Crown v State of Queensland (Queensland Health)
[2014] QIRC 142
•10 September 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Crown v State of Queensland (Queensland Health) [2014] QIRC 142 |
PARTIES: | Crown, Suzanne v State of Queensland (Queensland Health) |
CASE NO: | HP/2013/34 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 10 September 2014 |
HEARING DATE: | 25 November 2013 |
MEMBER: | Industrial Commissioner Thompson |
ORDERS : | 1. Application dismissed. 2. Applicant retains classification of HP5. |
| CATCHWORDS: | INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as Health Practitioners - Internal review unsuccessful - Work level evaluation process - Witness Evidence - Role description and responsibilities - Powers of the Commission - Alleged errors within reclassification process - Appeal process not flawed - Application dismissed. |
| CASES: | Industrial Relations Act 1999, s 230 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision < Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053 Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision < for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 |
| APPEARANCES: | Mr G. Butler for the Applicant. |
Decision
Background
A Notice of Industrial Dispute was lodged with the Industrial Registry on 17 August 2012 by Suzanne Crown (Crown), the Medical Imaging Clinical Services Manager, Cardiac Catheter Laboratory, Princess Alexandra Hospital (PAH), Metro South Health District.
The subject matter of the dispute was identified in the notification as:
"Failure by the Respondent to comply with provisions of an enterprise agreement providing for reclassification as Health Practitioner and failure to implement reclassification level and pay remuneration in accordance with the requirements of the relevant Enterprise Agreements leading to an underpayment of wages."
The notification was the subject of a conciliation conference before Commissioner Fisher on 16 November 2012 however with the dispute unresolved, it was referred to arbitration.
Crown had unsuccessfully sought an internal review of the decision to classify her as a Health Practitioner (HP) 5 in accordance with the specific provisions of the Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1). Whilst the matter remained unresolved, the provisions in HPEB1 relating to the HP Work Evaluation Process were carried across to the Health Practitioners (Queensland Health) Certified Agreement (No 2) 2011 (HBEB2).
At the time of hearing there was an issue regarding the admissibility of evidence from Crown that was said to have been inadvertently omitted from the material tendered by her in the proceedings with fault being apportioned to the representative acting on her behalf. The material, in the view of the Commission, ought to have formed part of Exhibit 1 and with concessions from the Respondent, the material was formally provided to the Commission as an attachment to the written submissions tendered on Crown's behalf and was considered by the Commission in the determination of the arbitration.
Applicant
Crown
Crown, in an affidavit [Exhibit 2] provided evidence in relation to the following:
· Employment and Career History
·qualified as a Radiographer in the United Kingdom in 1975;
·practicing Radiographer for 38 years;
·trained in Mammography, Nuclear Medicine, CT and Vascular Radiography;
·professional accreditations; and
·previously roles in other health establishments.
· Overview of Cardiac Catheter Laboratories
·highly specialised and technical area; and
·responsibilities for three laboratories/rooms at the PAH running concurrently.
· Patient conditions relating to Catheter Laboratories
·approximately 4,000 patients per annum;
·Cardiovascular disease; and
·multidisciplinary approach.
· The Cardiac Catheter Laboratories Clinical Processes
·overview of functions which included:
-insertion of pacemakers and defibrillators;
-diagnostic and interventional electrical studies;
-insertion of Occlusion devices;
-Atherectomy;
-Angiography; and
-pump insertion.
· Radiographer duties in the Catheter Laboratories
·responsible to the Cardiologist for x-ray equipment;
·number of staff classified at HP5 report to Crown for clinical and general supervision;
·24/7 emergency clinical on-call service;
·five Radiographic staff on duty daily;
·Bi-plane unit; and
·imaging storage.
· Crown's role in Cardiac Catheter Laboratories;
·clinical, management, research skills;
·oversee Radiographers performance;
·expert knowledge clinical skills, problem solving, complex contemporary clinical practice standards;
·accountability for delivery of specialised clinical medical imaging services;
·management of subordinate staff;
·leadership role; and
·reporting to Senior Clinicians.
· Key Accountabilities
·clinical practice;
·leadership/work unit management; and
·communication/team participation/continuous learning.
· Other tasks undertaken by Crown were identified as:
·installation of additional equipment including speciality State-wide Agfa Imprx CV computer reporting and archive system;
·assisting with policy development for nursing staff whenever radiation is involved;
·training staff in area of her expertise;
·authoring comprehensive training manual "Cardiac Catheterisation Laboratory Training Manual";
·convenor of seminars;
·guest speaker at European conference;
·member of State-wide Angiographers Group (SWAG);
·manage clinical workloads, staff, training and budgets; and
·continues to work at HP6 level whilst being paid HP5 wages.
Crown gave evidence that the entire HP process had been flawed and to her detriment despite having followed all directions from the initial translation and having provided vast amounts of supporting documentation. Her Work Unit had recommended her for the HP6 level with support from the Directors of:
· Radiography;
· Cardiology; and
· Electrophysiology.
The Work Level Evaluation Panel (WLEP) had recommended HP6 level. The details of the WLEP were set out in Attachment SC5 to her affidavit. The Work Level Evaluation Team (WLET) had not accepted the WLEP evaluation instead finding "Agreed at least HP5. No LOE to support higher level". The WLET decision was said to have been based on a decision made a month prior by the Health Practitioners Oversight Group (HPOSG) which was not a group established under HPEB1. To her knowledge at no stage was she required to provide additional information and she was aware she had been described as a Radiographer rather than a Clinical Services Manager.
In respect of the appeal process, Crown expressed disappointment at the integrity of the process, the outcome and the apparent ignorance of procedural fairness. Their findings (at Attachment SC7) were said to be inadequate and against the material presented to them. It was "simply totally incorrect against all three criteria". The Appeal Panel had failed to comply with the explicit obligations set out in HPEB1 with no material available to confirm the Appeal Panel was properly constituted or reached its decision in a manner that provided procedural fairness nor what other material was before the Panel.
Crown continued to question the operation of the Appeal Panel with regards to:
· no independent chairperson;
· whether there was an evaluation of her role description; and
· whether there was a unanimous or split decision.
The entire process reflected arbitrary, inconsistent and unfair decision making which left her feeling devalued and under recognised. The exercise had remained unresolved in 2013 placing her at a significant financial disadvantage and given the obvious error and inconsistency of the WLET decision surrounding the appeal process, the Commission was requested to require that the initial determination by the WLEP be confirmed.
Under cross-examination, Crown gave evidence that SWAG was an informal group of seven radiographers who met outside of work hours to discuss matters pertaining to their profession [Transcript p. 1-27]. She did not directly manage a budget [Transcript p. 1-29] however there were five Radiographers who reported directly to her in addition to other HP3 to HP5 employees. Her role included undertaking performance appraisals for those staff [Transcript p. 1-31]. The training manual authored by her was a good resource tool for base level procedures and had been utilised by staff at the Gold Coast and Nambour Hospitals [Transcript p. 1-32] but had not been endorsed by Queensland Health [Transcript p. 1-33].
