Public Hospital Nurses (State) Award [2002] NSWIRComm 100

APPLICANT: Ms C Howell of counsel and Ms S Shean for New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT: Mr R C Kenzie QC and Mr I Taylor of counsel for Health Administration Corporation

JUDGMENT: - 33 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, PRESIDENT BOLAND J PATTERSON C Wednesday 12 June 2002 Matter No IRC 3810 of 2000 PUBLIC HOSPITAL NURSES (STATE) AWARD Application by New South Wales Nurses' Association for a New Public Hospital Nurses' (State) Award

DECISION OF THE COMMISSION [2002] NSWIRComm 100

1 This is an application by the New South Wales Nurses' Association ("the Association") for a new Public Hospital Nurses' (State) Award. The nominal term of the current Award expired on 31 December 1999 and the present claim was filed on 3 August 2000.

2 The claim has been the subject of negotiations between the Association and the Health Administration Corporation ("HAC") and agreement was reached in respect of a number of matters. On 11 January 2001 Boland J varied the current Award to incorporate these agreed matters.

3 During the course of proceedings the Full Bench was informed that agreement had been reached in respect of overtime payments for health service managers in small hospitals. Accordingly, the current Award (cl 21) was varied by the Full Bench, in accordance with the agreement of the parties, to take effect from the beginning of the first pay period to commence on or after 1 January 2002. The Full Bench was also informed during the course of proceedings that the HAC did not oppose (but did not consent to) a variation of the Award to increase certain uniform and laundry allowances in accordance with Principle 5(a) of the Commission's 2001 wage fixing principles dealing with the adjustment of allowances that constitute a reimbursement of expenses incurred. Consequently, the Award was varied in respect of these allowances from the same operative date.

4 The Association's claim has also been amended on a number of occasions and ultimately the Association did not press a number of elements of its claim. That still left a substantial number of matters in respect of which there was no agreement between the parties and it falls to this Full Bench to determine them. Before doing so, however, there are a number of general matters that need to be addressed by way of introduction.

5 Firstly, whilst this application does not include a claim for wage increases, the Association subsequently, and well after the hearing in this matter had commenced, filed a separate application that does seek such increases as well as certain new allowances. This latter application commenced to be heard by a Full Bench on 11 June 2002 and some 28 days have so far been set for hearing. The grounds for the application in Matter No IRC 6802 of 2001 include: a) The need to remedy the nursing shortage by fixing rates of remuneration which attract and retain sufficient nurses; b) A claim that the effect of the nursing shortage is to place pressure on nurses to do additional work; and c) That such increases are justified on work value grounds, and in particular a claim that there has been a significant increase in the skill, responsibility and value of the work performed by nurses since 1991 which has not been reflected in remuneration paid to nurses. 6 It was the submission of the HAC that in the present proceedings the Association had submitted that certain of the allowances were justified because of increasing work arising from the nursing shortage. Other allowances were said to be justified on the basis of unrecognised increases in work value since 1991 or earlier. Senior counsel for the HAC said:

In light of the Wages Claim that is now before the Commission, the Commission, when considering any claimed increase in conditions said to be justified on a ground that is also said to justify general wage increases, would take care to avoid double compensation for the same circumstance. This could be achieved either by refusing the claim or deferring it until the Commission considers the Wage Claim.

7 The claims identified by the HAC that "should not proceed to conclusion in the absence of the wages case" were: 1) The claim to increase the in charge of shift allowance in cl 10(v) and the related allowances in cl 10(i)(a) and 10(vi). 2) The claim for on call allowances to be paid to health service managers under cl 10(ii)(e). 3) The claim for a new allowance to be paid to an employee who works away from a designated health facility (cl 10(viii)). We will address this issue when we deal with each of the three claims.

8 The second matter by way of introduction is that the present application is brought under Principle 6 Work Value Changes and Principle 10 Special Case of the Commission's Wage Fixing Principles: State Wage Case 2001 (2001) 104 IR 438. Principle 6 provides as follows: 6 Work Value Changes (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. (b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. (c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989. (e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle. (f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. (g) The expression ' the conditions under which the work is performed' relates to the environment in which the work is done. (h) The Commission will guard against contrived classifications and over-classification of jobs. (i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle.

9 Principle 10 provides as follows: 10 Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.

10 We consider that Principle 5 Adjustment of Allowances and Service Increments is also relevant. That Principle states: 5 Adjustment of Allowances and Service Increments

(a) Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect relevant changes in the level of such expenses. (b) Existing allowances which relate to work or conditions which have not changed, including shift allowances expressed as monetary amounts and service increments, may be increased by 3 per cent for the State Wage Case 2001 adjustment. Counterpart State awards should be adjusted by the same amount as their federal counterpart. (c) Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the Work Value Changes principle of these principles. (d) New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses. (e) Where changes in the work have occurred or new work and conditions have arisen, the question of a new allowance, if any, will be determined in accordance with the relevant principles of these principles. The relevant principles in this context may be Work Value Changes or First Award and Extension to an Existing Award. (f) New service increments may only be awarded to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant provisions of the Work Value Changes principle of these principles. 11 There was no overarching submission by the Association about the principles relevant to its application. Nor was it entirely clear from the Association's submission which of the wage fixing principles was applicable in respect of each of the claims although, in most cases, the nature of the individual claim suggested which principle might be relevant. We have taken the view that in considering each of the claims by the Association we should test it against what we consider to be the relevant principle. In that respect we note that the most recent authoritative discussion on the nature of a special case was that by the Full Bench in Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274 and by a subsequent Full Bench in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331. In Re Social and Community Services Employees (State) Award the Full Bench said: [22] As Mr Reitano for the Union argues, the present Special Case principle is not relevantly different from that found in the State Wage Case, May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers State) Award and Other Awards (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held at 376 - 377: "In our view, the special cases section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed. Some of the cases brought under the special cases provision have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage increases beyond those normally allowable under the principles. On a number of occasions such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in others they have not, and the Commission has made an arbitrated decision in the matter. In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription … … We therefore find that the applicants are entitled to bring their case under the special cases provisions of the principles. That, of course, is not the end of the matter. The Full Commission must decide whether, on the whole of the material before it, and bearing well in mind the respondent's opposition, the claim should in whole or in part succeed, and, if so, what increase should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits. It is also entirely appropriate, if it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increase for employees in question took effect, and changes in money values which have occurred since that time or are forecast during the prescribed life of the award to be made." [23] Further in Re Transport Industry (State) Award (1996) 95 IR 126 a Full Bench of the Commission observed at 130-131: "Mr. Warren submitted the Carpenters case principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect, that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all." [24] Thus it can be seen, as in our view Mr Reitano correctly submits, that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case. [25] In saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe, again as Mr Reitano submits, that the present Special Case principle unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application.

[312] We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award , 1998 - Part 1 (Print T4991, 29 December 2000) [(2000) 110 IR 247 at 266 - 267] the Full Bench said: "In our view, "special case", as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying to the Award." [313] At least for the purpose of these proceedings we do not consider the approach set out in that decision is materially different to the approaches laid down in the 1993 Crown Employees case and the 1996 Transport Industry case. Particular reference has, however, been made to the unique history of this award and we note in the recent Full Bench decision in Re Corrections Health Service Nurses' (State) Award (No 2) [2001] NSWIRComm 58 at [31], that one of the factors which led to the Full Bench determining a special case had been established was the history of industrial regulation of the relevant employees.

12 After referring to the decision in the Social and Community Services Employees case and other decided cases, the Full Bench in Re Operational Ambulance Officers (State) Award stated: [168] A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors). 13 We respectfully agree with the observations of the Full Benches in the Social and Community Services Employees case and the Operational Ambulance case. We emphasise the need to "establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case." Further, although there is no general requirement that a special case must, to succeed, satisfy other specific principles (Employers First and NSW/ACT Independent Education Union [2002] NSWIRComm 113 at [8]) other principles may have relevance; for example, because of the way in which the case is advanced: see also the passages cited above from the decisions in the Social and Community Services Employees and Operational Ambulance cases.

14 A matter related to the need to establish an adequate evidentiary foundation for a special case was the criticism by senior counsel for the HAC of the Association's evidence that it was not of an overarching nature. In other words, notwithstanding the Association's claims had been pursued on the basis that they should have general application, the Association had not attempted to put before the Commission "evidence of an overarching nature justifying the need for the conditions of general effect." It was submitted that "Rather, the Association has elected to rely on the evidence of a small number of witnesses in respect of each claim, who gave evidence about the particular aspects of the claim affecting them." Senior counsel submitted, "… it was fair to infer that the Association called witnesses who represented the Association's 'best case' on the various conditions matters". It was further submitted that "… the Commission would be slow to conclude that it is satisfied that a special case has been made out for new or improved conditions to apply across the health system based on such selected 'best case' evidence."

15 The Association cannot be expected to call every nurse in the State to give evidence and it is to be expected that the Association would present 'best case' evidence in support of its claims. Ultimately, however, the Association must show the relief it claims should have general application and the problem it seeks to remedy is not confined to the witness giving evidence or is not merely an aberration.

16 It is a matter for the Full Bench to judge on the evidence considered as a whole whether the evidence relied on by the applicant is sufficiently representative to support the granting of a claim that will have general application. We have considered this issue and taken this approach in respect of each of the claims.

17 It may be observed here that because of the way in which the applicant has in substance changed the nature of the proceedings by the filing of its later application, if an award is made in these proceedings it should be an interim award made pursuant to s 16(4) of the Industrial Relations Act 1996.

