WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 01090

DELIVERED : FrIday, 7 december 2012

FILE NO. : CRB 1 OF 2012

Applicant

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board.

Respondent

Catchwords : Industrial law (WA) – Dispute as to proposed redeployment of employees – Positions abolished – Application of Western Australian Government / Liquor, Hospitality and Miscellaneous Union Redeployment, Retraining and Redundancy Certified Agreement 2004 – Question whether position is ‘suitable alternative employment' – Principles applied – Declaration made.

Legislation : Industrial Relations Act 1979 s 44(9)

Result : Declaration issued

Representation:

Applicant : Ms E Palmer and later Ms C Collins of counsel

Respondent : Ms T Sweeney

Case(s) referred to in reasons:

Hans Continental Smallgoods Pty Ltd v Farrell [2005] NSWIRComm 1103;

ALHMWU v SCGH (1996 Print N7046 unreported AIRC 6 December 1996);

Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226;

ALHMWU v SCGH (1996) 69 IR 279.

Case(s) also cited:

Krysti Guest v Kimberley Land Council [2009] WAIRComm 443;

Krysti Guest v Kimberley Land Council [2009] WAIRComm 1155;

Guest v Kimberley Land Council Aboriginal Corporation (2010) WASCA 53;

Autodesk Inc v Dyason (No 2) [1993] HCA 6;

Australian Chamber of Manufacturers v Derole Nominees Pty Ltd Print 14414 (12 September 1990);

Lawrie v Coles Supermarkets Australia Pty Ltd [2008] SAlRC 54;

National Union of Workers v Linfox Australia Pty Ltd [2008] AlRC 647;

Target Australia Pty Ltd and Shop, Distributive and Allied Employees Association (FWA PR903553);

Derole Nominees Pty Ltd v ACM (1990) 140 IR 123;

ALHMWU v SCGH [1996] Print N2465 (Unreported, Dight C, 14 June 1996);

Baywood Products Pty Ltd v Mr Mervyn Inall [2010] FWA 9303 (Unreported, Ashbury C, 2 December 2010).

Reasons for Decision

Background and history

1          This matter has some history. The application, brief background and the relief sought are set out in the Commission’s earlier reasons for decision of 17 July 2012:  (2012) WAIRC 00438.  The bulk of the cases for the parties were heard on 28 and 29 March 2012.  At the conclusion of those proceedings, further matters were to be dealt with in relation to two of the claimants, Ms D’Rozario and Ms Stanciu.  As to Ms D’Rozario, the Public Sector Commission was required to further consider some issues relevant to her circumstances.  As to Ms Stanciu, a medical assessment was required to determine her suitability for some of the work considered by the Minister to be suitable alternative employment. The parties foreshadowed the possible need to call further evidence and/or make further submissions, subject to the outcome of those latter events.  Accordingly, to accommodate these issues, the Commission adjourned the application to a date to be fixed.

2          Shortly after the adjournment of the hearing, on 4 April 2012, the Union made an application to call further evidence on matters arising from the evidence of one of the Minister’s witnesses, Ms Glatz.  This was opposed by the Minister.

3          Before the issue of the reopening of the case by the Union was heard, the Union advised my Associate on 23 April 2012, that the parties had reached an agreement in relation to Ms D’Rozario’s claim and therefore a determination of her circumstances was no longer necessary. In relation to Ms Stanciu, an occupational medical assessment had been completed, which revealed that Ms Stanciu was not medically fit to undertake the position offered by the Minister as suitable alternative employment. The Minister subsequently offered Ms Stanciu another position that he considered suitable. Ms Stanciu disputed that this was so.

4          The Union also expressed the view that in accordance with the relevant provisions of the Western Australian Government / Liquor, Hospitality and Miscellaneous Union Redeployment, Retraining and Redundancy Certified Agreement 2004 (“the RRR Agreement”), Ms Stanciu was entitled to elect to leave her employment and be paid severance pay.  Both responses of Ms Stanciu were disputed by the Minister.  The Union requested the proceedings be relisted to determine these issues. A convenient date to relist the matter to deal with these issues could not be found until 1 June 2012.

5          At the hearing on 1 June, the Union foreshadowed that it still intended to press the issue of leave to reopen its case, but would not do so until the issues concerning Ms Stanciu were determined. Additionally, the Union made an application to amend the s 44(9) referral, to include reference to an issue that had arisen between the parties, in relation to the calculation of severance pay, should the Union’s claim be successful.  In the course of the proceedings on 1 June, the Commission partially granted the Union’s application to amend the s 44(9) referral.

6          At the conclusion of the hearing on 1 June, the Commission advised the parties that it would determine Ms Stanciu’s claim as a discrete issue, with the substantive proceedings being adjourned to a later date.  On 21 June, a proposed amended s 44(9) referral was forwarded to my Chambers by the Union.  Also, my Associate was informed that the representative for the Minister was to be on leave for five weeks from 25 June.

