Australian Industrial Relations Commission (Full Bench)|2009-04-03

Health Services Union v Austin Health and Ors (as per Schedule 1) - Full Bench [2009] AIRCFB 353 (3 April 2009)

Workplace Determination - operative date of determination - distinction between operative date of determination and operation of determination - retrospective wage increase - need for special and compelling circumstances - dispute resolution - meaning of "in accordance with model dispute resolution process".

Sole employee allowance and classification of employee working independently

Classification of health professionals working in community health centres/psychiatric services

[1] On 22 October 2007 Health Services Union (HSU) initiated bargaining periods (the bargaining periods) in respect of 68 employing Victorian Health Services and Community Health Centres. By order dated 17 March 2008 Commissioner Cribb terminated each of the bargaining periods pursuant to subsections 430(1) and 430(3) of the Workplace Relations Act 1996 (WR Act). The termination of the bargaining periods resulted in a period of negotiation between the parties. The matters at issue were not resolved and, on 14 April 2008, HSU sought the constitution of a Full Bench for the purpose of issuing a workplace determination under s.503 of the WR Act. The matter came on for hearing on 12 September 2008. In the interim there had been a period of Commission assisted negotiations consistent with the provisions of s.502 of the WR Act.

[2] The HSU is an organisation of employees representing in these proceedings the category of employees known as "allied health professionals" who are employed by Victorian Health Services or Community Health Centres (CHC) in the public health system. The health services and health centres, which we will refer to generally as the employers, are members of, and represented by the Victorian Hospitals' Industrial Association (VHIA). VHIA is an organisation of employers. It is supported in its representation of the employers by the Victorian Department of Human Services (DHS) intervening on behalf of the State of Victoria. DHS is the department of government through which the Victorian Health Services are funded.

[3] The terms and conditions of employment regulating the employment of employees sought to be covered by the determinations are found in the Health Professionals Services - Public Sector - Victoria Award 2003 (2003 Award) and the Health Services Union of Australia Health Professionals Victorian Public Sector Multiple Business Agreement 2004-2007 (2004 Agreement).

[4] HSU and VHIA each filed draft determinations in which each makes competing proposals for changes to some of the existing terms and conditions of employment. VHIA submitted that a separate determination for each health service or community health centre is a necessary incident of the statutory requirements for workplace determinations. We think this is an accurate reflection of the requirements of Part 9, Division VIII of the WR Act. VHIA's draft determination is generic in its form but incorporates variations as necessary to suit the requirements of certain identified individual health services' determinations. We will refer to the VHIA draft as either that of the employers or as the respondents being, as it is, supported by the intervener and the several employers represented by VHIA.

[5] Subsequent to the commencement of proceedings the employers and the HSU have made changes to their respective draft determinations. The changes involved removal of some of the original claims and variations to others. We will deal only with the claims and counter claims as they appear in the final draft workplace determinations.

[6] In its draft determination the HSU seeks to maintain all existing award and agreement terms and conditions with some variations and improvements and with the addition of new ones. To the extent that it seeks to maintain existing terms and conditions of employment the draft determination expressly provides that the employees' terms and conditions will be maintained and seeks to incorporate by reference certain specified agreements. The new or varied terms in the HSU draft determination, all of which are disputed, fall within the following descriptions:

procedure in relation to performance or conduct;

classifications of health professionals working in community health and psychiatric services;

entitlement to long service leave upon termination of employment**;**

[7] The respondents contend that 13 of the 68 employers sought to be bound by a workplace determination are not employers within the meaning of s.6 of the WR Act and cannot be subject to a workplace determination. It was further contended that the health services are emanations of, or part of the State of Victoria and as such cannot be subject to an order of the Commission that affects their capacity to determine the number or identity of persons whom they wish to employ. As to the first of these two issues the parties have agreed that pending the outcome of the proceedings in respect of the 55 employers for whom the respondents concede jurisdiction, the Commission reserve any further steps in respect of the other 13 employers that are said to be unincorporated. Those matters are reserved accordingly. The second issue is contested in relation to its major premise and, in the alternative, as to the capacity of the Commission in any event to tailor an order to suit the circumstances of the case. In light of the conclusions we have reached in respect of the HSU claims it is unnecessary for us to determine whether the employers are part of the State of Victoria.

[8] As suggested earlier the respondents filed a single draft workplace determination incorporating different substituted terms for some of the employers other than the CHC's said not to be employers as defined. Indicated within the body of the respondents' draft are the suggested variations as required for individual employer determinations. The respondents filed also six different proposed classification structures, four of which are identified to individual health services, one of which applies to two of the health services and the other being applicable to the remaining 49 health services.

[9] While expressly providing that the final workplace determination will supersede all existing formal and informal agreements and the 2003 Award, the respondents' draft determination for the most part includes existing terms and conditions from the 2003 Award and the 2004 Agreement but with some variations or modification to meet the requirements of the amended legislation. We will include in the workplace determination the classification structures as proposed by the employers.

[10] The respondents' draft determination includes a number of enhancements; proposing service delivery improvements and productivity measures, wage increases, increased paid parental leave, increased meal, uniform and laundry allowances, a new entitlement to blood donor leave, a new entitlement to emergency relief leave, removal of the provision for deduction from wages for board and lodging and a new disputes resolution clause. To the extent that the proposed terms or conditions are part of the HSU draft workplace determination we will deal with them conjointly. Otherwise the matters will be dealt with chronologically in terms of the draft determinations that the parties have provided. The respondents' draft proposes a number of other changes, which either remove or modify existing terms and conditions of employment. The changes, some or which are intended to promote productivity improvements, include:

provision for using or cashing out excessive leave;

substitution of "Employer" for "HSU or TUTA" as the entity for authorising attendance at dispute resolution training courses;

removal of requirement to advertise staff vacancies;

removal of entitlement to Easter Saturday pay for Monday to Friday workers;

modification of provision for employee forfeiture of pay in-lieu of notice of termination;

restriction of sole allowance to Grades 1 and 2 employees only.

Each of these proposed changes, apart from the flexibility clause, is implicitly contested by the HSU draft dealing with the same issues. The flexibility clause is explicitly opposed on the ground that it was not a matter at issue during the bargaining period.

[11] We note the constraints imposed by the legislation on the terms that may be included in a workplace determination and on the matters or factors that may be taken into account in deciding those terms. These matters are to be found in s.504 of the WR Act. Section 504 provides as follows:

"Section 504 Content of workplace determination

(1) The workplace determination must contain terms that, in the opinion of the Full Bench, deal with the matters at issue.

(2) The workplace determination comes into operation on the day on which it is made.

(3) The workplace determination must contain a term specifying a nominal expiry date for the determination that is no later than 5 years after the date on which the determination commences operating.

(4) The workplace determination must not contain prohibited content.

(5) In deciding which terms to include in the workplace determination, the Full Bench must have regard to the following factors only:

(d) how productivity might be improved in the business or part of the business concerned;

(e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;

(f) incentives to encourage parties to pursue negotiated outcomes at a later stage;

(i) any other factors specified in the regulations.