The evidence 18 Ms C Howell of counsel appeared for the Nurses' Association. Mr R C Kenzie QC with Mr I Taylor of counsel appeared for the HAC. There was a substantial amount of evidence called by both parties and Boland J was delegated to receive the evidence on behalf of the Full Bench. The following persons gave evidence in the proceedings: Nurses' Association · Elizabeth Harford, nurse manager Grade 3, Cardiology and Cardiothoracic Services, Westmead Hospital. · Narelle Walton, clinical care co-ordinator, Neurosurgical Unit at Wollongong Hospital. · Michael David Green, registered nurse, The Rozelle Hospital. · Dianne Doyle, health service manager, Barham Koondrook Soldiers' Memorial Hospital. · Tracey McCarthy, health service manager, Lake Cargelligo Multi Purpose Health Service. · Sherylle Siebels, Wagga Wagga Base Hospital. · Penelope Anne Wood, registered nurse, St Vincent's Hospital, Darlinghurst. · Petrina Dare, Registered Nurse, Coffs Harbour Base Hospital. · Kerry Fitzsimmons, Chisholm Ross Admission Centre, Goulburn. · Keith Malcolm Cox, clinical nurse consultant in oncology/chemotherapy at the Sydney Cancer Centre at the Royal Prince Alfred Hospital. · Richard Bradbury Noort, clinical nurse specialist, Port Kembla Hospital. · Jennifer Gaye Jackson, community nurse, Doonside Community Health Centre. · Graeme Tony White, registered psychiatric nurse, Maitland Mental Health Unit. · Terry Carl Dalley, psychiatric nurse, Kestrel Unit at Morisset Hospital. · Joy Adams, health service manager, Mudgee Health Service. · Jennifer Roberts, clinical nurse specialist, Tumut Hospital. · Rovita Elliott, registered nurse, Mental Health Crisis Team, Darlinghurst Community Health Centre. · Maria Rosaria Hogan, registered nurse/midwife in the maternity unit at Nepean Hospital. · Lisa Gaye Singleton, clinical nurse specialist in the cardiopulmonary transplant unit at St Vincent's Hospital, Sydney. · Olwyn Johnston, nurse practitioner, Wanaaring Health Service. · Harry Leslie Williams, director of nursing, Albury Base Hospital. · Di Hutchins, health service manager, Peak Hill Health Service. · Alan Davidson, registered nurse, Coffs Harbour Base Hospital. · Vivienne Valich, registered nurse, Bankstown Hospital. · Kylie Jane Stark, registered nurse, Children's Oncology Unit at the Sydney Children's Hospital. · John Taylor, manager, industrial services, New South Wales Nurses' Association. · Stephanie Mary Shean, industrial officer, New South Wales Nurses' Association.

HAC · Robert Farrugia, director of nursing, Wollongong Hospital. · Peter Hinrichsen, manager, support services, Nepean Hospital. · John Layhe, area director of nursing, Illawarra Area Health Service. · Kenneth Reginald Barker, general manager, finance and commercial services, New South Wales Health Department. · Mark Wheeler, area director of nursing, Wentworth Area Health Service. · Peter Ontatzis, director of finance and administration, Illawarra Area Health Service. · Vince Carroll, acting manager nursing services, Coffs Harbour Base Hospital. · Michael O'Donnell, manager industrial relations, Greater Murray Area Health Service. · Margaret Brown, director nursing and clinical services, Bankstown Health Service. · Belinda Collier, manager, health, safety and risk management, North Sydney Area Health Service. · Michelle Bradley, deputy director, St Vincent's Mental Health Service. · Elizabeth Anne Green, nurse manager/executive officer, Wauchope Memorial District Hospital. · Barry Hunter, sector manager, Southern Tablelands Mental Health Service. · Claire-Marie Edwards, acting director of nursing, Central Sydney Area Mental Health Service. · Chris Kewley, Nurse Manager, Hunter Area Mental Health Service. · Jennifer Collins, general manager, Macarthur Area Health Service. · John George Baillie, area director of nursing, Macquarie Area Health Service. · Jennifer Leslie Kidd, director of nursing and patient care, St Vincent's Hospital. · Trevor Craft, manager industrial relations, employee relations division, New South Wales Department of Health.

Claims by the Nurses' Association 19 We turn to deal with each of the claims by the Nurses' Association. We propose to deal with the claims in the order they appear in the proposed new Award except where it is convenient to deal with claims that are related. Clause 4 (xvii)(c) and (d) - Recall to Work; Clause 10(ii)(c) - Increased allowance if required to respond to recall within 30 minutes

20 The claim in relation to cl 4(xvii)(c) and (d) seeks to limit an employer from requiring an employee to respond to a recall to work in less than 30 minutes other than in prescribed circumstances. The proposed variation to cl 10(ii)(c) (other than the increases sought to the on call allowances) is a consequential variation.

21 The evidence was that the time within which nurses were required to attend at work, having been called back, generally depended on the nature of the facility. Recall times varied from 15 to 60 minutes.

22 The problems associated with short recall periods were reflected in Ms Dare's evidence: I am a single parent with a 10 year old daughter. I live in Bellingen that is at least 20 minutes drive from Coffs Harbour. This means that I cannot respond to a call from my home within the required 20 minutes. When I am on call I have to stay in Coffs Harbour. The hospital does not provide accommodation to staff on call. I have made arrangements to stay with friends when I am on call. One of my colleagues who cannot answer calls from his home sleeps in his car when on call. 23 Thus, the crux of the Association's complaint in seeking to place some restrictions on the employer in call back situations was the inconvenience caused to nurses by short recall periods. On the other hand, there was evidence that Ms Siebels lives one kilometre from the hospital at which she works and is able to return within the 15-minute requirement at that hospital. The inconvenience, therefore, may be significant for some and negligible for others.

24 The HAC's concern about the proposed restriction on the employer was that when on-call on emergency, particularly obstetrics, there was a need for nurses to respond very quickly. It was submitted it would be contrary to the public interest to introduce a clause into the award that would prevent nurses being recalled in less than 30 minutes when necessary.

25 We no not believe that in respect of this claim the Association has made out a special case. We do not consider the inconvenience evident in respect of a relatively small number of the Association's witnesses is sufficient justification to grant this claim across the board. We agree with Mr Kenzie that given the arrangements in place at various hospitals regarding recall periods and the need to respond quickly to emergencies, it would be contrary to the public interest to issue a blanket ban in the form of an award variation that prevented nurses being recalled in less than 30 minutes when necessary unless it was by agreement with the Association. We do not propose to change current arrangements that work satisfactorily.

26 We must observe, however, that we do recognise the effect of urban sprawl and the cost of housing, especially in the Sydney metropolitan area, on nurses being able to meet hospital recall periods. It might be said that if nurses are aware of their obligations in relation to recall periods and live such a distance from the hospital where they are employed that they find it difficult to return to the hospital within the required time, that is a matter of their choosing and they have to live with that choice or find alternative employment, or move closer to the hospital. Such a view is, however, quite unrealistic.

27 Where a problem exists in a hospital in relation to this issue of recall periods we consider that it would be appropriate for the hospital concerned and the Association to review the current arrangements to determine how the problem might be overcome. We do not consider it a satisfactory arrangement where a nurse has no realistic option other than to sleep in their car when they are on call, as appears to be the case in respect of one of Ms Dare's colleagues. Leave reserved on this issue will be included in the interim award. Clause 10(i)(a) and 10(vi) - Nurse in charge of hospital and combined in charge of shift/in charge of hospital allowance

28 The Award currently provides in cl 10(i)(a) that in the absence of a senior nurse, a registered nurse in charge of a hospital of not more than 100 beds (ICH) during the day, evening or night shall be paid an allowance of $15.15 per shift. The claim seeks to increase the allowance to $30.30 per shift. It may be noted that this allowance is the same as the in charge of shift (ICS) allowance in cl 10(v).

29 The claim in respect of cl 10(vi) seeks to increase the combined in charge of a ward or unit and in charge of a hospital of less than 100 beds (ICH/ICS) from $22.70 per shift to $45.40 per shift.

30 As Ms Howell submitted, these allowances: … apply to the position of a small number of nurses in small hospitals (not more than 100 beds) where those nurses assume managerial responsibility for the whole of the hospital as the senior staff member on duty. 31 Ms Howell submitted that the evidence showed that the combined ISC/ICH role involves additional responsibilities of a managerial/administrative nature by ensuring that the hospital runs properly as well as the usual responsibilities associated with ICS. There was evidence from Ms Adams and Ms Roberts that the ICH role had become more complex over the past 10 years for reasons including the following: 1) Reduced staff and increased utilisation of casuals causing a greater difficulty in managing rosters and covering absences. 2) Changes to ambulance escort requirements that increase the need for replacement staff and associated clinical decisions. 3) Greater acuity of patients. 4) Increased requirements for documentation associated with quality assurance and complaints. 5) Overall responsibility for clinical standards. 6) Medical liaison. 7) Increased involvement in discharge planning. 8) Increased accident and emergency patients. 9) Increased mental health admissions. 32 The Association contended that the ICH rate had experienced the same relative decline, as had the ICS role, relevant to managerial classifications. It was submitted that the work value changes identified in respect of the ICS role would have obvious ramifications for the ICH and combined role and, accordingly, adjustments should be made in the same quantum as the ICS role.

33 Mr Kenzie, for the respondent, conceded that: … the in charge of hospital allowances have, historically, moved in line with the in charge of shift allowance. The allowances are to undertake similar duties, namely the coordination of peers in the absence of a manager. The in charge of hospital and shift allowance (clause 10(vi)) is a higher sum, recognising that the role entails being the senior person on duty for the whole hospital. HAC is of the view that the relativity between the in charge of hospital and shift allowance (clause 10(vi)) and the in charge of shift allowance (clause 10(v)) should be maintained. 34 Consistent, however, with his submissions regarding the ICS allowance, Mr Kenzie contended that the role of the in charge of hospital in small rural hospitals had not increased over the last decade and, if anything, had reduced in work value. He submitted increases in work have been offset by matters such as improved transport to transfer complex cases and improved communications systems, including mobile phones, which make it easier for the in charge after hours to obtain managerial assistance to deal with special incidents. Further, he submitted, there had been a reduction in the number of patients and increased transfers of seriously ill patients.

35 Given our findings in relation to the ICS allowance, which are set out later in this Decision, and the HAC's position regarding the maintenance of relativities, we propose to increase the allowances prescribed by cl 10(i)(a) and 10(vi) of the proposed interim award. However, as the award is to be an interim award pending the Association's wages case it is necessary to adopt a cautionary approach to ensure that there is no double counting in any area which could be affected by that case and to ensure that any interim fixation of rates does "not embarrass the final" result or rate which might be then fixed: see, for example, Re Crown Employees (Administrative and Clerical Officers) Award [1975] AR (NSW) 1 at 7 per Beattie J, President and Re Crown Employees Scientific Officers Health Commission, Interim Award [1974] AR (NSW) 705 at 709 per Dey J. Given the relationship between the ICS, ICH and combined ICS/ICH allowances, we will take a similar approach as to the amount of the allowances to apply under cl 10(i)(a) and 10(vi) of the proposed award (see [65] - [66] below). 36 Accordingly, we propose to increase the allowance for in charge of hospital as prescribed by cl 10(i)(a) to $18.25 on the same formula as that applied in relation to the ICS allowance in cl 10(v). The allowance of $22.70 prescribed by cl 10(vi) will be increased to $27.40, which is one and a half times the rate prescribed by cl 10(v), thus maintaining the existing relativity between the rate prescribed by cl 10(v) and that prescribed by cl 10(vi). Clause 10(ii)(a), (b) and (c) - On call allowances 37 The claim seeks to restructure the on call allowances to provide differential allowances reflecting varying lengths for on call periods.

