Health Services Union v Austin Health

[2011] FWA 6004

[2011] FWA 6004

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Health Services Union
v
Austin Health
(C2009/10501)

COMMISSIONER CRIBB MELBOURNE, 2 SEPTEMBER 2011

Alleged dispute regarding employee classification.

[1] The Health Services Union of Australia (HSU) (the Union) has lodged a dispute notification, under section 739 of the Fair Work Act 2009 (the Act), regarding a dispute with Austin Health (the Hospital). The dispute concerns the application for reclassification of four employees employed by Austin Health, in the laboratory at The Northern Hospital (TNH), as laboratory assistants. The employees, Ms Burns, Ms Kelly, Ms Coulthard and Ms Rowe, are seeking reclassification to laboratory technician. Austin Health did not accede to the reclassification applications.

[2] The dispute was the subject of a conference in the Tribunal on 9 October 2009 but the matter was not resolved. The Union elected to have the dispute determined by arbitration pursuant to the dispute settlement procedures set out in Appendix A, clause 2.1.6 of the Health and Allied Services, Administrative Officers Public Sector Multi-Employer Certified Agreement 2006 - 2009 (Health and Allied Agreement).

[3] Hearings took place on 28 April 2010, 29 April 2010, 12 July 2010 and 23 July 2010. Written final submissions were filed by both parties on 6 August 2010.

[4] Ms A Lancaster represented the Union and Mr K Gogel represented Austin Health. Witness evidence was given by Ms Jennifer Burns, Ms Glenda Coulthard, Ms Susan Kelly and Ms Anni Rowe and by Ms Tanya Troup, Industrial Organiser with the HSU. For the respondent, evidence was given by Ms Glenelle Collyer, Laboratory Manager at the Northern Laboratory and Mr Tristan Roberts, Deputy Director of Pathology at Austin Health.

BACKGROUND

• 4 July 2005 - Austin Health won the tender to provide pathology services to The Northern Hospital of Northern Health. Those employees employed in the Northern Laboratory commenced employment with Austin Health on 4 July 2008.



• October 2007 - the laboratory assistants in the Northern Laboratory wrote to the Laboratory Manager regarding their dissatisfaction with their classification and pay.



• 22 October 2007 - the Laboratory Manager responded that the performance of their duties did not require the qualification necessary to be classified as a Medical Laboratory Technician.



• 10 June 2009 - The issue was raised again formally when eleven laboratory assistants from the Northern Laboratory wrote to the Pathology Director requesting reclassification as Medical Laboratory Technicians.



• 20 July 2009 - the Union initiated a grievance pursuant to the Health and Allied Agreement regarding the classification of eight employees.



• 30 July 2009, 4 September 2009 and 16 September 2009 - Meetings were held between the Union and Austin Health in an attempt to resolve the dispute but no agreement was reached.

[5] The Union is seeking the reclassification of Ms Jennifer Burns, Ms Susan Kelly, Ms Anni Rowe and Ms Glenda Coulthard from Laboratory Assistant Grade 3, as contained in the Health and Allied Agreement, to Medical Laboratory Technician as set out in the Health Services Union of Australia - Health Professionals - Victorian Public Sector - Multiple Business Agreement 2004 - 2007 (Health Professionals Agreement), effective from 4 July 2005. Austin Health opposes the reclassifications and notes that Ms Rowe did not commence employment with Austin Health until 19 December 2005 and that Ms Kelly did not commence employment with Austin Health until 5 January 2009. 1

WITNESS EVIDENCE

Ms Burns

[6] Ms Burns provided a witness statement 2 and also gave oral evidence.

[7] Ms Burns confirmed that she commenced at the Northern Laboratory in July 2002 and that she gained her Diploma of Applied Science, Chemical Laboratory in May 2002. 3 She said that she is a permanent part-time employee and that the position she was offered at the commencement of her employment with Austin Health was classified at Grade 3 Laboratory Assistant.4

[8] It was Ms Burns’ evidence that she was the Key Operator of three haematology instruments (coag analyser, the ACL Top, Cell-Dyn Ruby - full blood counts and Cell-Dyn 3200 - full blood examination). 5 She explained that there were two or three designated key operators each for particular instruments and that she had undergone more extensive training regarding maintenance procedures, troubleshooting and the software and performance capabilities of the instruments.6 As a Key Operator, her role was to work out what was wrong with the instrument and fix it. If that was not possible, the issue would be referred to the manufacturer’s engineers.7

[9] With respect to her role of assisting a scientist, Ms Burns recounted that she worked quite independently of the scientists and was responsible for the general workflow and running of the area/workstation to which she was rostered. 8 She explained that she was generally assigned to a specific workstation and that she rotated through different work stations.9 It was stated that, on occasions, scientists would ask her to perform certain duties. Out of hours, it was said that she had responsibility across the core laboratory for the workflow and functions.10 Ms Burns stated that her role was not just assisting a scientist by setting things up.11

[10] In terms of the reporting of results, Ms Burns indicated that, in haematology, she was responsible for running a number of tests and ensuring they were done in a timely manner. 12 She stated that she handed her work sheet to the scientist who checked her transcription of the result. She said that, unless the result appeared aberrant to the scientist or she had flagged a concern with the result, the testing process was not routinely checked by the scientist. Ms Burns indicated that, if she had picked up a concern with the result, she would not have entered the result. She said that, once she entered a result into the computer (interimed), it was immediately available to doctors, clinicians etc.13

[11] Out of hours, Ms Burns recounted that she was required to utilise all her skills and training. She gave an example of the Saturday night shift (on 23 January 2010) when she was working with an experienced scientist and a sessional scientist. 14 She recounted that she had provided support and training to the inexperienced (sessional) scientist regarding particular tests. Ms Burns said that she had also supported and directed the inexperienced scientist’s work in the core laboratory as the experienced scientist was busy in the blood bank. She recalled that the inexperienced scientist spent a lot of the shift in the blood bank. Consequently, she basically ran the core laboratory unassisted for most of the shift (haematology, biochemistry) including loading and unloading the analysers and updating the Remisol Interface.15

[12] Ms Burns recalled that she was required to perform some urgent micro-urine testing during the shift as the inexperienced scientist was not trained in this area. 16 She stated that, up until 23 April 2010 (five days before the hearing), the laboratory assistants had the ability to interim these results.17 This meant that, once they entered the results into the computer, they were immediately available for the doctor to see.18 It was recounted that she had been asked by the experienced scientist for a second quick opinion about a gram stain even though she had not been trained nor deemed competent in this area.19 However, it was said that she did have a reasonable microbiology background.20

[13] A further duty that she had performed on 23 January 2010 was to identify and follow up I-Reps (Incident Reports) by identifying any errors and then informing the relevant staff person about the correct requirement. Ms Burns stated that, up until early April 2010 (three weeks before the hearing) the laboratory assistants were authorised to interim the I-Rep reports in the computer. 21 Ms Burns stated that she had also received, unpacked, registered, logged, prepared and loaded two-thirds of the samples that had arrived in the department that night. Further, she had advised the two scientists on the storage conditions for the microbiology specimens.22 Ms Burns asked the question as to who was supervising her.23

[14] It was Ms Burns’ evidence that, since she had lodged a grievance about her classification, there had been changes made in the department. These were said to be that, from 23 March 2010, she no longer had the capacity to:

• interim her I-Rep report



• enter results into already interimed reports



• add results to reports that had been interimed by scientists



• interim micro-urines. 24

[15] It was Ms Burns’ recollection that she had not been advised officially that she was no longer required to perform these duties. She said that she no longer could. This was said to be contrary to the status quo provision in the agreement. 25 It was stated that there had been no communication or consultation about these changes nor with respect to the changes made to her Position Description. Ms Burns said that she was not given a copy of the (new) 2009 Position Description which was developed by Austin Health after the lodging of the grievance.26

[16] With respect to the issue of the validation of results, it was Ms Burns’ clear view that the validation of results is a scientist’s role. 27 She explained that laboratory assistants are able to give out, over the phone, results that have been interimed by a scientist.28

[17] In terms of her competencies, Ms Burns indicated that she had been signed off, regarding training, on a technician’s role in haematology. She stated that she was performing no different duties from those of the laboratory technician position at The Northern Hospital. 29 It was explained by Ms Burns that she had applied for the laboratory technician position and was deemed the best candidate. However, contrary to statements from Austin Health, Ms Burns had not indicated that she was unwilling to work the hours attached to the position.30 She said she was not offered the position and found out at a staff meeting that the position had been filled.31

[18] Ms Burns gave evidence that she believed that she performed duties which exceeded the requirements of a Grade 3 Laboratory Assistant. She argued that the skills that she utilised were, to an extent, technical skills and further, that they were informed by a scientific understanding of the role she was required to perform. 32 In addition, she stated that she was also required to test, report and troubleshoot instruments, supervise and train other staff members. These were said to be outside the definitional requirements of a Grade 3 Laboratory Assistant.33 Ms Burns indicated that, in terms of the Key Operator role, she needed to understand what she was doing in order to perform that role and also to impart that knowledge to other staff members. To do this, she had to have the scientific knowledge.34 She stated that, with respect to the on the job training provided by the Hospital, she was trained as the other laboratory assistants but also as the scientists. Ms Burns indicated that there was a lot of on the job training which was undertaken by employees with and without qualifications.35

[19] In terms of the Key Operator training, it was Ms Burns’ view that the manufacturer assumed that the attendee at the training would understand the basic principles behind the machine eg what they are designed to achieve, how they operate. She said that the manufacturer did not particularly care how the person had gained that knowledge. 36

[20] It was Ms Burns’ belief that she performed duties that are encompassed by the Grade 3 Laboratory Assistant definition except for the blood samples issue but that her role extended beyond that definition. 37 She stated that she also met the definition regarding prioritising work, level of accountability, sound communication and/or arithmetic skills. Ms Burns questioned the amount of supervision she received, indicating that, at times, it was very limited.38 She conceded that the laboratory assistant definition did not mention a qualification.39 Ms Burns expressed the view that the Grade 3 definition did not include the considerable administrative and clerical requirements of the job. She said that the role she performed extended beyond what was set out in the Grade 3 definition.40

[21] In terms of the Position Descriptions, Ms Burns stated that the 2009 one was developed in response to what was happening at the time (the grievance). She said that it more closely reflects the duties that she performs but was of the view that the duties were not those of a laboratory assistant. 41 In terms of the September 2008 Position Description for a Laboratory Assistant, Ms Burns confirmed that a qualification was not required. However, it was her understanding that, recently, all new employees have had a qualification. She indicated that not all of the existing employees had qualifications.42

[22] It was confirmed by Ms Burns that she job shared with a person who did not have a qualification. She stated that she and Ms Coulthard could be rostered to the same work station and expected to perform the same duties. She said that she probably performed the day to day duties differently to Ms Coulthard in that the way that they each organised the workflow and set up the specimens within the guidelines would be different. 43 She argued that the reason there was no great difference, despite Ms Coulthard not having a qualification, was due to Ms Coulthard’s knowledge and experience which informed her work as Ms Burns’ qualification did hers. She said that her level of scientific understanding came from her qualification whilst Ms Coulthard’s came from her experience and on the job training.44

