Federated Clerks' Union of Australia, North Queensland Branch, Union or Employees v Cairns Base Hospital and Peninsula and Torres Strait Regional Health Authority [1995] QIRC 161 (1995) 149 QGIG 454

454 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 June, 1995 ¥#####################################11##11############# QU EENS LAND INDUST RI AL RL'LATIONS COMM ISSION Industrial Relarions Acr I 990 s. 31 9 - no ti ce of industrial dis pu te Fede rated Clerks' Union of Au stralia . No11 h Queens land Branch . Union or l:mp loyees ANO Ca irns Base Hospital and Peninsula a nd Tor res Strait Reg iona l I lealth Auth or ity ( So . D595 of 1994/ COMM ISSIONER B LOO MFIELD 24 May 1995 Dispute - Arbit rated Maller - Manning Le vels - Co mm iss ion Arbi trated Pursuant to s . 3 19 (4) -- Ma nagement Conceded Increases Necessary - Flow on Imp li cat ions -·· Inab il ity o f Public Sc:c tor Body to Fund Addi ti ona l Stafting Levels - Po licy Cons iderations - Com mission Decli ned to Exercise Jurisdict ion . DECISION This maile r first came to the Commis~ion ·s aucn ti on in l)ecem her of 1994 when a d ispute was not ified LO th e Commission bv the Federated Clerks· Union of Austral ia. North Queens land Branch. Union of Emp loyees (FCUNQ) requesting 1he ass ist ance_ o f the Com mission in relat ion to a d ispute at the Cairns Base lios~nal abou t the staffing levels of ward clerks. Dur ing t he course ol the con fere nce it was agreed bc1ween the parties that there would be a close examination or the sta ffi ng requ irements and a wr itten rcpn rt would be prep ared and made available to the Co mm1 ss1on which ind icated the rcsulls of the parties· di scussions a nd dc libcrauons. Wh ~n the mat ter res umed on 11 .Ja nuary 1995 it was clear that the i s,uc o r starting leve ls had not bccn reso lved and th at tlw n:spcctive positions o f the parties had apparen tl y become mor~ entrenched. As a co nsequence the Com mission detc m1111ed that ll would proceed to resolve the dispu te hy arbitration purst'.a'.ll lo S. 3 19(4) o f the Act with suc h heari ng LO rnmmencc 111 Ca,ms o n Friday 24 February. When 1he mailer ca me on for hearin g on 24 Februa ry. Mr o·oonnel l o r FCUNQ called the current. and some p rcY ious, war<l clerks who each gave eY idencc (to va rying degrees) on wha t \~~ere said to be t he deleterious effects upon them caused by undcr-sta1f111g in the ward cle rks area(s) at Ca irn:; Base I losp ila l. The witnesses gave evidence abou t: fe e ling overwo rk ed: st ressed: fat igu ed: thc likelihood o f making mi s takes because of the pressures. fa u gue mid stress: and their co ncern abou t the level of ser,ice t hat they were providing 10 both patients and other hea lth profess iona ls. Evidence was a lso given about the potentia l !'or fi les to go mi ss ing and the poss ibility of putting docu men ts in the wrong fi le or fi les because of the accu mu lation of work pressures and 11111e constrai nts caused by the under-sta ffi ng. 15.229__ I. DOC 2 Ju ne. 1995) QUEE NS LAND GOVERNMENT INDUSTRIAL GAZ ETT E 455 The wi tnesses also comp lai ned abou t the lay-out of the h os pi t al which neccss ilated them having t◊ spend time travell ing be1wecn the ir ward and ot her facili ties and pa rticu lar ly to pc rfo nn si mple tasks su ch as photocopy ing. Although volunteers were ava ilable to do some of this work the ward clerks were generally unhappy with the le Ye l o f se rv ice capable of be ing prov ided by such vo lun te<::rs because the V◊ l untee r s tended to come and go and - whilst the ir in tentions were we ll -fou nded - the volun tee rs d id not understand the syst em and add itional lime had lo be spe nt expla ining lo th em wha t was ac tually required. In