Grant v State of Queensland (Queensland Health)

[2014] QIRC 161

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Grant v State of Queensland (Queensland Health)
[2014] QIRC 161
PARTIES:	Anne-Maree Grant
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:	HP/2013/14
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	14 October 2014
HEARING DATE:	22 April 2014
18 August 2014 (Applicant's submissions) 25 August 2014 (Respondent's submissions) 27 August 2014 (Applicant in reply)
MEMBER:	Industrial Commissioner Fisher
ORDERS:	The position of Manager - Ultrasound Services,
Sunshine Coast and Cooloola Health Service District, State of Queensland (Queensland Health) be maintained at HP5.
CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - Health practitioner scale introduced - Contended procedural and factual errors in Appeal Panel's findings - Relevant criteria - Scope and nature - Skills, knowledge and expertise - Accountabilities - People and Resource Management - Work level statements - Whether the appellant provided sufficient information to justify classification at the higher level - Determined number of activities not a requirement of role and cannot contribute to work value assessment of role - Cannot find Appeal Panel erred - Determined correct classification HP5.
CASES:	Information Privacy Act 2009
District Health Services Employees' Award - State Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007
Newton v State of Queensland (Queensland Health)
[2014] QIRC 121
Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
Hamlyn v State of Queensland (Queensland Health)
[2014] QIRC 148
APPEARANCES:	Mr G. Butler for the Applicant. Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent.

Decision

[1]      Ms Grant was appointed as the Assistant Director Medical Imaging - Ultrasound Services, Sunshine Coast and Cooloola Health Service District, State of Queensland (Queensland Health) (QH) in December 2007. That position was classified in accordance with the Professional Officer 5 classification scale under the industrial instruments that applied at the time. Shortly after her appointment the health practitioner classification structure was introduced and Ms Grant was translated to classification level HP5.

[2]      Through the Phase 2 process in place under the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1), employees were able to have their role descriptions, roles and responsibilities evaluated against the Work Level Statements (WLS) relevant to the classification claimed. The classification of HP6 was sought for Ms Grant's position, which was identified as Manager - Ultrasound Services. This classification was not achieved. As she was entitled to do, Ms Grant appealed. The Appeal Panel's recommendation, which was accepted by the Director-General, QH, was that her appeal be rejected and her position remain at classification HP5.

[3]      On receipt of that decision, Ms Grant filed a Notice of Industrial Dispute concerning her classification. The dispute was referred to arbitration when it could not be resolved.

[4]      Mr Butler, who represented Ms Grant in the arbitration proceedings, contends that there were multiple and repeated procedural and factual errors as well as errors in the Appeal Panel's findings.

[5]      The following factual errors are identified:

	The position was incorrectly recorded in relation to its title and role i.e., Ms Grant's position was incorrectly recorded as Manager - Radiography Services;
	The identification of which evaluation panel conducted the evaluation - the position was evaluated by the Radiography Work Level Evaluation Panel rather than the Ultrasound Panel.

[6]      Mr Butler contends that these errors were not capable of resolution or consideration by the Appeal Panel.

[7]      In response, QH submits that the role description, which was submitted as part of the evaluation process, applies to four positions - the Manager CT; MRI; Ultrasound; and Radiography Services. Although it appears that Ms Grant's position was evaluated during the Phase 2 process as the Manager - Radiography Services, the main requirements of the role description were assessed. The only differentiator was the mandatory requirements set out in the role description. QH submits these are desirable but not essential and in any event are not taken into consideration in determining work value.

[8]     The Queensland Industrial Relations Commission (the Commission) notes that a mandatory requirement for the position of Manager - Ultrasound Services is to hold, in addition to graduate qualifications required for the other three positions, postgraduate, graduate diploma or equivalent qualifications in Medical Ultrasound (General). Ms Grant holds the additional qualifications required for her position.

[9]      The Commission accepts that the errors identified by Mr Butler were not capable of

resolution or consideration by the Appeal Panel, however, in the Commission's view

this does not matter. As the Full Bench said in Newton v State of Queensland

1

(Queensland Health) ('Newton') the Commission is not concerned with anything that

occurred prior to the appeal process. This decision was the first opportunity for a Full

Bench "to properly consider the scope of what constitutes a 'reclassification dispute'

referred to the Commission for hearing under the HPEB1 processes". Consequently, it

was able to provide greater clarity to the meaning of the term "reclassification dispute"

2

than the decision of Dr John Parke AND State of Queensland (Queensland Health)

('Parke') allowed.