38 The present award provision prescribes a single standard allowance for nurses who are rostered on call ($13.61) with a higher rate ($26.89) payable for on call on rostered days off.

39 The Association's claim is to vary the award to:

1. Replace the single rate of $13.61 when on call on a day rostered to work with two different payments, namely $16.00 for up to 8 hours and $32.00 for 8 to 16 hours; 2) Replace the single rate of $26.89 when on call on a day not rostered to work with three different payments, namely $24.00 for up to 8 hours, $48.00 for up to 8-16 hours and $72.00 for up to 16-24 hours; 3) Introduce further differential payments of $24.00 for up to 8 hours, $48.00 for up to 8-16 hours and $72.00 for 16-24 hours where the nurse is required to attend for duty in less than 30 minutes.

40 Ms Howell made the following main points in relation to this claim: · Most commonly on call arrangements are applied in operating theatres, some community based services and a limited number of specialist services in hospitals where those facilities do not operate three full shifts per day. · The practice of compulsory on call is utilised by the employer. · The periods of on call days when nurses are rostered on duty may be between 8 hours or 16 hours depending on the number of shifts worked at a facility and the configuration of shifts. · Twenty-four hour periods of on call on days off may apply at weekends in facilities that have no rostered shifts but may be required to provide emergency services. In other cases the nurses work a shift then remain on call for the remaining 16 of the 24-hour period. Most commonly nurses are rostered on call for the whole weekend. · Frequency of on call varied but Ms Wood gave evidence that she may be rostered on call every other weekend as well as four nights during the week. · Being on call caused a high level of disruption to nurses including disruption to family and social life, personal relationships and recreational activities. · There was extra cost incurred being on call especially in relation to childcare. · Call back times varied from 15 to 60 minutes. · The difference between a 15 or 30-minute call back period and a 60-minute call back requirement was significant to nurses, particularly those who had to make accommodation arrangements. 41 Mr Kenzie's submission, opposing the claim, may be summarised as follows:

· There was a significant cost associated with introducing differential payments for being on call. · The inconvenience of being on call is currently compensated by the on call allowance. The evidence called does not support the contention that there has been any significant change in the inconvenience of being on call that would justify the increases in the allowance proposed. · The approach of the Association, based on blocks of time, would lead to unfairness because of the arbitrary cut-off periods. · It is not twice as inconvenient to be on call for twice the period. · To replace the current single allowance with differential rates would create real and significant administrative difficulties.

42 We consider that a single amount for nurses who are rostered on call, which is paid regardless of the duration of the period that the nurse remains on call, is inherently unfair and on that basis the Association has made out a special case for a new provision. We do not, however, agree with the Association's "block of time" approach to remedying the unfairness. We intend to fix a rate of $2.00 per hour for the period a nurse is rostered on call except when the requirement to be on call falls on a rostered day off when the rate shall be $4.00 per hour, with minimum payments of $16.00 and $32.00 respectively. The parties should attempt to reach agreement on an appropriate provision to effect this change.

43 Given that we earlier rejected the Association's claim in relation to cl 10(ii)(c) that a nurse shall not be required to attend for duty in less than 30 minutes, we do not propose to prescribe an additional payment where the nurse is required to attend for duty in less than 30 minutes. To provide for such an allowance would not resolve the problem for nurses living more than 30 minutes from their place of work and would be a windfall for those who were able to attend for duty in less than 30 minutes.

Clause 10 (ii)(d) - On call allowance during meal break

44 This claim seeks to increase the allowance for on call during a meal break from $7.63 per break to $15.26. It also provides for the payment of the allowance when the employee has been required to be on call under clauses 10(ii) (a), (b) and (c). 45 We do not consider that the Association has made out a special case to increase the on call allowance during a meal break and, therefore, the claim is refused.

Clause 10(ii)(e) - Payment of on call allowance to nurse managers

46 This claim seeks to amend cl 10(ii)(e) of the Award so that health service managers at Grade 5(c) and 6(a) (ie, HSMs in small rural hospitals) become entitled to on call allowances. Presently, these classifications are not entitled to receive such allowances.

47 It was submitted by senior counsel for the HAC that the Association's claim relied squarely on evidence and submissions relating to the alleged shortage of nurses in country areas and the extra workload caused by that shortage. Mr Kenzie submitted: Although the Association has been careful in its claim otherwise to discount any reliance on the nursing shortage, this claim seems to be squarely based on that recent phenomenon. … [T]he submissions in reply … says that the purpose of the present claim is to meet an urgent industrial situation which has arisen in at least some rural areas, and we again invite the Commission's attention to these words.

…this is one of those other claims that ought to be addressed in light of the general submissions based on the nursing shortage, and there should not be a double count. The prospect of a double count is quite apparent. Double counting would arise when the nursing shortages relied on create allowances here, and then the nursing shortages relied upon to support increased wages and conditions in the wages case, a case in which presumably they will be seeking corresponding increases and conditions to match the award increases …

48 In its submission in reply, the Association addressed this issue of double counting as follows: The respondent fails to distinguish between steps which are being taken through the 'wages claim' to attempt to address the nursing shortage and the present claim which is to address a very specific and limited effect of the nursing shortage. No measure sought or taken to improve the remuneration of nurses generally would impact upon the present problem. Further if the shortage of nurses is improved there will be no need for HSMs to either roster themselves on call or perform overtime duties in place of RNs.

49 In support of the claim Ms Howell submitted: The present situation is a unique one in that senior nurses in managerial positions are making themselves available on call for and performing the duties of an RN. It is strongly arguable that as a matter of contract they could not be required to perform such duties. However in the interests of the community they are performing RN duties, currently for no payment when if they were doing the same duties as RNs they would be paid.

50 We do not see how double counting could arise if we were to grant the Association's claim in respect of on call allowances to HSMs. We consider that the evidence shows that nurses in small rural hospitals are having to make themselves available to be placed on call and that this was not a situation contemplated when the agreement was made in 1994 exempting HSMs from receiving on call allowances.

51 We consider that nurses, classified at Grades 5(c) and 6(a) under the award, who are required to be on call to perform clinical duties should be entitled to the on call allowances to be prescribed by the award. The parties are directed to confer on a suitable provision to be inserted in the award and in doing so are to consider what safeguards are necessary to prevent any abuse of the provision.

Clause 10(v) - Nurse in charge of shift 52 This claim seeks to increase the allowance for a nurse in charge of a ward or unit from $15.15 per shift to $30.30 per shift. It also seeks to have the allowance paid for shifts when the Nursing Unit Manager is rostered on duty but the in charge of ward or unit duties are carried out by an employee other than the Nursing Unit Manager. The claim relies on the work value and special case principles.

53 We deal firstly with the claim to increase the in charge of shift (ICS) allowance when the Nursing Unit Manager (NUM) is not rostered on duty. Ms Howell submitted that the ICS allowance is payable with respect to the performance by a registered nurse (RN) of duties that would otherwise be performed by a NUM. Extensive evidence was given of the range of duties performed by NUMs and the extent to which a nurse in charge of shift would perform those duties. The evidence differed about whether a nurse in charge of shift performed all or only some of the duties of an NUM.

54 Ms Howell submitted that the ICS allowance should be increased for three reasons: 1) Certain state wage case adjustments could have been made to the allowance under previous state wage case decisions but were not made; 2) Work value changes; and 3) Loss of relativity to the NUM rate of pay (relying on the special case principle). 55 As to the first ground, Ms Howell submitted that the "July 1986, March 1987 and August 1988 SWC adjustments of 2.3%, 4% (second tier) and 3% respectively" were not made to the ICS allowance notwithstanding that the principles permitted allowances relating to work or conditions to be adjusted to reflect movements in wages as a result of state wage case decisions.

56 This submission would not appear to be correct. The evidence (Annexure I to Exhibit 29) was that the adjustments of 2.3 per cent, 4 per cent and 3 per cent were made to the allowance, increasing it from $10 set by the Public Hospital Nurses (State) Conciliation Committee [unreported, in the matter of a Reference by the Minister for Industrial Relations pursuant to s 74(1)(a) and s 20(1)(e) of the Industrial Arbitration Act 1940 re the appropriate rates of pay, classifications and conditions of employment for persons covered by the Public Hospital Nurses (State) Award and in Matter No.s 1199 and 1046 of 1985, 22 July 1986; Conciliation Committee chaired by Senior Conciliation Commissioner Wells] in June 1986 ("the Wells' Decision") to $10.90 in September 1989. Accordingly, there is no basis for increasing the allowance under the applicant's first ground.

57 The applicant's second ground was that because of the nexus between the NUM 1 position and the ICS position, the Commission should infer that any increase in the value of the NUM 1 work would be reflected in the work required of an ICS. Ms Howell pointed to the fact that the work value changes identified by the Nurses' Association for the purpose of the 1996 adjustments were accepted by the HAC as being genuine work value changes that justified pay increases of 10 per cent for NUM 1 and 12.5 per cent for NUM 2 and NUM 3. Counsel for the Association submitted that on the basis of the identification of the work performed by the ICS it must be concluded the following factors identified as increasing the work value of NUMs would also have caused an increase in the value of the work performed by the ICS:

a) Shorter length of stay and increased acuity i. Staff mix - greater difficulties in managing allocation of staff to patients; ii. Complexity of care; ensuring staff have greater range of clinical skills and overseeing and managing a more complex range of clinical practice. b) Increased occupancy rates i. Bed management ii. outliers iii. staff management and counselling - particularly identification and dealing with staff stress and burnout

c) Occupational health and safety d) Greater productivity through increased admissions per year and the greater shift management challenges arising from that increase.

