Corrections Health Service Nurses' (State) Award (No.2), Re [2001] NSWIRComm 58

Ms C M Howell of Counsel for the New South Wales Nurses' Association

LEGAL REPRESENTATIVES: Mr G J Hatcher of Counsel for the Health Administration Corporation and the Public Employment Office

CORAM: WRIGHT J, President WALTON J, Vice-President MCKENNA C Thursday 29 March 2001 Matter No IRC4265 of 1998

CORRECTIONS HEALTH SERVICE NURSES' (STATE) AWARD. Application by the New South Wales Nurses' Association for a new award Matter No IRC3593 of 1999

PUBLIC HOSPITAL NURSES' (STATE) AWARD. Application by the Health Administration Corporation for variation re Clause 45, Exemption DECISION OF THE COMMISSION [2001] NSWIR Comm 58 1 On 5 August 1998, the New South Wales Nurses' Association ("the union") filed an application numbered IRC98/4265 which sought the making of a new Corrections Health Service Nurses' (State) Award. That application had the effect of varying the terms of the instrument that regulated the employment of nurses employed by the Corrections Health Service ("CHS"), namely, the Corrections Health Service Nurses' (Interim) (State) Award. For reasons we will later discuss, the union ultimately proceeded upon a different path which was directed to amending the Public Hospital Nurses' (State) Award. The union's application was amended in this respect on 4 September 2000. 2 Consequent upon the making of that application, the Health Administration Corporation ("the HAC"), on 7 July 1999, filed an application numbered IRC99/3593 which sought a variation to the exemptions specified in cl45 of the Public Hospital Nurses' (State) Award ("the award"). That application was also amended on 4 September 2000, which amended application ultimately sought the inclusion in the Public Hospital Nurses' (State) Award of a provision governing "Transitional Arrangements" for nurses employed by CHS. 3 The applications each concerned the award remuneration and conditions to apply to nurses employed at facilities administered by the CHS. That is, the applications concern the remuneration and conditions of employment applicable to nurses employed in gaols. Although not reproduced in this decision, a lengthy Statement of Agreed Facts outlining the relevant industrial history of CHS nurses is set out in the decision of Wright J, President given earlier in these proceedings in which his Honour determined certain preliminary issues (see Re Corrections Health Service Nurses' (State) Award (1999) 90 IR 235 at 236). 4 These applications have included proceedings before the President sitting as a single member and conciliation chaired by the Vice-President on delegation from the Full Bench. It is relevant to note that the applications pressed by the union and the HAC have altered during the course of the proceedings. Although the parties reached some measure of agreement concerning certain aspects of the competing applications, a number of issues remained in dispute. 5 It is unnecessary for the purposes of this decision to set out in full the evolution of the parties' respective positions. In short, however, the proceedings originally came before the Commission by way of an application by the union. The HAC opposed that application on various bases, including the effect of a no extra claims provision. Consequent upon the decision by the President referred to earlier, the HAC filed an application which was in the nature of a cross-claim. That application sought to delete a CHS nurses exclusion from the award cl45(iii), which reads: "persons employed by the Corrections Health Service". The short grounds and reasons in support of the variation sought by the HAC stated, among other grounds, that: 1. The claim would place the nurses of Corrections Health Service (CHS) under the terms and conditions of the Public Hospital Nurses' (State) Award. 2. This would provide industrial equity and consistency as it would provide the same conditions and entitlements for the same classification of employee. The qualifications and registration requirements for nurses in NSW are the same.

Both applications have been heard before the Full Bench as a special case under the Commission's wage-fixing principles. 6 On 19 November 1999, Mr G J Hatcher , counsel for the HAC (and, on some occasions, for the Public Employment Office, which intervened in the proceedings) reported to the Full Bench that some measure of agreement had been reached as a result of conciliation proceeding before the Vice-President. Among other areas, the parties had reached agreement that the relevant instrument for industrial coverage of CHS nurses should be the Public Hospitals Nurses' (State) Award. Agreement was also reported with respect to a figure for the salary differential between CHS nurses and public hospital nurses - being an amount agreed at $38.30 a week and described as a "productivity allowance". The principal differences remaining between the parties focused on issues relevant to: (1) the environmental allowance; (2) sick leave entitlements; (3) transfer provisions; and (4) the manner of incorporating the productivity allowance in the award. 7 The majority of the evidence was heard on delegation from the Full Bench by McKenna C. Members of the Full Bench also conducted a number of day and night inspections at a range of locations in gaols and public hospitals. The closing submissions were heard by the Full Bench. Those closing submissions were, in turn, supplemented by further written submissions. The supplementary submissions principally addressed an issue which emerged only late in the proceedings in relation to the potential impact of the transitional provisions of the Health Administration Act 1982. It is appropriate in this decision to first consider those transitional provisions. 8 It was common ground between the parties that a number of the employees who may be affected by the award variations, if any, flowing from the applications before the Commission are transferred employees within the meaning of cl 1, Sch 3 of the Health Administration Act . Certain of the transitional arrangements applicable to such employees deal with salary, wages and allowances. Sch 3 relevantly reads:

(1) In this Schedule: … transferred employee means a person who, on the transfer date, was employed in a designated position and who, in accordance with clause 3, becomes employed in that position as an employee of the person to whom the position is transferred. ...

(1) A transferred employee shall, in respect of service with the person by whom, by virtue of clause 3 [Transferred staff], the transferred employee is employed, be paid salary or wages, and allowances, at a rate not less than that at which the transferred employee would be paid salary or wages, and allowances, if the designated position in which the transferred employee was employed on the transfer date had not been transferred and the transferred employee had continued to be employed in the relevant Instrumentality (2) … (3) … 9 The HAC sought, among other matters, the removal of a long-standing payment to the CHS nurses known as the "environmental allowance". An environmental allowance was payable to CHS nurses when their transfers were effected by or under the Health Administration Act . Counsel for the union, Ms C M Howell , submitted that cl 4(1) of Sch 3 of the Health Administration Act operates to protect the salary, wages and allowances of transferred employees. Ms Howell submitted that any application to remove or reduce entitlements for relevant employees subject to the transitional arrangements under the Heath Administration Act were precluded by the operation of Sch 3 of that statute. Ms Howell further submitted that the HAC's proposals would limit the applicability of the allowance, for example, by restricting its payment only to existing transferred employees and gradually reduce its value. Ms Howell submitted that to accede to the HAC's application would be contrary to "the letter and intent" of the protection afforded to transferred employees by Sch 3 of the Health Administration Act . Not all employees who would be affected by the changes proposed by the HAC were transferred employees and would not, therefore, be subject to the same statutory protection afforded by the Health Administration Act . In this respect, Ms Howell submitted that the Commission ought not "unnecessarily divide the CHS workforce" by giving effect to differing employment conditions between transferred employees and those employed after the date of transfer. 10 Mr Hatcher submitted that the Commission should determine the claims "on the basis of the industrial merits of the applications, untrammelled by concerns as to rights of employees formerly employed by the Public Service". In this respect, Mr Hatcher's submissions continued: It is respectfully submitted that [the union's] supplementary submissions appear to confuse the Commission's general award making role with that of a saving provision preserving individual entitlements. In making an award the Commission legislates [sic] for the appropriate pay and conditions to apply to a position. Individual difficulties arising as a result of translating employees from their existing arrangements to the arrangements determined by the Commission to be appropriate will generally be tended to by a savings clause. This procedure is entirely harmonious with the outcome proposed by the [HAC]. The [union's] submission proposes that the Commission abrogate its award making responsibilities. Rather than determining, as it ought, the appropriate pay and conditions for employees, the Commission would be deferring to the arrangements historically applying. This is an invitation to error that the Commission would reject. 11 In our opinion, Sch 3 of the Health Administration Act preserves allowances such as the environmental allowance for relevant transferred employees. This much is clear from a reading of the plain words of cl 4(1) of Sch 3 of that statute. Salary, wages and allowances within the meaning of cl 4(1) of Sch 3 should, in our view, be protected for relevant transferred employees in any award provisions which may result from the parties' respective applications. As a matter of merit, we have not, in any event, been persuaded that it would be appropriate, as the HAC originally contended in its application, to give effect to award changes which would equalise entirely remuneration applicable to CHS nurses and other nurses presently employed in public hospitals under the award or effect different arrangements for transferred employees and more recently recruited employees. 12 Compendiously described, the evidence and submissions led by the union in support of its applications before the Commission sought to show that CHS nurses work under conditions which are qualitatively distinguishable from the conditions under which public hospital nurses work. The union's evidence contended that CHS nurses routinely are subject to a range of adverse work-related conditions and occupational experiences which markedly delineate their employment from that of public hospital nurses. The effects of such working conditions and occupational experiences were presented as being such as to warrant the granting of the changes sought in the union's application. The evidence in the union's case highlighted the particular professional role of CHS nurses, as such role may often demand a high level of specialised skills, as well as multi-skilling. The union's evidence also highlighted CHS nurses' autonomous professional responsibilities concerning matters such as diagnostic assessments, the administration of nurse-initiated medication under CHS "Standing Orders" and the issuing of "sick in cell" certificates (which excuse prisoner patients from performing their ordinary work duties). The union's case contended that the particular difficulties presented by the identifiable characteristics of many patients in the CHS client base and the consequent level of skill and responsibility required of CHS nurses, coupled with the oppressive working environment in correctional facilities, manifested themselves in a range of ways - including the need for appropriate remunerative recognition and a greater number sick leave-related absences. The union's evidence was also said to show that there had been productivity changes brought about by a range of matters, particularly those related directly and indirectly to the deteriorating ratio of CHS nurses to patients, and the introduction in recent years of new procedures and administrative requirements. As Ms Howell submitted, in short: The application turns on those differences and distinctions in the environment, nature of the work performed and the volume of the work performed, and it largely turns on facts. 13 An overview of the evidence presented in the HAC's case was that, all things considered, there is nothing relevantly distinguishable about the work performed by CHS nurses when compared to and contrasted with the work performed by other nurses in the public health system. Admittedly, there are some uniquely challenging aspects of the CHS nurses' work; however, to the extent that challenging and adverse work-related conditions are experienced by CHS nurses, it can be seen that qualitatively not dissimilar occupational experiences are encountered by nurses employed elsewhere in public hospitals. To the extent that CHS nurses work in facilities under conditions which are secure or security-conscious, then such conditions may be seen, on some analyses, as potentially beneficial in terms of the CHS nurses' personal security (for example, when compared to those of other nurses working with patients who are potentially assaultive or manipulative). The level of professional responsibility exercised by CHS nurses with respect to matters such as administration of medication and so forth was broadly akin to, and not different from, nurses employed in a range of other areas in public hospitals. Mr Hatcher submitted that given the commonality of the work performed by public hospital nurses and CHS nurses, and regardless of the history of different streams of industrial regulation, it was appropriate there now should be a convergence of nurses' industrial entitlements under the award, except to the extent that any savings provisions may be considered necessary or appropriate in the case of the individual transferred employees' entitlements. 14 Although these applications have been the subject of lengthy proceedings, some of the initial differences between the parties diminished as the case progressed. Moreover, despite the array of evidentiary material adduced in the proceedings (including material which provided detailed historical descriptions of the industrial regulation of CHS nurses as well as evidence relevant to the current working environment and responsibilities), only a small number of discrete issues ultimately arose for determination.

