Newton v State of Queensland (Queensland Health)

[2014] QIRC 121

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Newton v State of Queensland (Queensland Health)
[2014] QIRC 121
PARTIES:	Newton, Keith
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:	HP/2013/35; D/2012/188
PROCEEDING:	Referral to Full Bench; industrial dispute
DELIVERED ON:	1 August 2014
HEARING DATE:	9 April 2014
MEMBERS:	Deputy President O'Connor
Deputy President Kaufman Industrial Commissioner Fisher
ORDER:	The matter is remitted back to the Commission
for hearing and determination.
CATCHWORDS:	INDUSTRIAL LAW - DISPUTES - CERTIFIED AGREEMENTS - REFERRAL TO FULL BENCH -
JURISDICTIONAL  AND PROCEDURAL
MATTERS - Whether, in carrying out the work level evaluation process in respect of the applicant, there has been any departure from the provisions of the
Health Practitioners' (Queensland Health) Certified Agreement (No 1) 2007
Industrial Relations Act 1999, ss 169, 229
Health Practitioners' (Queensland Health) Certified Agreement (No 1) 2007
CASES:	State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28)(No.2)
APPEARANCES:	Mr G. Butler for the applicant. Mr K. Ryalls for the respondent.
Decision

[1]     The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 ("HPEB1") was certified by Industrial Commissioner Thompson on 3 January 2008. Upon certification, all existing employees covered by HPEB1 were directly "translated" from their existing Professional Officer ("PO") and Technical Officer ("TO") classifications to the new Health Practitioner ("HP") classification structure, as set out in sch 3 of HPEB1.

[2]     Under Phase 2 of the reclassification process, as contained in HPEB1, each work unit was required to prepare role descriptions for each position in the work unit, which was submitted as part of the "Work Unit Proposal". In May 2008, the Clinical Director of Radiography at the Townsville Hospital submitted a Work Unit Proposal seeking a reclassification of the applicant from HP4 to HP5.

[3]     The applicant lodged an appeal against his Phase 2 outcome in November 2010, having previously lodged an "Intent to Appeal" as required by the respondent in December 2009.

[4]     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:

"Insufficient evidence provided to substantiate claims against HP5 level. Holistically the appellant is a high level 4, with regards to Scope and Nature demonstrated HP5 but the evidence provided dated pre May 2008 did not enable the panel to assess as a HP5 level across the other two criteria. A more detailed statement of reasons for the decision is attached."

[5] A dispute notification under s 229 of the Industrial Relations Act 1999 ("the Act") was filed on 23 August 2012. The dispute notification describes the dispute as follows:

"Failure by the respondents to comply with provisions of an enterprise agreement providing for reclassification as HP and failure to implement reclassification level and pay remuneration in accordance with the requirements of the relevant Enterprise Agreements leading to an underpayment of wages."

[6]      A conciliation conference was held on 29 August 2012. No settlement was reached and the matter was referred for arbitration.

[7]     In the arbitration proceedings before the Queensland Industrial Relations Commission ("Commission") on 12 March 2014, his Honour Deputy President Kaufman requested written submissions from the parties on issues he described as "jurisdictional or procedural matters."

[8]      On 26 March 2014, the Vice President referred the matter to the Full Bench.

[9]     The applicant submits that HPEB1 provides a comprehensive, overarching framework (including the procedural and process requirements) for the implementation of the HP classification structure. At the centre of the applicant's submission is the issue of compliance with HPEB1 and the applicant's entitlement to have the processes specified in the HPEB1 applied.

[10]   It is submitted by the applicant that the revised processes were developed by the respondent and relevant unions and/or the Health Practitioners Interest Based Bargaining Group ("HPIBB") after certification by the Commission. The applicant further submits that additional processes were developed and implemented by the parties contrary to the terms of HPEB1 and, as a result, an error in the reclassification process has occurred.

Issues before the Full Bench

[11]    The applicant identifies, in paragraph 14 of the written submissions dated 21 March 2014, the areas where it is submitted that the respondent has departed from HPEB1. They are as follows:

"●	creation of additional evaluation steps and layers beyond those specified in HPEB1;
●	changes to the roles functions and responsibilities of bodies or groups established under and by the enterprise agreement, e.g. creation of two different not a single Work Level Evaluation Team WLET HP1-5 and WLET 6-8 working independently of each other;
●	creation of the HP Oversight Group HPOSG to conduct evaluations,
	classification levels previously determined by the Work Level Evaluation Panel WLEP being changed by one or both of the WLETs; HPOSG or HP Interest Based Bargaining Group HPIBB;
●	referral of all proposed classifications to the Director General for approval and implementation;
●	rejection of WLEP evaluations by the WLET on the grounds that the role description was incorrect or in error;
●	ignorance, rejection or non-consideration of previously accepted specialist or expert level status recognised in the previous Professional Officer classification structure or previous role descriptions;
●	significant modifications to the Appeal process set out in clause 19 including the required composition of the Appeal Panel, the application of additional guidelines and redefinition of the Work Level Statements used in the Appeal Process, restrictions on the nature of appeals and a requirement that successful appellants meet all appeal criteria."

