Christy Morton v The Trustee for Oxford Unit Trust T/A Oxford Day Surgery
[2023] FWC 2934
•10 NOVEMBER 2023
| [2023] FWC 2934 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Christy Morton
v
The Trustee for Oxford Unit Trust T/A Oxford Day Surgery
(C2022/4189)
| COMMISSIONER SCHNEIDER | PERTH, 10 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal Alleged dispute about any matters arising under the modern award and the NES; [s146]
Background
Mrs Christy Morton (Mrs Morton or the Applicant) has applied, under section 739 of the Fair Work Act 2009 (Cth) (the Act), for the Fair Work Commission (the Commission) to deal with a dispute.
The dispute arises in accordance with the dispute resolution clause under the Health Professionals and Support Services Award 2020 (the Award).[1]
The application has been lodged in relation to Mrs Morton’s employment with The Trustee for Oxford Unit Trust T/A Oxford Day Surgery, part of the Monsterrat Day Hospitals group, (ODS, Monsterrat, or the Respondent).
The Applicant is currently classified as a Health Professional Level 2 under the Award by the Respondent. The Applicant disputes this classification and believes that the correct classification for her position should be Health Professional Level 4 or Level 3.
The application was the subject of two conferences before the Commission. As the parties were unable to resolve the dispute, the matter was listed for Hearing, to arbitrate the dispute. The parties were issued Directions to file materials. Both parties filed submissions accordingly.
The Applicant gave evidence on her own behalf. Mr Brendan Ball (Mr Ball), General Manager (WA) for Monsterrat, gave evidence on behalf of the Respondent. At the Hearing, both parties were represented by a lawyer or paid agent.
Following the Hearing, the Applicant’s representative applied for leave to file further submissions concerning recent developments in case law. I am not satisfied such submissions regarding the case cited hold any weight as it pertains to the conclusions to be made in this dispute. Accordingly, this decision has not discussed those at any length.
Questions for arbitration
The parties agreed upon and filed proposed questions for arbitration. The questions to be determined in this decision are as follows.
(1) Was the Applicant:
(a) a Health Professional Employee – Level 3 under the Health Professionals and Support Services Award at any time between 1 January 2017 through 30 June 2022; and
(b) if the answer to 1(a) above is yes, for what period(s) during this time was the Applicant a Health Professional Employee – Level 3.
(2) Was the Applicant:
(a) a Health Professional Employee – Level 4 under the Health Professionals and Support Services Award at any time between 1 January 2017 through 30 June 2022; and
(b) if the answer to 1(a) above is yes, for what period(s) during this time was the Applicant a Health Professional Employee – Level 4.
Relevant Legislation and Instrument
In accordance with the dispute resolution clause within the Award, the Applicant has brought this dispute to the Commission, noting section 738 of the Act which allows for an application under Part 6-2, Division 2 to be made in such circumstances:
“738 Application of this Division
This Division applies if:
(b) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; …”
The application has been brought under section 739 of the Act, which allows for the Commission to assist the parties to resolve a dispute:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
In accordance with section 146 of the Act, clause 36 of the Award contains the dispute resolution clause.
Clause 36 of the Award, as quoted below, details the procedure that must be followed in raising and escalating a dispute as well as the scope of the Commission’s involvement in resolving such dispute:
“36. Dispute resolution
36.1 Clause 36 sets out the procedures to be followed if a dispute arises about
a matter under this award or in relation to the NES.
36.2 The parties to the dispute must first try to resolve the dispute at the
workplace through discussion between the employee or employees concerned and the relevant supervisor.
36.3 If the dispute is not resolved through discussion as mentioned in clause 36.2,
the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
36.4 If the dispute is unable to be resolved at the workplace and all appropriate
steps have been taken under clauses 36.2 and 36.3, a party to the dispute may refer it to the Fair Work Commission.
36.5 The parties may agree on the process to be followed by the Fair Work
Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
36.6 If the dispute remains unresolved, the Fair Work Commission may use any
method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
36.7 A party to the dispute may appoint a person, organisation or association to
support and/or represent them in any discussion or process under clause 36.
36.8 While procedures are being followed under clause 36 in relation to a
dispute:
(a)work must continue in accordance with this award and the Act; and
(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.”
Noting that the dispute specifically concerns the Applicant’s classification under the Award, it is useful to note the relevant classification definitions.
