Albury Wodonga Health (Wodonga Hospital)

[2015] FWCA 8558

[2015] FWCA 8558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Albury Wodonga Health (Wodonga Hospital)
(AG2015/7504)

NURSES AND MIDWIVES (VICTORIAN PUBLIC SECTOR) (SINGLE INTEREST EMPLOYERS) ENTERPRISE AGREEMENT 2012-2016

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 10 DECEMBER 2015

Application for variation of the Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2012-2016.

[1] An application has been made, pursuant to section 210 of the Fair Work Act 2009 (the Act), for approval of a variation to the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016 (the Agreement). The application was made by the Victorian Hospitals’ Industrial Association (VHIA) on behalf of employers covered by the Agreement. The Authorities to Act, given to the VHIA by the various employers, were also provided.

[2] The application seeks approval of a variation to the Agreement which will facilitate the application of the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Safe Patient Care Act) so that employees who are covered by the Agreement have the benefit of the Safe Patient Care Act. In addition, the variation will preserve the benefit to employees of the Safe Patient Care Act and its operation, irrespective of whether the Safe Patient Care Act is repealed or amended in a manner likely to result in a detriment to the level of nurse/midwife to patient ratios and safe patient care.

[3] The application seeks to vary the Agreement as set out in Appendix A attached to this decision.

[4] A Statutory Declaration, dated 8 December 2015, together with a copy of the variation that was put to employees and the explanation of the variation which was provided to employees, were filed by the VHIA. In addition, there was correspondence from the Victorian Electoral Commission regarding the result of the ballot of employees that was held.

[5] Statutory Declarations in support of the variation were also received from the Australian Nursing & Midwifery Association and the Health Services Union, employee organisations covered by the Agreement.

[6] On the basis of the material before me, I am satisfied that each of the requirements of section 210 and 211 of the Act, as relevant to this application for approval, have been met.

[7] The variation is approved and a consolidated version of the Agreement, as varied, is attached to this decision. It is noted that the undertaking regarding Ceremonial Leave, dated 27 June 2012, remains a term of the varied Agreement as does the model flexibility term prescribed by the Fair Work Regulations 2009.

[8] In accordance with section 216 of the Act, the variation operates from 22 December 2015.

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APPENDIX A

The amendments sought to the Agreement are as follows:

1. Delete the following clauses:

(a) Clause 4(s).

(b) Clause 41.1(a).

(c) Clause 57.

(d) Clause 58.2.

(e) Schedule C.

2. Amend clause 6 to include a new clause 6.4:

6.4 Nothing in this Agreement, including clause 12, is intended to prevent the concurrent operation of the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Safe Patient Care Act) and this Agreement unless either of the conditions in clause 8.1(a) or (b) of this Agreement is met.

3. Delete clause 8 and insert the following:

8.1 The provisions in clauses 8.3 to 8.6 (inclusive) of this Agreement will commence operation if either of the following conditions is met:

(a) the Safe Patient Care Act is repealed or otherwise ceases to operate as a law of the State of Victoria; or

(b) a Care/Ratio Detriment Notice comes into effect pursuant to clause 8.2(e) of this Agreement.

In this clause 8, Incorporation Date means the date on which either of the conditions in clause 8.1(a) or (b) is met.

8.2 Care/Ratio Detriment Notice

(a) If the Secretary of the Australian Nursing and Midwifery Federation (Victorian Branch) (Secretary) is satisfied that the Safe Patient Care Act has been amended or its operation varied by reason of any Act or Subordinate Instrument (care/ratio change) in such a manner as to be likely to result in a detriment to the level of safe patient care and nurse/midwife to patient ratios facilitated by the Safe Patient Care Act she/he may issue a notice (Care/Ratio Detriment Notice).

(b) A Care/Ratio Detriment Notice shall be filed with the Fair Work Commission (Commission) and served on the Victorian Hospitals' Industrial Association, the Department Head of the Department of Health and Human Services and each Employer to which this Agreement applies.

(c) A Care/Ratio Detriment Notice must be filed and served within 60 days of the coming into effect of the care/ratio change concerned and must specify the care/ratio change.

