Nurses' (Department of Ageing, Disability and Home Care) (State) Award, Re [2005] NSWIRComm 19

HEARING DATES: 01/28/2005 EXTEMPORE JUDGMENT DATE: 01/28/2005

APPLICANT: Ms S Shean New South Wales Nurses' Association

LEGAL REPRESENTATIVES: RESPONDENT: Mr A T Britt of counsel Solicitor: Mr I V Knight, Crown Solicitor (Mr P Rankins)

CORAM: WRIGHT J, President Friday 28 January 2005

NURSES' (DEPARTMENT OF AGEING, DISABILITY AND HOME CARE) (STATE) AWARD

Application by the New South Wales Nurses' Association for a new award

1 Before the Commission today is an application to make a new award by consent of the parties. The making of the consent award has resulted from a lengthy series of detailed negotiations between the parties extending over many months since the present application was filed on 30 September 2003.

2 The Commission has provided assistance to the parties not only in the normal course of dealing with the present application but also in the context of conferences chaired by the Commission under the Major Industrial Case procedure promulgated in Practice Direction number 8A. 3 The last conference under the Major Industrial Case procedure was on 7 December 2004 when the Commission was advised of the agreement reached between the parties, subject to the refinement of the details of the agreement and the preparation of relevant documents to implement it. There was also a directions hearing on the same day when the present hearing date was set. 4 The parties today have provided a number of useful documents in addition to the revised award documentation. The revised draft award has been the subject of an application to amend the initial draft filed in the proceedings. In addition to the proposed new award the parties have provided an Agreed Statement of Facts, Summary of Agreed Outcome, Schedule of Changes and two documents used in the negotiating processes which have been marked Exhibits 5 and 6 and which are respectively entitled "Position Paper to NSW Nurses' Association for Endorsement: Restructuring Nursing Services in Large Residential Centres and Community Accommodation and Support Settings operated by the Department of Ageing, Disability and Home Care" and "Proposals and Recommendations to NSW Nurses' Association for Endorsement: For the Implementation of a New Award for Nurses Employed or Engaged by the Department of Ageing, Disability and Home Care". These last two documents are both DADHC documents, that acronym referring to the Department of Ageing, Disability & Home Care.

5 The Agreed Statement of Facts notes that the current award, which is entitled the Nurses (Department of Ageing, Disability and Home Care) Interim (State) Award, regulates the employment of all categories of nursing staff working in DADHC Residential and Community Support Services in New South Wales. It explains that DADHC residential services are commonly referred to as "Large Residences", "Small Residential Units" and, "Group Homes" with nurses predominately employed in the first two categories. Community Support Services are commonly referred to as "Community Support Teams" and "Day Programs" and are generally staffed by multi-disciplinary teams which include nurses. 6 The statement of facts also indicates that this important area of the State's workforce has approximately 1,547 persons employed in nursing classifications in the Large and Small Residences, the number of persons equating to 1,377 full-time equivalent (FTE) positions. In addition there are approximately 40 persons employed in nursing classifications in the Community Support Services equating to 30.55 FTE positions. The nursing staff covered by the proposed award comprises Assistants in Nursing, Enrolled Nurses, Registered Nurses and the more senior positions and classifications referred to subsequently. 7 The document tendered as the "Summary of Agreed Outcome" document has been marked Exhibit 2 and it is relevant to note the following parts of the document which refer to the salary rates agreed by the parties as follows:

1. Pay rates and work related allowances will be increased to reflect equivalence with comparable Public Hospital Nurses' (State) Award rates where relevant. These increases will be operative from 1 July 2004. 2. There will be two further "economic" adjustment increases as follows: 3% from 1 July 2005 3% from 1 July 2006. 3. The offer of two increases of 3% from 1 July 2005 and 1 July 2006 was made in the latter half of 2004, at a time which the Government's general position for the public sector increases was for a three year agreement containing two 3% increases. Since that DADHC [Department of Ageing, Disability and Home Care] offer was made, and the Association's membership balloted, negotiations have been completed with other public sector unions resulting in agreements for a period of four years containing four increases of 4%. The Association has now made an approach to Government seeking a similar outcome for nurses employed under the Nurses' (Department of Ageing, Disability & Home Care Employees) (State) Award. 4. The parties have agreed to the insertion of a provision in the Leave Reserved Clause that will allow these negotiations to proceed under the new award. 5. For this reason the application before the Commission contains the wage and allowance rates that reflects the outcome of the work value and restructuring exercise only. It is the parties' intention to seek to vary the award at a future date for any further economic adjustment increases that are agreed 6. Whilst implementation of the new award for the Department is based on reflecting equivalence to current rates of pay in the public hospitals' award as it approximates to the Department's structure, this does not imply pay parity or a nexus with the public hospital sector in terms of future wage movements or award variations. 7. Suggested rates of pay reflect the closest approximation of nursing classifications to relevant non-nursing classifications in the accommodation and respite sector, having regard to the size, complexity and nature of the LRC [Large Residential Centres], reporting structures and having regard to the support provided by nurses. 8 Exhibit 2 also notes the acknowledgement by the applicant, the New South Wales Nurses' Association, that the increased rates of pay reflect work value changes up to 30 June 2004 for relevant classifications and the way in which that work value assessment has been estimated. The exhibit also notes the acknowledgement by the Association that the pay rates for other specified classifications at the higher levels of the award encompass work value changes reflected in the new roles contained in the description positions which are to be introduced as a consequence of the restructuring of management structures in large residential facilities. However, the parties have carefully noted that the Association's acknowledgement in the last respect: ... does not prevent the Association from relying, in any future claim, on changed levels of skill and responsibility relating to any aspect of work contained in those position descriptions. 9 The exhibit also usefully sets out a summary of the restructuring changes. Generally speaking these fall into three broad areas. First, in relation to the classifications of Registered Nurse, Clinical Nurse Specialist, Clinical Nurse Consultant, Clinical Nurse Educator and the classification of Nurse Learning and Development Officer. Again the changes are broadly consistent with adjustments or processes which occurred in the Public Hospital Nurses' (State) Award area. 10 The second area under the rubric of restructuring changes relates to Residential Unit Nurse Manager (RUNM) positions which replace the former Nursing Unit Manager (NUM) level 1, 2 and 3 classifications. All current managers will "transit" to the new RUNM Level 1, which is equivalent to the rates of NUM Level 1 in the State award, and a grading committee has been included in the award to consider applications for regrading to RUNM levels 2 and 3. 11 The third and perhaps most significant area of restructuring has occurred in the higher management positions exemplified by the current positions of Directors of Nursing (DON), Deputy DONs and Assistant DONs. These classifications have been deleted and all current staff will "transit" to, or apply for, nurse manager classifications at the levels set out in Schedule 1 of part A of the new award. Exhibit 2 sets out in some detail the way in which this restructuring will be made and the agreed principles upon which it will occur. 12 There has been agreement as to other award changes. For example, an excursion allowance has been inserted in clause 9, Special Allowances, which is consistent with existing practice in relevant respects. An Anti-Discrimination clause has been inserted as clause 20 which is required to be inserted in all awards. 13 A new clause 6 - Reasonable Workloads Clause - has been inserted. Again, in general terms, this has been inserted on a similar basis to that in the State award and it establishes a consultative process for determining "reasonable workloads". An additional feature of this clause is that it also sets up a consultative process for establishing the appropriate skill mix and in that respect it replaces processes which have hitherto, between 2001 and 2004, been dealt with under a Memorandum of Understanding between the parties. 14 Other new provisions importantly include a Clause 21 - Leave Reserved Clause - which is described in Exhibit 2 in the following way:

This has been included to allow the parties to make application in respect to

(ii) Traineeships in respect of Enrolled Nurses which is currently being pursued with the Department of Industrial Relations and Education;

(iii) Pay rates applicable to employees who are undergraduate nursing students;

(iv) Remuneration for enrolled nurses undertaking medication administration;

(v) a review of the CNS, CNE and Nurse Learning Development Officer classifications after 1 January 2007; and

(vi) Further increases during the life of the award. 15 The exhibit also refers to important agreements between the parties as to the implementation process which has been necessary because of the important restructuring brought about by the parties' agreement and the award that will be made today. 16 The implementation process which is spelt out in some detail in the exhibit includes the nomination at each residence of a "Local Implementation Champion". There will also be Local Implementation Committees and a Central Implementation Committee. The document details the roles and responsibility of each of those persons or committees. 17 The final part of Exhibit 2 is entitled "Management of Displaced Employees". This again reflects the agreement of the parties rather than a specific award provision. The parties, however, appropriately note that this provision is to be seen as spelling out, in the relevant respect, of a matter dealt with by the disputes settling procedure in clause 18 of the award. 18 Importantly, the final part of the exhibit sets out the way in which, and the extent to which, incumbent employees will "transit" to new classifications and the circumstances in which employees who do not "transit" in that way will be transferred to agreed interim classifications in the new structure and the options that will be then offered to such employees. Such options under the new classification structure include: (a) voluntary redundancy; (b) application for a position under the new classification structure; (c) salary maintenance in terms of relevant public sector policy and the Premier's Department memoranda. The parties have also agreed to enhanced rates for the calculation of voluntary redundancy payments, where relevant, for Nurse Unit Mangers and Assistant Directors of Nursing.

19 The other change that should be referred to is that, whereas the current award is an interim award, the new award is not so titled or described. It is, however, clear that the leave reserved provision earlier referred to is an important part of the agreement of the parties and an important premise upon which the award will operate during its life. 20 Another important matter of detail is that the document earlier referred to as Exhibit 6 contains important parts of the protocol agreed between the parties as to the implementation of the restructure which has been at the heart of the negotiations and the parties' proposal as to a new award. 21 Having been assisted in great detail by the advocates of the parties, Ms Sheen on behalf of the applicant Nurses' Association and Mr Britt of counsel on behalf of the respondent employer, for which I thank them, I have concluded that the award to be made does set fair and reasonable conditions of employment for this important sector of the State's workforce, that it complies with the relevant requirements of the Industrial Relations Act and is consistent with the wage fixing principles. 22 The Commission has earlier noted that the consent award and the associated consent arrangements have resulted from most detailed negotiations which appear to put an important area, not only of the workforce generally, but one which has the care and responsibility of an important part of the population of New South Wales, on a proper basis for the challenges which inevitably will confront this sector into the 21st Century. 23 The parties are to be congratulated and commended on the significant efforts that have been made which should lead to a proper basis to grapple with the future challenges in this important area of the public sector. 24 The Commission makes an award in terms of Exhibit 4 noting however that the parties have agreed to certain further minor changes to that document which they will deal with in the usual way within the next 10 days. 25 The new award made will be known as the Nurses (Department of Ageing, Disability & Home Care Employees) (State) Award 2005. It will rescind and replace the current award, the Nurses (Department of Ageing, Disability and Home Care) Interim (State) Award and, as Clause 22 of the new award document indicates, the new award shall take effect from the 1 July 2004 and shall remain in force thereafter for a period of three years. 26 The parties are directed, within 10 days of today, to file and serve in both hard copy and electronic form the final form of the award. 27 Subject to that matter these proceedings are concluded and I again congratulate the parties and thank them for their assistance today.

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