Level 2, under which the Applicant is currently classified, reads as follows:
“A.2.2 Health Professional—level 2
(a)A health professional at this level works independently and is required to exercise independent judgment on routine matters. They may require professional supervision from more senior members of the profession or health team when performing novel, complex, or critical tasks. They have demonstrated a commitment to continuing professional development and may have contributed to workplace education through provision of seminars, lectures or in-services. At this level the health professional may be actively involved in quality improvement activities or research.
(b)At this level the health professional contributes to the evaluation and analysis of guidelines, policies and procedures applicable to their clinical/professional work and may be required to contribute to the supervision of discipline specific students.”
Level 3, which the Applicant submits is appropriate, reads as follows:
“A.2.3 Health Professional—level 3
(a)A health professional at this level would be experienced and be able to independently apply professional knowledge and judgment when performing novel, complex, or critical tasks specific to their discipline. At this level health professionals will have additional responsibilities.
(b)An employee at this level:
(i)works in an area that requires high levels of specialist knowledge and skill as recognised by the employer;
(ii)is actively contributing to the development of professional knowledge and skills in their field of work as demonstrated by positive impacts on service delivery, positive referral patterns to area of expertise and quantifiable/measurable improvements in health outcomes;
(iii)may be a sole discipline specific health professional in a metropolitan, regional or rural setting who practices in professional isolation from health professionals from the same discipline;
(iv)is performing across a number of recognised specialties within a discipline;
(v)may be accountable for allocation and/or expenditure of resources and ensuring targets are met and is responsible for ensuring optimal budget outcomes for their customers and communities;
(vi)may be responsible for providing regular feedback and appraisals for senior staff to improve health outcomes for customers and for maintaining a performance management system; and
(vii)is responsible for providing support for the efficient, cost effective and timely delivery of services.”
Finally, Level 4, which the Applicant submits is appropriate, reads as follows:
“A.2.4 Health Professional—level 4
(a)A health professional at this level applies a high level of professional judgment and knowledge when performing a wide range of novel, complex, and critical tasks, specific to their discipline.
(b)An employee at this level:
(i)has a proven record of achievement at a senior level;
(ii)has the capacity to allocate resources, set priorities and ensure budgets are met within a large and complex organisation;
(iii)may be responsible to the executive for providing effective services and ensuring budget/strategic targets are met;
(iv)supervises staff where required; and
(v)is expected to develop/implement and deliver strategic business plans which increase the level of care to customers within a budget framework.”
Submissions and Evidence
Applicant
The Applicant submits that, on the evidence before the Commission, she occupies a critical senior position in the Respondent’s operations and that she has been incorrectly classified as a Health Professional Level 2 for quite some time.
The Applicant submits that from the period of 1 January 2017 until the present date, she should have been classified as a Health Professional Level 4.
The Applicant submits that, due to the vase variety, size, and structure of the health industry in Australia, a liberal interpretation of the requirements and nature of the position is appropriate.
The Applicant submits that not all criteria in each of Level 3 or Level 4 have to be met in order for the Applicant’s employment to fall within either of those classifications.
The Applicant submits that the Respondent had previously been willing to reclassify the Applicant to a Level 3 in the Award and did not require the Applicant to complete all criteria associated with a Level 3 in order to reclassify the Applicant.
The Applicant also submits that not all of the criteria associated with each Level could be equally weighted or perform an equal amount of time. The Applicant submits that it is not uncommon for some criteria to be performed daily or on a regular basis, whilst other criteria may occur on a less regular basis.
The Applicant submits that when considering the “principal purpose” of the Applicant’s employment, as it relates to the Award classification, the importance of the criteria in the Award needs to be central.
It was also submitted that the size of the Respondent’s organisation and business operation would impact the criteria. The Applicant submits that a large-scale suburban hospital would have a significantly different operational environment to that of a small rural hospital. The Applicant submits that the Respondent is part of a large chain of hospitals and day surgeries run by Montserrat, from Brisbane. The Applicant submits that this needs to be considered in relation to the criteria for Level 4 and how this interacts with a smaller day surgery.
The Applicant submits that in the circumstances where a task of the Award is not required to be completed by the Respondent this should not limit the Applicant’s ability to be classified as a Level 3 or Level 4, under the Award.
The Applicant submits that the correct application would be, if the Respondent does not require the Applicant to perform certain responsibilities under the Award classification, either by operational design or because the duties do not exist, such factors should not limit the Applicant’s ability to move to a higher classification level under the Award.
