Dr John Parke v State of Queensland (Queensland Health) [2013] QIRC 176

CITATION: Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 230 - action on industrial dispute Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) DEPUTY PRESIDENT O'CONNOR INDUSTRIAL COMMISSIONER FISHER INDUSTRIAL COMMISSIONER THOMPSON 20 November 2013 Industrial dispute - Health Practitioners' (Queensland Health) Certified Agreement (No. 2) 2011 (HBEB2) - Referral of reclassification dispute to Queensland Industrial Relations Commission - Dispute over translation of position to the new Health Practitioners Classification Structure - Where the Applicant had, under phase 1 of the implementation of the new classification structure of the Health Practitioners' (Queensland Health) Certified Agreement (No.1) 2007 (HBEB1), been translated to a classification of HP6 - Where the Applicant lodged an appeal against the phase 2 evaluation of his position which confirmed the reclassification of his position as HP6 - Where the Applicant contended that the appeal panel had made an error in classifying his position as HP6 and that his position should be classified as HP7. DECISION [1] On 31 July 2012, United Voice, Industrial Union of Employees, Queensland filed a Notice of Industrial Dispute on behalf of Dr John Parke ("the Applicant") about the translation of his position of Director of Pharmacy at the Queen Elizabeth II Jubilee Hospital ("QEII Hospital") to the new Health Practitioners ("HP") Classification Structure. [2] The Applicant was employed by Queensland Health - Metro South Health Service District ("the Respondent") in the position of Director of Pharmacy based at the QEII Hospital. [3] Under the Phase 1 provisions for the implementation of the health practitioner classification structure of the Health Practitioners' (Qld Health) Certified Agreement (No. 1) 2007 (HPEB1), the Applicant was directly translated to a classification of HP6. [4] On 14 December 2009, the Applicant lodged an appeal against the Phase 2 work level evaluation decision in the belief that his position was incorrectly classified against the relevant criteria and should be reclassified as a HP7. [5] By letter dated 11 April 2011 Mr John Cairns, the then Deputy Director-General, Human Resource Services, Queensland Health, advised that the appeal panel had recommended that the Applicant's appeal was unsuccessful and that his HP classification would remain unchanged. [6] In the letter of the Deputy Director-General, he advised that the appeal panel had found: "The role description does not describe the role at the QEII Hospital. The evidence provided by the appellant did not align with HP7 work level statements. Whilst not a requirement of the position, the advanced clinical expertise and contribution to the profession supports a HP6." [7] The Applicant contends that his position should be classified as HP7 rather than the HP6 level and that the appeal panel had incorrectly classified his position against the relevant criteria. [8] A reclassification dispute may be referred to the Commission by way of clause 19.15 of HPEB1 or clause 24.15 of the Health Practitioners' (Qld Health) Certified Agreement (No. 2) 2011 (HPEB2). [9] Clause 19.15 of HPEB1 provides as follows: "Any party can refer a reclassification dispute to the Queensland Industrial Relations Commission." [10] Clause 24.15 of HPEB2 provides as follows: "Any party can refer a reclassification dispute to the Queensland Industrial Relations Commission once all internal appeal processes have been exhausted." [11] A conciliation conference was held before the Commission but the dispute was unable to be resolved. [12] On 4 June 2013 the dispute was referred to the Full Bench for hearing and determination. -- 1 of 6 -- 2 [13] In the affidavit of Donald Graham Hamilton, Workforces Advisory and Remuneration, Human Resource Services, Queensland Health, he described the HP evaluation process as follows: "Step 1 – Standardised Data Set – receipt of Work Unit Proposals (WUP) and possible inclusion of Employee Initiated Application (EIA) Step 2 – Work level evaluation (WLE) of individual position conducted by a HP discipline specific WLE ‘Panel' (WLEP) Step 3 – Intra Discipline Relativity/Consistency Review conducted by a multi-disciplinary WLE ‘Team' members (WLET) Step 4 – Inter-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE ‘Team' members (IDR), this group consisted of members from WLEP & WLET Step 5 – HPIBB Oversight (Step 5), including the subsequently developed Oversight Sub Group (OSG)." [14] The nature of the Commission's powers in relation to a reclassification dispute was discussed in Dr Adam Scott v State of Queensland (Queensland Health)1 where his Honour President Hall wrote: "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'." [15] It is accepted by the Full Bench that the Commission's powers to deal with a "classification dispute" is vested in the Commission by HPEB1 and HPEB2 and the submission