Industrial Relations Commission of New South Wales CITATION: Crown Employees (Psychologists) Award [2006] NSWIRComm 315 PARTIES: Director of Public Employment Public Service Association and Professional Officers Association Amalgamated Union of New South Wales FILE NUMBER(S): IRC 5707 & 6742 of 2005 CORAM: Sams DP; Boland J; McLeay C CATCHWORDS: Award - Applications for new psychologists award - Claims for increased salaries and new allowances and improvements in various employment conditions - Significant areas of agreement - Work of psychologists - Work value - Special case - Attraction and retention of psychologists - Shortage of psychologists - Classification descriptors - Progression between classifications - Classification committee - Qualification requirements - Transitional arrangements - Environmental allowance - Isolation allowance - Training leave - Professional supervision - Registration fees - New award made LEGISLATION CITED: Industrial Relations Act 1996 Psychologists Act 2001 Crown Employees (Administrative and Clerical Officers) (State) Award (No 2), Re (1993) 52 IR 243 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, Re (2004) 133 IR 254 Crown Librarians, Library Officers and Archivists Award Proceedings - Applications Under the Equal Remuneration Principle (2002) 111 IR 48 Health and Community Employees Psychologists (State) Award, Re (2001) 109 IR 458 Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 Medical Officers Hospital Specialist (State) Award & Other Awards, Re (1990) 33 IR 79 CASES CITED: Operational Ambulance Officers (State) Award, Re (2001) 113 IR 384 Public Hospital Nurses (State) Award (No 3), Re (2002) 121 IR 28 Staff Specialists (State) Award, Re (2006) 152 IR 405 Public Hospital Nurses (State) Award, Re (2002) 115 IR 183 Public Hospital Nurses (State) Award (No 4), Re (2003) 131 IR 17 Social and Community Services Employees (State) Award, Re (2001) 113 IR 119 State Wage Case 2006 (No 6) 153 IR 268 Transport Industry (State) Award (1996) 95 IR 126 HEARING DATES: 29/06/2006, 11/07/2006, 12/07/2006, 13/07/2006, 18/07/2006, 19/07/2006, 26/07/2006, 16/08/2006 DATE OF JUDGMENT: 10/09/2006 Mr A T Britt of counsel Public Employment Office Solicitor: Ms J Burton Crown Solicitors Office LEGAL REPRESENTATIVES: Mr A A Hatcher of counsel Public Service Association and Professional Officers Association Amalgamated Union of New South Wales Solicitor: Ms A McRobert W G McNally Jones Staff JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Sams DP Boland J McLeay C Monday, 9 October 2006 Matter No IRC 5707 of 2005 RE CROWN EMPLOYEES (PSYCHOLOGISTS) AWARD Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for a new award Matter No IRC 6742 of 2005 RE CROWN EMPLOYEES (PSYCHOLOGISTS) AWARD Application by Director of Public Employment for a new award DECISION OF THE COMMISSION [2006] NSWIRComm 315 1 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the "PSA") and the Director of Public Employment ("DPE") have made competing applications for a new Crown Employees (Psychologists) Award. 2 The PSA's application was originally filed on 8 November 2005 and the DPE's on 21 December 2005. Both applications were subsequently amended. The PSA eventually proceeded on the basis of its further amended application filed on 4 August 2006. The DPE proceeded on the basis of a further amended application filed on 2 August 2006 (which was later further amended in a minor way in a document filed on 1 September 2006). Application of the Award 3 Each party proposed that the new Award would apply to psychologists employed in the Department of Corrective Services, the Department of Community Services, the Department of Ageing, Disability and Home Care, the Department of Juvenile Justice and NSW Police. 4 The DPE provided the following information regarding the environment in which psychologists to be covered by the Award would be working and in broad terms the nature of the work carried out: Department of Community Services (DoCS) The core activities of DoCS are to help protect and care for children and young people and support their families, provide and fund accommodation and support services for children and young people who need to live away from their families, regulate child care by licensing and monitoring compliance, fund and regulate adoption services, fund support services to assist people who are homeless or at risk of homelessness, and coordinate services to meet the basic welfare and recovery needs of people affected by natural and other disasters. The work of psychologists in DoCS is focused on both providing services to parents and young persons, and also conducting out of home care assessments (OOHC). The term OOHC refers to children who are placed with foster parents and other services to receive care from other than their biological parents. The types of work undertaken by psychologists has changed from conducting assessments for matters before the Children's Court to becoming more involved in working with young persons and families who may no longer be living in the same family unit. Psychologists are required to conduct comprehensive assessments of the needs of clients in OOHC in order to create the foundation for future intervention planning. DoCS is the agency responsible for developing behavioural management plans for these clients. Caseworkers employed by the Department have the primary responsibility for ensuring the development of these plans, but they may require assistance from psychologists in the actual behaviour management strategies and therapeutic interventions, as a result of any assessments undertaken. In some cases other clinicians, for example psychiatrists and mental health workers, will also be involved in the development of the behavioural management plan. Whilst psychologists may not be involved in the development of every behavioural management plan, their assistance would be requested by a caseworker in the more complex cases. Department of Juvenile Justice (DJJ) DJJ provides custodial services to young people processed through New South Wales Criminal Courts. The Department serves the community by providing quality services to young people who have committed criminal offences in an attempt to facilitate the individual's rehabilitation and reduce recidivism. Psychologists in DJJ provide psychological services through psychological assessment, counselling and therapeutic interventions. Problems of a more complex nature can be addressed by psychologists supported by their professional supervisor. Psychologists are employed in custodial centres or community centres within Juvenile Justice. Specialist Services Coordinators are based in each of the 5 regional offices of DJJ. Department of Ageing, Disability and Home Care (DADHC) DADHC was created in April 2001. It brought together the former Ageing and Disability Department, the Home Care Service of NSW and Disability Services from the Department of Community Services. The main functions of DADHC include; · The administration of the Home and Community Care