58 The Association referred to other evidence it contended independently supported the conclusion that the work value of ICS had increased to a significant degree, namely:

a) Evidence from Ms Walton regarding the greater complexity of the ICS role as a result of reduced length of stay, increased occupancy, higher acuity, more complex issues arising in staff/patient allocation and oversight, outliers, high occupancy rates, more complex discharge processes as a result of earlier discharges, higher proportion of casual staff. b) Evidence from Ms Harford regarding increased occupancy, patient throughput per bed, reduced staff to patient ratios, greater acuity and more complex procedures, all of which cause more challenging and difficult staff and bed management issues. c) Evidence from Ms Kidd. 59 Ms Howell said that: The applicant does not rely on any work value changes beyond those which are associated with work value adjustments which have already been made to NUM classifications because of its view that it is appropriate that measurements in NUM work value and ICS work value should be made at the same time and that appropriate relativity should be maintained. 60 The third ground relied upon by the applicant was that because of the close nexus between the duties of the NUM and the duties of the ICS, the appropriate relativity for the ICS is the NUM 1 rate. Ms Howell submitted that since 1986 there had been a loss of relativity. Ms Howell's submissions in this regard may be summarised as follows:

1. That there was a relativity between ICS and NUM is implicit in the 1986 Wells' decision where the Senior Commissioner said: "The allowance (ICS) is to compensate a registered nurse who is in charge of a shift in the absence of a charge nurse (now an NUM). It is difficult to sift from the evidence the weight of the responsibility that may be assumed in undertaking the higher duty. I cannot agree with the Association's assumption that the full duties of the higher classification are involved and so I do not accept the simple formula of difference between classification pay as the base for the assessment of the allowance. I measure the value at $10.00 and award accordingly." 2) As a result of the lack of adjustment of the ICS allowance its value relative to the NUM I level has declined from 9.32 per cent to 6.94 per cent between 1986 and 2001. 3) A substantial component in the loss of relativity was the lack of adjustment of the ICS allowance for the 1987 Professional Rates decision and for the 1996 work value changes, each of which gave rise to substantial increases in NUM rates. 4) The restoration of the allowance to its former relativity is advanced as a special case. It is a highly exceptional circumstance that two work value adjustments have been made to the positions to which the higher duties relate without any adjustment to the allowance. 5) The relative decline in the ICS rate makes it manifestly inadequate for the performance of the range of duties performed by an ICS. 6) Restoration of the 1986 relativity with the NUM 1 rate would require an ICS rate of approximately $20.35 per shift. 61 Mr Kenzie's submissions regarding the applicant's second and third grounds may be summarised as follows:

1. The initial allowance of $10 set by Senior Conciliation Commissioner Wells in 1986 was not set as a figure relative to the NUM 1 rate and therefore there is no basis for the claim now that the allowance should be adjusted to maintain relativity with the NUM 1 rate. The figure of $10 happened to be the mid-point between the amounts proposed by the parties at the time. 2) A NUM 1 is "in charge of a ward or unit". It is a managerial position, involving the person having responsibility for the ward or unit, in charge of the nurses within that unit. The position carries with it responsibility for administration of the ward or unit and long-term decision making, as well as appraisal and counselling of staff. By way of contrast, the ICS position is not a position held by a nurse on a permanent basis. The person who is in charge of shift in the absence of a NUM changes from day to day. The ICS is an RN, usually of some experience, who takes responsibility for allocation of their fellow team members to their primary patients and the scheduling of meal breaks and the like. Whilst some might use the word 'supervision' to describe the relationship of the ICS to other nurses, that is meant to convey that they have responsibility for determining which patients they are responsible for, the timing of breaks, and otherwise coordinating their peers. The ICS as one of the RNs on the team is not superior to the others in the sense of being responsible for their clinical decisions. In the absence of the NUM the NUM is still "in charge" of the ward or unit in the sense they retain responsibility for the overall running of that ward or unit. The role of the ICS varies from place to place. The ICS does not take on responsibility for the bulk of the important work that is the responsibility of the NUM, including the responsibility for the running of the unit and the administration and long term planning and management tasks. 3) Given the only change in work value relied upon by the Association is the increase that occurred in 1997, even if the Commission determined that the ICS position had increased in work value in line with increases in work value for the NUM 1 position, then the increase in the allowance that would be made under the work value principle would not be more than 10 per cent. 4) The increases in 1997 to the NUM 1 rate were part of a package of conditions that changed at the time by consent. The Commission would not order by arbitration an increase based on a past consent agreement to increase other rates. 5) Most of the matters that lead to an increase to the NUM 1 rate in 1997 were administrative, managerial and planning work, being matters that form part of the NUM duties but not part of the day to day clinical role that an ICS might arguably fill. 6) The only work value changes to the NUM responsibilities relied upon as having a likely effect on the work of an ICS are matters relating to "shorter length of stay", "increased occupancy rates", and "occupational health and safety". It can be seen that even if these three areas did mean an equal change in work value for the ICS, they do not amount to a majority of the work value changes for the NUM classification and do not justify an increase of the full 10 per cent awarded to the NUM 1 classification in 1997. 7) The Commission would be careful as to the extent to which it accepted the need to increase an allowance based on increasing work arising from the nursing shortage, given the Association is seeking a general wage increase on the same ground. 8) There was evidence from Ms Harford and Ms Walton that in their opinion there was increased patient acuity and increased work being done in the units in which they worked and this supported the case of increased work value for the ICS. However, there was an absence of documentary evidence to support these opinions. 9) Even if it is accepted that over the last decade there have been changes to work value as a result of such matters as increased occupancy and shorter length of stay in hospitals that have affected all nurses, this is not, in itself, sufficient to justify the variations sought here. During this period there have been various wage movements that have reflected such increases in work value. The Association has failed to establish that past increases in wages have not adequately compensated all RNs for the increases in work value. In any event, to the extent that the Association can prove otherwise, that is something that can be remedied in the upcoming Wages Case, if appropriate. 10) The alternative submission put by the Association was that the 100 per cent increase in the ICS allowance could be justified as a "special case" on the basis the allowance should have kept pace with the increases in pay for the NUM positions. If the ICS allowance were to be increased in line with increases in the NUM 1 rate of pay since 1986 that would be an increase to about $20 or about 32 per cent above the current rate. If the 100 per cent increase claimed were granted that would lead to the ICS allowance having increased by more than 200 per cent since 1986 compared to an increase in the wage rate for an NUM 1 in the same period of about 100 per cent. 11) The Association relies, in support of its special case, on changes to the NUM 1 rate that were not made to the ICS rate since 1986. There were, in effect, three reasons why the ICS allowance did not move at the same time as increases in the NUM 1 rate of pay: a. The three flat dollar increases in 1987, 1988 and 1989; b. The Professional Rates Case adjustment (which was a total of 13 per cent); c. The 1997 re-classification adjustment. 12) With respect to the three flat dollar adjustments, the allowance was not adjusted at the time because the wage fixing principles specifically prevented such an increase. It would be wrong now to make adjustments to the allowance for the three flat dollar increases. 13) With respect to the Professional Rates case adjustment, given that the wage fixing principles (6(d)) only allow changes in work value to be considered since the commencement of the second structural efficiency adjustment (in December 1989) it would be anomalous for the Commission to now entertain a claim for an increase in an allowance as a special case, based on an increase in work value that allegedly occurred before December 1989. Further, the adjustments in the Professional Rates case were all made by consent. 14) With respect to the 1997 increase to the NUM rate, if an increase was warranted it could only be on the basis of the work value principle. If it were not warranted under that principle there is no additional reason why it would be appropriate to make the increase as a special case. Further, the 1997 increase was by consent. 62 Ms Howell made detailed submissions in reply. Importantly, she strongly contested the HAC's interpretation of the evidence regarding the nature of the work of the ICS and the manner in which she contended the respondent played down the significance of the changes affecting the work value of the ICS.

63 We consider the current allowance does not, on the evidence before this Full Bench, reflect the proper work value of a nurse who is acting in the role of ICS. Furthermore, whilst it has not been made clear in the past, there is a nexus between the work of an NUM and a registered nurse performing the work of in charge of shift. So much is obvious from the evidence. We agree, however, with the submissions of Mr Kenzie that when a nurse undertakes the work of ICS he or she is not the NUM's alter ego for the duration of the shift. Even though the NUM is not present on the shift the NUM is still "in charge" of the ward or unit in the sense they retain responsibility for the overall running of that ward or unit. The ICS's role does not carry with it the very significant responsibilities associated with the ongoing administration of the ward or unit and long-term decision making, as well as appraisal and counselling of staff.

64 The Association has, in our opinion, made out a case on work value grounds for an increase in the ICS allowance, but not to the extent of 100 per cent as claimed. We also consider that in determining any new allowance it should be on the basis of a fixed percentage relationship to the NUM 1 rate. This would avoid, in future, the controversy that arose in these proceedings over when and how the allowance should be adjusted.

65 The problem with adjusting the allowance on work value grounds and determining its relativity with the NUM 1 rate at this time is that if, as a consequence of the Association's wage claim, we were to increase rates of pay for nurses on the same work value grounds justifying an increase in the ICS allowance it could lead to double counting. As earlier foreshadowed (see paragraphs [35] and [36]), the rates should be fixed in accordance with traditional principles applicable to fixation of wage rates in interim awards. 66 An increase in the ICS allowance of 100 per cent would provide an RN eighth year working five shifts as ICS a weekly rate of pay of about $1047. This compares to a rate of about $1125 per week for a NUM 1. We do not consider this to be an appropriate relativity given the respective work, skills and responsibility exercised by an ICS compared to an NUM 1. We would also be concerned at the cost impact of granting such a claim, which was estimated by Mr Craft to be of the order of $13 million. We consider that an appropriate allowance fixed on an interim basis is one based on 40 per cent of the difference between the weekly award rate for an RN eighth year ($896.60) and the rate for an NUM 1 ($1124.70) divided by five to express it as a daily or shift rate. On current rates of pay this formula would provide for an ICS allowance of $18.25 per shift or an increase of $3.10. 67 We wish to make it clear that we have arrived at this amount based on our view of the evidence of the work value of an ICS and what we consider to be a proper relationship with the role of a NUM 1. It is not based on any restoration of a particular wage relativity (in our opinion there was never any relativity established) nor is it based on changes to the NUM rate of pay that were not reflected in the ICS allowance.

68 The second part of the claim relating to ICS is that the relevant allowance should be payable when the NUM is rostered on duty but the duties associated with the in charge of shift role are carried out by an employee other than the NUM. During the course of the hearing the Association amended this claim to read as follows: (v) A registered nurse who is designated to be in charge of a ward or unit during the day, evening or night shifts, when the Nursing Unit Manager is rostered for duty, shall be paid an allowance as set out in Item 8, of table 2 of part B per shift . Provided that the allowance shall also be paid when a registered nurse is designated to carry out the duties associated with the in charge of shift role when the Nursing Unit Manager is on duty (our emphasis).

69 Ms Howell submitted there had been a shift towards devolution of management functions down to the Unit or Ward level. In particular, she submitted, NUMs in some areas have taken on a greater managerial load resulting, in some institutions, in a situation where RNs have taken up managerial responsibilities previously performed by an NUM. The Association contended that in some cases an ICS or "team leader" position had been created to operate when the NUM was on duty. The purpose of the position was to attend to the day to day running of the ward in the same way that the role is performed when the NUM is off duty. This, counsel submitted, had been thought to be appropriate to free up NUMs for other managerial duties.

