Morton v State of Queensland
[2014] QIRC 193
•21 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Morton v State of Queensland [2014] QIRC 193 | ||
| PARTIES: | Morton, Bruce | ||
| (applicant) | |||
| v | |||
| State of Queensland | |||
| (respondent) | |||
| CASE NOs: | HP/2013/6; D/2012/197 | ||
| PROCEEDING: | Action on industrial dispute | ||
| DELIVERED ON: | 21 November 2014 | ||
| HEARING DATE: | 12 February 2014 | ||
| MEMBER: | Deputy President O'Connor | ||
| ORDERS: |
|
aside;
2. The matter of determining the applicant's
appropriate classification level is remitted to
Queensland Health; and3. The assessment of the applicant's classification level is to be undertaken on or before 31 March 2015.
| CATCHWORDS: | INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Dispute concerning the appropriate classification level of the applicant's position - Where the applicant's position was assessed as part of a new classification structure - Job descriptions, roles and responsibilities evaluated against new work level statements - Where the applicant unsuccessfully appealed his classification using the internal appeal mechanism available to him - Appeal process unsuccessful - Failure by appeal panel to consider all work level statement descriptors - Whether constitutes an error of process - Appropriate remedy Determined omission constitutes an error of process | ||||
| Industrial Relations Act 1999, ss 229, 230 | |||||
| CASES: | Cypressvale Pty Ltd v Retail Shop Lease Tribunal | ||||
| [1996] 2 Qd R 462 | |||||
| Parke v State of Queensland (HP/2013/16) – | |||||
| Decision < | |||||
| |||||
| Employees v State of Queensland [2014] QIRC 053 | |||||
| APPEARANCES: | Mr R. Rule of Together Queensland, Industrial Union of Employees, for the applicant. | ||||
| Mr K. Ryalls for the respondent. |
[6] As the applicant's description of the subject matter of this dispute suggests, the
dispute is essentially about the appropriateness of a classification adopted by the
respondent in the course of a reclassification process. The Commission's powers in
deciding on such a dispute are confined to correcting any error in the reclassification
process that may have occurred in the agreed reclassification process. It is therefore
incumbent upon any applicant who has referred a classification dispute to the
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Commission to demonstrate that an error has occurred in the process. That is precisely what the applicant in this case must prove to the Commission, to the appropriate standard of proof, in order to succeed and be granted the orders he seeks.
Background
[7] The applicant commenced his role as a Director of Environmental Health, West Moreton Public Health Unit in July 2007. The role performed by the applicant involves the management and clinical supervision of two "Team Leader Environmental Health" positions at a HP5 level, a "Senior Health Officer" (specialising in water) at a HP4 level, and three "generalist" Environmental Health Officers at a HP3 level.
[8] The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of QH engaged as Health Practitioners. The process for implementing the new classification structure was set out in cl 18 of HPEB1.
[9] Phase 1 allowed direct translation of employees who met certain criteria. Mr Morton translated from Professional Officer Level 5 to Health Practitioner Level 5 (HP5).
[10] Phase 2 allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements. The applicant's position was evaluated by the Work Level Evaluation Panel ("WLEP") at HP6 but was later moderated by the Work Level Evaluation Team ("WLET") at HP5.
[11] The applicant appealed the decision of the WLET pursuant to cl 19 of HPEB1.
[12] Clause 19.7 of HPEB1 provides:
"The Appeal Panel has the power to consider whether the Work Level in the employee's position being reclassified."
[13] By letter dated 11 April 2011 under the hand of John Cairns, Deputy Director- General, Human Resource Services, the applicant was advised that the appeal panel had rejected his appeal and concluded:
"The duties and accountabilities could not be matched to work level statements at the nominated level. Evidence and role description demonstrate performance at HP5 level. Holistically, claims of duties at HP6 level not substantiated and statewide accountabilities not required of the role. A more detailed statement of reasons for the decision is attached."
[14] Prior to the introduction of the Health Practitioner classification process under HPEB1, all 11 Environmental Health positions were regarded as of equivalent standing and classified at the same level.
[15] Through the phase 2 process, a number of Directors of Environmental Health sought review and were reclassified to HP6.
The evidence and argument before the Commission
[16] The applicant argues that the Directors of Environmental Health are required to undertake the same role and have identical duties, responsibilities and expectations.
[17] In his evidence to the Commission the applicant said:
"We were all evaluated – at the first part of phase 2 with the work unit
proposal, we were all recommended by the work level evaluation panel as
HP6. At a higher level it wasn't supported, knocked back for want of a better
term, and we all remained on HP5. We weren't evaluated higher. Then, my
understanding, all of us appealed, the whole 11 directors of environmental
health appealed. So we submitted our individual appeal, we submitted our
individual evidence and the outcome, as part of the appeal evaluation, was that
four directors of environmental health were recommended at the HP6 and was
approved by the G-G [sic], or whatever the process is. The remainder of the 11
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remained at HP5, yes."