[12]    According to the applicant, the issues before the Full Bench are:

"a.	Does Schedule 5 of HPEB1 specify the process to be followed in Phase 2 Work Level Evaluation Process?
b.	Does Clause 19 Work Level Evaluation Appeal Process of HPEB1 specify the appeal process to be followed and the composition of the appeal panel?
c.	Were the parties to HPEB1 or the HPIBB authorised to develop and apply by agreement additional evaluation and approval processes in addition to or in substitution for the processes specified in Schedule 5 or Clause 19?
d.	If the answer to (c) is in the affirmative can those measures override or supplant the processes specified in HPEB1 without an alteration to the terms of HPEB1 and an appropriate order from the Commission?"

[13]    Clause 19 of HPEB1 deals with appeals. At cl 19.7 it provides:

"The Appeal Panel has the power to consider whether the Work Level Evaluation of all the employee's duties, roles and responsibilities should result in the employee's position being reclassified."

[14]    The appeal to the Appeal Panel is, in our view, akin to a hearing de novo. In short, the Work Level Evaluation Panel ("WLEP") and Work Level Evaluation Team ("WLET") conducted the work level evaluation and came to the recommended classification level. This is the Phase 2 process. The Appeal Panel's sole role is to consider whether the employee's position should be reclassified.

[15]   The submission by the applicant dealing with the adequacy of the process adopted during the Phase 2 process is, in our view, not relevant to the Appeal Panel's conclusion because it must make its own decision (by way of recommendation to the Director General).

[16]    The referral of the procedural and jurisdictional issues to a Full Bench has provided the Commission with the first opportunity to properly consider the scope of what constitutes a "reclassification dispute" that is referred to the Commission for hearing under the HPEB1 processes.

[17]    In our view, given the nature of the task undertaken by the Appeal Panel to consider

whether the Work Level Evaluation of all the employee’s duties, roles and

responsibilities should result in the employee’s position being reclassified we

consider that the role of the Commission is to determine whether the Appeal Panel
erred.

[18]   Thus, in order for the applicant to succeed in arbitral proceedings before a single Member of the Commission, the applicant must demonstrate, that the Appeal Panel erred. The Commission is not concerned with anything that occurred prior to the appeal process.

[19]   Accordingly, the only issues to be addressed by this Full Bench are those matters raised in the last dot point in paragraph 11 with the exception of the restriction on the nature of appeals because, as we said, the role of the Appeal Panels is to decide the issue for itself. In addressing these matters, the Commission is concerned with whether the appeal process was tainted by errors as claimed by the applicant such that the Appeal Panel erred. Nevertheless, for the sake of completeness, and to assist in the disposition of HP appeals generally, we will address the issues of the Health Practitioner Oversight Group ("HPOSG") and whether only a single WLET is permitted by HPEB1. We do not accept the applicant's characterization of the issues as outlined in paragraph 12 above.

Was the Appeal Panel properly constituted?

[20]   As the applicant argues that the Appeal Panel has not been properly formed in accordance with cl 19.6 of the agreement, it is necessary to address those issues. Clause 19.6 provides:

"The Appeal Panel will be formed from the Work Level Evaluation Team formed in accordance with Sections 6.4 and 6.5 of Schedule 5 and will include a representative from the employee's discipline or profession. Members of the Appeal Panel will be different to those members of the Work Level Evaluation Team who conducted the original Work Level Evaluation for that position."

[21]    Clauses 6.4 and 6.5 of sch 5 provide:

"6.4 The QHSSP will establish a Work Level Evaluation Team. Members of the Work Level Evaluation Team will be suitably trained and will include HPs.

6.5 The Work Level Evaluation Team will form a number of Work Level Evaluation Panels to consider applications for Work Level Evaluation of positions. The Work Level Evaluation Panel will include suitably trained representatives, including from the discipline or profession for the position being evaluated, whether as members of the Work Level Evaluation Team or as co-opted members. The composition and number of the Work Level Evaluation Panels will be approved by the HPIBB Group."