In relation to her Performance Appraisal Development Plan (PADS) (Attachment SC4) her role description had been "downgraded" to that of HP5 having previously been at HP6 [Transcript p. 1-36]. The adjustment had taken place following the lodgement of her Notice of Dispute with the Commission [Transcript p. 1-38]. The current role description was that of "Team Leader Cardiac" which was conveyed to her in 2010 or 2011 [Transcript p. 1-39].
On the HP evaluation processes Crown acknowledged that the work unit proposal was part of the process but was aware there was no guarantee that the level proposed at the first stage would remain the same throughout the process [Transcript p. 1-40]. With regards to the "flawed" comment from WLET about there being "no LOE to support a higher level" her evidence was she had never been asked for an LOE and there was no need to put in for a LOE as her work unit had recommended HP6 [Transcript p. 1-43]. The HPOSG decision was relied upon by the WLET and according to her the HPOSG was not formally recognised in HPEB1 [Transcript p. 1‑44]. On her claim that the Appeal Panel failed to act in accordance with the relevant provisions of the Agreement it was her evidence that she was under a HP6 role description and her classification came back as a HP5 [Transcript p. 1-45]. A range of other employees had the same circumstances as her and were assessed at a higher level [Transcript p. 1-45]. Crown was evaluated by the WLEP and the work unit had both recommended her as a HP6 [Transcript p. 1-46]. There was said to be some doubt that the Appeal Panel had ever met to evaluate her position [Transcript p. 1-48].
In re-examination the witness gave evidence in relation to Appeal Panel membership and in particular the position of an independent person as a panel convenor. Crown gave evidence that her role included giving direction to Cardiologists and it was the case a Cardiologist could give directions to the Radiologist. In terms of the training manual it was used by Radiographers, Nursing staff, Cardiac scientists, Residents, Registrars who needed to learn more about the process.
Respondent
Grant Brown (Brown)
Brown at the time of hearing was the Director of the Logan Bayside Health Network having previously held a position with Queensland Health (QH) Workplace Relations Unit. In the previous roles he had represented QH in the HPEB1 negotiations and attended the Health Practitioner Interest Based Bargaining Group (HPIBB) as a QH representative. The HPIBB had been formed after the certification of HPEB1 to discuss and oversee the implementation of HPEB1.
In an affidavit (Exhibit 3) Brown gave evidence that on the certification of HPEB1 all existing employees were directly translated from their existing Professional Officer (PO) and Technical Officer (TO) classifications to the new HP classification structure as set out in Schedule 3 of HPEB1. The direct translation (Phase 1) identified 998 different position titles representing approximately 10,000 employees who were translated in accordance with Schedules 2 and 3, with most translated by 11 April 2008.
Brown had involvement with the HP Phase 2 Evaluation Process between May 2007 and November 2009 together with unions representing the effected employees. Under the agreed process for Phase 2 each work unit was required to prepare role descriptions for each position in the work unit with that role description then evaluated against the agreed methodology, being the Health Practitioner Work Level Statements (WLS).
The evaluation process involved five procedural "steps" which were designed to assess the relative work value of each application. The steps were identified as:
· Step 1 - Standardised Data Set - Work Unit Proposals (WUP), Employee Initiated Application (EIA) - ensure all information and required documentation submitted and recorded;
· Step 2 - Work Level Evaluation (WLE) to access level of proposed role description against WLS. Panels were formed from the specialist discipline - WLEP responsible for individual positions specific to a particular discipline;
· Step 3 - Intra-Disciplinary Relative/Consistency Review conducted by a multi-disciplinary WLET - to ensure the relativity and consistency of HP classifications with specific disciplines/professions across departments/units/districts - Work Level Evaluation Principles and Process Overview;
· Step 4 - Inter-Disciplinary Relativity/Consistency Review - conducted by WLET to ensure that evaluation process has been consistently applied and to monitor relativities and ensure consistency across HP disciplines/professions/departments/units and districts;
· Step 5 - HPIBB Oversight - including Oversight Sub Group (OSG) - to provide recommendations on all HP 8 evaluations and matters referred to it by WLET regarding anomalies or issues at HP6 and HP7 level - any unresolved issues between the WLEP and the WLET referred to OSG for resolution.
Following the conclusion of each step the members of WLEP or WLET were required to assess the proposed role description and propose a HP classification for the role descriptions. On the completion of Step 5 when all role descriptions were evaluated, the evaluated outcomes deemed sufficient to recommend a HP classification were sent to the Director-General for approval. Brown acknowledged there were a small number of evaluations where an unintentional oversight had occurred. The intention of the steps were to:
· ensure consistency;
· equity across a particular discipline;
· equity across various disciplines and professions; and
· reach a holistic evaluated outcome relying on all the criteria.
Brown went on to indicate the Phase 2 had been applied to approximately 11,000 proposed role descriptions.
The evidence included an expanded overview of the operation of the (previously mentioned) five steps including:
· Organisational consistency;
· WLEP membership - role and requirements;
· WLS - designed to reflect job characteristics:
·scope and nature of level;
·knowledge, skills and expertise;
·accountabilities;
· WLET role in Inter-Disciplinary Relativity/consistency review;
· OSG formation, membership and role.
On 12 November 2009 the Director-General approved the Phase 2 evaluation outcomes which had approximately 75% of the substantive position holders receiving work unit proposed level at the evaluation outcome with the majority of HPs satisfied with their outcome. The Phase 2 result led to a sizable workforce adjustment with QH needing to make a significant financial investment due to the classifications in the workforce:
· 7.5% - increased by two or more classification levels;
· 52.2% - increased by one classification level; and
· 40.3% remained at current Phase 1 level.
In relation to the appeal process the parties with assistance from the Commission agreed to design a process and in December 2009 released an Intent to Appeal document to all HPs. The document contained an end date (8 January 2010) for which all appeals against the Phase 2 outcome must be lodged. At 8 January 2010 approximately 1,500 Intent to Appeal applications were received.
The parties, QH, United Voice, Industrial Union of Employees, Queensland (UVQ) and Together Queensland, Industrial Union of Employees (TQ), agreed on a document "Work Level Statements and Guideline for Health Practitioner Roles" (Guidelines) to be used to assist appellant's in the preparation of their appeals. Those unsuccessful in the Phase 2 process were given the opportunity in the appeals process to provide quantifiable evidence that supported the particular WLS contained in their proposed role description. The Guidelines were designed to assist HPs ensure they understood what evidence was required which then assisted the Appeal Panel in their deliberations. The Phase 2 Appeal process did not require an appellant to meet all WLS with a holistic approach taken in the assessment of roles and determination of classification levels. On 31 August 2010 an in-principle agreement was reached by the parties to the Phase 2 Appeal instructions with all documentation released to the HP workforce.
The Appeal Panel reviewed just over 1,000 applications with a process that evaluated the evidence provided by an appellant and matched documentary evidence to the most applicable WLS. Brown's recollection was that four discipline representatives considered every appeal and in the large disciplines there was at least one representative from the particular profession, in some cases two representatives.
