MA000027 - Decision - 11 Apr 2014

[2014] FWC 2215

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739—Dispute resolution

Rank,Fleming,Parnis,Lipus,Maffei,Duckmanton,Gillatt,Cimarosti,Louws,Thickins,Reynolds,Sinclair,Duff,Bright,Whiteside,Wiseman
v
The Northern Hospital
(C2013/5447,5449,5451,5452,5453,5454,5455,5456,5458,5459,5697,5698,5699,5700,5702,and 5703)

Health and welfare services

DEPUTY PRESIDENT HAMILTON

MELBOURNE,11 APRIL 2014

Alleged dispute concerning reclassification.

[1] On or around August 2013 sixteen individual employees of the Northern Hospital made an application for the Fair Work Commission to deal with a dispute in accordance with the dispute settlement procedure in the Victorian Public Health Sector (Health Professionals,Health and Allied Services,Managers &Administrative Officers) Enterprise Agreement 2011-2015 (‘the agreement’).

[2] The matter was conciliated on three occasions,but was not settled.

[3] It is agreed and I am satisfied that the Commission has jurisdiction to arbitrate the dispute under the dispute settlement procedure (clause 77,Section 3).

[4] I have had regard to the submissions put and evidence led.

[5] I conducted an inspection of the work areas in question,the Communications Department and the Emergency Department at Northern Health. The employer and employees summarised the inspection 1.

[6] It may be that fine words butter no parsnips,but it was a matter of agreement that the Communications Department employees are dedicated,hardworking employees,who perform valuable work 2.

[7] To that end Northern Health undertook to meet with the applicants to facilitate the development of a ‘more structured process’of replacement of the supervisor when on leave,and to ensure that the employees are suitably aware of Clerical Grade B positions that become available (although ‘not everybody would seek to work in an emergency department setting’ 3).

The Claim

[8] In each case the employees are Telephonist/Receptionists,employed in the Communications Department at Northern Health. In each case the applicant seeks reclassification from Clerical Worker Grade C to Clerical Worker Grade B of Schedule G,Part 3,Clause 10 (see the Appendix).

Authorities

[9] In Amcor Limited v Construction Forestry Mining and Energy Union 4 Gleeson CJ and McHugh J said in a joint judgement:

“The issue in these appeals is whether,following a corporate reorganisation described as a demerger,certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs,under the same terms and conditions,following the demerger,but,in consequence of the corporate restructuring,their employer changed.

The resolution of the issue turns upon the language of the particular agreement,understood in the light of its industrial context and purpose,and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will,or that they will not,become payable in the event of a reconstruction,merger,or takeover. Similarly,there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity,or of succession,or of discontinuity. Thus,depending upon the legal regime under which it takes place,a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations,and the question of succession to these rights and obligations,will require examination of the relevant legal (usually statutory) framework.”

[10] In that decision,Kirby J said:

“The nature of the document,the manner of its expression,the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way,adopted by this Court,of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd,where his Honour observed:

    ‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document,bearing in mind that such framer(s) were likely of a practical bent of mind:they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus,for example,it is justifiable to read the award to give effect to its evident purposes,having regard to such context,despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these,expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’. ”  5

Submissions and Decision

[11] The applicant and employer agree with respect to the work environment that:

‘The work environment of the Applicants is not comparable to that of clerical workers in the Emergency Department ... That does not mean that the Applicants are not subject to time pressures or faced with difficult patients and relatives or that their work environment may not,at times,be complex. Rather,that these factors are more frequent or pronounced in the Emergency Department and indicative of the work performed in that setting.’ 6

[12] Apart from that,evidence was led that the Emergency Department Clerical Workers deal with a greater level of complexity in entering data into the various computer programs 7. Emergency Department Clerical Workers sometimes go into the cubicles with patients and doctors to directly take the necessary data,that is they are actively working with anxious and agitated members of the public. Ms.Duff disputed the claim that this occurs with 60 per cent of patients8.

[13] Mr.Storer gave evidence that:

‘Most of the duties detailed in the position description under ‘3. Key result Areas and Major Responsibilities’involve standard dealings with the public and other staff. The associated clerical tasks are mostly routine in nature and are well supported by standard operating procedures and protocols.’ 9

[14] His evidence was that ‘the primary functions of the role are to answer and direct incoming telephone calls and dealing with queries from the public at the front reception there are a number of other duties attached to the role’ 10. This was agreed by Ms.Duff11 and Ms.Bright12,and I accept the evidence.

[15] The employer agrees with one qualification with the applicant submission that the primary duties of the applicants across all shifts are:

    ● Switchboard;
    ● Reception and Mail;
    ● the Code phone;
    ● Rosters and Reports;
    ● Training new staff.

[16] The qualification relates to training of new staff 13.

