Member assistance

With the immense pressure in our public health services at the moment, many members are reporting missing meal breaks, working unpaid overtime, and having their rosters change at short notice.

Under the previous Victorian public sector nurses and midwives EBA, there was no obligation on the employer to post a roster that reflected their actual rostering intentions. It could also be changed provided 7 days’ notice was given, and if less than 7 days was given, it could still change but you were entitled to a “change of roster” allowance.

Under the 2020-24 Victorian public sector nurses and midwives EBA this 7-day period has been extended to 14 days.

If your roster changes with less than 14 days’ notice you are now entitled to the “change of roster” allowance, and the change of roster allowance for changes with only 7 or less days’ notice has been doubled.

Note this does not apply where you volunteered in advance to work that extra shift on a supplementary roster – see clause 46.2 of the EBA – nor if it arises from a voluntary swapping of shifts between colleagues. Picking up an extra after being bombarded with unwelcome text messages is not a supplementary roster.

Write to your manager and payroll office

If your roster changes with less than 14 days’ notice and you have not been paid the change of roster allowance, make sure you raise this matter with your manager and payroll in writing, so you have a record.

The following is an example of your first email re non-payment change of roster allowance 

To: “immediate manager” “Payroll”

cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write to formally request that I receive payment of the Change of Roster Allowance I believe I am entitled to.

In pay period ending xx/xx I <<picked up additional shifts>> and/or <<my roster changed without 14 days’ notice>> on the following occasions:

<<insert shift dates>>

I request that this underpayment be rectified in my next pay. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<Name>>,<<employee number>>

If you don’t receive a positive response – or indeed any response – please send a second email for example as follows:

To: “HR manager” “Payroll Manager”
cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write further to my email of xx date to formally escalate my request that I receive an offline payment to rectify an underpayment I am owed.

I requested that this underpayment be rectified within 7 days. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<Name>>,<<employee number>>

If you don’t receive a positive response – or indeed any response to your second email, please notify ANMF via anmfvic.asn.au/memberassistance (scroll down for button to login)

What is the change of roster allowance?

Change of Roster without 14 days’ notice – $33.10 per occasion

Change of Roster without 7 days’ notice – $66.20 per occasion

Who is entitled to the Lead Apron allowance?

From 1 July 2020, under the 2020-2024 EBA, nurses and midwives who are required, as part of their usual duties, to wear a lead apron are entitled to the Lead Apron Allowance.

The Allowance was $8.00 a shift until December 2020 and is currently $8.24 a shift.

Example 1 Nurses/Midwives required to wear a lead apron when working within Interventional Radiology and Cardiac Catheter Laboratory.

Example 2 Nurses/Midwives required to wear a lead apron when working in operating suites utilising fluoroscopy or cineangiography.

If it arises, other speciality units/areas may be escalated to ANMF for discussion with VHIA.

Is there a minimum period I need to wear a Lead Apron to be eligible?

No. There is no minimum period you need to wear a Lead Apron in these areas each day to qualify for the allowance payment.

Does the Employer need to confirm I have worn a lead apron on a particular shift?

No, as the allowance is paid on usual duties.

Is the Lead Apron allowance payable on recall or overtime?

No, just on rostered ordinary time Why is the allowance paid daily? The allowance is paid daily on the basis that your ordinary duty may be linked to a particular pattern of work. For example, you may provide a particular service every Thursday in a work environment that requires you to wear a lead apron. This situation would lead to you receiving the daily allowance for part of your work week but not all of it.

Staff required to wear a lead apron in operating suites where particular procedures take place utilising fluoroscopy or cineangiography would not receive the allowance on shifts where such procedures do not take place.

Do casual employees receive the Lead Apron allowance?

Casual Employees are not excluded from the lead apron allowance clause so it will depend on whether the employee is required, as part of their usual duties, to wear a lead apron.

ANMF believe it appropriate that if a casual is used to fill a position that would have been eligible for the Lead Apron allowance, the allowance should be paid.

The following is an example of your first email re non-payment Lead Apron Allowance:

To: “immediate manager” “Payroll”

cc: records@anmfvic.asn.au

Re: Underpayment of wages – Lead Apron Allowance

I write to formally request that I receive payment of the Lead Apron Allowance I believe I am entitled to.

In pay period ending xx/xx my usual duties involved wearing a lead apron on the following occasions:

<<insert shift dates>>

I request that this underpayment be rectified in my next pay. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<< Name >>, <<employee number>>

If you don’t receive a positive response – or indeed any response – please send a second email for example as follows:

To: “HR manager” “Payroll Manager”

cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write further to my email of xx date to formally escalate my request that I receive an offline payment to rectify an underpayment I am owed.

I requested that this underpayment be rectified within 7 days.

I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<< Name >>, <<employee number>>

If you don’t receive a positive response – or indeed any response to your second email, please notify ANMF member assistance (scroll down for button to login).

With the immense pressure in our public health services at the moment, many members are reporting missing meal breaks, working unpaid overtime, and having their rosters change at short notice.

The 2020-24 Victorian public sector nurses and midwives EBA contains provisions that address these, but regrettably unless you claim it, it appears you are not going to always receive those benefits.

Examples of how to make a claim can be found here anmfvic.asn.au/underpayment

Missing a meal break?

1. Firstly, the rosters clause requires that the times for meal breaks are included on the roster. A ward might have two or three meal break times for each shift, and each nurse or midwife should be allocated to one of those established meal break times. This becomes your ‘scheduled meal break’. This is to avoid an argument that if you were too busy to take a break that was your problem.
2. Secondly you cannot be required to stay on the ward/unit for your unpaid meal break. That triggers a requirement that the break be a paid break.
3. Thirdly, if you miss out on your ‘scheduled meal break’ on occasions, there is an escalation process to be followed to both address the delayed meal break and make systemic changes to avoid it happening again.
4. Finally, the ‘crib time’ provision from the earlier EBAs (and indeed from the Award of the 1980s) has changed from “may” to “will” operate. If you regularly miss out on your break, then you must get a paid meal break of at least 20 minutes between 3 and 5 hours of commencing your shift.

Write to your manager and payroll office

If you believe you are entitled to paid meal break and you have not been paid, make sure you raise the matter with your manager and payroll in writing, so you have a record.

The following is an example of a first email re meal breaks

To: “immediate manager” “Payroll”

cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write to formally request that I receive payment for meal breaks that I believe I am entitled to.

In pay period ending xx/xx I <<worked through my scheduled meal breaks>> or <<was directed not to leave the ward during my meal break>> due to how busy the ward was on the following shifts:

<<insert shift dates>>

I request that this underpayment be rectified as soon as possible. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<Name>>,<<employee number>>

If you don’t receive a positive response – or indeed any response – please send a second email along for example as follows:

To: “HR manager” “Payroll Manager”
cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write further to my email of xx date to formally escalate my request that I receive an offline payment to rectify an underpayment I am owed.

I requested that this underpayment be rectified within 7 days. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<name>>

If you don’t receive a positive response – or indeed any response – please notify ANMF via anmfvic.asn.au/memberassistance (scroll down for button to login).

With the immense pressure in our public health services at the moment, many members are reporting missing meal breaks, working unpaid overtime, and having their rosters change at short notice.

Overtime

ANMF recognises that, for a number of reasons, members work overtime but do not always get paid. In each EBA we try and make the process for approval of overtime easier. The most common reason that members report not being paid overtime is that the overtime was not approved by the appropriate manager.

Clause 49.4 of the 2020-24 Victorian nurses and midwives enterprise agreement addresses this by clarifying that a request or direction made by the nurse or midwife in charge of the ward that you work overtime, is approved overtime. Whether that was also approved by a more senior nurse or midwife is irrelevant to your entitlement to be paid.

ANMF expects employers will create policies and procedures regarding the process the nurse or midwife in charge of the ward takes in approving overtime. Whether this has been done or not, you remain entitled to overtime.

When is overtime payable?

Typically:

1. when you are requested or directed to work beyond your rostered shift.
2. when you work more than 76 hours in a fortnight

What are the overtime penalties?

Write to your manager and payroll office

If you have worked overtime and have not been paid it, make sure you raise the matter with your manager and payroll in writing, so you have a record.

The following is an example of your first email re non-payment of overtime 

To: “immediate manager” “Payroll”

cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write to formally request that I receive payment of overtime I believe I am entitled to.

In pay period ending xx/xx

I << worked beyond my rostered shift/s >> on the following occasions:

OR

I worked more than 76 hours in a fortnight

I request that this underpayment be rectified in my next pay. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<Name>>,<<employee number>>

If you don’t receive a positive response – or indeed any response – please send a second email for example as follows:

To: “HR manager” “Payroll Manager”
cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write further to my email of xx date to formally escalate my request that I receive an offline payment to rectify an underpayment I am owed.

I requested that this underpayment be rectified within 7 days. I am happy to meet at a mutually acceptable time, accompanied by the ANMF Organiser, should you require this.

