Health Services Union v Northern Health
[2025] FWC 905
•1 APRIL 2025
| [2025] FWC 905 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Northern Health
(C2024/343)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 1 APRIL 2025 |
Classification dispute arising under enterprise agreement – dispute determined
This decision concerns an application made by the Health Services Union (HSU) under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 17 of the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (2021 Agreement). The application referred to the Commission for determination a dispute that had arisen between the HSU and Northern Health concerning the construction of the classification structure in the 2021 Agreement and its application to 5 members who are employed by Northern Health as theatre technicians: Jason Henriksen; Ranjeshwar Lal; Ibrahim Nayman; Earl Buensuceso; and Martin Ray (the 5 employees). The HSU contended that the 5 employees should be reclassified at grade 5. Northern Health submitted that the employees do not meet the requirements of grade 5, and that although it agreed in 2022 to pay them as grade 4 technicians, their correct classification under the 2021 Agreement is in fact grade 3. The parties’ positions reflected their differing interpretations of the classification structure and its proper application to the 5 employees.
In a decision dated 24 July 2024 ([2024] FWC 1946), I concluded that the interpretation of the classification structure advanced by Northern Health was correct, and that consequently the 5 employees could not be classified at grade 5. An appeal by the HSU to a Full Bench of the Commission was upheld ([2025] FWCFB 5). The Full Bench concluded that the union’s interpretation of the classification structure was the correct one and remitted to me for determination the question of whether, applying the interpretation of the Full Bench, the 5 employees are to be reclassified at level 5 of the 2021 Agreement.
The classification structure is found in schedule 2D of the 2021 Agreement. Clause 10.1 of that schedule sets out a five grade structure for theatre technicians. The classifications for grades 3, 4 and 5 are set out below:
“Theatre Technician Grade 3
Means a Theatre Technician who:
Experience
· has greater than twenty-four (24) months experience (full-time equivalent) working as a Theatre Technician
Qualification
· hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,
· An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such.
Duties
· recognised by the Employer as such;
· is able to work in all surgical and clinical specialties offered in that hospital; and
· operate with a high degree of autonomy and accountability.
· is not required to supervise or train other Theatre Technicians.
Progression
A Grade 3 will progress to Theatre Technician Grade 4 where the Theatre Technician can establish they:
· are able to work in all surgical and/or clinical specialities offered in that hospital;
· have greater thirty-six (36) months experience (full-time equivalent) as a Theatre Technician; and
· undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:
· supervision and training of junior Theatre Technicians (where employed)
· quality and governance
· floor coordination
· rostering.
· Or where mutually agreed, work across multiple hospitals/sites/campus’.
Theatre Technician Grade 4
Means a Theatre Technician who:
Experience
· has greater than thirty-six (36) months experience (full-time equivalent) as a Theatre Technician
Qualification
· hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,
· An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;
Duties
· has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and
· operates with a high degree of autonomy and accountability.
· undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:
osupervision and training of junior Theatre Technicians (where employed)
oquality and governance
ofloor coordination
orostering.
· may be required to perform Higher Duties where the Theatre Technician Manager is on leave.
· or where mutually agreed, work across multiple hospitals/sites/campus’.
Progression
A Grade 4 will progress to Theatre Technician Grade 5 where the Theatre Technician can establish they:· have greater than twelve (12) months experience (full-time equivalent) working as a Theatre Technician Grade 4
· undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:
osupervision and training of junior Theatre Technicians (where employed)
oquality and governance
ofloor coordination
orostering.
Theatre Technician Grade 5
Means a Theatre Technician who:
Experience
· has greater than twelve (12) months experience (full-time equivalent) working as a Theatre Technician Grade 4
Qualification
· hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,
· An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;
Duties
· has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and
· operates with a high degree of autonomy and accountability; and
· undertakes additional given responsibilities determined locally, including, but not limited to supervision and training of junior Theatre Technicians (where employed), quality and governance, floor coordination and rostering; and
· where mutually agreed, work across multiple hospitals/sites/campus’; and
· will be required to perform Higher Duties where the Theatre Technician Manager is on leave.”
I do not propose to set out the entire analysis of the Full Bench of these provisions. It suffices to extract two key paragraphs of the decision. The first concerns the distinction between grades 1 to 3 on the one hand and grades 4 and 5 on the other:
[44] The construction we believe is correct gives rational operation to the classification structure. Grades 1 to 3 apply to theatre technicians performing operational work across the surgical and clinical specialties offered at the relevant hospital. Within Grades 1 to 3, progression occurs by way of the period of service of the technician together with acquisition of qualifications and the scope of work able to be undertaken by the technician. Grades 4 and 5 are distinguished from Grades 1 to 3 by the addition of responsibilities of a supervisory, training, coordination or rostering nature. That is emphasised by the specification of the duties capable of being performed at Grade 3. The duties provision for a Grade 3 technician expressly provides that a technician at Grade 3 “is not required to supervise or train other Theatre Technicians”. There is then time-based progression within the supervisory and coordination grades at Grades 4 and 5 subject to the technician continuing to undertake the type of additional responsibilities that distinguish Grades 4 and 5 from Grades 1 to 3. Unlike the Deputy President, we do not believe that, assessed objectively, it is improbable the parties intended the classification structure to operate in that manner.
