United Voice, Industrial Union of Employees, Queensland (for Stephen Nicholson) v State of Queensland (Department of Health)
[2014] QIRC 214
•16 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | United Voice, Industrial Union of Employees, Queensland (for Stephen Nicholson) v State of Queensland (Department of Health) [2014] QIRC 214 |
PARTIES: | United Voice, Industrial Union of Employees, Queensland (for Stephen Nicholson) v State of Queensland (Department of Health) |
CASE NO: | HP/2013/42 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 16 December 2014 |
HEARING DATE: | 23 September 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | The Commission declines to interfere with the decision made by the Director-General, Department of Health. |
| CATCHWORDS: | INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - classification of position - health practitioner classification structure - whether appeal panel failed to undertake a holistic evaluation of role and differentiations between HP5 and HP6 in both clinical and management - scope and nature of level - knowledge, skills and expertise - accountability - insufficient evidence - determined appeal panel did not err |
| CASES: | District Health Services Employees' Award - State 2003 Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053 Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148 |
| APPEARANCES: | Ms K. Badke for United Voice, Industrial Union of Employees, Queensland, the Applicant. |
Decision
Stephen Nicholson has been employed by the Department of Health for 19 years. He currently holds the position of Assistant Director, Medical Imaging - Gold Coast Hospital and Health Service, based at the Gold Coast University Hospital, Southport.
In November 2004, after the completion of a JEMS evaluation process, Mr Nicholson's position was upgraded to PO5 under the District Health Services Employees' Award - State 2003. This was the classification held by Mr Nicholson prior to the introduction of the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1). The Phase 1 process set out in HPEB1 enabled Mr Nicholson to translate to HP5.
Under Phase 2 of the Work Evaluation process set out in HPEB1, Mr Nicholson's manager developed a role description for his position at HP6. However, Mr Nicholson's position was evaluated at HP5. As he was entitled to do, Mr Nicholson lodged an appeal. The Appeal Panel recommended that Mr Nicholson's position remain at its current classification level. This recommendation was accepted by the Director-General, Department of Health.
United Voice, Industrial Union of Employees, Queensland (UV) then lodged a Notice of Industrial Dispute in the Commission on 6 December 2012 alleging that the Appeal Panel had incorrectly classified Mr Nicholson's position against the relevant criteria. When that dispute could not be resolved at conciliation, the dispute was referred to arbitration.
In his evidence, Mr Nicholson claims that the Appeal Panel failed to undertake a holisitic evaluation of his role over the three criteria and the differentiations between HP5 and HP6 in both clinical and management. UV submits that the Appeal Panel made the following errors:
"It is submitted that the Appeal Panel fell into error by:
a)failing to have regard to all material considerations;
b)failing to give appropriate regard for all evidence;
c)a systemic failure to identify any work level statements that might be relevant to Mr Nicholson's role and/or which would demonstrate the incremental increase in work value from a HP5 to HP6;
d)failure to give appropriate regard to professional reporting relationships;
e)a systemic failure to reach a 'holistic evaluated outcome' constitutes an error in the reclassification decision;
f)a systemic failure to give appropriate regard to the relevant WLS descriptors which foreseeably should have been considered by the appeal panel;
g)a systemic failure to perform a consistency check of evaluated outcomes of similar positions across the State."
Findings
In Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health)[1], the Commission as constituted said:
[1] Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053.
"[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 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 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." (references omitted)
Regrettably, Mr Nicholson's appeal failed because he did not provide "information showing how [he] met the relevant WLS Descriptors so as to justify appointment to the requested classification level." He did not reference any WLS Descriptors nor were the relevant WLS Descriptors upon which he was relying easily understood from his submission.[2] Mr Nicholson did not attach evidence supporting his claims and simply listed the name of a person to be contacted "for confirmation".
[2] United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of Queensland (Queensland Health) [2014] QIRC 152 [15].
Mr Nicholson relied on his role statement to substantially justify his claims. He was of the view that this document represented his duties and responsibilities and as a result it was the focus of his appeal. Black C discussed the status of the role description in Hamlyn v State of Queensland (Queensland Health):[3]
[3] Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148.
"[19] . . . the provisions of HPEB1 do not support the claim that the role description is the pivotal document. Clause 19.7 of HPEB1 refers to an evaluation of 'all of the employee’s duties, roles and responsibilities'. It does not use the term 'role description'. Further clause 4.1 of Schedule 5 refers to employees being entitled to 'have the current work of their positions evaluated against the Work Level Statements'. While I accept that established or proposed role descriptions would be expected to be considered in the process, I cannot afford the role description included in the work unit proposal the pre-eminent status given to it by the applicant."
I concur with those remarks.
UV have valiantly attempted to resurrect an arguable case in light of the difficulties created by Mr Nicholson's appeal submission. However, based on the appeal submission before it and as shown by the above findings, the Appeal Panel could not reasonably do those things UV said it failed to do.
The Appeal Panel recorded in its Appeal Review Statement that Mr Nicholson had failed to provide sufficient evidence in relation to each of the three criteria - Scope and Nature of Level; Knowledge, Skills and Expertise; and Accountability. The Additional Panel Comments were as follows:
"Overall, after assessing the evidence provided the panel agreed:
While the appellant provides some claims and descriptions of the focus of the role, insufficient evidence across all criteria for the panel to assess the appellant's claims."
In my view the Appeal Panel could reach no other conclusion in the circumstances.
Mr Nicholson also refers to inconsistencies of classification of like positions across the State and the fact that he supervises sonographers who are also classified at HP5 to justify his claim to have his position classified at HP6. These are not of themselves reasons to find that the Appeal Panel erred. I return to the point made earlier that it was incumbent on the appellant to put sufficient evidence before the Appeal Panel on which it could make a decision to justify the higher classification claimed.
No error has been shown to have been made by the Appeal Panel. The Commission declines to interfere with the decision made by the Director-General, Department of Health.
Order accordingly.
0
2
0