Industrial Relations Commission of New South Wales CITATION : Public Hospital Nurses (State) Award (No. 5), Re [2004] NSWIRComm 326 APPLICANT New South Wales Nurses' Association PARTIES : RESPONDENT Health Administration Corporation INTERVENOR Minister for Industrial Relations FILE NUMBER: IRC 6802 of 2001 CORAM: Wright J President; Boland J; Patterson C CATCHWORDS : Award - Wage fixation - Public hospital nurses - Qualification allowances - Further decision after issue dealt with in earlier proceedings - Need to take measured and limited approach - Double counting to be avoided - Award varied. Nurses (Queensland Health) - Section 170 MX Award 2003 (AIRC Print PR932194) CASES CITED : Professional Rates case (unreported, 10 July 1989, Cahill VP, Bauer J and Sheils CC) Public Hospital Nurses (State) Award (No. 4), Re [2003] NSWIRComm 442 Queensland Department of Health & Mater Misericordiae Health Service Brisbane Ltd v ANF (16 May 2003, AIRC Print PR931289, Munro J, Marsh SDP, Deegan C) HEARING DATES: 04/27/2004; 08/31/2004 DATE OF JUDGMENT: 11/02/2004 APPLICANT Ms C M Howell of counsel Solicitor: Ms L Doust R L Whyburn & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr R C Kenzie QC and Mr I Taylor of counsel Mr T Craft - Health Administration Corporation JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President BOLAND J PATTERSON C Tuesday 2 November 2004 Matter No IRC 6802 of 2001 PUBLIC HOSPITAL NURSES (STATE) AWARD Application by the New South Wales Nurses' Association for variation re increased remuneration and new allowances DECISION OF THE COMMISSION [2004] NSWIRComm 326 1 In Re Public Hospital Nurses (State) Award (No. 4) [2003] NSWIRComm 442 the Full Bench determined a number of claims by the New South Wales Nurses' Association ("the applicant") relating to wages and allowances. One of the claims not finally determined related to qualification allowances, that is, allowances that were claimed for registered nurses (RNs) and enrolled nurses (ENs) who hold certain qualifications in addition to those leading to registration or enrolment, as the case may be. 2 In relation to the claimed allowances the Full Bench in Nurses (No 4), after referring extensively to a decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in Queensland Department of Health & Mater Misericordiae Health Service Brisbane Ltd v ANF (16 May 2003, Print PR931289, Munro J, Marsh SDP, Deegan C) concerning the Nurses (Queensland Health) - Section 170 MX Award 2003 (Print PR932194), stated at [275]: We have not come to any final view about the specific approach taken in the Queensland Decision, including the amount of allowances there awarded, but we consider that the principles enunciated in that Decision may well be capable of being, and appropriate to be, applied in the New South Wales context. We propose to direct the parties to confer on the form and content of a "Continued Education Accelerated Advancement Provision" for registered and enrolled nurses having regard to the provision of the Queensland Nurses Award. The parties will also be required to consider the feasibility of introducing a similar concept for AINs. 3 On 2 April 2004 the applicant filed and served an amended claim for qualification allowances. On 22 June 2004 the claim was further amended. The form of the final claim was as follows: Continuing Education Allowance (i) A Registered Nurse or Enrolled Nurse who holds a continuing education qualification, in addition to the qualification leading to registration or enrolment, shall be paid an allowance set out below subject to the following conditions: (a) The allowance is only payable where a component (at least) of the qualification is relevant to the employee's current area of practice. Relevance is to be determined by (i) the nature of the qualification held; (ii) the classification and position description of the Registered Nurse or Enrolled Nurse and (iii) whether the qualification would assist the Registered Nurse or Enrolled Nurse in performing his or her role and/or assist in maintaining quality patient care and/or assist in the administration of the unit/area or service in which the Registered Nurse or Enrolled Nurse is employed. (b) A Registered Nurse or Enrolled Nurse holding more than one relevant qualification is only entitled to one allowance, being the allowance of the highest monetary value. (c) The employee claiming entitlement to a qualification allowance must provide evidence to the employer that they hold that qualification. (ii) A Registered Nurse who holds a relevant post-graduate certificate or a relevant Hospital Certificate recognised for payment by agreement between the Health Department and the Association shall be paid an allowance of $33.90 per week. (iii) A Registered Nurse who holds a relevant postgraduate diploma or degree (other than a nursing undergraduate degree) shall be paid an allowance of $55.10 per week. (iv) A Registered Nurse who holds a relevant masters degree or doctorate shall be paid an allowance of $63.60 per week. (v) An Enrolled Nurse who holds a relevant certificate 4 qualification shall be paid an allowance of $22.00 per week. (vi) The above allowances are to be included in the employee's ordinary rate of pay. (vii) Where a dispute arises concerning the eligibility for payment of a Continuing Education Allowance that is not resolved by the process contained in subclauses (i) to (iv) of clause 44, Disputes, negotiations between the Health Department and the Association must occur prior to referral to the Industrial Relations Commission for determination. This reflects the claim. 