the end the evidence suggest ed that the negatives outwe ighed t he positives in respect of volun teer assistance. Although the above s umma ry does not do cred it to the ev idence presenlcd by the various ward clerks. it was apparent to me tlrnt the ward c lerks were under co ns iderable pressure and that they had a very grave concern that the pressures imposed upon them were adve rsely affecting the ir work perfonnance . Indeed, se vc:ral of the wi tnesses s poke about lh c need to work unpaid additiona l hours to t ry to bring their work up to date rather tha n to take home the worry and concern tha t would result if work was left unfin ished at the end or a particu lar day or sh i fl. The efforts hy tJH: ward c lerks to have their con cerns addressed first co mmen ced in April 1994 when they wrote to the management of the Peninsu la and To rres Stra it Regiona l Health Authority exp re, si ng the ir concerns and reque st ing that the matter be ad dressed. During the course of ev id ence Mr Rutherford, o f the FCUNQ. and various witnesses spo ke abo ut subscq uem uns uccessfu l attempts by the Un ion a nd the wa rd clerks to have the ir concerns dea lt with. The unsatisfactory nature of the Regiona l ll ea lth Authori ty's re spon se. in the eyes of the ward clerks, ultimately reached the position where the ward clerks walked off the job for 24 hours in early Decem be r to dr11w attent ion to th eir pl ight and the ser iousness of their claims. At the ti me of the wa lkout the FCUNQ no ti fied the Co mmiss ion ofa dispute . When the matter fi rst ca me before the Commission on 13 Decem ber 1994. I was in fo nnc d by Mr Cu m ber land of Queensland I kallh. that 1hc ward clerk sta ning lcvcl at Cairns Base Hospita l was s even full-time equ ivalent ward cle rk positions plus access tu two full-time equivalent ··relief' positions (t he actua l ti me spent by the .. re lievers· as ward clerks was the subject of a deal of argument ). l was also told that an application had been made as part o r the budgetary processes for th ree additional positions in the 1994/95 budge t. Unfortunately. fund ing was not forthcoming for these positions dc~pite the app lication be ing giv;;n a high priority . Mr C um ber land expressed hope thal funding would be a va ilable in the next (95/ 96 ) finan cia l yea r and that it was ' ·of conce rn that the cu1Tcnt work s itua tion is see n as stressful and ca using fa tigue". Mr Cu m ber land put th at the Regiona l I kah h /\utho ri ty was anx ious to ensure that th is d id not co nt in ue and that there were a number of work load issues wh ich could be addressed in the short 1enn . The poinl was mad e that no emp loyee was expec ted to underta ke more than a day 's work on any one day: t hat issues could b.: pr ior itised to ensure k<::y fu nc t ions were undertaken; a nd t ha t each em ployee needed to be awa re of the expecta tions of management as to what was required or ward clerks . It appea rs that the submission from the Reg i ◊na l Hea lth /\uthority for addi tiona l funding for w ard cl erk positions was based upon manage m ent's perception th at the work requ irements of ward clerks had increased '•fairly s ignificantly ov er the las1 c.o up le of year, .. because of increases in da ily bed averages. in comb ination with a h ig her turnove r rate o f patients and a lo wer length of s tay . The rcs ulla n1 i11 cre <1sc in admissivns and d isc harges ac ted LO in c rease the work required to be undertaken hy ward clerks. By the time that the 24 r cbruary hearing came around each side had deve loped a detailed pro posa l for the Commission to co nsider. Although the respec ti ve proposals env isaged d ifferent numbers of add itional ward clerks , and a diffe ren t time frame duri ng which they might be engaged. it was nonetheless p ro posed hy each side that there needed to be addition al clerks employed. During the cou rse o f the witn ess ev idence a nu mber of the witnesses wt::re asked for their reac tion to the two proposals wh ich had been deve loped by the Union/ward clerks on lhe one hand and Queens land I lealth/ l'en ins ula and Torres Strai l Regional Hea lth Authority on the other. The proposa l ad vanced by the FCUNQ/ward clerks "a s for an add iti onal 4.5 fu ll -t ime equiva lent employees and was centred ..i round th e concep t of one ward c lerk for each major ward area/groupin g. In her ev idence. Ms Ton ki n exp lained that the 4.5 add ition al fu ll-time equivalent emp loyees also catered for ncccss,ir} coverage for hol idays, sickness or accrued days off. with the actua l additional d ay -to-day posi tions involving an increase in three staff. However. on a costing basis th e FCUNQi ward cle rks- proposal did involve an addi ti onal 4 .5 full-time equ iva lent posit ions. The proposal from Queensland Hea lth/Peninsu la and To rres Strai t Regional Health Authority in vo lved the transfer of one o f the ward c ler k .. re li ever" posit ions to become a pcnnanen t ward c lerk and to be a llo cated to a ward area . The second re lie,·ing pos it ion would be used so lely tor p lanned re li ef of ward clerks in areas whe re leave "as prcdictahle. such as annual leave. The proposal a lso en vi saged the creation of an add it.ional position o f ward clerk by a change in estab lishment num bers to "shift.. an ex isting clerical posi tion into the ward area(s). Finally, the proposa l env isaged that in June 1995 a n add itiona l pos ition would be created at lhe hos pita l wi th fu nd ing guaranteed by the Reg ional Health Authorily based upon the an t k:ipated allocation of growth funds to the region in the 1995/ 96 financia l yea r. The ne t effec t of the change was said to be th ree additional ward c lerks and one permanem re li e ver pos ition th a1 would be dedicated to the ward clerlcl> ' area. /\s 1. undersl and lhc proposi tion, staffing numbcr5 wou ld a djust to ten full- ti me equivalent ward c lerk positions plus one dedica ted rel iever as opposed to the current seve n full- ti me equivale nt positio ns with access to two re li eve r pos it ions (in com pet ition with othe r areas o f th e hospita l). There is cl ear authority for the Comm iss ion to adjud ica te the dispute (s ec d.:lini t ion of "industrial matter-·. particularly s . 6(3) (c )(ii)). Ind eed, it was nowhere challenged dur ing the course o f the proceedings that the Commission possessed the necessary j urisdi ction lo detcrn1 ine manning levels if that was the C'ommission·s dec ision in dl'.C id ing 1he d ispute . There are nu mero us examples whe re indus tr ia l 1ri hu na ls have intervened in the d ecis ion of management and detennined appro pr iate mann ing levels. A recent exam ple in this 1r ibunal is the deci sion of Dem psey C. in Bowen Coke P1v lid v AW/i(QueenslandJ (1993) 145 QG IG 125 whe re the Commissione r dete1111ined to require 1h e e mp loyer 10 increase its manning leve l by an add i1ional one perso n over and above the numbers proposed hy the em ployer. However, tribunals have generally been re luctan t to intervene and the ins1 ances where interven tion has occu rred have been as a result of the Co mmiss ion genera ll y dc tem1i ni ng that unfair or unreasonab le demands were be ing made upon employees. In addi ti on. the vast majori ty of instances where tr ibu na ls have inte rfered have been in th e p rivate sec tor whe re the employer has had the op 1ion of allempting to recove r any additiona l costs associated with the increased manning leve ls by way of increases in its pr icing structure or. al ternat ive ly. hy a dec is ion lo absorb such cos ts into its exis ting structures/profit marg ins . 