[10]    The appeal process was concerned with aggrieved individual HPs appealing against the classification level that had been determined by the Work Level Evaluation Team and further considered by the HP Oversight Sub-Group. It was incumbent on the appellant to put all relevant information and evidence before the Appeal Panel so that it could consider whether the work level evaluation of all of the appellant's duties, roles and responsibilities should result in the position being reclassified.

Procedural and Appeal Panel Errors

[11]    Many of the alleged procedural errors and errors said to have been made by the Appeal Panel have been raised and considered in other proceedings before the Commission. Accordingly, I do not intend to address them here, particularly as they are not the critical issues in these proceedings. Specifically, I adopt the reasoning and conclusions of:

	The Full Bench in Parke[3] regarding the adequacy of reasons by the Appeal Panel;
	Black C in Hamlyn v State of Queensland (Queensland Health)[4] ('Hamlyn') regarding the absence of an independent chair of the Appeal Panel; and
	Black C in Hamlyn[5] regarding the status of the role statement in the work level evaluation process.

[3]

[4]

[5]

[12]   Ms Grant claims that the Appeal Panel erred by not assessing her on the four criteria she submitted and only assessed her on three criteria. The appeal submission form made provision for four criteria to be addressed: Scope and nature; Skills, knowledge and expertise; Accountabilities; and People and Resource Management. The Appeal Review Statement issued by the Appeal Panel shows that only the first three criteria were considered.

[13]    QH said that the criterion of People and Resource Management was provided to "allow appellants who may have responsibilities in this area to provide extra information about their accountabilities within their appeal." In addressing this criterion, Ms Grant drew upon the WLS found in the Accountability criterion. As a result, it was unnecessary for the Appeal Review Statement to specifically address People and Resource Management.

[14]    Schedule 4 of HPEB1 shows that draft WLS were prepared for each classification level

of the HP scale. The draft WLS had two elements - the Scope and Nature of Level and

the Role Context. The latter was divided into two - Knowledge, Skills and Expertise

and Accountability. Mr Don Hamilton, Principal Advisor, Work Evaluation and

Governance, Workforce Advisory and Remuneration, Human Resource Services, QH,

attached to his Affidavit, the document, "Work Level Statements and Guidelines for

Health Practitioner Roles". This document was developed by the parties to HPEB1 to

ensure that HPs understood what supporting documentation was required for each

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level.

[15]   These Guidelines provide three criteria to be addressed and are Scope and nature; Skills, knowledge and expertise; and Accountabilities. The submissions of QH make clear that the extra criterion was included to allow those HPs with people and resource management skills a further opportunity to address these matters. This would have been particularly beneficial for those HPs who have a combined clinical and management role. I consider the Appeal Panel did not err in failing to separately identify in the Appeal Review Statement the WLS referable to People and Resource Management.

[16]   The critical issue in this appeal is that the Appeal Panel failed to recommend that Ms Grant's position be reclassified from HP5 to HP6. The errors said to have been made were that the Appeal Panel may not have had the entire appeal submission before it when deliberating and/or failed to consider all of the WLS and the evidence submitted so as to properly consider Ms Grant's role.

[17]    Ms Grant is concerned that her complete appeal submission was not before the Appeal Panel. This concern arises from the Appeal Panel's comments in its Appeal Review Statement that "[t]he appellant failed to provide evidence" in respect of many of the WLS which Ms Grant had submitted and is exacerbated by the documents identified from the Right to Information (RTI) request that she submitted to QH. The results of this request show that a 28 page document was located, however, Ms Grant submitted a 65 page document. The first 28 pages were her appeal submission and the remainder comprised her supporting evidence.

[18]    The email from the Policy Officer of QH who processed the request shows that he was unable to confirm whether each of the Appeal Panel members received the entire appeal documentation. However, the officer concerned was unable to do so because he was not part of the Appeal Panel and his responsibility under the Information Privacy Act 2009 was to process the RTI application. QH was unable to advise the Commission, nor was any evidence called by it, about the documentation that the Appeal Panel had for consideration.

[19]   The complete appeal submission was tendered as part of Ms Grant's evidence to the Commission. I consider that in all probability the Appeal Panel received the complete submission because she was found to have met a number of WLS which she had claimed. To so find the Appeal Panel must have had regard to the evidence she provided. In addition, given it was a bound document, I am inclined to the view that it was unlikely to have been separated.