7          Somewhat surprisingly, on 28 June, by way of an email to my Associate, the Union advised that it had requested the Minister to reclassify the position of Menu Assistant to a higher classification level.  A copy of a letter of 23 March 2012 from the Union to the Minister contained this request.  The Union asserted in its email of 28 June to my Associate, that the issue of the correct classification for the Menu Assistant positions was “integral to the issue of suitable alternative employment, which is currently before the Commission”. The Union also requested that the Commission delay its determination of the suitable alternative employment issue, pending the reclassification request. The Commission was unaware at the hearing on 1 June, that such a request had been made by the Union to the Minister. 

8          On 29 June, the Minister notified my Associate that it strongly opposed the Union’s request that the proceedings be delayed pending a determination of the reclassification request. The Minister also advised the Union, by letter of 28 June, that the reclassification request was incompetent and would not be considered by the Minister.

9          The Commission did not accede to the Union’s request to delay the matter.  On 17 July 2012, the Commission handed down its decision in relation to Ms Stanciu, upholding her claim, and also the Commission’s reasons for, in part, granting the Union’s application to amend the s 44(9) referral: (2012) WAIRC 00438. The Commission also divided the proceedings, so that orders and declarations in relation to Ms Stanciu and the other employees could be dealt with separately.

10       Because of the number and variety of issues that had arisen in the proceedings to date, the Commission listed the matter for mention on 7 September 2012, being the first opportunity to do so after the decision regarding Ms Stanciu had been handed down.  At that hearing, the Union informed the Commission that the Union would not proceed with the reclassification request.  As counsel for the Union was not then in a position to deal with submissions on its leave to reopen application, the Commission made directions for the hearing of the issue based on written submissions, with those written submissions to be filed by 21 September 2012.

11       In a decision handed down on 25 September 2012, the Commission refused the Union’s request to reopen its case, and in view of that decision, formally reserved its decision on the substantive issues in dispute.

12       I have spent some time outlining the procedural history of this matter, by reason of the time elapsed from the dates of the initial hearings to the publication of these reasons. It will be apparent from the above recital, that much of the time period involved is due to a requirement for the Commission to determine discrete issues in the case, and also, to accommodate various requests, in particular those made by the Union.

13       In the case of the three remaining employees the subject of the claim, the Public Sector Commission made a determination on 13 January 2012 that the alternative position of Food Services Attendant, was suitable alternative employment for the purposes of the RRR Agreement.

Contentions of the parties

14       The Union submitted that in accordance with the relevant provisions of cl 8(1) of the RRR Agreement, for the purposes of determining the suitability of alternative employment, a number of factors should be considered.  These include the wage of the alternative position; the relevance of the duties and responsibilities to the qualifications, experience and competence of the employee; and the particular circumstances of the employee concerned.  Furthermore, by the terms of the RRR Agreement, the employee may elect within three months from the date the position becomes redundant, to leave the services of the employer, if no suitable alternate employment is found for the employee. In such a case, severance payments become payable under the Agreement. 

15       Furthermore, it was contended by the Union that the Minister had no sound basis for, and was premature in asserting, that where suitable alternative employment could not be identified for the affected employees, they would be registered as redeployees.  In this regard, it was submitted that whether severance payments should made to an employee in the absence of suitable alternative employment, is not a matter which falls to the unilateral determination by the employer, but rather, is to be determined in accordance with the relevant provisions of the RRR Agreement: Hans Continental Smallgoods Pty Ltd v Farrell [2005] NSWIRComm 1103. That is the outcome which the Union is seeking should the Commission find that the positions offered to the employees are not suitable alternative employment.

16       As to the broad approach to apply, the Union submitted that the RRR Agreement should be read with the WA Health – LHMU Support Industrial Agreement 2007, in particular cl 52.1.  Clause 52 of this industrial agreement deals with disputes in relation to redundancy and redundancy type situations.  By this provision, which refers to such disputes being resolved by way of a “Dispute Panel”, the matter is to be determined having regard to “a just resolution to the dispute having regard to the particular circumstances and what is fair and reasonable”.  On this footing, the Union therefore submitted that the fairness and reasonableness of the outcome is a relevant consideration for the purposes of determining the present proceedings.

17       Additionally, the Union referred to the terms of the Public Sector Redeployment Standard, in particular the obligation on an employer to ensure that redeployment decisions are equitable and have paid sufficient regard to employee interests.  Employee interests in this context, include the employee’s personal circumstances and their career considerations.

18       In terms of the specific issues concerning suitable alternative employment for the affected employees, the Union made a number of submissions. Firstly, it was contended that each employee, having been offered the alternative position of ward based Food Service Attendant HWGA Level 1/2, will suffer a reduction in pay. This is relevant, given that the employees are low paid employees and the impact of any reduction in income is significant.