In the case of Crown's appeal, it was Brown's evidence that:
· the Appeal Panel was constituted in accordance with clause 19.6 and sections 6.4 - 6.5 of HPEB1;
· the Appeal Panel was provided with all relevant material:
·duties;
·roles and responsibilities;
·additional material; and
·submissions from Crown;
· pursuant to clauses 19.7 and 19.10 of HPEB1 the Appeal Panel:
·considered the WLE and all material relating to Crown; and
·recommended her role be classified at HP5 level.
Given the large amount of evaluations conducted in the Phase 2 process, the process agreed by the parties was fair and equitable.
Crown's application was dealt with in accordance with the evaluation and appeal process established by the parties.
Under cross-examination questioning of Brown went to the issue of the WLS for the evaluation process and the development of the statements after the certification of HPEB1. The evidence was that draft work level statements were part of HPEB1 [Transcript p. 1-62]. Brown did not accept the parties had failed to comply with undertakings regarding WLS being incorporated into the Award [Transcript p. 1-64]. Brown's evidence in terms of the WLET was they never changed or altered a classification, only endorsing them or not endorsing them [Transcript p. 1-67]. A significant number of questions were put to the witness regarding the conduct of the classification processes pursuant to HPEB1 [Transcript pp. 1-67 to1-81] with Brown giving evidence from his perspective of the overall process.
In relation to Crown's appeal on what would have been considered by the Appeal Panel, Brown stated:
"Yeah. As I explained - oh, well, I had a number of admin people that put all the information together and ensured that document - that all the documents were there that were received and we doubled and triple checked that, so it is my understanding that all the information that Miss Crown and all of the other appellants put in would have been presented to the appeal panel for consideration." [Transcript p. 1-84]
In re-examination Brown was taken to numerous questions asked about the process outside of the certified agreement. Brown's evidence was that clause 66.1 of HPEB1 allowed the parties to work towards arrangements in relation to the implementation of the HP classification structure. Brown offered a view in respect of the power available to the Director-General in ultimately recommending the classification level. To the best of his knowledge, Crown's Appeal Panel had been constituted in accordance with clause 19.6 of HPEB1.
Donald Hamilton (Hamilton)
Hamilton, at the time of hearing, was a Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration Resource Services at QH. Over the past five and a-half years he had principally worked on the implementation of the HP evaluation process. The evidence contained within his affidavit [Exhibit 4] was based upon his knowledge and experience with the HP Phase 2 evaluation process undertaken with HPEB1. The role performed by him was to provide impartial evaluation process advice to members of the WLEP, Intra-Disciplinary Review Panel and WLET.
Hamilton's evidence around the HP Phase 2 process involving the five steps mirrored that of Brown including a breakdown of the tasks covered by each of the steps.
In terms of Crown, her appeal (SSP1D3428) was identified for review by the OSG with their written report and verbal clarification of their evaluation reviewed by Step 4 WLET HP6-8 on 8 October 2009. The WLET HP6-8 reviewed Radiography WLEP recommendations and decided to "review HP5 positions".
Hamilton provided similar evidence to Brown on the formation of the OSG pursuant to HPIBB as a sub-group to fast track and focus on work evaluation requests from WLET HP1-5 and HP6-8. The membership of the OSG was that of two members from QH - Human Resources Branch and two members from the unions supported by a secretariat.
Hamilton addressed the issue raised by Crown that "staff are classified at the HP5 level like me but report to me for both clinical and general supervision" evidencing that such a situation is consistent with the design principles of the HP classification structure. An objective of the HP classification structure was to enable clinician stream positions to be remunerated at the same HP level as their Operational Manager. This parallel arrangement was said to be implicit in Table 1 of Schedule 4 of HPEB1:
Diagram 1: HP Streams
HP8 HP7 Clinical HP7 Management HP6 Clinical HP6 Management HP5 Clinical HP5 Management HP4 Clinical HP4 Management HP3 Clinical HP3 Management HP2 HP1
The parallel stream approach challenged the traditional hierarchical "supervisor-subordinate" concept and presumed the remuneration level of an operational management position precluded a subordinate clinical position from being remunerated at the same level.
In evaluating the HP positions the evaluators were required to consider each HP position from both a clinical and organisational management perspective. This identified and separated the "type of authority" for both professional and operational supervisors responsible for subordinate clinicians.
The OSG evaluation of Crown's position observed the role reported to an Assistant Director Medical Imaging HP6 with her position assessed as accountable for operational and professional management of Cardiac Angiography within the Catheter Laboratory.
Lines of Enquiry (LOE) was an option for both the WLEP and OSG in Radiography but not a mandated requirement within the process. Additional information would only have been sought if the evaluators needed to clarify any ambiguity from the original submissions. At Step 4 there was no authority to make such enquiries having to work through OSG.
Hamilton stated in the Step 4 stage of the process the WLET HP6-8 had arrived at a "holistic" evaluated outcome based on the relative work value of all the proposed HP1 to HP5 positions across all HP disciplines throughout the State. There was doubt expressed about how the Radiography WLEP had interpreted the material provided and subsequent assignment of WLS to the HP6 level recommendation.
Crown's application had been an evaluated outcome by Step 2 Radiography WLEP and then subject to the standard reviews by Step 3 IDR and Step 4 WLET HP6-8 and the OSG. The deliberations of WLET HP6-8 of 8 October 2009 determined after discussions with OSG, she be assessed at HP5 - HPIBB and recommended accordingly.
Under cross-examination Hamilton conceded the WLS (attachments to his affidavit) contained additional material to the WLS attached to HPEB1 however the changed document was as a result of negotiations between the parties to the Agreement [Transcript p. 1-90]. Hamilton accepted the WLS contained additional comments that were not in the original WLS [Transcript p. 1-91]. The OSG had been established under clause 66 of HPEB1 [Transcript p. 1-93]. Additional steps agreed by the parties had not gone to a ballot of employees [Transcript p. 1-94]. On the records (minutes) kept regarding the appeals process, Hamilton gave evidence of believing such records were accurate [Transcript p. 1-99]. Crown was classified in the position of Radiographer as her discipline and not her job title [Transcript p. 1-104]. The evaluators in assessing classifications conducted the assessments on the macro rather than the micro view [Transcript p. 1-105]. Hamilton maintained the WLET HP6 and HP8 had conducted an assessment of the work value [Transcript p. 1-106]. Hamilton was questioned regarding a HP communique (DGH6) which contained the following "We cannot have a situation where two employees are doing identical or very similar roles are remunerated at different levels" and asked how it could be justified for some employees being classified as HP6 and others at HP5. The response was "Yeah, the panels could have looked at an employee initiated application and came up with additional information and made a decision" [Transcript p. 1-113].
In re-examination Hamilton provided further evidence regarding the Phase 2 process and the HPIBB group.
Submissions
Crown
The submission claimed that QH had failed to comply with the provisions of HPEB1 in respect of the reclassification of Crown as a HP leading to an underpayment of wages.
The three principle questions to be answered in the proceedings were identified as:
· What are the role functions of the Commission in relation to the reclassification of the Applicant and the HPEB1 Phase 2?
