Welcome to the LASA Employment Relations Gazette
Today, Leading Age Services Australia (LASA) adds to the new
National Employment Relations Service for all LASA members.
Employment Relations Gazette (ERG) is a new newsletter series
which will provide all LASA members with employment relations
advice and articles tailored to age service providers.
ERG will complement the recently launched ERA series and will
include articles from LASA Associations and external organisations
across the country.
I trust that all members will find ERG a positive member initiative, and LASA will continue to
enhance its employment relations information and services for your benefit in the periods
ahead.
Kind regards
Patrick Reid
CEO, LASA
Modern Awards Review Process
Emma Patton, Manager Employment Relations, LASA NSW-ACT
As detailed in a recent article published in the spring edition of the LASA NSW-ACT ERQ,
the Fair Work Commission (FWC) is required, under section 156 of the Fair Work Act 2009,
to review modern awards every four years.
The Modern Awards Review Process (MARP) can result in the FWC making a new award,
revoking an award or varying an award. To manage the significant project of reviewing all
122 modern awards, the FWC has broken the review process into a two types of
proceedings; Common Issues and Award Stage.
Common Issues
Common Issue proceedings relate to applications that propose to vary all or a significant
number of modern awards in a similar way. Proceedings in the Common Issues group
include:







Annual Leave
Apprentice Conditions
Transitional Provisions
Award Flexibility/Facilitative Provisions
Casual Employment
Part-time Employment
Public Holidays
LASA NSW-ACT has been involved in common issue proceedings and has provided
1
feedback, including supporting peak employer submissions, in relation to applications in the
Annual Leave, Transitional Provisions, Casual Employment and Part-time Employment
proceedings.
Of particular note are applications filed by the Australian Nursing and Midwifery Federation
(ANMF) in the Transitional Provisions proceedings. The ANMF are seeking to retain and
expand Accident Pay and District Allowance entitlements in the Nurses Award 2010. These
conditions are currently set to expire on 31 December 2014. The ANMF are seeking to
cease the expiration of these conditions and expand entitlements. On 24 October 2014,
LASA and ACS submitted correspondence opposing this application.
Award Stage
On 23 October 2014 the FWC held an initial conference for awards contained in Group 2.
Awards in Group 2 of interest to LASA NSW-ACT members include the Nurses Award 2010
and the Health Professionals and Support Services Award 2010.
LASA NSW-ACT and ACS NSW-ACT attended the initial conference and confirmed our
interest in these proceedings.
Group 4 modern awards relevant to our industry include the Aged Care Award 2010 and the
Social, Community, Home Care and Disability Services Industry Award 2010. An initial
conference for Group 4 awards is expected to be held in November 2014.
Member Interest and Action
Members operating under the modern award system and applying modern awards are
requested to contact LASA NSW-ACT to discuss proposed applications and provide
feedback on suggested variations.
In addition to assisting LASA NSW-ACT prepare for proceedings, members can also provide
advice and feedback on applications proposed by Unions throughout these proceedings.
Members operating under enterprise agreements, or currently negotiating an enterprise
agreement are reminded of the importance of these proceedings. As modern awards set the
foundation for the FWC Better Off Overall Test (BOOT) any changes in modern awards as a
result of the review process may impact your negotiation. Members on enterprise
agreements are encouraged to remain engaged in this process.
2
Industry summary findings - VWA manual handling inspection
program at residential facilities
Damien Ryan, Executive Manager – Workforce & Safety, LASA Victoria
As part of a Heads of Workplace Safety Authorities (HWSA) initiative to reduce
musculoskeletal injuries attributed to handling residents, the Victorian WorkCover Authority
(VWA) recently completed an inspection program targeting residential aged care facilities.
The inspection program was designed to raise industry awareness of the tools (e.g.
guidance material, checklists, and consulting services) available to improve manual handling
processes and procedures.
In 2012, around 50% of all Victorian claims in the industry were from manual
handling. Almost 70% of manual handling injuries in residential aged care facilities happen
when nurses and carers need to move people.
