PR932595 PR932595 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170MW applications for termination of bargaining period s.170MX matters Queensland Department of Health (BP2002/4579) Mater Misericordiae Health Service Brisbane Limited (BP2002/4629) Various employees Health and welfare services JUSTICE MUNRO SENIOR DEPUTY PRESIDENT MARSH COMMISSIONER DEEGAN MELBOURNE, 6 JUNE 2003 Settlement of section 170MX awards; application to canvass findings in reasons for decision - exercise of discretion refused; award terms settled. SUPPLEMENTARY DECISION [1] On 16 May 2003, we published our decision in the above matters 1 , and issued to the parties drafts of the awards we proposed to make. We required that submissions be lodged in writing about the settlement of those awards 2 . [2] The parties lodged written submissions in compliance with those directions. After taking into account those submissions, we issued further directions on 30 May 2003. The parties were required respectively to show cause at a hearing before Munro J on 4 June 2003 why an award in terms corresponding to a Final Draft circulated with the directions should not be made. The directions and hearing were in response to submissions by the Australian Nursing Federation, (the ANF) and Queensland Department of Health, (Queensland Health) that they should each be heard further on particular points. Our directions required that, after that hearing, Munro J report to the Full Bench on the settlement of the orders. [3] Munro J has reported on the agreed outcome, issues and applications made at that hearing. Ms S. Moody, who appeared on this occasion for the ANF, foreshadowed an application to be made under section 111 of the Workplace Relations Act 1996 (the Act) for us to reconsider and effectively revoke several findings made in our published reasons for decision. Ms Moody referred in particular to findings about the ANF work value claim, about the cost impact of the claims made generally, issues as to relativity and classifications and as to qualifications allowance. For that purpose, the ANF sought an opportunity to lodge a written application and supporting material within 14 days. [4] Mr J. Murdoch opposed any exercise of our discretion to permit such an application. [5] We adopt the position put by Mr Murdoch. We are not persuaded that we should allow such an application to be made by the ANF at this or any later stage. We do not consider it necessary or at all appropriate that we should again hear the ANF for the purpose of allowing it to canvass what it claims are erroneous findings in the reasons we have given for the determinations we made on 16 May 2003 subject to the settlement of the terms of the awards. [6] Several points of difference were not resolved by the parties in their conference about the terms of the awards to be made. With reference to clauses as expressed in the Nurses (Queensland Health) - Section 170MX Award 2003, we determine as follows. [7] Clause 27: Continuing Education Accelerated Advancement Entitlement. In the Final Draft, we had revised the clause provisionally determined to make adjustments that took into account points put by the parties. Only one point is now not agreed. It is whether administrative, management and educational qualifications should be eligible for recognition as continuing education credentials. The provision we proposed limits such credentials to those " in a clinical field relevant to the employee's current position ". We are not persuaded that we should delete the limitation to credentials in a clinical field. Clause 27 is determined by us in the terms circulated with our direction of 30 May 2003. [8] Schedule 3: Enrolled Nurse (Advanced Practice) EN(AP). The ANF sought to extract from [140] of our reasons for decision an indication that the EN(AP) position should be implemented as a 6th paypoint for ENs, accessed by recognition and progression, not as a promotional appointment. That is not a sound reading of our intent. The passage relied upon was directed to showing an analogous use of credentials related to competency to justify a pay increase roughly proportionate to an experience related increment in the standard annual classification progression. We are not persuaded we should depart from what had been the agreed position of the parties to include EN(AP) in the new classifications introduced by the final awards. [9] Schedule 3: Inclusion of Student Nurses classification for purposes of Queensland (Public Health Sector) Award. Queensland Health contends there is no need for the classification to be included for that field of employment. The speculative grounds advanced by the ANF for inclusion of it are not persuasive. Schedule 3 is determined in the form otherwise agreed between the parties. [10] Clause 9: Extended Hours. The ANF sought a provision to ensure that existing day work only contracts of employment will be preserved unless an alternative working pattern is agreed by the individual employee. Queensland Health sought to correct what it said was an oversight, by including a reference to the relevant award provision for extra payment for weekend work. [11] Clause 19, as proposed by us, was intended to adopt, in an adjusted form, a provision proposed by Queensland Health, more as a productivity improvement measure than as a preservation of an established option 3 . The clause as proposed by Queensland Health was represented to be a concise expression of a model derived from the terms of an extant certified agreement 4 . However the clause as proposed was generic. It manifestly involved a measure of integration of provisions from the two main awards. The ANF argued that the entirety of the terms of the relevant certified agreement should be reproduced in the final award and be effectively the only model. It opposed what it denounced as an effective attempt by Queensland Health to achieve a degree of amalgamation of the awards by stealth 5 . We consistently included the provision as proposed by Queensland Health in the form of award we proposed. Those inclusions reflected our acceptance of the position put by Queensland Health. [12] We have considered the submissions made to us about the settlement of the award. An additional subclause 19.4 is proposed by the ANF. That subclause is more restrictively worded than necessary to guard against the repudiation of a contract of employment that expressly stipulates that work will not be required outside an agreed pattern of hours. We will include a safeguard against an express stipulation being unilaterally overridden. [13] It is consistent with our intended determination to include also the incorporation by reference of provision for extra weekend payments sought by Queensland Health. Clause 19 as determined will include both changes. [14] The awards are published in conjunction with this decision as PR932194 and PR932206 for the Nurses (Queensland Health) - Section 170MX Award 2003 and Nurses (Mater Misericordiae Public Hospitals, Brisbane) Section 170MX Award 2003 respectively. BY THE COMMISSION: JUSTICE P.R. MUNRO Appearances: S. Moody , of counsel, for the Australian Nursing Federation. J. Murdoch SC , of counsel, for Queensland Department of Health and Mater Misericordiae Health Services Brisbane Limited. Hearing details: 2003. (Before Munro J) Brisbane: June 4. Printed by authority of the Commonwealth Government Printer <Price code B > 1 PR931289. 2 Ibid at [179] - [180]. 3 PR931289 at [25.2] - [25.3]. 4 Queensland Mental Health Services Certified Agreement 1998. 5 Exhibit ANF 91 at [64]-[67].