwise, and hence it’s a major issue in terms of workers’ ability to have fair wages and conditions and not have those undermined by potentially having differing sets of terms and conditions applying. This is by no means a criticism of the industry players in those settings, but it’s a reality. It’s an industrial reality, certainly where my union has had experience in Queensland that the reality is the Health Award conditions are just superior to the conditions that have applied more generally in areas like commercial contract cleaning in commercial buildings that might otherwise apply to an award that would cover contract employees working for a contract cleaning company.

PN368

So we put some language in our submissions that seek to repeat the Queensland model. If that itself is problematic, and I would identify that it may be problematic for certain other classifications of employers who have arrangements that are dissimilar to that for the areas that the AWU has traditional experience in, then other potential models of dealing with this issue could be looked at, such as for example providing for an application clause that covered employers whilst performing work in the industry, and for their employees whilst performing work in a classification described in the award, in a setting described in the award. So it could be a series of tests; but you need to be an employer who is engaged in providing a service in the industry. So for the time that you’re doing that you’re bound by the award. You need to be employing labour who is performing work in a classification in the award, and for such time as those arrangements are occurring, that the award would bind you. That would protect against a situation where essentially you could see a current workforce have their conditions threatened by the introduction of a different system to the one that exists, at least in Queensland at the moment.

PN369

The only other potential alternative to remedy that situation, which is not our preferred solution, would be to ensure that where you had another award that sought to apply to labour that was working in the health industry, as I’ve said for long periods of time, then that other award would have to provide for conditions that were the same as, or as beneficial as, the conditions that would apply in the Health Award whilst labour is performing work in that industry. If this issue is not addressed then we can’t see any other scenario but that the workforce that is currently employed in performing this work in health settings could have their conditions and their job security undermined by the process. In relation to the question of how the Full Bench seeks to break up the industry, and I know this question has been put to each of the people who addresses the Bench this morning, the AWU in our written submissions has adopted essentially the same position as the Health Services Union and the LHMU in relation to support for a General Health and Medical Award. But we have also supported the creation of an Aged Care Award. We have listened to the arguments put by those unions and we have no interest in the area of people in the ambulance industry, in that area. However, on the basis of the arguments, as it were, we don’t have any objection to a third award being created in that area.

PN370

In relation to the question of why would we support that? I guess our experience has been that we recognise there is a community of interest in aged care where relationships have developed, certainly from our union’s experience, over a long period of time. I think that’s reflected by the fact that in the submissions that have been made to this Bench the majority of employers in the industry are common in the view that there should be an award to cover that industry. The majority of unions are as well, with the exception of the ANF, and I recognise the submissions put this morning by Mr Blake. Not all unions who support an Aged Care Award are completely at one about what that award should cover. But the majority of unions support the principle that there should be an award for the aged care industry. I think this is probably also reflected by the way the industry has organised itself, certainly in the enterprise bargaining. Since the advent of enterprise bargaining this has tended to be the way, from our union’s experience, employers in the industry have sought to, rather than confine themselves to bargaining on the basis of awards that they have been variously respondent to, they have sought to create agreements that reflect all of their workforce commonly, at an enterprise level which more broadly reflects than an award might provide. So to some extent this is the way the cards have fallen.

PN371

In relation to the question of what an Aged Care Award should cover, I guess we flagged in our submission that we don’t necessarily share the view, and we’re not completely clear on the final boundaries because this is a complex process and it’s moving fairly quickly. But there is a concern we have about the community care sector not being covered by an award that covers the aged care industry, as this has not reflected our understanding of the way the industry works, at least in Queensland. A good example of that I think is the largest employer in Queensland, Bluecare in the industry, who employ over 8000 staff. Of those 8100 staff I think about 4500 are working in residential aged care, but a significant minority, over 3000, are working in community aged care. So we’re not convinced that saying if there is to be an award that covers the aged care industry that the award should actually cover residential and not community is the way to go, because often times or many of the employees in aged care actually work in both areas of the industry. So that’s been our experience, whether that be performing work in-home respite or under the packages that provide for community care. We have dealt with that question in our submissions.

PN372

I guess the other question in relation to that is if you were to go down the path of seeking to say “All right, well let’s put the in-home or community care under another award other than an Aged Care Award” where would it go? We all know there is a very large industry, a lot of which is regulated by the Social and Community Services Award or various awards around the country. In Queensland there’s a federal award that the ASU created back in the 90s and at the same time our union created an award called the Disability Support Workers Award that covered people performing personal care work and other support functions, while the Social and Community Services Award provided coverage for people in professional roles, and managerial roles and administrative roles, and social work roles.

PN373

So you’ve got that pattern of award coverage at least where we are. So that does not reflect a proposal, or that history of regulation the way the industry itself has arranged itself, does not reflect an arrangement where you would just sector off in-home and community care and residential aged care, and then say it can go under an award that has been traditionally a SACS area. Because that has not reflected the way arrangements have worked, in terms of who employers employ, in Queensland anyway. We flagged that issue for the Bench’s knowledge at least, so that you know we don’t think there’s necessarily a clear relationship between those groups.

PN374

The other concern we had is the issue that was touched on by Mr Ferran on behalf of the LHMU in relation to the issue of scope of nursing under the proposed ANF draft. This is this long tortured question of assistant nurses versus personal care workers or aged care workers. The same problem that has been existing in various states around the country has also been apparent in Queensland. We flagged in our submission concern - I think Mr Ferran took you to the scope of the proposed ANF Award. Certainly he’s done that, and I don’t need to do that as well, but I also would have taken you to or will take you to the ANF draft scope clause in the Occupational Award. At schedule A of the award, at clause 1.7 of schedule A, there’s a clause titled Labour Flexibility and it seeks to provide some clarity for what is intended to be incorporated within the scope of what an assistant in nursing does. If you look at clause 1.7 paragraph D it says “Subject to paragraph A” which merely says:

PN375

The primary duties performed by the assistant in nursing, being the delivery of direct care to occupy no less than the majority of hours for which they are employed in any 28-day cycle.

PN376

It says:

PN377

An assistant in nursing may perform duties associated with a resident’s wellbeing and comfort including functions of a laundry, kitchen or other personal care nature.

PN378

Which I guess exemplifies the problem. That pretty much describes most of what our awards describe and the work we have constitutional coverage for. We have a long and sorry history in Queensland of disagreement around this, particularly unregulated care work. There have been a number of protracted cases about this that the Queensland Industrial Relations grappled with over the years. I think without going on about the history of those, I think there were three of four Full Bench cases in the late 90s and early 2000s that grappled with this issue. It presented difficulties for the AWU and the LHMU because we have personal care work provided for under awards that we have carriage for in Queensland. But of course what has happened in the industry is that there has been a significant blurring of the lines of what was once a bit clearer in terms of the old funding arrangements that existed, when we had CAM and SAM in residential aged care. Now there’s a blurring between high care and low care work and I guess what became evident from a lot of that was that it’s very difficult to distinguish the difference between the work being performed by the different classifications of the work, as described under different awards. There’s a pretty good argument to say it’s almost identical in many cases.

PN379

The problem with that is that ..... if that’s the case. So I guess to summarise the point, the situation in Queensland at the moment is what determines whether you’re an assistant nurse or a personal care worker isn’t so much determined by what you do; it’s which part of the cell you’re working in. Now the proposal for the draft as it is put by the ANF does not really deal with that. It really, I think, proposes to maintain a Chinese wall which is industrially respected in Queensland, at least to try and avoid demarcation and thankfully that has been reasonably successful. That’s not the point though.

PN380

COMMISSIONER SMITH: I was going to say, isn’t the problem purely identified as to responded it to?

PN381

MR SIMPSON: Well the problem is the cases, Commissioner, have not dealt with - in Queensland anyway - the question that the work is basically the same but we’re continuing to call them two different things.

PN382

COMMISSIONER CRIBB: Historically that’s probably because of instruments that have been formed.

PN383

MR SIMPSON: That’s right, and so really I guess the issue isn’t about that, and I’m not here attempting to run a demarcation argument but what I’m saying is if you’re going to set wages and conditions, they have got to be the same if the work is the same.

PN384

COMMISSIONER SMITH: Yes.

PN385

MR SIMPSON: That’s the point. So those are really the issues I wanted to touch on in relation to aged care. In relation to the hospital setting, as I said the AWU has a long and successful relationship in Queensland. All of the hospitals in Queensland essentially have had a long history of enterprise bargaining. We don’t think we have any problem with the proposal to create an award that incorporates hospitals and other areas as described by the document that has been proposed by the HSU. I don’t think it’s difficult to mount the argument that there is a multidisciplinary nature to the way work is performed in these acute health care settings, which sort of undermines and argument, I think, to segregate out certain callings of work under different industrial award regulation.

PN386

That's all I'll say on that, I think that's been dealt with by the parties. The other issue I wish to touch on was in relation just to the question of superannuation, though this question is being dealt with more broadly by the Full Bench, but we have putting the submission that we have a very large industry fund in Queensland called Sunsuper who many of our members pay and we are seeking to put the submission that if the award in health is going to specifically name industry funds then we would submit that it should be one of those. If that isn't going to be the approach then that problem isn't apparent. But if you are going to specify certain ones we would argue that it should be there because many of our members are party to it and rely on it, and there is no real equivalent to that fund in terms of the size and scale, the breadth of its coverage in the state of Queensland.

PN387

COMMISSIONER SMITH: They've made extensive submissions to the Bench, Sunsuper.

PN388

MR SIMPSON: Yes. I don't have anything further.

PN389

COMMISSIONER SMITH: Thank you Mr Simpson. Yes, Mr Harvey?

