Industrial Relations Commission of New South Wales CITATION: Health Employees' (State) Award (No 2) [2005] NSWIRComm 1111 APPLICANT The Health and Research Employees' Association of New South Wales PARTIES: RESPONDENT Health Administration Corporation FILE NUMBER(S): 6907 of 2001 CORAM: McLeay C CATCHWORDS: Award variation - decision issued December 2003 - parties asked to prepare draft orders - no agreement reached on draft orders - further submissions - new definitions for centralised food processing unit, chef and cook - new rates of pay for chef and cook -new rates of pay at TNL - orders issued LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 12/17/2004 DATE OF JUDGMENT: 07/12/2005 APPLICANT Mr J Murphy of counsel LEGAL REPRESENTATIVES: RESPONDENT Mr P Ginters of counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 12 July 2005 Matter No IRC 6907 of 2001 Health Employees' (State) Award Application by The Health and Research Employees' Association of New South Wales for variation re work level statement SUPPLEMENTARY DECISION [2005] NSWIRComm 1111 1 This is an application by the Health and Research Employees' Union of New South Wales (now the Health Services Union) to vary the Health Employees' (State) Award in regard to certain classifications of employees in Centralised Food Production Units. The decision in this matter was handed down on 22 December 2003. My conclusions in the decision were summarised as follows: (a) A special case exists because the evidence identified a wide discrepancy between rates of pay for employees in cook chill food production units across the State performing essentially the same duties and because the evidence showed some particular definitions were inadequate, requiring rectification. (b) The evidence did not reveal a significant net addition to work value sufficient to substantiate the claim. (c) All classifications at The Nutrition Link (TNL) should be reviewed by the parties to ensure that positions are correctly classified. Such examination should be carried out as soon as practicable with any reclassifications arising from the review to take effect from the first pay period to commence on or after 1 January 2004. (d) New definitions and rates of pay are to be incorporated into the relevant award for the positions of Chef and Cook in cook chill food production units, with appropriate rates of pay. (e) Anomalies in rates of pay for employees doing the same job at different locations are to be rectified as far as is practicable. The parties are to negotiate with a view to preparing a consent variation to the award to reflect this finding. The Commission does not object to the parties using the definitions claim in this application, in either the original or revised form, as the basis of a consent position. (f) Any variations to rates of pay arising from this decision are to take effect from the first pay period to commence on or after 1 January 2004. 2 The orders arising from those conclusions were as follows: I direct that the HSU prepare draft orders reflecting the conclusions reached by me in this decision on or before 4pm on Friday 27 February 2004. Within 14 days of receipt of such draft orders the Health Administration Corporation shall file and serve a document either concurring with the proposed orders or setting out alternate proposed orders. The matter shall be re-listed following receipt by the Commission of such documents. 3 The orders were later amended to give the parties more time to negotiate. The parties to the matter, the Health Services Union (HSU) and the Health Administration Corporation (HAC), were not able to agree on draft orders. Their respective drafts were provided to the Commission and further written submissions were provided later. It is surprising that more agreement was not reached, particularly considering the extensive time available to the parties and the decisions arrived at by me in December 2003. The preparation of draft orders by the parties should have been no more than a genuine effort to bring practical effect to the decision made at that time, not an attempt to re-argue the case. 4 Having considered all of the submissions of the parties both oral and written, I am now prepared to issue orders, and set out below some of the rationale for those orders. I have not gone extensively to reasons; this has been done in proper form over a year and a half ago. 5 It is useful and appropriate to insert a definition of a Centralised Food Production Unit (CFPU) into the award, in accordance with the submissions of the parties. The definition simply describes the type of facility where bulk food is prepared for use in hospitals and other facilities. 