(6) The workplace determination must require disputes about matters arising under the determination to be dealt with in accordance with the model dispute resolution process (see Part 13).

(7) The workplace determination must not contain any terms other than those required by this section."

[12] No regulations have been made specifying any other factors that must be taken into account. We note that this is the first time a workplace determination has been considered under the provisions of s.504.

[13] The parties addressed each of the matters set out in s.504 in their submissions both directly or in the context of competing claims included in the draft determinations and supporting evidence. Before turning to consider the competing claims of the parties it is instructive to examine the history of the industrial instruments regulating the terms and conditions of employment of allied health professionals and the bargaining between the principal parties in this sector of the industry. The history is important for two reasons. First, each party suggested that the other's conduct during the bargaining period was unreasonable. That is an issue relevant to our determination. Secondly, HSU contends that its capacity and that of its members to resort to protected industrial action is constrained by the nature of the work of its members and their moral commitment to their duty of care. That is a matter relevant to the interests of the parties.

History of bargaining and industrial instruments

[14] This determination represents the third occasion in the past 10 years where the Commission has been called upon to intervene in the negotiations between HSU and the employers for an agreement on terms and conditions of employment for allied health professionals. In 1999 the Commission pursuant s.170MW of WR Act, as it then was, terminated the bargaining periods between the HSU and a number of health services including the employers. A Full Bench subsequently, in the exercise of the powers conferred on it by s.170MX of the WR Act, as it then was, made the Health Services Union of Australia and Alexandra District Hospital - Health Professionals - Victorian Public Sector - Award 1999 (1999 Award) with a nominal expiry date of 31 August 2000.

[15] About the time the 1999 Award reached its nominal expiry date HSU and VHIA commenced negotiations for a new agreement. The negotiations culminated in the parties requesting the Commission under s.111AA to resolve the matters in which the parties could not reach agreement by conducting a hearing and making a recommendation. Taking into account the Commission's recommendations the parties negotiated the Health Services Union of Australia Health Professionals Victorian Public Sector Multiple Business Agreement 2000-2004 (2000 Agreement). The 2000 Agreement was certified by a Full Bench of the Commission on 26 August 2003 with a nominal expiry date of 31 March 2004.

[16] HSU and VHIA commenced negotiations for the current multiple business agreement, i.e. the 2004 Agreement about the same time as the 2000 Agreement reached its nominal expiry date. The parties reached agreement without intervention by the Commission. It was finally certified as a multiple business agreement by a Full Bench of the Commission on 12 January 2006, with a nominal expiry date of 30 September 2007.

[17] As mentioned in the first paragraph HSU initiated bargaining periods on 22 October 2007. HSU commenced negotiations with VHIA and DHS for a new agreement in November 2007. Soon after the commencement of its negotiations HSU applied for and secured protected action ballots in respect of allied health professionals employed by Melbourne Health, Northern Health, Peter MacCallum Cancer Centre, St Vincent's Health and Western Health. The allied health professionals employed in each of the named establishments other than St Vincent's Health approved the industrial action proposed in the ballots. This was followed by some allied health professionals engaging in unprotected industrial action while others notified their employers of an intention to engage in such action. A VHIA application to stop or prevent the industrial action resulted in the agreement of HSU to lift or ease the unprotected industrial action and for conciliation before Vice President Lawler to occur. Conciliation failed to resolve the issues and HSU members resumed their unprotected industrial action.

[18] VHIA secured orders under s.496 of the WR Act directing that industrial action stop or not occur. The unprotected industrial action continued while HSU challenged the validity of the s.496 orders by way of appeal to a Full Bench of the Commission. Meanwhile VHIA applied to the Federal Court of Australia for orders in respect of the HSU's contravention of the s.496 orders. The Federal Court issued interim orders retraining HSU from organising, directing, inducing, authorising, encouraging or facilitating industrial action.

[19] In the course of hearing HSU's application for a stay of the operation of the s.496 orders on 21 and 22 December 2007, HSU asked the Full Bench to terminate some of the bargaining periods. In so doing it expressed concerns that some of its members were resolved to take industrial action that would endanger the lives of people. On 22 December 2007 HSU applied for the suspension of a number of specified bargaining periods. The Full Bench suspended the nominated bargaining periods on 24 December 2007 until 14 January 2008.

[20] On 12 March 2008 the allied health professionals approved industrial action in respect of the employers. The industrial action was scheduled to start on 18 March 2008 and to continue indefinitely. On 17 March 2008 the Commission, acting on the applications of a number of the employers, terminated the bargaining periods in respect of those employers. HSU unsuccessfully appealed the orders terminating the bargaining periods and the matter proceeded as outlined in [1] above.

[21] On the issue of reasonableness of the parties HSU complained of a failure or refusal by VHIA members to provide information to facilitate negotiations. In this regard it is said that VHIA has been unreasonable. The information that HSU sought related to the equivalent full-time (EFT) allied health professionals in each of the classifications. It is contended that the failure or refusal of the employers to provide the information hampered negotiations and placed HSU at a disadvantage. VHIA contends that HSU did not lead any evidence that revealed any disadvantage suffered in the course of negotiations. HSU's negotiations were said to have focussed on structural issues and it could not have been assisted in that regard by the EFT staff employed by the employers. It is absurd, VHIA submitted, to speculate that the provision of the material would have had any impact whatsoever on the course of negotiations at all.

[22] VHIA for its part complained of HSU and its members conduct in bringing about the termination of the bargaining periods and their continued industrial action contrary to the public interest and in spite of the Commission's orders that the industrial stop.

[23] In our view the conduct of the principal parties warrants some criticism. It appears that the information that HSU sought from VHIA was available. No explanation has been offered for not providing it. VHIA's failure to provide the information sought raises some doubts about the degree to which VHIA was genuinely motivated to reach agreement. Had the information been provided it would have engendered a medium of trust and assisted in better bargaining. On the other hand the conduct of the HSU and its members in taking and continuing industrial action contrary to the WR Act and in the face of Commission orders that it desist is a serious matter and deserving of serious criticism. While the frustration of its members with the bargaining process is a mitigating factor it does not excuse entirely the admitted preparedness of the employees to take unprotected industrial action that may have endangered the lives of others. We take all of these matters into account in our determination.

[24] The parties relied on documentary witness evidence. Witness statements were filed by HSU and VHIA in support of their respective cases. HSU also sought to rely on a number of statutory declarations of individuals who were not to be called to give evidence. The respondents objected to admission of the declarations as evidence and they were marked for identification but were not subsequently addressed and were not admitted unconditionally. No weight is given to them. There was a total of 176 exhibits including witness statements, published reports, awards and agreements and other documents. All witnesses for whom witness statements were filed were required for cross-examination. Appendix 1 is a list of the witnesses who gave evidence.

[25] HSU has made a significant number of claims. Some claims are granted. There was a number however that superficially had merit, but, unfortunately, the evidence, as it was presented to us, was not sufficiently persuasive to justify a favourable decision granting all of the claims.