4 It is apparent from the form of the final claim that the applicant does not see real merit in the approach taken in the Queensland Decision. As the Health Administration Corporation (HAC) notes in its written submissions opposing the applicant's claim, the claim advanced differs from the approach favoured in the Queensland Decision in that it: (a) seeks flat allowances, rather than accelerated advancement for Registered Nurses; (b) seeks an allowance for qualifications other than in respect of clinical training; (c) describes 'relevant' training in a broader fashion and would provide allowances for additional qualifications that are not "acquired as a response to the need for continuing education"; (d) seeks allowances for hospital certificates; and (e) seeks allowances for classifications above the NO4 classification (which in NSW would roughly equate to positions above Nurse Manager Grade 3). 5 The HAC also does not appear to favour the Queensland approach, in particular the concept of accelerated advancement, and given its opposition to the very idea of qualification or continuing education allowances, understandably offered no alternative approach. In the circumstances, whilst we consider aspects of the Queensland model are appropriate we do not propose to impose that model per se on parties who do not favour such an approach to the provision of qualification allowances. 6 We do, however, propose to introduce a Continuing Education Allowance (CEA) provision into the Award. We are satisfied that such a provision is warranted in this Award although we intend to take a measured and limited approach in order to avoid any unintended consequences and because of our concern at the cost impact of introducing such a provision soon after the substantial across the board wage increases for nurses in public hospitals. The provision is reviewable in 12 months for the purpose of examining whether the provision has proved to be an appropriate one or requires amendment, including the amounts of the various allowances we have determined. In deciding to introduce a CEA provision we have had regard to the parties' submissions in the substantive proceedings as well as the additional written submissions relating specifically to the allowance claim. 7 In opposing generally the claim for qualification allowances, the HAC submitted that nurses' rates of pay are already set (and have very recently been reviewed and freshly determined) on the basis that they hold appropriate professional qualifications, and accordingly no case can be made out for further amounts to be payable for holding appropriate professional qualifications. Further, that qualification allowances were removed as part of the Professional Rates case (unreported, 10 July 1989, Cahill VP, Bauer J and Sheils CC) on the basis that the new rates of pay recognised the professional qualifications required to do the work. 8 The environment in public hospitals has changed significantly in the past 15 years and there is a greater need for highly qualified nursing staff with postgraduate qualifications, especially in specialty areas. We consider additional payments that recognise postgraduate qualifications will assist in encouraging nurses to increase their knowledge and skills to meet the demands of a more acute hospital environment and will assist in the attraction and retention of nursing staff. 9 We also observe that in Victoria, Queensland, South Australia and Tasmania nurses, as professionals, receive qualification allowances for postgraduate qualifications. 10 The HAC submitted the revised claim for qualification allowances is industrially unsound because: (a) rates of pay assessed on work value principles are set taking into account, amongst other factors, the qualifications necessary for the job and the training period required; (b) in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325 the Full Bench increased the rates, in part, in recognition of the fact that nurses have professional qualifications, but had fallen behind the rates for other professionals; (c) there exist higher classifications which attract higher rates of pay on the basis that nurses hold relevant post-registration nursing qualifications, including: i) in respect of registered nurses, Clinical Nurse Educators, Clinical Nurse Specialist and Clinical Nurse Consultant Grades 1-3; and ii) in respect of enrolled nurses, Enrolled Nurse Special Grade. (d) it will lead to nurses being paid differently for doing the same job. 11 In deciding to make provision for a CEA we have been concerned to avoid any double counting arising from our assessment of the increased work value of nurses and the introduction of a CEA. Given the approach we have taken in introducing a CEA we do not consider any double dipping occurs. The fact we found that nurses had fallen behind other professional groups provides no basis to conclude that we gave consideration to post graduate qualifications. The comparison was merely between degree-qualified professionals. 12 We have decided, at least initially, to limit the post graduate qualifications attracting the CEA to those in a clinical field and to exclude Clinical Nurse Educators, Clinical Nurse Consultants and Clinical Nurse Specialists as well as Nurse Managers at level 3 and above from receiving the allowance. This follows the Queensland approach and limits the possibility of double dipping. Under the Queensland model the allowance only applies to credentials in a clinical field and not management, leadership, educational and research qualifications. However, we recognise that there may be situations in small facilities where Managers are involved in clinical work for a significant part of their time and so where that time exceeds 50 per cent the relevant allowance will be payable. 