United Voice, Industrial Union of Employees (for Christine Young) v State of Queensland (Queensland Health)
[2014] QIRC 223
•23 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | United Voice, Industrial Union of Employees (for Christine Young) v State of Queensland (Queensland Health) 2014 QIRC 223 |
PARTIES: | United Voice, Industrial Union of Employees (for Christine Young) v State of Queensland (Queensland Health) |
CASE NO: | HP/2013/17 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 23 December 2014 |
HEARING DATE: | 11 December 2013 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | Proposal for reclassification refused |
| 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 |
| CASES: | Industrial Relations Act 1999, s 230 |
| APPEARANCES: | Ms K Badke for United Voice, Union of Employees, on behalf of the Applicant. |
United Voice, Industrial Union of Employees (UV) filed a Notice of Industrial Dispute on behalf of their member Christine Young on 18 December 2012. At the time Ms Young was employed by the Metro North Hospital and Health Service as a Radiation Therapist at the Royal Brisbane and Women's Hospital. The Notice of Industrial Dispute concerned the classification of Ms Young's position at the HP3 level rather than at the HP4 level. Attempts to settle the dispute by conciliation were unsuccessful and the dispute was referred to arbitration.
The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of Queensland Health (QH) engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of HPEB1. Phase 1 of the process allowed direct translation of employees who met certain criteria. Prior to the process Ms Young held the PO3 (4) position of Radiation Therapist. Under Phase 1 she translated from this position to HP3 (7).
Phase 2 of the process allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements. According to the evidence of Mr Hamilton, the Phase 2 process involved five procedural steps intended to assess the relative work value of each application from an individual, intra-disciplinary, and an inter-disciplinary perspective. The five steps alluded to are summarised in the following terms:
Step 1 - Standardised data set - receipt of Work Unit Proposals (WUP) including Employee Initiated Applications (EIA).
Step 2 - Work Level evaluation (WLE) of individual position conducted by a HP discipline specific WLE 'Panel' (WLEP). Includes consideration of any EIA.
Step 3 - Intra-disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (WLET).
Step 4 -Inter-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (IDR), this group consisted of members from WLEP & WLET.
Step 5 - HPIBB Oversight, including the subsequently developed Oversight Sub Group (OSG).
A new role description was developed for Ms Young's position. The Role description and a Work Unit Proposal were submitted in May 2008, and Ms Young's position was evaluated at the HP3 level.
Ms Young disagreed with the outcome of the work unit evaluation and submitted an Employee Initiated Application (EIA) on 27 June 2008. Subsequently Ms Young was requested by the HP Evaluation Team to provide further information. In November 2009 Ms Young was informed that her EIA was unsuccessful and that her position would remain at HP3.
In response Ms Young submitted a Phase II, HP Appeal Application. The Appeal Panel advised Ms Young in April 2011 that her Appeal had been unsuccessful. In evaluating the Work Level Statements (WLS) under the categories "scope & nature of level"; "knowledge, skills & expertise"; and "accountability", the Panel concluded that in each of the categories the appellant failed to provide evidence, or sufficient evidence, to meet all of the WLS Descriptors. In specific terms she did not meet WLS descriptors HP4-1, HP4-4, HP4-22, HP4-36, HP4-38 and HP4-39.
In the Appeal Review Statement, the Panel also provided the following additional comment:
"The appellant demonstrated evidence to support some of the criteria at HP4 level but there was insufficient evidence to support a holistic evaluation at the HP4 classification".
Applicant's Submissions
Ms Young has been employed at the Royal Brisbane Hospital for over 25 years and
was recognised as a specialist radiation therapist. Radiation therapists are professionals primarily concerned with the design and implementation of radiation treatment including caring for cancer patients undergoing radiation therapy. The Royal Brisbane Women's Hospital is the largest radiation treatment centre in Queensland, employing 80 full-time equivalent radiation therapists. These therapists use a unique set of complex and highly specialised techniques for the treatment of a wide variety of cancer patients.
