Member assistance

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

Changes to roster requirements

Ordinary hours of work (i.e. not overtime) for both full-time and part-time employees must be worked according to a roster of at least 28 days duration, posted at least 14 days before it comes into operation. The roster must set out:
• your daily ordinary working hours;
• starting and finishing times; and
• meal intervals.

With the new EBA, the roster must also:
• have a staffing and skill mix that complies with the Safe Patient Care Act if applicable to that ward or unit; and
• allocate a registered nurse/midwife to be in charge of each shift.

Fixed rosters

While many employees happily work shifts as rostered, or via a version of self-rostering or request rostering, many employees find this challenging from the perspective of family responsibilities for example.

Under the new EBA, where you can demonstrate a regular and systematic pattern of work, your employer cannot unreasonably refuse a written request to have your roster ‘fixed’.

Regular and systematic pattern of work means working set days or shifts in a demonstrable pattern over the preceding six months (recognising that additional ordinary shifts may be worked around that fixed pattern), but does not include shifts worked because the employee who usually works them is on extended leave.

Unilateral changes to your rostering arrangements

Where your employer proposes to change your usual rostering arrangements on an ongoing basis, they must consult with you and other affected employees, and the ANMF (if requested) about the proposed change. Ad hoc changes are covered by the Change of Roster provisions.

Your employer must consider health and safety impacts including fatigue, provide any relevant information and invite you and other affected employees/ANMF to give our views about the impact of the proposed change (including any impact in relation to your family or caring responsibilities), and must give consideration to any views about the impact of the proposed change that is given by the affected employee/s or ANMF.

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

Examination leave improvements

You are entitled to five days paid exam leave in any one year, with a day being your normal shift length. Exam leave is now available for major assessment tasks, take home exams and other methods of student assessment. To be eligible for examination leave:
• you must be employed to work, on average, at least three shifts or 24 hours per week; and
• have been employed for at least eighteen (18) months by your current employer immediately prior to the taking of the examination leave; and
• the course of study must be relevant to advancement through the career structure and to employment at the establishment. Such a course of study would normally be undertaken in a tertiary institution.

Time of taking leave

Examination leave can be taken at a time (or times) as agreed between you and your employer. Your employer cannot unreasonably withhold approval for such leave.

Professional development leave improvements

Professional development leave (PDL) is now payable even if the event is not on a day that you would normally work. Your employer will either:
• pay a day’s PDL paid at the ordinary rate of pay; or
• provide time off in lieu on a mutually agreed day within 28 days. Where time off in lieu is not agreed or does not occur within 28 days, the employer must instead pay an additional day’s ordinary pay; or
• provide an additional day’s annual leave (which will not attract leave loading).

Nurse practitioners now have an additional 10 hours of PDL per annum, in addition to the five days paid PDL available to all employees (pro rata of the 5 days for part-time employees).

PDL is available only on application by you, and at your sole discretion. Your employer cannot require you to utilise your PDL for employer provided or required training.

An application for PDL will be approved unless there are exceptional circumstances that justify non-approval.

Your employer must notify you in writing within seven days whether the leave request is approved.

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

The new EBA sets out and expands on the entitlement of an employee to request flexible working arrangements contained in the Fair Work Act. The Act entitles specified employees to request flexible working arrangements in some circumstances. Your employer may only refuse a request on reasonable business grounds.

To be eligible you must already have at least 12 months continuous service. The specified circumstances are if you:
• are the parent, or have responsibility for the care, of a child who is of school age or younger;
• are a carer within the meaning of the Carer Recognition Act 2010 caring for someone who has a disability, a medical condition (including a terminal or chronic illness), a mental illness or is frail or aged;
• have a disability;
• are 55 or older;
• are experiencing violence from a member of the your family; or
• provide care or support to a member of your immediate family, who requires care or support due to violence or abuse from the their family. 

What can I request?
• To work part time on return from parental leave to assist you to care for your child.
• Different hours of work, patterns of work or location of work. 

How do I apply?
You must apply in writing, setting out the change that you want and the reasons for those changes. The changes must relate to the circumstances above. 