19       Secondly, the Union contended that the duties and responsibilities of the Food Service Attendant position will involve a significant diminution of the affected employees’ duties and responsibilities.  Specifically, the work of a Food Service Attendant is more menial and narrow in scope, involving considerable physical exertion and tasks of a repetitive nature.  In particular, the position offered provides very limited patient contact, which was an important feature of the Menu Assistant position.  Additionally, the employees would no longer be required to exercise their administrative or computing skills and there will be no ability to supervise, mentor or train other staff. 

20       The contention advanced by the Union was to the effect that the former Menu Assistant position was far more varied and interesting, and required the employees to exercise a broader range of skills for which they had training and experience.  It was said the employees will be “deskilled”, because the training and experience they possess will be unable to be sufficiently exercised in the Food Service Attendant position, meaning that the alternative position offered is not sufficiently relevant to the employees’ competence and experience.  A factor emphasised in this regard, was the considerable degree of job satisfaction that the employees attained through interaction with patients and assisting in resolving issues concerning their food choices and dietary requirements.

21       Thirdly, the Union submitted that the Food Service Attendant position carries a significantly lower status and seniority to that of the Menu Assistant.  In fact, the affected employees commenced in the Food Service Attendant position many years ago, and to now accept the alternative offers would be tantamount to a demotion.

22       Fourthly, in relation to the work location and environment, the Union contended that the employees’ work environment as Food Service Attendants would be different.  They would be required to spend more time working in areas such as the hospital kitchen, pantry and cafeteria, and far less time in the wards and on administrative duties.

23       Fifthly is the issue of the interests of the employees and their particular circumstances.  In this respect, the Union submitted that the alternative positions of Food Service Attendant entail a significantly higher level of physical demand than the employees’ former positions.  Given that the employees concerned range from 56 to 67 years of age, the additional physical demands will be significant.  At this late stage of their working careers, the Union contended that it is industrially unfair to require the employees to accept a significant career change, amounting to a demotion. The employees also have substantial caring responsibilities which affect the hours available to work.  They also have significant financial responsibilities which impact on their personal circumstances.

24       Finally, it was submitted that the employees have rendered between 15 and 20 years of loyal and satisfactory service to the employer.  Given their age and stage at which they have reached in their working lives, the Union submitted that the employer has really offered the employees “Hobson’s choice:  take what the respondent wants them to accept or nothing”.

25       The Union contended that all of these factors should be taken into consideration by the Commission, in assessing, objectively, whether the Food Service Attendant position offered, is suitable alternative employment for the purposes of the RRR Agreement.

26       The Minister made a number of submissions.  He contended that the abolition of a number of the Menu Assistant positions has arisen from a realignment of the catering services provided by the Patient Support Services area of Sir Charles Gairdner Hospital.  As a part of the process developed to introduce the changes, the affected employees were offered opportunities to meet with human resources staff at the hospital, prior to the offers of alternative employment being made.  The Minister submitted that the employees did not take up the offer to meet, which meant that the employees’ personal circumstances and preferences were not made known at the time. 

27       In September 2011, the alternative positions of Food Services Attendants were offered, which were disputed by the employees and the Union. As a general submission, the Minister contended that the employees did not take up the opportunities given to them to engage in the redeployment process.  Indeed, on the Minister’s submission, a number of the employees did not raise their personal circumstances regarding the offers of positions, until they were considered by the Public Sector Commission, which made its determination in January 2012 that the Positions offered were suitable alternative employment.

28       As to that issue, having regard to the terms of the RRR Agreement, the Minister contended that the Food Service Attendant positions are suitable alternative employment.  Firstly, as to the rate of pay, for the affected employees the wage rate is very similar to that payable for a Menu Assistant. The differential at the maximum rate of pay for both positions is some $25.82 per week. The Minister also refers to the income maintenance provisions of the RRR Agreement, which will ensure that the employees’ previous rates of wages will be maintained for 12 months in the new position. 

29       In relation to the location of the work, the Minister contended that the employees will remain at the hospital and there is no change in that respect.  In terms of the duties and responsibilities of the positions offered, the Minister submitted that the employees will remain in the catering services area. The duties that will be required of them are consistent with their qualifications, experience and competence. Merely because the new positions may require a lower level of responsibility and skills does not necessarily mean that the positions are not suitable alternative employment: ALHMWU v SCGH (1996 Print N7046 unreported AIRC 6 December 1996). The Minister also submitted that the employees will have the same ordinary hours of duty in their new positions as in their former positions. 

30       In relation to the circumstances of the employees, whilst noting the contention of the Union that the employees are over qualified for the alternative positions, the possibility for promotion by applying for the new Food Service Supervisor positions was available.  However, the employees chose not to apply for these positions because of resultant changes to their rostered hours of work which their personal circumstances could not accommodate.

31       Finally, in the event the Commission determines that the positions offered by the Minister are not suitable alternative employment, then an opportunity should be provided to the Minister to put amended offers of alternative employment to the affected employees. This is because, on the Minister’s submission, from the terms of the RRR Agreement read as a whole, the focus should be on redeployment, as opposed to the payment of severance pay.

