PN641

DEPUTY PRESIDENT GOSTENCNIK: Yes. Good morning, Ms Steele.

PN642

MS STEELE: Good morning. Thank you again for sitting earlier. Before commencing with our substantive argument on the classification, I would just like to deal with a few of the matters that arose yesterday.

PN643

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN644

MS STEELE: Firstly, with respect to references in both the expert reports of Associate Prof Lovett and Ms Wright, we had some technological difficulty in transferring the 40 articles onto a USB stick, so if it is convenient to the Commission I seek leave to tender three USB sticks containing the references referred to in both Associate Prof Lovett's report and Ms Wright's report on Monday if that's convenient?

PN645

DEPUTY PRESIDENT GOSTENCNIK: Yes, of course.

PN646

MS STEELE: Yes. May I point out to the Commission that one of the key references referred to by Associate Prof Lovett is in evidence and that is in the exhibit to Karl Briscoe in volume 4 tab 79. If it is convenient I might just draw your attention to that article, because it deals with those issues. It's tab 79, volume 4.

PN647

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN648

MS STEELE: It deals with those issues that were raised by you, Deputy President, about factors affecting retention within the workforce and it's one of the key academic articles on that subject. And you will see at page 1267 in the abstract it says that:

PN649

Indigenous Australians are underrepresented in the health workforce and the shortfall compounds the health disparities. This is a systematic review aiming to identify enablers and barriers to the retention of Indigenous Australians within the health workforce and to describe strategies to assist with the development and retention of Indigenous health professionals after qualification.

PN650

And then about two thirds of the way down of that initial paragraph in the abstract it says:

PN651

Evidence suggests that retention of Indigenous health professionals will be improved through building supportive and culturally safe workplaces, clearly documenting and communicating roles, scope of practice and responsibilities and ensuring that employees are appropriately supported and remunerated.

PN652

This article, the study by Genevieve C. Lai, Emma Taylor, Margaret Haigh and Sandra Thompson basically sets out in the introduction many of the topics that I've already been through such as, for example, in the last three lines, the differences in the social determinants of health, availability and accessibility of cultural appropriate health services and other biomedical behavioural and environmental factors, the barriers including fear, lack of trust of mainstream health facilities, lack of respect and that that's prompted advocacy for a greater indigenous representation in the health workforce.

PN653

And then the next paragraph that

PN654

Considerable research has shown that Indigenous people want support from Indigenous staff and clinicians as part of their health care.

PN655

And then about halfway down the page at point 5:

PN656

Indigenous Australians are under-represented in the health workforce, and in 2011 comprised only 1.6 per cent of the health workforce, although they account for 3 per cent of the population and a higher proportion of patient populations.

PN657

And then:

PN658

Large disparities between rates of Indigenous and non-Indigenous employees exist for every health profession, including nurses and medical practitioners. In 2011, Indigenous Health Workers represented the third largest occupation of Indigenous health professionals.

PN659

Then in the last paragraph:

PN660

Despite initiatives such as "Closing the Gap", the shortfall in the Indigenous health workforce compounds the health disparities experienced by Indigenous Australians and places additional pressure on Indigenous health professionals. Staffing shortages could be partially addressed by encouraging more Indigenous Australians into health careers, but supporting existing Indigenous health professionals to remain in the health workforce long-term is equally important.

PN661

And then the last couple of sentences:

PN662

The disadvantages of poor workforce retention and high turnover are clear: heavier workloads for the remaining staff, lack of continuity of services for patients (especially detrimental for management of chronic diseases, the prevalence of which is high for Indigenous Australians) and the financial costs to employers of loss of experience, vacancies and costs associated with further recruitment.

PN663

And then at the top of page 1269:

PN664

The aim of this systematic review is to identify literature describing the enablers and barriers to the retention of Indigenous people within the health workforce.

PN665

Then they set out the methods which is effectively to carry out a data base search of all existing publications and research articles dealing with the subject matter and then to go through a screening process, quality appraisal and analysis of the various information, including looking at - you will see at the top of page 1271 - looking at a model of the determinants of Maori health and disability workforce participation and then in the results they identified 15 articles that met the standard of quality in order for them to be able to rely on those articles in determining the enablers and barriers to retention.

PN666

And then at page 1272 they set out all of the articles in their review and they list their peer review of these journals dealing with enablers and barriers. And the summary of their factors of what they found of the leading to retention of Indigenous Australians in the health workforce is on page 1275.

PN667

Importantly for the Commission, in terms of enablers at an organisational level, apart from a culturally safe workplace two other enablers were professional development opportunities and job security and adequate remuneration. And just as they are an enablers, they are also a barrier at a system level in that the two key barriers to retention of Indigenous Australians in the health workforce are inadequate remuneration and limited career pathways.

PN668

And then on page 1276, there is some more detail on what constitutes a culturally safe workplace, which is important when I come to the clarification sought to the ceremonial leave provisions in that:

PN669

Indigenous health professionals reported that culturally safe practices in their work environments, such as respect for culture, flexible working arrangements and recognition of achievements, contributed to high job satisfaction, and were important enablers of retention. Respect for Indigenous culture by non-Indigenous health leaders allowed for empowerment and cultural safety of workers and facilitated co-worker and supervisor understanding that Indigenous health professionals may need flexible work schedules and adequate leave for community obligations.

PN670

That's important when we come to the ceremonial leave clarification. Then on the next page, other enablers were the professional development opportunities and job security and adequate remuneration. Unsurprisingly adequate salary and job security were very important facilitators to retention. And then still on 1277, barriers at the structural level, the barriers to retention of this workforce included racism and then system level factors, and relevantly organisation level factors, which is heavy workloads and demands, which will increase if the retention of Aboriginal and Torres Strait Islander health professionals isn't increased and a lack of professional development opportunities.

PN671

And then "Lack of professional development opportunities":

PN672

Indigenous health professionals reported that the lack of opportunities and funding for further training or professional development limited pathways for career advancement. Health professionals described feeling that they were underutilised, and this has been reported as contributing to increased turnover in some instances, a lack of Indigenous health professionals

PN673

And then the article goes through recommendations in order to increase participation of indigenous people in the health workforce and at page 1279 one of the recommendations is increased remuneration and salary parity:

PN674

Salary increases, particularly to achieve parity among Indigenous and non-Indigenous workers with similar job descriptions, and improved conditions were described as pivotal retention strategies

PN675

And then at organisational-level recommendations, and section 3.4.2, the Commission will see on page 1280 in the first full paragraph, "Embed cultural respect in the workplace":

PN676

Recommendations to embed cultural respect for Indigenous Australians were repeatedly mentioned.

PN677

And then there is a discussion and at page 1281 at the bottom paragraph, the authors say:

PN678

Raising awareness of, and improving respect for, the Indigenous health workforce, particularly the Indigenous health workers workforce, may also cause employers to re-examine remuneration and employment conditions. There is a widespread perception amongst the Indigenous health workforce, particularly Indigenous health workers, that they are being inadequately compensated for a stressful job and heavy workload, often with high levels of unpaid overtime, and that they are paid less than other health professionals with similar roles. This was one of the most frequently mentioned barriers to the retention of Indigenous health professionals, as employees moved to other positions, or left the health sector entirely seeking higher pay and less stress.

PN679

And then in the conclusions at page 1284:

PN680

To build a strong Indigenous health workforce, it is important not only to recruit more Indigenous Australians into health careers, but also to support existing Indigenous health professionals to remain in the health workforce long-term.

PN681

So that's one of the key studies that Associate Prof Lovett relied upon and I thought it might be useful because it is a comprehensive and systematic review of enablers and barriers to retention of Indigenous health workers.

PN682

Now the next subject arising from yesterday was the issue of the overlap with other awards and if I may please hand up a comparison of award entitlements and we've compared the current Aboriginal Community Controlled Health Service Award with the Health Professional and Support Services Award. Now, we haven't compared wages, obviously because that's a difficult assessment and it's something that employers are used to in terms of paying employees, to pay different level of wages to different employees.

PN683

We haven't included some of the standard provisions that occur in every award, some of the common provisions, but you will see that in terms of the main things that might affect the ability to be able to employ people under two different awards that the hours of work are broadly the same; 38 hours per week; a slight difference over a fortnight for the current Aboriginal Community Controlled Health Services Award whereas the other award allows 38 hours per week in a fortnight or four-weekly period, so that would be easy to do in fortnight. There is a slight difference in the span of hours, but that could be accommodated engaging Aboriginal and Torres Strait Islander health workers between 7 am and 7 pm, assuming that the practice was open until 9 pm.

PN684

The over time clauses are essentially the same. So in our submission, there aren't any significant differences that would cause an employer difficulties in engaging health workers under the new award in private practice. And in many cases, those private practices would also be engaging nurses who would also be engaged under a separate award. There isn't any provisions that we have been able to identify that wouldn't be able to be accommodated.

PN685

Now, the final matter arising from yesterday was the issue that you raised, Deputy President, about the letter from NACCHO. Overnight NACCHO sent a further letter. If I could please hand that up? I apologise, unfortunately we bought two staples but neither of them work with the thickness of any of the document that we are handing up. So I apologise for the bulldog clips, but I thought we were prepared at a stationery level, but there's always hiccoughs.

PN686

DEPUTY PRESIDENT MASSON: We have seen bulldog clips before.

PN687

MS STEELE: So in this letter, NACCHO that they have been provided with the enclosed amended draft determination which is attached. That they support the management grade as appropriate and as a measure that will capture people already performing that work and where an actual position exists or is specifically created. And then more generally that their view is that the proposed changes provide a fair and appropriate minimum safety net of terms and conditions that are simple and easy to understand and that they also view that the changes will promote increased workforce participation and in turn better health outcomes for Aboriginal and Torres Strait Islander people in order to close the gap. They say that they want NATSIHWA to rely upon this letter in these proceedings.

PN688

DEPUTY PRESIDENT GOSTENCNIK: Yes. All right. Thank you for that, Ms Steele. We might just mark the document. The correspondence to Mr Briscoe from Ms Turner dated 25 July 2019 which attaches the most recently amended draft determination proposed as exhibit 3.

EXHIBIT #3 CORRESPONDENCE WITH AMENDED DRAFT DETERMINATION TO MR BRISCOE FROM MS TURNER DATED 25/07/2019

PN689

MS STEELE: Now, unless there is anything further arising with respect to coverage and the other topic that I covered yesterday of progression, previous service and evidence, I now propose to move on to the classification structure.

PN690

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN691

MS STEELE: In order to discuss classification, it is important to appreciate the current classification structure under the current award. So if I could ask the Commission, please, to look at schedule B to the award which in volume 1 of exhibit 1 at page 47.

PN692

Now, you will see there that these are the classification definitions for the current award and you will see that - it's in the white volume. You will see there that there are currently four grades of health workers; four grades only. Now, the first grade is the actual Health Worker Grade 1 of the Aboriginal Community Health Worker Grade 1 and that is an employee in their first year of service who will generally have no direct experience in the provision of Aboriginal health services. They will provide primary health services, education and liaison duties under the direct supervision of the Health Worker Grade 2, 3 or 4.

PN693

Now, one of the anomalies or one of the flaws for the current award is that there are three pay points for this grade, even though this is an employee who is there for one year. There is no necessity for any qualifications and when we move to the next grade you will see that that next grade is for a person who has completed a Certificate III.

PN694

So there is no provision in this modern award for someone who has done a Certificate II. And looking at the Grade 2 - so this is a person with Certificate III, so there's a bit of a gap between the trainee in the modern award and actual practice and there's limited detail as to the roles performed by this grade 2 person. They've got a Certificate III or other qualifications or experience deemed equivalent. They could be an Aboriginal Health Worker Grade 1 who has been promoted to Aboriginal Health Worker Grade 2 after having been assessed by their employer as having the requisite competence and it says it would be expected that in all but exceptional circumstances such a person would have had a minimum of one year's experience at Grade 1 and that they are expected to provide a range of health functions for clinical, preventative, rehabilitative or promotional nature, but it doesn't actually set out what those duties might be in great detail.

PN695

So the duties that are set out are to assist in the provision of comprehensive primary health care and education of clients; under instruction, assistance and provision of standard medical treatments, collect and record data, participate in education and informing the community about preventative health measures and undertake orientation and training programs as available.

PN696

Now, this next provision (f), which was relevant at the time, as I explained to the Commission at the time that this award was formed, there was a requirement for registration in the Northern Territory solely, but that was the only state where there was registration. There was no national registration. So this paragraph (f) says that if you require to maintain registration as Certificate III then you will need a particular grade. That is now completely irrelevant, because the only health workers who are registered other practitioners who are registered on a national level and there is no registration for anyone at a Certificate III level.

PN697

Then looking at the Aboriginal Health Worker Grade 3, there are three types of health workers there. There is the senior Aboriginal health worker who is a person who independently undertakes a full range of duties, including dealing with the most complex matter. A senior health worker would hold either a Certificate IV in primary health care practice or a Certificate IV in Aboriginal and/or Torres Strait Islander primary health care community or equivalent. Workers would be expected to perform their duties with little supervision and may be required to work as a sole practitioner remote from the health service.

PN698

Then at the same level as a team leader, which is a person who has a small team of Aboriginal health workers. Workers at this level would be required to hold expert knowledge of Aboriginal health issues as well is assisting with the planning and supervision of other workers' duties. An Aboriginal health worker team leader would hold either a Certificate IV and/or a Torres Strait Islander primary health care practice or Certificate IV in primary health care community or equivalent. And then there's a health worker who holds a Certificate IV in practice or community or equivalent. Then there is the comment about registration again applicable to the Northern Territory which no longer has any relevance.

PN699

And then the final grade at page 49 is the Aboriginal Health Worker Grade IV who is person who performs a senior coordinating role in respect of Aboriginal health workers within in an Aboriginal community controlled health service; an Aboriginal health worker with either a diploma of Aboriginal and/or Torres Strait Island primary health care practice or a diploma of community or other qualifications or experience deemed equivalent by the Aboriginal community controlled health service will be classified at this grade.

PN700

I ask the Commission to note that there is nothing in this award that deals with Aboriginal and Torres Strait Islander health workers who have the advanced diploma. That is missing from the current award. There is no qualification structure for that particular qualification. Then again, in paragraph (b) there is that question of registration which is again not relevant, and no longer exists.

PN701

So the new grade structure that's proposed by NATSIHWA is on page 129. Sorry, I think I have the wrong page. I just need a second. The definitions start on page 129. This is the NATSIHWA's draft determination. It's page 129 and behind tab 3 in the first volume.

PN702

Relevant to the classification structure is the definition of health worker and the Commission will see there that NATSIHWA has proposed a series of definitions. There is the broad definition of health worker in subparagraph (a), being a person who identifies as an Aboriginal and/or Torres Strait Islander and is recognised by the community as such, and who is engaged in the delivery of Aboriginal and Torres Strait Islander primary health care and employed as either - and these are the new classifications that are sought by NATSIHWA - as either a health worker trainee, a generalist health worker, and advanced health worker care, advanced health worker practice health practitioner, senior health worker care, senior health worker care, senior health practitioner or coordinator care and has a culturally safe and holistic approach to healthcare.

PN703

Now, then the definition is to go through and basically define each of these new classifications to be where they are in the classification structure. Now, I will ask the Commission to note that these definitions, because they were agreed by the parties have actually been included in the exposure draft.

PN704

DEPUTY PRESIDENT GOSTENCNIK: Is there one too many "senior health worker care" in that definition?

PN705

MS STEELE: In the definition?

PN706

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN707

MS STEELE: Yes. I think you are correct. When I read that out, I did feel as though I was repeating myself.

PN708

DEPUTY PRESIDENT GOSTENCNIK: Just emphasising.

PN709

MS STEELE: So that's an amendment that needs to be made.

PN710

DEPUTY PRESIDENT GOSTENCNIK: Yes. We will note that.

PN711

MS STEELE: So the proposed changes to the classification structure are commenced at page 135 and although it's very detailed, in terms of what the Commission needs to consider, this new structure has two new grades, but one of the additional grades is made by changing the existing Grade 1 into Grade 1 and Grade 2. And the reason to change the existing Grade 1 into a Grade 1 and Grade 2 is to accommodate those health workers and practitioners who have a Certificate II.

PN712

So if I could ask you to have a look at the aide memoire. We have tried to simplify this. And it's at page 6. And there we've set out a comparison of the classification and the duties between the current award and the proposed changes. So currently there is Grade 1, which I have taken the Commission to and it is proposed to split that into two grades. One Grade 1, being a health worker trainee and Grade 2, being a health worker with a Certificate II. and we have another table comparing qualifications that I will come to next, but that is the principal change there and in my submission that's not something that ought trouble the Commission, because in effect it is not changing any pay rates. It is just effectively accommodating for that attainment of that certificate that is not currently provided for.

PN713

The duties for both, for the health worker trainee and for the Grade 2 are similar; to provide primary health services, education and liaison duties, to perform of range of routine tasks and operate office and other equipment; exercise minimal judgement, because both the trainee with no experience and the Certificate II, it's a very entry-level qualification and to undertake orientation and training programs as available.

PN714

So the current Grade 2 is for a person who is at the Certificate III and whilst there is a much greater definition, which I will take the Commission to of this worker in the Grade 3, to reflect what health workers are actually doing, effectively there is no change except that there is more clarification about the scope of the role and the duties that the health worker is to perform, in order to make it reflect with current practice.

PN715

You will see that those duties include working within the delegated model of care, performing duties in the delivery of primary health care services and community care; a range of health functions of a clinical, preventative, rehabilitative or promotional nature under the supervision and direction using routine primary health care practice and procedures and established techniques.

PN716

The worker will assist in provision of comprehensive primary health care and education of clients, under instruction assist in the provision of standard medical treatments, collect and record data, participate in education and informing the community, undertake orientation and training programs and perform a range of additional tasks at a standard and in accordance with the level of the qualification held. Exercise judgement in deciding how tasks are performed and completed to ensure the quality standard of completed work, and demonstrate good community and interpersonal skills in client liaison, advocacy and team work.

PN717

Now, the next analysis is comparing the current Grade 3 under the award to the proposed - I've been reminded - I'm not sure if I did say this previously, but changing the Grade 1 to Grade 2 resolves the anomaly in the current award that the position is for someone in their first year of service and yet there are three paid ones.

PN718

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN719

COMMISSIONER BISSETT: Ms Steele, just before you go on, just going back to the proposed Grade 1 and Grade 2, reading the draft determination suggests that a person with a Certificate II still has to come in at the Grade 1 level, because it says that with Certificate II, the Grade 2 means an employee in their second year of service, which suggests they have had to do a year already and one assumes that the Grade 1 level, even though they have the Certificate II, I don't understand what that then - what that actually means for a person with a certificate II, because it doesn't seem they are any better off.

PN720

MS STEELE: It seems to me that if it does say that that is a mistake on our part. It would assist me, please, what page are you reading from?

PN721

COMMISSIONER BISSETT: Page 136. At the very top, "The Aboriginal and/or Torres Strait Islander health worker trainee Grade 2.

PN722

MS STEELE: So it's an employee in their second year of service or someone who has got the Certificate II. so if you get a Certificate II you can come straight in - - -

PN723

COMMISSIONER BISSETT: You can come straight in.

PN724

MS STEELE: - - - at Grade 2, because you come within the category of being someone with a Certificate II. but if you had been there as a trainee for a year, you then can also progress up. But it makes provision for someone who has gone and got that formal qualification, the Certificate II that's not currently catered for in the current award.

PN725

COMMISSIONER BISSETT: But otherwise a Grade 1 will only ever be at Grade 1, regardless of qualification for one year?

PN726

MS STEELE: Yes. For one year.

PN727

COMMISSIONER BISSETT: Yes. Okay.

PN728

MS STEELE: And then they can move up to Grade 2. So that's the same as the current award.

PN729

COMMISSIONER BISSETT: Yes.

PN730

MS STEELE: But it just allows more certainty and it provides a slight - it allows someone with a Certificate II to enter in at the Grade 1 pay point 2, and for recognition of that qualification.

PN731

COMMISSIONER BISSETT: Thank you.

PN732

DEPUTY PRESIDENT MASSON: I suppose in addition to that, is it also the effect of the changes that under the current structure it refers to only in exceptional circumstances would a person move from Grade 1 to Grade 2 within 12 months?

PN733

MS STEELE: Yes.

PN734

DEPUTY PRESIDENT MASSON: So theoretically, under the current structure, it would be possible for a person to move from Grade 1 tot the existing Grade 2, which I accept is Grade 3 in the new structure, but within a 12-month period, whereas the way the propose classification structure would work is that a person who came in without a Certificate II qualification would spend 12 months at Grade 1 and then, on completion of that 12 months, they would move to Grade 2 and they would spend a further 12 months before progressing to Grade 3?

PN735

MS STEELE: I just want to ensure that I understand your question, Deputy President - - -

PN736

DEPUTY PRESIDENT MASSON: Yes. I am just trying to understand whether it's - - -

PN737

MS STEELE: My understanding of the current Grade 2 is that you need to have a Certificate III.

PN738

DEPUTY PRESIDENT MASSON: Yes.

PN739

MS STEELE: Or equivalent.

PN740

DEPUTY PRESIDENT MASSON: Yes.

PN741

MS STEELE: Which is a much large - a Certificate III - - -

PN742

DEPUTY PRESIDENT MASSON: So that would take more than 12 months in any event.

PN743

MS STEELE: I would expect significantly longer, because you are coming in with no qualifications whatsoever.

PN744

DEPUTY PRESIDENT MASSON: So even though it doesn't specify the actual timeframes, it proposes a minimum, under normal circumstances 12 months, it would ordinarily be greater than 12 months.

PN745

MS STEELE: Much greater. Because you have to have the same as a Certificate III, which is - - -

PN746

DEPUTY PRESIDENT MASSON: Yes. I understand that.

PN747

MS STEELE: Yes.

PN748

DEPUTY PRESIDENT MASSON: But the proposed Grade 1 and Grade 2 under the new structure provides, in my words, more granularity as to what's required to progress through to Grade 3.

PN749

MS STEELE: Yes. As well as giving recognition to those health workers who have gone and achieved the basic entry qualification of Certificate II, which is geared up for people with limited English, but they have that extra educational advancement.

PN750

DEPUTY PRESIDENT MASSON: Yes. Thank you.

PN751

DEPUTY PRESIDENT GOSTENCNIK: Ms Steele, the reference in the definition to "service" is intended to be, by reason of the definition of "recognition of prior service" is in fact intended to be experience.

PN752

MS STEELE: Yes.

PN753

DEPUTY PRESIDENT GOSTENCNIK: So it's not service with the employer, it's service as a relevant health worker wherever.

PN754

MS STEELE: Yes.

PN755

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN756

MS STEELE: The rationale - NATSIHWA's rationale for this new classification structure is that there should always be a position that health workers or health practitioners are able to be appointed to, if they achieve particular qualifications or attain particular experience or service.