[23] Ms Burns stated that, up to about six months ago, the haematology laboratory was a regular part of a laboratory assistant’s rotation. However, this was no longer the case and the role was now being undertaken by a scientist which she believed was in direct response to the reclassification claim. 45

[24] In terms of her out of hours role, it was Ms Burns’ evidence that 70% of her work was in haematology. She stated that it was the expectation that the laboratory assistant took responsibility for haematology after hours, other than the authorisation of results. However, if she is rostered on at work, it is expected that, if there is an issue with an analyser, she will be called to fix it. She recounted that, until recently, Key Operators would be called back in regarding a problem on one of “their” instruments. The situation now was that the Senior Scientist would be called but was unaware of the rationale behind the change. 46

[25] Following the Austin Health takeover of the Northern Hospital Laboratory on 4 July 2005, it was Ms Burns’ view that she has been asked to take on additional responsibilities by the Austin. 47 She confirmed that she was trained in all areas of the core laboratory (biochemistry) but not in the blood bank. She was also trained to work in the microbiology and histology departments. Ms Burns stated that she had also received basic operator training on all of the current biochemistry analysers in her out of hours role.48 She said that she did not perform quality control role on the biochemistry analysers. She indicated that, in the past, she had reviewed quality control on the analysers and then given her results to the scientist. Ms Burns’ evidence was that, although she was trained to work in all areas of the laboratory, she was not trained in every competency in every area of the laboratory.49

[26] With respect to her work in the histology department, it was Ms Burns’ evidence that, in January 2008, a lot of the anatomical pathology and cytology procedures were transferred to the Austin Hospital Laboratory. For the period from July 2005 to January 2008, Ms Burns stated that the laboratory assistants were:

• Responsible for assisting the pathologist and the Registrar for all cut up work.



• Involved in all of the cytology preparation and staining for the department for specimens that were to be reviewed by the cytologist.



• Involved in the staining of fine needle aspirate specimens etc. 50

[27] She also recalled that the laboratory assistants set up the area for the Registrar and the Pathologist which included ensuring that they had all of the requirements they needed to perform their duties. They prepared the cassettes for the transfer of specimens, prepared the formalin and all the specimens and made sure that they were all set out, checked and labelled and got all of the instruments. She recalled that, part of a laboratory assistant duties, was to sit with the pathologist or registrar throughout the process, get whatever they needed, assist them when required and when they were finished, clear the area, load the processors etc. 51

[28] It was also Ms Burns’ evidence that, prior to 2008, when a more senior scientist in anatomical pathology was based at the Northern Hospital, the microtomy, embedding and processing of specimens was done on site for about 18 months. The laboratory assistants were involved in additional duties and instrumentation. 52 She stated that, since the transfer back to the Heidelberg campus, there were no longer any trained anatomical pathology scientific staff on site. Therefore, any such activity is undertaken by the laboratory assistants in consultation with the pathologist and/or registrars when they are on site.53 Such activities were said to include special staining of surgical tissue samples using a variety of methods including automatic staining. It was stated that scientific knowledge was required to understand the processes involved in staining.54 Ms Burns described the methods of non-automatic staining and also what was involved in training a person how to stain samples. She indicated that employees were always trained to a method manual. It was said that the responsibility of the laboratory assistant who is given frozen section slides to stain is to ensure that they are using fresh and the correct stain and reagents.55

[29] In terms of her Key Operator role for the Department of Haematology analytical instruments, Ms Burns indicated that she was required to provide ongoing training and support regarding the routine operation of the instruments including the regular daily maintenance and basic troubleshooting. The training was given to new employees or to existing employees who require re-familiarisation with the instrument. She recalled instances where she had signed off the training documents for specific functions of instrument operation which were then countersigned by a scientist. 56 Ms Burns confirmed that she performed non-routine and extended maintenance procedures and initial troubleshooting of problems in her role as Key Operator. It was stated that this had formed part of her Key Operator training.57

[30] With respect to troubleshooting she indicated that, as a Key Operator, if the operator of the instrument was unable to deal with a problem, she would be called upon to explore the issue further, up to the level of her competence. If she was unable to resolve the problem, she would call in an engineer from the manufacturer. It was explained that, because Key Operators have a greater understanding of how the instrument works internally, they were better able to track down where the problem lies. 58

[31] Ms Burns described what was involved in routine maintenance of the instruments which included reviewing the quality control. She described the method of doing this which included making up the sample. It was explained that it was not a technical skill but a scientific skill as it required a scientific understanding of what you were doing with the sample, why it needs to be made accurately, how to do that and the implications if it is not made accurately. Ms Burns stated that there is a specific scientific technique for making up QC material. She said that, if it is not done correctly, it has huge implications for the results one gets off the analyser and consequently the results that are released about the patient. She indicated that, although the processes are highly prescribed, it is assumed that they will be conducted scientifically as the scientific knowledge required is not set out in the procedures. Ms Burns stated that that was the knowledge that she brought to the job. 59 She said that some of the knowledge came from her qualification which gave her exposure to scientific instrumentation. She said that it had enhanced the Key Operator training she received and her ability to be a Key Operator on those machines.60

[32] It was confirmed by Ms Burns that she had been required to provide supervision and support and training. With respect to biochemistry, she said that she has been required to ensure that the work of new staff members or students was not detrimental to the outcomes of the laboratory, to support them in their learning and development and, in some cases, to train them. 61 Ms Burns stated that the department seniors or management would ask her to work with and train a new member of staff in a particular technique in haematology. She argued that while she was training them, she was also supervising their work to make sure that they did not get it wrong. She said that she was required to ensure that the new staff performed the tasks correctly and to not leave them unsupervised until they were signed off to perform those tasks. She indicated that there were not always scientists around and that she was actually training a scientist.62

[33] Ms Burns stated that she provided technical and scientific support to scientists in her role in haematology as a Key Operator and as a laboratory assistant who works out of hours. She explained that, because haematology has always been the domain of laboratory assistants, the scientific staff were not overly familiar with this area and so, therefore, she provided support and advice to them. She said that this also included areas like microbiology where out of hours scientist staff had not been routinely exposed to those particular tasks in the laboratory. 63

[34] Ms Burns made it really clear that, when she said that she provides scientific support to scientists, she was not trying to do their job. She was not assuming that she had the same knowledge that they do about the physiology and the implications of the results that are generated. What she was talking about was providing the scientist with the scientific knowledge that she has that ensures that she does her job, that the analysers work properly, that the quality control is within range and that the results that she generates for their use are accurate. The scientific support and knowledge that she provided was said to include helping the scientists understand quality control on the instruments, helping them to understand when it was necessary to calibrate an assay on the coagulation machine etc. Ms Burns stated that scientific knowledge was necessary to know when a machine was performing as it should as, just because the machine spits out a number, it does not mean it is a good number. She said that it was expected of her, particularly in the area of haematology, that, when she said to a scientist that a particular machine was good to go, the scientist could have complete faith that the results that the machine generated could be given to doctors to base their clinical diagnostic decisions on. Ms Burns confirmed that, in ensuring that the machines were operating properly, despite all of the documentation in the manuals, she was providing scientific information to scientists. 64

[35] It was Ms Burns’ evidence that it was an important part of her role to support, train and supervise a new clerical employee regarding the clerical aspects of the laboratory processes. 65

[36] The view was expressed by Ms Burns that the majority of duties performed by laboratory assistants at the Northern laboratory were of a greater technical nature than would normally be expected to be performed by other laboratory assistants. Prior to commencing with Austin Health, it was Ms Burns’ evidence that she had worked in chemical laboratories. She based her view on the award and on the position descriptions and on the knowledge of what laboratory assistants do in other laboratories eg when she was a technician at the chemical laboratory. 66

[37] Ms Burns indicated that she had not worked at Austin Health but had colleagues there who had provided information about key role of technicians. However, she said that she could speak about what technicians at the Northern Laboratory are required to do. 67 She confirmed that the analytical validation of results with attention to clinically acceptable turnaround times was not a task that laboratory assistants at the Northern Laboratory are required to perform. Ms Burns stated that she entered (interimed) urgent urine sample results so that they became immediately available but that the analytical validation of results was the role of a scientist. She said that laboratory assistants are not sent on external seminars and conferences but that neither is anyone else much at the moment. She recalled that laboratory assistants attend in-house presentations prepared by the seniors of the departments.68

[38] With respect to out of hours work during the week and at the weekend, Ms Burns confirmed that there was always a scientist rostered on at the same time. She stated that there was not necessarily a scientist available to go to as there were occasions when both scientists had been out of the department for either breaks or because they were engaged in very urgent and serious work. The assumption, therefore, was that the laboratory assistant was able to function independently and make decisions in regards to the routine operation of the laboratory with little or no supervision on occasion. 69

[39] Ms Burns stated the reporting of tests meant the generation of a result for a test which is then reported as an interim report or as a report directly to the scientist. It was explained that, in haematology, a full blood examination and other tests are done. One of the tests, the FBE is run and finished, but, because the results cannot be authorised until all of the tests have been completed, it will be put into an interim report so that the clinical staff can see those particular results for the patient. Before the results are interimed, Ms Burns stated that the scientist will check that the correct number has been written into the report. She indicated that the report at that stage may be authorised or it may still be held in interim status as there is a test that is still pending. 70

[40] Up until recently, it was recounted by Ms Burns that laboratory assistants had pretty much sole responsibility for reading micro-urines in the department, both during the day and out of hours. If an urgent urine or a micro-urine result was requested, the laboratory assistants counted it, entered it and then released it. She said that it did not only happen when there was no scientist available. It was stated that laboratory assistants also advised medical staff of problems with their collections or their requests or the need for them to change something. 71

[41] Ms Burns explained the process whereby laboratory assistants identify out of range and improbable results when running blood gas samples and capillary gas samples and then immediately inform the scientist and also the process with respect to QC. 72 She also outlined the performing and reporting of faecal occult blood tests, faecal and urine- reducing substance tests, urine myoglobin testing.73 She set out the laboratory assistant’s duties regarding the urgent workstation and the correct handling of urgent and special specimens.74

[42] With respect to biochemistry, it was Ms Burns’ evidence that she has the skills to recognise that the analysers are in error and is able to access the logs that indicate what the error is - identify and troubleshoot basic errors. She said that, in some cases, if it is quick and easy to fix, she will do that. If not, she indicated that she would alert the scientific staff that they have a problem. In the past (prior to late 2007/2008), it was recalled that laboratory assistants undertook a much greater role in biochemistry than is currently the situation. The rationale for this is that, with staff shortages, there are not enough staff to rotate through that area any more. 75 Prior to the arrival of the new instruments (2008), Ms Burns stated that the laboratory assistants used to run the biochemistry analysers to much the same extent as they ran the haematology ones. This meant that they were responsible for QC, calibration, maintenance and management of workload for the biochemistry analysers.76

