[2019] FWCFB 3827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern award—Aboriginal Community Controlled Health Services Award 2010
(AM2018/12)

Indigenous organisations and services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT MASSON COMMISSIONER BISSETT	MELBOURNE, 22 JULY 2020

4 yearly review of modern awards – Aboriginal Community Controlled Health Services Award 2010 – substantive claims.

Introduction and Background

[1] This decision deals with substantive claims made by the National Aboriginal and Torres Strait Islander Health Worker Association (NATSIHWA) and the Health Services Union of Australia (HSU) for variations to the Aboriginal Community Controlled Health Services Award 2010 (Award) that are being dealt with as part of the 4 yearly review of modern awards (the Review).

[2] The Review has been conducted by the Fair Work Commission (the Commission) in three stages —an initial stage, a common issues stage and an award stage. The award stage and the common issues stage have run in parallel and the award stage has included dealing with claims to make substantive changes to award provisions. For the purposes of scheduling, the award stage divided the 122 modern awards into four groups for determination. The Award is being reviewed in Group 4 of the award stage.

[3] As part of the Review, a core Full Bench was established to hear and determine technical and drafting matters arising from each group during the award stage. The core Full Bench has heard and determined a number of technical and drafting matters in respect of the Award, 1 culminating in the finalisation of an exposure draft and determination of the consequent variations.2 In determining the variations the title of the Award has been changed to the Aboriginal Community Controlled Health Services Award 2020 (the 2020 Award). The core Full Bench noted that there were a number of substantive variations sought to be made to the Award which required determination and it was proposed that a separate Full Bench be constituted to hear and determine those matters.3

Nature of the application

[4] The NATSIHWA and the HSU seek substantive variations to the Award. On 1 October 2018, Justice Ross issued a Statement 4 constituting this Full Bench to consider the variations sought. To facilitate the determination of these matters, directions for interested parties to file materials were issued. Pursuant to the directions, submissions and witness statements were filed by NATSIHWA, HSU, United Voice (now United Workers’ Union), Australian Federation of Employers and Industries (AFEI) and Australian Business Industrial and the New South Wales Business Chamber (ABI). The matter was listed for hearing before us on 25 and 26 July 2019.

[5] For the reasons recorded in the transcript, 5 following the hearing some further directions were issued for the filing of further material. Submissions were received from NATSIHWA, the HSU and the Australian Medical Association (AMA).

Background to the making of the Award

[6] On 28 March 2008, the Minister for Employment and Workplace Relations (the Minister) made an award modernisation request under section 576C of Part 10A of the Workplace Relations Act 1996. The award modernisation process was carried out by the Commission pursuant to Part 10A of the Workplace Relations Act 1996 (WR Act), Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) and the request by the Minister, (as amended and referred to as the consolidated request). 6

[7] In a statement issued on 25 September 2009 7, the Commission noted that it had received a range of submissions from indigenous organisations seeking to have awards made that were to apply only to those indigenous organisations and their employees.

[8] Having considered the submissions, the Commission determined that the operation of aboriginal community controlled health organisations should be regulated by a separate modern award. The Full Bench said:

“We are satisfied that the nature of health services that are delivered in a culturally appropriate way is sufficiently different to justify a separate award. The difference is not only about the way the services are established and controlled but is critically seen in the way that employees of the services operate. We accept that the aboriginal health worker within aboriginal community controlled health services is critical. No equivalent health care worker operates in what we might describe as mainstream services.” 8

[9] The Award was made on 4 December 2009. 9

Background to NATSIHWA

[10] NATSIHWA is the national health professional organisation for Aboriginal and Torres Strait Islander (A&TSI) health workers and practitioners (A&TSIHWs and A&TSIHPs). These health workers and practitioners work in the Aboriginal and Torres Strait Islander communities. 10 NATSIHWA contends that prior to its establishment on 7 August 2009,11 neither A&TSIHWs nor A&TSIHPs had an opportunity to provide input as to the provisions of the Award which affected them.12 NATSIHWA liaises between Aboriginal community controlled and non-Indigenous community controlled services. In particular, NATSIHWA provides culturally appropriate13 healthcare programs and resources to support A&TSIHWs and A&TSIHPs whether they are employed in an Aboriginal Community Controlled Health Organisation, in a mainstream health service or in private practice.14 To assist with ‘closing the gap’, A&TSIHWs and A&TSIHPs adopt a holistic approach to health care which is aligned with traditional Aboriginal and Torres Strait Islander culture and philosophy.15

Background to closing the gap

[11] NATSIHWA relies on the Council of Australian Governments’ (COAG) social policy – “Closing the Gap” – to illustrate the disparity between the health and social outcomes of non-Aboriginal and or Torres Strait Islanders and Aboriginal and/or Torres Strait Islanders. 16 Despite national initiatives such as “Closing the Gap”, NATSIHWA contends there remains a health disparity amongst Indigenous Australians and this places additional pressure on Indigenous health professionals. NATSIHWA suggests that this profession is not covered by any modern award.17

Summary of variations sought

NATSIHWA claims

Expanding coverage of the Award

[12] NATSIHWA seeks to vary the coverage of the Award to include Aboriginal and/or Torres Strait Islander health workers and practitioners as an occupation, so as to extend award coverage to A&TSIHWs and A&TSIHPs in private practice. It also seeks a consequential amendment to the title of the Award.

Introducing a 6 “Grade” classification structure to incentivise education, training and development

[13] NATSIHWA contends there is a lack of opportunity for career progression in the existing 4 Grade classification structure in the Award. The additional two grades proposed are created in part by separation of the current grade 1 into two grades – grade 1 and grade 2. It says that such an amendment will assist grade 1 employees to obtain a Certificate II in A&TSI Primary Health Care (grade 1); and recognise those employees who have already obtained the Certificate II. Currently, the Award does not recognise the Certificate II.

[14] NATSIHWA also seeks to include several new definitions which are proposed for the classification structure it seeks.

Work value case

[15] The 6 Grade structure would also include a new Grade 6 for Senior Health Practitioners and Coordinator Care for which NATSIHWA seeks to make a work value case in support of.

Introducing clauses for “progression”, “recognition of previous service” and “evidence of qualifications”

[16] NATSIHWA proposes new “progression”, “previous service” and “evidence of qualifications” provisions. Taken together, NATSIHWA contends that the proposed provisions clarify the existing operation of the Award with respect to progression within a grade and provide a balanced and fair mechanism for classification/minimum wage determination on commencement for employees and employers.

Introducing allowances

[17] NATSIHWA seeks to insert several new allowances – a telephone allowance, a nauseous work allowance, a blood check allowance, a damaged clothing allowance, a heat allowance, a sole practitioner allowance, an occasional interpreting allowance and a medication administration allowance.

Expanding the ceremonial leave clause

[18] NATSIHWA also seeks to expand the ceremonial leave clause to allow unpaid leave for bereavement related ceremonies and obligations.

Summary of positions of other interested parties

National Aboriginal Community Controlled Health Organisation

[19] The National Aboriginal Community Controlled Health Organisation(NACCHO) is the national peak body representing 143 Aboriginal Community Health Services on Aboriginal health and well-being issues 18. NACCHO supports the expansion of Award coverage to A&TSIHWs and A&TSIHPs employed in private practice settings19. NACCHO also supports the insertion into the Award of the Level 6 management grade classification proposed by NATSIHWA.20 NACCHO did not appear in the proceedings.

Australian Federation of Employers and Industries

[20] AFEI opposes some of the allowance claims but notes that a number of the allowance claims are agreed. 21 Otherwise it opposes or does not support aspects of the classification structure and the expanded coverage proposals.22 AFEI wrote to the Commission on 19 July 2019 advising it would not attend the oral hearings.

HSU

[21] The HSU supports the claims of NATSIHWA. In addition, it seeks to vary the Award to introduce provisions for tea-breaks and a removal expenses allowance, provisions for casual loading to be paid in addition to public holiday rates and amending the on-call and recall allowance provision to allow a 10 hour break between work recalls, instead of the current six hour break entitlement. 23

Australian Business Industrial & NSW Business Chamber

[22] ABI filed written submissions in the proceedings. On 24 July 2019 ABI wrote to the Commission stating it relied on its written submissions.

Australian Medical Association

[23] The AMA agrees that the Award should provide fair conditions for the essential role that A&TSI Health Workers and Health Practitioners have in community-controlled health services and supports proposed variations that improve their working conditions. The AMA notes that private medical practitioners are covered by the Health Professionals and Support Services Award 2010 (HPSS Award) and submits that the coverage issue which is currently the subject of proceedings in AM2016/31 (substantive issues in the HPSS Award) should be resolved before the coverage claim before us. The AMA submits that NATSIHWA should intervene or make an application to vary in those proceedings.

Legislative context

[24] The legislative context for the Review was canvassed in detail in the 4 yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision (the Preliminary Jurisdictional Issues Decision). 24

[25] Subsection 156(2) of the Fair Work Act 2009 (Act) provides that the Commission must review all modern awards and may, amongst other things, make one or more determinations varying modern awards. The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues Decision. In that decision, the Full Bench said that during the Review, the Commission will proceed on the basis that prima facie, the modern award being reviewed achieved the modern award objective at the time it was made. 25 Variations to modern awards should be founded on merit based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances.26 Several provisions in the Act relevant to the Review constrain the breadth of the discretion in s.156(2). The modern awards objective (in s.134) applies to the performance or exercise of the Commission’s ‘modern awards powers’, including under Part 2-3. The modern awards objective therefore applies to the Review. The modern awards objective is set out in s.134(1):

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.”

[26] Section 138 of the Act is also relevant to the Review:

“A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[27] Terms that are included in modern awards must be ‘necessary to achieve the modern awards objective’. That which is ‘necessary’ in a particular case involves a value judgment taking into account the matters in s.134 of the Act, to the extent that these are relevant, having regard to the submissions and evidence directed to those considerations. Before varying a modern award in the Review, the Commission must be satisfied that the variation is necessary to achieve the modern awards objective.

[28] Section 136 deals with the content of modern awards:

“136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).”

[29] No particular primacy is attached to any of the above considerations and not all will necessarily be relevant in the context of a particular proposal to vary a modern award. 27

[30] Section 138 of the Act provides that terms included in modern awards must be “necessary to achieve the modern awards objective”. That which is ‘necessary’ will involve a value judgment based on the assessment of the considerations stated in s.134(1)(a) to (h), having regard to the submissions and evidence. 28

[31] The Commission’s power to vary minimum wages in modern awards is constrained by s.135 of the Act, which provides the following:

“135 Special provisions relating to modern award minimum wages

(1) Modern award minimum wages cannot be varied under this Part except as follows:

(a) modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2));

(b) modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by the Australian Human Rights Commission).

Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 2-6. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

(2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order.”

[32] Subsection 156(3) of the Act provides that the Commission may only make a determination varying modern award minimum wages if it is satisfied the variation is justified by “work value reasons”, which carries the meaning ascribed by s.156(4) as follows:

“Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

Background and context to claims

[33] Before turning to consider the substantive issues, it is necessary to traverse the material advanced by NATSIHWA that underpins the claims. That material highlights, inter alia, the disparity in health outcomes between A&TSI and non-A&TSI Australians; the need for and importance of delivering culturally safe health care and treatment to improve health outcomes for A&TSI people; the critical role that A&TSIHWs and A&TSIHPs can play in improving health outcomes for A&TSI people; and the need to increase the number of A&TSIHWs and A&TSIHPs as well as enhancing skills development and career opportunities for A&TSIHWs and A&TSIHPs.

