[2009] AIRCFB 353 [2009] AIRCFB 353 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.423(3)—Bargaining period Health Services Union v Austin Health and Ors [as per Schedule 1] (BP2007/4059) SENIOR DEPUTY PRESIDENT LACY DEPUTY PRESIDENT IVES COMMISSIONER LEWIN MELBOURNE, 3 APRIL 2009 Workplace Determination – operative date of determination – distinction between operative date of determination and operation of determination - retrospective wage increase - need for special and compelling circumstances – dispute resolution – meaning of “in accordance with model dispute resolution process”. CONTENTS Item Page Paragraph List of abbreviations 3 Introduction 4 [1] HSU claim 5 [6] Employer counter claims 7 [7] Statutory powers 9 [11] History of bargaining and industrial instruments 10 [14] Conduct of the parties during bargaining 11 [21] Consideration of the issues 12 [24] Operative date of determination 13 [30] Wage rates 14 [35] Incorporation of existing terms and conditions 19 [50] Anti-discrimination 19 [52] Period of operation of determination 20 [54] Definitions 19 [53] Flexibility clause 20 [58] Scope of determination 21 [62] Organisational change 22 [66] Dispute settlement procedure 24 [70] Procedure in relation to performance and conduct 25 [73] Types of employment 26 [77] Application of clauses conferring an entitlement 28 [83] Advertising staff vacancies 28 [84] Termination of employment 29 [85] Classification of UG Grade 1 29 [86] Sole employee allowance and classification of employee working independently 30 [89] Classification of health professionals working in community health centres/psychiatric services 30 [92] Chief structures 31 [96] Professional standards 31 [99] Medical imaging tutor and clinical educator 32 [102] Deduction for board and lodging 32 [103] Registration allowance 32 [104] Adjustment of allowances 33 [105] Number of accrued days off each year 33 [108] Meal breaks 33 [109] Time off in-lieu of overtime 33 [110] Child care costs 35 [114] On-call allowance 35 [116] Shift allowance 36 [119] Annual leave 36 [120] Flexible annual leave arrangements 36 [122] Weekend workers 37 [125] Personal leave 38 [128] Parental leave 38 [130] Long Service Leave 38 [131] Public holidays 39 [134] Study leave 39 [135] Professional development leave and expenses 39 [136] Blood donor leave 40 [141] Backfill 40 [142] Leave to engage in emergency relief activities 41 [144] Occupational health and safety training leave 42 [147] Travel allowance 42 [148] Bullying 42 [150] Accident makeup pay 43 [153] Union delegates 43 [155] Operational bonus 44 [156] Changes to classifications 44 [158] Determinations 45 [162] Appendix A 47 Schedule 1 49 LIST OF ABBREVIATIONS ABS Australian Bureau of Statistics AFPC Australian Fair Pay Commission AIRC Australian Industrial Relations Commission AWE Average Weekly Earnings CHC Community Health Centres CPI Consumer Price Index DHS Department of Human Services EBA Enterprise Bargaining Agreement HSU Health Services Union LPI Labour Price Index VHIA Victorian Hospitals’ Industrial Association WPI Wage Price Index Decision Introduction [1] On 22 October 2007 Health Services Union (HSU) initiated bargaining periods (the bargaining periods) in respect of 68 employing Victorian Health Services and Community Health Centres. By order dated 17 March 2008 Commissioner Cribb terminated each of the bargaining periods pursuant to subsections 430(1) and 430(3) of the Workplace Relations Act 1996 (WR Act). The termination of the bargaining periods resulted in a period of negotiation between the parties. The matters at issue were not resolved and, on 14 April 2008, HSU sought the constitution of a Full Bench for the purpose of issuing a workplace determination under s.503 of the WR Act. The matter came on for hearing on 12 September 2008. In the interim there had been a period of Commission assisted negotiations consistent with the provisions of s.502 of the WR Act. [2] The HSU is an organisation of employees representing in these proceedings the category of employees known as “allied health professionals” who are employed by Victorian Health Services or Community Health Centres (CHC) in the public health system. The health services and health centres, which we will refer to generally as the employers, are members of, and represented by the Victorian Hospitals’ Industrial Association (VHIA). VHIA is an organisation of employers. It is supported in its representation of the employers by the Victorian Department of Human Services (DHS) intervening on behalf of the State of Victoria. DHS is the department of government through which the Victorian Health Services are funded. [3] The terms and conditions of employment regulating the employment of employees sought to be covered by the determinations are found in the Health Professionals Services – Public Sector – Victoria Award 2003 (2003 Award) and the Health Services Union of Australia Health Professionals Victorian Public Sector Multiple Business Agreement 2004-2007 (2004 Agreement). [4] HSU and VHIA each filed draft determinations in which each makes competing proposals for changes to some of the existing terms and conditions of employment. VHIA submitted that a separate determination for each health service or community health centre is a necessary incident of the statutory requirements for workplace determinations. We think this is an accurate reflection of the requirements of Part 9, Division VIII of the WR Act. VHIA’s draft determination is generic in its form but incorporates variations as necessary to suit the requirements of certain identified individual health services’ determinations. We will refer to the VHIA draft as either that of the employers or as the respondents being, as it is, supported by the intervener and the several employers represented by VHIA. [5] Subsequent to the commencement of proceedings the employers and the HSU have made changes to their respective draft determinations. The changes involved removal of some of the original claims and variations to others. We will deal only with the claims and counter claims as they appear in the final draft workplace determinations. HSU Claim [6] In its draft determination the HSU seeks to maintain all existing award and agreement terms and conditions with some variations and improvements and with the addition of new ones. To the extent that it seeks to maintain existing terms and conditions of employment the draft determination expressly provides that the employees’ terms and conditions will be maintained and seeks to incorporate by reference certain specified agreements. The new or varied terms in the HSU draft determination, all of which are disputed, fall within the following descriptions: scope of determination; organisational change; dispute settlement procedure; procedure in relation to performance or conduct; fixed term employment; wage rates; classification of UG 1; employee working independently; classifications of health professionals working in community health and psychiatric services; chief structures; professional standards; medical imaging technologist tutor; clinical educator; registration allowance; adjustment of allowances; number of accrued days off; meal breaks; time off in-lieu of overtime; childcare; increase in on-call allowance; increase in shift-work allowance; increase in period of annual leave; flexible annual leave arrangements; weekend worker; leave to attend chiropodist; increase in paid parental leave; entitlement to long service leave upon termination of employment ; additional public holiday entitlement; study leave; professional development leave and expenses; blood donor leave; backfill; emergency relief leave; occupational health and safety training leave; travelling allowance; bullying; accident pay; union delegates; operational bonus; changes to classification definitions; period of operation of determination. Employer counter-claims [7] The respondents contend that 13 of the 68 employers sought to be bound by a workplace determination are not employers within the meaning of s.6 of the WR Act and cannot be subject to a workplace determination. It was further contended that the health services are emanations of, or part of the State of Victoria and as such cannot be subject to an order of the Commission that affects their capacity to determine the number or identity of persons whom they wish to employ. As to the first of these two issues the parties have agreed that pending the outcome of the proceedings in respect of the 55 employers for whom the respondents concede jurisdiction, the Commission reserve any further steps in respect of the other 13 employers that are said to be unincorporated. Those matters are reserved accordingly. The second issue is contested in relation to its major premise and, in the alternative, as to the capacity of the Commission in any event to tailor an order to suit the circumstances of the case. In light of the conclusions we have reached in respect of the HSU claims it is unnecessary for us to determine whether the employers are part of the State of Victoria. [8] As suggested earlier the respondents filed a single draft workplace determination incorporating different substituted terms for some of the employers other than the CHC’s said not to be employers as defined. Indicated within the body of the respondents’ draft are the suggested variations as required for individual employer determinations. The respondents filed also six different proposed classification structures, four of which are identified to individual health services, one of which applies to two of the health services and the other being applicable to the remaining 49 health services. [9] While expressly providing that the final workplace determination will supersede all existing formal and informal agreements and the 2003 Award, the respondents’ draft determination for the most part includes existing terms and conditions from the 2003 Award and the 2004 Agreement but with some variations or modification to meet the requirements of the amended legislation. We will include in the workplace determination the classification structures as proposed by the employers. [10] The respondents’ draft determination includes a number of enhancements; proposing service delivery improvements and productivity measures, wage increases, increased paid parental leave, increased meal, uniform and laundry allowances, a new entitlement to blood donor leave, a new entitlement to emergency relief leave, removal of the provision for deduction from wages for board and lodging and a new disputes resolution clause. To the extent that the proposed terms or conditions are part of the HSU draft workplace determination we will deal with them conjointly. Otherwise the matters will be dealt with chronologically in terms of the draft determinations that the parties have provided. The respondents’ draft proposes a number of other changes, which either remove or modify existing terms and conditions of employment. The changes, some or which are intended to promote productivity improvements, include: insertion of a flexibility clause; removal of shift allowance; provision for using or cashing out excessive leave; substitution of “Employer” for “HSU or TUTA” as the entity for authorising attendance at dispute resolution training courses; removal of requirement to advertise staff vacancies; removal of entitlement to Easter Saturday pay for Monday to Friday workers; modification of provision for employee forfeiture of pay in-lieu of notice of termination; restriction of sole allowance to Grades 1 and 2 employees only. Each of these proposed changes, apart from the flexibility clause, is implicitly contested by the HSU draft dealing with the same issues. The flexibility clause is explicitly opposed on the ground that it was not a matter at issue during the bargaining period. Statutory powers [11] We note the constraints imposed by the legislation on the terms that may be included in a workplace determination and on the matters or factors that may be taken into account in deciding those terms. These matters are to be found in s.504 of the WR Act. Section 504 provides as follows: “Section 504 Content of workplace determination (1) The workplace determination must contain terms that, in the opinion of the Full Bench, deal with the matters at issue. (2) The workplace determination comes into operation on the day on which it is made. (3) The workplace determination must contain a term specifying a nominal expiry date for the determination that is no later than 5 years after the date on which the determination commences operating. (4) The workplace determination must not contain prohibited content. (5) In deciding which terms to include in the workplace determination, the Full Bench must have regard to the following factors only: (a) the matters at issue; (b) the merits of the case; (c) the interests of the negotiating parties and the public interest; (d) how productivity might be improved in the business or part of the business concerned; (e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable; (f) incentives to encourage parties to pursue negotiated outcomes at a later stage; (g) the employer’s capacity to pay; (h) decisions of the AFPC; (i) any other factors specified in the regulations. (6) The workplace determination must require disputes about matters arising under the determination to be dealt with in accordance with the model dispute resolution process (see Part 13). (7) The workplace determination must not contain any terms other than those required by this section.” [12] No regulations have been made specifying any other factors that must be taken into account. We note that this is the first time a workplace determination has been considered under the provisions of s.504. [13] The parties addressed each of the matters set out in s.504 in their submissions both directly or in the context of competing claims included in the draft determinations and supporting evidence. Before turning to consider the competing claims of the parties it is instructive to examine the history of the industrial instruments regulating the terms and conditions of employment of allied health professionals and the bargaining between the principal parties in this sector of the industry. The history is important for two reasons. First, each party suggested that the other’s conduct during the bargaining period was unreasonable. That is an issue relevant to our determination. Secondly, HSU contends that its capacity and that of its members to resort to protected industrial action is constrained by the nature of the work of its members and their moral commitment to their duty of care. That is a matter relevant to the interests of the parties. History of bargaining and industrial instruments [14] This determination represents the third occasion in the past 10 years where the Commission has been called upon to intervene in the negotiations between HSU and the employers for an agreement on terms and conditions of employment for allied health professionals. In 1999 the Commission pursuant s.170MW of WR Act, as it then was, terminated the bargaining periods between the HSU and a number of health services including the employers. A Full Bench subsequently, in the exercise of the powers conferred on it by s.170MX of the WR Act, as it then was, made the Health Services Union of Australia and Alexandra District Hospital – Health Professionals – Victorian Public Sector – Award 1999 (1999 Award) with a nominal expiry date of 31 August 2000. [15] About the time the 1999 Award reached its nominal expiry date HSU and VHIA commenced negotiations for a new agreement. The negotiations culminated in the parties requesting the Commission under s.111AA to resolve the matters in which the parties could not reach