70 Ms Howell referred to three examples to support the claim, namely: the role of Ms Harford in the Cardiology and Cardiothoracic wards at Westmead Hospital where Ms Harford is in the role of "team leader" and is responsible for the management of clinical work on the shift, notwithstanding the NUM's presence; Ms Walton's position as Clinical Care Coordinator at Wollongong Hospital where she has the "responsibility for day to day matters involving clinical care" and accepts responsibility for "the organisation of nursing, medical and paramedical staff involved in patient care …"; Mr Green, who is in the role of shift coordinator at Rozelle Hospital and is responsible for the day to day management of clinical matters. It was submitted that none of the three nurses received any extra allowance for the additional duties undertaken by them.

71 It was Mr Kenzie's submission for the HAC that the three examples referred to by the Association were unusual and did not justify the making of a new allowance that would have application across the health service. In referring to the evidence of Green, Walton and Harford, Mr Kenzie submitted "Their evidence revealed that they each had quite unique circumstances that would not be considered typical or usual." It was submitted for the respondent that it was not the case that there had been a transfer of duties to NUMs thus limiting their ability to be responsible for day to day clinical management of their ward or unit and that this further undermined any justification for a generally applicable allowance. Senior Counsel submitted that although nurses do take on additional responsibilities while the NUM is present, it is part of the practice of providing professional development. The HAC contended that if in such circumstances an additional allowance is to be paid it would discourage professional development.

72 The evidence did not indicate it is a widespread phenomenon for RNs to be undertaking the role of in charge of shift when the NUM is rostered on duty. Nevertheless, there was evidence that RNs were taking responsibility for the day-to-day clinical management of their ward or unit in circumstances where the NUM was rostered on duty but they were not being remunerated for such additional work.

73 Where RNs are taking on these additional responsibilities they should be properly remunerated. We have decided, therefore, that where an RN is designated to be in charge of a ward or unit for a shift in circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons, the RN shall be paid the ICS allowance. The fact that the RN has to be designated to carry out the role of ICS where the NUM is unable to fulfil the clinical management role on a particular shift, will avoid any uncertainty or ambiguity about the circumstances in which the RN is entitled to the allowance. The parties are directed to confer on the precise terms of the provision awarded.

Clause 10(vii) - On call allowance for telephone counselling

74 This claim seeks to adopt the provisions of the Public Hospital Social Workers Award for nurses rostered on call for telephone counselling.

75 Currently nurses are entitled to the on call allowance when they make themselves available to provide emergency telephone counselling outside their normal rostered hours of work. If they receive a telephone call requesting counselling they are paid instead one third of their hourly rate for the whole period they are on call, up to a maximum of 2.5 hours for periods rostered on call of 8 to 16 hours, or a maximum of 1.5 hours when rostered on call for less than 8 hours.

76 Social workers under the Public Hospital Social Workers Award are entitled to one third of their hourly rate for each hour they are on call to provide telephone counselling, with a maximum of 2.5 hours pay. The hourly rate payment is payable regardless of whether they actually do any counselling. Further, there is no reduced maximum of 1.5 hours where they are rostered for less than 8 hours.

77 The Association's claim for an increase in the on call allowance for telephone counselling was based on achieving parity with social workers. The telephone-counselling clause in the Public Hospital Social Workers Award was arbitrated (see the appeal proceedings reported as Re Public Hospital Social Workers Award [1979] AR (NSW) 742) but as senior counsel for the HAC submitted, on a narrow point. Mr Kenzie submitted: There were already, by consent, similar terms existing at one location and McLelland J determined that social workers at public hospitals did work sufficiently similar to the work done at the location to justify the condition being extended to all public hospital social workers. 78 In order to make out a special case an applicant, in our opinion, has to do more than merely establish that two different groups of employees are doing the same work and, therefore, the highest rate payable should apply to both groups, especially when there has been no real analysis of how the higher rate was arrived at and where there are no other points of parity between the two groups in relation to such matters as rates of pay and career paths.

79 Moreover, the evidence showed that the frequency of telephone calls in the counselling context was very low and does, as Mr Kenzie submitted, reinforce the appropriateness of having a different, lower on call rate when the nurse is on call but does not do any telephone counselling. A nurse who is on call to perform telephone counselling is in no different position to a nurse who is on call to be recalled to a hospital. While the latter is on call he or she receives the on call allowance. When he or she is recalled to perform work, the normal rate for that work is payable. While a nurse is on call for telephone counselling he or she should receive the on call rate and when undertaking counselling the relevant higher rate becomes payable.

80 In principle then, a nurse who is on call for telephone counselling should receive the on call allowance of $2.00 per hour or $4.00 per hour as the case may be. If the nurse is required to provide telephone counselling a higher rate is payable. It is not clear whether the higher rate should be that which is currently prescribed by cl 10(vii); firstly, because we were not provided with any information as to the basis of the higher rate(s) and, secondly, because the changes we have made to the on call allowance may have implications for the higher rate payable for telephone counselling. Consequently, in the course of preparing the terms of the draft award to give effect to this decision, the parties are directed to confer with a view to achieving agreement on the appropriate rate to apply under cl 10(vii) where a nurse is engaged in telephone counselling. Clause 10(viii) - Work away from designated health facility

81 This claim is for a new provision seeking an allowance of $4.00 per shift for nurses who spend more than 50 per cent of their period on duty working away from a designated health facility delivering nursing care to clients in residential and other non-health facility settings. The allowance is said to be in compensation for the disabilities associated with community nursing.

82 Ms Howell's submissions for the Association regarding this claim may be summarised as follows:

· Work away from a designated health facility is most frequently at the patient's home but also at other locations such as police cells and boarding houses. The work performed typically includes a range of clinical work including mental health nursing, palliative care, post-operative care and general home nursing. · The performance of nursing duties outside of a designated health facility is an increasing trend. · The disadvantages of working away from a designated health facility include the following: - Exposure to unsafe conditions including assaults, threatening behaviour and verbal abuse and sexual harassment from clients, their families and friends without immediately available security back-up. - Exposure to inclement weather conditions both in transit and at a client's home. - Unavoidable requirement to work from time to time in dirty and unpleasant premises. - Exposure to smoking and passive smoking. - Lack of staff amenities. - Inability to take scheduled meal breaks. - Inability on occasions to contact emergency services or back up due to lack of mobile phone coverage. · The general approach with respect to disability type allowances is to consider whether the disabilities are over and above those which could be regarded as normal and for which a general award allowance has already been prescribed and, secondly, if such conditions were found to exist, then to award an appropriate allowance having regard to the particular circumstances: Transbridge, Menangle Bridge Case [1979] AR (NSW) 383 at 385-6; Urban Transit Authority v Labor Council of NSW (1984) 8 IR 3.

83 Submissions for the HAC opposing the claim may be summarised as follows:

· The best estimate of the cost of the claim (based on the original claim of $20.00 per week) is about $3.35 million. · The claim will introduce the need for an additional level of timekeeping; the Association has not addressed any evidence as to the workability of the claimed provision; there is no definition of "designated health facility". · Disabilities associate with working away from a designated health facility are also found within health facilities and to the extent that there are additional disabilities they are balanced by the advantages to nurses of working away from a designated health facility. · There are other health professionals who are required to work away from designated health facilities who are currently not entitled to such an allowance. If the allowance were granted it would be likely to create pressure for a flow on. · In relation to the alleged disability of aggressive and abusive behaviour: - It is not unusual for a mental health nurse within a health facility to have to deal with such behaviour; - There are a number of factors that help reduce the risk to nurses including: a prior risk analysis by phone before going to a patient's home; if there is a risk of aggression police are contacted and attend with the nurse; if the aggressive incident appears dangerous the nurse can withdraw; mental health nurses are provided with special training to deal with aggression; nurses travel in pairs; nurses can carry mobile phones to use in emergencies to call for police assistance; - The level of risk for community nurses would be less than that for mental health nurses; - The disability would not be significantly different to that faced by nurses within a health facility. · In relation to the alleged disability of exposure to inclement weather: - Air conditioned cars are provided; - Wet weather gear is available; - There are health facilities where nurses must walk from one building to another and are similarly exposed to inclement weather. · In relation to the alleged disability of exposure to dirty homes and passive smoke: - Nurses within a health facility are also expected to work in unclean and unpleasant conditions from time to time such as dealing with psycho-geriatric patients; - If an allowance were to be paid to community nurses for the disability of being exposed to unpleasant work conditions, there would be a risk that other nurses would feel they should get such an allowance; - Community nurses are not required to attend premises where people are smoking and should leave houses where smoke is present. · In relation to the alleged disability of lack of access to staff amenities: - There was no evidence as to whether staff meals available in hospitals were any better than the food available at take-away restaurants; - An advantage of being on the road was the flexibility nurses had to choose where they could eat. - Work could usually be organised in such a way as to allow nurses to take a break when it suited them and they could arrange to return to the team base or eat elsewhere; - Whilst drug addicts might use public toilets to inject themselves it might readily be inferred that drug addicts might also use public toilets within public hospitals that provide drug treatment programs. · There are some advantages in working away from designated health facilities that balance out the disadvantages: - Some nurses prefer to work as community nurses; - Community nurses have some flexibility as to when and where they take their breaks; - Community nurses are usually only responsible for one patient at a time unlike nurses in a health facility who must look after and prioritise a number of patients at once; - Community nurses have a degree of autonomy; - Community nurses have a level of downtime while driving from patient to patient; - Community nurses tend to deal with patients with lower acuity levels; - Some community nurses can use their vehicle to drive to and from home.

84 Senior counsel for the HAC also submitted that the Commission could not grant the claim without a complete understanding of what factors were originally taken into account in fixing the rate for community nurses and what effect any adjustment to community nurses' rates of pay may have on the relativity with RN's rates of pay. Mr Kenzie submitted that if the environmental factors now relied upon by the Association had been taken into account by the Conciliation Committee in the Wells' Decision in 1986, those factors could not now be used to justify a new allowance. Ms Howell responded in some detail to the HAC's submissions and we have taken this into account.

85 We consider that the Association has made out an arguable case that community nurses do experience disabilities above the norm, which include: · Exposure to inclement weather conditions; · Exposure to dirty and unpleasant working environments; · Lack of appropriate staff amenities. It has not, however, been demonstrated whether these considerations were taken into account in fixing rates of pay which preceded the current rates.

86 Further, we do not consider that it would be appropriate in principle to strike an allowance in recognition of 'disabilities' such as those associated with exposure to threatening behaviour and abuse without appropriate security back up being immediately available, or exposure to passive smoking. These are matters going to the health and safety of employees and no amount of disability allowance can substitute for proper procedures in the work-place that prevent employees being subjected to such risks to their health and safety. It might be argued in this respect that employers cannot avoid these risks and therefore, some consideration for being exposed to such risks should be forthcoming. We do not agree. Under the Occupational Health and Safety Act 2000 employers are to ensure the health, safety and welfare at work of all of their employees. It would be inconsistent with the duty imposed on employers under that Act to provide in awards for the payment of allowances to compensate employees in circumstances where they may be exposed to risks to their health and safety. To do so could have the effect of condoning exposure to such risks when the proper course is avoidance and prevention.

