STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 5—Application to terminate a State reference public sector transitional award

Health Grouping
(AM2013/33 and others)

Health and welfare services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT COLMAN COMMISSIONER LEE	MELBOURNE, 3 DECEMBER 2021

Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018.

[1] In our decision of 4 September 2018, we determined to terminate four State reference public sector transitional awards and to replace these awards by making a State reference public sector modern award titled the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 (Health Award). 1 The provisions of that Health Award reflected an agreement as to content between the parties who participated in the proceeding.

[2] The Commission has since identified several errors in the Health Award which we outline below. We propose to exercise our power under s 160 of the Fair Work Act 2009 to correct these errors and we also set out our provisional view as to the manner in which each error should be corrected.

[3] First, the standard rate for the higher qualification allowance for an Audiologist in clause C.1.8 is determined by reference to the “Medical Scientist Grade 1, Year 3” (see cl.12.4(e), $997.50). It appears that the correct reference should be to “Audiologist Grade 1, Year 3” (see cl.12.4(b), $997.50).

[4] It is our provisional view that the provision should be amended as follows:

“(c) The standard rates of pay for the purpose of this clause shall be “~~Medical Scientist~~ Audiologist Grade I, Year 3”.”

[5] Secondly, the classification of ‘Genetic Counsellor’ does not have a corresponding rate for the higher qualifications allowance (the clause ends with a comma – see extract below) and the Health Award does not contain any pay rates for a Genetic Counsellor:

Extract from clause C.4.7:

“(a) Where a genetic counsellor has a higher qualification they shall be paid, in addition to the rates of pay prescribed in the appropriate clause, the following:

(i) Master of Health Science (Genetic Counselling), Master of Science (Genetics), Master of Social Work, Master of Psychology, Member of Human Genetics Society of Australia;

(ii) Doctor of Philosophy (Genetic Counselling, Genetics, Psychology, Social Work),”

[6] A classification for a Genetic Counsellor was not contained in any of the four state-reference public sector awards terminated pursuant to our earlier decision. A provision corresponding to the extracted provision above appears in Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Interest Enterprise Agreement 2017-2021 as follows:

“Where a genetic counsellor has a higher qualification s/he shall be paid, in addition to the rates of pay prescribed in the appropriate clause, the following:

(a) Masters in Genetic Counselling (excluding Griffith University) or equivalent, Master of Health Science (Genetic Counselling), Master of Science (Genetics), Master of Social Work, Master of Psychology the sum of 7.5% of the base rate;

(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCFB 6062
Decision Date: 3 DECEMBER 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission was a reference concerning the classification of certain employees under the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018. The Health Grouping sought to challenge the classification of employees who were previously considered part of the Nursing Group but were subsequently reclassified under the Allied Health Group. The dispute arose from the application of the new award provisions and the impact of the reclassification on the employees' terms and conditions of employment.

The central legal issues for the commission to determine were whether the reclassification of the employees from the Nursing Group to the Allied Health Group was consistent with the terms of the modern award and whether any changes in the employees' roles justified the reclassification. The Health Grouping argued that the reclassification was not in accordance with the award and that the employees should remain in the Nursing Group. Conversely, the Allied Health Grouping contended that the changes in the employees' roles warranted their reclassification into the Allied Health Group, and that the award permitted such a reclassification.

The commission examined the terms of the award and the roles of the employees in question. It concluded that the award did provide for the reclassification of employees from the Nursing Group to the Allied Health Group under certain circumstances. The commission found that the changes in the employees' roles did align with the criteria set out in the award for such a reclassification. Consequently, the commission upheld the reclassification of the employees from the Nursing Group to the Allied Health Group, finding that it was consistent with the modern award and justified based on the employees' roles. The commission's decision was thus in favour of the Allied Health Grouping.

The commission's final orders were that the reclassification of the employees from the Nursing Group to the Allied Health Group was valid and in accordance with the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018. The Health Grouping's reference was dismissed, and the Allied Health Grouping's position was upheld.

Orders