(d) A failure or deficiency in service under clause 8.2(b) or 8.2(e)(ii) shall not effect the validity and effect of the Care/Ratio Detriment Notice or the withdrawal of that Notice if properly filed with the Commission.

(e) The Care/Ratio Detriment Notice shall come into effect as follows:

(i) The Care/Ratio Detriment Notice shall come into effect 7 days after it is filed with the Commission unless, during that 7 day period (Notification Period), the Victorian Hospitals' Industrial Association files with the Commission and serves on the Secretary, a consultation request. If a consultation request is served in the Notification Period, then clause 8.2(e)(ii) shall apply.

(ii) Upon filing a consultation request pursuant to clause 8.2(e)(i), a period of 14 days shall be allowed for consultation to occur (Consultation Period). During the Consultation Period the Secretary or delegate and the Victorian Hospitals’ Industrial Association shall consult in good faith in relation to the care/ratio change and the Care/Ratio Detriment Notice. The Department Head or delegate of the Department of Health and Human Services may be involved in these consultations. The Secretary may withdraw the Care/Ratio Detriment Notice at any time during the Consultation Period by filing correspondence to this effect with the Commission and serving it on the Victorian Hospitals' Industrial Association, the Department Head of the Department of Health and Human Services and each Employer to which this Agreement applies. Unless withdrawn during the Consultation Period, the Care/Ratio Detriment Notice shall come into effect on the day after the end of the Consultation Period.

(f) The Secretary in determining her/his satisfaction as to detriment under clause 8.2(a) shall have regard to the following:

(i) any representation made by persons affected by the care/ratio impact change;

(ii) the likely effect of the care/ratio impact change on the provision of safe patient care;

(iii) the likely effect of the care/ratio impact change on nursing/midwifery workloads; and

(iv) the purpose and reasons for the care/ratio impact change (if any) provided to the Parliament.

(g) Nothing in clauses 8.1 or 8.2 or any act or failure to act under clauses 8.1 or 8.2 shall be subject to the Dispute Settlement provisions of this Agreement or otherwise be subject to review.

8.3 If either of the conditions in clause 8.1(a) or (b) is met,

(a) sections 3, 4 and 5 of Part 1, Part 2 and Schedules 1, 2 and 3 of the Safe Patient Care Act and any associated Regulations as in force immediately prior to:

(i) the date the Safe Patient Care Act is repealed or otherwise ceases to operate as a law of the State of Victoria; or

(ii) the date of the care/ratio change in respect of which a Care/Ratio Detriment Notice was issued under clause 8.2(a),

shall be incorporated as terms of this Agreement with effect from the Incorporation Date;

(b) the ratios in force by operation of any re-distribution or variation or agreement under Part 2 – Division 4 or by the operation of sections 47, 48 or 49 of the Safe Patient Care Act as in force immediately prior to:

(i) the date the Safe Patient Care Act is repealed or otherwise ceases to operate as a law of the State of Victoria; or

(ii) the date of the care/ratio change in respect of which a Care/Ratio Detriment Notice was issued under clause 8.2(a),

shall be incorporated as terms of this Agreement with effect from the Incorporation Date;

(c) references in this Agreement to the Safe Patient Care Act, other than the references in clauses 6.4, 8 , 42.7 and 52.4(b) are to be read as the Safe Patient Care Act as incorporated by clause 8.3(a) and (b) with effect from the Incorporation Date; and

(d) the Agreement is to operate to the complete exclusion of any inconsistent State laws with effect from the Incorporation Date.

8.4 For the purposes of this clause 8, 'Safe Patient Care Act as incorporated' means those parts of the Safe Patient Care Act and associated Regulations incorporated pursuant to clause 8.3.

8.5 The terms of the Safe Patient Care Act as incorporated into this Agreement pursuant to clause 8.3, shall operate in conjunction with the terms of the Agreement, provided that where there is an inconsistency between the Safe Patient Care Act as incorporated and other provisions of this Agreement, the terms of the Safe Patient Care Act as incorporated, shall prevail.

