Health Services Union v Latrobe Regional Hospital

[2017] FWC 3571

[2017] FWC 3571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Health Services Union
v
Latrobe Regional Hospital
(C2015/5284)

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 11 JULY 2017

Alleged dispute concerning classification of staff.

[1] The dispute between the Health Services Union (the HSU, the Applicant, the union) and Latrobe Regional Hospital (LRH, the Respondent, the Hospital) concerns the classification of a particular group of employees under the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers and Administrative Offices) Multiple Enterprise Agreement 2011 – 2015 1 (the Agreement).

[2] The dispute notification lodged by the union listed 10 employees. The union advised that one of the employees in question had been subsequently reclassified. There was no objection from the Hospital to the union amending the application, under section 586 of the Fair Work Act (the Act) to add Ms Jody Smith.

[3] The union contended that these employees (affected employees) had been incorrectly reclassified as Orderly/Cleaners and sought that these employees be classified as Food and Domestic Services Assistants (FDSA) and that they be paid the multi-skilling allowance, from the first full pay period after 13 June 2015. 2 The Hospital disputed the union’s claim that these employees were incorrectly classified.3

Background and Chronology

[4] Two of the Hospital’s departments are the Food Services Department and the Environmental Services Department. In the past, within both of these departments, there were employees classified as Food and Domestic Services Assistants (payroll code HA1) and Patient Services Assistants. 4 The 2011 - 2015 Agreement was approved around September 2012 and it contained a process for reviewing the classifications in the Agreement with recurrent funding to be provided to fund the outcomes of the review. Between late 2013 and mid 2014, the union and the Victorian Hospitals’ Industrial Association (VHIA) negotiated a variation to the Agreement which included the creation of a new multi-skilling allowance for employees classified as Food and Domestic Services Assistants (clause 187) together with a number of changes to the pay rates and structures. The annual $500 allowance for full-time employees (pro rata for part-time employees) was introduced effective from the first pay period on or after 13 June 2014 and was payable then and again on 13 June 2015. The first annual payment was paid by the Hospital in December 2014 to all employees classified as FDSA.5

[5] In late February 2015, the Hospital received advice from the VHIA which brought to its attention the correct circumstances in which the multi-skilling allowance was to be paid. Further clarification was provided in late March 2015 which was that the employee must be undertaking the duties of a FDSA (HA1) in order to be paid the allowance. 6 On receiving this advice, the Hospital checked the duties and classification of the FDSA’s. It was the Hospital’s contention that it found that the FDSA’s in the Environmental Services Department should have been classified as Orderly/Cleaner, rather than as FDSA’s.7

[6] The Hospital notified the employees concerned on 25 May 2015 about the change in their classification from FDSA to Orderly/Cleaner (payroll code IJ1). 8 This was done by placing a letter in the plastic pockets in the storeroom of all of the affected employees.9 These particular employees, therefore, did not receive the second multi-skilling allowance annual payment which was payable on 13 June 2015. The letter included the statement that the change in their classification “does not affect your pay rate, current entitlements or your employment terms and conditions”.10

Evidence

Health Services Union

Ms Boothman

[7] Ms Boothman commenced as a casual Food and Domestic Services Assistant, in Environmental Services, in around 1998. Around 2000, Ms Boothman became a permanent part-time employee as a Food and Domestic Assistant/Holiday Reliever in the Environmental Services Department and then a full-time Food and Domestic Services Assistant in 2012. Ms Stoiljkovic was the Environmental Services Supervisor throughout Ms Boothman’s three positions. 11 Ms Boothman stated that, although the Position Description she had provided for her full-time position stated that she reported to the Food Distribution Manager, she had reported to Ms Stoiljkovic.12

[8] With respect to the duties that she performed as a Food and Domestic Services Assistant, it was Ms Boothman’s evidence that she:

• Distributed meals (only if requested by nursing staff) and served food from the kitchenettes. 13



• In the wards, cleaned ward based staff and patient kitchen areas (kitchenettes used by staff, patients and visitors) and floors and washed dishes. 14 This included cleaning sinks, bench tops, microwaves and removing old and out of date food from fridges (handling food) and defrosting and cleaning staff and patient fridges. This did not include checking fridge temperatures which was done by kitchen staff.15 In addition, Ms Boothman would clean areas where food was consumed (over bed tables and tables in kitchenette).16



• From time to time, Ms Boothman would also make tea and coffee for patients, fill up water jugs, hand out sandwiches and juice in between meal times and removed food trays from over-bed tables. 17



• Made beds daily. 18

[9] In terms of her signature on the Position Description (PD) attached to her witness statement, Ms Boothman recalled that she had signed the PD when Ms Stoiljkovic gave it to her. This was despite the document indicating that it had been reviewed by the Food Distribution Manager. Ms Boothman also said that she was sure about this. It was stated that the date on the PD had not been overwritten but was due to her scribble. 19 Ms Boothman could not explain as to why it looked as if the numbers 13 and 07 appeared to have been written over by numbers that seemed to have included the number 2.20 It was indicated that this document was contemporaneous and was part of the documentation she had at home in relation to her employment with the Hospital.21 It was confirmed by Ms Boothman that her payslip referred to her working in Environmental Services.22

[10] When presented with a PD, which had been provided by the Hospital and referred to the Environmental Services Manager not the Food Distribution Manager, which Ms Boothman had signed but wasn’t dated and which was on her personnel file, Ms Boothman stated that she had both documents and that her signature was on both. It was confirmed that the Review Date, on the PD which she had provided as part of her evidence, was May 2012 and the Review Date on the PD that was in her personnel file was April 2012. Ms Boothman then said that she had seen the undated one which was on her personnel file but she did not know whether she had it. Ms Boothman could not recall when she had seen it. 23

[11] It was agreed by Ms Boothman that the job description that was in her personnel file matched her duties in the Tarra Unit which she had been doing for about four years. 24 However, it was said to not detail everything that she did.25 Ms Boothman stated that the PD attached to her statement did not match the list of cleaning duties for the Tarra Unit and that she did not do all of the duties in the PD.26 It was agreed that the primary focus of her job in the Tarra Unit was not food services except for the odd bits and pieces.27

[12] Ms Boothman stated that she had never worked in the Food Services Department but that she worked in food handling services (probably as a PSA). 28 It was confirmed by Ms Boothman that she was working in the Tarra Unit prior to 13 June 2015 and that the duties set out in the list of cleaning duties attached to Ms Stoiljkovic’s statement were correct.29

[13] It was agreed by Ms Boothman that food services in the Tarra Unit were provided by catering services. Ms Boothman indicated that, when the food arrived in the Unit, she did not do anything to that food. She explained that she did not distribute the food unless the kitchen staff could not get into a room because it was isolated or because the nurses were doing a procedure. In that case, Ms Boothman would take the food in or take it in later as the nurses were too busy with other things and it helped with ward flow. Ms Boothman acknowledged that this was not part of her normal job but Ms Boothman repeated that it did help with the flow of the ward. It was also said to be better that the patient got fed rather than not fed. Ms Boothman said that she would probably do this once a day. 30 It was confirmed that the food services staff normally collected the trays with their trolley and that they reported to the Food Services Manager.31

[14] It was explained by Ms Boothman that she was required to clean the kitchenette area where the patients made bottles of milk for their babies and maybe a cup of tea for themselves. In addition, Ms Boothman said that she was required to clean the area where the patients could heat up their own meals and that, when the nurses were busy, they helped with the meals. 32 Ms Boothman also said “I know it’s not probably in black-and-white that I should do it but we do do it”.33

[15] Ms Boothman acknowledged that the Cleaning Job Procedure at the Tarra Unit 34 showed that she cleaned a large number of areas and that it did not include food preparation. It was Ms Boothman’s evidence that the black-and-white said that it was cleaning but that there was also a small amount of food handling and other things as well. These included throwing out food that was past its use by date and passing meals to patients. Ms Boothman agreed that these were not part of her usual duties but said that, if they just stuck to the cleaning procedure, the ward would not function properly. It was stated that she was not required to do it but that she did do it.35 It was confirmed by Ms Boothman that she was not required to provide food service, including the preparation and distribution of meals and morning and afternoon teas.36

Position Description - Domestic Services Assistant (provided by the Hospital)

[16] With respect to the Position Description (PD) 37 which was in her personnel file and which was provided by the Hospital during the hearing, Ms Boothman confirmed that she had completed the mandatory safe food handling course, as set out in the PD.38 Ms Boothman confirmed that, in May/June 2015, she had an updated and current certificate. This had been done within work time.39 Ms Boothman explained that it was part of her job to hold that certificate and that, when she was first employed, she had got her safe food handling certificate. It was stated that it had been updated every year since then.40 Ms Boothman said that she believed that she used the certificate to do her job e.g. assessing use by dates and how long something might have been left out of the fridge.41

[17] In relation to the change in her classification, Ms Boothman indicated that she found the letter from Ms Stoiljkovic in her plastic pocket in the storeroom. When she had read the letter, Ms Boothman did not think that anything was going to change in relation to her pay rate and entitlements. This was said to have been confirmed by Ms Stoiljkovic when she spoke to her around that time. 42

[18] Ms Boothman did not recall any consultation process in relation to the change in her classification. 43

[19] In terms of clause 5.1 (Key Competencies), it was Ms Boothman’s evidence that examples of a strong commitment and responsiveness to customers’ needs included making a cup of tea or going into their cupboards for them or making a sandwich. In terms of the sandwich, Ms Boothman said that she did not have to make the patient a sandwich but that, if she was asked, she would go and ask the nurse and they would say to do it. 44 Ms Boothman also believed that she worked flexibly in accordance with clause 5.2 - second last dot point.45

Tarra Unit Cleaning Job Procedure

[20] It was Ms Boothman’s evidence that the Tarra Unit Cleaning Job Procedure 46 did not detail everything that she did. Rather, it was said to reflect the basic cleaning duties. Ms Boothman indicated that the Tarra Unit Cleaning Job Procedure document did not refer to working flexibly or food handling (including delivering meals to patients in isolation or who were having a procedure) or cleaning microwaves.47 Ms Boothman agreed that the cleaning procedures specified that the pantry be cleaned. It was explained that the pantry included a microwave and ice machine. Ms Boothman stated that she cleaned the microwave (where food was heated up) and that, with the ice machine, she took the ice out once a month and cleaned inside the ice machine. It was said that ice was classed as a food.48 Ms Boothman also explained that the patients in Tarra Unit ate their meals on their table or on a table in the lounge. Ms Boothman was required to clean the tables in both areas.49

Agreement Classification descriptors

[21] In relation to clause 2.6 of the Agreement Classification descriptors, (Food and Domestic Services Assistant), Ms Boothman stated that she cleaned cooking equipment (microwaves), food consumption areas and food preparation areas. 50

[22] With respect to clause 6.9.1 (Patient Services Assistant), Ms Boothman explained that she worked across three areas when she was being paid as a PSA. These were cleaning and housekeeping; food and beverage and ward support. 51 It was said that, when she took food into a patient’s room, she was not paid as a PSA.