[20]   A key error said to have been made by the Appeal Panel is that it failed to consider many of the WLS that Ms Grant had included in her submission and the evidence she provided. The Appeal Panel comments a number of times in the Appeal Review Statement that Ms Grant failed to provide evidence in relation to a number of HP6 WLS. Mr Butler's written submission includes a table showing the specific WLS referenced by Ms Grant, the detailed evidence provided by her and compares that with the specific WLS referred to by the Appeal Panel and the comment made in the Appeal Review Statement. Mr Butler contends that the appeal evidence submitted by Ms Grant was extensively cross-referenced to each criteria, the WLS and Guidelines.

[21]    In response QH notes that Ms Grant's appeal submission included 17 WLS at the HP7 level and submits that these were not relevant to the classification being sought by her. In its view the appeal needed to be based on the WLS relevant to the level being sought. It was thus incumbent on Ms Grant to consider how her position exceeded the requirements of HP5 and demonstrate how it met the WLS at HP6.

[22]   None of the WLS for HP 7 were considered by the Appeal Panel. The work of the Appeal Panel was to holistically assess whether the appellant met the criteria for the claimed classification. An appellant might have expected that the inclusion in an appeal submission of WLS for a classification higher than the level being claimed may have bolstered their case for meeting the classification sought. However, the Commission was not taken to any documentation that shows that the Appeal Panel was obliged to consider WLS relevant to a classification higher than the level being sought.

[23]   QH disagreed with the assessment made by Mr Butler that Ms Grant had extensively cross-referenced her appeal submission and provided great detail. In its view the submission followed "a formula of providing excerpts of her role description followed by a list of WLS, a cut and paste of key differentiators from the Guidelines and finally a list of evidence."

[24]    The question is whether an error has been demonstrated by the Appeal Panel as a result of its alleged failure to consider many of the WLS as well as the evidence submitted by Ms Grant.

[25]   In that part of the appeal submission requiring the appellant to provide a summary of the evidence demonstrating that the role met each relevant criteria, Ms Grant nominated the various WLS on which she relied. However, these were not necessarily referred to in the body of her appeal submission and other WLS were listed therein. Further, it is not clear what evidence supported which WLS that were claimed. Although this approach would have impacted on the work of the Appeal Panel, the Commission does not consider that the conclusion can be drawn that the Appeal Panel did not consider the submission in its entirety or failed to make a holistic assessment.

[26]   The Commission considers that in Ms Grant's appeal submission there was minimal identification of, or elaboration on, the elements of her role that could assist the Appeal Panel in reaching the conclusion that she met the WLS for HP6. In particular, Ms Grant provided little information and evidence to satisfy the Appeal Panel about how she met the claimed HP6 WLS so as to demonstrate that her classification level was not commensurate with her role and responsibilities. An example of this is Ms Grant's reference in her appeal submission to her being involved in the development of the Sunshine Coast Hospital and the redevelopment of the Nambour Emergency Department. Ms Grant said she was involved in the design, costing and strategic planning for these projects but did not provide details or supporting evidence clearly addressing the nature and extent of her involvement.

[27]   During her oral evidence, the Commission asked Ms Grant to elaborate on her state-

wide responsibilities within Queensland Health. In response to these questions, Ms

Grant primarily concentrated on her activities in educating sonographers and

memberships of professional bodies. There is no doubt that Ms Grant is well

credentialed and is of high standing in her profession. She is actively involved in

professional activities and the education of sonographers and is to be applauded for her

commitment in these areas. However, I formed the view from her evidence that a

number of activities are not a requirement of her position at QH and thus cannot

7

contribute to the work value assessment of her position.

[28]    In all of the circumstances the Commission cannot find that the Appeal Panel erred.

[29]   The Commission determines that the position of Manager - Ultrasound Services, Sunshine Coast and Cooloola Health Service District, State of Queensland (Queensland Health) be maintained at HP5.

[30] Order accordingly.
1
Newton v State of Queensland (Queensland Health) [2014] QIRC 121 [18].
2

Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision

.

Ibid.

Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148 [15]-[17].

Ibid [18]-[19].

6
Newton v State of Queensland (Queensland Health) [2014] QIRC 121 [25].
7

Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision

[46].