by a party to HPEB1 and HPEB2 of a particular nominated classification dispute for resolution. [16] President Hall in State of Queensland (Acting through Queensland Health) v Together2 wrote: "In support of the First and Second Declaration, Counsel for Queensland Health submits that the source of the Commission's power to deal with a 'classification dispute' is the submission by a party to HPEB1 and HPEB2 of a particular nominated classification dispute for resolution; see s. 159 of the Act, together with clauses 15 and 19.15 of HPEB1 and clauses 15 and 24.15 of HPEB2. Any such arbitration, it is submitted, is in the nature of private arbitration and the Commission exercises such jurisdiction vested in the Commission by HPEB1 or HPEB2, compare Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor at 658 on comparable Commonwealth legislation." [17] His Honour went on to conclude: "In my view there is a further issue, viz., whether the Commission is restricted solely to the powers conferred by HPEB1 and for HPEB2, or may have resort to those of its normal statutory powers, which are not inconsistent with HPEB1 and HPEB2, compare Communications, Electrical, Electronic, Energy, information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation at paragraph 25 per Giudice P, Harrsion SDP and Simmonds C. That issue has not been confronted." [18] 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 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. [19] It was submitted by the Applicant that the Full Bench should make a "holistic" finding as to the appropriate classification that should be assigned to the Applicant as part of the Phase 2 evaluation process. [20] The Applicant argues that the Full Bench may affirm, vary or set aside the original decision made. [21] The Respondent, by contrast, argues that the application should be dismissed and that the recommendation of the appeal panel that the Applicant retain his HP6 classification be upheld. It is the position of the Respondent that the Commission does not have the power to directly override the decision-making authority conferred upon the Director-General or their delegate pursuant to the Health Practitioners' (Qld Health) Certified Agreement and to substitute its own decision for that of the Director-General. In support of that submission, reference is made to 1 Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision <http://www.qirc.qld.gov.au>. 2 State of Queensland (Acting through Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) - Decision (No. 2) <http://www.qirc.qld.gov.au> [24] (citations omitted). -- 2 of 6 -- 3 s. 24(1) of the Health Services Act 1991 (Qld) (as in force at the time of the agreement) which provides as follows: "The Chief Executive or the general manager appointed for a health service area may appoint a person, as a health service employee, in an administrative unit of the Department prescribed under regulation." [22] Section 24(1) of the Health Service Act 1991 (Qld) identifies, according to the Respondent, an exhaustive list of persons who are entitled to appoint, more importantly, to decline to appoint, a health service employee. [23] In short, the Respondent's submission is that once all internal evaluation and appeal processes have been exhausted, the Commission's powers are limited to dealing with the "reclassification dispute" under the processes set out in HPEB1 and HPEB2 and, as a consequence, the Commission is not "at large" to deal with any wider question as to the Applicant's correct classification. [24] Pursuant to clause 19.12 of HPEB1, the Appeal Panel makes their recommendation to the Director-General or their authorised delegate who will, in turn, make a decision regarding the correct classification level of the position being evaluated. The matter referred to the Commission under the processes set out in HPEB 1 and HPEB2 as the "reclassification dispute" is the decision of Director-General or their delegate. [25] In exercising the powers conferred on the Commission pursuant to HPEB1 and HPEB2, the Commission is not overriding the decision-making authority conferred on the Director-General or their delegate. The outcome of the evaluation process in relation to correct classification of an employee is the decision of the Director-General or their delegate who may or may not adopt the recommendation of the appeal panel. The Full Bench accepts the submission of the Respondent that applicants for review "… are entitled to have the Director-General make a decision on the basis of a correct and accurate recommendation by the Appeal Panel." [26] The recommendation of the Appeal Panel may be one of many factors taken into account by the Director- General or their delegate to make a decision in accordance with clause 19.12 of the Agreement. [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.3 [29] It was submitted by the Applicant that Queensland Health's evidence surrounding the district decision-making was insufficient. In particular, the appeal review statement was not an accurate or adequate reflection of the decision-making process nor did it offer any understanding as to how the decision maker assessed the various sources of evidence to reach its conclusion. [30] Reliance was placed on the decision in Ansett Transport Industries (Operations) Pty Ltd v Wraith.4 In that case, Woodward J cites with approval the decision in Re Palmer and states, in relation to s. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), that it: "… requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say in effect: 'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.' This requires that the decision maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." 3 See: Industrial Relations Act 1999 (Qld) s. 320(1)(c), which provides "whether or not a notice has been given under section 229—the commission considers it is in the public interest to take action under this section." 4 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500. -- 3 of 6 -- 4 [31] In Soldatow v Australia Council,5 Davies J held that s. 13(1) of the ADJR Act required: "... proper and adequate reasons which are intelligible, which deal with the substantial issues raised for determination and which expose the reasoning process adopted. The reasons need not be lengthy unless the subject matter requires but they should be sufficient to enable it to be determined whether the decision was made for proper purpose, whether the decision involved an error of law, whether the decision-maker acted only on relevant considerations and whether the decision makers left any such consideration out of account (and see the cases cited there)." [32] The Federal Court sounded a significant warning in 1997 when in Yung v Adams6 Davies J stated: "[W]here there is a failure to state sufficient reasons, it can often be inferred from that failure that the tribunal wrongly approached the issues before it and accordingly that the decision should be set aside and the matter remitted..." [33] The approach taken to judicial review by Australian courts reflects an awareness of the boundaries of judicial review. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,7 Brennan CJ, Toohey, McHugh and Gummow JJ said: "… the reasons of an administrative decision-maker are meant to inform and not be scrutinized upon by over- zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." [34] In Minister for Immigration Multicultural and Indigenous Affairs v Yusuf it was held that it was sufficient if the decision-maker sets out its findings "…on those questions of fact which it considered to be material to the decision and to the reasons it had for reaching that decision".8 This process focuses on the subjective thought processes of the decision-maker. It also "…entitles a court to infer that any matter not mentioned … was not considered by the Tribunal to be material".9 That may reveal the presence of a jurisdictional error such as taking into account an irrelevant consideration or not taking into account a relevant consideration. [35] 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 Queensland Health, 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. [36] The letter of John Cairns10 sets out the findings of the appeal panel. In particular, the panel found that the role description prepared by the Applicant for the position at QEII Hospital did not describe the role at the hospital. Attached to the letter was a more detailed statement of reasons for the decision. [37] The reasons given by the appeal panel were brief but were clearly directed towards the issue of the role description of a Director of Pharmacy at QEII Hospital. [38] The Applicant's case was argued on the basis that the medical superintendent, Dr David Evans agreed with the Applicant's role description for his position at the QEII Hospital which was a multi-specialty role and not akin to other positions around the State. The Applicant submits that the decision makers ignored his evidence of multi- skilling (managerial, clinical and educational) and high level influence, both internally and externally to the Queensland Health, which directly affected the profession and, by inference, Queensland Health. [39] In the affidavit of Mr Grant Brown, the Workforce Manager at Logan Hospital, he states: "Dr Parke is the Director of Pharmacy for a small facility in comparison to other facilities across the state. Dr Parkes's responsibility is to manage and oversee the Pharmacy Department of the QEII Hospital. Dr Parke is not responsible for the strategic direction of the facility and I do not concur with Dr Parke's statement that he is responsible for a multidisciplinary team as Pharmacy has only been a single discipline team and counting pharmacy technicians as multidisciplinary is incorrect as they are listed as one discipline under Schedule 1 of HPEB1." 5 Soldatow v Australia Council (1991) 28 FCR 1, 2. 6 Yung v Adams (1997) 80 FCR 453, 482. 