[23] It was stated by Ms Boothman that there was probably not an expectation that she worked with food. However, Ms Boothman said that they did it to make the ward run smoothly. If they didn’t help out, it wouldn’t get done and it was part of the expectation to work as a team and flexibly. 52 Ms Boothman explained that, if she was cleaning an area and there was still a tray on the table, she would take the tray and put it onto the trolley from the kitchen and then clean the table.53

[24] Ms Boothman expressed the view that, if she didn’t make a cup of tea or get a plate of sandwiches (after asking the nurse) if requested by a patient, and filled water jugs, she would not be acting in accordance with her responsibility to be customer focused. 54

[25] Finally, with respect to the two PD’s - for a Domestic Services Assistant (provided by the Hospital) and the PD for a Food and Domestic Services Assistant (which Ms Boothman provided), it was Ms Boothman’s view that what she did each day was probably a bit of both. 55

Ms Jenkins

[26] Ms Jenkins commenced with LRH as a casual Food and Domestic Assistant on 22 March 2013. It was Ms Jenkins’ evidence that the position was not that of a PSA and she did not think that she was paid as a PSA for all of the work she did. 56 Ms Jenkins became a permanent part-time Food and Domestic Services Assistant, in the Consulting Suites, on 27 October 2014.57 When she was employed as a casual, Ms Jenkins did not believe that she was given the title of Personal Services Assistant but believed that she worked in PSA areas. She could also work as a cleaner. When she had worked in PSA areas, she had handled food. Depending on the ward, she would make toast and tea, coffee and milo and would serve porridge into bowls and put them out for patients to eat. In addition, Ms Jenkins would get the patients’ meals and, depending on the ward, would give them to the staff to give to patients or would give them directly to patients.58

[27] As well, Ms Jenkins said that she would serve water jugs to patients at their bedsides and go around asking patients if they wanted tea or coffee during their morning and afternoon breaks. When she was rostered on the chemotherapy wards, she would generally be a kind and caring person towards patients. Ms Jenkins acknowledged that that role was different to the one in the Consulting Suites. 59

[28] It was Ms Jenkins’ understanding that casuals could do cleaning work and also PSA work. Ms Jenkins did not think that it was only one or the other. Rather, it was thought to be both. 60 Ms Jenkins agreed that, in order to do PSA work, one needed a food handling certificate.61

[29] Ms Jenkins that gave evidence that it had been a job requirement for the casual position to hold a Food Safe Handling certificate. It was explained that she had obtained that certificate prior to her employment with the Hospital. This was said to have enabled her to go straight into areas in the Hospital that had food or ward-based kitchens. When she was working in the ward based kitchens, she distributed food (PSA). It was stated by Ms Jenkins that she was required to undertake training in safe food handling in September 2013 in order to keep her qualifications up to date. She had been required to do this training again in September 2014. 62

[30] It was Ms Jenkins’ belief that, when she got the job in the Consulting Suites, she was still required to hold the certificate. This was because it was the same job. Ms Jenkins stated that the job she applied for in the Consulting Suites was a Food and Domestic Services Assistant. This was said to be the contract that she signed and the job she was doing. 63 When she moved from casual to permanent, Ms Jenkins said that her classification did not change and she had expected that the role and her skills would still be within the same classification when she became permanent.64 Ms Jenkins explained that holding a Safe Food Handling Certificate enabled an employee to go into areas that served food. In addition, the certificate ensured that food safety was carried out properly e.g. food that needed to be removed from fridges; keeping fridges clean and correct food temperatures.

[31] With respect to the duties she performed, Ms Jenkins explained that she was currently performing the same duties, albeit in a reduced work area (due to a fire), that she was prior to 18 June 2015 (when she was eligible for the multi-skilling allowance). Ms Jenkins stated that the only thing that had changed was her classification - not her job. These duties were said to be the cleaning of kitchens, patient areas, waiting rooms, infectious areas and the minor procedures rooms. In addition, Ms Jenkins explained that she cleaned the microwaves and staff food preparation areas. If she was rostered in a department which had a small dining area(s) where patients ate, she would be required to clean that area(s). 65

[32] Ms Jenkins thought that, back in May/June 2015, she was probably not routinely cleaning patient areas (rooms and bedside meal trays). It was recounted that she cleaned in the doctors’ suites and had cleaned staff kitchens, microwaves fridges and defrosted fridges. 66

[33] It was Ms Jenkins’ evidence that, when she became a permanent employee, she was rostered to work in the Consulting Suites. Ms Jenkins stated that she was not doing PSA work in the Consulting Suites. However, it was explained that she was cleaning the fixtures in the kitchen and the microwaves and was throwing out food. Ms Jenkins acknowledged that the cleaning she did in the Consulting Suites was general cleaning but that cleaning kitchens was part of her role as a PSA. Ms Jenkins stated that she no longer prepared or served food directly to patients. 67

[34] As a result of the fire, Ms Jenkins indicated that for five hours a week, she now worked anywhere in the Hospital. In relation to some of the Units she worked in (Tanjil, Tarra, Tyers, Allied Health), it was Ms Jenkins’ evidence that these Units had catering staff. 68

[35] With respect to the Consulting Suites Cleaning Procedure, 69 Ms Jenkins observed that it did not include defrosting fridges, removing old food from the fridges and cleaning microwaves. Ms Jenkins stated that she had not seen the document before but agreed that it was her work schedule and that it was very close to her general duties.70 It was explained by Ms Jenkins that her regular duties included cleaning patient waiting and procedure rooms, mammogram and ultrasound rooms, prosthetics patient areas (including the workshop), glass cleaning, staff kitchens, microwaves and food preparation areas within the staff areas. Ms Jenkins said that, in the staff kitchens, she cleaned all the benches at the tables where the staff ate and the microwaves, cleaned and defrosted the fridges and threw out any rotten food and made sure that it was a safe and hygienic environment. It was agreed that she did not serve food to patients in the Consulting Suites.71

[36] In relation to Consulting Suites 1 and 2, Ms Jenkins explained that, from the kitchenette, meals were provided to patients in the waiting room. The kitchens in Consulting Rooms 3 and 4 were said to be a staff meals area where staff heated up food and used the fridges and microwaves, which she cleaned. Also, in the staff room, staff consumed food there which was cleaned by Ms Jenkins. 72

[37] Ms Jenkins gave evidence that she had received Ms Stoiljkovic’s letter about the reclassification, which was dated 25 May 2015, on 18 June 2015. Ms Jenkins had found the letter in her plastic pocket in the storeroom and stated that she routinely checked the pocket weekly. It was stated that she did not have any leave between 25 May 2015 and 18 June 2015. 73 Ms Jenkins said that she believed that the letter had been put in her pocket after she had checked it the week before.74

[38] Ms Jenkins recalled that, when she read the letter, she had immediately thought that the Hospital was trying to change the classification to avoid paying the multi-skilling allowance. It was stated by Ms Jenkins that she was trained to do the work and she agreed that, at that point in time, she was not doing the work. 75 After she had received the letter, Ms Jenkins recalled that she had contacted Ms Stoiljkovic, HR, VHIA and the union. Ms Jenkins thought that she had contacted the union the same day she had received the letter.76

[39] With respect to the classification descriptors in the Agreement, Ms Jenkins believed that she was classified as a Food and Domestic Service Assistant – which was under the Food Services stream. If she had been incorrectly classified, Ms Jenkins thought that the Hospital would consult with staff and explain the new classification and the actual role and duties they would be required to perform. 77 Ms Jenkins agreed that, when she was reclassified, neither her job, hours, where she worked, to whom she reported nor the Departmental structure, changed. Ms Jenkins also agreed that all that was changed was her pay code but stated that she then became not entitled to the multi-skilling allowance.78

[40] It was stated by Ms Jenkins that she was concerned that her skills and qualifications that had enabled her to work in all areas she had been trained for, would be disregarded by the Hospital. Ms Jenkins agreed that she had applied for the position in the Consulting Suites. However, Ms Jenkins said that the position she applied for was a Food and Domestic Services Assistant with the classification that went with it at that time. 79 Ms Jenkins explained that, as there were now two different classifications, she was no longer qualified to go into those wards where there was food handling/food service because she was no longer classified as that person. It was indicated that, if she would like extra overtime, she would not be entitled to apply for any areas where there were ward-based kitchens because she was no longer under that classification. Casuals, instead, would be offered that work.80

Mr Rowley

[41] Mr Rowley is an Industrial Organiser with the HSU who was responsible for organising in the Gippsland and Latrobe Valley regions. 81

[42] The normal procedure in relation to Hospital and organisational change was explained by Mr Rowley as was the internal union process for dealing with issues raised by members. 82 Mr Rowley indicated that the members at LRH were very vocal in the union and so he would be aware if there was an upcoming issue at the Hospital.83 It was recalled that, in relation to this issue, the first he knew about it was when he received an alert, on 18 June 2015, from the union’s call centre.84

[43] It was recalled that, on 20 July 2015, he had attended a meeting with Mr Ambrosini about the classification change. It was said that the Hospital had stated that advice had been received from the VHIA that the Hospital did not have to pay the multi-skilling allowance as it did not fit with the employees’ concerned classification. Mr Rowley said that he had asked if the change had been made to avoid paying the multi-skilling allowance. The Hospital was recalled as having said that notice should have been given to the union but that the reclassification was not to avoid payment of the multi-skilling allowance. Mr Rowley stated that the union and the Hospital had then agreed to disagree on this issue. 85

[44] With respect to the consultation clause in the Agreement (clause 76), it was Mr Rowley’s view that the change in the classification restricted his members from coming in on a cleaning job or a food services position. Mr Rowley understood that because they were dual classified, the employees would get called in for the two different roles. Therefore, as the change financially disadvantaged the employees and the employees would not be getting the second payment, it was a major workplace change. This was said to be really important to low paid workers. 86

[45] Mr Rowley indicated that that he was not aware if the job had changed. It was stated that it was his understanding that the employees were doing dual roles (cleaners and food services assistants). The change restricted the employees’ classification to one role which was a very important issue, given that the employees were on very low wages. Mr Rowley said that, from his perspective, there was a workplace change, without consultation, which would have a financial impact on the employees. 87

[46] Further, Mr Rowley agreed that if, an employee had the ability to work in food services and general services and was reclassified so that they could only work in general services, this was a major change in relation to the structure. 88

Mr Eden

[47] Mr Eden is Assistant Secretary of the HSU Victoria No.1 Branch and has worked as an Enrolled Nurse or union official since 1988. 89

[48] Mr Eden outlined the development of the food and domestic services assistant classification and highlighted that these employees were encouraged to do safe food handling courses. This was said to be because, in addition to cleaning, these employees also delivered meals and other similar duties. 90

[49] In relation to the current enterprise agreement, Mr Eden indicated that he had done an extensive classification review and had been involved in negotiations with the VHIA regarding varying the Agreement to incorporate the outcomes of the classification review and to apportion the earmarked funding. It was said that he had found that food and domestic services employees were pretty accurate throughout Victoria. Mr Eden stated that Food and Domestic Services Assistants were a key priority in the negotiations in order to acknowledge the big changes in their position. 91

[50] It was also Mr Eden’s view that reclassifying 40 employees from one stream to another stream constituted major workplace change. 92 In this situation, Mr Eden said that he would expect to have received an impact statement and that there would be a consultation process with both the union and the employees concerned.93 The union was said to have expected a change impact statement because the employees’ classification had changed and due to the financial impact of the change on the employees (a reduction of $500 in income). Mr Eden conceded that it may not have been an organisational change in relation to the structure.94

[51] In Mr Eden’s experience, it was said to be rare for cleaners and orderlies to have any involvement in food -related activities due to the introduction of food handling legislation. It was stated that food and domestics now did duties which cleaners simply did not do. These included monitoring food products in kitchen environments (checking use by dates) and disposing of food if needed. 95 Mr Eden explained that there were different types of Food and Domestic Services Assistants. These were said to range from purely working in a commercial kitchen type environment to being ward based and responsible for cleaning food preparation and consumption areas (kitchenettes) and serving and delivering meals.96

[52] It was Mr Eden’s understanding that the Hospital employed cleaners or orderlies who also undertook food related activities such as cleaning kitchenettes etc. Mr Eden was not aware that, in Environmental Services, the Hospital also employed Patient Services Assistants. 97