Relevant legal principles

32       Based on the authorities, the Minister agrees with the Union’s submissions, that the test as to whether an offer of alternative employment is suitable alternative employment for the purposes of the RRR Agreement is an objective one: Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226.  This is clearly the case.

33       Additionally, the parties are agreed that the proceedings are in the nature of a hearing de novo, enabling the Commission to consider for itself whether the positions offered are suitable alternative employment, and are not in the nature of an appeal from the determination of the Public Sector Commission:  ALHMWU v SCGH (1996) 69 IR 279.

Agreement provisions

34       In this case, the parties to the RRR Agreement have, by its terms, defined what is to be regarded as “suitable alternative employment” for the purposes of the Agreement. The relevant provision is found in cl 8 – Redeployment and Retraining.  Subclauses (1) and (2) provide as follows:

8. REDEPLOYMENT AND RETRAINING

Suitable Alternative Employment

(1) Subject to this clause and to Clause 7, each employee whose position is redundant shall be transferred to suitable alternative employment either within his/her Department/Authority or with the consent of another Government employer, to that Government employer.

Suitable alternative employment shall be defined as that which provides the employee with a position which:

a) is for an indefinite period in a permanent position with a Government employer;

b) has a wage or salary as close as possible to that of the employee's existing position; and

c) does not require the employee to change his/her place of residence in order to take up the position, and has regard to:

i) the relevance of the duties and responsibilities, to the qualifications and experience of the employee and the competence of the employee; and

ii) the ordinary hours of duty being in general no less than those worked by the employee in his/her original position.

Alternative employment or training

(2) a) The suitability of alternative employment or training shall be determined by the Public Sector Management Division of the Department of Premier and Cabinet after consultation with the employer, employee and Union concerned in accordance with subclause (1) of this clause and having regard for the particular circumstances of each employee.

  Any dispute between the parties over whether a position falls within the definition of suitable alternative employment as prescribed by subclause (1) of this Clause, subject to subclause 8(2)(c) may be referred to the Commission by any party to the dispute.

. . .

35       Therefore, the parties have, by their agreement, delineated the scope of issues to be determined in assessing whether the employment offered to Ms Padberg, Ms Carroll and Ms Tisdale, is suitable alternative employment for the purposes of the RRR Agreement. Consistent with the relevant legal principles, that consideration is to be performed in an objective manner.

The evidence

Ms Padberg

36       Berendina Padberg is 67 years of age and has been employed at Sir Charles Gairdner Hospital for 15 years starting in January 1997.  Ms Padberg commenced her employment as a Food Service Attendant Level 1/2 as a casual employee working 25 hours a week.  At that time, her duties included cleaning and delivering meals and tea and coffee to patients.  In July 1997, Ms Padberg was appointed as a Menu Assistant Level 3/4, still working 25 hours a week but on a permanent part time basis. Ms Padberg was promoted to this position.  Ms Padberg has had, prior to her employment at the hospital, many years’ experience in catering.

37       Ms Padberg gave evidence about her duties and responsibilities and how the Food Service Attendant position offered to her is not, as she regards it, suitable alternative employment.

38       In relation to her wage rate, Ms Padberg understands that if she is redeployed as a Food Service Attendant, she will receive income maintenance for 12 months under the terms of the RRR Agreement.  However, after that time, she will not receive any wage increases until there is parity between the Food Service Attendant wage rate of pay and the rate of pay she is receiving under the RRR Agreement.

39       A central focus of Ms Padberg’s evidence, as with the other employees, was the duties and responsibilities of both positions. The overall thrust of Ms Padberg’s testimony was that the duties of a Food Service Attendant are far less involved than the Menu Assistant position.  At pars 16-18 of Ms Padberg’s witness statement, she summarised the duties of the two positions and their differences as follows:

16. The main duties of a Menu Assistant are:

• handing out menu cards;

• assisting patients to complete menu cards;

• deal with patients who are upset about meals;

• liaise with nursing staff about changed dietary requirements;

• receive calls about changed dietary requirements;

• organising the meal trolley in accordance with changed dietary requirements;

• collecting menu cards;

• supervising the meal service (which is conducted by Food Service Attendants) to ensure that every patient has a meal and has the correct meal;

• delivering snacks to the ward;

• scanning and processing the menu cards;

• entering special meal requests into the computer database;

• take meal trolleys out of dish washing room and cleaning and sterilising the trolleys;

• delivering late meals to patients who have arrived after meal time; and

• taking sandwiches to Emergency and Observation wards.

17. My understanding of the Food Service Attendant role is that the main duties would be:

• topping up water jugs on the wards;

• handing out meals;

• handing out tea and coffee;

• collecting cups and saucers;

• washing cups and saucers; and

• cleaning the pantry.

18. One major difference between the Menu Assistant and Food Service Attendant roles is patient interaction.  My duties as a Menu Assistant involved a lot of patient interaction.  This was the most rewarding part of my job and gave me the greatest job satisfaction.  Assisting patients is what motivates me and I take pride in the fact that I help patients.  Without patient interaction, I would find my job completely unfulfilling and I believe I would have no job satisfaction.