The essence of the applicant's case was that the Appeal Review Panel failed to assess Ms Young's role, responsibilities and duties on a holistic basis. In this regard the submission at first instance appeared to be that, having met six work level statements at the HP4 level, Ms Young was entitled to be reclassified to that level. However in substance Ms Young also claimed that the Appeal Panel erred in not assessing further work level statements at the HP4 level. In this regard it was submitted that the Appeal Panel failed to correctly apply the work level statement descriptors to all the evidence provided to the Panel by Ms Young, that the Appeal Panel did not address certain work level statements, and that the Appeal Panel erroneously concluded in respect to certain statements that the appellant had failed to provide evidence or sufficient evidence.
In terms of the holistic evaluation, Ms Young referred to the provisions of HPEB1 where the following background comments were made about the application of the work level statements:
"It should be noted that a range of statements across more than one level may be relevant to an employee's role. The employee does not need to meet all statements in knowledge, skills and expertise; and accountabilities to be classified at a particular HP level. A holistic approach will be taken in the assessment of roles and the determination of classification level. No single statement will define an employee's level."
Ms Young also relied on the fact that she had been rostered between 2000 and 2008 to work in a quality assurance role for a total of 55 weeks and to perform higher-duties roles as a team leader for 70 weeks. It was the appellant's submission that these two roles had been evaluated at HP4 and HP5. Given that Ms Young had performed these roles for significant periods of time, and that the discharge of these functions demonstrated advanced clinical skills, there is a prima facie case that her substantive level should be at the HP4 level. The submission was that only staff with the demonstrated knowledge and skills at a HP4 level would be rostered into such responsible roles.
Finally, it was argued that the panel did not attribute sufficient weight to the experience, skills and knowledge acquired by Ms Young in the performance of quality assurance functions and in undertaking higher duties.
Queensland Health Submissions
QH submitted that Ms Young had not substantiated a case to be reclassified from HP3 to HP4 and neither had she established that an error had occurred in the reclassification process.
QH argued that Ms Young had exhausted a lengthy process of appeal allowed under HPEB1. She had appealed the original work level evaluation via her EIA and had appealed the WLEP and WLET conclusions to the Appeal Panel. It was submitted that no error in the appeal processes had been established. Further Ms Young conceded in her evidence that, in the earlier stage, the HP Evaluation Team had specifically contacted her to secure further information, and that she agreed that she had put all relevant material to the Appeal Panel. There was no evidence that her circumstances were not fully comprehended at either the WLEP, WLET or Appeal Panel stages.
It was QH's evidence that the great majority of radiation therapists were classified at HP3. Mr Hamilton said at paragraph 7 of his affidavit that Ms Young's evaluation application was one of 128 radiation therapists proposed at the HP3 level. He said that following the WLEP review, 124 positions were recommended at the HP3 level and four positions at the HP4 level. These classifications were subsequently endorsed by the WLET without exception.
In his evidence Mr Hamilton also drew attention to the consideration of Ms Young's classification by the Work Level Evaluation Panel (WLEP). At paragraph 28 of his affidavit, Mr Hamilton referred to the Evaluation Record of the WLEP (Attachment DGH7 to Exhibit 3) and to the conclusion of the Panel to the effect that while Ms Young's experience in QA and as an Acting Charge were noted, "there is no evidence to support the claim of clinical leadership or service improvement activities".
Finally QH submitted that Ms Blyth's evidence should not be admitted, that its content was not relevant to the determination to be made, and that the evidence did not in any way demonstrate that an error in the reclassification process had occurred.
Approach to be adopted
I accept the submission of QH that the Commission's jurisdiction in this matter should be exercised in a manner consistent with the decision of the Full Bench in Dr John Parke and State of Queensland (Queensland Health)[1], whereby the Full Bench at paragraph [18] stated:
"It follows, therefore, that the Commission's powers are confined to correct any error in the reclassification process that may have occurred in the agreed reclassification process. In saying that, any applicant that has referred a classification dispute to the Commission must be able to demonstrate that an error has occurred in the process."
[1] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision type="1">
QH submitted that the party referring a dispute to the Commission does not gain access to a de novo assessment and that the entitlement of the dispute notifier is to have the agreement processes properly performed not to rely on any new sphere of assessment outside of the provisions in HPEB1.
On the authority of Parke[2], the central matter for consideration is whether Ms Young can demonstrate that an error has occurred in the reclassification process. This approach involves a review of Ms Young's participation in the process and a review of the determination of the Appeal Panel.
