Since 2015, your Union has been battling in the IRC with NSW Health regarding members’ entitlement to the infectious cleaning allowance under the Health Employees’ Conditions of Employment (State) Award. Since 2020, the matter was before a full bench of the Commission.
The dispute between the HSU and NSW Health was predominantly on two issues:
(1) To whom does the clause apply? Who is entitled to the allowance?
(2) To what extent is the election in the clause, or ought to be, subject to any restrictions?
What the Union wanted
The Union’s position was that the current clause does not limit payment of the allowance by classification. That is, all employees to whom the Award applies are entitled to claim and be paid the allowance if they perform the relevant duties and that an employee is to be given the option of working, or not working, in an infectious area.
What the Employer wanted
The employer’s position was that only employees in the following classifications can properly claim and be paid the allowance upon performance of the relevant duties:
Hospital Assistants Grade 1 and 2;
Wardspersons (including Senior Wardspersons and Chief Wardspersons);
Health and Security Assistants;
Patient Services Assistants Western Sydney;
Support Services Officers Northern Sydney and Western Sydney;
Patient Support Assistants Central Coast;
Patient Transport Officers.
And, that an employee can only elect not to work in an infectious area if that election is ‘reasonable’.
Following a long period of hearings, the Commission handed down a decision on 30 June 2021, stating “…we accept that the current terms of the clause have created confusion and inconsistency. Clarity as to the duties attracting the Allowance is required to avoid ongoing disputes between the parties.”
The Commission has proposed that cl 32 of the Award, Infectious Cleaning, be amended to clarify the scope of the clause, not to expand its current application. The new clause to read as follows:
32. Infectious Cleaning
(i) This clause applies to non-clinical employees who in any shift:
(a) perform cleaning duties in infectious areas; or
(b) assist in the lifting and/or transporting of infectious patients.
(ii) For the purposes of this clause:
(a) an “infectious area” is one in which transmission-based precautions are required to be used;
(b) an “infectious patient” is one in respect of whom transmission-based precautions are required to be used;
(c) “transmission-based precautions” are those that are determined to be required in addition to standard precautions, in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time;
(d) an employee “performs cleaning duties” if they are employed in a role in which cleaning is the predominant or substantial responsibility. It does not encompass cleaning tasks that are incidental to, even if required as a consequence of, an employee’s core responsibilities;
(e) an employee “assists in the lifting and/or transporting” of an infectious patient if they perform duties such as:
(1) assisting to lift the patient out of bed, including through the use of lifting equipment, for showering or other personal health tasks;
(2) transporting the patient within the ward, such as to the bathroom, or to other areas within the same Health Institution or Hospital;
(3) transporting deceased patients to a mortuary; or
(4) transporting patients in a motor vehicle.
(iii) Employees who perform the duties described in subclause (i) will be paid an allowance as set in Item 47 of Table 1 - Other Rates and Allowances, of Part B, Monetary Rates. The allowance is payable once per shift, regardless of whether the employee performs the duties described in subclause (i) on more than one occasion during the shift.
(iv) Employees are to be given the option of working in an infectious area (including working with an infectious patient). In the event of an employee declining to work in the infectious area, hospitals are to seek guidance from the employer.
(v) Employees will be given training in infection control procedures, in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time.
The good news
While the Commission’s decision does not allow for everyone covered by the Award to get the allowance, it did not accept NSW Health’s position that it be limited to seven classifications.
The Commission also did not accept the arguments from NSW Health regarding the ‘election’, finding that “the clause in its current terms has been in place since approximately late 1982, the evidence discloses only one instance where an employee elected not to perform infectious cleaning.” And, in relation to employees electing not to perform the relevant duties, “there is no evidence of there ever having been an actual risk to public safety.”
When will the new clause take effect?
The Commission has given the Union and the Employer an opportunity to consider and provide comment on the proposed clause, prior to any variation to the Award being ordered.
We are before the Commission again on 28 July.
Following this, we will distribute advice to our members on how they can apply for the allowance. The HSU will also have Industrial Staff available to help members work out their entitlements under the new clause.
If you have any questions, please contact your organiser or your Industrial Services Officer.
If you know someone who hasn’t yet joined the HSU, encourage them to take the plunge today at www.hsu.asn.au/join or call 1300 478 679. We are stronger together.