The program targeted manual handling systems and in particular sought to concentrate on
the requirements to review manual handling risk controls after an incident or
injury. Inspectors were required to complete an audit tool while visiting an aged care
facility. The results for Victoria are as follows:



Over 260 inspections
46 improvement notices (see breakdown below)
Results indicate facilities were assessed as meeting compliance:
o
o
o
o
o
with incident reporting and investigation – 82%
with the review of risk controls – 83%
with manual task policy and procedure – 79%
with risk controls for manual tasks – 83%
with emergency response procedures including manual handling – 77%
Notices – Victoria – HWSA Aged Care Project
Safe systems of work re inspection, maintenance, selection of slings
11
DG Register/MSDS/storage of flammables/spill containment
6
Housekeeping
5
Emergency Evacuation – appropriate resident handling equipment provided
3
Guarding – kitchen equipment
3
Hazardous Substances register/MSDS/PPE
3
Inspection testing maintenance of portable electrical equipment
3
Other
12
TOTAL Improvement Notices issued
46
Tasmania, the Northern Territory, Western Australia and South Australia also participated in
the HWSA inspection program. It is anticipated that HWSA will release an overall report on
the program in December 2014.
3
Proposed National Code of Conduct for Unregistered Health
Practitioners
Louise Watson and Amy Regan, TressCox Lawyers
The Health Practitioner Regulation National Law introduced a national regulatory system for
registered health practitioners. However, there remains no uniform system in relation to
unregistered health practitioners.
Recent years have seen an increase in the number of complaints concerning health
practitioners who provide health services but fall beyond the reach of the Health Practitioner
Regulation National Law. This has led to consideration of a National Code of Conduct with a
view to establishing a consistent approach to the regulation of unregistered health
practitioners.
An unregistered health practitioner is an individual who provides a health service, but is not
registered under the Health Practitioner Regulation National Law. This definition includes
many occupations, including dieticians, naturopaths, paramedics, speech pathologists,
counsellors and anaesthetic assistants.
Currently, only three states in Australia confer powers on health regulatory bodies to impose
sanctions on unregistered health practitioners, namely New South Wales, South Australia
and Queensland. The remaining states and territories have a Commissioner who is able to
investigate complaints regarding unregistered health practitioners but has no enforcement
powers.
Only two states, New South Wales and South Australia, have Codes of Conduct that apply
to unregistered health practitioners. A Code of Conduct for Unregistered Health Practitioners
has been in place in New South Wales since 1 August 2008. This Code sets out the
minimum standards applicable to unregistered health practitioners and the Health Care
Complaints Commission has legal powers to enforce the Code.
In New South Wales and South Australia, the Commissioner may take action against
unregistered health practitioners if is believed there has been a breach of the applicable
Code and that there is a risk to public health or safety.
The Australian Health Ministers’ Advisory Council (AHMAC) undertook national consultation
in early 2011 to determine whether unregistered health practitioners should be subject to a
single, national statutory Code of Conduct similar to that in effect in the states. The AHMAC
released its final report on this proposal in April 2013, finding that ‘a single national Code of
Conduct made by regulation, with enforcement powers for breach of the Code is considered
likely to deliver the greatest net public benefit to the community.’
On 14 June 2013 the Standing Council on Health agreed in principle to a national Code of
Conduct, and to strengthen state and territory complaints mechanisms and statutory powers
to assist in the enforcement of the Code.
In March 2014 the AHMAC released a consultation paper seeking public comment in relation
to the draft National Code of Conduct (the National Code) and the legislative and
administrative changes necessary to enforce it.
The National Code, if implemented, will introduce a number of obligations for unregistered
health practitioners (referred to in the draft Code as ‘health care workers’), drawing on those
already enshrined in both the New South Wales and South Australian Codes. Those
obligations include:
4






Obtaining consent from the client prior to commencing a treatment or service;
Disclosing adverse events to the client and taking remedial steps to reduce the risk of
recurrence;
Reporting adverse events to the relevant authority;
Seeking advice from a qualified health practitioner where suffering an impairment;
Not engaging in sexual misconduct; and
Displaying relevant qualifications at their practice.
It is intended that the National Code will be legally enforceable in each state with powers for
the issuing of prohibition orders in the event that the National Code is breached and in
circumstances where the unregistered health practitioner poses a serious risk to the health
or safety of the public.
The closing date for submissions on the draft National Code was 30 April 2014. A number of
organisations publicly released their submissions to the AHMAC. While many have
accepted that national regulation of unregistered health practitioners is necessary, some
have suggested that a National Code is not the appropriate regulatory forum. There are
differing views as to whether particular occupations should be bound by a National Code and
concern as to whether a consistent approach will be applied in all states and territories.