PN390

MR HARVEY: Commissioners, Keith Harvey for the Australian Services Union. Commissioners, the ASU has made written submissions with regard to the health and welfare industry in these matters and continues to rely on that submission that has been filed. Commissioners, the submission deals with the interests of the ASU in the health industry, and clearly although the ASU is not a dominant union within the industry it does have a very significant interest in the sector, especially in Queensland but also in other states and territories. In Queensland the ASU is the principal union with respect to clerical and administrative employees in the health sector and has specific award coverage for private hospital employees, clerical and admin employees, as well as in the public hospital and also in the aged care sector.

PN391

In addition, Commissioners, the ASU has coverage of clerical and administrative employees in other parts of the health industry in other states and territories, and that's detailed in the ASUs written submission which I won't repeat here. But a certain number, a significant number of employees in the industry do rely on the safety net of award terms and conditions of employment established by the union, by the ASU, and a principal objective of the ASU in the award modernisation process is to ensure that this safety net is not diminished in any way.

PN392

The ASU also has significant membership and award coverage in the social and community services sector as well as in the local government sector, both of which have an intersection with the health and welfare sector. Now, this particular part of award modernisation, as you'd be well aware, Commissioners, is now known as health and welfare other than social and community services. So one of the things we have addressed in our submissions and also attempted to resolve with the other parties is what is the intersection, what should be in health and welfare other than social and community services and what should be in social and community services.

PN393

And we originally drafted a list of awards which we thought shouldn't be in this sector, we circulated it to the other unions and to some employers and attempted to reach agreement on that. We have in fact reached agreement as far as we can see with the other unions. The LHMU in their submissions supports generally the list of awards that the ASU propose to be excluded from this particular process and be considered in the social and community services sector. They did flag in their written submissions some qualifications with regard to family day care, but other than that, as we understand it, they're happy.

PN394

We have had some discussions also with Jobs Australia, and we have reached an agreed position with them as well, and Jobs Australia have submitted that agreed position to the Commission, and it appears on the website. In any event, Commissioners, I think the Commission has in fact done the same exercise, and I think there's only one award which appears on the list, I might say the ASU Jobs Australia list, which should be dealt with in social and community services sector which still appears in the Commission's list. And just for the sake of completeness I think I should mention that. It's an odd little award which I still don't quite understand, but it's the Clerical and Administrative Employees (Catholic Personal Carer's Leave) Award. It's a New South Wales NAPSA. The number for reference that each care award have only in the - I think they call it the ancillary classification structure, it's only a very rudimentary classification structure that's even proposed there, doesn't deal with clerks and administrative employees. The only thing it's got there is a couple of levels for home care workers as we read it.

PN395

So we're strongly opposed to the setting of rates and pay and other terms and conditions for home care workers based on an aged care context only. We have similar but different, slightly different concerns about the classification structure proposed by the HSUA award in aged care as well, which not only mentions social work and welfare aids. It's right down at the bottom of the scale in level 1 of the support stream, but also seeks to have classification structure for professional care workers, which has already been mentioned is obviously a key classification in the home care industry.

PN396

It's clearly, Commissioner Smith, as you've just pointed out, it's an inter-related thing covered by awards of this Commission and NAPSAs created by a number of organisations including ASU and others, and we don't think the safety net in that sector should be determined in isolation from others. In the draft Aged Care Award of both HSUA and the aged care employers there is an exclusion for aged care provided by local government. We support that exclusion. The work is covered by local government awards and we submit strongly that those local government awards should continue to provide the safety net for employees in the local government sector where they're providing residential aged care.

PN397

And clearly following on from what we've just said, home and community services provided by local government are also covered by local government awards and, again, the safety net should remain, the local government award, and depending on what happens in local government between now and stage 4, if awards, modern awards are made covering local government employees we'd say that they should be providing the safety net for aged care provision and home and community care services provision as well. There's possibly still a bit of water to go under the bridge before we get to that. I'm looking forward to next year or the year after.

PN398

Now, in terms of award coverage generally, and I think these proceedings, and the ASU is becoming - we're in the veteran class now in the award modernisation stakes, having filed 37 different written submissions and appeared I think in almost all of the consultations.

PN399

COMMISSIONER SMITH: Your steak knives are almost due.

PN400

MR HARVEY: Thank you, Commissioner. In the ASUs written submissions it states that the ASU does not propose to make specific submissions about the particular array of awards which ought to apply to the health industry generally. And it's already come out today that clearly the employers have made a range of proposals for a number of awards. I have lost track but I remember the number of 14, and I'm afraid I can't remember whether that included the union awards as well, but there's a significant number of employer awards. I just make the point that the ASU would have an interest in all those awards in all these sectors unfortunately, or fortunately, other than of course an occupational award for nurses or an occupational award for doctors.

PN401

But if we're doing this by the industry I can't actually find any sector, including the ambulance sector, that the ASU doesn't have an interest in, although our ambulance interest is restricted to New South Wales, as I understand the employer is a public sector employer in that case so it probably wouldn't be touched. The point of the submission is to say that we're in all of the sectors, whether you're talking about private hospitals, imaging, pathology, doctors, dentists, the whole range of it, the ASU has an interest in them all and award coverage with respect to them all.

PN402

The unions have now as well, as been made apparent today, a number of unions have proposed a number of awards. Again, HSU award in aged care and hospital and medical services and ambulance services, and we're again interested, and all the award areas that the unions have proposed other than of course the sort of nurses and doctors occupational unions. But we note - and I'll come back to the fact that the ANF and salaried medical officers have proposed occupational awards. Looking specifically at clerical and administrative employees, which is the main game for the ASU in the health industry as such, coverage is obviously mixed. As I said before, we're not a dominant union and we share this coverage with the HSUA.

PN403

The HSUA is the majority clerical and administrative union in hospitals except, as I said, in Queensland where we are, and membership coverage in other sectors around the country depending on which one you look at is mixed. We've said in our written submissions that the preference of the ASU is for our existing safety net of terms and conditions for our area of membership should continue to be based on the existing safety net provided by ASU awards. In the original priority around awards we propose for example that with regard to private hospitals in Queensland we thought that since there was an ASU Private Hospitals Clerical and Admin Award in that state we would bring that in to the occupational Clerical Award as a particular schedule with particular, you know, terms and conditions for those employees. That proposal hasn't got up yet, but that still remains our primary position.

PN404

The ASU strongly supports ACTU policy with regard to the continuation of occupational awards where that's the preference of the union concerned. The ASU notes and agrees with the support of the ACTU in its written submissions for occupational awards to apply to nurses and salaried medical officers. The ACTU's original submission which we quoted in our written submission was that the making of modern awards should not have the effect of extending the scope of a modern award to include occupations that have been traditionally covered by broad occupational industry awards without the agreement of the relevant union, and the ASU strongly supports that position.

PN405

As would be well known, the ASU has strongly supported occupational awards for clerical and administrative employees, and the Full Bench of this Commission charged with the job of award modernisation has created an occupational award for clerical and administrative employees in the private sector and, as I said, the ASUs preference is that this award with suitable industry sector adjustments be the vehicle for providing a safety net for its members of the health industry especially in Queensland. However, as I've said, the coverage of clerical employees in the various sectors of the health industry however you dice it up and deal with it is mixed amongst unions and awards. So in the circumstances if a distinct Clerical and Administrative Occupational Award cannot be achieved for clerical and administrative employees in this industry the union submits that any sector awards should not diminish in any way the safety net or ASU covered clerical and administrative employees now or in the future.

PN406

The ASU is opposed to any form of averaging or packaging or so called swings or roundabout approaches which may result in a reduction of the safety net terms and conditions for existing employees or future employees. We also submit that the awards of the ASU must be taken into account in determining the level of the safety net, and if organisations are to be parties or covered, or whatever the terminology is going to be in the future the ASU should be noted and be a party to any modern award which provides terms and conditions of employment for employees previously covered by awards to which the ASU is now party.

PN407

Now, Commissioners, in the circumstances and given the large number of awards that have been proposed, at this stage the ASU has not been able to analyse each proposed modern award against the existing terms and conditions of the underpinning ASU awards. In an ideal world it might have been a good idea to do that, but with the array of awards facing us that's not been possible. There's simply been too many proposals and too many existing awards to make it practical in the time available, and probably it best left ultimately to a more forensic and closer examination when the final array of awards in this sector is made, and we will certainly be doing that.

PN408

But we have begun making comparison with the following awards of particular interest to us, that is, in aged care, both the award proposed by the employers and the HSUA, the Private Hospitals Award as proposed by employers, and the Hospital and Medical Services Industry Award of the HSUA. We'll be doing that in conjunction with our Queensland branch which has the most significant interest in these areas. And I intend to make the results of that analysis available to the Commission as soon as possible and hopefully this week. I know if I ask for any additional time I won't get it, but we will do that. I have the information in a certain form at the moment but it's not that user friendly, but we will put it to the Commission in a way which I hope will be helpful to the Commission in determining what the content of any exposure draft award should be in those areas.

PN409

But I think it's important to note that we do have significant concerns already with the two awards proposed by the employers with regard to aged care and private hospitals. In aged care the concerns relate to Saturday and Sunday rates, hours of part time employers, intervals and rest periods between shifts, how overtime is paid, shift penalties for afternoon shifts where the Aged Care Award is lower, arrangements for personal leave and, in particular, classification structures and rates of pay which appear to be absent for clerical and administrative employees at the moment in the Aged Care Award, so we're not really in a position to sort of say anything about it, but it's not there at the moment so it's impossible to do any analysis.

PN410

With regard to private hospitals there's a significant number of issues. For example, as we read it, the casual loading is 20 per cent proposed in that award and not 23 per cent as applies in Queensland, and compared to the 25 per cent which has been the standard casual loading in the priority round awards. There's issues for us with regard to when higher duties allowances kicks in. Again, the break between shifts, again, payment of overtime and afternoon shift penalties, but also rates of pay which are included in the draft of the Private Hospitals Award and which in all cases are lower than the awards, the rates of pay which apply to clerks now under the Clerical Private Hospitals Award in Queensland.