agreement by conducting a hearing and making a recommendation. Taking into account the Commission’s recommendations the parties negotiated the Health Services Union of Australia Health Professionals Victorian Public Sector Multiple Business Agreement 2000-2004 (2000 Agreement). The 2000 Agreement was certified by a Full Bench of the Commission on 26 August 2003 with a nominal expiry date of 31 March 2004. [16] HSU and VHIA commenced negotiations for the current multiple business agreement, i.e. the 2004 Agreement about the same time as the 2000 Agreement reached its nominal expiry date. The parties reached agreement without intervention by the Commission. It was finally certified as a multiple business agreement by a Full Bench of the Commission on 12 January 2006, with a nominal expiry date of 30 September 2007. [17] As mentioned in the first paragraph HSU initiated bargaining periods on 22 October 2007. HSU commenced negotiations with VHIA and DHS for a new agreement in November 2007. Soon after the commencement of its negotiations HSU applied for and secured protected action ballots in respect of allied health professionals employed by Melbourne Health, Northern Health, Peter MacCallum Cancer Centre, St Vincent’s Health and Western Health. The allied health professionals employed in each of the named establishments other than St Vincent’s Health approved the industrial action proposed in the ballots. This was followed by some allied health professionals engaging in unprotected industrial action while others notified their employers of an intention to engage in such action. A VHIA application to stop or prevent the industrial action resulted in the agreement of HSU to lift or ease the unprotected industrial action and for conciliation before Vice President Lawler to occur. Conciliation failed to resolve the issues and HSU members resumed their unprotected industrial action. [18] VHIA secured orders under s.496 of the WR Act directing that industrial action stop or not occur. The unprotected industrial action continued while HSU challenged the validity of the s.496 orders by way of appeal to a Full Bench of the Commission. Meanwhile VHIA applied to the Federal Court of Australia for orders in respect of the HSU’s contravention of the s.496 orders. The Federal Court issued interim orders retraining HSU from organising, directing, inducing, authorising, encouraging or facilitating industrial action. [19] In the course of hearing HSU’s application for a stay of the operation of the s.496 orders on 21 and 22 December 2007, HSU asked the Full Bench to terminate some of the bargaining periods. In so doing it expressed concerns that some of its members were resolved to take industrial action that would endanger the lives of people. On 22 December 2007 HSU applied for the suspension of a number of specified bargaining periods. The Full Bench suspended the nominated bargaining periods on 24 December 2007 until 14 January 2008. [20] On 12 March 2008 the allied health professionals approved industrial action in respect of the employers. The industrial action was scheduled to start on 18 March 2008 and to continue indefinitely. On 17 March 2008 the Commission, acting on the applications of a number of the employers, terminated the bargaining periods in respect of those employers. HSU unsuccessfully appealed the orders terminating the bargaining periods and the matter proceeded as outlined in [1] above. Conduct of the parties during bargaining [21] On the issue of reasonableness of the parties HSU complained of a failure or refusal by VHIA members to provide information to facilitate negotiations. In this regard it is said that VHIA has been unreasonable. The information that HSU sought related to the equivalent full-time (EFT) allied health professionals in each of the classifications. It is contended that the failure or refusal of the employers to provide the information hampered negotiations and placed HSU at a disadvantage. VHIA contends that HSU did not lead any evidence that revealed any disadvantage suffered in the course of negotiations. HSU’s negotiations were said to have focussed on structural issues and it could not have been assisted in that regard by the EFT staff employed by the employers. It is absurd, VHIA submitted, to speculate that the provision of the material would have had any impact whatsoever on the course of negotiations at all. [22] VHIA for its part complained of HSU and its members conduct in bringing about the termination of the bargaining periods and their continued industrial action contrary to the public interest and in spite of the Commission’s orders that the industrial stop. [23] In our view the conduct of the principal parties warrants some criticism. It appears that the information that HSU sought from VHIA was available. No explanation has been offered for not providing it. VHIA’s failure to provide the information sought raises some doubts about the degree to which VHIA was genuinely motivated to reach agreement. Had the information been provided it would have engendered a medium of trust and assisted in better bargaining. On the other hand the conduct of the HSU and its members in taking and continuing industrial action contrary to the WR Act and in the face of Commission orders that it desist is a serious matter and deserving of serious criticism. While the frustration of its members with the bargaining process is a mitigating factor it does not excuse entirely the admitted preparedness of the employees to take unprotected industrial action that may have endangered the lives of others. We take all of these matters into account in our determination. Consideration of the issues [24] The parties relied on documentary witness evidence. Witness statements were filed by HSU and VHIA in support of their respective cases. HSU also sought to rely on a number of statutory declarations of individuals who were not to be called to give evidence. The respondents objected to admission of the declarations as evidence and they were marked for identification but were not subsequently addressed and were not admitted unconditionally. No weight is given to them. There was a total of 176 exhibits including witness statements, published reports, awards and agreements and other documents. All witnesses for whom witness statements were filed were required for cross-examination. Appendix 1 is a list of the witnesses who gave evidence. [25] HSU has made a significant number of claims. Some claims are granted. There was a number however that superficially had merit, but, unfortunately, the evidence, as it was presented to us, was not sufficiently persuasive to justify a favourable decision granting all of the claims. [26] There are aspects of the existing terms and conditions that neither party seeks to change other than by changes in form or expression to conform to the legislative changes introduced since the 2004 Agreement was certified. Some of those matters are dealt with in this decision Where however we do not expressly deal with matters we will include the existing award or agreement terms as modified for legislative conformity in our determination. [27] The HSU addressed briefly and in general terms each of the s.504 factors. It made the following general submission in respect of the merits of its case: “Recruitment and retention of allied health professionals, particularly in some disciplines, has been problematic for years. Remuneration and professional issues are important factors.” This was the focal point upon which HSU pitched its case. In respect of the other factors HSU submitted generally that: maintenance of real wages was in the interests of the negotiating parties and the public interest; its proposed terms and conditions will enhance productivity by providing better governance; VHIA was unreasonable in its refusal or failure to provide information to facilitate negotiations; a workplace determination of short duration will be an incentive for the parties to negotiate; and in considering the employers’ capacity to pay, the Commission should ignore the suggestion that the Government may not fund the costs associated with the determination. [28] Other than the contention that the provision for flexible working arrangements in the respondents’ draft determination was not a matter at issue during the bargaining period, the HSU did not expressly take issue with the contents of the respondents’ draft determination. It is implicit however, from the HSU draft determination, that it takes issue with each and every provision of the respondents’ draft that contradicts the provisions of its own draft determination. [29] The respondents’ submissions in respect of the matters set out in s.504 first attempted to define the ingredients of each of the factors independently of the claims before addressing its own and then the HSU claims within that context. We do not propose addressing the definitions proposed by the respondents but we will take them into account and address them as necessary in dealing with each of the claims in the context of the factors to which we must have regard. We will deal with those matters chronologically as they arise in the disputed claims of each of the parties. Before doing so however it is important that we resolve two disputed issues that have some impact on the other aspects of the determination. The first issue is about retrospectivity in the context of the operative date for the determination. The other issue is that of the competing claims in respect of increases in wage rates. Operative date of determination [30] Clause 5 of the HSU’s draft determination provides in part that the determination shall come into force from the beginning of the first full pay period on or after the operative date of this determination. Clause 21 provides that the classifications specified therein shall be paid in accordance with the schedule of wages. Schedule 5 is the relevant schedule. The schedule takes the form of three columns showing classification, wages at 1 October 2006 and 16% increase at October 2008. Implicit in the schedule is the expectation that a proportion of any wage increase granted in our determination is to be retrospective to October 2006. In its submissions the HSU posited that an appropriate split for a 16% increase would be 10% retrospective and 6% prospective. [31] The respondents contend that the Commission has no power to include a retrospective period of operation in the workplace determination. They submitted that when s.504(2) is contrasted with s.170MX in its legislative context with ss.170MY, 145 and 146 of the pre-reform WR Act, it is clear that the option for retrospectivity that existed under the pre-reform WR Act is no longer available. The HSU’s submissions on the other hand draw a distinction between the operative date of the determination and the operation of the determination according to its terms. It referred to the Full Bench decision in Chubb Security Australia Pty Ltd and Australian Liquor, Hospitality and Miscellaneous Workers Union 1 in which it made the obiter observation that giving a retrospective date of effect was common in certified agreements although the agreement came into operation at the date of certification. The HSU submitted that the operation of the determination does not preclude it having retrospective effect if that is what its terms stipulate. [32] We accept that under the pre-reform WR Act agreements were commonly certified on a particular date with a term specifying that certain terms or conditions of the agreement were to take effect at a date prior to the date of certification. This was despite the legislative stipulation that the agreement operated from the date of certification. It is difficult however to ignore the conceptual difference between an agreement that carries a term giving a benefit or imposing an obligation retrospectively and an award or order of the Commission with that effect. That is not to say that the legislation draws that distinction or otherwise constrains an order of that kind, as we consider that it does not. In our view however, such an order in a workplace determination would require evidence of special and compelling circumstances. [33] HSU submitted that retrospectivity was justified to provide an operational bonus and to appropriately remunerate employees. It contended that a 10% increase retrospective to 1 October 2007 was justified. This included a 7% increase that the HSU contended was necessary to restore the allied health professionals to the same real wage they had at the date of the last pay increase. The respondents submitted that the premise upon which the HSU based its 7% real wage claim was flawed. The HSU calculation, according to the respondents’ argument, presumed as its start point 1 October 2006 which was the date of the last pay increase. The respondents submitted the correct start date was 1 October 2007 as the increase paid on 1 October 2006 was an annual increase through to the nominal expiry date of the collective agreement, i.e. 30 September 2007. While opposing any retrospectivity the respondents submitted that, having regard to the CPI alone, an increase of 4.67% would be sufficient to restore the employees’ real wage. [34] Having regard to the submissions and the relevant factors set out in s.504 of the WR Act we are satisfied that special and compelling circumstances have been shown to exist for retrospective operation of the terms of our determination in this case. It seems to us that it would be unfair not to do so given the time that has elapsed since the allied health professionals’ last pay rise, the drawn out process of negotiation and conciliation, the time elapsed since the matter was last heard and the slippage in relativities between allied health professionals and the nurses. The delays represent some savings to the health services. In our view the unfairness to the allied health professionals is a special and compelling circumstance warranting a wage increase which is retrospective to the first pay period commencing on or after the date on which we reserved our decision in this matter. The determination will be operative from the date of the determination but it will make provision for a retrospective wage increase accordingly. Wage rates [35] The employers propose a 2% uplift in the current wage rates with an additional 3.25% increase as at the date of the workplace determination and then for each year of the life of the determination. HSU proposes a 16% increase with some proportion being made retrospective to 1 October 2007. It is common ground that maintenance of real wages is a relevant factor in wage setting. HSU and VHIA advance competing arguments however for the respective proposed increases based on the Consumer Price Index (CPI), the Wage Price Index (WPI) and the Labour Price Index (LPI). Each contends that their respective wage proposal is consistent with the maintenance of real wages in the sector. Before dealing with the competing claims on wages it is necessary to set out the background to the employers’ position on wages. [36] The employers submitted that throughout the course of the negotiations between VHIA on behalf of the employers and HSU on behalf of the allied health professionals, it was the aim of VHIA to achieve an outcome that was consistent with the Victorian Government wages funding policy (funding policy). The funding policy facilitates Government policy on outcomes for employees of budgeted funded agencies and internal funding of departments by the Government. The Government determines the level and total price of services and funds the agencies, including DHS, accordingly. Price is increased over time by an escalation factor based on movements in the rate of projected CPI increases (escalation