Need for workers

[34] A reason for the substantive changes sought by NATSIHWA is its concern for improving the health outcomes for A&TSI people. In its written submissions, NATSIHWA contends there is a glaring disparity, in Australia, between the health outcomes of non-A&TSI people and A&TSI people. 29 It contends the health gap between non A&TSIs and A&TSIs has been recognised in COAG’s overarching social policy “Closing the Gap” which is designed to address the health and social outcomes including the decade gap in the life expectancy between non-A&TSIs and A&TSIs and reducing child mortality for children under five years of age.30

[35] NATSIHWA submits that its focus in improving health outcomes for the A&TSI community is to promote the prevention and control of diseases within the community; improve health outcomes in the pursuit of the objectives to ‘Close the Gap’ relating to life expectancy; address the disadvantage on the health of A&TSI people; and assist in the delivery of holistic health care within the A&TSI communities. 31 In order to achieve the health outcomes for A&TSI people, NATSIHWA says it is critical to support and increase the recognition of the roles in which A&TSIHWs and A&TSIHPs play, particularly in providing professional and culturally respectful health services to the individuals, families and communities of A&TSI people across Australia.32

[36] NATSIHWA submits that A&TSIHWs and A&TSIHPs deliver culturally appropriate health care in the A&TSI community. 33 NATSIHWA relies on the expert report provided by Alyson Wright which details how research evidence and clinical experience demonstrates that A&TSIHWs and A&TSIHPs involvement in the provision of health care leads to improved care and health outcomes of A&TSI people.34

[37] NATSIHWA also relies on Ms Wright’s expert report which contends there is a need for health practitioners and health workers to provide culturally safe clinical and primary health services to A&TSI people; 35 that the health needs of the A&TSI people were not being met by mainstream services; and that the scope of work that A&TSIHWs and A&TSIHPs performed had evolved.36 NATSIHWA submits that the roles of A&TSIHWs and A&TSIHPs are critical to improving health outcomes for A&TSI people and cannot be replaced by mainstream positions.37

[38] NATSIHWA submits that A&TSIHWs and A&TSIHPs provide culturally safe preventative health care and treatment services to A&TSI people, which is significant in providing an equitable experience for A&TSI people in terms of health care. 38 NATSIHWA points to evidence suggesting the inclusion of A&TSIHWs and A&TSIHPs in providing care for A&TSI people facilitates culturally appropriate care, reduces communication gaps, reduces discharges against medical advice, provides cultural education, increases inpatient contact time, improves follow up practices and enhances patient referral lineages.39

[39] NATSIHWA relies on the evidence of Associate Professor Lovett setting out the importance of the health professionals in closing the gap to improving the health outcomes of A&TSI people and achieving health equity. It also submits that A&TSIHWs and A&TSIHPs play the role of a cultural broker and assist A&TSI people through the health care journey and non-Indigenous health care providers to better communicate with A&TSI clients. NATSIHWA also points to Associate Professor Lovett’s opinion based on his work and personal experience as a Aboriginal health worker, that extending the coverage of the Award to cover A&TSIHWs and A&TSIHPs in private practice could enable the cultural brokerage model to be expended into a sector that may provide service to approximately 53% of the A&TSI population. 40

[40] Associate Professor Lovett also opined that discriminatory practices in non-Indigenous primary health care settings contributes to poor health outcomes and a decline in the number of A&TSI people utilising the services because of the treatment endured. According to Associate Professor Lovett, a step in redressing this issue is to have A&TSI people involved and working at numerous levels within the health care system. 41

[41] NATSIHWA relies on the Health Workforce Australia report from 20 January 2011 (January 2011 Report). The study was undertaken to inform development policies which aim is to strengthen and sustain the Aboriginal and Torres Strait Islander Health Worker workforce into the future and to inform the requirements of the national registration of health practitioners. 42 NATSIHWA points to parts of the report detailing cultural accessibility, particularly the following passage:

“Health services need to be both available and culturally accessible and that separate and distinct concepts, certain barriers can render available health services inaccessible to Aboriginal and Torres Strait Islander Peoples.

An individual's fear of racial discrimination might be overcome through a health worker's first approach whereby the Aboriginal and Torres Strait Islander health worker if the first point of contact in a health service for an Aboriginal and Torres Strait Islander client this can assist in establishing trusting, respectful, and understanding relationships between the client and other non-Aboriginal or Non-Torres Strait Islander health professionals.

Therefore, it cannot be assumed that health service availability equates to accessibility. Data has shown that some Aboriginal and Torres Strait Islanders in non-remote areas actually have a higher level of unmet need than those living in remote areas. That is despite the fact that health services are more densely concentrated and therefore more available than non-remote areas. One hypothesis explaining this phenomenon is that the increased concentration of health workers in remote areas has a positive effect on health service accessibility for Aboriginal and Torres Strait Islander people. Regardless it is clear that health services must be culturally safe to be accessible for Aboriginal and Torres Strait Islander communities.” 43

[42] NATSIHWA contends cultural context and the role it plays in accessibility to the health care system by A&TSIs is significant. Differences in culture impacts accessibility of and to healthcare services. 44 As the report noted:

“…cultural and linguistic differences may affect the understanding of Western medical practices and the success rates of Western medical treatments and care plans for Aboriginal and Torres Strait Islander peoples. Failure to understand and accommodate the diverse cultural beliefs of Aboriginal and Torres Strait Islander communities is likely to result in inappropriate responses to their health care needs.” 45

[43] NATSIHWA submits that recognising the cultural differences between A&TSI health workers and mainstream Australian health workers, in the health and care of A&TSI people, will lead to improved health outcomes and enhance the accessibility of the health care systems for the A&TSI people.

Aboriginal & Torres Strait Islander Health Worker Project Environmental Scan: Version 7.0 Final Report

[44] NATSIHWA draws upon the January 2011 Report which considers the important role the historical and cultural context play in relation to Aboriginal and Torres Strait Islander people and the Health Worker and contends that the historical and cultural experiences have impacted the mental and physical health of Aboriginal and Torres Strait Islander peoples, and indeed the way in which they interact with health services and institutions. 46

[45] The January 2011 Report considers the broader concept of ‘health’, which has been described by NATSIHWA as incorporating total physical, emotional and mental wellbeing. The January 2011 Report suggests that improving wellbeing necessarily involves a consideration of the physical environment, of dignity, of community, of self-esteem and of justice. 47 The publication further contends that ‘community health’ is therefore not only about Health Workers, but is very much centred around the Aboriginal & Torres Strait Islander people’s experience of daily life.

[46] NATSIHWA draws upon the January 2011 Report to consider the burden of disease amongst Aboriginal and Torres Strait Islander people:

“The top five contributors to the burden of disease of Aboriginal and Torres Strait Islander peoples include cardiovascular disease, mental disorders, chronic respiratory disease, diabetes and injury. The risk of developing the majority of these diseases is exacerbated by lifestyle choices including smoking, drinking, substance abuse, physical inactivity, poor diet and domestic violence. Therefore, a key strategy to reducing the disease burden is through a preventative, holistic approach to health care. Health education and promotion activities provide an opportunity to affect behavioural choices that contribute to the incidence of disease.” 48

[47] In support of its claims, NATSIHWA directed the Full Bench to the following passages from the January 2011 Report which pertains to the accessibility and availability of health services: 49

“Health services need to be both available and culturally accessible. These are separate and distinct concepts. Certain barriers can render available health services inaccessible to Aboriginal and Torres Strait Islander peoples.

An individual’s fear of racial discrimination might be overcome through a Health Worker-first approach, whereby the Aboriginal or Torres Strait Islander Health Worker is the first point of contact in a health service for Aboriginal and Torres Strait Islander clients. This can assist in establishing trusting, respectful and understanding relationships between the client and other non-Aboriginal or non-Torres Strait Islander health professionals.

Therefore, it cannot be assumed that health service availability equates to accessibility. Data has shown that some Aboriginal and Torres Strait Islanders in non-remote areas actually have a higher level of unmet need than those living in remote areas. This is despite the fact that health services are more densely concentrated, and therefore more available, in non-remote areas. One hypothesis explaining this phenomenon is that the increased concentration of Health Workers in remote areas has a positive effect on health service accessibility for Aboriginal and Torres Strait Islander peoples. Regardless, it is clear that health services must be “culturally safe” to be accessible for Aboriginal and Torres Strait Islander communities.” 50

[48] NATSIHWA further considered the scope of practice and the role of the Aboriginal and Torres Strait Islander Health Worker workforce when it referenced the following passage from the January 2011 Report:

“Unique to the Health Worker scope of practice is the provision of comprehensive primary health care within a culturally appropriate and culturally safe environment.”51

[49] Relevant to the context of coverage in private practice, NATSIHWA referred to the January 2011 Report’s findings, which stated:

“… using the best available data, certain key points are clear… The distribution of the total Health Worker workforce does not align to the distribution of the Aboriginal and Torres Strait Islander population – 48% of the Health Worker workforce is located in remote or very remote areas of Australia (Australian Bureau of Statistics, 2006), whilst only 24% of the Aboriginal and Torres Strait Islander population is located in these areas (Australian Bureau of Statistics, 2006)”.52

[50] NATSIHWA cited the January 2011 Report which noted that 70 per cent of Aboriginal and Torres Strait Islander Health Workers are female.⁵³ According to NATSIHWA this is of particular importance given the clear divisions between men’s business and women’s business in the traditional cultural beliefs of Aboriginal and Torres Strait Islander peoples. Indeed, any breach of gender divisions in the provision of health care may cause great distress or shame for Aboriginal or Torres Strait Islander individuals. This is relevant when considering the needs of Aboriginal or Torres Strait Islander patients, in addition to the needs of Aboriginal or Torres Strait Islander Health Workers from their place of employment.

[51] Further, NATSIHWA notes relevant passages of the January 2011 Report which draws a distinction between the culture of Aboriginal and Torres Strait Islander peoples and mainstream Australian culture and how that incongruity can influence the accessibility of health care services. At page 18 of the January 2011 Report, it states:

[52] NATSIHWA also highlights the danger in making generalisations about the cultural beliefs of Aboriginal and Torres Strait Islander peoples, as such generalisations do not acknowledge the cultural differences between many Aboriginal and Torres Strait Islander communities and families. Further, NATSIHWA raised concern that there are fundamental differences between certain core beliefs relating to ‘health’ that are common to many Aboriginal and Torres Strait Islander peoples and Western medicine beliefs. NATSIHWA cites the January 2011 Report which quotes an excerpt from the National Aboriginal Health Strategy published in 1989:

“Aboriginal culture is the very antithesis of Western ideology. The accent on individual commitment, the concept of linear time, the switch in focus from spiritual to worldly, the emphasis on possession and the pricing of goods and services, the rape of the environment and, above all, the devaluing of relationships between people, both within families and within the whole community, as the determinant of social behaviour, are totally at variance with the fundamental belief system of Aboriginal people.

“Health” to Aboriginal peoples is a matter of determining all aspects of their life, including control over their physical environment, of dignity, of community self-esteem, and of justice. It is not merely a matter of the provision of doctors, hospitals, medicines or the absence of disease and incapacity.

… In contemporary terms Aboriginal people are more concerned about the “quality of life”. Traditional Aboriginal social systems include a three-dimensional model that provides a blue print for living. Such a social system is based on inter-relationships between people and land, people and creator beings, and between people, which ideally stipulates inter-dependence within and between a set of relationships.”⁵⁵

[53] NATSIHWA cites the following excerpt from the January 2011 Report, which concerns the traditional Aboriginal and Torres Strait Islander beliefs regarding the interconnected causal factors of ill health: 56

“For some Aboriginal and Torres Strait Islander peoples, ‘individual wellbeing is always contingent upon the effective discharge of obligations to society and the land itself’ (Maher, 1999, Morgan et al., 1997). For this reason, an Aboriginal or Torres Strait Islander individual may prioritise their social responsibilities and obligations instead of their own health (Maher, 1999, Devensian and Maher, 2003). According to the beliefs of some Aboriginal and Torres Strait Islander peoples, the causes of illness may also be attributed to supernatural intervention or sorcery (Maher, 1999, Devanesen and Maher, 2003). In other words, scientific explanations of the causes of disease may not carry as much weight for clients who have a different belief system than the one underpinning Western medical science. This may contribute to a lack of “compliance” with medical treatment plans developed by medical practitioners (McConnel, 2003, Humphrey and Weeramanthri, 2001).”