program, the Disability Services program and a range of Ageing programs including Seniors Card, Seniors Week and funding for peak ageing organisations. · Provision of funding for more than 1000 government and non-government organisations to deliver ageing and disability services. · Monitoring the quality and effectiveness of those services to ensure they deliver appropriate and responsive outcomes for service users – older people, people with a disability and their families and carers. · Helping people with an intellectual disability to develop their skills and abilities so they can be more independent within their community. · Provision of a range of early intervention services to babies and young children who have a developmental disability. · Provision of a range of community support services, respite care and supported accommodation services for children and adults. · Helping frail aged people, younger people with a disability and their carers with housekeeping and personal care. · Provision of support including general domestic assistance, non-medical personal care, live-in care, live-in emergency housekeeping, essential shopping and other services planned to meet the needs of individuals. Psychologists employed by DADHC support families and develop family capacities and resilience. Psychologists work from a wide range of community locations including client's homes, schools, day programmes, Departmental and non-government group homes and respite centres, and in office locations. Nearly all psychologists employed by the Department are based in office locations of Community Support Teams (CSTs) and visit the above community locations on a needs basis. DADHC psychologists work within a multi-disciplinary team. Psychologists at DADHC are particularly involved in "eligibility assessments". These are assessments of a client's intellectual functioning. The assessments are conducted on many clients of the DADHC including those who access both residential and non-residential services. They form the basis for the delivery of services to each client in that they identify the particular needs and types of interventions that are necessary. Department of Corrective Services (DCS) The DCS provides custodial and community based correctional services including correctional centre custody of remand and sentenced inmates, periodic detention, home detention, parole, and various forms of community offender supervision. Offenders in custody and under community supervision are assessed and case managed to meet individual care needs and to reduce the risk of re-offending. Psychologists employed in correctional centres form part of a team of offender services and program and custodial staff who case manage and provide services and programs to inmates. Psychologists complete assessments on offenders and compile reports in addition to working with them on criminogenic matters with an aim of reducing re-offending and with matters related to their mental health. Psychologists may also work in specialised units or on specialised programs. 5 As to the number of psychologists employed by the departments, the following information was provided: The Department of Ageing, Disability and Home Care recorded the employment of 94 staff in psychologist positions making up an equivalent full-time (EFT) complement of 82.48 staff as at April 2006. The Department of Corrective Services recorded 149 psychologist positions as at 14 May 2006. The Department of Community Services recorded the employment of 52 staff in psychologist positions making up an equivalent full-time (EFT) complement of 42.9 staff as at 16 May 2006 The Department of Juvenile Justice recorded 20 psychologist positions as at I June 2006. NSW Police recorded 4 psychologist positions as at 1 June 2006. Agreed matters 6 During the early part of 2006 the parties engaged in extensive negotiations over their respective applications and achieved a notable level of agreement as to the terms and conditions of a new award, for which they are to be commended. 7 The matters upon which agreement had been reached were set out in an Agreed Statement of Facts and included: 2.1 A single new award should be made to cover psychologists working in public service departments ("Psychologists"), to replace the existing agreement and various other departmental arrangements currently in place. 2.2 It is timely for the Commission to undertake a full review of the rates of pay and classifications of Psychologists. 2.3 There are special factors justifying the making of a new award for Psychologists with enhanced remuneration under the Special Case and Work Value Changes principles of the current Wage Fixing Principles, including that there has been a net addition to the work requirements of Psychologists in recent years. 2.4 The classification structure currently being applied to Psychologists is outdated and otherwise inappropriate. 2.5 Appropriate salary rates for Psychologists should be set having regard to at least the following factors: (i) the changes in the nature of work and skill and responsibility of psychologists in the NSW Public Sector; (ii) the need to attract and retain the services of suitable psychologists in circumstances where there is a current shortage of psychologists available to be employed throughout the NSW Public Service; and (iii) the decision of the Full Bench in Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 ("the Health Psychologists Case") – as a result of which the Health and Community Employees Psychologists (State) Award [Ex 2] ("the Health Psychologists Award") was made. 8 Importantly, the parties have agreed on a new classification structure containing the classifications of Psychologist (with nine yearly pay increments); Senior Psychologist (with three yearly pay increments); Specialist Psychologist (with five yearly pay increments); Senior Specialist Psychologist (with three yearly pay increments); Chief Psychologist and Principal Psychologist. The parties have also agreed on the base salary rates for all classifications except that of Chief Psychologist and the standard provisions relating to anti-discrimination and grievance and dispute settling procedures. The agreed classification structure and salary levels are set out in the following table: Classification Salary Per annum $ Psychologist 1st Year 46,812 2nd Year 49,344 3rd Year 51,873 4th Year 55,036 5th Year 58,199 6th Year 61,362 7th Year 64,526 8th Year 67,057 9th Year and thereafter 69,585 Senior Psychologist 1st Year 73,382 2nd Year 76,545 3rd Year and thereafter 79,708 Specialist Psychologist 1st Year 67,057 2nd Year 70,850 3rd Year 74,647 4th Year 78,442 5th Year and thereafter 82,237 Senior Specialist Psychologist 1st Year 86,034 2nd Year 88,563 3rd Year and thereafter 91,094 Chief Psychologist 1st Year 94,156 (DPE) 97,552 (PSA) Principal Psychologist 1st Year and thereafter 103,746 Matters in issue 9 Notwithstanding the areas of agreement, there remain matters of some significance in respect of which the parties have been unable to reach agreement and which now fall to this Full Bench to determine. 