15 229 _ I.DOC -- 1 of 2 -- 456 QUE ENSLAND GOV ERNM ENT l NDUSTRlAL GAZETTE [2 Jun e, 199 5 I 111~ case, h0\\ t:\ er, 1s su bstanua ll ) di fferent 10 the no nna l ci rcu111 ~tanccs umkr which an industrinl t ri bunul might be requ ired 10 consider manning le, el~ I he Peninsula and Torre~ Strait Regi onal I lcalth /\llth ority is fu nde c.1 b) budge t a llocation which com es from Queensland Health In 1um. Queensland Health·~ budget 1s a ppropriated to II b) spec ial rcso lut1ons an d decision~ o l 1h c Quee n~land P arhamen t. All budget req uc~ ts go through a rigorous and search ing cx,1111i na1 ion. Comp~ t,tion for a,:i,lablc funds is lic rce and de tcnnmed based upon ~ctor ,,,de pn o nue, . ·1 he cri tica l pos ition ol publ ic h..: nlt h sec tor fundin g h as been "i,kl~ aired in the commumty in recent ume, and i,; \\lthin the ~cllic kno" lc:dg.e of the Com m1s~1on as presentl) eon~titu tcd because <1fthe pnncl system " ithin this tribunal I am thus placed in a \er) ditlicult position and one \\h1ch I ha,e con~1dcred in depth fo r a number o f \\ Cc ks sin ce the c ase concluded On the e \ldencc - in cluding thal u f the crnplo~er - th en! woul d appe<1r to be stafT ~ho rtage, at the Cai rn, Base I lo, pital in the ar ea ot "ard cl.:rks. Thcse s taff shortages arc ha\· in g. \ urious cn.: ct~ o n the em pl,iyec~ as ou lli nc<l a ho ~.: . Man.igcmcnt ha, ,1ttcm pted in rece nt time, tu alk, ,ate the d1ffic11 l11e, and prc,;s ure, facing !he ward clerl s hut (un ti l co rn par .111\cl~ n·ccnt l)) \\ 1thou1 ,ucce,, . I he propo)ab " h ich ha, c been ad \'anccJ by Queens land I lcahh Peninsula and I orre~ Strait Regional I lcallh Authoril~ do envi, ugc an in crease in the numbe r of wa rd clerk po ,1t1on s in a rca~on ahlc spa ce ur time. 7 hen: is al~o the qu c~ tion o f wh ich of thc t\\O (2 1 competing propo1- i11ons is the correct (or bene r) so lution I am al,o told 1ha 1 the budgct aJ') cOn)trnmts facing t he Kegional Heal th /\ utho ri ty and th~ Cairns I3,t ) <: I luspital urc suc h thu t no oth er guarantees aho ul s ta ffing le, cls c an be made other than thClse which w.:rc propo~cJ during the procecJ111gs, and \\ hich arc ou tlined abO\ e . It,~ alw ckar lrom thee\ idence (,\h 1ch I .iccer tl that there i~ no car11 c1t} \\ithm the Reg1 0 11 ,1I Health 1\ uthorit) :,imply to --gene rate" lh\.' cx1ra fu nd , 1cyuircd to go h e) (l nd the offered mcrca \c, in \,ard cle rk :- wffing level-. I wa, told du n ng the second con fe ren ce (before !he matter proceeded to arbnration ) that to put 1111 cxtr.i \ ,JrJ clerl.. po,1 ti on, ,, o ul J mc.: an thJt mone ) \\ Ould ha, .: 10 Ix: taken fr om S() mc ,\h crc else which \\'0 UIJ he a ~ituat ion li ke " robbing Peter to pa~ PJul: j u,t ,hilling th .: 111eqm t) or the <l10icul1~ and it mak e, another group angr) or angrier and \\C get into ongoing mdusmal &,p11 tatinn.. It .-. also ch:ar fwm thee, idcnu: thdt other emplo)cc, "1th111 the Re g 1onu l I k alth 1-\ut ho ri t) arc under ,1rnilar prc, w re~ t CI tho,e b c111 g c.xpcncnccd by ,,a rd cl erk~ tx:causc <•f the !,! !'Cater d cmn11ds being placcd upon the hea lth ~} , tem b~ the communll} ge m: rall) .ind the larg.:r throughput o f patients cau~.:J b) a reduction in length of Sid) m, d un rn" ·cd " tum J rnund ti mes· of pnt,cn ts . I 111 ~ " the d1kmma IJc111g the ( nmn11ss1on r hcrc ,~ c, idcncc lx: fon.: me a, 10 the ditfa ult, es confronti ng \\ ard clerk~ An} d c: cision hy m i: 10 o vercome those c.l ifliculties t,y increa:,in p, manning leH·!, \\ ill. of m:ce:.