Industrial Relations Commission of New South Wales CITATION : Nursing Homes &c., Nurses' (State) Award [2003] NSWIRComm 311 PARTIES : PARTIES: New South Wales Nurses' Association, Aged and Community Services Association of New South Wales and ACT Incorporated, Australian Nursing Homes & Extended Care Association (NSW), Australian Business Industrial, Catholic Commission for Employment Relations and Service Industry Advisory Group, Employers First. FILE NUMBER: IRC 3069 AND 3870 of 2003 CORAM: Wright J President; Sams DP; Boland J; Bishop C CATCHWORDS : Award - Special case - Interim award - Wage fixation - Application for agreed interim increase in Special case proceedings - Special case proceedings to be heard in 2004 - Submissions of parties - Agreement between parties as to changes in work value - Principles for making interim awards - Recent history of changes to award - Application granted - Wage increase granted - Award varied. CASES CITED : State Working Hours Case 2003 [2003] NSWIRComm 86 HEARING DATES: 09/18/2003 EXTEMPORE JUDGMENT DATE : 09/18/2003 PARTIES: Mr N Dawson of counsel New South Wales Nurses' Association Mr A Britt of counsel Aged and Community Services Association of New South Wales and ACT Incorporated Australian Nursing Homes and Extended Care Association (NSW) LEGAL REPRESENTATIVES: Australian Business Industrial Catholic Commission for Employment Relations Service Industry Advisory Group Mr T McDonald Employers First JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President SAMS DP BOLAND J BISHOP C Thursday 18 September 2003 Matter No IRC 3069 of 2003 NURSING HOMES &c NURSES' (STATE) AWARD Application by New South Wales Nurses' Association to vary award re salaries and other matters. Matter No IRC 3870 of 2003 NURSING HOMES &c NURSES' (STATE) AWARD Application by Aged and Community Services Association of New South Wales and ACT Incorporated and others for variation re Nurses' Award published 22 January 1999. DECISION OF THE COMMISSION (Extempore) [2003] NSWIRComm 311 1 This is an application by the New South Wales Nurses' Association (the Union) to vary the Nursing Homes &c Nurses' (State) Award in relation to salaries and other matters. The application was filed on 6 June 2003 and an associated application was filed on 14 July 2003 by the Aged and Community Services Association of New South Wales and ACT Incorporated (ACSA), Australian Nursing Homes & Extended Care Association (NSW) (ANHECA), Australian Business Industrial (ABI), Catholic Commission for Employment Relations (CCER) and Service Industry Advisory Group. The applications have been subject to the processes under the then Practice Direction No 8, "Major Industrial Cases". The applications have also been before Sams DP and before the Full Bench for conciliation and other processes. 2 It should be observed at this stage that, although the parties have reached agreement, on an interim basis, to increase salaries and related allowances under the award, the agreement does not exhaust the matters raised by the applications and the parties seek substantial time for hearings next year to conclude the applications. 3 The parties have helpfully filed a number of documents, including a statement of facts which is agreed between the Union, ANHECA, ACSA, CCER, ABI and the Service Industry Advisory Group (and in respect of which no issue is raised by Employers First). The agreed facts indicate that the relevant award regulates the employment of all categories of nursing staff working in not-for-profit, for-profit and local government run residential aged care facilities in New South Wales; also that residential aged care facilities operated by the State Government come under the Public Hospital Nurses' (State) Interim Award and that residential aged care facilities are commonly referred to as nursing homes and hostels. 4 The present application seeks the variation of the award to give effect to the Full Bench decision in the State Working Hours Case 2003 [2003] NSWIRComm 86. The variation to the relevant clause of the award, cl 19, gives effect to the orders made in that case with necessary adjustments to the present award to meet the requirements laid down in the decision of the Full Bench. We should pause here to indicate that we consider the agreement of the parties is entirely appropriate and the award should be varied accordingly. 