PN757

So I was about to compare the existing Grade 3 to the new Grade 4 and in respect of people in care, in the care stream as opposed to the practice stream, there is no change.

PN758

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Ms Steele. I don't want to get off that topic.

PN759

MS STEELE: Yes.

PN760

DEPUTY PRESIDENT GOSTENCNIK: It's a matter for you, but you might given consideration to whether - because "service" in the context of awards and the Fair Work Act has a particular meaning.

PN761

MS STEELE: Yes.

PN762

DEPUTY PRESIDENT GOSTENCNIK: And it's different to "experience".

PN763

MS STEELE: Yes.

PN764

DEPUTY PRESIDENT GOSTENCNIK: And so that if what is intended is, in fact, experience you might consider amending, for example, the proposal to clause 13.4 as well as the definitional references to "service", changing that to "experience."

PN765

MS STEELE: Yes.

PN766

DEPUTY PRESIDENT GOSTENCNIK: Because generally speaking service is used for accrual purposes, and generally speaking, say for transmission of business circumstances and related entities. It means work for a particular employer as opposed to experience in a job.

PN767

MS STEELE: Yes.

PN768

DEPUTY PRESIDENT GOSTENCNIK: So just for clarity's sake, you might give consideration to that.

PN769

MS STEELE: Yes.

PN770

DEPUTY PRESIDENT GOSTENCNIK: You don't need to answer that now, but you might take that on board.

PN771

MS STEELE: I very much appreciate that comment and perhaps that's something I can seek instructions on over lunch time and inform the Commission at 2 o'clock.

PN772

DEPUTY PRESIDENT GOSTENCNIK: Yes. That's fine.

PN773

MS STEELE: So going back now to the comparison to Grade 3 under the current award to the proposed Grade 4, you may remember that the current Grade 3 is comprised of people with a Certificate IV in both practice and care. What NATSIHWA proposes is that Grade 3 stays the same for people who have the Certificate IV in care, but as to the new health practitioners who are required to be registered and who have more requirements of education and duties, that they uplift into the next grade and that is a work value case that I will come to next, but insofar as the health workers who are in care and not practice, there is no change between Grade 3 and Grade 4, other than that NATSIHWA has spent some time to set out more comprehensively and consistently with other modern awards a much - you know, a reflective state of the duties and responsibilities of each of these classifications.

PN774

So the next - on the next page in the comparison document, it's propose that there be - that Grade 5 be the health practitioner and that this be a new grade and the reason for that, and I will come to the evidence as to the effects of registration, the changes in work value, but effectively the health practitioner is someone who expected to work at advance level with minimal supervision and it sets out that they are going to perform a range of tasks of a complex nature and I will go into a lot of detail as to the role of a health practitioner when I come to the change in work value. But I thought it might be useful for the Commission just to provide an overview of the structure so that then I can develop the arguments.

PN775

So this new Grade 5 which basically consists of health practitioners who have registration, there are two types. Yes, there are two types of health practitioners who are uplifted. There is the health practitioner and then there is the advanced health worker in practice, but they are both health practitioners who are registered and who have a Certificate IV.

PN776

Then there is another worker, who is the senior health worker care. Now, they were already at grade 4, so there's no change and no work value case, in respect of that senior health worker care, who is the third type of health worker within the new proposed grade 5.

PN777

Then there is an entirely new grade 6, which I've been alluding to yesterday and which the experts gave evidence to, which is a person who is a senior health practitioner and that person can be either a senior health practitioner or in coordinator care. So it allows for both streams, but at a management level. The senior role is responsible for the implementation, coordination, management and evaluation of health programs and service delivery. I'm looking now at practitioner, but it's a similar level for both. Undertake a management function, may report to the board or be responsible for the administration of a health service. They're expected to work at an advanced level in a specialised program or subprogram, with broad direction and minimal supervision. The employee will exercise accountability and responsibility of the programs under their control and for the quality standards of work produced.

PN778

Likewise, with the coordinator care. Again, senior role, responsible for implementation, coordination, management, evaluation of health programs and service delivery. Undertaking management function, may report to the board of directors, expected to manage and coordinate at an advanced level in a specialised program or subprogram, with broad direction and minimal supervision. The employee will exercise accountability and responsibility for programs under their control and for the quality standards of work produced.

PN779

Now, I'm going to, when I come to the work value case on that new classification, I will take the Commission, in detail, through that role and why NATSIHWA says that we're able to advance and made a work value case. But, if it suits the Commission, I would just like to continue with the broad overview so that the changes can be understood.

PN780

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN781

MS STEELE: I'd like to just turn over and just do a quick qualification comparison between the grades. This is at page 11. So you'll see that, again, we've attempted to simplify it by comparing the current award to the proposed changes and you'll see that there is no qualifications required for the current grade 1, in all three of the levels, whereas in the proposed changes the health worker trainee, no qualifications required but grade 2 you can have a Certificate II and enter and grade 2 level 1, or equivalent.

PN782

Grade 2, the current grade 2, that is currently for a someone who's got a Certificate III. That grade 2 matches identically, in terms of qualifications, with grade 3. That is still Certificate III for both levels.

PN783

Then looking at the current grade 3, there you have to have a Certificate IV in either Care of - sorry, in Practice or in Care, community or equivalent. Now, the proposed changes is that that grade will only apply to health workers who have the Certificate IV in Care, the rationale being that the health practitioners who have the Certificate IV and who are registered, by reason of the change to their qualifications, training and duties that NATSIHWA can advance the work value case and that they should be in the next grade and at a level above health workers who don't have to comply with national registration, code of conduct, insurance, CPD, et cetera.

PN784

Then, turning over, grade 4, the current grade 4, here we have - this is for a qualification for people with a diploma. Again, I point out there is no current classification for someone with an advanced diploma in the current award classification and NATSIHWA proposes to make that the same as the grade 5 and then to have a new grade 6, for the management positions that I've been through, of coordinator Care and senior health practitioner. So that the advanced health worker Practice health practitioner or senior health worker Care who has a Certificate IV plus registration is the same as someone how was previously at a level 4 and then there's a new role for - a new management role.

PN785

Now, in the submissions, NATSIHWA submissions, at the back, from page 127, there's another comparison document, effectively just showing how the classification structure and wages for each of the grades under the current award as opposed to the proposed changes. So you can see that the health worker trainee, no change. Grade 2 they're the same as the grade 1 level 2 and level 3 pay point, no change. Then, looking at the generalist health worker, there's no change there. They're health workers with a Certificate III. Then looking at the current grade 3, as opposed to the proposed grade 4, for those workers who are in Care as opposed to Practice, there's no change. There's an uplift in grade 5 in that they get the wages of the previous grade 4 and I will next seek to make out the case as to why it's appropriate, for work value reasons, for the health practitioners to have that uplift. Then there is a new grade 6 for the management - the proposed management role.

PN786

Does the Commission have any questions about the classification structure, because I - - -

PN787

DEPUTY PRESIDENT GOSTENCNIK: I'm assuming that the reference to "levels" in each of them is a reference to experience in that grade, is that - - -

PN788

MS STEELE: The movement between levels is intended to be based upon the proposed progression clause, which provides clarification as to how workers are to move, and that progression clause is on page 3 of the aide memoir, where what we propose in the draft determination is that:

PN789

At the end of each 12 months continuous employment an employee will be eligible for progression from one level to the next within a grade, if the employee has demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level and the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification required by the employer or where an employer has adopted a staff development and staff appraisal scheme and has determined that the employee has demonstrated satisfactory performance for the prior 12 months employment.

PN790

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand. Thank you.

PN791

MS STEELE: I'd next like to make some submissions of the work value case, in terms of the health practitioners.

PN792

Now, the Commission would be familiar with what NATSIHWA needs to establish, in order to make out a work value case and, for reference only, at page 1363 of volume 4, in the Education Group decision, said at paragraph 53 that:

PN793

A more recent Full Bench decision relating to the Pharmacy Award set out an historical detailed background relating to the statutory framework and assessment of work value. The Full Bench set out a number of propositions relating to the proper application of section 156(3) and (4), as follows.

PN794

Then the set out the key principles, which is that:

PN795

The effect of 156(3) is to establish a jurisdictional pre-requisite of the exercise of power to vary minimum wages in the context of a four-yearly review of the modern awards, namely, reaching of a state of satisfaction on the part of the Commission that the variation is justified by work value reasons.

PN796

Second, because the jurisdictional pre-requisite is expressed in terms of the Commission's satisfaction concerning whether a variation is justified by the prescribed set of reasons, a requirement which involves an element of subjectivity and about which more reasonable minds may differ, it requires the formation of a broad, evaluative judgment involving the exercise of the discretion.

PN797

Third, the definition of work value reasons, in section 156(4) requires only that the reasons justifying the amount to be paid for a particular kind of work is related to any of the following matters set out in paragraphs (a) to (c) the expression related to is one of broad import that requires a sufficient connection or association between two subject mattes. The degree of the connection required is a matter for judgment, depending on the facts of the case, but the connection must be relevant and not remote or accidental.

PN798

The subject matters between which there must be a satisfactory condition are, on the one hand, the reasons for the pay rate and, on the other hand, any of the three matters identified in paragraphs (a) to (c). That is, anyone or more of the three matters.

PN799

Fourth, although the three matters identified: the nature of the work, the level of skill or responsibility involved in doing the work and, the conditions under which the work is done -

PN800

All of which NATSIHWA will submit is relevant to the newly required registered position of the health practitioner:

PN801

clearly import the fundamental criteria used to assess work by the changes under the wage fixing principles which operated from 1975 to 1981 and 1983 to 2006. The legislature, in enacting section 156, chose not to report the additional requirements contained in those wage fixing principles. For example, there's no requirement that the work value reasons consist of identified changes in work value measured a fixed datum point.

PN802

Then, at 167:

PN803

Likewise, section 156(4) did not incorporate the test in the wage fixing principles that the change in the nature of work should constitute such a significant net addition to work requirements, so as to warrant the creation of a new classification.

PN804

In substance, sections 156(3) and (4) leave it to the Commission to exercise a broad and relatively unconstrained judgment as to what may constitute work value reasons justifying an adjustment to minimum rates of pay, similar to the position which applied prior to the establishment of wage fixing principles in 1975.

PN805

Fifth, it would be open to the Commission to have regard, in the exercise of its discretion, to considerations which have been taken into account in previous work value cases, under different past statutory regimes.

PN806

Then, at 169:

PN807

Finally, even if the jurisdictional requirement in section 156(3) is satisfied, it remains the case that the Commission must, as required by section 138, ensure that the inclusion of the varied minimal wages term in the relevant modern award would be necessary to achieve the modern awards objective and the minimum wages objective.

PN808

In this connection, it may be noted that the Full Bench in Four Yearly Review of Modern Awards - Real Estate Industry Award 2010 said that, "Where the where the wage rates in the modern award have not previously been the subject of a proper work value consideration, there can be no implicit assumption that the time the award was made its wage rates were consistent with the modern awards objective".

PN809

So my submission there, that the relevant factors that need to be taken into account in work value cases.

PN810

So looking now and dealing first with the health practitioners, it's the prime submission of NATSIHWA that the nature of the work and the level of the skill of work that has to be performed by health practitioners changed nationally and changed significantly with the introduction of a new national standard for health practitioners and with the requirement for registration. It dramatically altered the way that health practitioners practice and it clearly delineated health practitioners from health workers. Now, I'd like to next take the Commission to the evidence to make good that proposition.

PN811

Mr Briscoe, at tab 7 of exhibit 1, at paragraphs 35 to 44, sets out - - -

PN812

DEPUTY PRESIDENT MASSON: Just a second.

PN813

MS STEELE: Yes.

PN814

DEPUTY PRESIDENT MASSON: What page was that?

PN815

MS STEELE: At page 596, behind tab 7. So the Commission will see there that Mr Briscoe sets out the registration requirements. So at paragraph 35:

PN816

At the time the award was created in 2009 the award recognises that at the Certificate IV level the qualification split into streams of Care and Practice. However, in 2012, a significant change took place, which made a clear distinction between health workers and health practitioners.

PN817

Since 1 July 2012 all health practitioners have been required to be registered with the Aboriginal and Torres Strait Islander Health Practitioner Award and to meet the Aboriginal and Torres Strait Islander Health Practitioner Board's Associations Registration Standards in order to practice as a practitioner in Australia.

PN818

Then he sets out the relevant documents, which I'll take the Commission to because some of them are important in understanding the enhanced responsibilities and duties of health practitioners since registration.

PN819

Then he says, at 38 that:

PN820

Health practitioners are required to renew their registration annually, that they must pay a fee in order to register or renew their registration.

PN821

And I'll take you to all of these relevant documents next. That:

PN822

They are expected to comply with a code of conduct, which is effective from March 2014, which places obligations on health practitioners in relation to matters, including providing good care, working with clients, working with other practitioners, minimising risk and behaving in a professional manner.

PN823

And I will take the Commission, in some detail, to that code of conduct, because, effectively, that code of conduct changes an unregulated body of workers into a profession.

PN824

In addition, at paragraph 41:

PN825

They are expected to comply with a number of guidelines, such as the guideline for mandatory notifications, guidelines for advertising of regulated health services.

PN826

Before 2012 there was limited accountability and responsibility for health practitioners practicing outside of the Norther Territory, in relation to their supply and administration of medication and no protection for the public to ensure their work practices were up to standard.

PN827

As a result of the requirement for registration with AHPRA, health practitioners experience more responsibility and accountability for the work that they do. This is because they could receive a notification against them to AHPRA if they failed to perform their role to a suitable standard, such as if a patient's blood pressure is outside the acceptable range and if the health practitioner fails to take further action to address this.

PN828

In addition, the annual renewal and continual professional development requirements provide protection for the public to ensure that health practitioners practice to a suitable standard and remain up-to-date. In contrast, there is no requirement for health workers to be registered or accredited in order to practice.

PN829

While we've got this volume open, if I could ask you just to flip forward to paragraphs 160 and 163, where Mr Briscoe talks about the varied classification structure that's proposed. So he says, at 161 that the registration was a significant development because it delineated the distinction between health workers and health practitioners.

PN830

At 162, "They are subject to increased oversight". And at 163, "The board has powers in relation to the investigation and handling of any notifications". No equivalent oversight and monitoring for health workers.

PN831

Then from 164 he goes on to give evidence about some of the section 134 considerations that would be relevant to the Commission, were the Commission to be satisfied that this was an appropriate case for an uplift.

PN832

So that's an overview of our case. I'd now like to take you to the evidence to support that case. Firstly, exhibit 2, is the affidavit of - the second affidavit of Mr Briscoe, and the Commission will note, at paragraph 5, that the Health Practice Board of Australia, since registration and post the current award, now requires training providers to include at least 500 hours of work placement and practical training as a requirement for students to obtain the Certificate IV in Aboriginal and Torres Strait Islander Primary Health Care Practice, and then he attaches a copy of he accreditation standards, which outlines that requirement, at page 18. He says that that requirement came into effect from 1 July 2012 when the requirement for registration of health practitioners came into effect and that prior to July 2012 there was no requirement for health practitioners to do 500 clinical hours.

PN833

Now, I know, Deputy President, you gave me that question on notice about the change in the qualifications, which I was able to track through overnight and looking at the documents that are referred to, in the HLT40213, which is the Certificate 4, that was introduced on 25 May 2011, but was superseded on 30 June 2013, that is, after the registration. And that on 30 June 2013 the major change was an increase in units, from 13 to 21 units in total. That's consistent with the lay evidence that I'll take you to, when I take you to the evidence of the individual health workers.

PN834

But, effectively, Deputy President, you were correct in that there was an increase in the change in core units that occurred as a result of registration, where the number increased from 13 to 21, plus the additional training of 500 clinical hours.

PN835

So if I can ask you, please, to look at volume 1 to Mr Briscoe's exhibit, so I can take you to the documents concerning registration. They start at tab 10. At tab 10, actually, I apologise, they start at tab 9. Tab 9 is just a printout, from the webpage, on the requirements of registration, confirming that this change occurred on 1 July 2012 and who should be registered, that it's basically national law and that if you want to call yourself a health practitioner then you have to be registered. Then it describes who the Australian Health Practitioner Regulation Authority is and that they support 15 national boards, including Aboriginal Health Practitioners.

PN836

In the next tab, this is a copy of the Aboriginal and/or Torres Strait Islander Registration Standard and under the Summary and Purpose of Standard, the second heading in the left column:

PN837

Only persons who are Aboriginal and/or Torres Strait Islander are eligible for registration as a health practitioner. The purpose of this standard is to enhance the quality of holistic health care that is provided by Aboriginal and Torres Strait Islander health practitioners to the community in a culturally safe manner. If the individual fails to meet the requirements in this registration standard the individual would be unsuitable to be registered in the profession.

PN838

So it then talks about the requirements for registration:

PN839

You have to be an ATSI person, you have to identify as an ATSI person, you have to be accepted by an ATSI person in the community in which that person lives or did live, and they have to provide evidence in relation to the above, on application, which may include but is not limited to a letter stating that the person is an Aboriginal and/or Torres Strait Islander, or both, and is accepted as such by a recognised Aboriginal and/or Torres Strait Islander organisation.

PN840

The board can seek further evidence on that and the standard commenced on 1 July 2012 and can be reviewed at least every three years.

PN841

Turning now to the document behind tab 11, this is the Continuing Professional Development Registration Standard. There was no requirement for CPD prior to registration, there is now a requirement. That's set out in the summary, that:

PN842

All registered Aboriginal and Torres Strait Islander health practitioners are required to participate regularly in continuing professional development activities. All registered practitioners will be required to undertake CPD activities and to maintain records of CPD activities from 1 July 2012. There is no such requirement for health workers.

PN843

The requirements are set out under the heading Requirements:

PN844

They have to declare, annually, that they've met their CPD requirements. That declaration may be subject to audit. They must hold a current first aid certificate, which includes cardio/pulmonary resuscitation. They must complete a minimum of 60 hours of CPD activities over a three year cycle, with a minimum of 10 in any one year. At least 45 hours are required to be formal CPD activities, the remaining may consist of informal CPD activities. They are required to ensure that their CPD activities are able to be recorded and these records produced when the board requires them, as part of an audit investigation. They have to keep records for four years. The activities should be relevant to the context of the practice and the employer organisation.

PN845

Then:

PN846

Some examples of CPD include formal learning activities, such as accredited courses, conferences forums, online learning and informal learning activities, such as self-study of reference material, clinical case discussion with other health professionals and internet research.

PN847

There is provision for a failure to comply:

PN848

It is a breach of the national law and may constitute behaviour for which health, conduct or performance action may be taken, under the national law, section 1284.

PN849

Then there's a definition of health practitioner, of which I do not need to take you to.

PN850

DEPUTY PRESIDENT GOSTENCNIK: There seem to be more onerous requirements then for the CDP requirements for lawyers.

PN851

MS STEELE: Yes. Then there's, on the next page, the Registration Standard Criminal History. So, again, this doesn't apply to health workers, but one of the criteria for registration is deciding whether or not a health practitioner's criminal history is relevant to the practice of the profession. So:

PN852

This standard applies to everyone who seeks registration and it requires the Health Practitioner Regulation Agency to consider the nature and gravity of any offence, or alleged offence, and it's relevance to health practice. The more serious the offence or alleged offence and the greater its relevance to health practice the more weight the board will assign it. Also the period of time since the alleged offence, whether there was a finding of guilt or, where the offence is still pending, the sentence, the age of the health practitioner and of any victim at the time that the health practitioner committed or allegedly committed the offence. Whether or not the conduct that constituted the offence to which the charge relates has been decriminalised since the health practitioner committed or allegedly committed the offence and also the health practitioners behaviour since he or she committed or allegedly committed the offence.

PN853

It goes on to page 8, paragraph 8 on page 118:

PN854

The likelihood of future threat to a patient of the health practitioner.

PN855

And then:

PN856

Any information provided by the health practitioner, such as an explanation or mitigating factors will be reviewed by the board and taken into account in considering the health practitioners criminal history and the board may take into account any other matter that it considers relevant to the application or notification.

PN857

So that obviously - part of the registration is to provide greater safety to patients and to the public.

PN858

Now, at tab 13, it's necessary for a health practitioner, as part of registration, to prove that they have the relevant level of English language skills, which is another key change. They have to be able to demonstrate that they have an adequate command of the English language, and I'll take the Commission to more evidence of this. Some Aboriginal health workers have English as their fourth of fifth language, so that is a significant change, in terms of the requirements in order to be able to practice at that level.

PN859

The requirements are set out, under Requirements:

PN860

English language proficiency can be demonstrated through the completion of Certificate IV.

PN861

You either provide the certificate or a certified copy.

PN862

The board retains the power to require further evidence, under section 80, and that may include formal testing of English language proficiency in accordance with the Australian Core Skills.

PN863

Then, behind tab 14, the Commission will see that there's also new requirements for professional indemnity insurance arrangements, under the registration standard. In summary:

PN864

You can't practice as a health practitioner unless you are covered by professional indemnity insurance arrangements, in accordance with this standard.

PN865

They can be covered by either individual insurance arrangements or third party insurance arrangements, which may apply through employment or education institution insurance arrangements.

PN866

Initial registration and annual renewal requires a declaration from each health practitioner that they are or will be covered for all aspects of practice for that period of registration.

PN867

It is usual for Aboriginal and Torres Strait Islander health practitioners who are not in private practice to be covered by their employer for professional indemnity insurance, however it is the responsibility of the individual registrant to check that appropriate professional indemnity insurance arrangements are in place.

PN868

Then, in the Requirements, it goes through to set out that basically you can't apply or be registered unless you have in place adequate professional indemnity insurance, or your employer has that relevant insurance in place.

PN869

Behind tab 15 if the Recency of Practice Registration Standard. In summary, this is to ensure that practitioners are able to demonstrate recency of practice within their profession. So:

PN870

For Aboriginal and Torres Strait Islander health practitioners returning to practice the specific requirement for recency of practice depends on the length of absence from the field and the length of practice prior to the absence.

PN871

Upon apply for initial registration or renewal of registration practitioners will be required to make a declaration about their recency of practice.

PN872

So:

PN873

This standard applies to all applicants seeking registration in the practicing category or renewal of registration and to all applicants, equally, whether they practice full-time or part-time and whether the work is remunerated or not.

PN874

Then there are certain requirements in order to be registered for applicants, firstly, who have not practiced for the previous three years, then for people who have not practiced for the previous three to five years and then for applicants who have not practiced for the previous five to 10 years.

PN875

Now, for people who haven't practiced in the previous three years and - so it says:

PN876

The board may grant general registration, with conditions, for an applicant who is otherwise eligible for registration but has not practiced for at least three months, full-time, in the previous three years.

