Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award Health
[2014] QIRC 88
•23 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Health [2014] QIRC 088 |
PARTIES: | State of Queensland (Department of Health) United Voice, Industrial Union Of Employees Together Queensland, Industrial Union Of Employees, Queensland The Queensland Nurses' Union Of Employees |
CASE NO'S: | MA/2014/89 |
PROCEEDING: | Determination of the number of modern awards in Health |
DELIVERED ON: | 23 May 2014 |
HEARING DATE: | 21 March 2014 |
MEMBERS: | Deputy President O'Connor |
ORDERS : | 1. The full bench orders that there be: 1. an award covering medical officers; 2. an award covering nurses (including midwives); 3. an award covering health professionals (including health practitioners and dentists); and 4. an award covering all other staff not employed under the Public Service Act 2008. |
| CATCHWORDS: | AWARD MODERNISATION - request from Minister to Commission - object of modernising awards - Commission's function - scope of Minister's request - Health as a priority industry/occupation - appropriate number of modern awards in relation to Health - coverage of modern awards for Health - meaning of 'health professionals', 'health practitioners' - four modern awards to be made - Industrial Relations Act 1999 ss 140BA, 140BB, 140C |
| CASES: | Industrial Relations Act 1999, s140BA, s140BB, s140C |
| APPEARANCES: | Mr R. Rule, for Together Queensland, Industrial Union of Employees, Queensland |
Reasons for Decision
In early February 2014, pursuant to s 140C(1) of the Industrial Relations Act 1999 (the Act)¸ the Attorney-General and Minister for Justice, the Honourable
Jarrod Bleijie requested that the Vice-President of the Queensland Industrial Relations Commission undertake award modernisation in accordance the terms of the Request.This decision, which was given at the conclusion of hearings on 8 April 2014, deals with awards relating to "Health", one of the priority industries/occupations identified in the Request.
Statutory context of the Request
Section 140BA of the Act sets out the principal object for the modernising of awards:
"140BA Object of modernising awards
The principal object of this part is to provide for the
modernisation of awards so they-
(a) are simple to understand and easy to apply; and
(b) together with the Queensland Employment Standards,provide for a fair minimum safety net of enforceable conditions of employment for employees; and
(c) are economically sustainable, and promote flexible
modern work practices and the efficient and productive
performance of work; and
(d) are in a form that is appropriate for a fair and productive
industrial relations system; and
(e) result in a certain, stable and sustainable modern award
system for Queensland."
Section 140BB sets out the Commission's award modernisation function:
"140BB Commission's award modernisation function
(1) The functions of the commission include carrying out a
process (award modernisation process) to reform and
modernise pre-modernisaton awards.
(2) In performing its functions under this part, the commission
must have regard to the following factors-
(a) promoting the creation of jobs, high levels of
productivity, low inflation, high levels of employmentand labour force participation, national and international competitiveness, the development of skills and a fair
labour market;
(b) the need to help prevent and eliminate discrimination in
employment;
(c) protecting the position in the labour market of young
people, employees engaged as apprentices or trainees
and employees with a disability;
(d) the needs of low-paid employees;
(e) the need to promote the principle of equal remuneration
for work of equal value;
(f) the need to help employees balance their work and
family responsibilities effectively and to improve
retention and participation of employees in the
workforce;
(g) the safety, health an d welfare of employees;
(h) the Queensland minimum wage;
(i) the desirability of reducing the number of awards
operating under this Act;
(j) the representation rights of organisations and
associations under this Act.
(3) This section does not limit section 140D."Section 140C empowers the Minister to request, in writing, that the Commission carry out an award modernisation process:
"140C Minister may make award modernisation request
(1) The Minister may give the commission a written notice (an
award modernisation request) requesting that an award
modernisation process be carried out.
(2) An award modernisation request must state-
(a) details of the award modernisation process that is to be
carried out; and
(b) the day by which the process must be completed.
