100213323

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES HOSPITAL SALARIED OFFICERS ASSOCIATION OF WESTERN AUSTRALIA (UNION OF WORKERS)

APPLICANT

 -v-

 METROPOLITAN HEALTH SERVICE BOARD

RESPONDENT

CORAM COMMISSIONER P E SCOTT

 PUBLIC SERVICE ARBITRATOR

DATE OF ORDER FRIDAY, 27 SEPTEMBER 2002

FILE NO/S PSAC 15 OF 2000

CITATION NO. 2002 WAIRC 06639

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Result Order issued

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Order

WHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; and

WHEREAS on the 14th day of September, 7th day of November, 5th day of December 2000, 28th day of September 2001, 3rd day of April, 26th day of August, 13th day and the 24th day of September 2002 the Public Service Arbitrator convened conferences for the purpose of conciliation; and

WHEREAS at the conclusion of the conference on the 24th day of September 2002 the parties reached agreement in part settlement of the dispute and sought that the Public Service Arbitrator issue an Order to reflect their agreement; and

NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, and by consent, hereby orders that:

1. The parties shall adopt the following arrangements to settle the dispute that has arisen between them in relation to the use of the fixed term contract employment in the public health sector.

2. The arrangement applies to current public sector employees (not employed under Part 3 of the Public Sector Management Act 1994) on fixed term contracts and who are members, or eligible to be members of the Hospital Salaried Officers Association.

3. This arrangement does not include consultants or persons engaged through service companies or otherwise on contract for service.

4. The Public Health Sector agencies employing fixed term contact employees are to review the positions occupied by these employees and where the positions are not related to a finite project or task then the agencies shall take steps to fill the position in accordance with the requirements of the Modes of Employment policy issued by the Department of Consumer and Employment Protection in May 2001.

5. To determine which positions come within the scope of this arrangement, agencies will:

 Step 1

a)         review the position history of the fixed term contract employee prior to the expiry of a current fixed term contract; and

b)         where the position is clearly related to a finite project or task, exclude the employee from further consideration under the terms of this arrangement.

 Step 2

 Fixed term contract employees who are not excluded at step 1 shall have their employment history reviewed to ascertain if:

(a)          they have been continuously employed on a fixed term contract of service, or continuously rolled over on fixed term contracts, or employed on a series of fixed term contracts interspersed with periods of ongoing employment for which there is no formal documentation; at the same level performing substantially the same duties and by the same employing authority, for 12 months or more;

(b)          the position is a genuine ongoing position; and

(c)          the record of employment indicates that the position was filled by an open competition process at some stage for at least one of their fixed term contracts.

6. If all the criteria at step 2 are fulfilled the employment of fixed term contract employees shall be confirmed as permanent.

7. Permanency under step 2 will not be conferred on any fixed term contract employee whilst disciplinary or poor performance issues remain unresolved.

8. Where the records of employment of a fixed term contract employee indicate that the Public Sector Standards under Public Sector Management Act 1994 have not been followed and the position filled by open competition, then that employee’s employment cannot be confirmed as permanent.  The requirements of the Act and the Modes of Employment policy must be adhered to.

9. The parties have the liberty to seek further assistance from the Commission should any unforeseen issues arise as a consequence of this order.

10. So that the strategy is managed as consistently as possible the following definitions will apply:

a)             Continuously employed:

 means employees who have had ongoing unbroken employment with the same employing authority and a reasonable expectation of an ongoing relationship. Periods of absence corresponding to periods of accrued annual leave and sick leave entitlements would not be considered a break in service.

b) Employing authority:

 Has the meaning given in S.5 of the Public Sector Management Act 1994, but includes the successor department or agency where an employing authority is amalgamated with or transferred to another department or agency.  May also include any enabling legislation for public sector agencies

c) External funding:

 Means where funding for a project is clearly outside the consolidated fund or an intra agency grant, eg. Federal or private sector grants.  However, where external funding has been consistent on a historical basis and it can reasonably be expected to continue, the agency shall assess the percentage of fixed term employees that fulfil the criteria set out above that can be converted, subject to the agency’s operational needs and the expectation of continued funding.  Note: Schedule 1 entities, as defined in the Public Sector Management Act 1994, are, for the purposes of this definition considered external bodies.

d) Open competition:

 Is met where the position was advertised as widely as appropriate and selection followed a merit-based assessment of skills, knowledge and abilities with the process being transparent and capable of review.

e) Project:

 Covers all situations where work is of a finite nature including staff employed;

• for seasonal work;

• on work which is substantially externally funded including multiple external funding;

• where employment is purely to cover a defined fixed period of leave of an existing employee;

• workers compensation absence; 

• on a contract basis for the period of a project or multiple projects.

COMMISSIONER P E SCOTT

PUBLIC SERVICE ARBITRATOR