Crown v State of Queensland (Queensland Health) [2014] QIRC 142
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Crown v State of Queensland (Queensland
Health) [2014] QIRC 142
PARTIES: Crown, Suzanne
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO: HP/2013/34
PROCEEDING: Action on industrial dispute
DELIVERED ON: 10 September 2014
HEARING DATE: 25 November 2013
5 May 2014 (Applicant's submissions)
23 May 2014 (Respondent's submissions)
29 May 2014 (Applicant's submissions in reply)
MEMBER: Industrial Commissioner Thompson
ORDERS : 1. Application dismissed.
2. Applicant retains classification of HP5.
CATCHWORDS: INDUSTRIAL LAW - ACTION ON
INDUSTRIAL DISPUTE - Classification of
position - New classification structure -
Employees engaged as Health Practitioners -
Internal review unsuccessful - Work level
evaluation process - Witness Evidence - Role
description and responsibilities - Powers of the
Commission - Alleged errors within
reclassification process - Appeal process not
flawed - Application dismissed.
CASES: Industrial Relations Act 1999, s 230
Health Practitioners (Queensland Health)
Certified Agreement (No 1) 2007
Health Practitioners (Queensland Health)
Certified Agreement (No 2) 2011
Jones v Dunkel [1959] HCA 8
State of Queensland (Queensland Health) AND
Together Queensland, Industrial Union of
Employees and Others (C/2012/28) - Decision
(No. 2) <http://www.qirc.qld.gov.au>
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2
Dr John Parke AND State of Queensland
(Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
Together Queensland, Industrial Union of
Employees (for Gregory Shillig) v State of
Queensland (Queensland Health) [2014] QIRC 053
Annetts v McCann [1990] HCA 57
Dr Adam Scott AND State of Queensland
(Queensland Health) (C/2012/19) - Decision
<http://www.qirc.qld.gov.au>
Minister for Immigration and Ethnic Affairs v
Wu Shan Liang [1996] HCA 6
Newton v State of Queensland (Queensland
Health) [2014] QIRC 121
APPEARANCES: Mr G. Butler for the Applicant.
Mr K. Ryalls for the State of Queensland
(Queensland Health), the Respondent.
Decision
Background
[1] A Notice of Industrial Dispute was lodged with the Industrial Registry on
17 August 2012 by Suzanne Crown (Crown), the Medical Imaging Clinical Services
Manager, Cardiac Catheter Laboratory, Princess Alexandra Hospital (PAH), Metro
South Health District.
[2] The subject matter of the dispute was identified in the notification as:
"Failure by the Respondent to comply with provisions of an enterprise
agreement providing for reclassification as Health Practitioner and failure to
implement reclassification level and pay remuneration in accordance with the
requirements of the relevant Enterprise Agreements leading to an underpayment
of wages."
[3] The notification was the subject of a conciliation conference before
Commissioner Fisher on 16 November 2012 however with the dispute unresolved, it
was referred to arbitration.
[4] Crown had unsuccessfully sought an internal review of the decision to classify her as
a Health Practitioner (HP) 5 in accordance with the specific provisions of the Health
Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1).
Whilst the matter remained unresolved, the provisions in HPEB1 relating to the HP
Work Evaluation Process were carried across to the Health Practitioners (Queensland
Health) Certified Agreement (No 2) 2011 (HBEB2).
[5] At the time of hearing there was an issue regarding the admissibility of evidence from
Crown that was said to have been inadvertently omitted from the material tendered by
her in the proceedings with fault being apportioned to the representative acting on her
behalf. The material, in the view of the Commission, ought to have formed part of
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Exhibit 1 and with concessions from the Respondent, the material was formally
provided to the Commission as an attachment to the written submissions tendered on
Crown's behalf and was considered by the Commission in the determination of the
arbitration.
Applicant
Crown
[6] Crown, in an affidavit [Exhibit 2] provided evidence in relation to the following:
Employment and Career History
qualified as a Radiographer in the United Kingdom in 1975;
practicing Radiographer for 38 years;
trained in Mammography, Nuclear Medicine, CT and Vascular
Radiography;
professional accreditations; and
previously roles in other health establishments.
Overview of Cardiac Catheter Laboratories
highly specialised and technical area; and
responsibilities for three laboratories/rooms at the PAH running
concurrently.
Patient conditions relating to Catheter Laboratories
approximately 4,000 patients per annum;
Cardiovascular disease; and
multidisciplinary approach.
The Cardiac Catheter Laboratories Clinical Processes
overview of functions which included:
- insertion of pacemakers and defibrillators;
- diagnostic and interventional electrical studies;
- insertion of Occlusion devices;
- Atherectomy;
- Angiography; and
- pump insertion.
Radiographer duties in the Catheter Laboratories
responsible to the Cardiologist for x-ray equipment;
number of staff classified at HP5 report to Crown for clinical and
general supervision;
24/7 emergency clinical on-call service;
five Radiographic staff on duty daily;
Bi-plane unit; and
imaging storage.
Crown's role in Cardiac Catheter Laboratories;
clinical, management, research skills;
oversee Radiographers performance;
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expert knowledge clinical skills, problem solving, complex
contemporary clinical practice standards;
accountability for delivery of specialised clinical medical imaging
services;
management of subordinate staff;
leadership role; and
reporting to Senior Clinicians.
Key Accountabilities
clinical practice;
leadership/work unit management; and
communication/team participation/continuous learning.
Other tasks undertaken by Crown were identified as:
installation of additional equipment including speciality State-wide
Agfa Imprx CV computer reporting and archive system;
assisting with policy development for nursing staff whenever
radiation is involved;
training staff in area of her expertise;
authoring comprehensive training manual "Cardiac Catheterisation
Laboratory Training Manual";
convenor of seminars;
guest speaker at European conference;
member of State-wide Angiographers Group (SWAG);
manage clinical workloads, staff, training and budgets; and
continues to work at HP6 level whilst being paid HP5 wages.
[7] Crown gave evidence that the entire HP process had been flawed and to her detriment
despite having followed all directions from the initial translation and having provided
vast amounts of supporting documentation. Her Work Unit had recommended her for
the HP6 level with support from the Directors of:
Radiography;
Cardiology; and
Electrophysiology.
[8] The Work Level Evaluation Panel (WLEP) had recommended HP6 level. The details
of the WLEP were set out in Attachment SC5 to her affidavit. The Work Level
Evaluation Team (WLET) had not accepted the WLEP evaluation instead finding
"Agreed at least HP5. No LOE to support higher level". The WLET decision was
said to have been based on a decision made a month prior by the Health Practitioners
Oversight Group (HPOSG) which was not a group established under HPEB1. To her
knowledge at no stage was she required to provide additional information and she was
aware she had been described as a Radiographer rather than a Clinical Services
Manager.
[9] In respect of the appeal process, Crown expressed disappointment at the integrity of
the process, the outcome and the apparent ignorance of procedural fairness. Their
findings (at Attachment SC7) were said to be inadequate and against the material
presented to them. It was "simply totally incorrect against all three criteria". The
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Appeal Panel had failed to comply with the explicit obligations set out in HPEB1 with
no material available to confirm the Appeal Panel was properly constituted or reached
its decision in a manner that provided procedural fairness nor what other material was
before the Panel.
[10] Crown continued to question the operation of the Appeal Panel with regards to:
no independent chairperson;
whether there was an evaluation of her role description; and
whether there was a unanimous or split decision.
[11] The entire process reflected arbitrary, inconsistent and unfair decision making which
left her feeling devalued and under recognised. The exercise had remained unresolved
in 2013 placing her at a significant financial disadvantage and given the obvious error
and inconsistency of the WLET decision surrounding the appeal process, the
Commission was requested to require that the initial determination by the WLEP be
confirmed.
