Secretary, Ministry of Health in respect of NSW Health Service, NSW Health Pathology Division v Health Services Union NSW [2020] NSWIRComm 1046

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary, Ministry of Health in respect of NSW Health Service, NSW Health Pathology Division v Health Services Union NSW [2020] NSWIRComm 1046 Hearing dates: 14 October, 12 November, 9, 20 December 2019, 20 January, 11, 18 February, 10, 24 March, 6 April and 12 May 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton Decision: AWARD VARIED Catchwords: INDUSTRIAL DISPUTE –- Health Employees (State) Award 2019 - Mortuary Technicians working within Forensic Mortuaries operated by NSW Health Service, NSW Health Pathology Employment Division - agreement on inclusion of two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician – requirements of Industrial Relations Act 1996 considered – Award varied Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Secretary, Ministry of Health in respect of NSW Health Service, NSW Health Pathology Division Health Services Union NSW Representation: Ms Babu for the Secretary, Ministry of Health with Mr Gautray Mr Edghill for the Health Services Union NSW. File Number(s): IRC 2019/316363

Decision 1. This matter concerns an application filed by the Secretary, Ministry of Health to vary the Health Employees Conditions of Employment (State) Award 2019 (the Award) in settlement of an industrial dispute filed on 10 October 2019. The respondent is the Health Services Union NSW. 2. The dispute was subject to comprehensive conciliation proceedings on 14 October, 12 November, 9 and 20 December 2019, 20 January, 11 and 18 February, 10 and 24 March, 6 April and 12 May 2020 when the above application to vary the Award was made pursuant to s 17 to the Industrial Relations Act 1996. 3. Ms Babu appeared for the Secretary, Ministry of Health in respect of NSW Health Service, NSW Health Pathology Division with Mr Gautray. Mr Edghill appeared for the Health Services Union NSW. 4. The application seeks to vary the Award by varying Clause 1 under PART A to include two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician as follows: (xix) "Forensic Mortuary Technician" means a person responsible for undertaking a range of duties to assist with the completion of forensic autopsies under the supervision and general direction of the medical officer responsible for the autopsy. They will be responsible for using their technical skills, knowledge and experience to assist the medical officer to undertake medical examination. A Forensic Mortuary Technician will be required to hold a minimum qualification equivalent to Certificate Level IV in a relevant field as determined by NSW Health. They will be responsible for the following: (a) Removal of body parts under supervision; (b) Reconstructions, including complex reconstructions under supervision; (c) Assist with and undertake collection and sending away of samples for analysis, including filing and distribution; (d) Participate in DVI; (e) The use of CT scanning or X-Ray; (f) Photography of deceased persons; (g) Recording, storing and management of unblocked tissue; (h) Whole organ and tissue receipt, repatriation, packaging, storage, retention and transportation; (i) The management of deceased persons, including destitute persons, that encompasses timely management, admission, storage and release, and preparation for identification and viewing; (j) Participate in quality control and audit activities; (k) Mortuary maintenance, cleaning, ordering, stocking and restocking; (l) Training of Autopsy Assistants and Forensic Mortuary Technicians; and (m) Other duties within the scope of the Post Mortem Assistant classification. (xx) A Senior Forensic Mortuary Technician may work under the general direction of the medical officer and may be responsible for supervising the Forensic Mortuary Technicians. They will be required to hold a minimum qualification at least equivalent to a Diploma in a relevant field, as determined by NSW Health. They will be responsible for the following: (a) Removal of any/all body parts; (b) Advanced reconstructions; (c) The use of CT scanning or X-Ray; (d) Co-ordinate and undertake photography of deceased persons; (e) Co-ordinate and lead team members in DVI activities; (f) Co-ordinate and undertake collection and sending away of samples for analysis, including filing and distribution; (g) The co-ordination, monitoring and management of deceased persons including timely management, admission, storage and release and preparation for identification and viewing; (h) Quality control and audit activities; (i) Co-ordinate mortuary maintenance, cleaning, ordering, stocking and restocking; (j) Co-ordinate training of Post Mortem Assistants and Forensic Mortuary Technicians; (k) Participate in the development of procedures and guidelines for mortuary operating procedures; (l) Technical supervision of Post Mortem Assistants and Forensic Mortuary Technicians, including staff development; (m) Supervisory activities related to mortuary functions; (n) Participate in autopsy related research; (o) Participate in professional development activities where required, including presentation at seminars; and (p) Other duties and functions without limitation within the scope of the Post Mortem Assistant and/or Forensic Mortuary Technician classifications. 