[2] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision >
It was the applicant's evidence that the work unit process involved a one on one discussion involving herself and her director. During this discussion Ms Young was told that she was to be classified at HP3. When Ms Young expressed her disagreement with the conclusion reached, her director convened a meeting of senior staff to conduct a form of internal review of the decision. This process validated the director's decision and, in response, Ms Young exercised her right to lodge an EIA. Subsequent to lodgment, the HP Evaluation Team contacted Ms Young and asked her to provide evidence relating to her work in Acting Charge positions and evidence of her role in protocol development and/or research within the Department. The information supplied by Ms Young is in the evidence as Attachment CY3 to Exhibit 1.
It is apparent that the work unit and evaluation team's processes demonstrated an active consideration of Ms Young's application. However, notwithstanding the level of consideration and consultation, Ms Young was unable to persuade the evaluation team to adopt her position. She then elected to appeal the WLEP outcome to the Appeal Panel, but without success.
Given the level of consideration and the review opportunities allowed, I am unable to conclude that the process deployed by QH in implementing the new classification structure in accordance with Clause 18 of HPEB1 was in any way deficient or flawed. It is evident, in terms of procedural elements, that the process has been deployed as intended without omission or error.
Despite the consistent findings adverse to her at the work unit level, and at the WLEP and WLET stages, Ms Young argued in effect that the Appeal Panel conclusion was manifestly unjust. She advocated the view that the Appeal Panel committed an error of judgment in not assessing her role, responsibilities and duties on a holistic basis. A difficulty for Ms Young in sustaining this line of argument is that she complains against an exercise of discretion by the Appeal Panel in circumstances where no parameters have been set by HPEB1 regulating the exercising of that discretion. It is difficult in the circumstances to sustain an argument that the Panel did not apply itself holistically to the task in hand and had committed an appealable error.
At paragraph 47 of his affidavit (Exhibit 4), Mr Brown stated that "the appeal process sought documentary evidence from applicants to confirm they met the Work Level Statements at the particular classification level they appealed. All appellants were required to meet the Work Level Statements in the three different job characteristics of Scope and Nature of Level, Knowledge, Skills and Expertise and Accountability."
In this regard Ms Young drew attention to the fact that the Appeal Panel found that she satisfied six work level statements at the HP4 level. A reading of the Appeal Review Statement discloses that the Appeal Panel assessed Ms Young in respect to 13 work level statements. One was a HP3 statement and the other 12 were HP4 statements. Of these 12 statements the Appeal Panel concluded that Ms Young met six of the statements and did not meet the other six. It was in this context that the holistic judgment needed to be exercised. In think in circumstances where an appellant met only half of the determinative statements, it was open to the Appeal Panel to exercise a discretion not to reclassify Ms Young.
However Ms Young complained that on the available evidence, the Appeal Panel should have concluded that she met more than six of the HP4 work level descriptors. The Work Level Statements and Guidelines for Health Practitioner Roles which were in the evidence as Attachment CY6 to Exhibit 1 identify 17 work level statements that might be relevant to a determination of a classification at the HP4 level. In her appeal material (Attachment CY5 to Exhibit 1) Ms Young referenced 13 of the statements. The Appeal Review Statement addressed all but one of these statements.
The statement omitted was HP4-3 which states that "duties undertaken are of a complex and varied nature with clinical decisions based on valid and reliable evidence". In her material Ms Young referenced HP4-3 twice. In the second instance at page 5 of her appeal material it appears that an error has been made and that the work level statement to be addressed should be HP4-23. The first reference on page 4 of her appeal material follows an assertion by Ms Young that she "ensured that facility and/or district level initiatives are integrated into clinical practice, organisational work unit guidelines and district policies". This assertion however is directly relevant to the work level statement HP4-4 which was assessed by the Appeal Panel. In the circumstances no issue arises from the exclusion of the work level statement HP4-3 from the Appeal Panel's consideration.