(3) The day stated in the notice under subsection (2)(b) must not
be later than 2 years after the day on which the award
modernisation request is given to the commission.
(4) An award modernisation request may state any other matter
about the award modernisation process the Minister considers
appropriate.
(5) Without limiting subsection (4), the award modernisation
request may-
(a) require the commission to- (i) prepare progress reports on stated matters about
the award modernisation process; and(ii) make the progress reports available as stated in the request; or
(b) state permitted matters about which provisions must be
included in a modern award; or
(c) direct the commission to include in a modern award
terms about particular permitted matters; or
(d) give other directions about how, or whether, the
commission must deal with particular permitted matters.
(6) In this section-permitted matter means a matter about which provisions may
be included in a modern award under chapter 2A, part 3,
division 1 or 2."
In his Request, the Minister noted that in creating modern awards the Commission must have regard to the desirability of reducing the number of awards operating under the Act. Section 140BB(2)(i) operates on the premise that it is desirable that the number of awards operating under the Act be reduced, and that the Commission is to have regard to that when it exercises its award modernisation function.
The Minister, in the Request, mandated that the Commission is to create fewer modern awards and that they may be organised across industry and/or occupational lines as the Commission considers appropriate, subject to the priority industries/occupations listed in the Request.
Awards in relation to Health
Paragraph 19 of the Request requires the Commission to prioritise certain awards. The first industry/occupation identified as a priority, Health, is defined in the Schedule to the Request as:
"Schedule 1 - Clause 19 (a) List of priority industries / occupations - Health
For the purposes of prioritisation, Health includes:a) medical officers
b) nurses
c) health practitioners, including dentistsd) health support services, including professional, technical, operational and administrative officers,
and excludes:
a) employees engaged in the Queensland Ambulance Service in any of the classifications outlined in the Ambulance Service Employees' Award - State 2012;
b) engineering and maintenance in connection with health facilities."
In accordance with paragraph 9 of the Request, the Commission consulted with the major employer and employee representative bodies on the best process to be followed by the Commission when creating modern awards.
To this end, the Vice President established an Award Modernisation Team under the stewardship of Deputy President Bloomfield.
The AM Team, after consulting with the major employer and employee representatives, and having in mind the exhortation in s 140BB(2)(i) of the Act, formed the view that in relation to Health, the award modernisation process would primarily impact upon employees covered by four awards:
· District Health Services – Senior Medical Officers' and Resident Medical Officers' Award – State 2012
· Queensland Health Nurses and Midwives Award – State 2012
· District Health Services Employees' Award – State 2012
· Queensland Public Service Award – State 2012
However, the major parties have differing views as to how many modern awards should be made to cover the health industry. We set out in summary form their respective positions:
State of Queensland (Department of Health) ("the Department") 1. An award for nursing and midwifery staff;
2. An award for Medical Staff; and
3. An award covering administrative, operational, technical, professional and dental officers (including public servants)
Together Queensland
United Voice
Queensland Nurses Union
Australian Workers Union1. An award for Medical Officers;
2. An award for Nurses and Midwives;
3. An award for Health Practitioners (United Voice also maintains that Dental Officers should be covered by this award);
4. An award for professional, technical, operational and administrative officers currently covered by the District Health Services Employees Award; and
5. Public servants employed by the Department of Health to continue to be covered by the Queensland Public Service Award (as modernised).
The AM Team took the view that the present award structure should not be altered. In a document sent to affected parties on 18 March 2014, Deputy President Bloomfield stated:
"This position has been arrived at after considering the following issues:
·the contents of the Attorney-General's Request which require the commission to create fewer modern awards;
·the fact that all employees presently covered by the PS Award are engaged as 'public service officers' under the Public Service Act 2008;
·the fact that all employees presently covered by the DHS Award are engaged as 'health service employees' under the HHBA;
·the fact that while all employees presently covered by the DHS Award are employed by Queensland Health, the provisions of the HHBA stipulate that all such employees will have their employment transferred to a Hospital and Health Service before mid 2015, with this process to commence on 1 July 2014; and
·the capacity of the AM Team to develop a classification structure to accommodate Health practitioners and Dental officers, which seems to be a significant issue in the Unions' desire to create a separate award to cover that group of employees."