[43] Ms Burns stated that she and Ms Coulthard job share but that she (Ms Burns) also does out of hours work which extends into microbiology (which she does not share with Ms Coulthard). To her knowledge, the technician is not trained in microbiology. She believed that the duties she performs out of hours are no different to those undertaken by the technician. 77

[44] With respect to the manuals, Ms Burns stated that laboratory assistants, laboratory technicians and the scientists use the same manuals. She stated that the manuals determine the test methods and quality control and everyone is required to be familiar with their content and to follow the procedures outlined in them. However, it was her view that, a person with a background scientific knowledge, can read the manual and understand it and use it as it is meant to be used - as a tool and not a Bible. She said that there is a level of interpretation and understanding required to make the manuals an effective tool. 78

Ms Coulthard

[45] Ms Coulthard gave evidence that she had been in her current position for more than 20 years and that she had had experience previously at Prince Henry's Hospital and at Monash University. She stated that she had been a Laboratory Technician at Prince Henry's Hospital and a Research Assistant at Monash University. It was said by Ms Coulthard that she has a Certificate in Medical Terminology. 79 She stated that it was a six-month course over one night a week. It was confirmed that she had never undertaken any tertiary studies and that there were another two people in the laboratory in the same situation.80

[46] Ms Coulthard believed that the work that she performed was no different to that of the other laboratory assistants with a qualification except for Ms Burns’ Key Operator duties. She confirmed that Austin Health did not treat her differently or expect different things compared with those laboratory assistants with qualifications. 81 She stated that, with 20 years of experience and the on-the-job training provided by Austin Health, she performs the work just as well as her colleagues who have a qualification.82 It was her recollection that, during the past eight years, all of the new laboratory assistants employed have had qualifications or have been in the process of gaining them.83 Ms Coulthard believed that the role of laboratory assistant at the Northern Laboratory has evolved to include tasks that would normally be performed by a laboratory technician in other laboratories. This was said to be because the people who have applied for a laboratory assistant roles have those capabilities and knowledge, they been able to utilise those skills and knowledge on the job.84

[47] Ms Coulthard recalled that, in 2008, there were no technicians in the laboratory so that, in haematology, it was laboratory assistants who were assigned to the area, not scientists. She said that, in 2009, certain of the competencies that had previously appeared on the training records without a heading of technician and which she had been signed off on in previous years, now appeared under the heading of technician. She said that she considers that she performs the role of technician anyway. Ms Coulthard stated that, since she still did those tests, she believed that she should still be signing them off and that the Grade 4 Scientist has countersigned them and so obviously has no issue with her doing that. She believed that, in having been signed off in effect as a technician, the competencies she possessed were at the technician level within Austin Health. 85 She confirmed that, at the Northern Hospital, validation of results is done purely by a scientist.86

[48] It was Ms Coulthard's evidence that, until the removal of the analysers in biochemistry in 2006 and 2008, she was rostered there routinely, was the sole operator on those instruments and was required to understand calibration including review of the data and to understand QC including the procedures when the QC fails. 87 She also explained the Westguard Rules as they apply in QC and some of the limitations in the testing process regarding infectious mononucleosis.88 Ms Coulthard stated that there was minimal interpretation required but that one had to be sure as to what indicated a negative and what indicated a positive result. She confirmed that this was set out in the instructions.89

[49] Ms Coulthard stated that she provided training to employees who were new to the laboratory or to students. She said that, as well, she was required to provide support to other people eg. to a scientist who had only recently been rostered back in haematology and who was unfamiliar with reticulocyte counts. 90

[50] When rostered to haematology and microbiology, Ms Coulthard stated that she was responsible for the maintenance and quality control of the analytical instruments. It was confirmed that, when preparing reagents and controls, she is told precisely what proportions to use. 91 She explained the requirement to undertake a pre-analytical preparation of specimens. She said that she is required to report results onto worksheets and directly into the computer and to certify that the quality controls are acceptable. She stated that the vast majority of the tests conducted did not use machines but were manual and gave, as an example, the BSR test.92 Ms Coulthard indicated that, although the transcriptions from worksheets and computer printouts are checked for accuracy by scientific staff, her performance of the test and subsequent results were accepted as correct as a matter of course.93 It was explained that there were always two sets of eyes checking for any transcription errors.94 She also said that, once she has interimed results into an interim report, they are visible to medical staff.95

[51] Ms Coulthard explained what incident reports and add-on requests were and stated that the laboratory assistants are responsible for letting the person who is looking after the patient know that there was a problem. The problem could be that the sample had been wrongly collected or that there was a problem with the sample itself. She said that this required an understanding of what is a suitable sample for a particular test. It was stated that a problem could be identified at some point during the laboratory process and not just at the beginning of the process. She indicated that, for samples that arrived at specimen reception, there was a manual that set out the parameters for an acceptable sample. Ms Coulthard recalled that, through her on-the-job training, she had been taught how to look for deficiencies in samples during the testing process. 96

[52] With respect to haematology, Ms Coulthard explained that she was required to deal with instrument faults and to identify any specimens requiring special treatment or preparation. She gave examples of such specimens and explained what was required of a laboratory assistant. 97 She also outlined her duties with respect to blood films including preparation, staining and labelling and QC materials for Kleihauer testing.98 With respect to ESR testing, Ms Coulthard described what was involved in performing and reporting results for this test and also regarding the 1M test, malaria testing and reticulocytes.99 She indicated that the malaria testing, the 1M test and the rota and adenovirus test required her to use a prepared kit.100 In terms of performing and reporting results for reticulocytes including running a review of QC material, it was Ms Coulthard's evidence that there is sample preparation required before the machine is used. She said that a laboratory assistant needed to understand their way around the software on the machine because it is run in a different mode. She said that it was more than just pressing one button and that she followed on-screen instructions.101

[53] In terms of microbiology, Ms Coulthard stated that laboratory assistants are required to be familiar with, and participate in, all tasks required for the day-to-day running of the microbiology set-up and urine bench areas. She said that this did not include cerebrospinal fluids testing. 102 She confirmed that laboratory assistants maintain the lamina flow cabinets and the auto stainer. She also explained the process for preparing and staining gram slides and the microscopic analyses of urines.103 Ms Coulthard recalled that she was trained by a scientist regarding the microscopic identification of particular things in urine samples. She recounted that there are textbooks with pictures available but that they do not contain a picture of everything that one sees through the microscope. Therefore, one needed to have some knowledge and ability outside of the textbooks.104

[54] It was stated by Ms Coulthard that everything that is done in a laboratory is pretty much fully documented and set out in a manual and that the instructions in the manual are complied with. 105 She said that that did not mean that one would have the manual beside you each time you did a test.106 She stated that the instructions are signed off by a scientist although the senior laboratory assistant was involved in producing a lot of them.107

[55] Ms Coulthard confirmed that, prior to 2008 when anatomical pathology was done at the Northern laboratory, the laboratory assistants assisted the pathologists in setting up the area including the equipment, dyes and preparing specimens including the actual cut-up. She recalled that they were basically another set of eyes and hands for the pathologist. 108 Ms Coulthard also explained the process for manual staining.109 She stated that the laboratory assistant, on occasions, would determine that they needed to get advice from the pathologist regarding a specimen.110

[56] It was Ms Coulthard’s evidence that laboratory assistants require scientific understanding to do their job. The first example she gave was with respect to setting up a microscope. She explained that she believed that familiarity or a technical type understanding about how the microscope works is needed. She confirmed that she had been taught how to recognise an abnormal cell and the different types of abnormal cells. However, she said that scientific knowledge was required in that it was always better if you understood what you are doing and not just performing a task without any understanding of it. 111 With respect to aseptic techniques, it was stated that the scientific understanding required related to something such as what kills bacteria and what does not. She said that it was not always a situation whereby she did something because the instructions say to do it. She said that she could be doing it because something arises in your work that requires you to make a judgement that you need to do something else eg. cross-contamination. She said that these were things that she had gained an understanding of rather than having been taught.112

[57] A further example given by Ms Coulthard was regarding true blood glucose or urgent urine results. She stated that regularly, laboratory assistants, when instructed by a scientist, are required to perform these tests and phone the result through or report interim results to doctors and nursing staff without the results being checked by a scientist. She said that, if she was running a true blood glucose and had a result, she would go to the scientist and tell them the result and usually she would then be told to ring it through. She said that the scientist did not actually go and retest the sample. 113

[58] With respect to haematology, it was Ms Coulthard’s evidence that laboratory assistants routinely completely process the samples in accordance with the manual. She agreed that, at some point, there will always be a validation by a scientist or an auto validation using a machine. 114 In terms of the new biochemistry analysers, she indicated that the laboratory assistants were given the same initial training as scientists. As a result, they are expected to have a general understanding of the analysers’ operation and, during out of hours shifts, are required to load and unload specimens or process an add-on request when the laboratory assistant is the only person available.115

[59] In terms of diagnostic testing, Ms Coulthard argued that it is easy to make a mistake with particular tests eg. G6PD screening, if you do not know what you are doing. She said that it is a test which requires much care in performing. Also, she stated that the G6PD test required the preparation of samples and that it was not simply a case of following instructions. She said that this was a test that could not be performed unless one had been signed off by a scientist. Ms Coulthard confirmed that the way the test used to be performed was highly prescribed and contained a number of tests which needed to be done quite carefully. 116 When examining urines under the microscope, Ms Coulthard indicated that the greater skill was identifying which cells to count rather than the actual counting.117

[60] In terms of the work out of hours, Ms Coulthard indicated the laboratory assistants were the ones who made sure that the work got done in the haematology area. 118 She stated that, since August 2009 when this claim was initiated, laboratory assistants were no longer rostered in haematology out of hours and instead a scientist has been rostered there. In biochemistry, it was said that, since 2008 when the new analysers came, laboratory assistants no longer operate the analysers during the weekday roster and that scientists do instead.119

Ms Kelly

[61] Ms Kelly indicated that she is currently studying a Bachelor of Medical Science (Pathology) at Charles Sturt University (will finish at the end of 2010) and is a qualified Technical Assistant (Laboratory Technician) in Microbiology from New Zealand. 120 She stated that she had successfully applied for a laboratory technician role in microbiology at the Austin Laboratory. She recalled that her duties did not change at all when she went from a laboratory assistant to a laboratory technician.121 It was only her classification that had changed. She explained that she had then moved to the Northern Laboratory due to her university commitments. The move had also provided an opportunity to work in other departments and to develop a broader and wider range of skills.122 It was her view that, when she transferred from the technician position in microbiology at the Heidelberg Laboratory to a laboratory assistant position at the Northern Hospital, the level of responsibility was higher at the Northern.123