6 The HSU's proposed orders set out the processes used in the central units, namely, Extended Life Cook Chill, Short Term Cook Chill and Cook Freeze technologies, in the definition of the CFPU as well as in the definition of each of the classifications. The HAC's proposal is to name the technologies in the definition of each of the classification of employees but to remove it from the definition of a CFPU. In circumstances where the parties have not presented a common view, the approach I have adopted is to avoid unnecessary repetition by outlining the technologies once only in the definition of a CFPU. 7 It follows that the definition for a CFPU is as follows: Centralised Food Production Unit (CFPU) means a centralised food production unit established by an Area Health Service or the Health Administration Corporation that produces and supplies bulk food produce in advance. The CFPU produces but is not limited to cook chill food in the form of extended life cook chill and/or short shelf life cook chill product. The CFPU can also produce bulk food as cook freeze product, and as prepared non-cooked items including but not limited to items such as salad vegetables, fruit, desserts, prepared cold meats etc. This food is produced using such technologies as Extended Life Cook Chill (ELCC), Short Term Cook Chill (STCC) and Cook Freeze (CF) and distributed to receiving/finishing and satellite kitchens which may be within or adjacent to the CFPU or off site. 8 As to the definition and rates of pay to be incorporated into the award for the positions of CFPU Chef and CFPU Cook, the parties have proposed definitions which are similar but not identical. In looking at the differences between them I have decided to adopt a version which does not contain details which might properly be located elsewhere, such as those proposed by the HAC which the HSU said should be contained in job descriptions. I refer here to such responsibilities as OH&S and food safety requirements which are an integral part of all positions in food service. I agree they are more appropriately contained in job descriptions where, in my view, they are more likely to be read by the relevant employees. 9 The HSU has proposed a definition for CFPU Chef and definitions for CFPU Cook Level 2 and CFPU Cook Level 1. The HAC proposed a single definition for CFPU Cook as well as a definition for CFPU Chef. In my decision of 22 December 2003, I made no finding as to changing the number of classifications, the need for new definitions arising only from the inadequacy or irrelevance of the existing definitions in the award. The award currently contains definitions for Chef, Cook (Grade A) and Cook (Grade B). It follows logically that these should be replaced, for the relevant employees working in centralised units, with new definitions for CFPU Chef and two levels or grades of CFPU Cook. 10 As to the proposed definition of CFPU Chef, the HSU has made express reference to a completed hospitality commercial cookery qualification at Certificate III or equivalent trade certificate and/or completed relevant apprenticeship or qualifications deemed by the HAC to be equivalent. The HAC submitted that the HSU's proposal to set rates reflective of Certificate III or Certificate IV or equivalent competencies was misconceived and sought not to include any reference to a qualification. Although I note that some job specifications required a particular level of qualification, this was not widespread and I agree that it is not appropriate to incorporate a minimum qualification into the definition where the employer does not require such a qualification. 11 It is also unnecessary to include in the definition the words proposed by the HSU regarding compliance with Hazard Analysis Critical Control Point procedures and principles. There are a range of responsibilities set out in job descriptions provided in evidence, and to single out one of these responsibilities to the exclusion of others, in the absence of the employer's agreement to do so, seems superfluous. In the absence of any sound reason being offered to the contrary, I repeat my earlier comments that such compliance should properly be contained within job descriptions or statements of duties where they are more likely to be read by the relevant employees, rather than in the award definition. 12 The definition of CFPU Chef to be inserted into the Health Employees (State) Award is: CFPU Chef means a person appointed to such a position in a CFPU and who is accountable for the preparation, production, portioning of bulk food products and other non-cooked items in the CFPU. The CFPU Chef is responsible for the supervision of staff. 13 The definitions of CFPU Cook to be inserted into the award are as follows: CFPU Cook (Level 2) means a person appointed to such a position in a CFPU and who is responsible for the preparation, production and portioning of bulk food products and other non-cooked items and associated food production tasks. The CFPU Cook is responsible for the supervision of employees working in the above processes. CFPU Cook (Level 1) means a person appointed to such a position in a CFPU and under the supervision of a CFPU Cook Level 2 who assists in the preparation, production and portioning of bulk food products and other non-cooked items. 14 The reference to supervision in the definition of CFPU Cook Level 2 has been incorporated into the definition consistent with the requirement to supervise the work of other cooks as set out in the current definition for Cook (Grade A). 