10 The matters in issue between the parties may be summarised under the following headings: (1) Drafting issues in relation to the classification descriptors: (a) In the description of the level of judgment and problem solving of Specialist Psychologist the DPE proposed "High level of diagnostic ability in relation to psychological disorders". The PSA proposed "Diagnostic ability in relation to psychological disorders"; (b) The DPE proposed that in order to be a Senior Specialist Psychologist an employee may have extensive experience as a Specialist Psychologist or other relevant work experience deemed equivalent by the Department Head. The PSA proposal only recognised experience as a Specialist Psychologist. (2) Progressions between classifications. The DPE proposed that there not be automatic progression between the Award classifications and that appointment and promotion to any psychologist classification be subject to vacancy and competitive selection on the basis of merit. The PSA proposed, other than in relation to the positions of Chief or Principal Psychologist, appointment be subject to a vacancy and/or reclassification by a classification committee and/or by recognition of Master's degrees (in the case of the Specialist Psychologist classification). (3) Qualification requirements for the classifications of Specialist Psychologist and above: (a) The DPE proposed that for the classifications of Specialist Psychologist and Senior Specialist Psychologist, the qualification requirement be: Must possess a post-graduate degree at the Master's level or higher in a specialist area deemed relevant by the employing Department including, but not limited to, Clinical Psychology, Clinical Neuropsychology, Counselling Psychology, Forensic Psychology. The postgraduate degree must include components of professional training and supervised experience and must be of at least 2 years full time duration or its equivalent. (b) In relation to the classifications of Chief Psychologist and Principal Psychologist, the DPE proposed that in addition to (a) above the Department Head may approve other appropriate degrees or experience for entry to these classifications. (c) The PSA proposed that the qualification requirement for the classifications of Specialist Psychologist and above should include " education, training and experience deemed by the Department to be equivalent " to a Master's degree or higher as an alternative to the Master's degree itself. (4) Chief Psychologist salary level. Both parties agreed (in a departure from the classification structure in the Health Psychologists Award) that there should be a "Chief Psychologist" classification in the new structure. However, the parties disagreed as to the rate of salary for this classification: the PSA proposed $97,552; the DPE proposed $94,156. (5) Transitional arrangements. The PSA proposed that existing additional incremental payments payable under a 1982 Agreement and attraction and retention allowances paid at the Department of Corrective Services continue to be paid. The DPE proposal would not remove those allowances but would, over time, absorb them into future wage increases. Secondly, the DPE sought to standardise across all Departments the entry point of first year interns so that they be step 1 on the Psychologist scale, and fully registered Psychologists be step 3. The PSA proposed that the entry point for such persons also be steps 1 and 3 respectively, except in the Department of Corrective Services where it was proposed the starting points be step 3 and step 6 respectively. (6) Environmental allowance. The PSA proposed to include in the Award an "environmental allowance" of $2,143 per annum to apply to all Psychologists who have substantial, regular and direct contact with clients in custodial or institutional settings. The DPE proposed to continue an environmental allowance for those psychologists who were eligible to receive that allowance on the basis upon which it was originally approved on 14 February 1990, without including the allowance in the proposed Award. (7) Isolation allowance. The PSA sought an "isolation allowance" of $3,000 per year, payable to psychologists in the classifications of Psychologist, Senior Psychologist and Specialist Psychologist whose work location was outside the metropolitan areas of Sydney (including the Central Coast), Newcastle and Wollongong and who had no other registered psychologist employed at their work location. The DPE opposed the claim. (8) Training leave. The PSA claimed a minimum, non-cumulative entitlement to leave for attendance at professional training, education and conference leave of 5 days per annum, with attendance costs to be dealt with in accordance with the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2002 ("the Conditions Award"). The leave requirement would be included in, and not additional to, the special training leave entitlement of 10 days per annum in clause 86(f) of the Conditions Award. The DPE was opposed to this claim. The DPE proposed the following provision: Psychologists are expected to maintain competence through ongoing professional development in accordance with PRB [NSW Psychologists Registration Board] guidelines. The Department shall not unreasonably refuse requests by psychologists to attend relevant training, education and conferences. Attendance at approved training, education and conferences shall be in accordance with the Staff Training and Development Clause of the Crown Employees Public Service (Conditions of Employment) Reviewed Award 2006 as amended from time to time. (9) Professional supervision. The PSA proposed that all Psychologists would be provided with approximately one hour per week of professional supervision in the workplace or, if adequate professional supervision was not available at the workplace, the employer would provide suitable time-in-lieu and financial support to ensure adequate and appropriate external supervision. The DPE proposed the following award provision: Intern psychologists shall be provided with professional supervision in accordance with PRB guidelines as amended from time to time. All psychologist classifications shall be provided with professional supervision to maintain competence in their area of practice through ongoing supervision in accordance with PRB guidelines. (10) Annual registration fees. The PSA proposed that Psychologists be reimbursed the cost of annual registration fees payable under the Psychologists Act 2001. The DPE opposed this claim. Evidence and Inspections 11 The evidence from both sides of the record was extensive. The evidence for the PSA included statements and oral evidence from the following persons: § Frances Ruth Collins, Principal Industrial Officer, PSA. § Jennifer Barton, Clinical Coordinator, At-Risk Inmates, Department of Corrective Services, Chief Psychologist position. § Mark Allerton, Director, Psychological Specialist Services, Department of Juvenile Justice. § Michael Jack Edwards, Principal Advisor - Psychology, Department of Corrective Services. § Charles Brusle Davis, Senior Clinical Psychologist, Department of Community Services. § Ailsa Robinson, Centre Psychologist, Department of Juvenile Justice, Cobham Juvenile Justice Centre. § Kenneth Ferris, Psychologist, Department of Ageing, Disability and Home Care. § John Wagner, Team Co-ordinator Statewide Behaviour Intervention Service, Department of Ageing, Disability and Home Care. § Vincent Cook, Psychologist, Department of Corrective Services. § Geoffrey Troth, Assistant Director, Psychological and Specialist Services, Department of Juvenile Justice. § Lyndon Newell, Regional Senior Psychologist, Department of Corrective Services. § Christine Drayden-Thompson, Psychologist-in-charge, Grafton Correctional Centre, Department of Corrective Services. § Professor Richard Bryant, School of Psychology, University of New South Wales. § Deborah Cameron, Psychologist, Department of Community Services. 