Australian Nursing Federation v Peninsula Health
[2010] FWA 3957
•2 JUNE 2010
[2010] FWA 3957 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Australian Nursing Federation
v
Peninsula Health
(C2008/85)
Australian Nursing Federation
v
Eastern Health
(C2008/2454)
Health and welfare services | |
COMMISSIONER CRIBB | MELBOURNE, 2 JUNE 2010 |
Alleged dispute concerning wages.
[1] These matters concern applications by the Australian Nursing Federation (ANF) alleging underpayments of various nurses by Eastern Health and Peninsula Health during October 2007.
[2] The Victorian Hospitals’ Industrial Association (VHIA), on behalf of the health services, rejected the allegations.
[3] In the circumstances of these matters, a summary of the evidence and submissions is not necessary. In any event, they are well known to the parties. However, all of this material has been taken account of and considered fully in reaching the conclusions sent out below.
[4] The two applications were heard together. This decision, therefore, deals with both applications.
INTRODUCTION
[5] Section 507(2) of the Workplace Relations Act 1996 (the Act) sets out the circumstances under which payments are prohibited or may be permissible in relation to an employee engaged in industrial action. In relation to this section, it was agreed 1 between the parties that the Tribunal would utilise particular documents in reviewing the alleged underpayments which were the subject of grievances by the employees concerned. These documents are:
- The factual matrix. 2
- The Workplace Ombudsman’s guide. 3
- The letter from the Workplace Ombudsman to the ANF dated 4 August 2008. 4
- The VHIA/ANF review principles. 5
[6] The VHIA also included in their written material the relevant VHIA bulletins dated 8 October 2007, 16 October 2007 (two), 17 October 2007, 18 October 2007 and 19 October 2007. 6
[7] The key documents regarding these applications are the Workplace Ombudsman’s Guide and the letter of 4 August 2008, both of which set out the Workplace Ombudsman’s approach to s.507(2) of the Act. 7 The letter of 4 August 2008 expanded on parts of the Guide – those dealing with the criteria for determining whether an employee was engaged in industrial action and the time period. It is worth setting out the relevant parts of the Workplace Ombudsman’s letter:
“2. WO's approached to section 507(2).
2.1 Section 507(2) should be approached in a common sense way.
2.2 What is important is the industrial action actually being engaged in by the employees and when it is being taken.
2.3 Accordingly, it is very important that the employer has evidence that an employee was actually engaging in industrial action, before applying section 507(2) and, to use a colloquial phrase, “docking their pay”.
2.4 In particular, the WO would expect that pay will be docked from an employee if, and only if, the employer has evidence to show:
2.4.1 the particular employee actually, themselves, engaged in industrial action. Often this requires making enquiries of each employee concerned;
2.4.2 for all of the period for which the employee engaged in the industrial action if the period was in excess of four hours on the day; and
2.4.3 for each day the employer is docking pay.
2.5 The WO would not consider that there was sufficient evidence to dock an employee's pay just because the employee:
2.5.1 was a member of the group engaged in, supporting or calling for industrial action; or
2.5.2 said they supported the industrial action campaign (although they were not actively engaged in industrial action). We would expect evidence of a course of action by the employee limiting the performance of duty, or refusal of a specific direction to perform some duty or task.”(my emphasis)
Accordingly, it is the WO’s approach that for each and every application of section 507(2) the employer requires specific and particular evidence:
• that the particular employee is actually engaged in industrial action - that is, specific evidence with respect to a course of action by the employee limiting the performance of duty, or refusal of a specific direction to perform some duty or task; and
• that the particular employee engaged in that industrial action for each period in excess of four hours - that is, specific evidence with respect to each and every period of four hours for which pay is withheld.” 8
[8] In essence, the parties have requested the Tribunal to apply the Workplace Ombudsman’s letter together with the Workplace Ombudsman’s Guide and the VHIA/ANF review principles to the documentation provided by the health services, to determine whether or not there have been the underpayments claimed.