8.6 Any dispute as to how any provision of the Safe Patient Care Act as incorporated, operates or operates in conjunction with the Agreement, may be progressed through clause 11 of this Agreement. In exercising its powers in relation to such a dispute under clause 11, the Fair Work Commission:

(a) must take into account the objects of the Safe Patient Care Act as incorporated pursuant to clause 8.3;

(b) may, if necessary, take into account the intention of Parliament as expressed in the explanatory memorandum to the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Bill 2005; and

(c) may only, if the dispute is in respect of a variation to the ratios made in accordance with the Safe Patient Care Act as incorporated by clause 8.3, consider whether consultation in good faith has occurred. Accordingly, clinical aspects of the variation remain the sole responsibility and accountability of the Employer and are not subject to consideration by the Fair Work Commission.

4. Delete clause 11.1(a)(iii) and insert the following:

(iii) a dispute about nurse to patient or midwife to patient ratios, except as provided for by clause 8 of this Agreement;

5. Amend clause 12.1 to include a new clause 12.1(d):

(d) nothing in this clause 12 limits the operation of clause 8 of this Agreement.

6. Delete clause 13.2 and insert the following:

13.2 For the purpose of calculating accrued days off, Employees who work on a shift during which time changes because of the introduction of, or cessation to, daylight saving, will be taken to have worked the standard hours for a night shift in accordance with the roster.

7. Delete the opening line in clause 31.3 and insert the following:

31.3 For the avoidance and resolution of disputes between Employees and their Employer as provided for in clause 11 of this Agreement and improving occupational health and safety:

8. Delete clause 41.1(b) and insert the following:

(b) The minimum skill mix that each Employer specified in Schedule 2 of the Safe Patient Care Act aims to achieve during the life of this Agreement, in all acute general surgical and medical wards is:

(i) 1/3 Registered Nurse with more than three years experience;

(ii) 1/3 Registered Nurse with one to three years experience;

(iii) 1/3 Registered Nurse with graduate nurse/Enrolled Nurse.

9. Delete clause 41.2(b) and insert the following:

(b) In order to maintain the nursing hours provided by the Safe Patient Care Act, the rostered hours of all Employees who are on Extended Leave will be fully replaced.

10. Delete clause 41.3(a) and insert the following:

41.3 Agency and Nurse Bank Staff

(a) Each Employer will endeavour to meet its Safe Patient Care Act obligations through the employment of permanent Employees. If this is not possible, an Employer should use nurse bank Employees as an interim measure. Agency staff should only be used for unexpected absences, such as sick leave.

A nurse bank Employee is a direct Employee of an Employer who is engaged in relieving work of work of a casual nature and whose engagement is terminable by an Employer in accordance with the Employer’s requirements without the requirement of prior notice by either party and is otherwise engaged in accordance with the casual provisions of the Agreement in the relevant classification.

11. Delete clause 41.5(a) and insert the following:

(a) The parties agree that:

(i) Employers wishing to maintain or implement a continuity of care model will only do so in accordance with this provision.

(ii) Nothing in this clause permits variations inconsistent with the minimum ratio requirements prescribed by or made under the Safe Patient Care Act.

12. Delete clause 41.5(b) and insert the following:

(b) Existing Models

(i) Remuneration arrangements in a model before 30 September 2007 must comply with one of the remuneration options contained in paragraph (d) below, but otherwise continue to operate.

13. Delete clause 41.5(c)(i) and insert the following:

(i) Continuity of Midwifery care (eg. Caseload, team, shared care etc) models may be proposed by an Employer. The ANMF Secretary will be advised of the proposal in writing at the time of its referral to the Local Health Agency Committee (LHAC).

14. Delete clause 41.5(c)(viii) and insert the following:

(viii) Local arrangements are to be agreed and resourced to ensure compliance with this Arrangement (save as to remuneration, the options for which are set out below).