[53] The requirement in the multi-skilling allowance of “the need to perform incidental or peripheral duties across multiple disciplines, roles, areas” 98 was said to be recognition of the need to perform incidental and peripheral duties.99 It was Mr Eden’s view that the multi-skilling allowance clause was in relation to the fact that the employees were already working flexibly – different food domestics working in other disciplines (environments).100 Mr Eden stated that he had seen food and domestics working in a ward based environment who were required to do laundry in between taking out foodstuffs, cleaning kitchens or making teas. He had also seen food and domestics involved in cleaning in between working in kitchenettes and delivering meals.101

[54] The phrase “different disciplines” was said to refer to multi-skilling as food and domestics were now typically ward based where they served teas and coffees etc. ‘Food and domestic’ was stated to be the same classification and not two classifications. 102 With respect to ‘food’, Mr Eden indicated that there was a common theme throughout the classification whether the employee worked in a kitchen or a ward based environment. These employees were described as multi-skilled.103

Latrobe Regional Hospital

Ms Mai

[55] Ms Mai is the Human Resources Manager with the Hospital. 104

[56] It was Ms Mai’s evidence that the Hospital had made an administrative error by historically coding/classifying the employees who worked in the Environmental Services Department as Food and Domestic Services Assistants – HA1. This classification code was said to cover both the Food Services Department and the Environmental Services Department even though the employees performed different tasks. The Environmental Services employees were stated to predominantly perform general cleaning duties but not food duties. It was recalled that the HA1 classification was clarified to be across multiple disciplines and flexible working within the cleaning and food services. However, the Environmental Services Department and the Catering Department were said to be two very different departments. Ms Mai said that environmental staff did not prepare or deliver food or work in the kitchen (except for those classified as PSA’s). 105

[57] Ms Mai contended that the change in the classification was not a major organisational change because it was an administrative error. This was due to Food and Domestic Services Assistants being coded as HA1 – which did not reflect the duties performed. Rather, the Orderly/Cleaner (IJ1) classification was said to more accurately reflect the duties performed. 106 It was stated that there was no change in technology, shifts or hours or duties. Ms Mai described it as being “ … simply an administrative coding change on our part”.107

[58] It was stated that the classification change occurred on 25 May 2015 following notification from the VHIA on 27 February 2015 which clarified the eligibility requirements for an HA1. These were said to be that an HA1 worked across multiple disciplines and flexibly within Food Services. Ms Mai recalled that, in reviewing the staff who were classified as HA1, the Environmental Staff predominantly did cleaning and did not work in the Catering Department. Therefore, their classification was changed from HA1 to IJ1 which was said to reflect the duties that were performed. 108

[59] The employees concerned was said to have been notified of the change by Ms Stoiljkovic. HR had been involved in the process of drafting the letter etc. but not in notifying the employees directly. Ms Mai indicated that she did not speak with the affected employees as part of the process. 109 It was recounted that HR was involved in looking at the employees who were classified as HA1 and who predominantly performed cleaning duties. HR had liaised with Ms Stoiljkovic to clarify who worked in specific units and their specific duties. Ms Mai had provided Ms Stoiljkovic with a list from payroll of everyone who was classified as an HA1 and had asked Ms Stoiljkovic to advise as to which employees just did cleaning and waste disposal. Ms Mai indicated that she did not ask Ms Stoiljkovic as to what the employees were cleaning – it was up to Ms Stoiljkovic.110

[60] Ms Mai agreed that the food and domestic services employees undertook duties that were not predominantly cleaning. These included cleaning the staff kitchen, microwave and tables etc. It was indicated that, if a food and domestic services employee cleaned an over-bed table after a patient had consumed food, this would be the cleaning of a food consumption area. 111 It was acknowledged by Ms Mai that clause 2.6.1 (Food and Domestic Services Assistant) of the Food Services classification descriptors in the Agreement did not limit the duties to patient only areas.112

[61] In relation to clause 1.1.2 of the classification descriptors for Food Services, Ms Mai disagreed that it covered the cleaning of food preparation and consumption areas and cooking equipment in the kitchen. It was stated by Ms Mai that the descriptors related to the Catering Department kitchen and explained that that was the Hospital’s interpretation of the clause. Ms Mai explained that Food Services at LRH was the Catering Department so therefore, the employees worked in the kitchen. Ms Mai conceded that the clause did not limit the cooking and preparing of food to a kitchen. It was agreed that the cleaning of food preparation and consumption areas and cooking equipment could be in an area that was not a kitchen. 113

[62] With respect to the steps HR took in relation to the reclassifications, it was Ms Mai’s evidence that she looked at the two classifications (Food and Domestic Services and Cleaner/Orderly) in the Agreement and had also relied on VHIA’s advice. In addition, Ms Mai said that there was advice from the General Manager Support Services, who had been in the industry for a while. The advice was that the employees concerned were predominantly cleaning and therefore should change. 114

[63] Ms Mai confirmed that the Hospital received advice from VHIA (Mr Chant) as to what was a Food and Domestic Services Assistant. This advice had been originally sought by South West Healthcare but was relied upon by LRH. 115 Ms Mai agreed that, in Mr Chant’s advice, the definition of a Food and Domestic Services Assistant in the Agreement was replicated. Mr Chant’s advice, together with VHIA’s notification, was relied upon by the Hospital.116

[64] It was stated that, in VHIA’s notification, it was said that the requirement was “wholly or predominantly and across multiple disciplines”. 117 Further, Ms Mai explained that the Hospital relied on the definition of a FDSA as defined in the Agreement and the classification that was provided. This was together with the VHIA’s clarification about recognition of the need to work flexibly and perform incidental and peripheral duties across multiple disciplines as per the Agreement. It was stated that what stood out for the Hospital was that the employees needed to work across multiple disciplines.118

[65] Ms Mai agreed that the classification definition extended to people who cleaned food preparation and consumption areas and that it did not say that you could only be a FDSA if you prepared and cooked meals. Ms Mai stated that the definition could be interpreted as not limiting the classification to someone who cooked and prepared food. It was also agreed that the clause said that a FDSA could be an employee who cleaned food consumption areas and cooking equipment. 119 In relation to the Hospital’s interpretation that people needed to prepare food and work in a kitchen, it was indicated that advice was not sought from the VHIA as to whether that definition was correct. Rather, the advice from the GM Support Services was relied upon.120

[66] With respect to VHIA’s advice that an employee must perform FDSA functions on a regular basis, it was Ms Mai’s evidence that she did not observe how regularly employees performed these functions or as to what these functions were. Rather, it was stated that FDSA’s worked in the Catering Department. In addition, it was indicated that she had not made any enquiries about what the functions of an FDSA were. 121 It was stated that she had relied on Ms Stoiljkovic’s directions.122

[67] In terms of VHIA’s Clause 11 Implementation Guide, 123 Ms Mai confirmed that the Guide stated that the Health Services did not need to review employees’ duties. It was stated that, at that point in time, the employees concerned were classified as FDSA’s and were entitled to payment of the multi-skilling allowance if they worked flexibly and performed incidental, peripheral duties.124

[68] Ms Mai stated that the Hospital had not sought reimbursement from employees who had been incorrectly paid the first multi-skilling allowance due to an administrative error. It was said that, if the employees did not work across multiple disciplines, they had been incorrectly paid. Ms Mai explained that the employees had received the first payment because they were classified as FDSA’s. However, the Hospital did not assess the work they did. Ms Mai agreed that the VHIA did not say that the Hospital could take the money back. 125

[69] It was explained by Ms Mai that the reclassification was an unusual event from her perspective and it was the only time since 2012 that this had happened. 126

[70] It was recalled that the Hospital had thought about a consultation process but Ms Mai said that it was an administrative error and the duties did not change. 127 It was said that she did not think that the reclassification of 40 staff would trigger the consultation provisions.128 With respect to the words in Ms Boothman’s Acceptance of Offer document,129 Ms Mai stated that the Hospital did not consult with Ms Boothman as per this document.130

[71] Ms Mai agreed that food could be prepared in a kitchenette and that a FDSA who was working in a kitchenette could be classified as an FDSA. 131 Ms Mai indicated that a cleaner may hold a food safe handling certificate and that the Hospital required FDSA staff to hold one as they could be relieving staff such as PSA’s.132 It was confirmed that the Hospital also required permanent FDSA employees to hold a food safe handling certificate (it was in the PD). This was required because an FDSA needed to have one.133

[72] In relation to the Hospital’s PD for a Domestic Services Assistant 134 (which requires a Food Safe Handling Certificate it was said that all casuals employed were based on this PD. Ms Mai acknowledged that the PD did not say that the employee was only required to hold the certificate if they worked as a PSA.135 It was explained that the Domestic Services Assistant PD required the certificate (mandatory) because the employee could be appointed to certain units that required a certificate. Ms Mai agreed that the PD also did not say that the certificate was required for work in certain units only.136

[73] It was stated that staff in the Food Services Department did not clean kitchenettes/did not know whether they did. Ms Mai agreed that it was an area where food could be prepared and that it may contain cooking equipment. It was indicated that Food Services staff could wipe over-bed tables. However, Ms Mai said that her statement was more about the kitchen areas in the Catering Department. 137 Ms Mai explained that her evidence represented her views but, at that point in time, not a detailed understanding of the Hospital’s operations. It was stated that defrosting fridges, checking fridge temperatures and determining what food was to be thrown out were cleaning functions. It was said that anyone could determine when food was off and needed to be thrown out.138 Ms Mai also indicated that cleaners did waste disposal and bed making.139

[74] In relation to the letter sent to employees advising of the reclassification, it was stated that the intention of the letter was to say that, if you were classified as an IJ1, there was no change to your entitlements. Ms Mai conceded that the letter included a sentence which guaranteed that there would be no change to the HA1 entitlements or conditions that existed prior to the letter. “Entitlements” was said to mean in relation to shifts etc. It was agreed that the multi-skilling allowance was an entitlement as it was in the Agreement. It was stated that the entitlement was limited by the definition and criteria. It was said to be the Hospital’s view that the employees concerned did not meet the criteria. 140 The phrase “employment terms” in the letter was said to mean employees’ roles, jobs and contract conditions and status (full-time, part-time etc.).141

[75] It was stated that the Hospital was aware that the effect of the change was that some people who were paid the multi-skilling allowance in 2014 were not going to be paid it in 2015. 142 Ms Mai acknowledged that the letter did not say that a consequence of the change was that the employee was not going to get the allowance that they had got last year.143 It was also Ms Mai’s evidence that the reclassification came along at the time of the second payment of the multi-skilling allowance.144

[76] Ms Mai indicated that, since the classification change, no documentation (a revised letter of offer) had been co-signed by both the employee and the Hospital. 145 The only letter sent to employees was the one advising of the change in their classification. This was despite Ms Boothman’s letter of offer saying that the appointment may be varied to meet organisational needs and workload demands with appropriate consultation. This was on the basis that neither workload nor the organisational structure changed.146 Ms Mai said that what would generate consultation would be a major change within Ms Boothman’s job, role or work or a major workplace change.147 It was stated that new PD’s were not provided to employees in relation to the new classification. This was because it was just the classification that had changed (coding change) and not the employees’ roles, pay rate, reporting line, hours, or duties.148 It was confirmed that the letter of 25 May 2015 changed the employees’ classification.149

[77] In relation to the advertisement for an FDSA/Holiday Reliever that was attached to Ms Smith’s witness statement, it was stated by Ms Mai that none of the Food Services Assistants in the kitchen cleaned patient areas, toilets, treatment rooms and courtyards or other duties specified in the FDSA advertisement. 150 It was indicated by Ms Mai that she was not personally familiar with this advertisement. With respect to the duties of an Annual Leave Reliever, Ms Mai indicated that the Reliever did the duties of whichever person they were relieving e.g. cleaner or PSA.151