[26] There are aspects of the existing terms and conditions that neither party seeks to change other than by changes in form or expression to conform to the legislative changes introduced since the 2004 Agreement was certified. Some of those matters are dealt with in this decision Where however we do not expressly deal with matters we will include the existing award or agreement terms as modified for legislative conformity in our determination.

[27] The HSU addressed briefly and in general terms each of the s.504 factors. It made the following general submission in respect of the merits of its case:

"Recruitment and retention of allied health professionals, particularly in some disciplines, has been problematic for years. Remuneration and professional issues are important factors."

This was the focal point upon which HSU pitched its case. In respect of the other factors HSU submitted generally that:

maintenance of real wages was in the interests of the negotiating parties and the public interest;

its proposed terms and conditions will enhance productivity by providing better governance;

VHIA was unreasonable in its refusal or failure to provide information to facilitate negotiations;

a workplace determination of short duration will be an incentive for the parties to negotiate; and

in considering the employers' capacity to pay, the Commission should ignore the suggestion that the Government may not fund the costs associated with the determination.

[28] Other than the contention that the provision for flexible working arrangements in the respondents' draft determination was not a matter at issue during the bargaining period, the HSU did not expressly take issue with the contents of the respondents' draft determination. It is implicit however, from the HSU draft determination, that it takes issue with each and every provision of the respondents' draft that contradicts the provisions of its own draft determination.

[29] The respondents' submissions in respect of the matters set out in s.504 first attempted to define the ingredients of each of the factors independently of the claims before addressing its own and then the HSU claims within that context. We do not propose addressing the definitions proposed by the respondents but we will take them into account and address them as necessary in dealing with each of the claims in the context of the factors to which we must have regard. We will deal with those matters chronologically as they arise in the disputed claims of each of the parties. Before doing so however it is important that we resolve two disputed issues that have some impact on the other aspects of the determination. The first issue is about retrospectivity in the context of the operative date for the determination. The other issue is that of the competing claims in respect of increases in wage rates.

[30] Clause 5 of the HSU's draft determination provides in part that the determination shall come into force from the beginning of the first full pay period on or after the operative date of this determination. Clause 21 provides that the classifications specified therein shall be paid in accordance with the schedule of wages. Schedule 5 is the relevant schedule. The schedule takes the form of three columns showing classification, wages at 1 October 2006 and 16% increase at October 2008. Implicit in the schedule is the expectation that a proportion of any wage increase granted in our determination is to be retrospective to October 2006. In its submissions the HSU posited that an appropriate split for a 16% increase would be 10% retrospective and 6% prospective.

[31] The respondents contend that the Commission has no power to include a retrospective period of operation in the workplace determination. They submitted that when s.504(2) is contrasted with s.170MX in its legislative context with ss.170MY, 145 and 146 of the pre-reform WR Act, it is clear that the option for retrospectivity that existed under the pre-reform WR Act is no longer available. The HSU's submissions on the other hand draw a distinction between the operative date of the determination and the operation of the determination according to its terms. It referred to the Full Bench decision in Chubb Security Australia Pty Ltd and Australian Liquor, Hospitality and Miscellaneous Workers Union [1] in which it made the obiter observation that giving a retrospective date of effect was common in certified agreements although the agreement came into operation at the date of certification. The HSU submitted that the operation of the determination does not preclude it having retrospective effect if that is what its terms stipulate.

[32] We accept that under the pre-reform WR Act agreements were commonly certified on a particular date with a term specifying that certain terms or conditions of the agreement were to take effect at a date prior to the date of certification. This was despite the legislative stipulation that the agreement operated from the date of certification. It is difficult however to ignore the conceptual difference between an agreement that carries a term giving a benefit or imposing an obligation retrospectively and an award or order of the Commission with that effect. That is not to say that the legislation draws that distinction or otherwise constrains an order of that kind, as we consider that it does not. In our view however, such an order in a workplace determination would require evidence of special and compelling circumstances.

[33] HSU submitted that retrospectivity was justified to provide an operational bonus and to appropriately remunerate employees. It contended that a 10% increase retrospective to 1 October 2007 was justified. This included a 7% increase that the HSU contended was necessary to restore the allied health professionals to the same real wage they had at the date of the last pay increase. The respondents submitted that the premise upon which the HSU based its 7% real wage claim was flawed. The HSU calculation, according to the respondents' argument, presumed as its start point 1 October 2006 which was the date of the last pay increase. The respondents submitted the correct start date was 1 October 2007 as the increase paid on 1 October 2006 was an annual increase through to the nominal expiry date of the collective agreement, i.e. 30 September 2007. While opposing any retrospectivity the respondents submitted that, having regard to the CPI alone, an increase of 4.67% would be sufficient to restore the employees' real wage.

[34] Having regard to the submissions and the relevant factors set out in s.504 of the WR Act we are satisfied that special and compelling circumstances have been shown to exist for retrospective operation of the terms of our determination in this case. It seems to us that it would be unfair not to do so given the time that has elapsed since the allied health professionals' last pay rise, the drawn out process of negotiation and conciliation, the time elapsed since the matter was last heard and the slippage in relativities between allied health professionals and the nurses. The delays represent some savings to the health services. In our view the unfairness to the allied health professionals is a special and compelling circumstance warranting a wage increase which is retrospective to the first pay period commencing on or after the date on which we reserved our decision in this matter. The determination will be operative from the date of the determination but it will make provision for a retrospective wage increase accordingly.

[35] The employers propose a 2% uplift in the current wage rates with an additional 3.25% increase as at the date of the workplace determination and then for each year of the life of the determination. HSU proposes a 16% increase with some proportion being made retrospective to 1 October 2007. It is common ground that maintenance of real wages is a relevant factor in wage setting. HSU and VHIA advance competing arguments however for the respective proposed increases based on the Consumer Price Index (CPI), the Wage Price Index (WPI) and the Labour Price Index (LPI). Each contends that their respective wage proposal is consistent with the maintenance of real wages in the sector. Before dealing with the competing claims on wages it is necessary to set out the background to the employers' position on wages.

[36] The employers submitted that throughout the course of the negotiations between VHIA on behalf of the employers and HSU on behalf of the allied health professionals, it was the aim of VHIA to achieve an outcome that was consistent with the Victorian Government wages funding policy (funding policy). The funding policy facilitates Government policy on outcomes for employees of budgeted funded agencies and internal funding of departments by the Government. The Government determines the level and total price of services and funds the agencies, including DHS, accordingly. Price is increased over time by an escalation factor based on movements in the rate of projected CPI increases (escalation factor). Under the current funding policy an overall average annual increase of 3.25% on the total cost of the agreement, part of which is the escalation factor, is to be used as a guide for agreement outcomes. The respondents' workplace determinations, the employers submitted, are formulated consistently with the funding policy.