[62] Ms Kelly was of the view that her duties at the Northern are greater than what they were at the Austin. She said that she works with less supervision at the Northern than she did at the Austin. She stated that, at Heidelberg, the scientists maintain the blood culture machines and faecal fat microscopy whereas these duties are performed by laboratory assistants at the Northern. 124

[63] With respect to Austin Health’s Position Description for a Technician Grade 1 at the Northern laboratory, she said that she was performing all of these duties as a laboratory assistant except for the analytical validation of results. She believed that validation of results should be, and is, done by scientists at both the Northern and Austin site laboratories. 125 Ms Kelly felt that the majority of the duties performed by laboratory assistants at the Northern laboratory are of a higher technical nature than those performed by laboratory assistants elsewhere. This was based on her knowledge of microbiology at Austin Health and her position in New Zealand in pathology in the public sector.126 She confirmed that all of the laboratory assistants at the Northern laboratory do exactly the same work, other than the Key Operator role, irrespective of their particular academic qualification or lack of one.127 Ms Kelly argued that her colleagues with 20 years’ experience but no qualification could do the same laboratory assistant work because their extensive level of experience was equivalent to a qualification.128 The work that they all do was said to fall within the classification of a laboratory technician.129

[64] In terms of interpreting clinical details on patient request forms, Ms Kelly explained that she is required to interpret a doctor’s handwriting and also to interpret what type of test has been asked for, especially in microbiology eg. she recognised the type of bacteria that the doctor was looking for. 130 She stated that she used her scientific knowledge when she was teaching new staff members about why the plates are put in a particular order. This is because, if it is done another way, the type of bacteria you could be isolating could be compromised. Ms Kelly said that if you know more about why you are doing something, the outcome is going to be a lot better. This is because people sometimes make shortcuts, which they should not do and if they have a better understanding of why they are doing something in a particular order they will do their job a lot better. She stated that it was a way of reinforcing why the scientists have stipulated that things are to be done in a particular order.131

[65] With respect to manual tests, Ms Kelly confirmed that clear instructions have been written by a scientist for each of the manual tests. She stated that, on evening shift, she is required to attend to any faults on the machine and is able to clear simple faults. 132 With the gas analyser, she stated that she identifies an out of range result by looking at the results on the printout and she then informs the relevant scientist. With regard to supervising new staff members, including tertiary and masters students, Ms Kelly indicated that she is required to teach them how to do a task and she then supervises them until they are competent to do the task without assistance.133

[66] It was Ms Kelly's evidence that, just before she left the laboratory technician position at the Heidelberg laboratory, she was starting to be taught how to set up the microbacterium specimens. 134 In microbiology at the Northern laboratory, Ms Kelly stated that, in processing faecal fat samples, laboratory assistants process the samples completely and enter the results on the computer.135 With respect to other types of samples, it was said that the laboratory assistants set the samples up onto the plates and then the scientists read the plates.136 She stated that there was a higher level of responsibility on laboratory assistants at the Northern Hospital to do the tests correctly and accurately because doctors rely on the results for patient care/diagnosis.137 She confirmed that the G6PD test was a screening test and that the doctors relied on the laboratory assistants to do this test and produce a result for them to make a diagnosis on, be that a preliminary one.138

Ms Rowe

[67] It was indicated that Ms Rowe had just received confirmation that her qualification from Finland (Laboratory Technologist, Pathology) has been recognised in Australia as comparable to a Bachelor degree in Biomedical Laboratory Science. 139

[68] Ms Rowe stated that she has previous experience within the industry and had worked at the Austin Laboratory and other public pathology services as a laboratory assistant. This included two months as a laboratory assistant at the Heidelberg Laboratory and in the same role for two years at Melbourne Health. 140 She said that her role as a laboratory assistant in other public pathology services was substantially different from her current role at the Northern as a laboratory assistant. She indicated that, in her other laboratory assistant roles, she had not done any testing, had not run analysers, had not been required to give laboratory test results over the phone to doctors and also computer work at the Northern was more complicated.141 Ms Rowe recounted that she currently undertook some testing in biochemistry.142 She stated that she has not been trained to run the biochemistry analysers because, by the time she started at the Northern laboratory, the laboratory assistants were not trained in those analysers any more.143 It was confirmed that when she had worked at the Heidelberg Laboratory and at Melbourne Health, the primary duties of laboratories assistants were the cleaning and washing of laboratory equipment, specimen reception, data entry and pre-analytical processing of specimens.144

Ms Tromp

[69] Ms Tromp gave evidence regarding the various Austin Health position descriptions for laboratory assistants. 145

[70] Austin Health confirmed that the most recent position description for a laboratory assistant was the 2009 Northern Laboratory assistant one which was issued in September 2009. 146 In terms of the laboratory technician position description, it was Austin Health’s position that each of the laboratory technician position descriptions was valid at a particular point in time.147

[71] Ms Tromp stated that, during the first meeting with the members about this matter, she was provided with the 2006 Northern Laboratory assistant position description, being their understanding that this was their current position description. 148 The 2009 Laboratory Assistant Position Description149 was said to have been produced after the grievance had been lodged. The difference between the two was said to be the addition of six extra duties in the 2009 Position Description. These were outlined.150 Ms Tromp stated that it was her understanding that, when the 2009 Laboratory Assistant Position Description was introduced, there was no change in the duties actually being performed. She said that the members had been performing these duties since, at least 2007, if not 2005.151

[72] It was stated that the 2009 Laboratory Assistant Position Description was very similar to the 2009 Laboratory Technician Position Description with the exception that the laboratory assistant position description did not include “the analytical validation of results with attention to clinically acceptable turnaround times”. 152

[73] With respect to the relevant award definitions, Ms Tromp gave evidence as to her understanding of what they meant and there was also a discussion about automatic progression and the different awards and agreements. 153

AUSTIN HEALTH

Mr Roberts

[74] Mr Roberts is the Deputy Director of Pathology with Austin Health. Mr Roberts stated that the Northern Laboratory is a significantly smaller laboratory than the Austin Laboratory which only provides a limited range of routine pathology testing. 154

[75] It was his evidence that:

• Routine pathology tests comprise the bulk of the hospital pathology service provided.



• None of the tasks performed by laboratory assistants require scientific skills.



• Basic laboratory skills and the ability to follow procedures is required.



• Every task performed by a laboratory assistant can be performed without the person having an academic qualification.



• There is a limited range of testing in haematology performed at the Northern Laboratory. 155



• With the increase in the automation of technical tasks, tasks that were once performed by scientists no longer require input from a scientist but now from a laboratory technician eg, haemoglobin A1C testing, immunohistochemistry. 156 Mr Roberts was not aware that laboratory assistants had previously performed the haemoglobin A1C test.157 Similarly, the increase in technology has meant that laboratory assistants perform some tasks that were the province of technicians.158



• The performance of technician duties requires staff who have the relevant technical knowledge that they have gained through an appropriate qualification. This knowledge is the basic theoretical knowledge that they will require to perform certain tasks eg. a basic biochemistry background allows them to understand what they were doing when they are performing the haemoglobin A1C test. A laboratory assistant would not be able to perform special stains in anatomical pathology unless they could recognise the tissue components they are staining. Knowledge of the tissue components and basic histology comes from having a qualification. On the job training for a laboratory assistant would not include basic histology. 159



• Two laboratory technician positions have been advertised at the Northern Laboratory, one in microbiology and the other one general and they are in the process of being filled. 160



• It is not uncommon for people with qualifications to take positions as laboratory assistants in order to get a “foot in the door” to pathology positions. 161



• Laboratory assistants at the Northern Laboratory are not performing laboratory technician tasks. 162 Mr Roberts gave a number of examples in support of this contention including that laboratory assistants did not validate results but that technicians did. He pointed to the Attachment to his Statement where he had compared technician tasks and position descriptions with those of laboratory assistants at TNH163



• Laboratory assistants at the Northern Laboratory perform a wider range of tasks than the more specialised laboratory assistants at the Austin but the tasks are not more complex than those performed at the Austin. For example, laboratory assistants at the Austin perform send-out of specimens which, when performed at the Northern, is undertaken by a scientist. 164 In each discipline, there are tasks performed by laboratory technicians that are not performed by laboratory assistants.165



• In haematology at the Austin, laboratory technicians perform the less complex tests and validate some of the tests. There is no haematology discipline but a subsection of it at the Northern laboratory and only routine tests are performed. 166 At the Austin, the technicians perform the tests and then validate them themselves. Mr Roberts said that at the Northern Laboratory, when a laboratory assistant shows someone the result and says that it looks ok - that person was validating the result and taking responsibility for the test based on their knowledge.167



• Results that are entered into the laboratory information system as interim results, viewable by the requesting doctor are not the validation of a result. All interim results are clearly indicated as being exactly that and the doctors reading those are aware that they are non-validated results and they take the clinical risk if they choose to use them as they are not the definitive result. He did not believe that laboratory assistants at the Austin Laboratory enter a result into the laboratory information system as an interim result. 168 Technicians in biochemistry and haematology at the Austin will be validating results. Both manual or automated tests will be validated.169 Mr Roberts stated that the results are released as soon as the biochemistry laboratory technician validates them. The results that the technician validates are those set out in his attachment.170 Whether a technician validated results depended on the discipline they are working in. If they did not work in biochemistry or haematology they would not be validating results171 Mr Roberts said that the validation of results was a key difference between a laboratory assistant and a technician even though not all technicians in all disciplines validate results.172



• In microbiology, laboratory technicians at the Austin do not validate the final result but they do perform more complex tasks. 173



• respect to the laboratory technician tasks set out in the Attachment to his statement, 174 it was Mr Roberts’ evidence that these are the duties that the technicians will do when they are fully trained. He could not say whether or not they were doing them now.175 He indicated that the comparison of laboratory technician tasks and PDs with those of laboratory assistants at the Northern laboratory176 was compiled on the basis of the position descriptions for both positions and his discussions with the senior managers and the unit managers about the tasks that are currently being performed.177 Mr Roberts was unable to include the role of the laboratory technician at Werribee in his comparison as he was unaware of the duties and tasks performed.178



• Mr Roberts stated that the key difference between the tasks of laboratory assistants at the Northern and those performed by the laboratory technicians at the Austin, in haematology and biochemistry, is the analysis and validation of results. In microbiology, it is the more complex tasks eg. susceptibility testing, media QC. In anatomical pathology, it is the microtomy of surgical tissue and special staining. In cytology, it is the more complex cytology preparation that is performed at the Austin. 179 Mr Roberts said that a laboratory technician will be performing all of these duties at some stage.180



• The NATA accreditation of the Northern laboratory was discussed and it was indicated that NATA had examined all of the roles of the department and assessed the suitability of the staff to perform those roles and they were assessed as appropriate. 181 NATA assumes that all laboratory assistants are unqualified.182 If laboratory assistants validated results this would compromise ongoing NATA accreditation because it is expected by NATA that only the people appropriately qualified to give those results would give those results.183