[78] With respect to the amount of time that elapsed between the VHIA advice and the notification to employees of the classification change, Ms Mai explained that there were only two HR staff to service the whole of the Hospital and so it was a question of workload. It was said to have been a priority to get it done as soon as possible and to give employees as much notice as possible. It was conceded that, at the back of her mind, she was conscious about the eligibility date for the second payment. However, Ms Mai stated that making the change prior to June 2015 was not the motivation. 152 It was further explained that the reclassification process commenced after the 30 March 2015 advice from the VHIA.153

[79] Ms Mai explained that HR needed confirmation that the employees on the list were to be reclassified. In addition to Ms Stoiljkovic, the GM Support Services (Mr Jarred) had also looked at the list. It was recalled that she and Mr Jarred discussed the reclassification and the notification and that it was a coding change. 154

[80] It was explained by Ms Mai that the Catering Department equated to the Food Services area in the Agreement and that the Environmental Services Department equated to General Services in the Agreement. 155

[81] Ms Mai expressed the view that the employees who were reclassified from FDSA to Orderly/Cleaner did not fulfil the Agreement classification definition under Food and Domestic Services. This was on the basis that it read that way and because they did not work in the Catering Department and kitchen areas. It was stated that FDSA’s did not serve and deliver meals - the catering staff did in some areas and PSA’s in others. 156 It was stated that the employees did not change departments – only their classification.157

[82] It was indicated by Ms Mai that the PD provided by the Hospital 158 was not the current PD.159

Ms Stoiljkovic

[83] Ms Stoiljkovic is the Environmental Services Supervisor at the Hospital and has held that position since 1998. 160 In that role, Ms Stoiljkovic is required to supervise Domestic Services Assistants and PSA’s.161 The duties of Domestic Services Assistants were described as general cleaning throughout the Hospital and waste disposal. A PSA was said to do general cleaning in the ward (kitchen and dining area) and also hand out meal trays to patients and provide patients with morning and afternoon tea.162 It was stated that the safe food handling certificate was a mandatory requirement for PSA’s. However, it was not required for Domestic Services Assistants because they did not handle food or clean patient kitchens or dining areas or food preparation areas.163

[84] It was explained by Ms Stoiljkovic that, in addition to the Catering Department kitchen, there were also kitchens on the wards where PSA’s worked. These kitchens were said to be little kitchenettes where the PSA’s prepared morning and afternoon teas for the patients. They included a dishwasher and a microwave but could not be said to be a food preparation or consumption area. 164 It was acknowledged that a microwave was cooking equipment but it was stated that the employees concerned did not serve and deliver meals. Ms Stoiljkovic also agreed that the Agreement classification descriptor did not exclude kitchenettes but said that patient food was not prepared in the kitchenettes. Rather, staff may bring their own food in from home but Ms Stoiljkovic expressed the view that the kitchenette was not a food preparation area as such.165 It was confirmed that the employees in question cleaned patient fridges which contained patient sandwiches.166

[85] The Catering Department kitchen was described as being a big kitchen where food was prepared and cooked and then was dished up for each patient. The trays were then stacked onto trolleys and the trolleys were delivered to the wards. In the acute wards, the catering staff were said to then deliver the trays and morning and afternoon teas to the patients. 167

[86] It was stated that the difference between an FDSA (Catering Department) and a Domestic Services cleaner was that a Domestic Services cleaner did not handle food or clean food preparation areas. 168 Ms Stoiljkovic described the food preparation areas as being the bigger kitchens in a number of specific wards which had an attached patient dining room. This was where morning and afternoon teas were prepared and then delivered to patients, either in their rooms or in the dining room.169

[87] There was also said to be an area in the cafeteria where staff (and visitors) could make their own tea and coffee. It was stated that the duties of a domestic services employee in this area included emptying the rubbish bin, cleaning the sink and bench and floor. 170 It was indicated that cleaners may wipe over the microwave which was generally used by staff to heat up their own food that they had brought in for lunch.171

Ms Boothman’s evidence

[88] With respect to the PD that was attached to Ms Boothman’s witness statement, it was Ms Stoiljkovic’s evidence that she had never seen it before. It was stated that she had never actually read or printed out a Catering Department PD before. Ms Stoiljkovic denied having given that document to Ms Boothman. 172

[89] In terms of Ms Boothman’s evidence that, in the wards, she cleaned the kitchen areas and floors and washed dishes, Ms Stoiljkovic confirmed that there were kitchenettes but denied that the employees concerned touched any food. This was on the basis that it was a patient fridge and that the fridge temperature and the food (use by dates) was managed by the Catering Department. It was stated that all that domestic services did was clean the sink, empty the rubbish bin, clean the benches and ledges and floor and wipe over the microwave (general cleaning duties). 173

[90] With respect to Ms Boothman’s contention that she made cups of tea and handed out sandwiches to patients, Ms Stoiljkovic said emphatically that Ms Boothman and her colleagues did not handle food and that the nurses did not make cups of tea for patients. It was stated that the Catering Department did both of those things and that it was not Ms Boothman’s role to do them. Ms Stoiljkovic was surprised by this evidence and said that she had never seen a domestic service doing any food service even though she went to the wards at different times. 174

[91] In terms of Ms Boothman’s evidence that she cleaned fridges which involved handling food as there was out-of-date food in the fridges, Ms Stoiljkovic disagreed that there was out-of-date food in the fridges. This was because it was only sandwiches in the fridges which were checked twice a day by the Catering Department. Ms Stoiljkovic agreed that the employees concerned wiped over the top of the fridge and may wipe inside and said that that was part of their role. 175

[92] It was stated that there were staff fridges and that there were also two fridges in the staff lounge. Ms Stoiljkovic explained that staff were responsible for removing their own food and that it was not the responsibility of domestic services to throw out staff food. In addition, it was said that staff were responsible for washing their own dishes. 176

[93] With respect to the evidence that Ms Boothman would deliver food to a patient in an isolation room, Ms Stoiljkovic explained that it was Hospital policy that nursing staff did that. It was also stated that it was not part of Ms Boothman’s role. 177

[94] In terms of Ms Boothman’s evidence about the milk room, Ms Stoiljkovic explained that the milk room was in the Thomson Unit and that Ms Boothman did not work in that area as she had been permanent in the Tarra Unit since 2012. 178

[95] Ms Stoiljkovic confirmed that Ms Boothman had picked up her reclassification letter because she and Ms Boothman had spoken about it. 179 It was stated that, when the employees were reclassified, there was no change in their duties, hours, rosters or reporting relationships.180

[96] In terms of the Safe Food Handling Certificate, it was explained that Ms Boothman and other employees were casuals prior to 2012 and that casual employees were required to hold the certificate because they could be replacing a Domestic Services Assistant or a PSA. Ms Stoiljkovic said that, after that, there was no need for Ms Boothman to continue doing her Safe Food Handling Certificate. 181 It was stated that domestic services were not required to do the annual safe food handling course. Ms Boothman was said not to have done the course in 2014/2015 but that she did do it in 2016 - even though it was not required.182

[97] With respect to Ms Boothman’s evidence that, if a patient requested a sandwich, she would ask the nurse who would tell her to get the patient a sandwich, Ms Stoiljkovic indicated that she had not known about that and that it was not expected. 183 It was Ms Stoiljkovic’s view that it was “a terrific thing” that the cleaning staff worked as a team with the nursing staff. It was said that, for example, if a Code Yellow (6) was called (patient overload in the Emergency Department), all of the staff helped out to get the rooms ready for the next patient. This included Ms Boothman washing and making beds to help out with the bed makers (a domestic services function).184

[98] In terms of the ice machine, Ms Stoiljkovic said that domestic services did not clean the ice machine. 185 It was confirmed that domestic services cleaned the over-bed tables in patients’ rooms.186 Ms Stoiljkovic indicated that catering staff and not Ms Boothman replenished water jugs and maintained flowers.187

Ms Jenkins’ evidence

[99] It was stated that Ms Jenkins’ last safe food handling certificate was in September 2014 when she was still a casual employee. Ms Stoiljkovic explained that Ms Jenkins became permanent in the Consulting Suites in November 2014 and so had not been required to do a food safe handling certificate in 2015 or 2016. It was said that there was no requirement for Ms Jenkins to use that certificate in the Consulting Suites. 188

[100] With respect to Ms Jenkins’ evidence that she checked food temperatures and out-of-date food, Ms Stoiljkovic said that, in the Consulting Suites, there was only a little staff kitchenette with a refrigerator. Staff were said to be responsible for removing their own food and the only fridge temperatures that were checked were patient fridges. 189

[101] In response to Ms Jenkins’ contention that she received her reclassification letter on 18 June 2015, it was Ms Stoiljkovic’s evidence that she put all of the staff members’ letters in their sleeves on 25 May 2015, having printed the letters out without making any changes to them (e.g. the date) and then signed them. Ms Stoiljkovic was certain that the letters were put in the sleeves on 25 May 2015. Ms Stoiljkovic confirmed that Ms Jenkins always checked her plastic sleeve. It was explained by Ms Stoiljkovic that, as the plastic sleeves were kept in the detergent chemical supply room, she kept the door locked for the majority of the time but she unlocked it two or three times a day. Ms Stoiljkovic recalled that Ms Jenkins did come to her office but could not recall the specific date but that it would have been on 25 May 2015. It was said that all of the staff were talking about the letter and were coming into her office. Ms Stoiljkovic could not explain why Ms Jenkins had said that she did not receive the letter until 18 June 2015 and disagreed that Ms Jenkins did not receive the letter until then. 190 It was recalled that Ms Jenkins was always checking her sleeve - at least a couple of times a week.191 Ms Stoiljkovic indicated that Ms Jenkins had sent her an email a month later and recalled that she was surprised because she knew that Ms Jenkins had received the letter.192

[102] It was indicated that she was unaware that Ms Jenkins cleaned kitchens. 193 Ms Stoiljkovic said that Ms Jenkins had not worked in the wards, where patients could also eat their meals in a little dining room, since she was made permanent in the Consulting Suites in 2014.194

[103] With respect to Ms Jenkins’ duties in the Consulting Suites, Ms Stoiljkovic confirmed that Ms Jenkins wiped out and defrosted the staff fridges in the kitchenette. 195 It was explained that the kitchenette had a staff fridge, microwave and sink and rubbish bin. Ms Stoiljkovic said that the staff were responsible for their own food, and domestic services did not throw out staff food.196

[104] In terms of making toast, tea, coffee and milo and serving porridge and checking food use-by-dates in the fridges, these duties were said to be PSA duties. 197 It was stated that Flynn Unit was a mental health unit and had a PSA as did the Chemotherapy Unit. It was explained that, whilst Ms Jenkins was a casual employee, she had trained in various areas but, since November 2014 (when she became permanent), Ms Jenkins had not worked in Chemotherapy.198

[105] It was stated by Ms Stoiljkovic that Ms Jenkins had written her own Cleaning Job Procedure and had done a good job of it. Ms Stoiljkovic could not explain as to why Ms Jenkins had said that she had never seen it before. 199

Agreement Classification descriptors

[106] In terms of the Classification Group descriptors in the Agreement, it was Ms Stoiljkovic’s view that only PSA’s (in the Environmental Services Department) undertook the duties described for a Food and Domestic Services Assistants, in the Food Services stream of the Agreement. 200 It was stated that her other staff (cleaners) fitted into the General Services stream of the Agreement and into the classification of Orderly/Cleaner.201