13 In relation to the EN Special Grade we agree with the applicant's submission that the advanced certificate (otherwise known as certificate IV) is the current prerequisite to enrolment as an EN. The EN Special Grade classification is distinguished not by the qualification required (also the advanced certificate), but by the additional requirements of experience and practice set out in the definition. We do not consider there will be any double counting or double dipping in relation to this classification. 14 As to the proposition that the CEA will lead to nurses being paid differently for doing the same job (i.e., nurses with qualifications and nurses with extensive work experience) the evidence in the substantive proceedings was that there was an increasing need for RNs with enhanced qualifications. We consider there is a clear public interest in encouraging nurses to gain those qualifications in order to meet the challenges of the public hospital system. Moreover, the allowance will only be payable in circumstances where the qualification is accepted by the employer to be directly relevant to the competency and skills used by the nurse in the duties of the position. 15 The HAC expressed concern at the cost of the claim, estimating the cost of the original claim in July 2002 to be approximately $55 million. Using a different rate given the amended claim the HAC estimated the cost to be in the vicinity of $36.5 million. The estimation was based on "post-registration courses", many of which will not attract the allowance under what we propose, and on amounts that we do not propose to grant. 16 It was submitted for the HAC that: An employer should not be required to pay additional money as a result of an employee obtaining an additional qualification where the employer has no or minimal say in the quality, nature and type of the further education. An allowance for the mere holding of a post-graduate certificate qualification (including, as drafted, a qualification that assists in 'administration'), would do nothing to dissuade nurses from seeking out the quickest and cheapest qualification satisfying the determination of relevance in order to obtain the additional pay. 17 As we have indicated, the payment of the CEA will be subject to the qualification being accepted by the employer as directly relevant to the competency and skills used by the nurse in the duties of the position. Further, the only qualifications that will attract the allowance are those in a clinical field. Where it is alleged the employer has unreasonably refused to recognise a qualification the grievance procedure later set out will apply. We should make it clear, however, that the responsibility we have placed on the employer to determine whether the qualification held by a nurse is directly relevant to the competency and skills used by the nurse in the duties of the position must be exercised in a fair, consistent and proper manner and in the spirit of a provision that recognises nurses who make the effort of acquiring greater skills and knowledge through undertaking postgraduate courses and who apply that skill and knowledge in their work should receive additional remuneration. In order to ensure fairness and consistency of treatment it may be necessary for guidelines to be promulgated. 18 The HAC submitted there was an important question of flow-on implications if the Commission were to award a qualification allowance to nurses. It was submitted that: If professional employees were to be granted an allowance for choosing to seek and obtain post-graduate qualifications of their own choice, that would have the real potential for flow-on to other professional groups. There is no reason in principle why nurses in this respect should be treated differently to doctors, lawyers, librarians, teachers, pharmacists and the like. Once the Commission permits one professional group to claim additional pay each week on the basis of obtaining a post graduate qualification of the employee's own choosing (provided only that it in some way could be said to "assist" the employee to do their work), there is no reason why other professional groups would not be able to rely on such a decision to make similar claims. In relation to the NSW public health system, it would be extremely difficult to quarantine a continuing education allowance to nurses covered by the Public Hospital Nurses' (State) Award. In addition to medical officers, allied health professionals such as therapists, medical radiation scientists, hospital scientists, psychologists – indeed all such professionals – presumably would have strong grounds to argue equivalence of treatment to that potentially afforded to nurses. Further, as the Nurses' Association proposal for a Continuing Education Allowance makes clear, the claim extends to management qualifications. There is real flow-on potential for NSW Health classifications that are administrative and/or managerial in nature, such as Health Managers under the Health Managers (State) Award and Administrative Officers under the Health Employees Administrative Staff (State) Award. 19 In relation to this submission we should state that attraction and retention of nurses has been an important objective in determining the outcome of the claims in the substantive proceedings and remains so in relation to the CEA. Secondly, if it can be shown in respect of these other classes of professionals referred to by the HAC that the rate of pay already takes into account postgraduate qualifications the Commission will not countenance any double counting or double dipping. Thirdly, we are not proposing to introduce an arrangement whereby nurses are paid an allowance "for choosing to seek and obtain post-graduate qualifications of their own choice". The qualification must be accepted by the employer as directly relevant to the competency and skills used by the nurse in the duties of the position. 