[37] The employers submitted that the cost of their proposal exceeds the escalation factor. Consequently demonstrable service delivery improvements and productivity offsets are required to meet the requirements of the funding policy. The respondents' draft determination lists the elements of the productivity offsets. In their submissions the employers summarised the offset elements as follows:

cooperation and support for the Better Skills Best Care workforce project to encourage uptake of the full spectrum of allied health roles;

Cooperation for increased use of allied health assistants to work along-side allied health professionals;

production of a single instrument governing the terms of allied health professionals at each health service and clarification of the operation of existing entitlements in a number of respects; and

increased flexibility in workplace practices and arrangements.

[38] The funding policy, it was submitted, is a relevant and cogent consideration in determining wages and conditions of employment in a workplace determination. The employers submitted that any workplace determination of the Commission should be broadly consistent with the funding policy. The funding policy supports equitable wage outcomes and has formed the basis of all negotiated outcomes in the bargaining rounds concerning the Victorian public sector employees.

[39] The employers contended that CPI is a factor to be considered in assessing real wage growth. It is not however, the only factor. But even considering CPI alone allied health professionals have experienced real wage growth to date. To the extent that CPI is used in assessing the HSU claim it should be used, the employers submitted, going forward from 1 October 2007. In order to maintain the wages of allied health professionals as they stood at 1 October 2007, based on CPI alone, an increase of 4.67%, including the notional 1.1% increase for the September quarter, is required.

[40] As noted above HSU seeks a 16% wage increase. It submitted that allied health professionals had suffered real wage cuts. The employers' proposed salary increases, it was submitted, would cut wages even further. In effect its case is that since the changes in allied health professionals' wages effected by the s.170MX arbitrated award in 2000, there have been significant changes in the work and the role of the allied health professionals. They have delivered already substantial productivity measures and service improvements. The changes have not been adequately rewarded in subsequent bargains or negotiated outcomes since then.

[41] Furthermore, HSU submitted, real wages of Victorian public sector nurses have far outstripped those of allied health professionals and relevant relativities have been eroded. Real wages of allied health professionals have fallen by 10% since April 2000. Referring to the Australian Bureau of Statistics Average Weekly Earnings (AWE) survey it was submitted that the wages of health professionals had fallen by 9% - 10% since April 2000. Based on CPI indices, HSU submitted that wages of the relevant health professionals have fallen 3% in real terms since 1 April 2004.

[42] The employers contend there are more relevant datasets for public sector employees than the AWE. It was further submitted that the HSU used national figures rather than Melbourne figures in calculating real wages over the period March 2000 to December 2007 which show that wage increases have matched inflation and represent maintenance of real wages. The employer went on to criticise the HSU methodology in using the WPI to demonstrate wage comparisons.

[43] We have had regard to the employers' submissions on the funding policy in their entirety and we accept the broad thrust of those submissions on the desirability of stability and consistency in wages and conditions in this and related fields of employment in Victoria. [2] While that is a relevant consideration it is not, as was properly conceded by the employers, the only consideration.

[44] We are satisfied that there has been some addition to the work requirements of allied health professionals, but the evidence does not demonstrate that there has been a significant net addition. The evidence reveals that the technological and changes in methods are little more than evolutionary improvements in the work of allied health professionals. While there has been an increase in patient acuity the increase is not so significant to take it outside the scope of the value of the work being performed by allied health professionals. It follows that we are not satisfied that the change in the work methods and equipment warrants an increase in wages. We nonetheless acknowledge the growing importance of the work performed by allied health professionals.

[45] We regard the national CPI changes are the optimal measure of inflation. Although it is true to say, as the respondents do, the national figures do not take account of any rural or regional aberrations. It is a fair assumption however, that by comparison a greater degree of local price fluctuations will be smoothed over where the averages of the capital cities are weighted to produce the equivalent of an all Australia index. Hence, in the absence of appropriate data collection for rural and regional areas, it is appropriate to extrapolate the all Australia index data in preference to utilising that pertaining only to the relevant State or Territory capital.

[46] The respondents in their submissions are also critical of HSU's reliance on the WPI component of the LPI, Australia, December 2008 index instead of the broader LPI, which incorporates the WPI component and an additional four non-wage price indexes. It would appear that where changes in wage and salary levels are under consideration the WPI sub-index is more appropriate than the broader concept of changes over time in the price to an employer of employing labour services. [3] It is clear in any event that whichever measure is used allied health professionals have experienced real wage increases in the period March 2000 to December 2007 in the order of 3.5% to 4.5% between the March quarter 2000 and the September quarter 2007. Similarly, HSU experienced real wage growth over the period of the 2004 Agreement to the end of September 2007 whether calculated using the national or the Melbourne inflation figure; 1.4% using the Australia index and 2% on the basis of the Melbourne index.

[47] The respondents in their reply to the HSU's submissions on mid-year data submitted that sole reliance on the WPI ignores other wage data prepared by the ABS. Referring to the average weekly earnings data in particular the employers submitted that a 1.3% increase in average weekly earnings was to be seen in the six months from November 2007 to May 2008. This it was suggested showed a far smaller increase over time when compared with the WPI. As the following table shows that is not necessarily so:

TABLE 1. Extracts from Average Weekly Earnings, Australia, Nov 2008 [4] and Labour Price Index, Australia, Dec 2008 [5]

[48] Table 1 shows that the increase in average weekly earnings in the period between November 2007 and November 2008 was greater than the increase in the WPI in each of the indices. The Table also suggests that although the real wages of allied health professionals did not fall in the period between 2004 and 2007 their wages have fallen behind the increase in average weekly earnings in the 2007/2008 period. In the same period their wages have not kept pace with those of the nurses. We note also the increases in the minimum wage granted in the Australian Fair Pay Commission National Wage Setting decisions in 2007 and 2008.

[49] In our view, HSU has not made a case for an increase of the magnitude of 16%. Doing the best we can on the material before us, including the conduct of HSU and its members, we have concluded that an initial adjustment of 5.25% is justified with further annual increments of 3.25% for the life of the determination. In light of the delays occasioned by the parties' attempts to resolve the matter through private and Commission assisted bargaining subsequent to the termination of the bargaining period and the delay in publishing our decision we are satisfied that there are special and compelling circumstances for making the adjustment retrospective. Accordingly, the initial 5.25% increase will be retrospective to 21 November 2008, i.e. the last day for filing written submissions at the conclusion of the hearing. We will come in due course to the term or duration of the determination.

[50] HSU in its draft determination proposes a catch-all clause maintaining existing terms and conditions of employment, to the extent that they are not inconsistent with any determination we may make, and expressly incorporating by reference the terms of the following agreements:

Gippsland Southern Health Service (Health Professionals) Enterprise Agreement 1995

Southern Health Care Network and HSUA (Health Professionals) Certified Agreement 1997

Royal Victorian Eye & Ear Hospital Health Professionals Certified Agreement 1996

St Vincent's Hospital, Melbourne and HSUA (Health Professionals) Certified Agreement 1997

Women's and Children's Health Care Network and Health Services Union of Australia (Health Professionals) Enterprise Agreement 1997

The Women's and Children's Health Care Network (Allied Health Professionals of the Royal Women's Hospital Campus) Enterprise Agreement 1996

[51] In our view it is not in the interests of the parties or the public interest that employers and employees be required to determine their rights and obligations from multiple and potentially dichotomous industrial instruments. Accordingly, we will not include the proposed clause or otherwise incorporate the agreements by reference. If parties wish to include terms of existing industrial instruments in a workplace determination it is important that the terms themselves form part of the determination as a self contained instrument.