The Appeal Review Statement showed that the Panel concluded that Ms Young did not met the work level statements for HP4-1, HP4-4, HP4-22, HP4-36, HP4-38, and HP4-39. The Panel agreed that Ms Young had met the work level statements for HP4-2, HP4-5, HP4-20, HP4-21, HP4-23, and HP4-35. By way of broad observation this outcome meant that the Appeal Panel recognised that Ms Young possessed a high level of clinical knowledge and expertise, that she had the ability to work independently, and that she provided clinical practice supervision of HP3 level assistants and support staff. In these areas Ms Young was rated at the HP4 level. However the Panel concluded that Ms Young was not at the HP4 level in respect to certain key accountabilities and in respect to the scope of her role in terms of facility wide or district activities.
I have reviewed the material submitted by Ms Young to the Appeal Panel in support of her contention that she should have been classified at HP4 in some of all of the areas where the Appeal Panel concluded she did not meet the HP4 standard. I am unable to conclude from this review that the findings of the Appeal Panel in respect to the work level statements in contention were not reasonably open to it having regard to the material provided.
In my review I have noted that, in respect to the HP4-1 statement, the appellant only made two references to this descriptor in her appeal material. The first reference followed the assertion that she had "ensured that facility and/or district level initiatives are integrated into clinical practice, organisational work unit guidelines and district policies." Following the assertion, Ms Young set out the services provided by her department and noted that her department was the tertiary referral centre for defined state-wide services. In the second reference Ms Young set out some of her duties or responsibilities. The material provided by Ms Young is not sufficiently compelling to found a conclusion that the Appeal Panel erred in its assessment of this material.
In respect to the HP4-4 statement the appellant made four references in her appeal material. However I do not think that in any of these instances the appellant has demonstrated how she was integrating facility initiatives into clinical practice, organisational work unit guidelines and district policies. The appeal material made one reference to the HP4-22 statement. In this reference Ms Young referred to a list of courses, seminars and workshops that she had attended and stated that new skills learned at these workshops were shared with her fellow radiation therapists and other professionals. I am not of the view that the material provided by Ms Young was sufficient to justify a HP4 rating.
Ms Young made two references in her appeal material to the HP4-36 statement. I am not of a view that the material provided directly addressed the work level statement. That is, the material did not demonstrate how Ms Young was responsible for reporting and monitoring work practices and outcomes and how she initiated, planned and evaluated local service improvement activities. While in the discharge of her own duties Ms Young may have been involved to some extent in these activities, she did not provide evidence that she held a responsibility that extended beyond her own work.
The appeal material made one reference to the HP4-38 statement but it did not specify how Ms Young contributed to clinical research activities, nor did it claim that she held a designated role as a researcher. In dealing with the HP4-39 statement Ms Young said, using the words of the descriptor, that she did what was said in the statement. However she did not specify what it was that that she did that might substantiate her assertion.
It is relevant that while the Appeal Review Statement did not provide developed reasons, Ms Young had already got feedback from the WLEP about the deficiency in her position. The evaluation record of the WLEP (Attachment DGH7 to Exhibit 3) noted that Ms Young had not provided evidence of clinical leadership and that she had a limited role in the development of policies etc. and has been at the "assist level". These conclusions were relevant to the findings of the Appeal Panel in respect to statements HP4-4, HP4-22, HP36, HP38 and HP39.
There is a limit upon which Ms Young can rely on her experience in the quality assurance role and her acting charge experience. The task of the work unit evaluation team, and the Appeal Panel on review, was to assess Ms Young's substantive position, not to assess a hybrid position spanning HP3 and HP4 or HP5. The question for the Appeal Panel and the WLEP to decide was what classification should be applied to her substantive position. This matter was correctly addressed in the evaluation record of the WLEP when it noted that while the acting charge work demonstrated a high level of clinical skill, the "acting work itself is not considered as evidence".
Further, it appears that in providing material to the Appeal Panel, Ms Young may not have adequately distinguished between the duties, roles and responsibilities that she discharged under her substantive role, and the duties, roles and responsibilities which were associated with the quality assurance and acting charge activities. While the Appeal Panel did not comment on the matter it may have been a factor for consideration.
The applicant has failed to discharge the onus of demonstrating an error in the process or in establishing that the Appeal Panel erred in not reclassifying her position to the HP4 level. I decline to settle the industrial dispute by re-classifying Ms Young from HP3 to HP4.
Order accordingly.
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