factor). Under the current funding policy an overall average annual increase of 3.25% on the total cost of the agreement, part of which is the escalation factor, is to be used as a guide for agreement outcomes. The respondents’ workplace determinations, the employers submitted, are formulated consistently with the funding policy. [37] The employers submitted that the cost of their proposal exceeds the escalation factor. Consequently demonstrable service delivery improvements and productivity offsets are required to meet the requirements of the funding policy. The respondents’ draft determination lists the elements of the productivity offsets. In their submissions the employers summarised the offset elements as follows: cooperation and support for the Better Skills Best Care workforce project to encourage uptake of the full spectrum of allied health roles; increased patient throughput; Cooperation for increased use of allied health assistants to work along-side allied health professionals; production of a single instrument governing the terms of allied health professionals at each health service and clarification of the operation of existing entitlements in a number of respects; and increased flexibility in workplace practices and arrangements. [38] The funding policy, it was submitted, is a relevant and cogent consideration in determining wages and conditions of employment in a workplace determination. The employers submitted that any workplace determination of the Commission should be broadly consistent with the funding policy. The funding policy supports equitable wage outcomes and has formed the basis of all negotiated outcomes in the bargaining rounds concerning the Victorian public sector employees. [39] The employers contended that CPI is a factor to be considered in assessing real wage growth. It is not however, the only factor. But even considering CPI alone allied health professionals have experienced real wage growth to date. To the extent that CPI is used in assessing the HSU claim it should be used, the employers submitted, going forward from 1 October 2007. In order to maintain the wages of allied health professionals as they stood at 1 October 2007, based on CPI alone, an increase of 4.67%, including the notional 1.1% increase for the September quarter, is required. [40] As noted above HSU seeks a 16% wage increase. It submitted that allied health professionals had suffered real wage cuts. The employers’ proposed salary increases, it was submitted, would cut wages even further. In effect its case is that since the changes in allied health professionals’ wages effected by the s.170MX arbitrated award in 2000, there have been significant changes in the work and the role of the allied health professionals. They have delivered already substantial productivity measures and service improvements. The changes have not been adequately rewarded in subsequent bargains or negotiated outcomes since then. [41] Furthermore, HSU submitted, real wages of Victorian public sector nurses have far outstripped those of allied health professionals and relevant relativities have been eroded. Real wages of allied health professionals have fallen by 10% since April 2000. Referring to the Australian Bureau of Statistics Average Weekly Earnings (AWE) survey it was submitted that the wages of health professionals had fallen by 9% - 10% since April 2000. Based on CPI indices, HSU submitted that wages of the relevant health professionals have fallen 3% in real terms since 1 April 2004. [42] The employers contend there are more relevant datasets for public sector employees than the AWE. It was further submitted that the HSU used national figures rather than Melbourne figures in calculating real wages over the period March 2000 to December 2007 which show that wage increases have matched inflation and represent maintenance of real wages. The employer went on to criticise the HSU methodology in using the WPI to demonstrate wage comparisons. [43] We have had regard to the employers’ submissions on the funding policy in their entirety and we accept the broad thrust of those submissions on the desirability of stability and consistency in wages and conditions in this and related fields of employment in Victoria. 2 While that is a relevant consideration it is not, as was properly conceded by the employers, the only consideration. [44] We are satisfied that there has been some addition to the work requirements of allied health professionals, but the evidence does not demonstrate that there has been a significant net addition. The evidence reveals that the technological and changes in methods are little more than evolutionary improvements in the work of allied health professionals. While there has been an increase in patient acuity the increase is not so significant to take it outside the scope of the value of the work being performed by allied health professionals. It follows that we are not satisfied that the change in the work methods and equipment warrants an increase in wages. We nonetheless acknowledge the growing importance of the work performed by allied health professionals. [45] We regard the national CPI changes are the optimal measure of inflation. Although it is true to say, as the respondents do, the national figures do not take account of any rural or regional aberrations. It is a fair assumption however, that by comparison a greater degree of local price fluctuations will be smoothed over where the averages of the capital cities are weighted to produce the equivalent of an all Australia index. Hence, in the absence of appropriate data collection for rural and regional areas, it is appropriate to extrapolate the all Australia index data in preference to utilising that pertaining only to the relevant State or Territory capital. [46] The respondents in their submissions are also critical of HSU’s reliance on the WPI component of the LPI, Australia, December 2008 index instead of the broader LPI, which incorporates the WPI component and an additional four non-wage price indexes. It would appear that where changes in wage and salary levels are under consideration the WPI sub-index is more appropriate than the broader concept of changes over time in the price to an employer of employing labour services. 3 It is clear in any event that whichever measure is used allied health professionals have experienced real wage increases in the period March 2000 to December 2007 in the order of 3.5% to 4.5% between the March quarter 2000 and the September quarter 2007. Similarly, HSU experienced real wage growth over the period of the 2004 Agreement to the end of September 2007 whether calculated using the national or the Melbourne inflation figure; 1.4% using the Australia index and 2% on the basis of the Melbourne index. [47] The respondents in their reply to the HSU’s submissions on mid-year data submitted that sole reliance on the WPI ignores other wage data prepared by the ABS. Referring to the average weekly earnings data in particular the employers submitted that a 1.3% increase in average weekly earnings was to be seen in the six months from November 2007 to May 2008. This it was suggested showed a far smaller increase over time when compared with the WPI. As the following table shows that is not necessarily so: TABLE 1. Extracts from Average Weekly Earnings, Australia, Nov 2008 4 and Labour Price Index, Australia, Dec 2008 5 Earnings; Persons; Full Time; Ault ; Ordinary time earnings ; Public 6 (Seasonally adjusted) ($) Earnings; Persons; Full Time; Adult; Ordinary time earnings; Public 7 (Original) ($) Earnings; Victoria; Persons; Full Time; Adult; Ordinary time earnings; Public 8 (Original) ($) Total hourly rates of pay excluding bonuses Public 9 (Seaso nally Adjusted) (Index numbers) Total hourly rates of pay excluding bonuses; Australia; Public; All occupations 10 (Original) (Index numbers) Total hourly rates of pay excluding bonuses; Victoria; Public; All occupations 11 (Original) (Index numbers) November 2006 1147.3 1149.60 1150.7 113.1 (December) 113.2 (December) 112.1 November 2007 1184.10 1187.00 1172.20 117.7 (December) 117.8 (December) 115.4 May 2007 1202.00 1200.20 1183.60 119.8 (June 08) 119.4 (June 08) 117.0 November 2008 1231.80 1235.30 1231.50 121.4 (December) 122.7 (December) 120.8 % Change (Nov 07 – Nov 08) 4.0% 4.1% 5.1% 3.1% 4.2% (Dec – Dec) 4.7% % Change (Nov 06– Nov 08) 7.4% 7.4% 7.0% 7.3% (Dec – Dec) 8.4% (Dec – Dec) 7.8% [48] Table 1 shows that the increase in average weekly earnings in the period between November 2007 and November 2008 was greater than the increase in the WPI in each of the indices. The Table also suggests that although the real wages of allied health professionals did not fall in the period between 2004 and 2007 their wages have fallen behind the increase in average weekly earnings in the 2007/2008 period. In the same period their wages have not kept pace with those of the nurses. We note also the increases in the minimum wage granted in the Australian Fair Pay Commission National Wage Setting decisions in 2007 and 2008. [49] In our view, HSU has not made a case for an increase of the magnitude of 16%. Doing the best we can on the material before us, including the conduct of HSU and its members, we have concluded that an initial adjustment of 5.25% is justified with further annual increments of 3.25% for the life of the determination. In light of the delays occasioned by the parties’ attempts to resolve the matter through private and Commission assisted bargaining subsequent to the termination of the bargaining period and the delay in publishing our decision we are satisfied that there are special and compelling circumstances for making the adjustment retrospective. Accordingly, the initial 5.25% increase will be retrospective to 21 November 2008, i.e. the last day for filing written submissions at the conclusion of the hearing. We will come in due course to the term or duration of the determination. Incorporation of existing terms and conditions [50] HSU in its draft determination proposes a catch-all clause maintaining existing terms and conditions of employment, to the extent that they are not inconsistent with any determination we may make, and expressly incorporating by reference the terms of the following agreements: Gippsland Southern Health Service (Health Professionals) Enterprise Agreement 1995 Southern Health Care Network and HSUA (Health Professionals) Certified Agreement 1997 Royal Victorian Eye & Ear Hospital Health Professionals Certified Agreement 1996 St Vincent’s Hospital, Melbourne and HSUA (Health Professionals) Certified Agreement 1997 Women’s and Children’s Health Care Network and Health Services Union of Australia (Health Professionals) Enterprise Agreement 1997 The Women’s and Children’s Health Care Network (Allied Health Professionals of the Royal Women’s Hospital Campus) Enterprise Agreement 1996 [51] In our view it is not in the interests of the parties or the public interest that employers and employees be required to determine their rights and obligations from multiple and potentially dichotomous industrial instruments. Accordingly, we will not include the proposed clause or otherwise incorporate the agreements by reference. If parties wish to include terms of existing industrial instruments in a workplace determination it is important that the terms themselves form part of the determination as a self contained instrument. Anti-discrimination [52] We will include in our determination the anti-discrimination clause as proposed by HSU’s draft. Definitions [53] Each of the parties have included definitions in their draft determinations, some of which diverge but most of which are the same in substance. We consider the employers’ definitions for “employee” and “employer” accord with the content of the proposed workplace determinations, particularly as separate determinations are required for each employer and the definitions obviate the necessity for a general scope clause. The employers’ proposed definitions clause also includes definitions not included in the HSU draft. The definitions are relevant and should be included in the workplace determination. Period of operation of determination [54] HSU proposes a short term determination, contending that it will provide an incentive to bargain. It submitted that the Commission could not safely make a determination on wages over an extended period of time. HSU submitted that in the coming years Australia was facing an economic downturn associated with high inflation. It submitted that the Commission should make wage arrangements for the year past and year to come. [55] The employers propose a determination with an expiry date of 1 December 2012; that is a term of four years from what was the anticipated operative date of the determination. The employers submitted that past experience suggests that there would be little prospect of a negotiated outcome in the short term and that a determination of a longer duration would provide incentive to future bargaining. [56] We tend to accept the HSU’s contention to the effect that there is a degree of uncertainty about future economic activity in Australia. We do not accept however that a short term determination such as is proposed by the HSU is a responsible compromise. Nor is a term of four years appropriate in the circumstances. Having regard to the structure of wage fixation in the health industry we think a term in the order of two and a half years is likely to encourage bargaining in the allied health sector. We will make the determination operative on the date of the determination until 30 June 2011. Hence, consistent with the conclusion we have reached in relation to a determination with retrospective effect, there will be a retrospective wage increase of 5.25% effective from the first pay period on or after 21 November 2008, with further increases of 3.25% on and from 21 November 2009 and 3.25% on and from 6 November 2010. We note however, that had we reached a different conclusion about the power to make a retrospective order we would have awarded some amount other than 5.25% with effect from the date of the determination. [57] We will include the following clause for the period of operation: “This workplace determination comes into operation on the day it is made and will continue in force for the period ending on 30 June 2011.” Flexibility clause [58] The respondents’ draft determination includes a flexibility clause. HSU submitted that the employers’ claim for the insertion of a flexibility clause in the determination should be refused as flexibility was not discussed during the bargaining period and therefore was not a matter at issue. The respondents submitted that flexibility was a matter at issue. Specifically, flexibility arrangements were included in clause 8 the 2003 Award. In its bargaining period notices HSU specifically claimed the inclusion and maintenance of “all existing EBA and Award employment terms and conditions” and the incorporation of “all variations to former Awards and AIRC test case provisions insofar as they relate to matters pertaining to the employment relationship and are not prohibited by law.” It is immaterial, the respondents submitted, whether the matter was or was not agreed or discussed during the negotiations. By its incorporation by reference in the HSU claim flexibility was raised in the negotiation period. That is sufficient to give it currency for the purposes of being a matter at issue during the bargaining period. [59] The expression “matters at issue” is defined in s.501 of the WR Act as “the matters that were at issue during the bargaining period.” We accept, as the respondents’ submitted, a matter is put in issue if it is raised by a party as being a matter about which it wishes to negotiate and reach agreement. 