<<Name>>,<<employee number>>

If you don’t receive a positive response – or indeed any response after your second attempt – please notify ANMF via anmfvic.asn.au/memberassistance (scroll down for button to login)

Please also note that you may also be entitled to an overtime meal allowance if:

In addition to a shift, you are required to work more than:

• one hour beyond the usual finishing hour of work Allowance A applies; or
• five hours beyond your usual finishing hour of work Allowance A and Allowance B applies

On a rostered day off when you work more than:

• five hours overtime Allowance A applies; or
• nine hours overtime Allowance A and Allowance B –applies

Allowance A is $14.31 and Allowance B is $11.44

The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024, sets out various circumstances in which a nurse or a midwife may be eligible for a qualification allowance.

Levels of qualification allowance – registered nurses and midwives

4.0% of Base Rate – for a Hospital Certificate or Graduate Certificate or equivalent

6.5% of Base Rate – for a Postgraduate Diploma, Degree or a Double Degree

7.5% of Base Rate – for a Masters

10% of Base Rate – for a Doctorate or a PhD

Calculating the entitlement

The above allowances are all based on a percentage of the “Base Rate”, not your personal rate of pay. Base rate is defined as the “weekly ordinary full-time wage of a RN/M3”.

Appendix 2 contains those rates (amongst others)

Applying the percentage to the above rates, and we arrive at this:

Does the course need to be undertaken after initial registration? 

No, such as someone with a double or dual degree or master’s entry, but the EBA requires you to have completed a year of service after completion of the qualification before becoming eligible.

Does the course need to be relevant?

Yes, but the EBA contains the criteria for this. The course, or a component of it, must be relevant having regard to: 

• the nature of the education; and
• the current area of practice of the employee; and other considerations may include:
• the clinical or other area of work of the employee
• the classification and position description of the employee
• whether the education would assist the employee in performing their role and/or assist in maintaining quality patient care, and/or 
• assist in the administration of the ward/unit/area in which the employee is employed.

Does the course need to be tertiary accredited?

Generally yes, or you will need to show evidence from the education provider that it is the equivalent of, for example, a graduate certificate.

What is a hospital certificate?

A hospital certificate is post-registration qualification equivalent to what would now be a post graduate certificate or diploma. 

I am required to hold a current Cert IV TAE. Am I eligible?

Yes, from 1 January 2021 if your employer requires the Cert IV TAE (or equivalent) for you to undertake your role. There is no relevance test other than this. The TAE attracts an allowance of 3.5% of the Base Rate per week.

I have more than qualification. Can I get two qualification allowances?

No (with the possible exception of RIPN, below). You only receive one qualification allowance, being for the qualification that attracts the highest payment.

What is the RIPN allowance?

The Rural and Isolated Practice Allowance applies to a Rural and Isolated Practice Nurse (RIPN).

A RIPN is a registered nurse or midwife who has:

• completed the education to undertake the duties of a Rural and Isolated Practice Nurse (RIPN) (or equivalent); and
• whose employer may from time to time require them to undertake the duties of a RIPN Nurse (or equivalent).

How much is the RIPN allowance?

The RIPN allowance is 4% of the Base Rate on all hours, including overtime.

For a full-time employee performing no overtime, the weekly rate is:

This allowance is to be included as salary for all employment related purposes including superannuation and leave entitlements.

Can I get a qualification allowance and the RIPN allowance?

Yes, if you qualify for both, and your qualification allowance is not based on the same education that qualifies you for the RIPN allowance. 

Levels of qualification allowance – enrolled nurses

An enrolled nurse who holds a relevant certificate or qualification will be paid the following allowance:

4% of the weekly rate for an EN 1.6 – for a certificate or qualification for a course of six months’ duration.

7.5% of the weekly rate for an EN 1.6 – for a certificate or qualification for a course of 12 months’ duration.

Applying the percentage to the above rates, and we arrive at this:

What courses are eligible?

The EBA names the following four courses:

This is because some enrolled nurses completed these courses when they were available and continue to receive the allowance.

However, an enrolled nurse who holds any other relevant certificate or qualification, which may from time to time be approved by the NMBA, is entitled to a qualification allowance in accordance with this clause.

What evidence do I need to provide?

You will meet the evidence requirements if you have provided your employer with evidence from the education/training provider that would satisfy a reasonable person that you have obtained the qualification for which the allowance is claimed. For example:

• the award of the qualification; or
• the certificate of the qualification; or
• transcript from the education/training provider.

The allowance is payable from the pay period on or after the evidence is provided.

Do I receive the qualification allowance when I am on leave?

Yes, if you are an enrolled nurse.

For a registered nurse or midwife, your qualification allowance will be paid during all periods of leave except sick leave beyond 21 days in any 12-month period, and long service leave.

In the case of annual leave, a qualification allowance is added to those components that form the ‘projected roster’ leave loading mode. If you receive the 17.5% leave loading mode, you do not receive the allowance in addition to leave loading.

I am part time. Do I receive the same amount?

No. All the allowances are paid on a pro-rata basis for part-time and casual employees.

Generally, no. However, if you have ‘excess’ annual leave, the rules are a bit more complex.

How much annual leave is ‘excess annual leave’? 

Any amount exceeding what you accrue in two years. So, if you are entitled to five weeks annual leave a year, any amount in excess of 10 weeks.

My annual leave is in hours, not weeks; how do I work that out?

For a full-time employee, just divide the hours by 38 to determine the number of weeks.
As a part-time employee, divide the annual leave hours by your average hours per week to estimate the number of weeks.

I have excess annual leave; what can happen?

Your employer may seek to confer with you and ‘genuinely try to reach agreement’ on how to reduce or eliminate your excess leave accrual.

What does 'genuinely trying to reach agreement' mean? 

Your employer must provide you a reasonable opportunity to submit a leave plan to reduce the leave to not less than eight (8) weeks over the coming six months.

However, your employer cannot unreasonably refuse to agree to a leave reduction plan that includes saving leave for an extended vacation within 12 months of the date of agreement to the leave reduction plan.

Any ‘leave reduction plan’ must be in writing and signed by both you and your employer.

What if we cannot reach agreement?

Where your employer has genuinely tried to reach agreement with you (as above) but agreement is not reached (including because you refuse to participate), your employer may direct you, in writing, to take one or more periods of paid annual leave.

But your employer cannot direct you to take so much annual leave that you end up with less than eight weeks accrued annual leave, nor can they require you take a period of annual leave of less than one working week. 

Your employer cannot require you to take a period of paid annual leave beginning less than eight weeks or more than 12 months after the direction is given; and the direction must not be inconsistent with any ‘leave reduction plan’ already agreed (see above).

Must I follow the direction to take annual leave?

Generally yes, however in some circumstances you may request to take a period of paid annual leave ‘as if the direction had not been given’.

If you have genuinely tried to reach agreement with your employer (as above) but agreement is not reached (including because the employer refuses to participate) you may give written notice to your employer requesting to take one or more periods of paid annual leave of up to one year’s accrual. 

This applies if:

1. You have had ‘excess annual leave’ for more than six months at the time of giving the notice
2. You have not been given a direction to take annual leave that, when any other paid annual leave arrangements are taken into account, would eliminate your ‘excess annual leave’
3. You would not, if the leave was granted, have less than six weeks leave accrued
4. The leave must be in periods of one-week annual leave or more
5. The leave must commence no sooner than eight weeks or be more than 12 months after the notice is given.

Where you give written notice to your employer (as above), your employer must grant the paid annual leave request.

Disputes regarding excess annual leave

The ANMF, on your behalf, may refer a dispute about the following matters to the Fair Work Commission:

1. a dispute about whether your employer or you have requested a meeting and genuinely tried to reach agreement
2. a dispute about whether your employer has unreasonably refused to agree to your request to take paid annual leave
3. a dispute about whether a direction to take leave complies
4. a dispute about a leave reduction plan.

If you are currently a full- or part-time employee under the Victorian public sector nurses and midwives agreement, and are considering converting to casual employment, there are several things to consider before making that decision.

What do I get as a casual that I don’t get as a full- or part-time employee?

You receive a 25% loading on your hourly rate.

Access to long service leave at seven years’ service (currently eight years’ service required for full and part-time employees, and from July 2023 it will be the same – seven years)

What do I miss out on as a casual employee?

No guaranteed minimum hours

No paid annual leave

No paid personal leave

You begin accruing long service leave at half the rate you do as a full- or part-time employee

No access to purchased leave

No paid compassionate leave

No paid family violence leave

No payment for absences on defence leave

No paid professional development leave other than for mandatory training

No paid study leave

No paid examination leave

No rosters

No change of roster allowance

No redeployment allowance

No special disaster leave

No notice period before termination

Is my employer obliged to allow me to become casual?

No. In fact your employer may require you to formally apply for a casual position.

Many employers, even if they do agree, will make you go three months without a shift to avoid any continuity of service for long service leave purposes.

Can I be a CNS or CMS and be casual?

The classification of clinical nurse specialist or clinical midwife specialist is only available to full- and part-time employees, not casual employees.

What happens to my accrued sick leave?

It simply disappears and is no longer available.

What happens to my accrued annual leave?