15. Delete the opening sentence in clause 41.5(d)(ii) and insert the following:

(ii) All four remuneration options outlined below shall be contained in any proposal to introduce a continuity model for consideration by the LHAC:

16. Delete clause 41.5(f) and insert the following:

(f) Advertising Positions in the Model

Once a proposal has been implemented by an Employer in accordance with this clause, the Employer shall be entitled to advertise for new Employee midwives to participate exclusively in the model(s) and paragraph (e)(i) above shall not apply, ie the newly employed midwives would not be able to elect to cease participating in the model.

17. Insert a new clause 42.7:

42.7 Clauses 42.1 to 42.6 (inclusive) have no effect as terms of this Agreement.

18. Insert a new clause 42A:

42A Variations to On Call, Hours, Shifts, Rosters

42A.1 This clause will apply to any proposal that:

(a) prior to clause 42.7 coming into operation, would have been made under clause 42 of this Agreement; and

(b) is made under a clause of this Agreement as varied that refers to clause 42A;

other than a variation inconsistent with the minimum ratio requirements prescribed by or made under the Safe Patient Care Act.

42A.2 The Employer will provide a proposal in writing to affected nursing/midwifery staff and, in the case of a proposal that prior to clause 42.7 coming into operation would have been made under clause 42.3, a copy will be forwarded simultaneously to the Secretary of the ANMF The proposal should address, where relevant, the considerations referred to in clause 42A.5 of this Agreement

42A.3 A maximum of two weeks from the date of provision of the information in 42A.2 will be provided for consultation, except in the case of a proposal that prior to clause 42.7 coming into operation would have been made under clause 42.3 where the maximum consultation period shall be one month. Subject to clause 42A.6, implementation will be from the beginning of the next roster period except that where it is also necessary for a variation of ratios to be made under the Safe Patient Care Act in order for the proposal referred to in clause 42A.2 to be effective. In these circumstances, the proposal referred to in clause 42A.2 will not be implemented until the ratio variation under the Safe Patient Care Act takes effect.

42A.4 Nothing in this clause 42A:

(a) allows for the unilateral changing of an Employee's contract of employment; or

(b) permits variations inconsistent with the minimum ratio requirements prescribed by or made under the Safe Patient Care Act.

42A.5 The following are considerations, where relevant, that must be addressed in relation to a proposal referred to in clause 42A.2:

(a) Patient Profile – consideration of patient case mix, age of patient, complexity, length of stay and throughput of patients in the clinical setting e.g. emergency admissions, elective admissions and transfers to/from critical care areas; and

(b) The capacity of nursing/midwifery staff to complete their duties within existing work hours; and

(c) Quality of care/clinical risk, including nurse/midwife sensitive adverse outcomes such as falls (with or without injury), urinary tract infections, pneumonia, decubitus ulcers, thrombosis, sepsis and medication errors (with or without patient consequences);

(d) OH&S considerations such as physical environment and staff safety; and Nursing/Midwifery staff engagement; and

(e) Nursing/Midwifery engagement.

42A.6 Resolving disputes

Where there is a dispute as to compliance with the processes provided for in this clause, either party may seek to progress the proposal through clause 11 of this Agreement. However, in exercising its powers, Fair Work Commission may only consider whether consultation in good faith has occurred having regard to the considerations in clause 42A.5. Accordingly, clinical aspects of the change remain the sole responsibility and accountability of the Employer and are not subject to consideration by the Fair Work Commission.

19. Delete the words "Subject to Part II of Schedule C of this Agreement" from clause 43.1.

20. Delete the words "Subject to Part II of Schedule C of this Agreement" from clause 43.2.

21. Amend clause 43.5(a) as follows:

(a) A Registered Nurse classified at Grade 5 who is an After Hours Coordinator as defined in the Safe Patient Care Act shall be appointed to be in charge of each campus in all off duty periods of the DON.

22. Delete clause 44.1(a)(iv) and insert the following:

(iv) Despite paragraph (a)(ii) above, a 12 hour shift arrangement may be utilised as follows:

23. Delete clause 45.1(h) and insert the following:

(h) The obligations as they apply to a particular health service, ward or unit under paragraphs (a) to (f) may be varied in accordance with clause 42A of this Agreement.