12 Although the Commission decisions to which we were referred relate to the former s.170MX of the pre-reform WR Act there is no basis for drawing any distinction between the meaning and application of the expression “matters at issue” as it was then and as it appears now in s.504. Reference was made to the Explanatory Memorandum to the Work Choices Bill, 13 which records as follows: “Sub-section 504(1) would require the workplace determination to contain terms that deal with the matters at issue during the bargaining. However, the Full Bench would not be restricted to determining matters on which the negotiating parties had not reached agreement.” [60] To the same effect and more explicitly are the observations of the Full Bench in Australian Education Union v Department of Education, Training and Employment : “[87] … To suggest that this matter was not raised in the negotiations is to misunderstand the nature of industrial negotiations. These negotiations as do all negotiations focused upon variations sought to existing conditions but on the premise that the status quo would otherwise continue. Even if not expressly raised, that premise was to be implied from the content of the matters that were expressly raised. [88] … The negotiations took as their starting point the 1996 agreements. That their was no specific claim that terms of these agreements be "taken up and incorporated" in a new agreement ignores the reality of a negotiation where changes are sought in some, but not all, of the existing prescriptions.” 14 [61] In our opinion flexibility arrangements were among the matters at issue in the bargaining period by reason of the HSU claim for the maintenance of all existing award employment terms and conditions. The employers have provided a draft flexibility clause and press for its inclusion in any determination we may make. The HSU opposes its inclusion in a workplace determination. It has not made any provision for flexibility in its draft determination. We have decided to adapt and include in the determination the model flexibility clause that has been formulated in the Award Modernisation process 15 . We accept the respondents’ submissions to the effect that the inclusion of provision for flexibility at the workplace may assist in productivity improvement. Scope of determination [62] The HSU draft determination proposes expanding the scope of the current agreement by adding the following classifications: “Exercise Physiologists; Play Therapist; Technical Officers employed at Peter MacCallum; Diversional Therapists; Creative arts Therapists; Sleep Technologists; Hyperbaric technologists; Health Promotions.” [63] No change in the scope was suggested in the draft determination submitted on behalf of the employers. The respondents opposed the inclusion of the additional classifications. [64] HSU submitted that the emerging professions of exercise physiology and health promotion have been included in the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 and that emerging professions of art therapy, diversional therapy, exercise physiology and play therapy appear in the NSW Health Services Health Professionals (State) Award . The Queensland agreement is said to include a broad classification structure which includes technical officers such as hyperbaric technologists, albeit not explicitly named. There was evidence to the effect that there is some degree of overlap between roles of the allied health professionals employed in the proposed new classifications and those already covered by the 2004 Agreement and the 2003 Award. The respondents submitted that while the Commission should reject the HSU claim in this regard it should encourage the parties to consult about the particular disciplines and relevant classifications with a view to reaching agreement for the next workplace agreement. [65] HSU has failed to demonstrate that its claim for the additional classifications is justified at this point. Provided with adequate evidence about practice in the sector and information about the appropriate salary levels there may well be a case for expanding the scope as proposed. Unfortunately that evidence and information was not forthcoming. The Queensland and New South Wales instruments to which we have been referred are of little assistance. We reject the claim. We are prepared however to include in the determination provision to facilitate discussion between the representative parties for the identification of applicable classifications for any of the relevant disciplines practised in the Victorian public health. Organisational change [66] The HSU and the employers have included provisions for consultation in respect of organisational change in their respective draft determinations. Each requires the employer to consult as early as practicable with employees, the local employee representative and the union about changes impacting on the employees. The HSU draft change clause requires that consultation take place where it is proposed to implement any change that is likely to have a significant impact on an employee. It also provides a list of examples of change that is likely to have an impact and proposes a detailed process for dealing with the change, including the establishment of a “change implementation committee” with specified functions and for the submission of alternative proposals. [67] The respondents’ draft change clause is relatively brief and more readily resembles the change clause commonly found in many awards of the Commission. The clause requires that consultation take place where the employer has made a definite decision to implement major changes. It sets out examples of the things to be discussed and prescribes the types of information that the employer must provide to employees in writing. Finally, the draft clause stipulates that the employer is not required by the clause to disclose confidential information other than that required or authorised by law. [68] The HSU draft change clause would have application to any change that is likely to impact on an individual employee. The proposed clause is too elaborate and, in our view, counter productive. It would be onerous in its application and is likely to result in inefficiencies and increased costs to an employer. We have concluded that the HSU draft change clause is not justified by the evidence. [69] We have decided to adopt a slightly modified version of the clause that was recently developed by the Full Bench in the Award Modernisation case. While the respondents’ draft change clause resembles it in some respects there are some changes in terminology, some important differences regarding examples of what may constitute significant effects that may result from major changes, the information that is to be provided in writing and the purposes for which the information is provided. We will insert the following change clause: “ #. Consultation regarding major workplace change #.1 Employer to notify (a) Where an employer has made a definite decision to introduce major changes in its programme, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any, and the union. (b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this determination makes provision for alteration of any of these matters an alteration is deemed not to have significant effect. #.2 Employer to discuss change (a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause #.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes. (b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause #.1. (c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.” Dispute settlement procedure [70] HSU has included in its draft workplace determination a detailed provision for dispute resolution. The employers referred to s.504(6) requiring, as it does, that disputes about matters arising under the determination are to be dealt with in accordance with the model dispute resolution process. The employers submitted that the HSU proposed dispute resolution provision is inconsistent with the model dispute resolution procedure. The respondents’ draft determination adopts the model dispute resolution procedure. In opening its case HSU submitted that no prescribed process for dispute resolution process presently exists and that employers have adopted a variety of processes, some of which HSU contended were unfair. It seemed to accept that its draft provision for dispute resolution went beyond what is permitted by s.504(6). The model dispute resolution process, HSU submitted, prevents the Commission from arbitrating even if the parties agree that it should and that the Commission should take account of the fact that the parties will not have access to arbitration of disputes over the application of the determination once made. [71] Section 504(6) is clear on its face. It stipulates that the workplace determination must require disputes about matters arising under the determination to be dealt with “in accordance with” the model dispute resolution process. The expression “in accordance with” is one the meaning of which needs to be determined in the context in which it occurs. 16 It may well be that some deviation or latitude is permitted. 17 We have decided to adopt a modified version of the model dispute resolution process as determined by the Full Bench in its decision in the Award Modernisation case on 19 December 2008. 18 In so doing we are satisfied that it accords with Division 2 of Part 13 of the WR Act. The dispute resolution clause to be included in the determination will be as follows: “ #. Dispute resolution #.1 In the event of a dispute in relation to a matter arising under this Determination in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate. #.2 If a dispute in relation to a matter arising under this Determination is unable to be resolved at the workplace, and all appropriate steps under clause #.1 have been taken, a party to the dispute may refer the dispute to the Commission. #.3 The parties may agree on the process to be utilised by the Commission including mediation, conciliation and consent arbitration. #.4 Where the matter in dispute remains unresolved the Commission may exercise any method of dispute resolution permitted by the Act it considers appropriate to ensure the settlement of the dispute. #.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them in relation to this procedure. #.6 While the dispute resolution procedure is being conducted work will continue in accordance with the Determination and the Act unless an employee has a reasonable concern about an imminent risk to his or her health or safety. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform other available work, whether at the same or another workplace that is safe and appropriate for the employee to perform.” [72] The respondents’ draft includes the existing provision for dispute resolution training with such amendments as are necessary to meet the requirements of the WR Act and other changed institutional factors. HSU has not included any provision for dispute resolution training in its draft determination. We consider dispute resolution training would promote productivity and bargaining. It is in the public interest and the interests of the parties generally. We will include the employer proposal for dispute resolution training in our determination. Procedure in relation to performance and conduct [73] HSU has included in its draft determination a draft provision for monitoring employee performance and conduct. The respondents contended that the HSU’s claim for inclusion of a procedure in relation to performance or conduct must be rejected as it was not a matter at issue during the bargaining period. The HSU disputed the respondents’ contention submitting that VHIA had identified discipline as a matter at issue in a letter of 16 March 2008. The letter to which HSU refers is a letter addressed to the HSU in which VHIA records its understanding of the matters at issue in the negotiations between the parties. It includes as one of the issues “revision of grievance/discipline arrangements”. 19 The letter was admitted as an exhibit on 22 September 2008 and it was raised with Mr Djoneff in cross-examination. Neither the letter nor its contents was refuted at any later stage of the proceedings. In the circumstances we accept that grievance and/or disciplinary arrangements were matters at issue during the negotiation period. [74] We are satisfied that the HSU provision for monitoring performance and conduct falls within the meaning of “grievance/discipline” as it was identified by VHIA as a matter at issue between the parties. HSU submitted that the process was a necessary incident of the determination to ensure due process for its members. In the proceedings before us the only evidence regarding discipline procedures was that of Ms Harbridge and was to the effect that some uniformity of discipline procedures across health services was desirable. [75] The employers opposed the inclusion of the procedure in the determination. It submitted that the proposed process is overly prescriptive and inflexible. It argued that it is not in the interests of the health services as it does not enable health services to performance-manage staff in an appropriate manner based on the conduct in question. It should be rejected, the employers submitted, as it imposes greater administrative burdens on their already stretched resources. [76] We have concluded that some provision ought to be made for monitoring conduct and performance management. It is a means to good management and productivity improvement. It has merit, it is in the public interest and, in our view, it meets the interests of the parties. We agree that the HSU draft clause is overly prescriptive. Accordingly, we will include in the determination a modified version of the HSU’s draft procedure in relation to performance or conduct. It will be in the following terms: “ #. PROCEDURE IN RELATION TO PERFORMANCE OR CONDUCT #.1 The purpose of this clause is to provide a process for managing an employee’s performance or conduct. #.2 Where the employer has concerns in relation to an employee’s performance or conduct, the management representative shall notify the employee of the concern and reason(s) for it. Where appropriate, the matter will be dealt with by verbal counselling of the employee as the first option. #.3 Where disciplinary action is proposed in relation to an employee’s performance or conduct, the management representative shall notify the Employee of the proposed disciplinary action identifying the issue/s concerning the performance or conduct. #.4 Disciplinary action may take the form of verbal or written warnings, or termination of employment, depending on the seriousness of the issue. #.5 Any disciplinary action taken in respect of an employee shall be recorded on the individual’s personnel file provided that the record is removed if there is no further issue/s with the employee’s performance or conduct in the succeeding 12 months. #.6 The employee’s chosen representative shall be present during any disciplinary action, if desired by either party.” Types of employment [77] Provision is made in the 2003 Award and the 2004 Agreement for fixed term employment. HSU proposes a new fixed term provision. It would expand the scope of the existing provision in the 2004 Agreement to cover temporary employment in a way similar to that in the 2003 Award. HSU submitted that the amended clause is to reflect the ability to take up to 24 months parental leave and to reflect its meaning as discerned by the Industrial Division of the Magistrates’ Court of Victoria in Health Services Union v Barwon Health. 