It is expected that the AHMAC will release a National Consultation Report in relation to its
findings in November 2014. Given the level of criticism found in those submissions that are
publicly available, there remains some uncertainty as to whether the National Code as
presently drafted will be implemented in the near future. However, unregistered health
practitioners in all states and territories should be aware of the proposed extension of their
obligations to their clients and look to adopt many of the National Code’s principles as best
practice.
5
When employees become competitors
Anthony Massaro, Russell Kennedy Lawyers
As provider’s transition to a consumer directed model of
service delivery, employers face new challenges in maintaining
client bases, particularly when their employees become
competitors.
The industry has some history of home care workers entering into
private care arrangements directly with their employers’ clients. As
the practice is likely to increase under the new model, employers
need to consider stricter measures to protect their businesses from
this risk.
These measures could include putting specific terms in employment contracts which clearly
set out employees’ obligations during employment and following termination. Employers
should also consider preparing policies for employees and information for care recipients
identifying some of the issues around private care arrangements.
Contractual restraints
In order to restrain current or former employees from participating in certain types of
conduct, such as competing with or soliciting clients away from the employer, specific
restraints must be included in employment contracts. Courts have recognised that client
relationships are legitimate business interests which may be protected by the operation of a
restraint clause.
For a restraint to be enforceable, an employer needs to ensure that its restraint is
reasonable in the circumstances. One way that an employer can demonstrate the
reasonableness of a restraint is to limit the enforcement of the restraint to a specific period of
time, and a geographic area that relates to the employer's business. The general rule is that
the greater the scope of the restraint, whether geographically, temporally or by reference to
the activities to which it is expressed to apply, the harder it is for the employer to show that
the restraint is reasonable.
Policies and education
Employment policies can deal with issues such as conflict of interest, and make it clear to
employees that accepting or instigating private care arrangements with clients of the
employer can constitute misconduct. Policies should also explain that only injuries occurring
while working for the employer are covered by WorkCover.
This could be combined with education regarding contractual obligations, as well as the
consequences of breaching those obligations. Training should occur during induction to put
new employees on notice about their obligations. Employers should also remind departing
employees of their contractual obligations.
Information for care recipients
Employers could also deal with this issue in materials provided to care recipients. While
cash in hand arrangements may be attractive and simple, recipients and their family
members may not have considered whether the carer is insured, or whether the carer has
the resources to properly manage injuries and risks. The documentation could also
emphasise the high quality of care that the employer is able to provide.
6
How to respond
If you discover an employee’s competitive conduct during their employment, you should put
the allegations of the competitive activities to the employee prior to taking any action against
them. Depending on the employee’s response, you may take action under your disciplinary
policy, which could involve warnings or potentially termination of employment.
You could also take legal action against the employee to enforce the restraint in their
employment contract.
Either way, it is important to act quickly to limit the damage to your client relationships.
The best cure in the context of employee competition is prevention: a proactive approach
during the initial stages of employment is likely to help in the long term. With well-drafted and
reasonable restraint of trade clauses, policies, and education for employees and care
recipients, you are better positioned to protect your business and ensure that the industry as
a whole provides a high quality of overall care to all clients.
Please contact Libby Pallot on 9609 1668 or Anthony Massaro on 9609 1501 if you have
any queries in relation to this article.
www.rk.com.au
7
Tips and traps for conducting reliable and fair investigations into
workplace bullying complaints
Grevis Beard, Director, Worklogic
The establishment of the Fair Work Commission’s bullying jurisdiction means that you must
ensure that you properly respond to and investigate any allegations of bullying. If you are
tempted to run a ‘quick and dirty’ investigation so that the complaint will disappear, if you
think “that could never happen here” or, even worse, you think “that’s the way we do things
around here – the complainant should toughen up”, then it’s time for a rethink.
When should you conduct an investigation into bullying?
SafeWork Australia advises that workplace bullying allegations of a serious or complex
nature should always be investigated, for example, those which:
• cover a long period of time;
• involve multiple workers;
• involve alleged behaviour which is disputed; and/or
• have not been able to be resolved by other processes.
Understand what behaviour constitutes bullying
Prior to conducting an investigation, it is important for you to have a firm understanding of
what conduct constitutes workplace bullying and what does not. SafeWork Australia defines
bullying in its ‘Guide for Preventing and Responding to Workplace Bullying’ (November
2013) as:
“Repeated and unreasonable behaviour directed towards a worker
or a group of workers that creates a risk to health and safety.”