• In histology, laboratory technicians perform more complex technical tasks that are not performed by laboratory assistants eg. embedding, microtomy and special staining. This is because laboratory technicians hold a qualification which has given them a knowledge of histological structure and anatomy. The stains performed at the Northern laboratory on frozen sections are routine stains and not special stains and the laboratory assistants perform one small portion of that test. 184 Staining of the frozen section and fine needle aspiration is reversible and so therefore it is not irreplaceable.185 The fine needle aspiration testing by laboratory assistants at the Northern simply determines whether the specimen is adequate. The specimen then goes to the Austin Laboratory for other staining by laboratory technicians and for determining a diagnosis.186



• Anatomical pathology was moved to the Austin Laboratory from the Northern Laboratory in order to add a different technique and process to cytology staining and to improve patient safety. 187 Laboratory assistants at the Northern Laboratory were not cytology trained and so were not experienced or qualified to assess the quality of the stain. At the Austin, the laboratory technician or the scientists will modify what they are doing in terms of staining depending on the clinical details. This requires the person to have a qualification in science.188



• The wet prep for Trichomonas in yeast does not require scientific knowledge and experience and is not a complex test. 189



• All tests should be documented in the procedure manual but some of the complex testing requires other knowledge. The tests performed by technicians would be clearly documented. It is not necessary for someone to understand the purpose, scope and the principles behind the procedure but it is an advantage and is more interesting for the person. 190



• At the Austin, laboratory assistants are in all areas except haematology but they work in one discipline. At the Northern Laboratory, there are general laboratory assistants who work across all disciplines including doing some work in haematology. The laboratory assistants at the Northern laboratory have a more expansive knowledge of the different tests than at the Austin but the tests are suitable for laboratory assistants and are not laboratory technician duties. 191



• With respect to the duties of the laboratory technicians at the Northern Hospital, Mr Roberts’ understanding was that the biochemistry instrumentation was not currently being maintained and operated routinely by the technicians although it would be in the future. 192



• As the Austin, and not the Northern Laboratory, is the tertiary referral centre that receives specimens from around the country for specialist testing, laboratory assistants at the Austin would deal with the receiving and registering of these samples. In terms of HEM, even though a technician performs these duties, they were said to not be laboratory technician duties as they are only performed by a technician because there is no laboratory assistant in that section. 193

• There was discussion about the differences between the position of scientist and that of laboratory technician. 194



• Mr Roberts believed that the AIMS discussion paper reflected industry practice in public hospitals in Victoria. 195 He distinguished between the AIMS discussion paper and the position descriptions from the Australian Red Cross Blood Service and St John of God pathology on the basis that they were different organisations.196

Ms Collier

[76] Ms Collyer is the Laboratory Manager of the Northern laboratory of Austin Health. 197

[77] It was Ms Collyer’s evidence that the role of laboratory assistants has always been to assist scientists. 198 She said that laboratory assistants follow the instructions or the procedures that were written by the scientist in charge of that area. She explained that the procedures are step by step procedures and that they do not allow for any interpretation as to what should be done next or how it should be done. The procedures are designed to achieve an outcome and, if they are not followed, then the outcome is not what it is intended to be.199

[78] Ms Collyer said that the duties of laboratory assistants were not of a scientific nature. 200 With the changes in technology, it was her view that the scientific input required in the bulk of the biochemistry results has been taken over by technology. For the laboratory assistant, where the tests have been simplified by technology or advances in science, then the tests are much simpler to perform and do not have as many steps in them eg. haemoglobin electrophoresis.201 Ms Collyer stated that the tasks assigned to laboratory assistants do not require any level of scientific understanding. She said that, by “scientific understanding “she meant that somebody has a tertiary degree in science rather than the understanding that you get from doing laboratory work at school as part of a normal education. Being able to measure something accurately does not constitute “scientific understanding” but understanding how different molecules, antibodies and antigens relate to each other is “scientific understanding”. “Scientific understanding” was said to be both theoretical and practical. As part of the internal on the job training of laboratory assistants, none of the theory behind any of the techniques is taught.202 It was not required or expected that laboratory assistants would have any scientific knowledge - it would be a matter for them - as any scientific knowledge would not be utilised in any formal way.203

[79] In terms of microscope set-up, Ms Collyer said that the microscopes were usually set up by the scientist and the laboratory assistant was required to use it appropriately. If there was an issue with the microscope, the laboratory assistant would normally ask the scientist. 204 It was said by Ms Collyer that laboratory assistants were not required to have scientific knowledge regarding urine microscopy. They are required to be able to distinguish between the cell types that they see and to indicate whether they are red, white, or epithelial cells. They are not required to indicate whether the white cells are of any particular type of white cell or what the significance is. Laboratory assistants are required to do a white cell count, a red cell count and to comment as to whether epithelial cells are detected or not detected and, if detected, the density.205 There were also very good micropictographs in a book beside the microscope. It was stated that these tests were preliminary tests only as the results were only suggestive of infection and not an indicator. The laboratory assistants are not required to identify abnormal cells but to record what they are looking at.206 She said that, when laboratory assistants do normal count ranges of white and red blood cells in urines, they need to be able to differentiate between what a red cell looks like and what a white cell looks like. If the red cell count is above a certain number, the laboratory assistant is required to set the urine aside for review by a scientist.207

[80] Ms Collyer did not believe that this was technical work. 208 Her definition of “technical work” was something that requires a level of knowledge and training that is not necessarily gained on the job. It may be finished off on the job but there would be a level of training, background theory, that a person would already have. In haematology, for example, technical work was described as assessing the quality controls and understanding things like uncertainties measurement and a whole range of statistical work, which is done as part of a tertiary course. That level of theory could not be taught on the job.209 She recounted that there is a long and ongoing internal training process for this task which assumes no academic qualification.210

[81] Ms Collyer was of the view that scientific knowledge was not required to process specimens without introducing a contamination but simply to use the equipment appropriately. She said that the laboratory assistants did not need to understand why they were doing it but how to do it. She stated that the scientist provided the laboratory assistants with a set of plates which they are expected to duplicate on a rotating basis. They are taught methods of how to streak out plates and are required to check them the following day for purity and single colony growth. If the laboratory assistant makes a mistake it is the scientist's responsibility to pick that up and to fix it. 211 With respect to identifying yeast in vaginal wet preparations, Ms Collyer indicated that a laboratory assistant does not require scientific knowledge to perform this task.212

[82] In regard to particular competencies in haematology, it was stated that laboratory assistants are not required to acquire these competencies. However, they may learn them as they go along but are not required to apply them. She said that it had been a mistake to train the laboratory assistants in these competencies and that the documents would be updated as it will be seen as an error by NATA. 213 In terms of quality control in haematology, it was stated that most of it will be on the instrument and that it is possible to see whether or not the line is running along the set mien. She said that there was no scientific knowledge required to do this part of the quality control process and that the scientist was the sole person to sign off. Laboratory assistants were taught how to put the samples on the machine.214 Ms Collyer was of the view that the ability to prepare reagents and control material did not require a scientific qualification but was rather an ability to follow the recipe or the instructions.215 With regard to identifying whether any granular casts are present, it was said that this did not require scientific knowledge but the ability to match a picture to another picture or to recognise that there is an abnormality there.216

[83] Ms Collyer confirmed that the internal training provided to laboratory assistants presumes they have no tertiary academic qualification of any type. She said that, currently, there was one laboratory assistant who does not have a qualification but that she has decided to do a laboratory diploma in technology. She said that, if a laboratory assistant has a diploma, they are much easier to train than those who do not have any qualifications or background in science. When laboratory assistant positions are advertised, no qualifications are required but applicants with qualifications are considered and, if they are the best candidate, it will be ensured that they understand the position they are applying for and that they are willing to perform those duties. 217

[84] In terms of the claim that the laboratory assistants supervise a new staff member, Ms Collyer’s understanding of the word “supervise” did not correspond with the role of a laboratory assistant in terms of a new staff member. She indicated that a laboratory assistant would work alongside a new person and make sure that they are doing things correctly, as they have been taught, and also to show them things that are part of their normal day to day work. 218

[85] Ms Collyer stated that she expected the new laboratory technician position at the Northern Laboratory to be fully functional after considerable training (at least 12 months) and taking on the responsibilities of a laboratory technician rather than a laboratory assistant. She said that the laboratory technician would be performing roles that she would not expect a laboratory assistant to perform. 219

[86] With respect to the interiming of results by laboratory assistants, there was said to be specific documentation in the Northern laboratory’s procedures that states that, if the result is not validated, the laboratory assistant is not authorised to release them or to give them out. Ms Collyer recalled that, when she became aware that laboratory assistants were doing this for total blood glucose tests and urgent urine counts, as the laboratory assistants were breaching the Department’s procedures, she felt that she had no alternative but to restrict their access so that they were unable to release those results and make them available to the clinicians. This has resulted in laboratory assistants being unable to do all the tasks they previously did and a scientist now has to do them. 220 She also said that, if the laboratory assistants had not overstepped the mark and done things that they were not authorised to do, then they would still have those privileges.221 Ms Collyer said that management had not been aware that this was happening and that she has been the Manager for two years and had only just found out about it. She stated that, if somebody else knew it was happening, it should have been stopped prior to now. She said that the Department’s procedures clearly state that laboratory assistants are not authorised to give out unvalidated results.222

[87] It was Ms Collyer’s view that the role of a laboratory assistant is to assist in the processing of samples. In haematology, there was said to be a whole range of different types of tests which made it difficult to say that a sample or part of a report was entirely generated by a laboratory assistant. The handling of specimens was a component in a longer chain of events. She indicated that, when any sample results are entered manually, they must go to a second person for validation and that that person can only be a person who is delegated to authorise results. 223 Ms Collyer confirmed that, for some tests, the laboratory assistant entered the results into the laboratory information system and then handed the report to the scientist to validate. In validating the result, it was said that the scientist used their scientific expertise to assess whether or not the result should be validated and that it was the scientist that took responsibility for that decision.224 She indicated that the more simple, stand-alone tests that do not form any part of the report that requires any subjective evaluation are able to be validated, reported and released by a laboratory technician. Ms Collyer agreed that it was likely that they would be the same tests that laboratory assistants perform but said that she would expect some knowledge from a technician about the limitations on the test and what things might influence the test, before they were allowed to validate them.225

[88] With respect to tests that are done manually by laboratory assistants, Ms Collyer estimated that they were between 10 and 15% of the total number of tests that the laboratory performs. She indicated that they are mostly kit-based tests. She confirmed that the vast majority of sample testing is in some way performed by a scientist. When quality control fails, it was stated that the operator of the instrument would notify the scientist that there is a problem. It was then the scientist’s responsibility to assess and make the necessary adjustments for the quality control. 226 Ms Collyer stated that a laboratory assistant performed microscopic investigations where the results were either a yes or a no or fell within a fairly broad range.227