PN877

But the conditions the board might impose are not limited to successfully completing a first aid certificate, successfully completing an assessment against the identified units within a Certificate IV and working under the supervision of an Aboriginal or Torres Strait Islander health practitioner, registered nurse, registered midwife or medical practitioner.

PN878

Likewise, for person who would be otherwise eligible for registration for who haven't practiced for at least six months, full time, in the past three to five years there are the same conditions that might be imposed, together with an additional condition of providing the board with supervision reports at six-monthly intervals or within a timeframe as determined by the board, from the date of commencing employment.

PN879

For applicants who have not practiced for the previous five to 10 years, the board may grant registration to an applicant who has not practiced for 12 months, full-time, in the previous five to 10 years.

PN880

Again, the same conditions as in the previous category.

PN881

In point 4, on page 123:

PN882

Applicants who have completed their qualification more than two years prior to seeking initial registration may be required to demonstrate competency by either working under the direct supervision of an Aboriginal or Torres Strait Islander health practitioner, nurse, midwife or medical practitioner for a period of time, undertaking an assessment against the identified units within the Certificate IV, or an assessment determined suitable by the board.

PN883

The next relevant document is the Schedule of Fees that are payable. There's now a fee for registrants within the principal place of practice.

PN884

Then, at tab 17, the Code of Conduct. This is a very significant document and a very significant change, in NATSIHWA's submission, because this is a change to change, effectively to make this into a profession, because there weren't any of these professional standards that applied and this code of conduct does not apply to health workers. You'll see, at page 129 of exhibit 1, the Overview of the Code of Conduct.

PN885

This code seeks to assist and support registered health practitioners to deliver effective regulated health services within a ethical framework.

PN886

So there are now ethical obligations that are imposed upon this newly created profession.

PN887

Practitioners have a duty to make the care of patients or clients their first concern, maintaining a high level of professional competence and conduct is essential for good care. The code contains important standards of behaviour, in relation to providing good care, working with patients in care, working with other practitioners, working within the health care system, minimising risk, maintaining professional performance, professional behaviour and ethical conduct, ensuring practitioner health, teaching, supervising, assessing and research.

PN888

You'll see that, in the last paragraph in the left-hand column, that:

PN889

Practitioners have ethical and legal obligations to protect the privacy.

PN890

It sets out that they need to obtain informed consent for their care, what good practice is, genuine efforts to understand the cultural needs and context of different patients or clients to obtain good health outcomes.

PN891

In the right-hand column, about point 5:

PN892

Minimising risk to patients or clients is a fundamental component of practice. Good practice involves understanding and applying the key principles of risk minimisation and management to practice. Maintaining and developing a practitioners knowledge, skills and professional behaviour are core aspects of good practice.

PN893

Then, on page 130, Use of the Code:

PN894

Practitioners have a professional responsibility to be familiar with this code and to apply the guidance that it contains. This code will be used to support individual health practitioners in the challenging task of providing good health but also -

PN895

And this is where the additional responsibility comes in of these health practitioners as opposed to health workers is:

PN896

to assist national boards in their role of protecting the public by setting and maintaining standards of good practice. The board will use this code when evaluating the professional conduct of practitioners. If professional conduct varies significantly from this code, practitioners should be prepared to explain and justify their decisions and actions and serious or repeated failure to meet this code may have consequences for registration.

PN897

It's also, the code:

PN898

As a guide to the public and consumers of health services about what good practice is and the standard of behaviour that they should expect from health practitioners.

PN899

Practitioners must always act in accordance with the law.

PN900

Then the final sentence:

PN901

Practitioners need to be aware of and comply with the standards, guidance and policies of their national board.

PN902

Under 1.2, Professional Values and Qualities:

PN903

Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients or clients also rely on practitioners to protect their confidentiality.

PN904

Then, on page 121, second paragraph, Good Practice. Again, five lines down, Familiar Theme:

PN905

This includes cultural awareness, being aware of their own culture and beliefs and respectful of the beliefs and culture of others and recognising that these cultural differences may impact on the practitioner/patient or client relationship and on the delivery of services.

PN906

Then, about the fourth full paragraph down:

PN907

Professionalism embodies all the qualities described here and includes self-awareness and self-reflection. Practitioners are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients or clients. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.

PN908

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice.

PN909

Then the final paragraph:

PN910

Practitioners should be committed to safety and quality in healthcare. The Australian Commission on Safety and

PN911

Quality in Health Care is at this reference.

PN912

Then it goes through, in section 2, Providing Good Care, and that providing good care includes, at page 132:

PN913

Assessing the patient or client, formulating and implementing a suitable management plan, facilitating coordination and continuity of care, recognise the limits of the practitioners own skill and competence, recognising the limits to a practitioner's own skills and competence, recognising and respecting the rights of patients or clients to make their own decisions.

PN914

Then it sets out, under Good Care:

PN915

Maintaining a high level of professional competence and conduct is essential for good care. Good practice means recognising and working within the limits of competency of practice, ensuring that the practitioners maintain adequate knowledge and skills. When moving into a new area of practice ensuring that a practitioner has undertaken sufficient training and/or qualifications to achieve competency in that area, practising patient/client-centred care, including encouraging patients or clients to take interest in, and responsibility for, the management of their health and supporting them in this, maintaining adequate records.

PN916

That goes on, I won't go through the other obligations.

PN917

Then 3.3, Requirements as to Effective Communication, and then requirements to, at (k), when using interpreters:

PN918

May have taken reasonable steps to ensure that the interpreter is competent to work as an interpreter in the relevant context, taking reasonable steps to ensure the interpreter is not in a relationship with the patient or client that may impair the interpreter's judgement, taking reasonable steps to ensure the interpreter will keep confidential the existence and content of the service provided to the patient or client, taking reasonable steps to ensure that the

PN919

interpreter is aware of any other relevant provisions of this code, and obtaining informed consent from the patient or client to use the selected interpreter.

PN920

So these are all additional requirements of good practice that aren't imposed or regulated by, in respect to the health workers.

PN921

Under confidentiality and privacy, again there's ethical and legal obligations and the good practice, with respect to confidentiality and privacy, is set out at page 135. Likewise with informed consent:

PN922

Making sure that a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved.

PN923

Reference is made to the National Health and Medical Research Council publication. Those guidelines cover the information that the practitioner should provide, about the proposed management or approach, including:

PN924

The need to provide more information where the risk of harm is greater and likely to be more serious and advice about how to present that information.

PN925

Then it sets out the requirements of good practice, in terms of getting informed consent. Then there is good practice with respect to children and young people. At 3.7, Culturally safe and sensitive practice, which includes:

PN926

Knowledge of and respect for and sensitivity towards the cultural needs and background of the community practitioners serve, including those of Aboriginal and/or Torres Strait Islander Australians and those from culturally and linguistically diverse backgrounds.

PN927

Then:

PN928

Acknowledging the social, economic, cultural, historic and behavioural factors influencing health, understanding that a practitioner's own culture and beliefs influence their interactions with patients or clients, and adapting practice to improve engagement with patients or clients and healthcare outcomes.

PN929

Then there's obligations, with respect to patients who may have additional need. Good practice in relation to patient's relatives carers and partners.

PN930

Then, significantly, at 3.10, Adverse events and open disclosure, because one of the key functions of regulation is to, effectively, regulate any negative health outcomes of these health practitioners, and it's a new level of responsibility at this level. So:

PN931

When adverse events occur, practitioners have a responsibility to be open and honest in communication with a patient or client to review what has occurred and to report appropriately. See also "open disclosure". When something goes wrong, good practice involves recognising what has happened, acting immediately to rectify the problem if possible, explaining to the patient or client as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences, listening to the patient or client, acknowledging any patient or client distress and providing appropriate support, complying with any relevant policies, procedures and reporting requirements, subject to advice from a professional indemnity insurer, reviewing adverse events and implementing changes to reduce the risk of recurrence., reporting adverse events to the relevant authority

PN932

as required and ensuring that patients or clients have access to information about the processes for making a complaint, for example, through the relevant national board or healthcare complaints commission.

PN933

Then there's obligations about when a complaint is made, which includes:

PN934

Ensuring the complaint or notification does not affect the person's care adversely; in some cases, it may be advisable to refer the person to another practitioner, and, again, complying with relevant complaints legislation, policies and procedures.

PN935

Then there's obligations, with respect to end of life care, including understanding that practitioners don't have a duty to try and prolong life at all cost but do have a duty to know when not to initiate and when to cease attempts at prolonging life and respecting different cultural practices related to death and dying, which is very important to Aboriginal and Torres Strait Islander people.

PN936

Then, at 3.14, Understanding boundaries:

PN937

The risks and complexities of providing care to those in a close relationship, including friends, work colleagues and family members and that this can be inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the practitioner or patient.

PN938

Then it sets out the obligations when a practitioner does choose to provide care to those in a close relationship. Ten there's obligations with respect to working with multiple clients. New obligations with respect to closing or relocating a practice, in 3.16, which involves:

PN939

Giving advanced notice as early as possible and facilitating arrangements for the continuing care of all current patients, which may include the transfer or appropriate management of all patient records, whilst following the low governing privacy and health records in that jurisdiction.

PN940

Then the code sets out obligations, with respect to working with other practitioners, which include good practice with respect to respect for colleagues and other practitioners, delegation, referral and handover, teamwork, including at Teamwork, halfway through the second paragraph:

PN941

Working in a team does not alter a practitioner's personal accountability for professional conduct and the care provided.

PN942

Then it sets out good practice in working in a team and what's required. Likewise, good practices is set out with coordinating care with other practitioners, in section 4.5, on page 140.

PN943

Then there's good practice of working within the health care system, including the wise use of health care resources, health advocacy, public health.

PN944

Section 6, page 141, Minimising Risk. This code of conduct notes that risk is inherent in health care and that minimising risk to patients is an important component of practice and that good practice involves understanding of risk minimisation.

PN945

6.2 sets out the various good practice with risk management, which include:

PN946

Being aware of the principles of open disclosure and a non-punitive approach to incident management.

PN947

The useful reference is the Australian Commission on Safety and Quality in Health Care's National Open Disclosure Standard:

PN948

Participating in systems of quality assurance and improvement, participating in systems for surveillance and monitoring of adverse events and near misses, including reporting such events to the relevant authority. If a practitioner has management responsibilities, making sure that systems are in place for raising concerns about risks to patients or clients, working in practice and within systems to reduce error and improve the safety of patients or clients and supporting colleagues who raise concerns about the safety of patients or clients, and taking all reasonable steps to address the issue if there is reason to think that the safety of patients or clients may be compromised.

PN949

Then Practitioner Performance deals with fact that:

PN950

The welfare of patients or clients may be put at risk if a practitioner is performing poorly. If there is a risk, good practice involves complying with statutory reporting requirements, including those under the National Law.

PN951

So there's now obligation to report other practitioners who may not be performing property.

PN952

Recognising and taking steps to minimise the risks of fatigue, including complying with relevant occupational health and safety legislation. If a practitioner knows or suspects that they have a health condition that could adversely affect judgement, following the guidance in practitioner health. Taking steps to protect patients or clients from being placed at risk of harm posed by a colleague's conduct, practice or ill health. Taking appropriate steps to assist a colleague to receive help if there are concerns about that colleague's performance or fitness to practise, and if a practitioner is not sure what to do, seeking advice from an experienced colleague, the employers, practitioner health advisory service, professional indemnity insurers, the national boards or a professional organisation.

PN953

So there's actually an obligation on health practitioners now to monitor the work of other health practitioners and to take appropriate steps, by way of reporting, in order to reduce the risk to the public.

PN954

Then, at page 142, Maintaining Professional Performance, this sets out the requirements to CPD, which we've been over. Professional behaviour, which includes involving the practicing principles of ethical conduct:

PN955

The guidance contained in this section emphasises the core qualities and characteristics of good practitioners outlined in section 1.2, Professional Values and Qualities.

PN956

Then there are standards of good practice that are set for professional boundaries, in respect of reporting obligations, and I'll go to that because that's important:

PN957

Practitioners have statutory responsibility, under the national law, to report matters to the national boards, and they have professional obligations to report to the boards and their employers if they have had any limitations placed on their practice.

PN958

Then there's good practice, with respect to health records, insurance, advertising. Then report certificates and giving evidence that:

PN959

The community places a great deal of trust in practitioners. Some practitioners have been given the authority to sign documents such as sickness or fitness for work certificate. Good practice involves being honest and not misleading, verifying the content et cetera.

PN960

The same with the CV:

PN961

Good practice means providing accurate, truthful and verifiable information and not misrepresenting, by misstatement or omission, practitioner's experience, qualifications or position.

PN962

Then, at 8.10:

PN963

Practitioners have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. In meeting these responsibilities, it is advisable to seek legal advice or advice from a professional indemnity insurer.

PN964

Then it sets out good practice, in terms of dealing with any legitimate inquiry into respective complaints, in respect of a health practitioners work.

PN965

8.11 deals with conflicts of interest and sets out what good practice involves, including recognising that there's a conflict of interest, recognising that pharmaceutical and other medical - at point (d):

PN966

Pharmaceutical and other marketing may influence practitioners and being aware of ways in which practice may be influenced.

PN967

At (e):

PN968

Not asking for or accepting any inducement, gift or hospitality. Not asking or accepting fees for meeting sales representatives. Not offering inducements to colleagues. Not allowing any financial or commercial interest in a hospital to adversely affect the way in which patients or clients are treated.

PN969

Then there's ethical obligations in respect to financial and commercial dealings and good practice is set out in respect of not exploiting vulnerable or patients with lack of knowledge or providing or recommending services and not encouraging gifts.

PN970

Then there's a section on ensuring practitioner health and taking care of your own health and on teaching, supervising and assessing and on assessing colleagues then on undertaking research and then the ethics involved in research.

PN971

Then further reference material provided to the health practitioners, on page 148, at about point 7, in the left-hand column, the Australian Commission on Safety and Quality in Healthcare website, providing relevant guidance on a range of safety and quality issues.

PN972

Then it sets out further reference material on informed consent in research and on health workforce issues, including resources on clinical supervision and relevant information on therapeutic goods.

PN973

Now, the other change that has occurred, if I can ask you to turn to the next tab, page 18, is that, as a result of the national registration, health practitioners in three states, in Norther Territory and in Queensland and Western Australia, are now entitled, under legislation, to administer medication. We've provided to the Commission, at tab 18, a copy of the Northern Territory provisions, under the Medicines Poisons and Therapeutic Act, and that, at section 250(b), on page 152, that:

PN974

An Aboriginal and Torres Strait Islander health practitioner can deal with schedule 4A substances, in accordance with the Scheduled Substance Treatment Protocol, as stated in the notice.

PN975

Then, at the next tab, we've included the Northern Territory government's Department of Health, section 250, Remote Guideline and the general information there, at about point 5 of page 154, that:

PN976

The Northern Territory Medicines Poisons and Therapeutic Goods Act regulates the possession, supply or administration of drugs and poisons in the territory.

PN977

Then section 250 enables:

PN978

A nurse, midwife, r Aboriginal and Torres Strait Islander medical practitioner to supply or administer a schedule 4A substance, according to the Scheduled Substance Treatment Protocol approved by the Chief Health Officer by gazette notice.

PN979

Then it sets out:

PN980

The gazettal notices have been issued for the substances in part C.

PN981

Then, at page 158, it again identifies the medicines that are required for staff practicing and what substance can be administered.

PN982

Then, at tab 20, is the Queensland government's Health Drug and Poison Regulation 1996, Drug Therapy Protocol Aboriginal and Torres Islander Health Practitioner Isolated Practice Area. And at page 162, and following, is a list of the medications that can be administered in isolated practice areas in Queensland.

PN983

Then Queensland Health, at tab 21, from about halfway through the page:

PN984

From 1 November 2018 Aboriginal and Torres Strait Islander health practitioners in Queensland, working in isolated practice areas, are authorised to use scheduled medicines, under the Health Drug and Poison Regulation 1996, and in accordance with a Drug Therapy Protocol.

PN985

So that's changed at 1 November 2018.

PN986

In order to do that they must be, on page 178:

PN987

The practitioner must be employed -

PN988

At point 3:

PN989

within a hospital and health service and/or Aboriginal or Torres Strait Islander community controlled health service with an endorsed practice plan to use scheduled medicines.

PN990

Then, at tab 22, is the Western Australian Medicines and Poisons Regulation 2016, again allowing Aboriginal and Torres Strait Islander health practitioners to administer medication, which you'll see at section 38, page 136.

PN991

Now, I'd like to - if the Commission would just allow me one second?

PN992

DEPUTY PRESIDENT GOSTENCNIK: Yes, of course.

PN993

MS STEELE: I'd now like to take the Commission to some of the evidence from the health workers, about their different levels of responsibility since registration. If I could ask the Commission, please, to look at volume 2 of exhibit 1, page 692, which is behind tab 8. This is a witness of Aaron Everett, who's in Tasmania, and he gives evidence, at paragraph 12 that he wants to become an Aboriginal health practitioner because he spends most of his time at the clinic and there are so many things that he cannot currently do in the clinic because he cannot bill for, under Medicare, as an Aboriginal health worker, he can only bill for certain things, through Medicare, as an Aboriginal health worker:

PN994

Whereas I can bill for more things, through Medicare, once I'm a health practitioner.

PN995

I will also be able to take on more clinical responsibilities once I am an health practitioner. For example, I can take bloods as an Aboriginal health worker but I cannot give immunisations. Once I am a health practitioner I will be able to do immunisations and bill them through Medicare.

PN996

Then behind tab 10, the witness statement of Charlene Badham, who is employed in the Mamu Health Services Ltd, in the position of Aboriginal - - -

PN997

DEPUTY PRESIDENT GOSTENCNIK: Sorry, what was her name?

PN998

MS STEELE: Here name is Charlene Badham.

PN999

DEPUTY PRESIDENT GOSTENCNIK: That's behind 11?

PN1000

MS STEELE: Behind tab 11.

PN1001

DEPUTY PRESIDENT GOSTENCNIK: Eleven, yes.

PN1002

MS STEELE: Who's currently 62 years old and who has a Certificate IV and she's registered as a health practitioner. She says, at paragraph 17 and on:

PN1003

Health practitioners must hold a Certificate IV and must undertake continuing professional development.

PN1004

And I should, in that case, go back to the qualifications. Her employment history is at paragraph 7. From about 2006, she worked as an Aboriginal and/or Torres Strait Islander health worker; from about 2011, she worked as a health practitioner and then she's in her current role from 2017. She says that, based on her experience:

PN1005

Health practitioners perform work that is more challenging and demanding. Due to their lower qualifications, health workers are more limited in what they can do and they have to be supervised.

PN1006

Then she says, at 19, that she has come to realise there's a real need for health workers to become a Certificate IV so they can perform more complex duties and responsibilities with less supervision:

PN1007

That makes them even better positioned to help our community, who really need assistance because of the prevalence of chronic disease. For example, if a health worker assists a doctor to perform a minor procedure, another staff member also needs to be present, such as a registered nurse, whereas a health practitioner can assist the doctor unsupervised. In my experience, registered nurses have come to rely on health workers and health practitioners more. Our registered nurses are non-indigenous, so our health workers and health practitioners are very busy and in demand.

PN1008

At page 644, which is behind tab 12, this is the witness statement of Cynthia Sambo from Kalgoorlie, who is employed at Bega Garnbirringu Health Service as the National Disability Insurance Scheme coordinator. She identifies as Aboriginal. She is currently 51 years old and she holds a Certificate IV and she is registered with AHPRA, and that's paragraph 1 to 5 of her statement on page 643.

PN1009

She talks about being registered from paragraphs 14 onwards. She says she is required to be registered in order to practise. She says that she has observed the scope of the health practitioners' practices expand over the past few years, which is since registration. They now have to do all the dressings, act as a point of care for patients, perform sexually transmitted infection screening, do a lot of adult health checks and children's health checks:

PN1010

There has been an increase in the number of sexually transmitted infections in the community recently. There has also been an increase in the number of adult and children's health checks, increasing our workload.

PN1011

Then she says that health practitioners and health workers are much busier than they used to be and that that can be stressful and that when she was a clinic coordinator, she had a problem with the nurses because they didn't have as much scope of practice as the health practitioners at the clinic and the nurses found that frustrating.

PN1012

I would next like to look at the statement of Daphne de Jersey, which is - - -

PN1013

DEPUTY PRESIDENT GOSTENCNIK: Tab 14.

PN1014

MS STEELE: Thank you. She is again a health practitioner. She identifies as Aboriginal, she is 50 years old and she has got a Certificate IV in Practice and she commenced that role approximately 18 months ago, and it took some time after she got her certificate for her to be registered. She says, at paragraph 15, that she has to be registered, she has to have a current First Aid, she has to complete a minimum of 60 points of CPD:

PN1015

The role has become a lot more difficult because a lot of people in the community hear my title Indigenous Health Practitioner and think that I can undertake more health care tasks and assist with more difficult health related issues than I am trained for.

PN1016

Since I became an indigenous health practitioner, I have been doing phlebotomy far more frequently. I have also been dealing with chronic foot ulcers. Neighbouring communities have this problem too.

PN1017

I do training throughout the year that goes towards the credits that allow me to maintain accreditation. I am so busy doing everyday work, I don't have time to think about training and development much.

PN1018

Next, at tab 20, Georgina Taylor. She is employed as a health practitioner by the Gunditjmara Aboriginal Cooperative and she identifies as Aboriginal and she is currently 55 years old. She says, at 18:

PN1019

There has been a change and increase in responsibility in my role as an Aboriginal health practitioner since I started eight years ago. We have stepped up and are now much more involved in the treatment room. We had nurses do more about five years ago, but doctors now come to us first and not the nurses. This means that we have a greater workload and more responsibilities on the ground than we used to.

PN1020

Then, at tab 22, Helena Badham, who we have been to before, she says, at 12 on page 679:

PN1021

In my experience, the role of a health practitioner has become more demanding since I obtained my Certificate IV, particularly with being involved in immunisations and pathology tasks. There are also program roles that didn't exist for health practitioners before. Although the role is becoming more demanding and therefore difficult, this does give us an opportunity to learn and become more involved for our community.

PN1022

At tab 24, John Watson, he says - and he is from Mount Gambier in South Australia and he's a health practitioner who is 46 years old - in Practice. He says, in 11, that he has more clients than when he first started and that they are continually increasing; at 12, he didn't receive a pay rise or promotion in his current role and:

PN1023

I don't know when I'm due for a pay rise. I don't think I will get one because I think I'm at the highest salary I can unless I do a diploma.

PN1024

He says, at 13:

PN1025

When I changed from an Aboriginal health worker to an Aboriginal health practitioner, I did not experience any increase or change to my pay.

PN1026

However, my duties and responsibilities changed once I became an Aboriginal health practitioner, because I had more responsibilities such as taking blood and doing immunisations.