It will typically be paid out in lieu on conversion to casual employment and you cease accruing further annual leave.

What happens to my accrued long service leave?

That depends on how many years of service you have.

If you have less than the threshold amount of service (currently 8 years’ service, and from July 2023 it will be 7 years) then it remains and (if you do not have a three-month gap between shifts) you begin accruing at the lower rate of 0.86 weeks per year of service, compared to 1.73 per year as a part- or full-time employee.

If you have met the threshold, it will be paid out on termination of your full- or part-time employment, even if you remain on staff as a casual.

You cannot transfer service from one employer to another while casual. You can transfer your service to another full- or part-time role at another health service, and remain on casual bank with your current employer.

Slightly different and more complex rules apply to enrolled nurses, and affected ENs should seek individual advice from the Member Assistance Team by submitting an online inquiry form.

There are a range of answers to this question, depending on your current circumstances.

Clearly you can apply for a permanent full- or part-time vacancy, and if successful, you will become permanent.

If you are casual, but work reasonably predictable hours or shifts, then you may already be wrongly classified as casual, when you should more properly be part-time. Clause 18.2 of the EBA recognises that a part-time employee’s hours may vary from week to week by mutual agreement.

A casual is defined as someone who:

(i) is made an offer of employment on the basis that the Employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work (e.g. relief work such as replacing an employee on an unplanned absence); and

(ii) accepts the offer of employment on that basis; and

(iii) is an Employee as a result of that acceptance.

If you work on a continuing, indefinite basis and work shifts that are effectively vacant (as distinct from backfilling someone on leave) then you really can’t be casual.

What about the EBA casual conversion clause?

If you were:

1. employed as at 27 September 2021 in a casual position; and

2. been in that position for 12 months or more, and

3. for at least six months had worked a regular pattern of hours on an ongoing basis, without significant adjustment

you should have received a written notice (within 21 days of 27 September 2021) from your employer:

1. offering to convert your position to part-time employment that is consistent with the regular pattern of hours worked during that period.
   
   or
   
   
2. explaining why such an offer was not made.
   
   

Is it too late to make a request?

No. A casual employee may make a request to convert to part-time if:

1. you has been employed by the employer for a period of at least 6 months; and
   
   
2. you have, in the 6 months preceding your request, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, and
   
   
3. all of the following apply:
   
   a. you have not refused an offer to be part-time or full-time in that 6-month period; or
   b. your employer has not, at any time during that 6-month period, given you a written notice explaining why such an offer wasn’t made.

How do I make a request?

The request to your employer must: 

1. be in writing
   
   
2. clearly state that it is a request for you to convert to full-time or part-time reflecting the shifts you have been working.

Your employer must give you a written response to the request within 21 days after the request is given to them, stating whether they grant or refuse the request.

Your employer must not refuse the request unless:

1. the Employer has consulted with you;
   
   
2. there are reasonable grounds the refuse the request; and
   
   
3. the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of refusing the request.

What are ‘reasonable grounds for refusing a request’ ?

1. it would require a significant adjustment to your hours of work for you to be employed as a full-time employee or part-time employee
   
   
2. your position will cease to exist in the period of 12 months after making the request;
   
   
3. the hours of work you are required to perform will be significantly reduced in the period of 12 months after making the request;
   
   
4. there will be a significant change in either or both of the following in the period of 12 months after giving the request:
   
   a. the days on which your hours of work are required to be performed; or
   
   b. the times at which your hours of work are required to be performed;
   
   which cannot be accommodated within the days or times you are available to work during that period.

What if my employer grants my request?

If your employer grants the request, they must, within 21 days of the day the request is given, provide written notice to you of the following:

1. whether you are converting to full-time employment of part-time employment
   
   
2. your pattern of hours or shifts after the conversion takes effect
   
   
3. the day your conversion to full-time or part-time employment takes effect.

However, the Employer must discuss with you matters they intend to specify (above) before giving the notice.
You then convert on the day of the first full pay period that starts after the day the notice is given, unless you both agree to another day.

Will my previous casual service count?

Yes, for increments within grades, and for long service leave.

Your start date for accruing LSL will stay the same, but you will start accruing LSL at the higher accrual rate of 1.73 weeks per years of service, instead of .866 weeks per year of service as a casual registered nurse or midwife. Note that the accrual rate for casual enrolled nurses is the same as that for a full- or part-time enrolled nurse.

You will commence accrual of annual leave and personal leave from the date of your conversion.

You will have access to paid compassionate leave, study leave, exam leave and professional development leave (and a range of other benefits) from your conversion date.

Members should get four clear days off a fortnight, in an ideal world, but that is not always feasible.

So clause 58 of the EBA seeks to compensate members who do not get four clear days off per fortnight because of being on-call on your days off.

To add a degree of difficulty, the clause does not look at fortnights; it looks at four-week blocks.

Then to add a twist, the clause has been lifted from a Western Australian clause and assumes that people only have four weeks annual leave a year. So 52 weeks – minus four weeks annual leave – is 48 weeks. That can be separated into 12 ‘four-week’ blocks (12 x 4 = 48).

If in a 12-month period you have only one four-week block in which you did not get four clear days off in one or both fortnights, there is no compensation. But it does improve from there.

If in a 12-month period you have five four-week blocks in which you did not get four clear days off in one or both fortnights, you get one additional day’s annual leave.

As the number of four-week blocks affected over the 12 months increases, so does your entitlement to additional annual leave – to a maximum of five additional days of annual leave if you had 12 or more four-week blocks without four clear days off.

This is calculated annually by looking backwards from a date between 1 December and 30 December and reviewing the number of four-week cycles.

Decades ago, prior to national registration in Australia, there used to be separate ‘divisions’ for mental health nurses on the Victorian nursing register. A registered nurse with a mental health specific qualification was called a Registered Psychiatric Nurse (RPN) and an enrolled nurse with mental health specific qualification was called a Psychiatric Enrolled Nurse (PEN). These distinctions no longer exist in the registration scheme.

RPN and PEN continue to exist as grades or classifications in the Mental Health EBA, but not in the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024 or its predecessors. Despite their different terminology, the wages and conditions of the respective EBAs, as they apply to nurses, are almost identical except where there is a delay between the conclusion of enterprise bargaining for the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement and conclusion of bargaining for the MH EBA, and this delay can be longer than a year.

The Mental Health EBA could be described as an ‘industry’ EBA, as it covers not only nurses but virtually any employee of a public mental health service, while the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024 is more akin to an occupational EBA, covering nurses and midwives wherever they work in the public sector

Obviously, that makes determining which EBA applies to a particular nurse a little complex. It isn’t determined by what nursing specialty you consider yourself in, or that you work in a specialty mental health ward, but rather whether your ward or service is organisationally part of your employer’s mental health program.
For a nurse, including someone who identifies as a psychiatric or mental health nurse, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024 contains an example of how this works:

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drug issues is covered by this Agreement given the work of the relevant department as a whole.

You will see it is the department that is the focus, and of course an emergency department is not part of an employer’s mental health program, notwithstanding that it provides mental health care.

A nurse employed by and in the employer’s mental health program, such as an ECAT nurse, is covered by the mental health EBA even if stationed in the ED, because they are embedded in and responsible to the employer’s mental health program.

Similarly, if you work in a specialist aged persons mental health ward, to determine which EBA applies you need to understand if that ward is part of your employer’s mental health program (in which case the MH EBA applies) or, as is commonly the case, part of the employer’s aged care program (in which case the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement applies).

The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024 contains the following clauses describing this; the new Mental Health EBA will have complimentary clauses:

4(nn) Registered Nurse means a person registered in Division 1 Registered Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioners Regulation National Law Act 2009 but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, 'employed solely or predominantly in the provision of Public Mental Health Services', refers to the service, department, unit or program of the Employer rather than the duties of the individual employee

(4)(t) Enrolled Nurse means a person registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 and includes a person:
registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 with a standard condition "may practise only in the area of mothercraft nursing"; or

but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, 'employed solely or predominantly in the provision of Public Mental Health Services', refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024, for the first time, includes a definition of ‘campus’.

This has been included to make it easier to understand and enforce various obligations that relate to a ‘campus’ that were previously not defined. For example, the EBA requires that a director of nursing be appointed for each campus, and that after hours coordinator be appointed to cover all off-duty periods of the campus DON. The grade for each of these roles also depends on which column the campus is named in.

In introducing the definition (and the obligations that follow), a ‘one off’ opportunity was provided for a health service who was not complying with the obligations at a particular campus (typically small residential aged care services) to put a case to maintain the status quo. As of 12 July 2021, only three sites have been the subject of such an application.

The following is the EBA definition of campus:

4(j) Campus means a site operated by an Employer that provides day procedure surgery or multi-day inpatient services or residential aged care but excludes:

(i) a site that is a Community Health Centre;

(ii) a site where the only service is Aged Care beds that do not meet the definition of High Care beds under the Safe Patient Care Act;

(iii) Dental Health Services Victoria;

(iv) Private residences; and

(v) a Campus during any period of a formal written Agreement signed by the ANMF Branch Secretary and the Employer made after 24 August 2020 and before 1 July 2021 specifying that the campus is excluded from the operation of this clause,

provided that a satellite service co-located on a Campus controlled by another Employer is not a separate Campus for the purposes of this Agreement.
For reference, a list of campuses as at the date of this Agreement is at Appendix 8.

