United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of Queensland (Queensland Health)

[2014] QIRC 152

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	United Voice, Industrial Union of Employees,
Queensland (for Peter Mattner) v State of
Queensland (Queensland Health) [2014] QIRC 152
PARTIES:	United Voice, Industrial Union of Employees,
Queensland (for Peter Mattner)
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:	HP/2013/27
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	30 September 2014
HEARING DATE:	3 April 2014
15 May 2014 (Applicant's submissions) 30 May 2014 (Respondent's submissions)
MEMBER:	Industrial Commissioner Fisher
ORDERS :	1. The decision of the Director-General,

Queensland Health is set aside.

2.      The Commission substitutes a new decision that Mr Mattner's role is classified at HP4.

3.      The parties are to confer on the terms of the Order.

CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Engaged as health practitioner - Appeal process - Duties or accountabilities could not be matched to work level statements at nominated level - Insufficient evidence relevant to the time - Technical work producing complex prostheses and implants - Appeal panel erred in excluding certain evidence - Holistic evaluation of position - Determined correct classification HP4.
CASES:	District Health Services Employees' Award - State 2003
Health Practitioners (Queensland Health) Certified
Agreement (No. 1) 2007
Newton v State of Queensland (Queensland Health)
[2014] QIRC 121
Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision
APPEARANCES:	Ms K. Badke for the United Voice, Industrial Union of Employees, Queensland, the Applicant. Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent.
Decision

[1]      Peter Mattner is employed as a Senior Dental Technician at the Metro South Health Service District, South Brisbane Dental Hospital, State of Queensland (Queensland Health) (QH). He has over 40 years of experience together with trade and advanced trade qualifications in the field. In his affidavit Mr Mattner explained his role as including the following:

"3. Maxillofacial prosthetics is a branch of dentistry that deals with congenital and acquired defects of the head and neck. The specialist work I undertake delivers facial, ocular and other prostheses to restore form and function to the body, for cancer or trauma patients. Maxillofacial prosthetics integrates parts of multiple disciplines including head and neck oncology, congenital malformation, plastic surgery, speech and other related disciplines. Restoration of acquired defects can be intraoral or extraoral. Intraoral defects may involve the mandible, tongue, soft palate, or hard palate, while extraoral defects may involve any other area of the head or neck. Other work I undertake involves complex acrylic denture fabrication, crown and bridge restorations and chrome cobalt castings.

…

14.     My role requires an expert level of knowledge and skills in order to fabricate a diverse and complex range of facial and dental prostheses to a highly technical standard. I believe I have been utilising the particular skill set for a minimum of 10 years, with supporting skills, knowledge and experience developed over thirty-six years prior to 2008. I independently adapt techniques to cater to the novel problems I encounter on a daily basis, in a complex and critical area. I provide expert technical guidance, training, education and support to HP2 and 3s, TAFE students as well as my HP4 manager."

[2]      Prior to the introduction of the Health Practitioners (HP) salary scale, Mr Mattner was classified as a Dental Technician under the District Health Services Employees' Award - State 2003 at TO3.4. On the introduction of the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1), he was translated to the HP2 scale. The Work Unit Proposal (WUP) prepared by his work unit proposed that Mr Mattner's position (and several other Dental Technicians) be classified at HP4. However, this was not accepted and Mr Mattner was advised that he had attained the classification of HP3 as part of the Phase 2, WUP process.

[3]      Mr Mattner was dissatisfied with that outcome and appealed that decision to the Appeal Panel. The delegate of the Director-General, QH advised Mr Mattner by letter dated 11 April 2011 that the Director-General had endorsed the recommendation made by the Appeal Panel to reject his appeal.

[4]      As HPEB1 permits, United Voice, Industrial Union of Employees, Queensland (UV) lodged a dispute in the Queensland Industrial Relations Commission (the Commission) over the classification of Mr Mattner's position. As the dispute was not resolved, UV sought that it be referred to arbitration. It is that matter that is now before the Commission for determination.

[5]      Evidence was given by Mr Mattner and by Donald Hamilton, Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration, Human Resource Services, QH. Unfortunately, Mr Hamilton's evidence was unable to assist with elaboration as to the reasons Mr Mattner's appeal was unsuccessful because Mr Hamilton was not involved at that level. However, Mr Hamilton was able to provide some insight to the consideration given to Mr Mattner's position at the other stages of the evaluation process.

[6]      Mr Hamilton explained that the Work Level Evaluation Panel (WLEP) evaluated the role descriptions and recommended that Mr Mattner's position be assigned to HP3. In the holistic statement of evaluation produced by the WLEP, the following was recorded:

"The position reports to the Senior Dental Technician. The primary purpose of this position is as an advanced dental technology services of a very high standard, ranging from routine to very complex to eligible clients of the Southside Oral Health Service."