5 Turning then to the issue of monetary rates, the Union contends that the Commission should increase the rates of pay for nursing staff in the classifications of Registered Nurse (including all managerial, clinical and educational classifications), Enrolled Nurse and Assistant in Nursing (AIN) in the instant award by six per cent and it seeks a corresponding increase in wage-related allowances. It also seeks an increase in expense-related allowances in accordance with the movements in the Consumer Price Index of 5.61 per cent. 6 Returning to the statement of facts agreed between the parties, it helpfully sets out in summary form certain important factual information, for example, as to service providers: 4. Residential aged care providers include religious, charitable and community institutions (not for profit providers), various private for profit providers and State and local governments. In New South Wales, just under 70% of residential aged care beds are operated by not for profit providers. [ Source: Commonwealth Department of Health and Ageing, Review of Pricing Arrangements in Residential Aged Care, The Context of the Review, Background Paper No. 1 , Canberra (2003)]. 5. As at June 2002 there were 933 residential aged care facilities in New South Wales and 50,730 beds. The occupancy rate was 96.4%. [ Source: Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 2003 , vol. 2, Productivity Commission, Canberra (2003)]. 6. Approximately 75% of residential aged care facilities in New South Wales are located in metropolitan areas. [ Source: Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 2003 , vol. 2, Productivity Commission, Canberra (2003)]. 7. With respect to size of operation, approximately 70% of residential aged care facilities in New South Wales have 60 beds or less. [ Source: Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 2003 , vol. 2, Productivity Commission, Canberra (2003)]. 7 The size of the operations of members of ACSA and ANHECA was set out in graphic form in an attachment to the agreed facts. It is sufficient for present purposes to note the following statistical table which was also set out there: Bed Nos No of Nursing Homes Bed Nos No of Hostels 0-20 12 0-20 71 21-40 111 21-40 196 41-60 147 41-60 132 61-80 90 61-80 70 81-100 35 81-100 16 101+ 37 101+ 15 Total 432 Total 500 8 The statement of agreed facts also provides useful information as to the nursing labour force relevant to these applications and includes the following: 9. NSW Department of Health statistics published in 1991 show the breakdown of registered nurses ("RNs"), enrolled nurses ("ENs") and assistants in nursing ("AINs") working in non-government nursing homes during the period 1980-1990. Numbers of RNs, ENs and AINs are reported both in terms of headcount and full-time equivalent (FTE). The statistics referred to there were provided in tabular form and are set out as an annexure to this decision. 9 It is also relevant that the agreed facts include the following observation: This series of statistics is no longer produced. The Australian Institute of Health and Welfare publication Nursing Labour Force 2001 reports that in 1999 there were 5,448 RNS and ENs working in public sector nursing homes in New South Wales and 4,551 RNs and ENs working in private sector nursing homes in New South Wales. These figures must be incorrect when one considers that public sector nursing home beds in New South Wales comprise approximately 4% of all residential aged care beds in this State. 10 The Full Bench was advised by the Union, without demur from the respondent employers, that the practical effect of what is said in the above paragraph is that the number of Registered Nurses and Enrolled Nurses employed under this award would be between 9,000 to 10,000 persons; indeed, the figure is closer to 10,000 and approximately twice as many as that number are employed as AINs. 11 The parties have helpfully provided an award history for the present award for the period between 1985 and 2003 and for present purposes it is sufficient to note the following summary of the history: (a) In 1995 there was a new award but the award was arbitrated only as to a small number of areas. However, a number of wage increases were agreed for the purpose of that new award which included an overall increase of seven per cent in three instalments: being a four per cent wage increase from December 1994, a further 1.5 per cent wage increase from June 1995 and a further 1.5 per cent wage increase from December 1995. (b) Since that time there have been three further variations to the award in respect of wage or salary increases as set out below. (c) In May 2000 the award was varied to provide a two per cent wage increase from May 1998, a further wage increase for Enrolled Nurses from October 1998 and a further three per cent wage increase for employees generally from February 1999. (d) The next increase occurred on 6 April 2001 and resulted in a three per cent wage increase from 1 July 2000. (e) Later in the same month, on 20 April 2001, salary increases of two per cent plus two per cent were agreed, the first of those effective from 1 July 2001 and the second from 1 July 2002. Because of the way in which the award has been varied during the relevant period, it has not been the subject of State Wage Case increases. 