[54] NATSIHWA highlights the gap in adult mortality rates in the Aboriginal and Torres Strait Islander population. The January 2011 Report noted:⁵⁷

“The Aboriginal and Torres Strait Islander population has a much higher rate of mortality and a much lower life expectancy than the total Australian population. In 2003, the probability of dying between the ages of 15 and 60 was 33% and 23% for Aboriginal and Torres Strait Islander males and females, respectively. In comparison, the rates for the total Australian population were 10% and 6% (Vos et al., 2003).”

[55] The January 2011 Report provides more recent estimates of mortality rates of A&TSI people from the Australian Bureau of Statistics, being approximately 12 years less than other male Australians, and 10 years less than other female Australians.⁵⁸

[56] NATSIHWA relies on the finding of the January 2011 Report that “despite a large number of reforms and initiatives since 1997 few Indigenous Australians obtain the full appropriate benefits of the schemes”.⁵⁹Indeed, the differences in accessibility between Aboriginal and Torres Strait Islander peoples living in remote and non-remote areas are explored in the Report:

“When considering this information from the perspective of Australian Standard Geographical Classification locations, it is clear that there is a significant difference in accessibility between Aboriginal and Torres Strait Islander peoples based in remote and non-remote areas (see Figure 17). Aboriginal and Torres Strait Islanders in non-remote areas actually have a higher level of unmet need than those living in remote areas (Council of Australian Governments Reform Council, 2010). This challenges the assumption that a greater availability of health services equates to a greater level of accessibility. Although there may be fewer health services located in remote areas, it appears that they might be better able to meet the needs of Aboriginal and Torres Strait Islander peoples than those in non-remote parts of Australia.” 60

[57] NATSIHWA flags a theory provided in the January 2011 Report to justify these accessibility differences for across remote and non-remote areas:⁶¹

“One hypothesis is that health services in remote or very remote locations are more specifically tailored to respond to the unique needs of Aboriginal and Torres Strait Islander peoples than those located in urban areas. This hypothesis is supported by consideration of the distribution of Aboriginal and Torres Strait Islander Community Controlled Health services and Aboriginal and Torres Strait Islander Health Workers”

[58] NATSIHWA draws on the January 2011 Report in order to identify a range of barriers to health care access, which include:

• cultural safety;

• language barriers;

• experiences of discrimination or racism;

• access to transport; and

• cost of health care.⁶²

[59] NATSIHWA highlights the valuable role Health Workers are able to perform by brokering culturally safe and appropriate health care and thereby improving health service accessibility.

‘Growing our future: the Aboriginal and Torres Strait Islander health worker project final report’

[60] NATSIHWA also relies on the Health Workforce Australia’s report of 2011, ‘Growing our future: the Aboriginal and Torres Strait Islander health worker project final report’ (December 2011 Report). 63

[61] Amongst a range of findings, the December 2011 Report found:

• “The poor health outcomes of Aboriginal and Torres Strait Islander people are well recognised. A contributing factor is the lack of access to culturally safe primary health services. The contribution that Aboriginal and Torres Strait Islander Health Workers make in improving access by delivering culturally safe comprehensive primary health care is not well understood by or recognised across a range of key stakeholders, including policy makers, employers and other health professionals.” 64

• “The Aboriginal and Torres Strait Islander Health Worker workforce is a major health workforce delivering culturally safe, comprehensive primary health care to Aboriginal and Torres Strait Islander Australians.” 65

• “A growing body of evidence links the Aboriginal and Torres Strait Islander Health Worker workforce to improved health outcomes in diabetes care, mental health care, maternal and infant care, and palliative care.” 66

• “The history of the Aboriginal and Torres Strait Islander Health Worker workforce began over five decades ago. The workforce grew from the need to provide health services to Aboriginal and Torres Strait Islander people whose health needs were not being met by mainstream services. Aboriginal and Torres Strait Islander Health Workers first emerged as leprosarium workers and hospital assistants in the 1960s. These roles soon took on added significance as Aboriginal and Torres Strait Islander Health Workers combined Western and traditional Aboriginal health practices to provide accessible, culturally safe health care for Aboriginal and Torres Strait Islander people. Western health professionals soon recognised Aboriginal and Torres Strait Islander Health Workers for the ‘vitally important roles’ they played in responding to the health needs of their communities.” 67

• “The information collected shows Aboriginal and Torres Strait Islander Health Workers are a unique profession in the way they:

• Perform a comprehensive primary health care role (for example: clinical assessment; monitoring and intervention activities; and through health promotion and illness prevention programs and chronic disease management services);

• Provide culturally safe health care to Aboriginal and Torres Strait Islander people (such as advocating for Aboriginal and Torres Strait Islander clients.” 68

• “The project findings demonstrate that no other health profession provides this combination of services for Aboriginal and Torres Strait Islander people. For example, although Aboriginal and Torres Strait Islander nurses may provide culturally safe health care, the focus of their training and approach to care delivery is generally based on an acute care service model.” 69

• “There is increasing recognition of the importance of Aboriginal and Torres Strait Islander leadership and empowerment in tackling disadvantage. Solutions that are not developed in this way have limited capacity to create lasting change.” 70

• “COAG has committed $1.57 billion between 2008–2012 to improve Aboriginal and Torres Strait Islander health and wellbeing.”

• “A large portion of these funds has been invested in funding new workforce positions, such as Outreach Workers, Healthy Lifestyle Workers and Tobacco Workers, designed to target chronic disease. These new workers perform similar roles to Aboriginal and Torres Strait Islander Health Workers.” 71

• “The health care reforms outlined above will only be sustainable with the right health workforce. Health Workforce Australia (HWA) was established to facilitate health workforce reform in Australia. HWA developed the National Health Workforce Innovation and Reform (WIR) Strategic Framework for Action (2011–2015). The Strategic Framework is a national call for action to reform the workforce across the health and education sectors. It acknowledges the need to increase the number of Aboriginal and Torres Strait Islander people working in the health sector to improve health care for Aboriginal and Torres Strait Islander Australians.” 72

• “Another relevant workforce framework is the National Aboriginal and Torres Strait Islander Health Workforce Strategic Framework (2010–2015). The framework was developed by the Aboriginal and Torres Strait Islander Health Workforce Working Group (ATSIHWWG) on behalf of the Australian Health Ministers’ Advisory Council (AHMAC). It aims to achieve equitable health outcomes for Aboriginal and Torres Strait Islander people through a competent health workforce. Aboriginal and Torres Strait Islander Health Workers represent 17% of the total number of Aboriginal and Torres Strait Islander people who work in health professions. Both of these frameworks emphasise the importance of breaking down barriers to Aboriginal and Torres Strait Islander education and building the Aboriginal and Torres Strait Islander health workforce.” 73

• “[National Registration and Accreditation Scheme (NRAS)] protects the public by ensuring that only people who are suitably trained and qualified to practise in a competent and ethical manner are registered as Aboriginal and Torres Strait Islander Health Practitioners. It facilitates workforce mobility across Australia and the provision of high-quality educational training of Aboriginal and Torres Strait Islander Health Practitioners.” 74

• “Aboriginal and Torres Strait Islander Health Workers are a unique profession in the way they combine comprehensive primary health care roles with cultural safety roles. No other health profession provides this distinct form of health care to Aboriginal and Torres Strait Islander people. Broader awareness of the importance of these roles will support the ongoing development of the Aboriginal and Torres Strait Islander Health Worker workforce.” 75

• “Strong education and career pathways provide the foundation of any workforce. As the Aboriginal and Torres Strait Islander Health Worker workforce has evolved, more structure has gradually been introduced to shape Aboriginal and Torres Strait Islander Health Worker training and career development.” 76

• “It is broadly accepted that there is a need to create clearly structured and accessible education and career pathways for the future.” 77

• “There are not enough male Aboriginal and Torres Strait Islander Health Workers - only 30% of the Aboriginal and Torres Strait Islander Health Worker workforce is male; 50% of the target population is male.” 78

• “The Aboriginal and Torres Strait Islander Health Worker population is ageing - which contrasts with the younger age profile of the Aboriginal and Torres Strait Islander population.” 79

• “There is a much lower Aboriginal and Torres Strait Islander Health Worker/population ratio in urban areas than in remote areas. Despite high levels of unmet health needs in cities, 48% of the Aboriginal and Torres Strait Islander Health Worker workforce is located in remote or very remote areas, where only 24% of the population usually lives.” 80

• “A number of health services have long-standing position vacancies for Aboriginal and Torres Strait Islander Health Workers - with many vacancies lasting several years.” 81

• “Many health services report retention challenges - with reports of Aboriginal and Torres Strait Islander Health Workers leaving the workforce to pursue opportunities promising better recognition, respect and employment conditions (in other health professions and non-health related fields).” 82

• “Aboriginal and Torres Strait Islander Health Workers are currently looking for new career opportunities within the Aboriginal and Torres Strait Islander Health Worker profession - but do not know where to find them.” 83

• “A number of systemic issues affect recruitment and retention. Inequity in pay and conditions is identified as an underlying cause of Aboriginal and Torres Strait Islander Health Worker retention problems. There are widespread perceptions of pay inequities between Aboriginal and Torres Strait Islander Health Workers employed in the government health sector and the Aboriginal Community Controlled Health Sector (ACCHS).” 84

• “Improving health outcomes for Aboriginal and Torres Strait Islander Australians is currently one of Australia’s most pressing priorities. Building a strong pipeline of Aboriginal and Torres Strait Islander Health Workers with the right skills will better equip the Australian health system to meet these needs in future. A more collaborative and strategic approach to planning the Aboriginal and Torres Strait Islander Health Worker workforce is essential.” 85

• “These types of workplaces were characterised by:

• cultural awareness and respect;

• recognition and trust in Aboriginal and Torres Strait Islander Health Workers;

• long-term commitment to the professional development of individual Aboriginal and Torres Strait Islander Health Workers;

• positive inter-professional relationships, in other words positive relationships between those in different professions in health and social care;

• strong leadership and management; and

• Aboriginal and Torres Strait Islander Health Workers in management roles.” 86

• “The workplace environment is clearly an important area of focus for Aboriginal and Torres Strait Islander Health Worker workforce development efforts. Aboriginal and Torres Strait Islander Health Workers are expected to play a key role in supporting the health of their communities. For Aboriginal and Torres Strait Islander Health Workers to do this well, they first need to be enabled and supported in the workplace.” 87

Australia’s Health Workforce Series: ‘Aboriginal and Torres Strait Islander Health Workers/Practitioners in focus’ Report

[62] NATSIHWA also relies on the Health Workforce Australia’s report of 2014, ‘Australia’s Health Workforce Series: Aboriginal and Torres Strait Islander Health Workers/Practitioners in focus’ (2014 Report). 88

[63] Amongst a range of findings, the 2014 Report found:

• “Commonly, Aboriginal and Torres Strait Islander Health Workers:

• provide culturally safe health care to Aboriginal and Torres Strait Islander people, such as advocating for Aboriginal and Torres Strait Islander clients to explain their cultural needs to other health professionals, and educating or advising other health professionals on the delivery of culturally safe health care;

• perform a comprehensive primary health care role, for example, clinical assessment, monitoring and intervention activities, and health promotion; and

• adapt the roles they perform in response to local health needs and contexts.” 89

• “Aboriginal and Torres Strait Islander Health Workers are employed by a number of different service providers, including Aboriginal Community Controlled Health Organisations, Aboriginal Medical Services, hospitals, state and territory governments, and GP clinics.” 90

• “Aboriginal and Torres Strait Islander Health Practitioners are the registered component of the Aboriginal and Torres Strait Islander Health Worker workforce. From 2012, under the NRAS, practitioners who use the title ‘Aboriginal and Torres Strait Islander Health Practitioner’, ‘Aboriginal Health Practitioner’, or ‘Torres Strait Islander Health Practitioner’ are required to be registered.” 91

• “In terms of workforce characteristics, information from the Census shows the Aboriginal and Torres Strait Islander Health Worker workforce:

• has experienced substantial growth over the last fifteen years; and

• is predominately female.