· Has an error or errors occurred in relation to the determination of the Applicant's classification level under HPEB1 Phase 2?
· If the Commission finds that an error has occurred what remedy should the Commission order?
In regards to the omission (unintentional) of documentation on behalf of Crown and acceptance by QH that the material was part of her appeal documentation and should form part of the material before the proceedings, the Commission should consider the material given it is not bound by technicalities or rules of evidence with Crown not to be disadvantaged through representative error.
The relevant facts were that Crown had translated to the HP structure at the HP4 level consistent with Schedules 2 and 3 of HPEB1. The Work Unit Proposal developed in accordance with Schedule 5 of HPEB1 had provided a common role description for a number of Clinical Service Managers in a range of disciplines at the PAH with identical role descriptions that were common for all positions which proposed a HP6 level classification. The role description was to be evaluated and classified as a combined clinical/management role rather than a purely clinical role.
The common role description (Attachment SC3) contained material relating to:
· purpose, context and reporting requirements of the position;
· key accountabilities:
·clinical practice
·leadership/work unit management
·communication/team participation
·continuous learning; and
· mandatory requirement.
The key skill requirements that the selection panel based their assessment criteria on were:
· clinical expertise;
· communication;
· operational management; and
· leadership.
In evidence Crown had given additional details of her role which included:
· setting up additional cardiac catheter laboratories;
· statewide activities - expert status;
· SWAG;
· Australian Institute of Radiography/roles;
· development of PAH cardiac catheter training manual; and
· state-wide tender process.
Crown's evidence regarding the other managers at the PAH with the same role description were classified at HP6 whilst she remained at HP5. Minor adjustments were made to her role description in 2012 after her notification of dispute was lodged with the Commission with the adjustments being of no significance.
The WLEP evaluation of Crown's role description had found it was at HP6 with the evaluation confirming overwhelmingly the HP6 WLS had been met. On examination of Attachment SC5 it confirms WLEP signed off at HP6 on 23 October 2008 and also signed off by WLET at HP6 for forwarding to the Director-General on 10 November 2008.
Some 12 months after both evaluations Crown's position was referred to the OSG and the WLET HP6-8 and was considered on the title of Radiographer (only) with no reference to her management role. The actions of the OSG and the WLET HP6-8 were said to be inconsistent with the HP communique. The OSG in this case had not met its role under the communique.
The submission went on to identify what were inconsistencies said to have emerged in the proceedings through the evidence of Brown and Hamilton's evidence and materials attached to their affidavits. There had been a failure to consider some of the attributes of Crown which were actually at a higher level than those required for combined clinical/management HP6 positions. At no stage during the evaluation process was there ever a suggestion by QH that the original role description of Crown was anything less than a consultant or expert practitioner. The specialist level knowledge and skills associated with the HP5 level were at a lower level than Crown's acknowledged "expert consultant, authoritative and state-wide" status.
The Appeal Panel had failed to conduct an evaluation of the nominated role description and position making the comment:
"The appellant is clearly a high level HP5 but the evidence provided does not substantiate claims across 3 criteria for the HP6 level."
The Appeal statement was clearly deficient and failed to provide any basis for the decision or an explanation why as a high level HP5 it was unable to match the evidence to any of the three identified criteria and HP6 WLS and why the Panel failed to consider all the criteria.
There was an absence of evidence on how the Appeal Panels were constituted or what information was taken into account. Consistent with the established principle expressed in Jones v Dunkel[1] where the absence of any material or evidence from the QH about the conduct of the appeal, makeup of Appeal Panel and reasons for decision, it was submitted the Commission should draw an appropriate inference to the effect that if that evidence had been presented it would have been unhelpful for QH's case.
[1] Jones v Dunkel [1959] HCA 8
On the powers of the Commission in relation to the reclassifications and the HPEB1 Phase 2 the submission cited a number of authorities including State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others[2] where Hall P had made a number of specific declarations:
[2] State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) - Decision (No. 2) < the Queensland Industrial Relations Commission (the Commission) has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a 'reclassification dispute' which is lodged with the Commission under the Health Practitioners (Queensland Health) Certified Agreement 2007 (HPEB1) before the commencement of the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so that such wage increase has effect from 1 September 2007;
(B)That the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of determination by the Commission of a 'reclassification dispute' which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007;
(C)That a wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner by the Commission in the course of 'classification dispute' under HPEB1 and/or HPEB2, is not a 'wage increase' for the purposes of clause 18.1(b) of HPEB1 or HPEB2." (emphasis added)
Whilst acknowledging declarations (B) and (C) applied to Crown the Commission was requested to have regard to the specific and limited wording of the declarations, restricted nature of the Industrial Court proceedings and the declaration originally sought by QH but not granted. The declarations were specific and limited in particular to 1 September 2007.
Considered in context the declarations were said to simply declare:
"That the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of determination by the Commission of a 'reclassification dispute' which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007." (emphasis added)
In Dr John Parke AND State of Queensland (Queensland Health)[3] a Full Bench stated:
"[27] In considering the correct approach for the Commission to adopt, if it is satisfied on the evidence that an error in the reclassification process has occurred, reference is made to State of Queensland (Acting through Queensland Health) v Together, where his Honour President Hall considered, but did not determine, whether the Commission is restricted solely to the powers conferred on it by HPEB1 and HPEB2, or whether it may have resort to those of its normal statutory powers which are not inconsistent with HPEB1 and HPEB2.
[28] The Full Bench takes the view that the reference of the dispute to the Commission under either clause 19.15 of HBEB1 or clause 24.15 of HPEB2 has the effect of enlivening the Commission's powers under s. 230 of the Industrial Relations Act 1999 ('the Act') and permitting the 'reclassification dispute' to be dealt with pursuant to that section."
[3] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision <>
In Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health)[4], the decision of Fisher C was said to have considered the nature of the requirement to show error in the reclassification process, specifically whether the failure by the Appeal Panel to consider WLS submitted by the Applicant constituted an error in the process as did the assessment of other WLS by the Appeal Panel which were not nominated by the Applicant. It is exactly the same logic and argument in this case.
[4] Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053
The evidence of Crown and to some extent Brown and Hamilton identified a number of both procedural and factual errors that occurred in the reclassification process and outcome applied to Crown. The errors were multiple and repeated. A range of procedural errors occurred when QH and the union parties to the EBA agreed to multiple changes to the specific process in the EBA without seeking to have those changes approved by the employees or seeking an order from the Commission under s 169 of the Industrial Relations Act 1999 (the Act).
The submission identified a number of errors that included:
· failure of Appeal Panel to conduct an evaluation;
· failure to provide adequate reasons for the decision;
· failure to provide Crown with an opportunity to respond to adverse findings; and
· failure to comply with the appeal process - clause 19 of HPEB1.
The remedy sought was a finding that the initial decisions of WLEP and WLET of October/November 2008 were consistent and appropriate and it was only the failure to implement the HP6 recommendation that the process became subject to error. Up until that point there is no evidence of error or any question as to the accuracy and validity of the role description. QH should be instructed set aside the erroneous WLET HP6-8 decision and subsequent acceptance by the Director-General.