[107] With respect to the PD for a Domestic Services Assistant that was tendered by the Hospital, it was Ms Stoiljkovic’s evidence that it was the PD for all of domestic services, casuals and full time employees. The PD was said to have been replaced in 2015 as there was no longer a classification of HA1. Instead, there are was PS 21 (PSA); PS 25 (combined cleaner/patient services) and IJ1 - Orderly/Cleaner. The employee classified as PS 25 was said to work in radiotherapy and undertook cleaning, food services and other duties i.e. PSA duties plus other duties. 202

Submissions

Health Services Union

[108] The union submitted that the process that led to the reclassification of its members from Food and Domestic Services Assistants to Orderly/cleaner was unfair. Prior to dealing with the grounds on which this submission was made, the union raised a factual dispute between the parties. This concerned the timing of the delivery of the letter which gave effect to the reclassification. It was argued by the union that, despite the reclassification letter being dated 25 May 2015, it was not delivered to the affected employees until around 18 June 2015. 203 The evidence of Ms Jenkins was referred to in this regard.204 It was also stated that Mr Rowley’s evidence was that the first time he heard about the reclassification was on 18 June 2015. Mr Rowley also gave evidence that it was only after 18 June 2015 that he was contacted by other members of the union about the reclassification. Finally, the evidence of Ms Stoiljkovic was highlighted in respect to her confirmation that Ms Jenkins diligently checked her plastic pocket on a regular basis and that the store room containing the plastic pocket was only open two or three times a day.205

[109] The union submitted that, on balance, the evidence of Ms Jenkins and Mr Rowley indicated that Ms Jenkins did not receive her reclassification letter until 18 June 2015. If the Commission was to find that the reclassification letter was only delivered to the affected employees on or around 18 June 2015, on its face, at the material time of the multi-skilling allowance falling due, it was contended that the reclassification had not taken place. 206

First ground

[110] The first ground on which it was contended that the reclassification was unfair was that the terms offered to the affected employees meant that their then current entitlements would not change following the reclassification. This was said to amount to an undertaking by the Hospital to continue to pay the multi-skilling allowance. 207

[111] The letter to employees from the Hospital, dated 25 May 2015, contained the words “this change does not affect your pay rate, current entitlements or your employment terms and conditions”. 208 The union argued that the letter clearly stated that the employees’ current entitlements would not be affected. Ms Boothman’s evidence was referred to in support of this contention. In addition, the evidence of Ms Stoiljkovic and Ms Mai was said to have been that there would not be any changes to the employees’ entitlements. Further, Ms Mai was recalled to have indicated that, from an employee’s perspective, a fair reading of the letter was that they would continue to receive the multi-skilling allowance and that the “current entitlements” for a FDSA at the time of writing the letter, included the multi-skilling allowance.209

[112] As both Ms Mai and Ms Stoiljkovic were aware of the multi-skilling allowance, the union submitted that, if it was not the intention to continue paying the allowance, the Hospital was reckless in giving the undertaking that current entitlements would not be affected. It was stated that it was telling that there had not been any retraction, rescission or amendment to the letter since its distribution in mid-2015. It was argued that, had there been a genuine error or a misleading sentence, it was incumbent on the Hospital to take swift action to rectify the situation. As there was no retraction, reissuing or amendment of the reclassification letter within a reasonable period after it was issued, the union submitted that there was a clear undertaking from the Hospital in the letter to pay the multi-skilling allowance to the affected employees. 210

Second ground

[113] The HSU submitted that the second ground was that the reclassification process was a major workplace change which should have triggered the consultation provisions under the Agreement. It was stated that, but for this lack of consultation, the reclassification process would not have been finalised prior to the multi-skilling allowance falling due in June 2015. 211 The union contended that the reclassification of over 40 staff constituted major workplace change in relation to the Hospital’s structure. It was recalled that Ms Stoiljkovic’s evidence was that the Hospital did not have the classification HA1 anymore. Where a classification was entirely wiped off the organisational chart within a Department, this was argued to be evidence of a change in the way the Department is structured.212

[114] Further, it was argued that the re-classification of this number of employees was a novel and major event which was said to be supported by the evidence of Ms Mai and Ms Stoiljkovic. As it was such a novel event, it was argued that the Hospital should have considered its consultation obligations. It was recalled that Ms Mai’s evidence was that the Hospital had considered this but had determined that it was only an administrative error. That it allegedly was an administrative error was said to merely go to the reason for the change. It was stated that the rectification of the error was, however, a major change to the Hospital structure. This was because the alleged error was widespread, had existed for decades and affected the recruitment and engagement of employees, their PD’s and requisite training. The union argued that this was more than an administrative change to the affected employees’ job and role. 213

[115] The union submitted that the reclassification was not simply a change in pay codes but had levels of complexity that would normally have been discussed through the consultation process. It was stated that there was a change to the affected employees’ job and role as an employee’s classification goes to what they can be required to perform and the requisite qualifications, skills and attributes. The union argued that these were changed by virtue of the reclassification. It was contended that, therefore, not only did the change have an immediate financial effect, the reclassification process would lead to changes in PD’s and the required training. This was said to, in turn, potentially limit the ability of staff to pick up additional shifts or work in different areas within the Hospital, thereby affecting employees’ careers more generally. Ms Jenkins’ evidence was referred to in this regard. 214 Given all of these complexities, the union submitted that consultation should have taken place in accordance with the Agreement to discuss the change. It was stated that this did not occur.215

[116] It was contended that, in applying the ‘but for’ test, but for the lack of consultation, the reclassification would not have occurred prior to the multi-skilling allowance being payable. This was because the reclassification process, together with the usual consultation processes that should have occurred, would ordinarily have taken place over a number of weeks or months. The union stated that Ms Stoiljkovic did not know about the reclassification process until 21 May 2015, and submitted the Hospital had taken a cavalier approach to the reclassification. Together with the workload of the HR Department, it was said to be fair to conclude that a proper consultation process would not have been concluded before the allowance fell due. 216

[117] The union also submitted that the reclassification process was rushed to avoid payment of the multi-skilling allowance. Ms Mai’s evidence was referred to in relation to this being a factor in the back of her mind. 217

[118] Therefore, the HSU submitted that the Hospital’s reclassification process was either designed to avoid or was reckless in avoiding, its consultation obligations. But for this lack of consultation, the union argued that the reclassification would not have been affected until after the multi-skilling allowance fell due in June 2016. 218

Third ground

[119] The third ground concerned the affected employees’ letters of offer which were said to require consultation and/or mutual agreement in order to vary the terms of employment. 219 The union stated that the letters of offer were instruments created under clause 88.2 of the Agreement and that clause 88.2 required the Employer to notify each Employee in writing, upon commencement, of their classification and terms of employment. The union argued that the Agreement, therefore, created instruments that gave rise to further terms of employment220 and that the Hospital should have been aware of their obligations in this regard.221

[120] The union argued that the letters of offer of four of the affected employees required a general form of consultation prior to the variation of their initial appointment. The letters of offer included the statement that “initial appointment may be varied to meet the organisational needs and workload demands with appropriate consultation.” No consultation with the affected employees was said to have occurred in a situation where the Hospital sought to reclassify the employees to meet the organisational needs – including correcting the alleged ‘administrative error’. It was stated that there was no evidence that the Hospital consulted with any employees prior to the implementation of the reclassification. 222

[121] As the letters of offer gave rise to consultation requirements, and the consultation did not occur, it was submitted that the reclassification of the four employees did not occur in accordance with the Agreement. Therefore, it was argued that the reclassification of these four employees was void. 223

[122] With respect to two of the affected employees, it was stated that their respective letters of offer required the parties to agree to variations of their position (Food and Domestic Services Assistant). The union submitted that the word “position” in the letters of offer, was akin to, and interchangeable with, “classification”. It was stated that no such amendments had been made to the letters of offer which was said to have been confirmed by the evidence of Ms Stoiljkovic and Ms Mai. 224

[123] The union argued that the letters of offer were made pursuant to clause 88.2 of the Agreement and that they appointed the employees to the position of Food and Domestic Services Assistant and created, as a term of employment, that this would only change by written consent. As the appointment to these positions had not changed because there had been no mutual consent, it was contended that the two employees remained appointed to the position of Food and Domestic Services Assistant and so were entitled to the multi-skilling allowance. 225

Fourth ground

[124] It was submitted that the reclassification of the affected employees was incorrect in substance as their duties were more closely aligned with that of a Food and Domestic Services Assistant rather than an Orderly/Cleaner. 226 It was stated that the employees should never have been reclassified based on the duties that they performed and that they had been classified originally, correctly, as Food and Domestic Service Assistants. The union acknowledged that the classification descriptor for a Food and Domestic Services Assistant in the Agreement was scant on detail and that the nature of FDSA’s varied depending on whether they were engaged in a kitchen or a ward setting. In this matter, the employees concerned were in ward settings.227

[125] The union contended that the classification descriptor for an FDSA extended to services related to visitors and staff, not just patients, and that it was not a requirement that FDSA’s prepared food. Ms Mai’s evidence was said to be that the words of the Agreement did not limit FDSA’s to cleaning patient oriented cooking equipment, food preparation or consumption areas. Also, the union submitted that the classification descriptor was completely silent on the requirement to cook or prepare food. 228 It was argued that the rushed nature of the reclassification meant that a thorough analysis of the classification issues that arose from the Agreement were not analysed. This was said to have been supported by the evidence of Ms Stoiljkovic and Ms Mai.229

[126] It was contended by the union that the duties performed by the affected employees indicated that they should be classified as Food and Domestic Services Assistants. Ms Boothman’s evidence was said to have been that she was required to clean and defrost fridges, clean microwaves and food preparation and consumption areas and handle food. This had included the need to serve food on an incidental basis in order to assist with the flow of the ward. It was stated that, when Ms Boothman delivered food, she was not paid as a PSA. It was said that Ms Stoiljkovic had confirmed that Ms Boothman did ‘wipe’ microwaves and defrosted fridges and that the fridges in the ward-based kitchenettes contained patients’ food and were cleaned by the affected employees. Further, Ms Jenkins’ evidence was confirmed by Ms Stoiljkovic in relation to the cleaning procedures in the Consulting Suites which included the cleaning of kitchenettes, microwaves, staff meal areas and refrigerators. 230

[127] The union submitted that the employees concerned were cleaning food consumption and preparation areas and cooking equipment. The cleaning of over-bed tables was confirmed by Ms Stoiljkovic and Ms Mai’s evidence was said to have been that cleaning a table where food was consumed could be considered a food consumption area and that the cleaning of food preparation and consumption areas could be in places which were not kitchens. It was argued that the duties performed by the employees concerned went beyond the cleaning duty lists relied on by the Hospital, which were not definitive and did not outline what was done by the employees. The union contended that, whilst the delivery of meals was incidental and sporadic, it was nevertheless a duty that could be required of the affected employees by virtue of their PD’s, depending on where the Hospital chose to roster them. It was stated that Ms Mai had indicated that the Hospital required Domestic Services employees in their PD to hold the food safe handling certificate - because they needed it. Ms Stoiljkovic had also confirmed that the Hospital had required the affected employees to hold the certificate under their PD. 231

[128] With respect to the PD 232 relied upon by the Hospital, in relation to the food service role, the union argued that it confirmed the broader role and expectations of the employees concerned. This was said to include the requirement to maintain a customer focus and being responsive to their needs. Ms Boothman’s evidence that she made cups of tea and/or provided sandwiches to patients was stated to be reflective of her being responsive to customer needs and maintaining a customer focus. Ms Stoiljkovic was recalled to have confirmed that the employees concerned would probably refill jugs of water if asked to do so by patients and that she considered such conduct as being responsive to customer needs. It was stated that Ms Stoiljkovic had also required employees to work flexibly and adaptively and that, if one of the employees concerned had provided sandwiches to a patient on the direction of a nurse, that would be considered as working as part of a team, acting flexibly and being responsive to customer needs.233 On these bases, the union submitted that the affected employees should have remained classified as Food and Domestic Services Assistants.234

Fifth ground

[129] The last ground relied upon by the union in relation to fairness, was that the 2014 variation of the Agreement was agreed to on the expectation that the affected employees would receive the allowance. 235 Mr Eden’s evidence was said to have been that the union obtained classification data from the Department of Health, and relied on it, to decide how to best allocate the clause 11 funding. Further, in relation to the Implementation Commentary in the VHIA Circular,236 it was also Mr Eden’s evidence that it reflected what was agreed between the parties when renegotiating the Agreement to the extent that employers were not to reclassify employees. Mr Eden had said that the classification numbers could change if people were terminated or made redundant. However, Mr Eden did not expect that the classification data was incorrect.237

[130] It was contended that, if the reclassification was the correction of an administrative error, the error had formed part of the classification data provided to the union, which was relied upon. It was stated that, to correct the alleged error in the manner that it did, the Hospital had unjustly enriched itself. 238 This was in the context that, for the reasons set out above, the union and the affected employees expected that they would receive (both of) the multi-skilling allowance payments.239

[131] Finally, it was stated that the union’s case was underpinned by the issue of fairness and that a fair and just interpretation of the Agreement, together with the facts of the matter, could only result in the conclusion that the actions of the Hospital were indefensible. It was submitted that the reclassification, in substance and process, was wrong. 240

Remedy

[132] The union sought that:

• The affected employees be classified as Food and Domestic Service Assistants.