PN1027

At tab 25, Karen West from Mount Isa, who is employed by the Gidgee Healing Aboriginal Medical Centre as a senior health worker and who is currently 70 years old, she says, at paragraph 13:

PN1028

The tasks and responsibilities for health workers have increased over the years. This is partly because there is no set process in place for promoting the role of health workers (in order to recruit more), so there are not enough of us compared to our community needs.

PN1029

A lot of the people who come to the clinic are in need, which is stressful, particularly at my age, because it is difficult dealing with so many people in need.

PN1030

My community knows that I am a senior health worker. This creates pressure on me because the community will want me to assist with all of their health needs, as there are not enough health workers to go around.

PN1031

I carry my work home with me because I deeply care for my people and it's a job that never stops.

PN1032

At 17:

PN1033

Throughout my career, I have sat on panels before to recruit and hire health workers. I have always been one of multiple people on those panels. Mostly, how much the new recruit is paid depends on their qualifications. However, we also take into account their knowledge of the community.

PN1034

In my own career, I have received pay rises when I obtain new qualifications.

PN1035

In my experience as a manager, I have found it hard to retain health workers and health practitioners on my staff - they come and go. They leave because they don't understand, or they get bored, or because they don't get paid enough. I always say to people coming into the system, "Look, to be honest, if you're the breadwinner in the family, a health wage is not going to keep you and your family." In my experience, we haven't been treated well.

PN1036

At tab 29, Naomi Zara, who is from Kalgoorlie in Western Australia and is employed by the Bega Garnbirringu Health Service in the position of clinical educator and Aboriginal and Torres Strait Islander health practitioner and who is the chairperson of the board on NATSIHWA. She is 40 years old and you will see, at paragraph 6, that she holds qualifications Certificate III and Certificate IV and also a Certificate IV in Training and Assessment, so she teaches the Certificate IV in Practice. She is currently a teacher of the Certificate IV in Practice and has worked as a health practitioner since 2012.

PN1037

She sets out in her duties and responsibilities in paragraph 9 that she is delivering the Certificate IV (Practice) to students as well as performing the duties of a health practitioner. She says, at paragraph 18 at page 704, that she is aware of the requirement for the health practitioners to be registered:

PN1038

There was a grandfathering scheme in place for those who completed their Certificate IV prior to 2012. The grandparent arrangement ceased in 2015, so that health practitioners now need to hold the certificate as a minimum to become a registered health practitioner.

PN1039

The qualification has increased in units of competency. When I did it there were 13, now there are 21. The qualification is currently under review. The training requirements are onerous on workers. For example, the training course requires students to get 35 hours' experience with a phlebotomist. Some communities are so remote, they only have one A&TSIHP there.

PN1040

Since becoming health practitioner, I have been able to undertake greater duties and responsibilities. For example, we can administer and dispense medication. If I practised in Brisbane, I would not be able to administer medication because of the legislative restrictions in Queensland.

PN1041

Behind tab 31, the witness statement of Rebecca Tracey, who is employed by the Njernda Aboriginal Corporation in the position of Aboriginal health practitioner, who identifies as Aboriginal and who is 44 years old and who obtained her Certificate IV, at paragraph 5 of her statement, around 2016. She says, on page 711 from paragraphs 13 on:

PN1042

We are required to get at least 20 CPD points per year. When I do my CALMS training, which could be in places such as Darwin or Adelaide, this gives me 10 points towards my CPD.

PN1043

Every 12 months I have to re-apply to keep my registration.

PN1044

When I worked as an Aboriginal health worker, the doctors relied on me less. Now that I am a health practitioner, the responsibility has increased due to the doctors' reliance upon me to support the patients. My responsibility has also increased because I am having more personal involvement working with patients, and I get to know a lot about people's health. As I learn more, my responsibility increases too.

PN1045

A&TSIHPs have a huge role - we do everything. We do drug screening now, which is new, and all the paperwork that comes along with it. The involvement of health practitioners in simple procedures is also increasing, particularly in relation to pap smears where I help the male doctors. I do everything in the clinic, right down to keeping an eye on the fridge temperatures.

PN1046

Finally, I would like to take the Commission to Ruth Mallie's statement, which is at 34. She is employed (paragraph 1) by the Community Health Centre in Mackay. She identifies as Aboriginal, she is currently 53 years old, she has a Certificate IV. She sets out her duties and responsibilities at 10.

PN1047

She says that she is required to hold a Certificate IV, that she had to upgrade her qualification because everyone had to upgrade at the time of registration in order to become a health practitioner. She decided to do that because health practitioners can do a lot more than health workers and she can now go out into the community and earn Medicare for the Community Health Centre in Mackay.

PN1048

She talks about her day to day responsibilities in paragraph 12: calling and following up patients with their test results; taking patients to and from appointments; attending home visits; doing promotional and educational work out in the community; networking with other organisations in the community; work health and safety management and fire warden responsibilities; overseeing other health workers and health practitioners and putting them on the right track; and overseeing the management of the medical centre.

PN1049

Then she says she is required to do yearly training on ECGs, CPR, first aid, the chronic disease support program and foot care.

PN1050

She says that in career progression, she received a pay rise of a couple of dollars per day for her appointment as a team leader and she doesn't know how they calculate her pay and that she oversees other health workers and health practitioners but she is not involved in the recruitment.

PN1051

Then she says, at 17, that she is aware that health practitioners much renew their registration every 12 months and need to earn at least 10 CPD points per year and to keep records of all CPD training requirements. She says there wasn't any requirement for renewing registration or doing professional development when she first qualified as a health practitioner in August 2008. She can't remember when these new requirements came into effect.

PN1052

There has been an increase in her responsibilities, because she now have to undertake tasks in relation to the National Disability Insurance Scheme and the My Aged Care program:

PN1053

These duties are more difficult because they are more in-depth - they involve a lot of advocating with the patients, particularly elderly patients, performing more home visits, filling out a lot more forms and following up with their care.

PN1054

I have a lot more duties than previously, such as undertaking health checks and care plans that have been referred from the doctor.

PN1055

DEPUTY PRESIDENT GOSTENCNIK: Ms Steele, I am sure you could use a short break, given the early start.

PN1056

MS STEELE: Yes, I was about to ask, thank you so much. I will just have a glass of water.

PN1057

DEPUTY PRESIDENT GOSTENCNIK: And those who crave nicotine or caffeine can have a fix as well, so we will adjourn for 15 minutes and when we resume, we will sit until 1 o'clock and have the lunch adjournment then.

PN1058

MS STEELE: Yes, thank you so much, Deputy President.

SHORT ADJOURNMENT [11.01 AM]

RESUMED [11.21 AM]

PN1059

MS STEELE: Thank you for that opportunity for the break. Just before the break, I had finished going through the lay evidence as to the difference in responsibility for health practitioners since registration in 2012 and it is NATSIHWA's submission that the evidence shows that there has been a significant change in the nature of the work and in the skill that needs to be performed as a result of the national registration and the training requirements.

PN1060

It is also NATSIHWA's submission that the changes are necessary to meet the modern awards objective and the minimum wages objective, which is a necessary part of any work value case. It is NATSIHWA's submission that the wage uplift for the new profession of health practitioners will promote social inclusion, that it will benefit the national economy by reducing the costs of A&TSI people suffering acute medical issues and that it will also promote A&TSI health.

PN1061

I note that all of the proposed changes by NATSIHWA are supported by the health practitioners two principal employers, by NACCHO and by AIDA.

PN1062

I would also like to take the Commission to the evidence of Mr Briscoe on the section 134 factors, which is at volume 2 of exhibit 1 at court book 616. Commencing at the bottom of page 616 at paragraph 164, Mr Briscoe says:

PN1063

By increasing the remuneration for health practitioners to account for these additional more stringent requirements on their role, it is likely that there will be an increase in the number of health practitioners entering the workforce, either at an practitioner level or by health workers obtaining additional training to achieve the ... higher classification. In the long run, this will reduce the number of acute A&TSI medical incidents through more primary intervention, reducing the personal cost on A&TSI community members and the financial cost to the economy of providing acute healthcare.

PN1064

As a result of the increased accountability and scrutiny on health practitioners, protections have been put in place to prevent A&TSI communities from receiving substandard health advice or advice provided by persons who are not suitably qualified to practice as a practitioner.

PN1065

Then he talks about the ability to supply and register medication at 166, but noting that it does allow for A&TSI clients in those areas to be able to access medications that they might otherwise not be able to access, reducing the number of clients in those areas experiencing acute health issues, reducing health costs for the economy and, in addition, for Aboriginal and Torres Strait Islander clients living in remote or isolated areas, they generally have to travel into the city and that places strain on their community.

PN1066

Then, at 167, he talks about some of the issues that we heard from Associate Professor Lovett and from Ms Wright, that whilst the size of the health workforce and health practitioner workforce has grown, that growth is not proportionate with the growth of the general population and that there's a greater volume of work, causing increased stress; that there's been a difficulty, at 168, of experience of recruiting and retaining workers, that there's an aged workforce and that a younger generation of new health workers and practitioners needs to come through so that the Elders can pass down their knowledge:

PN1067

If the profession does not successfully recruit additional workers, the ongoing viability of the profession will be endangered due to loss of the Elders' knowledge once they are gone.

PN1068

Then he talks about the article that I took you to this morning about "Factors affecting retention of Indigenous Australians in the health work force: a systematic review." He says:

PN1069

I cannot say what the current ratio of health workers and health practitioners to the A&TSI population is without current research; however, in my experience, even if the profession achieves numbers equivalent to its former peak ratio, this will not be enough to resolve the endemic health issues experienced by A&TSI people. Australia needs to significantly increase the proportionate numbers of health workers and health practitioners if there is ever going to be a chance to achieve significant improvements in A&TSI health outcomes.

PN1070

He says, by uplifting the classification, it will recognise the higher level of qualifications and registration requirements and the higher duties and that this recognition will increase the likelihood that health workers seek to become health practitioners, and/or that other Aboriginal and Torres Strait Islander people will become health practitioners; that the increased workforce participation will promote social inclusion for more Aboriginal and Torres Strait Islander people, thereby increasing the ability for those people to access health care, and that will benefit the national economy by reducing the costs incurred as a result of Aboriginal and Torres Strait Islander people suffering acute medical issues.

PN1071

We heard from Ms Wright yesterday, but she also, in her expert report, gives some evidence, in volume 1 at page 199, and she says - at paragraph 19, she quotes the National Aboriginal and Torres Strait Islander Health Plan from 2013 to 2023, which cites that:

PN1072

Aboriginal and Torres Strait Islander health professionals are essential to the delivery of culturally safe care in primary health care settings with a focus on health promotion, health education, in specialist and other health services, and the engagement of Aboriginal and Torres Strait Islander people in their own health. The employment of Aboriginal and Torres Strait Islander health professionals also contributes to the development and maintenance of culturally safe workplaces and assists in addressing institutionalised racism.

PN1073

The role of health workers was initiated in the 1970s, and then she talks about she knows of certain nurses that have moved to health worker care and, in paragraph 21, four lines down:

PN1074

At the same time, there are real and concerning underlying barriers to attracting and training increased numbers of Aboriginal and/or Torres Strait Islander health workers and health practitioners.

PN1075

At 23:

PN1076

It is critically important that the Aboriginal Community Controlled Health Sector has commensurate wages and career progressions as state Aboriginal and/or Torres Strait Islander Health Workers.

PN1077

And at 24:

PN1078

Increased remuneration and wages based on increasing levels of experience and education will support the increasing requirements of extra and higher duties within the profession.

PN1079

She gives an example of the requirement for registration and that:

PN1080

This change has supported the professionalism of the career and encourages and supports continual professional development, but the changes also mean extra workloads and responsibilities for those registered, including extra administration to maintain registration, ensuring the minimum CPD requirements are met and practice standards maintained. These additional responsibilities should be supported through appropriate and fair increases in remuneration.

PN1081

I would next like to deal with AFEI's submissions on the work value case for health practitioners. This is at paragraph 1.19 and following. The principal objection is with respect to the proposed pay rates and a criticism is made, at 1.20, that the proposed new rates of pay are similar to the rates of pay for dental therapists grade 2, although the roles are dissimilar in nature, as it appears that the dental therapists grade 2 role carries significantly more duties and responsibility than a senior Aboriginal health worker.

PN1082

This submission is based on a misconception as to the classification and remuneration that is actually being sought by NATSIHWA. The classification that is referred to and relied upon by AFEI is, in fact, the classification under the current award and it fails to take into account the actual roles and responsibilities of health practitioners. In other words, the comparison that is made is not to a health practitioner but to a health worker under grade 3; in other words, AFEI has not taken into account the additional training and responsibility and clinical role that is carried out by the health practitioners in practice.

PN1083

To demonstrate that, if I could ask the Commission, please, to look at the aide memoire at page 15. In this table, NATSIHWA has set out the pay rates for the dental therapists grade 2 under the current award as opposed to the proposed grade 5 wages for the health practitioner, and the Commission can see that AFEI is correct in that the rates of pay are roughly analogous, but where their argument falls short is in the alleged comparison between the responsibility of a dental therapist grade 2 under the current award as opposed to the proposed grade 5 of the advanced health worker (practice) and health practitioner, and you will see that the dental therapist grade 2 works - as a professional practitioner:

PN1084

Performs normal professional work under general performance professional guidance and may perform novel, complex or critical professional work under professional supervision.

PN1085

And that they may be expected to perform difficult or novel, complex or critical professional work. But, when one looks at the proposed grade 5 and the advanced health worker practice and health practitioner, that practitioner, as a result of the clinical hours and registration and this new role, is expected to work at an advanced level with minimal supervision, so, arguably, the health worker is working in a much more complex and higher level than the dental therapist grade 2.

PN1086

You will see also that the health worker practice and health practitioner, they need a sound knowledge of standards, practice and procedures and have to apply primary health skills obtained through significant training and experience and/or formal vocational development. They are performing a range of tasks of a complex nature and operate equipment that requires specific levels of skills, training and experience at an advanced level. So, the health practitioner, it is part of their job operating generally at a complex nature as opposed to the dental therapist who may be expected to do that from time to time.

PN1087

Again, on the next page, on page 16, the advanced health worker practice, being the other proposed grade 5 practitioner, they are expected to independently undertake a full range of duties, including dealing with the most complex matters. An advanced health worker practice performs their duties with little supervision and may work as a sole practitioner remote from the health service.

PN1088

So, when one actually undertakes the comparison between the rates within the Aboriginal Community Controlled Health Services and the dental therapist grade 2 and compares them to the rates put forward by NATSIHWA for the proposed grade 5, it actually provides a pretty good benchmark to say that within the award, this is appropriate remuneration for the health practitioner who is, on their classification structure and as a result of their training, clinical experience and the role they carry out in practice, performing a much more complex job with less supervision and responsibility.

PN1089

Unless the Commission has any questions on the health practitioner, my next topic is to move on to the grade 6 classification. Shall I move on now to the grade 6 uplift?

PN1090

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN1091

MS STEELE: I would like to, in making submissions on this topic, refer to NATSIHWA's written submissions, which are in exhibit 1 in volume 1 at page 102. This grade 6 is a new grade which contemplates the creation of senior roles for health workers and health practitioners operating at a senior level and having responsibility in the implementation, coordination, management and evaluation of health programs and service delivery in one or more specialised programs or subprograms.

PN1092

The two roles are the senior health practitioner and the coordinator care. As I have previously mentioned, there is no classification for health workers who have the advanced diploma. It is probably worthwhile for the Commission to have a look at the responsibilities of the new roles, which is behind tab 3 and starting at page 147. It may be worth - can I do this just to take you through the classification structure generally, just so that the Commission is familiar with the level of detail that NATSIHWA has put into actually properly defining the roles and responsibilities of each of the health workers and health practitioners at each level because, as I showed you when we went to the current award, the current descriptions are very thin and not very detailed and don't include - aren't comparable with other modern awards.

PN1093

Looking at grade 6, at B.1.7:

PN1094

The following two roles are classified at grade 6 as senior roles and are responsible for implementation, coordination, management and evaluation of health programs and service delivery in one or more specialised programs or subprograms.

PN1095

Then there is the three types of senior health workers, being a senior health practitioner, two types of senior health practitioners, and then a coordinator care, and you will see that the classification provides for health workers or practitioners who not only have a diploma but also who have an advanced diploma, and you will see, in (c), there is a provision for the health worker coordinator care as being a person who holds either a diploma or advanced diploma, and the positions at this level undertake a management function and may report to the board of directors, board of management and be responsible for the administration of a health service.

PN1096

NATSIHWA has then set out the scope of the role and, for the senior health practitioner, being the first of the grade 6, someone:

PN1097

who works at a senior level and is responsible for implementation, coordination, management and evaluation of health programs and service delivery in one or more specialised programs or subprograms, they are expected to work at an advanced level in a specialised program or subprogram with broad direction and minimal position. The position will exercise accountability and responsibility for programs under their control and for the quality standards of work produced.

PN1098

Then NATSIHWA has set out the required skills and knowledge for the health practitioner in some detail:

PN1099

demonstrated knowledge of culture and their health needs;

PN1100

the ability to develop strategies to address key outcome areas;

PN1101

knowledge and understanding of the policies, guidelines and practice relevant to a specialised program area targeting Aboriginal and/or Torres Strait Islander peoples;

PN1102

skills to incorporate evidence-based practice and health care at the program level and to facilitate delivery of specialised programs to the community;

PN1103

ability to advocate for the rights and needs of community members and liaise with external stakeholders, including NGOs and other government organisations;

PN1104

ability to work autonomously and apply a high level of theoretical and applied knowledge in relation to program management;

PN1105

high level communication and problem-solving skills with the ability to engage and negotiate with communities about program implementation and uptake;

PN1106

ability to work in a cross cultural, multidisciplinary environment delivering specific program care;

PN1107

ability to facilitate workshops and transfer knowledge of best practice in a specialist field to primary health care workers;

PN1108

demonstrated ability to develop and maintain current knowledge in their program area; and

PN1109

have Aboriginal and/or Torres Strait Islander knowledge and cultural skills-level 3.

PN1110

NATSIHWA has then set out the range of activities of a health practitioner, which may include, at page 149:

PN1111

(i) undertake program management duties including:

PN1112

developing operational program plans;

PN1113

identifying performance indicators for health programs;

PN1114

monitoring health programs;

PN1115

establishing evaluation process for health programs;

PN1116

managing resources;

PN1117

producing community profile report and health needs analyses, and establishing mechanisms for stakeholder feedback; and

PN1118

implementing quality control,

PN1119

(ii) within a delegated model of care, undertake clinical care duties which may include:

PN1120

taking blood;

PN1121

child and adult health checks;

PN1122

immunisations;

PN1123

supervision of other health workers and health practitioners; and safety measures and procedures,

PN1124

(iii) undertake community care duties that may include:

PN1125

networking with other agencies and create partnerships;

PN1126

developing at a policy level and implementing community development strategies;

PN1127

implementing health promotion strategies;

PN1128

representing their health service on national, state and regional level activities; and

PN1129

providing mechanisms for community to advocate for the rights and needs of community members and program needs.

PN1130

Similarly, the coordinator care is a classification for an Aboriginal and Torres Strait Islander health worker or health practitioner who is:

PN1131

expected to manage and coordinate at an advanced level in a specialised program or subprogram with broad direction and minimal supervision. The position will exercise accountability and responsibility for programs under their control, and for the quality standards of work produced.

PN1132

We set out in some detail the required skills and knowledge of the coordinator care. Again, these skills are based more at a management level, consistent with the qualifications and the subjects that I took the Commission to yesterday in the Diploma and Advanced Diploma for Management and for Advocacy. There's a similar level of skills and knowledge for the coordinator care:

PN1133

knowledge of culture and health needs;

PN1134

knowledge and understanding of policy guidelines and practice relevant to a specialised program area targeting Aboriginal and Torres Strait Islander people;

PN1135

kills to incorporate evidence-based in health care at the program level, and facilitate delivery of specialised programs to the community;

PN1136

ability to advocate;

PN1137

ability to work autonomously at a high level of theoretical and applied knowledge;

PN1138

high level communication and problem-solving skills with the ability to engage and negotiate with communities about program implementation and uptake;

PN1139

ability to work in a cross-cultural multidisciplinary environment delivering specific program care;

PN1140

ability to facilitate workshops and transfer knowledge of best practice in a specialist field to primary healthcare workers;

PN1141

demonstrated ability to develop and maintain current knowledge in their program area; and

PN1142

have Aboriginal and/or Torres Strait Islander knowledge and cultural skills level 3.

PN1143

Then there is a range of activities that a coordinator care would undertake:

PN1144

(i) undertake program management duties including:

PN1145

developing operational program plans;

PN1146

identifying performance indicators for health programs;

PN1147

monitoring health programs;

PN1148

establishing evaluation processes for health programs;

PN1149

managing resources for the delivery of a health care program;

PN1150

producing community profile report and health needs analyses, and establishing mechanisms for stakeholder feedback;

PN1151

implementing quality control;

PN1152

child and adult health checks;

PN1153

supervision of health workers and health practitioners; and

PN1154

safety measures and procedures,

PN1155

(ii) undertake community care duties that may include:

PN1156

networking with other agencies;

PN1157

developing at a policy level and implementing community development strategies;

PN1158

implementing health promotion strategies;

PN1159

representing their health service on national, state and regional level activities; and

PN1160

providing mechanisms for community to advocate for the rights and needs of community members and program needs.

PN1161

Turning over the page, I have just noticed this is one of the typos in the draft determination, where it says, "By deleting schedule C and inserting schedule C", that should be, "By deleting schedule B" and that is one change that we would have to make in order for that to make sense. In fact, I'm told it's "B.2 to B.4" is what that should say instead of, "By deleting schedule C."

PN1162

This new grade and this type of senior function and level of responsibility for Aboriginal and Torres Strait Islander health workers and health practitioners is not currently recognised or available under the award. Adding a grade 6 is consistent with providing a career structure for health practitioners and health workers who have completed either a Diploma of Aboriginal and Torres Strait Islander Primary Healthcare or an Advanced Diploma of Primary Healthcare and who have the skills and who have the academic skills and have studied to occupy managerial professions.

PN1163

Creating this role would allow those professionals to have greater opportunity for recognition where they are required to support and manage health workers and health practitioners and in particular in relation to the delivery of specialised programs and subprograms. It may also lead to more health workers and health practitioners being considered in the management roles in small, remote community clinics, creating more sustainable employment opportunities.

PN1164

We heard from Associate Professor Lovett that progression of the career with the requisite grading and salary will contribute in large part to increased recruitment and retention and creating a grade 6 classification is likely to result in the development of senior management roles for health workers and health practitioners, incentivising those professionals to make a long-term career out of their occupation.