[22]   The applicant submits that the Appeal Panel was not constituted with the WLET representation mandated by cl 19.6. However, in making that submission, the applicant was unable to lead any evidence to demonstrate this assertion but seeks to rely on the applicant's belief as set out in paragraph 33 of his affidavit:

"An anonymous appeal panel failed to act in accordance with the relevant provisions stated in the agreement. Further there is no documentation available to confirm the appeal panel was properly constituted or that it reached its decision in a manner that provided procedural fairness. There is no documentation available to confirm which material the appeal panel used in its determination. There is no documentation available to confirm which submitted material was considered nor the basis of the panel's decision. There is no record of discussions between appeal panel members or other Queensland Health employees. The appeal panel did not seek further clarification of the provided documentation nor did it seek additional information from me. There is no documentation available to confirm if the decision of the appeal panel was unanimous. There is no documentation available to confirm that the appeal panel actually conducted an evaluation of my role description."

[23]   The applicant bears the onus of demonstrating that the Appeal Panel was not properly constituted in accordance with cl 19.6. The applicant argues that the respondent has not addressed the point in its submissions and, accordingly, it must be accepted that the appeal panel was not properly constituted. The applicant cannot rely on the silence of the respondent. As noted above, the applicant must prove that there has been an error in the process. On the material before the Full Bench, the applicant has failed to do so.

Did HPEB1 permit the application of additional guidelines and redefinition of
Work Level Statements?

[24]    The applicant submits that the Appeal Panel used additional guidelines and material clarifying the Work Level Statements. Any such materials ought to have been submitted to employees for approval by ballot of employees. The applicant further submits that as this did not occur the development of such material was contrary to the provisions of HPEB1 and was thus unable to be used by the Appeal Panel in reaching its conclusion.

[25]    The respondent submits that the appeal documents and the "Work Level Statements and Guidelines for HP Roles" were agreed under the auspices of the Commission and released to employees. The respondent states that the Guidelines dealt with the application of the Work Level Statements and were designed by the parties to ensure that HPs understood what supporting documentation was required for each particular level.

[26]   We note that all HPs had access to this material in preparing their appeals and as such, they would not have been disadvantaged in preparing their appeal. However, the central theme of the applicant's submissions to the Full Bench is whether such an approach is permitted by HPEB1.

[27]    As we discuss under the heading of "Have the terms of HPEB1 been varied?", it was open to the parties to consider the interpretation and implementation of the HP classification structure during the life of the agreement. It follows that the parties are permitted to develop clarifying material designed to assist those concerned with applying for review, appealing outcomes or those charged with the responsibility for making recommendations or decisions in carrying out their respective roles.

Was the process of the Appeal Panel Flawed?

[28]   The applicant submits that the appeal process which was in fact applied required HPs to individually meet all of the criteria of the position. This is taken from the Toolkit and Checklist document, the content of which was agreed to by the parties to HPEB1. The relevant provision states:

"All criteria for the classification level being appealed must have been met as
at 30 May 2008 in order for the position to be re-classified."

[29]   In response, it is submitted that the classification of an HP was determined by an evaluation of all aspects of the role against the Work Level Statement criteria. A holistic assessment was made on an evaluation of all aspects of the role or position having regard to the responsibilities, the level of complexity, degree of multi- specialty and/or advanced level of knowledge, skill and experience and leadership in the discipline or profession. Further, HPs were not required to meet all Work Level Statements for a HP classification level.

[30]    The reference to criteria appears to be a reference to the criteria in the Work Level Statements of "scope and nature"; "knowledge, skills and expertise" and "accountability". It is apparent that the reference in the Toolkit and Checklist to meeting "all criteria" is a reference to meeting each of the three criteria in the Work Level Statements. Clause 16 of HPEB1 sets out the classification structure and states that it is based on skill and knowledge requirements and recognised increasing levels of responsibility and complexity. In our view, the statement in the Toolkit and Checklist is not inconsistent with the principles of the classification structure. The appeal process was not flawed.

Is the creation of a HPOSG permitted under HPEB1?

[31]   The HPIBB's role under HPEB1 is to provide the principal forum for consultation between the parties on all matters relevant to the interpretation, application, and implementation of the agreement. It is clear from a reading of HPEB1 that the parties recognised that to give effect to the agreement, a mechanism needed to be established to oversee its implementation. The HPIBB was given that responsibility. The parties also made the following express acknowledgment under cl 14.1:

"The parties acknowledge that consensus may need to be reached to effect the implementation of the Agreement and this will be done by an exchange of letters."

[32]   The creation of a HPOSG to conduct evaluations was, according to the applicant, inconsistent with the terms of HPEB1. The applicant argues that, whilst HPEB1 clearly specifies the roles and responsibilities of the HPIBB, WLEP and WLET, and the specific processes to be followed in each of the identified phases (as well as the special nature of Phase 1 and Phase 2), there is no mention of the HPOSG's existence, let alone any authorisation to conduct evaluations.