[52] We will include in our determination the anti-discrimination clause as proposed by HSU's draft.

[53] Each of the parties have included definitions in their draft determinations, some of which diverge but most of which are the same in substance. We consider the employers' definitions for "employee" and "employer" accord with the content of the proposed workplace determinations, particularly as separate determinations are required for each employer and the definitions obviate the necessity for a general scope clause. The employers' proposed definitions clause also includes definitions not included in the HSU draft. The definitions are relevant and should be included in the workplace determination.

[54] HSU proposes a short term determination, contending that it will provide an incentive to bargain. It submitted that the Commission could not safely make a determination on wages over an extended period of time. HSU submitted that in the coming years Australia was facing an economic downturn associated with high inflation. It submitted that the Commission should make wage arrangements for the year past and year to come.

[55] The employers propose a determination with an expiry date of 1 December 2012; that is a term of four years from what was the anticipated operative date of the determination. The employers submitted that past experience suggests that there would be little prospect of a negotiated outcome in the short term and that a determination of a longer duration would provide incentive to future bargaining.

[56] We tend to accept the HSU's contention to the effect that there is a degree of uncertainty about future economic activity in Australia. We do not accept however that a short term determination such as is proposed by the HSU is a responsible compromise. Nor is a term of four years appropriate in the circumstances. Having regard to the structure of wage fixation in the health industry we think a term in the order of two and a half years is likely to encourage bargaining in the allied health sector. We will make the determination operative on the date of the determination until 30 June 2011. Hence, consistent with the conclusion we have reached in relation to a determination with retrospective effect, there will be a retrospective wage increase of 5.25% effective from the first pay period on or after 21 November 2008, with further increases of 3.25% on and from 21 November 2009 and 3.25% on and from 6 November 2010. We note however, that had we reached a different conclusion about the power to make a retrospective order we would have awarded some amount other than 5.25% with effect from the date of the determination.

[57] We will include the following clause for the period of operation:

"This workplace determination comes into operation on the day it is made and will continue in force for the period ending on 30 June 2011."

[58] The respondents' draft determination includes a flexibility clause. HSU submitted that the employers' claim for the insertion of a flexibility clause in the determination should be refused as flexibility was not discussed during the bargaining period and therefore was not a matter at issue. The respondents submitted that flexibility was a matter at issue. Specifically, flexibility arrangements were included in clause 8 the 2003 Award. In its bargaining period notices HSU specifically claimed the inclusion and maintenance of "all existing EBA and Award employment terms and conditions" and the incorporation of "all variations to former Awards and AIRC test case provisions insofar as they relate to matters pertaining to the employment relationship and are not prohibited by law." It is immaterial, the respondents submitted, whether the matter was or was not agreed or discussed during the negotiations. By its incorporation by reference in the HSU claim flexibility was raised in the negotiation period. That is sufficient to give it currency for the purposes of being a matter at issue during the bargaining period.

[59] The expression "matters at issue" is defined in s.501 of the WR Act as "the matters that were at issue during the bargaining period." We accept, as the respondents' submitted, a matter is put in issue if it is raised by a party as being a matter about which it wishes to negotiate and reach agreement. [12] Although the Commission decisions to which we were referred relate to the former s.170MX of the pre-reform WR Act there is no basis for drawing any distinction between the meaning and application of the expression "matters at issue" as it was then and as it appears now in s.504. Reference was made to the Explanatory Memorandum to the Work Choices Bill,[13] which records as follows:

"Sub-section 504(1) would require the workplace determination to contain terms that deal with the matters at issue during the bargaining. However, the Full Bench would not be restricted to determining matters on which the negotiating parties had not reached agreement."

[60] To the same effect and more explicitly are the observations of the Full Bench in Australian Education Union v Department of Education, Training and Employment:

"[87] … To suggest that this matter was not raised in the negotiations is to misunderstand the nature of industrial negotiations. These negotiations as do all negotiations focused upon variations sought to existing conditions but on the premise that the status quo would otherwise continue. Even if not expressly raised, that premise was to be implied from the content of the matters that were expressly raised.

[88] … The negotiations took as their starting point the 1996 agreements. That their was no specific claim that terms of these agreements be "taken up and incorporated" in a new agreement ignores the reality of a negotiation where changes are sought in some, but not all, of the existing prescriptions." [14]

[61] In our opinion flexibility arrangements were among the matters at issue in the bargaining period by reason of the HSU claim for the maintenance of all existing award employment terms and conditions. The employers have provided a draft flexibility clause and press for its inclusion in any determination we may make. The HSU opposes its inclusion in a workplace determination. It has not made any provision for flexibility in its draft determination. We have decided to adapt and include in the determination the model flexibility clause that has been formulated in the Award Modernisation process [15]. We accept the respondents' submissions to the effect that the inclusion of provision for flexibility at the workplace may assist in productivity improvement.

[62] The HSU draft determination proposes expanding the scope of the current agreement by adding the following classifications:

[63] No change in the scope was suggested in the draft determination submitted on behalf of the employers. The respondents opposed the inclusion of the additional classifications.

[64] HSU submitted that the emerging professions of exercise physiology and health promotion have been included in the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 and that emerging professions of art therapy, diversional therapy, exercise physiology and play therapy appear in the NSW Health Services Health Professionals (State) Award. The Queensland agreement is said to include a broad classification structure which includes technical officers such as hyperbaric technologists, albeit not explicitly named. There was evidence to the effect that there is some degree of overlap between roles of the allied health professionals employed in the proposed new classifications and those already covered by the 2004 Agreement and the 2003 Award. The respondents submitted that while the Commission should reject the HSU claim in this regard it should encourage the parties to consult about the particular disciplines and relevant classifications with a view to reaching agreement for the next workplace agreement.

[65] HSU has failed to demonstrate that its claim for the additional classifications is justified at this point. Provided with adequate evidence about practice in the sector and information about the appropriate salary levels there may well be a case for expanding the scope as proposed. Unfortunately that evidence and information was not forthcoming. The Queensland and New South Wales instruments to which we have been referred are of little assistance. We reject the claim. We are prepared however to include in the determination provision to facilitate discussion between the representative parties for the identification of applicable classifications for any of the relevant disciplines practised in the Victorian public health.

[66] The HSU and the employers have included provisions for consultation in respect of organisational change in their respective draft determinations. Each requires the employer to consult as early as practicable with employees, the local employee representative and the union about changes impacting on the employees. The HSU draft change clause requires that consultation take place where it is proposed to implement any change that is likely to have a significant impact on an employee. It also provides a list of examples of change that is likely to have an impact and proposes a detailed process for dealing with the change, including the establishment of a "change implementation committee" with specified functions and for the submission of alternative proposals.