12 For the DPE, the evidence included affidavits and oral evidence from: § Christopher John Raper, Assistant Director General, New South Wales Premier's Department - Public Employment Office. § Caroline Jane Hunt, Senior Lecturer, School of Psychology, University of Sydney. § Trevor Craft, Assistant Director Employee Relations, Department of Health. § John Gavaghan, Director Child and Family, Department of Community Services. § Peter James Muir, Assistant Director General (Operations), Department of Juvenile Justice. § Rhonda Booby, Director Offender Services and Programs, Department of Corrective Services. § Beth Louise Kotze, Area Director of Mental Health Services, South Eastern Sydney Illawarra Area Health Service. § Lauren Murray, Regional Director, Metropolitan South Region, Department of Ageing, Disability and Home Care. 13 The evidence addressed the questions of work value change, attraction and retention of psychologists and each of those matters that remained in issue between the parties. 14 The Full Bench was also invited by the parties to inspect a number of institutions and those inspections were held at: (1) John Morony Correctional Centre 1, Windsor. (2) Dillwynia Correctional Centre, Windsor. (3) Cobham Juvenile Justice Centre, Werrington. (4) Long Bay Correctional Centre, Malabar. 15 The Full Bench found the inspections helpful in understanding the environment in which psychologists work. Wage fixing principles 16 In bringing their applications the parties relied upon s 10 of the Industrial Relations Act 1996, which requires the Commission to set terms and conditions of employment that are fair and reasonable. The applications were also made pursuant to Principle 6 - Work Value Changes and Principle 10 - Special Case of the Commission's wage fixing principles: see State Wage Case 2006 (No 6) [2006] 153 IR 268. 17 The Commission's jurisprudence relating to the Special Case and Work Value Principles is well settled: see Re Medical Officers Hospital Specialist (State) Award & Other Awards (1990) 33 IR 79; Re Crown Employees (Administrative and Clerical Officers) (State) Award (No 2) (1993) 52 IR 243; Re Transport Industry (State) Award (1996) 95 IR 126; Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458; Re Social and Community Services Employees (State) Award (2001) 113 IR 119; Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; Re Public Hospital Nurses (State) Award (2002) 115 IR 183; Re Public Hospital Nurses (State) Award (No 4) (2003) 131 IR 17; Re Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244; and, Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254. It is unnecessary, in light of the extensive body of jurisprudence that exists, to undertake any further analysis of the principles or how they are to be applied, especially in light of the agreement that has been reached between the parties. Work value changes 18 The PSA summarised the relevant work value changes said to have occurred in relation to psychologists over the past 20 years and that summary is set out below (references to evidence omitted). The DPE indicated that no issue was taken with the summary: 5.1 The Full Bench in the Health Psychologists Case at [58] identified the major developments which have occurred in the practice of psychology over the past 20 years, and those developments are all fully applicable in this case. They included the "explosion of knowledge" which has occurred in the profession, with the concomitant need to maintain and develop knowledge and to specialise; a significant emphasis on the achievement by psychologists of academic excellence and high standards of professional expertise; the need to demonstrate on-going professional development to retain membership of the Australian Psychological Society and its various Colleges; the need for senior psychologists to be involved in the training and supervision of students and other but less experiences psychologists. 5.2 Professor Richard Bryant's evidence shows that the expansion of knowledge and skills in psychology generally affects psychologists working in JJ, DOCs, DCS, and DADHC. The activities that they conduct now, such as making diagnostic decisions about clients' mental health status, conducting risk assessments and dealing with critical incidents requires considerable knowledge, training and ongoing profession development. Their job descriptions require markedly higher skills. 5.3 There has been a fundamental change in the way that psychology is practised as a profession as well as changes in the nature of the work, skill and responsibility required of psychologists. 5.4 There have been changes both as to required qualifications and the type of qualifications typically obtained by psychologists. 5.5 Specifically in the Department of Corrective Services ("DCS"): (i) There has been an increase in inmate numbers necessitating a more stringent referral process requiring a greater exercising of skills and greater professional levels of responsibility of psychologists. (ii) There has been a change of emphasis from crisis counselling to a focussed assessment of risk and development of risk management plans for inmates with problematical or challenging behaviour. (iii) The severity of the disorders that the prison inmates present with, which include serious mental health disorders, a higher degree of anxiety disorders, depressive conditions and personality disorders, have increased. There is also a marked increase in numbers of prison inmates with serious mental illnesses, who can become violent or disinhibited or angry. This means that psychologists working in the DCS must deal with the challenges of such inmates. (iv) Psychologists are now required to conduct mental health assessments and be expected to have some competency in the formulation of the preliminary diagnosis. (v) The increasing targeted approach to treatment involves psychologists in the many special programs which have been developed since mid 1990s. Examples of the programs are the Security Threat Group Intensive Program, The Acute Crisis Management