Registered nurses and midwives (and in recent EBAs enrolled nurses) are entitled to a minimum of five weeks (190 hours for full time employees) of annual leave per year of service. In certain circumstances you could become entitled to an additional (or sixth) week (38 hours for full-time employees) of annual leave.

The circumstances for full-time employees were reasonably clear, if you worked on weekdays and weekends throughout the qualifying year of service you were entitled to the sixth week of annual leave (the old test).

It became less clear if you were full time and worked some weekends during the year of service but not consistently across the year. Disputes arose with employers about this during the life of the 2016-2020 EBA, despite the words having not changed in that part of the clause since the 1980s.
These disputes about the old test centred on whether there was a minimum number of weekends an employee needed to work, ANMF’s long held view was there was not. If you, for example, changed jobs and became, or stopped being, a weekend worker for part of the year then a separate clause provided that would receive half a day’s annual leave for each month in which you worked weekends, up to a maximum of 10 half days, i.e. - five days of annual leave.

If you were part time, the entitlement was even more controversial with employers, many claimed that being full time was a pre-requisite, and hence no part time employee could ever be eligible. The discriminatory nature of this proposition, in a predominantly female part time workforce, was used by ANMF to argue for the clause to change

What changed in the 2020-2024 EBA?

From 1 July 2022:

1. a full-time employee who works ‘ordinary hours’ on at least ten weekends in a year, is clearly entitled to the sixth week of annual leave.
   
   
2. a full-time employee who works ‘ordinary hours’ on less than ten weekends in a year is entitled to 3.8 hours of additional annual leave for each weekend worked, to a maximum of 38 hours.

I work part time, am I eligible for a sixth week of leave?

Yes, from 1 July 2022 annual leave (including the sixth week) will accrue progressively to a part-time employee on a pro rata basis.

Examples of pro rata accrual of additional annual leave for part time employees:

• a part-time employee who works 16 hours in a week, and works 10 weekends in a year accrues an extra week of annual leave at 16 hours, i.e. a total of five weeks at 16 hours per week (80 hours) plus another 16 hours for a total of 96 hours annual leave
  
  
• a part-time employee who works 16 hours a week but also works additional ordinary hours from time to time, and works 10 weekends in a year, accrues an extra week of annual leave at their average hours over the accrual period, i.e. a total of five weeks at their average hours per week e.g. 24 hours (96 hours) plus another 24 hours for a total of 120 hours annual leave
  
  
• part-time employee who works some weekends, but not 10. Rather than accruing 3.8 hours per occasion to a maximum of 38 hours as a full-time employee would, the part-time employee is entitled to the pro-rata equivalent of 3.8 hours per occasion - in the case of an employee working or averaging 24 hours per week, that employee would receive 2.4 hours of annual leave per occasion to a maximum of 24 hours additional leave during the accrual period.

I used to get six weeks annual leave, now my employer is saying I don’t meet the new test

If an employee is a weekend worker as at 30 June 2022 (or would be a weekend worker but for the operation of a flexible working arrangement or an absence from work on parental leave), the sixth week of annual leave will continue to apply to that employee after 1 July 2022 unless or until:

• the new arrangement applicable on and from 1 July 2022 is more beneficial for the employee
  
  
• the employee changes employers
  
  
• the employee requests (and the employer agrees) to move the employee from full-time to part-time employment (other than as part of a flexible working arrangement, family violence arrangement or reduced hours on return from parental leave); or
  
  
• the employee initiates a change that means they no longer perform weekend work. For example:

• where an employee requests a change to a different role that does not require the performance of weekend work
  
  
• where an employee requests to move from a rotating or similar roster that includes weekends, to fixed shifts that do not include weekend work; or
  
  
• where an employee (at their request) relocates to a ward with a different system of work (for the removal of doubt, this does not include where an employee requests to move to a ward with the same general system of work).

The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020—2024, provides ‘annual increments’ for a number of grades, in particular enrolled nurses, and commencing registered nurses and midwives.

An increment is usually described as a ‘year’, such as Grade 2 Year 5, or EN 2 Year 4. 

You progress from one increment to the next, on your “anniversary date” provided you have completed sufficient shifts/hours in the preceding year. Your anniversary date is the date you commenced work as a registered nurse, registered midwife or enrolled nurse following registration.

To progress through an increment in one year, you need to average three shifts or more per week, or average 48 hours or more per fortnight, in your anniversary year.

If you average less than three shifts per week or 48 hours per fortnight (whichever is the lesser), you will need to complete an additional year to advance to the next increment.

Note 1: that for RUSONs and RUSOMs, a year is 12 months of service, regardless of the hours, to progress between year of experience in a RUSON or RUSOM role. 

Note 2: that for a registered nurse who subsequently becomes registered as a midwife, previous experience as a registered nurse counts towards year of experience as a midwife. 

Example: 

Your first nursing/midwifery shift commences on 10 January 2017.

The date you commenced work after registration becomes your “anniversary date”. If that date was 10 January 2017 (and you can provide evidence to support your experience) the table below would be a way to determine your increment in Victoria:

What if my previous experience was outside Australia?

If you were educated and commenced your career outside Australia, previous service will count, provided your education is deemed to be equivalent to Australian nursing and midwifery pre-registration education.

If you were required by the Australian professional registration body to undertake either a bridging program or outcome-based assessment (OBA) this means your case was not deemed equivalent, and your previous experience is not counted. In this case your anniversary date is the date of the first shift you do following registration in Australia.

Example:

Your first nursing/midwifery role in Australia commences on 4 June 2021. You receive unconditional registration as a registered nurse without an OBA and have four years overseas experience.

The date you commenced work after registration (no matter the country) becomes your “anniversary date”. If that date was 10 January 2017 (and you can provide evidence to support your overseas experience) the table below would be a way to determine your increment in Victoria:

For registered nurses and midwives - first look at Clause 83 of the EBA.

Part 1 (clauses 83.1 - 82.3) explains the scope of the clause and the applicable definitions;

Part 2 (clauses 83.3) sets out the classification descriptors for Registered Nurses and Registered Midwives;

Part 3 (clauses 83.4 - 83.6) sets out the application process for Clinical Nurse/Midwife Specialist positions, the transfer arrangements of CNS/CMS status to a new employer, and when the requirements of continuing to meet the CNS/CMS criteria must occur; and

Part 4 (clauses 83.7 - 83.38) sets out the grades that apply to your classifications as set out in Part 2 or clause 90.

If you cannot find a description of your role there, try clause 90.

For enrolled nurses – first look at clause 82 and 35.2

For registered undergraduate students of nursing (RUSONs) and registered undergraduate students of midwifery (RUSOMs) see clause 85A

What is the difference between a classification, a grade, an increment and a pay code?

Classification means the term the EBA uses to describe your position (regardless of the local job title at your workplace) – for example After Hours Co-ordinator (which attracts one of the NM5 grades). Each classification, and a descriptor, can be found in clause 82 (for enrolled nurses, and also see clause 35.2) clause 83 (most commonly for registered nurses and midwives) clause 85 and clause 90.

Grade means the salary grade applicable to your position as described in the EBA – this grade determines your minimum salary, for example NM5 is a grade. Under previous agreements common grades were Grade 3A or Grade 4B, these have been subsumed into the new grading structure.

Sub-grade refers to a grade that has multiple salary points, for example the CAPR3 Grade has two sub-grades, CAPR 3.1 and CAPR 3.2.

Increment refers to a grade that has multiple salary points, but progress through those salary points does not require a change in role and is typically achieved with a year of experience. An example of this is what earlier EBAs referred to a Grade 2 Nurse or Midwife, who (for example) on their third year of experience progresses from Grade 2 Year 3 to Grade 2 Year 4, now RN/M3 to RN/M4 under the new structure.

Pay code is an alphanumeric code used by payroll to describe the grade that you are employed at. For example, a Grade 2 Year 3 nurse had a pay code of YP4, and a Grade 2 Year 3 midwife had a pay code of YS3, and enrolled nurses had pay codes beginning with IB. Pay codes play no role in the EBA but are referenced for convenience in the salary tables. With the expanded classifications in the new EBA, a number of new pay codes have been created to accommodate this. Your pay code is usually found in your salary payslip.

What if I cannot find my classification in the EBA?

Contact our Member Assistance Team via the online inquiry form, providing a description of your role. Our MAT staff are familiar with the EBA and most of its intricacies.

What if there is no EBA classification for my role?

The EBA seeks to comprehensively provide classifications and grades for all nursing and midwifery roles. But it also recognises that there are emerging roles that may not have a current EBA classification and grade.

In that case the matter is referred, under Clause 14, to the “Statewide Industry Panel”.