There is no valid argument that Crown does not meet the HP6 WLS for either a mixed management clinical role or a purely clinical role.
Crown was entitled to have the processes certified in HPEB1 properly and consistently applied which was not the case as the Appeal Panel had acted on other arrangements developed by parties which were outside of HPEB1. Procedural fairness was important with the requirement of the appeal body to comply with the rules of natural justice in the course of reaching a decision.
In the matter of Annetts v McCann[5], Mason CJ, Deane and McHugh JJ had stated:
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
[5] Annetts v McCann [1990] HCA 57
There was comprehensive evidence submitted by Crown as to how she had met the appeal criteria however the Appeal Panel's decision was not consistent with the material provided.
The Commission was requested to order that the original appeal, WLET HP6-8 and any subsequent decision be set aside or varied so that Crown is reclassified to the originally proposed, determined WLEP be confirmed HP6 level.
Queensland Health
The matter before the Commission related to a dispute where it was argued that QH had failed to comply with the provisions of an enterprise agreement and failed to implement a reclassification level leading to an underpayment of wages. There were allegations that QH and union parties to HPEB1 had agreed to multiple and repeated changes to specific processes set out in HPEB1 without seeking approval of relevant employees in accordance with the Act and likewise having amendments approved by the Commission in accordance with the Act.
In the proceedings on 25 November 2013 Mr Butler, representing the Applicant, made the following statement:
"Commissioner, it's an important element of our claim because our claim has two aspects to it, and always has had two aspects to it. We argue, clearly, that the decision taken in relation to Ms Crown's classification level is wrong and is flawed by error, but we also argue that some of the things that have been done are not consistent with the requirements of the enterprise agreement and the rights and privileges afforded to Miss Crown by that agreement." [Transcript p. 1-4]
The dispute has been brought to the Commission in accordance with clause 24.15 of HPEB2.
Reclassification dispute
QH submits that the power and jurisdiction of the Commission is drawn most, if not all, from the terms of the reclassification procedure which must be conducted and exhausted before a classification dispute can be referred to the Commission. HPEB1 and HPEB2 each acknowledge that the general dispute resolution procedures in clause 15 of those agreements are maintained in effect, but a separate reclassification dispute procedure is created and the Commission is empowered to determine such a dispute as a distinct but derivative part of the whole reclassification process
As a consequence it is submitted that the powers and jurisdiction of the Commission are confined to the determination of a reclassification dispute at the end of the reclassification process. See Dr Adam Scott v Queensland Health[6] whereby Hall P at paragraph 19 stated:
"Further, clause 19.15 of the Certified Agreement does not provide for Judicial Review of the Evaluation Project and for any subsequent appeal. Rather, the Commission is entrusted with the resolution of a 'reclassification dispute'."
[6] Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision <>
Ultimately the Commission's powers are confined to correcting any error that may have occurred in the agreed reclassification process with an applicant being required to demonstrate that an error has occurred in the process.
This position was confirmed by the Full bench in Dr John Parke AND State of Queensland (Queensland Health)[7] whereby the Full Bench at paragraph 18 stated:
"It follows, therefore, that the Commission's powers are confined to correct any error in the reclassification process that may have occurred in the agreed reclassification process. In saying that, any applicant that has referred a classification dispute to the Commission must be able to demonstrate that an error has occurred in the process."
[7] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision <>
Therefore it was submitted that the Commission was not "at large" to resolve any wider question as to the correct classification of an Applicant. That is the party referring such a dispute to the commission does not thereby gain access to a de novo assessment by the Commission. However based on the closing submission submitted by Mr Butler on behalf of Crown it appears that Mr Butler is pursuing a fresh merit‑based review.
Implementation of the health practitioner classification structure
The process set out in both HPEB1 and HPEB2 is of three steps that must be undertaken before a reclassification dispute can be referred to the Commission. The first step was a direct translation of employees to the new HP classification structure as set out in Schedules 2 and 3 of HPEB1 where in the case of Crown she had translated from PO4 to HP4 in accordance with Schedule 3 of HPEB1. The second step involved the work level evaluation project which afforded employees the opportunity to have their job description roles and responsibilities evaluated against work level statements which on the evidence identified a thorough and rigorous process which ensured the evaluation and review process delivered valid and correct evaluations.
The Phase 2 evaluation and the appeal process adopted by the parties was commented on by the Full Bench in Dr John Parke AND State of Queensland (Queensland Health)[8] whereby the Full Bench at paragraph 35 stated:
"The HPEB1 provided for a detailed review process against the Phase 2 evaluation of the Applicant's position in the new Health Practitioner Classification Structure. The appeal process was designed with the assistance of the Commission and involved QH, the Queensland Public Sector Union and United Voice. The review panel that assessed the Applicant's appeal was constituted by two management representatives, a workplace representative and a representative of the Applicant's discipline."
[8] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision <>
The third step in the process was that any employee who was dissatisfied with the outcome of the Phase 2 evaluation process could lodge an appeal if they disagreed with the recommendation in relation to their role.
The appeal panel was only empowered to make a recommendation to the Director‑General or their authorised delegate who would then make a decision regarding the correct classification level of the position being evaluated. The net result of the process is that the operative decision in relation to the correct classification of an employee is the decision of the Director-General or their authorised delegate. The determination of the Appeal Panel stands apart from the Phase 2 evaluation and therefore the recommendation of the Appeal Panel and the subsequent decision of the Director-General wholly displaces and removes any effect of the process undertaken in Phase 1 and Phase 2 of the classification procedure. The only impact of Phase 1 and Phase 2 is that they must be undertaken before an appeal can be brought.
The only manner by which an employee can conceivably attack and displace the existing classification after the appeal recommendation is to demonstrate that an error has occurred in the process.
The evidence from Crown had not substantiated a case for her to be reclassified from HP5 to HP6 and there was certainly no evidence of state-wide aspects of her work. The reliance upon SWAG was of little assistance as it was a self-formed group without involvement of QH and further the reliance upon having participated in the tendering process was of less assistance in that there were some eight other persons involved from varying professions who had input into that process. There was no clear evidence of Crown having provided strategic direction to larger hospitals.
The submission took issue with the Performance Appraisal and Development Plans (PADS) (Attachment SC4) on the basis of the document lacking detail, changed criteria and the signature of the review officer. It was said that no weight should be attached to the document as substantiating the claim for HP6. In relation to Crown having provided direction within a multidisciplinary team the evidence showed her in essence providing directions to only a small group of Radiographers in that area and at times receiving direction from the Cardiologist who was on duty.
The claim by Crown that five other people who worked in the same role description and provided a similar evidence to the Appeal Panel was questioned in the submission on the basis of their not being evidence before the Commission about the five other people to whom she referred and it must be noted that the Appeal Panel was in place to hear an individual's case against the recommended classification they received during the WLEP.