[7]      That statement noted that the points of difference between a HP3 and a HP4 are that the HP3 is not recognised as point of reference and the duties are not performed in a specialist capacity.

[8]      In his Affidavit, Mr Hamilton noted that the "professional reporting relationship is noteworthy in terms of the WUP and the Director-General's approval of the Senior Dental Technician position at HP4." However, under cross-examination, Mr Hamilton acknowledged that a design feature of the HP classification system allows a highly skilled technician to be classified at the same level as their manager because each position has a different focus.

[9]      Mr Hamilton also noted that Mr Mattner's position was not identified for individual review either by the Oversight Sub Group (OSG) or the Work Level Evaluation Team (WLET) from HP1 to 5. Therefore his position was endorsed at HP3.

[10]    The Appeal Panel did not consider Mr Mattner's appeal submission against any HP4 Work Level Statement (WLS) Descriptors but found that with respect to the Scope and nature of his role "[i]nsufficient evidence provided to demonstrate claims at HP4 level" and, in respect of both the knowledge and accountabilities requirements, found "[s]ome evidence provided is post May 2008 and cannot be considered. Overall, insufficient evidence was provided to demonstrate claims at HP4 level". In the section "Additional Panel Comments" of the Appeal Review Statement, the following is stated:

"Overall, after assessing the evidence provided the panel agreed:

The duties or accountabilities could not be matched to work level statements at the nominated level.

Panel recognises the high level of work being done in this role, however, some evidence provided is post May 2008 and cannot be considered. Overall, insufficient evidence provided to demonstrate claims at HP4 level."

[11]   QH criticised Mr Mattner for suggesting that if the Appeal Panel required more information then that could be provided by way of a site visit. The Commission accepts that Mr Mattner was naive in believing that an onsite visit would be undertaken, however, the point that he was trying to be make was that the skill is in his hands and the work he undertakes is very technical, producing complex prostheses and implants. The level of complexity of the work could best be assessed by a visual inspection, accompanied by an oral explanation. In my view, he was suggesting that had the evidence presented raised issues in the mind of the Appeal Panel about the correct classification of his role, then clarification ought to have been sought by examining the work he has performed. Mr Mattner had access to examples of his work at the hearing and with these, was able to better explain to the Commission the complex and detailed work he performs.

Conclusion

[12] On arbitration, the Commission's role is to determine whether the Appeal Panel

1  2

erred. The Applicant bears the onus to demonstrate the error. In determining

whether the Appeal Panel erred consideration must be given to the Appeal Review

Statement, the decision of the Director-General or their delegate as well as the

submission made by the employee to the Appeal Panel. In reaching its view, the Commission can decide to take into account evidence that was "put aside in the

3

process or 'fresh evidence'."

[13]    In an endeavour to understand the nature of the work performed by Mr Mattner, the Commission asked him to explain particular types of work referenced in his appeal submission. Without objection from QH, Mr Mattner provided his explanation with particular reference to the examples of his work he brought into the Commission.

[14]   The Appeal Review Statement, as set out above, shows the reasons that Mr Mattner's appeal was not accepted. Two fundamental reasons were given - the inability to match the duties and accountabilities with the WLS Descriptors and insufficient evidence relevant to the time period under consideration. With respect to the first reason, the Commission accepts that Mr Mattner's appeal submission did not specifically nominate WLS Descriptors that he believed his position met. Mr Mattner adopted the approach of addressing each of the categories and attached supporting documentation but without specific reference to the WLS Descriptors. Although the HP process allowed for some "moderation" across occupational groups, the onus in the appeal process was on each individual HP to make a submission that was specific to their position in circumstances where they disagreed with the classification level determined for their position. It was incumbent on Mr Mattner to provide information, referrable to the WLS Descriptors, to the Appeal Panel to justify classification at HP4.

[15]    Given the volume of work being undertaken by the Appeal Panels it is not surprising that the relevant panel did not undertake the work itself. That the Appeal Panel did not undertake that task does not constitute an error. Despite those comments, having viewed his appeal submission, it is not difficult to identify the WLS Descriptors upon which Mr Mattner was relying.

[16]   Mr Mattner attached photographs of his work to his appeal submission as evidence of the complexity of his work. QH submitted that Mr Mattner had submitted pre 30 May 2008 photographs as he had completed the appeal form indicating positively that he had provided examples and evidence to validate his claims as they related to the role prior to May 2008. However, the Appeal Panel considered this was not the case as evidenced from its Statement that "some evidence is post May 2008 and cannot be considered."

