United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of Queensland (Queensland Health) (No. 2)

[2014] QIRC 174

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	United Voice, Industrial Union of Employees,
Queensland (for Peter Mattner) v State of
Queensland (Queensland Health) (No. 2) [2014] QIRC 174
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:	31 October 2014
MEMBER:	Industrial Commissioner Fisher
ORDER:	Mr Mattner be classified at HP4 on and from
26 November 2012.
CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - Operative date of HP4 classification - Written submissions from parties - Respondent opposes retrospectivity - Determined operative date of HP4 classification on and from 26 November 2012.
CASES:	Industrial Relations Act 1999, s 320
United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of
Queensland (Queensland Health) [2014] QIRC 152
State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) - Decision (No. 2) <
Re Public Service Award - State (2005) 120 QGIG
Decision

[1] On 30 September 2014 the Queensland Industrial Relations Commission (the

1

Commission) as currently constituted released a decision that the correct classification for the position of Senor Dental Technician occupied by Peter Mattner was HP4. The Commission expressed the preliminary view that the operative date of the HP4 classification level should be 26 November 2012, the date the Notice of Industrial Dispute about Mr Mattner's classification level was lodged in the Industrial Registry by United Voice, Industrial Union of Employees, Queensland (UV). The Commission refrained from finally determining the issue as the State of Queensland (Queensland Health) (QH) had not addressed it in its submissions. In the circumstances the Commission requested both parties to make submissions on the matter.

[2]      UV, which appeared for Mr Mattner, advises that it supports the preliminary view expressed by the Commission and also asks that the Commission order that Mr Mattner receive an increment in the HP4 classification scale as from 26 November 2013.

[3]      QH opposes any retrospectivity and argues that the operative date should be the date of the decision.

[4]      Although I have not set out the respective submissions, I record that all of the points raised have been given due consideration in reaching my decision. Some matters raised by QH require specific comment.

[5]      QH contends that Mr Mattner has not been expected by his employer to perform at the HP4 level. In response to that proposition, one of the purposes of the HP classification structure and associated processes was to ensure that HPs were appropriately classified for the work that they were performing. The Work Unit Proposal that was initially prepared by his managers recognised Mr Mattner's position as being HP4. The Commission found that, properly understood, the material presented by Mr Mattner on appeal and later on arbitration established that HP4 was the classification level at which Mr Mattner was performing. QH has been receiving the benefit of Mr Mattner performing at the higher level without remunerating him commensurately.

[6]      QH also contends that Mr Mattner has not been held accountable for HP4 duties. The Commission accepts that any performance reviews of Mr Mattner would have been undertaken at the HP3 level, however, at all times, QH has been aware that Mr Mattner was contesting his classification level.

[7]      QH drew to my attention the decision in State of Queensland (Queensland Health) v

2

Together Queensland, Industrial Union of Employees and Others where Hall P was

considering the question of wage increases arising from the determination of a

"reclassification dispute" by the Commission. In that decision Hall P said that a

comparable power to s 125(3) of the Act "would not authorise a retrospective wage

3

increase antedating reference of the classification dispute to the Commission." However, the President felt unable to comment on power to deal with the gap between lodgement and decision and left those matters to be resolved on a case by case basis. In the absence of guidance from the Industrial Court of Queensland on the issue of operative date for HPs who are successful on arbitration, the Commission must make its own decision.

[8] In support of their respective positions, each party relied on s 320(3) of the Industrial Relations Act 1999, which provides that the Commission is to be governed in its decision making by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole. I would further note that s 320(5) also requires the Commission to consider the public interest and to that end consider the objects of the Act and the interests of the industry immediately concerned.

[9]      In arriving at my decision, I have been guided by these provisions and have taken

into account the substantial merits of the case which are that Mr Mattner succeeded

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on arbitration. In my view, the cited provisions of the Act, require the Commission, to strike a balance between competing interests - here the interests of Mr Mattner (and his union) and the interests of the employer - and take account of the broader public interest to arrive at an equitable decision.

[10]    The conclusions reached in my first decision make clear that there were difficulties with Mr Mattner's submission which caused the Appeal Panel to err inadvertently. Nonetheless, the Commission reached the clear view that Mr Mattner has been performing the work of an HP4 from at least May 2008. On any view, to not provide retrospectivity to its fullest extent is inequitable to him. However, the HP process was an agreed process between QH and a number of unions, which took time to implement and complete. Various issues arose along the way that needed to be addressed and considered by the parties, the Commission and the Industrial Court of Queensland. Although it can be held accountable for the error made on appeal, the Commission accepts that QH cannot be held accountable for all of the delay that has occurred.

[11]   Ultimately, I have decided the equitable decision is to order that Mr Mattner be classified at HP4 on and from 26 November 2012. It strikes a balance between recognising Mr Mattner's work value and the processes involved in implementing the HP classification structure. However, the overriding factor in reaching this decision is the recognition this operative date provides to the level of work performed by Mr Mattner from at least May 2008 and from which QH has been the beneficiary.

[12]    UV has also sought the Commission make an order that Mr Mattner retrospectively receive an increment operative from 26 November 2013. In my view the role of the Commission on arbitration of these disputes is to determine whether the appeal panel erred and if so, to correct that error. The error in this case is corrected by ordering the classification of Mr Mattner's position at HP4. Accordingly, the Commission refrains from making an order about an increment date, but is prepared to recommend that QH favourably consider Mr Mattner being granted an increment on 26 November 2013. In my view, Mr Mattner's skills, knowledge and expertise could have continued to increase particularly in the maxilla-facial area of his work since the Appeal Panel made its recommendation and again, in my view, it would be appropriate for QH to recognise his increasing work value by the granting of an increment retrospectively from 26 November 2013.

[13] Order accordingly.

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

(Queensland Health) [2014] QIRC 152.
2
State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and
Others (C/2012/28) - Decision (No. 2) <
3

State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and

Others (C/2012/28) - Decision (No. 2) < [25].
4
Re Public Service Award - State (2005) 120 QGIG 494, 495.