40       Ms Padberg said that one of the major concerns that she has, is that as a Food Service Attendant, she would have very little quality interaction with patients, which she does have now as a Menu Assistant.  Her evidence was that the focus of the Food Service Attendant position was “getting the meals out as quickly as possible and moving on to the next ward or task.”  Further aspects of her former position which she considers will be lost include exercising problem solving skills and also supervising the meal services, which are carried out by Food Service Attendants.

41       Furthermore, in her particular case, being 67 years of age, Ms Padberg noted the more physically demanding aspect of the Food Service Attendant position, compared to her formal role.

42       Ms Padberg also gave evidence in relation to her qualifications, experience and competence acquired in her 15 years of service to the hospital.  In particular, she emphasised the need for excellent communication and interpersonal skills when dealing with patients as a Menu Assistant.  This requires a good understanding of patient needs and having empathy with their circumstances. Additionally, Ms Padberg said she exercised supervisory and computer skills and also was required to have some knowledge of dietary requirements and how various illnesses might be affected by diet. 

43       Dealing with patient complaints was another matter referred to which Ms Padberg said required her to exercise problem solving and conflict resolution skills.  Overall, Ms Padberg regarded the offer of a Food Service Attendant position as a demotion, effectively forcing her back to a position she initially occupied some 15 years ago, which she said would be demoralising to her.

44       In relation to the Food Service Supervisor position, Ms Padberg considered that this role was probably the most closely aligned to the Menu Assistant position, however she was unable to apply for it, given her family caring responsibilities and inability to work the hours required.  In relation to hours of work generally, Ms Padberg testified that whilst she acknowledged that the Minister had agreed to maintain her hours of work, they involve starting 30 minutes earlier than the usual start time for the Food Service Attendant position.  Ms Padberg is unaware of what duties the hospital may wish to assign to her during this 30 minute period, and she is concerned that they may involve menial tasks such as dishwashing etc.

45       Overall Ms Padberg testified that she regarded the proposal of the Minister as harsh and unfair.  At her age, given her length of service, Ms Padberg said she would find it very difficult to find other employment at the same level as her former Menu Assistant position.

Ms Carroll

46       Anna Carroll is 56 years of age and she has been employed at the hospital for 20 years since August 1992.  As with Ms Padberg, Ms Carroll commenced service as a Food Service Attendant Level 1/2, on a permanent part time basis working 40 hours per fortnight.  In 1997 Ms Carroll was promoted to the position of Menu Assistant Level 3/4, again on a permanent part time basis, but working 50 hours per fortnight.  Ms Carroll has a background in hotel catering.

47       In terms of the particular impact on her, apart from the comparison of the duties in the positions as described in the evidence of Ms Padberg, Ms Carroll said that one of the main factors for her in a comparison of the positions is patient interaction.  As a Menu Assistant, Ms Carroll felt involved in helping patients and making their hospital experience better.  Her contact with patients was what Ms Carroll described as the basis of her job satisfaction, which she does not consider she would have as a Food Service Attendant.

48       Ms Carroll also made the point in her testimony, as with Ms Padberg, that to be redeployed to the position of a Food Service Attendant would be a demotion to a position she held 20 years ago.

49       In terms of qualifications and training, Ms Carroll testified that about three years ago she obtained a Certificate III in Health Support Services at the request of the hospital.  Ms Carroll has also done computer training courses at the hospital.  None of these skills will be required if she takes up the Food Service Attendant role. Additionally, Ms Carroll noted, as did Ms Padberg, the experience and competence she has gained as a Menu Assistant, which she did not consider she would be able to exercise as a Food Service Attendant.  Ms Carroll gave similar evidence to Ms Padberg regarding hours of work. Whilst the usual hours of work will remain the same for Ms Carroll, she noted that as Food Service Attendants did not normally start until 30 minutes later than her usual start time, she too was concerned as to what menial duties she might be given in the first half an hour of her shift.

50       According to Ms Carroll’s evidence, after providing excellent service for 20 years, she feels that she is being unfairly treated by her effective demotion to the position of Food Service Attendant.

Ms Tisdale

51       Susan Tisdale is 56 years of age and has been employed at the hospital for 18 years.  Ms Tisdale started work as a Cafeteria Assistant Level 3/4 and in February 1995, started work as a Food Service Assistant Level 1/2 working 36 hours a fortnight on a permanent part time basis.  Later, in 1997, Ms Tisdale started work as a Menu Assistant Level 3/4, working on a permanent part time basis and presently working 50 hours per fortnight.

52       Ms Tisdale gave similar evidence to Ms Padberg and Ms Carroll in relation to the differences in her duties and responsibilities as a Menu Assistant and as a Food Service Attendant.