[9] It is apparent from the material before me that both health services established internal processes on the basis of advice from the VHIA and the Workplace Ombudsman. 9 In the case of Eastern Health, Managers and Supervisors were provided with a guide as to how to identify, on an individual basis, which employees were taking industrial action.10 The guide included the requirement to identify whether or not each nurse was performing their full range of duties. Once this was ascertained, a set form of words was to be read to the employee which included a direction that the employee perform all of their duties in the usual manner including the duty which had been identified as banned. The witness statements and other material provided confirmed that this was the approach that was followed.11
[10] Given this process and applying the required guide and principles to the material provided by Eastern Health, it is likely that, where it can be established on the documentation that an individual nurse has been asked directly to, for example, open a bed or admit a patient, and this had not been agreed to by the nurse, this situation would meet the requirements of the Workplace Ombudsman’s Guide and letter of 4 August 2008. In this case, there would not have been an underpayment.
[11] With Peninsula Health, a different process of identifying industrial action and ascertaining if employees were participating and, if they were, were they going to continue the bans in their area was undertaken. It appears that it had been agreed locally between Management and the ANF that employees in a ward or department would meet as a group when visited by the Management representatives. 12 Staff were asked if they were taking part in the industrial action, which was identified, at that time. Those who stated that they wished to participate in industrial action had their names taken. Employees were told that, if they did not wish to participate in industrial action, they should notify the Manager within half an hour. If they did, their pay was not docked.13
[12] On the basis of the process adopted by Peninsula Health, it is likely that, where the documentation established that each of the nurses (albeit in a group) were asked if they were taking industrial action, which had been identified, (beds were closed) and individuals said directly that they were, there was no underpayment in these situations in accordance with the Workplace Ombudsman’s Guide and letter of 4 August 2008. 14 Where the situation was that an employee refused to give their name, after the industrial action had been specified, but then did not contact the Manager to say that they did not wish to participate in industrial action, it is likely that no underpayment occurred. This is because, by refusing to give their names but then not notifying the Manager that they did not wish to participate in industrial action, each of these employees, effectively, indicated to the health service that they wished to participate in industrial action.
[13] Finally, with respect to the material before me, there are a number of spreadsheets that have not been accompanied by separate witness statements from the authors of these spreadsheets. Such a situation, usually, would result in little weight being placed on those particular spreadsheets. However, given the nature of these matters and the inherent sensitivities, I am prepared to accept the spreadsheets that are not accompanied by a witness statement on the same basis as those that are. To do otherwise would seem to be unfair. The ANF, in its submissions, did not challenge the spreadsheets per se – rather, that there was no accompanying witness evidence. It is noted that none of the documentation before me, from any of the parties, is sworn evidence.
CONCLUSIONS
[14] Applying the agreed documents set out above, to the facts contained in the material before me, I find the following:
1. Eastern Health
(a) Peter James Centre
- E. Ong -17/10/07, 18/10/07 and 19/10/07 (3 x 4 hours = 12 hours pay). Ms Blencowe’s statement indicated that each of the nurses were asked to open the bed. If the nurse failed to agree, the details were recorded on the spreadsheet. 15 When directed to open a bed (on 18 and 19 October 2007) and not to refuse admissions (on 17 October 2007), Ms Ong did not agree.16 This constitutes specific evidence “of a refusal of a specific direction to perform some duty or task”,17 thereby meeting the Guide of the Workplace Ombudsman and the letter dated 4 August 2008.18
- L. Dalton -18 October 2007 – 4 hours pay. The spreadsheet does not state the type of industrial action nor the response of Ms Dalton to the direction to work. It does indicate that the reason given for the industrial action was “support ANF I.A”. 19 On the basis of the Workplace Ombudsman’s Guide and the letter of 4 August 2008, it would appear that there is not specific and particular evidence with respect to Ms Dalton.20 Therefore, I find that Ms Dalton was underpaid on 18 October 2007.