• The affected employees be paid the multi-skilling allowance due on the first full pay period on or after 13 June 2015. 241

Submissions in Reply

[133] In response to the Hospital’s final submissions, the union submitted that:

• The previous industrial instruments only provided historical information and did not assist in resolving the current issue. The evidence of Mr Eden was highlighted in relation to the evolution of the Food and Domestic Assistant classification. Therefore, little or no weight should be given to the Hospital’s submissions referencing previous industrial instruments. 242



• It disagreed in relation to the Hospital’s contention that no evidence had been provided that kitchenettes were used to cook food or serve or deliver meals. The evidence of Ms Boothman was referred to in this regard. 243



• The suggestion that the employees concerned were not required to touch patient food contained in fridges was rejected on the basis of the evidence of Ms Stoiljkovic and that of Ms Boothman and Ms Jenkins. It was said to be an odd situation that employees who were required to hold a food safe handling certificate and to clean fridges would simultaneously not be required to touch food in fridges when cleaning them. 244



• It disagreed with the Hospital’s suggestion that Ms Jenkins and Ms Boothman were not required to clean cooking equipment on the grounds that the evidence showed that both employees were required to clean microwaves. 245



• In relation to the Hospital’s submissions about Ms Boothman’s duties, it was stated that there was a reasonable expectation that Ms Boothman would perform roles, duties and functions that were in addition to those outlined in her cleaning procedures. These were said to include being responsive to customer needs and working flexibly - all of which was enshrined in the PD provided, and relied on, by the Hospital. 246



• It was immaterial that Ms Jenkins had not requested to work additional hours. This was because the issue was that the opportunity to work additional hours and also Ms Jenkins’ employment prospects in other roles within the Hospital, were curtailed by the reclassification. 247



• It rejected the submission that the union’s argument in relation to the cleaning of food consumption areas was contrived or would lead to a distortion of the Agreement. The union’s argument was said to be a plain English interpretation of a food consumption area which was that the area related to a locality ordinarily attributed to the taking of meals, including patient rooms and cafeterias. The Hospital’s submission that food consumption areas were limited to the tray the food was served on was said to not align with the words of the Agreement and were an illogical interpretation of the concept of a ‘food consumption area’. 248



• It was a stretch for the Hospital to suggest that they received advice from the VHIA on the relevant issues. It was stated that the advice in question was directed to another health service and that the evidence was that the Hospital did not get advice directly from the VHIA and that the VHIA did not attend or consult with the Hospital. The Hospital’s process, of having checked the duties and classifications of their employees, was described as scant and devoid of any meaningful or thorough review. 249



• Any reliance on testimony by Ms Stoiljkovic about what staff had said about the multi-skilling allowance in 2014 and/or its future payment was said to be hearsay and should be given no weight by the Commission. 250



• ‘Structure’, in the context of consultation, should be interpreted broadly in accordance with its plain English definition, to include classification structure. The reclassification of 40 employees to a different classification was said to be a change to the Hospital’s classification structure. Accordingly, it met the definitions of ‘major workplace change’ under the Agreement. 251



• It strongly disagreed that the reclassification did not have a significant effect on the employees concerned. The $500 multi-skilling allowance was a significant lump sum payment for the affected employees as they are low income earners and classified at Wage Skill Group 1. In addition, the reclassification limited the prospects for the employees concerned to pick up additional shifts as a FDSA and/or to act in other roles (PSA). 252



• The reclassification was to meet the organisational needs of the Hospital rather than a change in organisational needs. Correcting the alleged error was said to have been done in order to meet the needs of the organisation (versus the needs of the employees concerned). Further, ‘position’ was interchangeable with ‘classification’ as the ‘position’ that the affected employees were appointed to was that of Food and Domestic Services Assistant. 253



• It disagreed with the suggestion that Ms Stoiljkovic’s evidence determined that Ms Stoiljkovic spoke with employees before the reclassification letter. The highlighted evidence was described as vague in relation to any specific timeline and Ms Stoiljkovic’s evidence in relation to the views of others was said to be hearsay and should not be relied on by the Commission. 254

Latrobe Regional Health

[134] On behalf of LRH, it was submitted that the central point of the dispute was whether the employees who gave evidence before the Commission and those who have claimed the multi-skilling allowance, fit the definition and perform all the duties of a Food and Domestic Services Assistant as set out in Schedule G of the Agreement. 255

[135] It was stated that, in the Hospital’s organisational structure, there were two separate departments - the Environmental Services Department (with Domestic Services Assistants and PSA’s) and the Food Services Department. It was stated that each Department performed different duties and reported to different managements. The evidence of Ms Mai and Ms Stoiljkovic was highlighted in this regard. 256

[136] The history of the Food and Domestic Services Assistant classification was outlined and was stated to have existed before 1998 in the Victorian Hospital and Benevolent Homes Award. In 1991, streams were created with the FDSA classification in the Food Services Stream. An FDSA was said to have been defined as the cooking of basic meals, cleaning of food preparation and consumption areas and cooking equipment and utensils and the serving and delivery of meals. The Hospital suggested that the descriptors had come into being prior to the existence of microwaves in non-catering areas. The Respondent stated that this description was very similar to the words in the current Agreement. Further, it was indicated that the Hospital had historically classified staff in both the Food Services Department and the Environmental Services Department as Food and Domestic Services Assistants with the payroll code of HA1. 257

[173] The second part of the workplace change requirement is that the change is likely to have a significant impact on the employees concerned. I do not accept the Hospital’s contention that the non payment of the second annual multi-skilling allowance of $500 would not have a serious financial impact on these employees. The employees are classified in Wage Skill Group 1 under the Agreement. This is the lowest paid classification in the Agreement and these employees could arguably be the lowest paid employees in the Hospital. At the time of the second payment, the employees’ hourly rate was $20.00 (from 1 April 2014). Therefore, it cannot be said that non payment of the second annual amount of a lump sum of $500 would not have had a significant effect on the employees concerned.

[174] In addition, by reclassifying the employees concerned into another Classification stream and consequently no longer requiring the holding of a safe food handling certificate, these employees were deprived of the ability to also work in the other role in the Environmental Services Department - that of PSA. As FDSA’s, these employees were required to hold a Safe Food Handling Certificate. This meant that, providing they had been trained, they could also work as PSA’s as that position also required the holding of a Safe Food Handling Certificate. As the reclassified employees were no longer required to hold a Safe Food Handling Certificate, the option of working as a PSA was no longer available. It is also noted that the PSA position is classified as Wage Skill Group 3 - a higher classification than these employees’ previous or current classification (Wage Steel Group 1). The closing off of that option for these employees also represents a significant affect.

[175] Therefore, bringing all of this together, I have formed the view that the reclassification of the employees concerned met the requirements of clause 76.2 of the Agreement. Accordingly, the Hospital was required to consult with the affected Employees and the HSU, in accordance with clauses 76.3 and 76.4 of the Agreement. The evidence before the Commission is that the Hospital made a unilateral decision to reclassify these employees and that no consultation took place between the Hospital and the affected employees and the union.

Letters of offer

[176] There were two different letters of offer provided to the Commission. The first (from four employees) contained the sentence “Initial appointment may be varied to meet the organisational needs and workload demands with appropriate consultation”. 286 The second letter of offer , also for a position as a FDSA (to two employees), contained the wording “If your position, duties or reporting structure change, this letter of offer will continue to apply to your employment unless you and Latrobe Regional Hospital: Enter a new written letter of offer; or, Vary this letter of offer in writing”.287

[177] It is my view that first letter required the Hospital to consult with these employees. This is because their appointment as a FDSA was sought to be varied by the Hospital to meet an organisational need to properly classify these employees. In terms of the second letter, in reclassifying the employees, the Hospital changed their position from that of FDSA to a Cleaner (Environmental Services Assistant). As part of the change, the employees were no longer required to hold a Safe Food Handling Certificate. Therefore, the agreement of the employees concerned was required to either vary the existing letter of offer or to enter into a new letter of offer. If neither of these things occurred, the existing letter of offer (for a position as a FDSA) continued to apply. The evidence before the Commission does not indicate that there was consultation with any of the employees subject to either of these types of letters. In terms of the second type of letter, unless the two employees concerned agreed, their existing letter of offer as a FDSA continued to apply.

Reclassification letter

[178] A preliminary factual issue was raised by the union - the date on which the reclassification letter was delivered to employees via their plastic sleeves. It was Ms Jenkins’ evidence that she did not receive the letter until 18 June 2015 and it was her view that it was likely put into her plastic sleeve sometime after she had checked her sleeve the week before. Ms Boothman could not recall when she had received her letter. Mr Rowley’s evidence was that he was advised that a member had raised concerns about the letter on 18 June 2015. Mr Rowley also said that, after 18 June 2015, he was contacted by other members about this issue.

[179] It was Ms Stoiljkovic’s evidence that she had printed off, signed and placed the letters in the employees’ sleeves on 25 May 2015. Ms Stoiljkovic agreed that Ms Jenkins was always diligent in checking her sleeve and so she could not explain as to why Ms Jenkins was saying that she did not receive the letter until 18 June 2015. Ms Jenkins and Ms Stoiljkovic gave evidence that, on receiving the letter, Ms Jenkins had gone to see Ms Stoiljkovic. It was also Ms Jenkins’ evidence that she had rung up the union on the day she received the letter. It was also common ground that Ms Jenkins had emailed Ms Stoiljkovic on 21 July 2015 querying whether she would receive the multi-skilling allowance payment. In the email, Ms Jenkins stated that she had received her reclassification letter on 18 June 2015.

[180] The evidence of Ms Jenkins and Ms Stoiljkovic is diametrically opposed on this issue as Ms Stoiljkovic was sure that she had placed the letters in the sleeves on 25 May 2015. There is indirect evidence which may support Ms Jenkins’ view (Mr Rowley’s evidence about a member inquiry on 18 June 2015). Mr Rowley’s evidence also pointed to the possibility that it may not have just been Ms Jenkins who received their reclassification letter after 25 May 2015. Ms Stoiljkovic’s evidence was that there were a lot of staff coming into her office to talk about the letter and that there was a lot going on during those days. 288

[181] However, there is insufficient evidence before the Commission in relation to exactly when the employees, including Ms Jenkins, received their letters. It may be that, given the Commission’s views in relation to the Organisational Change requirements in the Agreement and the employees’ letters of offer, it is not necessarily material that a definitive finding is made on this issue.