[12] Under cross-examination, Crown gave evidence that SWAG was an informal group
of seven radiographers who met outside of work hours to discuss matters pertaining
to their profession [Transcript p. 1-27]. She did not directly manage a budget
[Transcript p. 1-29] however there were five Radiographers who reported directly to
her in addition to other HP3 to HP5 employees. Her role included undertaking
performance appraisals for those staff [Transcript p. 1-31]. The training manual
authored by her was a good resource tool for base level procedures and had been
utilised by staff at the Gold Coast and Nambour Hospitals [Transcript p. 1-32] but had
not been endorsed by Queensland Health [Transcript p. 1-33].
[13] In relation to her Performance Appraisal Development Plan (PADS) (Attachment
SC4) her role description had been "downgraded" to that of HP5 having previously
been at HP6 [Transcript p. 1-36]. The adjustment had taken place following the
lodgement of her Notice of Dispute with the Commission [Transcript p. 1-38]. The
current role description was that of "Team Leader Cardiac" which was conveyed to
her in 2010 or 2011 [Transcript p. 1-39].
[14] On the HP evaluation processes Crown acknowledged that the work unit proposal was
part of the process but was aware there was no guarantee that the level proposed at
the first stage would remain the same throughout the process [Transcript p. 1-40].
With regards to the "flawed" comment from WLET about there being "no LOE to
support a higher level" her evidence was she had never been asked for an LOE and
there was no need to put in for a LOE as her work unit had recommended HP6
[Transcript p. 1-43]. The HPOSG decision was relied upon by the WLET and
according to her the HPOSG was not formally recognised in HPEB1 [Transcript
p. 1-44]. On her claim that the Appeal Panel failed to act in accordance with the
relevant provisions of the Agreement it was her evidence that she was under a HP6
role description and her classification came back as a HP5 [Transcript p. 1-45]. A
range of other employees had the same circumstances as her and were assessed at a
higher level [Transcript p. 1-45]. Crown was evaluated by the WLEP and the work
unit had both recommended her as a HP6 [Transcript p. 1-46]. There was said to be
some doubt that the Appeal Panel had ever met to evaluate her position [Transcript
p. 1-48].
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[15] In re-examination the witness gave evidence in relation to Appeal Panel membership
and in particular the position of an independent person as a panel convenor. Crown
gave evidence that her role included giving direction to Cardiologists and it was the
case a Cardiologist could give directions to the Radiologist. In terms of the training
manual it was used by Radiographers, Nursing staff, Cardiac scientists, Residents,
Registrars who needed to learn more about the process.
Respondent
Grant Brown (Brown)
[16] Brown at the time of hearing was the Director of the Logan Bayside Health Network
having previously held a position with Queensland Health (QH) Workplace Relations
Unit. In the previous roles he had represented QH in the HPEB1 negotiations and
attended the Health Practitioner Interest Based Bargaining Group (HPIBB) as a QH
representative. The HPIBB had been formed after the certification of HPEB1 to
discuss and oversee the implementation of HPEB1.
[17] In an affidavit (Exhibit 3) Brown gave evidence that on the certification of HPEB1 all
existing employees were directly translated from their existing Professional Officer
(PO) and Technical Officer (TO) classifications to the new HP classification structure
as set out in Schedule 3 of HPEB1. The direct translation (Phase 1) identified 998
different position titles representing approximately 10,000 employees who were
translated in accordance with Schedules 2 and 3, with most translated by
11 April 2008.
[18] Brown had involvement with the HP Phase 2 Evaluation Process between May 2007
and November 2009 together with unions representing the effected employees. Under
the agreed process for Phase 2 each work unit was required to prepare role descriptions
for each position in the work unit with that role description then evaluated against the
agreed methodology, being the Health Practitioner Work Level Statements (WLS).
[19] The evaluation process involved five procedural "steps" which were designed to assess
the relative work value of each application. The steps were identified as:
Step 1 - Standardised Data Set - Work Unit Proposals (WUP), Employee
Initiated Application (EIA) - ensure all information and required
documentation submitted and recorded;
Step 2 - Work Level Evaluation (WLE) to access level of proposed role
description against WLS. Panels were formed from the specialist
discipline - WLEP responsible for individual positions specific to a
particular discipline;
Step 3 - Intra-Disciplinary Relative/Consistency Review conducted by a
multi-disciplinary WLET - to ensure the relativity and consistency of HP
classifications with specific disciplines/professions across
departments/units/districts - Work Level Evaluation Principles and
Process Overview;
Step 4 - Inter-Disciplinary Relativity/Consistency Review - conducted by
WLET to ensure that evaluation process has been consistently applied and
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to monitor relativities and ensure consistency across HP
disciplines/professions/departments/units and districts;
Step 5 - HPIBB Oversight - including Oversight Sub Group (OSG) - to
provide recommendations on all HP 8 evaluations and matters referred to
it by WLET regarding anomalies or issues at HP6 and HP7 level - any
unresolved issues between the WLEP and the WLET referred to OSG for
resolution.
[20] Following the conclusion of each step the members of WLEP or WLET were required
to assess the proposed role description and propose a HP classification for the role
descriptions. On the completion of Step 5 when all role descriptions were evaluated,
the evaluated outcomes deemed sufficient to recommend a HP classification were sent
to the Director-General for approval. Brown acknowledged there were a small
number of evaluations where an unintentional oversight had occurred. The intention
of the steps were to:
ensure consistency;
equity across a particular discipline;
equity across various disciplines and professions; and
reach a holistic evaluated outcome relying on all the criteria.
Brown went on to indicate the Phase 2 had been applied to approximately 11,000
proposed role descriptions.
[21] The evidence included an expanded overview of the operation of the (previously
mentioned) five steps including:
Organisational consistency;
WLEP membership - role and requirements;
WLS - designed to reflect job characteristics:
scope and nature of level;
knowledge, skills and expertise;
accountabilities;
WLET role in Inter-Disciplinary Relativity/consistency review;
OSG formation, membership and role.
[22] On 12 November 2009 the Director-General approved the Phase 2 evaluation
outcomes which had approximately 75% of the substantive position holders receiving
work unit proposed level at the evaluation outcome with the majority of HPs satisfied
with their outcome. The Phase 2 result led to a sizable workforce adjustment with QH
needing to make a significant financial investment due to the classifications in the
workforce:
7.5% - increased by two or more classification levels;
52.2% - increased by one classification level; and
40.3% remained at current Phase 1 level.
[23] In relation to the appeal process the parties with assistance from the Commission
agreed to design a process and in December 2009 released an Intent to Appeal
document to all HPs. The document contained an end date (8 January 2010) for which
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all appeals against the Phase 2 outcome must be lodged. At 8 January 2010
approximately 1,500 Intent to Appeal applications were received.
[24] The parties, QH, United Voice, Industrial Union of Employees, Queensland (UVQ)
and Together Queensland, Industrial Union of Employees (TQ), agreed on a document
"Work Level Statements and Guideline for Health Practitioner Roles" (Guidelines) to
be used to assist appellant's in the preparation of their appeals. Those unsuccessful in
the Phase 2 process were given the opportunity in the appeals process to provide
quantifiable evidence that supported the particular WLS contained in their proposed
role description. The Guidelines were designed to assist HPs ensure they understood
what evidence was required which then assisted the Appeal Panel in their
deliberations. The Phase 2 Appeal process did not require an appellant to meet all
WLS with a holistic approach taken in the assessment of roles and determination of
classification levels. On 31 August 2010 an in-principle agreement was reached by
the parties to the Phase 2 Appeal instructions with all documentation released to the
HP workforce.