Having regard to the conflicting positions taken by the parties, the Vice President referred the question of how many modern awards should operate in the health sector in Queensland to this full bench.
The matter came before the full bench on 21 March 2014 when we directed that interested parties file and serve submissions in support of their respective positions. Following the receipt of those submissions, the Commission sat on 8 April 2014 to enable the parties to address their submissions and, more importantly, comment on the submissions of others.
At the conclusion of that hearing we announced our decision that there would be four modern awards in Health:
·an award covering medical officers;
·an award covering nurses, including midwives;
·an award covering health professionals, including health practitioners and dentists; and
·an award covering all other staff not employed under the Public Service Act.
These are our reasons.
It is readily apparent that there is no dispute that there should be a modern award covering doctors, and another covering nurses and midwives. We agree.
What is contentious is whether health professionals (including health practitioners and dentists) and public servants should be covered by one award as proposed by the Department.
Health professionals, including health practitioners and dentists
The District Health Services Employee's Award - State 2012 (HSE Award) covers a wide range of employees of the Department. They range from cleaners, domestics, and housekeepers to audiologists, dieticians, professional engineers, librarians, optometrists, scientists, dental prosthetists and legal officers, to name but a few.
In 2007 a certified agreement, the Health Practitioners (Queensland Health) Certified Agreement (N0.1) 2007 (HPEB1) was certified by the Commission. That agreement was replaced by the Health Practitioners' (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2) which was certified by the Commission on 3 November 2011. It is readily apparent that the agreements cover many of the classifications of employees in the Professional and Technical streams of the HSE Award.
Clause 4 of HPEB2 sets out the coverage of the Agreement, with respect to Health Practitioners. (The coverage under HPEB1 was almost identical):
"4. Coverage
4.1 This Agreement will apply to Health Practitioners employed by the Queensland Department of Health.
4.2 Health Practitioners are:
(a)employees who:
(i)are in disciplines or professions that:
(A) provide a direct contribution to service delivery across the continuum of care to provide integrated health services in one or more of the following program areas:
(I) acute care;
(II) ambulatory care;
(III) rehabilitation;
(IV) extended care;
(V) integrated mental health;
(VI) primary health care; or
(VII) protection and prevention; and(B) are directly involved in health protection and prevention, assessment, diagnosis and treatment of patients and to the community; or
(ii)directly manage and have a professional responsibility for the clinical services provided by employees who meet the definition in Clause 4.2 (a)(i) of this Agreement; and
(b)employees who are employed in positions:
(i)that were classified in the professional or technical Streams under the Award or the Public Service Award - State 2003 as at the date of certification of HPEB1 on 3 January 2008;
(ii)that were classified as district senior officer or district executive senior officer positions as at the date of certification of HPEB1 on 3 January 2008; or
(iii)that have been classified as health practitioner positions by the Director-General or authorised delegate
4.3Despite anything in Clause 4.2, the parties agree that the health practitioner classification structure does not include employees in the following disciplines or professions:
(a)Accountants;
(b)Computer Systems Officers;
(c)Dental Officers;
(d)Health Information Managers;
(e)Legal Officers;
(f)Librarians;
(g)Medical Education Officers;
(h)Non-Medical Engineers;
(i)Optometrists;
(j)Professional Officers working in policy and program development.
4.4 For the purposes of clarity, the parties record that they presently agree that the health practitioner classification structure includes the list of eligible practitioners listed in Schedule 1. The list of eligible practitioners may be added to during the period of the Agreement with the approval of the Director-General or authorised delegate on advice from the Allied Health Workforce and Coordination Unit and the HPCG."
