"A monitoring committee comprising SDP Watson (or such other member of the Commission nominated by SDP Watson in consultation with the Panel Head), representatives of ANF, DHS and the VHIA will be established to monitor implementation of the Agreement and to resolve any disputes arising from such implementation."

[2] The Heads of Agreement also contained a provision that the parties would give effect to matters contained in the Heads of Agreement and the "non ratio" recommendations contained in Print S9958 by a Multi Employer Certified Agreement (MECA).

[3] The Commission is aware that the parties to the Heads of Agreement have had extensive discussions concerning the drafting of the MECA and with the exception of a small number of matters, have reached agreement on the language that is to be incorporated into the agreement.

[4] However, the Commission was advised by the parties that the following matters required resolution:

• Change of Shift penalty for Division 2 Nurses
• Pro rata public holiday payments for part time staff
• Application of recommendations in Print S9958 concerning Clinical Nurse Consultants

[5] The Commission has been greatly assisted by the process of conferences and the constructive input of all parties arising from a common desire to resolve the above matters. However, it is apparent to the Commission that despite all the parties best endeavours to reach an agreed outcome, the parties are unable to do so.

[6] As the parties have collectively indicated they would accept the decision of the Commission in respect of the above matters, the Commission is prepared to make the following recommendations based on submissions and conferences, to which all parties contributed to positively.

[7] The structure of the decision below is to briefly set out the competing positions of the parties, where necessary set out a recommendation and provide brief reasons:

[8] Clause 61.1.1(b) of the Nurses (Victorian Health Services) Award 2000 provides:

"Provided further that in the case of an employee who changes from working on one shift to working on another shift the time of commencement of which differs by four hours or more from that of the first she/he shall be paid an amount equal to 4% of the allowance rate on the occasion of each such change in addition to any amount payable under the preceding provisions of the clause.

61.1.1(b)(i) Notwithstanding the provisions of 61.1.1(b) the change of shift allowance is not payable where an employer agrees to a request in writing made on behalf of one or more of his/her employees for changes in shifts."

[9] The VHIA argued that this provision should not be applicable where employees self roster. Where employees are able to select shifts from those available on a roster a penalty should not be imposed on the employer as a result of this choice being exercised. Nor should a penalty be imposed if employees swap shifts on an ad hoc basis or agree to work additional shifts.

[10] The ANF argued that self rostering as described by employers hid the fact that people were not able to exercise any choice at all, but rather accepted the shifts that were available and that agreements to work additional shifts or change shifts were often the result of either direct or indirect pressure from the employer.

[11] VHIA strongly disputed the ANF submissions in this regard pointing to situations where self rostering had worked effectively for some time.

[12] The parties also brought to the Commission's attention the existence of a number of agreements that have existed concerning the change of shift penalty.

[13] These arrangements provide for self rostering, but appear to do so on the basis of a set number of change of shift payments per fortnight, irrespective of the roster pattern worked by an employee. In a number of instances the incidence of the penalty was up to four per fortnight.

[14] The Commission having heard the parties on this matter is satisfied that employers should not be liable for the payment of a penalty where a genuine choice is exercised by an employee. However, the Commission must also guard against situations where undue pressure or influence is exerted on individual employees or genuine choice is not available.

[15] Based on the arrangements that appear to work in a number of facilities the Commission would recommend that where a ward or unit has established a system of self rostering and employees choose shifts from a genuine choice of shifts those employees should receive a fixed payment of two change of shift payments per fortnight. Where historical agreements between employers and employees resulted in payment of more than 2 change of shift payments per fortnight, then individuals subject to these arrangements should continue to receive the higher incidence of the allowance for the life of the MECA.

[16] This provision does not limit an employer's ability to fix a roster. In situations where an employee's roster is set in advance by the employer, the change of shift allowance applies where an employee changes from working on one shift to working on another shift, the time of commencement of which differs by four hours or more from that of the first. However, the change of shift allowance does not apply where an employee chooses to work additional shifts from the supplementary roster provided in Print T3751 or where employees elect to swap between themselves on an ad hoc basis. The Commission is also satisfied that payment of the change of shift allowance is not appropriate where there are absences of four or more weeks of approved leave between relevant shifts.