20 [78] The employers contended that neither the existing nor the HSU’s proposed restrictions on fixed term employment are necessary. The employers proposed an alternative fixed term provision. They submitted that none of the HSU witnesses gave evidence to support the need for the clause that it proposed. Furthermore it did not demonstrate how the proposed new provision would accord with the factors set out in s.504(5) of the WR Act. The employers’ witnesses on the other hand gave evidence that suggested that such a provision would not be consistent with s.504(5). The substance of the employer evidence is that the existing fixed term provisions and those proposed by HSU would, among other things, limit opportunities for: filling positions for specifically funded projects extending beyond 12 months; overseas recruitment of staff on limited visas of more than 12 months duration; graduate employment; and filling long service leave and leave without pay absences. [79] There was employer evidence also to the effect that the fixed term restriction would impact adversely on it budgetary constraints. The employers submitted a proposed fixed term provision that will not limit the opportunities to which reference is made in the preceding paragraph. [80] HSU argued that the employers’ evidence is mostly speculative about apprehended consequences of its fixed term proposal and that there was little evidence of actual circumstances where the fixed term requirements could have been a potential problem. [81] We accept the necessity for flexibility in staffing arrangements, particularly where employment is defined by and dependent upon limited grants and special project funding. There is no evidence in this matter of a high level of non-continuing employment or abuse of fixed term engagements. There is no evidence that significant numbers of fixed term employees are being denied access to benefits that the community has come to expect for long term employees. Despite the absence of evidence in those regards neither the interests of the negotiating parties nor the public interest favours removal of the sorts of restrictions that attend the current fixed term provisions or those proposed by the HSU. All relevant interests however favour some greater flexibility in the arrangements for fixed term engagements extending beyond 12 months. In our view the HSU draft fixed term provision should be modified to allow extension of a fixed term engagement where unforeseen circumstances necessitate such an extension. Circumstances could include an injection of additional funding, completion of an unfinished project or the further development of a completed task or project, We will include the following provision in the determination. “ #. FIXED TERM OR TEMPORARY EMPLOYEES #.1 The employer may employ an employee either: #.1.1 as a fixed-term employee who is employed for a specific period, or a specified purpose (other than that referred to in #.1.2), neither of which will exceed an initial period of 12 months employment, provided that any such term may be extended for a further period of up to 12 months to complete the particular project, task or training for which the employee was engaged; or #.1.2 as a replacement employee replacing a person on parental leave in accordance with clause # – Parental leave, for a period not exceeding twenty-four months; or #.1.3 as a temporary employee who is employed on hours which may or may not be fixed for a period not exceeding three months. #.2 If the period of engagement, or an extended engagement in accordance with #.1.1, exceeds that provided for in this clause or the employee engaged pursuant to this clause is re-engaged within thirteen weeks (including the total period of accrued annual leave paid on termination), the employee shall be deemed to have been originally employed under clause # - Full-time employment, or clause # - Regular part-time employment. #.3 Employees engaged as either fixed term employees, replacement employees or temporary employees pursuant to this clause will receive the rates of pay and conditions provided for under subclause #, regardless of the number of hours worked, with the exception of the period of notice which for employees engaged as temporary employees under this clause, shall be one week. #.4 Fixed term employment can only be offered for true fixed term arrangements, including special projects, post graduate training, graduate year positions, maternity leave and long service leave relief.” [82] We note that the employers propose some changes to the existing award provision for part-time employment. No case was put to us as to why we should depart from the existing 2003 Award provision for part-time employment and we see no reason to do so. Application of clauses conferring an entitlement [83] The respondents’ draft determination includes provisions defining the application of clauses which confer an entitlement. We consider that issue to be sufficiently covered and defined within the clause conferring entitlements and refuse the claim for the additional clause. Advertising staff vacancies [84] The employers proposed the removal of the existing provision for advertising staff vacancies as part of its proposal for demonstrable service delivery improvements and productivity offsets for its proposed wage offer exceeding the escalation factor. There is no evidence that demonstrates the requirement to advertise vacancies is an impediment to flexibility and productivity. In any event we think public interest, productivity and efficiency considerations favour advertising vacancies in a public hospital environment. We will include the existing provision for advertising staff vacancies in the workplace determination. Termination of employment [85] The respondents’ draft determination seeks to alter the existing provision for notice of termination of employment. In particular it seeks to insert a new provision for the deduction of the value of an employee’s notice period where the employee fails to give notice of termination of employment. The employers submitted that it provides greater incentive to give adequate notice of termination. HSU proposes maintenance of the existing arrangements. We think the employers’ proposal makes clear the intention of the existing provision and we will allow the respondents’ draft clause 20.5. Classification of UG Grade 1 [86] HSU proposes that the current salary increments for the UG1 classifications be changed in accordance with the following effects: Grade 1 classification post qualification be changed from second year of experience to fourth year of experience; a Grade 1 health professional who has a degree of Master of Science be changed from Grade 1 third year of experience to fifth year of experience; and a Grade 1 allied health professional who holds a doctorate of philosophy (PhD) be changed from Grade 1, fifth year to Grade 1, sixth year. The employers opposed the changes arguing that HSU led no evidence to justify the claim. They submitted that the evidence showed that to change the UG1, Grade 1 classification as proposed would render redundant the existing classification structure for a UG1 Grade 1 post qualification. It would make the classification structure artificial, undermine the competitive advantage required by rural health services to attract graduates and add significant costs to the employer operations. It was further submitted that having regard to the requirements of s.504(5), and in particular the merits of the case, the absence of any benefit to service delivery, patient care or productivity, the employers’ capacity to pay and the lack of evidence provided by the HSU to justify its claim, the claim ought to be rejected. [87] In reply HSU submitted that its claim in respect of a higher salary entry level for post graduate degree holders is justified by Dr Delany’s evidence. 21 Dr Delany is a Senior Lecturer and Clinical Ethics Fellow at the Centre for Children’s Bioethics, Melbourne University, Monash University and Royal Children’s Hospital. Her evidence is to the effect that a higher salary level for a postgraduate degree holder compared to the undergraduate degree holder is justified. Ms Healy for the Western Health expressed a contrary view. [88] Having regard to all of the material before us we can find no justification for the change in the increment levels as has proposed by HSU. We reject the claim. Sole employee allowance and classification of employee working independently [89] HSU and the employers have proposed a sole allowance clause. The HSU claim incorporates two elements, viz an allowance and a minimum classification for health professionals working independently. While the distinguishing features of each is not entirely clear the evidence suggests that in order to qualify for the sole allowance an employee must be working alone in a particular occupation at a particular site or in a particular area. By way of contrast an employee is regarded as working independently when working as the sole member of a particular discipline whether working alone or as part of multi-discipline health professional team. Ms Harbridge in her evidence described the category “working independently” as someone who is working without a constant and regular supervisor in that they are acting independently in the work they do; the employee may be working alone or as a sole member of a team competent in an area of practice or discipline. [90] The employers opposed the concept of a minimum classification for working independently. It was argued that the health services’ evidence revealed that the phrase “working independently” is unclear and capable of a number of different interpretations. Furthermore, the claim is not justified as staff already have access to appropriate support networks and the fact of working alone does not necessarily mean that their work is particularly complex or requires significant skill or experience. The claim if allowed would impose an unreasonable financial burden on health services and would not result in any improvement in productivity or efficiency. The evidence also suggested that health services in rural areas could be adversely affected if the claim were allowed. [91] We are not persuaded that the claim for a particular classification for a person working independently is justified. There is in the proposed two elements of the clause the potential for confusion and uncertainty about the application of the allowance and the special classification. We also accept that, as the evidence shows, it would be an unnecessary financial burden for the health services. In the determination we will provide for a sole allowance in the terms of clause 22.1 of the respondents’ draft, which is consistent with the meaning and intent of the existing sole allowance provisions in the award. Classification of health professionals working in community health centres/psychiatric services [92] In its claim HSU is seeking a minimum entry classification level of UG1, grade 2 for health professionals working in community health centres and psychiatric services. Ms Harbridge, an Industrial Officer with the HSU, in her evidence asserted that the claim addresses the particular needs of the health professionals employed in the psychiatric services sector and the level of experience and skill base required in this work. In support of its claim HSU relies on the evidence of Ms Schulz to the effect that allied health professionals employed in mental health at Barwon Health are all currently classified as Grade 2. [93] Evidence led on behalf of the employers revealed that Grade 1 allied health professionals currently work within community health and psychiatric services. They argued that granting the HSU claim would exceed the Commission’s jurisdiction having regard to the implied constitutional limitations identified in Re Australian Education Union; ex part Victoria . 22 That case stands for the proposition that an award that interferes with the State’s right to determine, among other things, the number and identity of the persons whom it wishes to employ, would be an impairment of the State’s capacity to function as a State. An award that stipulated that allied health professionals employed in psychiatric and community health centres be classified as Grade 2 would entail the appointment of new staff in those establishments employing Grade 1 allied health professionals and thereby infringe the implied constitutional limitation. [94] The employers also submitted that granting the HSU claim would reduce the quality of patient care by introducing Grade 2 employees without prior experience, reduce valuable training experiences of Grade 1 staff, create retention issues for practitioners and with succession planning within community health and psychiatric services and have significant cost impact without any benefit to health services. It would create unwarranted inflexibilities and be detrimental to the interests of allied health professionals, health services and service provision. [95] We do not accept that by granting the claim it necessarily follows that the employers would have to appoint additional staff. We do accept however that it would limit employment and training opportunities, create unnecessary inflexibility and have a significant cost impact. In the circumstances we think the claim lacks merit, would have a negative impact on productivity and be contrary to the public interest and the interests of the parties. We reject the claim. Chief structures [96] The 2003 Award currently provides for chief structures in amalgamated departments in amalgamated hospitals. It includes also, for various categories of allied health professionals, definitions of chiefs, Grades 1, 2 and 3 and general definitions of various chiefs Grades 1 to 5 dependent on the number of health professionals for which the chief has responsibility. HSU proposes that provision be made in the workplace determination for various categories of chiefs, team leaders and tutors in certain departments. [97] The history of the current award provisions relating to chiefs is before us. Also there was extensive evidence and submissions in relation to current chief structure. The employers oppose the HSU proposal and submit that any determination made by the Commission should simply include the definitional parts of the 2003 Award and the 2004 Agreement as they relate to Chiefs. [98] While there appears to be some merit in some aspects of the HSU claim in these regards we are not satisfied that it is a claim proper to be dealt with as an arbitrated industrial claim under s.504 of the WR Act. Different considerations might compel different outcomes in bargaining or in another context, but it is not in the public interest for the Commission in this context to encroach on what is essentially a management function, or perhaps even a matter of public policy. We reject the HSU claim. We propose adopting the existing Chief definitions from the 2003 Award and the 2004 Agreement as proposed by the employers. Professional standards [99] HSU proposes the insertion of the following clause: “The employer will employ, for each health professional discipline to which this Determination applies, at least one full-time senior clinician Grade 4 (including MIT Tutor, Grade 3) in each section of the relevant department.” [100] The respondents contended that the HSU claim for senior clinicians Grade 4 was not a matter at issue during the bargaining period. The fact is that the Notice of Initiation of Bargaining period included a claim for a senior clinician Grade 3 on each site in each section of the department. The employers now argue that the claim as it is articulated in the HSU draft determination was not a matter at issue between the parties. We think the employers’ submission at this point misconceives the scope of the expression “matters at issue”. It is not a question