PN1165

The letter from NACCHO of exhibit C refers to their support for such a position as appropriate and as a measure that will capture people already performing that work and where an actual position exists or is specifically created.

PN1166

I note yesterday the questions that you, Deputy President, asked the experts about this role and whether or not it will lead to, you know, as a matter of practicality, whether changing the award will definitely generate these positions.

PN1167

In my submission, the evidence is that it's likely to, but, in any event, it's facilitative. The worst case scenario is that inserting this new classification structure is facilitative, it may be that I could come back here in two years with much stronger evidence because of the increasing recognition of this profession, the increasing importance that the Commonwealth Government is putting on allowing career structure. There is now a national scope of practice that is being developed and it is clear more than ever that Aboriginal health needs to be in Aboriginal hands, and to have this structure in place allows, as a minimum, an opportunity for recognition of this important profession, of the people working within this important profession, and having increased career recognition is one of the barriers to recruitment and retention in a workforce that is currently not keeping up with Aboriginal and Torres Strait Islander population growth.

PN1168

I hope that that assists. In NATSIHWA's submission, this grade meets the objectives of the modern award and the minimum wage and for precisely the same section 134 factors as the other changes that are sought in terms of promoting social inclusion and in terms of creating a career structure to incentivise the retention of health workers leading to better outcomes for Aboriginal and Torres Strait Islander people and consequently a decrease in cost to the Commonwealth because of the improved outcomes for Aboriginal and Torres Strait Islander health people having access to Aboriginal and Torres Strait Islander health workers and health practitioners.

PN1169

That is supported by the expert evidence. The Commission heard from Ms Wright and from Associate Professor Lovett in their oral evidence yesterday, but at page 205 of exhibit 1 behind tab 5, Ms Wright, at paragraphs 38 to 39, sets out in writing:

PN1170

Health workers and health practitioners form a professional group that brings its own set of expertise and skills. Many in the profession don't want it to be seen as a stepping stone. It is important that strategies to increase participation of Aboriginal and/or Torres Strait Islander people in the full range of health professions and avoid treating Aboriginal and Torres Strait Islander health work as only a feeder system into careers of doctors and nurses.

PN1171

A grade 6 would support Aboriginal and/or Torres Strait Islander health workers in management roles within their profession. Often Aboriginal and/or Torres Strait Islander health workers who are at the highest current level can leave the profession for other roles and/or feel undervalued/under utilised.

PN1172

Likewise, Associate Professor Lovett - I will just quote his evidence. It is in volume 2 of exhibit 1, tab 6. He says, at page 398, in answer to question 8:

PN1173

Would a grade 6 classification increase recruitment and retention?

PN1174

He says:

PN1175

The data and my own experience would indicate yes. Professionalism of a career with the requisite grading and salary will contribute a large part to increased recruitment and retention.

PN1176

Finally:

PN1177

creating a grade 6 classification is likely to result in development of senior managerial roles for health workers, incentivising those professionals to make a long-term career out of their occupation. This will create greater opportunity for Aboriginal and/or Torres Strait Islander people to manage the health outcomes for their communities.

PN1178

In my submission, that is an important public policy factor that the Commission may also consider in determining whether or not, assuming the Commission determines that there is a work value case to be made, that NATSIHWA has satisfied the section 134 considerations.

PN1179

I would like next to just deal with AFEI's written submissions on their objections as to the grade 6. I am a bit sick of aide memoires, but I have another short aide memoire just to do a comparison of the social and community services level 8 with a senior health practitioner and coordinator care in the proposed grade 6.

PN1180

Before I come to that, I should probably just take one step backwards, which is that before we get to pay rates, NATSIHWA's submission is that it is of primary importance that grade 6 is included and, if that is accepted, it becomes necessary to include appropriate rates. Rates must be attached to grade 6 that recognise the seniority of the role, being one that is senior within an organisation and a role that broadly aligns with the description of the seniority of workers at grade 8 of the social and community services stream of the Social, Community, Home Care and Disability Services Industry Award 2010.

PN1181

Importantly, those rates, although taken notionally from grade 8 of the SACS stream of the SCHADS Award, are not the rates paid to grade 8 SACS workers, who also receive close to a 45 per cent additional payment which is close to being fully phased in following the making of the Equal Remuneration Order in June 2012.

PN1182

To the extent that it is put against us that including grade 8 SACS rates comparable with the administration grade 8 - I apologise, I am just getting ahead of myself. To the extent that it is put against us by AFEI that including the grade 8 SACS rate as comparable with the administration grade 8 classification in this current award, which specifies that grade 8 will be the CEO of an Aboriginal community controlled health service, it is not inherently inconsistent that NATSIHWA ask for those rates to be included in its primary submissions. These are floor rates for senior roles within community controlled health services and within private practice.

PN1183

It is foreseeable that a new grade 6 health worker or health practitioner reports to a CEO with an Aboriginal community controlled health service. The proposed rates don't prevent that occurring and, in our submission, there is no inherent inconsistency, but the proposed rates do ensure that there's an appropriate floor for workers in those roles in private practice. Part of this case is about the recognition of this workforce as a profession and incentivising people to stay and grow their skills.

PN1184

Turning now to the aide memoire, if one analyses the roles of the social and community services employee level 8 and compares them to the proposed grade 6, one can see that the roles and responsibilities are equivalent and comparable. So, with the social and community services employee level 8, that employee is subject to broad direction from senior officers and will exercise managerial responsibility for the organisation's relevant activity, or they may operate as a senior specialist providing multifunctional advice, and then will be subject to broad direction from management. In addition, employees may operate as a senior specialist:

PN1185

General features of this level require the employee's involvement in the initiation and formulation of extensive projects or programs -

PN1186

which is very similar or the same as the senior health practitioner and coordinator care:

PN1187

Additional features include providing financial, specialised, technical, professional or administrative advice on policy matters and/or about external organisations such as government policy.

PN1188

In addition:

PN1189

Employees are required to develop and implement techniques, practices and procedures in all facets of the work area.

PN1190

They need:

PN1191

a high level of proficiency in the application of theoretical approaches in the search for optimal solutions to new problems, which may be outside of the original field of specialisation. Positions at this level will demand responsibility for decision-making within the constraints of organisational policy and require the employees to provide advice and support to all facets of the organisation.

PN1192

Employees will have significant impact upon policies and programs and will be required to provide initiative and have the ability to formulate, implement, monitor and evaluate projects and programs. Positions at this level may be identified by the significant independence of action within the constraints of organisational policy.

PN1193

In my submission, those roles and responsibilities are equivalent to the roles and responsibilities that I took the Commission through in going through the draft determination for the proposed grade six.

PN1194

The health practitioner and the co-ordinator care are both senior roles. They're both responsible for the implementation, the co-ordination of management and for the evaluation of specialist programs, in this case being health programs, and service delivery and one or more specialised programs or sub-programs. Again, they're undertaking a management function and they may report to the board of directors, board of management or be responsible for the administration of a health service.

PN1195

They're working at advanced level with broad direction and minimal supervision and they're exercising accountability and responsibility for the health programs that are developed. Same roles and responsibility for the co‑ordinator care. Working at advanced level, undertaking a management function, managing and co-ordinating at advance level in a specialised program with minimal supervision. In the written submissions at - - -

PN1196

DEPUTY PRESIDENT MASSON: Ms Steele, you may be going to address us on this so at paragraph 124 you refer to the equivalency of characteristics and responsibilities and it would seem that the aide memoire you've just provided deals with that.

PN1197

MS STEELE: Yes.

PN1198

DEPUTY PRESIDENT MASSON: It also refers to equivalency of prerequisites. Are you going to address us on that?

PN1199

MS STEELE: Yes, I can. Deputy President, would you mind assisting me by telling me which page you're looking at so I can just - - -

PN1200

DEPUTY PRESIDENT MASSON: I'm looking at, in your submission, at paragraph 124 so it's page 104.

PN1201

MS STEELE: 124. Thank you.

PN1202

DEPUTY PRESIDENT MASSON: It's in the context of their remuneration alignment for grade eight of the SCHADS award.

PN1203

MS STEELE: Yes. It may be more convenient - that's just not at the top of my mind. Would it be convenient, Deputy President, for me to deal with that at 2 o'clock as the first thing that I deal with?

PN1204

DEPUTY PRESIDENT MASSON: Subject to the Deputy President, yes, Ms Steele.

PN1205

MS STEELE: Thank you, I appreciate that. I do have the answer but I just - it would be more convenient if I could just go back and find the page references so I could ‑ ‑ ‑

PN1206

DEPUTY PRESIDENT MASSON: Thank you.

PN1207

MS STEELE: - - - take you to that effectively. Subject to that last point, which I'll come back to, I now propose to move onto the question of allowances. I'd like firstly to deal with AFEI's submission. You'll note - the Commission will have seen from the written submissions that NATSIHWA, based upon the conciliation process, divided the allowances into allowances which were agreed and not agreed. In receiving AFEI's submissions on Monday, AFEI submits that, or notes our submission that they are agreed allowances and then at paragraph 1.24 AFEI refers to its earlier submissions dated 24 April 2017 and reiterates its concerns as to whether some of the proposed allowance would be appropriately transposed directly from one award to another such as the interpreting allowance and skills based medication administration allowance and says that submissions by NACCHO in the award modernisation process identifies the unique nature of the Aboriginal Community Controlled Health Services being a model of culturally appropriate care and clarifies that a care provided by an aboriginal community controlled health service can involve interpreting services and the provision of medication.

PN1208

I'd like to just upfront address this submission that AFEI didn't agree to the allowances. In their - it is correct that in their submissions dated 24 April 2017 AFEI indicated that they did not support the introduction of the allowances sought but the consultation process then occurred and on 19 July 2017 NATSIHWA sent a summary table to Cirkovic C outlining the parties' respective positions following the conciliation process and I can hand that up, and so this was sent on 19 July and it's a summary of the parties' respective positions during the conciliation.

PN1209

The Commission will see that the last column sets out AFEI's submission and that in respect of the damaged clothing allowance, which is item eight on page 2, the position is put as do not oppose. In relation to item nine, AFEI's position is put as do not oppose. In respect of item 10, the proposed telephone allowance, AFEI's position is put as do not oppose and in relation to the proposed nauseous work allowance, again AFEI's position is recorded as do not oppose and during the report back on 19 July, Cirkovic C asked whether the position on items one to 15 were as recorded in the attached document and then proceeded to deal with the HSU's claims.

PN1210

AFEI were present and they did not object at that stage. I have a copy of the transcript if that's of interest to ‑ actually, I don't have a copy. I thought I had a copy of the transcript, I can get a copy of the transcript, but there is transcript to confirm that. The Full Bench then elevated AFEI's non-opposition to agreement in its decision four yearly review of modern awards at (2018) FWCFB 4175 and that is the basis upon which NATSIHWA put its submissions that these allowances were agreed because the last time that AFEI were before the Commission they didn't oppose them but in their written submissions they now seek to retract to a prior position to say that the allowances were not agreed and - - -

PN1211

DEPUTY PRESIDENT GOSTENCNIK: Well, I don't read their submissions as doing that. I read their submissions in relation to opposition as being confined to - I know they use words such as interpreting and the medication allowances but the document that you've just handed up indicates that they do oppose the medication allowance which is consistent with their submissions so perhaps poorly expressed but it may well be that all they're saying is that they're reiterating their position in their 24 April 2017 submission in respect of those allowances which they continue to oppose.

PN1212

MS STEELE: Yes. Well, if that's the way the Commission reads it - - -

PN1213

DEPUTY PRESIDENT GOSTENCNIK: Well, we can certainly clarify that with them. It's a pity they're not here, but we can send them a note to that effect.

PN1214

MS STEELE: Yes. I mean it could be read the alternative way because - - -

PN1215

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN1216

MS STEELE: Yes, and I just wanted to clarify because I signed those submissions saying that they agreed and I just wanted to clarify the basis upon which I was of the understanding that those allowances were agreed and perhaps, as you say, perhaps you understand it more correctly than I did, Deputy President - - -

PN1217

DEPUTY PRESIDENT GOSTENCNIK: Well, for example - - -

PN1218

MS STEELE: - - - perhaps they still have the same position but it just wasn't clear and I didn't want the Commission to think that I'd - - -

PN1219

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN1220

MS STEELE: - - - taken a leniency.

PN1221

DEPUTY PRESIDENT GOSTENCNIK: Yes, so for example, item seven, which is the interpreting allowance, they're recorded as opposing.

PN1222

MS STEELE: Yes.

PN1223

DEPUTY PRESIDENT GOSTENCNIK: The heat allowance, they're recorded as opposing.

PN1224

MS STEELE: Yes.

PN1225

DEPUTY PRESIDENT GOSTENCNIK: The isolation allowance and so forth, so we can clarify this with them but I take their submission to be one as - so much of the 24 April 2017 submissions as deal with the allowances that they continue to oppose, they continue to rely on those submissions, yes.

PN1226

MS STEELE: Yes, yes. Well, I'm content with that. I just wasn't certain if they were retracting their prior position. In the aide memoire at page 18, section D allowances - sorry, I have yet another aide memoire. This is a summary of all of the evidence references for all of the allowances and for all of the ceremonial leave. For the sake of brevity, I intend, with respect to some of the allowance there's extensive evidence with 20 different statements, I intend to take the Commission only to the main evidentiary references but if the Commission - I wish to set out where the full totality of the evidence is on each of these allowances in case the Commission wishes to see that.

PN1227

The case on allowance, starting from first principles, section 139 of the Act defines the terms that may be included in modern awards and they include allowances, including for any of the following such as expenses incurred in the course of employment, responsibilities or skills that are not taken into account and disabilities associated with the performance of particular tasks of work and particular conditions or locations. NATSIHWA's submissions in respect of all of these allowances is that they form part of a fair and minimum safety net and achieve the modern award's objective taking into account the same factors for all of the other amendments sought, the need to promote social inclusion, to promote modern flexible work practice, the likely impact of the modern award on business, including on productivity, employment cost and regularity burden and the need to ensure a simple, easy to understand, stable and sustainable modern award system.

PN1228

Again, I ask the Commission to note that NACCHO has not made - is supportive of the introduction of these allowances, being the main employer of these health workers. I have sought, with some difficulty, to get to the bottom of how the allowances that are in the current award, and there are some allowances in the current award and perhaps might be helpful just to look at those, as to how they found their way into the award as part of the award modernisation process.

PN1229

The allowances that are currently in the award, which is behind tab one, are limited. They're on page 22. There's a bilingual qualification allowance, higher duties allowance, clothing allowance, on-call and recall allowance, travelling, transport and fares, meal allowance, adjustment of expense related allowances. I've sought to go back through the history to try and understand where these allowances came from and what I've been able to determine is that - sorry, I'll just be a second.

PN1230

It's in volume five. Behind tab 88 of exhibit 1 at page 1753 are NACCHO's original submissions leading to the formation of the current award and at page 1762 - - -

PN1231

DEPUTY PRESIDENT GOSTENCNIK: (Indistinct)

PN1232

MS STEELE: It's volume five.

PN1233

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN1234

MS STEELE: Tab 88.

PN1235

DEPUTY PRESIDENT GOSTENCNIK: I'll get there. Yes.

PN1236

MS STEELE: At page 1762, so as I mentioned previously, the main proponent driving the current modern award was NACCHO and it lists their submission from 16 February 2009 and they say basically what they wanted was an industry award for all occupations and then in the alternative they wanted an updated and modernised or an Aboriginal And Torres Strait Health Service Award 2002. I've had my very helpful team look at that award and the allowances don't come from that award, so then in the development of the award, the next relevant document is a decision from 3 April 2009 and that's (2009) AIRCFB 345 which is behind tab 89 and relevantly at page 1796 and this was, again, in the history that NACCHO was seeking a separate comprehensive modern award for aboriginal and Torres Strait Islander community and controlled health organisations.

PN1237

This is not the first occasion on which we've been asked to make specific provision. Then they refer to the Chamber of Commerce of the Northern Territory's submissions and they appoint, at 194, a commissioner to go out and investigate the matters that are raised by the Chamber of Commerce of Northern Territory and NACCHO and other similar matters and Rafaella C actually goes out to visit these community controlled health services, I think about three of them, as part of making a decision as to whether or not to create a separate award for the community controlled health services and then the next relevant, and I've taken - the next relevant decision is the decision behind tab 93, the award modernisation statement Full Bench, (2000) AIRCFB 865 25 September 2009 and at page 123 the Commission deals with indigenous organisations and services and I've taken you already to 125, being a critical paragraph that the - where the Commission decides that the operation of the Aboriginal and Community Controlled Health Services should be regulated by a separate modern award principally because the health services are delivered in a culturally appropriate way that's sufficiently different to justify a separate award and that the difference is not only in the way the services are established but in the way the employees of the services operate and where they accept that the health worker is critical and that no equivalent health care worker operates in what we might describe as mainstream services.

PN1238

Then they say that they've largely adopted the draft provided by NACCHO, which I haven't been able to dig up. They declined to include a proposed clause of aboriginal self‑determination, which was one of the principal things that NACCHO was seeking as part of its award modernisation process, and then they say that they are including rates and classifications from the Health Services Union of Australia but that that's an interim arrangement pending further consideration and that NACCHO proposes consulting with unions to develop agreed classifications, structures and rates and so there's obviously then there was a process of consultation that took place between NACCHO and the other interested parties at that time, and then the next relevant decision I was able to find is behind tab 94, decision (2009) AIRCFB 945 and page 1980.

PN1239

By this stage, obviously, you'll see from paragraph 99 that interested parties have put forward allowances. A number of matters arose. We were asked to define certain provisions in the bilingual qualification allowance and we've done so. The ACTU sought a provision for payment of meal allowances, we agree. We've decided to include the relevant provision. LHNU asked us to include an allowance, that goes to recruitment. In the absence of any more information we don't consider that this should be regulated by award. It appears that they were the only allowances that were put forward and that the allowances that were put forward by the relevant parties at the time were accepted in full by the Commission apart from one allowance for which there wasn't any information or evidence at the time.

PN1240

At that time in 2009 when parties were putting forward allowances and considering what might be appropriate allowances for health workers and health professionals, there was no representation by any health workers or health professionals at the time of the award modernisation. The award was basically the - conceived by NACCHO, by the employer, and the health workers and health practitioners did not have a voice. It was at the beginning of the Close the Gap policy the Commonwealth government - NATSIHWA was either in its infancy or hadn't been formed at the time of 2009 and there was no - the Commission did not have any cause at that time to consider, based on our research, any of the allowances that are now sought to be put forward by NATSIHWA on the basis of evidence of the actual conditions and - based on the actual conditions of their employment and based on a comparison of similar awards - sorry, of similar allowances in other awards.

PN1241

In other words, there are other awards with - a number of other awards where similar allowances are included and in NATSIHWA's submission, there doesn't seem to be any reason why, if health workers and health practitioners are affected by those same conditions, that they shouldn't have the same benefits as other workers who are covered by other awards merely because at the time that the award was formed, there wasn't any voice by health workers and health practitioners to put forward those allowances and that's NATSIHWA's general submission on allowances.

PN1242

That as an overarching submission, and it won't take too long to go through the allowances because the way that I've summarised the proposed allowances and the evidence is basically to ‑ you will see in the aide memoire on page 18, and this is also covered in detail in NATSIHWA's written submissions, but, for instance, the telephone allowance, which is covered from paragraphs 137 and onwards in the written submissions, you'll see in the aide memoire in the second column NATSIHWA's set out that the allowance proposed is 'Where the employer requires an employee to install and/or maintain a telephone for the purposes of being on-call, the employer will refund the installation costs and the subsequent rental charges on production of receipted accounts. This clause will not apply where the employer provides the employee with a mobile telephone for the purpose of being on-call'.

PN1243

The source for the proposed amendment is the HPSS Award clause 18.11 and that's also set out in the aide memoire. There were some amendments made to NATSIHWA's proposed amendment. They were agreed by all parties and those amendments came about as a result of the conciliation process. You will see in the third column that there are a number of other modern awards with similar allowances and NATSIHWA has listed each of those awards and the similar clause in the third column. NATSIHWA's also, within exhibit 1, provided the Commission with a copy of each of those - an extract of each of those allowances so that if the Commission wishes to check and verify for themselves that that allowance is in each of those awards, that it's easy to do that. They're all basically within exhibit 1.

PN1244

With respect to the telephone allowance, there are four witnesses who give evidence that they are required to be on-call and they are all in volume two of exhibit 1, and so the first is Karl Briscoe and he is behind tab seven at page 623, paragraph 209 'In my experience health workers or health practitioners working in more remote communities are more likely to be required on-call. For example, I'm aware that some remote clinics in Aurukun require aboriginal and Torres Strait Islander health workers and aboriginal and Torres Strait Islander health practitioners to be on-call to perform their duties, and require those workers to keep a telephone for the purpose of being on call'.

PN1245

Likewise, Ms Charlene Badham, who we've been to before, at page 641, she's behind tab 11, and she gives evidence at paragraph 24 that in her current role, she's 'required to have a telephone for being on call. My employer does not provide me with a mobile phone for this purpose. When the immunisation fridge goes down for any amount of time, I am called in to make sure that the vaccines are kept at a constant temperature'. Zibeon Fielding, health worker, and he is at tab 41, and he says at paragraph 24 that he is frequently on call in his role as an aboriginal health practitioner and we haven't heard from him but he's employed by the Nganampa Health Council as a health practitioner.

PN1246

He's 25 years old, he's got a certificate IV, he's registered, he's been employed since around November 2018. Before that he was an aboriginal health worker and he's passionate about indigenous health and he's undertaken various charitable events in order to raise awareness and funds to Close the Gap including running the New York marathon. He's one of the few young indigenous males who we were able to obtain a statement from. He says that he is frequently on-call and that his health council 'operates as a quasi‑emergency department too' and that he's 'called out to fatals and serious emergencies in the night' and 'There are frequently calls out in the night time' and finally, and for some reason we - - -

PN1247

COMMISSIONER BISSETT: Ms Steele, does any of this evidence go to whether the employer has required the employee to install the telephone? Because it seems to me that the clause is only enlivened if you don't already have a phone and the employer says 'Well, Ms Steele, you need to be on‑call. Install the telephone'.

PN1248

MS STEELE: Well, it's install and/or maintain, so yes but it's - - -

PN1249

COMMISSIONER BISSETT: Yes. No, no. I have, on its face, no substantial difficulty with the clause. I guess my issue is more how it's applied.

PN1250

MS STEELE: Well - - -

PN1251

COMMISSIONER BISSETT: Because it's different to having ‑ it's different to the on-call allowance that you might be entitled to because you are on-call. This is about the telephone.

