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

[2014] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Together Queensland, Industrial Union of
Employees (for Gregory Shillig) v State of
Queensland (Queensland Health) [2014] QIRC 053
PARTIES:	Together Queensland, Industrial Union of
Employees (for Gregory Shillig)
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:	HP/2013/7
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	11 March 2014
HEARING DATE:	13 November 2013
20 December 2013 (Applicant's submissions) 22 January 2014 (Respondent's submissions) 31 January 2014 (Applicant's submissions in reply)
MEMBER:	Industrial Commissioner Fisher
ORDERS :	1. The decision of the Director-General,

Queensland Health is set aside.

2.      The appeal application of Mr Shillig is

remitted to Queensland Health for reconsideration and determination of the appropriate classification level of the position occupied by him.

CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as health practitioners - Job descriptions, roles and responsibilities evaluated against new work level statements - Appeal process unsuccessful - Evidence - Different classification levels determined - Size of subordinate teams managed - Reclassification process - State-wide responsibilities and accountabilities - Failure by appeal panel to consider all work level statement descriptors - Determined omission constitutes an error of process - Remedy - Determined decision of Director-General be set
aside - Appeal remitted for reconsideration and
determination of appropriate classification level.
CASES:	Industrial Relations Act 1999, s 230
Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) - Decision Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
APPEARANCES:	Mr R Rule for Together Queensland, Industrial Union of Employees, the Applicant. Mr K Ryalls for the State of Queensland (Queensland Health), the Respondent.

[1]     Together Queensland, Industrial Union of Employees (TQ) filed a Notice of Industrial Dispute on behalf of their member Greg Shillig who at the time was employed as Director, Environmental Health Services (DEHS), Brisbane Southside Public Health Unit, Southern Area Population Health Services of Queensland Health (QH). (Mr Shillig's position is now Manager, Environmental Health, Metro South Public Health Unit, Metro South Hospital and Health Service.) The Notice of Industrial Dispute concerned the classification of Mr Shillig's position and another six positions of Director, Environmental Health Services throughout the State, who had been classified at the HP5 level rather than HP6.

[2]      As the dispute was unable to be conciliated it was referred to arbitration. All health practitioner (HP) disputes that were referred to arbitration were given new HP case numbers to specifically identify the health practitioner who disputed their classification level. However, the Applicant remains the notifier of the dispute, in this case, TQ.

[3]      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 Clause 18 of HPEB1. Phase 1 allowed direct translation of employees who met certain criteria. Mr Shillig translated from Professional Officer Level 5 to Health Practitioner Level 5 (HP5).

[4]      Phase 2 allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements. Mr Shillig took up the opportunity and a role description (RD) was developed and a Work Unit Proposal (WUP) was submitted in May 2008. His position was evaluated by the Work Level Evaluation Panel (WLEP) at HP6 but was later moderated by a Work Level Evaluation Team (WLET) at HP5.

[5]      Mr Shillig then appealed that decision, as he was entitled to do, under clause 19 of HPEB1. An Appeal Panel, which was established under clause 19 for the purposes of determining appeals, had the power to consider whether the Work Level Evaluation of all of the employee's duties, roles and responsibilities should result in the employee's position being reclassified: clause 19.7. The Appeal Panel made a recommendation about the classification of Mr Shillig's position to the Director-General, who through John Cairns, the Deputy Director-General, Human Resources, advised Mr Shilling that his appeal had been unsuccessful. In his letter of 11 April 2011, Mr Cairns said:

"The appeal panel found: The duties or accountabilities could not be matched

to work level statements at the nominated level. Insufficient relevant evidence provided to substantiate any claims at HP6 level. Role does not require

statewide leadership or accountability at a HP6 level. A more detailed
statement of reasons for the decision is attached."

[6]      That statement of reasons, the Appeal Review Statement, then set out the Work Level Statement (WLS) Descriptors and various comments. The comments are generally to the effect of "Meets" or "Does Not Meet." Of the 14 descriptors considered, only five received a more detailed comment of one to two sentences. It concluded with the findings italicised above.

[7]      Mr Shillig contends that his position should be classified at HP6 rather than the HP5 level at which it is presently classified on the basis that all 11 DEHS positions "are required to perform the same role, and have the same expectations, accountabilities and responsibilities, regardless of the size of the office they manage." At present seven positions of DEHS are classified at HP5 while four are classified at HP6.

[8]      Mr Shillig argues that "the error in reclassification was introduced when the Work Level Evaluation Team (WLET) vetoed the clear matches to the WLS first identified in the WUP and subsequently confirmed by the Queensland Health trained evaluation panel." The error was identified in four cases where positions were classified at HP6 but not in the case of Mr Shillig who maintains that all of the DEHS positions perform essentially the same role. In his evidence Mr Shillig states that his appeal submission identified 25 WLS Descriptors at HP6 as relevant to his position but only 12 of those were considered by the Appeal Panel. Further, the Appeal Panel assessed Mr Shilling against one HP6 WLS Descriptor and two others at HP5 which he did not submit in his appeal.