87 Whilst it may be appropriate to compensate community nurses for the disabilities they obviously experience in their work and which we have identified above, we are not satisfied that the rates of pay for community nurses were determined in the absence of any consideration of environmental factors identified by the applicant as now supporting a new disability allowance. Nor are we satisfied that we have sufficient historical information going to whether there is any established nexus between the rates for community nurses and those applying to RNs.

88 If, in fact, the rates of pay for community nurses were fixed having regard to environmental factors - and it is difficult to believe that was not the case - any allowance we might now determine to compensate for the disabilities identified by the applicant in these proceedings may involve double counting. Moreover, if the rates of pay for community nurses were fixed having regard to environmental factors, and a nexus has been established with RNs, a new disability allowance that is perceived to destroy that relativity may trigger flow on claims.

89 We do not propose to determine the claim for an additional allowance for work away from a designated health facility at this stage. We consider that in pursuing its wages claim the Association will be asking the Commission to comprehensively examine the work of nurses, including community nurses. That being the case, we believe that the time to consider the claim for an additional allowance based on environmental factors is at the hearing of the wages claim. This will allow the Commission to consider the issue in the wider context. It will also provide the Association with the further opportunity of demonstrating that the granting of its claim for a new disability allowance for community nurses would not amount to double counting, a critical element in its obligation to demonstrate a special case. Clause 10 (ix) - Handling cytotoxic materials

90 This claim is for a new provision seeking an allowance of $2.16 per hour or part thereof for nurses who are required to handle cytotoxic agents and/or associated waste material and who, as a consequence thereof, are required to wear protective clothing. Cytotoxic materials are used in the treatment of patients suffering from cancer.

91 The applicant's case in support of this claim may be summarised as follows: · Cytotoxic materials are highly toxic and exposure can cause extremely serious side effects. · Cytotoxic agents can be absorbed through the skin or by inhalation. There is also a risk of contamination from contact with the bodily fluids of patients who are being treated with cytotoxins. · Cytotoxic agents are most commonly administered in liquid form. · Nurses in oncology units administer cytotoxins and deal with the waste products of persons who have received doses of cytotoxins. · In the 1980s there were no guidelines on safety procedures and minimal if any equipment used in the preparation and administration of cytotoxins and the handling of waste materials. This has changed significantly, particularly since the mid 1990s. · The nature of the duties performed requires nurses to spend variable amounts of time wearing personal protective equipment ("PPE"), in some cases for periods of several hours per day. · The evidence was that the PPE worn for the administration of cytotoxic drugs is significantly more uncomfortable than standard protective equipment. · There is particular discomfort involved in wearing the required PPE because of: - The totally impermeable nature of the gowns; - The synthetic material from which the gloves are made; - The goggles are a universal fit and may be uncomfortable; - The respiratory masks are uncomfortable, hot and claustrophobic. · The wearing of all of the PPE described above is a significant disability when compared to general nursing practice and the allowance is otherwise justifiable as a special case. 92 The case for the respondent may be summarised as follows:

· The best estimate of the cost of the claim is about $1.1 million. · The Association provided no justification for choosing the amount of $2.16 per hour. · The claim, if granted, would introduce the need for an additional level of timekeeping to record each occasion when a nurse had handled cytotoxic materials. This would introduce a significant additional administrative task. · It was not clear from the Association's submission whether the disability relied upon was the danger associated with using the material, the discomfort of having to wear PPE when handling the material, or both. · There are many hazardous substances that nurses must deal with on a day-to-day basis and about which they must take precautions to prevent injury (the most obvious and widespread example being potentially infected blood). · The PPE worn by nurses administering cytotoxic drugs is not significantly different to the protective clothing that nurses wear in a variety of situations. · There is no need to create a special disability allowance for doing work that is part of standard nursing duties. To create an allowance based either on the risk of coming into contact with hazardous material, or for having to wear gloves, gowns, masks and goggles, has the real potential to create a precedent for further allowances or, alternatively, to cause discontent from nurses who are required to wear clothing to prevent similar risks but do not receive such an allowance.

93 The rationale for the new allowance is essentially the requirement to wear protective clothing and the discomfort associated with that requirement. We do not consider that the Association has established that a requirement to handle cytotoxic agents and/or associated waste materials constitutes such a significant net addition to work requirements that a new allowance is warranted, nor that it is not part of the normal duties of a nurse to wear protective equipment where the circumstances demand it. The requirement to handle cytotoxic materials has not been demonstrated to be so out of the ordinary as to justify a special allowance, or that, whilst there might be some discomfort with the wearing of personal protective clothing when handling cytotoxic agents and/or associated waste material, the clothing is significantly different to other forms of protective clothing worn by nurses. As a special case has not been established, the claim is refused. Clause 18A(i) - Right of employees to be provided with a suitable vehicle for work

94 This claim is for the insertion of a new clause that requires the employer to provide an employee who is required to drive a car for work with a vehicle "of a type which is suitable for the environment in which it is to be driven. This includes a four wheel vehicle where appropriate".

95 The applicant did not lead evidence suggesting suitable vehicles are not provided when they are needed, including four-wheel drive vehicles. The applicant did not address this claim in its submissions. The claim is refused. Clause 18A(ii) - Employee not to be charged for taking car home at end of a shift; Employee to be permitted a reasonable deviation from most direct route of travel

96 This claim is for a new provision prohibiting the employer from imposing charges on an employee who takes an official motor vehicle home at the conclusion of the shift. The new provision would also allow such employees to take a reasonable deviation from the most direct route of travel from work to home.

97 As to the first part of the claim, namely prohibiting the employer from imposing charges on an employee who takes an official motor vehicle home at the conclusion of the shift, the applicant did not address this claim in its submissions and it does not appear there was any evidence led in respect of it. As to the second part of the claim the Award is currently silent on the subject of motor vehicles, other than to provide for a car allowance where a nurse uses his or her personal car for work. It does seem, as Mr Kenzie submitted, that it "would be anomalous for the Award, otherwise not dealing with motor vehicle issues, to have a clause dealing with the question of reasonable deviation." It has not been shown that this issue is not a matter to be dealt with under the Department of Health's motor vehicle policy.

98 We do not consider that the applicant has made out a special case in respect of this claim. The claim is refused. Clause 18A(iii) - Right of Directors of Nursing to have private use of a vehicle

99 This claim is that "Every Director of Nursing and Director of Nursing/Executive Officer shall be permitted private use of an official motor vehicle, with charges at the level agreed between the Department and the Association from time to time".

100 The only evidence called by the applicant was from Mr Williams who has been involved in a dispute with the Department over his private access to a motor vehicle. His evidence that he was treated unfairly because other staff have private access to a vehicle was disputed by the respondent's evidence. Whatever the merits of Mr Williams' complaint, we do not consider that his evidence is a sufficient basis to grant a claim that would have application across the health service. To do so would clearly impose a very significant cost burden on the Area Health Services and create unacceptable flow on implications. We do not consider that the applicant has made out a special case in respect of this claim. The claim is refused. Clause 19(vi) - Uniform allowance for those who do not wear a uniform

101 This claim is for a new provision extending the payment of the uniform and laundry allowances to those nurses who provide direct clinical care but who are not required to wear a uniform, such as community nurses and psychiatric nurses. 102 The current Award provision provides that if a nurse is required to wear a specific uniform and the uniform is not provided by the employer, the nurse is to receive a range of allowances totalling $13.76 per week including an amount of $1.39 per week for shoes.

103 As Ms Howell explained in her submissions, the variation sought would have the effect that where a nurse was not required to wear a particular uniform the nurse would, nevertheless, receive an allowance to cover the cost of shoes, clothing and laundering.

104 Ms Howell contended that the evidence in relation to this matter showed that:

· The overwhelming majority of nurses are required to wear uniforms at work. · There is an increasing trend to have nurses not wear formal uniforms to work. · Where the requirement to wear uniforms has been removed, as in the mental health area, the employer has generally removed the payment of the major components of the allowance including shoe and laundry allowance but (inexplicably) has retained the sock allowance.

105 In relation to community nursing, Ms Howell submitted that: · Community nurses have, for a number of years, not been required or permitted to wear uniforms. Community nurses do not generally receive any allowance. · Community nurses fulfil a range of roles and may be required to perform a broad range of clinical functions. · Although uniforms are not required to be worn it is generally required that nurses wear clothes and shoes that comply with both safety and style standards. · Community nurses are routinely exposed to the possibility of soiling their clothing both from ordinary clinical factors such as the exposure to bodily fluids and because of the requirement to perform work in dirty environments. · Protective clothing is not worn routinely as this would defeat the purpose of the non-uniform policy. In any event, protective clothing does not provide total protection of clothing and does not prevent soiling due to unforeseen exposure to bodily fluids. · There was evidence that nurses maintained separate sets of clothing for work purposes. The cost of doing so could be $550-$700 per annum. · When soiling occurs it is necessary to soak and wash clothes separately to general laundry. This gives rise to added cost.

106 In relation to mental health nurses, Ms Howell submitted: · The non-wearing of uniforms in the mental health area is a very recent phenomena. · The majority of mental health nurses have moved or are moving from a situation of wearing a uniform and receiving the full range of allowances to having the option of wearing a uniform and receiving the allowances, to receiving no allowances other than the sock allowance, irrespective of whether the uniform is worn or not. · Mental health nurses are required to wear clothes that are professional in appearance and meet safety requirements. · Witnesses estimated that the cost of providing work clothing was about $500-$580 per annum. · Soiling of clothes occurs despite protective clothing. · Separate laundering is required when work clothing becomes soiled. 107 In relation to shoes, Ms Howell submitted that there had been no change in the situation with respect to the requirement for employees to wear safe and appropriate footwear. However, the employer had opportunistically used the change in uniform policy to cease payment of the shoe allowance under the Award.

108 Similarly, it was submitted for the applicant that nurses continued to be required to launder their work clothes but the employer had taken the opportunity of the change in uniform policy to cease payment of the laundry allowance.

109 Ms Howell submitted that the effect of the changes to uniform policy has been to shift the cost of providing work clothing, shoes and laundering from the employer to the employee. Further, that it constitutes an overall reduction in remuneration for those nurses affected.

110 It was contended for the applicant that the present award provision arguably requires the employer to pay uniform, shoes, stocking and laundry allowances irrespective of whether the employee is required to wear a uniform.