Environmental Allowance 15 Upon consideration of the evidence and submissions, in conjunction with our observations during the inspections, the union has not, in our view, established a case that CHS nurses' professional responsibilities and working environments are qualitatively different from those of other nurses in the public system to such a degree of difference as to justify the granting of the full range of matters claimed by the union. Nor has the union demonstrated such changed circumstances as would warrant the very considerable adjustment in the allowance which has been sought. However, we have not been persuaded there are cogent grounds to diminish, let alone extinguish, those entitlements currently enjoyed by CHS nurses which are additional to those applicable to public hospital nurses. The additional entitlements enjoyed by CHS nurses have arisen as a result of the history of industrial regulation of the different groups of employees. 16 The HAC's case has not led us to the view that it would be an appropriate exercise of discretion effectively to ignore history and excise all such beneficial conditions for CHS nurses (even if, for example, the transitional measures in the Health Administration Act did not apply to at least some CHS nurses who may be affected by the proposed changes). 17 The history of industrial regulation is not confined to the payment of the environmental allowance by virtue of a custom or convention, or the operation of some administrative policy or agreement. The environmental allowance was inserted only recently in an award of this Commission by consent of the parties to these proceedings. It was not suggested by the HAC that the circumstances giving rise to the making of that award have altered materially in such a manner as would warrant the removal of the provision. Rather, it was suggested that the insertion of the rates for CHS nurses into the Public Hospital Nurses' (State) Award of itself warranted such a result. We consider that the CHS has not made out an application to remove from the existing award the provisions for an environmental allowance: see Re Pastoral Industry (State) Award [2001] NSWIRComm 27. 18 Further, this approach by the HAC does not sit comfortably with its recognition that some special rates nonetheless should be continued for CHS nurses under the Public Hospital Nurses' (State) Award (namely, the salary differential later referred to in this decision) and its concession that the environmental allowance would continue for employees by either administrative or private treaty arrangement. 19 On the evidence, we are satisfied there are aspects of nurses' work within the public hospital system which may involve adverse working conditions similar to those which may be experienced by CHS nurses. As Mr Hatcher's submissions noted: 16. There are, no doubt, particular circumstances of work in the Corrections Health Service which might be distinguished from work in Public Hospitals. …. 17. Certainly, the evidence will reveal that nurses in Corrections Health are exposed to a number of patients affected by Drug and Alcohol problems and suffering from Mental Health problems. However, this is the lot of nurses in forensic wards and engaged in Mental Health generally. It must be remembered that the prisons population is transient, patients may be treated by nurses at the Industrial Training Centre at Long Bay [gaol] one week, in an environment where security is ever present, and may present with the same or more aggravated problems in view of the lack of supervision, at a local hospital the following week. Nurses in Corrections Health have the advantage of records of the patient's history, allowing more accurate judgement of the risk posed. Moreover, the security arrangements ensure a degree of safety denied to nurses in the Public Hospital environment. 18. The evidence establishes that the risks endured by nurses in corrections health are no greater, and arguably less, than those experienced by nurses in accident and emergency units. In such units a common basis for presentation are drug and alcohol or mental health problems and there is a need to discount other physical factors. All this in an environment where security is casually available, in the sense of there being no equivalent to the "sight or sound policy" in Corrections Health. … 20 It nonetheless seems to us that the types of characteristics creating an adverse occupational environment for CHS nurses associated with their work in prisons could not be described as the general or typical situation for nurses in public hospitals. By contrast, the evidence in the proceedings coupled with our own observations on inspection led us to the conclusion that the everyday working environment for CHS nurses, particular as it is to the exigencies associated with prisons and the characteristics of some prisoners, has features which may be acknowledged to be inherently and generally oppressive. For instance, the Long Bay gaol psychiatric facility accommodates the most high-risk forensic patients in New South Wales, dealing with serious offenders found not guilty of crimes by reason of insanity. 21 When the environmental allowance was introduced by agreement in the 1970s, it was then noted that the purpose of the payment was "to cover all incidents of employment at such an establishment". We accept the union's claim that the environmental allowance should be payable to all CHS nurses working in this environment, not only transferred employees. Our consideration of the parties' submissions has led us to the view that the environmental allowance should be retained and increased, but with only a modest adjustment in some recognition of the fact, for example, that the allowance has not always been adjusted in line with State Wage Case increases. We have been satisfied that the particular incidents of employment for CHS nurses are not otherwise comprehended by the remuneration set in the award for public hospital nurses, and that an environmental allowance for CHS nurses should be incorporated in the Public Hospital Nurses' (State) Award in recognition of the conditions under which work is performed by such persons and the value of their work when performed in such circumstances. 22 An amount of $1,800 a year, described as an environmental allowance, shall be paid to CHS nurses for all incidents of employment experienced in prisons, and prison hospitals and medical facilities. The environmental allowance shall be adjusted from time to time in accordance with any State Wage Case increase covering work-related allowances where that State Wage Case increase applies to the Public Hospital Nurses' (State) Award. In recognition of the high level of casual work performed, the annual amount should be paid in periodic wages (rather than as an annual lump sum). Such payment should be considered for all purposes as salary and adjusted accordingly.