[67] The respondents' draft change clause is relatively brief and more readily resembles the change clause commonly found in many awards of the Commission. The clause requires that consultation take place where the employer has made a definite decision to implement major changes. It sets out examples of the things to be discussed and prescribes the types of information that the employer must provide to employees in writing. Finally, the draft clause stipulates that the employer is not required by the clause to disclose confidential information other than that required or authorised by law.

[68] The HSU draft change clause would have application to any change that is likely to impact on an individual employee. The proposed clause is too elaborate and, in our view, counter productive. It would be onerous in its application and is likely to result in inefficiencies and increased costs to an employer. We have concluded that the HSU draft change clause is not justified by the evidence.

[69] We have decided to adopt a slightly modified version of the clause that was recently developed by the Full Bench in the Award Modernisation case. While the respondents' draft change clause resembles it in some respects there are some changes in terminology, some important differences regarding examples of what may constitute significant effects that may result from major changes, the information that is to be provided in writing and the purposes for which the information is provided. We will insert the following change clause:

" #. Consultation regarding major workplace change

(a) Where an employer has made a definite decision to introduce major changes in its programme, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any, and the union.

(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this determination makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause #.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause #.1.

(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer's interests."

[70] HSU has included in its draft workplace determination a detailed provision for dispute resolution. The employers referred to s.504(6) requiring, as it does, that disputes about matters arising under the determination are to be dealt with in accordance with the model dispute resolution process. The employers submitted that the HSU proposed dispute resolution provision is inconsistent with the model dispute resolution procedure. The respondents' draft determination adopts the model dispute resolution procedure. In opening its case HSU submitted that no prescribed process for dispute resolution process presently exists and that employers have adopted a variety of processes, some of which HSU contended were unfair. It seemed to accept that its draft provision for dispute resolution went beyond what is permitted by s.504(6). The model dispute resolution process, HSU submitted, prevents the Commission from arbitrating even if the parties agree that it should and that the Commission should take account of the fact that the parties will not have access to arbitration of disputes over the application of the determination once made.

[71] Section 504(6) is clear on its face. It stipulates that the workplace determination must require disputes about matters arising under the determination to be dealt with "in accordance with" the model dispute resolution process. The expression "in accordance with" is one the meaning of which needs to be determined in the context in which it occurs. [16] It may well be that some deviation or latitude is permitted.[17] We have decided to adopt a modified version of the model dispute resolution process as determined by the Full Bench in its decision in the Award Modernisation case on 19 December 2008.[18] In so doing we are satisfied that it accords with Division 2 of Part 13 of the WR Act. The dispute resolution clause to be included in the determination will be as follows:

#.1 In the event of a dispute in relation to a matter arising under this Determination in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

#.2 If a dispute in relation to a matter arising under this Determination is unable to be resolved at the workplace, and all appropriate steps under clause #.1 have been taken, a party to the dispute may refer the dispute to the Commission.

#.3 The parties may agree on the process to be utilised by the Commission including mediation, conciliation and consent arbitration.

#.4 Where the matter in dispute remains unresolved the Commission may exercise any method of dispute resolution permitted by the Act it considers appropriate to ensure the settlement of the dispute.

#.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them in relation to this procedure.

#.6 While the dispute resolution procedure is being conducted work will continue in accordance with the Determination and the Act unless an employee has a reasonable concern about an imminent risk to his or her health or safety. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform other available work, whether at the same or another workplace that is safe and appropriate for the employee to perform."

[72] The respondents' draft includes the existing provision for dispute resolution training with such amendments as are necessary to meet the requirements of the WR Act and other changed institutional factors. HSU has not included any provision for dispute resolution training in its draft determination. We consider dispute resolution training would promote productivity and bargaining. It is in the public interest and the interests of the parties generally. We will include the employer proposal for dispute resolution training in our determination.

Procedure in relation to performance and conduct

[73] HSU has included in its draft determination a draft provision for monitoring employee performance and conduct. The respondents contended that the HSU's claim for inclusion of a procedure in relation to performance or conduct must be rejected as it was not a matter at issue during the bargaining period. The HSU disputed the respondents' contention submitting that VHIA had identified discipline as a matter at issue in a letter of 16 March 2008. The letter to which HSU refers is a letter addressed to the HSU in which VHIA records its understanding of the matters at issue in the negotiations between the parties. It includes as one of the issues "revision of grievance/discipline arrangements". [19] The letter was admitted as an exhibit on 22 September 2008 and it was raised with Mr Djoneff in cross-examination. Neither the letter nor its contents was refuted at any later stage of the proceedings. In the circumstances we accept that grievance and/or disciplinary arrangements were matters at issue during the negotiation period.

[74] We are satisfied that the HSU provision for monitoring performance and conduct falls within the meaning of "grievance/discipline" as it was identified by VHIA as a matter at issue between the parties. HSU submitted that the process was a necessary incident of the determination to ensure due process for its members. In the proceedings before us the only evidence regarding discipline procedures was that of Ms Harbridge and was to the effect that some uniformity of discipline procedures across health services was desirable.

[75] The employers opposed the inclusion of the procedure in the determination. It submitted that the proposed process is overly prescriptive and inflexible. It argued that it is not in the interests of the health services as it does not enable health services to performance-manage staff in an appropriate manner based on the conduct in question. It should be rejected, the employers submitted, as it imposes greater administrative burdens on their already stretched resources.

[76] We have concluded that some provision ought to be made for monitoring conduct and performance management. It is a means to good management and productivity improvement. It has merit, it is in the public interest and, in our view, it meets the interests of the parties. We agree that the HSU draft clause is overly prescriptive. Accordingly, we will include in the determination a modified version of the HSU's draft procedure in relation to performance or conduct. It will be in the following terms:

"#. PROCEDURE IN RELATION TO PERFORMANCE OR CONDUCT

#.1 The purpose of this clause is to provide a process for managing an employee's performance or conduct.

#.2 Where the employer has concerns in relation to an employee's performance or conduct, the management representative shall notify the employee of the concern and reason(s) for it. Where appropriate, the matter will be dealt with by verbal counselling of the employee as the first option.

#.3 Where disciplinary action is proposed in relation to an employee's performance or conduct, the management representative shall notify the Employee of the proposed disciplinary action identifying the issue/s concerning the performance or conduct.

#.4 Disciplinary action may take the form of verbal or written warnings, or termination of employment, depending on the seriousness of the issue.

#.5 Any disciplinary action taken in respect of an employee shall be recorded on the individual's personnel file provided that the record is removed if there is no further issue/s with the employee's performance or conduct in the succeeding 12 months.

#.6 The employee's chosen representative shall be present during any disciplinary action, if desired by either party."