[17]   Perusal of Mr Mattner's appeal submission shows that much of the photographic evidence is from May 2008 onwards. Mr Mattner explained in his affidavit that he did not take any photographs of his work in 2008. At the hearing he informed the Commission that he was unable to provide photographs from the relevant time period for patient confidentiality reasons. The photographs he supplied were (mostly) of work performed later than 30 May 2008 but nonetheless the work shown in the photographs was being performed before that date. It was for this reason that Mr Mattner indicated that he had provided evidence to validate claims as they related to his role before May 2008. This distinction being made by Mr Mattner was, understandably, not recognised by the Appeal Panel.

[18]    I have formed the view that there is sufficient evidence before me to conclude that, albeit inadvertently, the Appeal Panel erred in excluding certain evidence provided by Mr Mattner in his appeal submission from its consideration. Accordingly, the Commission will assess the entirety of the evidence, relevant to the period in question, to determine whether a conclusion can be reached that Mr Mattner's position should be classified at HP4.

[19]   It is clear that Mr Mattner's role easily meets the HP3 WLS Descriptors. The

Commission accepts that each of the WLS Descriptors builds on those from the

classification below and that a holistic determination has to be made. Each of the

three criteria of the WLS of "scope and nature"; "knowledge, skills and expertise"

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and "accountability" need to be met to be classified at a particular level.

[20]   Having regard to the relevant evidence before the Commission and the QH document "Work Level Statements and Guidelines for Health Practitioner Roles", I am satisfied that Mr Mattner as at May 2008:

	Held comprehensive, specialist level knowledge, skills and expertise in gold crowns, cobalt chrome castings and acrylic dentures and at least advanced level knowledge, skills and expertise in maxillo-facial prostheses. This is evidenced by the photographs included in his appeal submission and his oral explanations given to the Commission;
	Was recognised as a District wide expert in his clinical discipline and was used as a point of reference for maxillo-facial work;
	Given his level of knowledge, skill and expertise was independently able to expand, adapt and modify his clinical practice and techniques to service novel and unusual cases. To highlight this, Mr Mattner gave evidence of where he made an appliance which gave a patient the ability to swallow and novel appliances for head and neck patients. In addition, Mr Mattner provided photographic evidence in his application of the type of specialist work he undertakes;
	Regularly mentored and trained HP3 technical health practitioners and provided detailed advice to clinicians regarding technical solutions to provide the best treatment to a patient;
	Had over 35 years operational experience plus trade and advanced trade qualifications which combined were utilised in complex clinical practice; and
	Was critically involved in developing improvements to technical work practices to increase quality and service outcomes in his technical discipline. This is supported by the examples given in third dot point above.

[21]      I am of the view that although Mr Mattner performed some routine work, the majority of his work is very complex delivered across a range of patients, many of whom require individual and specialised solutions to their particular presentation. Mr Mattner worked with clinicians to understand the nature of the problem but drew on his skills, knowledge and expertise to conceptualise and make novel appliances for these patients to deliver optimal patient outcomes. In addition, he provided leadership to other technicians within his field; to develop their skills and expertise so as to continually improve the quality and standard of service provided.

[22]      The findings I have made in the preceding two paragraphs support the view that Mr Mattner's role meets at least WLS Descriptors 4-12 to 16 inclusive and 4-19 (scope and nature); 4-29, 31 and 32 (knowledge, skills and expertise) and 4-46, 47 and 4-52 (accountability).

[23]   In light of these findings, and bearing in mind that Mr Mattner met the HP3 WLS Descriptors, and the recognition by the Appeal Panel of the high level work being undertaken by Mr Mattner, the Commission considers that upon a holistic evaluation, the conclusion is that the correct classification for Mr Mattner's role is HP4. The Commission determines accordingly.

[24]   UV submissions on the form of the Order resulting from a favourable decision and operative date are a little unclear. However, I understand that the submission is that UV seeks that the operative date be the date the dispute notification was lodged, i.e., 26 November 2012. QH did not make a submission on the point other than to say that the use of the Commission's dispute resolution powers is not to be inconsistent with the health practitioner certified agreements.

[25]   The Commission is of the preliminary view that the operative date should be 26 November 2012. However, the parties are requested to confer on the matter and the form of the order to be issued by the Commission. The parties are to notify the Commission within 14 days of the release of this decision as to the outcome of those discussions. If they are remain in dispute, written submissions are to be received also within 14 days of the release of the decision.

[26] Order accordingly.
1
Newton v State of Queensland (Queensland Health) [2014] QIRC 121 [17].
2

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

[18].
3

Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision

[9].
4
Newton v State of Queensland (Queensland Health) [2014] QIRC 121 [30].