The second passage concerns the progression from grade 4 to grade 5:
[57] … A technician is entitled to progress from Grade 4 to Grade 5 if the technician can establish that they have greater than 12 months experience working as a Grade 4 and that they undertake additional given responsibilities of a supervisory type such as supervision and training, quality and governance, floor coordination and rostering. Progression does not depend on establishing the technician has responsibilities in addition to those being undertaken by the technician at Grade 4.
Theatre technicians will progress from grade 3 to grade 4 if, among other things, they perform ‘responsibilities of a supervisory, training, coordination or rostering nature’. As the Full Bench emphasised, a grade 3 employee is not required to supervise or train other theatre technicians. Technicians will progress from grade 4 to grade 5 when they have more than 12 months of experience working as a grade 4 and undertake additional responsibilities of a supervisory type; contrary to my conclusion at first instance, these additional responsibilities do not have to be additional to those performed at grade 4. They can be the same activities that the technicians continue to perform.
Background: agreed facts
Pursuant to my directions, the parties filed a statement of agreed facts. From this document, and oral argument at the hearing, the following background can briefly be stated. Northern Health employs theatre technicians in its surgical department at its campuses in Epping and Broadmeadows. Within the surgical department there are 3 nursing unit managers (NUMs); one theatre technician manager; some 25 theatre technicians; 138 registered/enrolled nurses; and 13 patient service assistants. The theatre technician manager is responsible for the day to day management of the theatre technicians and is classified by Northern Health above the level of a grade 5. Theatre technicians report to the theatre technician manager.
The role of a theatre technician includes the following: ensuring that surgical equipment is ready and available in theatre; assisting with patient positioning; managing clinical waste, rubbish and linen; ensuring perioperative areas and equipment are cleaned in accordance with safety standards; assisting anaesthetists and the surgical team in preparing the surgical site; and assisting with transporting patients.
Each of the 5 employees has been employed by Northern Health for many years. Prior to 1 July 2021, Northern Health classified and paid the employees as grade 4 theatre technicians under an earlier enterprise agreement, the Victorian Public Health Sector (Health and Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (2016 Agreement). The 2021 Agreement introduced a new theatre technician classification structure and set out how employees would translate to that new structure. Clause 35.1 of section 2 of the 2021 Agreement states that from 1 July 2021, employees will translate to the new structure in accordance with the table set out in that clause. This shows that a grade 4 technician under the old structure will become a grade 3 technician under the new structure. Pursuant to this clause, Northern Health reclassified the 5 employees as theatre technicians at grade 3, with effect from the first full pay period after 1 July 2021. After the reclassification, the 5 employees advised Northern Health that they believed that they should be classified as grade 4 theatre technicians. Northern Health conducted a review and decided to pay the 5 employees as grade 4 technicians, backdated to 1 July 2021. Northern Health maintains that this did not amount to a recognition that they were in fact grade 4 theatre technicians under the new classification structure in the 2021 Agreement, and that they have at all times remained grade 3 theatre technicians.
Presently, Northern Health employs the following number of theatre technicians within its surgical department: one theatre technician grade 1; two grade 2 technicians; nine grade 3 technicians; 13 grade 4 technicians (including the 5 employees); and one grade 5.
As to the descriptors of a grade 4 theatre technician in the 2021 Agreement, the parties agreed that each of the 5 employees had greater than 36 months experience as a theatre technician, and that they held a Certificate IV in Operating Theatre Technician Support or an equivalent qualification awarded by a registered training organisation. They also possessed ‘comprehensive knowledge and ability to work in all surgical and clinical specialties offered at the hospital at which they worked’ and operated with ‘a high degree of autonomy and accountability’. They therefore met the requirements of a grade 4 theatre technician in respect of ‘experience’ and ‘qualification’, as well as the first two of the five dot points that appear under ‘duties’ at the grade 4 level in the structure (the agreed elements).
The parties disagreed about whether the 5 employees met the requirements of the third, fourth and fifth dot points under ‘duties’ at the grade 4 level (see above). In respect of the third, which refers to four kinds of ‘additional given responsibilities determined locally’, the parties agreed, among other things, that Northern Health’s grade 4 position description does not refer to floor coordination duties, whereas the theatre technician grade 5 position description does refer to such duties; that prior to February 2023, Northern Health employed a grade 5 theatre technician who was responsible for supervising technicians at grades 1, 2 and 3 and for allocating them to theatres, and that since February 2023 it has employed a theatre technician manager. The parties agreed that at all material times, Northern Health has rostered a theatre technician to be the ‘in charge floor coordinator’ on each weekday shift. This role requires the person to commence work 30 minutes before other technicians; carry and take calls on the ‘in charge telephone’; arrange cover for short notice vacancies on the roster, such as absences due to illness; ensure theatres are appropriately set up; allocate technicians to theatres for the next day; and be the primary point of contact for any issues relating to the work of theatre technicians and for ‘issue escalation’. When the theatre technical manager is available, he is generally rostered to be the in charge floor coordinator.