• Information from the NHWDS shows the Aboriginal and Torres Strait Islander Health Practitioner workforce:

• is slightly older than the Aboriginal and Torres Strait Islander Health Worker workforce (an average age of 44 years, compared with 41 years);

• has one of the longest average weekly working hours among both registered and non-registered health workforces;

• is predominately female; and

• is mostly employed in clinical roles.” 92

• “Information from NCVER shows the number of students completing Certificate III and IV level courses in Aboriginal and Torres Strait Islander health increased steadily between 2008 and 2011, with a particularly sharp increase between 2010 and 2011. The increasing number of course completions is reflected in Census data, which showed an increase in the proportion of Aboriginal and Torres Strait Islander Health Workers qualified to certificate and diploma level between 2006 and 2011 (increasing to over half of the workforce – from 45.3 per cent in 2006 to 55.6 per cent in 2011). However, jurisdictions and stakeholders both noted issues with training and education, specifically the accessibility and affordability of courses and the availability of workplace training and opportunities for professional development, as affecting both the current workforce and future workforce supply.

• Census information showed workforce growth for Aboriginal and Torres Strait Islander Health Workers tended to be in the older age groups, suggesting people choose to enter the profession later in life. Measures to encourage younger Aboriginal and Torres Strait Islander people to this career may be beneficial for future workforce supply.

• Despite information showing people enter this profession later in life, the WDI for average age and percentage aged 55 and over do not show particular cause for concern for Aboriginal and Torres Strait Islander Health Workers and Practitioners. However stakeholders highlighted their view that this assessment should be interpreted in the context of the lower life expectancy of Aboriginal and Torres Strait Islander peoples (which is approximately 10 years less than that of non-Aboriginal and Torres Strait Islanders in Australia). Stakeholders also noted that, in addition to differences in life expectancy, there are health disparities between Aboriginal and Torres Strait Islander people and Australians of other descent which may affect retention of skilled workers. For example, an Aboriginal and/or Torres Strait Islander person in their mid-40’s may have chronic health conditions more common in older people among Australians of other descent, which may result in early retirement or a need to reduce work hours at a relatively young age.

• Another area of concern, not highlighted by the WDI, is the gender imbalance of the current workforce. The Aboriginal and Torres Strait Islander Health Worker and Practitioner workforce is predominately female, and the underrepresentation of males may impact the delivery of culturally appropriate health care. Given cultural protocol and gender restrictions, it is important that all Aboriginal and Torres Strait Islander men have adequate access to male health professionals. Resources and initiatives dedicated to recruiting, retaining, and training a higher number of male Aboriginal and Torres Strait Islander Health Workers and Practitioners would help to meet this need.

• Feedback received from jurisdictions and stakeholders noted a key issue impacting demand for Aboriginal and Torres Strait Islander Health Workers workforce is short-term contracts and changes to budgets, programs, and funding arrangements. Both jurisdictions and stakeholders also noted variability between states and territories, in terms of pay scales, job descriptions, and scopes of practice. This variability between jurisdictions may be reflected by Census data on the distribution of the Aboriginal and Torres Strait Islander Workforce. In 2011, South Australia had the highest number of Aboriginal and Torres Strait Islander Health Workers per 100,000 Aboriginal and Torres Strait Islander population, however in the Census only 5.6 per cent of Aboriginal and Torres Strait Islander people reported their usual place of residence was in South Australia. Conversely, while 31 per cent of Aboriginal and Torres Strait Islander people reported their usual place of residence was in New South Wales in the 2011 Census, this state had one of the lowest rates of Health Workers per 100,000 population.” 93

Aboriginal and Torres Strait Islander health organisations Online Services Report – key results 2016-17

[64] NATSIHWA directed the Full Bench to the following passages from a report by the Australian Institute of Health and Welfare:

“Primary health-care services play a critical role in helping to improve health outcomes for Indigenous Australians. Indigenous Australians may access either mainstream or Indigenous primary health-care services, which offer prevention, diagnosis and treatment in a range of settings.” 94

“Aboriginal and Torres Strait Islander health workers have an important role in improving the health of Aboriginal and Torres Strait Islander people. In 2013, the Community Services and Health Industry Skills Council (CSHISC) released new health training packages that contained a suite of updated qualifications, skill sets and units of competency in first aid, workplace health and safety and telehealth (CSHISC 2014). At 30 June 2017, 357 Aboriginal and Torres Strait Islander health workers held a Certificate IV practice stream qualification, 141 held a Certificate IV community stream qualification and 273 a Certificate III qualification (see Table S3.42).” 95

A national profile of Aboriginal and Torres Strait Islander health Workers 2006-2016

[65] NATSIHWA drew the Full Bench’s attention to the first paragraph of an article by Alyson Wright et al which notes the importance of A&TSI health workers and the increasing evidence that their inclusion in models of care “facilitates culturally appropriate care, reduces communication gaps, reduces discharges against medical advice, provides cultural education, increases inpatient contact time, improves follow-up practices and enhances patient referral linkages”. 96

[66] NATSIHWA also directed the Full Bench to the following passages:

“Over the past 10 years, several government policy documents have called for action to build a competent workforce to deliver equitable health outcomes for Aboriginal and Torres Strait Islander people and to increase the number of Aboriginal and Torres Strait Islander people in the health sector.” 97

“In 2012, the Australian Government introduced national registration for Aboriginal and Torres Strait Islander Health Practitioners, which created the Health Practitioner in National Health Workforce dataset. However, as this only captures Aboriginal and Torres Strait Islander Health Practitioners, the Health Workforce dataset does not provide sufficient coverage of the entire Aboriginal and Torres Strait Islander Health Worker and Health Practitioner workforce.” 98

“There was an overall increase of 338 people who reported their occupation as an Indigenous Health Worker… The total number of Indigenous Health Workers was not commensurate with population growth; there were 221 Indigenous Health Workers per 100,000 Indigenous people in 2006 and 207 Indigenous Health Workers per 100,000 Indigenous people in 2016. There was a greater proportion of female Indigenous Health Workers in the workforce (71.0% in 2006 to 73.3% in 2016) and declines in the proportion of male Indigenous Health Workers (29.5% in 2006 to 26.8% in 2016).

There were declines in the proportion of Indigenous Health Worker aged 15–24, 25–34 and 35–44 (decline of 12.5% across these age groups) (Figure 1B). In comparison, for all the older age groups (45-54, 55-64, 65+) there were substantial increases in the proportion of Indigenous Health Workers. In particular, there was an increase of 7.5% in Indigenous Health Workers aged 55-64 (9.2% in 2006 to 16.7% in 2016) and a 3.6% increase in Indigenous Health Workers aged 45-54 (25.7% in 2006 to 29.3% in 2016).” 99

[67] NATSIHWA states that the article also outlines the proportions of increases and decreases in each state, noting there has been a marked decline in the proportion of indigenous health workers in Northern Territory, South Australia, Victoria and Western Australia and slight increases in the other states. 100 NATSIHWA then highlights the following passages:

“Despite policy rhetoric about the importance of growing the Indigenous Health workforce, we remain concerned that there has been inadequate growth in Aboriginal and Torres Strait Islander Health Workers since 2006. Our results demonstrate the slight increase in workforce numbers is not commensurate with the Aboriginal and Torres Strait Islander population growth. The most notable declines in this workforce are in the proportion of younger adults, males and workers in the NT entering the workforce. There were notable increases in Health Workers in only two states – Queensland and NSW.

The ageing Health Worker population presents both concerns and strengths. We suspect that the decline in younger Indigenous Health Workers (aged ≤44 years) is due to lack of people obtaining qualifications, traineeships and skills to enter the profession, although it is also likely that that some younger Indigenous Health Workers are moving into other professions. However, the retention of older Indigenous Health Workers (aged 45+) builds expertise and experience in long-term employees who can act as mentors for the younger workforce. Felton Busch et al. in their exploratory study of Aboriginal Health Workers, found many participants wanted career advancement in management or specialist Health Worker areas (for example, specialisation in Alcohol and Other Drugs), with fewer participants expressing interest in medicine and nursing.

The increase in Aboriginal and Torres Strait Islander Health Workers in Queensland may also highlight this jurisdiction’s employment policy strengths. Queensland Health has defined a career structure for Health Workers and Practitioners in the state health care system which provides pathways to advance in the profession.” 101

“The workforce retention and recruitment issues are complex and compromised by data limitations.” 102

“Overall, the small increase in the number of Aboriginal Health Workers nationally from 2006 to 2016 masks the issues in the workforce growth, retention and recruitment. Using simple descriptive analysis, we have highlighted immediate concerns, including growth that is incommensurate with population increases, a stagnant proportion of male Indigenous Health Workers and an ageing workforce. This analysis adds weight to the call for a National Indigenous Health Workforce Strategy and the need to address critical recommendations in the Growing our Future report.” 103

National Aboriginal and Torres Strait Islander Health Workforce Strategic Framework 2016 to 2023

[68] NATSIHWA highlighted the following introductory passages from the National Aboriginal and Torres Strait Islander Health Workforce Strategic Framework 2016 to 2023: 104

“This National Aboriginal and Torres Strait Islander Health Workforce Strategic Framework (2016‐2023) (the Framework) is a mechanism to guide national Aboriginal and Torres Strait Islander health workforce policy and planning. The Framework focuses on prioritisation, target setting and monitoring of progress against growing and developing the capacity of the Aboriginal and Torres Strait Islander health workforce.

It will assist in contributing to the needs of the Aboriginal and Torres Strait Islander health workforce across all service delivery areas (both public and private), including: social and emotional wellbeing; drug and alcohol; and the mental health workforce.

The Framework has been developed by the Aboriginal and Torres Strait Islander Health Workforce Working Group (ATSIHWWG), a working group of the Health Workforce Principal Committee of the Australian Health Ministers’ Advisory Council, with input from key Aboriginal and Torres Strait Islander health stakeholders.” 105

[69] NATSIHWA highlighted the stated aim of the framework:

“The Framework aims to contribute to the achievement of equitable health outcomes for Aboriginal and Torres Strait Islander people through building a strong and supported health workforce that has appropriate clinical and non-clinical skills to provide culturally-safe and responsive health care.