Salary differential 23 As noted earlier in this decision, some level of agreement was reached between the parties concerning the salary differential between CHS nurses and public hospital nurses. Ms Howell's submissions succinctly described the situation as follows: The manner in which the higher CHS rates are proposed by both parties to be incorporated into the Public Hospitals award is through a productivity allowance struck at a rate of $38.30 [a week]. The basis on which that allowance shall be payable is in dispute. 24 Ms Howell submitted that the productivity allowance should be treated as an all purpose allowance and adjusted in line with wage movements to properly maintain the payment. It was submitted that any other arrangement would penalise CHS nurses unfairly, given that the amount in question was achieved, in part, from public sector-wide trade-offs - and would have continued to apply to CHS nurses but for changed industrial arrangements. 25 On the other hand, Mr Hatcher submitted that the appropriate approach would be for the award variations to have the effect of treating the payment of the productivity allowance as a margin, which would diminish over time as the minimum award wage increased. 26 Having regard to the requirements of s10 of the Industrial Relations Act 1996, we consider that no proper basis has been demonstrated for the reduction of the existing benefits enjoyed by the employees. The entitlements enjoyed by employees under the existing award should not lightly be disturbed. The applicant for the change of those conditions has not made out a case warranting the alteration proposed. 27 An amount of $38.30 a week, described as a productivity allowance, shall be paid to CHS nurses. The productivity allowance shall be adjusted from time to time in accordance with any general wage movements in the Public Hospital Nurses' (State) Award.