53       In her testimony, Ms Tisdale emphasised the patient interaction in her former job as a Menu Assistant, as the most enjoyable aspect of the role.  She testified that given the nature of a hospital environment, the capacity to interact with patients and make their hospital stay more enjoyable, was the source of greatest job satisfaction for her.  The patient interaction involved identifying problems about food and menus with patients, and helping to rectify them. In contrast, Ms Tisdale viewed the Food Service Attendant position as one where meals are simply handed out to patients with little or no opportunity to interact with them.

54       In terms of her experience and competence, Ms Tisdale emphasised the patient interaction experience as involving her liaising with a number of other staff, including nurses, dieticians, speech therapists and others. The work did require her to have some knowledge of dietary needs of patients to help them with their menu choices. Over the 15 years she has been in the Menu Assistant position, Ms Tisdale said that she has gained considerable knowledge and experience, she cares about patient well-being, and takes pride in her work.

55       The effective demotion to a Food Service Attendant position, a job she held over 16 years ago, to Ms Tisdale’s mind, is insulting. The work involved is far less challenging, and involves menial and repetitive tasks. Ms Tisdale does not consider she will get any job satisfaction from the role compared to her former position as a Menu Assistant. Whilst the new position of Food Services Supervisor is far more aligned to the Menu Assistant position, Ms Tisdale said she could not apply for the position, as she cannot work full-time as she is caring for her elderly parents.

Mr Ohia

56       Frank Ohia is an organiser employed by the Union.  Mr Ohia has been involved in the present dispute with the Menu Assistants since July 2011.  At that time, Mr Ohia testified that he received a letter from the hospital advising of changes to staffing levels affecting the union members, which were to be implemented in January 2012. That involved the abolition of ten Menu Assistant positions.  Attached to the letter was a briefing note, outlining the nature of the changes and the rationale for those changes.  Mr Ohia testified that the note referred to the Menu Assistant positions being replaced with Food Service Supervisor positions, and that part of the reasoning behind the changes, was that Menu Assistants were dealing with patient complaints, which was not properly a part of their role.  Also, Mr Ohia said that the briefing note he received referred to the affected Menu Assistants being “afforded the same principle as PSA staff displaced at SCGH recently” (sic). This referred to another restructuring, where Patient Service Assistant staff had been offered severance pay.  Mr Ohia testified that he got the impression from this, that a similar severance pay option may be open to the Menu Assistants.

57       Mr Ohia gave evidence about a number of meetings from about mid July 2011, between himself, the affected employees, and human resources staff of the hospital. At those meetings, the restructuring was outlined and advice was given that suitable alternative positions would be found for the affected employees. The process continued and on 9 August 2011 at a further meeting, Mr Ohia advised the management of the hospital that the Food Service Attendant positions were not suitable and that the employees were seeking a voluntary severance, as was provided to the PSA staff. A representative of the management informed Mr Ohia that severance payments would not be made as alternative positions were being identified, and further, an offer of severance was not an option to the employer in this restructuring.

58       Mr Ohia remained involved in the matter up until the time that the Public Sector Commission determined in January 2012 that the positions offered to the employees were suitable alternative employment for the purposes of the RRR Agreement.

Ms Carson

59       Glenda Carson is the Manager Workforce Services for the North Metropolitan Area Health Service based at the hospital.  Ms Carson had oversight of the restructuring in the Patient Support Services area at the hospital in relation to human resources matters. In July 2011, a Human Resources Plan for the changes affecting the Menu Assistant positions was prepared. The plan outlined the procedural steps to be followed in relation to the affected employees.  The plan included reference to exploring options in the government health industry and other government organisations. These options referred to the redeployment process and the fact that voluntary severance payments would not be automatically offered to affected employees.  They may only be offered to those employees for whom no suitable alternative employment could be found.  At the same time in July, the affected employees received letters from the hospital, setting out the nature of the restructuring and the effect on their positions. The material included a Staff Preference Request, which sought an indication from the affected employees of their preferences for alternative positions that might be available.  Additionally, a copy of the Human Resources Plan was enclosed.

60       In early August 2011, the affected employees were invited to meet with a hospital representative to discuss the options open to staff arising from the restructuring. Mr Ohia, on behalf of the employees, advised that the current options of redeployment made available by the hospital were not appropriate and the employees declined to meet with the hospital representative.  Subsequently on 29 September 2011, the affected employees were advised by letter of the hospital’s proposal to transfer them into suitable alternative employment, in accordance with the RRR Agreement. The position identified was the Food Service Attendant.  Each of the affected employees disagreed with the decision to transfer and requested that the matter be referred to the Public Sector Commission for determination. 

61       Subsequently, in about mid-October 2011, meetings were held between the affected employees, Mr Ohia from the Union and representatives of the hospital, to discuss the alternative offers. Those meetings did not resolve the issues in dispute and accordingly, a submission was made to the Public Sector Commission, requesting a determination as to whether the offers made to the affected employees were suitable alternative employment for the purposes of the RRR Agreement.

62       After conferring with the affected employees and Mr Ohia from the Union in the course of December 2011 and early January 2012, by letter of 13 January 2012, the Public Sector Commission advised that the offers made by the hospital were suitable alternative employment and the employees were notified accordingly.