The parties agreed that Northern Health’s payroll records show that 4 of the 5 employees were paid higher duties allowance for acting as ‘in charge floor coordinator’ on a number of occasions between 2020 and 2023: Mr Nayman – 3 shifts; Mr Henricksen – 12 shifts; Mr Buensuceso – 5 shifts; and Mr Lal – 25 shifts. The parties agreed that the 5 employees worked at least this number of ‘floor coordinator’ shifts. The HSU contends, based on roster records, that they worked many more such shifts.
It was agreed that from 1 July 2021 to 18 April 2024, the theatre technician manager, the grade 5 theatre technician and the technician who was rostered as ‘in-charge’ would generate in RosterOn an allocation sheet that listed the theatre technicians and patient services assistants who were rostered and would post the sheet to the communications board in the surgical department. Northern Health maintains that it did not authorise this practice and says that the allocation sheet was to be given to the ANUM/NUM in charge for transcribing onto the all staff allocation sheet.
Summary of HSU’s submissions and evidence
The HSU submitted that the 5 employees were highly experienced theatre technicians who had consistently performed supervisory or managerial functions in addition to the operational work of a theatre technician. That this meant that they could not be grade 3 technicians, as the Full Bench had clearly stated at [44] of its decision that a grade 3 does not perform supervisory or managerial functions. The HSU said that from mid-2022, and with effect from July 2021, Northern Health had paid the 5 employees as grade 4 technicians, and although this was not conclusive as to their correct grading, it was a matter from which the Commission could draw comfort that, at a minimum, the 5 employees had indeed been working at the grade 4 level since July 2021.
The HSU agreed with Northern Health that to determine the correct classification of the 5 employees, a factual determination was required, and that this revealed that all 5 were properly to be classified as grade 4 technicians from the first full pay period on or after 1 July 2021. In light of the agreed matters, the question of whether the 5 employees had been grade 4 technicians and had completed at least 12 months of service to progress to grade 5 turned on the application of the third, fourth and fifth dot points under ‘duties’ in the grade 4 classification: had they undertaken ‘additional given responsibilities determined locally’ (including in particular ‘floor coordination’); could they be required to perform higher duties where the theatre technician manager was on leave; and where mutually agreed, did they work across multiple campuses.
The HSU relied on the evidence of the 5 employees given in the initial proceeding, as well as on supplementary witness statements and evidence given in the hearing of the matter on remittal. Each of Mr Henriksen, Mr Nayman, Mr Lal and Mr Buensuceso gave evidence that they had undertaken ‘floor coordination’ duties on numerous occasions: from July 2021, Mr Henriksen had worked 106 floor coordinator shifts, Mr Lal had worked 94, Mr Nayman 24, and Mr Buensuceso 6. In this regard, the witnesses referred to Northern Health’s employment records – not just the payroll records that showed the payment of higher duties, but also the roster records, which confirmed the dates on which they had been rostered to work as in charge floor coordinator. The HSU said that the 5 employees had also met the fourth dot point at grade 4, because they had been required to perform higher duties where the theatre technician manager was on leave.
The HSU contended that there were additional grade 4 duties that had been performed by Mr Buensuceso, and also by Mr Ray. It submitted that they had met the third dot point in the grade 4 duties by undertaking an additional responsibility not appearing in the open-ended list of duties in the classification structure, namely by being responsible for the ‘in charge phone’ on weekend shifts. Mr Buensuceso said that this phone was held by the most senior theatre technician on shift on weekends or after hours (on day shift it is held by the floor coordinator) and that when he works afternoon or night shift he is often given the in-charge phone. Mr Ray’s evidence was that he frequently carries the in-charge phone on his weekend shifts, and although he was not in-charge of the shift, he was the point of contact for all theatre technicians on shift. In an emergency, he would receive instructions from the ANUM and communicate them to the other technicians and ensure that the theatre was appropriately prepared for any unscheduled operation. The HSU said that this was an ‘additional responsibility’ that had a managerial character at the grade 4 level.
The HSU said that a further additional responsibility undertaken by both Mr Buensuceso and Mr Ray was that found in the fifth dot point at grade 4: they had performed ‘cross-campus’ work at Epping and Broadmeadows. Mr Buensuceso’s evidence was that pursuant to an agreement dated July 2018, he has worked 20 hours per fortnight at the Broadmeadows hospital in addition to the 60 hours per fortnight he works at Epping, and in this way, from the first pay period on or after 1 July 2021, he also satisfied the fifth dot point under ‘duties’ in the level 4 classification: as mutually agreed, he worked across multiple campuses. Mr Ray’s evidence was that between 2022 and 2024 he had been asked to work at Broadmeadows on some 20 occasions in order to cover short staffing at that campus. He said that on ‘a couple of occasions’ in 2023 and 2024, the theatre technician manager had asked him to fill a shift at Broadmeadows.
The HSU also relied on the employees’ participation in a system whereby technicians were assigned to be a ‘buddy’ for junior technicians, which required them to closely monitor their work, ensure the junior was correctly performing their duties, and be available to answer any questions. The HSU said that this went beyond collegiality and amounted to a formal supervisory role assigned only to senior technicians by reason of their experience.
