Jenny Vance v Bendigo Health Care Group (BHCG)
[2014] FWC 3212
•11 JUNE 2014
[2014] FWC 3212 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Jenny Vance
v
Bendigo Health Care Group (BHCG)
(C2013/1278)
and
Pam Reynolds
v
Bendigo Health Care Group (BHCG)
(C2013/1279)
Health and welfare services | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 11 JUNE 2014 |
Alleged dispute concerning Classification Structure.
[1] On 16 August 2013 Mrs Jenny Vance and Mrs Pam Reynolds filed separate applications for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. The dispute was filed under the dispute settlement procedure in the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2014 1.
[2] The dispute was said to relate to classification.
[3] The matters were conciliated on two occasions, but were not settled.
[4] It is agreed and I am satisfied that the Commission has jurisdiction to arbitrate the dispute under the dispute settlement procedure (clause 77, Section 3).
[5] I have had regard to the submissions put and evidence led.
The Claim
[6] In each case the applicants are employed at the Golden Oaks Nursing Home, a high care residential aged care facility. In each case the applicant asks that I find that they are appropriately classified as a Patient Services Assistant, within clause 6 of Part 3, Schedule G (refer the Appendix).
Authorities
[7] In Amcor Limited v Construction Forestry Mining and Energy Union 2 Gleeson CJ and McHugh J said in a joint judgement:
“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover. Similarly, there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity, or of succession, or of discontinuity. Thus, depending upon the legal regime under which it takes place, a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations, and the question of succession to these rights and obligations, will require examination of the relevant legal (usually statutory) framework.”
[8] In that decision, Kirby J said:
“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’.” 3
Submissions and Decision
[9] In this case Ms.Connaughton, the Director of Nursing for Residential Services at Bendigo Health, gave evidence that she had worked in acute settings as well as mainly aged care. She gave evidence that an acute setting is where people come in to have emergency care, and be there for a short time while they actually are treated medically. She said that this could be a hospital, but that the Golden Oaks Nursing Home was a residential facility, a high care residential aged care facility, and is also not a community health centre. She gave evidence that some medical care is delivered there onsite, while some is offsite, such as going to a hospital. If a resident had an emergency they would go to hospital, for example if a resident had a fall and hit their head. She said that an acute setting would have provisions for intravenous administration, and a heart monitor, but that Golden Oaks did not have these things. She said that Golden Oaks was not an acute setting, because it does not have the staffing levels or equipment to manage acutely ill residents 4.
[10] She was cross examined on this evidence. She said that the transitional care program did not involve acute patients, because participants had to be ‘medically stable’ before coming to Golden Oaks, and they were cared for by their own General Practitioner and by Golden Oaks nurses. She said that she went to Golden Oaks three times a week, did not supervise anybody at Golden Oaks except remotely, did not observe the two applicants at work, but had seen them ‘giving out their cups of tea or working in the laundry or what, mopping the floors but I don’t supervise what they do’. She said that she could ‘only give the most general evidence with regards to what’ the applicants did 5.
[11] Mr.Addison claimed that acute work gets carried on in the setting 6, but had no evidence for that claim. I accept the evidence given by Ms.Connaughton in relation to the issue of an ‘acute setting’. Having regard to the evidence before me, Golden Oaks is not an acute setting.
[12] In relation to the issue of whether or not it is a ‘community health centre’, Ms.Connaughton gave uncontradicted evidence that it is not. Mr.Addison conceded that it was not 7.
[13] The requirement of clause 6.1 of the Patient Services Assistant Structure definition that the majority of the applicant’s work be in an acute setting or community health centre cannot therefore be met.
[14] In relation to the work performed by the applicants, a number of witnesses gave evidence on this issue.
[15] Ms.Vance gave evidence that she worked 7 shifts in one fortnight and 8 in the other, 4-5 being cleaning shifts, 1 laundry shift, and the rest kitchen shifts 8. She said that the majority of tasks set out in the kitchen shift rosters (LIF and LIG) were performed either in the kitchen or the dining room9. She gave similar evidence about the laundry and cleaning rosters, except that the cleaning roster was in resident bedrooms, bathrooms, the shared areas such as the lounge, dining room, staff and visitor bathrooms10. She said that there was some flexibility in the work11.
[16] Ms.Reynolds gave evidence she worked 16 shifts over a four week period, of which 4 would be laundry shifts, 10 kitchen shifts, and 2 cleaning shifts, with the majority being kitchen shifts 12. She said that three rosters attached to her witness statement contain a list of duties and times for her duties13, and that her work was the same as that of Ms.Vance14. Ms.Reynolds claimed that half of her duties were in the rooms, and half in the kitchen or laundry15.
