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C2006/ 2430 , Transcript of Proceedings [2006] AIRCTrans 611 (11 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14673-1

COMMISSIONER SMITH

C2006/ 2430 

AUSTRALIAN NURSING FEDERATION AUSTRALIAN NURSING FEDERATION-VICTORIAN BRANCH
AND
TRARALGON VILLAGE FOR THE AGED INCORPORATED
s.170GA - Orders by Commission where employer fails to consult trade union about terminations
(C2006/ 2430 )

MELBOURNE

2.06PM, TUESDAY, 28 MARCH 2006

Hearing continuing

PN1

THE COMMISSIONER: Yes, Mr Gilbert.

PN2

MR P GILBERT: Thank you, Commissioner. We appear to have no appearance from the other side at this stage, which makes my battle somewhat easier.

PN3

THE COMMISSIONER: It makes your life easier, doesn't it?

PN4

MR GILBERT: It does, and it should. I am happy to bat on. I mean, obviously the matter is such that we haven't in our view been consulted and had our rights as a union protected and I don't want to read anything into their non-appearance here today, but other than it perhaps adds weight to our reasons for seeking the order.

PN5

THE COMMISSIONER: Sure.

PN6

MR GILBERT: The Commission has the application with grounds and the nature of the order that we seek and I would just like to go into a little bit of further information, not only relying on what is in the application, but in some other matters that I would like to bring to your attention.

PN7

THE COMMISSIONER: Well, you had better briefly address me on jurisdiction.

PN8

MR GILBERT: Yes. If I could just take the Commission to the amending Act.

PN9

THE COMMISSIONER: Yes.

PN10

MR GILBERT: And section 9 in schedule 4, or I could just read it out to you.

PN11

THE COMMISSIONER: All right.

PN12

MR GILBERT: But it's worded by a very large group of lawyers, no doubt, saying - - -

PN13

THE COMMISSIONER: It's the new simpler system.

PN14

MR GILBERT: Yes, I am feeling more comfortable already:

PN15

Division 2 of part VI of the Workplace Relations Act 1996 as in force immediately before the reform commencement continues to apply as provided by sections 170GD of that Act, as in force immediately before the reform commencement, to an application for an order under 170GA of that Act that was made, but not determined, before the reform commencement.

PN16

So we say we have an application before the Commission that was made on Friday before the reform commencement. The only real differences between the new Act and the old Act is 170GD and the Commission is entitled to rely on 170GD of the old Act and 170GA of the old Act in determining the matter.

PN17

THE COMMISSIONER: Well, there's a section 99 notification. That lapses.

PN18

MR GILBERT: That could be in trouble.

PN19

THE COMMISSIONER: Yes, it is.

PN20

MR GILBERT: It is, yes.

PN21

THE COMMISSIONER: Then in that file, you've noted that the GA is sought and then there's a GB application separately lodged. Unfortunately, it went to Commissioner Grainger, but we've overcome that, so that it comes to the one person, so what we're looking at now is section 170GA of the pre-reform Workplace Relations Act.

PN22

MR GILBERT: That's right, for an order under GB. Perhaps I could provide the Commission, if you're now satisfied with that jurisdictional side of it - - -

PN23

THE COMMISSIONER: Yes.

PN24

MR GILBERT: - - - with some of the other information you might need.

PN25

THE COMMISSIONER: Thank you.

PN26

MR GILBERT: I have a numbered version here for your convenience, I guess, a bundle of documents and one for the file, in case you wanted a clean one on the file.

PN27

THE COMMISSIONER: Thank you.

EXHIBIT #ANF1 BUNDLE OF DOCUMENTS BEGINNING WITH RESIDENTIAL CARE MANUAL

PN28

MR GILBERT: If I could take you firstly, Commissioner, to page 53 of that document, so almost to the end and it's a document headed Yallambee and this is the document that was provided to individual employees, not to the union. At this stage, we've received no written information from the employer. If I can take you to the fourth paragraph down, starting with the second sentence:

PN29

The decision does affect the number of positions available for division 2 nurses. However, and accordingly, the board has made provision for redundancy payments up to a set maximum level overall for those staff who may be interested in accepting such a package. The offer will be made to division 2 staff on a without prejudice basis in the first instance and a decision on who will be able to access the package based on accepting those with the longest service with Yallambee. Those division 2 nurses who do not wish to take a redundancy package or who are not accepted for this voluntary redundancy will be found a position within the organisation at their current salary level.

PN30

And I just pause there for a moment, because we will address that in a minute:

PN31

Any of the division 2 nurses employed at Yallambee are invited to contact either Helen or myself -

PN32

Helen being the director of nursing -

PN33

to inquire as to their redundancy package details and this inquiry is to be made no later than 5 pm on 24 March 2006. These inquiries will be on a without prejudice basis to either party and will not form any type of commitment for either party. Any expression of interest received after the closing date will not be able to be considered, as we do have budgetary constraints for such severance payments.

PN34

What I understand that to me is they have a bucket of money which can only be divided up to so many people. Go over the page, this is what they call an impact statement to staff.

PN35

THE COMMISSIONER: Could I just ask you to pause for a moment? The jurisdictional prerequisite - - -

PN36

MR GILBERT: Being 15 or more.

PN37

THE COMMISSIONER: Yes.

PN38

MR GILBERT: Yes, I will come to that. As difficult as that will be without the employer being here, I might say, if I go down on the second page to the last paragraph under (a):

PN39

Bartling Place currently employs nine EFT registered nurse division 2 staff with service records of between four and 24 years. The organisation proposes to offer all division 2 staff at both Margery Cole and Bartling Place -

PN40

these are the one employer -

PN41

the opportunity to take up an offer of voluntary departure with an assurance of no prejudice. However, all staff will be invited to apply for appointment to shifts available within advertised positions at the level advertised within the overall expanded Margery Cole service, even following acceptance for voluntary departure.