Evidence of Mrs Morton
The Applicant commenced employment as a histotechnician with the Oxford Day Surgery in March 2012, after completing a three-year biomedical science degree.
The Applicant was paid $25 per hour on a part time basis for the first 3 months and it increased to $27 per hour in May 2012.
The Applicant was provided extensive on the job training by the senior Mohs histotechnician.
Her duties, as per the job description, were to set up doctors working areas, set up the laboratory, process specimens by freezing them, cut and stain the frozen specimen.
In February 2015, the Applicant was promoted with a pay rise to $31 per hour to Senior Mohs histotechnician.
The promotion came with some additional duties, including interviewing job candidates, rostering, training of all new lab staff, competency assessments, performance assessments, audits, and several other administrative tasks. Some of these duties changed or were taken on by the Clinical Business Manager, of which there have been several, over the duration of the Applicant’s employment.
Throughout her employment, the Applicant has been involved in several professional pursuits or activities, both external to and within the confines of her employment, owing to her experience in the industry.
The Applicant also manages audits herself, at her own initiative, and is the only employee with certain qualifications and expertise.
In August of 2017, the Applicant’s pay increased to $32.80 per hour, under the Award, when Montserrat took ownership of ODS.
In October 2018 the Applicant got a pay rise to $34.11 per hour.
In November 2019 the Applicant’s pay increased to $35.30 per hour.
In November 2020, the Applicant got a pay increase to $36.36 per hour.
In November 2021, the Applicant received a pay increase to $36.91 per hour.
In July 2022, the Applicant received an increase of 7 cents per hour, resulting in a $36.98 per hour pay rate.
In her witness statement, the Applicant explains, in great detail, the tasks and duties she undertakes in her role.
ODS conducts several specialist surgical procedures. Notably, the Applicant’s work primarily concerns Mohs surgery, a specialist skin cancer removal procedure.
The procedure is complex and high stakes, involving a great deal of precision and care to ensure good outcomes.
During the procedure, cancers are removed from the patient by the doctors and sent to the pathology laboratory where the Applicant and her colleagues “fix” them and provide the doctors the slides containing the “fixed” tissue for them to examine and be satisfied that all the cancerous cells have been excised. If the “fixed” slide still shows evidence of cancerous cells present, a further operation is performed on the patient and the process is repeated.
It can take multiple operations before the doctors can be satisfied that all the cancerous cells have been excised.
The Applicant’s specific tasks in this procedure are as follows:
· to set up doctors working areas;
· set up the laboratory;
· process specimens by freezing them; and
· cut and stain the frozen specimen.
The last two steps noted above are the most difficult and can vary depending on the type of tissue being sampled.
The Applicant explains the slight differences in the way she processes the types of tissue, noting that such knowledge only comes from experience and can vastly improve results.
The Applicant notes that she is solely responsible for quality assurance over the samples produced by the laboratory.
In her statement, the Applicant breaks her tasks down into further detail. Such detail I will not repeat here other than to note the whole process is undeniably an intricate procedure, requiring great attention to detail, technical knowledge, and care from the Applicant and her coworkers.
The Applicant states she is responsible for the day-to-day operations of the Mohs laboratory.
The Applicant states that she performs the same work as other experienced histotechnicians, but with many additional regular tasks, primarily:
· Train and supervise all laboratory staff.
· Produce laboratory rosters.
· Monitor all slides for quality, provide feedback if required, adjust stain if required.
· Coordinate and allocate quality activity tasks.
· Produce laboratory audit reports.
· Deal with stock problems, source new suppliers.
· Collate Fellows Mohs log.
· Arrange all laboratory maintenance.
· Arrange all hospital scheduled maintenance.
· Arrange some hospital repairs.
· Maintain all hospital service reports.
· Complete all hospital hand hygiene audits.
· Maintain the Gold Standard Hand Hygiene Auditor certification.
Respondent
The Respondent notes that, in August 2017, in recognition of the Applicant’s service and experience, the Respondent offered the Applicant the title of “laboratory coordinator”.
Despite the change in title, the Respondent submits that the Applicant’s substantive duties and responsibilities remained those of a histotechnician.
The Respondent has, since January 2017, classified the Applicant as a Health Professional – Level 2, under the Award.