What happens then?
• Either you or your employer can request to meet to discuss your request. This discussion can explore your request, any alternatives to the request, or reasons for a refusal on reasonable business grounds. Your employer doesn’t have to choose between accepting or rejecting your request in full. Once a request has been made, you and your employer can discuss and negotiate an arrangement that balances your needs and theirs.
• Your employer must respond in writing within 21 days of you making the request, either granting or refusing the request. If rejected, the response must include details of the reasons for the refusal. 

What are reasonable business grounds?
• The requested arrangements are too costly.
• Other employees’ working arrangements can’t be changed to accommodate the request.
• It’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request.
• The request would result in a significant loss of productivity or have a significant negative impact on patient care.
• Occupational health and safety issues. 

What if I think my employer hasn’t properly considered my request?
The ANMF can assist you to appeal your employer’s decision to the Fair Work Commission. Also, the Equal Opportunity Act 2010 (Vic) provides parents/carers with a statutory right to pursue flexible working arrangements. It states that ‘[a]n employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer’. If an employer unreasonably rejects a request we can issue proceedings seeking orders requiring your employer to refrain from committing any further contravention and payment of compensation. 

Tips
• Your letter must state what you want and why it will help manage your circumstances and broadly what those circumstances are so craft your letter carefully.
• Think like your employer may think. Why may they oppose it? What can I put in my letter to pre-empt those concerns?
• Speak to your immediate manager about it and address any concerns they raise in your request letter.
• Be prepared to consider alternatives.
• Consider offering a trial period or a review in six or 12 months time.

April 2019 wage increases

The 2016-2020 Public Sector Agreement’s April 2019 wage increases provide wage parity with NSW public sector nurses and midwives (after salary packaging).

As part of that alignment, many nursing and midwifery positions have less increments than previously. For example, the old grades of Grade 2 Year 8, 9 and 10 all translate to the top increment in the new structure, RN/M8. The new structure has Grades RN/M1 (graduate) through to RN/M8.

The Victorian Hospitals Industrial Association (VHIA) represent hospitals, and as part of that service they provide salary circulars with “pay codes”. Pay codes are a creation of the VHIA, and are not a feature of the enterprise agreement, although for convenience they are set out in the wages schedule to the EBA.

Many will be familiar with their pay code of, for example, YP/S 10 or YP/S 11 and be understandably concerned to see that their new pay code is YP/S 9. However, this is simply a reflection of having fewer increments at the old Grade 2 level, as set out below and does not impact on your seniority:

A number of other Grades that had a first and second year increment have translated to a single increment. This was to reflect the number of salary levels in the NSW structure that we achieved as part of the 2016 EBA outcome.

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

Overtime is an entitlement for full-time, part-time and casual employees and should be claimed and paid.

By claiming your overtime, you ensure actual working hours are recorded, which also means problems with inadequate staffing levels can be identified and addressed.

Working excessive overtime can also impact negatively on your practice and your health, and compromise patient/resident care. You and your employer have a responsibility to prevent this.

When am I entitled to claim for overtime?
When you:
• work beyond the end of your rostered shift; or
• are recalled to work when off-duty; or
• do not receive an eight hour break between rostered shifts; or
• work more hours than a full-time employee would.

Does my employer have to authorise the overtime?
Generally yes. However circumstances may arise when this did not occur or was not possible. The new EBA recognises this and allows ANMF to argue your case in Fair Work if you did overtime that could not reasonably be approved in advance, or was as a consequence of circumstances beyond your control, and your employer does not subsequently authorise payment.

What should I get paid for working overtime?
Monday to Friday (inclusive) – time and a half for the first two hours, then double time thereafter. This applies on a per occasion basis, meaning if you work overtime on another occasion the first two hours revert to time and a half. 

Saturday to Sunday (inclusive) – double time. You do not receive shift penalties for overtime work.

What about ‘time off in lieu’?
You may request time off in lieu for overtime, but cannot be required to take it. Time off in lieu is equivalent to the overtime penalty (e.g. the first two hours overtime equals three hours time off in lieu) and must be taken within 28 days of when it was worked. If this does not happen then you must be paid what you are owed, at the original overtime rates, in the next pay period.