Implementation of the Framework is expected to contribute to the delivery of the following outcomes:

• Aboriginal and Torres Strait Islander people being strongly represented across all health disciplines;

• The representation of Aboriginal and Torres Strait Islander people in the health workforce being proportional to the composition of the total population;

• A health workforce that is able to adapt to changing health needs and service delivery environments;

• Health workforce planning that optimises access to health care for Aboriginal and Torres Strait Islander people;

• Workplaces that attract, encourage and develop the talents of Aboriginal and Torres Strait Islander health professionals;

• A collaborative approach to health workforce development that involves all relevant stakeholders;

• Aboriginal and Torres Strait Islander health professionals are supported to lead the development of social, human, economic and cultural capital within the health workforce;

• Aboriginal and Torres Strait Islander health professionals playing a vital role in enhancing the Aboriginal health workforce capability through a range of career pathways;

• Non-Aboriginal and Torres Strait Islander health professionals recognise the trained skill sets and cultural knowledge of the Aboriginal and Torres Strait Islander workforce; and

• Best-practice training to build a culturally-safe and responsive health workforce.” 106

[70] NATSIHWA highlighted the following passages in relation to key policy linkages:

“The Framework has been developed within the overall policy context of the National Aboriginal and Torres Strait Islander Health Plan 2013–2023 (the Health Plan), and its specific goal to ensure that Australia has a health system that delivers clinically appropriate care that is culturally-safe, non-discriminatory and free from racism, high quality, responsive and accessible for all Aboriginal and Torres Strait Islander people.

The Health Plan provides a long-term, evidence-based strategic policy framework as part of the overarching COAG’s approach to closing the gap in Indigenous disadvantage, which was set out in the National Indigenous Reform Agreement (NIRA) signed in 2008.” 107

[71] NATSIHWA highlighted the following passages in relation to cultural respect:

“This Framework is consistent with the Cultural Respect Framework for Aboriginal and Torres Strait Islander Health, which commits the Commonwealth government and all states and territories to embedding cultural respect principles into their health systems; from developing policy and legislation, to how organisations are run, through to the planning and delivery of services.” 108

“This Framework shares the National Aboriginal and Torres Strait Islander Health Plan 2013-2023 vision of an Australian health system that is free of racism and inequality, and where all Aboriginal and Torres Strait Islander people have access to health services that are effective, high quality, appropriate and affordable; and that the health system is comprised of an increasing Aboriginal and Torres Strait Islander health workforce delivering culturally-safe and responsive health care.” 109

[72] NATSIHWA directed the Full Bench to a number of passages relating to the Framework’s commitment to various principles. In relation to the ‘Centrality of Culture’, NATSIHWA highlighted the following:

“• Cultural knowledge, expertise and skills of Aboriginal and Torres Strait Islander health professionals are reflected in health services models and practice.” 110

[73] In relation to the principle of ‘Health Systems Effectiveness’, NATSIHWA highlighted the following:

“• Developing a health workforce with appropriate clinical and cultural capabilities to address the health needs and improve the health outcomes of Aboriginal and Torres Strait Islander people is central to increasing access to health services that are effective, high quality, appropriate and affordable. Appropriate ongoing professional development and training that is recognised, supported and resourced is essential to achieving this.

• Workplaces must be free of racism, culturally-safe, supportive and attractive to the Aboriginal and Torres Strait Islander health workforce.” 111

[74] In relation to the principle of ‘Partnership and Collaboration’, that is, partnership between A&TSI people and government and non-government sectors, NATSIHWA highlighted the following:

“• All stakeholders, including the Aboriginal and Torres Strait Islander health workforce and communities, must be actively included in decision making.” 112

[75] In relation to the principle of ‘Leadership and Accountability’, NATSIHWA highlighted the following dot points:

“• Strong quality Aboriginal and Torres Strait Islander leadership at the senior manager and executive levels is essential to planning and designing culturally-respectful health care services for Aboriginal and Torres Strait Islander people.

• Intentional leadership and talent development initiatives are required to advance Aboriginal and Torres Strait Islander people in both targeted and mainstream positions.

• Creation of structured career pathways is a vital element in leadership development and retention of Aboriginal and Torres Strait Islander employees.

• Commitment to achieving a culturally proficient and safe health workforce must come from the top and then filter down through the different levels of each organisation. This is key to growing the Aboriginal and Torres Strait Islander workforce, and will require sound policy, budgetary directions and strong leadership across governments.

• Strong leadership from both Aboriginal and Torres Strait Islander and non-Indigenous health professionals is essential in building social participation and eliminating racism from the health system. Commitment and accountability across and between all levels of government and non-government sectors are critical requirements to support health workforce strategies.

• Workplaces must be encouraged to attract and develop Aboriginal and Torres Strait Islander people across all levels of the organisation, including management and representation in governance arrangements.” 113

[76] NATSIHWA highlighted the following suggested mechanism to achieve the Framework’s key strategy “to improve the skills and capacity of the Aboriginal and Torres Strait Islander health workforce in clinical and non-clinical roles across all health disciplines”:

“• Provide opportunities for the development of leadership capability, at all levels; from entry to leadership positions, which includes access to ongoing training and work-based experience.” 114

[77] NATSIHWA highlighted the Framework’s key strategy, that is, for health and related sectors to “be supported to provide culturally-safe and responsive workplace environments for the Aboriginal and Torres Strait Islander workforce.” 115

Our Choices Our Voices – A report prepared by the Lowitja Institute for the Close the Gap Steering Committee

[78] NATSIHWA drew the Full Bench’s attention to the following passage from the foreword of this report in support of their claims:

“The stories profiled in this report demonstrate that when Aboriginal and Torres Strait Islander people are involved in the design of the services they need, we are far more likely to achieve success. These stories illustrate that ‘our choice and our voice’ are vital if we are to make gains and start to close the gap.” 116

[79] NATSIHWA highlighted the following passages from the report:

“The overriding principle throughout the stories is that the success of these initiatives is based on community governance and leadership, which is imperative to the success and longevity of the programs. The stories also highlight the importance of cultural determinants of health such as strength, resilience, identity and importantly self-determination.

Aboriginal Community Controlled Organisations (ACCOs) are an essential success component of the provision of holistic, affordable and appropriate primary health care for Aboriginal and Torres Strait Islander people.” 117

[80] NATSIHWA highlighted a passage in relation to the report’s priority theme of targeted, needs-based primary healthcare:

“Aboriginal and Torres Strait Islander people have a right to access the health care we need, in the location we choose.” 118

Cultural respect and general practice: a cluster of randomised controlled trial

[81] NATSIHWA directed the bench to the following passages from an article from The Medical Journal of Australia by various authors on cultural respect in general practice to support their claims: 119

“The known: The gap in life expectancy between Indigenous and non-Indigenous Australians remains large. Urban Indigenous Australian-controlled health services are under-resourced, and mainstream primary care services are often not culturally sensitive.

The new: A practice-based cultural respect program — including a workshop and toolkit of scenarios, with advice from a cultural mentor, and guided by a care partnership of Indigenous and general practice organisations — did not significantly influence Indigenous health check rates or cultural respect levels.

The implications: Cultural respect programs may require more than 12 months to increase Indigenous health check rates and the cultural quotient scores of general practice clinic staff.” 120

“Aboriginal Community Controlled Health Services (ACCHSs) are important providers of primary health care to Indigenous communities. However, most Indigenous Australians living in urban areas also use standard primary care and GP services.” 121

“About one-third of Indigenous Australians live in major cities, but only 16 of 138 ACCHSs are in major cities; urban ACCHSs have lower staff/client ratios than regional and remote ACCHSs.

Indigenous Australians frequently encounter cultural disrespect in mainstream primary care services. The 2012–13 Australian Aboriginal and Torres Strait Islander Health Survey reported that 16% of Indigenous Australians had experienced racism in health settings; 20% of these respondents reported that doctors, nurses and other hospital or clinic staff were discriminatory, and 7% avoided seeking health care because of unfair treatment. Of 755 adult Indigenous Victorians surveyed in 2011, 29% had experienced racism in health settings.” 122

Substantive issues

[82] Having summarised the extensive material on which NATSIHWA relies as providing the context for the claims advanced, we turn to the substantive issues.

Expanding coverage of the Award

[83] In respect to the Award’s coverage clause 123, NATSIHWA submits that the coverage clause should be expanded to include A&TSIHWs and A&TSIHPs as an occupation.124 It posits an amendment to the coverage clause is necessary in order for the Award to meet the modern awards objective under s.134(1) of the Act.125

[84] It states that A&TSIHWs and A&TSIHPs in private practice are not currently covered by any modern award. 126 In written and oral submissions, it states its proposed amendment would promote social inclusion through encouraging increased workforce participation and recognition.127 NATSIHWA notes that when the Aboriginal Community Health Award was made there was no evidence of A&TSIHWS and A&TSIHPS engaged in private practice.128

[85] Currently, clause 4.1 of the Award is as follows:

“4.1 This industry award covers employers throughout Australia in the Aboriginal community controlled health services industry and their employees in the classifications listed in clause 16 – Minimum wages to the exclusion of any other modern award.”

[86] NATSIHWA proposes clause 4.1 be amended to the following:

“This industry and occupation award covers:

(a) employers throughout Australia in the Aboriginal community controlled health services industry and their employees in the classifications listed in clause 14 129 – Minimum wages to the exclusion of any other modern award; and

(b) employers throughout Australia with respect to their employees engaged as an Aboriginal and/or Torres Strait Islander Health Worker.” 130

[87] It further proposes clause 4.5 be amended as:

“This award does not cover:

(a) an employee excluded from award coverage by the Act;

(b) employers covered by the following awards with respect to employees covered by the awards:

(i) Nurses Award 2010; or

(ii) Medical Practitioners Award 2010.” 131

[88] NATSIHWA also seek a consequential change to the title of the Award flowing from proposed expansion of the coverage clause of the Award NATSIHWA to include A&TSIHWs and A&TSIHPs engaged in private practice. The proposed title for the Award is as follows;

“Aboriginal and/or Torres Strait Islander Health Workers and Practitioners and Community Controlled Health Services Award”

[89] In response to our concerns about the potential productivity, cost and regulatory burden, 132 NATSIHWA submits some employers in private practice would be covered by a combination of the Award, the Nurses Award 2010 and the Medical Practitioners Award 2010.133 It relies on the EY Sweeney’s May 2016 report titled ‘Fair Work Commission – Multiple modern award coverage and the utility of majority clauses’ to address our concerns of the burden on private practices that would be required to apply more than one modern award.134 It contends the report suggests that private practice medical clinics are often small to medium sized businesses; small to medium sized business are prepared for multiple award coverage and there are effective strategies such as HR software to mitigate the regulatory burden of multiple award coverage.135 NATSIHWA submits an expanded coverage clause would not have an adverse impact on private practices.136

[90] In its submissions of 24 April 2017, AFEI opposes NATSIHWA’s proposal to expand the coverage clause ‘to include A&TSIHWs and A&TSIHPs as an occupation, so as to provide award coverage for [them] in private practice.’ 137 AFEI notes the observation made by the Full Bench of the AIRC in the creation of the modern award, in which they said:

“the services provided by aboriginal community controlled health organisations are notably different from what might be called mainstream health services, including as to the work that is performed by its employees.”138

[91] AFEI also raises concerns about issues that may arise due to overlapping coverage and “the possible consequences of expanding occupational coverage to employees who may already be covered by another award.” 139

[92] In further submissions filed on 19 July 2019, AFEI again refers to the Award’s historical context where the Full Bench of the AIRC were satisfied that Aboriginal community controlled health services are a distinct sector of the health industry. 140

[93] AFEI raises questions regarding the evidence relied on by NATSIHWA. AFEI submits that NATSIHWA have not provided specific details on how many A&TSIHWs and A&TSIHPs work in private practice and also, NATSIHWA have provided evidence indicating that it is currently “unclear how to pay A&TSIHW within private practice.” 141 Based on this, AFEI claims that it raises questions as to whether NATSIHWA have “put forward an argument of merit and adduced probative evidence demonstrating facts supporting the proposed variation.”142

[94] AFEI submits that, should the Award be varied, “the rates of pay applicable to A&TSIHWs and A&TSIHPs working in private practice ought to be in sync with the rates of pay with other award covered health professionals.” 143

[95] AFEI did not attend the hearing to provide oral submissions.