[89] It was Ms Collyer's evidence that there was never a situation where a laboratory assistant was authorised to perform work beyond their classification due to the absence of a scientist. Neither was there a situation where a laboratory assistant was rostered on without a scientist. There would be two scientists on at all times. 228 It was stated that laboratory assistants would be undertaking their duties under the direct supervision of the scientist at all times.229 Ms Collyer clarified what she meant “direct supervision by a scientist” (as applied by NATA) as there being a scientist on site who could be accessed for assistance. It did not mean somebody standing over your shoulder watching what you are doing.230

[90] With respect to a laboratory assistant assisting a scientist, Ms Collyer agreed that this included getting the required materials, performing the test and providing the printout to be checked off/evaluated by the scientist. 231

[91] In terms of using visual observation with the microscope, Ms Collyer said that, if the pictures did not match what the laboratory assistant saw through the microscope, the expectation was for the laboratory assistant, and also for the technician and scientist, to ask a(nother) scientist (with more experience). She stated that she would expect more of a technician then she would of a laboratory assistant. 232

[92] With regard to the G-6-PD test, it was Ms Collyer’s evidence that the Head of Haematology decided to discontinue that test because of issues with the supplier and the reagents and inconsistent results. She stated that it was a detailed step-by-step process with no option for if/but/maybe or interpretation. Employees are trained by a scientist to perform this test and are signed off by the department head as competent to perform the test. 233 Once signed off, the new staff person would be given a buddy who would then supervise them while they performed the test on their own whilst being watched.234 Ms Collyer indicated that there may be times/ certain circumstances when a laboratory assistant (deemed competent) would train another person and the scientist would then be responsible for deeming that person competent if they felt that they were.235

[93] It was not within Ms Collyer’s knowledge that training documents have been signed by Ms Burns as the Key Operator of an instrument. It was Ms Collyer’s clear position that, only the person who has written the training document or their delegate, has the authority to sign it off. However, she could not comment as to what had happened prior to her becoming Manager two years ago. 236

[94] With respect to the Position Description of a Laboratory Assistant, Ms Collyer confirmed that she was involved in developing the 2009 version. She recalled that there was a view that the 2008 version was perhaps too generic and did not contain some of the tasks that the laboratory assistant was performing. She agreed that the tasks that were added to the position description were: performing standard laboratory procedures under direct supervision; performing some non-automated and automated laboratory techniques; perform preventative and corrective maintenance and repairs on laboratory equipment; troubleshoot instrument problems within established parameters; operates laboratory instruments; perform preliminary evaluation of quality control and refer data to scientific staff. It was stated that these were duties already being performed to the level of laboratory assistant. Ms Collyer said that position descriptions are supposed to be reviewed every year and that the 2008 Position Description was up for review and it was reviewed in November 2009. As part of the review she had looked at the duties that the staff were actually performing. 237

[95] Ms Collyer confirmed that she was also involved in the development of the Technician Position Description for the Northern laboratory. It was stated that the Northern laboratory Laboratory Technician Position Description was based on the two Austin Technician Position Descriptions (haematology and biochemistry). 238

[96] She indicated that the differences between the laboratory assistant and the laboratory technician, on the out of hours shifts, included that the technician is able to sign off the quality control and assess that it falls within the accepted ranges. However, at this point, Ms Collyer said that the laboratory technician has not been signed off to do this. 239 In terms of the analytical validation of results by the laboratory technician at the Northern laboratory, Ms Collyer was unable to say whether or not they have been validating results. She indicated that it had been part of their training whilst they were at the Austin and that they had been signed off. She confirmed that the privilege access of laboratory assistants was changed in March 2010 but that the technician level had remained the same with technicians at the Austin and the Northern laboratory having the same level of access.240

[97] It was indicated by Ms Collyer that the duties the technicians should have picked up from scientists over the past 12 months include signing off on quality control. Although they do the work, it was said that she was advised that they do not actually sign off on quality control because the paperwork has not been updated. 241 A further duty was said to be validating the kit based tests that the laboratory assistants do which do not require any interpretation.242 Ms Collyer confirmed that there are two laboratory technicians currently employed at the Northern laboratory and she explained that both are internationally degree qualified but have been assessed at the technician and not the scientist level.243

[98] In terms of the Key Operator position, Ms Collyer said that there was only one laboratory assistant (Ms Burns) who acted as a Key Operator. She could not recall there being previously a laboratory assistant in that role. She was not aware or had authorised any change to Ms Burns’ role as a Key Operator. 244 She described the role of Key Operator as the “go to person” when there was an issue with one of the instruments. The Key Operator provided technical advice to a scientist, technician or laboratory assistant. This advice may include troubleshooting and it was expected that the Key Operator would offer their assistance.245

[99] With respect to the changes that were made in haematology, Ms Collyer explained that some of those changes were the result of the Austin applying for corporate accreditation with NATA. This required the Northern Laboratory to do things the same way as the Heidelberg Laboratory. 246 These changes were said to include the running of the instrumentation (two haematology analysers and the coagulation analyser) (quality control) by a scientist if there is not a technician available and the moving of one test to the blood bank where it is performed by a scientist. In terms of the instrumentation, Ms Collyer indicated that a laboratory assistant could still be performing that role (pre changes) out of hours and on weekends. She explained that the laboratory assistants still run tests but that they were no longer being signed off by them but by a scientist who also validates the results.247

[100] With regard to the delineation between the positions of laboratory assistant, technician and scientist, it was explained by Ms Collyer that laboratories are left to define the difference between these positions themselves. She said that there is always some overlap between them. 248 She stated that, at the Northern laboratory, it was work in progress and that the starting point was, based on the position descriptions, what is there already. She agreed that the technician needs to do more of quality control and maintenance on all of the instrumentation. She said, however, that there are some clear delineations between the three levels and one of those is qualifications. The second area would be what they do as part of their course that was able to be applied in the laboratory, given that anatomical pathology is different to biochemistry and haematology.249

• Slide test for Malaria, enter results in LIS and validate results



• Slide test for Monospot, enter results in to LIS and validate results



• G6PD screening test, enter results into LIS and validate results



• Reticulocytes, enter results into LIS and validate results

Validation of results has already been dealt with. The technician will be performing these tests in the future but is not currently doing them. The four laboratory assistants are undertaking these tests. 338

Austin Biochemistry

[148] With respect to what tasks were performed by technicians at the Austin (Heidleberg) Laboratory, Ms Collyer was unable to say. Her evidence focussed on whether the four laboratory assistants and technician at the Northern Laboratory were performing the duties specified for the technicians at the Austin Laboratory. 339

• Key PD requirement for technician - Performance and assessment of quality control specimens for the assays performed. This is the same as the fourth dot point above. 340 The technician is not currently performing this task. In the past, the laboratory assistants have reviewed the QC on the previous instruments



• Key PD requirement for technician - Maintain and operate all equipment. As set out in the first dot point above, neither the technician nor the four laboratory assistants maintain and operate all equipment but rather some of it. There is no difference between the technician and the four laboratory assistants as to which equipment they operate and maintain. 341



• Key PD requirement for technician - Analytical validation of results with attention to clinically acceptable turnaround times. This has been dealt with at the second dot point above. 342 Neither the technician at TNH nor the laboratory assistants currently validate results.



• Key PD requirement for technician - Work at any Austin pathology campus. This has been covered previously at the third dot point above. 343



• Key task performed by technician - Analysis and review of QC results for the following instruments and tests:

• Routine chemistry and immunoassay on Beckman DxC88i



• Haemoglobin A1c and Lithium on Roche integra



• Viral serology on Architect

This was discussed previously and the technician is not currently performing these tasks but the four laboratory assistants are. 344

• Key task performed by technician - Validation of numeric results for the above instruments and tests. This has been dealt with previously at the second dot point above.

Austin Haemotology

• Key PD requirement for technician - Maintain and operate all equipment. The Northern Laboratory is not listed into specific disciplines but there is a portion of equipment that is operated and maintained for certain disciplines even though the disciplines are not completely split. The previous answer at dot point one above applies. 345



• Key PD requirement for technician - Performance and assessment of quality control specimens for the assays performed; analytical validation of results with attention to clinically acceptable turnaround times; work at any Austin pathology campus. These have already been dealt with above. 346



• Key task performed by technician - Perform the following tests independently without subsequent checking by a scientist:

• ESR, enter results into LIS and validate results



• Slide test for Malaria, enter results into LIS and validate results



• Slide test for Monospot, enter results in to LIS and validate results.

These have already been discussed above. 347

• Key task performed by technician - Preparation of Albumin and anti D stocks - this is performed within the blood bank at the Northern Laboratory so, therefore, the four laboratory assistants do not undertake this task. 348

Austin Microbiology

• Key PD requirement for technician - Preparation, analysis and reporting on all aspects of routine microbiological investigations.



• Key tasks performed by technician -

• Media production including susceptibility testing media and operation of media production equipment



• Media QC



• TB Specimen setup



• Serology setup and reporting



• Molecular Diagnostic specimen, nucleic acid extraction, setup, amplification and analysis

None of these two tasks or PD requirements are performed at the Northern Laboratory. 349

Austin Histology

[149] Histology is not performed at the Northern Laboratory. 350

Austin Cytology

[150] Cytology is not currently performed at the Northern Laboratory as the testing was moved to the Austin Laboratory in 2007. Prior to then, the four laboratory assistants were involved in sample processing preparation. 351

Signing off of QC

[151] Ms Collyer gave further evidence regarding the key differences between the work performed by a laboratory technician and that by a laboratory assistant. These were the signing off of quality control in haematology and the validation of results. 352 With respect to the signing off of quality control, Ms Collyer was referring to assessing that the results fell within the accepted ranges. It was Ms Collyer’s evidence that the four laboratory assistants had completed the required training competencies and had been signed off by the appropriate scientist. However, she said that this had been a mistake by the then Head of Haematology as the laboratory assistants should not have been given training that was designated for technicians and scientists. Further, Ms Collyer stated that NATA would view this as an error on the part of Austin Health.353 Accordingly, the training documents would be updated and, although the laboratory assistants would no longer assess the quality control results, they would continue to perform the tests. It was also Ms Collyer’s evidence that the laboratory technician is not currently performing the assessment of quality control even though it is a requirement and is set out in the technician position description.354

Validation of results

[152] In terms of the second difference between the two positions identified by Ms Collyer - validation of results - this issue has been discussed in paragraph 144 above. It is worth noting here that, although it is a requirement that the technicians validate test results, they are only authorised to do so in two departments - biochemistry and haematology. 355 Despite it being a requirement of the technician position and one of the key differences between a laboratory assistant and a technician, neither the previous technician nor the more recently appointed technician were/are currently validating results.356

Interim results

[153] Ms Collyer also gave evidence of a recent change to the duties of the laboratory assistants. This was with respect to the “interiming” of urgent results for doctors (ie. release of unvalidated results) and the authorising/interiming of interim Incident reports and follow-up. She stated that laboratory assistants were no longer able to perform these tasks because they were not authorised to do so by the Northern Laboratory’s Departmental procedures. When she had found out that this was happening, the laboratory assistants’ access to the laboratory computer system was restricted. 357 Scientists are now performing these duties.358