[25] The Appeal Panel reviewed just over 1,000 applications with a process that evaluated
the evidence provided by an appellant and matched documentary evidence to the most
applicable WLS. Brown's recollection was that four discipline representatives
considered every appeal and in the large disciplines there was at least one
representative from the particular profession, in some cases two representatives.
[26] In the case of Crown's appeal, it was Brown's evidence that:
the Appeal Panel was constituted in accordance with clause 19.6 and
sections 6.4 - 6.5 of HPEB1;
the Appeal Panel was provided with all relevant material:
duties;
roles and responsibilities;
additional material; and
submissions from Crown;
pursuant to clauses 19.7 and 19.10 of HPEB1 the Appeal Panel:
considered the WLE and all material relating to Crown; and
recommended her role be classified at HP5 level.
[27] Given the large amount of evaluations conducted in the Phase 2 process, the process
agreed by the parties was fair and equitable.
[28] Crown's application was dealt with in accordance with the evaluation and appeal
process established by the parties.
[29] Under cross-examination questioning of Brown went to the issue of the WLS for the
evaluation process and the development of the statements after the certification of
HPEB1. The evidence was that draft work level statements were part of HPEB1
[Transcript p. 1-62]. Brown did not accept the parties had failed to comply with
undertakings regarding WLS being incorporated into the Award [Transcript p. 1-64].
Brown's evidence in terms of the WLET was they never changed or altered a
classification, only endorsing them or not endorsing them [Transcript p. 1-67]. A
significant number of questions were put to the witness regarding the conduct of the
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classification processes pursuant to HPEB1 [Transcript pp. 1-67 to1-81] with Brown
giving evidence from his perspective of the overall process.
[30] In relation to Crown's appeal on what would have been considered by the Appeal
Panel, Brown stated:
"Yeah. As I explained - oh, well, I had a number of admin people that put all the
information together and ensured that document - that all the documents were
there that were received and we doubled and triple checked that, so it is my
understanding that all the information that Miss Crown and all of the other
appellants put in would have been presented to the appeal panel for
consideration." [Transcript p. 1-84]
[31] In re-examination Brown was taken to numerous questions asked about the process
outside of the certified agreement. Brown's evidence was that clause 66.1 of HPEB1
allowed the parties to work towards arrangements in relation to the implementation of
the HP classification structure. Brown offered a view in respect of the power available
to the Director-General in ultimately recommending the classification level. To the
best of his knowledge, Crown's Appeal Panel had been constituted in accordance with
clause 19.6 of HPEB1.
Donald Hamilton (Hamilton)
[32] Hamilton, at the time of hearing, was a Principal Advisor, Work Evaluation and
Governance, Workforce Advisory and Remuneration Resource Services at QH. Over
the past five and a-half years he had principally worked on the implementation of the
HP evaluation process. The evidence contained within his affidavit [Exhibit 4] was
based upon his knowledge and experience with the HP Phase 2 evaluation process
undertaken with HPEB1. The role performed by him was to provide impartial
evaluation process advice to members of the WLEP, Intra-Disciplinary Review Panel
and WLET.
[33] Hamilton's evidence around the HP Phase 2 process involving the five steps mirrored
that of Brown including a breakdown of the tasks covered by each of the steps.
[34] In terms of Crown, her appeal (SSP1D3428) was identified for review by the OSG
with their written report and verbal clarification of their evaluation reviewed by Step 4
WLET HP6-8 on 8 October 2009. The WLET HP6-8 reviewed Radiography WLEP
recommendations and decided to "review HP5 positions".
[35] Hamilton provided similar evidence to Brown on the formation of the OSG pursuant
to HPIBB as a sub-group to fast track and focus on work evaluation requests from
WLET HP1-5 and HP6-8. The membership of the OSG was that of two members
from QH - Human Resources Branch and two members from the unions supported by
a secretariat.
[36] Hamilton addressed the issue raised by Crown that "staff are classified at the HP5
level like me but report to me for both clinical and general supervision" evidencing
that such a situation is consistent with the design principles of the HP classification
structure. An objective of the HP classification structure was to enable clinician
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stream positions to be remunerated at the same HP level as their Operational Manager.
This parallel arrangement was said to be implicit in Table 1 of Schedule 4 of HPEB1:
Diagram 1: HP Streams
HP8
HP7 Clinical HP7 Management
HP6 Clinical HP6 Management
HP5 Clinical HP5 Management
HP4 Clinical HP4 Management
HP3 Clinical HP3 Management
HP2
HP1
The parallel stream approach challenged the traditional hierarchical "supervisor-
subordinate" concept and presumed the remuneration level of an operational
management position precluded a subordinate clinical position from being
remunerated at the same level.
[37] In evaluating the HP positions the evaluators were required to consider each HP
position from both a clinical and organisational management perspective. This
identified and separated the "type of authority" for both professional and operational
supervisors responsible for subordinate clinicians.
[38] The OSG evaluation of Crown's position observed the role reported to an Assistant
Director Medical Imaging HP6 with her position assessed as accountable for
operational and professional management of Cardiac Angiography within the Catheter
Laboratory.
[39] Lines of Enquiry (LOE) was an option for both the WLEP and OSG in Radiography
but not a mandated requirement within the process. Additional information would
only have been sought if the evaluators needed to clarify any ambiguity from the
original submissions. At Step 4 there was no authority to make such enquiries having
to work through OSG.
[40] Hamilton stated in the Step 4 stage of the process the WLET HP6-8 had arrived at a
"holistic" evaluated outcome based on the relative work value of all the proposed HP1
to HP5 positions across all HP disciplines throughout the State. There was doubt
expressed about how the Radiography WLEP had interpreted the material provided
and subsequent assignment of WLS to the HP6 level recommendation.
[41] Crown's application had been an evaluated outcome by Step 2 Radiography WLEP
and then subject to the standard reviews by Step 3 IDR and Step 4 WLET HP6-8 and
the OSG. The deliberations of WLET HP6-8 of 8 October 2009 determined after
discussions with OSG, she be assessed at HP5 - HPIBB and recommended
accordingly.
[42] Under cross-examination Hamilton conceded the WLS (attachments to his affidavit)
contained additional material to the WLS attached to HPEB1 however the changed
document was as a result of negotiations between the parties to the Agreement
[Transcript p. 1-90]. Hamilton accepted the WLS contained additional comments that
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were not in the original WLS [Transcript p. 1-91]. The OSG had been established
under clause 66 of HPEB1 [Transcript p. 1-93]. Additional steps agreed by the parties
had not gone to a ballot of employees [Transcript p. 1-94]. On the records (minutes)
kept regarding the appeals process, Hamilton gave evidence of believing such records
were accurate [Transcript p. 1-99]. Crown was classified in the position of
Radiographer as her discipline and not her job title [Transcript p. 1-104]. The
evaluators in assessing classifications conducted the assessments on the macro rather
than the micro view [Transcript p. 1-105]. Hamilton maintained the WLET HP6 and
HP8 had conducted an assessment of the work value [Transcript p. 1-106]. Hamilton
was questioned regarding a HP communique (DGH6) which contained the following
"We cannot have a situation where two employees are doing identical or very similar
roles are remunerated at different levels" and asked how it could be justified for some
employees being classified as HP6 and others at HP5. The response was "Yeah, the
panels could have looked at an employee initiated application and came up with
additional information and made a decision" [Transcript p. 1-113].
[43] In re-examination Hamilton provided further evidence regarding the Phase 2 process
and the HPIBB group.
Submissions
Crown
[44] The submission claimed that QH had failed to comply with the provisions of HPEB1
in respect of the reclassification of Crown as a HP leading to an underpayment of
wages.