12 The Union puts forward its claim for increases on a number of bases which are helpfully set out in its outline of submissions filed before today's proceedings. As clarified during the course of today's proceedings, the Union's submissions are as follows: 1. Nursing staff covered by the award are currently earning 18 per cent less than nursing staff covered by the Public Hospitals Nurses' (State) Interim Award . This increase is necessary in the public interest to stem a flow of nursing staff away from the residential aged care sector to the public sector. 2. The increase represents a fair and reasonable increase [on an interim basis] in the rates and allowances payable under the award. 3. The increase may assist in attracting nursing staff to the residential aged care sector, in the face of the current acute nursing shortage. 4. The increase recognises, in part, the significant changes which have occurred in the way work is performed in the residential aged care sector; specifically in relation to higher workloads and the need for nursing staff to possess and exercise a wider range of skills than in the past. 13 The employers, whilst expressing their consent to the increases sought, have made clear they should not be taken to have accepted all the bases upon which the Union contends for the increases. They do, however, make clear that they accept that the increases agreed represent fair and reasonable increases on an interim basis and that they are not such, in terms of the relevant principles as to interim awards, as would embarrass any final result in the proceedings. 14 They also accept there have been changes in the work value of employees working under the award and that that consideration is material to the consent which they have given to the award variation and to the Commission varying the award today. 15 We do not consider that we are obliged to rely on all of the bases upon which the applicant puts forward its claim. We consider it is sufficient for us to find, and we do, that the increase represents a fair and reasonable increase on an interim basis in the rates and allowances under the award. We note the agreement of the parties that work value changes of some significance have occurred and we also consider that the interim increase would not embarrass the final result of any final award in these proceedings. 16 Although what will occur today will be, in a formal way, the variation of the award, we consider that in substance the Commission is making an interim award and that the requirements for the making of an interim award should be satisfied. We conclude that those requirements have been met. We accordingly vary the Nursing Homes &c Nurses' (State) Award in terms of the parties' agreement, including as to cl 19, to which reference has earlier been made. We make the necessary variations in terms of the document filed by the union and which has become Exhibit 2. The variation to cl 19 shall take effect from 18 September 2003. We also vary the rates in Table 1 - Salaries of Part B - Monetary Rates, and Table 2 - Other Rates and Allowances of Part B - Monetary Rates, from the beginning of the first full pay period commencing on or after 27 August 2003. 17 The Full Bench confirms the directions hearings set down on 29 September and 3 October 2003 to deal with the question of programming for the substantive proceedings in 2004. _____________________________________ ANNEXURE 1980-1990 TRENDS IN NURSING STAFF EMPLOYMENT IN PRIVATE NURSING HOMES 1980 1982 1984 1986 1988 1990 NO. ESTABLISHMENTS 455 470 486 490 490 471 LICENSED BEDS 23008 24279 26040 26840 26977 26188 REGISTERED NURSES Number Full Time - 2026 2157 2037 1989 1963 Number Part Time - 2445 2664 3068 3549 4197 FTE'S FT & PT - - - - 3511.4 3455.6 FTE'S Casual - - - - 356.4 396.9 Total FTE'S 2840 3122 3336 3473 3867.8 3852.5 ENROLLED NURSES Number Full Time - 552 692 630 640.9 623 Number Part Time - 464 705 757 1009.4 1135 FTE'S FT & PT - - - - 1030 1073.5 FTE'S Casual - - - - 110.7 158.6 Total FTE'S 753 810 1065 998 1140.7 1232.1 ASSISTS. IN NURSING Number Full Time - 3064 3186 3231 3223.2 3436 Number Part Time - 4495 4411 4548 5504.6 7498 FTE'S FT & PT - - - - 5419.1 5737.7 FTE'S Casual - - - - 661.1 1026.4 Total FTE'S 4582 4995 5081 5334 6080.2 6764.1 TOTAL NURSE FTE'S 8175 8927 9482 9805 11088.7 11848.7 Source: Nursing Staff Employed in NSW Private Hospitals, Nursing Homes and Day Procedure Centres, 1990 Workforce Planning Unit, NSW Health Department, August 1991 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.