The HSU said that a factual matter in dispute between the parties was the frequency with which the relevant employees had in fact performed floor coordinator shifts. Northern Health accepted only the payroll records which showed a small number of shifts worked. But the employees had given evidence that they worked more floor coordinator shifts than the payroll records suggested. Northern Health had since produced records of its rosters from 1 July 2021 to 28 February 2025. This showed that many more floor coordinator shifts had been worked than were recorded in the payroll data. The HSU said that the Commission should prefer the roster data, which was prepared for the specific purpose of recording the hours and types of shifts to be worked by its employees. The union said that it was no answer to this contention to say, as Northern Health did, that the roster data was prepared in advance and subject to change, because Mr Henriksen said in his evidence that any last-minute changes to the roster due to absence were recorded in Northern Health’s software by the NUM. In any case, it was not plausible that sickness or unexpected absence could account for such a large discrepancy between the roster data and the payroll data.
The HSU contended that the Commission should determine that the 5 employees were properly classified at grade 4 as of the first pay period on or after 1 July 2021, that they had completed 12 months of service at grade 4 on the first pay period on or after 1 July 2022, and that they continued to undertake additional given responsibilities of a supervisory type and therefore were properly to be classified as grade 5 technicians from July 2022.
Summary of Northern Health’s submissions and evidence
Northern Health contended that the 5 employees were properly classified at grade 3. It submitted that, although in mid-2022 it had elected to treat them as grade 4 employees, clause 75 of the 2021 Agreement stated that all employees were to be classified in accordance with the agreement. This required an objective factual assessment, and such an assessment confirmed that the employees were indeed grade 3 technicians who did not qualify for progression to grade 5 because they did not have greater than 12 months’ experience as grade 4 technicians. In particular, they did not undertake any ‘additional given responsibilities determined locally’.
Northern Health submitted that, consistent with the decision of the Full Federal Court in Hempel (Wattyl) Australia Pty Ltd v United Workers Union [2024] FCAFC 98 (Hempel), the Commission should determine the proper classification of the 5 employees having regard to the ‘major and substantial’ part of their employment (at [141] and following), which was work at the grade 3 level, not work that involved supervisory or managerial responsibilities of the kind contemplated at grade 4 or 5. Because they were properly classified at grade 3, they could not be directed or required to perform duties at the grade 4 level, and could not have the requisite 12 months of experience at the grade 4 level to progress to grade 5.
Northern Health submitted that the 12 months of experience required to progress to grade 5 needed to be experience in positions to which they had been appointed at grade 4, and not just work undertaken as higher duties. This was evident from the grade 4 classification’s use of the term ‘duties’, as well as its reference to additional ‘responsibilities’. Further, the requirement of 12 months of grade 4 experience to progress to grade 5 meant 12 months ‘working’ at that level, not 12 months employed at that level (which the 5 employees might argue they had satisfied because Northern Health had treated them as grade 4 technicians). To the extent that the 5 employees had pointed to additional duties determined locally, principally floor coordination activities, these were higher duties activities at the grade 5 level undertaken by workers at the grade 3 level; they were not the duties of employees occupying grade 4 positions.
Northern Health submitted that it was clear that the 5 employees did not undertake additional given responsibilities at the grade 4 level because they were not required to perform any such tasks. In particular, they were not directed to undertake floor coordinator work as grade 4 technicians. Instead, they agreed to do so on the basis that these were higher duties. The employees had performed the floor coordination shifts voluntarily, not because they were required to do so. Moreover, they were paid the higher duties amount, at the grade 5 level, for the entire shift. To the extent that the employees had not received such payments, this had been an error. Northern Health said that in order for floor coordination to qualify as a grade 4 duty it would need to be done without any right to additional payment in respect of higher duties.
Northern Health further contended that, whether in respect of floor coordination or any other additional or further duties on which the HSU relied in respect of the 5 employees, there had been no ‘locally determined’ arrangement that they would perform such duties at the grade 4 level, and that this was a critical element that was missing in the union’s case. Although it was evident from the Full Bench decision that this did not necessarily have to be some formal agreement, it was still necessary that the Commission be able to identify the local determination of the additional work, and in the present case, there had simply not been any such determination. This important feature of the classification and progression structure served to delimit the duties that a given theatre technician could be required to perform as part of their ordinary duties. The Full Bench noted that this did not mean more than that those responsibilities had been allocated in accordance with local management arrangements (at [56]), but that step must still as a matter of fact have taken place.
Northern Health further submitted that, for each criterion for progression that requires work to be performed, there must be a materiality threshold, and a technician who only occasionally performed a task could not be said to have worked at the grade 4 level for more than 12 months. Northern Health submitted that, at least in the case of Mr Nayman, and certainly of Mr Buensuceso, the floor coordination shifts they had worked did not meet the materiality threshold. Mr Nayman worked some 6 shifts per year, (25 over a 44 month period), and Mr Buensuceso had only worked a total of 6 shifts of the entire period.