PN411

As I said, Commissioner, we'll flesh that out further. The ASU has fewer concerns with the HSUA drafts, but I'll just flag at this point and that we'd seek to have further discussions with them about it. We have concerns about the proposed transition arrangements which they specifically put in their Hospital and Medical Services Industry Award with regard to people covered by our award in Queensland, and we'll seek to discuss that with them, and also with regard to the classification structure which is simply completely different, and I've asked our branch in Queensland to look at it, and they say it's simply not comparable at this stage. We can't sort of readily identify in their structure where our people would fit.

PN412

In any case I think I'm correct in saying there's no rates of pay in that part of the HSUA classification structure, so it's a little difficult to know whether we're comparing apples with oranges. So we'd seek further discussions with them about that because whatever comes out of this we don't think that classification structure adequately provides for clerical and administrative employees that we represent. We also do have some issues that we need further discussions with them again about minimum engagements for part timers and casuals, hours of work for part timers and spreads, but again that can be done more forensically in the event that exposure drafts are released on 23 January next year I think, Commissioner.

PN413

However, Commissioner, as I said before, the ASU strongly supports the submission of the ACTU in this matter and in previous submissions regarding the right of occupationally based unions, including the ASU, the AMWU and the specific context of the health industry, the Nurses Federation and the Salaried Medical Officers to maintain occupationally based awards if that's what those unions judge to be the best thing for their members, we support that. The Full Bench has created a modern occupational award with regard to both the private sector clerical area and the metal trades, and the ASU sees this as both in keeping with the Award Modernisation Request and a modern and efficient way to create awards to provide for the needs of specific occupational groups.

PN414

These types of awards also have the support of employers in a number of industry sectors, although this does not appear to be the case in the health industry. Now, Commissioner Smith asked my friend and colleague Mr Perica this morning, you know, a question about, you know, whether or not it wouldn't be possible - or perhaps I'm putting words in your mouth, Commissioner Smith - whether it would be desirable to create a whole array of occupational awards in the health industry. And we would say, if that question was asked to us, that that is actually a perfectly legitimate - - -

PN415

COMMISSIONER SMITH: I don't think that's what I put. I said was it possible to create one award on an occupational basis?

PN416

MR HARVEY: You mean one award just representing all the particular occupations within the industry? In that case that's not a question I want to answer then.

PN417

COMMISSIONER SMITH: All right. You give me the answer you'd like.

PN418

MR HARVEY: Well, I misunderstood the terms of your question, but I think you went on to say, you know, Commissioner, for example, that the sort of introductory, you know, safety net rate of pay for example, you know, ought to be the same, you know, across a number of sectors. And we have thought about the health industry as we've thought about other sectors. The ASU has been accused on a number of occasions in this process of sort of, you know, having a sort of a blinkered view or only one view about this, but we do think that there is a sort of a horses for courses approach in this.

PN419

Clearly as I've already said today, we support an industry award in local government. That's traditionally been the way local government has been structured with a single award, although in some cases AWU has different awards, a couple of states for blue collar workers, but there's been an industry approach in that, and an industry approach which has worked well in the past, we say that should be continued. Equally there's an occupational base which has worked well. We say that ought to be continued as well, and not for an arbitrary or unsubstantiated reason doing it somewhere else. And this has been touched on in a number of submissions today about, you know, why you would have an industry award or why you might prefer an occupational award. And because we've been, you know, confronted with this issue in a number of industries we've thought about this as well.

PN420

Clearly in the health industry the health industry is broadly focused on the one objective. It's the best possible outcome for the patient or the client or however you might express that. And that's true. So the whole industry is focused on a particular outcome. But in our submission it does so by bringing together a collection of highly skilled occupational groups all dedicated to the same purpose but working within specific disciplines and occupations. We would say that these complement each other obviously and completely but don't really overlap in the work that they do. They might do it in a similar setting or in a variety of, you know, similar settings or in the one setting, but they don't do each other's work in the same way as might occur somewhere else.

PN421

I was trying to think of some way to sort of express in a short way what we're saying about this, but I think you could submit that in this industry in particular because of the critical nature of all the work of all the occupational groups that perhaps you could say that for some of the occupational parts in this industry is possibly even greater than the industry as a whole, which might sound a bit contrary to what the normal thinking of it but, you know, some of the parts are greater than - sorry, industry is greater than the sum of the parts. But in this case each occupational group, whether it be a medical records clerk represented by the ASU or the HSUA or a doctor or a nurse or a pathologist, must perform to the maximum level of skill and excellence to achieve the best possible outcome for the patients. But they don't do each other's work.

PN422

If you look at another industry that the ASU is particularly interested in, for example the airline industry, again we have a series of clearly defined occupational groups and people get into that via training for that occupation. So an airline pilot is trained to be a pilot and not an airline industry worker. He or she can't do the work of other occupations within the industry. And even though the pilot has to fly the plane, the plane can't take off without a clearance from the load control clerk that we represent or from the licensed aircraft engineer.

PN423

Each person, each occupational group must play their role to ensure a safe life in that case and they don't do each other's jobs. The same we think can be said by analogy or by direct reference to the health industry. Excellence and outcomes, we submit, won't be achieved by a blurring of the role. In this industry we're not looking for multi skilled or general workers and maybe in the same context looking for the same outcome, but we don't want clerks doing nursing work or vice versa, or doctors acting as pathologists. We want the best possible standard of training, care and performance from each of the occupational groups which make up this important industry and the ASU supports an award structure which will best deliver this in the interest of employees, the industry and above all the community which relies on all the services provided by each and every occupational group provided in this critical industry.

PN424

From a union point of view, Commissioners, and in conclusion, we support the best array of awards which provides the best possible safety net for employees within the context of which I just mentioned and we will oppose and continue to oppose any diminution of the safety net or the structuring of awards in the best possible way to provide the best possible outcomes for employees, the industry and the community. If the Commission pleases.

PN425

COMMISSIONER SMITH: Thanks, Mr Harvey. Yes, Mr Warren?

PN426

MR R WARREN: Thank you, Commissioner. Can I start at the outset with some minor housekeeping matters. The Commission will note in the submissions of AFEI at clause 37 that it is put that AFEI does not object to the establishment of an award for nurses not otherwise covered. Indeed, we put it one step higher than that and at the AFEI indeed proposes the establishment of an award for nurses not otherwise covered by an industry award and we would seek to amend the submission accordingly.

PN427

Furthermore, and in an area that no doubt is acknowledged to you, Commissioner Smith, in paragraph 41, the Contract Call Centres Award case is cited. Can I merely just correct the citation there with respect to the paragraph numbering. It's paragraphs 51 and 52, not 50 and 51 but the words are the same, yes. Commissioners, we don't repeat our submissions and we rely upon them, the written submissions. Can we say this, the AFEI has identified a distinct area of industry, admittedly a disparate industry where it is seen to be and put to be appropriate to have a nurses not elsewhere included award established.

PN428

Can I hand up a document, please, and can I say, Commissioners, that the documents I'll be handing up we've undertaken to provide soft copies to the Commission within, say, 24 hours so they can be provided on the web page. The document that's just been handed is a list of some 11 awards. It is those 11 awards, most of them NAPSAs, some of them Federal awards, that it is put would be subsumed by the proposed Nurses Not Elsewhere Included Private Sector Award 2010. If I could hand up another document. A draft award was submitted. There is an apparent error in that draft award and this is a replacement draft award. The only change is on page 9 at the top of the page, clause 13.3, the second paragraph of clause 13.3 has been added which describes:

PN429

Exclusion clauses as to the employment of casuals so as to make it consistent with both the submissions put and the application of casual employment and the loading for casual employment as described in 13.2.

PN430

I will describe later the way that much of the suggested draft award has been established and where it has been drawn from. We say we've identified a particular part of industry and we say it's this. Consistent in each part of those relevant awards that we have tendered a list of, consistently, invariably only a single nurse is employed. There may be occasions where there is more than one nurse, but it would be the extreme exception rather than the rule.

PN431

The Nurses Other Than In Hospitals Award in the New South Wales area covers nurses engaged in, for example, doctors' surgeries and we say invariably in a small doctor's surgery or a doctors' surgery there may be one nurse engaged, there may be no nurses engaged and that nurse indeed may perform even receptionist duties, but indeed, that is the principle area of the Nurses Other Than In Hospitals NAPSA, non government schools, a nurse may be engaged in a non government school and may even be in a residential capacity and indeed, that NAPSA provides for such a circumstance.

PN432

Occupational Health Nurses are principally engaged in large industrial complexes and may indeed, and invariably, we say, also are engaged on a single capacity. We then move to a further limitation or a further description of why these nurses are employed in different areas and fundamentally the work of these nurses is not engaged and can never be described as being engaged in a hospital context and it is clear to us that the proposed award by the Nurses' Union is an award that is structured around a hospital environment and fundamentally different work occurs in these disparate areas of employment that we've described in those various awards and NAPSAs that would be the type of work that a nurse in a hospital or indeed in an aged care facility would perform.

PN433

Furthermore the hours of work would be fundamentally different in a hospital or an aged care facility. A nurse may be required to be rostered seven days a week, 24 hours a day at whatever those particular rostered times are. In these, invariably, the terms of engagement and hours of work would be significantly less than that as to requirements for working shift work or the requirements for working on weekends. However, of course, that may be different with respect to nurses other than in hospitals where you've got a doctor's surgery opened on a Saturday morning or, indeed, increasingly times when doctors' surgeries are opening now for extended periods of times and into the evenings. That of course also would be relevant for occupational health nurses.

PN434

We note also that child care centres and day care centres are included in the sweep of awards that we are subsuming into this award and clearly those centres do not operate 24/7. Furthermore we see the award that is put forward by the nurses as in essence a career occupation award, an award that moves nursing, whether they're at an enrolled or assisting in nursing stage and moves that nurse through that particular environment and we say once again structured largely towards a large hospital or hospital like facility.