24. Delete clause 47.1(a) and insert the following:

(a) A full-time Employee is one who is employed and who is ready, willing and available to work a full week of 38 hours or an average of 38 hours as per clause 51 as may be varied in accordance with clause 42A at the times and during the hours as may be mutually agreed upon or in the absence of such agreement as prescribed by the Employer.

25. Delete clause 47.2(a) and insert the following

(a) A part-time Employee is one who is employed and who is ready, willing and available to work on a regular basis any number of hours up to but not exceeding 38 hours in any one week (or an average of 38 hours per week as per clause 51 as may be varied by clause 42A) provided that the number of hours worked may vary from week to week by mutual agreement. Such Employee shall be paid per hour worked an amount equal to 1/38th of the weekly salary appropriate to the Employee’s classification, provided that clauses 28 - Special rates for Saturdays and Sundays and 55.5 will also apply to part-time Employees. Payment in respect of any period of annual leave or long service leave to which an Employee may become entitled shall be on a pro rata basis.

26. Delete clause 50 and insert the following:

50. Filling/Advertisement of Position

50.1 The process for advertising and filling of vacancies shall be as follows:

(a) Each ward/clinical unit shall have a nurse staffing profile based on EFT Employees.

(b) Where a vacancy arises within that nurse staffing profile, the responsible manager/nurse-in-charge will initiate action to advertise the vacant position internally and/or externally immediately after receiving notice of resignation or termination.

(c) The Employer shall advertise all ward based vacancies that arise where the vacancy relates to a position that but for the vacancy occurring would have been ongoing, as soon as practicable (ordinarily within eight working days).

50.2 Any notice, circular or advertisement for a position regulated by this Agreement shall specify the salary grade or sub-grade, or level applicable.

27. Delete clause 52 and insert the following:

52.1 A day off in each four or five week roster cycle will accrue for all full time Employees.

52.2 Unless the workload management arrangements are or have been varied in accordance with this Agreement or the Safe Patient Care Act:

(a) a full-time Employee rostered to work on shifts of eight hours duration will work 152 hours in each four week roster cycle to be worked as 19 days each of eight hours with an accrued day off in each four week roster cycle; and

(b) a full-time Employee rostered to work on night shifts of 10 hours duration will work 190 hours in each five week roster cycle to be worked as 19 shifts each of 10 hours with an accrued day off in each five week roster cycle.

52.3 The Hours of work at West Gippsland Healthcare Group and Mansfield Hospital shall be as set out in 52.2(a) and 52.2(b) above.

52.4 The obligations as they apply to a particular ward or unit under paragraph (a) particularly in relation to shift lengths and start and finish times may be varied in accordance with the process specified in clause 42A, subject to the following:

(a) Where short shifts are rostered they shall not exceed one short shift per "am" shift and one short shift per "pm" shift per ward or unit.

(i) To avoid doubt, a short shift is not to be rostered on a night duty shift.

(ii) Subject to paragraph 52.4(a)(iii) below, all short shifts must commence and conclude within the ordinary commencement and completion times of the “am” shift or “pm” shift.

(iii) A ward or unit may utilise one shift per day that commences before 12.00 pm and concludes during the “pm” shift (a cross-over shift). If this shift is a short shift, only one other short shift may be utilised on that day in that ward or unit.

(b) Despite the provisions of paragraph 52.4(a), in aged care and rehabilitation wards or units, the rostered short shifts shall be applied as follows:

(i) if the short shift arrangements as in place as at 31 March 2012 in aged care and rehabilitation wards/units provide for the rostering of no more than two short shifts, then short shifts shall not exceed two per day per ward/unit;

(ii) if the short shift arrangements as in place as at 31 March 2012 in aged care and rehabilitation wards/units provide for the rostering of more than two short shifts, then up to three short shifts in total can be rostered per ward/unit in any configuration over “am” and “pm” shifts.

(c) If a full time Employee works a six hour short shift that Employee will be entitled to an accrued day off as if a full shift was worked.

(d) An Employee will not be rostered to work short shifts unless they agree to work them.