Unit, The Violent Offenders Therapeutic Program and the Sex Offenders Program. Prior to the 1990s there was little attention paid to developing specialist programs to address the needs of particular type of inmates or individual inmates. The programs have created a greater demand for more sophisticated responses form psychologists. The knowledge and skill required to carry out psychologists' work are both more extensive and more complex. (vi) The introduction of risk intervention teams in 1996, to reduce the suicide and self harm rate of people in custody, has caused an increase in responsibility taken and complexity of assessment required of senior and registered psychologists in the At Risk Inmate Pathway. (vii) There has been an increase in the volume, complexity and required detail of report writing for psychologists compared with the requirements ten years ago. Risk assessment reports are now more frequently required by courts, the parole society, internal statutory bodies, such as the Serious Offenders Review Council. Courts also require cognitive assessment, neuropsychological assessment and mental health assessment reports for sentencing. Reports are required also for entry to violent offender, sex offender and other departmental programs. 5.6 Psychologists in Department of Juvenile Justice (DJJ) have experienced changes to their work not unlike those experienced in DCS as summarised above. Specifically: (i) The "explosion of knowledge" in the specific area of intervention in the rehabilitation of offenders over the last ten or fifteen years is specifically relevant to the Department of Juvenile Justice (DJJ) as well as the DCS. Psychologists working in custodial settings or with offenders generally need to understand the research and know how to put in into effect. This has led to the necessity for implementation of more complex and sophisticated interventions such multi-systemic therapy, a family focused intervention for serious young offenders and various newer models of treatment for sex offenders. (ii) The new knowledge of how to respond more effectively to trauma and how to conduct crisis intervention more effectively arising from research into the detentions of persons at risk violence and self harm led in the late 1990s to revision as to how psychologists in the DJJ went about these tasks. (iii) The "What Works?" literature and the research which followed has provided new basis upon which to assess the risks of a particular offender re-offending. (iv) Commencing in the early 1990s, DJJ established similar programs to those in DCS - e.g. sex offender, violent offender and forensic programs. (v) There is a much greater focus of risk assessment of the clients with a recently introduced standardised risk assessment screening. This comprehensive assessment done by psychologists replaced the use of a former basic questionnaire. In 2005 Centre psychologists in the DJJ received special training in the mental health outcomes and assessment training-child adolescent initiative by the NSW Department of Health to standardise assessments, etc, for child/adolescents. Additionally the 2005 amendments to the Mental Health (Criminal Procedures) Act 1990 have affected Psychologists work. Magistrates now can direct mental health assessments of a young offender and more psychologists reports are being requested. 5.7 In the Department of Community Services ("DOCS"): (i) The amendment of the Children's Court Act in 2000 and the establishment of the Children's Court Clinic by the Attorney General in 2001 have caused the work of psychologists in DOCS to change substantially. Previously much of their work was assessment focused child protection work. Child protection work for psychologists involved assessment and consultation with other staff and making recommendations about alternative courses of action on behalf of a neglected or an abused child. By August 2005 there was a demonstrable and substantial shift to "out of home" care. The work required psychologists to identify and implement therapeutic responses to issues which are likely to contribute to replacement breakdown. Psychologists must have a practicable knowledge and a capacity to apply treatment and intervention. (ii) The "out of home" care population includes children and young people with high needs who account for 20% of the out of home care budget. Psychologists must now work with these and other clients who present complex problems and severe, seriously debilitating and persistent symptoms. The psychologist is involved in both assessment and intervention. These can both be complex and usually mean involvement and collaboration with other informants or agencies. High cost and/or difficult to place children usually present with an array of problems which usually present multiple and ongoing interventions. (iii) Other factors which have affected the work of psychologists include the closure of DOCS residential care institutions in the early to mid 1990s, and the greater use of more family based care such as group homes and foster care was used. (iv) The Children and Young Persons (Care and Protection) Act, specifies that DOCS must provide services to all families where services are requested by the families. Because the families had not been previously receiving services, psychologists saw children with more chronic and severe emotional and behavioural problems being referred to DOCS psychologists. Problems typically include physical aggression, inappropriate sexual behaviour, self harming and risk taking behaviours. High demands are placed on psychologists preparing and implementing behaviour management plans where behaviour is dangerous or life threatening. Psychologists must deal with a number of different private agencies at one time as well as providing consultation work to all DOCs caseworkers within the region. This has significantly increased the work demands of psychologists in terms of complexity, responsibility and sheer volume. 5.8 In relation to the Department of Ageing, Disability and Home Care ("DADHC"): (i) Psychologists are having to deal with an increasing volume of clients with decreasing resources and support, and the clients with whom they are dealing are becoming increasingly complex. (ii) The target population now includes the mildly disabled requiring the psychologist to use a much broader range of treatment and management options. There is also a broader range of assessment tools available. Assessment of clients with mild disabilities can be quite complex while intervention management requires greater formulation, treatment sophistication and knowledge of a wider array of services. Many mildly disabled clients are coming out of the criminal justice system and may exhibit intentional violence or aggressive behaviour. (iii) The Guardianship Act requires psychologists to provide evidence about a person's capacity prior to a person having a guardian appointed or compulsory medical treatment, etc. The psychologist must make decisions which may form the basis of evidence to the