of whether the particular clause that is now being sought was at issue but rather whether the substance of the claim was a matter at issue between the parties. We consider the claim for senior clinicians Grade 3 was a matter at issue and a sufficient foundation for the claim as it is now formulated. [101] From a public interest point of view it is beyond the scope of our role in proceedings such as these to impose on such a divergent range of public health services a common obligation to engage a particular level of particular classifications of employees. The issue is a matter of public policy and best left to that domain, the individual health services or negotiating parties in a single unit bargaining context. Medical imaging tutor and clinical educator [102] HSU seeks the creation of positions of tutors for medical imaging technology and allied health employees in departments employing 25 or more employees. For the reasons that we are not prepared to entertain the claim for a full-time senior clinician Grade 4 we reject these claims also. Deduction for board and lodging [103] HSU includes in its draft determination provision for the employer to deduct amounts for board and lodging. This is an existing employer right under the 2003 Award. The respondents’ draft has omitted the right from its draft. We have determined to omit the provision for deductions for board and lodging. Our determination will not include such a provision. Registration allowance [104] HSU seeks a provision for reimbursement of registration fees that are required to be paid by health professionals. It submitted that given that some health professional disciplines are required to be registered and others are not the employees are not treated equally. The employers submitted that the claim should be rejected having regard to the merits of the claim, the interests of the employers and the disincentive to bargaining if the claim is granted. In the context of the interests of the parties and the public interest we see some scope for employers bearing the burden of the registration costs for those allied health professionals who are required to be registered. The HSU however led no persuasive evidence to demonstrate where the merit of its claim lies and it did not seek to rebut the employers’ case in respect of the cost impact on employers or the proposition that it would be a disincentive to negotiated outcomes. We reject this claim. Adjustment of allowances [105] HSU is seeking the inclusion of a provision in the determination for increasing all allowances annually on 1 January in line with increases in CPI. The 2003 Award and the 2004 Agreement make provision for a wide range of allowances, none of which are adjusted by the CPI. [106] The employers propose the retention of all existing allowances in their current form other than for the removal of the change of shift allowance and increases in the meal, uniform and laundry allowances. It submitted that under the existing provision for allowances the vast majority are calculated as a percentage of a specified salary rate and they are self adjusting. [107] HSU made no persuasive argument in support of this claim for adjustment of allowances in line with the CPI. We can find no justification for it. The respondents have not convinced us however, that the “change of shift” allowance cannot be justified under s.504 or as an offset for the purposes of the funding policy. We propose adopting the existing allowances as set out in the respondents’ submissions in paragraph 403, but with the inclusion of the existing allowance for change of shift. Number of accrued days off each year [108] In its draft determination HSU seeks 13 accrued days off in a calendar year. It does not specify however, how the accrued days off are to be calculated. We are not persuaded to change the provisions as they exist in the 2003 Award and the 2004 Agreement. There is nothing in s.504 that would justify an employee being entitled to more days off in a year than the time that is actually accrued. We reject the HSU claim. We will adopt the provision for accrued days off as it appears in the 2004 Agreement. Meal breaks [109] The 2003 Award makes provision for meal breaks. HSU is seeking the insertion of a new subclause under which an employee who is unable to take a scheduled meal break on more than three occasions in any one fortnight, would be entitled to payment at time and one half for all time worked after the first five hours of the shift. The evidence suggests that some health professionals will work beyond a scheduled meal break. This appears to be a practice associated with individual professional pride and responsibility rather than any employer requirement or direction. There is no evidence of any abuse of the lunch break entitlement or evidence which showed that employers regularly required or directed employees to work beyond the time scheduled for the commencement of a meal break. In fact the evidence was to the contrary. Employers want their employees to take their meal breaks. The claim is without merit and we reject it. The existing entitlement to meal breaks will pertain. Time off in-lieu of overtime [110] All parties agree that there should be provision for employees to have time off in-lieu of payment for overtime. HSU seeks a modified version of the existing 2003 Award provision. The provision appears as clause 31.4. Specifically HSU proposes the following clause: “31.4 TIME OFF-IN LIEU OF OVERTIME Notwithstanding provisions elsewhere in the Determination, the employer and the majority of employees at an enterprise may agree to establish a system of time off in lieu of overtime subject to the following: 31.4.1 An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer. 31.4.2 Time off in lieu shall be taken for a period of time equivalent to the period of overtime. 31.4.3 An employer shall provide payment at the rate provided for the payment of overtime for any overtime worked where such time off in lieu of payment has not been taken within four weeks of accrual. 31.4.4 This clause is subject to the employer informing the union of its intention to introduce an enterprise system of time off in lieu of overtime flexibility, and providing a reasonable opportunity for the union to participate in negotiations. 31.4.5 Once a decision has been taken to introduce an enterprise system of time off in lieu, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to Divisions 3 and 4 of Part 19 of the Workplace Relations Regulations 2006. 31.4.6 An employer shall record time off in lieu arrangements in the time and wages book.” [111] Opposing the HSU claim in this regard the employers first referred to s.521 of the WR Act. It proscribes the inclusion in an award of a facilitative provision that requires agreement between a majority of employees and an employer on how a term in an award is to operate. The requirement for majority support for time off in-lieu of payment for overtime is a term of the 2003 Award. The employers submitted that as such it is a facilitative provision and as such deemed void. The employers submitted that it is not necessary or appropriate to make a system of time off in-lieu under the terms of a workplace determination, which applies to employers and employees, subject to agreement between the employer and a majority of employees. It further submitted that an employee’s option to take time off in-lieu should not be limited, as proposed by HSU, to the four weeks following its accrual. [112] We accept the major premise of the employers’ submissions. To provide for a system of time off in-lieu for an individual employee subject to the requirement for agreement of the majority of employees impedes flexibility and, in our view, is counter productive. Provision for agreement between an individual employee and her/his employer for time off in-lieu of payment for overtime will promote flexibility and improve productivity. The provision would be a flexibility term and therefore it would be subject to the flexibility clause that we have determined to include in the workplace determination. [113] We are not persuaded to remove the time limit in which an employee must elect to take time off in-lieu of payment for overtime. We propose adopting clause 29.4 of the respondents’ draft for time off in-lieu of overtime payments subject to the inclusion of the time limiting factor of four weeks. Child care costs [114] The HSU claim includes a proposal for the inclusion of provision for reimbursement of reasonable child care costs associated with short notice to work outside their ordinary hours of duty. Ostensibly the claim is based on the need for balance between work and family, the existence of such an allowance in other public sector health agreements and the evidence of Mr Bradford to the effect that it was a reasonable consideration for Melbourne Health. Mr Bradford is an Executive Director at Royal Melbourne Hospital. [115] We accept, as the employers have submitted, HSU led no evidence to support the claim and there is little to suggest that it has merit or that it would not be a financial or administrative burden on health services generally or individually. It seems to us that it is a matter appropriate for a negotiated outcome rather than an imposed one. The claim is rejected. On-call allowance [116] There is provision in the 2003 Award and the 2004 Agreement for an on-call allowance. The 2003 Award provides for the allowance to be payable in respect of any 24 hour, or part thereof, on-call period, with entitlement to an increase in the allowance for any other 24 hour on-call period. In its draft workplace determination HSU seeks to increase the rate of the on-call allowance from its existing 2.5% to 20% and to limit on-call periods to 12 hours. [117] The employers submitted that the proposed clause would impose a significant and additional financial impost on health services without any productivity or service delivery benefits. [118] The only evidence led in support of the HSU claim was that of Mr Cook, Medical Imaging Technologist, in relation to the Alfred Hospital where there is seven staff on call each night. It was said that on-call comes around a lot more frequently and it has become more imposing on the social and normal lives of the staff. While we acknowledge the disruption and unsociable nature of on-call duty we are not persuaded by the limited evidence we have heard about its impact in one establishment that such a significant increase is warranted across the board. That such an increase would have a significant and additional financial impost on health services without any productivity or service delivery benefits is, in our view, self evident. We reject the claim. We will maintain the existing on-call term in the 2004 Agreement and include it in the workplace determination. Shift allowance [119] The HSU draft workplace determination incorporates the provisions for shift allowance of the 2003 Award, but with significant increases in the rate of the allowance. There is no evidence to support the claim and HSU did not seek to justify the evident increase in costs that would result from the proposed change in the rate. Furthermore, it did not seek to justify the claim other than through comparative wage justice. We reject the HSU claim. We will incorporate in the workplace determination the term for shift allowance as it appears in the 2003 Award. Annual leave [120] An increase of one week in the annual leave entitlement is proposed in the HSU draft workplace determination. HSU seeks to justify the claim by way of parity with the entitlement of nurses. The employers opposed the HSU claim and proposed maintenance of the existing provisions with the addition of provisions for an employer to direct that excessive leave be taken and for employees to cash out annual leave. The employers submitted that the nurses’ entitlement was determined through bargaining and arbitration in the context of specific circumstances and that alone does not warrant a determination that allied health professionals have parity. It was further opposed on the basis of the cost impact on employers and problems associated with backfill. We have concluded that if there is any justification for improvement in the leave entitlement by way of parity between allied health professionals and nurses, or independently of it, that circumstance has not been demonstrated by any of the evidence in these proceedings. We reject the claim. [121] The respondents’ draft determination includes a proposal to allow annual leave to accrue pro rata for each completed four week period of employment. It also includes new provisions for an employee to cash out annual leave and for employer to direct that excessive leave be taken. In our view it is not desirable to provide for employees to cash out leave. Public interest and productivity considerations weigh against cashing out of leave given the nature of the work and the associated stresses. Conversely, we consider that public interest and productivity considerations militate against the accumulation of excessive leave by employees. Accordingly, we think the employer ought to be able to direct an employee to take excessive leave, provided that reasonable notice is given to the employee. We think reasonable notice would be 13 weeks. Subject to the inclusion of a reasonable notice period we will include in the determination provision for the employer to direct employees to take excessive leave in terms consistent with s.236 of the WR Act . Flexible annual leave arrangements [122] There is no current entitlement for flexible annual leave arrangements in the 2003 Award or the 2004 Agreement. HSU is seeking to insert a provision allowing employees to take, at the discretion of the employer, an additional four weeks leave and to be paid at the rate of 48/52 of the weekly base rate of pay prescribed by this workplace determination. It referred to agreements that include provisions for flexible leave arrangements and suggested the claim was justified by way of parity with those arrangements. [123] The employers opposed the claim. It led evidence to show that the arrangements would create significant backfilling problems and increase wage costs. It was contended that the arrangement would result in additional administrative costs. The employers submitted however, they would not take issue with flexible leave arrangements if there was no requirement to backfill for absences on annual leave. [124] As will be seen in due course we have decided that the existing provision in the 2004 Agreement for backfill should be maintained. Under that provision it is not mandatory for an employer to backfill for annual leave. We are satisfied that the claim has merit, is in the interests of the parties and is likely to promote productivity. Accordingly, we are satisfied that the HSU claim for flexible annual leave arrangements is justified and we will allow it. Weekend workers [125] The 2003 Award includes a provision for an additional weeks leave for allied health professionals who work a portion of their ordinary hours on a weekend and who work more than four hours on 10 or more weekends in the year in which their annual leave accrues. In its draft determination the HSU seeks to change the entitlement so that a weekend worker will be entitled to an additional weeks leave irrespective of the number of weekend shifts the employee works. [126] The employers concede an additional week’s leave for weekend workers in their draft determination, but oppose the HSU claim, arguing that there is no evidentiary basis for it. It was further argued that granting the HSU claim to extend the entitlement was not merited for the reasons that: allied health professionals who work ordinary hours on a Saturday and/or