PN1252

MS STEELE: Yes. Well that, I think, Ms Badham, at 24, she says she says she's required to have a telephone so there is evidence that the employer requires her to have a telephone and as to the allowances, as I read this, is to either to install or to maintain it, it's both, so if it's already installed but you're required to maintain it because you're on-call to go out to fatalities or to make sure that the immunisations in the fridge are right, then the - - -

PN1253

COMMISSIONER BISSETT: I don't have an issue with the purpose of it. It's just the use of that phrase the requirement of the employer to install, so - - -

PN1254

MS STEELE: The last piece of - right. I'm now going to move onto the nauseous work allowance and I mean I guess I'm not going to repeat for - I'm going to take the Commission, understand it effectively, that the submission is that these submissions haven't been previously made and that at the time of the award there wasn't any opportunity for health workers and health practitioners to set out why they might be entitled to allowances that other employees under other modern awards are entitled to because there wasn't any evidence of the role that they performed or anyone to put those submissions and if I can just take it, I won't repeat that, and I'll just work through each allowance in the same fashion.

PN1255

The next one is also agreed, agreed between the interested parties, agreed with employers. It is the nauseous work allowance. It is set out - the amendment is set out under the proposed amendment and you will see when you compare 15.9 of the nauseous work allowance to clause 18.9 of the HPSS Award that the allowances that is effectively lifted directly from the HPSS Award, there are other modern awards with similar allowances and those are the Aged Care Award 2010 clause 15.5 and also the Australia Post Enterprise Award 2015 clause 26.14.

PN1256

There is evidence that aboriginal and health workers and aboriginal health practitioners do undertake work in nauseous conditions. In the evidence references, the Commission will see that we've identified 11 references but I propose to take the Commission to items 10 and 12 and 13 and 14 because they, in my submission, make the point that this is a factor and a condition that impacts upon health workers and health practitioners. At tab 29, this is the statement of Ms Zaro, and at paragraph 25 she says she's that 'Required to perform nauseous work by assisting female clients with showering and handling their clothes for either washing or throwing out, cleaning up after clients who have vomited everywhere, and cleaning faeces from the public toilet at the clinic' and then tab, not in any order I'm sorry, but tab 13, Daniel Niddrie, and I don't think we've heard from him, he's employed by the Wuchopperen Health Service in the position of aboriginal health worker.

PN1257

He's 44, identifies as aboriginal, has a certificate IV in Aboriginal and Torres Strait Islander Primary Health Care, he's registered to practice as a health practitioner and he says in paragraph 28 that he sometimes performs nauseous work in the course of performing his duties, including 'chronic wound care dressing, diabetic foot ulcers, maggot infested ulcers, cleaning shoes which have got discharge from foot wounds and having mental health patients soil their pants and the bed they were sitting on, which I then had to clean up'. Then Lorraine Gilbert, tab 28.

PN1258

She is employed by the Central Australian Aboriginal Congress in the position of aboriginal health practitioner, registered graduate. She's 58 years old, she's got a certificate IV, identifies as aboriginal and has been currently employed as a health practitioner. She's had a number of roles in aged care and the pharmacy industries and she says at paragraph 21 that 'I have also performed nauseous work in my performance of duties. For example, one poor fellow with alcohol issues came in to see me. I took the dressing off and he had maggots in his wound. Other examples of nauseous work includes dealing with soiled dressings and infected wounds' and then finally I'd like to take the Commission to tab 35 to Sharon Wallace and Sharon Wallace is employed by the Aboriginal Medical Services Alliance Northern Territory in the position of workforce policy officer.

PN1259

She's 45 years old, she's got a certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care Practice and she's also got a - she's got a diploma, she's got an advanced diploma, she's got a masters in public health, and she says at 20 'I've been peed on and spewed on by the babies because my role as an aboriginal and Torres Strait Islander health practitioner who is hands on. Based on my observation, if an aboriginal and Torres Strait Islander health practitioner goes to the scene of a motor vehicle accident, the aboriginal and Torres Strait Islander health practitioner wears gloves but even so they will get blood on them. When there is violence in the community' - I'm sorry, that's a different point and then frequently - 24, 'I have performed nauseous work such as dealing with faeces, urine, past wound care, swabs, dealing with blood and dressings'. There are another nine health workers who give evidence to similar effect but - - -

PN1260

DEPUTY PRESIDENT GOSTENCNIK: This is the very kind of evidence one needs just before lunch.

PN1261

MS STEELE: It is a bit distasteful, isn't it.

PN1262

DEPUTY PRESIDENT MASSON: Just on that, Ms Steele, now obviously it's extremely distressing for health workers and practitioners to be dealing with that sort of thing but I just wonder in terms of the way the clause is currently drafted how the employer would ascertain whether the particular work fell into the category of being unusually dirty or offensive having regard to the duty normally performed. I mean obviously if there is soiled bed linen or soiled clothing that would be fairly clear, or cleaning up a public toilet which had been soiled, but I just wonder where a core requirement of the role would appear to be wound management, for example - - -

PN1263

MS STEELE: Yes, but not every wound's got maggots in it.

PN1264

DEPUTY PRESIDENT MASSON: No, okay, all right.

PN1265

MS STEELE: Yes. I may have a few more points, Deputy President, after lunch from my client but - - -

PN1266

DEPUTY PRESIDENT MASSON: Right. I'm not trying to diminish the circumstances. I'm just wondering how the clause - - -

PN1267

MS STEELE: No, I appreciate it. It's a very helpful and insightful comment, if I may say so, that I'd like to just consider - - -

PN1268

DEPUTY PRESIDENT MASSON: Thank you.

PN1269

MS STEELE: - - - I might consider and speak with my clients over lunch about that particular - - -

PN1270

DEPUTY PRESIDENT MASSON: Well, not necessarily - not forcing you to have that discussion over lunch but in the context - it's - - -

PN1271

MS STEELE: It's not the best discussion to have over lunch but - - -

PN1272

DEPUTY PRESIDENT MASSON: No, it is 't.

PN1273

MS STEELE: - - - I think that you raise an important point that I'd like to think about and deal with it at 2 o'clock.

PN1274

DEPUTY PRESIDENT MASSON: Thank you.

PN1275

COMMISSIONER BISSETT: Sorry, Ms Steele, just while we've interrupted you, there's no equivalent allowance in the nurses award?

PN1276

MS STEELE: Not that I was able to - - -

PN1277

DEPUTY PRESIDENT GOSTENCNIK: Well, my recollection, and this goes back to my history with that award, that to the extent that enrolled nurses are now covered by that award, and I think there still might be a nauseous allowance, but they certainly received a nauseous allowance when they were under a different award and may have lost that in the course of coming over and being part of a general (indistinct) - - -

PN1278

COMMISSIONER BISSETT: May be been rolled into their rates.

PN1279

DEPUTY PRESIDENT GOSTENCNIK: They might have been rolled into their rates but there was a certainly a history of that allowance in nursing, at least in relation to the enrolled nursing component.

PN1280

MS STEELE: Yes.

PN1281

COMMISSIONER BISSETT: It's not a criticism. It's just a query, yes.

PN1282

MS STEELE: Yes. Well - - -

PN1283

DEPUTY PRESIDENT GOSTENCNIK: I think you'll find though that the way in which the nursing profession has developed, they just frequently deal with nauseous work and nursing assistants tend more to engage in that sort of work and you'll find that that allowance will exist for that class of work because of the professional development of the nursing profession over the last 20 years.

PN1284

MS STEELE: Yes. I think that that's - I mean, that obviously explains why when, in our research, we were unable to find that in any current award.

PN1285

DEPUTY PRESIDENT GOSTENCNIK: It might be described as a non-nursing duty.

PN1286

MS STEELE: Yes. The next - I was just getting to the end of the aide memoire of the agreed allowances and wondering why I'd only covered three and not four and that's because it's in a different order to the table but let's deal with the blood check allowance next because that's quick and that's at page 21. Again, this proposed amendment agreed by all interested parties, agreed by NACCHO, lifted effectively directly from the HPSS Award and Mr Briscoe, at paragraph 208 of his affidavit behind tab seven, gives evidence that, at page 623, that based on his experience health workers or health practitioners 'are exposed to the risk of radiation hazards when assisting clients who have undertaken chemotherapy or radiation therapy and if an employee experiences this risk, they may have to incur the expense of obtaining a blood check'.

PN1287

Going backwards in the aide memoire to the damaged clothing allowance, the proposed - again, an agreed allowance, agreed between all interested parties, agreed with by NACCHO. The proposed amendment is set out in the draft determination at 15.5 'Where an employee, in the course of their employment, suffers any damage to or soiling of clothing or other personal effects, the employer will be liable for the replacement, repair or cleaning of such clothing or personal effects provided where practicable immediate notification is given to the employer of such damage or soiling as soon as possible. This clause will not apply where the damage or soiling is caused by the negligence of an employee'.

PN1288

There was some amendments made between the - that explain the differences between, the slight differences between, 18.4 and the damaged clothing allowance during the process of conciliation. We've done some research and we've set out in the far right column all of the modern awards that we've been able to locate with similar allowances and we have a fair amount of evidence on that. Starting first with Karl Briscoe, because we're already there, at paragraphs 206 to 207. He says that in his experience, sometimes in the course of performing their duties, health workers and health practitioners 'may suffer damage or dirtying of their clothing. For example, an alcohol, tobacco and other drugs worker in the community may dirty or damage their clothing while assisting an intoxicated client who has defecated him or herself, or has vomited over him or herself.

PN1289

Not all health workers and health practitioners experience damage or dirtying of their clothing in the course of performing their duties. For example, an health worker performing an educational function is less likely to suffer damage to their clothing than a health worker or health practitioner that is assisting an intoxicated client', and then if I can go next to Naomi Zaro at tab 24. No, it's not tab 24. Sorry, I'll just be a second. It's tab 29, paragraph 24, page 705. She says 'Sometimes I experience damage to my clothing in the course of my duties as a clinical educator aboriginal and Torres Strait Islander health practitioner. I have experienced a client excessively bleeding before, who needed to be taken to hospital because he was bleeding so much. I have also experienced damage through the manual handling of clients, such as when I am assisting them to stand, or when I am helping clients to shower that have soiled themselves'.

PN1290

I am now - the next reference, and I'm not going to all of the references in the table, I'm just selecting a few just to - yes, they're all of a similar nature. Page 714 which is tab 32 I'm told, and this is a statement from Richard Assan who is from Kalgoorlie and who is employed by Bega Garnbirringu Health Service in the position of a mobile clinic co-ordinator. He's 33 years old, he's got a certificate IV and he's currently employed by the Bega Garnbirringu Health Service in the position of mobile clinic co-ordinator and prior to his current role he worked as an aboriginal health practitioner in Queensland about three years ago.

PN1291

At paragraph 16, he gives evidence that he sometimes suffers damage to his clothes in the course of performing his duties, 'such as wound dressings. I sometimes get a lot of fluid and blood on my clothes. Although I wear a protective gown, that does not protect against damage to the bottom of my trousers and boots. Sometimes, I service disabled patients in the mobile clinic and I need to clean them up. After I do this, I usually throw out my clothes because they are spoilt', and then Daniel Niddrie and he is behind tab 13 and we've heard evidence from him previously.

PN1292

He says in paragraph 27 that he has sometimes had damage to his clothes in the course of performing his duties. 'For example, a patient vomited on me while they were having a seizure, and I have had babies vomit on me while I was weighing their mother, or babies and children vomit while I was screening them (that is, taking their story and doing their observations). I have also had blood stain on my clothes' and then I'm just going to go to two more evidentiary references and then it might be a convenient to break for lunch if that suits the Commission, and the next one is a statement of Sharon Wallace, and that's behind tab 35, and I refer the Commission to the statement previously.

PN1293

At page 725, she says at paragraphs 19 and 20, 'I have experienced damage and soiling to my clothing. I'm always using personal protective equipment. Sometimes I wear a mask or goggles. However, because health practitioners provide primary health care we're not always in the clinic. As a health practitioner, I could go into a home that could be infected with scabies and would need to throw my clothes out after. Aboriginal and Torres Strait Islander health practitioners go into the home not just to treat the child who got the scabies but to treat everyone in the home by washing sheets, helping them move mattresses, get dogs out and so on. Our role is environmental, holistic health care.

PN1294

I have been peed on and spewed on by babies because my role as an aboriginal and Torres Strait Islander health practitioner is hands on. Based on my observation, if a health practitioner goes to the scene a motor vehicle accident, the health practitioner wears gloves but even so they will get blood on them' and finally behind tab 21 the statement of Haysie Penola. She is from Fingal Head in New South Wales and she's 32 with a certificate IV - yes, I think we have looked at this before because she was previously working as a medical receptionist before she became a health practitioner.

PN1295

She says at page 676 at paragraph 20, 'I have experienced damage to my clothes while working as an aboriginal health practitioner. I have been urinated on whilst trying to assist in collection of a child's urine specimen. In addition, I have experienced ear discharge split while performing an ear syringe. This happens pretty often ‑ maybe bi-daily. I always have a change of clothes in the locker', and that concludes the evidence on that allowance. Is the Commission happy to break now, or?

PN1296

DEPUTY PRESIDENT GOSTENCNIK: Yes. Ms Steele, are you able ‑ I'm not going to hold you to this, are you likely to finish this afternoon?

PN1297

MS STEELE: I'm really aiming to.

PN1298

DEPUTY PRESIDENT GOSTENCNIK: Well - - -

PN1299

MS STEELE: Yes.

PN1300

DEPUTY PRESIDENT GOSTENCNIK: - - - we also need to hear from the Health Services Union and so that as things presently stand, it's probably unlikely that we're going to finish today unless we sit very late. Presumably that causes inconvenience to several people including flights presumably that you'll need to take.

PN1301

MS STEELE: Yes, well we - - -

PN1302

DEPUTY PRESIDENT GOSTENCNIK: I don't wish that to be an indication that I want you to hurry along, because I don't, so that if we need to find another day we'll find another day.

PN1303

MS STEELE: Yes, thank you.

PN1304

DEPUTY PRESIDENT GOSTENCNIK: You might just give consideration to that over the luncheon adjournment. Perhaps we can discuss it when we resume at 2 o'clock.

PN1305

MS STEELE: Yes. Thank you, I will do that.

PN1306

DEPUTY PRESIDENT GOSTENCNIK: All right, thank you. We'll adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.53 PM]

RESUMED [2.04 PM]

PN1307

DEPUTY PRESIDENT GOSTENCNIK: Ms Steele.

PN1308

MS STEELE: Dealing first with some of the matters that were raised by members of the Commission before lunch. Firstly, by the matters raised by you, Deputy President. Firstly, I'm comfortable that I will be able to finish today and I've had discussions with my friend at the HUS and we're confident that it should be able to be finished today.

PN1309

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Well, can I, in those circumstances raise this matter?

PN1310

MS STEELE: Yes.

PN1311

DEPUTY PRESIDENT GOSTENCNIK: One of the issues that is concerning us in relation to at least the expansion for the health worker classification so that it would apply to private sector individuals, is the absence of any voice really, in relation to private medical clinics which might engage such workers. As I indicated, I think yesterday, normally the Australian Medical Association speaks for doctors' clinics. They were, I suspect, for doctors who were employed in hospitals so they have a dual role.

PN1312

We just want to be satisfied that the AMA is aware of the proposal and if so, it be given an opportunity to put its members' views. So, whether you close today or not, it had been our intention to at least advise the AMA, if they are not already aware of these proceedings, of the fact that they have occurred and so much of the application is concerned with the expansion of the coverage, whether they wish to say anything about it. They may say nothing, in which case the point's moot.

PN1313

But we just don't want there to be any criticism later, in the event that we were minded to expand the coverage that the parties weren't properly aware of the proceedings. So, we will be advising the AMA and perhaps other interested parties about that.

PN1314

If they want to be heard, then that will necessitate a further hearing at some later stage. But if not, or they may be content to put in a written submission, in which case we'll give you, obviously, an opportunity to respond. But that's what we had intended to do.

PN1315

MS STEELE: Yes.

PN1316

DEPUTY PRESIDENT GOSTENCNIK: All right.

PN1317

MS STEELE: Thank you for alerting us to that.

PN1318

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN1319

MS STEELE: The second matter that you raised before lunch, Deputy President was NATSIHWA, of which I've got instructions, is the issue of service versus experience question, which you raised in respect of the new definition in grade 2. NATSIHWA's position is that it's proposed recognition of previous service and progression clause together with the wording of grade 2 satisfactory. If however, the Commission use it to change regarding the wording of grade 2 is necessary to avoid confusion, then obviously, we're in the Commission's hands.

PN1320

Deputy President Masson, you raised two questions prior to lunch that I'd appreciate the opportunity to deal with now. Firstly, you raised the issue of how employers may determine whether something is unusually NORSIA. The approach that NATSIHWA has taken is to - consistent with - is to adopt allowances consistently with other modern awards and in adopting that formulation in the knowledge that at some point in time, that the Commission has approved that wording as being sufficiently certain and that employers are able to interpret it in other industries, and in particular, in the HPSS Award.

PN1321

DEPUTY PRESIDENT GOSTENCNIK: And besides that, Deputy President Masson exposes his colleagues to NORSIA's work all the time when he prances around in his lycra outfit.

PN1322

DEPUTY PRESIDENT MASSON: Not since my obvious accident, I might add.

PN1323

DEPUTY PRESIDENT GOSTENCNIK: So, I'm putting my hand up for the allowance.

PN1324

DEPUTY PRESIDENT MASSON: He knows that making me laugh is painful, so I'm not going to thank him for that.

PN1325

MS STEELE: The second question that you raised, Deputy President Masson, is in respect of the qualifications for the grade 8, as compared to the qualifications for the - - -

PN1326

DEPUTY PRESIDENT MASSON: I think the word was the equivalency of - was it pre-requisite?

PN1327

MS STEELE: Well, pre-requisite.

PN1328

DEPUTY PRESIDENT MASSON: Whether that's experience or qualification.

PN1329

MS STEELE: Yes, exactly. And so the pre-requisites for the grade 8 are in volume 5 at 1383.

PN1330

DEPUTY PRESIDENT MASSON: What page was that, sorry?

PN1331

MS STEELE: 1383 - sorry, that can't be right. It's 13.8.3. It's page 1716 section B.8.3. The pre-requisites are some or all of the following. So, it's:

PN1332

Detailed knowledge of the policy, programs, guidelines, procedures and practices of the organisation and external bodies. Detailed knowledge of statutory requirements.

PN1333

Then, under pre-requisites, Deputy President, you will see that there's a range of pre-requisites including:

PN1334

Qualifications beyond those normally acquired through a degree course and experience in the field of specialist expertise, substantial post-graduate experience or less of formal qualifications and the acquisition of considerable skills and extensive and diverse experience relative to an equivalent standard or attained through previous appointments, service and/or study with a combination of experience, expertise and competence sufficient to perform the duties of the position.

PN1335

Whilst one can have a degree as one of the pre-requisites to a grade 8 in this position, one can also have less formal qualifications together with acquisition of considerable skills and/or experience.

PN1336

DEPUTY PRESIDENT MASSON: So you would rely on that?

PN1337

MS STEELE: Yes. Then finally, Commissioner Bissett, you asked about the issue of how with the contaminated clothing of how a person would know whether or not - or how an employer would be able to tell whether the clothing was contaminated or not. My instructions from my client is that it is understood, as a matter of practice in the industry that there are certain fluids which cleaning contractors won't touch. That it would therefore be readily - it would be relatively easy for an employer to distinguish between whether it would be something that a cleaning company would touch or would not be able to touch.

PN1338

COMMISSIONER BISSETT: Yes, I think that was a question of Deputy President Masson, but yes.

PN1339

MS STEELE: I apologise. The questions were coming thick and fast, so.

PN1340

COMMISSIONER BISSETT: Yes.

PN1341

MS STEELE: All right, so I now propose to just continue with the allowances and with the aide memoir. We've now moved into the territory of allowances to which there was objection by AFEI, although only on a broad level and not on any specific level, advancing specific submissions in respect of any of these individual allowances.

PN1342

The first one is the Medication Administration Allowance which is on page 21 of the aide memoir. I apologise Commissioners that the order of - the other aide memoir of the evidence references doesn't match up, so that the Medication Administration Allowance is on page 3. But effectively, the thrust of NATSIHWA's submission on this allowance is straight-forward.

PN1343

Firstly, we've already identified, in the evidence, the statutory provisions that show that in remote and isolated areas of Western Australia, Northern Territory and Queensland that health practitioners are now able to administer medication. Obviously, not all health workers can do it. Firstly, health workers can't do it, only health practitioners and then only those health practitioners where there is a specific statutory or legislative scheme to allow that to take place.

PN1344

The Commission will see on page 3; the reference is at 64-70 there are - NATSIHWA has seven witnesses who say that they administer medication. I might go to Mr Briscoe because - that's at 204 which you will find - that's in tab 2; I'll just read that out.

PN1345

COMMISSIONER BISSETT: Which tab?

PN1346

MS STEELE: Tab 7, volume 2. So effectively, it's the same - it's the evidence of NATSIHWA's principle submission that health practitioners only, not health workers generally, are only allowed to administer medication in certain states as regulated by state legislation and that given that the evidence shows that people are doing this. I don't propose to take you to the evidence of people saying I administer medication, and that therefore, because not everyone does it, that there should be an additional allowance for those health workers that do.

PN1347

Then moving to the next - - -

PN1348

DEPUTY PRESIDENT MASSON: Now before you move on.

PN1349

MS STEELE: Yes.

PN1350

DEPUTY PRESIDENT MASSON: Is it correct that only those practitioners that were in possession of a Cert IV and were at level V, would be able to administer?

PN1351

MS STEELE: Yes, that's correct.

PN1352

DEPUTY PRESIDENT MASSON: Now, if I can just take you back to the work value case arguments you pressed earlier today.

PN1353

MS STEELE: Yes.

PN1354

DEPUTY PRESIDENT MASSON: I'm going to crudely characterise it.

PN1355

MS STEELE: Yes.

PN1356

DEPUTY PRESIDENT MASSON: But my understanding is that you pressed the work value case on a number of grounds. Firstly, the registration requirements and maintenance - I'll call it crudely that.

PN1357

MS STEELE: Yes.

PN1358

DEPUTY PRESIDENT MASSON: Secondly, the additional competency building requirements, and then thirdly, the 500 hours clinical. Does that sort of summarise it's the combination of those elements - - -

PN1359

MS STEELE: Yes, and the additional duties of health practitioners generally, of a clinical nature.

PN1360

DEPUTY PRESIDENT MASSON: Yes, yes. But there were a number of elements that go to supporting the work value case. Now one of the elements that I referred to then was the changes in the Cert IV, the expansion of the competency requirements.

PN1361

MS STEELE: Yes.

PN1362

DEPUTY PRESIDENT MASSON: I think it went from 13 to 21. Now I note that one of the core skills that is required, and I may be reading it incorrectly, is the administration of medicines. That's one of the core skills that forms part of the Cert IV. Is that correct?