The Statewide Industry Panel (Panel) can undertake (relevantly) the following functions:

Determine applications regarding classifications where:

1. an employee's position or position the employer proposes to create is not subject to an existing classification in the Agreement
2. an employer proposes to create a position not subject to an existing classification in the Agreement
3. there is a dispute about an existing classification
4. a dispute about which the categorisation of the campus or health service.

When to make an application to the Panel

It is critical that members make contact with ANMF if their employer has made an application, or the member recognises that they do not have a classification.

• an employer should notify the Panel within 14 days of becoming aware of the absence of a classification
• by the ANMF if the employer has been notified in writing of the intention to make an application to the Panel; and 28 days have elapsed since that notification.
• by the ANMF after 28 days have elapsed for a new position where the employer has not notified the Panel.

   

• Either the employer, or the ANMF, can make an application to the Panel regarding a dispute about an employee’s classification where the Parties have attempted to resolve the dispute at the workplace first.

What does the Panel consider?

The Panel will utilise available research-based skill matrices and other relevant material and determine the classification on the inherent requirements of the position, not those of the individual in the position.

The Panel may otherwise inform itself in any manner it sees fit including seeking the views of an expert advisor (who is not an employee of the health service subject of the application) agreed to by the Panel to provide clinical expertise in an area of nursing or midwifery practice in relation to the classification matter under consideration.

How does the Panel arrive at a conclusion?

The Panel will determine applications by majority.

A determination of the Panel will be considered binding unless either the ANMF or VHIA make an application to have the determination reviewed by the Fair Work Commission within 14 days of receiving the Panel’s determination.

What happens in the meantime?

The determined grade will apply from the date of the application, or a later date determined by the Panel. Until the determination of the Panel, the existing grade (where relevant) will continue to apply.

I am in an advanced practice role without an EBA classification, should I make an application to the Panel?

No. The ANMF, the employers, and the Victorian Department of Health (DOH), have agreed to develop and finalise classification descriptors for the CAPR* classification stream (liaison, clinical coordinators and advanced practice) and associated translation arrangements. Pending the outcome, it is not the intention of ANMF or the employers to pursue ad hoc classification reviews of these roles.

To support this, DOH will engage a consultant/s to undertake the classification development work and identify potential options for resolution. These options will be discussed between the ANMF, VHIA and DOH with a view to reaching agreement on and finalising the classification descriptors.

If the DOH, ANMF and the employers are unable to agree on any classification descriptor after considering the options identified by the consultant the outstanding classifications will be referred to a mediator for resolution.

Once all matters are agreed, the final proposals of classification descriptors will be issued to and finalised by the Panel.

(*Clinical, Advanced Practice, Research (CAPR) stream)

I am a Unit Manager, what level should I be?

All NUM and MUM positions in place in 2019 were classified across one of three levels, according to their responses to criteria.

The ANMF, the employer and the DOH are intending to create clear industrial criteria during this EBA to apply to all NUM and MUM positions.

In the interim, new or significantly changed NUM or MUM positions will be assessed against the 2019 criteria.

Background

The entitlement to long service leave for Victorian nurses and midwives employed under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Agreement) is complex. This is because the Agreement is itself complex, and not the only source of an entitlement.

With the exception of enrolled nurses, whose entitlement does not differ on the basis of their employment mode (i.e. casual vs part or full time) the Agreement, previous EBAs and the historical award LSL terms never made provision for LSL for casual employees.

The Victorian Long Service Leave Act (the State Act) did not historically apply to these employees either, as they were excluded because of coverage by a federal award or agreement, even though the instrument contained no entitlement for casual LSL. The State Act was amended in 2005 to extend long service leave entitlements to casual employees.

Changes to the Fair Work Act in 2009 meant that the exclusion of casual employees covered by a federal industrial instrument (i.e. the Agreement and its predecessors) from the Victorian LSL Act no longer applied, subject to the terms of the first EBA made after that date. The next EBA was the tortuous 2011/12 EBA, and no provision was made in that EBA that impacted on this new arrangement.

In a nutshell, it is now clear that from 2009 the State Act applied and continues to apply to casual registered nurses and midwives – and those employees are entitled to long service leave in accordance with the provisions of the State Act

The State Act provides for 13 weeks of paid leave after 15 years, while the Agreement provides for 26 weeks paid leave after 15 years. Therefore casual service accrues LSL at 50% of the quantum that applies to permanent employees. This situation is unchanged from the 2012-2016 Agreement.

The 2016 to 2020 changes

The Agreement LSL clauses continues to have no application to a casual employee, and the State Act applies to those employed on a casual basis, however the Agreement contains new terms that seek to address what happens when a casual registered nurse or midwife ceases to be casual and becomes full or part time. The previous agreement was silent on how this service was to be treated, and there were differing opinions on this.

Note:  an employee's long service leave entitlement is dependent on the employment category of the individual at the time the leave is proposed to be taken  or ‘cashed out’ i.e. an employee taking LSL or receiving a payment in lieu of LSL (e.g. as a lump sum payment upon termination of employment).

Consistent with the lower accrual rates for casual employees under the State Act, the Agreement now clearly states that once a casual employee becomes permanent (subject to continuity of employment/service/allowable period of absence) that service is recognised, but the accrual for each year of casual service is half that which applies to permanent employment.

70.5 (a) provided for previous service (including casual service) with an institution or statutory body to be recognised where the preconditions of that clause are met.

70.5 (b) provides that where an employee has a mixture of full- or part-time employment and casual employment with the same employer, then the combined service as a full-time, part-time and casual employee with that employer can be recognised. The parties' intention is that this clause provides a benefit for full-time and part-time registered nurses or midwives whose prior casual service has not been recognised when calculating their long service leave entitlement.

Table - Long service leave entitlements of employees covered by the Agreement

(see below for important information for enrolled nurses)

The 2020-2024 changes

This clause has been comprehensively rewritten in this iteration of the EBA. It is necessary complex as there are differences between casual employees, and between registered nurses and midwives on the one hand, and enrolled nurses on the other.

The entitlement for full- and part-time registered nurses, midwives and enrolled nurses is the same, but the entitlement for casual registered nurses and midwives differs to that applying to a casual enrolled nurse.

This is due to historical differences in the Awards that once applied more than two decades ago, that are preserved by the National Employment Standards. Casual enrolled nurses had an ‘award entitlement’ to long service leave, while casual registered nurses and midwives had no entitlement until the last few years, and the entitlement that did arise was under the Victorian Long Service Leave Act.

The Victorian Long Service Leave Act has only half the LSL entitlement of that in the EBA (and forms the basis for the different accrual rates) and does not allow you to transfer your casual service between employers.

Part 1 and Part 4 of the 2020-2024 EBA applies to all nurses and midwives.

Part 2 of the 2020-2024 EBA applies to enrolled nurses only

Part 3 of the 2020-2024 EBA applies to casual registered nurses and midwives only (reflecting the Victorian Long Service Leave Act)

For full- and part-time registered nurses and midwives, and for all enrolled nurses, it is six months’ pay after 15 years of ‘continuous service’. You then accrue an additional two months' long service leave on completion of each additional five years of continuous service.

For casual registered nurses and midwives, it is 13 weeks after 15 years of ‘continuous service’.

Where your service is a mix of casual and full or part time, the accrual rates for long service leave entitlement will correspond to the relative periods of each type of the service. That is:

• the periods of full-time/part time service will accrue at the rate of 1.733 weeks per year of eligible service; and
• the periods of eligible casual service will accrue at the rate of 0.8667 weeks per year of eligible service.

Table - Long service leave entitlements of employees covered by the Agreement

Calculating periods of casual and on-casual employment (example)

Q and As

Under the 2020-2024 EBA parental leave taken after 1 November 2018 counts as service – what if I was with a different eligible employer then?

You need to make a written request, accompanied by evidence of your parental leave with your previous employer, to your current employer, seeking that this service be recognised.

You need to do this before 23 August 2022, or within 6 months of returning from parental leave if you are currently on parental leave.

If in doubt contact the ANMF Member Assistance Team via our online inquiry form.

Does clause 70.5(a), which provides for the recognition of service with one or more institutions or statutory bodies, apply to casual employees?

Clause 70.5(a) is only applicable to non-casual registered nurses and midwives, and all enrolled nurses.

For a full or part time registered nurses or full or part time midwives, prior service as a casual employee with your current employer can be counted for the purpose of determining “continuous service”

Are casual registered nurses or casual midwives entitled to long service leave under the Agreement?

Yes, the entitlement to LSL for casual registered nurses or casual midwives is under the Part 3 of the Agreement at .8667 weeks per years of casual service.

Please note that should a casual registered nurses or casual midwife convert to full-time or part-time employment, then clause 70.5(b) of the Agreement will enable the employee to count their prior casual service (at the casual accrual rate) if they are employed full time or part time at the point the long service leave entitlement is accessed.

Can previous casual service with another eligible employer be transferred?

Yes, if you are an enrolled nurse.

Yes, if you are a now full or part time registered nurses/midwife (subject to the allowable period of absence etc)

If I make an application for LSL does my employer have to approve it?

An employer must grant a request to take long service leave as soon as practicable after receiving the request unless the employer has reasonable business grounds for refusing the request.