[154] At the conclusion of her evidence, it was stated by Ms Collyer that there was no significant difference between the work that the technicians and the four laboratory assistants are currently doing at the Northern Laboratory (other than Austin Health’s expectations of what the technicians would do in the future). 359

[155] I have carefully considered all of the material before me. I accept Ms Collyer’s evidence that the work currently being performed by the four laboratory assistants at the Northern Laboratory is essentially little different to that being undertaken by the technician at the Northern Laboratory. Therefore, I can only but find that the four laboratory assistants are performing the same work as that of the person employed in the position of laboratory technician at the Northern Laboratory. Ms Collyer’s evidence in this regard was based on Mr Roberts’ document which compared the PD and tasks of a technician with that of a laboratory assistant. It was clear from both Mr Roberts’ and Ms Collyer’s evidence that Austin Health had expectations regarding the tasks performed by the technician in the future. However, the task of the Tribunal is to determine the work that is actually being performed. In this matter, it is not possible to distinguish between the tasks undertaken by the laboratory assistants and the employees who have occupied and are currently occupying the position and classification of laboratory technician. This is particularly so with respect to the two tasks that Austin Health say distinguish the two positions - the validation of results and the signing off of QC. At the time of the hearings, it was conceded by Ms Collyer that neither the current technician nor the previous incumbent had validated results. Further, it was Ms Collyer’s evidence that the current technician was not signing off on quality control even though that person had been trained. The laboratory assistants had been performing this task since 2005 until it was no longer required of them by Austin Health in 2010. As it is necessary for the Tribunal to determine the work that is actually being performed, on the basis of the material before me, I cannot but find that the four laboratory assistants are performing the same duties that the person in the position of laboratory technician is currently undertaking.

[156] Having established the nature of the work being performed, I now turn to the requirements of the relevant industrial instrument.

[157] As set out earlier in the decision, the classification definition of a Medical Laboratory Technician contained in the Health Professionals Agreement is as follows:

“An Employee employed as such who holds a Certificate or Associate Diploma of Applied Science (Medical Laboratory) or equivalent as recognised by the Employer.”

[158] It was accepted by Austin Health that Ms Burns, Ms Kelly and Ms Rowe, throughout their employment with Austin Health, have possessed tertiary qualifications that would have enabled them to be employed as laboratory technicians. 360 Ms Coulthard does not possess a tertiary qualification. It was argued by the Union that her 20 years of experience was substantial enough to allow Austin Health to regard it as “equivalent as recognised by the Employer”. I have not been persuaded that the terms of this particular definition allows for anything other than “or equivalent” to mean a qualification equivalent to the one specified in the definition (which is recognised by the employer). Accordingly, it is my view that Ms Coulthard does not meet the classification criteria of a qualified medical laboratory technician as contained in the Health Professionals Agreement. This should not be taken by Ms Coulthard as a reflection on her skills and experience.

[159] Therefore, in applying the twin tests of the classification definition contained in the Health Professionals Agreement together with my finding as to the work that is actually being performed, I find that Ms Burns, Ms Rowe and Ms Kelly meet the criteria for re-classification as Qualified Medical Laboratory Technicians. The HSU has claimed Medical Laboratory Technician Grade 2 for these laboratory assistants. Based on the material before me, I have not been persuaded that Grade 2 is the appropriate level. Rather, it should be Grade 1.

[160] In reaching these conclusions, I need to make it clear that this decision is not to be taken as a general pronouncement on the position of laboratory assistant vis a vis laboratory technician or on the classification structure and definitions in general. The outcomes of this decision arise out of the particular situation at the Northern Laboratory which is a reflection of its history and its practices. The fact that the work actually being performed by those classified as laboratory assistants at the Northern Laboratory was not distinguishable from that being performed by those classified as technicians is the result of a number of factors, none of which has anything to do with the classification structure in the laboratory, the award or the agreements. However, responsibility for this situation lies primarily with the employer as it is the employer who determines how the work is to be organised and performed.

Grade level

[161] The Qualified Medical Laboratory Technician Grade 1 classification has a number of levels. The HSU has sought re-classification for the four employees from 4 July 2005 on the basis that they were required to perform the duties of the technician classification by the employer from that date and they hold the required qualification. 361 At the time when the parties’ final written submissions were due (6 August 2010), Ms Burns had been an employee of Austin Health since 4 July 2005. Therefore, as at 6 August 2010, Ms Burns should be classified as a Medical Laboratory Technician Grade 1 Year 6. Applying the same logic to Ms Kelly, as at 6 August 2010, she should be classified as a Medical Laboratory Technician Grade 1 Year 6 as she commenced with Austin Health on 4 July 2005. Ms Rowe commenced with Austin Health on 19 December 2005 and had maternity leave from August 2006 to July 2007. On returning to work in July 2007, Ms Rowe worked part-time (20 hours per week) until July 2008 when she resumed full time work. She commenced maternity leave in August 2009 and was still on maternity leave in April 2010 when she gave her evidence.362 The HSU have sought that Ms Rowe be re-classified as a Laboratory Technician Grade 1 Year 6 on the basis that Ms Rowe has 27 months service with Austin Health.363 Given Ms Rowe’s pattern of employment, the parties are to hold discussions about the appropriate year level within Grade 1 for Ms Rowe. If agreement is not reached, either party may request the assistance of the Tribunal.

Back payment of wages

[162] The HSU has claimed back pay for the laboratory assistants on the basis of the wage rates set out in the Health Services Union of Australia - Health Professionals - Victorian Public Sector - Multi Business Agreement 2004 - 2007 for the period from 4 July 2005 to 21 November 2008. From 21 November 2008, the Union submitted 364 that the remuneration should be in accordance with the Workplace Determination.365

[163] The parties are directed to hold discussions about the issue of back pay. If no agreement is reached, either party may request the assistance of the Tribunal.