111 The respondent's submission opposing this claim may be summarised as follows: · The cost of extending the uniform allowance to nurses not required to wear a uniform would be about $1.19 million to $1.25 million and the cost of extending the laundry allowance would be about $0.45 million to $0.48 million. · The fundamental difficulty with the applicant's claim is that it ignores the basis for the allowances; namely that they are paid to compensate nurses for the requirement to wear a uniform. · Employees generally who are not required to wear a uniform are usually still required to wear appropriate clothing for their work. For that purpose employees purchase clothing to wear to work. Yet that has never been considered to be a proper basis to require employers to pay an allowance to cover the cost of such clothing · Community nurses have not been required to wear uniforms for many years, if ever. They are still required to dress appropriately. Community nurses have access to protective clothing and do wear it. It is possible to wear the same clothing for work as is worn when not at work. Community nurses are not usually exposed to bodily fluids. · Psychiatric nurses have access to protective clothing. Psychiatric nurses are required to wear appropriate clothing. · With the possible exception of those working in the psycho-geriatric field it is rare for psychiatric nurses to get bodily fluids on their clothing. · While clothing may need to be separately laundered because of contact with bodily fluids it is not a common occurrence. Even where it does occur, the evidence does not allow the conclusion that there are significant additional costs incurred in laundering the clothes over and above the costs that would be otherwise incurred. · There are other employees of the health service who are not required to wear uniforms who currently do not have an entitlement to a clothing allowance. They would be likely to seek a flow on if the entitlement were granted to nurses. · The current award does not require the payment of a uniform allowance to nurses not required to wear a uniform.

112 The Association contended it was "strongly arguable", having regard to the ordinary meaning of the words in cl 19(iii)(a) of the current Award, that it requires the payment of uniform and shoe allowances where the employer does not supply such items, irrespective of whether a specific uniform is required to be worn. The provision is as follows: (iii)(a) In lieu of supplying uniforms and shoes to an employee, an employer shall pay the sum set out in Item 13 of Table 2 of Part B per week, which includes a sum set out in the said Item 13 per week for shoes. Provided, however, that if a uniform includes a cardigan or jacket an additional amount as set out in the said Item 13 per week shall also be paid.

113 As we understand it, the Association's interpretation of cl 19 is to the effect that if the employer does not supply a uniform or, as an alternative to supplying a uniform, the employer shall pay an allowance, regardless of any requirement of the employer to wear a uniform. In other words, the Association contends that: (i) if the employer requires a uniform to be worn it may supply a uniform free of cost or pay an allowance to reimburse the employee for purchasing the uniform out of the employee's own resources, and; (ii) even though the employer does not require a uniform to be worn, the employer is still required to pay a uniform allowance under the terms of cl 19(iii)(a) of the award.

114 Whilst cl 19 suffers from a lack of clarity and directness in its drafting, we do not consider that, read as a whole, the provision is ambiguous. Clause 19(i) requires that "[S]ufficient suitable and serviceable uniforms … shall be supplied free of cost to each employee required to wear a uniform (emphasis added)." Clause 19 (iii)(a) provides that "In lieu of supplying uniforms and shoes …" the employer shall pay the appropriate allowances. We consider the ordinary meaning to be given to these provisions is that where the employer requires an employee to wear a uniform it shall be supplied free of cost to the employee. However, where the employer chooses not to supply a uniform but still requires one to be worn, the employer shall pay the prescribed allowances. We do not consider that the provisions of cl 19 are to be interpreted as meaning that an employer is required to pay an allowance in circumstances where the employer does not require an employee to wear a uniform.

115 Even if it could be said that there is an ambiguity in cl.19, that is, it may also be read to mean that rather than supplying a uniform the employer shall pay an allowance regardless of whether the employer requires the employee to wear a uniform, we consider the ambiguity may be resolved by having regard to the history of the award provision. Firstly, it seems to us that until it was raised in these proceedings the parties have historically regarded the award provision as only requiring an employer to pay the relevant allowance in circumstances where the employer requires a uniform to be worn but does not supply the uniform. The history of the provision, which is set out in the affidavit of Mr Craft, supports this interpretation of the provision. We refer particularly to the judgment of the Industrial Commission in Court Session (Cahill, Watson and Sweeney JJ) in Re Public Hospital Nurses (State) Award (unreported, Matter No.909 of 1984, 29 November 1984). The judgment was concerned with an appeal by the Association from a decision of Glynn J in respect of the provision of shoes and cardigans to nurses. The relevant award provision at the time was in substantially similar terms to the current award provision. It is clear from that judgment that the Commission in Court Session proceeded to deal with the appeal on the premise that where an employer requires an employee to wear a uniform, the employer should either supply the uniform to the employee free of cost or pay the employee a sufficient amount to reimburse the employee for purchasing the uniform out of the employee's own resources. There is no basis for the proposition the Full Bench's countenanced that the allowance was payable in circumstances where a uniform was not required to be worn. Nothing has changed since 1984 that puts a different complexion on the provision. In our opinion, the allowance in cl 19(iii)(a) is only payable where the employer requires a uniform to be worn but does not provide a uniform, including shoes, free of cost.

116 The Association also contended "the introduction of the no uniform policy has the effect of reducing the remuneration of many nurses in mental health and potentially in other areas, as does the expansion of community nursing". The uniform allowance is for the purpose of enabling a nurse to purchase uniforms because the employer does not supply them. In other words, the allowance is payable to compensate a nurse for the cost of providing uniforms and cannot be regarded as part of remuneration for work done in the same way as wages. It cannot, therefore, be said that the remuneration of nurses has been reduced because an expense for which they were compensated by way of an allowance is longer incurred and the allowance is no longer payable.

117 We can see no justification for the payment of a uniform allowance where the nurse is not required to wear a uniform. Very many employees in the general workforce are not required to wear a uniform at work although they are required to be suitably attired. These employees do not receive a uniform allowance and we see no reason to treat nurses differently. The claim for a uniform allowance to be payable to employees who are not required by their employer to wear a uniform is refused. No special case as to it has been established.

118 Counsel for the Association submitted that in relation to the shoe allowance prescribed by the Award, it was not being paid to employees who were not required to wear a uniform notwithstanding the fact that there had been no change with respect to the requirements regarding the wearing of footwear. In other words, unlike the situation in relation to uniforms, there was still a requirement to wear footwear, and safe and appropriate footwear at that. Nevertheless, in Ms Howell's submission "the employer has opportunistically used the change to uniform policy to cease payment of the shoe allowance under the award."

119 Reduced to their essentials, the competing propositions in relation to the shoe allowance are, on the one hand, nothing has changed in relation to the requirement to wear safe and appropriate footwear and, therefore, the allowance should continue to be payable and, on the other hand, the shoe allowance is part and parcel of the uniform allowance and should only be payable when the uniform is required to be worn.

120 We consider that the claim for the shoe allowance should not be granted for the following reasons: 1) In respect of nurses who are not required to wear a uniform they are, like most of the general workforce, left with the option of purchasing their own clothing that is suitable for the type of work they are performing. This is also the case with shoes. Whilst it may be a requirement of the employer that the footwear must be safe and appropriate, we do not consider such a requirement justifies a special allowance. Obviously, stiletto heels, thongs and sandals would not normally be considered as appropriate footwear for nurses but apart from these examples there was no evidence that the footwear required to be worn by community and mental health nurses was so out of the ordinary that it warranted the payment of a special allowance. 2) Shoes worn by nurses are subject to wear and tear; they may become soiled and wet. However, the evidence was not such as to convince us that shoes worn by community and mental health nurses were subject to excessive or unusual wear and tear. There is also access to protective equipment in the form of shoe covers. 3) The current Award (cl 19(i)) indicates that shoes are to be regarded as part and parcel of the uniform and that the shoes shall be of a recognised and acceptable standard for the performance of nursing duties. The decision to adopt a "no uniform policy" in respect of community and mental health nurses carried with it by implication that shoes would no longer be provided either directly or by way of an allowance.

121 The Association also sought the payment of a laundry allowance to employees who provide direct clinical care and who are not required by the employer to wear a uniform. It was submitted that community nurses and nurses in the mental health field are routinely exposed to the possibility of soiling their clothing and although they may be provided with, or have access to, protective clothing this does not prevent soiling due to unforeseen exposure to bodily fluids. In any event, it was submitted, nurses who are provided with a uniform that is not laundered by the employer are entitled to the laundry allowance despite the fact that they too are provided with protective clothing.

122 For its part, the respondent contended that the incidence of community and mental health nurses being exposed to soiling of their clothing was low; that it is possible to wear the same clothing for work as is worn when not at work; that whilst clothing may need to be separately laundered because of contact with bodily fluids it is not a common occurrence, and; even where it does occur, the evidence does not allow the conclusion that there are significant additional costs incurred in laundering the clothes over and above the costs that would be otherwise incurred.

123 When it comes to laundering work clothes, a nurse who is not required to wear a uniform is in exactly the same position as a nurse who is so required, yet the latter receives a laundry allowance (if the employer does not launder the uniform) and the former does not. In our opinion, this gives rise to an inequity and leads to the finding of a special case.

124 Given the evidence that clothing may be subject to soiling through exposure to bodily fluids notwithstanding the provision of protective equipment, and having regard to the inequity we have identified, we have decided that the laundry allowance prescribed by the Award shall be paid to employees who provide direct clinical care and who are not required by their employer to wear a uniform.

125 This claim seeks to increase the period of time off duty that must be allowed to an employee who works overtime between rostered shifts from 8 hours to 10 hours.

126 The Award currently provides for a minimum break of 10 hours between rostered shifts. Ms Howell submitted that it was "…unacceptable and illogical given that nurses are ordinarily guaranteed a 10 hour break between rostered shifts, but in circumstances where there would obviously be an elevated need for a lengthy break because of extra hours worked the nurse may only receive a break of 8 hours." 127 The Association referred to evidence that an 8-hour break did not give nurses enough time to sleep so that they return to work not fully rested and consequently the performance of ordinary duties was more difficult and stressful than normal and caused an elevated risk of error.

128 It was submitted that the general industrial standard was a 10-hour break prior to commencing a new shift after working overtime.

129 The respondent's position was that: · There was no material before the Full Bench as to what the general standard was in relation to 10-hour breaks after working overtime. · The increased period of time off duty would reduce flexibility and increase operating costs. · Changes would be required to rosters to reduce the risk of having to call back staff with less than a 10-hour break, which would not necessarily be welcomed by the staff affected. · The 8-hour break has existed in the Award up until now and no evidence was led to the effect that it has caused any occupational health and safety incidents. · The evidence led by the applicant was not sufficient to make out a special case that there needs to be a variation to the Award that would have a significant effect on flexibility and impose a significant additional cost on the health system. 130 We agree with the submissions of the Association that it is illogical and anomalous for an award to prescribe, on the one hand, a 10-hour break between rostered shifts and, on the other hand, only an 8-hour break where overtime is worked between the rostered shifts. We observe that the Nurses (Victorian Health Services) Award 2000 (Print AW790805), an award of the Australian Industrial Relations Commission, makes provision for a 10-hour break regardless of whether overtime is undertaken.