What if i am working for two employers at the same time?

This is called “concurrent service”. For enrolled nurses, and full-time or part-time registered nurses and midwives, the following examples apply:

Example 1

An employee is employed at the same time by employer A, and employer B.

The employee accrues service towards long service leave at each of employer A and employer B.

If the Award-entitled employee had been employed by employer A for 11 years and employer B for 6 years, the Award-entitled employee can take LSL from employer A, but would need to continue working at employer B until sufficient continuous service had accrued.

If the Award-entitled employee resigned from both employer A and employer B, and went to work for employer C, the Award-entitled employee could:

(a) transfer the 6 years' service with employer B to employer C; and

(b) have the accrued LSL from the 11 years' service with employer A paid out in lieu on termination.

Example 2

An employee has worked for employer A for 6 years. On 1 June 2021, the employee commences employment with employer B as an full- or part-time employee, or as an enrolled nurse. To take up this opportunity, the employee ceases permanent employment with employer A. However, the employee commences a casual employment relationship with employer A within 12 weeks after resigning from their permanent position with employer A.

The employee:

(a) could transfer the 6 years' service with employer A to employer B, and would be eligible to take LSL with employer B once sufficient continuous service had accrued (taking into account the transferred service); and

(b) could take LSL on a pro rata basis with employer A after sufficient continuous service had accrued, save that no entitlement would arise in respect of the prior 6 years' service that has been transferred to employer B.

What if I resign my permanent job, transfer to permanent employment at another public health service, but stay on as a casual at my original employer?

When you convert from permanent to casual, this is treated as a termination of your employment. You can transfer your permanent service to another eligible employer and stay on your original employer’s bank.

Can I work for another employer while on long service leave?

It is an offence under s.35 of the Victorian LSL Act to work during long service leave. However, this only relates to hours that you would have been at work were you not on LSL. For example, if you don’t work weekends in your normal role, you can work weekends elsewhere while on LSL.

It is also an offence for an employer to knowingly employ another person in relation to the hours during which that other person is taking long service leave.

However, there are doubts about whether the LSL Act even applies to employees whose LSL entitlement is in an enterprise agreement, like those working in the public health sector.

Can I transfer my service from one employer to another?

Yes, if you are working for a public sector employer now, and you will be employed by another public health service.

Both your current position, and your new position, must not be casual positions.

Are there any limits?

If you have 15 or more years’ service already, check with our Member Assistance Team first.

You cannot transfer casual service between employers, unless you are full time or part time now, and it is previous casual service with your current employer, and you are taking up a new full or part time job. This should appear on your Certificate of Service.

What do I need to do?

You need to notify your current employer, in writing, that you intend to be employed by another public health employer within the allowable period of absence. This is critical if you already have met the threshold for LSL being paid out on termination.

You then need a Certificate of Service from your current employer, check that it is accurate, and provide that to your new employer, within the ‘allowable period of absence’ between jobs.

What is the allowable period of absence?

It is five weeks, plus any annual leave or long service leave that you are paid on terminating your employment with your first employer.
So, if you were paid out six weeks of annual leave (annual leave cannot be transferred to your new employer) that would be five weeks, plus six weeks, makes eleven weeks maximum between jobs.

My final payment shows annual leave in hours, not weeks, how do I determine weeks?

If you are full time, very easily. Divide the number of hours by 38.

If you are not full time, it does become complicated.

If your hours per week do not vary, then it is simply a matter of dividing the annual leave hours by your standard weekly work hours.

If your hours vary, (or you have reduced your EFT) then you would need to consider an averaging approach as a guide to how many weeks annual leave you have been paid out. It may not be entirely accurate, so you would be well advised to commence your new job with a few weeks up your sleeve. If you think you have 13 weeks to start a new job, you should start much sooner, perhaps a maximum of seven or eight weeks, to keep the margin of error in your favor.

How do I check if my new employer is a ‘public sector’ employer?

There is a list of public sector employers in Appendix 1 of the public sector nurses and midwives’ agreement. All of those in the list are considered public health sector, but it is not an all-inclusive list. See over for public health services as of June 2022.

If you are thinking of moving to an employer you think should or could be public sector, but is not named in Appendix 1, reach out the Member Assistance Team with the name of the employer so we can advise you correctly.

What if I stay on the casual bank with my old employer?

It makes no difference, you can still transfer your service to your new employer.

Can I transfer my service interstate?

Well, we cannot readily answer that, as it isn’t something that the Victorian public sector nurses and midwives EBA can prescribe, it is a matter for the Award or EBA in the state or territory you move to.

List of public sector health employers as of June 2022 (taken from Appendix 1 of the 2020-2024 EBA)

Albury Wodonga Health (Wodonga Hospital)
Alexandra District Hospital
Alfred Health
Alpine Health
Austin Health
Bairnsdale Regional Health Service
Ballarat Health Services
Barwon Health
Bass Coast Health
Beaufort and Skipton Health Service
Beechworth Health Service
Benalla Health
Bendigo Health
Boort District Health
Calvary Health Bethlehem Hospital Limited
Casterton Memorial Hospital
Castlemaine Health
Central Gippsland Health Service
Central Highlands Rural Health
Cohuna District Hospital
Colac Area Health
Corryong Health
Darlingford Upper Goulburn Nursing Home
Dental Health Services Victoria
Djerriwarrh Health Services
East Grampians Health Services
East Wimmera Health Service
Eastern Health
Echuca Regional Health
Edenhope & District Memorial Hospital
Ensay Bush Nursing Centre
Gippsland Southern Health Service
Goulburn Valley Health
Great Ocean Road Health
Heathcote Health
Hesse Rural Health Service
Heywood Rural Health
Indigo North Health Inc
Inglewood & District Health Service
Red Cliffs and Community Aged Care Services Inc (Trading as Jacaranda Village)
Kerang District Health
Kilmore District Health
Kooweerup Regional Health Services
Kyabram and District Health Service
Latrobe Regional Hospital
Lyndoch Living Limited
Maldon Hospital
Mallee Track Health and Community Service
Mansfield District Hospital
Maryborough District Health Service
Melbourne Health
Mercy Hospitals Victoria Ltd
Mildura Base Public Hospital
Monash Health
Moyne Health Services
NCN Health
Northeast Health Wangaratta
Northern Health
Omeo District Health
Orbost Regional Health
Peninsula Health
Peter MacCallum Cancer Institute (Trading as Peter MacCallum Cancer Centre)
Portland District Health
The Queen Elizabeth Centre
Robinvale District Health Services
Rochester & Elmore District Health Service
The Royal Children's Hospital
The Royal Victorian Eye & Ear Hospital
The Royal Women's Hospital
Rural Northwest Health
Seymour Health
South Gippsland Hospital
South West Healthcare
St Vincent's Hospital (Melbourne) Limited
Stawell Regional Health
Swan Hill District Health
Tallangatta Health Service
Terang and Mortlake Health Service
Timboon & District Health Care Service
Tweddle Child & Family Health Service
West Gippsland Healthcare Group
West Wimmera Health Service
Western District Health Service
Western Health
Wimmera Health Care Group
Yarram and District Health Service
Yarrawonga Health
Yea and District Memorial Hospital
Stand Alone Community Health Centres
Access Health and Community
Ballarat Community Health
Banyule Community Health
Bellarine Community Health Ltd
Bendigo Community Health Services Ltd
Castlemaine District Community Health Limited
Central Bayside Community Health Services Limited
Cohealth Limited
Bentleigh Bayside Community Health (Trading as Connect Health and Community)
DPV Health Ltd
EACH
Gateway Health Limited
Gippsland Lakes Complete Health Limited
Grampians Community Health
Ranges Community Health (Trading as Inspiro)
IPC Health Ltd
Latrobe Community Health Service Limited
Merri Community Health Services Limited (Trading as Merri Health)
Nexus Primary Health
Nillumbik Community Health Service Ltd
North Richmond Community Health Limited
Northern District Community Health
Primary Care Connect
Star Health Group Limited
Sunbury and Cobaw Community Health
Sunraysia Community Health Services Limited
Darebin Community Health Service (Trading as Your Community Health)

Can I transfer my accrued personal leave from one employer to another?

Yes, if you are working for a public sector employer now, and you will be employed by another public health service.

Both your current position, and your new position, must not be casual positions.

Are there any limits?

Yes, there is a cap of 180 days personal leave you can transfer to your new employer.

What do I need to do?

You need a Certificate of Service from your current employer, and you need to provide that to your new employer, within the ‘allowable period of absence’ between jobs.

What is the allowable period of absence?

It is five weeks, plus any annual leave or long service leave that you are paid on terminating your employment with your first employer.

So, if you were paid out six weeks of annual leave (annual leave cannot be transferred to your new employer) that would be five weeks, plus six weeks, makes eleven weeks maximum between jobs.

My final payment shows annual leave in hours, not weeks, how do I determine weeks?

If you are full time, very easily. Divide the number of hours by 38.

If you are not full time, it does become complicated.

If your hours per week do not vary, then it is simply a matter of dividing the annual leave hours by your standard weekly work hours.