PN435

So there are four areas that we put to the Commission that clearly are not apparent or are apparent to the distinction in the type of nurses that we are dealing with in the Nurses Not Elsewhere Included Award proposed and they are nurses certainly engaged in various and disparate areas of employment and they are all covered by the types of employment envisaged in our proposed award. We say the award clearly meets the Minister's request. It is an award that has regard to a number of award issues. It is an award that clearly has regard to reducing the number of awards in industry and it is an award that creates a sure and safe safety net with respect to employment conditions.

PN436

This Commission is faced with what could be said to be an impossible task. When the Minister’s Request says that:

PN437

It is not the intention that the modern award will not disadvantage any employee nor will it increase costs for employers.

PN438

If that be the charge, that be the charge but this Commission is faced with having to have to exercise, in essence, the Wisdom of Solomon to meld awards together and at the same time meet those two aims or objectives. The AFEI have attempted to adopt what could be said to be a balanced approach. A balanced approach in attacking this issue and tackling the problem, and could I hand up another document please. I think this is the last one. This document is a spreadsheet which attempts to highlight some principal areas of award coverage. The awards listed across the top are also found within the document I’ve handed up headed Relevant Awards. There are, simply for space reasons, three awards not included in that. That’s the Nurses and Non-Government Schools State Award NAPSA New South Wales, the Victorian Independent Schools Nurses Award Victoria and the Doctors and Nurses Northern Territory Award - sounds like a game one once played - and that award is not included as well, for no reason other than trying to get a document that is in some way manageable.

PN439

I won’t laboriously take the Commission through that document. It is apparent and it’s hopefully as accurate as we can make it. I could highlight a couple of points though. The Nurses Other than Hospitals NAPSA, which is the third column from the left, one will see on the first page that a casual there is currently engaged on a loading of 10 per cent with a minimum three hours’ engagement. If one turns to the casual engagement in the AFEI Draft Award on about the fourth page through, you will see that the casual loading is described as 25 per cent. So clearly there is a significant increase there, in line with the Commission’s suggested clauses or penalties. But indeed the minimum engagement has been reduced from three hours to two hours so there’s a give and take there. One sees the spread underneath the casual loading of the various shift penalties. Here in the AFEI Draft Award a shift penalty for every hour worked, as opposed to the whole shift, is described as a 15 per cent loading for all time worked between 6 am and 7 pm. One then looks to the Nurses Other than Hospitals, it was previously at 10 per cent then at 15 per cent, afternoon, night shift and there are various night shift or afternoon shift loadings described, which I won’t go into.

PN440

But once again we say that clearly demonstrates the balancing approach that AFEI have attempted to engage in, in coming up with an award which is a fair safety net award, and there are pluses and minuses involved. Without such an approach we say, with respect, the Commission is faced with an impossible task. If it is to amalgamate awards into one, ten, however many awards end up being the resultant, there will of necessity be pluses and minuses. Because all awards or old NAPSAs that are drawn across the country; when one tries to amalgamate those, there are some awards that give better penalty rates or faster, crueller penalty rates and overtime, yet a lower penalty rate for shift penalties, or whatever the case might be. That is, we say, an impossible task to say an employee will not lose and an employer will not spend more, and then at the same time not have some sort of a practical approach. The only other way to do it is to keep the awards where they are, and that’s not an option, and that’s the task that is before the Commission.

PN441

So we say that the Nurses Not Elsewhere Included Award that is described identifies a particular area of employment ie. employment of nursing staff invariably on a singular basis in areas, leaving aside the medical practices which are not traditional health areas of employment, within the mainstream health industry, such as hospitals, nursing homes et cetera, and it caters for a need for employment of nurses on a singular basis. I note the exchange that has been between Commissioner Smith and various parties here today as to “Well, couldn’t there be a single award?” We must rise to that bait, and we do. There could be a single award; it depends on what it prescribes, which is stating probably the bleeding obvious. If the award described NES conditions then no doubt we could all live with a single award which was a fair safety net award. If that isn’t to be the case, one thing is for certain; the award that is put forward by the nurses is not a fair safety net in all the circumstances.

PN442

One only has to look at - and I’ve got no doubt that my learned friend Mr Boyce and others will attack this, maybe even in more detail - but one looks at, for example, annual leave. Five weeks’ minimum annual leave and it can grow to six. If one looks at time off in lieu of overtime, it’s at the penalty rate rather than the flat rate. Weekend penalty rates are significantly in excess of that which is prescribed in the Nurses Not Elsewhere Included Award suggested, which is an amalgam of pluses and minuses. Paid maternity leave of nine weeks, and this isn’t even going to the classification structure and indeed when one looks at, just for example in the classification structure, in the current NAPSA Nurses Other Than In Hospitals Award, which applies in medical surgeries, for example, has a definition of a registered nurse as “A person registered by the Board as such’. That’s fair. “An enrolled nurse means a person enrolled by the Board as such”. That’s fair. “An assistant in nursing means a person other than a registered nurse or an enrolled nurse who is principally employed in nursing duties”. One could well imagine a person engaged in a doctor’s surgery who was engaged as an assistant in nursing, attending to dressings of patients, maybe answering the phone, maybe assisting in minor procedures.

PN443

The doctor does not need a registered nurse, but indeed in terms of the award as suggested by the nurses, if the employer employs a person as an assistant in nursing they would be obliged to employ a registered nurse to either undertake direct or indirect supervision of that person’s employment, in terms of the classification and definition s contained within this suggested award. So the doctor’s surgery has got to employ a registered nurse to supervise the activities of the assistant in nursing, when all that doctor’s surgery requires is a person at a level of assistant in nursing. So that’s merely an example of the difficulties we see in transposing the suggested nurses’ award into the areas as being a common rule award, applicable to all levels of nursing. There’s a world of difference, with respect, between a nurse in an emergency hospital and a nurse in a doctor’s surgery or a nurse at an independent school. There’s a world of difference and the Commission, with respect, should recognise that. We say, with respect, the Not Elsewhere Included Private Sector Award that we have suggested recognises that; provides fair safety net provisions; absorbs a number of awards of a like nature; and is entirely appropriate to the engagement in that area that we have identified.

PN444

The nurses in that area and the persons engaged in nursing duties in that area should not be bound by an award such as is described by the nurses union and the extreme overemphasis placed within that award on it being, in essence, an award to cover a major hospital or a major employment environment where many nurses are engaged at many levels. We say that the award that we put forward is appropriate for that group of disparate industries and it is clearly a fair safety net to be provided.

PN445

Does the Commission have any other questions of me? Those are our submissions.

PN446

COMMISSIONER CRIBB: Mr Warren, conceptually, as I understand it, what you're proposing in the Nurses Not Elsewhere Included Private Sector Award is a collection in the one spot in terms of the safety net or nurses who work in what, if one wanted to be contrary, one could say were other industries other than health, for example, independent schools.

PN447

MR WARREN: Yes, indeed, with the exception, of course, of doctors' surgeries, for example.

PN448

COMMISSIONER CRIBB: No, no, I'm coming to that. Got to read the cues properly, Mr Warren.

PN449

MR WARREN: Sorry. I'm accused of that often.

PN450

COMMISSIONER CRIBB: What I'm wondering is whether - because what I think I'm understanding is that you're proposing that for safety net purposes all of these nurses be encompassed in the one document. To be argumentative, one could say that they could have homes elsewhere, they could have homes, for example, under education in the independent schools, in education, the day centre, childcare could be in Children's Services. I'm just being notional. What's the fundamental reason for why they should be collected into the one safety net as opposed to being in other industry safety nets?

PN451

MR WARREN: I'll answer this two ways. We haven't identified all of the industry groups that the Commission is just referring to and I can well imagine childcare, you could say it would be appropriate in childcare, et cetera. Indeed, the occupational nurses NAPSA in New South Wales has a provision in it which says that if the industry in which that nurse is engaged works shiftwork at a certain penalty and that nurse is required to work when the shift is working, then that nurse will be paid in accordance with the site major award as opposed to the Nurses Award and there is no doubt some attraction in that both from an employer's point of view of simplicity of calculation and knowing exactly where they're going in that regard.

PN452

To answer your question, Commissioner, if I can still remember it and I haven't strayed my way from it, the reason why we've done it this way is because it is currently done that way and that may not be a very good reason but it's currently, the nurses awards that we have listed, the 11 nurses awards that we have listed, are in existence and do act in that way, so there's the Occupational Health Nurses Award works in Blue Scope Steel; the Nurses Non-Government Schools works in a non-government school that might want to employ a nurse for their boarding establishment or whatever the case might be; the Nurses Childcare Centres would no doubt apply to large childcare centres where they engage a nurse.

PN453

They are currently described as nurses awards. If the Commission were to come to the view that they would be better set somewhere else, then that's a position I'd like to take on notice in that regard and seek further instructions on and we could probably put a further written submission in a very short time with respect to that but it still doesn't escape the issue of the Nurses Other Than in Hospitals, which covers the nurses in medical practices, and I think, Commissioner, you were saying you were going to come to that, but certainly so far as occ-health nurses, nurses in childcare centres, day cares, and in schools, the only reason that we've grouped them where we've grouped them is because they are currently separately paid as nurses and employed as nurses under a relevant award. So it has been attacked on that basis and I understand the Commission's question to me is more going to, well, you're looking at an industry as opposed to looking at an occupation.

PN454

If that's where the Commission's question leads, then there is no fundamental reason why it wouldn't be appropriate for a nurse to receive the same benefits as a childcare worker, if they're working alongside them, but I'm not quite sure whether that is the circumstance at the moment or not. That's the reason why, because they are because they are because they were there in that capacity and AFEI attempted to pull those nurses awards into one and that's the reason.

PN455

COMMISSIONER CRIBB: Thank you for explaining to me the underlying rationale. I do appreciate it.

PN456

MR WARREN: Thank you, Commissioner. if the Commission please.

PN457

COMMISSIONER CRIBB: Who's next?

PN458

COMMISSIONER SMITH: Another volunteer?