As to the reliance of Mr Ray and Mr Buensuceso on their use of the ‘in-charge phone’ on weekends as an additional given responsibility determined locally, Northern Health submitted that this was not an activity of substance as there was in fact no rostered technician in charge on weekends or after hours, as the evidence of Ms Dent had made clear. A technician would simply be asked to carry the telephone to be a point of contact for the ANUM. Although the phone is sometimes called the ‘in-charge’ phone, the person carrying it is not in charge. They are not allocated to be floor coordinator, nor are they in fact in charge of the shift.
As to the HSU’s reliance on the employees’ supposed ‘buddy’ system, there was no formal role, nor any policy, guideline or procedure, nor fundamentally any ‘system’ in respect of buddies. Rather, the use of ‘buddies’ was an informal measure to assist new employees to be oriented into their new work environment. It involved no training or assessment or supervision and no authority, nor did a buddy need to make any observations of the new employee.
Northern Health said that, insofar as the HSU relied on the fifth dot point under ‘duty’ at grade 4, ‘cross-campus’ work for the purposes of the classification structure occurred only where a theatre technician could be directed to perform some of their contracted hours at one campus instead of at another campus. It did not apply where they merely held appointments at two campuses, or where they made themselves available to work at a second campus. Again, Northern Health said that the duties prescribed by the grade 4 classification represented the work that Northern Health could require a grade 4 employee to perform within the scope of their ordinary duties and hours of work. When a theatre technician holds two separate appointments, the hours they work at each campus reflect the minimum expectations of the job.
Northern Health contended that none of the 5 employees could establish that they had greater than 12 months’ experience working as a grade 4 theatre technician. They were properly regarded as grade 3, evidence of which was the fact that Northern Health could not direct or require them to perform duties that fall within the grade 4 classification, or to perform higher duties at grade 5. It followed that they could not have the requisite period of experience working at the grade 4 level, notwithstanding that they are paid at that level and had variously agreed to perform higher duties at grade 5. Accordingly, they did not qualify for progression to grade 5.
Consideration
The Full Bench remitted to me the underlying factual dispute between the parties as to whether the 5 employees have qualified for progression to grade 5 theatre technicians. I am required to determine the dispute in accordance with the Full Bench decision. It is necessary to consider the evidence of the work performed by the employees concerned and determine whether this engages the elements of the grade 4 and grade 5 classifications. The fact that Northern Health has agreed to ‘treat’ the employees as grade 4 theatre technicians does not resolve the question of their proper classification under the 2021 Agreement. Rather, this is a factual question that must be determined on the evidence before the Commission. As will become apparent, the task before me is not singularly one of fact finding. It will require also the resolution of certain further constructional arguments about elements of the classification structure in the 2021 Agreement.
The parties agreed that the 5 employees each had greater than 36 months of experience as theatre technicians as of 1 July 2021 and that they hold a Certificate IV in Operating Theatre Technician Support or its equivalent. They agreed that the 5 employees had comprehensive knowledge and ability to work in all surgical and clinical specialities offered at the hospitals, and also that they operate with a high degree of autonomy and accountability. What was not agreed was whether the employees met the requirements of the remaining three dot points under ‘duties’ in the grade 4 classification, and if they did, whether this amounted to 12 months working at the grade 4 level for the purposes of progression to grade 5.
I reject Northern Health’s contention that, in order for additional responsibilities determined locally to qualify as grade 4 duties and therefore ‘count’ towards the required 12 months’ work for progression to grade 5, it is necessary for the additional duties to have been performed as part of a grade 4 position, and not as higher duties. The grade 4 classification does not set any such requirement. I do not accept that the presence of the word ‘duties’ in the grade 4 classification supports Northern Health’s contention. This word, which forms the third subheading in each of the classifications, does not to my mind signify a contractual duty or the duty associated with a particular position. It is simply a catch-all heading encompassing the substance of work at this level, covering aspects that include aptitude, work, function and responsibility. ‘Duties’ is a high-level organising concept, and contrasts with ‘experience’ and ‘qualifications’, which are the first two subheadings. Further, the classification structure does not speak of positions and roles to which a worker is appointed. Progression, at least at grades 4 and 5, can occur organically, once the required experience is accumulated and the relevant ‘duties’ are undertaken. Further, the progression clause states that it is for the theatre technician to establish that they have met the progression requirements to move to grade 5; why would this be necessary if there had been some prior determination that relevant duties were in fact being performed in a grade 4 position? True it is that additional responsibilities must be ‘determined locally’, but this is a broad concept, according to the Full Bench (see further below). I see no reason why work, such as floor coordination, that is performed as higher duties at grade 5 should not count as an additional responsibility at grade 4. Work that meets the description of the duties in the grade 4 classification will be relevant for classification at that level, regardless of the mechanism by which an employee has come to perform it.