Am I obliged to work overtime?
If you are on-call then almost certainly yes. ‘On-call’ is a rostered period of availability where you can be contacted to come back to work, known as ‘recall’.  If you are rostered to be on-call (i.e. to be available to be recalled to duty beyond your rostered hours) you are entitled to receive an on-call allowance for each 12 hour period, or part thereof.

Therefore if you were on-call for 14 hours, you would receive the allowance twice. Otherwise you may refuse to work overtime, if the request is unreasonable. 
To determine if a request is unreasonable, the following must be taken into account:
• any risk to your health and safety from working the additional hours;
• your personal circumstances, including family responsibilities;
• the needs of your workplace;
• the notice given of any requirement to work the additional hours;
• any notice you give of your inability to work additional hours;
• the usual patterns of work in your area;
• the nature of your role, and your level of responsibility;
• any other relevant matter.

What about getting home after overtime?
A double shift is one where you stay on after your shift and work another consecutive shift. This should only ever occur in emergency circumstances. Overtime is payable for the entire second shift, and to mitigate the risk of fatigue and clinical error you must be provided:
• breaks of at least 10 minutes duration in each two hours worked; and
• adequate transport home free of cost to the employee, including the return journey where your vehicle remains at the workplace.

What applies with a ‘double’ shift?
A double shift is one where you stay on after your shift and work another consecutive shift. This should only ever occur in emergency circumstances. Overtime is payable for the entire second shift, and to mitigate the risk of fatigue and clinical error you must be provided:
• breaks of at least 10 minutes duration in each two hours worked; and
• adequate transport home free of cost to the employee, including the return journey where your vehicle remains at the workplace.

What if I am called to come back to work?
This is called ‘recall’. You are entitled to a minimum of three hours pay at the overtime rate for each occasion of recall, and you cannot be required to work the full three hours if the work you were called in for is completed in a shorter timeframe.

Travel to and from work when recalled
If you are recalled and use your vehicle for transport from home to work and return, you are entitled to a vehicle allowance.

If you do not use your own vehicle your employer must provide you with suitable transport to work at no cost to you. If you finish the recall at a time when reasonable means of transport are not available for you to return home, your employer must provide adequate transport at no cost to you.

What if I can manage the problem without returning to work?
Where recall to duty can be managed without you having to return to your workplace, such as by telephone, you must be paid a minimum of one hour’s overtime, which then compensates for that and other recalls within that hour.

What if I don’t get a decent break between when I finish overtime and am due to start my next shift?
You should have at least 10 hours off between the end of recall, and the start of the next rostered shift. If this means you miss out on rostered hours then you must be paid those hours. However this break does not apply if you are still at work on overtime when your shift commences. 

If your employer cannot or will not give you the ten hour break you must continue to be paid at the overtime rate until you get your 10 hour break.

What if overtime causes me to have insufficient days off?
The new EBA contains a provision that applies if you:
• normally work four or more days a week; and
• work 14 or more hours consecutively (this may be a mix of rostered hours and overtime); and
• these hours include night time (finish on the day after commencing duty or commence after midnight and before 5am); and
• some of those hours occur on your day off.

If this apples to you, you must be granted a substitute rostered day off on a working day (without loss of pay) as soon as practicable, but not later than 14 days.

When do I get a meal allowance?
There are two Meal Allowances in the new EBA: Meal Allowance A and Meal Allowance B. 

On any day where you work one hour beyond your usual finishing hour of work, you are entitled to ‘Allowance A’, and if you work five hours beyond your usual finishing hour of work, you also receive ‘Allowance B’. 

On any day where you work five hours overtime on your day off, you are entitled to ‘Allowance A’, and if you work nine hours overtime, you also receive ‘Allowance B’. The above does not apply if your employer has its own cooking and dining facilities, and provides you an adequate meal or you could reasonably return home for a meal within the period allowed.

You are entitled to request and receive payment of the Meal Allowance on the same day overtime is worked.

Using your home phone for on-call
If you are required to install and/or maintain a fixed telephone line for the purposes of being on-call your employer will refund the installation costs and pay a fortnightly Telephone Allowance. This does not apply to mobile telephones.