~ it}. re4 11 irc the Regional ll calth Authorit) to n:all uL ate its rc ~1urccs to CU\Cr the required add1uonal e,pcnditun: The Regiona l I le:1 lth 1\ uthont~ ha s no ah1ht) to n.:coup this add iunrw l c,p c nrl iture . It \\ i ll be requ ired H' "' fi nd'" tlw ncccssar) lu nJ , trom d:,c:\\h<:rc "'Ihm i1:, bud{!..:! I here ,s no material before me \\ h 1ch \\m1 ld co n, in ~c me tl rn t the t hc:rc i5 ,u f fi c icnt c.ipac ity "ithi n the 1:-udi;e t to cna bh: the Re g1onul Health Autho nt ) to m ee t the req uired additional ex penditu res withou t there being so me concomitant redu ction in sta ff numbers and/or s en ice, elsewh ere \\ ithin the I lealth Authority . i\ ccordingl) . whilst I ha,c great S) mpathy \\Ith the plight of the ward clerks, I am not prepared to pu t th e.: Re gional H ea lt h Authority 11110 tlm pos ition To do so, in the absence of an~ C\ idence as to the likel) p<> , si ble repercussions. wou ld be an abuse of the po \\ CI"\ that I possc ~s to determine the s taning level s. Quite apart from !he aho\'e con~ideration, t here 1s also the con,id.:ration of !low on . The dec ision \ \h ich I am be ing asl ed lo ma l. c 1s at one locat io n on l~ (Cai rns Ba~c ll osp11all \\! th in the Pen insula and T orres S 1ra it Regionul I lealth Autho ri t) . Any decision that I might make to incre <1~C ward cle rk numbers would ha\'C repercuss ions throughout the "ho le of that ho pita I S} ~,em. It could reasona bl} be expected that ot her empl o)ces, h av ing se en a ~uccessful out come on the pan of wa11J clerl. s, would mo ve to s upplement the ir own staffi ng num ber, by mounti ng a ~imi lar case Others could be expected to folio" and any ,uccess ful ou t come in an) of th o:.c: ot her applic ations would l1,1ve a domino effec t down the li ne such that the last group to mount a case might find that not on ly do they not s ucceed but that their numbers might be r educed because the manage ment of the Regio na l Heal th Authorit) \, ould ea rlier h a,c been required 10 in crens .: numbe rs e lsewhere to comp!)' with dcci~ inns of this (or another) tri t> una l. Quite apart fr om thi s. th e Co mm iss iC1n is a\\are . from other dispu tes which have come hcforc it. of other arguments about m ann111g le\·cl s \, hich \\OUld be gi\\:n impetu, b) any success ful o utcome in this cu rrcm m auc r. According !} , hecausc o f these potential rcpc rcussion, and the po1ent1JI to increa~c disputation and dishanno n) "ith in the publi c s ector . the Comm i,s ion dccl in es to e, crc,se its Jnrbdi ction to re, ie\\ staffin g. nu mbers tor ward clerks at Cai ms Base I l~1spiuil. In n fonnal ~en:,c th 1~ m ean, t hat the Commission rCJ CClS the da im ml\a nccd on beha lf o l the FCl lN Q/ Caim s l)ase Ho ,pi tal ward clcrl.s for any increase in ward clerk numbers. I lowevcr. in saying thb the Con uni, s ion note~ that the Regional l k alth Aut hori t) h a, al read). during the cou rse of 11s s uh m1 ss1o ns to me, pro posed cen am increases in the srnfnng lcv cb based upon ib o" 11 assessmen t of its abilit) 10 fu nd ne \\ posit ions . T he Cl•mmiss ion would c , pect that the pr o posab ad, dnced befo re it ar t! honoured nC1 twithstand111g the Co mn11 ss 1on ·s own dec ision to fonnall } r.:j ect the claim a<h anc ed b~ the F CU NQ/ wa rd cl er k s. A.I Ill OO 1\!H f: LI). Comnu ,s ioncr . lppt·(lrttnces: Mr .I. ( l' Oonncll fo r the h :de rated Cler k~· Union o f Austra li a. North Quccm,lond Branch, Un ion o f Empl O}' CC ,. Mr I Cumberland fo r the Peninsula and To rre~ Stm1t Kegional llcalt h /\uth or11 y. Opera u, c Date. '1A Deci:,wn - Ma 11 n 111 g Le, e b Rclca,ed · 24 \1 a} 1995 1522Q_ I.DOC 2 Ju ne , 19 951 QUEE SLAND GOVERNMENT I NDUSTR IAL GAZETTE 457 -- 2 of 2 --