[45] The three principle questions to be answered in the proceedings were identified as:
What are the role functions of the Commission in relation to the
reclassification of the Applicant and the HPEB1 Phase 2?
Has an error or errors occurred in relation to the determination of the
Applicant's classification level under HPEB1 Phase 2?
If the Commission finds that an error has occurred what remedy should
the Commission order?
[46] In regards to the omission (unintentional) of documentation on behalf of Crown and
acceptance by QH that the material was part of her appeal documentation and should
form part of the material before the proceedings, the Commission should consider the
material given it is not bound by technicalities or rules of evidence with Crown not to
be disadvantaged through representative error.
[47] The relevant facts were that Crown had translated to the HP structure at the HP4 level
consistent with Schedules 2 and 3 of HPEB1. The Work Unit Proposal developed in
accordance with Schedule 5 of HPEB1 had provided a common role description for a
number of Clinical Service Managers in a range of disciplines at the PAH with
identical role descriptions that were common for all positions which proposed a HP6
level classification. The role description was to be evaluated and classified as a
combined clinical/management role rather than a purely clinical role.
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[48] The common role description (Attachment SC3) contained material relating to:
purpose, context and reporting requirements of the position;
key accountabilities:
clinical practice
leadership/work unit management
communication/team participation
continuous learning; and
mandatory requirement.
[49] The key skill requirements that the selection panel based their assessment criteria on
were:
clinical expertise;
communication;
operational management; and
leadership.
[50] In evidence Crown had given additional details of her role which included:
setting up additional cardiac catheter laboratories;
statewide activities - expert status;
SWAG;
Australian Institute of Radiography/roles;
development of PAH cardiac catheter training manual; and
state-wide tender process.
[51] Crown's evidence regarding the other managers at the PAH with the same role
description were classified at HP6 whilst she remained at HP5. Minor adjustments
were made to her role description in 2012 after her notification of dispute was lodged
with the Commission with the adjustments being of no significance.
[52] The WLEP evaluation of Crown's role description had found it was at HP6 with the
evaluation confirming overwhelmingly the HP6 WLS had been met. On examination
of Attachment SC5 it confirms WLEP signed off at HP6 on 23 October 2008 and also
signed off by WLET at HP6 for forwarding to the Director-General on
10 November 2008.
[53] Some 12 months after both evaluations Crown's position was referred to the OSG and
the WLET HP6-8 and was considered on the title of Radiographer (only) with no
reference to her management role. The actions of the OSG and the WLET HP6-8
were said to be inconsistent with the HP communique. The OSG in this case had not
met its role under the communique.
[54] The submission went on to identify what were inconsistencies said to have emerged
in the proceedings through the evidence of Brown and Hamilton's evidence and
materials attached to their affidavits. There had been a failure to consider some of the
attributes of Crown which were actually at a higher level than those required for
combined clinical/management HP6 positions. At no stage during the evaluation
process was there ever a suggestion by QH that the original role description of Crown
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was anything less than a consultant or expert practitioner. The specialist level
knowledge and skills associated with the HP5 level were at a lower level than Crown's
acknowledged "expert consultant, authoritative and state-wide" status.
[55] The Appeal Panel had failed to conduct an evaluation of the nominated role
description and position making the comment:
"The appellant is clearly a high level HP5 but the evidence provided does not
substantiate claims across 3 criteria for the HP6 level."
The Appeal statement was clearly deficient and failed to provide any basis for the
decision or an explanation why as a high level HP5 it was unable to match the
evidence to any of the three identified criteria and HP6 WLS and why the Panel failed
to consider all the criteria.
[56] There was an absence of evidence on how the Appeal Panels were constituted or what
information was taken into account. Consistent with the established principle
expressed in Jones v Dunkel1 where the absence of any material or evidence from the
QH about the conduct of the appeal, makeup of Appeal Panel and reasons for decision,
it was submitted the Commission should draw an appropriate inference to the effect
that if that evidence had been presented it would have been unhelpful for QH's case.
[57] On the powers of the Commission in relation to the reclassifications and the HPEB1
Phase 2 the submission cited a number of authorities including State of Queensland
(Queensland Health) AND Together Queensland, Industrial Union of Employees and
Others2 where Hall P had made a number of specific declarations:
"(A) That the Queensland Industrial Relations Commission (the
Commission) has no power or jurisdiction to order or direct that
Queensland Health pay any wage increase that may arise as a
consequence of the reclassification of the position of a Health
Practitioner in the course of the determination by the Commission of a
'reclassification dispute' which is lodged with the Commission under
the Health Practitioners (Queensland Health) Certified Agreement
2007 (HPEB1) before the commencement of the Health Practitioners
(Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so
that such wage increase has effect from 1 September 2007;
(B) That the Commission has no power or jurisdiction to order or direct
that Queensland Health pay any wage increase that may arise as a
consequence of the reclassification of the position of a Health
Practitioner in the course of determination by the Commission of a
'reclassification dispute' which is lodged with the Commission after the
commencement of HPEB2, so that such wage increase has effect
from 1 September 2007;
(C) That a wage increase that may arise as a consequence of the
reclassification of the position of a Health Practitioner by the
1 Jones v Dunkel [1959] HCA 8
2 State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and
Others (C/2012/28) - Decision (No. 2) <http://www.qirc.qld.gov.au>
-- 13 of 28 --
14
Commission in the course of 'classification dispute' under HPEB1
and/or HPEB2, is not a 'wage increase' for the purposes of clause
18.1(b) of HPEB1 or HPEB2." (emphasis added)
[58] Whilst acknowledging declarations (B) and (C) applied to Crown the Commission was
requested to have regard to the specific and limited wording of the declarations,
restricted nature of the Industrial Court proceedings and the declaration originally
sought by QH but not granted. The declarations were specific and limited in particular
to 1 September 2007.
[59] Considered in context the declarations were said to simply declare:
"That the Commission has no power or jurisdiction to order or direct that
Queensland Health pay any wage increase that may arise as a consequence of
the reclassification of the position of a Health Practitioner in the course of
determination by the Commission of a 'reclassification dispute' which is lodged
with the Commission after the commencement of HPEB2, so that such wage
increase has effect from 1 September 2007." (emphasis added)
[60] In Dr John Parke AND State of Queensland (Queensland Health)3 a Full Bench stated:
"[27] In considering the correct approach for the Commission to adopt, if it is
satisfied on the evidence that an error in the reclassification process has
occurred, reference is made to State of Queensland (Acting through
Queensland Health) v Together, where his Honour President Hall
considered, but did not determine, whether the Commission is restricted
solely to the powers conferred on it by HPEB1 and HPEB2, or whether it
may have resort to those of its normal statutory powers which are not
inconsistent with HPEB1 and HPEB2.
[28] The Full Bench takes the view that the reference of the dispute to the
Commission under either clause 19.15 of HBEB1 or clause 24.15 of
HPEB2 has the effect of enlivening the Commission's powers under s. 230
of the Industrial Relations Act 1999 ('the Act') and permitting the
'reclassification dispute' to be dealt with pursuant to that section."
[61] In Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State
of Queensland (Queensland Health)4, the decision of Fisher C was said to have
considered the nature of the requirement to show error in the reclassification process,
specifically whether the failure by the Appeal Panel to consider WLS submitted by
the Applicant constituted an error in the process as did the assessment of other WLS
by the Appeal Panel which were not nominated by the Applicant. It is exactly the
same logic and argument in this case.
[62] The evidence of Crown and to some extent Brown and Hamilton identified a number
of both procedural and factual errors that occurred in the reclassification process and
outcome applied to Crown. The errors were multiple and repeated. A range of
3 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
4 Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland
(Queensland Health) [2014] QIRC 053
-- 14 of 28 --
15
procedural errors occurred when QH and the union parties to the EBA agreed to
multiple changes to the specific process in the EBA without seeking to have those
changes approved by the employees or seeking an order from the Commission under
s 169 of the Industrial Relations Act 1999 (the Act).