Pro Rata Public Holiday Payments for Part Time Staff

[17] Paragraph 8 of the Heads of Agreement contained the following provision:

"The Recommendation in paragraph 284(b) of Print S9958 will be amended so as to ensure that part time employees are no worse off than the position prior to paragraph 284(b) of Print S9958 coming into effect and to provide for pro rata entitlements to public holidays for part time employees. An amended part time employee public holiday provision (the public holidays amendment) will be agreed an implemented before the next scheduled public holiday (Melbourne Cup Day). The parties agree that the provision will not result in a net additional cost for the provision of public holiday benefits to part time employees in excess of $3 million above the cost of providing public holiday benefits to part time employees immediately before 31 August 2001. The public holidays amendment will be included in the MECA."

[18] VHIA proposed an amendment to the public holiday provision that ceased pro rata payments to employees who never worked on a particular day that a public holiday fell and pro rata payment of the Easter Saturday payment for part time employees who never work on a Saturday.

[19] The ANF opposed these changes on the basis that it would have the effect of undermining the whole purpose and intent of the pro rata public holiday arrangements. The ANF also sought a provision to clarify the situation where an employee had not worked the prescribed period of 6 months for determination of what pro rata entitlements a nurse had in respect of a public holiday.

[20] Evidence was also provided by VHIA outlining the public holiday arrangements that existed prior to the decision in Print S9958 which support the contentions of VHIA that pro rata payments should not be made where employees never work on a day on which a public holiday falls.

[21] The ANF argued that many of the arrangements that existed prior to the Recommendations in Print S9958 were in breach of the award.

[22] The key issues for the Commission to consider are the terms of the Heads of Agreement, specifically that the provision will not result in a net additional cost for the provision of public holiday benefits to part time employees in excess of $3 million above the cost of providing public holiday benefits to part time employees immediately before 31 August 2001.

[23] However, the information available to the Commission does not enable the Commission to determine whether the arrangements proposed by VHIA conform to the above cost parameter. The Commission understands there have been significant difficulties associated with costing this matter in large part caused by the myriad of arrangements that appear to have existed prior to the recommendations in Print S9958 and the significant degree of variance in how public holiday entitlements were recorded in hospital payrolls.

[24] Consequently, the Commission is of the view that the recommendations at paragraph 284(b) of Print S9958 concerning pro rata public holiday payments should continue. However, if individual health services experience financial difficulties as a result of this then my comments at paragraphs 80 and 81 of the decision in PR912522 shall apply.

[25] With regard to Easter Saturday the Commission is prepared to accept the arguments advanced by VHIA on the basis that the award provisions for Easter Saturday for part time employees differ from those of other public holidays. On that basis no pro rata payments are applicable for part time Monday to Friday staff who never work on Saturday.

[26] Where employees have not worked a 6 month period for the purposes of determining average hours, employers should have regard to the average hours worked for the period preceding the public holiday, e.g. if an employee commenced employment on 1 January 2002, to determine average hours for ANZAC day, the employer should calculate the average hours worked for the period 1 January 2002 to 25 April 2002 (excluding any unpaid leave).

Application of Recommendations in Print S9958 Concerning Clinical Nurse Consultants

[27] Recommendations 208 and 209 contained in Print S9958 provided for the following:

"[208] As of 1 October 2000, for the purposes of Clause 3(l) of the Nurses (Victorian Health Services) Award 1992 the term `major hospital' will no longer limit a Clinical Nurse Consultant classification and grading. Consequently, a CNC who is either now or in the future employed in a facility not defined by the award as a major hospital is eligible for classification as though employed by a major hospital as defined in the award;

[209] Clause 3(l) also refers to the term `across the regions'. For the purposes of classification applicable to the employee, as from 1 October 2000, the term `across the regions' shall include where an employee delivers a clinical consultancy outside the nurse's worksite/campus/centre."

[28] The ANF contends that the effect of this clause is that a nurse appointed as a Clinical Nurse Consultant (CNC) by a health service, who works across more than one worksite/campus/centre by virtue of the above provisions is entitled to a classification of Grade 5, Clinical Consultant C.

[29] VHIA and DHS argued that such an outcome was inconsistent with the notion that the role of a CNC may be the same irrespective of which campus it was performed at and that geographic considerations alone should not result in a reclassification to Grade 5.