[9]      Support for Mr Shillig's contention that his position is incorrectly classified at HP5 was given by Sharon Jurd, the DEHS at the Gold Coast Public Health Unit, Gold Coast Hospital and Health Service. Ms Jurd stated in her written evidence that to the best of her knowledge each of the RDs submitted by the other DEHSs were similar with only minor amendments to describe locally run programs for some workplaces. Further, each of the positions fundamentally requires the same functions and duties to be performed at each of the various locations.

[10]   In cross-examination Ms Jurd was taken to additional sections of her RD which referred to a state-wide program targeting the sale/supply of tobacco products to children and her position's leadership of this program. This section does not appear in Mr Shillig's RD and QH submits this is a significant difference between the two RDs.

[11]   QH also contends that a notable difference in the evidence of Ms Jurd and Mr Shillig arises with respect to the position or body which had strategic planning and implementation responsibilities for this program.

[12]   The evidence of Don Hamilton, Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration, Human Resources Services, QH, was that the WLET HP6-8 concluded that the positions of DEHS be evaluated "[a]t least HP5. No LOE to support a higher level." (LOE means lines of enquiry). Further, that the positions "had similar:

	Scope of professional advisory role influenced health activities within a 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."

[13]    The only point of difference was the size of subordinate teams managed. According to Mr Hamilton, the "WLET 6-8 concluded that the limited team size was not consistent with other HP6 level positions from other HP disciplines that had been endorsed by the WLET."

[14]   Mr Hamilton was not involved in the appeal process and was thus unable to assist the Queensland Industrial Relations Commission (the Commission) with the reasoning of the Appeal Panel leading to the different classification levels for the DEHSs. In particular, he was unable to provide any information concerning the recommendation to retain Mr Shillig's position at HP5.

Conclusion

[15]   On arbitration, the Commission's powers are confined to correcting any error that

may have occurred in the agreed reclassification process and it is incumbent on the

1

Applicant to demonstrate the error. In my view the practical application of the

decision of the Full Bench in Dr John Parke AND State of Queensland (Queensland

2

Health) ('Parke') is consideration of the Appeal Panel Statement and the decision of the Director-General or their delegate. The onus rests with the Applicant to show how or where the Appeal Panel and/or the Director-General or their delegate fell into error. It is to be remembered that an appeal was generated by an employee aggrieved by the result of the work level evaluation and their submission ought to have been directed to the correction of that outcome by providing information showing how they met the relevant WLS Descriptors so as to justify appointment to the requested classification level.

[16]   The "evidence" about the reasons that Mr Shillig's position was not reclassified by

the Appeal Panel is Mr Cairns' letter and the Appeal Review Statement. Detailed

reasons for the appeal outcome were not provided. This is not of itself an error

because the reasons given were primarily directed to the absence of evidence that

Mr Shillig's position required state-wide leadership/advocacy or was used as a

state-wide resource. Subject to some later comments, the reasons were (mostly)

3

directed to Mr Shillig's RD and supporting documentation.

[17]   It is also not enough to assert that an error occurred in the reclassification process because some positions were classified at HP6 whereas others were classified at HP5. The actual error in the process must be identified.

[18]    In cross-examining Mr Shillig about his role, QH focussed on the differences in the RDs for Ms Jurd and Mr Shillig in respect of the tobacco program and the effect of that difference in terms of the duties performed by and responsibilities of each of them. QH concluded that the differences in the RDs are "notable" and provide "clear and distinguishable features between both employees."

[19]   The Commission accepts that Ms Jurd's position had particular duties and responsibilities in the tobacco products program that Mr Shillig's position did not have. Despite the addition of the state-wide tobacco program in her RD, Ms Jurd still considered that the RDs were essentially the same.

[20]   Mr Shillig did not believe it was necessary for program specific matters to be indentified in his RD because they are meant to be a concise representation of the role, responsibilities and accountabilities and further, the specifics of the programs are unhelpful when they could be allocated to any one of the DEHSs.

[21]    That the RD of Ms Jurd contained a reference to a state-wide program whereas the RD for Mr Shillig did not is not an error in the process. Mr Shillig appears to have made a conscious decision not to structure his RD in that way. It is to be noted that the Work Unit Manager for the Southern Area Health Service, who was responsible for both Mr Shillig's and Ms Jurd's positions at the time, approved both RDs. Further, approval was given for the classification level of HP6 for both positions irrespective of the responsibility matter in Ms Jurd's RD.

[22]   It is problematic if the predominant reason for the difference in classification level was the absence of state-wide responsibility for a specific program mentioned in, for example, Ms Jurd's RD, when it is undeniable that programs come and go as needs and government policies dictate. As the evidence showed, the tobacco program is now defunct. Given that, and if this was the basis of the decision to classify the DEHS position at the Gold Coast at HP6, then there is a live issue as to whether this position remains appropriately classified.

