United Voice, Industrial Union of Employees, Queensland (for Krzysztof Kamusinski) v State of Queensland (Department of Health)

[2014] QIRC 196

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	United Voice, Industrial Union of Employees,
Queensland (for Krzysztof Kamusinski) v State of
Queensland (Department of Health) [2014] QIRC 196
PARTIES:	United Voice, Industrial Union of Employees,
Queensland (for Krzysztof Kamusinski)
(Applicant)
v
State of Queensland (Department of Health)
(Respondent)
CASE NO:	HP/2013/44
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	25 November 2014
HEARING DATE:	3 October 2014
28 October 2014 (Applicant's submissions) 13 November 2014 (Respondent's submissions)
MEMBER:	Industrial Commissioner Fisher
ORDER:	The Commission does not have jurisdiction to
arbitrate dispute.
CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Jurisdictional issue - Re-evaluation of position - Dispute not about appeal panel error - Determined Commission does not have jurisdiction to arbitrate.
CASES:	Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007
Newton v State of Queensland (Queensland Health)
[2014] QIRC 121
Re Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch
Union of Employees (1987) 126 QGIG 34
APPEARANCES:	Mr D. Peverill for the United Voice, Industrial Union of Employees, Queensland, the Applicant. Mr K. Ryalls for the State of Queensland (Department of Health), the Respondent.
Decision

[1]      Krzysztof Kamusinski is employed as a Medical Illustrator at the Royal Brisbane and Women's Hospital. Under the Phase 1 process prescribed by Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007, (HPEB1), Mr Kamusinski directly translated to the classification of HP2. Through the Work Unit Proposal process, Mr Kamusinski's role description was recommended by his manager to be at the HP4 level. This classification was not supported through the Work Level Evaluation Process. As Mr Kamusinski was entitled to do, he submitted an appeal. The Appeal Panel recommended that Mr Kamusinski's position remain at the current classification level. By letter dated 11 April 2011, the Director-General, Department of Health, advised Mr Kamusinski that he had accepted this recommendation.

[2]      Mr Kamusinski, through his union, United Voice, Industrial Union of Employees, (UV) lodged a dispute in the Commission contending that the Appeal Panel erred in finding that Mr Kamusinski was correctly classified at HP2. This dispute was referred to arbitration.

[3]      In his Affidavit prepared for the arbitration of the dispute, Mr Kamusinski seeks his position be classified as HP3. He contends the Appeal Panel erred in not referring to and utilising his appeal submission in determining whether he met the HP3 Work Level Statements (WLS). Reference was made to the Appeal Review Statement which shows that certain HP3 WLS were considered by the Appeal Panel in arriving at the outcome.

[4]     At the commencement of the hearing the Department of Health raised a jurisdictional issue in relation to the dispute that was before the Commission for arbitration. The Department of Health contends that Mr Kamusinski is seeking a re- evaluation of his position because at no stage during the HP classification process had he sought an HP3 classification. At all times Mr Kamusinski sought the classification of HP4.

[5]      The Department of Health submits that HPEB1 establishes the evaluation process for HPs to follow in order to have their positions correctly classified. All of the internal processes followed by Mr Kamusinski, including his appeal, were for the purpose of seeking a HP4 classification. The Department of Health submits that the referral of the reclassification dispute to the Commission could only relate to the classification level the employee was seeking during the appeal process. It was not open to Mr Kamusinski to now seek another level which he had not previously sought.

[6]      UV, which appeared for Mr Kamusinski, opposed the jurisdictional issue relying on comments made in an Appeals Information Session held by way of teleconference on 29 September 2010. The speakers in this session were officers of the Department of Health and relevant unions. UV contends that the comments made show that the Appeal Panel had the capacity to determine the appropriate level of an appellant based on the evidence provided.

[7]      This transcript assumed some importance in the hearing. It was attached to the affidavit of Don Hamilton, Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration, Human Resource Services, Department of Health. Mr Hamilton said he had not participated in the conference and Mr Kamusinski could not recall that this was the conference to which he had listened. That said, it appears that it was the only conference of its type held. The evidence does not establish the accuracy and veracity of the transcript. In ordinary circumstances little weight can be attached to the comments made in the conference.

[8]      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. The role of the Appeal Panel was to consider

whether the work level evaluation of all of the employee's duties, roles and

2

responsibilities should result in the employee's position being reclassified. As appeals were initiated by aggrieved employees, the employee was required to place all relevant material before the Appeal Panel to demonstrate that their position should be classified at the claimed level so that the Appeal Panel could perform its role.

[9]      It is true that the Appeal Panel in its Appeal Review Statement referred to certain HP3 WLS that had been considered in arriving at its decision as to whether Mr Kamusinski should be classified at HP4. However, for the Appeal Panel to consider HP3 as an appropriate classification Mr Kamusinski firstly had to show that he met HP3 criteria by identifying relevant HP3 WLS and by providing appropriate evidence. This view is consistent with the information provided at the Appeals Information Session.

[10]   All of the Work Level Statements referenced by Mr Kamusinski in his appeal submission were HP4. In the circumstances, the Appeal Panel was obliged to consider his appeal that his classification should be HP4. In my view it would be difficult, if not impossible, for the Appeal Panel to determine from Mr Kamusinski's appeal submission that he was seeking HP3 as an alternative to HP4 in the event he was unsuccessful in being classified at HP4.

[11]    The following comments were made in the Appeal Review Statement:

"The appellant has provided an appeal based on a HP4 level, and due to this has failed to show sufficient evidence to match against the HP3 criteria. The panel acknowledges the appellant could be working at a HP3 level, but failed to provide the evidence to substantiate this, particularly in the Accountability criteria."

[12]   In light of these comments Mr Kamusinski seems to be "wise in hindsight and

enlightened by failure" and the dispute process has been seen as an opportunity for

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him to try to retrieve some benefit from the evaluation process. This dispute is not about an Appeal Panel error but an error made by Mr Kamusinski. He may have genuinely misunderstood the process, however, it is not appropriate on arbitration for the Commission to conduct a fresh evaluation of his position.

[13]    The Commission finds that it has no jurisdiction to arbitrate this dispute.

[14] Order accordingly.
1
Newton v State of Queensland (Queensland Health) [2014] QIRC 121.
2

Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007, Clause 19.7.

3

These phrases are drawn from the decision of Moynihan P in Re Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch Union of Employees (1987) 126 QGIG 340. Although that decision dealt with re-opening provisions of the industrial relations legislation that applied at the time, the phrases are apposite to the present matter.