[18] The Commission's attention was drawn to Queensland Health's "Health Practitioner Communique" of 1 July 2009 which stated:
"It is imperative for the workforce, Queensland Health, Queensland
Government, unions and every health practitioner that the principle of
comparable remuneration for comparable work is adhered to. If we do not get
this right, the workforce will be disenfranchised. We cannot have a situation
where two employees doing identical or very similar roles are remunerated at
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different levels."
[19] In support of the submission that his position was wrongly classified at the HP5 level, the applicant relies on the evidence of Ms Sharon Jurd, the Director of Environmental Health at the Gold Coast Public Health Unit, Gold Coast Hospital and Health Service.
[20] In cross-examination, Ms Jurd said that she believed that the outcome of the classification process was inequitable. She said that the roles and responsibilities of each of the Directors of Environmental Health positions were essentially the same.
[21] In cross-examination the following exchange took place:
"Just for my next couple of questions, I would just like to hand you a copy of your own role description, which I know you've got in your affidavit, but I've got a highlighted one that everyone else has got, and I would also like to hand you Mr Morton's role description, which is BM1. So just to follow on from those questions, in relation to your role description, if I can take you to the
highlighted – I'll get straight to the point – the highlighted sentence that I've got
that I've highlighted in your role description: "Strategically plan, implement and evaluate a state-wide program targeting the sale and supply of tobacco products to children." Now, does that appear at all in Mr Morton's role description?---No, it does not.
So that's different to Mr Morton's role description?---It is.
And if I can turn – if you can turn over the page please to number 3, leadership
and management, and, once again, I've highlighted some words within that first dot point: "Services, research and projects across multiple districts and local governments and across the state for the program targeting the sale/supply of tobacco products to children". Now, does that appear in Mr Morton's role description?---No, it does not.
Okay. So you would agree that that's different to Mr Morton's role 15
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description?---Yes. It is a minor difference, yes."
[22] Ms Jurd's evidence was that notwithstanding her responsibility for oversight of a strategic plan to implement and evaluate the state-wide program targeting the sale and supply of tobacco products to children, the respective roles performed by the applicant and Ms Jurd were the same. With the organisational change within Queensland Health, the state-wide tobacco program ceased in 2011.
[23] The respondent argues that the State wide program targeting the sale and supply of tobacco products to children was a major difference in the roles held by the applicant and Ms Jurd as at 30 May 2008. It was further submitted by the respondent that it was this State wide aspect of Ms Jurd's role which was recognised by the Appeal Panel in re-assessing Ms Jurd's classification.
[24] However, the evidence of Ms Jurd was:
"So at some stage during the life of the tobacco reference group other environmental health officers were invited to particular meetings or - - -?---We
were always trying to continuously improve and I – I mean, it ran for such a
long time, I really don't know who the attendees were all the time, but,
essentially, it was there to give oversight to the program and to allow that
continuous feedback in terms of whether it was delivering on what it was set
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up to achieve."
[25] In the affidavit of Donald Hamilton he states that the WLET members noted the similarity of the contents of the Work Unit Proposal (WUP) and the Employee Initiated Application for the 11 Directors of Environmental Health positions submitted for evaluation. In particular, his affidavit notes:
"The WLET 6-8 concluded that the Directors had similar-
Scope of professional advisory role influenced health services within
the designated geographic area Knowledge Skills Expertise requirements Accountability for leading a team to deliver environmental health
advisory services within a designated geographic area, and
Collaboratively shared state-wide consultative/expertise. The WLET
concluded that the Directors collectively sharing individual expertise in
the different aspects of environmental health, food, fish poisoning,
"6
tropical health and water borne.
[26] In cross-examination, Mr Hamilton confirmed the effect of his evidence:
"So it's your evidence that while they were all evaluated at the same level in the initial process by the WLEP, that the WLET could not distinguish between them to an extent that they recommended varying classifications?---Correct.
They were all recommended again for the same classification level?---Correct.
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That's on page 3 of DGH5."
[27] Mr Hamilton states in his affidavit that the only difference that the WLET 6-8 could identify between the eleven positions of Directors of Environmental Health Services (including Morton, Shillig, Figueroa and Florian) was the size of the subordinate teams managed. However, it is not apparent to the Commission that the respondent relied on the size of the subordinate teams managed as a factor in the classification process. Indeed, the applicant submits that the size of the subordinate team managed was not a relevant consideration as this was not a criterion in the Work Level statements.
[28] It is not apparent to the Commission from the Appeal Review Statement why the
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Appeal Panel considered some of the Work Level statements, and not others.
[29] The Appeal Panel assessed four HP5 Work Level statements which were not addressed in the applicant's appeal application. The Work Level statements assessed by the Appeal Panel included seven Professional Clinical statements and no Professional Management statements. Only one HP6 descriptor was meet, namely, HP6-19.