[17] Ms.Duff on behalf of the sixteen applicants 14,and Ms.Bright giving evidence15,agreed with parts of the employer’s Submissions in Reply,including the employer’s description of the history of the dispute,the history of the classification structure,and parts of the description of the work performed. Evidence was given about this history,for example by Ms.Hart16 and Mr.Clarke17.

[18] Ms.Lisle gave evidence about the nature of the work and the development of the dispute. She said that:

‘The Communications department has 30 staff,the 16 staff that have lodged this dispute have a total of over 260 years experience at the hospital. They are dedicated hard working professional people who are not frightened by hard work or volumes of work and they feel very dissatisfied with management. Their morale is very low,and they all feel very strongly about the dispute.’ 18

[19] Ms.Bright gave evidence that:

‘We work in an extremely stressful environment which is manned 24/7 and we pride ourselves on our professionalism and take our role as Computer Clerk/Front Reception/Switchboard Operators very seriously.’ 19

[20] She gave evidence that the communications department was the hub of the hospital,the first point of contact,and first person people yell at when they are not happy 20. She agreed with Mr.Storer that this is for most members of the public,and that those requiring emergency treatment would generally present to the Emergency Department,and that outpatient attendances also would not necessarily go through reception. She agreed with Mr.Storer’s evidence that unwell patients present to the Emergency Department rather than to reception,and that if an unwell or anxious patient does present to the front reception there are standard protocols and procedures in place to deal with the situation,and that few complaints of abuse by patients and visitors had been received from Communications21. Ms.Bright was asked about the last point and did not disagree22.

[21] There is no disagreement that switchboard duties involve ‘mostly standard dealings with clinical staff and thoughtful and direct dealings with the public and/or sensitive phone contact with the public consistent with the Work Level Standard for Clerical Worker Grade C. Further that whilst this work may have some similarities to the work in an emergency setting,it does not have the same significant time and service pressures’ 23. I come to the same conclusion on the evidence before me. There was disagreement about the number of phone calls dealt with by the Communications Department. However the latest statistics made available by the respondent were not disputed,and were about 700 per day in October,or 21,000 for the month24,or at most 1,000 incoming calls per day25.

[22] There was no disagreement that reception and mail functions were consistent with the Work Level Standard for Clerical Workers Grade C 26. I come to the same conclusion on the evidence before me.

[23] Mr.Storer gave evidence about code phone duties,and said that the communication role is to announce the code over the PA system and Lan Page to alert appropriate staff 27. There is some disagreement,centring around the issue of the extent of the duties. The emergency response codes range from dealing with aggressive people through to fire and medical emergencies (eg. a person collapses and needs to be resuscitated). However,this disagreement is more apparent than real. There is an established set of responses to each type of code phone. It is not just a matter of calling the code over the phone to alert all staff. Sometimes other steps have to be taken. The code calls made by the Communications Department are those initiated by others,who request Communications to call them,rather than initiated by them. The evidence is that ‘YTD - 13/14’(year to date 2014) no codes originated from the Communications Department itself. The Emergency Department was responsible for 1019,Coronary Care called 47,and ‘Obs and Gyn’,presumably Obstetrics and Gyneacology,called 45,and Delivery 1928. However,the Communications Department called codes for other parts of the hospital,and did so by announcing to the whole of the hospital the particular code being called and the applicable area of the hospital affected. Reception staff do not coordinate a response to the code29. Overall this may be one of the most taxing or complex part of the duties but these duties can be performed by a Grade C employee.

[24] There was some limited disagreement about whether or not a roster is a ‘report’,and whether the entering of basic data constitutes complex data integration between standard systems as required at Clerical Worker Grade B. Ms.Bright agreed with much of the description of the employees duties in this respect made by Mr.Storer 30. Ms.Hart gave evidence about the difference between data management work done by Clerical Workers in the Emergency and in Communications,which she was not cross examined about and which I accept31. Ms.Bright agreed with Mr.Storer that Telephonist/Reception staff can only use on a restricted basis certain computer programs used by Clerical Workers in Emergency32. I accordingly accept the submission of the respondent that the work is consistent with Clerical Worker Grade C33.

[25] There is some disagreement about the issue of induction training,with the disagreement about issues such as whether or not the training is ongoing or when new employees commence in the Communications Department only 34. Overall training reflects the type of job an employee is being trained for,and in any event I prefer the evidence given by Mr.Storer.