Numbers in practice

[96] NATSIHWA contends that while the exact number of health professionals is not known, there are Aboriginal and Torres Strait Islander health workers in private practice and the numbers are likely to increase. If the class of worker is expanded to the private sector, it would facilitate growth.

[97] A&TSI health workers and health practitioners can loosely be distinguished by qualification, namely those who NATSIHWA refers to as A&TSIHWs and A&TSIHPs. 144

[98] An A&TSIHW is an A&TSI person who has gained, or is working toward, a Certificate II or higher qualification in A&TSI Primary Health Care from one of the health training packages. 145 An A&TSIHP is an A&TSI person who has gained a Certificate IV in A&TSI Primary Health Care (Practice) and who is registered with the A&TSI Health Practice Board of Australia (A&TSIHPBA) through the Australian Health Practitioner Regulation Agency (AHPRA).146

[99] NATSIHWA submits that by extending the coverage clauses to include A&TSIHWs and A&TSIHPs as an occupation, it would provide coverage for A&TSIHWs and A&TSIHPs in private practice, 147 as currently NATSIHWA submits that A&TSIHWs and A&TSIHPs who are employed in private practice are currently not covered by any modern award.148 Extending the coverage clause, to incorporate the coverage of those working in private practice, is likely to promote social inclusion through encouraging increased workforce participation and recognition.149

[100] In respect of the numbers in practice, NATSIHWA relies on evidence given by Mr Briscoe who stated that the number of A&TSIHWs and A&TSIHPs working in private practice are limited in number. 150 Further, that prior to 2010, it was highly unusual for A&TSIHWs and A&TSIHPs to be working in private practice,151 and since then, there has been an increase in numbers. Mr Briscoe claims that there have been A&TSIHWs working in private practice and employers wanting to employ A&TSIHWs to work in their firm, however both employee and employer are uncertain of the pay rates because of the absence of coverage in the Award.152 NATSIHWA submits, while relying on the evidence of Mr Briscoe153 and Dr Stephanie Trust,154 that A&TSIHWs and A&TSIHPs working in private practice has resulted in uncertainty and, at times, confusion regarding the applicable pay rate.155

[101] NATSIHWA relies on the evidence given by Dr Trust 156 and the expert report of Alyson Wright157 that there is interest from private practice to employ A&TSIHWs and A&TSIHPs.

[102] NATSIHWA contends that this is a unique workforce that isn’t covered by any other award and the numbers of A&TSIHWs and A&TSIHPs in practice are likely to grow. 158 Mr Briscoe claims that although it is difficult to accurately assess the number of A&TSIHWs and A&TSIHPs practicing in Australia, because there is no single body that governs or regulates them and because they work across a number of different contexts and locations around Australia, there is a need to fill the constant vacancies and more young people preparing to join the health workers and health practitioners workforce for an expanding population.159 Mr Briscoe, in his witness statement, refers to a policy statement in his annexure KB-1, which outlines the nature of the A&TSIs workforce.160

4.3 This award covers any employer which supplies labour on an on-hire basis in the Aboriginal community controlled health services industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.3 operates subject to the exclusions from coverage in this award.

4.4 This award covers employers which provide group training services for trainees engaged in the Aboriginal community controlled health services industry and/or parts of that industry and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.4 operates subject to the exclusions from coverage in this award.

Question 4–Monetary allowances

[293] Since the applications were made, the Award has been varied and is now a 2020 Award. All allowances are now expressed as a dollar figure, not asa percentage of the standard rate. Schedule C now contains a summary of monetary allowances. The draft variation determination has been drafted for consistency with the new award. Parties are asked to comment on the calculation of the allowances.

Question 5–Blood check allowance

[294] We have granted NATSIHWA’s claim to insert a ‘blood check allowance’ into the award. The title of the proposed clause is ‘blood check allowance’, however the clause refers to a ‘blood count’. Parties are asked to confirm whether the clause should also refer to a ‘blood check’.

[295] We also propose to provide NATSIHWA an opportunity to submit a revised classification structure reflecting our conclusions summarised at [193] above by no later than Wednesday 12 August 2020. Interested parties will have an opportunity to comment on that classification structure by Wednesday 26 August 2020.

[296] Further, interested parties seeking to press the claim for inclusion of an ‘Occasional interpreting allowance’ as referred to at [232] - [238] above, are invited to file submissions by Wednesday 5 August 2020 following which any interested parties opposed to inclusion of such an allowance will be required to file submission in reply by Wednesday 19 August 2020.

[297] Any submissions or comments are to be made, in writing to [email protected]. Any outstanding issues will be determined based on the written material filed unless a request for an oral hearing is received by Wednesday 26 August 2020.

DEPUTY PRESIDENT

Appearances:

J Steele of Counsel and N Avery‑Williams of Counsel for NATSIHWA
L Svendsen and R Liebhaber for the HSU

Hearing details:

2019
Melbourne
25 and 26 July

Further written submissions:

NATSIHWA, 9 August 2019 and 18 September 2019
HSU, 9 August 2019
AMA, 28 August 2019

Printed by authority of the Commonwealth Government Printer

Attachment A

MA000115 PRXXXXX X

DRAFT DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2018/12)

ABORIGINAL COMMUNITY CONTROLLED HEALTH SERVICES AWARD 2020

[MA000115]

Indigenous organisations and services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT MASSON COMMISSIONER BISSETT	MELBOURNE, XX JULY 2020

4 yearly review of modern awards – Aboriginal Community Controlled Health Services Award 2020 – substantive claims.

A. Further to the decision [[2020] FWCFB XXXX] issued by the Full Bench of the Fair Work Commission on XX July 2020, the above award is varied as follows:

1. By deleting clause 1.1 and inserting the following:

1.1 This award is the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Community Controlled Health Services Award 2020.

2. By deleting clause 4.1 and inserting the following:

4.1 This industry and occupation award covers:

(a) employers throughout Australia in the Aboriginal community controlled health services industry and their employees in the classifications listed in clause 16—Minimum rates to the exclusion of any other modern award; and

(b) employers throughout Australia with respect to their employees engaged as an Aboriginal and/or Torres Strait Islander Health Worker.

3. By deleting clause 4.5 and inserting the following:

4.5 The award does not cover:

(a) an employee excluded from award coverage by the Act;

(b) employers covered by the following awards with respect to employees covered by the awards:

(i) Nurses Award 2010; or

(ii) Medical Practitioners Award 2020.

(c) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(d) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4. By inserting clause 12.3 as follows:

12.3 Progression

(a) At the end of each 12 months’ continuous employment, an employee will be eligible for progression from one level to the next within a grade if the employee has demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level and;

(i) the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, if required by the employer; or

(ii) where an employer has adopted a staff development and performance appraisal scheme and has determined that the employee has demonstrated satisfactory performance for the prior 12 months’ employment.

(b) Movement to higher classification will occur by way of promotion or re-classification

5. By inserting clause 12.4 as follows:

12.4 Recognition of prior service

(a) On appointment, an employee will be classified and placed on the appropriate level on the salary scale in clause 16—Minimum rates, according to their qualifications and experience as an Aboriginal and/or Torres Strait Islander Health worker.

(b) Service as a part-time Aboriginal and/or Torres Strait Islander Health Worker will normally accrue on a pro-rata basis according to the percentage of a full-time Aboriginal and/or Torres Strait Islander Health Worker load undertaken in any year; provided that where the hours are more than 90% of a full-time load, service will count as a full-time year.

(c) In the case of a casual employee, the equivalent of a full-time year of service is 200 casual days.

6. By inserting clause 12.5 as follows:

12.5 Evidence of qualifications

On engagement, the employer may require that the employee provide documentary evidence of qualifications and experience. If an employer considers that the employee has not provided satisfactory evidence, and advises the employee in writing to this effect, then the employer may decline to recognise the relevant qualification or experience until such evidence is provided. Provided that the employer will not unreasonably refuse to recognise the qualifications of an employee.

7. By deleting clause “15—Unpaid meal breaks” and inserting the following:

15. Breaks

15.1 Unpaid meal breaks

(a) An employee who works more than 5 hours will be entitled to an unpaid meal break of between 30 and 60 minutes.

(b) The time of taking the meal break may be varied by agreement between the employer and employee.

15.2 Paid rest breaks

(a) Two separate 10 minute rest breaks (in addition to meal breaks) will be allowed to each employee on duty during each ordinary shift of 7.6 hours or more.

(b) Where less than 7.6 ordinary hours are worked, employees will be allowed one 10 minute rest break in each four hour period.

(d) Rest breaks will count as time worked.

15.3 Rest Breaks – working in heat

(a) Where work continues for more than 2 hours in temperature exceeding 46oC, employees will be entitled to a 20 minute rest break every 2 hours without deduction from pay.

(b) The employer must take all reasonable steps to ensure that an employee takes the breaks/s to which he or she is entitled.

8. By inserting clause 18.2(b) as follows:

(b) Nauseous Work Allowance

An allowance of $0.49 per hour or part thereof will be paid to an employee in any classification if they are engaged in handling linen of a nauseous nature other than linen sealed in airtight containers and/or for work which is of an unusually dirty or offensive nature having regard to the duty normally performed by such employee in such classification. Any employee who is entitled to be paid for this allowance will be paid a minimum amount of $2.64 for work performed in any week.

9. By inserting clause 18.2(c) as follows:

(c) Medication Administration Allowance

Aboriginal and/or Torres Strait Islander Health Workers who are qualified and permitted under law to administer medications in the performance of their duties are entitled to an allowance of $2.44 per week.

10. By inserting clause 18.3(d) as follows:

(d) Telephone allowance

Where the employer requires an employee to install and/or maintain a telephone for the purpose of being on call, the employer will refund the installation costs and the subsequent rental charges on production of receipted accounts. This clause will not apply where the employer provides the employee with a mobile telephone for the purpose of being on call.

11. By inserting clause 18.3(e) as follows:

(e) Blood check allowance

Any employee exposed to radiation hazards in the course of their work will be entitled to a blood check as often as is considered necessary and will be reimbursed for any out of pocket expenses arising from such a test.

12. By inserting clause 18.3(f) as follows:

(f) Replacement, Cleaning or Repair to Damaged Clothing Allowance

Where an employee, in the course of their employment suffers any damage to or soiling of clothing or other personal effects, the employer will be liable for the replacement, repair or cleaning of such clothing or personal effects provided, where practicable, immediate notification is given to the employer of such soiling as soon as possible.

13. By deleting clause 26 and inserting the following:

26 Ceremonial leave

An employee who is legitimately required by indigenous tradition to be absent from work for Aboriginal or Torres Strait Islander ceremonial purposes, including for bereavement related ceremonies and obligations, will be entitled to up to 10 working days unpaid leave in any one year, with the approval of the employer.”

14. By deleting the table appearing in clause C.1.1 and inserting the following:

Allowance	Clause	% of standard rate	$	Payable
Nauseous Work Allowance–per hour	18.2(b)	0.05	0.49	per hour
Nauseous Work Allowance–minimum per week	18.2(b)	0.27	2.64	minimum per week
Medication Administration Allowance	18.2(c)	0.25	2.44	per week
Bilingual qualification allowance—Level 1	18.2(a)(ii)	206.93	2019.84	per annum
Bilingual qualification allowance—Level 2	18.2(a)(ii)	414.18	4042.81	per annum
On-call and recall allowances—After ordinary working hours—other than public holiday	20.6(a)(i)	1.97	19.23	per any 24 hour period or part thereof
On-call and recall allowances—Public holiday	20.6(a)(ii)	3.94	38.46	per any 24 hour period or part thereof

15. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from XX Month 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after XX Month 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 See for example [2018] FWCFB 1548, [2018] FWCFB 4175, [2018] FWCFB 6852.