Ms Glatz

63       Angela Glatz is the Acting Manager Patient Support Services at the hospital.  Ms Glatz referred to the scope of Patient Support Services at the hospital covering areas such as catering, cleaning and linen and Hospital Service Assistants and Patient Transport.  The areas concerned cover a mixture of support employee positions involving the Union and hospital salaried positions.  Ms Glatz referred to the realignment of catering services at the hospital which meant the number of the Menu Assistant positions was reduced by ten.  The full time G Block morning shift Menu Assistant positions were abolished. To provide a breakfast service to patients, new part time four hour morning Menu Assistant positions were created.  All afternoon G Block Menu Assistant positions were abolished.

64       In particular, part of the rationale for the changes, involved the removal of the responsibility for listening to and escalating many patient complaints and queries relating to meals, which the hospital maintained was not a part of the Menu Assistant role. This work would be taken over by the newly created Food Services Supervisor position who would assume responsibility for these duties, along with the supervision of Food Services Attendants in the provision of lunch and dinner services to patients.

65       Ms Glatz referred to the consultation process involving the Union and the affected employees.  In particular, she referred to a meeting held on 21 July 2011, following which, on 22 July, the Union was notified by the hospital that severance pay would not be offered to affected staff as the emphasis was on providing suitable alternative employment.

66       Ms Glatz made the point in her evidence, that where affected employees engaged with the process put in place by the hospital, a number of opportunities were made available. These alternative options included moving to other Level 3/4 positions outside of catering or to change their rostered hours and work mornings in the remaining Level 3/4 Menu Assistant positions. Other vacant positions within the Patient Support Services area were offered to the affected employees, from catering, cleaning and other areas, however those alternatives did not receive any interest from the employees.  Ms Glatz noted that in relation to Ms Tisdale, Ms Carroll, and Ms Padberg, all three staff members will remain located at the hospital; will have the same hours of work and roster as in their previous positions; will receive income maintenance in accordance with the RRR Agreement; and will receive a final rate of pay which is close to their former wage rate in the Menu Assistant position.

Mr Wilding

67       Paul Wilding is the Director Management and Practice, Agency Support Division, of the Public Sector Commission.  Mr Wilding gave evidence about the process undertaken by the Public Sector Commission, in assessing whether the offers made by the hospital were suitable alternative employment for the purposes of the RRR Agreement.  Mr Wilding outlined the process engaged in which involved consultations with the employer, the affected employees and the Union.  He referred to the fact that the process involved consideration of the particular circumstances of each employee.  The affected employees provided a written submission to the Public Sector Commission, setting out how their individual personal circumstances may affect their capacity to take up the alternative Food Services Attendant positions. Additionally, Mr Ohia of the Union also made submissions on behalf of the affected employees, highlighting their particular circumstances, which were taken into account in the final determination.

68       In the final assessment, a further independent evaluation took place by an officer of the Public Sector Commission. This independent assessment had regard to the details of the offer from the hospital, the options raised and the personal circumstances of each affected employee.  Having undertaken that process, and having due regard to adjustments to hours and rosters in response to concerns raised by the employees, the Public Sector Commission considered that by implementing those changes, the positions offered were suitable alternative employment and a formal determination was accordingly made.

Consideration

69       I am satisfied on the evidence that the hospital engaged in a bona fide restructure of the Patient Services Section with the consequence that ten Menu Assistant positions have been abolished.  The creation of the new Food Services Supervisor position is a broader role responsible for the overall provision of food service to patients, including menu requests.  Examining the JDF for the new position in evidence, it assumes many duties formerly performed by the Menu Assistant role.  I accept on the evidence that the Food Service Supervisor position is a higher level position, with a greater level of qualification required for appointment.

70       I also accept on the evidence, that the Food Services Attendant position, from the JDFs in evidence, does carry a lower level of responsibility than the Menu Assistant position.  A comparison of the “Brief Statement of Duties” of the JDFs for both positions in evidence, shows that the Menu Assistant position is “responsible for” a range of functions in patient meal services. The Food Services Attendant position on the other hand, is primarily involved in “assisting with” a range of functions set out in the JDF. The Food Services Attendant, on the evidence, is primarily engaged in the delivery of meals and beverages to patients.  The position is also responsible for the collection and washing of meal trays and items.

71       I also accept on the evidence, that while the Food Services Attendant ward based positions do involve some interaction with patients, that interaction is of a more limited nature to that associated with the Menu Assistant positions. The responsibility for establishing patient meal and dietary requirements, and communication of those requirements, has now largely shifted to the Food Service Supervisor position.  As part of the new position, direct responsibility is also given for investigating and resolving patient complaints.

72       On the evidence, the concerns of Ms Padberg, Ms Carroll and Ms Tisdale with the alternate positions as Food Service Attendants are in three areas. They are firstly, that the Food Service Attendant position is demeaning, in that it involves a demotion to a position that the employees held many years ago, when they first started employment at the hospital. Secondly, the Food Service Attendant position gives them little or no patient contact which, in their former positions as Menu Assistants, was a source of substantial job satisfaction.  Finally, and as a consequence of their experience in the Menu Assistant positions, the offer of the Food Service Attendant position fails to have regard to their past skills and experience.