7 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. 8 Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323, 346. 9 Ibid. 10 Exhibit JP6 to the affidavit of Dr John Parke sworn 11 July 2013. -- 4 of 6 -- 5 [40] On any view of the evidence, the role required to be performed by the Applicant as the Director of Pharmacy at the QEII Hospital did not require him to undertake the roles that he did. In cross-examination, he agreed that his position at QEII did not require him to perform these other roles: "MR RYALLS: Well, just – just in relation to – just to pick up on these – these memberships, if you're – for example, if you're on leave and if someone – and if someone is backfilling your role, are they then required to participate in these activities?---No, and they – they weren't paid the same salary. So in – in relation to that, would these memberships then be a direct requirement of your role? If someone's not back – if someone is backfilling, they're not required to go to them?---No. So they're not – they're not a direct part of your role?---They were things that I brought personally to the position as was agreed in – in the HP – HP agreement number 1." [41] The evidence of Mr Brown, supports the conclusion that the Applicant was not required as part of his role at the QEII Hospital to be a member of various committees: "COMMISSIONER THOMPSON: Well, okay. Just in relation to paragraph 100 of your affidavit? ---Yes, sure. You were talking about there the – Dr Parke's role as a director of pharmacy at QEII?---Yes. It wasn't a requirement to attend that – the committees there mentioned that it had a rather small pharmacy team operating in a fairly small hospital?---That's correct." [42] The evidence of Mr Brown was that the Appeal Panel evaluated the Applicant's appeal outcome based on the Work Level Statement at the Health Practitioner HP7 Level. In his affidavit of 31 July 2013, he states: "As Dr Parke held the position of Director of Pharmacy, QEII Hospital which is a management position his level would have mainly been evaluated against the management stream." [43] In his affidavit sworn on 11 July 2013, the Applicant concedes that: "I recognise that if my position was solely examined based on the level of management responsibility I have at QEII, it may be appropriately classified at HP6 level, when compared to a major complex service at a tertiary hospital."11 [44] The Full Bench is of the view that the evidence does not support the Applicant's submission that the appeal panel did not have appropriate regard to the evidence before them and, as a consequence, fell into error in the decision- making process in relation to the assessment of the Applicant's reclassification. [45] The Applicant was under the mistaken belief that his professional affiliations and his involvement in, and membership of, various boards and committees were factors which should have been taken into account during the Phase 2 evaluation process in order to advance him from an HP6 to an HP7 classification. [46] There is little doubt on the evidence that the Applicant was heavily engaged in a wide range of professional organisations. However, they were not part of his job requirements and it was not necessary for those factors to be taken into consideration. It is accepted that the Applicant, as the Director of Pharmacy in a relatively small hospital, had the ability to delegate his managerial responsibilities and attend and participate in the various committees during his normal working hours and to be remunerated by his employer, Queensland Health, for doing so. [47] The evidence of Mr Brown was that the Applicant's classification level at HP6 aligned with other Directors of Pharmacy across the State who were responsible for similar or larger facilities. In Mr Brown's affidavit he stated: "… the Director of Pharmacy at Logan Hospital at the time had a staff of 38FTE and a budget of 7.6 million and was responsible for two facilities. The Director of Pharmacy at Toowoomba had 31 FTE oversaw 3 hospital facilities and had a drug budget of 9.2 million. Therefore, Dr Parke's evaluated outcome was consistent within the discipline." [48] The Full Bench finds that the Applicant has failed to demonstrate that he should be reclassified from HP6 to an HP7 and, in addition, has failed to prove his case that an error has been made by the Respondent during the reclassification process. 11 Exhibit 1, p. 6 [50]. -- 5 of 6 -- 6 Orders [49] The Full Bench orders that the application be dismissed and that the Applicant retain his classification of HP6 as recommended by the appeal panel. D. L. O'CONNOR, Deputy President. G. K. FISHER, Industrial Commissioner. J. M. THOMPSON, Industrial Commissioner. Hearing Details: 2013 August 19 Released: 20 November 2013 Appearances: Ms K. Badke, United Voice, Industrial Union of Employees, Queensland, on behalf of the Applicant. Mr K. Ryalls, Queensland Health, for the Respondent. -- 6 of 6 --