[30] Notwithstanding the arguments lead by VHIA and DHS, the Commission is of the view that the Recommendations in paragraphs 208 and 209 are to be applied as they appear in Print S9958, that is if a CNC employed by a health service performs their function outside the nurse's worksite/campus/centre then a classification of Grade 5 ought to apply. However, if the parties can reach agreement on an alternative approach then the parties may wish to consider this. The Commission would be prepared to assist the parties to this effect.

[31] Consistent with long established principles of this Commission the granting of a retrospective claim should only occur in exceptional circumstances.

[32] The ANF argued strongly for retrospectivity, particularly in regard to its claim for Clinical Nurse Consultants. The argument of the ANF, whilst compelling, does not warrant a major deviation from these principles. The Clinical Nurse Consultant Recommendation shall operate on and from today's date except where is can be demonstrated that an employee has submitted a claim to their employer and the employer did not process the claim pending this recommendation. In the latter circumstance the Recommendation shall apply from the date of application for reclassification.

[33] The Change of Shift Recommendation shall operate on and from the first pay period commencing on or after this day.

[34] The Public Holiday recommendation, having been effectively in place since Melbourne Cup Day 2001, shall operate on and from that date.

[35] The Commission is of the view that the parties should meet as soon as practicable to finalise drafting of the MECA taking into account the terms of this decision.

[36] The Commission having reviewed the materials and submissions filed in this matter attaches draft clauses to give effect to the 'Change of Shift' and 'Clinical Nurse Consultant' Recommendations.

The change of shift allowance is payable to Division 2 nurses in the Public Sector as follows:

(a) Where an Employee's roster is fixed in advance by the Employer the change of shift allowance is payable whenever an employee changes from working on one shift to working on another shift the time of commencement of which differs by four hours or more than from that of the first.

(i) Notwithstanding the provisions of sub-clause (a), the change of shift allowance is not payable where an employee chooses and works additional shifts from the supplementary roster (as defined).

(ii) Notwithstanding the provisions of sub-clause (a), the change of shift allowance is not payable where an absence of four or more weeks of continuous approved leave intervenes between the relevant shifts.

(iii) Notwithstanding the provisions of sub-clause (a), the change of shift allowance is not payable where one or more employees swap shifts between themselves on an ad hoc basis, and the swap(s) is approved by the employer in writing.

(b) Where a ward or unit has established a self-rostering system, and an employee chooses his or her own shifts from a genuine choice of shifts, the employee will receive a fixed payment of two (2) change of shift allowances per pay period (fortnight) and paragraph (a) shall not apply.

(c) An employee employed in the Public Sector as 11 June 2002, who receives change of shift allowances per pay period (fortnight) on the basis of an historical agreement between the employer and employee that exceeds the entitlement arising from these provisions, such employee shall be maintained at that entitlement for the duration of the Agreement.

(d) Where an Employer and the majority of employees in a ward or unit genuinely desire an alternative system to that above, the Employer is to contact the relevant Union Parties and any agreement reached will be determined in accordance with the facilitative provisions of this Agreement.

Clinical Consultant - a Registered Nurse who is appointed as such to provide a clinical resource, clinical advisory/developmental role on a full-time dedicated basis (ie performs only consultancy work on the relevant shift/s) and undertakes related projects and research and development activities to meet specified clinical nursing needs in a clinical discipline.

Clinical Consultant A - a Registered Nurse appointed as such who as a member of a specialist team fulfils the clinical consultant role in their first and second years of experience.

Clinical Consultant B - a Registered Nurse appointed as such who fulfils the clinical consultant role:

(a) As a Clinical Consultant A in their third, fourth and subsequent years of service.

Clinical Consultant C - a Registered Nurse appointed as such who fulfils the clinical consultant role, and

(c) Is a clinical consultant who takes referrals from, or delivers the consultancy outside more than one campus/worksite/centre of the Health Service

Clinical Consultant D - a Registered Nurse appointed as such who fulfils the clinical consultant role and who principally consults on a multi Health Service or Statewide basis.

Clinical Consultant E - a Registered Nurse appointed as such who fulfils the clinical consultant role on an interstate or national basis.

Clinical Consultant B Grade 4B (3rd yr - Year 1, 4th yr Year 2)

Clinical Consultant C Grade 5 (51-200 beds, 2nd yr 201 to 400 beds)

Savings Clause - Any employee classified at a higher grade or sub-grade than that applying from this provision will remain at that higher grade or sub-grade for the duration of the Agreement.

Printed by authority of the Commonwealth Government Printer