Guardianship Tribunal. There is also greater scrutiny and expectation that a psychologist will comply with the guidelines that are underlying the Guardianship Act, etc. (iv) The establishment of formularised practices for determining the eligibility of clients for services offered by the Department and the development of protocols for behaviour management/intervention strategies have also significantly changed the work of psychologists. Attraction and retention 19 The PSA also referred to the evidence relating to the attraction and retention of psychologists and submitted (references omitted): As with the issue of work value changes, it is agreed that attraction and retention is a matter which the Full Bench ought take into account in making a new award in these proceedings. However, again, it is necessary to summarise the evidence on this matter, as it directly bears on a number of the contested issues. Attraction and retention is relevant, in a general way, to the issue of the transitional arrangements (in the way earlier identified with respect to work value changes), and insofar as it is a particular problem in country areas, it is especially relevant to the PSA's claim for an isolation allowance. The evidence was as follows: 6.1 Over the past few years public service departments have experienced trouble in attracting and retaining psychologist staff. The differentials with salary rates paid to psychologists both in the Health Service and in private practice have not assisted this situation. 6.2 The DCS recognised that it was having difficulty in attracting and retaining psychologists in 1998. To address these problems, with the approval of the Public Sector Management Office, the appointment and/or progression of psychologists to any salary point within the salary structure was introduced as well as additional allowances of up to $5000 per annum. The additional allowances applied to all classifications. Further adjustments were later approved in relation to recognition of intern psychologists and registered psychologists in commencing salaries. 6.3 Despite these enhancements the DCS still experiences a significant vacancy rate which is in the order of 16%. Ms Booby [Director, Offender Services and Programs, DCS] conceded that the Department sometimes still had some difficulty attracting psychologists. 6.4 In DJJ, there was in 2005 a 40% turnover rate amongst all its psychologists. The DJJ often loses its psychologists to other areas. Some go to the Department of Health for the higher salaries but they also go to the private sector where they are attracted by the salaries and not having to deal with people with clinical disorders. A particular difficulty is having to use novice psychologists to conduct assessments and counsel very difficult young people and to imposing a very high degree of responsibility on novice psychologists whose position should, properly speaking, be a position for clinical psychologists. In the years 2003 to 2005, there was a complete turnover of all special service co-ordinator positions. Of 39 psychologists positions only 10 remained in designated psychologist positions throughout that period. 6.5 In DOCS, the number of psychologists has remained fairly static across the state since 1990. Factors accounting for this are positions being left vacant, positions being advertised as on a temporary basis, or being left unfilled, and lack of parity and salaries between DOCS and Health psychologist positions. As at 2005 the number of field psychologists across the state was insufficient to cover the needs of the service centres. 6.6. In non-metropolitan areas, the evidence demonstrated particular problems with attraction and retention of psychologists: (i) In DOCS, the most obvious problem was the lack of applicants for vacant positions. The position in Kempsey was never filled because of the lack of calibre of the applicants. The professional isolation of psychologists was an issue. (ii) In DJJ, there was extreme difficulty in filling DJJ positions in rural areas – e.g. the position of the Regional Specialist Services Co-ordinator position in the Western Region. Psychologists in Dubbo and Wagga had been supervised from Sydney because there was no senior psychologist or regional co-ordinator there. There were particular difficulties filling the Acmena Centre Psychologist position. Mr Muir, Acting Director-General of DJJ, agreed that there were " areas of NSW where we do have problems in attracting staff ", and cited Dubbo and Grafton. (iii) In DCS, Tamworth and Goulburn were locations where the DCS had difficulty in attracting a registered psychologist. 20 The DPE did not take issue with the factors identified in the foregoing quoted paragraphs 6.1, 6.2, 6.4 (except the third sentence), 6.5 (except the last sentence), 6.6(i), (ii)(except the use of the word "extreme") and (iii). In relation to 6.3, it was submitted that Ms Booby did state the vacancy rate was 16 per cent but one of the reasons for this was the time taken to offer persons employment given the process involved. Salary levels and classification structure 21 We have reviewed the evidence underpinning the PSA's summary of work value changes and its submission regarding attraction and retention. We note the DPE's position regarding that summary and submission, which was that the DPE did not demur from the essential elements of what was put. 22 The applications of both parties seek to have base salary rates aligned with the salary rates in the Health and Community Employees Psychologists (State) Award (which award applies to psychologists employed by Area Health Services in public hospitals). The new classification structure includes a classification of Chief Psychologist to accommodate existing positions in the Departments of Corrective Services, Juvenile Justice and Community Services and contains the new classifications of Specialist Psychologist and Senior Specialist Psychologist (replacing the existing classifications of Clinical Psychologist and Senior Clinical Psychologist), which new classifications give recognition to postgraduate degrees in Counselling Psychology, Forensic Psychology and Clinical Neuropsychology as well as Clinical Psychology. 23 We are satisfied the new classification structure is an appropriate one having regard to the parties' objectives, in particular the desirability of consistency with public health psychologists, and the Special Case principle and we are satisfied, subject to dealing with the issue of the Chief Psychologist salary, that the agreed salary levels properly reflect changes in the work value of psychologists. We also accept that in circumstances of acute shortages the attraction and retention of professionals are factors that may be taken into account in fixing appropriate salary levels (see Re Public Hospital Nurses (State) Award (No 3) (2002) 121 28; Re Staff Specialists (State) Award (2006) 152 IR 405. To the extent the parties had regard to these factors in fixing salary levels, we consider it was permissible to do so. Drafting issues in relation to the classification descriptors 24 There were two issues relating to the wording of the classification descriptors. The first was that in the description of the level of judgment and problem solving of Specialist Psychologist the DPE proposed "High level of diagnostic ability in relation to psychological disorders". The PSA proposed "Diagnostic ability in relation to psychological disorders". 