Classification ‘Description’and ‘Work Level Standards’

[26] There are a number of differences between the Clerical Worker Grades B and C ‘Description’. One difference is that the work environment for Clerical Worker Grade B is ‘more complex’,as is the nature of the information systems worked on. It is agreed that the work environment in the Communications Department is not comparable to that of Clerical Workers in the Emergency Department. It is agreed that Clerical Workers in the Emergency Department are appropriately classified as Clerical Workers Grade B,and indeed ‘emergency department patient or clinical pressure’is specifically recognised as a Work Level Standard for Clerical Worker Grade B employees (Work Level Standard (g)). It is agreed that switchboard and mail duties are not of the more complex nature referred to in the Description of Clerical Worker Grade B. On the evidence before me I come to the same conclusion. In my view,on the evidence,the same assessment must be made about reception duties. There is some disagreement about code phones and training,and reports,but on balance duties are consistent with the description of duties in Clerical Level C. Overall the evidence relating to the Classification Description definitions is that the employees are Clerical Level C employees.

[27] Turning to deal with the specific terms of the classification definition,Northern Health submitted that the applicants have put submissions on the Clerical Worker Grade B and C Description,but not the Work Level Standards 35. In any event for the reasons set out above the applicants do not meet the requirements of clause 10.3.2(b),which refers to work mostly performed under significant time and service pressures. In relation to clause 10.3.2(c),it does not appear that the systems operated are ‘more complex,and/or complex data integration between standard systems’. The specifics of clause 10.3.2(g) are not met,as discussed earlier,nor are the specifics of clause 10.3.2(h) met,given the level of work pressures. Other subclauses are largely neutral in nature. However,in each case on the material before me clause 10.2.2 more closely describes the nature of the work including (a),(b),(f),(h),and (i),including the reference to ‘mostly standard procedures’(a),‘standard and predictable transactions’(d),‘without the significant time and service pressures’(b) of for example the Emergency Department.

Conclusion

[28] The applicants meet all the requirements of Clerical Worker Grade C definitions in the agreement,but not those of Clerical Worker Grade B definitions. The applications are accordingly dismissed.

DEPUTY PRESIDENT

Appearances:

Ms R Duff for the applicants

Mr S McCullough for the respondent

Hearing details:

2014

Melbourne

2 April

Part 3 - Clause 10 - Victorian Public Health Sector (Health Professionals,Health and Allied Services,Managers &Administrative Officers) Enterprise Agreement 2011-2015

10. CLERICAL/ADMINISTRATIVE SUPPORT SERVICES STRUCTURE

10.1 This clerical classification structure replaces the pre-existing structure contained within the Health and Allied Services –Public Sector –Victoria Consolidated Award 1998.

10.2 CLERICAL WORKER GRADE C

10.2.1 Description

(a) Positions at Grade C level are regarded as experienced clerical staff working within a well defined work environment.

(b) Employees at this level are expected to input and extract data,provide information and occasionally produce reports. They will be required to balance the operation of a number of clerical systems.

(c) Grade C positions have a level of discretion,depending upon the individual Employee’s experience and confidence,but any discretion is regulated by system protocols.

10.2.2 Work Level Standard

(a) Grade C positions use clerical systems,administrative data,health service information and systems to undertake a number of mostly standard procedures,which are supported by protocols.

(b) Positions at this level require mostly standard dealings with clinical staff and thoughtful direct dealings with the public and/or sensitive phone contact with the public. These dealings are likely to occur in a ward-based setting that may have some similarities to the work in an emergency setting,but without the significant time and service pressures.

(c) Grade C positions are routinely required to operate one predominant data system,but may also utilise a small number of other support systems for particular information.

(d) System content is factual,involving standard and predictable transactions. Care must be taken at all times to minimise errors.

(e) Grade C positions can work individually within a mixed team or in a team of Employees with similar skills. At all times they are accountable for their unique tasks. When working within mixed teams they are expected to work cooperatively with others. Within work teams doing similar work,Employees may rotate through a variety of tasks,as determined by managers,to provide varied work and achieve work area outcomes.

(f) Employees at this level may be asked,from time to time,to provide induction training for other like Employees.

(g) Work outcomes for Grade C positions are either checked by a supervisor or,if a sole operator,are audited by a work system.

(h) Communication within the work area focuses on well established,but a limited range of routinely required information.

(i) Grade C positions require a good understanding of hospital systems. Employees at this level are expected to understand hospital procedures,information requirements and protocols so they can be communicated confidently and supportively to members of the public.

10.3 CLERICAL WORKER GRADE B

10.3.1 Description

(a) Positions at Grade B level are regarded as experienced clerical staff working in more complex work environments or circumstances.

(b) In addition to the provision of information,the input and extraction of data and production of reports,Employees at this level may be required to manage a number of more complex information systems,balance their operation and provide routine data support to their team or manager.

(c) Grade B positions set their own work schedule,within limits. Employees at this level are expected to be responsive to circumstances and regularly modify work priorities to meet their own and team needs.

10.3.2 Work Level Standard

(a) Grade B level positions are responsible for using a range of data,information processes and systems,which are all supported by protocols.