[30] The applicant contends that the Appeal Panel erred in not addressing any HP6 Professional Management Work level statements.
Is the Appeal Panel required to give reasons?
| . |
[31] It was argued by the respondent that clause 19 of HPEB1 does not require the Appeal Panel to provide to the applicant its reasoning related to the assessment of the evidence submitted by the applicant. What were provided to the applicant were reasons which were directed towards his role description.
[32] In Public Service Board v Osmond (1986) 159 CLR 656, the High Court held that there is no general common law duty on decision-makers to provide reasons for administrative decisions in Australia.
[33] In Cypressvale Pty Ltd v Retail Shop Lease Tribunal, Fitzgerald P said:
"… the law has moved on in the decade since Osmond…
… even Public Service Board v Osmond does not hold that fairness does not
ordinarily require that reasons be given for decisions which affect rights and
liberties; its conclusion was rather that at that time, those who made
administrative decisions were not required to provide reasons because that was
established by a long line of authority. It is not really surprising that, in a
complex society in which there is a proliferation of tribunals with power to
affect citizen's rights and liabilities, the courts have come to insist that it is an
9
incident of a duty to act fairly that decisions be adequately explained."
[34] In my view, in order for the Commission to properly perform its functions in determining a reclassification dispute it was necessary for the Appeal Panel to provide a basic explanation of the fundamental reasons which led it to reach its conclusion that the applicant should be classified at HP5.
[35] There is no requirement that the reasons incorporate an extended dissertation of the
factors upon which the Appeal Panel reached its conclusions. The adequacy of
reasons, in the sense of their sufficiency in content and form, has to be looked at in
the context of the nature of the question to be decided and other factors such as the
10
functions, talents and attributes of the decision maker.
[36] I am of the view that the Appeal Panel erred in considering some descriptors which were not part of the applicant's appeal application, and by not addressing or giving reasons for a number of Work Level Statements. As a consequence, the Appeal Panel fell into error.
[37] Having regard to the nature of the error in the process, the appropriate course for the Commission to adopt is to have the decision of the Director-General set aside and the matter referred back to Queensland Health for determination of the appropriate classification level.
Orders
[38] For the reasons advanced above, I make the following orders:
1. The decision of the Director-General is set aside;
2. The matter of determining the applicant's appropriate classification level is remitted to Queensland Health; and
3. The assessment of the applicant's classification level is to be undertaken on or before 31 March 2015.
Decision
[1] On 7 September 2012, Mr Bruce Morton ("the applicant"), through his union, Together Queensland, Industrial Organisation of Employees, gave notice to the Industrial Registrar of an industrial dispute under s 229 of the Industrial Relations Act 1999 ("the Act"). Although the notice named "Queensland Health" as the other party to the dispute, in this decision, I regard the proper respondent as the State of Queensland. The subject of the dispute was described as: "The appropriate Health Practitioner (HP) classification level of Directors of Environmental Health."
[2] That dispute was assigned the matter number D/2012/197, and proceeded to a conciliation conference before Commissioner Thompson on 25 October 2012. After hearing the parties at the conference, the Commission considered that conciliation had failed and that the parties were unlikely to resolve the dispute, and so, in accordance with s 230(3)(b), the dispute was referred for arbitration.
[3] In exercising the broad powers conferred on the Commission for the purpose of taking action for settling industrial disputes, the dispute was assigned a new matter number, HP/2013/6, before further proceedings took place.
Subject of dispute and issue for determination
[4] Essentially, what the applicant is seeking through the arbitration of this dispute is to have his position as "Director of Environmental Health, Southern Area Health Services" reclassified from its current classification as "HP5" to the higher classification of "HP6", and be paid at the higher rate which that classification entails.
[5] The specific orders sought are set out in the following terms:
"1.
That the Health Practitioner position number 121265, identified on Work Unit Proposal 0043 as Director of Environmental Health, Southern Area Health Services be reclassified to the substantive classification of HP6.
2.
That Mr Morton be paid the difference between his rate of pay at the level of HP5 and the substantive rate of HP6 for the period he was engaged in the role from 7 September 2012.
3.
That Mr Morton be paid the difference any monies owed after adjustments of allowances and leave loading paid to Mr Morton while engaged in the role from 7 September 2012."
1
Parke v State of Queensland (HP/2013/16) – Decision < [18]; Together
Queensland, Industrial Union of Employees v State of Queensland [2014] QIRC 053 [15].
2
T1-22.
3
Exhibit 4, attachment DGH6.
4
T1-24–5.
5
T1-27.
6
Exhibit 4, para [32]
7
T1-35.
8
See Exhibit 1, attachment BM8.
9
[1996] 2 Qd R 462, 475–6.
10
Ibid, 485 (McPherson and Davies JJA).
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1
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