[63] The submission identified a number of errors that included:
failure of Appeal Panel to conduct an evaluation;
failure to provide adequate reasons for the decision;
failure to provide Crown with an opportunity to respond to adverse
findings; and
failure to comply with the appeal process - clause 19 of HPEB1.
[64] The remedy sought was a finding that the initial decisions of WLEP and WLET of
October/November 2008 were consistent and appropriate and it was only the failure
to implement the HP6 recommendation that the process became subject to error. Up
until that point there is no evidence of error or any question as to the accuracy and
validity of the role description. QH should be instructed set aside the erroneous
WLET HP6-8 decision and subsequent acceptance by the Director-General.
[65] There is no valid argument that Crown does not meet the HP6 WLS for either a mixed
management clinical role or a purely clinical role.
[66] Crown was entitled to have the processes certified in HPEB1 properly and consistently
applied which was not the case as the Appeal Panel had acted on other arrangements
developed by parties which were outside of HPEB1. Procedural fairness was
important with the requirement of the appeal body to comply with the rules of natural
justice in the course of reaching a decision.
[67] In the matter of Annetts v McCann5, Mason CJ, Deane and McHugh JJ had stated:
"It can now be taken as settled that, when a statute confers power upon a public
official to destroy, defeat or prejudice a person's rights, interests or legitimate
expectations, the rules of natural justice regulate the exercise of that power
unless they are excluded by plain words of necessary intendment."
[68] There was comprehensive evidence submitted by Crown as to how she had met the
appeal criteria however the Appeal Panel's decision was not consistent with the
material provided.
[69] The Commission was requested to order that the original appeal, WLET HP6-8 and
any subsequent decision be set aside or varied so that Crown is reclassified to the
originally proposed, determined WLEP be confirmed HP6 level.
Queensland Health
[70] The matter before the Commission related to a dispute where it was argued that QH
had failed to comply with the provisions of an enterprise agreement and failed to
implement a reclassification level leading to an underpayment of wages. There were
5 Annetts v McCann [1990] HCA 57
-- 15 of 28 --
16
allegations that QH and union parties to HPEB1 had agreed to multiple and repeated
changes to specific processes set out in HPEB1 without seeking approval of relevant
employees in accordance with the Act and likewise having amendments approved by
the Commission in accordance with the Act.
[71] In the proceedings on 25 November 2013 Mr Butler, representing the Applicant, made
the following statement:
"Commissioner, it's an important element of our claim because our claim has
two aspects to it, and always has had two aspects to it. We argue, clearly, that
the decision taken in relation to Ms Crown's classification level is wrong and is
flawed by error, but we also argue that some of the things that have been done
are not consistent with the requirements of the enterprise agreement and the
rights and privileges afforded to Miss Crown by that agreement." [Transcript
p. 1-4]
[72] The dispute has been brought to the Commission in accordance with clause 24.15 of
HPEB2.
Reclassification dispute
[73] QH submits that the power and jurisdiction of the Commission is drawn most, if not
all, from the terms of the reclassification procedure which must be conducted and
exhausted before a classification dispute can be referred to the Commission. HPEB1
and HPEB2 each acknowledge that the general dispute resolution procedures in clause
15 of those agreements are maintained in effect, but a separate reclassification dispute
procedure is created and the Commission is empowered to determine such a dispute
as a distinct but derivative part of the whole reclassification process
[74] As a consequence it is submitted that the powers and jurisdiction of the Commission
are confined to the determination of a reclassification dispute at the end of the
reclassification process. See Dr Adam Scott v Queensland Health6 whereby Hall P at
paragraph 19 stated:
"Further, clause 19.15 of the Certified Agreement does not provide for Judicial
Review of the Evaluation Project and for any subsequent appeal. Rather, the
Commission is entrusted with the resolution of a 'reclassification dispute'."
[75] Ultimately the Commission's powers are confined to correcting any error that may
have occurred in the agreed reclassification process with an applicant being required
to demonstrate that an error has occurred in the process.
[76] This position was confirmed by the Full bench in Dr John Parke AND State of
Queensland (Queensland Health)7 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
6 Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision
<http://www.qirc.qld.gov.au>
7 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
-- 16 of 28 --
17
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."
[77] Therefore it was submitted that the Commission was not "at large" to resolve any
wider question as to the correct classification of an Applicant. That is the party
referring such a dispute to the commission does not thereby gain access to a de novo
assessment by the Commission. However based on the closing submission submitted
by Mr Butler on behalf of Crown it appears that Mr Butler is pursuing a fresh
merit-based review.
Implementation of the health practitioner classification structure
[78] The process set out in both HPEB1 and HPEB2 is of three steps that must be
undertaken before a reclassification dispute can be referred to the Commission. The
first step was a direct translation of employees to the new HP classification structure
as set out in Schedules 2 and 3 of HPEB1 where in the case of Crown she had
translated from PO4 to HP4 in accordance with Schedule 3 of HPEB1. The second
step involved the work level evaluation project which afforded employees the
opportunity to have their job description roles and responsibilities evaluated against
work level statements which on the evidence identified a thorough and rigorous
process which ensured the evaluation and review process delivered valid and correct
evaluations.
[79] The Phase 2 evaluation and the appeal process adopted by the parties was commented
on by the Full Bench in Dr John Parke AND State of Queensland (Queensland
Health)8 whereby the Full Bench at paragraph 35 stated:
"The HPEB1 provided for a detailed review process against the Phase 2
evaluation of the Applicant's position in the new Health Practitioner
Classification Structure. The appeal process was designed with the assistance
of the Commission and involved QH, the Queensland Public Sector Union and
United Voice. The review panel that assessed the Applicant's appeal was
constituted by two management representatives, a workplace representative and
a representative of the Applicant's discipline."
[80] The third step in the process was that any employee who was dissatisfied with the
outcome of the Phase 2 evaluation process could lodge an appeal if they disagreed
with the recommendation in relation to their role.
[81] The appeal panel was only empowered to make a recommendation to the
Director-General or their authorised delegate who would then make a decision
regarding the correct classification level of the position being evaluated. The net
result of the process is that the operative decision in relation to the correct
classification of an employee is the decision of the Director-General or their
authorised delegate. The determination of the Appeal Panel stands apart from the
Phase 2 evaluation and therefore the recommendation of the Appeal Panel and the
subsequent decision of the Director-General wholly displaces and removes any effect
of the process undertaken in Phase 1 and Phase 2 of the classification procedure. The
8 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
-- 17 of 28 --
18
only impact of Phase 1 and Phase 2 is that they must be undertaken before an appeal
can be brought.
[82] The only manner by which an employee can conceivably attack and displace the
existing classification after the appeal recommendation is to demonstrate that an error
has occurred in the process.
[83] The evidence from Crown had not substantiated a case for her to be reclassified from
HP5 to HP6 and there was certainly no evidence of state-wide aspects of her work.
The reliance upon SWAG was of little assistance as it was a self-formed group without
involvement of QH and further the reliance upon having participated in the tendering
process was of less assistance in that there were some eight other persons involved
from varying professions who had input into that process. There was no clear
evidence of Crown having provided strategic direction to larger hospitals.
[84] The submission took issue with the Performance Appraisal and Development Plans
(PADS) (Attachment SC4) on the basis of the document lacking detail, changed
criteria and the signature of the review officer. It was said that no weight should be
attached to the document as substantiating the claim for HP6. In relation to Crown
having provided direction within a multidisciplinary team the evidence showed her in
essence providing directions to only a small group of Radiographers in that area and
at times receiving direction from the Cardiologist who was on duty.
