Wednesday 30th December 2009
Federal Court rules community nurses must be paid for hours spent travelling between clients.
The Australian Federal Court has only stated the obvious, but its declaration in October that community nurses must be paid for time spent travelling between clients will be welcomed by many nurses who have been underpaid for too long.
The Federal Court’s decision in favour of the NSWNA’s position that community nurses must be paid for their travel time sets an important precedent that may have repercussions for other Awards.
‘Many nurses drive hundreds of kilometres each week travelling between clients as part of their nursing duties. The Federal Court’s declaration guarantees that nurses be paid for the time they spend travelling, and this applies to all nurses in Australia, not just employees of SOS. It is an important decision that protects the rights of all nurses who travel as part of their work,’ said NSWNA General Secretary Brett Holmes.
As the Australian population ages, community nursing is likely to become an increasingly important part of the nursing profession, and this is reflected in the Federal Government’s proposed health reforms. The nature of community nursing, however, has traditionally made employees in this sector vulnerable to unfavourable work agreements. Industrial organisation can be extremely difficult because community nurses tend to work individually, with limited contact with their colleagues, and because most are employed on a casual basis.
This vulnerability was illustrated in the NSWNA’s drawn-out industrial case against SOS, a company that is contracted to provide services to clients of the Commonwealth Department of Veterans’ Affairs, and whose objectionable industrial practices lead to the Federal Court’s declaration. In December 2007, The Lamp reported that the NSWNA was investigating SOS for breaches of the Award, and for illegally imposing a WorkChoices-style agreement on its 200 nursing and domestic care staff that stripped back penalty rates, had no minimum shift, and gave no guarantees of a pay rise for the following three years.
When the NSWNA began its investigation, SOS was only paying its employees for the face-to-face time they spent with their clients, not for time travelling between visits, and it was also found to be grossly underpaying the per-kilometre travel allowance.
Two years later, the Federal Court’s decision in favour of the NSWNA’s position has made it clear that working hours have to be consecutive – unless there is a split-shift clause in an agreement – and that travel time must therefore be paid.
The Federal Court also ruled that SOS must enter into a new agreement with the NSWNA before April 2010. In an unusual additional step, the Court specified that SOS must reach a satisfactory agreement with the NSWNA and its members, and failure to do so would lead to mediation in the Industrial Relations Commission of NSW.
How we won
In February 2008, the NSWNA wrote a letter directly to the Minister of Veteran’s Affairs, Alan Griffin, outlining the Association’s concerns regarding not one, but several companies that then held contracts with the Department to provide home and community nursing care. Would the Department consider ending a contract if it was found that a company was violating industrial laws? the letter asked.
The answer was yes. ‘My Department does not condone any breaches of legislation by its contracted community nursing providers. It is a requirement of the contract that all providers abide by all relevant Commonwealth, State and Territory legislation,’ wrote the Minister, giving the NSWNA the weight it needed to win a tough case for some of its most vulnerable members.
Achieving the declaration in the Federal Court required considerable perseverance and organisation on the part of our community nurse members. Their hard work, which included organising and cooperating with disparate members and calculating casual working hours in the absence of fortnightly payslips, led to a significant and precedent-making win, and should be commended.
Sally welcomes court decision
Sally Baker loves community nursing, but she knows all about the vulnerability of her chosen profession, and welcomes the Federal Court’s decision to guarantee that time spent travelling between clients must be paid for.
‘The decision is a very important precedent for community nurses. We should be paid for all aspects of our work, and I hope that the Court’s declaration will encourage more nurses to consider entering the community nursing sector,’ said Sally.
Like many community nurses, Sally receives no superannuation, no holidays and no sick pay because her employer, Southern Cross Health, contracts her as a sole trader. Sally has her own ABN.
‘It’s a bit of a cop-out, because the Government pays companies to care for people, and if community nurses were employed directly by the Government we would receive all the allowances that we should be entitled to,’ said Sally.
Of course, Sally is quick to mention the things she loves about her job, such as the relationships you build with long-term clients, the spontaneous and sometimes unpredictable nature of the work – ‘There is no average day,’ she told The Lamp – and the flexibility of the working hours, which many community nurses can organise around their other life commitments.