(b) While systems used by positions at this level are standardised,the tasks are mostly performed under significant time and service pressures. Employees usually work directly with time sensitive clinical staff and anxious members of the public,as would be experienced in an emergency department setting.

(c) Grade B positions are also those responsible for operating a number of more complex systems,and/or complex data integration between standard systems.

(d) System content is predominantly factual. Reliance is placed on the data quality by those outside the work area and data errors bring risks to the reputation or standards expected of the wider work area.

(e) Employee working in Grade C positions,but who are routinely required by management to provide on the job training,or routinely mentor like Employees who are learning a Grade C role,may be classified as Grade B.

(f) Grade B positions are expected to perform within formal or informal protocols under general supervision.

(g) Employees at this level usually work in a specialist role or under emergency department patient or clinical pressure. They are expected to adapt their activities to suit the clinical or environmental circumstances they face.

(h) Communication within the work area is similar to Grade C,with the added requirement of coping with a more complex set of systems and/or a more pressurised work environment and/or more anxious members of the public. The pressurised work environment and/or more anxious members of the public will most likely be found in an emergency or triage setting,rather than a ward-based setting.

(i) Grade B positions are required to focus on gaining public confidence,to simultaneously obtain information required by the hospital,while providing reassurance to members of the public.

10.4 CLERICAL WORKER GRADE A

10.4.1 Description

(a) Positions at Grade A level are the most complex clerical roles,providing high level knowledge,delivering unique team or specialist outcomes at a level equivalent to lower level administrative roles.

(b) Employees at this level may be content specialists in a particular clerical function,or provide broad personalised secretarial support to a senior manager or clinical specialist.

(c) Grade A clerical positions plan their own work schedule,within limits,and adapt their schedule to the needs of the work area or manager. Employees at this level are required to exercise individual judgement.

10.4.2 Work Level Standard

(a) Grade A level positions operate information,administrative and/or technical systems that require more judgement to track and manage.

(b) Data content and transactions at this level are varied and complex. Protocols exist,but judgement is required in the selection of the appropriate action.

(c) At this level,integration with other systems is standard and frequent. Interpretation is required,with the assessments made by Employees having an impact on decision making by others.

(d) Employees at this level are relied upon by others to provide factual,reliable and responsive information relevant to the work of others and the team,with errors directly impacting the work area’s reputation and performance.

(e) Grade A positions are integral to the efficient operation of a more complex mixed skill team,or the performance of a senior manager or clinical specialist.

(f) Employees at this level are expected to provide higher level and unique support and/or training,leadership or mentoring for other like staff. Employees may undertake supervision of other clerical workers,including allocating work and/or the rostering of staff.

(g) Specialists in the work area use the information provided by Grade A positions in making decisions. So Employees at this level exercise autonomy and discretion,selecting from broadly defined options.

(h) Grade A positions require influencing skills to ensure that the information is effectively communicated within the work area,to the manager or clinical specialist and to the public in order to maximise work area performance and public confidence.

 1  PN312-331

 2  PN765

 3  PN778-785

 4  [2005] 222 CLR 241

 5  Ibid,paragraph 96

 6  Submission of Respondent paragraph 33;PN 153-156

 7  Exhibit N3,paragraph 17;PN497-510

 8  PN329;PN325

 9  Exhibit N3,paragraph 5

 10  Exhibit N3,paragraph 6-7

 11  PN149-152

 12  PN436-439

 13  Submission of Applicants,paragraphs 18-42;Submission of Respondent paragraphs 30-31

 14  PN119-274

 15  PN436-439

 16  Exhibit N2

 17  Exhibit N4

 18  Exhibit A1,paragraph 7

 19  Exhibit A4,paragraph 7

 20  Exhibit A4,paragraph 9

 21  Exhibit N3,paragraph 12-13;PN469-471

 22  PN469-470

 23  Submission of Respondent paragraph 39,PN176-183

 24  PN482

 25  Exhibit N3,paragraph 22

 26  Submission of Respondent paragraph 41;PN184-185

 27  Exhibit N3,paragraph 10

 28  Exhibit N3,Attachment SS2

 29  Exhibit N3,paragraphs 9-10

 30  Exhibit N3,paragraphs 15,16,17,20

 31  Exhibit N2,paragraph 6

 32  Exhibit N3,paragraph 17;

 33  Submission of Respondent paragraphs 43,45;PN497-510

 34  Submission of Respondent paragraphs 46-50;PN207-249

 35  Submission of Respondent paragraph 53(d)

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000027  PR549274>

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Code:
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Title:
MA000027 - Decision - 11 Apr 2014
Effective:
11 Apr 2014
Updated:
14 Apr 2014
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MA000027 - Decision - 11 Apr 2014
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