- E. Theodore – 18 October 2007 – 4 hours pay. The spreadsheet does not indicate the type of industrial action. It does record Ms Theodore’s response as “Not in a closed bed” and “Support ANF”. 21 I am of the view that the details recorded on the spreadsheet do not meet the Workplace Ombudsman’s Guide and the letter dated 4 August 2008. Therefore, I find that Ms Theodore was underpaid on 18 October 2007.22
- Wai Wong (Esther Wong) – 18 October 2007 – 4 hours pay. The spreadsheet does not record the type of industrial action but does indicate Ms Wong’s responses as “Not in a closed bed” and “Following ANF”. 23 I do not consider that the requirements of the Workplace Ombudsman’s Guide and the letter of 4 August 2008 have been met.24 Therefore, I find that Ms Wong was underpaid on 18 October 2007.
- L. Martin – 17 October 2007 – 4 hours pay. The spreadsheet records the industrial action as “Refusing Admission” and the response to the direction to work was “ANF resolution”. 25 As there was no agreement by Ms Martin to admit patients, the criteria set out in the Workplace Ombudsman’s Guide and the letter of 4 August 2008 have been met.26 Therefore, I find that Ms Martin was not underpaid on 17 October 2007.
- A. Bowles – 17 October 2007 – 4 hours pay. The spreadsheets contain the same details for Ms Bowles as for Ms Martin. 27 For the reasons set out in the paragraph above, I find that Ms Bowles was not underpaid on 17 October 2007.
- R. Mahriff – 19 October 2007 – 4 hours pay. The spreadsheet records the industrial action as “Beds closed” and the reason given by Ms Mahriff as “Industrial Action”. When asked to re-open the bed(s), the response was recorded as “ANF Bans”. 28 In my view, the requirements of the Workplace Ombudsman’s Guide and the letter of 4 August 2008 have been met.29 Therefore, I find that Ms Mahriff was not underpaid on 19 October 2007.
(b) Angliss Hospital
- S. Washbourne – 19/10/07, 22/10/07, 23/10/07 and 24/10/07 (4 x 4 hours = 16 hours pay). With respect to 19/10/07, the spreadsheet refers to “As per Sheet 1”. 30 There are no details of the alleged industrial action, the reason given by the nurse or the nurses’ exact response when directed to work on this spreadsheet. Further, spreadsheet number 1 does not appear to have been included in the documentation. Therefore, as there is no specific evidence relating to Ms Washbourne for 19 October 2007, the guidelines of the Workplace Ombudsman have not been met. I find that Ms Washbourne was underpaid for the period 1.15 pm to 5.15 pm on 19 October 2007.
In terms of 22 October, 23 October 2007 and 24 October 2007, the spreadsheets record Ms Washbourne as “refusal to admit and perform elective surgery” (22 October 2007), “refusal to admit and undertake surgery” (23 and 24 October 2007). 31 These responses meet the guidelines of the Workplace Ombudsman as set out in the Guide and the letter dated 4 August 2008 as they constitute a refusal of a direction to perform some duty or task.32 Therefore, I find that there was no underpayment of Ms Washbourne on 22 October, 23 October and 24 October 2007.
- P Klemm – 19 October, 23 October and 24 October 2007 (3 x 4 hours = 12 hours pay). The same circumstances and recordings on the spreadsheet apply to Ms Kleem as applied to Ms Washbourne. 33 I will not repeat what is set out in the paragraph above. Therefore, I find that Ms Klemm was underpaid from 1.15 pm – 5.15 pm on 19 October 2007 but was not underpaid on 23 October 2007 or 24 October 2007.
(c) Box Hill Hospital
- A. Shergiss – 18 October 2007 – (4 hours pay). The spreadsheet records that a theatre session was cancelled and that Mr Shergiss’ response when directed to work was “would support bans”. As Mr Shergiss did not agree to the theatre session being performed, there is specific evidence of a refusal of a direction to perform some duty or task. 34 As the Workplace Ombudsman’s guidelines and letter of 4 August 2008 have been met, I find that Mr Shergiss was not underpaid on 18 October 2007.
- R. Macklin – 19 October 2008 (4.25 hours pay). The spreadsheet indicates “Bed closure x 5” and that Ms Macklin’s response when directed to work was “Beds remain closed”. 35 As Ms Macklin did not agree to re-open the beds, the guidelines of the Workplace Ombudsman and the letter dated 4 August 2008 have been met.36 Therefore, I find that Ms Macklin was not underpaid on 19 October 2007.