The Respondent is of the position that the Applicant’s responsibilities are routine in nature.
The Respondent submits that the principal purpose for which the Applicant is employed is to prepare excised tissue for review under a microscope.
The Respondent submits that the process of preparing slides of excised tissue requires no formal qualifications, limited on the job training, and has remained consistent throughout the course of the Applicant’s employment. It is a process which a new employee can learn in 2 weeks, in the Respondent’s opinion.
The Respondent submits that the duties undertaken by the Applicant cannot be said to be novel, complex, or critical, nor can they be said to require high levels of specialist knowledge or skill. In the event the Applicant failed to properly prepare a slide for analysis by a doctor, the doctor would identify as much, and would arrange for a correction to be made to the sample.
The Respondent submits that the Applicant overstates the importance of her contributions in several of the items she claims supports a higher classification.
The Respondent highlights that many of the tasks noted by the Applicant are not expected of her and the Respondent does not require her to complete such tasks, nor would she be disciplined for failures as she holds no accountability over those tasks.
The Respondent paints the Applicant’s role at ODS as supportive, rather than any kind of senior or managerial role.
In relation to the Applicant’s claim that she is a Health Professional – Level 4, under the Award, the Respondent submits that each of the following is fatal to the Applicant’s claim:
· the Applicant is not required to perform, and therefore cannot apply a high level of professional judgment or knowledge to, “a wide range of novel, complex, and critical tasks”;
· the Applicant is not operating at a “senior level”, let alone does she have a proven record of achievement at same;
· the Applicant does not possess the capacity (and in any event is not employed for a principal purpose that entails) the allocation of resources, setting of priorities, and delivery of budgets withing a large and complex organisation. ODS does not, as an organisation, meet that description, and even if it did, the Applicant’s role does not require her to undertake any of those tasks;
· the Applicant is not “expected to develop/implement and deliver strategic business plans”; and
· the Applicant has no responsibility to the executive, much less responsibility for providing effective services or ensuring budget and strategic targets are met.
In relation to the Applicant’s claim that she is a Health Professional – Level 3, under the Award, the Respondent submits that each of the following is fatal to the Applicant’s claim:
· the Applicant is not required to perform, and therefore cannot independently apply professional judgment or knowledge to, “a range of novel, complex, and critical tasks”;
· the Applicant does not work in an area that requires a high level of specialist knowledge and skill;
· the Applicant is not contributing to the development of professional knowledge and skills in their field of work;
· the Applicant is not practicing in professional isolation from health professionals in the same discipline;
· the Applicant is not accountable for the allocation and/or expenditure of resources, ensuring targets are met, or ensuring optimal budget outcomes for customers and communities;
· the Applicant is not performing work across a number of recognised specialities within a discipline; and
· the Applicant is not responsible for providing regular feedback and appraisals to senior staff.
Evidence of Mr Ball
Mr Ball gave evidence that he first met Ms Morton in or about May 2021.
According to Mr Ball, the day-to-day operations of the ODS, including the Mohs Laboratory are overseen by the Clinical Business Manager (CBM), who is a qualified nurse. Mrs Morton reports to the CBM and Mr Ball.
On 21 August 2017, Mrs Morton, in recognition of her experience and service with the ODS, was awarded the title “laboratory coordinator”.
However, Mr Ball states, despite her title change, Mrs Morton’s duties remained that of a histotechnician.
Her employment is, and was at all material times, covered by the Award according to Mr Ball.
Mr Ball states the Applicant the same key duties, and performs the same sample preparation processes, in the same way, as the other Mohs histotechnicians.
From time to time, Mr Ball accepts, Mrs Morton, as the most experienced of the three histotechnicians, is asked to assist with the following tasks:
· routine quality assurance tasks;
· providing on the job training to new Mohs hisotechnicians to assist them to understand the practices and preferences at the ODS laboratory; and
· providing ad hoc input, based on her experience as a histotechnician, as to her preferences and personal experiences with particular equipment (input which may or may not be taken into account in the ODS’s procurement decisions, noting Ms Morton is not vested with a decision-making role in relation to such matters).
In the past, Mrs Morton has been classified as a level 2 Health Professional, under the Award, most recently at pay point 4. Level 2 Health Professionals work independently and are required to exercise independent judgment on routine matters. This description, in Mr Ball’s opinion, matches Mrs Morton’s role.