PN459

MR G BOYCE: If it please the Commission. Boyce appearing for the Aged Care Employers. I've had some discussions with the other employers. I was going to kick off at 10 o'clock in the morning. I'm still getting some instructions in relation to a couple of matters that have been raised today. We've got some amendments to make to our draft award that we're planning to put before the Commission tomorrow so I just put the Commission on notice of that view. If any other employer wants to go at this point in time, it's not a matter for me.

PN460

COMMISSIONER SMITH: Does anybody else wish to put submissions at this stage? Yes, come forward.

PN461

MR T PREEO: Commissioner, I am representing Sonic Healthcare, Symbion and Healthscope. They represent about 85 per cent of the private pathology industry in Australia. It's our contention that the health sector is too big to effectively be represented by one award - even one or two awards or three awards. We think the scope of the sector encompasses many job categories, many business types to be comprehensively covered by one award.

PN462

I guess what we're looking at is an award that is simple to understand and goes back to the basic principles of flexibility. We submit that very many of the industries within the health sector are so highly regulated - - -

PN463

COMMISSIONER SMITH: Have you lodged any submissions, I'm sorry?

PN464

MR PREEO: We have got a submission which has been put in yesterday.

PN465

COMMISSIONER SMITH: Yesterday, was it? That's all right.

PN466

MR PREEO: Certainly I'm not speaking to those submissions in terms of restating, this is in fact putting it into a particular framework. We submit that the best interests of the health sector be represented by a number of different industry awards. Given the fact that it looks like Aged Care and the Ambulance sectors look like being represented by their own awards, we see that there would be reason for Pathology, Imaging, Private Hospitals and Private Health Practices being included under their own industry awards.

PN467

The Pathology Industry has its foundation in medical science and laboratory diagnostic services. We are looking at pathology collection and looking at substantially different structures within their industry in terms of their job categories and their qualifications. Our secondary position would be that if the Commission goes down the track of looking at one Health Sector Award, then look at scheduling separately the different industry groups within that, on separate schedules on an award. We are mindful of the Minister's guidelines about flexibility and simplicity and we have developed a draft award for the assistance of the Commission which sets out an industry approach, so we are looking at a safety net approach which is the basic minimum conditions which would apply within the industry.

PN468

We are recognizing that there is a commercial approach to this, that the industry itself is dominated by private sector operators and that the enterprise approach - that each of these industries and each of these providers need to be flexible. Specifically we would like to point out our submission greatly simplifies the allowances and the salary structures that currently exist under the existing State awards and enterprise agreements whilst retaining the inherent value and coverage in those allowances. For example, our draft award, suggested award is silent about a number of allowances sought by other submissions for an omnibus award.

PN469

For example, we contend that allowances within the Health Sector are fairly diverse and actually reflect back upon the individual requirements of each of those industries. For example, one of the suggestions is that there be an infection allowance based in the HSU submission. Well, there are elements of that allowance in the Pathology Industry would be, I suggest, superfluous basically. Our industry looks at and is involved in managing infectious diseases and handling infectious specimens. Any allowance on top of that would be gilding the lily, I suggest. We are looking certainly at a more simplified approach at the complexities of the allowance situation. For example, I will be finding that quite a number of the allowances that have been suggested are fairly prescriptive and they are not flexible and certainly they are administratively difficult.

PN470

We think that the allowances that have been suggested are actually a significant cost burden to the industry itself. I think too, there was another issue around the complexity and prescriptive nature of allowances. For example, many of the suggestions relate back to a plethora of awards or allowances based on travel and meal allowance and living away from home allowance and so forth. Giving the fact that we are looking at simplifying awards and making them modern, we were suggesting that that just be assumed by one provision that the employer be responsible for covering those particular costs. Another example I think that we were looking at is allowances made for technological advances, particularly in relation to employees using their own equipment. One of the examples earlier on today was an example of using your own mobile phone, an employee's mobile phone, and that was to be paid at one 52nd of an allowable rate, which is fine except that has got its basis way back in the dim, dark ages of monitors and land lines and so forth.

PN471

We would submit that it is really up to the employer to ensure that employees are subsidized or paid for the use of their own equipment and that that would be included in an award submission and as a safety net. In respect to our salary structure we have suggested a very simplified structure based on a safety net and like to submit that we have chosen in our submission the lowest rates contained in the various existing awards. We feel these provide a safety net and a basis for negotiation on an enterprise level. I would also submit that current industrial agreements, that each of the enterprises are substantially more generous than those that we have suggested for a safety net award.

PN472

We are also mindful that current conditions and existing conditions be protected and acknowledge that by providing for a no disadvantage provision in our suggestions. We are overall mindful of the need to retain flexibility of work arrangements and certainly we are looking at our suggestion to lay the groundwork for flexibility and enterprise agreement negotiations. I think my final point is about the career progression within our submission in terms that we have allowed for a career process along three broad lines in the categories that are within our industry, and that is pathology collection, scientific operations and through a support mechanism. Thank you.

PN473

THE COMMISSIONER: Thank you for your submission. Does anybody else wish to put submissions at this stage? I had everybody jockeying for position in emails sent to me. Yes, come forward.

PN474

MS L. FISHER: On behalf of the Private Hospital Industry Employer Associations I would just like to put on notice we would like to make submissions but we feel there is insufficient time left this afternoon for that and we are also waiting to hear back from - - - .

PN475

THE COMMISSIONER: How long do you think you'll go?

PN476

MS FISHER: I would say 50 minutes to an hour.

PN477

THE COMMISSIONER: We are happy to hear you for 50 minutes.

PN478

MS FISHER: This afternoon?

PN479

THE COMMISSIONER: Yes.

PN480

MS FISHER: If the Commission pleases, myself together with
MS L HEPWORTH are appearing on behalf of the Australian Private Hospitals Association, the Australian Day Hospitals Association and the Private hospitals Association in the States and Territories.

PN481

THE COMMISSIONER: Thank you.

PN482

MS FISHER: We would just like to provide some additional evidence as to why we believe it's imperative that consideration should be given to the establishment of a Private Hospitals Industry Award as the most effective mechanism to satisfy the objectives of no employee disadvantage but no additional cost to employers and a structure which is both economically sustainable and promotes flexible work practices for the efficient and productive performance of work. We do have some additional submissions with you this afternoon. Essentially there are two main ones, one is an analysis of the HSUA Health and Medical Services Award where we have highlighted particular clauses which we believe would create some issues for employers, and the other is detailed cost modelling on the financial and lost productivity impact of some of the key clauses within the HSUA Health and Medical Services Award where we have also noted that some of those clauses are similar to the ANFs Nursing Occupation Award and which would give rise to a similar pro rata cost impact and which would actually have a devastating impact on the Private Hospital Sector.

PN483

Health Service deliveries is characterized by those sectors within the industry which are true 24/7 operations compared to those which operate either within business or extended hours but which fall short of a true around the clock service, and obviously hospitals clearly fall into that 24/7 category. In 2006 there were 593,000 FTE personnel working in health occupations of whom 269,000 or 45 per cent were employed in hospitals. Of these 49,000 FTEs were employed in the Private Hospital Sector which is estimated to be a head count of 110,000 approximately. As we have noted in our previous submission, given the unresolved jurisdictional issues and the time frames for completion of awards relating to Health and Welfare Sector, we are of the view that stage 2 awards for this sector should be limited to private health care.

PN484

Traditionally industrial instruments governing Health Industry employees have been crafted along occupational lines, specific to the environment in which the service is being provided and as the ANF noted in its submission in the 30 years that Nursing Federal Awards and much longer for the previous State instruments have operated there has been little disputation regarding their interpretation and application. The history in part demonstrates that there is an acceptance by nurses and their employers that the extant Nursing Safety Net Awards reflect appropriate minimum conditions and are understood and applied in workplaces across industries where nurses are employed. We would concur that State based occupational instruments have indeed served the sectors well within the overall Health Industry.

PN485

For the reasons noted in our submission we do not support the establishment of national occupational awards for the Health Industry, but we do strongly encourage the retention of existing occupational classifications for each category of employee within a separate industry award for specific sectors within the Health Industry. These classification structures have been proven over time to establish an appropriate remuneration and progression frame work, structured to reflect the specific skill sets required at each classification level within the healthcare environment in which the employee is engaged.

PN486

The draft Private Hospitals Award includes specific classification schedules for each of the five categories of employee. Nurses, Allied Health professionals. Clerical personnel, support staff and engineering which have been modelled on existing structures prevalent within the majority of awards applicable to private hospitals across the country. It also contains clearly articulated savings provisions to ensure no disadvantage to either existing employees or those who are engaged on or after 1 January.

PN487

We believe that this approach has the following advantages. It meets the requirement to reduce the number of awards currently applicable to the industry as it consolidates 40 awards into a single Private Hospital Industry Award. It preserves existing common classification structures which are well understood and generally applied across the sector so that translation to a modern award would involve minimal staff education or disruption to existing pay roll structures and processes. It preserves existing flexibility provisions and penalty and allowance entitlements to minimize additional costs to employers and it ensures that all existing entitlements for employees in any State or Territory, whether via an award NAPSA or EB or collective agreement are preserved so that the no disadvantage requirement is met. It also facilitates easy assessment of no disadvantage for re-negotiated or new collective agreements against the modern award as it contains clauses which the majority of employees and employers are familiar with.

PN488

In the case of private hospitals the majority of State instruments applicable to our sector include various clauses to provide flexibility with rostering. For example guaranteed minimum hours per week or fortnight but not necessarily specific days and times, averaging of hours and leave provisions to accommodate the fluctuating staffing requirements associated with variable patient acuity and occupancy in the administration of the 24/7 business. The Private Hospital Sector workforce has a significant component of part time and casual employees. For example, the average breakdown in New South Wales is 48 per cent part time employee, 28 per cent full time and 24 per cent casual and these ratios would be fairly similar in other states.