131 We do not consider on the evidence that a provision to the effect claimed by the Association would have a significant impact on flexibility and costs. The parties are to confer on the terms of an appropriate provision having regard to the wording of the claim. Because of changes to administrative and rostering arrangements that may be necessary, the provision shall not commence until three months after the commencement of the interim award. Consideration may also be given, if it is appropriate, to substituting 8 hours for 10 hours when the overtime worked is worked:

1. For the purpose of changing shift rosters; 2) Where an employee does not report for duty and another employee is required to fill in for the absent employee; 3) Where the shift is worked by arrangement between the employees themselves.

Clause 25, Part 1, (iii) - Minimum payment for permanent part time employees

132 This claim seeks an increase in the minimum payment for each start for a permanent part time employee from two hours to four hours.

133 No evidence was led in relation to this claim and no submissions were made regarding it. The claim is refused. Clause 25, Part II, (ii) and (vi) - Minimum payment for casual employees and minimum notice to cancel the engagement

134 This claim seeks an increase from two to four hours' pay for a casual whose engagement has been cancelled with less than the required period of notice. The claim also seeks to increase the required period of notice from two to four hours.

135 It was submitted for the applicant that it could properly be inferred that improvements to the terms and conditions on which casual employees are engaged would improve the problems of getting relief staff. However, there was no evidence that the difficulty of obtaining relief staff was due to the award conditions. Rather, the inference to be drawn from the evidence was that the general nursing shortage in the State caused the shortage of casual nurses. We do not accept, therefore, that by increasing the minimum payment for casuals it would do anything to overcome what the Association contended was a problem caused by a shortage of nurses.

136 Ms Howell referred to the decision of a Full Bench of the Australian Industrial Relations Commission (Munro J, Polites SDP and Lawson C) in Re Metal, Engineering and Associated Industries Award, 1998 - Part 1 (2000) 110 IR 247 where the Full Bench determined a minimum period of engagement for casuals of four hours. The Full Bench said, however at 297: [132] In determining an appropriate minimum engagement for this award we wish to make it plain we are not setting any general standard beyond the award. As noted above we have been influenced in determining the four hour minimum by the existing position in manufacturing industry awards. There should be no expectation that the four hour period is an appropriate minimum in other sectors of employment where the factual circumstances are different and the needs and aspirations of both employees and employers are different. 137 In support of its claim the applicant in these proceedings relied largely on the experience of one casual nurse at Coffs Harbour. But we note that the reason why Mr Davidson was employed as a casual was because he chose that mode of employment, one of the reasons being that he wanted to avoid being rostered to work on night shift. We have also had regard to the evidence of Mr Collins regarding the additional costs associated with the claim and the removal of valuable flexibility provided by the current Award provision in being able to quickly fill gaps in rosters due to short notice absences of permanent staff. We do not consider that the applicant has made out a special case. The claim is refused.

Clause 34(vii) - Free Accommodation 138 This claim is for the HAC to be required to provide accommodation for all nurses who are rostered on call but who cannot respond to a recall within the time required by the relevant hospital.

139 The Association referred to the fact that some institutions have accommodation available but others do not. Ms Howell submitted this amounted to discrimination. Counsel further submitted recall times ranged from 15 minutes upward and that in some cases nurses could not attend for work in the recall time so had to make alternative accommodation arrangements thereby incurring significant cost and/or inconvenience. Reference was made to the evidence of Ms Dare.

140 The respondent's evidence was that accommodation at some hospitals is available as a result of the time when nurses were trained at hospitals and students needed accommodation. Following the transfer of nurse education to universities, staff accommodation is no longer included in major capital works budgets. In these circumstances we do not think that any discrimination is being practised.

141 The evidence was also that an award provision requiring accommodation to be provided would involve an extraordinary cost.

142 The applicant has not made out a special case in relation to this claim and consequently the claim is refused. However, we reiterate what we said earlier in this decision about what we regard as an obligation on the Association and individual hospitals to address any individual problems of nurses who find difficulty or gross inconvenience in attending for work within the prescribed recall time.

Clause 34(ix) - Free parking 143 This claim is for a new provision seeking free car parking facilities for employees. The applicant had no submission to make on this claim. The claim is refused.

Summary of outcomes 144 It is convenient to summarise the outcome in respect of each of the Association's claims. The clause references are to the amended claim filed in the Commission on 9 July 2001:

1. Clause 4(xvii); Clause 10(ii)(c). The variation sought in respect of cl 4(xvii), which seeks to restrict an employer from requiring an employee to respond to a recall in less than 30 minutes, and the consequential amendment to cl 10(ii)(c), are refused. 2) Clause 10(i)(a); Clause 10(vi). The in charge of hospital allowance prescribed by cl 10(i)(a) and the combined in charge of hospital/in charge of shift allowance prescribed by cl 10(vi) shall be increased. In order to avoid double counting, and consistent with the nature of the award made, the amount of increase in these two allowances shall be fixed on an interim basis pending the proceedings relating to the Nurses' Association's wages claim (Matter No IRC6802 of 2001). The rates fixed will be $18.25 and $27.40 respectively. 3) Clause 10(ii)(a), (b) and (c). An employee required by his or her employer to be on call shall be paid at the rate of $2.00 per hour with a minimum payment of $16.00 provided that when the employee is required to be on call on a rostered day off the employee shall be paid at the rate of $4.00 per hour with a minimum payment of $32.00. 4) Clause 10(ii)(d). The claim for an increase in the on call allowance during a meal break as prescribed by cl 10(ii)(d) is refused. 5) Clause 10(ii)(e). The claim to amend cl 10(ii)(e) of the Award so that health service managers at Grade 5(c) and 6(a) (ie, HSMs in small rural hospitals) become entitled to on call allowances is granted subject to agreement on the terms of an award provision. 6) Clause 10(v). The allowance prescribed by cl 10(v) - nurse in charge of shift, shall be increased to $18.25 on a similar interim basis to those in clauses 10(i)(a) and 10(vi). In order to avoid double counting the amount of increase in the allowance shall be a matter for final determination in the proceedings relating to the Nurses' Association's wages claim. 7) Clause 10(v). The claim for the in charge of shift allowance prescribed by cl 10(v) to be payable on a shift that the nursing unit manager is rostered for duty is granted on the same interim basis. The final amount of the allowance shall be a matter for determination in the proceedings relating to the Nurses' Association's wages claim. 8) Clause 10(vii). The on call allowance for telephone counselling prescribed by cl 10(vii) shall be $2.00 per hour provided that when the employee is required to be on call on a rostered day off the rate shall be $4.00 per hour. The parties are directed to confer with a view to achieving agreement on the appropriate rate to apply under cl 10(vii) where a nurse is actually engaged in telephone counselling. 9) Clause 10(viii). The claim to vary the Award to provide for a new allowance for nurses who spend more than 50 per cent of their period on duty working away from a designated health facility delivering nursing care to clients in residential and other non-health facility settings is deferred for comprehensive examination in the context of the overall work of the employees under the award in the forthcoming wages claim proceedings. 10) Clause 10(ix). The claim for a new allowance to be paid when handling cytotoxic agents and/or associated waste material is refused. 11) Clause 18A(i). The claim in relation to the provision of a suitable vehicle for work, including a four-wheel drive vehicle, is refused. 12) Clause 18A(ii). The claim for a new award provision prohibiting the employer from imposing charges on an employee who takes an official motor vehicle home at the conclusion of the shift, is refused. 13) Clause 18A(iii). The claim that "Every Director of Nursing and Director of Nursing/Executive Officer shall be permitted private use of an official motor vehicle, with charges at the level agreed between the Department and the Association from time to time", is refused. 14) Clause 19(vi). The claim for a new provision extending the payment of the uniform and shoe allowances to those nurses who provide direct clinical care but who are not required to wear a uniform, is refused. 15) Clause 19(vi). The claim for a new provision extending the payment of the laundry allowance to those nurses who provide direct clinical care but who are not required to wear a uniform is granted. 16) Clause 21(ix). The claim to increase the period of time off duty that must be allowed to an employee who works overtime between rostered shifts from 8 hours to 10 hours is granted subject to agreement as to the terms of the variation. This change shall operate three months after the commencement of the interim award. 17) Clause 25, Part I, (iii). The claim for an increase in the minimum payment for each start for a permanent part time employee from two hours to four hours is refused. 18) Clause 25, Part II, (ii), (vi). The claim for an increase from two to four hours' pay for a casual whose engagement has been cancelled with less than the required period of notice is refused. The claim to increase the required period of notice from two to four hours is also refused. 19) Clause 31(vii). The claim that the HAC is to provide accommodation for all nurses who are rostered on call but who cannot respond to a recall within the time required by the relevant hospital is refused. 20) Clause 31(ix). The claim for a new provision seeking free car parking facilities for employees is refused.

145 Section 16(4) of the Industrial Relations Act provides that an award may in special circumstances be made on an interim basis. Any such award is to be expressed to be an interim award and applies only for the period (not exceeding 12 months) specified in it. We consider that the necessary "special circumstances" exist in this case. Given the current proceedings relating to the Association's wages claim and the fact that we have decided to reserve a number of matters until we deal with the wages claim, we consider that it is appropriate to make an interim award to give effect to this Decision. The award will incorporate the following features: 1) The interim award shall be known as the "Public Hospital Nurses' (State) Interim Award" and shall generally take effect from the beginning of the first pay period to commence on or after the date of this Decision and shall apply thereafter for a period of 12 months. 2) The interim award shall be in the terms of the amended document filed in the Commission on 9 July 2001 as further amended by the terms of this Decision. The interim award will also incorporate the changes agreed to by the parties in respect of overtime payments for health service managers in small hospitals and increases awarded as to certain uniform and laundry allowances. 3) The final amounts of increase to apply to the allowances prescribed by cl 10(i)(a), 10(v), 10(vi) of the interim award and the claim as to an allowance in cl 10(viii) are matters reserved for determination in the proceedings in Matter No. IRC6802 of 2001.

146 The parties are directed to file and serve within 21 days of today a document setting out the terms of the interim award to give effect to this Decision. In the event that there is any remaining disagreement about the terms of the interim award the areas of disagreement are to be identified together with the respective positions of the parties.

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