Mr Ball contends that the various procedures that are undertaken in the Mohs laboratory are repetitive, routine, and standardised. It takes around two weeks for a new employee to learn the necessary procedures, and around six or so months before the employee is considered to be competent enough to work completely unsupervised.
The ODS provides Mohs laboratory services to the medical practitioners and the quality of service is the responsibility of the CBM and Mr Ball.
Although Mrs Morton has attended two conferences, in relation to Mohs histotechnology prior to the COVID-19 pandemic, Mr Ball asserts that she has not delivered any seminars, lectures, or in-services or otherwise demonstrated a commitment to continuing professional development in such a way that would warrant a higher classification.
Mr Ball maintains that Mrs Morton does not undertake research activities. Although she undertakes various tasks directed at maintaining quality, for example she needs to ensure the quality of the samples that she herself prepares for the doctor’s review, and provides on the job training to new starters, her duties are not directed toward, and she is not involved with, process improvement or research in relation to the same.
Mr Ball states, in reference to quality assurance, if there are issues with the quality of samples, when the Applicant is not on shift, Mrs Morton would not be blamed (or disciplined) for those issues. Further, the Applicant would not be disciplined for issues on her shift.
According to Mr Ball, the laboratory work Mrs Morton undertakes, under the title of lab coordinator, is no different to the other Mohs histotechnicians.
Whilst Mrs Morton has taken on a limited number of other duties, in the broader hospital, Mr Ball asserts that those tasks are generalist duties and are elementary in nature.
Training on how to use certain equipment is needed, however, Mr Ball is not of the opinion that this requires a “high level of specialist knowledge or skill” given the relatively short timeframe in which it can be learnt and for an individual to be considered sufficiently experienced in.
Mr Ball states that Mrs Morton is not accountable for the allocation and/or expenditure of resources. Nor is Mrs Morton responsible for ensuring targets are met or ensuring optimal budget outcomes for customers in any way.
Whilst Mrs Morton has, from time to time, been asked to find alternative quotes for stock, all decisions regarding procurement, capital expenditure, and revenue models sit exclusively with Mr Ball.
Consideration
Applicant Duties / Principal Purpose / Award Classification
Both parties made submissions on the relevant authorities and methods of interpretation as they relate to the current dispute.
The relevant principles of interpretation are to be drawn from Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (Berri).[2]
I adopt the Berri principles.
Consequently, it is necessary to,
· begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement;
· determine whether the Agreement has a plain meaning;
· review the text of the Agreement as a whole;
· not rewrite the Agreement to achieve what might be regarded as a fair or just outcome;
· (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement;
· not adopt an overly technical approach to the interpretation of the Agreement; and
· not contradict the plain language of the Agreement.
The relevant classification dispute principles are derived from Logan v Otis Elevator Company Pty Ltd.[3]
In Michael Watson v Safe Places Community Services Limited, a Full Bench of the Commission restated the principles:
“In Davies v Carnachan Family Trust Pty Ltd, Jones J observed:
The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:
...it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362at 379; Joyce v Christofferson (1990) 26 FCR 261at 278.”
Further, the principles of construction of enterprise agreements also operate when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification Level of an employee. Each level of a classification structure and the underpinning definitions must be read in the context of higher or lower levels having regard to the descriptions at higher and lower levels of similar tasks with ascending and descending degrees of complexity.” [4]
Having considered the submissions and evidence of the parties, I find that the correct classification for the Applicant under the Award, is Health Professional – Level 2. My reasons are as follows.
The Award outlines the requirements for a Health Professional – Level 2. The definition contained within the Award reads as follows:
(a)A health professional at this level works independently and is required to exercise independent judgment on routine matters. They may require professional supervision from more senior members of the profession or health team when performing novel, complex, or critical tasks. They have demonstrated a commitment to continuing professional development and may have contributed to workplace education through provision of seminars, lectures or in-services. At this level the health professional may be actively involved in quality improvement activities or research.
(b)At this level the health professional contributes to the evaluation and analysis of guidelines, policies and procedures applicable to their clinical/professional work and may be required to contribute to the supervision of discipline specific students.
There was significant evidence provided by both parties in relation to the nature of the duties performed by the Applicant.
I have considered the submissions and evidence of the Applicant.
In relation to the nature and accuracy of the evidence provided by Mr Ball, on behalf of the Respondent, I accept that his may have limited benefit in some regards, noting his professional qualifications.