[77] Provision is made in the 2003 Award and the 2004 Agreement for fixed term employment. HSU proposes a new fixed term provision. It would expand the scope of the existing provision in the 2004 Agreement to cover temporary employment in a way similar to that in the 2003 Award. HSU submitted that the amended clause is to reflect the ability to take up to 24 months parental leave and to reflect its meaning as discerned by the Industrial Division of the Magistrates' Court of Victoria in Health Services Union v Barwon Health. [20]

[78] The employers contended that neither the existing nor the HSU's proposed restrictions on fixed term employment are necessary. The employers proposed an alternative fixed term provision. They submitted that none of the HSU witnesses gave evidence to support the need for the clause that it proposed. Furthermore it did not demonstrate how the proposed new provision would accord with the factors set out in s.504(5) of the WR Act. The employers' witnesses on the other hand gave evidence that suggested that such a provision would not be consistent with s.504(5). The substance of the employer evidence is that the existing fixed term provisions and those proposed by HSU would, among other things, limit opportunities for:

filling positions for specifically funded projects extending beyond 12 months;

overseas recruitment of staff on limited visas of more than 12 months duration;

filling long service leave and leave without pay absences.

[79] There was employer evidence also to the effect that the fixed term restriction would impact adversely on it budgetary constraints. The employers submitted a proposed fixed term provision that will not limit the opportunities to which reference is made in the preceding paragraph.

[80] HSU argued that the employers' evidence is mostly speculative about apprehended consequences of its fixed term proposal and that there was little evidence of actual circumstances where the fixed term requirements could have been a potential problem.

[81] We accept the necessity for flexibility in staffing arrangements, particularly where employment is defined by and dependent upon limited grants and special project funding. There is no evidence in this matter of a high level of non-continuing employment or abuse of fixed term engagements. There is no evidence that significant numbers of fixed term employees are being denied access to benefits that the community has come to expect for long term employees. Despite the absence of evidence in those regards neither the interests of the negotiating parties nor the public interest favours removal of the sorts of restrictions that attend the current fixed term provisions or those proposed by the HSU. All relevant interests however favour some greater flexibility in the arrangements for fixed term engagements extending beyond 12 months. In our view the HSU draft fixed term provision should be modified to allow extension of a fixed term engagement where unforeseen circumstances necessitate such an extension. Circumstances could include an injection of additional funding, completion of an unfinished project or the further development of a completed task or project, We will include the following provision in the determination.

#.1 The employer may employ an employee either:

#.1.1 as a fixed-term employee who is employed for a specific period, or a specified purpose (other than that referred to in #.1.2), neither of which will exceed an initial period of 12 months employment, provided that any such term may be extended for a further period of up to 12 months to complete the particular project, task or training for which the employee was engaged; or

#.1.2 as a replacement employee replacing a person on parental leave in accordance with clause # - Parental leave, for a period not exceeding twenty-four months; or

#.1.3 as a temporary employee who is employed on hours which may or may not be fixed for a period not exceeding three months.

#.2 If the period of engagement, or an extended engagement in accordance with #.1.1, exceeds that provided for in this clause or the employee engaged pursuant to this clause is re-engaged within thirteen weeks (including the total period of accrued annual leave paid on termination), the employee shall be deemed to have been originally employed under clause # - Full-time employment, or clause # - Regular part-time employment.

#.3 Employees engaged as either fixed term employees, replacement employees or temporary employees pursuant to this clause will receive the rates of pay and conditions provided for under subclause #, regardless of the number of hours worked, with the exception of the period of notice which for employees engaged as temporary employees under this clause, shall be one week.

#.4 Fixed term employment can only be offered for true fixed term arrangements, including special projects, post graduate training, graduate year positions, maternity leave and long service leave relief."

[82] We note that the employers propose some changes to the existing award provision for part-time employment. No case was put to us as to why we should depart from the existing 2003 Award provision for part-time employment and we see no reason to do so.

Application of clauses conferring an entitlement

[83] The respondents' draft determination includes provisions defining the application of clauses which confer an entitlement. We consider that issue to be sufficiently covered and defined within the clause conferring entitlements and refuse the claim for the additional clause.

[84] The employers proposed the removal of the existing provision for advertising staff vacancies as part of its proposal for demonstrable service delivery improvements and productivity offsets for its proposed wage offer exceeding the escalation factor. There is no evidence that demonstrates the requirement to advertise vacancies is an impediment to flexibility and productivity. In any event we think public interest, productivity and efficiency considerations favour advertising vacancies in a public hospital environment. We will include the existing provision for advertising staff vacancies in the workplace determination.

[85] The respondents' draft determination seeks to alter the existing provision for notice of termination of employment. In particular it seeks to insert a new provision for the deduction of the value of an employee's notice period where the employee fails to give notice of termination of employment. The employers submitted that it provides greater incentive to give adequate notice of termination. HSU proposes maintenance of the existing arrangements. We think the employers' proposal makes clear the intention of the existing provision and we will allow the respondents' draft clause 20.5.

[86] HSU proposes that the current salary increments for the UG1 classifications be changed in accordance with the following effects:

Grade 1 classification post qualification be changed from second year of experience to fourth year of experience;

a Grade 1 health professional who has a degree of Master of Science be changed from Grade 1 third year of experience to fifth year of experience; and

a Grade 1 allied health professional who holds a doctorate of philosophy (PhD) be changed from Grade 1, fifth year to Grade 1, sixth year.

The employers opposed the changes arguing that HSU led no evidence to justify the claim. They submitted that the evidence showed that to change the UG1, Grade 1 classification as proposed would render redundant the existing classification structure for a UG1 Grade 1 post qualification. It would make the classification structure artificial, undermine the competitive advantage required by rural health services to attract graduates and add significant costs to the employer operations. It was further submitted that having regard to the requirements of s.504(5), and in particular the merits of the case, the absence of any benefit to service delivery, patient care or productivity, the employers' capacity to pay and the lack of evidence provided by the HSU to justify its claim, the claim ought to be rejected.

[87] In reply HSU submitted that its claim in respect of a higher salary entry level for post graduate degree holders is justified by Dr Delany's evidence. [21] Dr Delany is a Senior Lecturer and Clinical Ethics Fellow at the Centre for Children's Bioethics, Melbourne University, Monash University and Royal Children's Hospital. Her evidence is to the effect that a higher salary level for a postgraduate degree holder compared to the undergraduate degree holder is justified. Ms Healy for the Western Health expressed a contrary view.

[88] Having regard to all of the material before us we can find no justification for the change in the increment levels as has proposed by HSU. We reject the claim.

Sole employee allowance and classification of employee working independently

[89] HSU and the employers have proposed a sole allowance clause. The HSU claim incorporates two elements, viz an allowance and a minimum classification for health professionals working independently. While the distinguishing features of each is not entirely clear the evidence suggests that in order to qualify for the sole allowance an employee must be working alone in a particular occupation at a particular site or in a particular area. By way of contrast an employee is regarded as working independently when working as the sole member of a particular discipline whether working alone or as part of multi-discipline health professional team. Ms Harbridge in her evidence described the category "working independently" as someone who is working without a constant and regular supervisor in that they are acting independently in the work they do; the employee may be working alone or as a sole member of a team competent in an area of practice or discipline.