The Commission was taken to various case law by Mr Butler in trying to substantiate errors in relation to the appeal process. QH drew to the attention of the Commission the Minister for Immigration and Ethnic Affairs v Wu Shan Liang[9] which was referred to by the Full Bench in Dr John Parke AND State of Queensland (Queensland Health)[10] where Brennan CJ, Toohey, McHugh and Gummow JJ had said:
"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
[10] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision <>
QH submits this application should be dismissed and that Crown retains the classification of HP5 which was ultimately endorsed by the Director‑General following a thorough and rigorous process that ensured the evaluation and review process delivered valid and correct evaluations.
On the argument of multiple and repeated changes having been made to the provisions of HPEB1 without a ballot of employees having been taken in accordance with s 169 of the Act was the view of QH that through clause 66.1 the parties had the ability to consider a range of matters during the life of the agreement and that these considerations did not breach of HPEB1 or the s 169 of the Act. HPEB1 specifically provided the ability for the parties to make agreement and to consider a range of issues during the life of the agreement without having to make an application to vary the agreement in accordance with s 169 of the Act. At clause 66.1:
"The parties agree that there are a number of key priority issues, projects and reviews which will be considered during the life of the Agreement. Issues, projects and reviews to be addressed include:
(a)the implementation of the Health Practitioner Career Structure as set out in Part B of this agreement, including the approval of final Work Level Statements as set out in Clause 17.2."
In the matter of State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees and Others[11] Hall P at paragraph 17 stated:
"Certified agreements, like commercial contracts, are made by agreement. Certified agreements, like awards, are (by the Act) made binding upon persons who are not parties to the agreement."
[11] State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees and Others (C/2012/28) (No. 2) - Decision <>
The provisions of HPEB1 were binding upon Crown’s employment with the Department.
The matter of process and jurisdiction was being heard by a Full Bench at the time these submissions were prepared and as such a decision was not available for consideration at that time.
QH recognises the statements made by the Full Bench in Dr John Parke AND State of Queensland (Queensland Health)[12] whereby the Commission's powers under s 230 of the Act are enlivened by reference to the dispute however the use of such powers are not inconsistent with HPEB1 or HPEB2.
[12] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision < type="1">
In conclusion as stated earlier in the decision it is the view of QH that the application made by Crown should be dismissed for two reasons. Firstly there has not been a case substantiated for Crown to be reclassified from HP5 to HP6 and secondly no errors within the reclassification process have been clearly demonstrated to the Commission.
Crown in reply
The submission in reply, whilst encompassing issues beyond matters of law, did engage in commentary in respect of:
· Full Bench decision in Dr John Parke AND State of Queensland (Queensland Health)[13] regarding the involvement of the Commission in the process;
· principles applicable to determining work value and classification within the explicit requirement set out in the guiding principles in Schedule 5 of HPEB1;
· Dr Adam Scott v Queensland Health[14] - Hall P - no suggestion that evidence or dispute is restricted to the decision of the Director General and the Appeal Panel rather than the earlier processes adapted by QH;
· Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health)[15]; and
· Health Practitioner Communique - 1 July 2009:
"The parties represented on the HPIBB Group are committed to ensuring that the evaluation and review process deliver valid and correct evaluations. Health practitioners want evidence based, work content valid work level evaluations. It is imperative for the workforce, QH, Queensland Government, unions and every health practitioner that the principle of comparable remuneration for comparable work is adhered to. If we do not get this right, the workforce will be disenfranchised. We cannot have a situation where two employees doing identical or very similar roles are remunerated at different levels."
[13] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision < Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision < Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053
Conclusion
The application was in effect the subject of a one day sitting on 13 November 2013 with written submissions being provided by the parties on 5, 23 and 29 May 2014.
In the course of proceedings the case prosecuted on behalf of Crown placed significant reliance upon matters that could be best described as "jurisdictional or procedural matters" in regards of the behaviour of the Respondent.
This application was not a matter being heard in isolation before the Commission in that there were a number of matters of a similar or same nature on foot before various members of the Commission and in some cases the representative appearing on behalf of Crown (Gerard Butler) was a participant in a number of the applications.
One such matter was that of Newton v State of Queensland (Queensland Health) (HP/2013/35) before Deputy President Kaufman where it would seem similar issues of jurisdictional and procedural conduct had been raised by Butler who was acting on behalf of Newton. Deputy President Kaufman on 12 March 2014 in the course of the arbitration proceedings requested that the parties provide written submissions relating to the matters of concern.
Vice President Linnane in the role as the administrator of the Commission referred the matter to a Full Bench who heard the matter on 9 April 2014, subsequently releasing a decision on 1 August 2014 (Newton v State of Queensland [Queensland Health][16])(Newton). The Full Bench identified the issues (from the perspective of the Applicant) that were before them as being:
[16] Newton v State of Queensland (Queensland Health) [2014] QIRC 121
"a. Does Schedule 5 of HPEB1 specify the process to be followed in Phase 2 Work Level Evaluations Process?
b. Does Clause 19 Work Level Evaluation Process of HPEB1 specify the appeal process to be followed and the composition of the appeal panel?
c. Were the parties to HPEB1 or the HPIBB authorised to develop and apply by agreement additional evaluation and approval processes in addition to or in substitution for the processes specified in Schedule 5 or Clause 19?
d. If the answer to (c) is in the affirmative can those measures override or supplant the process specified in HPEB1 without an alteration to the terms of HPEB1 and an appropriate order from the Commission?"
[100]The Applicant had in the written submission (in Newton) also identified the following areas where the respondent was said to have departed from HPEP1. They were as follows:
· "creation of additional evaluation steps and layers beyond those specified in HPEB1
· changes to the roles functions and responsibilities of bodies or groups established under and by the enterprise agreement, e.g. creation of two different not a single Work Level Evaluation Team WLET WLET HP1-5 and WLET 6-8 working independently of each other,
· creation of the HP Oversight Group HPOSG to conduct evaluations,
· classification levels previously determined by the Work Level Evaluation Panel WLEP being changed by one or both of the WLETs, HPOSG or Health Practitioner Interest Based Bargaining Group HPIBB ,
· referral of all proposed classifications to the Director General for approval and implementation.
· rejection of WLEP evaluations by the WLET on the grounds that the role description was incorrect or in error
· ignorance, rejection or non consideration of previously accepted specialist or expert level status recognised in the previous Professional Officer classification structure or previous role descriptions
· significant modifications to the Appeal process set out in clause 19 including the required composition of the Appeal Panel, the application of additional guidelines and redefinition of the Work Level Statements used in the Appeal Process, restrictions on the nature of appeals and a requirement that successful appellants meet all appeal criteria."
[101]The Full Bench in their considerations at paragraphs 13 to 18 (inclusive) stated:
"[13] Clause 19 of HPEB1 deals with appeals. At cl 19.7 it provides:
"The Appeal Panel has the power to consider whether the Work Level Evaluation of all the employee's duties, roles and responsibilities should result in the employee's position being reclassified."