PN489

Given the high prevalence of part time workers the importance of ensuring that such flexibilities remain in the transition to modern awards cannot be over-estimated. The financial impact on hospitals if restrictions were to be placed on the current provisions would be punitive as we highlight. Diminution of flexibility would generate significant additional staffing requirements to cover lost productivity which an environment of health workforce shortage would be quite challenging to fill. It is a significant feature of virtually all hospital and health insurer funding contracts that private hospitals may not impose any out of pocket expenses on their patients relating to the hospital component of the episode of care. Therefore they have got no ability to increase their charges to off set any wage escalation costs, and this is in contrast to private medical and Allied Health practitioners who are generally permitted to charge patients at their own discretion in out of pocket fees.

PN490

The draft we have submitted has been structured to reflect existing terms and conditions prevalent in the majority of awards governing employees in private hospitals. As the majority of stakeholders appear to favour industry awards we have focused our attention on this occasion on the Health and Medical Services Award. But in drafting our award we referred in the instance to the Commission's template, including the model clauses. We then circulated this to various private hospital organisations in each State and Territory, asking them to provide feedback about the relevant terms and conditions based on the key industrial instruments in force in their particular State or Territory. This feedback and the subsequent consultation which occurred form the basis of the provisions within the draft we have submitted.

PN491

In some instances there were minimal differences between the States, particularly in terms of types of employment, averaging of hours, hours of work and rostering but in other clauses there were substantial differences, for example casual loading rates, shift and other penalty entitlements and some allowances. We strongly support the principles of no disadvantage to employees nor increase cost to employers. However, we are of the view that these dual objectives could only realistically be achieved if the safety net modern award adopts a minimalist approach, supplemented by the inclusion of some clearly articulated savings provisions. So what we have proposed are two clauses, 23.1, the making of the award will not result in the rate of pay, applicable shift penalties or allowances of any existing employee being reduced below the level of pay in an award, NAPSA, EB or collective agreement that applies to the employee immediately before this award comes into effect, and 23.2, notwithstanding the rates of pay and conditions contained within this award new employees covered by the award who commence employment on or after 1 January 2010 will be entitled to receive the same rate of pay and applicable shift penalties and allowances as those which apply to existing employees classified at the same level as the new employee at the time the employee commences work with the private hospital employer.

PN492

23.1 makes a very deliberate reference to EB and collective agreements in addition to awards and NAPSAs, and the reason for this, as our colleagues this morning have highlighted, there is a very high prevalence of enterprise agreements in the private sector and we wanted to enshrine within the award the preservation of the entitlements that may currently be available which are higher in an existing agreement, therefore ensuring no disadvantage to employees.

PN493

THE COMMISSIONER: Are you sure that's the test?

PN494

MS FISHER: Sorry?

PN495

THE COMMISSIONER: Are you sure that's the test? To maintain enterprise agreements as a no disadvantage.

PN496

MS FISHER: Certainly the clauses we have got in there reflect ones that are common - I will mention that in a moment - but they are common in each State and Territory, but EB has delivered benefits which are way above that, certainly in terms of base rates they are a lot higher than the safety net awards are, so we are very keen to ensure that rather than just say no disadvantage in terms of an award, that because EB is actually at a higher penalty that that was built into that as well.

PN497

THE COMMISSIONER: When you ask your members to look at their industrial instruments were they including enterprise bargaining and AWAs and the like?

PN498

MS FISHER: We asked them to look at the awards in this instance given that it is an award - - -

PN499

THE COMMISSIONER: The awards in the NAPSAs only.

PN500

MS FISHER: The awards in the NAPSAs only for this exercise but in reality they are - the overall benefits tend to be better - higher. The inclusion of a clause for new employees will ensure that no private hospital employee would be able to engage a new employee on the rates of pay within the modern award if they were less favourable than the prevailing rates of pay for the relevant classification at the organisation at which the employee was engaged to work. In respect of allowances and consistent with section 576T(1)(b) of the Workplace Relations Act only those that were common to all jurisdictions have been included. However, the protection afforded by the preservation of entitlement clauses would ensure that any remuneration associated with any additional allowance currently paid to an employee in a particular State of Territory would continue to apply.

PN501

Similarly there is some variation across the country in respect of applicable penalty rates and therefore the award has adopted the penalty rates most common across the sector, but again the preservation of entitlement will protect those employees who might currently receive a higher shift or penalty payment. Adopting a minimum standards approach in the establishment of a Private Hospitals Award is important in maintaining the overall viability of the sector. In addition it provides protection to some of the smaller private hospital employers and day hospitals which may pay their employees in accordance with the relevant State awards and NAPSAs, and because of the imbalance of market power between hospital and health insurer have no ability to negotiate appropriate remuneration increases to offset the costs of a significant escalation in wage rates or allowances which might otherwise accompany the introduction of a modern award.

PN502

We note the Commission's prior statements to the effect that within each industry or occupation federal awards will usually be the starting point for drafting. However, in our sector we would encourage the Commission not to overlook State awards and NAPSAs as these are the most common applicable instruments in terms of private hospital application. Because certain clauses within our draft award have been structured based on average provisions within the sector, this may have the effect of increasing pay rates for some employers and therefore we have included a transitional provision which provides for, notwithstanding the provisions of this award, an employer whose pay rate are below those prescribed in the award at the time of it's introduction will increase wages by 20 per cent if the difference between the rates actually paid and those proscribed by the award on 1 January 2010 and each subsequent year thereafter until the rate of pay reaches the award rate.

PN503

We are of the view that the award we have submitted mirrors common existing instruments applicable to private hospitals and therefore is closely aligned to the needs of our industry. We note the submissions of the HSUA and in particular the three awards, Aged Care, Ambulance Services and Health and Medical Services and we support the creation of awards for both Aged Care and the Ambulance Services Industry as both these sectors clearly operate 24/7 businesses and need separate awards which appropriately reflect the nature of their operations and contain relevant flexibility clauses in relation to staffing.

PN504

From the most recent national data we have been able to source, the Ambulance Industry comprised just over 11,000 FTEs which is a relatively small workforce when compared to the Private Hospital Sector of 49,000 FTEs. Therefore we believe the size of the Private Hospital Sector and the 24/7 nature of it's operations certainly supports the creation of an industry award for this sector. We do not support the Health and Medical Industry Award as supported for a number of reasons. We believe the scope of coverage is so broad that it combines entities which operate a 24/7 service with those that operate on a business or extended hours basis only. The effect of this is to introduce a significant number of new clauses and conditions which are not common to the awards currently applying to private hospital employees and which would combine to impose a financial impost of significant magnitude as to seriously undermine the viability of hospitals which we believe would be contrary to the Minister's Request that it not be intended to increase costs for employers.

PN505

The Health and Medical Services Award contains a number of clauses which substantially reduce employer flexibility in terms of rostering, and as we will highlight these loss of flexibility provisions would actually be more costly than some of the new penalties and allowances which this draft award contains. In addition they would give rise to a substantial amount of lost productivity which in an environment of acute health workforce shortage would exacerbate an already challenging situation in fulfilling staffing requirements. So therefore again we believe it would not align with the Minister's Request under section 576C(1) which requires modern awards to be economically sustainable and promote flexible modern work practices.

PN506

The Health and Medical Services Award also contains terms which do not have effect in each State and Territory with respect to private hospital employees and therefore if applied we believe may be in contravention of 576T(1)(b) of the Workplace Relations Act. This award appears to have been modelled in part on the Nurses Victorian Health Services Award 2000 and as such it incorporates a significant number of conditions, penalties and allowances which do not reflect existing provisions in the majority of awards and NAPSAs governing private hospital employees. In fact many of them are only applicable in the State of Victoria, which again we believe is contrary to the government's submission to the Commission on 10 October in which it stated that when the Commission is considering whether to supplement the NES in a modern award it must consider whether the entitlement being considered for inclusion commonly exists within current industry or occupation awards.

PN507

As you will see from the material we have tabled today, in the examples we have noted we don't believe that this award meets those requirements. Award modernisation is not intended to extend coverage to those classes of employees such as managerial employees who have traditionally been award free. But this classification structure incorporates a separate management stream which is completely foreign to the majority of awards covering private hospital employees. The occupational classification structures for each category of employee within the Private Hospitals Award include senior positions within that classification which are common across the industry. However, there are various senior management positions within hospitals which have always been award free such as chief executive officers and finance directors.

PN508

We consider that the proposed classification structure for the health professional stream is entirely inappropriate for health professionals employed in private hospitals, as again it doesn't reflect common occupational classifications applicable in this sector. Common nursing classifications for private hospital employees clearly articulate progression points, typical duties and skills required at each level of employment. These are quite different to the classification points for Allied Health professionals. So in our award we have retained separate classification structures for both Nursing and Allied Health professionals which do reflect the common occupational classifications under which the majority of clinical personnel are employed and familiar with.

PN509

We believe that if private hospitals were required to adopt this award, it would not only be extremely difficult to apply administratively but may pose a significant risk of disadvantage to some health professional employees who would be required to translate to a new structure which is quite unlike their current one, and one which may be very difficult to accurately assess in terms of an appropriate translation level. If private hospitals were to fall under the Health and Medical Services Award, as submitted, assessment of no disadvantage when negotiating future agreements would be extremely complex, as not only are the classification structures totally different but this award introduces a host of penalties and entitlements which are not common within our existing industrial framework.

PN510

Our previous submission outlined clauses within the ANF Nursing Award which would reduce employer flexibility and also contained clauses which would either increase existing entitlements common across the industry or introduce new benefits such as paid maternity leave which are not currently in existing awards. In view of the indicative positions of the stake holders which appear to be strongly in favour of industry awards, private hospitals have not actually cost modelled items within the ANF Award, instead we focused on the HSUA Award given that this is a draft industry award. However, there are clauses within the Nursing Award which are similar to those to the HSUA Award and while such clauses would obviously only apply to nursing personnel, unlike the HSUA which applies to all staff, the actual estimated financial impact would be about 60 per cent of the dollar amounts shown in appendix 3 which hopefully will be loaded later today. Without specifically costing the ANF clauses we have highlighted in green in appendix 3 those which are broadly similar.