2 [2020] FWCFB 1541, PR716550.

3 [2018] FWCFB 4175 at [16].

4 [2018] FWC 6107.

5 Transcript dated 26 July 2019 at PN1312 - PN1314 and PN1550 - PN1554.

6 The request was varied on 7 occasions: 16 June and 18 December 2008, 2 May, 28 May, 1 July, 17 August and 26 August 2009.

7 [2009] AIRCFB 865.

8 Ibid at [125].

9 PR991082.

10 Transcript dated 25 July 2019 at PN14.

11 NATSIHWA Submission dated 18 June 2019 at [3]. See also Transcript dated 25 July 2019 at PN74.

12 Transcript dated 25 July 2019 at PN15.

13 Ibid at PN86.

14 Transcript dated 25 July 2019 at PN77 to PN81. See also Witness Statement of Karl John Briscoe dated 18 June 2019 at [12].

15 Transcript dated 25 July 2019 at PN384.

16 NATSIHWA Submission dated 18 June 2019 at [4].

17 Transcript dated 25 July 2019 at PN306 - PN316.

18 About NACCHO (Web Page) Witness statement of Karl John Briscoe dated 18 June 2019, Exhibit KB-1, Tab 87 –Correspondence from NACCHO to Mr Karl Briscoe dated 18 June 2019.

20 Exhibit 3, Correspondence with amended draft determination to Mr Briscoe from Ms Turner dated 25 July 2019.’

21 AFEI Submission dated 19 July 2019 at [1.23]-[1.24].

22 AFEI Submission dated (in AM2014/250) dated 24 April 2017 at [5]-[6].

23 HSU Submission dated 18 June 2019 at [2].

24 [2014] FWCFB 1788.

25 Ibid at [24].

26 Ibid at [23].

27 [2017] FWCFB 1001 at [115].

28 [2014] FWCFB 1788 at [36].

29 Submission of NATSIHWA dated 18 June 2019 at [4].

30 Ibid at [4].

31 Ibid at [4] – [6].

32 NATSIHWA Submission dated 18 June 2019 at [6]; NATSIHWA Annual Report 2018 Exhibit KB-1 (tab 5).

33 NATSIHWA Submission dated 18 June 2019 at [5]; Expert report of Alyson Wright dated 11 June 2019 at [9].

34 NATSIHWA Submission dated 18 June 2019 at [5]; Expert report of Alyson Wright dated 11 June 2019 at [11].

35 NATSIHWA Submission dated 18 June 2019 at [7]; Expert report of Alyson Wright dated 11 June 2019 at [12] – [13].

36 NATSIHWA Submission dated 18 June 2019 at [7]; Expert report of Alyson Wright dated 11 June 2019 at [12].

37 NATSIHWA Submission dated 18 June 2019 at [7]; Expert report of Alyson Wright dated 11 June 2019 at [13].

38 NATSIHWA Submission dated 18 June 2019 at [14]; Expert report of Associate Professor Raymond William Lovett dated 18 June 2019 at p.1.

39 NATSIHWA Submission dated 18 June 2019 at [14]; Alyson Wright et al, ‘A National Profile of Aboriginal and Torres Strait Islander Health Workers, 2006-2016’ (2019) 43.1 Australian and New Zealand Journal of Public Health 24 (Tab 75 of Exhibit KB-1).

40 Transcript dated 25 July 2019 at PN292; Expert report of Associate Professor Raymond William Lovett dated 18 June 2019 at p. 394-396.

41 Transcript dated 25 July 2019 at PN293; Expert report of Associate Professor Raymond William Lovett dated 18 June 2019 at p. 396.

42 Transcript dated 25 July 2019 at PN325.

43 Transcript dated 25 July 2019 at PN331; Health Workforce Australia, Aboriginal & Torres Straight Island Health Worker Project Environmental Scan: Version 7.0 Final (Report, January 2011) at p. 3 (See exhibit KB-1 (tab 71)).

44 Transcript dated 25 July 2019 at PN339.

45 Transcript dated 25 July 2019 at PN340; Health Workforce Australia, Aboriginal & Torres Straight Island Health Worker Project Environmental Scan: Version 7.0 Final (Report, January 2011) at p.18 (See exhibit KB-1 (tab 71)).

46 Health Workforce Australia, Aboriginal & Torres Straight Island Health Worker Project Environmental Scan: Version 7.0 Final (Report, January 2011) at p. 3.

47 Transcript, 25 July 2019 at PN327.

48 Health Workforce Australia, Aboriginal & Torres Straight Island Health Worker Project Environmental Scan: Version 7.0 Final (Report, January 2011) at p. 3.

49 Ibid.

50 Ibid at pp.3 – 4.

51 Ibid at p.4.

52 Ibid at p.4.

53 Ibid at p.4.

54 Ibid at p.18.

55 Ibid at p.19.

56 Ibid.

57 Ibid at p.42.

58 Ibid.

59 Ibid at p.59.

60 Ibid at p.63.

61 Ibid at p.64.

62 Ibid at p.70.

63 Health Workforce Australia, Growing Our Future: Final Report of the Aboriginal and Torres Strait Islander Health Worker Project (December 2011).

64 Ibid at p.IX.

65 Ibid at p.XII.

66 Ibid at p.XII.

67 Ibid at p.1.

68 Ibid.

69 Ibid at p.3.

70 Ibid.

71 Ibid at p.4.

72 Ibid at p.4.

73 Ibid at p.5.

74 Ibid at p.5.

75 Ibid at p.12.

76 Ibid at p.13.

77 Ibid.

78 Ibid at p.14.

79 Ibid.

80 Ibid.

81 Ibid.

82 Ibid at p.15.

83 Ibid.

84 Ibid.

85 Ibid.

86 Ibid at p.17.

87 Ibid at p.18.

88 Health Workforce Australia, Australia’s Health Workforce Series: Aboriginal and Torres Strait Islander Health Workers/Practitioners in focus (Report, July 2014).

89 Ibid at p.2.

90 Ibid.

91 Ibid at p.3.

92 Ibid at p.43.

93 Ibid at p.43-44.

94 Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander health organisations: Online Services Report—key results 2016-17 9 (2018) at p.4.

95 Ibid at p.42.

96 Transcript, 25 July 2019 at PN441; Alyson Wright et al, ‘A national profile of Aboriginal and Torres Strait Islander Health Workers, 2006-1016’ (2019) 43.1 Australian and New Zealand Journal of Public Health 24, at p.24.

97 Alyson Wright et al, ‘A national profile of Aboriginal and Torres Strait Islander Health Workers, 2006-1016’ (2019) 43.1 Australian and New Zealand Journal of Public Health 24, at p.24.

98 Ibid.

99 Ibid at p.25.

100 Transcript dated 25 July 2019 at PN446; Alyson Wright et al, ‘A national profile of Aboriginal and Torres Strait Islander Health Workers, 2006-1016’ (2019) 43.1 Australian and New Zealand Journal of Public Health 24, at p. 24.

101 Alyson Wright et al, ‘A national profile of Aboriginal and Torres Strait Islander Health Workers, 2006-1016’ (2019) 43.1 Australian and New Zealand Journal of Public Health 24 at p.26.

102 Ibid.

103 Ibid.

104 Transcript, dated 25 July 2019 at PN453.

105 Aboriginal and Torres Strait Islander Health Workforce Working Group, ‘National Aboriginal and Torres Strait Islander Health Workforce Strategic Framework 2016–2023’ (Framework, Australian Health Ministers’ Advisory Council, undated) at p.1.

106 Ibid at p.2.

107 Ibid at p.2.

108 Ibid at p.4.

109 Ibid at p.6.

110 Ibid.

111 Ibid.

112 Ibid.

113 Ibid at p.7.

114 Ibid at p.8.

115 Ibid at p.9.

116 The Lowitja Institute, Our Choices Our Voices (Report, Close the Gap Steering Committee, 2019) at p.1.

117 Ibid at pp.1-2.

118 Ibid at p.6.

119 Transcript dated 25 July 2019 at PN486-PN495.

120 Siaw-Teng Liaw et al, ‘Cultural respect in general practice: a cluster randomised controlled trial’ (2019) 210 The Medical Journal of Australia 263 at p.263.

121 Ibid.

122 Ibid.

123 Clause 4.1 of the Aboriginal Community, Controlled Health Services Award 2010.

124 NATSIHWA Submission dated 18 June 2019 at [39]; Transcript dated 25 July 2019 at PN117.

125 NATSIHWA Submission dated 18 June 2019 at [39].

126 NATSIHWA Submission dated 18 June 2019 at [40]; Transcript dated 25 July 2019 at PN121.

127 Transcript dated 25 July 2019 at PN572 - PN573; NATSIHWA Submission dated 18 June 2019 at [40].

128 NATSIHWA Submission dated 18 June 2019 at [41] – [47].

129 Now clause 16 of the Aboriginal Community, Controlled Health Services Award 2010.

130 NATSIHWA Further Amended Draft Determination dated 9 August 2019 at p.2.

131 NATSIHWA Further Amended Draft Determination dated 9 August 2019 at p.3.

132 Transcript dated 26 July 2019 at PN1509 - PN1518.

133 NATSIHWA Submission dated 9 August 2019 at [4] and [5].

134 Ibid at [4] - [15].

135 Ibid at [14].

136 Ibid at [15].

137 NATSIHWA Submission dated 18 June 2019at [23].

138 Award Modernisation, [2009] AIRCFB 945 at[98].

139 AFEI Submission (in AM2014/250) dated 24 April 2017 at [5]-[6], 24 April 2017 at [6].

140 [2009] AIRCFB 865, [124]-[125]; AFEI Submission dated 19 July 2019 at [1.14].

141 AFEI Submission dated 19 July 2019 at [1.14(b)].

142 Ibid.

143 Ibid

144 NATSIHWA submission dated 18 June 2019 at [3]

145 Ibid at [10].

146 Ibid at [11].

147 Ibid at [23].

148 Ibid at [40].

149 Ibid at [40].

150 Ibid at [96]

151 Ibid at [100].

152 Witness statement of Mr Karl John Briscoe, dated 18 June 2019 at [96]-[99]; See witness statement of Ms Haysie Penola dated 28 June 2019; Transcript dated 25 July 2019 at PN244.

153 Witness statement of Mr Karl John Briscoe, dated 18 June 2019 at [99] and [133].

154 Witness statement of Dr Stephanie Trust dated 18 June 2019 at [19]-[20].

155 Submission of NATSIHWA dated 18 June 2019 at [53].

156 Witness statement of Dr Stephanie Trust dated 18 June 2019 at [17]-[18].

157 Expert report of Alyson Wright at [28].

158 Transcript dated 25 July 2019 at PN241.

159 Transcript dated 25 July 2019 at PN242; Witness statement Mr Karl John Briscoe dated 18 June 2019 at [94].

160 Transcript dated 25 July 2019 at PN241.

161 Ibid at PN242.

162 Ibid at PN243.

163 Witness statement Mr Karl John Briscoe dated 18 June 2019 at [101]-[102].

164 Ibid, Exhibit KB-1.

165 Transcript dated 25 July 2019 at PN248.

166 Witness statement Mr Karl John Briscoe dated 18 June 2019, Exhibit KB-1.

167 Transcript dated 25 July 2019 at PN251.

168 Ibid at PN252.

169 Transcript dated 25 July 2019 at PN254.

170 Ibid at PN258.

171 Expert report of Associate Professor Raymond William Lovett dated 18 June 2019, p.3-4; Transcript dated 25 July 2019 at PN305.