That being said, after assessing the evidence of the Applicant, I have formed the opinion that the nature of the work undertaken by the Applicant, being the tasks she is required to perform pursuant to her role, is correctly classified as that of a Level 2 employee.
The Applicant, in her submissions, provided significant detail in relation to her duties and tasks.
There is no doubt that the Applicant is rightfully proud of her hard work and skill set. The duties, as outlined by the Applicant, are no doubt technical and require a significant level of dedication and care in being completed correctly.
The Applicant’s duties indeed involve a level of technical complexity, as many senior and non-senior roles within STEM fields do. However, I find that the Respondent has correctly identified that the Applicant’s duties do not meet the requirements of being novel, complex, or critical tasks, in the manner that would attract higher classification under the Award.
It is clear that, though I do not doubt that those in her role usually hold a degree, tertiary qualifications are not strictly required nor is any laboratory experience to gain employment in the role. All training is preformed upon commencement of employment and takes approximately two weeks.
I do not doubt the Applicant’s contention that certain skills and knowledge to perform at her level could not be learned by new recruits until months or years later. However, it is clear that, to perform the role to a satisfactory degree, strictly speaking, only on the job training, over a relatively short period of time is required.[5]
The Applicant, consistent with the requirements of a Health Professional – Level 2, works independently and is required to exercise independent judgment on routine matters and contributes to the evaluation and analysis of guidelines, policies, and procedures applicable to her clinical and professional work, and may be required to contribute to the supervision of discipline specific students. This much is clear from the Applicant’s own evidence. The Applicant implements her knowledge of the role and tasks in assessing samples and employing techniques to yield superior products. The Applicant also exercises independent judgement in undertaking several other duties to contribute to the successful operations of the Mohs laboratory.
The Applicant provided detailed evidence in relation to what could be characterised as quality assurance tasks. Having assessed such evidence provided and the evidence of the Respondent, I do consider these duties consistent with those classified under Health Professional – Level 2 in the Award.
The Award provides clear scope and coverage, under Level 2, for employees to be actively involved in “quality improvement activities”. I find that the Applicant duties in relation to these tasks fit within the scope for a Health Professional – Level 2.
Similarly, the Applicant independently assesses work outputs of other employees, routinely, to assist in the overall performance of the laboratory and, it appears, to assist the continued development of her teammates (noting her experience and knowledge).
The Applicant provided significant evidence in relation to her requirements to supervise and train new employees when they first commence with the Respondent.
I do not consider that the Applicant is a supervisor or manager merely because she is allocated the task of training new staff. Rather, having considered the duties of the Applicant, I find that the Applicant performs duties that are more consistent with a team leader rather than a supervisor or manager.
The Applicant is an experienced staff member, who is clearly knowledgeable in her role. The Applicant would, understandably, be a wise selection to train new staff. I am not satisfied that this elevates her employment to that of a higher classification.
I note that the Applicant provides evidence of several tasks she undertakes in addition to the laboratory work.
I do not doubt that the Applicant indeed performs additional tasks and does so with the best intentions and to the benefit of the Respondent.
However, I also accept the evidence of Mr Ball, in response to the Applicant’s assertions concerning additional duties. I am satisfied that, several of the duties noted by the Applicant, the Applicant is not required, in her role, to execute such duties.
The Applicant is a diligent employee, who undertakes additional work, but the additional tasks are not required of her, in her role, and she holds no accountability in the result or completion of such duties. I cannot consider such voluntary participation in additional duties to form part of the primary purpose for which the Applicant is employed.
Simply, I am not satisfied that the additional tasks taken on by the Applicant attract a higher classification under the Award. Rather, as should be obvious to all, such evidence makes it abundantly clear that the Applicant is an exceptionally valuable employee.
Whilst I accept that the evidence of the Applicant has been provided in good faith to the Commission, I am not satisfied that the principal purpose of the Applicant’s employment meets the requirements of any classification higher than a Health Professional – Level 2, under the Award.
Health Professional – Level 3
For the reasons outlined above, I have concluded that the requirements of the Applicant’s position with the Respondent do not meet the classification of Health Professional – Level 3, under the Award.
When considering the requirements of a Level 3 under the Award, the following is outlined:
(a)A health professional at this level would be experienced and be able to independently apply professional knowledge and judgment when performing novel, complex, or critical tasks specific to their discipline. At this level health professionals will have additional responsibilities.
