Labour Flexibility

09-Feb-2018

LIMITATIONS ON THE USE OF LABOUR FLEXIBILITY CLAUSES IN AWARDS 

ASMOF has been contacted by CMO members who work in Rehabilitation Medicine who have been ‘directed’ to work in the Emergency Department and/or High Dependency Unit of another hospital in the LHD. These members do not work in a critical care stream and have not worked for a considerable time in acute settings. The members are concerned that they are not currently trained or equipped to work in Emergency or other critical care areas of the LHD.

The LHD is relying on Clause 23 of the Public Hospital Career Medical Officers (State) Award to try and justify their actions.

Clause 23 is known as a Labour Flexibility clause and reads as follows:

(i)    An employer may direct an employee to carry out such duties as are reasonable, and within the limits of the employee's skill, competence and training consistent with employee's classification, grouping and/or career stream provided that such duties are not designed to promote deskilling.

(ii)    An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained or has otherwise acquired the necessary skills in the use of such tools and equipment.

(iii)    Any direction issued by an employer pursuant to sub-clause (i) and (ii) shall be consistent with the employer's responsibilities to provide a safe and healthy work environment.

(iv)    Existing provisions with respect to the payment of mixed functions/higher duties allowances shall apply in such circumstances. In no circumstances shall an employee’s salary be reduced by the application of this clause.

This type of clause is common across most NSW Public Sector awards, including the other Awards that cover our members.

Clause 23 is not meant to and could not be construed as giving the employer the right to impose work arrangements at will. The clause was originally designed to, among other things, provide the employer with more flexibility to deploy employees in such a way as to make the most of their skills, competence and training.

And this is the point. The Clause clearly limits the employer to directing “an employee to carry out such duties as are reasonable, within the limits of the employee’s skill, competence and training consistent with the employee’s classification, grouping and/ or career stream…”

Emergency or critical care medicine is outside the scope of the CMOs’ career stream of Rehabilitation Medicine that the Labour Flexibility Clause provides a clear limitation on the areas to which the CMOs can be properly directed to work, that is within their career stream.

If there are any other members in similar circumstances please contact Senior Industrial Officer Bob Morgan at bobm@asmof.org.au