- M. McDonald – 19 and 20 October 2007 (2 x 4 hours – 8 hours pay). On 19 October 2007, the spreadsheet records “Beds closed” and Ms McDonald’s reason as “support ANF claim”. When requested to open the beds, the spreadsheet indicates that Ms McDonald’s response was “keep bed closed”. 37 These statements constitute a refusal of a specific direction to perform some duty or task.38 Therefore, I find that Ms McDonald was not underpaid on 19 October 2007.
With respect to 20 October 2007, the spreadsheet records “Beds closed” but does not indicate the reason given by Ms McDonald or her response when requested to open the bed. 39 Given the absence of this information, in accordance with the Workplace Ombudsman’s guidelines and the letter dated 4 August 2008,40 it is not possible to find, specifically, that Ms McDonald was actually engaged in industrial action. Therefore, I find that Ms McDonald was underpaid on 20 October 2007.
- G. Dowell – 19 October 2007 (4 hours pay). The spreadsheet records the type of industrial action as “Beds closed” and responses of “Support ANF claim” and “keep bed closed” with respect to Mr Dowell. 41 Given these statements, it is my view that the guidelines of the Workplace Ombudsman and the letter dated 4 August 200842 have been met as Mr Dowell’s response to the request to open the beds from Ms Blencowe was that the beds were to be kept closed. Mr Dowell was thereby refusing a specific direction to perform some duty or task43 Therefore, I find that Mr Dowell was not underpaid on 19 October 2007.
- M. Rohloff – 18 October 2007 (4 hours pay). The spreadsheet records the industrial action as “Closed bed”. It also records Ms Rohloff’s response as “Industrial Action” and “Do not wish to open beds x 1”. 44 I am of the view that Ms Rohloff’s response to the request to re-open the bed meets the Workplace Ombudsman’s guidelines and the letter dated 4 August 2008 as Ms Rohloff’s response constitutes a refusal of a specific direction to perform some duty or task.45 Therefore, I find that Ms Rohloff was not underpaid on 18 October 2007.
- M. Derbyshire – 19 October 2007 (4 hours pay). Ms Derbyshire appears on the spreadsheet with the number 6 in the right hand corner. 46 The same spreadsheet/circumstances apply to Ms Derbyshire as did to Mr Dowell (above). I will not repeat the discussion with respect to Mr Dowell but, for the same reasons, I find that Ms Derbyshire was not underpaid on 19 October 2007.
- H. Saunders – 20 October 2007 – (4 hours pay). Ms Saunders appears on the same spreadsheet as Ms McDonald and the entry against her name is in the same terms as Ms McDonald’s. 47 Therefore, for the same reasons as set out above for Ms McDonald, I find that Ms Saunders was underpaid on 20 October 2007.
(d) Maroondah Hospital
- C. Buschgers – 17 October 2007 (4 hours pay). The spreadsheet records that “Refused to open bed” with the reason given “Industrial Action”. The response given when requested to open the bed was “Has an empty bed”. 48 On the basis of the responses given by Ms Buschgers, it appears that, as per the Workplace Ombudsman’s Guide and letter of 4 August 2008,49 Ms Buschgers refused a specific direction to perform some duty or task. Therefore, I find that Ms Buschgers was not underpaid on 17 October 2007.
- S. Johnson – 17 October, 20 October, 21 October and 22 October 2007 – night duty. The spreadsheet indicates “bed closure”, supporting industrial action” and “not willing to open beds”. 50 On the basis of the response given to the direction to work, this situation meets the Workplace Ombudsman’s Guide and letter dated 4 August 2008 with respect to non payment.51 However, the Guide and letter require that there is specific evidence with respect to each and every period of four hours for which pay is withheld.52 The evidence before me does not support the deducting of more than one four hour period. It is unclear as to how much of Ms Johnson’s night shift was not paid on 17, 20, 21 and 22 October 2007. I find that if Ms Johnson was underpaid more than four hours for each of those night shifts, restitution should be made for any underpayment in excess of four hours for each of the night shifts in question.