25 The issue was not the subject of any evidence and we question the value of the use of these subjective terms. However, they do appear throughout the classification descriptors and as the DPE submitted, it is implicit in the descriptor for a psychologist that a person in that classification would need to demonstrate diagnostic skills. It is, therefore, not unreasonable that, given the education, training and experience requirements and the tasks required to be performed, a Specialist Psychologist may be expected to exercise a high level of diagnostic skills. Consequently, in the description of the level of judgment and problem solving of Specialist Psychologist, it shall refer to "High level diagnostic ability in relation to psychological disorders". 26 The second issue was that the DPE proposed that in order to be a Senior Specialist Psychologist an employee may have extensive experience as a Specialist Psychologist or other relevant work experience deemed equivalent by the Department Head. The PSA proposal only recognised experience as a Specialist Psychologist. 27 Again, this matter was not the subject of evidence in proceedings. However, we consider there is some substance in the DPE's submission that the effect of the limitation imposed by the PSA would be that it would be impossible for a person to be appointed to the position of a Senior Specialist Psychologist who had not previously been a Specialist Psychologist. This would, as the DPE submitted, potentially prevent a Chief or Principal Psychologist moving back into this role or a Department recruiting a person from private industry or from the Department of Health directly into the role of Senior Specialist Psychologist, notwithstanding their experience. This may hamper, rather than assist with, the attraction of psychologists. 28 Accordingly, the descriptor for Senior Specialist Psychologist will include under the heading "Education Training and Experience" the requirement, "Extensive experience as a Specialist Psychologist or other relevant work experience deemed equivalent by Department Head". Progressions between classifications 29 The PSA proposed that other than in relation to the positions of Chief or Principal Psychologist, appointment be subject to a vacancy and/or reclassification by a Classification Committee and/or by recognition of Master's degrees (in the case of the Specialist Psychologist classification). The DPE proposed that there not be automatic progression between the Award classifications and that appointment and promotion to any psychologist classification be subject to vacancy and competitive selection on the basis of merit. 30 The relevant award provision proposed by the PSA was in the following terms: 4. Appointment and Progression Appointment to the Chief or Principal Psychologist classification is subject to the occurrence of a vacancy in the relevant classification. Appointment to Senior Psychologist, Specialist Psychologist or Senior Specialist Psychologist is subject either to the occurrence of a vacancy in the relevant classification or to the following reclassification process: 4.1 Subject to clause 4.5, an applicant for reclassification as a Senior Psychologist, Specialist Psychologist or Senior Specialist Psychologist is required to submit a written application detailing how he or she meets the characteristics for the higher classification as specified in Clause 2 of this Award. The application must include a supporting reference from his or her professional supervisor. 4.2 The Classification Committee tests the application by peer professional review, against the relevant classification characteristics by way of formal interview. 4.3 The Classification Committee consists of: (a) The departmental Principal or a departmental Chief Psychologist (b) A human resources manager as designated by the Department, and (c) A Principal or Chief Psychologist or equivalent from another Department (to ensure equity of standards and process). 4.4 The Classification Committee makes a recommendation to Department Head on whether or not to approve the reclassification. 4.5 A Psychologist or Senior Psychologist who has obtained a Master's degree or higher (as specified in Clause 3 of this Award) may apply for reclassification as a Specialist Psychologist without having to comply with the requirements of clauses 4.1-4.4 above. A recommendation for such a reclassification may be made by the Principal Psychologist of the applicant's department. 31 In explaining its position in respect of the proposed award provision, the PSA submitted: Progression between classifications (up to the position of Senior Specialist Psychologist) may occur either by: (i) the employee obtaining appointment to a vacant position by way of a merit selection process; or (ii) reclassification of the employee in his or her existing position, upon application by the employee to a classification committee and upon acceptance by the relevant Department Head of the classification committee's recommendation. Progression to the classification of Specialist Psychologist may also occur when: (i) an employee obtains a relevant Master's degree or higher, and (ii) the employee applies for reclassification to the position of Specialist Psychologist, and (iii) the relevant Department Head accepts the Principal Psychologist's recommendation as to the application. 32 The relevant award provision proposed by the DPE, which is self-explanatory, was as follows: 4. Appointments There is no automatic progression between classifications. Appointment and/or promotion to any Psychologist classification is subject to the occurrence of a vacancy in the relevant classification. Permanent appointment to the vacancy will be in accordance with Part 2.3 the Public Sector Employment and Management Act 2002 through competitive selection on the basis of merit to fill an advertised vacancy only for both internal and external appointments. Employment as a Departmental temporary employee to the vacancy will be in accordance with Part 2.4 of the Public Sector Employment and Management Act 2002 and the Commentary and Guidelines on Temporary Employment issued by the Public Employment Office as amended from time to time. 33 It would appear from the evidence that an informally convened classification committee has been used on a very limited basis. This committee had not previously been used at DADHC, DJJ, NSW Police or DCS. 34 The PSA, however, now wish to incorporate the concept of a classification committee in the Award and rely on the existence and operation of such a committee in the Department of Health which, the PSA claimed, had received the tacit, if not the express, approval of the Full Bench in the 2001 Health Psychologists Case. 35 The PSA submitted that the significance of its proposed appointment and progression clause was twofold: It provides for opportunities for career and salary progression on the part of psychologists who have reached the top step in their particular classification, in circumstances where they would otherwise have no opportunity to progress apart from applying for any vacant higher positions which might arise. It recognises and rewards the acquisition of a relevant Master's degree by allowing progression to the classification of Senior Specialist Psychologist. It should be noted that the 1982 Agreement (as amended in 1987) already provides for base-grade psychologists to be appointed automatically to the Clinical Psychologist classification one year after the Master's degree is obtained. 