Northern Health submitted that the local determination of the additional duties was an important feature of the classification and progression structure, and that this served to delimit the duties that a given technician could be required to perform as part of their ordinary duties. In my opinion this argument runs contrary to the decision of the Full Bench, which rejected my conclusion that additional responsibilities must be particularised such that it is known which responsibilities will be undertaken (see extracted passage at [53] of the Full Bench decision). The Full Bench went on to note at [55] that Northern Health had accepted that it was sufficient for an employee to progress if the employee has been allocated work of a relevant supervisory type by someone with appropriate management responsibility within the employer’s organisation, and that Northern Health had not suggested that progression was dependent on a discrete designation being made by the employer that the duties would warrant progression. At [56], the Full Bench was perfectly clear that the additional duties ‘determined locally’ meant nothing more than that the responsibilities are allocated to a technician ‘in accordance with local management arrangements that exist in the particular health organisation concerned’. A broad approach has been adopted here, one which I am required to apply.
Northern Health submitted that it needs to be able to roster higher duties to fill vacancies without triggering promotions from grade 4 to grade 5, and that the approach advanced by the HSU would impede this and was impracticable, as it would leave the employer without control over its operations. I do not accept this. For one thing, the undertaking of floor coordination and other responsibilities could not of itself trigger promotions. The educational, experiential and other duty-related requirements would also need to be met. Further, the employer decides who may be asked to undertake additional responsibilities; its managers create the rosters that assign workers to the in-charge floor coordination shifts. If there is a concern that an assignment might lead to a claim for a promotion that the employer does not desire, the employer can disengage the employee in question from the relevant responsibilities.
In my view, the rostering by Northern Health of theatre technicians to perform floor coordination work is a local management arrangement that has allocated additional responsibilities to the technicians concerned. To suggest that there needed to be some articulation beforehand that these were part of a level 4 role or position is not consistent with the broad approach taken by the Full Bench to the structure and meaning of the grade 4 and 5 classifications. Nor is the contention of Northern Health that floor coordination shifts worked as higher duties is not grade 4 work. Further, while the progression provision at grade 4 speaks of 12 months of experience working as a grade 4, this is not a word of limitation. An employee works as a grade 4 theatre technician if the employee meets the requirements of that grade. Floor coordination shifts are an additional responsibility. The responsibilities were determined locally because the shifts were assigned to theatre technicians by the weekly rosters issued on behalf of Northern Health. The actual work that this entailed is not in dispute and was set out in the statement of agreed facts. It was work of a supervisory or managerial nature. It was work at the grade 4 level that was rostered by the employer: the agreed facts included that rosters are prepared by the theatre technician manager and are approved by the nurse unit managers. That the grade 4 position description document makes no reference to floor coordination duties is beside the point. What requires analysis and application is the text of the 2021 Agreement, not a document created by Northern Health in respect of a particular ‘position’ that is said to be at the grade 4 level.
In closing submissions, Northern Health suggested that the in-charge roster was something different from a roster for floor coordination duties. I reject this contention. It is inconsistent with the submissions of Northern Health at first instance, which note that floor coordination shifts are sometimes referred to as in-charge shifts, and also with the agreed statement of facts, which refers to agreed items in respect of the ‘in charge floor coordinator’.
I find that the roster records produced by Northern Health paint a reliable picture of the work actually performed by the employees, including the occasions on which they undertook floor coordination work. Although these records reflect scheduled work, rather than completed work, it is improbable that there would be a significant discrepancy between the roster and the shifts worked. The payroll records, which were preferred by Northern Health, indicate that from 2020 to 2023, Mr Lal worked 25 floor coordination shifts, whereas the roster records show 95 shifts. It cannot be that on 70 occasions, Mr Lal was rostered for these shifts but did not work them. Mr Henriksen’s evidence was that last-minute changes to the roster were recorded by the NUM. I accept this. I agree with the HSU that it is more likely that payroll did not capture all of the occasions on which the relevant employees worked floor coordination shifts.
I find that Mr Hendriksen, Mr Lal, Mr Nayman and Mr Buensuceso, by undertaking floor coordination duties, all performed additional given responsibilities determined locally, and that the manner in which these duties were locally determined was through the roster. In light of my rejection of Northern Health’s argument that additional responsibilities must be performed as part of a grade 4 role or position, the dispute between the parties about whether these duties were required to be performed loses significance; however, I must say that I found this point to be an arid one. Once employees are rostered to perform a shift, they are in my view required to perform it. The performance of this work was not some frolic of an employee who assumed responsibility for tasks that were never assigned to him by the employer. The fact that Northern Health might have excused an employee from the requirement to work the shift, had any of them asked, is beside the point. So is the fact that on one particular occasion in mid-2024, Northern Health sought expressions of interest to cover a particular week of shifts.
Northern Health contended that the additional responsibilities determined locally, and other relevant duties, must meet some materiality threshold. The difficulty that arises is in identifying where any such threshold might lie. On the other hand, a truly negligible quantity might reasonably be put to one side. It seems unlikely to have been intended that an employee could progress to grade 5 when, together with satisfying the other requirements, she or he performed one solitary floor coordination roster, for example. But as the HSU rightly pointed out, there is no need to identify any precise threshold in this case: all that is necessary is to look into the past and decide whether the work performed by the employees was sufficient in order to fall on the right side of any materiality threshold.
