Tuesday 19th December 2006
Union defeats move to subvert Award
A nursing home has failed in a bid to get rid of 13 assistant nurses who refused to give up their monthly rostered day off.
The Nurses Association defeated a move by the Calvary Retirement Community home at Cessnock to abolish the 19-day month and declare the 13 AINs redundant.
The Industrial Relations Commission ruled in favour of the nurses and the Association.
Commission Deputy President Rod Harrison said management had tried to create a ‘legal fiction’ to subvert the nurses’ Award and remove their Award entitlement to a 19-day month by duress.
‘The nurses felt it just wasn’t fair to take away a right that we had fought for way back, so we decided to stand our ground,’ said Bronwyn Downing, president of the NSWNA branch at Calvary.
‘The members should be commended for sticking together and winning back what they were entitled to,’ she said.
NSWNA General Secretary Brett Holmes said: ‘The Commission’s decision vindicates the nurses’ stand and is damning of the management position.’
Calvary is a 216-bed high-care facility owned by the Little Company of Mary Health Care, which operates health and aged care services in five States and Territories.
The Little Company of Mary bought the home from the Hunter New England Area Health Service in 2002. The sale agreement included transitional funding from the Area Health Service.
Nurses employed at the time of the sale maintained their public sector Award pay rates and conditions under a framework agreement between the Association and the State government.
Transitional funding ceased at the end of last year after Calvary management failed to gain additional funding.
Management then embarked on a cost-cutting exercise to abolish the rostered day off by reducing shift lengths from 8 hours to 7 hours 36 minutes.
As well as losing the RDO nurses would also have lost a tea break and suffered a reduction in handover time and contract hours for permanent part timers.
The NSWNA branch unanimously rejected the cut in hours, saying they were not prepared to sacrifice their Award entitlement to a 19-day month in favour of a 20-day month.
Management then announced that all 8-hour shift positions were ‘redundant’ and 31 AINs and four RNs were therefore ‘surplus to requirements’.
Management said all 33 nurses, who had transferred from Hunter Area Health in 2002, would be involuntarily relocated back to the public sector under the framework agreement – probably to jobs in Newcastle, an hour’s drive from Cessnock.
Bronwyn said it was nonsense to claim the nurses were ‘surplus to requirements.’
‘They were still rostered to work, still needed,’ she said. ‘And where were management going to find more nurses to replace them?’
She said relocation would have meant major disruption to family life. ‘It would have meant driving two hours each day, plus the extra cost of petrol and parking – and some people don’t drive or own a car.’
Calvary’s senior management admitted during the Commission hearing that nurses were selected for relocation without taking into account their personal circumstances.
Deputy President Harrison noted that management ‘acknowledged that the overwhelming majority of employees concerned are women, in their mid to late fifties, who have worked at the Calvary site for many years, live close by, and do not have a driver’s licence.’
Under the threat of forced relocation, some AINs accepted the reduction in hours and forfeited their RDO while two quit their jobs.
The four RNs had a reprieve when management announced it would not seek to change their hours of work or relocate them.
The NSWNA filed unfair dismissal claims for the remaining 13 AINs who stood firm and refused to accept the hours cut or relocation.
In his judgement, Deputy President Harrison concluded that identifying staff as surplus under the framework agreement was a strategy to apply pressure on staff and the Area Health Service. The framework agreement could not be used in this way, he said.
‘The strategic purpose was to bring the issue of additional funding from the Area Health Service to a head and to force staff to a choice between agreeing to change hours pursuant to the Award or lose their position (at Calvary),’ he said.
‘The notion that the full time positions are redundant in a new employment structure contemplating only part time positions is no more than a device of convenience in an attempt to create a legal fiction designed to avoid the rights held by the employees pursuant to their award to work a 19 day month.
‘The intention of (Calvary) to achieve a 20 day month without agreement of the employees concerned, whether they are employed pursuant to the Public Hospital Nurses (State) Interim Award or the Nursing Homes, &c, Nurses’ (State) Award, is an attempt to subvert operation of the industrial instruments and remove entitlements of employees by duress.’