PN1363

MS STEELE: It's one of the courses. If I can just - can someone get me the Cert IV please? Yes, that is correct, Deputy President.

PN1364

DEPUTY PRESIDENT MASSON: Yes, so I'm just a little bit concerned that - I'm going to call this crudely, is there an element of double dipping here?

PN1365

MS STEELE: Yes.

PN1366

DEPUTY PRESIDENT MASSON: In that there is, in part, reliance placed on those additional skills formations to justify the work value to create the new level IV.

PN1367

MS STEELE: Yes.

PN1368

DEPUTY PRESIDENT MASSON: Then an additional allowance be paid to people actually utilising the skill where they can, or may be able to according to law.

PN1369

MS STEELE: Yes, well, I guess the only answer - well, the answer to that is that even though everyone studies it, not everyone does it.

PN1370

DEPUTY PRESIDENT MASSON: But is that any different to other qualifications? A tradesperson, for example, in ordering to secure their trade qualification may study a number of things, and only use a proportion of those skills, but may be called upon to perform a full range of duties as they may have received training?

PN1371

MS STEELE: Yes, well, the difference is that not everyone can do it. But I do understand the point.

PN1372

DEPUTY PRESIDENT MASSON: Not everyone can, or is required to?

PN1373

MS STEELE: Not everyone is required to do it. Not everyone is able to do it, because it depends upon - - -

PN1374

DEPUTY PRESIDENT MASSON: Well, if they receive training.

PN1375

MS STEELE: Well, I mean in the sense that unless they practice in remote areas in one of those states, they're not able to do it because there's no legislation that enables them to do it, irrespective of whether or not they're skilled.

PN1376

DEPUTY PRESIDENT MASSON: I understand that, but legislation limits who may be required or able to do it.

PN1377

MS STEELE: Yes.

PN1378

DEPUTY PRESIDENT MASSON: I'm just coming back to, people receive training. You're seeking that there be recognition of that increased in training, in part as part of the work value case.

PN1379

MS STEELE: Yes.

PN1380

DEPUTY PRESIDENT MASSON: And then are seeking an additional allowance be paid when they use the skill for which they've been trained.

PN1381

MS STEELE: Yes. No, I understand the point Deputy President. Sorry, excuse me. Well, the distinction is that the Aboriginal and Health practitioners who are required to do the training and the study, that course is a requirement for registration. Whereas, the practitioners in those remote areas in those three states who actually perform that work, they're actually, through performing that work, they are the ones who take on the risk of performing that work and performing it to appropriate skill levels under the requirements for registration. So therefore, there is that difference.

PN1382

DEPUTY PRESIDENT MASSON: Yes. Well, I understand the distinction that you're seeking to draw.

PN1383

MS STEELE: Yes.

PN1384

DEPUTY PRESIDENT MASSON: But I come back to the point you were making earlier about you were seeking to place some emphasis on the additional training and competency building to support the work value argument.

PN1385

MS STEELE: Yes.

PN1386

DEPUTY PRESIDENT MASSON: But you're also seeking who is the actual utilisation skill to justify an allowance.

PN1387

MS STEELE: Yes, well I understand and appreciate the point that you're making and that the submission is that there is a difference for the reason that I've articulated.

PN1388

DEPUTY PRESIDENT MASSON: All right.

PN1389

MS STEELE: The next allowance that I would like to deal with is the - - -

PN1390

DEPUTY PRESIDENT GOSTENCNIK: I suppose just to say that - make the point that the Deputy President is making. In the usual course of events where you have a skills allowance and this is a skills allowance, it's an allowance in relation to a skill that is utilised - the skill has been obtained after basic qualification. Here it seems that it is part of the basic qualification to operate at this level, that skill is imparted at that stage, not at a later stage.

PN1391

So, we're trying to understand why it would be justified to provide an allowance for a skill that is already inherent in the job. You can take it on board and perhaps provide us with a short notice if you like.

PN1392

MS STEELE: Yes perhaps, Deputy President, if I might be allowed to just take that question on notice and if I have something further to add in respect of that particular question, perhaps I could write a short page if there's anything further.

PN1393

DEPUTY PRESIDENT GOSTENCNIK: If we allow you seven days to putting a short notice if you wish.

PN1394

MS STEELE: Yes, that's assuming that I do wish to add anything.

PN1395

DEPUTY PRESIDENT GOSTENCNIK: Yes, if you wish.

PN1396

MS STEELE: Yes. The next allowance is the heat allowance. That's set out in the aide memoir on page 22 and in the table of evidence that the evidentiary references are set out on page 2. The Commission will see the proposed amendment is that:

PN1397

An employee who works in a place where the temperature raises to between 46 and 54 degrees Celsius must be paid an additional 3.2 per cent. The hourly stamped rate per hour or part thereof for work performed in the hot period with an additional four per cent of the hourly standard rate per hour or part thereof, where the temperature exceeds 54 degree Celsius.

PN1398

The source of NATSIHWA's provision is the Food and Beverage and Tobacco Manufacturing Act and we've set that out in the aide memoir. NATSIHWA has also set out or provided the Commission with the references and with the clauses in exhibit 1 of other modern awards with similar allowances and notably the HPSS Award includes a similar allowance.

PN1399

The evidence with respect to heat allowance is set out in - principally in Mr Briscoe's affidavit and also - and that's at tab 7, starting from 189. Effectively, Mr Briscoe provides in his exhibit at tab 74, which I'll go to. I think we should stick with the one folder before moving to the next folder, which shows a pictorial representation of the location of the Department of Health funded primary health care providers in 2016/17. This map demonstrates that a large number of the Department of Health funded primary health care providers were located in very remote areas of central northern and western Australia.

PN1400

NATSIHWA has been unable to locate a pictorial representation of the locations where all health workers and health practitioners work across Australia. As a result, the map referred to is the best pictorial representation that NATSIHWA has been able to locate, showing at least, where some health workers and health practitioners work.

PN1401

The Australian Government Bureau of Meteorology publishes maps of Australia showing the highest maximum temperature recorded in any given month and the mean maximum temperature recorded in any given month. I'll take you to that exhibit after I finish going through the statement, so we're not folder-hopping too much. Then, at page 193 - sorry, paragraph 193 the Bureau of Meteorology map show the monthly mean maximum temperature of Australia for each of the summer months since January 2010. Very few of the mean maximum maps contain dark brown areas representing 45 degrees and above, whereas far more of the highest maximum maps contain areas designated dark brown, 45 degrees and above.

PN1402

This indicates that although persons working in those designated areas do experience temperatures of 45 degrees Celsius and above, these temperatures are not experienced by all health workers and health practitioners working across the country. In these circumstances, work conditions require health workers and health practitioners to work between 46 degrees Celsius and 54 degrees Celsius are currently not accounted for in the standard wages under the award.

PN1403

If I could just take you to have a look at the maps - which volume are they in - which are in volume 3 of the exhibit 2 of Mr Briscoe's evidence. Then I'll take you to some evidence from individual health workers who work in those conditions. Page 1117, tab 74. Page 22. So, it's at page 1117 which is page 22 of that online services report. That's a pictorial representation of the location of where the community controlled health services are spread through states and territories and the Commission can see that there are primary health care providers located in remote areas of central north and western Australia.

PN1404

Then looking at the map which is behind tab 80, which is in volume 4. Now the map in tab 80, that shows the highest maximum temperature in Australia for each of the summer months since January 2010. Then at 81, there are maps showing the monthly mean maximum temperature for Australia for each of the summer months since January 2010. The area to look for the - or the colour for the Commission to look at is the dark brown colour. By comparing those maps, it can be seen that there are health workers working in hot conditions.

PN1405

We do have evidence from health works to substantiate that that is in fact the case. There is the evidence at tab 21 in exhibit 1 of Haysie Penola and at paragraph 23. She says:

PN1406

Occasionally, I have performed work in temperatures between 46 and 54 degrees Celsius, mainly at school health checks in Kalgoorlie Western Australian summers. Occasionally, the temperature has exceeded 54 degrees Celsius when I've been working outreach in Kalgoorlie in summer. Sometimes the temperature thermometer on the car reads as zero, because it did not go over 55 degrees. Lucky, we always had access to shade. The mobile clinic had an annexe you could pull out. However, it was still very hot.

PN1407

Likewise, at tab 32, Richard Assan's witness statement, paragraph 17 to 18:

PN1408

In my current role, I perform my duties in and around Kalgoorlie which is a very remote location. I work in a mobile clinic and I take the clinic north on a regular basis where the temperatures are frequently between 46 degrees and 54 degrees, particularly about 450 kilometres north of Kalgoorlie. Working out of a truck makes it bloody hot. It is possible that the temperature is sometimes in excess of 54 degrees Celsius.

PN1409

Then at tab 29, Naomi Zaro at page 705, paragraph 26:

PN1410

I perform work in temperatures between 46 and 54 degrees Celsius. Temperatures in the goldfields can reach this number. If a client is dehydrated or suffering from the heat, you need to go outside and assist them.

PN1411

At tab 17, Derek Donohue, who is from Kununurra and employed by the Ord Valley Aboriginal Health Service in the position of Acting Health Operations Manager, who is neither or Torres Strait Islander, but is working as a registered nurse. He says:

PN1412

The temperature reaches 46 degrees Celsius quite regularly in Kununurra. In the clinic we are working in the air conditioning so it's not so bad. But when we're out in the remote clinic, it can get pretty rough.

PN1413

There's one more reference to the heat allowance of Cynthia Sambo but I think I've covered enough to say that there are health workers who are working in those very hot conditions.

PN1414

DEPUTY PRESIDENT MASSON: I certainly wouldn't cavil with the temperatures you've quoted.

PN1415

MS STEELE: Yes.

PN1416

DEPUTY PRESIDENT MASSON: My question is more to the wording of the clause.

PN1417

MS STEELE: Yes.

PN1418

DEPUTY PRESIDENT MASSON: I understand the intent of the clause is that when a person works in a non-airconditioned area.

PN1419

MS STEELE: Yes, of course.

PN1420

DEPUTY PRESIDENT MASSON: Because the way it's written, an employee who works in a 'place'. Place could be a town, could be a location where a community health facility is located, that may in fact be air conditioned.

PN1421

MS STEELE: Yes.

PN1422

DEPUTY PRESIDENT MASSON: It's just a comment on the drafting.

PN1423

MS STEELE: Yes.

PN1424

DEPUTY PRESIDENT MASSON: Maybe writer precision could be - - -

PN1425

MS STEELE: Well, the intent is as you've - - -

PN1426

DEPUTY PRESIDENT MASSON: Yes, it's not the intent of the clause to pay a person the allowance in circumstances where they're working in an air-conditioned environment, in a place where it's 46 degrees, for example.

PN1427

MS STEELE: No, of course note. Perhaps that's something else that I might - if I have leave to consider whether it should be in a location - I don't know. Because I understand your concern; it's not meant to be read that way. It is similar to other awards.

PN1428

COMMISSIONER BISSETT: Well, Ms Steele, just - I mean on the question of the other awards, I've just had a very quick scan through the provisions that exist in other awards.

PN1429

MS STEELE: Yes.

PN1430

COMMISSIONER BISSETT: Apart from the Timber Industry Award, which is about outside work - sorry, which is about outside work and provides an allowance for doing that work in the heat. The SCHADS Award and the HPSS Award both relate - the provision seems to be a paid rest break after two hours of work. So, it's not an allowance as such, it's an entitlement. It's under allowances in those awards, but it's an entitlement to a rest after working for a period.

PN1431

The Joinery and Building Trades Award, the Sugar Industry Award - I just can't recall what was in the Airline Operations Award, both relate to employees who are working in artificially hot environments. So, they're - - -

PN1432

DEPUTY PRESIDENT GOSTENCNIK: As goes the food and beverage which is one that you've recited.

PN1433

COMMISSIONER BISSETT: Yes.

PN1434

DEPUTY PRESIDENT GOSTENCNIK: So, it's where the temperature is raised by artificial means.

PN1435

MS STEELE: Yes. Well, perhaps the allowance should be changed to saying something like - an employee who works outside in a place where the temperature - that that would overcome that.

PN1436

COMMISSIONER BISSETT: Well, the question for me is why - is the allowance the best remediation of it, or is as provided by the HPSS and the SCHADS award, a rest break.

PN1437

DEPUTY PRESIDENT GOSTENCNIK: It's ultimately temperature - the temperature at which an employee is required to work is a health and safety consideration and it's a really inadequate response to an unsafe or potentially unsafe working environment to throw more money at it.

PN1438

MS STEELE: Yes.

PN1439

DEPUTY PRESIDENT GOSTENCNIK: Working at heights is an example. To throw more money at people who work at heights rather than addressing the unsafe working environment is an inadequate response. And so, the Commissioner refers to those awards which require for rest breaks which is a means by which one mitigates the risk to health and safety because of the temperature. Sometimes it's by the provision of protective clothing et cetera. It's just whether the provision of an allowance in and of itself, actually addresses the underlying issue and the underlying issue isn't the hot conditions. The underlying issue is the affect on the employee working in those conditions.

PN1440

MS STEELE: Yes. I've received instructions that NATSIHWA is open to breaks as opposed to money. Perhaps that is something that again, with leave, that I could take on notice and perhaps propose another - - -

PN1441

DEPUTY PRESIDENT GOSTENCNIK: I don't think you're going to get any argument from us that it's really really hot in these places.

PN1442

MS STEELE: Yes.

PN1443

COMMISSIONER BISSETT: It's the best way of dealing with the - of course.

PN1444

MS STEELE: If that's a convenient way of dealing with it and it may, I mean depending on how many more of the issues that I take on notice, it may be necessary to come back if there is to be any further discussion about any of these matters. Because obviously, if there's something that's put forward and then there's further input from the Commission, there may need to be - - -

PN1445

COMMISSIONER BISSETT: Certainly.

PN1446

MS STEELE: That's something for example that there may need to be further discussion about.

PN1447

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN1448

MS STEELE: Next allowance is the isolation allowance. Now, NATSIHWA had put forward a different isolation allowance during the conciliation process which was difficult to understand. So the allowance that is sought has been amended to be based upon working in a small town. Now the definition of small town that NATSIHWA proposes is in the definition section of the draft determination in volume 1 of the exhibit behind tab 3 at page 130.

PN1449

And it's defined to mean "A town with fewer than 10 000 people that is not within 50 kilometres of a town with a population in excess of 50 000 people". The reason that NATSIHWA changed the definition to be based on a small town was that the other definition that had previously been put forward wasn't in my view, sufficiently certain to be able for an employer to work out what was a small town or not.

PN1450

Now, the source for the proposed amendment is the Fast Food Industry and the 19.9 Broken Hill allowance. There's a significant amount - or there's an amount of - there's a bit of evidence on isolation allowance and why NATSIHWA puts forward a case that it's appropriate. Firstly, Mr Briscoe at paragraphs 197 to 203, behind tab 7, he refers back to the environmental scan report which shows that there's a number of health works working in regional remote and very remote areas.

PN1451

Also, he refers to tab 74 and I'm not sure if I took you to that tab previously. Okay, that's the online services report that I previously went to. Then there's evidence from health workers and health practitioners that they are working in rural, remote or very remote areas even in terms of the other evidence that I went through yesterday. But he says at 200:

PN1452

Based on my experience, the remoteness of their location has practical ramifications for the performance of a health worker or health practitioner's duty. For example, their remoteness and the associated small population and their location may mean that there are few other health professionals in the area to provide support and assistance to health worker and health practitioner and therefore that the health worker or health practitioner may need to take on more responsibilities or higher duties than might have been the case.

PN1453

For example, an Aboriginal and Torres Strait Islander woman may be giving birth out bush, or in a remote Aboriginal and Torres Strait Islander community. Due to their location, there may be only one health worker or health practitioner in the area who can provide assistance to the woman as she gives birth.

PN1454

This can result in greater stress, responsibility and skill requirements being placed on the health worker or health practitioner while they assist the woman in labour, receiving instructions from a doctor over the phone.

PN1455

Another disadvantage for Aboriginal and Torres Strait Islander health workers and health practitioners working in isolation is that there is fewer access to training opportunities, or from elders who provide invaluable training on the ground. These difficulties and disadvantages are experienced because of the remoteness of the health worker and health practitioner's location of work.

PN1456

Then, there is evidence from other health workers in remote areas. So, at tab 37 - sorry, tab 14; I'm so sorry. Health worker Daphne de Jersey she sets out her duties and responsibilities. She is at the Apunipima Cape York Health Council as an Aboriginal Health organisation and provides a service to the Community of Mapoon which is approximately 80 kilometres north of Weipa and about 700 kilometres north-west of Cairns. At the time of the 2016 census, there were 317 people living in Mapoon.

PN1457

Apunipima Mapoon operates out of the Queensland Health facility and provides the following services. There's a medical officer clinic one to two days per week, fortnightly health care nurse, monthly diabetic educator, monthly dietician, monthly podiatrist, social and emotional wellbeing. There are two health workers on the ground, child and maternal health worker on the ground, indigenous health practitioner chronic disease on the ground, reception, administration and a manager.

PN1458

Now, she says at 19:

PN1459

Based on my experience I don't think there's enough training and education for indigenous health practitioners. I have just been put on chronic disease healthcare. Before this I was on maternal healthcare. Since moving to chronic disease care I find it hard to know what sort of dressing I should use. I wasn't given any help. I only recently commenced doing phlebotomy and I feel very inexperienced. My role also requires me to assist with other health issues that I don't have enough training on. For example a lot of people have issues with chronic foot ulcers and I'm asked to provide care.

PN1460

She says she only began drawing blood fairly recently.

PN1461

I find it difficult doing this because elderly people have very frail skin and their veins will just run away from you. When I did the course I only had to do five bloods and then I was sent out on my own. This is because I am the only indigenous health practitioner working in Mapoon for Apunipima Cape York Health Council. So there's just no one else can do these duties while I get more training or experience. I just have to do them. I would have preferred to come down to somewhere in Cairns and train, but there are no other indigenous health practitioners working in Mapoon. Queensland Health has their own indigenous health practitioner in Mapoon, but I have observed that I get much more work than them.

PN1462

Then at tab 35 Sharon Wallace starting from 21:

PN1463

When there's violence in the community often health practitioners are the people standing at an angry community member and a white nurse who has disrespected someone. Health practitioners sometimes need to protect fly in fly out staff. Health practitioners are frequently required to be on call. In our communities there's an understanding that the role is 24/7. We have family knocking on our door at all hours of the night because of our position in the community. I have observed that health practitioners face challenging conditions in isolated environments. In remote communities health practitioners are doing a lot more work and have a lot more experience because there's no hospitals or other mainstream medical providers to provide medical assistance in the bush.

PN1464

I have given you more references, but tab 41, the last one I intend to go to is Zibeon Fielding behind tab 41, and he says at paragraph 12 the community that he often operates in of Mimili Anangu Pitjantjatjara Yankunytjatjara land from South Australia, in paragraph 12,in the far north west region of South Australia, approximately 1200 kilometres from Adelaide and at the time of the 2016 census Mimili had a population of 243 people, and he says at paragraph 27 and following:

PN1465

Mimili is extremely isolated, approximately 1200 kilometres from Adelaide. I have observed that health workers and practitioners do it very tough because fewer services are available. As we go out further on the land there are communities approximately 100 kilometres away from the nearest Nganampa Health Council operated centre. For example I know of one Aboriginal health worker that has to drive 100 kilometres to pick up the patient for a health clinic appointment and drive another 100 kilometres to drop them back. Due to our isolation we are less able to access other sources of medical assistance which could otherwise support us in the performance of our duties. For example the closest hospitals are approximately 400 kilometres to 500 kilometres away. This makes it very difficult to do handovers with other health professionals, particularly if another health professional has to be away.

PN1466

He says:

PN1467

Nganampa Health Council only has two nurses and a doctor that comes twice a week every two to three weeks. As a result the health workers and practitioners are responsible for a large number of people when the doctors and nurses are not present. It is often difficult to provide consistent healthcare to our indigenous patients as indigenous people are transient, they travel around and can be difficult to locate.

PN1468

COMMISSIONER BISSETT: Ms Steele, just with respect to this allowance, and again I don't think I need to be convinced that some of these communities are extraordinarily isolated, it's the formation of the allowance and the reliance on the Broken Hill allowance to set the rate for this allowance. I just had a quick look through the materials provided and none of the awards that you say have similar allowances are actually in the folder, and I appreciate there's a lot of materials been provided - - -

PN1469

MS STEELE: I do apologise. I had assumed that everything is there.

PN1470

COMMISSIONER BISSETT: No, it's not a criticism. Please don't take it as a criticism, but I just wonder given that you are going to be providing a note to us if you could just provide the comparison with the isolated allowances in those other listed awards.

PN1471

MS STEELE: Yes.

PN1472

COMMISSIONER BISSETT: It's just my recollection is that the Broken Hill allowance is a very particular allowance that was structured in a very particular way for Broken Hill for a very long time, and I am not sure that the isolated allowances in the other awards are structured at the same rate. So I would just like to see a comparison across the group of awards.

PN1473

DEPUTY PRESIDENT GOSTENCNIK: The way in which you seem to be presenting your evidence the isolation allowance to which you refer seems to me more to be an allowance which is in other awards described as the sole practitioner allowance, that is because they work on their own and because they don't have access to peer support and other resources there's an additional allowance paid for that, rather than the isolation of the work, but the fact that they are working on their own, and it's usually described in those awards as a sole allowance rather than by reference to the geographical nature. It's the manner in which those employees work, and just reading the extracts of the evidence to which you have taken us a concern is about not the isolation of the place of work but the absence of resources and assistance so that the employees are exercising greater skill and taking on more responsibility than they otherwise would in an area where they had more support. That's something you can take on board in any event.

PN1474

MS STEELE: Yes. The final allowance before I move to the clarification to ceremonial leave is the occasional interpreting allowance, and at page 24 of the aide memoir - and the proposed amendment is that an employee not employed as a full-time interpreter and who performs interpreting duties in the course of their work duties and is not entitled to receive the bilingual qualification allowance under clause 15.1 will receive an additional payment of 1.27 per cent of the standard rate per week. For the purpose of clause 15.2(a) interpreting is not limited to interpreting one language from or to the English language. It probably would be helpful to look at the bilingual qualification under 15.1 to understand the allowance that's presently in the award. That is behind tab 1 of volume 1 and is on page 22.

PN1475

In the current award bilingual means a recognised proficiency in English as well as in any one of the languages normally used by the employer's customers or clients. Then there's in recognition of the increased effect in some productivity there's an annual allowance at a standard rate. There's an elementary level and level 2, but it's point (e) that can present the difficulty for Aboriginal and Torres Strait Islander health workers, which is proof of bilingual proficiency and accreditation will be obtained before the employee will be entitled to their allowance, because some of these languages are from one Aboriginal language to another Aboriginal language, and so in order to provide that proof that's one difficulty.