73       I have no doubt from observations of the three employees concerned when giving their evidence, that all of them felt strongly as to these matters.  I also have no doubt that the views expressed by them as to the job satisfaction that they obtained from their former work as Menu Assistants were very genuine. The employees have given many years of loyal service to the hospital and I accept their testimony that in their former positions, they felt they made some contribution to the hospital experience of patients.

74       In view of these findings, and in light of all of the evidence before the Commission, I turn to an objective assessment of the claims made, against the agreed criteria in cl 8(1) of the RRR Agreement.

Indefinite period in permanent position

75       This criterion in cl 8(1)(a) is satisfied in all three cases.

Wage or salary as close as possible

76       Based on the material before the Commission, the current wage for a Menu Assistant position is $848.68 per week or $22.83 per hour.  The rate of wage for a Food Service Attendant position is $822.86 per week or $21.65 per hour. The difference is some $25.82 per week. Whilst for the affected employees any reduction in wage is of significance, I accept that, having regard to the various alternative positions canvassed with the affected employees, the wage is close to that of the former Menu Assistant position and that the criterion in cl 8(1)(b) is met.

Ordinary hours of duty

77       As a result of discussions with the employees, and consideration by the Public Sector Commission, the criterion for ordinary hours of duty as no less than those worked in the original position, as provided in cl 8(1)(c)(ii), is satisfied.

Change in place of residence

78       None of the employees is required, by the acceptance of the alternative employment, to change their place of residence.  The criterion in cl 8(1)(c) is met.

Duties and responsibilities and qualifications, experience and competence of the employee

79       As noted above, this criterion was the element most disputed by the Union as to the provision of suitable alternative employment to the affected employees. I have already observed that the Food Service Attendant positions will involve less patient interaction than the former Menu Assistant positions. I accept on the evidence that in their former positions, Ms Padberg, Ms Tisdale and Ms Carroll did assist patients by escalating their concerns about food service to supervisors and other appropriate staff. Whether that was a part of their formal responsibilities is debatable.  However, the fact is that the employees undertook this work with the knowledge of the hospital.  The identified need to restructure the meal service section was in part, attributable to assigning this responsibility to the new Food Service Supervisor position.

80       In the Food Service Attendant position, the capacity for the employees to speak to patients about their dietary requirements will be minimised.  Also, they will no longer be involved in the generation of menus and their distribution to patients, which means administration skills, in particular the use of computers, will not now be exercised.

81       While as Menu Assistants the employees did provide meals to patients and did collect the clean food trolleys etc, the Food Service Attendant position is primarily responsible for serving meals and beverages, and the recovery and cleaning of meal items from patients.  Some re-stocking of pantries will also be required.

82       I accept, as already found on the evidence, that the capacity for the affected employees to maintain their previous level of job satisfaction will be more limited by reason of the changed nature of patient interaction. Nonetheless, the employees will still have patient contact, just perhaps not the same quantity and quality as previously.  The position of Food Service Attendant also imposes some greater physical demands, but not markedly so. Importantly, the alternative positions offered, remain in the Patient Support Services area, and remain involved in catering by the supply of meals to patients.

83       The issue of job satisfaction, subjective as it is, is not a criterion prescribed by cl 8(1) of the RRR Agreement. There is no question that Ms Padberg, Ms Tisdale and Ms Carroll preferred their former Menu Assistant positions. That is manifestly clear on the evidence.  It is important to note, however, that for the purposes of cl 8(1)(c) of the RRR Agreement, the suitable alternative employment offered must “have regard to” the qualifications, experience and competence of the employee. It does not require the suitable alternative employment to “meet” or to “equate to” these factors. This does not mean that suitable alternate employment cannot encompass a position that may have been performed by an employee in the past.  The employees are certainly qualified and experienced to undertake such work.

84       Also, it seems that no issue is taken with the fact that the Public Sector Commission, in consultation with the affected employees, the Union and the employer, took into account the particular circumstances of each employee.  In the case of Ms Padberg, Ms Tisdale and Ms Carroll, each of them has caring responsibilities.  As a result of those issues identified by them, changes were proposed in relation to their hours of work, to accommodate those issues (see annexure GC 23 to Ms Carson’s witness statement, exhibit R2).

85       Whilst the Commission understands that the employees would prefer to receive a severance payment, the obligation under the RRR Agreement, at least in the first instance, is for the employer to identify and offer suitable alternate employment, and that employees retain employment.

Conclusion

86       I have taken into account all of the evidence and the submissions.  I consider that for the purposes of the RRR Agreement, the alternative employment offered by the Minister to Ms Padberg, Ms Tisdale and Ms Carroll is suitable alternative employment.

87       Accordingly, a declaration will be made to this effect.