[182] In relation to the reclassification letter 289 itself, the letter contained advice that the employee had been incorrectly classified as HA1- Food and Domestic Services Assistant and that the correct classification for their role was IJ1 - Cleaner. It was stated that, effective from 1 June 2015, their classification would be amended to IJ1 Cleaner. The letter went on to say that “This change does not affect your pay rate, current entitlements or your employment terms and conditions.”290

[183] I have formed the view that the letter provides that there will be no change to the employee’s current pay and entitlements and terms and conditions. This included the multi-skilling allowance, the first annual payment of which had been made to the employee on 13 June 2014, with a second annual payment to be made in the first full pay period on or after 13 June 2015. It was Ms Mai’s evidence that the Hospital knew that the effect of the reclassification of these employees was that they would no longer be eligible to receive the second annual multi-skilling allowance payment.

[184] However, the letter that was sent to employees does not indicate that. I find the letter to be misleading and disingenuous, particularly as the reclassification was specifically related to the Hospital’s view that the employees concerned were not eligible for the second payment and so would not be receiving it. Given that this letter was the only form of communication to employees in relation to the Hospital’s unilateral decision, it is my view that the Hospital deliberately dealt very shabbily with these employees. It is a long way away from world’s best HR and management practice. It is my view also that, based on the wording in the letter, the employees who received it were entitled to believe that, despite the reclassification, they would receive the second multi-skilling allowance payment.

Intention of the 2014 variation of the Agreement

[185] It was argued by the union that the intention of the parties in the negotiations, which resulted in the variation of the Agreement in 2014, was that the employees concerned would receive the two annual multi-skilling allowance payments. Reference was made to data obtained from the Department of Health which included these employees as they had received the first payment. The Hospital held a different view and disagreed with the union’s argument. There is insufficient evidence before the Commission to make a finding in relation to this ground.

Do the employees perform the duties of an FDSA?

[186] Finally, the issue of whether or not the affected employees’ duties were those of a FDSA will now be considered. For a long time, the employees concerned were classified by the Hospital as FDSA’s.

[187] The Classification descriptor for an FDSA, in the Agreement, is as follows:

“a person employed to clean food preparation and consumption areas, cooking equipment and utensils and serve and deliver meals.” 291

[188] The evidence before the Commission does not indicate that serving and delivering meals was one of the main functions of the affected employees’ role. The evidence of Ms Boothman is accepted that she did, on occasion, deliver meals to patients at the request of nurses, refilled water jugs and did handle food, whilst cleaning fridges. Ms Boothman’s explanation that, although these duties were not expected by the Hospital, it was part of working as a team on the ward and it helped the flow of the ward, is also accepted. The performance of these duties, however, was peripheral and incidental to the main focus of her role which was cleaning. With respect to the issues of microwaves and food consumption areas, it is accepted that cleaning a microwave amounts to cleaning cooking equipment and that the cleaning of areas where patients and staff consumed food was the cleaning of food consumption areas. However, from the evidence, it did not seem that Ms Jenkins or Ms Boothman cleaned food preparation areas and they did not serve and deliver meals (except incidentally at the request of a nurse).

[189] Given the way the classification descriptor is written, it is not possible to segment the definition and for an employee to be classified as an FDSA unless they were doing all of the key duties of the role. This means that an employee has to undertake both the cleaning of food preparation and consumption areas and cooking equipment and serve and deliver meals. As indicated above, the evidence before the Commission does not support the classification of these employees as Food and Domestic Services Assistants. It is noted, however, that Ms Boothman did perform some of an FDSA’s duties on an incidental and peripheral basis.

[190] Therefore, on the basis of the evidence before the Commission, I find that Ms Jenkins and Ms Boothman did not meet the requirements of the classification descriptor in the Agreement which would allow them to be classified as a Food and Domestic Service Assistant. A more appropriate classification would appear to be that of Orderly/Cleaner. This is defined in the Agreement as meaning:

“a person employed to perform basic cleaning and orderly/porterage/courier functions in hospitals or other health services.” 292

[191] The Cleaning Job Procedures that have been developed for the various Units would appear to set out the scope of the cleaning duties required by the Hospital.

[192] It needs to be noted that, as the affected employees are more appropriately classified as Orderly/Cleaner under the Agreement, there is no requirement for the employees to perform any duties other than the cleaning duties set out in the various Cleaning Job Procedures. This means that these employees, who have been flexible outside of the cleaning function and who have helped the flow of the ward by doing incidental and peripheral food related duties, are to no longer perform those duties in accordance with the definition in the Agreement of Orderly/Cleaner.

[193] It would seem that the historical Hospital practice of classifying these particular Environmental Services employees as FDSA’s was founded on good sense from the Hospital’s perspective. For the cost of an annual safe food handling course, the Hospital had a group of employees in the Environmental Services Department who, once properly trained, because they were required to hold a Safe Food Handling Certificate, were able to work outside of the narrow confines of a cleaner’s role and could also work across both the cleaner and PSA roles. This gave the Hospital additional flexibility in terms of staffing and the ability to use a permanent employee rather than a casual employee if there was a need to cover a PSA shift. However, with the Hospital no longer requiring that the affected employees hold a Safe Food Handling Certificate and with the change in their classification from that of Food and Domestic Services Assistant to Cleaner (Environmental Services Assistant), that flexibility is no longer available to the Hospital.

[194] Bringing all of the various findings set out above together, the Commission finds that, as the Hospital did not hold discussions with the affected employees and the HSU in relation to the classification change, it is probable that, if consultation had commenced sometime around 25 May 2015 as required, the employees concerned would not have been reclassified by the first full pay period on or after 13 June 2015 (a period of approximately two or so weeks). Therefore, the affected employees would have continued to qualify for the annual multi-skilling allowance payment and should have received the payment in the first full pay period on or after 13 June 2015. As the multi-skilling allowance payment was not made by the Hospital, an order 293 to this effect will be made and issued separately.

[195] It is also probable that the same timing would have applied to the four employees whose letters of offer required consultation before there was a variation of their appointment as an FDSA. With respect to the two employees whose letters of offer in essence, required agreement for their position to change, it is probable that either agreement would not have been reached by the requisite date or that agreement was not reached at all. In either of those situations, the letters of offer as FDSA’s remained on foot.

[196] As the lack of consultation occurred two years ago, in this matter, there is no utility in directing the parties to consult about the reclassification, given the passage of time.

Appearances:

Mr S Crawford for the Health Services Union of Australia

Mr R Corboy of Victorian Hospitals’ Industrial Association for Latrobe Regional Hospital

Hearing details:

2016.

Morwell:

August 8.

Melbourne:

November 21.

Final written submissions:

Applicant, 13 January 2017

Respondent, 23 February 2017

Applicant, 7 March 2017

 1   AE896737

 2   Exhibit A1 at paragraph 23 and Applicant’s Closing Submissions, dated 13 January 2017, at paragraph 60

 3   Exhibit R2 at paragraph 14 and Respondent’s Final Submissions, dated 23 February 2017, at page 12

 4   Ibid at paragraphs 1 - 2 and ibid at pages 1 and 2

 5   Exhibit A1 at paragraphs 9 - 10 and Respondent’s Final Submissions, dated 23 February 2017, at page 6

 6   Exhibit R1 at paragraph 6 and Respondent’s Final Submissions, dated 23 February 2017, at page 6

 7   Ibid

 8   Exhibit R1 at paragraph 9, Respondent’s Final Submissions, dated 23 February 2017, at page 7 and Exhibit A1 at paragraph 11