[17] The afternoon kitchen shift roster (LIF) showed approximately five times out of twenty five stated duties with their times which were worked outside the kitchen 16. However, Ms.Reynolds then claimed that ‘we have to do whatever crops up’ and gave other evidence that she has to deal with the ‘unexpected’17. In relation to the other afternoon kitchen roster (LIG), it showed a similar breakdown of work but again Ms.Reynolds claimed that the roster ‘was pretty accurate but other things crop up’18. In relation to the laundry roster (EHC), Ms.Reynolds gave evidence that it begins in the kitchen and then moves around, again saying that other things ‘might have cropped up’ and ‘it is only a guideline’19. In relation to the duty statements the reference to ‘room or bathroom of the day’ involves duties in a range of locations including resident bedrooms, bathrooms, ensuites, the shared lounge and dining rooms, multi-purpose room, sunroom, staff based passageways and visitor bathrooms20.
[18] Ms.Vance conceded that the majority of her work was in the kitchen or dining area, and there was nothing in Ms.Reynolds’ evidence which was persuasive to the contrary. In fact her evidence was in essence the same or similar, except that she claimed to work half her shifts in rooms, which was not consistent with the rest of her evidence which was to the contrary. This includes evidence about the rosters, and work performed under the rosters which was broken down by period of the day and task, and which indicated that her work was in the kitchen or dining or similar area and not in rooms. Ms.Vance’s work was the same. While there might be some flexibility in the work as claimed by the applicants, the rosters clearly indicate that the majority of work is outside rooms, and the rosters had some indicative value. In my view the rosters and associated evidence do not support a claim that anything approaching half of the work performed by the applicants is in the patients’ rooms. The majority of work is performed in the kitchen, laundry and elsewhere that is not a ward. This is also consistent with the evidence of Ms.Connaughton 21.
[19] The applicants claim that work in resident rooms at Golden Oaks is work in a ‘ward’ within clause 6.1. This is contested by the employer. In any event, given my findings about the work of the applicants, the applicants do not perform the majority of work in patients’ rooms. They perform the work elsewhere, such as the kitchen, dining area and laundry. They cannot satisfy the requirement in clause 6.1 of the Patient Services Assistant Structure definition that they are employees for whom ‘the majority of whose work is ward based’, and that ‘PSAs are essentially ward based’ even if a ‘room’ is a ‘ward’.
[20] It is unnecessary to deal with other requirements of clause 6.1. However, for the sake of completeness the applicants may not meet the requirement of work across three functional areas, given the requirements of clause 6.7.
[21] Further, the fact that the employer paid another employee at the PSA rate is unfortunate, and has obviously caused some distress, given that employees performing similar work feel less valued. However, that does not alter the decision set out above, namely that the requirements of clause 6.1 are not satisfied by the applicants. I might add however that discussions are underway to address some of the concerns, and the employer has undertaken to provide an update on progress 22.
Conclusion
[22] The applicants are not entitled to be classified as Patient Services Assistants. Their applications must be dismissed. An order is contained in PR551903.
DEPUTY PRESIDENT
Appearances:
Mr M Addison for the applicants
Mr S McCullough of Victorian Hospitals’ Industrial Association for the respondent
Hearing details:
2014
Melbourne
15 May
APPENDIX
Clause 77 of the agreement provides:
77.1 Resolution of disputes and grievances
77.1.1 Unless otherwise provided for in Section 3, a dispute or grievance about a matter arising under Section 3 or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute or grievance about whether an Employer had reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.
. . . . . .
77.9 Conduct of matters before Fair Work Australia
77.9.1 Subject to any agreement between the parties to the dispute, in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration, Fair Work Australia may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the Fair Work Act 2009.
2. GRADE 2
2.1 Description
2.1.1 Positions at the Grade 2 level are regarded as base grade administrators or operators within a defined activity.
2.2 Work Level Standard
2.2.1 Positions require knowledge associated with several years experience or technical training. They require performance of related tasks within a defined area of activity which have clearly defined objectives. They require the ability to obtain cooperation to comply with technical and administrative arrangements, or to provide information and advice to members of the public consistent with organisational guidelines.
2.2.2 There are established procedures for performing tasks. Positions are well defined, with standardised procedures, although the tasks performed may require the use of a number of accepted methods or systems. The most suitable course of action is selected from a limited range and effective choice is guided by precedent or rule and can be learned.
2.2.3 The positions’ progress is closely monitored against standards, targets or budgets, though there is limited flexibility in the means of achieving these. The positions report frequently on work progress and/or receive instructions which determine the work program and the standards to be achieved. The positions are required to analyse situations or information, clearly and accurately communicate information, or make recommendations to peers or immediate supervisors.