172 Ibid.

173 Transcript dated 25 July 2019 at PN511.

174 Ibid at PN511 - PN512.

175 Transcript dated 25 July 2019 at PN514.

176 Transcript dated 25 July 2019 at PN526-528.

177 NATSIHWA Submission dated 18 June 2019 at [79] – [80].

178 Ibid at [79].

179 Ibid at [80.1] to [80.4].

180 Expert Report of Alyson Wright dated 11 June 2019 at [31].

181 NATSIHWA Draft Determination dated 9 August 2019.

182 NATSIHWA Submission dated 18 June 2019.

183 Transcript dated 25 July 2019 at PN20.

184 Ibid at PN17 to PN18.

185 NATSIHWA Submission dated 18 June 2019 at [27].

186 NATSIHWA Submission dated 18 June 2019 at [82] – [84]; Transcript dated 26 July 2019 at PN711.

187 Transcript dated 26 July 2019 at PN711.

188 NATSIHWA Submission dated 18 June 2019 at [84].

189 Ibid at [83].

190 Transcript dated 26 July 2019 at PN713.

191 Ibid at PN714 to PN715.

192 Ibid at PN756.

193 NATSIHWA Submission dated 18 June 2019 at [85.1].

194 Ibid at [86].

195 Ibid at [85.2].

196 NATSIHWA Submission dated 18 June 2019 at [87]; Transcript dated 26 July 2019 at PN785.

197 Transcript dated 26 July 2019 at PN777.

198 NATSIHWA, submission dated 18 June 2019 at [30].

199 Ibid at [95].

200 Ibid at [97].

201 NATSIHWA submission dated 18 June 2019 at [30].

202 Ibid at [104].

203 Witness statement of Mr Karl John Briscoe dated 18 June 2019 at [42] – [44].

204 Transcript dated 26 July 2019 at PN1080 and Wright, Expert Report at [24].

205 NATSIHWA submission dated 18 June 2019 at [106].

206 Ibid at [107].

207 Curtin Indigenous Research Centre, Training Re-visions: A national review of Aboriginal and Torres Strait Islander Health Worker Training, (Curtin University of Technology, Canberra 2000).

208 NATSIHWA submission dated 18 June 2019 at [109].

209 Ibid at [111].

210 Ibid at [113].

211 NATSIHWA submission dated 18 June 2019 at [115].

212 Witness statement of Mr Karl John Briscoe dated 18 June 2019 at [168] – [170].

213 Transcript dated 26 July 2019 at PN1071 and Wright, Expert Report, at [19].

214 NATSIHWA submission dated 18 June 2019 at [116] and Wright, Expert Report at [37].

215 NATSIHWA, submission dated 18 June 2019 at [31].

216 Ibid at [117].

217 Ibid at [31].

218 Ibid.

219 NATSIHWA submission dated 18 June 2019 at [121].

220 Ibid at [124].

221 Ibid at [126].

222 Ibid at [127] and [130].

223 PR991082 at Schedule B, Clause B.1.3.

224 MA000115 at Schedule A, Clause A.2.3.

225 MA000100 at Schedule B, Clause B.8.3

226 NATSIHWA Submission dated 18 June 2019 at [69].

227 Transcript dated 26 July 2019 at PN787 - PN788; NATSIHWA Submission dated 18 June 2019 at [69] - [70].

228 NATSIHWA’s Further Amended Draft Determination dated 9 August 2019 at p.3.

229 NATSIHWA Submission dated 18 June 2019 at [72] – [74].

230 Ibid at [75] – [77].

231 NATSIHWA Submission dated 18 June 2019 at [73].

232 Transcript dated 25 July 2019 at PN502 to PN548.

233 [2018] FWCFB 4175.

234 AFEI submission in reply dated 19 July 2019 at [1.23].

235 AFEI submission dated 24 April 2017 at [9].

236 Witness Statement of Mr Karl John Briscoe dated 18 June 2019 at [209].

237 Witness Statement of Mr Aaron Everett dated 19 June 2019 at [20].

238 Witness Statement of Ms Charlene Badham dated 18 June 2019 at [24].

239 Witness Statement of Mr Zibeon Fielding dated 19 July 2020 at [24].

240 Witness Statement of Ms Charlene Badham dated 18 June 2019 at [25].

241 Witness Statement of Ms Lorraine Gilbert dated 26 June 2019 at [21].

242 Witness Statement of Mr Derek Donahue dated 18 June 2019 at [13].

243 Witness Statement of Ms Naomi Zaro dated 18 June 2019 at [25].

244 Witness Statement of Ms Sharon Wallace dated 28 June 2019 at [20].

245 Witness Statement of Ms Haysie Penola dated 28 June 2019 at [22].

246 Witness Statement of Mr Karl John Briscoe dated 18 June 2019 at [208].

247 Witness Statement of Ms Charlene Badham dated 18 June 2019 at [23], Witness Statement of Mr Peter Yarran at [14].

248 Witness Statement of Ms Haysie Penola dated 28 June 2019 at [20].

249 Witness Statement of Ms Naomi Zaro dated 18 June 2019 at [24].

250 Witness Statement of Mr Richard Assan dated 18 June 2019 at [16].

251 Air Pilots Award 2010 (cl 19.6), Airservices Australia Enterprise Award 2016 (cl 12.17), Commercial Sales Award 2010 (cl 16.1), Contract Call Centres Award 2010 (cl 20.3), Health Professionals and Support Services Award 2010 (cl 18.11), Marine Towage Award 2010 (cl 14.2(c)), Market and Social Research Award 2010 (cl 17.1(c)), Medical Practitioners Award 2010 (cl 16.5), Nurses and Midwives (Victoria) State Reference Public Sector Award 2015 (cl 14.5), Real Estate Industry Award 2010 (cl 18.6), Social, Community, Home Care and Disability Services Industry Award 2010 (cl 20.6), Stevedoring Industry Award 2010 (cl 14.5), Telecommunications Services Award 2010 (cl 17.1(c)).

252 Aboriginal Legal Rights Movement Award 2016 (cl 16.4), Australian Broadcasting Corporation Enterprise Award 2016 (cl 36.3), Food, Beverage and Tobacco Manufacturing Award 2010 (cl 26.2(d)), Health Professionals and Support Services Award 2010 (cl 18.4), Joinery and Building Trades Award 2010 (cl 24.2(d)(i)), Journalists Published Media Award 2010 (cl 15.3), Manufacturing and Associated Industries and Occupations Award 2010 (cl 32.2(d)), Maritime Offshore Oil and Gas Award (cl 14.5), Mobile Crane Hiring Award 2010 (cl 14.3(b)), Rail Industry Award 2010 (cl 15.3(a)(i)), Seafood Processing Award 2010 (cl 19.1(c)), Storage Services and Wholesale Award 2010 (cl 16.6).

253 AFEI submission dated 24 April 2017 at [9] and AFEI submission in reply dated 19 July 2019.

254 Submissions on behalf of National Aboriginal Community Controlled Health Organisation before the Australian Industrial Relations Commission (Matter Number: AM2008/64) dated 24 July 2009.

255 Witness Statement of Mr Karl John Briscoe dated 18 June 2019 at [189] – [196].

256 Witness Statement of Ms Evelyn Wilson at [12] and [22].

257 Witness Statement of Ms Naomi Zaro dated 18 June 2019 at [26]; Witness Statement of Ms Cynthia Sambo at [24]; Witness Statement of Mr Derek Donohue dated 18 June 2019 at [14].

258 Witness Statement of Ms Haysie Penola dated 28 June 2019 at [23].

259 NATSIHWA submission dated 9 August 2019 at [20].

260 Witness Statement of Karl John Briscoe dated 18 June 2019, at [200].

261 Ibid at [201].

262 Ibid at [202].

263 Witness Statement of Helena Badham at [15] – [16].

264 Witness Statement of Daphne de Jersey at [19] – [24].

265 Witness Statement of Zibeon Fielding at [27] – [30].

266 Ibid at [27].

267 Ibid at [28].

268 NATSIHWA submissions 20 June 2019 at [193].

269 Transcript dated 26 June 2019 at PN1475.

270 Ibid at PN1475.

271 Ibid at PN1475.

272 Ibid at PN1476.

273 Witness Statement of Karl John Briscoe dated 20 June 2019 at [186]; Witness Statement of Daniel Niddrie at [26]; Witness Statement of John Watson dated 18 June 2019 at [15]; Witness Statement of Ms Haysie Penola dated 28 June 2019 at [18]; Witness Statement of Aaron Everett dated 19 June 2019 at [16] - [17]; Witness Statement of Daphne de Jersey at [25] – [29].

274 Witness Statement of Ms Charlene Badham dated 18 June 2019 at [22]; Witness Statement of Evelyn Wilson at [19].

275 Witness Statement of Ms Chandel Compton dated 26 June 2019 at [19].

276 Witness Statement of Ms Karen West dated 18 June 2019 at [20] – [21].

277 NATSIHWA submission 18 June 2019 at [205].

278 Medicines, Poisons and Therapeutic Goods Act 2012 (NT); Health (Drugs and Poisons) Regulation 1996 (QLD); Medicines and Poisons Regulations 2016 (WA).

279 Witness Statement of Daniel Niddrie at [25].

280 Witness Statement of Zibeon Fielding at [31].

281 Transcript dated 26 July 2019 at PN1381.

282 NATSIHWA submission 18 June 2018 at [209].

283 Witness Statement of Karl John Briscoe dated 20 June 2019 at [215] – [217].

284 Witness Statement of Robert John Dann at [17].

285 NATSIHWA submission 18 June 2018 at [212].

286 Witness Statement of Karl John Briscoe dated 20 June 2019 at [218].

287 Ibid at [219].

288 Ibid at [222].

289 NATSIHWA submission 18 June 2018 at [214].

290 Witness Statement of David Hart dated 18 June 2019 at [20]; Witness Statement of Evelyn Wilson filed 19 June 2020 at [24].

291 Witness Statement of John Watson dated 18 June 2019 at [21] – [22]; Witness Statement of Naomi Zaro at [29]; Witness Statement of Daniel Niddrie at [32].

292 Witness Statement of Naomi Zaro at [28].

293 Transcript dated 26 July 2019 at PN1505.

294 Transcript dated 26 July 2019 at PN1505.

295 Fair Work Act 2009 s.134(1)(g).

296 HSU Submission dated 18 June 2019.

297 Ibid; Transcript dated 26 July 2019 at PN1535.

298 Ibid at [6].

299 Ibid at [8].

300 Exhibit 4 at p.1.

301 HSU Submission dated 18 June 2019 at [11].

302 Ibid.

303 Ibid.

304 Ibid at [12]; Fair Work Act 2009, s.134(1)(g).

305 Transcript dated 26 July 2019 at PN1539-PN1542.

306 HSU Submission dated 18 June 2019 at [13].

307 HSU Submission dated 18 June 2019 at [14].

308 Exhibit 5, 1-3.

309 HSU Submission dated 18 June 2019 at [15].

310 Ibid.

311 HSU further submissions – Relocation or removal expenses clauses in awards dated 9 August 2019.

312 HSU Submission dated 18 June 2019 at [22].

313 Ibid at [18].

314 [2017] FWCFB 1001 at [338].

315 [2017] FWCFB 1001.

316 HSU Submission dated 18 June 2019 at [21].

317 Ibid.

318 Ibid.

319 Ibid at [23].

320 Ibid at [24].

321 Ibid.

322 Ibid at [26].

323 Transcript dated 26 July 2019 at PN1549.

4 yearly review of modern award—Aboriginal Community Controlled Health Services Award 2010

[2020] FWCFB 3827

22 JULY 2020