 9   Exhibit A1 at paragraph 11

 10   Ibid at paragraphs 12 - 13

 11   Exhibit A2 at paragraphs 1 - 3 and Attachments JB01 and JB02 and Transcript PN 923 - 95, 97 - 98 and 346 - 349

 12   Transcript PN 95 - 98 and 104 - 106

 13   Exhibit A2 at paragraph 5 and Attachment JB03 and Transcript PN 99 - 102, 133 - 134 and 277

 14   Ibid at paragraph 5 and Transcript PN 103, 122, 275 - 276 and 376

 15   Transcript PN 387

 16   Exhibit A2 at paragraph 5 and Transcript PN 130 - 132

 17   Ibid at paragraph 5 and ibid PN 122 and 385

 18   Ibid at paragraph 5

 19   Transcript PN 108 - 111 and 117

 20   Ibid PN 238

 21   Ibid PN 235 and 256 - 258

 22   Ibid PN 118 and Exhibit A2 at Attachment JB04

 23   Ibid PN 221 - 227 and 288 - 292 and Exhibit R1

 24   Ibid PN 232 - 234 and 242 - 243

 25   Ibid PN 300

 26   Ibid PN 244 - 247

 27   Ibid PN 254 - 255

 28   Ibid PN 119 - 120 and 126 - 127

 29   Ibid PN 157 - 162 and 154 - 155 and Exhibit R4 at Attachment 12

 30   Ibid PN 180 - 186

 31   Ibid PN 187 - 190

 32   Ibid PN 191

 33   Ibid

 34   Exhibit R4 at Attachment 12

 35   Transcript PN 194 - 208 and 230

 36   Ibid PN 274

 37   Exhibit R1

 38   Transcript PN 300 - 302, 352, 474 and 478

 39   Ibid PN 485 - 487

 40   Ibid PN 303 and 475 - 477

 41   Ibid PN 380 - 383

 42   Ibid PN 294 and Exhibit A2 at paragraphs 8 - 10

 43   Ibid PN 299 and ibid at paragraph 12

 44   Ibid PN 304 - 306

 45   Ibid PN 307 - 308

 46   Exhibit R4 at Attachment 12

 47   Transcript PN 310 - 316 and 375

 48   Ibid PN 319 - 325

 49   Ibid PN 326 - 328

 50   Ibid PN 330 - 332

 51   Ibid PN 338 - 340

 52   Ibid PN 357 - 359 and 388 - 390

 53   Ibid PN 380

 54   Ibid PN 369 - 371

 55   Ibid PN 377

 56   Exhibit A3 at paragraph 1 and Attachment MJ-03, Exhibit R4 at Attachment 8 and Transcript PN 819 - 823

 57   Exhibit A3 at paragraphs 1 and 4 and Transcript PN 570, 611 - 612, 676 and 824

 58   Transcript PN 570 - 579 and 673 - 674

 59   Ibid PN 580

 60   Ibid PN 602 - 608

 61   Ibid PN 609 - 610

 62   Ibid PN 526 - 529, 655 - 662 and 675

 63   Ibid PN 663 - 667, 626 - 637, 707 and 718 - 719

 64   Ibid PN 802 - 803

 65   Ibid PN 547 - 551 and 553 and Exhibit A3 at paragraph 18

 66   Ibid PN 553

 67   Ibid PN 613 - 622

 68   Ibid PN 643 - 647

 69 Exhibit R 4 at Attachment 10

 70   Transcript PN 676, 684 - 686, 689 - 693 and 829

 71   Ibid PN 722 - 728

 72   Ibid PN 829 - 840

 73   Ibid PN 530 - 533, 544 - 546, 558, 730, 733 - 735, 737, 739 and 849 and Exhibit A3 at paragraphs 8 - 9

 74   Ibid PN 731 - 732

 75   Ibid PN 778 - 779 and Exhibit A3 at paragraph 11

 76   Ibid PN 554 - 560 and ibid at paragraphs 11 and 15

 77   Ibid PN 750 - 752 and 774 and ibid at paragraphs 12 - 13

 78   Ibid PN 756 - 762, 780 and 788 and ibid paragraph 18

 79   Ibid PN 781 - 787 and ibid at paragraph 16

 80   Ibid PN 789 - 793 and ibid at paragraph 16

 81   Exhibit A4 paragraph 1

 82   Ibid at paragraphs 4 - 5 and 9 and Transcript PN 909 - 912

 83   Transcript PN 913 - 914

 84   Ibid PN 915 - 916 and 919 and Exhibit A4 at paragraph 10 and Attachment TR4

 85   Ibid PN 917 - 918, 958 and 977 and ibid at paragraph 14

 86   Ibid PN 928

 87   Ibid PN 929 - 930, 932 and 934

 88   Ibid PN 982 - 983

 89   Exhibit A5 at paragraphs 1 - 4

 90   Transcript PN 996 - 998

 91   Ibid PN 1000 and 1002 - 1003 and Exhibit A5 at paragraphs 7 - 8

 92   Ibid PN 1001

 93   Ibid PN 1036

 94   Ibid PN 1041 - 1054

 95   Ibid PN 1033 and Exhibit A5 at paragraph 24

 96   Ibid PN 1067 - 1068 and 1070 - 1072

 97   Ibid PN 1067 - 1068 and 1070 - 1072

 98   Ibid PN 1074 - 1075 and Exhibit A5 at Attachment DE08

 99   Ibid PN 1080 - 1081

 100   Ibid PN 1207 - 1224

 101   Ibid PN 1224 - 1225 and Exhibit A5 at paragraph 23

 102   Ibid PN 1226

 103   Ibid PN 1228 and Exhibit A5 paragraph 21

 104   Exhibit R3 paragraph 2

 105   Ibid at paragraphs 7 - 9 and 11 and Transcript PN 1289 - 1290

 106   Transcript PN 1291 and 1382 -1383

 107   Ibid PN 1292

 108   Ibid PN 1293 - 1295

 109   Ibid PN 1375 - 1378 and 1389

 110   Ibid PN 1390 - 1394

 111   Ibid PN 1338 - 1340, 1343 - 1344 and 1346 - 1348

 112   Ibid PN 1347 - 1348

 113   Ibid PN 1364 - 1374

 114   Ibid PN 1396 and 1406

 115   Ibid PN 1408 - 1412 and Exhibit R3 at Attachment A-04

 116   Ibid PN 1413, 1416, 1422, 1424 and 1429

 117   Ibid PN 1419

 118   Ibid PN 1419 and 1423

 119   Ibid PN 1425 - 1427

 120   Ibid PN 1431

 121   Ibid PN 1444 - 1449 and 1865

 122   Ibid PN 1866

 123   Exhibit A5 at Attachment DE08

 124   Transcript PN 1450 - 1456

 125   Ibid PN 1457 - 1460 and Exhibit R3 at paragraph 18

 126   Ibid PN 1597 - 1599

 127   Ibid PN 1600 - 1602

 128   Ibid PN 1603 - 1604 and 1913 - 1914

 129   Exhibit R3 at Attachment C-02

 130   Transcript PN 1605 - 1613

 131   Ibid PN 1507 - 1511

 132   Ibid PN 1513 - 1514 and 1544

 133   Ibid PN 1522 - 1526, 1538 - 1543 and 1550 - 1551

 134   Exhibit R1

 135   Transcript PN 1545 - 1548 and 1552

 136   Ibid PN 1549 - 1556

 137   Ibid PN 1580 - 1593

 138   Ibid PN 1594 - 1595 and 1907 - 1909

 139   Ibid PN 1876 - 1877

 140   Ibid PN 1627 - 1647, 1848 - 1850 and 1853 - 1854 and Exhibit R3 at Attachment D-01

 141   Ibid PN 1846 - 1847

 142   Ibid PN 1650

 143   Ibid PN 1650 - 1660

 144   Ibid PN 1655

 145   Ibid PN 1671 - 1677

 146   Ibid PN 1879 - 1886

 147   Ibid PN 1888 - 1894

 148   Ibid PN 1679 - 1686 and 1855 - 1862

 149   Ibid PN 1691

 150   Ibid PN 1718 - 1728 and Exhibit A6

 151   Ibid PN 1867 - 1875

 152   Ibid PN 1729 - 1740

 153   Ibid PN 1832 - 1835 and 1837

 154   Ibid PN 1744 - 1759 and 1839 - 1841

 155   Ibid PN 1799 - 1800 and 1822 - 1823

 156   Ibid PN 1824 - 1831

 157   Ibid PN 1897 - 1899

 158   Exhibit R1 and Exhibit R3 at Attachment C-03

 159   Transcript PN 1902 - 1904

 160   Exhibit R4 paragraph 1 and Transcript PN 1979

 161   Ibid at paragraph 3 and ibid PN 1984

 162   Ibid at paragraphs 4 and 7 and ibid PN 1985

 163   Transcript PN 1986 - 1989 and 2001 - 2002

 164   Ibid PN 1993 - 1994 and 2697

 165   Ibid PN 2697 - 2701 and 2703

 166   Ibid PN 2704 - 2705 and 2708 - 2710

 167   Ibid PN 1995

 168   Ibid PN 1997 - 2002

 169   Ibid PN 2003 - 2005

 170   Ibid PN 2006 - 2007 and Exhibit R4 at Attachment 42

 171   Ibid PN 2008 - 2010, 2141 and 2144 - 2147

 172   Ibid PN 2011 - 2016

 173   Ibid PN 2018 - 2022

 174   Ibid PN 2030 - 2032, 2066 - 2071 and 2078 - 2081

 175   Ibid PN 2033 - 2037

 176   Ibid PN 2038

 177   Ibid PN 2048 - 2060

 178   Ibid PN 2061 - 2065

 179   Ibid PN 2088 - 2089

 180   Ibid PN 2091 - 2097

 181   Ibid PN 2098 - 2101

 182   Ibid PN 2162 - 2166

 183   Ibid PN 2102 - 2109

 184   Ibid PN 2111 - 2114

 185   Ibid PN 2124 - 2125

 186   Ibid PN 2129 - 2140

 187   Ibid PN 2148 - 2149

 188   Ibid PN 2179 - 2183

 189   Ibid PN 2184 - 2190

 190   Ibid PN 2192 - 2196 and 2711 - 2725

 191   Ibid PN 2723

 192   Ibid PN 2724

 193   Ibid PN 2199 - 2200

 194   Ibid PN 2203 and 2205

 195   Ibid PN 2213 - 2215

 196   Ibid PN 2233 - 2236

 197   Ibid PN 2216 - 2218

 198   Ibid PN 2216 - 2223

 199   Ibid PN 2224 - 2231

 200   Ibid PN 2239 - 2253, 2260 - 2262 and 2734 - 2738

 201   Ibid PN 2255 - 2257 and 2263 - 2266

 202   Ibid PN 2267 - 2295 and 2739

 203   Applicant’s Closing Submissions, dated 13 January 2017, at paragraphs 4 - 5

 204   Ibid at paragraph 6

 205   Ibid at paragraphs 7 - 8

 206   Ibid at paragraphs 9 - 10

 207   Ibid at paragraphs 3(a) and 11, Exhibit A1 at paragraph 20 and Transcript PN 51 - 52

 208   Exhibit A2 at Attachment JB04

 209   Applicant’s Closing Submissions, dated 13 January 2017, at paragraphs 13 - 14

 210   Ibid at paragraphs 15 - 16

 211   Ibid at paragraphs 3(b) and 17, Exhibit A1 at paragraphs 18 - 19 and Transcript PN 48

 212   Applicant’s Closing Submissions, dated 13 January 2017, at paragraph 18

 213   Ibid at paragraphs 19 - 20

 214   Ibid at paragraph 20

 215   Ibid at paragraphs 20 - 22

 216   Ibid at paragraph 24 and Transcript PN 49

 217   Ibid at paragraph 25 and ibid PN 50

 218   Ibid at paragraph 26

 219   Ibid at paragraphs 3(c) and paragraph 27 and Transcript PN 56 - 57

 220   Ibid at paragraph 27

 221   Ibid at paragraph 28

 222   Ibid at paragraphs 29 and 48 - 50 (page 7)

 223   Ibid at paragraph 51

 224   Ibid at paragraphs 53 - 56

 225   Ibid at paragraph 57

 226   Ibid at paragraphs 3(d) and 58

 227   Ibid at paragraph 60 and Transcript PN 45 and 47

 228   Ibid at paragraphs 61 - 62

 229   Ibid at paragraph 63

 230   Ibid at paragraphs 64, 48 (page 10) and 65

 231   Ibid at paragraphs 66 - 68

 232   Exhibit R1

 233   Applicant’s Closing Submissions, dated 13 January 2017, at paragraphs 49 - 50 (pages 11 - 12)

 234   Ibid at paragraph 51 (page 12)

 235   Ibid at paragraphs 3(e) and 52 (page 12)

 236   Exhibit A5 at Attachment 8

 237   Applicant’s Closing Submissions, dated 13 January 2017, at paragraphs 53 - 54 (page 12) and Transcript PN 3 - 54

 238   Ibid at paragraph 54 (page 12)

 239   Ibid at paragraph 55 (page 12) and Transcript PN 58

 240   Ibid at paragraphs 56 - 59 (pages 12 - 13)

 241   Ibid at paragraphs 60 (page 13) and Exhibit A1 at paragraph 23

 242   Applicant’s Closing Submissions in Reply, dated 7 March 2017, at paragraph 1

 243   Ibid at paragraph 2

 244   Ibid at paragraph 3

 245   Ibid at paragraph 7

 246   Ibid at paragraph 4

 247   Ibid at paragraph 5

 248   Ibid at paragraph 6

 249   Ibid at paragraph 8

 250   Ibid at paragraph 9

 251   Ibid at paragraph 10

 252   Ibid at paragraph 11

 253   Ibid at paragraph 12

 254   Ibid at paragraph 13

 255   Respondent’s Final Submissions, dated 23 February 2017, at page 1

 256   Ibid at pages 1 - 2 and Exhibit R2 at paragraph 1

 257   Ibid at page 2

 258   Ibid at pages 2 - 3 and 10

 259   Ibid at page 3

 260   Ibid

 261   Ibid at pages 3 - 4

 262   Ibid at page 4

 263   Ibid

 264   Ibid

 265   Ibid at pages 4 - 5

 266   Ibid at page 5

 267   Ibid

 268   Ibid at page 6

 269   Ibid and Exhibit R2 at paragraphs 4 and 6

 270   Respondent’s Final Submissions, dated 23 February 2017, at pages 6 - 7 and Exhibit R2 at paragraph 7

 271   Ibid at pages 7 and 10 - 11 and ibid at paragraph 5

 272   Ibid at pages 7 - 8 and 11 and ibid at paragraph 8

 273   Ibid at pages 9 - 10

 274   Ibid at pages 8 - 10

 275   Ibid

 276   Ibid at pages 9 - 10

 277   Ibid at page 12 and Exhibit R2 at paragraph 14

 278   Exhibit R1

 279   Exhibit A2 at Attachment JB03

 280   Clause 187.1 of the Agreement

 281   Ibid

 282   Exhibit R3 at Attachment A-02

 283   Ibid at Attachment A-03

 284   Ibid

 285   Ibid at Attachment A-04

 286   Applicant’s Closing Submissions, dated 13 January 2017, at paragraphs 29 and 48 (page 7)

 287   Ibid at paragraphs 52 - 53 (page 8)

 288   Transcript PN 2712

 289   Exhibit R4 at Attachment 3

 290   Ibid

 291   Part 3 of Schedule G at clause 2.6.1

 292   Part 3 of Schedule G at clause 2.39.1

 293   PR594463

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