PN511

So in an attempt to provide some guidance to the Commission regarding the potential, financial and lost productivity impact we have undertaken some modelling on the key items which were reasonably easy to quantify in the absence of wage and allowance rates having been disclosed. However there are a number of clauses noted in appendix 2 of today's material which would have an impact in most states but at this time we haven't been able to cross those due to the lack of rates.

PN512

The basis of the calculations was that a representative sample of private hospital organizations nationally, which was 54 per cent of licensed beds, was asked to cost various clauses on a dollar cost per bed basis using their actual wage staffing and hours worked data for the 2007/8 financial year. Data received was then averaged to determine an average industry cost per bed of the identified clauses on a state by state basis to ensure that state based differences were appropriately calculated as far as possible.

PN513

The data was then extrapolated by multiplying the indicative cost per bed in each state using total bed data from the Australian Bureau of Statistics Private Hospital stats for 2006/7 to calculate the estimated overall industry impact. Some of the clauses would give rise to significant lost productivity so hospitals were also asked to calculate their estimated lost productivity in weeks for both clinical and non clinical personnel as a consequence of these clauses. Information was consolidated nationally for the responding organizations and then again extrapolated using bed data for the industry as a whole.

PN514

COMMISSIONER SMITH: When you say productivity, is that code for additional staffing?

PN515

MS FISHER: That's weeks lost. Additional staff, for example an extra annual week's leave, basic annual week's leave entitlement would obviously involve you having to employ staff to cover that additional week's leave. I will go through those in just a moment.

PN516

COMMISSIONER SMITH: I understand. Your productivity estimates are based upon your staffing levels?

PN517

MS FISHER: Staffing levels, that's right.

PN518

COMMISSIONER SMITH: And so there's the same work done by more people?

PN519

MS FISHER: Yes, or when you've got replacement staff to cover those who are off because of additional leave provisions.

PN520

COMMISSIONER SMITH: And it doesn't require us to make any judgment as to whether you're adequately staffed currently?

PN521

MS FISHER: No. This is purely - - -

PN522

COMMISSIONER SMITH: Nor do you want us to?

PN523

MS FISHER: No, no, definitely not.

PN524

COMMISSIONER SMITH: Very well.

PN525

MS FISHER: It's acknowledged obviously that given the sample size at 54 per cent the calculations can only be taken as indicative, but we do believe they do provide compelling evidence to support our view that in determining modern awards for this sector, it's imperative that existing flexibilities, penalties and allowances commonly applied within the private hospital industry are maintained and that the financial and staffing implications have lost productivity associated with the introduction of uncommon entitlements shouldn't be overlooked.

PN526

Given the 24/7 nature of hospitals and the need to satisfy the dual objectives of no disadvantage or increased cost, we would reiterate our position that we believe this could only realistically be achieved by the creation of a separate award for the private hospital industry.

PN527

MS HEPWORTH: We were asked earlier today whether it was feasible for nurses to have the same pay rate as an entry level, regardless of where they worked. We don't oppose that view at all and in fact support it and quite frankly, in looking at the detail of the various awards, we think that pay rates are actually the least of our worries. The devil is in the detail, as it says, and what we've done for some cost modelling this afternoon is to look at eight key points contained in the HSUA Award. The first one relates to part time staff. In the award it's proposed that:

PN528

For hours worked in excess of contracted hours the part time employee will be paid at overtime rates.

PN529

So this means that they'll receive another 50 per cent for the first two hours and another 100 per cent for every hour thereafter. As Lucy's pointed out, the bulk of our workforce are part time. On average at present they all work approximately six hours extra a week. Using a 75 per cent - - -

PN530

COMMISSIONER SMITH: When you have a part time employee, don't you give them a contract of employment indicating to them the hours you expect them to work?

PN531

MS HEPWORTH: What tends to happen in the majority of the industry, they receive a minimum guaranteed number of hours. Then they are offered additional hours up to 38 a week or 76 a fortnight after which penalties kick in, such as overtime.

PN532

COMMISSIONER SMITH: So you offer them between something and full time employment?

PN533

MS HEPWORTH: Correct, if they're part time, correct, and that's subject to individual negotiations.

PN534

COMMISSIONER SMITH: I see. Thank you, Ms Hepworth.

PN535

MS HEPWORTH: So that's the common situation in the industry. At present the average is approximately six hours extra over and above any contracted hours.

PN536

COMMISSIONER SMITH: And are there any provisions for the employees to decline to work those additional hours?

PN537

MS HEPWORTH: Absolutely.

PN538

COMMISSIONER SMITH: Yes.

PN539

MS HEPWORTH: As long as the minimum hours are met, then the contract's been met, correct. So working six hours over at a penalty rate of 75,000 for the entire industry, the private hospital industry, this would represent a cost of $209m a year. Certainly a significant impact. It would also force the organization to review increasing casual staff in order to cut back on costs. Toil is another aspect that's been introduced to be taken at overtime rates rather than time for time. We note that this would impact in states other than Victoria, WA or Northern Territory where this is already a provision. However it would add costs to the industry of 1.5m per annum.

PN540

COMMISSIONER SMITH: Now, is that in current awards, the toil?

PN541

MS HEPWORTH: It is in Victoria, WA and Northern Territory.

PN542

COMMISSIONER SMITH: In the awards, Victoria, WA and Northern Territory.

PN543

MS HEPWORTH: Yes. In the others it's time for time and we've done the costing only on the other states and territories.

PN544

COMMISSIONER SMITH: Yes. I'm sorry, but is time for time in the awards?

PN545

MS HEPWORTH: Yes. Not in Victoria, WA or Northern Territory, there it's an overtime rate. Sorry, I misunderstood.

PN546

COMMISSIONER SMITH: No, no, that's all right, but time for time is in the awards in the other areas.

PN547

MS HEPWORTH: Yes, correct. So that's where the additional costs come in there. Casual loading, this varies from state to state. Victoria has 25 per cent, so there's no impact here with regards to the provision in the HSUA award. New South Wales, with a combination of leave and so on comes up to 18.66 per cent for nurses, 20 per cent for others, Queensland, 23 per cent, WA, South Australia, Northern Territory and Tasmania, 20 per cent, ACT on 15 per cent. Taking that up to the full 25 per cent will add 6.1m to the industry. Wash up time is a concept that appears only to exist in Victoria and we assume that this relates to theatre staff and staff required to change out of scrubs.

PN548

So what we've done here is looked at the actual staff involved in operating theatres, sterilizing departments, path labs and so on and assumed at any one time approximately two-thirds of the staff are at work and done our cost modelling on that basis. This adds an additional 7.5m to the costs in a year for the industry. An additional week of annual leave. The HSUA has suggested that there's an automatic entitlement of five weeks leave for all employees. We have a variation of entitlements throughout the states. Nurses vary to other staff. In Victoria and Northern Territory they have five weeks already for nursing. Other non clinical staff are four. Queensland has got a combination of four and five weeks for clinical staff with four for others. All other states have four.

PN549

Just adding in one additional week of annual leave will increase costs to the industry of 31.1m. We have not added in here the relaxed definition of a shift worker, which will increase the right for staff to take an additional week of leave on top of that quite substantially. The definition in the existing HSUA Award is for an employee to do a minimum of four hours over 10 weekends in a year to qualify as a shift worker and therefore be entitled to an additional week of annual leave. Examination leave is another one. Up to six days per annum to attend exams, to obtain any higher qualification in health. Victoria has this provision which currently sits at five days, not six.

PN550

We've done a costing on the basis of 10 per cent of permanent employees accessing this provision which will add a cost of 3.6 million to the industry. Personal carers leave. Other than Victoria and Tasmania, who already have very generous personal carers leave provisions, the actual increases initially for the rest of Australia include an additional two days for the first year of service, four days extra in years 2, 3 and 4, and from year 5 onwards an additional 11 days of personal carers leave. We acknowledge that not everybody is going to take all of this leave, and working out a cost obviously is a bit of a challenge. We have estimated that there will probably be an increase of 20 per cent in absenteeism. Not only probably because of the extent of the extra entitlement but also the relaxed clause which allows employees to have paid leave, to go home and care for a member of their immediate family or household who requires care due to an unexpected emergency, which is a little bit more relaxed than to someone who requires medical care.

PN551

There is no definition, of course, as to what makes an unexpected emergency. That will add 6.8 million to the industry. There is a suggestion that Melbourne Cup should become a national holiday and be added to the list of public holidays. We have just done the cost on one public holiday being added, although for WA there is actually two extras going in on the suggestion of the HSUA. The cost to the industry is 8.5 million. In addition to these costs, they are the eight items we have identified, there are a lot more contained within the awards that we have not looked at but in addition to this you have got on costs.

PN552

We have taken an average on cost of 20 per cent. We acknowledge that the not for profits do not pay payroll tax and there's a few things in here such as the overtime on the extra hours for the part timers that won't attract some of the penalties, so we have looked at 20 per cent as an average figure which adds another 54.9 million to the cost. So far we are up to 329 million and we don't include day hospitals here, we are only looking at in-patient facilities because our modelling, as Lucy said earlier, has been done on per patient beds. So we don't have that data for the day patients hospitals. In addition to this, wait there's more, we get to the stage of productivity which Lucy mentioned before.

PN553

We suddenly have all of these people who were previously at the bedside and in our kitchens and in our cleaning areas that are now having extra leave, they are having extra wash up time. They have got extra public holidays. They have got enhanced personal carers leave entitlements. They have got examination leave and our hand out that we have given you gives you the full details there, but in summary this adds up to over 62,000 weeks of absence per year that has to be back filled. This is not a small chunk of the issue. Assuming that we have our part timers who are happy to step up and take on the extra hours, and that's the first thing we usually do, we ask our part timers would you like additional hours because we have got a short fall. If we have the additional cost penalty of now paying another 75 per cent for them to help back fill this huge vacancy that we have just had thrust upon us, the costs would be astronomical, so we haven't even bothered to cost that.