Other claims 28 The union's application sought paid sick leave entitlements for CHS nurses superior to those otherwise applicable to nurses employed under the award. The union's submissions indicated that the basis of the claim is that the nature of the work performed by CHS nurses is particularly stressful and, as such, higher levels of sick leave are required. The evidence in support of such a claim for such sick leave entitlements was not persuasive. In the circumstances, it is neither feasible nor necessary to refer to it in detail. No case has been established favouring the granting of this aspect of the union's application, and it is rejected. 29 The union's application also sought provision concerning transfers which would be different from those that otherwise would apply to public hospital nurses. That is, the union proposed that certain transfers would require the employee's consent and in such cases the employee would be entitled to the benefits as prescribed in the Crown Officers (Transferred Officers' Compensation) Award. Nothing of any substance was advanced in the union's case which would have distinguished transfers for CHS nurses from other public hospital nurses such as to justify different arrangements to apply to transfers. This part of the union's claim is also rejected. 30 In reaching the conclusion that it is appropriate to effect only the changes described herein, we have considered the evidence and submissions concerning the particular history of industrial regulation of the CHS nurses. We have also considered the evidence indicating the professional responsibilities of CHS nurses and nurses presently employed under the award are broadly comparable (notwithstanding those differences which may be presented by particular occupational environments). In short, the evidence and submissions have led us to the view that the work of CHS nurses and other nurses employed under the award is materially similar rather than materially dissimilar. In this respect, we accept the approach adopted by the HAC in the following submission by Mr Hatcher : My client acknowledges that the work that Corrections Health Nurses do is different to the work of nurses in accident and emergency. It is different to the work of nurses specialising in areas such as gynaecology and midwifery. The work of nurses who specialise in intensive care, the work of nurses who specialise in geriatric care - we say though that all these particular specialities in nursing and indeed non specialised areas such as rural nurses are all important areas and the fact that one specialises in a particular area does not take that to be an increase in the value of work.

Indeed the approach of the parties to the Public Hospital Nurses Award for as long as there has been such an award has been to accept that the area of nursing is equally valuable in all its specialised skills. 31 It seems to us to be significant the parties themselves reached agreement that it is appropriate for the wages and conditions of CHS nurses to be integrated with those of other public hospital nurses under the one award. Upon consideration of matters adduced in the proceedings, we accept that such agreement concerning the vehicle for industrial regulation was properly and appropriately made. Moreover, the parties' agreement in this respect seems pertinently to represent an inherent recognition of the broad similarity of the work. Finally, we consider that the history of industrial regulation of CHS nurses, the significant measure of principled agreement reached by the parties, and the evidence before the Full Bench as to the work of CHS nurses enable the Full Bench to conclude that a special case has been established to vary the Public Hospital Nurses' (State) Award in the terms referred to earlier. 32 We direct the parties to confer with a view to the drafting of appropriate award variations to give effect to the conclusions in this decision. The award clauses should contain a notation stating that transferred employees within the meaning of Sch 3 of the Health Administration Act are not to suffer any reduction in salary, wages or allowances (Sch 3, cl 4). Leave is granted to seek a re-listing on reasonable notice concerning the settlement of the wording of the clauses, should that be necessary. Subject to that consideration, the Full Bench varies the Public Hospital Nurses' (State) Award in terms of the matters set out in this decision. Such variations shall operate from the first pay period commencing after 1 January 2001. Unless a party requests a re-listing, the union shall file and serve the final document of variation in both computer disk and hard copy form by 4.00pm on Thursday 12 April 2001. The Full Bench also rescinds the Corrections Health Service Nurses' (Interim) (State) Award. **********

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