In the case of Mr Henriksen and Mr Lal, the answer is clear. The HSU’s reference point for counting time worked for the purposes of the 12-month requirement is 1 July 2021, because it was from the first payroll period on or after this date that the new classification structure under the 2021 Agreement commenced to operate. Between 1 July 2021 and 1 July 2022, the roster records show that Mr Henriksen undertook 63 floor coordination shifts and Mr Lal worked 43. Clearly, any materiality threshold was well and truly met. According to the roster records, Mr Nayman did not work any floor coordination shifts until 31 January 2022 but then proceeded to work another 12 shifts in the course of that year, although there were no shifts from March to June. In my opinion, he too met the materiality threshold. I conclude that Mr Henriksen and Mr Lal had accumulated 12 months of experience at the grade 4 level as of the first pay period on or after 30 June 2022. I further find that Mr Nayman accumulated 12 months of experience at the grade 4 level as of the first full pay period on or after 31 January 2023. The HSU contended that Mr Nayman had referred in his evidence to being asked to work floor coordinator shifts in 2019, and that the Commission could conclude that he had undertaken floor coordination shifts before 31 January 2022. But there is no evidence as to when he did so. Further, I do not consider that floor coordinator shifts worked by Mr Nayman before the deemed commencement of the new classification structure in July 2021 could be relevant to progression to grade 5 under that new structure. The HSU’s alternative submission was that Mr Nayman’s 12 month period ran from 31 January 2022, and in my opinion this is the correct position. I note that meeting any of the ‘additional responsibilities’ under ‘duties’ at grade 4 is sufficient to engage the third dot point. As to the fourth and fifth points, these state only that employees may be required to perform higher duties, not that they will be; and cross campus duties are by mutual consent. These are not necessary conditions for meeting the grade 4 level.
In relation to Mr Henriksen, Mr Lal and Mr Nayman, it is also clear in my view that, as required for progression to grade 5 in accordance with the Full Bench’s interpretation of the classification structure, they continued to perform the additional responsibilities beyond the 12 month period. There is no threshold for how long the duties must continue to be performed at grade 5, provided they are not of a de minimis order. Although there was a marked decline in the requirement for technicians to work floor coordination shifts from February 2023 because of the appointment of the theatre technician manager, by this time all three men had become grade 5 technicians. Further, I do not understand the Full Bench decision to indicate that, once an employee has progressed to grade 5, they may against their will regress to the lower level if they cease to continue to undertake particular responsibilities. The Full Bench concluded that progression from grade 4 to 5 was time-based, provided an employee at grade 4 continued to undertake the type of additional responsibilities that distinguish grades 4 and 5 from those at lower levels (at [44]). The requirement that the employee continue to perform the additional duties was, in the analysis of the Full Bench, a condition for attaining promotion from grade 4 to grade 5, not a condition of maintaining a classification to which the employee had already advanced. Progression is time based, and progression moves only in one direction.
Related to Northern Health’s contention that additional responsibilities and other grade 4 duties would need to meet a materiality threshold was a submission that in order to determine a worker’s correct classification, it is necessary to consider what is the ‘major and substantial’ part of their employment. It was said that this approach, referred to by the Full Federal Court in Hempel, would lead the Commission to conclude that the major and substantial part of the 5 employees’ employment was work at the grade 3 level, namely the performance of theatre technician work that did not involve supervisory or managerial responsibilities. I do not accept this. First, the Full Court in Hempel made clear that, while it could provide helpful guidance, the ‘major and substantial employment’ test was not determinative of an employee’s correct classification (at [145]). Secondly, the test is in my view of less assistance in cases where there are clear overlaps between classifications. It is common that a higher classification of work will include work at the lower levels. That was the case here. Further, as the HSU pointed out, the additional responsibilities referred to in the grade 4 level are by their nature more occasional than other technician tasks that are performed every day. One would not expect a technician at grade 4 to supervise, train, or roster employees all the time. For the same reason, one could not sensibly count time for the purposes of the ‘12 month’ requirement for progression to grade 5 only in respect of the particular units of time when those particular tasks were being performed.
Mr Buensuceso undertook 4 floor coordination shifts in 2022: one in January and one in February, one in June and one in November. In contrast to Mr Nayman, these shifts did not continue over the course of a year, nor did they span an entire 12 month period. Ten months elapsed from the first to the fourth, and the sporadic timing of the shifts is such that it is not meaningful to speak of a 10-month period of working floor coordination shifts. In addition, Mr Buensuceso did not continue to work floor coordination shifts beyond a 12 month period of undertaking duties at grade 4 (I address the other elements below), because he did not work another floor coordination shift until 30 September 2024. His sixth floor coordination shift occurred in February 2025. These shifts are small in number and ad hoc. There were but 6 shifts spread over 3 years. One could not seriously say that these 6 shifts represent 12 months of additional responsibilities determined locally, or that they continued beyond the 12 months. They were piecemeal and very infrequent.
The HSU submitted that the 6 floor coordination shifts worked by Mr Buensuceso showed that he was not doing solely the operational work of a theatre technician, as would be expected if he was a grade 3 employee, and that through his work as floor coordinator he was undertaking additional supervisory or managerial functions. I agree. As noted by the Full Bench in its decision, the grade 3 classification clearly stated that an employee at that level is not required to supervise other theatre technicians. The fact that Mr Buensuceso undertook the floor coordination shifts, few though they were, is evidence that he was performing additional responsibilities at the grade 4 level. But he has not accumulated 12 months of work at this level, for the reasons given above.