[14] The appeal to the Appeal Panel is, in our view, akin to a hearing de novo. In short, the Work Level Evaluation Panel ('WLEP') and Work Level Evaluation Team ('WLET') conducted the work level evaluation and came to the recommended classification level. This is the Phase 2 process. The Appeal Panel's sole role is to consider whether the employee's position should be reclassified.
[15] The submission by the applicant dealing with the adequacy of the process adopted during the Phase 2 process is, in our view, not relevant to the Appeal Panel's conclusion because it must make its own decision (by way of recommendation to the Director General).
[16] The referral of the procedural and jurisdictional issues to a Full Bench has provided the Commission with the first opportunity to properly consider the scope of what constitutes a 'reclassification dispute' that is referred to the Commission for hearing under the HPEB1 processes.
[17] In our view, given the nature of the task undertaken by the Appeal Panel to consider whether the Work Level Evaluation of all the employee’s duties, roles and responsibilities should result in the employee's position being reclassified we consider that the role of the Commission is to determine whether the Appeal Panel erred.
[18] Thus, in order for the applicant to succeed in arbitral proceedings before a single Member of the Commission, the applicant must demonstrate, that the Appeal Panel erred. The Commission is not concerned with anything that occurred prior to the appeal process."
[102]In the consideration of this application I adopt the position of the Full Bench as articulated in paragraphs 13 to 18 (inclusive) in terms of determining the relevant classification of Crown pursuant to HPEB1.
[103]Additional matters arising from the decision in Newton included the following questions which the Full Bench addressed:
· Was the Appeal Panel properly constituted?
· Did HPEB1 permit the application of additional guidelines and redefinition of Work Level Statements?
· Was the process of the Appeal Panel Flawed?
· Is the creation of a HPOSG permitted under HPEB1?
· Does HPEB1 permit or require only a single WLET?; and
· Have the terms of HPEB1 been varied?
[104]The particular relevance of the (previously mentioned) additional matters was that Crown had advanced argument on each of those matters in support of the classification level of HP5 being procedurally incorrect. The findings of the Full Bench however are not able to be adopted per se (as was the case with paragraphs 13 to 18 inclusive of the decision) but needs to be in some cases responded to in terms of the evidence before these proceedings.
Appeal Panel
[105]In evidence Crown had challenged the integrity of the process claiming the Appeal Panel had not been properly constituted as there was material available regarding the constitution of the Panel and further questioned the operation of the Panel.
[106]Evidence from Brown specific to Crowns Appeal was that:
· the Appeal Panel was constituted in accordance with clause 19.6 and sections 6.4 - 6.5 of HPEB1;
· the Appeal Panel was provided with all relevant material:
·duties;
·roles and responsibilities;
·additional material; and
·submissions from Crown;
· pursuant to clauses 19.7 and 19.10 of HPEB1 the Appeal Panel:
·considered the WLE and all material relating to Crown; and
·recommended her role be classified at HP5 level.
[107]Supportive of the evidence of Brown on the operation of the Panel was the Appeal Review Statement (Attachment 6 to his affidavit) relating to Crown's Appeal (dated 9 December 2010) that recorded the following:
"Scope & Nature of Level
Panel Comments: The duties or accountabilities could not be matched to work level statements at the nominated level.
Knowledge, Skills & Expertise
Panel Comments: The duties or accountabilities could not be matched to work level statements at the nominated level.
Accountability
Panel Comments: The duties or accountabilities could not be matched to work level statements at the nominated level.
Additional Panel Comments
Overall, after assessing the evidence provided the panel agreed:
The duties or accountabilities could not be matched to work level statements at the nominated level.
The appellant is clearly a high level HP5 but the evidence provided does not substantiate claim across the 3 criteria for the HP6 level."[108]The applicant had the obligation to demonstrate that the Appeal Panel had not been properly constituted nor carried out its functions in accordance with the provisions of HPEB1 and apart from the limited evidence of Crown provided little more to support that position.
[109]On consideration of the evidence of Brown which included documentation in the form of the Appeal Review Statement, I am unable to conclude that there was an error in the constitution of the Appeal Panel.
Note: Crown also provided the Appeal Review Statement.
HPEB1 - Application of additional guidelines and redefinition of WLS
[110]In submissions on behalf of Crown it was strongly argued that the Appeal Panel had acted on arrangements developed by the parties which were outside of HPEB1 and this had been to the detriment of Crown in respect of procedural fairness and the rules of natural justice.
[111]Evidence from Brown was HPEB1 at clause 66.1 allowed the parties to work towards arrangements in relation to the HP classification structure:
"66.1 The parties agree that there are a number of key priority issues, projects and reviews which will be considered during the life of the Agreement. Issues, projects and reviews to be addressed include:
(a)the implementation of the Health Practitioner Career Structure as set out in 0 of this Agreement, including the approval of final Work Level Statements as set out in Clause 17.2;
(b)the review of rural and remote location employment incentives as set out in Clause 27.5 of this Agreement;
(c)the development of guidelines to support the consistent application of the Emergency Clinical On Call Allowance as set out in Clause 29.6 of this Agreement;
(d)implementation of the Higher Education Incentive as set out in Clause 32 of this Agreement;
(e)the development and implementation of the Training and Development Statewide Framework Package as per the Ministerial Taskforce into Clinical Education and Training and as agreed by the parties outside this Agreement;
(f)the Demand Management Projects Package as set out in Clause 42 of this Agreement;
(g)the Fatigue Management Strategy Project as set out in Clause 43 of this Agreement;
(h)On Call Arrangements Review for Medical Imaging Radiographers as set out in Clause 44 of this Agreement;
(i)New Models of Care/Workforce Redesign Projects as set out in Clause 45 of this Agreement;
(j)the application of the Research Package as set out in Clause 46 of this Agreement;
(k)Long Term Temporary Employment Review as set out in Clause 47 of this Agreement;
(l) Relief Pool Review as set out in Clause 48 of this Agreement;
(m)Clinical Governance Review as set out in Clause 49 of this Agreement;
(n)Extension of Private Practice Rights review as set out in Clause 50 of this Agreement;
(o)consideration and implementation of any recommendations arising out of the:
(i) Oral Health Review;
(ii) National registration changes;
(iii) National Oral Health Plan; and
(p)the development of position descriptions for Dental Prosthetists as a priority as part of the Phase 2 Work Level Evaluation Process; and
(q)any relevant state or federal industrial or funding initiatives, internal or external reviews, other QH corporate governance models or projects in each of the specific areas."
[112]In Newton the Full Bench addressed this issue, making the following findings which are relied upon by the Commission in terms of this Appeal:
"As we discuss under the heading of 'Have the terms of HPEB1 been varied?', it was open to the parties to consider the interpretation and implementation of the HP classification structure during the life of the agreement. It follows that the parties are permitted to develop clarifying material designed to assist those concerned with applying for review, appealing outcomes or those charged with the responsibility for making recommendations or decisions in carrying out their respective roles."
Appeal Process Flawed
[113]In Crown's case it had been argued that the Appeal Panel had failed to conduct an evaluation of the nominated role description and had failed to provide any reasoning for their decision as to why a High Level HP5 was unable to be matched to any of the three identified criteria for HP6 classification.