If your hours vary, (or you have reduced your EFT) then you would need to consider an averaging approach as a guide to how many weeks annual leave you have been paid out. It may not be entirely accurate, so you would be well advised to commence your new job with a few weeks up your sleeve. If you think you have 13 weeks to start a new job, you should start much sooner, perhaps a maximum of seven or eight weeks, to keep the margin of error in your favour.

How do I check if my new employer is a ‘public sector’ employer?

There is a list of public sector employers in Appendix 1 of the public sector nurses and midwives’ agreement. All of those in the list are considered public health sector, but it is not an all-inclusive list. See over for public health services as of June 2022.

If you are thinking of moving to an employer you think should or could be public sector, but is not named in Appendix 1, reach out the Member Assistance Team with the name of the employer so we can advise you correctly.

What if I stay on the casual bank with my old employer?
It makes no difference, you can still transfer your personal leave to your new employer.

Can I transfer my personal leave interstate?

Well, we cannot readily answer that, as it isn’t something that the Victorian public sector nurses and midwives EBA can prescribe, it is a matter for the Award or EBA in the state or territory you move to.

List of public sector health employers as of June 2022

Albury Wodonga Health (Wodonga Hospital)
Alexandra District Hospital
Alfred Health
Alpine Health
Austin Health
Bairnsdale Regional Health Service
Ballarat Health Services
Barwon Health
Bass Coast Health
Beaufort and Skipton Health Service
Beechworth Health Service
Benalla Health
Bendigo Health
Boort District Health
Calvary Health Bethlehem Hospital Limited
Casterton Memorial Hospital
Castlemaine Health
Central Gippsland Health Service
Central Highlands Rural Health
Cohuna District Hospital
Colac Area Health
Corryong Health
Darlingford Upper Goulburn Nursing Home
Dental Health Services Victoria
Djerriwarrh Health Services
East Grampians Health Services
East Wimmera Health Service
Eastern Health
Echuca Regional Health
Edenhope & District Memorial Hospital
Ensay Bush Nursing Centre
Gippsland Southern Health Service
Goulburn Valley Health
Great Ocean Road Health
Heathcote Health
Hesse Rural Health Service
Heywood Rural Health
Indigo North Health Inc
Inglewood & District Health Service
Red Cliffs and Community Aged Care Services Inc (Trading as Jacaranda Village)
Kerang District Health
Kilmore District Health
Kooweerup Regional Health Services
Kyabram and District Health Service
Latrobe Regional Hospital
Lyndoch Living Limited
Maldon Hospital
Mallee Track Health and Community Service
Mansfield District Hospital
Maryborough District Health Service
Melbourne Health
Mercy Hospitals Victoria Ltd
Mildura Base Public Hospital
Monash Health
Moyne Health Services
NCN Health
Northeast Health Wangaratta
Northern Health
Omeo District Health
Orbost Regional Health
Peninsula Health
Peter MacCallum Cancer Institute (Trading as Peter MacCallum Cancer Centre)
Portland District Health
The Queen Elizabeth Centre
Robinvale District Health Services
Rochester & Elmore District Health Service
The Royal Children's Hospital
The Royal Victorian Eye & Ear Hospital
The Royal Women's Hospital
Rural Northwest Health
Seymour Health
South Gippsland Hospital
South West Healthcare
St Vincent's Hospital (Melbourne) Limited
Stawell Regional Health
Swan Hill District Health
Tallangatta Health Service
Terang and Mortlake Health Service
Timboon & District Health Care Service
Tweddle Child & Family Health Service
West Gippsland Healthcare Group
West Wimmera Health Service
Western District Health Service
Western Health
Wimmera Health Care Group
Yarram and District Health Service
Yarrawonga Health
Yea and District Memorial Hospital
Stand Alone Community Health Centres
Access Health and Community
Ballarat Community Health
Banyule Community Health
Bellarine Community Health Ltd
Bendigo Community Health Services Ltd
Castlemaine District Community Health Limited
Central Bayside Community Health Services Limited
Cohealth Limited
Bentleigh Bayside Community Health (Trading as Connect Health and Community)
DPV Health Ltd
EACH
Gateway Health Limited
Gippsland Lakes Complete Health Limited
Grampians Community Health
Ranges Community Health (Trading as Inspiro)
IPC Health Ltd
Latrobe Community Health Service Limited
Merri Community Health Services Limited (Trading as Merri Health)
Nexus Primary Health
Nillumbik Community Health Service Ltd
North Richmond Community Health Limited
Northern District Community Health
Primary Care Connect
Star Health Group Limited
Sunbury and Cobaw Community Health
Sunraysia Community Health Services Limited
Darebin Community Health Service (Trading as Your Community Health)

The new public sector nurses and midwives enterprise bargaining agreement contains a number of important parental leave changes.

Taking or extending a period of long parental leave

Parental leave may be taken by either, or both, members of an employee couple, however long parental leave (that taken by the primary carer) must be taken contemporaneously with the birth, adoption or placement of the child.

There is now an automatic right for an employee on long parental leave to extend that leave by up to another 52 weeks (therefore a maximum of 104 weeks) provided you notify your employer as soon as possible but not less than four weeks before the end date of the original leave period.

If you take 104 weeks of parental leave, you can take up to 20 ‘keeping in touch’ days during your leave.

How many paid parental leave weeks can I take?

An employee whose long parental leave commenced on or after 1 April 2021 is entitled to 14 weeks paid parental leave, up from 10 weeks.

An employee who takes short parental leave that commenced on or after 1 April 2021 will be entitled to two weeks paid parental leave, up from one week.

Paid parental leave is in addition to any relevant Commonwealth Government paid parental leave scheme.

When am I eligible for parental leave?

Full-time and part-time public sector nurses and midwives are eligible for the parental leave entitlements after six months continuous service instead of 12 months.

Eligible casual employees remain eligible after 12 months.

Will I receive superannuation contributions while on parental leave?

From 1 July 2021, you will receive super contributions throughout parental leave including the unpaid component.

These contributions will be calculated by your employer using the superannuation contributions made over the 26 pay periods preceding the commencement of your parental leave, dividing that by 52, and making that payment for each week you are on parental leave (adjusted for any wage increases that occur during that time).

Unlike the increases in paid parental leave, this applies to each week of parental leave that occurs after 1 July 2021, even you commenced that leave before 1 July 2021.

Does parental leave count towards my long service leave?

Parental leave taken after 1 November 2018 (yes 2018) whether paid or unpaid will count as service towards long service leave. This includes parental leave that is extended for up to 104 weeks.

Because this date precedes the formal making of the new EBA, there is a process to enable employees have service recognised for parental leave that included any part of the period between 1 November 2018 and 30 June 2020 (inclusive).

If you took parental leave during this time you may need to make an application (by 22 August 2022 – which is six months after the Fair Work Commission’s approval of the new EBA) to have your leave recognised as counting as service towards the accrual of long service leave. Find out if you are eligible for automatic long service accrual or if you need to make an application.

Can I work for another employer while on parental leave from my main job?

There is nothing in your enterprise agreement, or elsewhere in law, that says that you cannot. Many members report picking up work, particularly during the unpaid component of parental leave, without any issues arising.

However, to be entitled to unpaid parental leave, an employee must have responsibility for the care of their child. Working for a different employer during parental leave may generate an argument about whether an employee still has responsibility for the care of their child.

In addition, employment contracts or local policy can include restrictions on working for another employer or as a contractor during employment. If you have a relevant policy, contract or letter of appointment, please send this through to ANMF so we can check it.

For the purposes of the government-funded paid parental leave, this ceases when you return to work for the first time after the birth or adoption of your child, this is the case if you have done paid work for one hour or more on a day (other than a keeping in touch day). Services Australia will not pay you any days remaining in your Paid Parental Leave period after you return to work. This rule is expected to change during 2023.

Can I come back to work with my employer while on parental leave?

If you and your employer agree, yes. Again, however this will jeopardise any remaining entitlement to government paid parental leave. At least until the anticipated changes later in 2023.

For more information read the ANMF Parental Leave Guide booklet

Under the 2020-2024 Public Sector Nurses and Midwives EBA parental leave counts as service for long service leave purposes, in certain circumstances.

Parental leave taken after 1 July 2020 automatically counts as service, and you shouldn’t need to do anything to have this service recognised.

Parental leave taken before 1 November 2018 does not count as service (but does not break service).

Parental leave taken between 1 November 2018, and 1 July 2020, according to the EBA, requires you to make a request to your employer. However, following discussions between the ANMF and the VHIA (who represent public health services) it has been determined that no request is necessary, unless you have changed employers on or after 1 November 2018.

This is because you need an updated Certificate of Service from your previous public sector employer that recognises the parental leave you took while working there.

What do you mean by ‘recognised for LSL purposes’?

This means that the parental leave, paid and unpaid, counts as service.

For example, if you commenced employment at Eastern Health in March 2010, and took 24 months parental leave in 2019, under the old EBA as at March 2022 you would have 10 years’ service (as the parental leave didn’t count) whereas under the 2020-2024 EBA those two years would count, and you would have 12 years’ of service.