(b)An employee at this level:
(viii)works in an area that requires high levels of specialist knowledge and skill as recognised by the employer;
(ix)is actively contributing to the development of professional knowledge and skills in their field of work as demonstrated by positive impacts on service delivery, positive referral patterns to area of expertise and quantifiable/measurable improvements in health outcomes;
(x)may be a sole discipline specific health professional in a metropolitan, regional or rural setting who practices in professional isolation from health professionals from the same discipline;
(xi)is performing across a number of recognised specialties within a discipline;
(xii)may be accountable for allocation and/or expenditure of resources and ensuring targets are met and is responsible for ensuring optimal budget outcomes for their customers and communities;
(xiii)may be responsible for providing regular feedback and appraisals for senior staff to improve health outcomes for customers and for maintaining a performance management system; and
(xiv)is responsible for providing support for the efficient, cost effective and timely delivery of services.
Having considered the evidence and submissions, I do not accept that the Applicant is required to complete the tasks as outlined for a Health Professional – Level 3, under the Award.
The Applicant, in her current position, is not required to apply professional judgement and knowledge when performing a wide range of novel, complex and critical task, as, from the evidence provided, the duties performed by the Applicant do not meet this requirement.
Although it is clear the Applicant’s experience and knowledge assists greater outcomes in her work, I am satisfied that the tasks themselves are not of the type described within the Level 3 classification, under the Award.
Health Professional - Level 4
I find that there are no circumstances where I could be satisfied that the Applicant should correctly be considered as a Health Professional – Level 4, in line with the Award.
When considering the requirements for a Level 4 under the Award, the following is outlined:
(a)A health professional at this level applies a high level of professional judgment and knowledge when performing a wide range of novel, complex, and critical tasks, specific to their discipline.
(b)An employee at this level:
(vi)has a proven record of achievement at a senior level;
(vii)has the capacity to allocate resources, set priorities and ensure budgets are met within a large and complex organisation;
(viii)may be responsible to the executive for providing effective services and ensuring budget/strategic targets are met;
(ix)supervises staff where required; and
(x)is expected to develop/implement and deliver strategic business plans which increase the level of care to customers within a budget framework.
Having considered the evidence and submissions, I do not accept that the Applicant is employed or required to complete the requirements as outlined for a Health Professional – Level 4, under the Award.
The Applicant, in her current position, is not required to apply a high level of professional judgement and knowledge when performing a wide range of novel, complex, and critical tasks. As stated earlier, I have considered all the evidence before the Commission and concluded that the Applicant’s tasks, although she is impressively knowledgeable in her role, are routine.
It is also evident that the Applicant is not required, in any capacity, to be involved in any of the following:
· Allocation of resources, setting of priorities, and ensuring budgets are met.
· Report to the executive of the Respondent and ensure that budgeting and strategic targets are met.
· Develop/implement and deliver strategic business plans which increase customer care within budgetary requirements.
Whilst, it is clear that, I have no doubt that the Applicant is a diligent and hardworking employee for the Respondent, she is not currently required to perform duties and/or is not performing duties that are consistent with a classification of Health Professional – Level 3 or Level 4, under the Award.
Having found that the Applicant is correctly classified as a Health Professional – Level 2, under the Award, the answers for all questions in the dispute are No.
Conclusion
I note my consideration and finding as above.
Accordingly, in response to the question:
(1) Was the Applicant:
(c) a Health Professional Employee – Level 3 under the Health Professionals and Support Services Award at any time between 1 January 2017 through 30 June 2022; and
(d) if the answer to 1(a) above is yes, for what period(s) during this time was the Applicant a Health Professional Employee – Level 3.
I answer, No.
And, in response to the question:
(2) Was the Applicant:
(c) a Health Professional Employee – Level 4 under the Health Professionals and Support Services Award at any time between 1 January 2017 through 30 June 2022; and
(d) if the answer to 1(a) above is yes, for what period(s) during this time was the Applicant a Health Professional Employee – Level 4.
I also answer, No.
No orders have been issued.
COMMISSIONER
[1] [MA000027].
[2] [2017] FWCFB 3005.
[3] [1997] IRCA 200.
[4] [2020] FWCFB 2993, [32]-[33].
[5] For a similar conclusion, see; [2022] FWCFB 64, [57]-[61].
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