What of the work performed by Mr Buensuceso as a ‘buddy’? In my assessment, the use of ‘buddies’ was, as Northern Health contended, an informal measure to assist new employees to be oriented into their new work environment. It involved no training or assessment. As noted in the statement of agreed facts, all theatre technicians are expected to provide collegiate advice and support, including to more junior theatre technicians. Contrary to the contention of the HSU, I find that working as a buddy does not go beyond collegiate advice. It does not amount to supervision. A buddy does not have any authority over the subject, nor do I discern any formal positive duty of a buddy to go beyond what one would expect of any conscientious and reasonable employee, which is to be helpful and collaborative. The evidence does not sustain a conclusion that a buddy is required to train the new employee, or that there is any policy or procedure in place governing the so-called ‘buddy system’. The HSU sought to establish that because there is no specific training provided by Northern Health to new employees about the particular theatre set up and related arrangements at each of the facilities, this fell to the buddies to attend to. I reject this. It is not born out by the evidence. Nor is the contention that the buddy system is a means by which Northern Health ensures that grade 1 theatre technicians are supervised, as they are required to be under the classification structure. I find that the work of a buddy is not an additional responsibility determined locally for the purpose of the grade 4 classification. Further and in any event, I find that the work performed by Mr Buensuceso as a ‘buddy’ was very infrequent and insubstantial: some 5 shifts since July 2021, and only for several individuals.
I find that the task undertaken by Mr Ray of holding the so-called ‘in-charge’ telephone on weekends and after hours is not a matter of substance. It is an important task, like many simple duties. But it is plainly not a duty at grade 4. It is clear that carrying the phone has nothing to do with being in charge of something. And it would appear that anyone rostered at the relevant time can carry the phone. Mr Ray said that he would go in early to get the phone so that no one else took it. There is much to admire in Mr Ray’s approach to his work. He considers that because he is one of the more senior technicians, he ought to carry the phone. I have no doubt that he is a good person to have carrying the phone when there is an emergency. But the task fundamentally involves relaying messages. It is not supervisory or managerial in content or in nature. It is a basic facilitative task and not work at the grade 4 level.
Both Mr Buensuceso and Mr Ray were said by the HSU to work across campuses within the meaning of the fifth dot point in the level 4 classification. In my opinion, the union’s approach to the meaning of these words is unduly broad. I do not accept that these particular words are so expansive as to contemplate the mere fact of working at two campuses. There is nothing about such a circumstance that is suggestive of higher level work. In my view, the expression ‘work across multiple campuses’ implies some coordinated activity as between the campuses, and something that is the subject of agreement between the employer and the particular employee. I do not consider that it simply means ‘work at more than one campus’. The word ‘or’ is also of relevance, as it indicates that the fifth dot point is an alternative to the fourth, which concerns higher duties in the absence of the theatre technician manager. It could not be the case that simply working at two campuses is a task of similar seniority to performing higher duties in the absence of a manager. A grade 1 could work at two campuses. Further, the requirement that the relevant arrangements be mutually agreed must, to my mind, connote something more than the fact that the employer (Northern Health) has engaged the employee to work at two campuses, because the reference to mutual agreement would then be entirely redundant. Plainly, an employee could not work at two campuses without the employer’s agreement. In my view, the clause requires some coordinated work across, not just any work at, two or more campuses, and this coordinated work must be agreed to by the parties.
The evidence does not establish that Mr Buensuceso or Mr Ray perform cross campus work of this kind. Mr Buensuceso holds separate appointments for each hospital, not one appointment requiring him to work across both campuses. Mr Ray is engaged at the Epping campus and has on various occasions been offered shifts at the Broadmeadows campus. He does not work across multiple campuses by mutual agreement in the manner referred to above.
It follows that in my assessment, neither Mr Buensuceso nor Mr Ray have greater than 12 months experience working as a grade 4 theatre technician and accordingly they have not progressed to the grade 5 level.
Conclusion
Applying the decision of the Full Bench, the dispute is determined as follows:
· Mr Henriksen and Mr Lal accumulated 12 months of experience at the grade 4 level as of the first pay period on or after 30 June 2022 and continued to undertake additional responsibilities determined locally after that time. They became grade 5 technicians in the first pay period in July 2022.
· Mr Nayman accumulated 12 months of experience at the grade 4 level as of the first full pay period on or after 31 January 2023 and continued to undertake additional responsibilities determined locally after that time. He became a grade 5 technician in the first pay period in February 2023.
· Neither Mr Buensuceso nor Mr Ray have greater than 12 months experience working as a theatre technician grade 4 and accordingly they have not progressed to the grade 5 level. Although Mr Ray is treated as grade 4, he is a grade 3 technician. Mr Buensuceso is a grade 4 technician.
DEPUTY PRESIDENT
Appearances:
A. White of counsel for the Health Services Union
S. Kelly of counsel for Northern Health
Hearing details:
2025
Melbourne
21 March
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