Conducting an investigation is not bullying
In its first decision in the bullying jurisdiction, the Fair Work Commission found that an
employer’s investigation into alleged bullying by a manager did not, itself, constitute bullying
against the manager because the employer had a duty to investigate such complaints. In
that case, conducting an investigation was “the only reasonable and prudent response.” Ms
SB [2014] FWC 2104.
Getting an investigation right
Courts and tribunals have demonstrated a willingness to dismiss a workplace investigation
as flawed where if fails to meet certain key criteria. By taking some important steps you can
ensure that your investigations are fair and stand up to scrutiny in the event that courts or
tribunals are ever involved.
Investigate fairly
Procedural fairness lies at the heart of every good workplace investigation. From court and
tribunal decisions, we can glean some essential steps which you need to follow to ensure a
fair process:
 Give the respondent a clear summary of the allegations against them (Bann v
Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915). Include facts and
behaviour and details of who, what, where and when.
 Inform the respondent, up front, of any likely disciplinary outcomes that may flow if
the allegations were to be found proven.
8

Allow the respondent to have a support person present. Note however, the right to
have a support person does not extend to having an advocate present (Victorian
Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613).
Investigate independently and remain impartial



Avoid actual and perceived bias. Judge each matter on its merits and make sure that
the investigator does not have a pre-determined view of the outcome of the
investigation.
Ensure that there are no conflicts of interest, for example, that the investigator has
not been involved in any of the alleged incidents.
Think carefully about who will be seen as completely impartial and consider whether
it might be wise to engage someone external to the organisation to conduct the
investigation.
Investigate promptly
Complete your investigation in a reasonable timeframe and mange any potential for
delays. In Camilleri v IBM Australia Limited [2014] FWC 5894 (10 September 2014) the Fair
Work Commission found that an IT company had a valid reason to dismiss a project worker
who wrongly made expenses claims but that his dismissal was unfair, partly due to the delay
in investigating the misconduct. In this case, an investigation commenced in May 2013 and
a decision to terminate the employee’s employment was made in December 2013, however
he not suspended until a month later and finally dismissed in March 2014.
Make sure your bullying complaint investigation does not similarly end up stalled.
Investigate rigorously
Be thorough. In Ryan v Department of Human Services [2013] FWC 4060 (9 July 2013) the
Fair Work Commission found that an investigation conducted by Department of Human
Services was flawed, due to the following:
•
•
•
•
•
Failure to properly investigate mitigating factors for misconduct
Failure to provide notes of meeting to employee
Failure to follow internal HR procedures
Failure to take into account employee’s remorse and admission
Failure to take into account employee’s unblemished work record and state of mind
The clear message is that “half baked” investigations which do allow appropriate adherence
to internal policies or fully consider of employee input are inadequate.
Maintain confidentiality
Limit information about the complaint to as few people as possible and conduct interviews
individually and in a discreet location.
Further tips for avoiding a flawed investigation





Interview all relevant witnesses.
Communicate the process clearly to the respondent.
Take contradictory evidence into account.
If required, offer the respondent access to language support.
Make findings on evidence collected after applying the balance of probabilities.
9

Remember that the cases decided by courts and tribunals increasingly demonstrate
what NOT to do. Being aware of what courts find to be flawed investigations will
assist you to make the right decisions about your investigation process.
Summary
Given the individual and organisational risks involved, you must respond effectively to any
bullying complaints. Act quickly, thoroughly and in a fair and rigorous way to uncover the
truth of any concerns raised. In this way, you can know the facts, make reliable decisions to
manage risk, abide by the law and enhance your workplace culture.
10
Aged care manual handling assessment tool – mobile application
Damien Ryan, Executive Manager - Workforce & Safety, LASA Victoria
The prevention of injury and illness to staff in aged care workplaces is a shared value across
LASA members. As an initiative to help members continually improve Manual Handling
(MH) prevention strategies, a new health and safety tool specific to Victorian residential aged
care facilities was released by the Victorian WorkCover Authority (VWA) in September last
year.
The development of the Audit Tool was initiated and overseen by the Aged Care
Stakeholder Forum, a partnership between LASA Victoria and the VWA attended by 20
industry representatives.