Each year of service equates to about 1.7 weeks of LSL.

Who must complete the request?

Anyone who took parental leave on or after 1 November 2018 with a previous employer and wants that service recognised for LSL purposes.

Is there a cutoff date?

Yes. Six months after the new EBA legally commenced which was 23 February 2022, so not later than 22 August 2022.

What should the email say?

ANMF recommends you cut and paste the following into an email, completing the shaded areas, and send to your previous employer:

 <Insert Date>

<Insert Name of Manager>
<insert Title>
Delivered by E-mail: <insert email address

Dear <insert name>

Request for updated Certificate of Service

I am employed in accordance with the Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2020-2024 (Agreement).
In terms of identification, my employee number is/was <insert number> and/or my date of birth is <insert date of birth>.

Request

The Agreement contains a provision at 70.11 whereby I can request a revised Certificate of Service to reflect that any period of unpaid parental leave taken on or after 1 November 2018 is now recognised as service for the purpose of calculating Long Service Leave.

I have taken unpaid parental leave during this period so require a revised Certificate of Service.
Process

Please forward my request to the Payroll Department so that the Certificate of Service can be generated and sent to me.

Contact details

My contact details have not changed/ My contact details have changed to <insert new contact details>.

Kind regards

<insert name>
<insert contact details>

If you do not receive an updated Certificate of Service within four weeks of your request, please contact ANMF via our Member Assistance Team via the link at the bottom of this page.

Members are entitled to be paid each fortnight on a weekday, not more than 5 days after the end of the fortnightly pay period.

The EBA and the Fair Work Act and regulations set out an employer's obligations with respect to pay slips, including but not limited to a requirement to specify:

• the period to which the pay slip relates
•  the amount of wages to which the employee is entitled
• if an amount was deducted from the gross amount of the payment, the name or the name and number of the fund or account into which the deduction was paid
• the net amount for each payment.

If the payroll system can, payslips should also record your accrued annual leave and personal leave.

In any event your employer is obliged to keep accurate records of leave, and you are entitled to inspect and copy your leave records. These must record any leave you take and the balance (if any) of your entitlement to that leave.

What if I am underpaid?

You should receive all your wages, penalties and allowances for the pay period in the following fortnight’s pay.

Where an underpayment of wages occurs because your employer has made an error, involving 2.5% or more of your after tax weekly wage, you must notify your employer, request an offline payment, and your employer must rectify the payment within 24 hours.

The email should identify you, the pay period the underpayment relates to, and with as much details as possible, identify the exact underpayment/s.

Except in cases of hardship, amounts less than 2.5% will be processed in your next pay period. Where you notify your employer of hardship in respect of an amount owing less than 2.5%, your employer should make its best endeavours to make the payment owing as soon as possible.

Your employer will notify you of the adjustment being processed and provide the date of payment and any payment identification details.

The timeframes to resolve an underpayment issue may be longer where:

• you and your employer are in genuine dispute as to whether the monies are owed to you
• the underpayment is the result of an error by you
• the reason for the underpayment is an unforeseen event or circumstance outside the control of the employer, frustrating their ability to meet the requirements of this clause.
  
  

What if my employer does not comply?

If your employer does not comply with the above, that could put them in breach of the enterprise agreement. Under the Fair Work Act 2009 (Cth) (Act) contravening an enterprise agreement can result in orders for compensation and pecuniary penalty orders. Failing to comply with an enterprise agreement can have severe financial consequences for your employer. But those cases need to go to court, and can take a very long time, and meanwhile you still haven’t been fully paid.

An alternate approach, if you carefully follow the enterprise agreement dispute resolution procedure, is ANMF can approach your employer as your representative, and if unresolved make an application to the Fair Work Commission. If the Commission makes orders regarding your underpayment, failure to comply with those orders can result in further penalties against the employer. But is also means that your employer is in the Commission, and unlikely to expose themselves to further penalties, and will quickly rectify the underpayment.

How do I get the ANMF to take my underpayment to Fair Work Australia?

The first hurdle for ANMF is that you must have strictly complied with the dispute resolution procedure in the EBA.

1. In the first instance you need to have ‘discussions’ between you and your line manager (or other relevant manager); by agreement this discussion can be in writing, but if there isn’t agreement you need to make a reasonable documented attempt to hold discussions with your manager, or payroll, or preferably both.
   
   
2. If the dispute is still unresolved, you should attempt discussions between more senior managers, and again document those attempts.
   
   
3. If you haven’t already done so, make a member assistance inquiry via our online form.  

If the dispute cannot be resolved at the workplace it may then be referred by ANMF to the Commission for conciliation and, if the matter in dispute remains unresolved, arbitration. If you do not make every effort to follow these steps, your employer can make a ‘jurisdictional’ argument to the Commission that the Commission has no power to be involved. However, if your employer fails to properly cooperate, ANMF can work through this in the Commission.

You will be released from normal duties as is reasonably necessary to enable you to participate in this dispute settling procedure so long as it does not unduly affect the operations of the employer.

Example first email re underpayment

To: “immediate manager” “Payroll”
cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write to formally request that I receive an offline payment to rectify an underpayment I am owed.

In pay period ending xx/xx I was not paid two night shift penalties that I worked.

I request that this underpayment be rectified as soon as possible, (if less than 2.5% of your after tax salary, explain if the underpayment has caused you hardship)

I am happy to meet at a mutually acceptable time, should you require this.



Example second email re underpayment

To: “HR manager” “Payroll Manager”
cc: records@anmfvic.asn.au

Re: Underpayment of wages

I write further to my email of xx date to formally escalate my request that I receive an offline payment to rectify an underpayment I am owed.

In pay period ending xx/xx I was not paid two night shift penalties that I worked.

I requested that this underpayment be rectified as soon as possible, (if less than 2.5% of your after tax salary, explain that it has caused you hardship) however (I received no response/my underpayment was disputed). I am happy to meet at a mutually acceptable time, should you require this.

I again request that the underpayment be rectified as soon as possible.

What if my employment has ended and I am still owed money?

Where you employer terminates you with notice, payment of all wages and other monies owing to you will be made to you on or before your final day of work.
When you give notice of termination of employment, payment of all wages and other monies owing to you will be made as soon as practicable but not later than the ordinary pay day following the end of employment.

If this payment does not rectify any underpayment concerns, you should make a member assistance inquiry via our online form. 

ANMF will assist you to make an underpayment claim against your employer.

Generally, a full-time or part-time employee should have a home ward/unit/department or service and should not expect to be moved in other than exceptional circumstances.

While the COVID surge and the Code Brown declaration have seen widespread redeployment, these were exceptional circumstances. In normal circumstances, redeployment to another site or to other work would be a major change that has a significant effect on an employee and would require consultation in accordance with the EBA.

Where your current role is redundant, and you are redeployed (which could only occur after consultation) your Employer must provide the reasonable support necessary for the you to perform the role, which may include:

1. theory training relevant to the clinical area or environment of the role into which you are to be redeployed
2. a defined period of up to 12 weeks in which you work in a supernumerary capacity
3. support from educational staff in the clinical environment; and/or
4. a review at 12 weeks or earlier to determine what, if any, further training is required.

There is nothing in the EBA that allows an employer to unilaterally redeploy someone to another site if you do not ordinarily work there.
There will, from time to time, be circumstances that require employees to be redeployed to another ward. If it becomes commonplace for you, contact your ANMF Organiser.

My employer says I am employed to the health service, not a particular campus of the health service; is that right?

An employer requiring an employee to work on another campus has been a significant issue for members for some time, with employers typically arguing that you are employed to the health service, not a particular campus of the health service.

While that may be true for some positions, most positions have a campus they generally, if not exclusively, work at.

Under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024, Base Employment Campus is defined as the Campus of the Employer at which you ordinarily start and finish work.

What if I agree to redeployment during a shift?

Where you temporarily relocate from your Base Employment Campus to another Campus during a shift, you will be paid the vehicle allowance at clause 36, and the travel must occur within paid time.

What if I agree to redeployment prior to a shift?

Where you temporarily relocate from your Base Employment Campus to another Campus prior to a shift, you will:

1. be reimbursed for additional travelling cost (where applicable)
2. where travel time increases by 15 minutes or greater (to and return) be paid an allowance equal to your ordinary rate for the additional time spent when compared to your travel time from home to your Base Employment Campus.

What about permanent relocation where my ward has permanently closed?

Your employer must provide a Change Impact Statement to the ANMF and consult with you and other affected employees.

Where you permanently relocate from your Base Employment Campus to another Campus as a result of redundancy, you will be reimbursed for additional travel costs (where applicable) in accordance with clause 12.6 of this Agreement (Relocation).

What about permanent relocation when my ward has moved from one campus to another?

Your employer must provide a Change Impact Statement to the ANMF and consult with you and other affected employees.

Where your position is required to permanently relocate from your Base Employment Campus to another Campus you will be reimbursed for additional travel costs (where applicable) in accordance with clause 12.6(b)-(f) of the Agreement.