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

Qualification allowance

New qualifications covered

The new EBA has expanded eligibility to a qualification allowance to those with a relevant double degree or Masters qualification achieved before registration with AHPRA.

The qualification allowance is payable after one year of experience in an area where the qualification is relevant.

The rate for those with a Doctorate has risen from 7.5% to 10%.

Evidence

To claim a qualification allowance you must provide your employer with evidence that you hold the qualification, such as:
(i) the award of the qualification; or
(ii) the certificate of the qualification; or
(iii) transcript from the education/training provider.

Back pay

The allowance will be payable only for pay periods occurring after the evidence is provided.

Rural and Isolated Practice Nurse (RIPN) allowance

A registered nurse or midwife who has completed the education to undertake the duties of a RIPN (or equivalent), and whose employer may from time to time require them to undertake the duties of a RIPN nurse must now be paid a RIPN allowance of 4% of the base rate on all hours, including overtime. Base rate means the weekly ordinary full-time wage of a Registered Nurse Grade 2, 3rd year of experience.

The RIPN allowance is in addition to any qualification allowance, unless you are only eligible for a qualification allowance because of your RIPN qualification, in which case you should receive the RIPN allowance but not the qualification allowance.

The 2016 agreement also provides for an additional payment of $44.58 for each week between 6 September 2010 and the new EBA approval date that you were expected to undertake the duties of a RIPN nurse. This amount will be reduced by any payment you received as a qualification allowance where RIPN training was the only basis for the qualification allowance.

On Friday 16 December 2016, the Fair Work Commission approved the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, and it became legally enforceable seven days later. The new EBA contains a number of significant new conditions and obligations and the ANMF has developed materials to assist members and managers to understand and comply with its requirements.

Short shifts in the new public sector EBA 

With the making of the new EBA, there are some significant changes around the use of ‘short shifts’. 

A short shift is usually a shift used to make up the nursing numbers but not for the full shift, i.e. the shift may start late or finish early. A short shift must be at least six hours duration in addition to a 30 minute meal break. 

The new requirements 

The new EBA has some new and some amended restrictions around short shifts, as follows: 

1. No short shifts may be used on night duty. 

2. You must not be rostered to work a short shift unless you agree. 

3. If you currently work short shifts, you can cease working shift lengths on the next roster, if you notify your employer in writing, giving 28 days written notice. 

4. The term ‘rostered’ has been replaced with the word ‘used’, meaning the maximum short shifts per ward per day is:
a. one ‘AM’ short shift, starting and finishing within the ‘AM’ shift times
b. one ‘PM’ shift , starting and finishing within the ‘PM’ shift times or a crossover shift that commences before noon and concludes during the ‘PM’ shift. 

5. If you have a vacancy on the roster, for example someone calls in sick, your employer must replace the vacancy with a permanent employee working the same shift length, if one is available to work the shift, by:
a. contacting staff who are available, including in accordance with the supplementary roster; and
b. asking staff on that ward to fill the vacancy (except where it would result in overtime)
c. allocate a permanent pool employee
d. where, after the reasonable efforts above, the employer cannot obtain a permanent employee, the shift must be replaced by a nurse bank employee or, as a last resort, an agency staff member working the same shift length as the vacancy unless the nurse in charge of the ward (and this cannot be overridden by hospital management) determines a shorter shift will not have a negative impact on patient care, safe staffing and related matters, having regard to all the circumstances on the ward/unit including:
- patient safety and acuity
- skill mix
- the time at which the absence was notified
- whether the ward/unit is staffing above the ratios under the Safe Patient Care Act
- the number of short shifts on the ward already
- the capacity for employees, including casual employees, to attend professional development. 

It will be up to members and ANMF to ensure this new process works, and that the nurse in charge of the ward does not get pressured to accept short shifts against their professional judgment.  If this occurs, notify ANMF and we ensure the new system operates as it is intended. Under the new clause, the employer must document its attempts to replace the vacancy, which must be available for inspection by the ANMF upon request.

Exception – aged care and rehabilitation units 

Aged care and rehabilitation wards that, as at 31 March 2012, had more than two short shifts per day, may use up to three short shifts per ward or unit in any configuration over the AM and PM shifts.