Schedule 1 – List of Eligible Disciplines/Professions of HPEB2 provides:
"1The list of eligible disciplines and professions that have been agreed by the parties in accordance with Clause 4.4 of this Agreement are:
(a) Audiologists;
(b) Biomedical Engineers and Technicians;
(c) Breast Imaging Radiographers;
(d) Cardiac Perfusionists;
(e) Chemists and/or Radio-chemists;
(f) Child Guidance Therapists;
(g) Child Therapists;
(h) Clinical Measurement Scientists and Technicians;
(i) Dental Prosthetists;
(j) Dental Technicians;
(k) Dental Therapists;
(l) Dietitians/Nutritionists;
(m) Environmental Health Officers;
(n) Epidemiologists;
(o) Exercise Physiologists;
(p) Forensic Scientists and Technicians;
(q) Genetic Counsellors;
(r) Health Promotion Officers;
(s) Leisure Therapists;
(t) Medical Illustrators;
(u) Medical Laboratory Scientists and Technicians;
(v) Music Therapists;
(w) Neurophysiologists;
(x) Neuropsychologists;
(y) Nuclear Medicine Technologists;
(z) Nutritionists;
(aa) Occupational Therapist;
(bb) Oral Health Therapists;
(cc) Orthoptists;
(dd) Orthotists; Prosthetists and Technicians;
(ee) Patient Safety Officers;
(ff) Pharmacists and Technicians;
(gg)Physicists, including Radiation Oncology Medical Physicists, Nuclear Medical Physicists, Radiology Medical Physicists, and Health Physicists;
(hh) Physiotherapists;
(ii) Podiatrists;
(jj)Psychologists including Clinical and Neuropsychologists;
(kk) Public Health Officers;
(ll) Radiation Therapists;
(mm) Radiographers/ Medical Imaging Technologists;
(nn) Rehabilitation Engineers and Technicians;
(oo)Researchers, Clinical Trial Coordinators and Data Collection Officers;
(pp) Scientists - Environment Health;
(qq) Social Work Associates;
(rr) Social Workers;
(ss) Sonographers;
(tt) Speech Pathologists; and
(uu) Welfare Officers. "
Having regard to the fact that health practitioners and dentists are skilled professionals who generally hold some form of tertiary qualification, or equivalent, we are of the view that it is appropriate that they be covered by a separate award. We note that dentists are not covered by HPEB2, but, having regard to the Request, we consider that they should be covered by a modern award. Whilst we, of course, have regard to the desirability of reducing the number of awards operating under the Act, we are of the view that the first object of modernising awards as set out in s 140BA, that modern awards be simple to understand and easy to apply, will best be served by the making of a separate award for health practitioners and dentists. That they are mostly covered by a relatively recently made certified agreement that differentiates them from other employees in Health strongly militates in favour of having a modern award with similar coverage to underpin their wages and terms and conditions of employment. Such an award will be easier to understand than would be the case if specific clauses to deal with their requirements in a more general award, covering significantly different categories of employment, have to be created.
Public servants
Insofar as the public servants employed by the Department are concerned we have decided that they should be covered by the modern award that will apply to other Queensland public servants. There are more than 1,100 employed by the Department, a small minority of the approximately 82,000 employees of the Department. They are employed in two main areas: 758 employed in the 'corporate office' environment, and 351 working in support of the delivery of ambulance services.
Whilst it might be administratively easier for the Department should they be employed under its proposed general award, this is not a cogent reason to treat them differently from the vast majority of public servants in this state. The potential for mobility between departments is a feature of the public service and is one of the attractions for at least some of those who are employed under the
Public Service Act2008 and who seek to pursue a career in the public service. It is easy to imagine the difficulties that they would encounter were they to be covered by a separate Health award and sought to transfer to other departments or to invoke many of the award provisions to which public servants generally are entitled.Conclusion
For the reasons set out above, we decided that there will be four modern awards in Health:
·an award covering medical officers;
·an award covering nurses, including midwives;
·an award covering health professionals, including health practitioners and dentists; and
·an award covering all other staff not employed under the Public Service Act.
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