Sunday are paid for those hours at the rate of time and a half; allied health professionals volunteer for weekends; it would remove incentive to bargaining; and the employers do not have the capacity to fund the claim. [127] There is no evidence to demonstrate that the extension of the entitlement in the manner sought in the HSU claim has any merit. We accept the substance of the employers’ submissions. We reject the claim. We will adopt the existing provision in the following terms: “# Weekend worker # For the purposes of the workplace determination weekend worker will mean any employee who in any one year of employment works a portion of his or her ordinary hours on a weekend. # An employee who works for more than four ordinary hours on 10 or more weekends is entitled to an additional week's annual leave on the same terms and conditions. # A weekend worker whose employment is terminated at the end of a period of employment which is less than one year computed from the date of commencement of the employment, or the date upon which the employee last became entitled to annual leave from the employer, shall be paid in addition to any other amounts due to the employee, an amount equal to 1/48 th of his or her ordinary pay in respect of that period of employment. Personal leave [128] HSU seeks to improve the amount of the personal leave entitlement and to add the following circumstances for which the leave may be taken: “Where an employee is absent from duty to attend a chiropodist/podiatrist, chiropractor, dentist, optometrist, osteopath, physiotherapist or psychologist the employee shall on production of satisfactory evidence be granted leave out of existing sick leave entitlements without loss of pay. A statutory declaration shall not be satisfactory evidence of absence where an employee has attended a health professional nominated in this clause.” [129] The claim is not supported by the evidence and is not otherwise justified on the grounds of interests; parties or public, merit, productivity or incentives to bargain in future. We reject the claim in both respects. We will include in the workplace determination the personal leave provisions from the 2003 Award. Parental leave [130] HSU seeks to increase the paid leave entitlement for primary and secondary carers respectively from eight to 14 weeks and one to two weeks. The employers proposed amendments to the existing parental leave entitlements to accord with the accepted Standard, including an increase in the paid leave entitlement for the primary carer to ten weeks. The HSU did not lead evidence to support its claim for the increases it proposes. We discern no justification for them. We reject the HSU claim. We will include in the workplace determination the parental leave provisions proposed in clause 39 of the respondents’ draft. Long Service Leave [131] In its draft workplace determination HSU provides for a pro rata entitlement to long service leave where termination of the employment occurs after 10 years service irrespective of the reason for termination. It also increases the allowable period of absence from five to 13 weeks as a period that will not mean a break in continuity of service. The respondents’ draft reflects the existing long service leave entitlements, including provision for long service leave in the case of an employee who has completed 10 years service, but less than 15 years service and whose employment is terminated for any cause other than serious and wilful misconduct. [132] The employers submitted that HSU led no evidence to justify the removal of the bar to entitlement to pro rata payment for long service leave of employees whose employment is terminated for serious and wilful misconduct. It argued that such change is a deviation from the standard provisions across public health. It was submitted that the claim should be rejected as lacking in merit. It was further submitted that the allowable period of absence should not be extended to 13 weeks. Although medical scientists, nurses and psychiatric services employees are entitled to have a break of 13 weeks without disruption to continuity of service, the 13 weeks included leave entitlement received on termination of the employment. [133] Not only did HSU fail to lead evidence in support of its claim in respect of long service leave, it also did not assist us in its submissions on the point. We presume that the intention is to reflect, in part at least, the provisions of the Long Service Act 1992 (Vic.) as amended by the Long Service Leave (Amendment) Act 2005. 23 As we have not been addressed on the legislation we are disinclined to apply it in these proceedings. We therefore reject the HSU claims in this regard. We will retain the existing long service leave provisions as they appear in the respondents’ draft. Public holidays [134] The difference between the parties on the issue of public holidays is mostly a matter of form and semantics. We are inclined to the view that the existing arrangements should remain substantially as they are. We agree with the employers’ submissions to the effect that the provision should be modified to reflect the nature of the instrument in which it appears and to confine it in its operation to Victoria. We consider clause 41.4 of the respondents’ draft determination more accurately reflects arrangements for additional public holidays. We do not accept however, the need to remove the existing entitlement to a payment or a day in lieu of Easter Saturday for an employee who ordinarily works Monday to Friday only. That is a longstanding and well accepted standard in the industry. We will include in our determination the HSU draft provision for public holidays but substituting for its clause 43.3, clause 41.4 of the respondents’ draft as varied to take account of our rejection of the employers’ proposal to excise the existing entitlement to payment or a day in lieu of Easter Saturday. Study leave [135] HSU initially sought to include the same entitlement to study leave for part-time employees as for full-time employees. It subsequently amended its claim seeking only pro rata time off for study for part-time employees. The employers contended that the existing arrangements were adequate and met the interests of the parties and the public interest. We are not persuaded that part-time employees should be excluded from accessing study leave. Many of the employees work part-time. Allied health professional practice is largely evidence based. Professional qualifications and competence is an important factor in the field. Accordingly it is important that all employees have equal opportunity to access study to improve their qualifications and competence. It is common ground that women constitute the greater part of the allied health professionals workforce. There is a danger that if those employees are deprived of opportunities to improve their academic qualifications there will be a shortage of properly qualified staff working or available to work in the industry sector. We consider the claim for pro-rated study leave for part-time employees has merit and is justified on productivity and public interest grounds. We will allow the claim to the extent that a part-time employee will be entitled to the study leave pro-rated according to the proportion of full-time hours worked by the employee in a week. Professional development leave and expenses [136] Under the terms of the 2004 Agreement employees are entitled to three days paid professional development leave per year in addition to other prescribed leave such as study leave and two days paid conference leave each year. HSU in its current claim seeks to extend to two weeks the entitlement to paid professional development leave with a proportionate entitlement for part-time employees. The claim also proposes six months full-time or 12 months part-time paid sabbatical leave for employees who have completed seven years service, reimbursement of costs up to $20,000 for full-time employees with proportionate reimbursement for part-time employees plus reimbursement of certain other expenses. [137] In support of its claim for enhanced professional development entitlements HSU relies on a number of reports, 24 which demonstrate that opportunities for professional development is conducive to recruitment and retention and promotes high quality services. It identified opportunities for professional development as one of five key factors in recruitment and retention of allied health professionals. In relation to reimbursement of the costs of professional development HSU referred to similar entitlements in other health professional agreements. [138] The employers submitted that the HSU claim is internally inconsistent and ambiguous. It was further submitted that the evidence of the HSU witnesses consisted of broad assertions in relation to the need for professional development based on evidence based practice and the need to keep up to date with developments. Finally, the employers submitted that the entitlements claimed are unnecessary, excessive and that the costs are prohibitive. [139] We accept the witness evidence of the HSU witnesses to the effect that there is an ongoing expectation that health professionals undertake professional development. Taking the evidence as a whole we consider it a reasonable inference that professional development is a necessary ingredient of ongoing quality professional services. It follows that professional development would have a positive effect on productivity. The employers’ evidence shows however that the cost of the claim in its entirety is prohibitive and that it would be outside the budgets of the health services. The employers costed the claims in their entirety at $36.8M in 2008/2009 and $38.95M in 2009/2010. [140] We are not satisfied that an order for the whole of the claim across the board would be within the capacity of the health services. Furthermore to grant the claim in its entirety would be counter productive to negotiated outcomes in future. We are prepared however, to increase the existing period of leave from three to five days and allow it to be cumulative over two years. We will retain the existing provisions in the workplace determination subject to increasing the period of professional development leave to five days and the insertion of provision for leave to be cumulative over two years. Blood donor leave [141] Blood donor leave is a feature of the claims by both the employers and the HSU. They only diverge in terms of who is to authorise release of staff wishing to donate. Whereas the HSU nominates the manager of the department the employers propose authorisation by the line management. The employer proposal seems to us to be the most efficient means for release given the evidence about multi-disciplinary teams. We will adopt the employers’ proposal as contained in clause 46 of their draft. Backfill [142] There exists within clause 12 of the 2004 Agreement a requirement that employers seriously consider 100% leave cover to replace an employee who is absent on annual leave for a period of ten or more days if the area where the employee works would be seriously jeopardised by the absence of the employee. HSU seeks to have inserted into the workplace determination a requirement that the employer should provide 100% cover for the absence of an employee of five or more days on leave. [143] In our view the HSU claim would not be conducive to productivity and would impose considerable restraints on the capacity of employers to satisfy the operational requirements of their services. We think it essential that the provision of backfill is be dictated by operational need rather than some prescription that would have the effect of imposing a moral obligation to do that which the needs of the service do not require. We will include in our determination the existing provision for backfill to cover leave absences. Leave to engage in emergency relief activities [144] HSU is seeking the following new provision for emergency relief in the workplace determination: “ 50. LEAVE TO ENGAGE IN EMERGENCY RELIEF ACTIVITIES 50.1 An employee who is a member of a voluntary emergency relief organisation including, but not limited to, the Country Fire Authority, Red Cross, State Emergency Service and St John Ambulance must be released from normal duty without loss of pay where an emergency situation arises that requires the attendance of the Employee. 50.2 An employee who is required to attain qualifications or to requalify to perform activities in an emergency relief organisation must be granted leave with pay for the period of time required to fulfil the requirements of the training course pertaining to those qualifications, provided that such training can be undertaken without unduly affecting the operations of the employer.” [145] The employers oppose the HSU proposal. They propose the inclusion of a provision imposing an obligation on employers to adopt a policy that facilitates members of voluntary emergency relief organizations being allowed paid leave to attend to local emergencies. [146] HSU led no evidence in respect of emergency relief leave. We think however, there is merit in the claim. Section 659 of the WR Act provides employment protection for employees absent from work to carry out voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. In effect the activity must involve the employee dealing with an emergency or natural disaster on a voluntary basis in response to a request from a recognised emergency management organisation of which the employee is a member or has a member-like association. Other conditions as to the nature of the emergency service include the requirement for a designated disaster plan for securing the safety of persons or animals. We have decided to allow the HSU claim in this regard, but in the following terms: # An employee who is a member of a voluntary emergency relief organisation including, but not limited to, the Country Fire Authority, Red Cross, State Emergency Service and St John Ambulance is entitled to be absent from his or her place of employment for a period if the employee’s absence is reasonable in all the circumstances and the period consists of one or more of the following: # time when the employee engages in the activity; # reasonable travelling time associated with the activity; # reasonable rest time immediately following the activity. # An employee who wants an absence from her or his employment to be covered by this clause must, as soon as practicable: # give her or his employer notice of the absence; #advise the employer of the period, or expected period of the absence. # An employee who has given the employer notice of an absence must give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity. Occupational health and safety training leave [147] HSU has included in its draft determination a claim for leave for occupational health and safety training. HSU led no evidence and made no submissions in respect of this claim. None of the material before us suggests that the claim has any merit. Occupational health and safety generally is regulated by statute and, in the absence of agreement between the parties, we think it best left in that domain. The claim is rejected. Travel allowance [148] There exists within the 2003 Award provision for travel allowance. The allowance is payable to an employee who is required to use her or his own vehicle for transport for travel from home to work and work to home outside normal hours of work. The allowance is paid at a specified rate per kilometre travelled. The amount was increased in 2006 and again with effect on 4 April 2008. [149] Both parties propose making provision for travel allowance. The employers propose the existing 2003 Award provision with adoption of