[114]The evidence of Brown effectively undisturbed in the course of cross-examination was that pursuant to clauses 19.7 and 19.10 of HPEB1, the Appeal Panel had considered the WLE and all material relating to Crown. This material included:
· duties;
· roles and responsibilities;
· additional material; and
· submissions from Crown.
[115]On the evidence available it had not been established that the Appeals process was flawed with the evidence to the contrary, pointing to the Appeal Panel having been provided with all relevant material pursuant to HPEB1.
Creation of HPOSG permitted under HPEB1
[116]Crown was alleged to have suffered a disadvantage as a consequence of the formation of HPOSG and the role that group undertook in the HP reclassification process. Crown's evidence was that the HPOSG lacked legitimacy under the provisions of HPEB1.
[117]Brown had given evidence in Newton which was referred to in the decision of the Full Bench regarding the formation of the HPOSG:
"27. The OSG was formed from the HP Interest Based Bargaining Group (HPIBB) as a sub-group to fast-track the work evaluation requests for the Work Level Evaluation Team (WLET HP6-8). The priority of the OSG was to evaluate and make recommendations on all positions recommended at the HP8 level. Thereafter the OSG was required to make recommendations, consider and advise on any anomalies or issues at the HP6 or HP7 level.
28. The membership of the OSG consisted of 2 members from the Human Resources Branch and 2 from the unions - i.e. one from each union and supported by a secretariat.
29. I was one of 4 members of the Oversight Subgroup (OSG) due to my roles within the Human Resources Branch.
30. One of the main reasons for establishing the OSG was to address unresolved issues between the WLEP at Step 3 and Step 4. The creation of the OSG enabled the WLET to refer matters for a second opinion. The OSG essentially become [sic] a circuit breaker by providing research and advice on matters referred to it by the WLET only for levels HP6, HP7 and HP8."
[118]The Full Bench noted in Newton that the Applicant (in that matter) had ultimately accepted that the HPIBB had the power to form a subgroup such as the HPOSG. The Full Bench found that the establishment of the HPOSG was not inconsistent with or contrary to HPEB1.
[119]I adopt the findings of the Full Bench in that the HPOSG was a creation specifically contemplated by clause 14.8 of HPEB1 and as such the role undertaken in respect of Crown's reclassification was not an error in process.
HPEB1 permit or require only a single WLET
[120]In the course of the proceedings there was criticism from Crown on the failure of WLET to accept the evaluation of WLEP however there was not significant material around the two WLEPs that dealt with the classifications HP1 to HP5 and HP6 to HP8. In Newton the Full Bench accepted that the creation of two WLETs was not contrary to the provisions of HPEB1.
[121]Therefore no error had arisen in terms of Crown's reclassification through the utilisation of the WLET HP6 to HP8.
Terms of HPEB1 varied
[122]Regarding this issue the position of Crown in respect of the parties reaching certain understandings and those understandings not being put to employees for endorsement and varying of the agreement. In consideration of this matter in Newton the Full Bench accepted the submission of QH that the provisions within HPEB1 provide the ability for the parties to the agreement to consider the interpretation and implementation of the HP classification structure during the life of HPEB1 and that the terms of the agreement had not been varied by the parties which would invoke clause 67 of HPEB1 or s 169 of the Act.
[123]I adopt the findings in Newton for the purposes of this Appeal in that the agreement reached by the parties was in accordance with the provisions of HPEB1 and were lawfully agreed by the parties. As was the case in Newton the Applicant in this matter had not established any error in the procedural and jurisdictional requirements of the process, resulting in the finding of no departure from the provisions of HPEB1.
[124]With the procedural and jurisdictional issues having been determined the next step is to address the reclassification as it pertains to Crown undertaken pursuant to HPEB1.
[125]The Commission accepts the first phase of the process was the direct translation from the pre-existing Professional Officer Level to the HP Classification Structure pursuant to the provisions in HPEB1 as contained in Schedules 2 and 3. In this stage Crown translated from PO4 to HP4.
[126]The process at the second phase provided the opportunity to activate a second step in the process which had the effect of the WLEP evaluation of Crown's job description, roles and responsibilities against Work Level Statements. The role description (Attachment 3) relied upon by Crown had the Position Title identified as "Clinical Service Manager Modality (CT, MRI, Cardiac Catheter Laboratory, Vascular and Interventional Procedures, Ultrasound, Nuclear Medicine)". WLEP evaluated Crown's classification on 23 October 2008 in which it was recommended her position be classified at HP6 with the Position Title identified as "Clinical Services Manager Cardiac Catheter Laboratory". The WLEP in giving reasons for recommending the specific level of HP6 stated:
"HP6 is the most representative level for this position given the clinical expertise and management responsibility allocated to the position holder."
[127]The next step in the process related to involvement of WLET which in effect was a review body charged with the role of ensuring the WLEP evaluation process had been consistently applied, to monitor relativities and ensure consistency across the HP disciplines, professions, departments/units and districts. The" HP WLE Principles and Process Overview Final with Step 4 Revisions" document endorsed by the HPIBB (on 18 June 2009) contained information relating to the operation of WLET including the WLET membership.
[128]In respect of Crown's classification, a review was undertaken on 8 September 2009 where it was agreed that her classification was "at least HP5, no LOE to support a higher level of outcome".
[129]There was no evidence of substance before the Commission to warrant a finding that the review by WLET was flawed in the way it carried out its functions. In terms of the evidence from Crown that her position warranted reclassification at HP6 for reasons advanced in the form of her membership of SWAG, authoring of a training manual and participation in the purchase of substantial equipment it is the finding of the Commission that the evidence in question did not support the advancement sought for the following reasons:
· SWAG - was an informal work group of some seven Radiographers from the PAH who met outside of work hours to discuss matters about their professional. SWAG was not endorsed by QH and has no formal standing;
· Training Manual - this document (not produced) was said to have been authored by Crown and to have been utilised by staff at two other hospitals. QH had never endorsed the document and even if it had been used as a resource tool at the two hospitals in question it remained unauthorised and certainly had no statewide application; and
· Equipment purchase - Crown's role at best would have been as a "minor player" in the overall scheme of the procurement of the equipment in question and certainly not that of a decision maker.
[130]The final stage within the internal process was the Appeal Panel consideration of the relevant material and as mentioned (at paragraph 115 of this decision) there was no evidence available that established the appeals process was flawed. The Appeal Review Statement findings were identified (at paragraph 107 of this decision) which clearly had Crown at a high level HP5 but failing to achieve ratings supportive of HP6 in the following areas:
· scope and nature of level;
· knowledge, skills and expertise; and
· accountability.
Consequently the Appeal Panel has, in the view of the Commission, undertaken its role pursuant to HPEB1.
Findings
[131]The application for the Commission to order that the WLET HP6-8 be set aside allowing for Crown to be reclassified at HP6 as originally proposed by WLEP is dismissed on the basis of an absence of evidence establishing the reclassification process had been conducted contrary pursuant to the relevant provisions of HPEB1.
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