- M. Edwards – 17 and 18 October 2007. It appears from the two spreadsheets that Ms Edwards was asked about industrial action twice on both days – at 11.15am and 5.00pm. At 11.15am on both days, the spreadsheet indicates that “Beds closed,” “Industrial bans” and “You know my answer – No.” When asked at 5.00pm on both days the same set of questions, Ms Edwards’ responses were: “Industrial action” and “Bed to stay close.” On the basis of these responses and applying the Workplace Ombudsman’s Guide and letter of 4 August 2008, I find that Ms Edwards has not been underpaid for 17 and 18 October 2007.
Other employees
(a) Peter James Centre
[15] It was alleged by the ANF that 17 of its members at the Peter James Centre were underpaid. 53 For only one employee (E. Ong) were details provided by the ANF of the quantum of the alleged underpayment and the date(s) on which this occurred.54
[16] However, six of these employees (L. Dalton, E. Theodore, Wai Wong, L. Martin, A. Bowles and R. Mahriff) did appear on Eastern Health’s spreadsheets. 55
[17] The following employees did not appear on the spreadsheets nor was any information provided by the ANF as to the quantum of the alleged underpayment nor the date(s) on which this occurred:
- Hong Tee
- Tracy Gatherole
- Kristy Horder
- Torill Alexander
- Phin Hoon Kok
- Judith Fallor
- Julianna Perira
- Raija Rama
- Linda Chan
- Li Ping Zhao
[18] Unfortunately, due to the absence of any information from either party regarding these employees, I am unable to make any findings regarding their alleged underpayments.
(b) Angliss Hospital
[19] There was no spreadsheet provided which listed Jillian Rankin nor any information from the ANF regarding details of the alleged underpayment. In these circumstances, I am unable to make a finding regarding Jillian Rankin.
(c) Box Hill Hospital
[20] It was indicated by Eastern Health that Gemma Jordan, Catherine Emery, and Jennita Ree (Reem) were not listed as Eastern Health employees on the payroll system. 56 Therefore, I am unable to progress matters with respect to these employees.
[21] Eastern Health has also stated that the docking of Helen Farrugia and Brenda Hughes was reversed and that there was no docking of pay for Kaye Bennison. 57 On this basis, the claims regarding these employees are unable to be progressed further.
(d) Maroondah Hospital
[22] Eastern Health contended that the docking of Brenda Moon had been reversed and that Jacqui Bendle’s pay had not been docked. In this situation, I am unable to progress matters relating to these employees. 58
[23] With respect to Linda McKay, she does not seem to appear on any of the spreadsheets provided nor was there any information provided by the ANF regarding the extent of the alleged underpayment nor the date(s) on which it occurred. Therefore, due to the absence of any information from either party, I am unable to make any finding regarding Linda McKay.
2. Peninsula Health
[24] The same documents, principles and approach that underpin the findings in respect of Eastern Health have been applied with regard to the alleged underpayment of various nurses employed by Peninsula Health during October 2007. I will deal with each of the alleged underpayments in turn.
- S. Adlam-Smeele – 22 October 2007 – 4 hours pay. The statement of Ms Williamson and Ms Bennett, together with Ms Bennett’s witness statement, relate to Ms Adlam-Smeele. 59 Ms Bennett’s statement indicates that the staff on ward 46N were asked, as a group, if there were empty beds. The response was that they had empty beds. Ms Adlam-Smeele was one of the nurses whose name was taken because she said that she wished to participate in industrial action.60 In accordance with the Workplace Ombudsman’s Guide and letter of 4 August 2008,61 as Ms Adlam-Smeele stated that she wished to participate in industrial action, I find that she was not underpaid on 22 October 2007.
- S. Deveza, A. Donaldson, S. Ginnana and A. Kay – 23 October 2007 – 4 hours pay for each employee. There does not appear to be any specific reference to these employees in the primary documents or the witness statements provided by the health service. As the documentation does not establish that these employees were engaged in industrial action, as set out in the Workplace Ombudsman’s Guide and letter of 4 August 2008, 62 I find that each of these employees was underpaid 4 hours pay for 23 October 2007.