PN1476

So the occasional interpreting allowance has been put forward to remedy that. The source is the HPSSS award. There is a lot of evidence that health workers and health practitioners do have to occasionally interpret. It is very important in the health context, particularly for the patient to be able to understand the medical advice that is being given to them.

PN1477

Mr Briscoe at 182 to 188, which is at page 620 of exhibit 1, he says:

PN1478

The current award does not provide any recognition for employees who do not qualify for the bilingual qualification, but who do interpret occasionally in the performance of their duties. A large number of primary healthcare providers are located in regional, remote or very remote areas. It is common for ATSI persons located in regional, remote or very remote areas to speak English as their second, third, fourth or even fifth language. From time to time ATSI clients located in non-remote areas may also have less familiarity with the English language, for example if they have travelled from a remote location for the purpose of obtaining medical treatment. In these circumstances health workers and health practitioners sometimes have to interpret for their ATSI client or translate certain words into the relevant indigenous dialect to ensure that the ATSI client can understand and engage with the healthcare services being provided to them. Not all health workers and health practitioners need to provide this occasional interpreting assistance as part of their role as many ATSI clients have sufficient familiarity with the English language to proceed without any interpretations. Therefore these responsibilities or skills are not accounted for in the minimum wages in the award.

PN1479

Then self-evidently at 188:

PN1480

By removing communication barriers, accessing primary healthcare health workers and health practitioners who undertake occasional interpreting duties increases the likelihood that an ATSI client will receive treatment at a primary preventative intervention stage, thereby reducing the likelihood of an acute health episode and that that benefits the national economy for that reason.

PN1481

You will see in the aide memoir setting out the evidence on page 3 that there is evidence from approximately 15 health workers in terms of the interpreting that they do. I am going to go to four of those references. Behind tab 11 the statement of Charlene Badham and she says at paragraph 21 page 641:

PN1482

In my current role I am not employed as a full-time interpreter. However I am sometimes required to perform interpreting duties in the course of my work as an Aboriginal and Torres Strait Islander health practitioner clinic coordinator, particularly for the elder clients. I come into everyday contact with different clients who have different backgrounds, culture differences and language differences. I assist the client to understand the medical terminology during and after a consult and help the client to understand how to help themselves to improve their health for a better lifestyle. I do this particularly with elderly clients. Sometimes doctors can only understand one word of an entire story. If an indigenous person gives me one word in another language or a hand signal I often know what they mean and I can communicate this to the doctor.

PN1483

Then behind tab 10 there's a statement of Chandel Compton who is employed by the Bega Garnbirringu Health Service as a health practitioner, and at paragraphs 18 to 19 starting on page 636 she says:

PN1484

In my current role I am not employed as a full-time interpreter. However I am sometimes required to perform interpreting duties in the course of my work as an Aboriginal health practitioner. I do this by explaining procedures to clients, breaking it down. I can only interpret certain things. I don't know the local lingo that well. I try and explain things that clients are not aware. For example I was helping out with the dentist one day. The dentist explained to the client that she had to put her hand up if she was in pain. The patient did not put her hand up, but she simply started signing out in the local lingo, "Wandi, wandi" which means stop. I put my hand on the dentist's shoulder and said, "She wants you to stop here."

PN1485

Then tab 21 Haysie Penola, paragraphs 18 to 19, page 676:

PN1486

I am not employed as an interpreter. However from time to time I perform interpreting duties in my role as an Aboriginal wellbeing worker. In the past when I was working in Western Australia I had to interpret some words for the benefits of the patient. For example I could talk to the mob and translate words to doctors and particular visiting doctors who had no idea what the patient was talking about. A lot of Aboriginal people use hand signals too. I would interpret that. I remember once I had a woman yelling at a patient who was signalling that he wanted something, but she kept yelling "Use your words". I stepped in to interpret his signal. I said, "No, he just wants a cup of tea."

PN1487

Finally behind tab 41 the witness statement of Zibeon Fielding, he gives evidence at paragraphs 22 and 23 about his interpretation. He says:

PN1488

I frequently interpret another language to English for the benefit of my patients. I do this every day in virtually every consultation I have. I usually see about seven to ten patients a day. I also interpret when I am trying to help other colleagues. For example when we have a visiting specialist medical team such as a visiting psychiatrist I tend to see more people which requires more translating. Trying to break down and translate the anatomy of the body is difficult because there are not any names for organs in other languages.

PN1489

I now propose just to conclude by explaining the clarification that's sought to the ceremonial leave. In the draft determination at page 135 under paragraph 30 you will see the proposed clause. The only words that are sought by way of clarification are the words in the second line. Let me start again, "An employee who is legitimately required by indigenous tradition to be absent from work for an Aboriginal or Torres Strat Islander ceremonial purposes" is already in the current award. The additional words that are sought to be included by way of clarification are the words "including for bereavement related ceremonies and obligations", and then the clause returns back to the current clause in the modern award, in the current modern award which is, "Will be entitled to up to ten working day unpaid leave in any one year."

PN1490

So there is already an entitlement in the current award for unpaid leave for ten days for ceremonial purposes, and I will take you to some of the evidence. There's a lot of evidence about this because it is a significant cultural issue for Aboriginal and Torres Strait Islander people that they be allowed to grieve. The Commission would remember yesterday I took you to the New South Wales Health and the importance of ceremonial business, and there is evidence from health workers that they have not been allowed to utilise that award provision because employers have taken the view that the relative is not an immediate family, whereas the concept of kinship and family to Aboriginal and Torres Strait Islander people is much broader than in western culture.

PN1491

This is covered, or Mr Briscoe sets out at page 623 behind tab 7, he sets out what NATSIHWA says, which is effectively to clarify the current award to include bereavement related ceremonies and obligations. Then he provides some evidence as to the cultural background of the amendment. He recalls early in his career as a health worker a work colleague of his had received sad news from the Torres Strait where he had been named after someone who had just passed away. The manager at the time did not understand the significance of this, let alone the cultural obligations that the worker was required to undertake in attending the funeral.

PN1492

Ever since that incident I have found myself advocating for bereavement leave that includes extended family members. People of ATSI heritage hold very strong cultural views about death and dying and the necessary steps that need to be taken after a person has died to ensure peaceful rest for the deceased in the afterlife. ATSI persons refer to the cultural practices following the death of a community member, including the ceremony rituals as sorry business. In broad terms ATSI people believe that the spirit of an Aboriginal deceased returns to the dreaming ancestors provided that their community conduct the appropriate ceremonies and rituals. The specific beliefs and ceremonies associated with sorry business vary from language group to language group. Following the person's death there will be an extended period of ceremony. This period can last for days, weeks or months, depending on the tradition of the relevant language group. In some Torres Strait Islander groups a family would hold a tombstone opening approximately 12 months after the burial which is a large ceremony that is even bigger than a wedding celebration. The persons required to be involved in this period of ceremony is determined by the ATSI concept of kinship. The kinship system determines how ASTI people relate to each other, their responsibilities towards one another and is the foundation for determining family obligations and ceremony roles. Kinship is far broader than the non-indigenous concept of family. For me my cousins and my brothers and sisters and my aunties and uncles and my mothers and fathers. For this reason my extended family is as important to me as my immediate family. Therefore health workers and health practitioners may be required to participate in bereavement ceremonies for a member of their community by reason of the broader notion of kinship, even though they may not strictly be classified as a family member of the deceased within the meaning of the Fair Work Act 2009.

PN1493

In the aide memoir for the evidence location the number of witnesses who have given evidence about this aspect of ceremonial leave is extensive. You can see that this is an issue that has impacted the vast majority of health workers and health practitioners who have given evidence in these proceedings, or given statements in these proceedings given the importance of that. I am just going to take the Commission to seven of them. Tab 11, Charlene Badham, she says at paragraphs 26 to 29 at page 641:

PN1494

I have experienced circumstances involving my family where I would have benefitted from bereavement leave. Because we have non-indigenous people in management it has sometimes been hard to explain the broad family connection of our people. We have extended family. An auntie is also my mum. That is how our culture is and it has been hard to explain that to management. In my experience most indigenous organisations have bereavement in their entitlements because of its cultural importance to us. I previously observed that when a colleague had his auntie pass away he put in the form requesting bereavement leave. The management knocked him back and said, "No, it's not immediate family." I do not think the manager quite grasped the importance of our connection to our extended family. However we had a meeting the other day where management announced their intention to extend bereavement leave to the broader family, so it appears that management is becoming more accepting of the significance of bereavement leave for us.

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Then behind tab 12, Cynthia Sambo, she says at paragraphs 27 to 30, page 645:

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I have experienced circumstances that would have benefitted from bereavement leave. I would have benefitted from bereavement leave every single time I had a death in my family. This has happened five times since I started working at Bega. In the course of employment I had to take annual leave to attend funerals. When my father died I only received one day of bereavement leave. One or two days is not enough when you lose a family member. The definition of an immediate family member is different for Aboriginal people to non Aboriginal people. I have had a situation before where an employee who I supervised who was in training at the time had to go home for her mother's funeral. It was very sad. I find it easier just to put in leave without pay or annual leave instead of having to go and explain how we're connected to family.

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At tab 13, Daniel Niddrie, paragraphs 29 to 33 he says that he's experienced circumstances where he would have benefitted from bereavement leave. The last place he worked provided a definition of family. They said family was the father's direct descendant or the mother's direct descendant.

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This is a narrow definition that does not take into account the way Aboriginal people treat family. I am part of an Aboriginal social group in the region and as part of this I am often looked at as family. I have had young ones call me uncle and older ones call me nephew. It's an extended family. I also grow close to patients and their families through the clinic and sometimes in an Aboriginal way they adopt you as a member of their family. To be able to go to those funerals and to help those families in the build up to those funerals not just as a friend but as a worker of the local Aboriginal Medicare service would be good, not just for the Aboriginal medical service but also for me and my spirit, or how they say it in the Kimberley your leung. To have access to bereavement leave and the ability to go to funerals and show that you're part of the community is good. It is also good for the organisation as we are in uniform and it shows that people care. That builds rapport with the community.

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Then at tab 19, Fiona Wilson, who's in South Australia, 51 Aboriginal health worker with Certificate IV, and she says at page 668:

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I have experienced circumstances that would have benefitted from bereavement leave. For example I experienced the loss of my daughter's partner and grandchildren's father. I had two weeks off at this time but that was not enough time for me to mourn and support my children that were also caught in that event. When we lose someone we struggle. In my experience when it's someone close to you it's not enough to just have a few days off work. Sorry business is very culturally important to my community and for Aboriginal and Torres Strait Islanders generally.

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Then at tab 24, John Watson, paragraphs 17 to 23, page 686. He's experienced circumstances where he could have benefitted from extra bereavement leave.

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I only get two days. If you have a really close family who's passed away two days is not long enough. I was not ready to come back to work after two days when my grandmother who brought me and my sister up passed away. It makes it even harder if you haven't got any annual leave accrued to take in addition to bereavement leave. In my experience I have seen other Aboriginal health workers who have had their mum pass away and they come back too quickly because they couldn't take any more leave. They just - they got burnt out because they didn't have time to grieve and ended up quitting their job. In my experience we're so close to our culture we also need to grieve and see family for cultural purposes. We usually need a week or two to get through all of our cultural commitments. I have observed that there aren't many male health workers and health practitioners. In my experience you can't hang onto them if they don't get much bereavement leave.

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The last piece of evidence that I am going to read is that of Naomi Zaro at tab 29, 27 to 31. She's experienced circumstances that would have benefitted from bereavement leave.

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With Aboriginal and Torres Strait Islanders fellows it's the blame game. If you don't pay your respects to the family who are deceased you're in trouble. My organisation has changed their policy to allow us two days of bereavement leave per death. This is because the majority of staff there are Aboriginal, they're not Torres Strait Islander, but if it's a close family member we need more time. I know people then take annual leave which reduces their opportunity to take annual leave in the future. This causes people to burn out and I believe it's a significant factor in people leaving the position of health practitioner or health worker. It's hard because where I am these sorry camps go on for two to three weeks where there's no access to facilities. Some clients have been in our care for years so they become our family. When these clients pass away it feels like I've lost my favourite uncle or auntie.

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In short NATSIHWA's submissions on this ceremonial leave is that it's for clarification only. I have taken the Commission to evidence and all of the research that shows how important it is to respect the cultural sensitivities of health workers and part of having a culturally respectful workplace is having provisions that allow for their cultural practices which are so important to them. In my submission it's minor, it's unopposed, and it's necessary to meet the modern award objective because it goes to providing a framework of minimum entitlements that are fair and relevant to the workers that are covered by this particular award.

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I conclude in making submissions that all of the amendments that NATSIHWA have put forward are necessary to meet the modern award's objectives for providing a minimum set of relevant terms and conditions for this particular very unique workforce and profession. Thank you for sitting early.

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DEPUTY PRESIDENT GOSTENCNIK: Have a rest.

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MS STEELE: Yes. I will provide a short note within seven days on the various matters. If there's anything else, because there has been a huge amount of material to go through, an enormous amount of material, so if there is any issues that arise when the Commission is reflecting upon any of the evidence or issues please let us know, we're happy to provide further clarification or written submissions on any of the matters on which I have addressed.

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DEPUTY PRESIDENT MASSON: I just have one issue and it maybe you're not intending to address it, but various requirements that we are to consider under section 134 include a number of things, and you have progressively addressed a number of this including things such as decorum in relation to work of equal value. I just wonder about the 134F, in terms of the likely impact of the changes in terms of productivity, cost and the regulatory burden. Is that something you're intending to address? I certainly understood a broad proposition to be that supporting the increase in health workers and health practitioners would support reducing health costs, and I understood that proposition.

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MS STEELE: Yes.

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DEPUTY PRESIDENT MASSON: I am just wondering was there anything specifically you were going to put in relation to productivity cost and regulatory burden?

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MS STEELE: I think the broad concept that you've identified of supporting retention and growth that is as broadly it can be put on that criteria. I suppose NATSIHWA would add that the submission that these changes are supported by the principal employer, so there hasn't been any evidence that there will be - you know, that there's any issue in that respect that NATSIHWA is required to address.

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The impact of the regulatory burden was never raised throughout the conferencing by any of the interested parties. Perhaps that's something else that I might - if there's anything further I might have leave to address on that point.

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COMMISSIONER BISSETT: The issue that you might address there is whether, and this perhaps is an issue for the extension of coverage to private practice whether the changes are going to create any additional burden on organisations in terms of their capacity to apply the award effectively and without underpaying people in the process.

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MS STEELE: Yes. My instructing solicitor is saying, and I think there's a lot of force subject to the Commission agreeing, that there are a number of issues and it may be of benefit rather than just putting them in submissions to come back in order to discuss them further. Perhaps that's best determined after we put some further written submissions on, but it may be that the best way to clarify these issues may be to have a further hearing about them.

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DEPUTY PRESIDENT GOSTENCNIK: Yes. There are two aspects; one is whether you think you need to lead any further evidence about those matters.

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MS STEELE: Yes, that's one of the things that have occurred to me.

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DEPUTY PRESIDENT GOSTENCNIK: Perhaps we could leave it on this basis, that you give consideration to whether you need or want to lead further evidence and you can let us know by the end of next week whether you wish to and we will accommodate some further hearings in order for that to occur.

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MS STEELE: Yes.

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DEPUTY PRESIDENT GOSTENCNIK: So we will leave it to you to decide whether you need to - - -

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MS STEELE: Yes. Thank you, Deputy President.

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DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Thank you, Ms Steele. Ms Svendsen has done a runner. Had cold feet at the last minute. She's left you on your Pat Malone. Ms Liebhaber?

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MS LIEBHABER: I was just going to provide a brief oral submission.

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DEPUTY PRESIDENT GOSTENCNIK: It might be more comfortable - get yourself organised first and use the lectern and when you're ready.

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MS LIEBHABER: Deputy President, Deputy President and Commissioner, the agency relies on our written submissions, draft determination and witness statements of Jackson Shillingsworth and Damian Rigney which were filed on 8 July this year.

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DEPUTY PRESIDENT GOSTENCNIK: I gather that neither of the witnesses are required for cross-examination?

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MS LIEBHABER: No, neither of the witnesses were required for cross-examination.

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DEPUTY PRESIDENT GOSTENCNIK: We might just mark the witness statements then.

EXHIBIT #4 WITNESS STATEMENT OF JACKSON SHILLINGSWORTH COMPRISING SIX PARAGRAPHS DATED 12/06/2019

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MS LIEBHABER: Yes. I can advise that while the statements filed were unsigned the signed statements have been - - -

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DEPUTY PRESIDENT GOSTENCNIK: Yes, we will receive signed statements, yes. We will mark the witness statement of Mr Damian Rigney comprising 15 paragraphs dated 12 June 2019 together with one annexure, is that right?

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MS LIEBHABER: Yes, the statement of Damian Rigney has the - - -

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DEPUTY PRESIDENT GOSTENCNIK: It attaches an enterprise agreement.

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MS LIEBHABER: Yes.

EXHIBIT #5 WITNESS STATEMENT OF DAMIAN RIGNEY COMPRISING 15 PARAGRAPHS DATED 12/06/2019 TOGETHER WITH ONE ANNEXURE

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DEPUTY PRESIDENT GOSTENCNIK: Yes.

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MS LIEBHABER: So to start with the agency strongly supports the claims of the National Aboriginal and Torres Strait Islander Health Worker Association, NATSIHWA, and we note that some of our witness evidence supports the claims of NATSIHWA. This includes paragraphs 11 to 12 of the statement of Damian Rigney who talks about the difficulties he has seen and experienced with career progression as an Aboriginal health worker. He says that he decided to obtain qualifications as a registered nurse because he found while working as an Aboriginal health worker registered nurses would often be brought in by the employer to run projects. He says on a number of occasions:

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I knew more than the RN's and would have been capable of running these projects, but my skills weren't being recognised because I didn't hold that qualification.

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Apart from that we also pursue four claims which are outlined in our written submissions. Our first claim is to provide that employees are entitled to tea breaks. As stated in our submissions such provision is standard across other health awards and we provided a comparison table of these provisions in our written submissions, and the need for this provision is further emphasised in the witness evidence of Jackson Shillingsworth. In paragraphs 5 to 6 of his statement he talks about the high volume of work required to be undertaken by Aboriginal health workers. In his clinic there are only two Aboriginal health workers for eight doctors and the Aboriginal health workers need to see the patient before seeing the doctor. We say that providing for tea breaks in the award would help prevent overwork and fatigue amongst employees, provide for a safer workplace and would enable more productive performance of work in the long term.

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Our second claim is to provide a removal expenses allowance for employees who transfer from one locality to another. As outlined in our submissions and in the witness statement of Damian Rigney based in Port Augusta in his statement at paragraph 5 - - -

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DEPUTY PRESIDENT GOSTENCNIK: Sorry, do we really need to call them tea breaks? What we are really talking about is rest breaks, are we not?

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MS LIEBHABER: Yes.

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DEPUTY PRESIDENT GOSTENCNIK: Particularly a remote health worker is hardly going to stop for ten minutes to have a cup of tea. They're going to stop to have a rest and whatever else they might have brought with them. So we can try and use some modern language. Would that be objectionable?

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MS LIEBHABER: We're happy for the breaks to be called rest breaks.

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DEPUTY PRESIDENT GOSTENCNIK: It's a very antiquated term.

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MS LIEBHABER: It is perhaps. In relation to the removal expenses allowance paragraphs 5 and 13 of Damian Rigney's statement talks about how Aboriginal community controlled health services are based in regional or remote locations far from city centres and that health workers are often required to move significant distances if they're relocating for work. So we say inserting a removal expenses allowance in the award is necessary in an award which covers employees working in such remote locations, and he talks about moving from Adelaide to Port Augusta for work as an example.

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DEPUTY PRESIDENT MASSON: Are you aware of any other awards that would have provisions of that type, and there would be I imagine other awards, but perhaps wouldn't involve quite so many to remote locations. Certainly there would be awards that would have extensive coverage in regional Australia.

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MS LIEBHABER: I am not aware of any, and I don't believe I referred to any in this submission. Again that is something we could perhaps take on notice. Our third claim is to ensure that casual loading is paid in addition to public holiday rates. We say that this is consistent with the function of casual loading which is to compensate casual employees for the paid leave entitlements available to permanent employees, and which is separate to the function of public holiday rates.

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Finally our fourth claim is to vary the rest break after recall to work clause in the award, which would ensure that employees receive at least a ten hour break after being recalled to work, and we say this amendment would make the clause consistent with clause 24.5 in the current award which provides for a ten hour rest period after overtime. We say that these amendments are necessary to meet the modern award's objectives of providing a fair and relevant safety net of terms and conditions for employees covered by the award. I wasn't proposing to go into any further detail about those claims, they're detailed in the written submissions, but I am happy to take any questions from the Bench about our claims or witness evidence.

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DEPUTY PRESIDENT GOSTENCNIK: Thank you.

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MS STEELE: I should also add that NATSIHWA supports the HSU's claims.

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DEPUTY PRESIDENT GOSTENCNIK: Thank you for that. Very well, we will adjourn shortly on this basis. Firstly, we will communicate with AMA in the manner that we indicted earlier this afternoon. Ms Steele, your client can file any further material. I know we discussed seven days, but given the number of things that you might wish to respond to we might make that 14 days.

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MS STEELE: I would appreciate that very much, Deputy President.

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DEPUTY PRESIDENT GOSTENCNIK: And if you need more time than that if you just communicate with my chambers before the due date we can accommodate an extension.

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MS STEELE: Thank you.

PN1554

DEPUTY PRESIDENT GOSTENCNIK: Within that timeframe if you could also advise whether your client wishes to call any further evidence in relation to any matter, and subject to anything we might hear from the AMA we will program any further hearing or hearings as necessary. All right. That was it.

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MS STEELE: We will proceed on that basis.

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DEPUTY PRESIDENT GOSTENCNIK: Yes. Can I for my own part at least, and I am sure my colleagues will agree, can I, Ms Steele, thank you and those instructing you and your client for the comprehensive nature of the case that you have presented. It has been and will be very helpful. Have a good weekend, we are adjourned.

ADJOURNED TO A DATE TO BE FIXED [3.30 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #3 CORRESPONDENCE WITH AMENDED DRAFT DETERMINATION TO MR BRISCOE FROM MS TURNER DATED 25/07/2019...................................... PN688

EXHIBIT #4 WITNESS STATEMENT OF JACKSON SHILLINGSWORTH COMPRISING SIX PARAGRAPHS DATED 12/06/2019......................................................... PN1528

EXHIBIT #5 WITNESS STATEMENT OF DAMIAN RIGNEY COMPRISING 15 PARAGRAPHS DATED 12/06/2019 TOGETHER WITH ONE ANNEXURE PN1533