PN42

Now, the nine EFT of division 2 nurses is 16 individual employees. I can provide for the Commission's file on a confidential basis the names of those 16 employees, if that would be of assistance to the Commission.

PN43

THE COMMISSIONER: No, I accept your submission.

PN44

MR GILBERT: I naturally assumed the other side would be here to presumably accept that as well, so there are 16 division 2 nurses who are affected and if that paragraph can be broken down or paraphrased, what it's saying is if you do not accept employment on their terms, you will not have employment. That is, you will no longer have employment as a division 2 nurse. You can either apply for a redundancy package or you can apply for employment as a carer, which is a position that does not require a nursing qualification and it's a different classification.

PN45

THE COMMISSIONER: That is what is meant by will be found a position within the organisation at the current salary level.

PN46

MR GILBERT: Yes, and then at the level advertised, being the important point and the level advertised will be not in accordance with their current jobs and their current award classifications and their current award, but a different award, different award classification, et cetera. There is an added difficulty in that historically, Bartling Place is a 30 bed nursing home and it's going to be relocated across the road to be adjoined to a 46 bed hostel.

PN47

Going back to 1997, we ran a case before this Commission under 170MX and a consequence of that is that nurses employed in nursing homes received a 15 per cent increase over three years. Nurses employed in hostels did not receive that entitlement and they received safety net adjustments through that time. Subsequently, we've now got an enterprise agreement in place at this facility and many others where that wage differential has been maintained.

PN48

They both get the wage increases, but that wage differential unfortunately has been maintained. Another aspect of this proposal is that wages will freeze until the people who are employed in the nursing home get paid at the lower rate that applies in the hostel, so there's an added dimension in terms of what could be constituted acceptable alternative employment were an argument to come to that.

PN49

There is also significant concern for the ANF in the way in which a number of our members will be affected by this, not just in respect to those directly affected by the decision to terminate, but also in terms of those who are left behind, but that's not so much a matter for today. It may become a separate application under the agreement provisions. In their documentation, they indicate that one of their reasons for doing this is their belief about how laws will change in respect to medication administration in this state.

PN50

Currently, the nursing home staff, of the nursing home staff, only registered nurses division 1 can administer dangerous medications to residents. That's because under the drugs and poisons regulations, a facility that was a nursing home prior to 1997 must abide by the provisions that relate to nursing homes, even though they call themselves something else today. They believe, in our view wrongly, that by moving the nursing home across the road, they will no longer fall into that bracket.

PN51

Secondly, they are aware that there are amendments to legislation currently before state parliament that will make it a legal requirement for a registered nurse division 1 to manage the care of medications in an aged care facility, not just a nursing home, but all aged care facilities that have any high care residents in them, so transposing that to Yallambee, they will have to have a registered nurse division 1 responsible for managing the medication, not necessarily administering it, but managing it and the federal legislation requires a division 1 nurse to manage all of the care of a high care resident, so the division 1 nurses become responsible for ensuring that medication is administered properly.

PN52

What the government have done, this is not in law yet, but presumably will become law, is also make it an offence under that law for an employer to coerce or in any way induce a registered nurse not to follow their professional judgment in making that decision on how they will manage that medication and what this employer appears to be doing is pre-empting that by taking away their choices as to who they delegate that work to, if anyone.

PN53

By taking away the division 2 nurses and leaving them only with carers to delegate to, they're effectively creating a circumstance where either one nurse delegates - administers to 96 residents or has to delegate, so they're effectively minimising the capacity for that judgment and pre-empting legislation that has to have guidelines issued with it by the Nurses Board that are two months away, so we've got very real concerns from a public interest point of view about their decision to terminate these people, when, in fact, they would have opportunities to, (a) keep them on and, (b) to offer them additional training, possibly at no cost to themselves because the federal government fund substantial numbers of it, to enable those division 2 nurses to safely and legally administer medication.

PN54

So we believe there's ample reasons for consultation being in their interests, as well as in ours, but at this stage we've had no opportunity granted to us to have that consultation occur and that's despite a letter pre-empting this application on Thursday, seeking a response from Bartling Place. A copy of that letter from our solicitors is in the file - in ANF1, I am sorry, calling on them to pretty well do the things that we're now seeking in this order.

PN55

THE COMMISSIONER: That's dated the 24th, is it?

PN56

MR GILBERT: 24 March, yes, page 21. They failed to respond to that correspondence in any way, so it seems to us that there is now no alternative other than to seek an order under 170GA, that there is no particular alternative, that there are 15 or more employees and that the other matters that are raised both in submissions today and in the application to the Commission, that we seek the orders in the form sought in the application, unless the Commission has any questions of me.

PN57

THE COMMISSIONER: All right. Mr Gilbert, I am prepared to give the employer the benefit of the doubt, rather than think this is a portent of things to come, so I will make the order, but I will make it on an interim basis at this stage, to give the employer an opportunity to be heard and I will re-list the matter for probably Thursday. Not Thursday, the following Monday, the 3rd, so if you would care to return at 3 o'clock, we will give you a copy of the decision and the signed order.

PN58

MR GILBERT: Thank you, Commissioner.

PN59

THE COMMISSIONER: Thanks, Mr Gilbert. The matter is adjourned.

<ADJOURNED UNTIL MONDAY 3 APRIL 2006 [2.21PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ANF1 BUNDLE OF DOCUMENTS BEGINNING WITH RESIDENTIAL CARE MANUAL PN27