[85] The claim by Crown that five other people who worked in the same role description
and provided a similar evidence to the Appeal Panel was questioned in the submission
on the basis of their not being evidence before the Commission about the five other
people to whom she referred and it must be noted that the Appeal Panel was in place
to hear an individual's case against the recommended classification they received
during the WLEP.
[86] The Commission was taken to various case law by Mr Butler in trying to substantiate
errors in relation to the appeal process. QH drew to the attention of the Commission
the Minister for Immigration and Ethnic Affairs v Wu Shan Liang9 which was referred
to by the Full Bench in Dr John Parke AND State of Queensland (Queensland
Health)10 where Brennan CJ, Toohey, McHugh and Gummow JJ had said:
"These propositions are well settled. They recognise the reality that the reasons
of an administrative decision-maker are meant to inform and not to be
scrutinised upon over-zealous judicial review by seeking to discern whether
some inadequacy may be gleaned from the way in which the reasons are
expressed."
[87] QH submits this application should be dismissed and that Crown retains the
classification of HP5 which was ultimately endorsed by the Director-General
following a thorough and rigorous process that ensured the evaluation and review
process delivered valid and correct evaluations.
9 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
10 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
-- 18 of 28 --
19
[88] On the argument of multiple and repeated changes having been made to the provisions
of HPEB1 without a ballot of employees having been taken in accordance with s 169
of the Act was the view of QH that through clause 66.1 the parties had the ability to
consider a range of matters during the life of the agreement and that these
considerations did not breach of HPEB1 or the s 169 of the Act. HPEB1 specifically
provided the ability for the parties to make agreement and to consider a range of issues
during the life of the agreement without having to make an application to vary the
agreement in accordance with s 169 of the Act. At clause 66.1:
"The parties agree that there are a number of key priority issues, projects and
reviews which will be considered during the life of the Agreement. Issues,
projects and reviews to be addressed include:
(a) the implementation of the Health Practitioner Career Structure as set
out in Part B of this agreement, including the approval of final Work
Level Statements as set out in Clause 17.2."
[89] In the matter of State of Queensland (Queensland Health) v Together Queensland,
Industrial Union of Employees and Others11 Hall P at paragraph 17 stated:
"Certified agreements, like commercial contracts, are made by agreement.
Certified agreements, like awards, are (by the Act) made binding upon persons
who are not parties to the agreement."
[90] The provisions of HPEB1 were binding upon Crown’s employment with the
Department.
[91] The matter of process and jurisdiction was being heard by a Full Bench at the time
these submissions were prepared and as such a decision was not available for
consideration at that time.
[92] QH recognises the statements made by the Full Bench in Dr John Parke AND State of
Queensland (Queensland Health)12 whereby the Commission's powers under s 230 of
the Act are enlivened by reference to the dispute however the use of such powers are
not inconsistent with HPEB1 or HPEB2.
[93] In conclusion as stated earlier in the decision it is the view of QH that the application
made by Crown should be dismissed for two reasons. Firstly there has not been a case
substantiated for Crown to be reclassified from HP5 to HP6 and secondly no errors
within the reclassification process have been clearly demonstrated to the Commission.
11 State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees and
Others (C/2012/28) (No. 2) - Decision <http://www.qirc.qld.gov.au>
12 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
-- 19 of 28 --
20
Crown in reply
[94] The submission in reply, whilst encompassing issues beyond matters of law, did
engage in commentary in respect of:
Full Bench decision in Dr John Parke AND State of Queensland
(Queensland Health)13 regarding the involvement of the Commission in
the process;
principles applicable to determining work value and classification within
the explicit requirement set out in the guiding principles in Schedule 5 of
HPEB1;
Dr Adam Scott v Queensland Health14 - Hall P - no suggestion that
evidence or dispute is restricted to the decision of the Director General
and the Appeal Panel rather than the earlier processes adapted by QH;
Together Queensland, Industrial Union of Employees (for Gregory
Shillig) v State of Queensland (Queensland Health)15; and
Health Practitioner Communique - 1 July 2009:
"The parties represented on the HPIBB Group are committed to
ensuring that the evaluation and review process deliver valid and
correct evaluations. Health practitioners want evidence based, work
content valid work level evaluations. It is imperative for the
workforce, QH, Queensland Government, unions and every health
practitioner that the principle of comparable remuneration for
comparable work is adhered to. If we do not get this right, the
workforce will be disenfranchised. We cannot have a situation
where two employees doing identical or very similar roles are
remunerated at different levels."
Conclusion
[95] The application was in effect the subject of a one day sitting on 13 November 2013
with written submissions being provided by the parties on 5, 23 and 29 May 2014.
[96] In the course of proceedings the case prosecuted on behalf of Crown placed significant
reliance upon matters that could be best described as "jurisdictional or procedural
matters" in regards of the behaviour of the Respondent.
[97] This application was not a matter being heard in isolation before the Commission in
that there were a number of matters of a similar or same nature on foot before various
members of the Commission and in some cases the representative appearing on behalf
of Crown (Gerard Butler) was a participant in a number of the applications.
[98] One such matter was that of Newton v State of Queensland (Queensland Health)
(HP/2013/35) before Deputy President Kaufman where it would seem similar issues
13 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision
<http://www.qirc.qld.gov.au>
14 Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision
<http://www.qirc.qld.gov.au>
15 Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland
(Queensland Health) [2014] QIRC 053
-- 20 of 28 --
21
of jurisdictional and procedural conduct had been raised by Butler who was acting on
behalf of Newton. Deputy President Kaufman on 12 March 2014 in the course of the
arbitration proceedings requested that the parties provide written submissions relating
to the matters of concern.
[99] Vice President Linnane in the role as the administrator of the Commission referred the
matter to a Full Bench who heard the matter on 9 April 2014, subsequently releasing
a decision on 1 August 2014 (Newton v State of Queensland [Queensland
Health]16)(Newton). The Full Bench identified the issues (from the perspective of the
Applicant) that were before them as being:
"a. Does Schedule 5 of HPEB1 specify the process to be followed in Phase 2
Work Level Evaluations Process?
b. Does Clause 19 Work Level Evaluation Process of HPEB1 specify the
appeal process to be followed and the composition of the appeal panel?
c. Were the parties to HPEB1 or the HPIBB authorised to develop and apply
by agreement additional evaluation and approval processes in addition to or
in substitution for the processes specified in Schedule 5 or Clause 19?
d. If the answer to (c) is in the affirmative can those measures override or
supplant the process specified in HPEB1 without an alteration to the terms
of HPEB1 and an appropriate order from the Commission?"
[100] The Applicant had in the written submission (in Newton) also identified the following
areas where the respondent was said to have departed from HPEP1. They were as
follows:
"creation of additional evaluation steps and layers beyond those specified in
HPEB1
changes to the roles functions and responsibilities of bodies or groups
established under and by the enterprise agreement, e.g. creation of two
different not a single Work Level Evaluation Team WLET WLET HP1-5
and WLET 6-8 working independently of each other,
creation of the HP Oversight Group HPOSG to conduct evaluations,
classification levels previously determined by the Work Level Evaluation
Panel WLEP being changed by one or both of the WLETs, HPOSG or Health
Practitioner Interest Based Bargaining Group HPIBB ,
referral of all proposed classifications to the Director General for approval
and implementation.
rejection of WLEP evaluations by the WLET on the grounds that the role
description was incorrect or in error
ignorance, rejection or non consideration of previously accepted specialist
or expert level status recognised in the previous Professional Officer
classification structure or previous role descriptions
significant modifications to the Appeal process set out in clause 19 including
the required composition of the Appeal Panel, the application of additional
guidelines and redefinition of the Work Level Statements used in the Appeal
Process, restrictions on the nature of appeals and a requirement that
successful appellants meet all appeal criteria."