[23]   However, the Appeal Panel found that Mr Shillig had failed to supply sufficient evidence about the state-wide responsibilities and accountabilities with respect to three WLS Descriptors to the Appeal Panel. In contrast Ms Jurd's position was found to have met those WLS Descriptors. The Commission is not privy to Ms Jurd's appeal documentation and thus cannot be clear about the reasons for the different findings particularly whether the favourable outcome for Ms Jurd was solely because of the tobacco program. The Statement of Reasons by the Appeal Panel in Ms Jurd's case does not shed any light on the matter.

[24]   While the tobacco program was in operation, it appears Mr Shillig had responsibilities for other state-wide programs that may have been the same as or similar to those exercised by Ms Jurd with respect to the tobacco products program. His appeal documentation and the oral evidence of Mr Shilling to the Commission referenced, amongst other matters, his leadership in a state-wide protocol for collection and disposal of expired and unwanted drugs from hospitals and pharmacies as well as food safety. However, I accept that apart from the statements made in his Appeal Application, it is difficult to discern from his supporting documentation the scope of the state-wide responsibilities and accountabilities of his position and whether these are comparable to those exercised by Ms Jurd.

[25]   Mr Shillig's position at the time of the appeal had responsibility for two health service districts and three local governments. The residential population was about 900,000 which is increased by international and domestic tourists.

[26]   Mr Shillig has management and clinical supervision of 12 Full Time Equivalent (FTE) positions, including two positions of Team Leader Environmental Health, one of which is classified at HP5, the same classification as Mr Shillig's position. TQ submits that this is one of the three largest of 18 environmental health teams in Queensland.

[27]   Mr Hamilton's evidence is that the size of the teams across the State varied from four FTE to 13 FTE and the WLET concluded these team sizes were not consistent with other positions classified at HP6. The Commission is not specifically aware of the size of the team for which Ms Jurd and the other positions which were classified at HP6 have responsibility. I accept that the size of the team supervised is not determinative of a classification level, but I consider it is curious that the classification of the position of manager of one of three of the largest environmental health teams responsible for a significant population located on the southside of Brisbane was found to be at the lower level.

[28]   Another argument advanced on behalf of Mr Shillig is that there has been no explanation provided as to the reasons that the Appeal Panel considered some of the WLS Descriptors submitted by Mr Shillig and not others. Moreover, the Appeal Panel considered some WLS Descriptors that were not submitted by Mr Shillig. QH did not respond to this submission.

[29]   The Commission accepts that the failure by the Appeal Panel to consider all WLS Descriptors relied on it by an appellant is not necessarily an error of process provided that the reasons in the "decision" are tolerably clear. Although the focus of the Appeal Panel decision appeared to be on the absence of state-wide responsibilities and accountabilities, in the circumstances of this case, I am concerned that a number of apparently relevant WLS Descriptors were not considered by the Appeal Panel and others that were not submitted as part of the appeal were assessed. There are no reasons for this approach and in my view it is possible that some of the WLS Descriptors upon which Mr Shillig relied may give rise to a favourable assessment on those matters, e.g. HP6-6.

[30]    The Commission further accepts that a holistic assessment of the RD is required and a position cannot be classified at a higher level just because several WLS Descriptors are satisfied. Nonetheless, the Commission determines that the consideration given by the Appeal Panel to WLS Descriptors that were not part of Mr Shillig's appeal and its omission in not considering apparently relevant WLS Descriptors that were submitted constitutes an error in the process.

[31]    Consideration must now be given to the remedy. TQ seeks that Mr Shillig's position be reclassified to HP6.

[32]   The submission of QH argues that the Commission's power on an application such as this is to make a recommendation to the Director-General or their delegate who can then determine whether or not to adopt it. With respect, that is not the view expressed by the Full Bench in Parke. The paragraph of the Parke decision relied on by QH, paragraph [25], only relates to the recommendation from the Appeal Panel and does not refer to a decision by this Commission on arbitration of a reclassification dispute.

[33] The Full Bench was expressing the view that in referring a reclassification dispute to the Commission under either HPEB1 or HPEB2, the powers under s 230 of the Industrial Relations Act 1999 are enlivened. That section permits a dispute to be arbitrated and when that occurs, the Commission has all of the relevant powers under the Act to make a decision. It is not the case that any decision made by the Commission is in the form of a recommendation to be considered by the Director-General or their delegate. A decision made by the Commission, subject to any appeal, is to be implemented. That view is consistent with the decision in State

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

4

Employees (No 2) where Hall P said "the Commission makes its own order."

[34]   Because of the nature of error the Commission is not able to make a decision that Mr Shillig's position should be reclassified to HP6. In the circumstances I set aside the decision of the Director-General and remit the matter to Queensland Health for reconsideration of the whole of Mr Shillig's Appeal Application and to determine the appropriate classification level of the position occupied by Mr Shillig. In remitting the matter, the assessment must be made on the basis of the position as it existed at the time the appeal was submitted.

[35] Order accordingly.
1

Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision

[18].
2

Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision

3

ibid [37].

4

State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) -

Decision [14].