The Audit Tool focusses on the prevention of MH injuries to staff involved in people handling
and provides an organisation wide approach to implementing systems relating to resident
handling aids and equipment, resident assessments, staff training, building and work
environment, work organisation, workplace culture, and system evaluation.
The self-assessment tool provides a process to identify gaps against MH minimal
compliance, improved performance and best practice levels in the residential aged care
sector. Whilst not a WorkSafe Inspector tool as such, LASA Victoria has been advised that
inspectors could ask to see results of employer self-assessments.
For a PDF copy of the Audit Tool go to: http://www.worksafe.vic.gov.au/forms-andpublications/forms-and-publications/aged-care-facility-resident-handling-assessment-tool
The Audit Tool has now been placed on a mobile application or ‘app’ called iAuditor (it
should be noted that VWA does not endorse or make any other claims regarding this
product). iAuditor is available for both android and apple devices and is free from the Apple
and Google play stores. Apple devices used to trial the new app have proved much quicker
than older android devices with less memory capacity.
This app allows the Audit Tool checklists to be completed and made available publicly
through its ‘library’ feature. The app enables users to send their final workplace reports via
email in a Word or PDF format for printing. Alternatively a printing option is available at a
cost.
To use the tool simply download the iAuditor app, go to ‘library’ in the menu section and
select the ‘Aged care facility resident handling self assessment tool’.
11
The Complexity of Simplicity
Dr Edwin Trevor-Roberts, CEO, Trevor-Roberts
I was recently talking with the CEO of an NGO in the human services sector about their
organisational structure. We were reviewing how the structure was going, two years after it
was newly implemented. As with any restructure, some parts were working well while other
parts were not. The people the organisation serve - clients in need - were receiving fantastic
service as seen in the increased growth of the organisation, however, internally there was a
lot of noise.
We had facilitated a session with the broader management team to gather their feedback
about what was working well and what was not. The themes that emerged were not
dissimilar to what other organisations struggle with: systems and processes; volume of work;
lack of capability in some leaders; lack of clarity on strategy; and decision making.
Viewed together, the challenges facing the organisation are complex. Throw in a shared
services model and issues of accountability and responsibility become blurred. Our
conversation was far reaching and intense as we fluidly used our systems approach to
restructures to guide our thinking. The more we discussed the complexity, a fascinating
paradox emerged:
The greater the complexity, the simpler the solution
In this case, the simple solution was to focus on the key goals that connect the purpose of
the organisation with the operational strategies. Managers and staff knew what to do, knew
the mission and values but lacked understanding of the connecting piece so that they could
prioritise, and make, decisions.
I'm not suggesting that there won't be complications in implementing the solution, however,
the focus is simple.
In viewing the next period of transition for your organisation, division or team, work hard to
identify and create a simple focus. Creating complexity is easy. Crafting eloquent simplicity
is not. As Mark Twain said: "sorry I wrote you a long letter, I didn't have time to write a short
one".
About Us
Dr Edwin Trevor-Roberts is the CEO of Trevor-Roberts, a national Career Management firm
with particular expertise in the Human Services sector. www.trevor-roberts.com.au
12
Employment Relations Advices
Since the introduction of the new national LASA Employment Relations Advice series fifteen
advices have been published including the following:
N/A
Welcome and Launch
001
Modern Award Wage Tables
002
Fair Work Information Statement (FWIS)
003
Right of Entry – Information and FWC Entry Permit Check Page
004
The Aged Care Workforce Supplement
005
Four Year Modern Awards Review Process
006
Workplace Gender Equality Reporting – Consultation
007
Know Where the Line Is – AHRC
008
Heads Up – New SWA Resources
009
Superannuation Guarantee Rate Changes
010
Enrolled Nurse Standards for Practice – Public Consultation
011
AHPRA Social Media Policy
012
Safe Work Australia Month : October 2014
013
AHRC Workplace Cultural Diversity Tool
014
Workplace Gender Equality Reporting Requirements – Minimum Standards
015
Community Services and Health Industry Council Website Resources
016
Restart Programme
017
Fair Entitlements Guarantee Regulation 2014
018
Modern Award Review Process – Transitional Provisions Proceedings
019
FWC Enterprise Bargaining Benchbook
020
ACTU Outline of Claims - Modern Award Review Process
021
FWC Annual Report
If you have not received a copy of one of the above ERAs please contact your LASA Office.
13