16 Newton v State of Queensland (Queensland Health) [2014] QIRC 121
-- 21 of 28 --
22
[101] The Full Bench in their considerations at paragraphs 13 to 18 (inclusive) stated:
"[13] Clause 19 of HPEB1 deals with appeals. At cl 19.7 it provides:
"The Appeal Panel has the power to consider whether the Work
Level Evaluation of all the employee's duties, roles and
responsibilities should result in the employee's position being
reclassified."
[14] The appeal to the Appeal Panel is, in our view, akin to a hearing de novo.
In short, the Work Level Evaluation Panel ('WLEP') and Work Level
Evaluation Team ('WLET') conducted the work level evaluation and came
to the recommended classification level. This is the Phase 2 process. The
Appeal Panel's sole role is to consider whether the employee's position
should be reclassified.
[15] The submission by the applicant dealing with the adequacy of the process
adopted during the Phase 2 process is, in our view, not relevant to the
Appeal Panel's conclusion because it must make its own decision (by way
of recommendation to the Director General).
[16] The referral of the procedural and jurisdictional issues to a Full Bench has
provided the Commission with the first opportunity to properly consider
the scope of what constitutes a 'reclassification dispute' that is referred to
the Commission for hearing under the HPEB1 processes.
[17] In our view, given the nature of the task undertaken by the Appeal Panel
to consider whether the Work Level Evaluation of all the employee’s
duties, roles and responsibilities should result in the employee's position
being reclassified we consider that the role of the Commission is to
determine whether the Appeal Panel erred.
[18] Thus, in order for the applicant to succeed in arbitral proceedings before
a single Member of the Commission, the applicant must demonstrate, that
the Appeal Panel erred. The Commission is not concerned with anything
that occurred prior to the appeal process."
[102] In the consideration of this application I adopt the position of the Full Bench as
articulated in paragraphs 13 to 18 (inclusive) in terms of determining the relevant
classification of Crown pursuant to HPEB1.
[103] Additional matters arising from the decision in Newton included the following
questions which the Full Bench addressed:
Was the Appeal Panel properly constituted?
Did HPEB1 permit the application of additional guidelines and
redefinition of Work Level Statements?
Was the process of the Appeal Panel Flawed?
Is the creation of a HPOSG permitted under HPEB1?
Does HPEB1 permit or require only a single WLET?; and
Have the terms of HPEB1 been varied?
-- 22 of 28 --
23
[104] The particular relevance of the (previously mentioned) additional matters was that
Crown had advanced argument on each of those matters in support of the classification
level of HP5 being procedurally incorrect. The findings of the Full Bench however
are not able to be adopted per se (as was the case with paragraphs 13 to 18 inclusive
of the decision) but needs to be in some cases responded to in terms of the evidence
before these proceedings.
Appeal Panel
[105] In evidence Crown had challenged the integrity of the process claiming the Appeal
Panel had not been properly constituted as there was material available regarding the
constitution of the Panel and further questioned the operation of the Panel.
[106] Evidence from Brown specific to Crowns Appeal was that:
the Appeal Panel was constituted in accordance with clause 19.6 and
sections 6.4 - 6.5 of HPEB1;
the Appeal Panel was provided with all relevant material:
duties;
roles and responsibilities;
additional material; and
submissions from Crown;
pursuant to clauses 19.7 and 19.10 of HPEB1 the Appeal Panel:
considered the WLE and all material relating to Crown; and
recommended her role be classified at HP5 level.
[107] Supportive of the evidence of Brown on the operation of the Panel was the Appeal
Review Statement (Attachment 6 to his affidavit) relating to Crown's Appeal (dated 9
December 2010) that recorded the following:
"Scope & Nature of Level
Panel Comments: The duties or accountabilities could not be
matched to work level statements at the nominated
level.
Knowledge, Skills & Expertise
Panel Comments: The duties or accountabilities could not be
matched to work level statements at the
nominated level.
Accountability
Panel Comments: The duties or accountabilities could not be
matched to work level statements at the
nominated level.
Additional Panel Comments
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.
-- 23 of 28 --
24
The appellant is clearly a high level HP5 but the evidence provided does not
substantiate claim across the 3 criteria for the HP6 level."
[108] The applicant had the obligation to demonstrate that the Appeal Panel had not been
properly constituted nor carried out its functions in accordance with the provisions of
HPEB1 and apart from the limited evidence of Crown provided little more to support
that position.
[109] On consideration of the evidence of Brown which included documentation in the form
of the Appeal Review Statement, I am unable to conclude that there was an error in
the constitution of the Appeal Panel.
Note: Crown also provided the Appeal Review Statement.
HPEB1 - Application of additional guidelines and redefinition of WLS
[110] In submissions on behalf of Crown it was strongly argued that the Appeal Panel had
acted on arrangements developed by the parties which were outside of HPEB1 and
this had been to the detriment of Crown in respect of procedural fairness and the rules
of natural justice.
[111] Evidence from Brown was HPEB1 at clause 66.1 allowed the parties to work towards
arrangements in relation to the HP classification structure:
"66.1 The parties agree that there are a number of key priority issues, projects
and reviews which will be considered during the life of the Agreement.
Issues, projects and reviews to be addressed include:
(a) the implementation of the Health Practitioner Career Structure
as set out in 0 of this Agreement, including the approval of
final Work Level Statements as set out in Clause 17.2;
(b) the review of rural and remote location employment
incentives as set out in Clause 27.5 of this Agreement;
(c) the development of guidelines to support the consistent
application of the Emergency Clinical On Call Allowance as
set out in Clause 29.6 of this Agreement;
(d) implementation of the Higher Education Incentive as set out
in Clause 32 of this Agreement;
(e) the development and implementation of the Training and
Development Statewide Framework Package as per the
Ministerial Taskforce into Clinical Education and Training
and as agreed by the parties outside this Agreement;
(f) the Demand Management Projects Package as set out in
Clause 42 of this Agreement;
(g) the Fatigue Management Strategy Project as set out in Clause
43 of this Agreement;
(h) On Call Arrangements Review for Medical Imaging
Radiographers as set out in Clause 44 of this Agreement;
(i) New Models of Care/Workforce Redesign Projects as set out
in Clause 45 of this Agreement;
-- 24 of 28 --
25
(j) the application of the Research Package as set out in Clause
46 of this Agreement;
(k) Long Term Temporary Employment Review as set out in
Clause 47 of this Agreement;
(l) Relief Pool Review as set out in Clause 48 of this Agreement;
(m) Clinical Governance Review as set out in Clause 49 of this
Agreement;
(n) Extension of Private Practice Rights review as set out in
Clause 50 of this Agreement;
(o) consideration and implementation of any recommendations
arising out of the:
(i) Oral Health Review;
(ii) National registration changes;
(iii) National Oral Health Plan; and
(p) the development of position descriptions for Dental
Prosthetists as a priority as part of the Phase 2 Work Level
Evaluation Process; and
(q) any relevant state or federal industrial or funding initiatives,
internal or external reviews, other QH corporate governance
models or projects in each of the specific areas."
[112] In Newton the Full Bench addressed this issue, making the following findings which
are relied upon by the Commission in terms of this Appeal:
"As we discuss under the heading of 'Have the terms of HPEB1 been varied?',
it was open to the parties to consider the interpretation and implementation of
the HP classification structure during the life of the agreement. It follows that
the parties are permitted to develop clarifying material designed to assist those
concerned with applying for review, appealing outcomes or those charged with
the responsibility for making recommendations or decisions in carrying out their
respective roles."