PN554

We have looked purely at nursing. What tends to happen is we rely on agencies. We rely on agencies quite significantly. If we had to back fill just the nursing vacancies that have been created with this exercise with agency and looking at a standard agency rate of just 40 per cent, which is quite conservative, the cost to the industry is another 19.7 million. So we have got up here around 350 million without looking at day hospitals. The calculations do not include all aspects of the HSUA submission. It doesn't include qualification allowances, which is also contained in the ANF, other increases in allowances, financial penalties for unplanned roster changes, increase entitlement to rest periods and so on. I will hand back to Lucy to do the wrap up.

PN555

THE COMMISSIONER: Thank you.

PN556

MS FISHER: Approximately 80 per cent of private hospital revenue is derived from private health insurer benefits and hospitals are required to enter into contractual arrangements with their funders which are negotiated on a fixed price, fixed term basis and our original submission outlined in some depth the complexity of the regulatory environment governing health insurers and the challenges associated with the contracting process, so I certainly won't reiterate that. But suffice to say that the revenue base for hospitals is inextricably linked to that of health insurance and as a consequence of the current economic environment there will be added pressure placed on revenue availability for both hospitals and insurers with which to fund patient services.

PN557

The Private Health Insurance Industry is regulated by the government's Private Health Insurance Administrative Council and the Commissioner in his last report noted that,

PN558

The benign investment environment of recent years cannot be expected to continue unabated, insurers will need to carefully review, monitor and report on their investments given the historical reliance on investment returns to support industry performance.

PN559

That comment was made following the 06/07 financial result in which the Health Insurance Industry recorded a surplus of 1.288 million but significantly 52 per cent of that or 672 million was derived from health related business and investments as distinct from profits from the health insurance business. To date only two funds have released their annual reports for 07/08, MediBank Private and HBF, but these two funds combined recorded an investment loss of 84 million in the last financial year. Given that between 1 November last year and
18 November this year, the SNPA SX 200 has dropped by 48.6 per cent, clearly insurers will be impacted by returns on their investment.

PN560

THE COMMISSIONER: What relevance is that to our consideration of the safety net?

PN561

MS FISHER: Because it will put pressure on the contracting environment for hospitals.

PN562

THE COMMISSIONER: What has that got to do with people's wages?

PN563

MS FISHER: It's not in terms of minimum wages but merely to highlight the point that if there is a wage escalation as a consequence of award modernisation then the ability to fund that is compromised by the current investigation income and our own contractual arrangements with health funds.

PN564

THE COMMISSIONER: I think I understand what you say but is that an incapacity to pay?

PN565

MS FISHER: Yes, very much so.

PN566

THE COMMISSIONER: Should that be done globally? Historically the Commission hasn't accepted a global incapacity to pay. What we have done is we have said if you have got incapacity to pay bring your books on a hospital by hospital or an employer by employer basis. But that hasn't a general incapacity or a hard viewed incapacity hasn't led to a failure to grant a wage increase, it may have historically deferred one in national wage cases but it hasn't impacted upon the safety net, because there are a range of issues. Is the business being managed properly, should the employees pay for inefficient management practices.

PN567

MS FISHER: I mean all we are highlighting is that because we are inextricably linked for our revenue with the fortunes of the Health Insurance Industry if they suffer a significant downturn they will put extreme, even further pressure on their contracting negotiations with their hospitals.

PN568

THE COMMISSIONER: I understand that but the restaurant across the road who we fix a safety net for doesn't have any guarantees.

PN569

MS FISHER: Sure. No, we're not saying incapacity to pay, we're merely highlighting that if there is a significant escalation as a consequence of an award modernisation rationalization process then the issue of economic sustainability is one that needs to be considered.

PN570

THE COMMISSIONER: Yes I understand.

PN571

MS FISHER: So just in a wrap up we would just ask the Commission to be mindful of the distinction between those sectors within the Health Industry that operate on a 24/7 basis, rather than those which are business or extended hours and we assume that the HSUA may have acknowledged that to some extent by advocating for industry awards for Aged Care and Ambulance Services, both of which are 24/7, therefore we can see no logical rationale for not extending that to the hospital sector.

PN572

THE COMMISSIONER: Both public and private?

PN573

MS FISHER: At this stage we have focused on private, given the unresolved jurisdictional issues and there would also probably need to be further discussion because certainly - I mean some States there are - - -

PN574

THE COMMISSIONER: It's not a problem in Victoria is there?

PN575

MS FISHER: No, but that is the only State. In other States they have quite different classification structures and awards governing - - -

PN576

THE COMMISSIONER: Do you see any problem about having private and public in the State of Victoria in the same award?

PN577

MS FISHER: Not being from Victoria I don't know that award well enough to say if there are any issues in there so I don't feel able to comment on that particular one.

PN578

COMMISSIONER SMITH: I see, all right. thank you.

PN579

MS FISHER: Existing awards do include those significant rostering flexibilities and also the ability to direct employees to take periods of annual leave during shutdown or reduced occupancy. The Health and Medical Services Award specifically precludes such provisions and the ANF Nursing Award also significantly limits flexibility common in Private Hospital Nursing Awards. As we've highlighted, that loss of flexibility would pose an impossible burden, both financially and on the staffing and lost productivity issues.

PN580

The scope of the Health and Medical Services Award combines environments where there is a low incidence of collective agreements with those such as hospitals where collective agreements are highly prevalent and whilst it might be highly appropriate to have a stronger safety net award for those sections of the industry which are more award reliant, where industries predominantly operate under collective agreements which are generally significantly more favourable, a minimalist award with appropriate savings provisions to protect employee entitlements would safeguard those small numbers of employers, mainly day hospitals, against the introduction of extremely costly additional entitlements and also, we believe, significantly minimise the complexity of assessing further agreements for no disadvantage.

PN581

As we've said the Private Hospitals Award incorporate the occupational classification structures which are prevalent in existing state nursing awards governing nurses employed in private hospitals and therefore we can see no justification for the establishment of a generic Nursing Occupational Award to the exclusion of industry awards which incorporate the essential elements of those classification structures.

PN582

In most states and territories there are specific awards governing private hospital employees which have been crafted over time to reflect the particular environment in which they work and also include classifications of employees whose roles are unique to an acute hospital environment and that would include clerical personnel such as clinical coders, the anaesthetic technicians, theatre technicians, central sterilising department staff who wouldn't otherwise be well catered for.

PN583

Our industry is substantial, employing 593,000 FTEs who are engaged in quite specific, but nonetheless diverse sectors within the overall health industry and private hospital employers don't believe that this many employees which conservatively on a headcount you'd probably be looking at about 1.2 million, could be appropriately accommodated within just three or four awards without resulting in significant dislocation which may expose employers to added staffing pressures through loss of productivity and wage escalation which, as we've demonstrated, would be extremely costly.

PN584

COMMISSIONER SMITH: I suppose the question would have to be asked, how come Victoria is still running a system?

PN585

MS FISHER: How it's still running a system?

PN586

COMMISSIONER SMITH: Yes. If the sun is not going to come up tomorrow if we do this in the other states, how come Victoria is operating a system, because in your exhibit that you've put to us, mostly it says, "No impact in Victoria."

PN587

MS FISHER: Yes, it is, Victoria has it.

PN588

COMMISSIONER SMITH: They're subject to the same funding arrangements, aren't they?

PN589

MS FISHER: No, they're not and that's where in terms of hospitals it is very complex. Hospitals, even the national groups like Ramsay or Healthscope, even though they may negotiate nationally, the rates would not necessarily be the same in each state and that's just one of the peculiarities of the health insurer contracting environment. Health insurers are required to price their products on a per state basis based on their estimated risk profile for that state. They have to submit their premium applications for ministerial approval and so you will get different premium rates in each state. The revenue they generate obviously is then their pool with which to negotiate the expense side of their business. You'll find there are very discrete differences.

PN590

We did do some work up in Queensland about 18 months ago where we found that for the top 20 most common procedures in private hospitals, we did a state by state analysis based on Commonwealth data and there was a 16 per cent difference in the revenue Queensland got for colosectomy procedures compared to New South Wales and there were similar percentage differences, so the revenue bases are quite different in each state, which in turns tends to reflect in - or historically has in rates of pay in awards, although I must say in Queensland, for example, our award looks significantly lower but the EB rates are about
35 per cent above minimum actual wage rates at the moment. So, yes, the revenue has tended to impact on the wage rates.

PN591

Just to close, we believe that our draft award does satisfy the principles of award modernisation as articulated in the Minister's Request and does meet all the requirements of section 576A(2)(8)(e). I'm happy to take any questions if you have any.

PN592

COMMISSIONER SMITH: I think I've given them to you. Thank you for your submissions. Yes, Mr Blake.

PN593

MR BLAKE: ..... that none of the parties have received those costings that were, as I understand the submissions, filed as a group. We wouldn't want our silence to be taken as being agreement with those.

PN594

MS FISHER: If I may just respond, it was one of the reasons why we'd hoped to be able to go tomorrow morning because then they would have been able to be posted tonight.

PN595

COMMISSIONER SMITH: Are you able to post them tonight?

PN596

MS FISHER: I have a CD if you wanted to load them tonight.

PN597

COMMISSIONER SMITH: We'll make arrangements for that to be done, if you don't leave the building till you give us your CD.

PN598

MS FISHER: I've got the CD right here. My apologies, it was a fairly major exercise to do it in the limited time but they will be available, of course.

PN599

COMMISSIONER SMITH: Any material you're sending, send it to the award modernisation. We'll adjourn until 10 o'clock tomorrow morning.

<ADJOURNED UNTIL THURSDAY 4 DECEMBER 2008 [4.27PM]