20 The HAC expressed particular concern that the claim for a CEA encompassed qualifications that "assist" in respect of "administration". We have made it clear that the CEA will not apply to non-clinical qualifications. We have sought to recognise, however, that a Nurse Manager may be involved in clinical duties for a substantial part of his or her work and have made provision for this eventuality. 21 The elements of the Continuing Education Allowance provision will be as follows (together with certain further observations we have made that are included in square brackets): 1 The allowance will apply to RNs and ENs who hold a continuing education qualification in a clinical field in addition to the qualification leading to registration or enrolment. [This element accepts the applicant's claim except that it limits the qualification to a clinical field]. 2 The qualification must be accepted by the employer to be directly relevant to the competency and skills used by the nurse in the duties of the position. [This adopts the approach in the Queensland model and provides an appropriate constraint on the obligation of the employer to pay the allowance. Any claim that the employer has unreasonably withheld its acceptance of a qualification may be addressed through the grievance procedure referred to in paragraph 21.12 below]. 3 The allowance is not payable to Nurse Unit Manager 3 and above unless it can be demonstrated to the satisfaction of the employer that more than 50 per cent of the Manager's time is spent doing clinical work. [This excludes nurses in senior management positions unless they are involved in clinical work for more than 50 per cent of their time. This adopts the approach in the Queensland model except that it is recognised that there may be situations in small facilities where Managers are involved in clinical work for a significant part of their time]. 4 The allowance is not payable to Clinical Nurse Educators, Clinical Nurse Consultants or Clinical Nurse Specialists . [We are concerned at the prospect of double dipping given that the rates of pay for these classifications are already based on post-graduate qualifications]. 5 An RN or EN holding more than one relevant qualification is only entitled to one allowance, being the allowance of the highest monetary value. [This reflects the claim]. 6 The employee claiming entitlement to a qualification allowance must provide evidence to the employer that they hold that qualification. [This reflects the claim]. 7 An RN who holds a relevant post-graduate certificate in a clinical field (not including a hospital certificate) that is accepted by the employer to be directly relevant to the competency and skills used by the nurse in the duties of the position shall be paid an allowance of $15.00 per week. [We recognise that the allowances we have determined are set at levels considerably lower that those applying in other States. We see no intrinsic merit in matching at the outset the other States in relation to the CEA. This reflects a cautious and conservative approach to the introduction of the CEA. The amounts will be reviewed in 12 months time]. 8 An RN who holds a relevant postgraduate diploma or degree (other than a nursing undergraduate degree) in a clinical field that is accepted by the employer to be directly relevant to the competency and skills used by the nurse in the duties of the position shall be paid an allowance of $25.00 per week. [See comments in par 21.7]. 9 An RN who holds a relevant masters degree or doctorate in a clinical field that is accepted by the employer to be directly relevant to the competency and skills used by the nurse in the duties of the position shall be paid an allowance of $30.00 per week. [See comments in par 21.7]. 10 An EN who holds a relevant certificate 4 qualification in a clinical field that is accepted by the employer to be directly relevant to the competency and skills used by the EN in the duties of the position shall be paid an allowance of $10.00 per week. [See comments in par 21.7]. 11 The allowances in 21.7, 21.8, 21.9 and 21.10 are not included in the employee's ordinary rate of pay and will not constitute part of the all purpose rate. [This is different to the claim but it reflects the limited and measured approach we have taken in introducing the CEA and may be subject of review in 12 months time]. 12 Where a dispute arises concerning the eligibility for payment of a CEA that is not resolved by the process contained in subclauses (i) to (iv) of clause 44, Disputes, negotiations between the Health Department and the Association must occur prior to referral to the Industrial Relations Commission for determination. [This reflects the claim]. 22 The Award will be varied to incorporate a CEA provision in terms that reflect the elements of the provision described in this decision. The variation will take effect from the beginning of the first pay period to commence on or after 1 December 2004. The parties are directed to confer on the terms of an appropriate award variation and in the event of agreement the applicant is to file and serve orders reflecting the agreement within 21 days of today. Boland J will make the necessary variation in Chambers. In the event there is no agreement within that time the applicant is to advise the Associate of Boland J and his Honour will list the matter for one hour for the purpose of resolving any outstanding disagreement as to the form and detail of the variation. ________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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