Appeal Process Flawed
[113] In Crown's case it had been argued that the Appeal Panel had failed to conduct an
evaluation of the nominated role description and had failed to provide any reasoning
for their decision as to why a High Level HP5 was unable to be matched to any of the
three identified criteria for HP6 classification.
[114] The evidence of Brown effectively undisturbed in the course of cross-examination
was that pursuant to clauses 19.7 and 19.10 of HPEB1, the Appeal Panel had
considered the WLE and all material relating to Crown. This material included:
duties;
roles and responsibilities;
additional material; and
submissions from Crown.
[115] On the evidence available it had not been established that the Appeals process was
flawed with the evidence to the contrary, pointing to the Appeal Panel having been
provided with all relevant material pursuant to HPEB1.
-- 25 of 28 --
26
Creation of HPOSG permitted under HPEB1
[116] Crown was alleged to have suffered a disadvantage as a consequence of the formation
of HPOSG and the role that group undertook in the HP reclassification process.
Crown's evidence was that the HPOSG lacked legitimacy under the provisions of
HPEB1.
[117] Brown had given evidence in Newton which was referred to in the decision of the Full
Bench regarding the formation of the HPOSG:
"27. The OSG was formed from the HP Interest Based Bargaining Group
(HPIBB) as a sub-group to fast-track the work evaluation requests for the
Work Level Evaluation Team (WLET HP6-8). The priority of the OSG
was to evaluate and make recommendations on all positions
recommended at the HP8 level. Thereafter the OSG was required to make
recommendations, consider and advise on any anomalies or issues at the
HP6 or HP7 level.
28. The membership of the OSG consisted of 2 members from the Human
Resources Branch and 2 from the unions - i.e. one from each union and
supported by a secretariat.
29. I was one of 4 members of the Oversight Subgroup (OSG) due to my roles
within the Human Resources Branch.
30. One of the main reasons for establishing the OSG was to address
unresolved issues between the WLEP at Step 3 and Step 4. The creation
of the OSG enabled the WLET to refer matters for a second opinion. The
OSG essentially become [sic] a circuit breaker by providing research and
advice on matters referred to it by the WLET only for levels HP6, HP7
and HP8."
[118] The Full Bench noted in Newton that the Applicant (in that matter) had ultimately
accepted that the HPIBB had the power to form a subgroup such as the HPOSG. The
Full Bench found that the establishment of the HPOSG was not inconsistent with or
contrary to HPEB1.
[119] I adopt the findings of the Full Bench in that the HPOSG was a creation specifically
contemplated by clause 14.8 of HPEB1 and as such the role undertaken in respect of
Crown's reclassification was not an error in process.
HPEB1 permit or require only a single WLET
[120] In the course of the proceedings there was criticism from Crown on the failure of
WLET to accept the evaluation of WLEP however there was not significant material
around the two WLEPs that dealt with the classifications HP1 to HP5 and HP6 to
HP8. In Newton the Full Bench accepted that the creation of two WLETs was not
contrary to the provisions of HPEB1.
[121] Therefore no error had arisen in terms of Crown's reclassification through the
utilisation of the WLET HP6 to HP8.
-- 26 of 28 --
27
Terms of HPEB1 varied
[122] Regarding this issue the position of Crown in respect of the parties reaching certain
understandings and those understandings not being put to employees for endorsement
and varying of the agreement. In consideration of this matter in Newton the
Full Bench accepted the submission of QH that the provisions within HPEB1 provide
the ability for the parties to the agreement to consider the interpretation and
implementation of the HP classification structure during the life of HPEB1 and that
the terms of the agreement had not been varied by the parties which would invoke
clause 67 of HPEB1 or s 169 of the Act.
[123] I adopt the findings in Newton for the purposes of this Appeal in that the agreement
reached by the parties was in accordance with the provisions of HPEB1 and were
lawfully agreed by the parties. As was the case in Newton the Applicant in this matter
had not established any error in the procedural and jurisdictional requirements of the
process, resulting in the finding of no departure from the provisions of HPEB1.
[124] With the procedural and jurisdictional issues having been determined the next step is
to address the reclassification as it pertains to Crown undertaken pursuant to HPEB1.
[125] The Commission accepts the first phase of the process was the direct translation from
the pre-existing Professional Officer Level to the HP Classification Structure pursuant
to the provisions in HPEB1 as contained in Schedules 2 and 3. In this stage Crown
translated from PO4 to HP4.
[126] The process at the second phase provided the opportunity to activate a second step in
the process which had the effect of the WLEP evaluation of Crown's job description,
roles and responsibilities against Work Level Statements. The role description
(Attachment 3) relied upon by Crown had the Position Title identified as "Clinical
Service Manager Modality (CT, MRI, Cardiac Catheter Laboratory, Vascular and
Interventional Procedures, Ultrasound, Nuclear Medicine)". WLEP evaluated
Crown's classification on 23 October 2008 in which it was recommended her position
be classified at HP6 with the Position Title identified as "Clinical Services Manager
Cardiac Catheter Laboratory". The WLEP in giving reasons for recommending the
specific level of HP6 stated:
"HP6 is the most representative level for this position given the clinical
expertise and management responsibility allocated to the position holder."
[127] The next step in the process related to involvement of WLET which in effect was a
review body charged with the role of ensuring the WLEP evaluation process had been
consistently applied, to monitor relativities and ensure consistency across the HP
disciplines, professions, departments/units and districts. The" HP WLE Principles
and Process Overview Final with Step 4 Revisions" document endorsed by the HPIBB
(on 18 June 2009) contained information relating to the operation of WLET including
the WLET membership.
[128] In respect of Crown's classification, a review was undertaken on 8 September 2009
where it was agreed that her classification was "at least HP5, no LOE to support a
higher level of outcome".
-- 27 of 28 --
28
[129] There was no evidence of substance before the Commission to warrant a finding that
the review by WLET was flawed in the way it carried out its functions. In terms of
the evidence from Crown that her position warranted reclassification at HP6 for
reasons advanced in the form of her membership of SWAG, authoring of a training
manual and participation in the purchase of substantial equipment it is the finding of
the Commission that the evidence in question did not support the advancement sought
for the following reasons:
SWAG - was an informal work group of some seven Radiographers from
the PAH who met outside of work hours to discuss matters about their
professional. SWAG was not endorsed by QH and has no formal
standing;
Training Manual - this document (not produced) was said to have been
authored by Crown and to have been utilised by staff at two other
hospitals. QH had never endorsed the document and even if it had been
used as a resource tool at the two hospitals in question it remained
unauthorised and certainly had no statewide application; and
Equipment purchase - Crown's role at best would have been as a "minor
player" in the overall scheme of the procurement of the equipment in
question and certainly not that of a decision maker.
[130] The final stage within the internal process was the Appeal Panel consideration of the
relevant material and as mentioned (at paragraph 115 of this decision) there was no
evidence available that established the appeals process was flawed. The Appeal
Review Statement findings were identified (at paragraph 107 of this decision) which
clearly had Crown at a high level HP5 but failing to achieve ratings supportive of HP6
in the following areas:
scope and nature of level;
knowledge, skills and expertise; and
accountability.
Consequently the Appeal Panel has, in the view of the Commission, undertaken its
role pursuant to HPEB1.
Findings
[131] The application for the Commission to order that the WLET HP6-8 be set aside
allowing for Crown to be reclassified at HP6 as originally proposed by WLEP is
dismissed on the basis of an absence of evidence establishing the reclassification
process had been conducted contrary pursuant to the relevant provisions of HPEB1.
-- 28 of 28 --
Official source: https://www.sclqld.org.au/caselaw/QIRC/2014/142