[33]   Clause 14.8 permits the HPIBB to great sub-groups where appropriate. In his affidavit, Grant Paul Brown sets out the reasons for the establishment of the HPOSG as follows:

"27. The OSG was formed from the HP Interest Based Bargaining Group (HPIBB) as a sub-group to fast-track the work evaluation requests for the Work Level Evaluation Team (WLET HP6-8). The priority of the OSG was to evaluate and make recommendations on all positions recommended at the HP8 level. Thereafter the OSG was required to make recommendations, consider and advise on any anomalies or issues at the HP6 or HP7 level.

28.     The membership of the OSG consisted of 2 members from the Human Resources Branch and 2 from the unions - i.e. one from each union and supported by a secretariat.

29.     I was one of 4 members of the Oversight Subgroup (OSG) due to my roles within the Human Resources Branch.

30.    One of the main reasons for establishing the OSG was to address unresolved issues between the WLEP at Step 3 and Step 4. The creation of the OSG enabled the WLET to refer matters for a second opinion. The OSG essentially become [sic] a circuit breaker by providing research and advice on matters referred to it by the WLET only for levels HP6, HP7 and HP8."

[34]   Whilst the applicant ultimately accepted that the HPIBB had the power to form a sub-group like the HPOSG, it was submitted that the agreement did not permit the sub-group to do anything. It would be a nonsense to suggest that, having regard to the power of the HPIBB to oversee the operation and implementation of the agreement, and the specific power to create sub-groups, that any sub-group established would be deprived of the ability to perform any function.

[35]   The establishment of the OSG was not, as submitted by the applicant, inconsistent with or contrary to HPEB1. Its creation was specifically contemplated by cl 14.8, which provides: "Where appropriate, sub-groups of the HPIBB will be established with the agreement of the parties." Clause 14.9 further provides: "The structure and role of the HPIBB Group and the sub-groups cannot be amended unless agreed by the parties."

Does HPEB1 permit or require only a single WLET?

[36]   The applicant submits that the creation of two WLETs - one dealing with classification levels HP1 to HP5, and the other dealing with HP6 to HP8 - is not permitted under the terms of HPEB1. It was argued that HPEB1 permits the creation of only one WLET. Accordingly, it was said, there was no properly created WLET and, as a consequence, no legitimate Appeal Panel could be formed.

[37]   The Full Bench does not accept this submission. Clauses 6.4 and 6.5 of sch 5 do not, in our view, prevent the creation of a WLET for levels HP1 to HP5 and another for levels HP6 to HP8.

[38]   The Full Bench accepts the respondent's submission that the creation of two work evaluation teams - WLET HP1 to H5 and WLET HP6 to HP8 - is not contrary to the provisions of HPEB1. The two WLETs are conducted under the one banner of a work level evaluation team. The creation of two WLETs is nothing more than an allocation of responsibilities.

Have the terms of HPEB1 been varied?

[39]   It is common ground between the parties that the provisions of HPEB1 are binding on HPs employed in Queensland Health. In Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees, his Honour President Hall wrote:

"Certified agreements, like commercial contracts, are made by agreement.

Certified agreements, like awards, are (by the Act) made binding upon persons

1

who are not parties to the agreement."

[40]   The ability of the parties to the certified agreement to vary the terms of the agreement is contained in cl 67.1, which provides:

"The terms of this Agreement may be varied by a ballot of relevant employees subject to this Agreement in accordance with the Industrial Relations Act 1999."

[41]    The respondent submits - correctly, in our view - that the provisions within HPEB1 provide the ability for the parties to the agreement to consider the interpretation and implementation of the HP classification structure during the life of HPEB1.

[42] The Full Bench further accepts the submission of the respondent that the terms of the agreement have not been varied by the parties which, in turn, does not invoke cl 67 of HPEB1, nor s 169 of the Act.

Conclusions

[43]   Having regard to the referral by the Vice President, the Full Bench has limited its consideration to the procedural and jurisdictional issues involving the application and interpretation of HPEB1. Accordingly, we have not considered those matters which would require a consideration of factual issues which are properly the subject of evidence before the Commission.

[44]   The Full Bench has formed the view that the applicant has not demonstrated any error in the appeal process in respect of the matters referred. The Full Bench is of the opinion that there has been no departure from the substantive provisions of HPEB1.

[45]   The applicant has argued before the Full Bench that he is entitled to have the processes specified in HPEB1 applied. The Full Bench does not cavil with that submission. However, the applicant has not established in what respect there has been departure from the agreement. The distinction needs to be drawn between the submission that there has been a modification or a departure from the processes in HPEB1 and those things done, in accordance with agreement to give it effect.

[46]   The Full Bench concludes that the processes adopted in this matter were not inconsistent with HPEB1.

Order

[47]   The Full Bench orders that the matter be remitted back to the Commission for

1

State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees

(C/2012/28) - Decision (No 2) < [17].