2.3 Typical Role/Duties
2.3.1 Prepare statistical reports and summaries and monitor and check accuracy of reports;
2.3.2 Monitor daily billings and collections by cashiers and banking;
2.3.3 Process standard claim forms, ensuring that all legislated procedural requirements are met;
2.3.4 Train new Employees in basic clerical or administrative functions;
2.3.5 Follow progress of invoices, orders or payments to ensure action occurs as specified in these documents;
2.3.6 Undertake enquiries related to work area; for example the availability of ordered stock, the best available price for ordered items, overdue accounts;
2.3.7 Maintain accurate and effective filing systems;
2.3.8 Communicate with external organisations such as health insurance funds, Accident Compensation Commission, Veterans’ Affairs, and WorkCover claims administration agents regarding payment of accounts;
2.3.9 Prepare minutes and agendas, and co-ordinate meeting dates for committee meetings.
2.4 Benchmark Descriptors:
Administration Office Co-ordinator, responsible for co0ordinating a range of complex secretarial functions including typing, compiling agendas for meetings, answering the telephone, photocopying and organising meetings and functions, to ensure the smooth running of an office, where at least one other person is employed. Responsible for providing clerical and word processing support.
Administration Functions can vary including having contact with members of the public and diverting the calls as needed, or providing advice to the enquirers, and providing a high level of support to management to ensure the smooth operation of an executive office. Use a range of software packages and administrative procedures occurs at this level. Finance Positions responsible for the preparation of standard statistical reports, preparing information for the general ledger to ensure that complete and accurate records are supplied.
MIS PC Support Officer requiring post-secondary, vocational training. Typical activities include PC installation, printer setup and cabling, initial hardware/software/user fault diagnosis, equipment inventories and records management, and providing users with information on hardware/software capacity.
6. PATIENT SERVICES ASSISTANT STRUCTURE
6.1 A Patient Services Assistant (PSA) is a multi-skilled Employee, the majority of whose work is ward based in an acute setting or community health centre. The work of PSAs involves the performance of duties across three or more functional areas of patient support services. PSAs are essentially ward based. PSAs will be encouraged to undertake training, which may include further training to enable them to obtain the certificate or equivalent for career development.
6.2 Notwithstanding clause 6.1 above, PSAs are not precluded from undertaking non-ward functions and duties. Employees whose jobs involve casual or irregular ward based duties, or where their presence on a ward is a minor aspect of their role, are not performing PSA work.
6.3 The functional areas covered by PSAs are as follows:
Functions: | DUTIES: |
Cleaning and Housekeeping | • Ward areas (including toilets, showers, bathrooms, lockers, shelving and infectious rooms etc.) • Handle patient laundry (including washing and drying of patient laundry) • General/administrative areas (including office, cafeteria, stairs and lifts etc.) • Terminal/discharge bed (re-)making (i.e. Carbolising) • Equipment and instruments • Damp and high dusting • Vacuuming • Mopping and buffing of floors • Spot cleaning • Rubbish removal • Linen removal |
Food and Beverage | • Serving of meals to patients • Food transportation to and from the ward • Basic food monitoring (e.g. checking that food matches the order) • Replenish refrigerator and pantry supplies |
Transport and Couriering | • Transporting patients between wards, departments and theatres • Transporting equipment between wards, departments and theatres • Couriering x-rays, specimens and patient records • Movement of deceased patients to the mortuary |
Ward Support | • Checking of oxygen cylinders • Filling, distributing and collecting of water jugs and glasses • Delivery and maintenance of flowers • Replenish consumables to normal stock levels • Restocking of ward trolleys or cubicles • Under direction, and with appropriate training, to assist in patient restraint. This may include code blue and other emergencies as part of a hospital response team • Message taking |
Patient Support | • Assist in the lifting and turning of patients (including into and out of wheel chairs and trolleys) • Assist in lifting and positioning of patients in bed, including by machinery • Assist with patient facial shaves and pre-operative shaves • Assist in the transportation of ambulance patients |
6.4 For the purposes of this definition, ward based work includes Employees providing patient support services in areas such as outpatient, x-ray, catheter laboratory, nuclear medicine, dialysis and other areas providing patient support services consistent with the functions and duties described in clause 6.3 above.
6.5 The functions listed in clause 6.3 above are intended to be comprehensive. The listed duties are intended to be indicative, not comprehensive.
6.6 In determining the number of functions to be completed by a PSA, it will not be necessary for a PSA to perform any particular number of duties identified as falling within each functional area.
6.7 In considering the duties that constitute a function, there must be the inclusion of sufficient duties relevant to the function such that the work in question is an integral and significant part of that function within the operations of the ward. While additional duties may be included, the inclusion of an additional duty or duties does not necessarily equate to an additional function, unless the extra duties constitute a regular part of a shift, or period of work.
6.8 Not all PSAs will be expected to perform all of the functions listed in clause 6.3. PSAs at the Grade 2 level will perform four or more functions, and PSAs at the Grade 1 level will perform three functions.
1 [2012] FWAA 7760
2 [2005] 222 CLR 241
3 Ibid, paragraph 96
4 PN964-984
5 PN990-1009
6 PN267
7 PN262-263
8 PN709-716
9 PN717
10 PN718-729
11 PN768
12 PN493-494
13 PN481
14 PN418-419
15 PN519-520
16 PN516-517
17 PN522-526
18 PN532
19 PN537
20 PN544
21 Exhibit B3 paragraphs 9-16
22 PN1077
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