COMMISSIONER

 1   Exhibit R1 at paragraph 34

 2   Exhibit A2

 3   Transcript PN 635 - 638

 4   Ibid PN 154 - 163

 5   Ibid PN 83

 6   Ibid PN 80

 7   Ibid PN 81 - 82

 8   Ibid PN 86

 9   Ibid PN 93

 10   Ibid PN 84

 11   Ibid PN 85

 12   Ibid PN 88

 13   Ibid PN 88 - 99

 14   Ibid PN 93

 15   Ibid

 16   Ibid

 17   Ibid PN 97

 18   Ibid PN 98

 19   Ibid PN 99 - 101

 20   Ibid PN 103

 21   Ibid

 22   Ibid

 23   Ibid

 24   Ibid PN 108

 25   Ibid PN 108 - 109

 26   Ibid PN 111 - 112

 27   Ibid PN 117 - 118

 28   Ibid PN 119

 29   Ibid PN 123 - 126

 30   Ibid PN 130

 31   Ibid PN 131 - 132

 32   Ibid PN 207 - 209

 33   Ibid PN 212

 34   Ibid P 213

 35   Ibid PN 214 - 218

 36   Ibid PN 221 - 232

 37   Ibid PN 238 - 242

 38   Ibid PN 245 - 252

 39   Ibid PN 255

 40   Ibid PN 256 - 258

 41   Ibid 263 - 273

 42   Ibid PN 375 - 395

 43   Ibid PN 414 - 422

 44   Ibid PN 423

 45   Ibid PN 427

 46   Ibid PN 427 - 433

 47   Ibid PN 434 and 445

 48   Ibid PN 460 - 470

 49   Ibid PN 481 - 484

 50   Ibid PN 495

 51   Ibid PN 627 - 633

 52   Ibid PN 497

 53   Ibid PN 497

 54   Ibid PN 505 - 510

 55   Ibid PN 516 - 536

 56   Ibid PN 639 - 650

 57   Ibid PN 652 - 659

 58   Ibid PN 661 - 672

 59   Ibid PN 673 - 690

 60   Ibid PN 699 - 700

 61   Ibid PN 703 - 709

 62   Ibid PN 711 - 716

 63   Ibid PN 732 - 734

 64   Ibid PN 746 - 749

 65   Ibid PN 753 - 758

 66   Ibid PN 759 - 770

 67   Ibid PN 809

 68   Ibid PN 818 - 821

 69   Ibid PN 851 - 871

 70   Ibid PN 873 - 880

 71   Ibid PN 893 - 908

 72   Ibid PN 986 - 994

 73   Ibid PN 913 - 937

 74   Ibid PN 941 - 953

 75   Ibid PN 966 - 975

 76   Ibid PN 970 - 985

 77   Ibid PN 1070 - 1071

 78   Ibid PN 1073 - 1077

 79   Ibid PN 1926 - 1928

 80   Ibid PN 1995 - 2000

 81   Ibid PN 2004 - 2011

 82   Ibid PN 2012 - 2013

 83   Ibid PN 2210 - 2214

 84   Ibid PN 2215 - 2217

 85   Ibid PN 1930 - 1939

 86   Ibid PN 1940 - 1941

 87   Ibid PN 1951 - 1959

 88   Ibid PN 1964 - 1980

 89   Ibid PN 1981 - 1983

 90   Ibid PN 1991 - 1993

 91   Ibid PN 2015 - 2020

 92   Ibid PN 2040 - 2044

 93   Ibid PN 2036 - 2039

 94   Ibid PN 2045 - 2046

 95   Ibid PN 2048

 96   Ibid PN 2053 - 2069

 97   Ibid PN 2072 - 2084

 98   Ibid PN 2085 - 2096

 99   Ibid PN 2097 - 2113

 100   Ibid PN 2104, 2110 - 2111 and 2137 - 2138

 101   Ibid PN 2113 - 2118

 102   Ibid PN 2121 - 2122

 103   Ibid PN 2123 - 2134 and 2140 - 2144

 104   Ibid PN 2145 - 2148

 105   Ibid PN 2135 - 2136 and 2181

 106   Ibid PN 2179 - 2181

 107   Ibid PN 2182 - 2183

 108   Ibid PN 2154 - 2160

 109   Ibid PN 2163 - 2170

 110   Ibid PN 2174 - 2175

 111   Ibid PN 2184 - 2193

 112   Ibid PN 2199 - 2208

 113   Ibid PN 2218 - 2223

 114   Ibid PN 2224 - 2225

 115   Ibid PN 2254 - 2259

 116   Ibid PN 2261 - 2276

 117   Ibid PN 2277 - 2283

 118   Ibid PN 2286 - 2296

 119   Ibid PN 2304 - 2306

 120   Ibid PN 2318 - 2321

 121   Ibid PN 2413

 122   Ibid PN 2325 - 2328

 123   Ibid PN 2415

 124   Ibid PN 2338 - 2340

 125   Ibid PN 2342 - 2347 and 2420 - 2424

 126   Ibid PN 2362 - 2363

 127   Ibid PN 2508 - 2534

 128   Ibid PN 2508 - 2534

 129   Ibid PN 2398 - 2410

 130   Ibid PN 2364 - 2367

 131   Ibid PN 2372 - 2382

 132   Ibid PN 2386 - 2387

 133   Ibid PN 2392 - 2393 and 2412

 134   Ibid PN 2428 - 2444

 135   Ibid PN 2475 - 2478

 136   Ibid PN 2480 - 2484

 137   Ibid PN 2493

 138   Ibid PN 2485 - 2500

 139   Ibid PN 2611 - 2614

 140   Ibid PN 2648, 2658 and 2672

 141   Ibid PN 2629 - 2642

 142   Ibid PN 2643

 143   Ibid PN 2667

 144   Ibid PN 2676

 145   Exhibit A9

 146   Exhibit A8 at Attachment 14 and Transcript PN 2722 - 2724

 147   Ibid PN 2752 - 2756

 148   Exhibit A8 at Attachment TT7 and Transcript PN 2759

 149   Exhibit A8 at Attachment TT14

 150   Transcript PN 2759

 151   Ibid PN 2773 - 2776

 152   Ibid PN 2759

 153   Ibid PN 2778 - 2840

 154   Exhibit R2 at paragraph 9 - 19

 155   Transcript PN 2899 - 2905

 156   Ibid PN 2908 - 2911

 157   Ibid PN 3044

 158   Ibid PN 2912

 159   Ibid PN 2914 - 2918

 160   Ibid PN 2922

 161   Ibid PN 2926

 162   Ibid PN 2929

 163   Ibid PN 2938 - 2939 and Exhibit R2 at Attachment 4

 164   Ibid PN 2929 and 2931

 165   Ibid PN 2939

 166   Ibid PN 2936

 167   Ibid PN 3215 - 3220

 168   Ibid PN 2940 - 2943

 169   Ibid PN 3121 and 3178

 170   Ibid PN 3163 - 3165

 171   Ibid PN 3049 - 3062

 172   Ibid PN 3063 - 3065

 173   Ibid PN 3319 - 3320

 174   Exhibit R2 at Attachment 4

 175   Ibid PN 3126

 176   Exhibit R2 at Attachment 4

 177   Ibid PN 3140 and 3152

 178   Ibid PN 3341

 179   Ibid PN 3321 - 3336

 180   Ibid PN 3336 - 3337

 181   Ibid PN 2951 - 2956

 182   Ibid PN 3106 and 3114 - 3115

 183   Ibid PN 2957 and 3104

 184   Ibid PN 2958 - 2959 and 3315

 185   Bid PN 2961 - 2964 and 3317 - 3318

 186   Ibid PN 3307 - 3309

 187   Ibid PN 3196 - 3201

 188   Ibid PN 2968 - 2979

 189   Ibid PN 2977 - 2982

 190   Ibid PN 3000 - 3013

 191   Ibid PN 3017 - 3023

 192   Ibid PN 3093 - 3097

 193   Ibid PN 3207 - 3214

 194   Ibid PN 3286 - 3304

 195   Ibid PN 3343 - 3356 and 3372

 196   Ibid PN 3360 - 3379

 197   Ibid PN 3422 and Exhibit R3 at paragraph 1

 198   Exhibit R3 at paragraph 6

 199   Transcript PN 3423 - 3425

 200   Ibid PN 3550

 201   Ibid PN 3426 - 3428

 202   Ibid PN 3430 - 3432 and 3580 - 3586

 203   Ibid PN 3586 - 3587

 204   Ibid PN 3433 - 3435

 205   Ibid PN 3985 - 3993

 206   Ibid PN 3436 - 3433

 207   Ibid PN 3997 - 3998

 208   Ibid PN 4003 - 4007

 209   Ibid PN 4017 - 4021

 210   Ibid PN 3474 - 3479 and 4013

 211   Ibid PN 3448 - 3455

 212   Ibid PN 3456 - 3460

 213   Ibid PN 3461 - 3464, 3847 - 3853 and 4022 - 4023

 214   Ibid PN 3465 - 3468

 215   Ibid PN 3469

 216   Ibid PN 3470 - 3471

 217   Ibid PN 3486 - 3494

 218   Ibid PN 3495

 219   Ibid PN 3496 - 3498

 220   Ibid PN 3499

 221   Ibid PN 3500

 222   Ibid PN 3499 - 3507

 223   Ibid PN 3508 - 3517 and 3534

 224   Ibid PN 3535 - 3537

 225   Ibid PN 3538 - 3541

 226   Ibid PN 3518 - 3524

 227   Ibid PN 3525 - 3530

 228   Ibid PN 3545 - 3547

 229   Ibid PN 3549

 230   Ibid PN 3572 - 3580

 231   Ibid PN 3554 - 3564

 232   Ibid PN 3588 - 3593

 233   Ibid PN 3594 - 3617

 234   Ibid PN 3633

 235   Ibid PN 3639 - 3649

 236   Ibid PN 3657 - 3669

 237   Ibid PN 3670 - 3701

 238   Ibid PN 3777 - 3778

 239   Ibid PN 3704 - 3726

 240   Ibid PN 3728 - 3750

 241   Ibid PN 3751 - 3753 and 3759 - 3760

 242   Ibid PN 3755 - 3758

 243   Ibid PN 3761 - 3767

 244   Ibid PN 3782 - 3791

 245   Ibid PN 3854 - 3870

 246   Ibid PN 3792 - 3804

 247   Ibid PN 3811 - 3822

 248   Ibid PN 3834

 249   Ibid PN 3826 - 3828

 250   Ibid PN 3834 - 3838

 251   Ibid PN 3839 - 3842

 252   Ibid PN 3879 - 388

 253   Ibid PN 3931, 3946 and 3966 - 3983

 254   Ibid PN 4022 - 4035

 255   Ibid PN 4072 - 4073

 256   Ibid PN 4218 - 4219

 257   Ibid PN 4090 - 4094

 258   Ibid PN 4319 - 4328

 259   Ibid PN 4353 - 4356

 260   Ibid PN 4111 - 4128

 261   Ibid PN 4147 - 4156, 4232 and 4241 - 4272

 262   Ibid PN 4260 - 4272

 263   Ibid PN 4168

 264   Ibid PN 4238 - 4239

 265   Ibid PN 4404

 266   Ibid PN 4525 - 4428

 267   Ibid PN 4431 - 4504

 268   Ibid PN 4279 - 4284

 269   Ibid PN 4285 - 4293

 270   Ibid PN 4511 - 4524

 271   Ibid PN 4527 - 4535

 272   Ibid PN 4537 - 4557

 273   Ibid PN 4577 - 4590

 274   Ibid PN 4613 - 4614

 275   Ibid PN 4591 - 4594

 276   Ibid PN 4595 - 4598

 277   Ibid PN 4599 - 4603

 278   Ibid PN 4622 - 4625

 279   Final submission by the Health Services Union dated 9 August 2010 at page 1

 280   Ibid and Exhibit A1 at paragraph 8

 281   Ibid at pages 1-2

 282   Ibid at page 2

 283   Ibid

 284   Ibid at page 3 and Exhibit A1 at paragraph 9 and 12

 285   Ibid at page 3

 286   Ibid and Exhibit A1 at paragraph 15

 287   Exhibit A1 at paragraphs 12 - 20

 288   Final submission of Austin Health dated 6 August 2010 at paragraphs 1 and 3

 289   Ibid at paragraph 2

 290   Ibid at paragraphs 5 - 7

 291   Ibid at paragraphs 14 - 15

 292   Ibid paragraph 16

 293   Ibid at paragraphs 8 - 13

 294   Ibid at paragraphs 17 - 19

 295   Ibid at paragraphs 20 - 25

 296   Ibid at paragraphs 27 - 30

 297   Ibid at paragraphs 32 - 36

 298   Ibid at paragraphs 37 - 39

 299   Ibid at paragraphs 40 - 42

 300   Ibid at paragraphs 57 - 58

 301   Ibid at paragraphs 43 - 54

 302   Ibid at paragraphs 60 - 72

 303   Ibid at paragraphs 73 - 77

 304   Ibid at paragraph 78

 305   Ibid at paragraphs 79 - 81

 306   Ibid at paragraphs 82 - 85

 307   Ibid at paragraphs 86 - 89

 308   Ibid at paragraphs 90 - 94

 309   Ibid at paragraphs 95 - 96

 310   Ibid at paragraphs 97 - 98

 311   Ibid at paragraphs 115 - 118

 312   Ibid at paragraphs 121 - 122

 313   Ibid at paragraphs 123 - 125

 314   Ibid at paragraphs 108 - 111

 315   Ibid at paragraphs 126 - 128

 316   Exhibition A1 at paragraphs 12 - 20

 317   AP783945

 318   Exhibit A8 at Attachment TT14

 319   Exhibit R1 at Attachment AT6

 320   Transcript PN 1903 - 1907

 321   Exhibit A8 at Attachment TT14

 322   Exhibit R1 at Attachment AT9

 323   Exhibit A8 at Attachment TT8

 324   Ibid - paragraph 4

 325   Exhibit R1 at Attachment AT9

 326   Ibid at Attachment TT14

 327   Exhibit R1 at Attachment AT9

 328   Ibid at Attachment 4

 329   Transcript PN 4324

 330   Exhibit R2 at Attachment 4

 331   Transcript PN 4626 - 4634

 332   Ibid PN 4570 and 4576

 333   Ibid PN 4577 - 4590

 334   Ibid PN 4270 - 4272, 4368, 4482 and 4499

 335   Ibid PN 4591 - 4593

 336   Ibid PN 4595 - 4598

 337   Ibid PN 4599 - 4600

 338   Ibid PN 4601 - 4603

 339   Ibid PN 4604 - 4605

 340   Ibid PN 4607

 341   Ibid PN 4608

 342   Ibid PN 4609

 343   Ibid PN 4610

 344   Ibid PN 4610

 345   Ibid PN 4611 - 4614

 346   Ibid PN 4615

 347   Ibid PN 4615

 348   Ibid PN 4615 - 4618

 349   Ibid PN 4619 - 4620

 350   Ibid PN 4621

 351   Ibid PN 4622 - 4625

 352   Ibid PN 3834

 353   Ibid PN 3461 - 3464 and 4022 - 4072

 354   Ibid PN 4090 - 4094

 355   Ibid PN 3747

 356   Ibid PN 4270 - 4272, 4368, 4482 and 4499

 357   Ibid PN 3499 - 3507, 4107 - 4109, 4168 - 4169, 4125 - 4150 and 4225

 358   Ibid PN 3500 and 4156

 359   Ibid PN 4551 - 4557

 360   Final Submissions of Austin Health dated 6 August 2010 at paragraph 73

 361   Exhibit A1 at paragraph 15

 362   Exhibit A7 at paragraph 4 and Attachment AR1 and Transcript PN 2644

 363   Exhibit A1 at paragraph 14

 364   Exhibit A1 at paragraphs 16 - 20

 365   [2009] AIRCFB 353

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