the rates as set by the Australian Tax Office from time to time. HSU seeks to increase the rate per kilometre from 70 cents to 76 cents for vehicles with an engine capacity greater than 3 litres and from 67 cents to 70 cents for vehicles with an engine capacity greater than 2 litres, but less than 3 litres. HSU called no evidence and made no specific submission in support of its claim in this regard. We will include in our determination the travel allowance clause proposed by the employers in clause 22.14 of their draft. Bullying [150] HSU proposes the inclusion of a detailed provision requiring employers to develop and implement workplace bullying policies in accordance with WorkSafe Guidance Notes in consultation with employees and their representatives. The employers oppose the inclusion of such a provision ostensibly because the clause is not in the interests of the health services and will utilise time, resources and potentially increases costs with no productivity or service delivery benefits. [151] There is evidence that some health services already have workplace bullying policies. Dr Bradford giving evidence for Melbourne Health suggested that an inflexible policy would not enable specific issues to be dealt with as they arise. Ms Keating for Bayside Health expressed concerns about the prospect of negative impact of bullying on productivity if it is not managed carefully. [152] In our view it is likely that bullying would have a negative impact on productivity in the workplace if it is not managed carefully. To that end there should be policies to ensure that bullying in the workplace is managed carefully. We think it appropriate that all health services have policies to prevent and manage bullying in the workplace. We do not agree however that the requirement to have a policy need be as detailed and inflexible as that which is proposed by HSU. We propose inserting into the workplace determination the following provision: “ # PREVENTION AND MANAGEMENT OF WORKPLACE BULLYING (EMPLOYEE TO EMPLOYEE) #.1 The parties to this Determination are committed to the prevention of workplace bullying. #.2 The Employer by 1 January 2010 will develop implement and maintain policies and procedures to proactively prevent and manage workplace bullying in accordance with the recommendations of the WorkSafe Guidance Note on the Prevention of Bullying and Violence at Work 2003 (as amended from time to time).” Accident makeup pay [153] It is common ground that the workplace determination should include provision for accident makeup pay. The employers propose retention of the existing provision in the 2003 Award, with necessary amendments to the wording for consistency in the workplace determination. HSU seeks to change the terms, which it contends simplifies and modernizes the provision for makeup pay. The employers contend that the HSU proposal does more than simplify and modernize existing terms. [154] We accept the proposition that the changes suggested by HSU do more than simplify and modernize. It appears to us however that the HSU proposal is not significantly different in its effect to the existing provision. We will adopt the HSU provision as it appears in clause 55 of its draft workplace determination. Union delegates [155] Provision exists already for union delegates to have access to facilities for the purpose of preventing and avoiding workplace disputes. There is no evidence to show that the existing provision needs to be changed in the way suggested by HSU. We reject its claim in this regard. We will retain the existing provision for union delegates as it appears in clause 50 of the respondents’ draft workplace determination. Operational bonus [156] Included in the HSU draft is a claim for a once off 12% operational bonus. The claim is unqualified apart from the fact that it is to be a one off payment. As such it would be payable in full to all employees, including casual and part-time staff. In opening its case HSU made the following submission in relation to operational bonus: “We also sought an operational bonus which is analogous to the payment received by the medical scientists in their agreement and again we will be coming to that in greater detail in due course. But what we will be seeking is a package, however constructed, that does have the effect of not only restoring real wages but providing for improved wages, remuneration into the future, such as to recognise the productivity increases achieved by these workers.” 25 [157] Not only did HSU not come to the issue of operational bonus in greater detail in due course it did not come to it at all in its evidence or by way of closing submission. Although the evidence generally suggested that part of the claim may have had some merit, we think that, based on the submissions of the employers, the bonus cannot be justified as an entitlement for all allied health workers across all health services. We must reject the claim. Changes to classifications [158] HSU seeks to amend the existing classification definitions to remove the words “appointed to the Grade” and “on the recommendation of the Chief.” According to the HSU the amendment would have the effect of removing the discretion of the employers as to whether to appoint to the Grade 3 and 4 classifications. HSU argues that if an employee is qualified to perform the role and is in fact performing the role they should be classified at the relevant position and that it shouldn't be a matter for the employer to determine that, notwithstanding that they're qualified and doing the work they will grade them at a different position. [159] The employers submitted that there was no evidence to suggest that any ambiguity existed in applying the current classifications. It was further submitted that the common understanding among employers is that the removal of the qualifying words would allow automatic progression from one classification to the next when the employee was performing some work which the employee considered fell within the classification description of the higher classification. HSU denied that it was the intention of the provision it proposed and contended that was not its effect in any event. [160] We have concluded that the evidence supports a finding that some employees may be assigned work that falls within a higher classification but the employees are neither appointed to the higher classification nor put there on the recommendation of the Chief. We propose amending the classification definitions but not as proposed by HSU. We will substitute the words “who is required to undertake” for the words “appointed to the Grade”, remove the words “on the recommendation of the Chief” and impose a condition that there be a requirement for an employee to undertake a role or hold a particular equivalent position in whichever profession is designated. Taking the example used by the employers in their written submissions the relevant provisions will have the following structure: “A Speech Pathologist who is required to undertake additional responsibilities e.g.: Supervision of speech pathology students; or Is required to take charge of a section of the speech pathology department recognised by the employer; or Is required to hold an equivalent position at a smaller establishment, such as a day hospital/centre, nursing home or community Health Care.” [161] We think our proposed change is merited and meets with the interests of the parties. It makes clear that progression is subject to the employee being required to undertake the additional role but removes the requirement for the Chief’s recommendation. The other classification definitions will be amended with such variation as is necessary to achieve the same outcome. It is not evident that the change will negatively impact on productivity or impose any greater financial burden on the health services. Determinations [162] We have decided that, in light of the varied and particular requirements for some of the employers, the orders necessary to give effect to this decision in the determinations before us should be drawn and filed by the respondents. Commissioner Lewin will settle the orders with recourse to the Full Bench. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances : D. Langmead for the Health Services Union. F. Parry and D. Siemensma for the Victorian Health Services; intervenor for the State of Victoria through the Department of Human Services. Hearing details: 2008. Melbourne: September 12, 15 to 19, 22 to 26, 29 to 30; October 6; November 6. Final written submissions: 2008. November 21. APPENDIX A HSU relied on the evidence of the following witnesses: Fleur Harbridge, Industrial Officer, Victoria No.3 Branch of the Health Services Union Katharine Wilkinson, Radiation Therapist, Peter MacCallum Cancer Centre Graham Cook, Medical Imaging Technologist, Chief Radiographer,Alfred Hospital Meagan Blackburn, Physiotherapist, Austin Health Network Michelle O’Rourke, Manager, Speech Pathology, Continuing Care Sector Kingston Centre and Dandenong Hospitals Susan Giles, Chief (Grade 5), of Occupational Therapy Western Health Russell Booth, Chief Nuclear Medicine Technologist, St Vincent’s Hospital Mark O’Brien, Social Worker, Senior Clinician Grade 3, Ballarat Health Services Simone Cariss, Occupational Therapist, Northern Health Amanda Kennedy, Primary Contact Physiotherapist, in the Emergency Department St Vincent’s Hospital Terrence Kelly Social, Worker Grade 2 Peter James Centre, Eastern Health Clare Delany, Senior Lecturer and Clinical Ethics Fellow, Centre for Children’s Bioethics Melbourne University, Monash University and Royal Children’s Hospital VHIA relied on the evidence of the following witnesses: Alec Djoneff, Chief Executive Officer, Victorian Hospitals’ Association Debra Leanne Schulz, Director of Allied Health, Barwon Health Natalie Anne Sullivan, General Manager, Angliss and Yarra Ranges, General Manager Community Health, Chief Allied Health Officer, Angliss Hospital (Eastern Health) Lyndell Keating, Allied Health Manager, The Alfred Hospital Edwyna Jane Wilson, Manager of Workforce Performance, Royal Women’s Hospital Zane Iris Healy, Directory of Clinical Support Services, Western Hospital (Western Health) Wendy Anne Hubbard, Executive of Allied Health, Ballarat Health Services Mary Cecilia Harney, Chief Operating Officer of Research Division, Peter MacCallum Cancer Centre Peter Stewart Bradford, Executive Director, Clinical Governance and Medical Services for Melbourne Health, Royal Melbourne Hospital Wayne Harold Weaire, Deputy Chief Executive Officer of Benalla and District Memorial Hospital, Director of Delatite Community Health, Delatite Community Health Mary Anne Egan, Group Manager of Allied Health and Community Programs, St Vincent’s Hospital (Melbourne) Limited Rebecca Jane Power, Director of Allied Health, Western Hospital (Western Health) Brendan Francis Murphy, Chief Executive Officer, Austin Health Victoria Mason, Chief Executive Officer, Darebin Community Health Angelia Gaye Dixon, General Manager of Haematology and Medical Oncology, Peter MacCallum Cancer Centre Michelle Louise Kotis, Central East Director of Allied Health and Director of Ambulatory Services, Peter James Centre and Wantirna Health Judith Jane Abbey, Director of Community Services, Gippsland Southern Health Service Kathleen Alison Macrae, Director of Acute Allied Health, Dandenong Hospital and Casey Hospital Southern Jennifer Kaye Gratton Vaughan,, Executive Director of Community Integration and Chief Allied Health Officer, Northern Health Ann Maree Keenan, Executive Director of Ambulatory and Nursing Services, Austin Health Schedule 1 BP Matter No. Organisation BP2007/4059 Austin Health BP2007/4062 Ballarat Health Services BP2008/2193 Banyule Community Health Service BP2007/4064 Barwon Health BP2007/4067 Bayside Health BP2007/4073 Bendigo Health Care Group BP2007/4074 Bentleigh Bayside Community Health BP2007/4079 Central Gippsland Health Service BP2007/4081 Cobram District Hospital BP2007/4083 Colac Area Health BP2007/4095 Eastern Health BP2007/4096 Echuca Regional Health BP2007/4100 Gippsland Southern Health Service BP2007/4103 Goulburn Valley Health BP2007/4105 Hepburn Health Service BP2007/4110 Inner South Community Health BP2007/4114 Knox Community Health Services BP2007/4120 Latrobe Regional Hospital BP2007/4123 Lyndoch Warrnambool Inc BP2007/4126 Mallee Track Health and Community Service BP2008/2189 Manningham Community Health Service Inc BP2007/4130 Maryborough District Health Service BP2007/4132 Melbourne Health BP2008/2190 Mercy Health & Aged Care Inc BP2007/4142 Nillumbik Community Health Service BP2007/4147 Northern Health BP2008/2513 Peter MacCallum Cancer Centre BP2007/4155 Peninsula Health BP2007/4160 Ranges Community Health Service BP2007/4163 Royal Childrens Hospital BP2007/4165 Royal Victorian Eye and Ear Hospital BP2007/4166 Royal Women's Hospital BP2007/4171 Southern Health BP2008/2188 St. Vincent's Hospital (Melbourne) Limited BP2007/4173 Stawell Regional Health BP2007/4174 Sunbury Community Health Centre Inc BP2007/4176 Swan Hill District Hospital BP2007/4184 West Wimmera Health Service BP2007/4186 Western Health BP2007/4187 Western Region Health Centre Ltd BP2007/4190 Wodonga Regional Health Service BP2007/4061 Ballarat Community Health Centre BP2007/4066 Bass Coast Regional Health BP2007/4070 Bellarine Peninusla Community Health Inc BP2007/4071 Benalla & District Memorial Hospital BP2008/2194 Bendigo Community Health BP2007/4080 Cobaw Community Health Service BP2007/4085 Darebin Community Health BP2008/2191 Dental Health Services Victoria (DHSV) BP2007/4088 Dianella Community Health Service BP2007/4092 East Grampians Health Service BP2007/4106 Hesse Rural Health Service BP2007/4111 ISIS Primary Care Inc BP2007/4115 Koo Wee Rup Regional Health Service BP2007/4119 Latrobe Community Health Services BP2007/4135 Mitchell Community Health Service BP2007/4136 Monashlink Community Health BP2007/4137 Moreland Community Health Service BP2007/4139 Mt Alexander Hospital BP2007/4143 North East Health - Wangaratta BP2007/4144 North Richmond Community Health Centre BP2007/4145 North Yarra Community Health Centre BP2007/4151 Orbost Regional Health BP2007/4154 Peninsula Community Health Service BP2007/4157 Plenty Valley Community Health BP2007/4167 Rural North West Health BP2007/4183 West Gippsland Healthcare Group BP2007/4188 Whitehorse Community Health Centre 1 PR929402 . 2 see Re Alexandra District Hospital and Ors , Print S3476 . 3 See Labour Price Index: Concepts, Sources and Methods, 2004 ; 6351.0.55.001; 24 February 2005, Chapter 5, paragraph 1.6. 4 Notes: ABS 6302.0 5 ABS 6345.0 6 ABS 6302.0 at Table 8 7 ABS 6302.0 at Table 9 8 ABS 6302.0 at Table 14b 9 ABS 6345.0 at Table 1 10 ABS 6345.0 at Table 1 11 ABS 6345.0 at Table 4b 12 see Re Coal Mining Industry Award (1997) 73 IR 1. 13 Workplace Relations Amendment (Work Choices) Bill 2005, s.113d(1) at page 241 of the Explanatory Memorandum, House of Representatives. 14 Print T1383 . 15 [2008] AIRCFB 550 16 David Jones Ltd v. Perpetual Limited & Anor [2006] QSC 337. 17 Farrugia v Farrugia (2000) 99 FCR 16. 18 [2008] AIRCFB 1000 , [42]-[44]. 19 see Exhibit A-26. 20 No. W02792466 (Unreported) 13 August 2008. 21 Exhibit A-45, paragraph 7. 22 (1995) 184 CLR 188. 23 Act No. 23/2005. 24 Report to the Department of Human Services – Recruitment and Retention of Allied Health Professionals in Victoria – a literature review, June 2005, Exhibit A-5; VURCH Rural Allied Health Professionals’ recruitment and retention study, Exhibit A-62; Your hospitals: A report on Victoria’s public hospitals July 2007 to June 2008, Exhibit R-74; Austin Health EQuIP Report 2008, Exhibit A-50. 25 Transcript, PN257. Printed by authority of the Commonwealth Government Printer <Price code G, PR986473>