- H. Condon, T. Ashton, P. Covacaud, D. Durling, R. Evans, C. Gage, J. Gosper, J. Heyward, J. Le Poidevin, C. Leask, Z. Moore, P. Palma and S. Simpson – 22, 23 and 24 October 2007 – 12 hours pay in total for each employee. These employees were rostered on each of the days in question. There is a statement by Mr Arrebola and Mr Saliba and also a witness statement by Mr Arrebola. 63 In his statement, Mr Arrebola asked the nurses if they were taking part in industrial action as there were a number of beds closed. The response was one staff member reading a note on behalf of all staff that they were there to care for patients. Staff were told that they needed to advise their Manager within half an hour if they did not wish to participate in industrial action. If not notified to this effect, staff were told that their names would be taken from the allocations book.64 It is the names listed above that were taken. As these employees did not advise that they did not wish to participate in industrial action, in the knowledge that their names would be taken from the allocations book, they, in effect, indicated in a non verbal manner that they wished to participate in industrial action. On the basis of the Workplace Ombudsman’s Guide and letter of 4 August 2008,65 I find that each of these employees was not underpaid by 12 hours in total on 22, 23 and 24 October 2007.
[25] As set out in paragraph five above, the Tribunal was requested to review the alleged underpayments of a number of nurses using the framework given to s.507(2) of the Act by the Workplace Ombudsman and the VHIA/ANF review principles. It has to be said, from the Tribunal’s perspective, that this decision is not necessarily reflective of its view of the application of s.507(2) of the Act. It is simply a review of the application of the Workplace Ombudsman’s documentation and the VHIA/ANF review principles to the factual matrix as applied at Eastern Health and Peninsula Health in October 2007, as requested by the parties.
1 Transcript PN 114 - 238
2 Exhibits A1, A2, R3 and R4
3 Exhibit R1
4 Exhibit R2
5 Exhibit A3
6 Exhibit R3 and R4
7 Exhbits R1 and R2
8 Exhibit R2
9 Attachments to Exhibit R2 and R3
10 Exhibit R4 at Attachments 1 and 2
11 Ibid at Attachments 4, 6 and 7
12 Ibid at paragraph 9
13 Ibid at paragraph 10 and 11 and Attachment 10
14 Exhibits R1 and R2
15 Exhibit R4 at Attachment 7 – paragraph 7
16 Ibid at Attachment 8
17 Exhibit R2
18 Exhibit R1 and R2
19 Exhibit R4 at Attachment 8
20 Exhibits R1 and R2
21 Exhibit R4 at Attachment 8
22 Exhibits R1 and R2
23 Exhibit R4 at Attachment 8
24 Exhibit R1 and R2
25 Exhibit R4 at Attachment 8
26 Exhibits R1 and R2
27 Exhibit R4 at Attachment 8
28 Ibid
29 Exhibits R1 and R2
30 Exhibit R4 at Attachment 8
31 Exhibit R4 at Attachment 8
32 Exhibits R1 and R2
33 Exhibit R4 at Attachment 8
34 Exhibit R2
35 Exhibit R4 at Attachment 8
36 Exhibits R1 and R2
37 Exhibit R4 at Attachment 8
38 Exhibit R2
39 Exhibit R4 at Attachment 8
40 Exhibits R1 and R2
41 Exhibit R4 at Attachment 8
42 Exhibits R1 and R2
43 Exhibit R2
44 Exhibit R4 at Attachment 8
45 Exhibits R1 and R2
46 Exhibit R4 at Attachment 8
47 Exhibit R4 at Attachment 8
48 Exhibit R4 at Attachment 8
49 Exhibits R1 and R2
50 Exhibit R4 at Attachment 8
51 Exhibits R1 and R2
52 Exhibit R2
53 Exhibit A2 at paragraph 1
54 Ibid at paragraph 8
55 Exhibit R4 at Attachment 8
56 Ibid
57 Ibid
58 Ibid
59 Exhibit R3 at Attachment 10
60 Ibid – Ms Bennett’s witness statement as paragraphs 4, 5 and 8
61 Exhibits R1 and R2
62 Ibid
63 Exhibit R3 at Attachment 10
64 Ibid – Mr Arrebola’s witness statement at paragraphs 4, 5, 8 and 9
65 Exhibits R1 and R2
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