[90] The employers opposed the concept of a minimum classification for working independently. It was argued that the health services' evidence revealed that the phrase "working independently" is unclear and capable of a number of different interpretations. Furthermore, the claim is not justified as staff already have access to appropriate support networks and the fact of working alone does not necessarily mean that their work is particularly complex or requires significant skill or experience. The claim if allowed would impose an unreasonable financial burden on health services and would not result in any improvement in productivity or efficiency. The evidence also suggested that health services in rural areas could be adversely affected if the claim were allowed.

[91] We are not persuaded that the claim for a particular classification for a person working independently is justified. There is in the proposed two elements of the clause the potential for confusion and uncertainty about the application of the allowance and the special classification. We also accept that, as the evidence shows, it would be an unnecessary financial burden for the health services. In the determination we will provide for a sole allowance in the terms of clause 22.1 of the respondents' draft, which is consistent with the meaning and intent of the existing sole allowance provisions in the award.

Classification of health professionals working in community health centres/psychiatric services

[92] In its claim HSU is seeking a minimum entry classification level of UG1, grade 2 for health professionals working in community health centres and psychiatric services. Ms Harbridge, an Industrial Officer with the HSU, in her evidence asserted that the claim addresses the particular needs of the health professionals employed in the psychiatric services sector and the level of experience and skill base required in this work. In support of its claim HSU relies on the evidence of Ms Schulz to the effect that allied health professionals employed in mental health at Barwon Health are all currently classified as Grade 2.

[93] Evidence led on behalf of the employers revealed that Grade 1 allied health professionals currently work within community health and psychiatric services. They argued that granting the HSU claim would exceed the Commission's jurisdiction having regard to the implied constitutional limitations identified in Re Australian Education Union; ex part Victoria. [22] That case stands for the proposition that an award that interferes with the State's right to determine, among other things, the number and identity of the persons whom it wishes to employ, would be an impairment of the State's capacity to function as a State. An award that stipulated that allied health professionals employed in psychiatric and community health centres be classified as Grade 2 would entail the appointment of new staff in those establishments employing Grade 1 allied health professionals and thereby infringe the implied constitutional limitation.

[94] The employers also submitted that granting the HSU claim would reduce the quality of patient care by introducing Grade 2 employees without prior experience, reduce valuable training experiences of Grade 1 staff, create retention issues for practitioners and with succession planning within community health and psychiatric services and have significant cost impact without any benefit to health services. It would create unwarranted inflexibilities and be detrimental to the interests of allied health professionals, health services and service provision.

[95] We do not accept that by granting the claim it necessarily follows that the employers would have to appoint additional staff. We do accept however that it would limit employment and training opportunities, create unnecessary inflexibility and have a significant cost impact. In the circumstances we think the claim lacks merit, would have a negative impact on productivity and be contrary to the public interest and the interests of the parties. We reject the claim.

[96] The 2003 Award currently provides for chief structures in amalgamated departments in amalgamated hospitals. It includes also, for various categories of allied health professionals, definitions of chiefs, Grades 1, 2 and 3 and general definitions of various chiefs Grades 1 to 5 dependent on the number of health professionals for which the chief has responsibility. HSU proposes that provision be made in the workplace determination for various categories of chiefs, team leaders and tutors in certain departments.

[97] The history of the current award provisions relating to chiefs is before us. Also there was extensive evidence and submissions in relation to current chief structure. The employers oppose the HSU proposal and submit that any determination made by the Commission should simply include the definitional parts of the 2003 Award and the 2004 Agreement as they relate to Chiefs.

[98] While there appears to be some merit in some aspects of the HSU claim in these regards we are not satisfied that it is a claim proper to be dealt with as an arbitrated industrial claim under s.504 of the WR Act. Different considerations might compel different outcomes in bargaining or in another context, but it is not in the public interest for the Commission in this context to encroach on what is essentially a management function, or perhaps even a matter of public policy. We reject the HSU claim. We propose adopting the existing Chief definitions from the 2003 Award and the 2004 Agreement as proposed by the employers.

[99] HSU proposes the insertion of the following clause:

"The employer will employ, for each health professional discipline to which this Determination applies, at least one full-time senior clinician Grade 4 (including MIT Tutor, Grade 3) in each section of the relevant department."

[100] The respondents contended that the HSU claim for senior clinicians Grade 4 was not a matter at issue during the bargaining period. The fact is that the Notice of Initiation of Bargaining period included a claim for a senior clinician Grade 3 on each site in each section of the department. The employers now argue that the claim as it is articulated in the HSU draft determination was not a matter at issue between the parties. We think the employers' submission at this point misconceives the scope of the expression "matters at issue". It is not a question of whether the particular clause that is now being sought was at issue but rather whether the substance of the claim was a matter at issue between the parties. We consider the claim for senior clinicians Grade 3 was a matter at issue and a sufficient foundation for the claim as it is now formulated.

[101] From a public interest point of view it is beyond the scope of our role in proceedings such as these to impose on such a divergent range of public health services a common obligation to engage a particular level of particular classifications of employees. The issue is a matter of public policy and best left to that domain, the individual health services or negotiating parties in a single unit bargaining context.

[102] HSU seeks the creation of positions of tutors for medical imaging technology and allied health employees in departments employing 25 or more employees. For the reasons that we are not prepared to entertain the claim for a full-time senior clinician Grade 4 we reject these claims also.

[103] HSU includes in its draft determination provision for the employer to deduct amounts for board and lodging. This is an existing employer right under the 2003 Award. The respondents' draft has omitted the right from its draft. We have determined to omit the provision for deductions for board and lodging. Our determination will not include such a provision.

[104] HSU seeks a provision for reimbursement of registration fees that are required to be paid by health professionals. It submitted that given that some health professional disciplines are required to be registered and others are not the employees are not treated equally. The employers submitted that the claim should be rejected having regard to the merits of the claim, the interests of the employers and the disincentive to bargaining if the claim is granted. In the context of the interests of the parties and the public interest we see some scope for employers bearing the burden of the registration costs for those allied health professionals who are required to be registered. The HSU however led no persuasive evidence to demonstrate where the merit of its claim lies and it did not seek to rebut the employers' case in respect of the cost impact on employers or the proposition that it would be a disincentive to negotiated outcomes. We reject this claim.

[105] HSU is seeking the inclusion of a provision in the determination for increasing all allowances annually on 1 January in line with increases in CPI. The 2003 Award and the 2004 Agreement make provision for a wide range of allowances, none of which are adjusted by the CPI.

Health Services Union v Austin Health and Ors

At a glance

Court

Decision date

Source

Judgment (325 paragraphs)

Health Services Union v Austin Health and Ors (as per Schedule 1) - Full Bench [2009] AIRCFB 353 (3 April 2009)

Parties

Legislation Cited (2)