15 As to rates of pay, and relying again on the current award provisions as a starting point, there was nothing in the evidence to suggest that three levels of pay were inappropriate for Chefs, depending, as they were, on the size of the facility and the number of meals prepared. The HSU has proposed four rates of pay depending on the years of service, while the HAC has proposed a single rate, submitting that the HSU has not made out a case justifying its incremental claims for the classifications of Cook and Chef. In my view, it is appropriate to retain three rates of pay for CFPU Chef, relying on the size of the facility rather than on years of service. I propose to follow the established pattern by providing for three grades of CFPU Chef, allowing the employer to determine the appropriate rate in each case. 16 I express the rates in amounts applying as from 1 January 2004, consistent with my decision of 22 December 2003 in this matter. The rates for CFPU Chef Level 1, Level 2 and Level 3 shall be $681.30, $705.50 and $729.30 respectively. 17 Similarly, each of the two grades of Cook will continue to attract a single rate of pay, as is the present case. The rates for CFPU Cook Level 1 and CFPU Cook Level 2, arising from the new definitions, shall be $655.00 and $681.30 respectively. 18 My finding in regard to TNL operated by South Western Sydney Area Health Service was that all classifications should be reviewed to ensure they are correctly classified. This was not intended as an open invitation to make new submissions in regard to what ought to be paid. The parties have agreed in regard to the rate applying to the General Manager and the Food Production Manager. They have not agreed in regard to any of the other positions. So I make the following determinations which will apply at TNL. 19 The rates for General Manager and Food Production Manager will be agreed between the parties, that is, the General Manager will be classified as a Health Manager (HSM3) and the Food Production Manager will be classified as General Administration Staff (GA14). The Senior Chef should be paid at the rate of General Assistant Grade 9 as proposed by the HAC. The Chef and Cooks should be paid in accordance with the outcome generally for Chefs and Cooks in Centralised Food Productions Units, with the highest rate applying in each classification. Kitchen Assistants shall be classified as Hospital Assistant Grade 3 in accordance with the concession to that effect made by the HAC in final submissions. The classifications of Storeman/Food Service Assistant/Driver and Driver/Food Service Assistant should continue to be paid in accordance with their primary role. 20 The position of Despatch at TNL was proposed by the HAC to be a Health Assistant Grade 3 at the time that Kitchen Assistants were proposed to be classified as Hospital Assistant Grade 2. With the variation of Kitchen Assistant to Hospital Assistant Grade 3 no further comment was made in regard to the Despatch. While it is acknowledged that the leading hand allowance is provided to the person occupying this position there is no additional allowance for working in the cold conditions. I note that the Health Employees' (State) Award contains provision for people working in cold places to be paid an allowance where the temperature is reduced by artificial means below zero degrees Celsius. I understand that the despatch area of TNL is not reduced below zero degrees Celsius but close to it. If that is so, then it is my view that the Cold Places Allowance or some proportion of it should accrue to persons working in the cold despatch area at TNL. I leave this question and my comments in relation to it for the HAC's consideration. 21 As to principles proposed by the parties, it is not necessary for me to set them out as orders arising from this matter. They simply go to the normal and expected method of introducing any changes arising from orders of the Commission and are well known to the parties. It adds nothing, in my view, to set them out specifically in this instance. 22 As to my earlier conclusion that the parties are to negotiate with a view to preparing a consent document which would have the effect of rectifying anomalies in rates of pay for employees doing the same job at different locations, I would hope that most of this work has been done. For ultimate caution in case any of it remains outstanding, I adopt the relevant order substantially in the form proposed by the HAC, which most closely resembles my conclusion initially. ORDERS 23 I order: 1. That the Health Employees (State) Award be varied as per the findings set out in this decision to give effect to definitions for Centralised Food Production Units and classifications and rates of pay for Chefs and Cooks employed therein, to be known as CFPU Chefs and CFPU Cooks. 2. That existing employees at the Centralised Food Production Unit known as TNL be reclassified in accordance with the findings set out in this decision. 3. That the rates of pay arising from Orders 1 and 2 above take effect from the first pay period to commence on or after 1 January 2004, as previously determined. 4. That the parties continue their efforts to reduce the anomalies in rates of pay for other employees doing the same job at different Centralised Food Production Units. _________________ 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.