1. The application also sought a consequential variation to PART B – Monetary Rates by varying Table 1 – Salaries to include the following rates of pay: Forensic Mortuary Technician: Year 1 $1,367.93 per week; Year 2 $1,408.97 per week Year 3 $1,451.24 per week; and Year 4 and thereafter, $1,494.78 per week. Senior Forensic Mortuary Technician: Year 1 $1,539.62 per week; Year 2 $1,585.81 per week; and Year 3 and thereafter, $1,633.38 per week. 1. The classifications of Forensic Mortuary Technician and Senior Forensic Mortuary Technician require detailed technical knowledge, complemented by applied practice in order to demonstrate high levels of autonomy, judgement and precision. These classifications will only be available to staff employed within the NSW Health Service, NSW Health Pathology Employment Division to perform duties within Forensic Mortuaries. 2. The Forensic Mortuary Technician and Senior Forensic Mortuary Technician support the performance of forensic autopsies (internal and external), including: 1. invasive and non-invasive autopsies, which may be performed in the absence of direct supervision; and 2. specialised autopsies (including homicides, critical incidents, suspicious deaths, infectious deceased, incinerated deceased, decomposed deceased and SUDI). 1. The Forensic Mortuary Technician and Senior Forensic Mortuary Technician will be responsible for undertaking a range of duties to assist with the completion of forensic autopsies under the supervision and general direction of the medical officer responsible for the autopsy. The Forensic Mortuary Technician and the Senior Forensic Mortuary Technician will be responsible for using their technical skills, knowledge and experience to assist the medical officer to undertake medical examination. Senior Forensic Mortuary Technicians may work under the general direction of the medical officer and may be responsible for supervising the Forensic Mortuary Technicians. 2. To be eligible for appointment to the classification of Forensic Mortuary Technician, staff of the NSW Health Service will be required to hold a minimum qualification equivalent to Certificate Level IV in a relevant field as determined by NSW Health. 3. Progression to pay points within the Forensic Mortuary Technician and the Senior Forensic Mortuary Technician classifications will be automatic on the satisfactory completion of hours of service equivalent to 12 months full time hours in the respective classification. There is no automatic progression from the classification of Forensic Mortuary Technician to the classification of Senior Forensic Mortuary Technician. 4. All persons appointed to the classification of Senior Forensic Mortuary Technician will be required to hold a minimum qualification at least equivalent to a Diploma in a relevant field, as determined by NSW Health. 5. Other than the terms and conditions set out above, all other terms and conditions of employment applying to the classification of Forensic Mortuary Technician and Senior Forensic Mortuary Technician will be those applying to Post Mortem Assistants and Senior Post Mortem Assistants contained in the Health Employees' (State) Award, the Health Employees' Conditions of Employment (State) Award, the Health Industry Status of Employment (State) Award and Ministry of Health Policy Directives, as varied from time to time. 6. The allowance currently contained in Clause 12 Special Conditions, subclause (iii) — Nauseous Linen, of the Health Employees Conditions of Employment (State) Award (as varied or replaced from time to time), shall not have application to the Forensic Mortuary Technician or the Senior Forensic Mortuary Technician classifications. 7. In addition to their applicable rate of pay, the Forensic Mortuary Technician and the Senior Forensic Mortuary Technician classifications shall be paid the 'Special Allowance Port Mortem Assistants and Senior Post Mortem Assistants' as provided in Item 1 of Table 2 of the Health Employees (State) Award 2019 (as amended from time to time), in circumstances for, and in recognition of the functions and incidence in which that allowance is payable in that award. 8. Hours of work for Forensic Mortuary Technicians and Senior Forensic Mortuary Technicians shall be as per the relevant award/s outlined in paragraph 14 above. Forensic Mortuary Technicians and Senior Forensic Mortuary Technicians may be required to perform on-call and after-hours services related to mortuary functions consistent with the provisions of the relevant award/s outlined in paragraph 14 above. 9. Salary increases payable to Post Mortem Assistants and Senior Post Mortem Assistants resulting from variations to the Health Employees' (State) Award shall also be applied to the rates of pay set out in this determination for Forensic Mortuary Technicians and Senior Forensic Mortuary Technicians. 10. I am satisfied that the material presented to the Commission adequately demonstrates that the variations sought comply with all necessary statutory tests including the requirements of s 23 of the Act in that they provide for equal remuneration and other conditions of employment for male and female employees doing work of equal or comparable value. 11. The variations shall operate from the beginning of the first full pay period commencing on or after 1 January 2020.