36 Counsel for the PSA submitted: The PEO's proposed award "cherry-picks" from the Health Psychologists Award made by the Full Bench, in that it adopts the classification structure and salary rates of that award, but it excludes the progression system between classifications which is a fundamental feature of that award. As was identified in the evidence of Mr Craft, the Department of Health had a significant problem in respect of retention of psychologists prior to the making of the Health Psychologists Award in 2001. He recognised that the salary rates together with the capacity for progression under the Health Psychologists Award had been a significant reasons for the rectification of that problem, to the extent that retention of psychologists was not raised as a retention issue by anyone any more in Health... As a number of witnesses identified, a consequence of the making of the Health Psychologists has been that psychologists have been attracted away from other public service departments to the Department of Health because of its salary rates and progression opportunities. The PEO, by excluding a fundamental feature of the Health Psychologists Award, proposes a result which will not rectify the attraction and retention problem which the evidence demonstrates, and the PEO accepts, currently exists. Indeed, under the PEO proposed award, a psychologist currently employed in the Department of Corrective Services at the top of the scale for the base grade Psychologist classification will, firstly, not receive any salary increase at all, and secondly, will have no capacity to apply for progression to a higher classification... 37 In opposing classification committees, the DPE submitted it was not appropriate to adopt the concept from Health for the following reasons: (1) The Classification Committee Concept does not acknowledge that there are substantive differences in the duties performed by the different classifications of psychologists and Senior Psychologists and Specialist Psychologist and Senior Specialist Psychologists as reflected in the position descriptors and the agency based position descriptions. This is different from an incremental progression through a grade and reflects the appointment to a substantive position; (2) The Classification Committee Concept may interfere with the merit selection principles inherent in the Government's recruitment processes and would be inconsistent with the Public Sector Employment and Management Act 2002; (3) The Classification Committee Concept may in practice operate as a de facto method of awarding a qualification allowance whether or not that qualification was necessary to undertake the position and lead to the number of Senior Psychologists, Specialist Psychologists and Senior Specialist Psychologists increasing to a level exceeding workforce needs within the agency; (4) Such a concept will have the effect of a "soft barrier" with progression or promotion determined by extra qualifications and/or skills and/or experience and ignores organisational need for management and supervision hierarchy and responsibility; (5) The DPE has had an opportunity to consider the experience of Health which showed that the effect of soft barriers and a classification committee has led to considerable increases in the number of Clinical and Senior Clinical Psychologists who may not be necessary for the work being performed, albeit it is conceded that not all of the increase in numbers may relate to personal progression. 38 Other reasons put by the DPE for opposing the claim were as follows: (1) Some of the positions such as Specialist Psychologists may not be needed across all Departments; (2) There is no history of disputation concerning the grading of Psychologists; (3) The proposed classifications of Senior Psychologist, Specialist Psychologist or Senior Specialist Psychologist are positions and not people and it is positions that should be classified and not the persons who hold such positions. However, the proposed Classification Committee does not consider the position; (4) The DPE proposal does provide a clear career path in order to motivate to achieve higher levels of performance and to retain high quality psychologists in the public service; (5) There has been little discussion and no agreement between the PSA and DPE as to how the Committee would operate or the development of any guidelines for its operation; (6) There are fundamental differences between the Health descriptors and those agreed in this Application going to the eligibility to apply for personal progression that make a barrier necessary. For example, there is no requirement under the agreed descriptors (as there is in Health) that prior to applying for the position of Senior Psychologist that a Psychologist under the proposed Award would be required to have completed one year at the 9th year of service prior to applying to a Classification Committee; and (7) In light of the absence on any restrictions on application as exists in Health, there is real risk that the proposed Classification Committee and progression associated with it may lead to an increase in the number of disputes and/or the over classification of psychologists. 39 The DPE also opposed the PSA's proposed clause 4.5 on the ground it was potentially nothing more than a disguised qualifications allowance. It was submitted the proposed clause was unsound because the clause may require Departments to reclassify a psychologist on the holding of a qualification, whether or not that qualification was necessary to undertake the position. 40 Subject to a qualification that we shall explain shortly, we have decided to grant the PSA's application for a Classification Committee. The matters that have most influenced us in granting the application may be summarised as follows: (1) The new award classification and rate structure is modelled on that applying in the Health Service. Part of the rationale for this approach was to avoid the leakage to Health of psychologists from departments to be covered by the proposed Award because of the more attractive benefits in Health. Health also operates a classification committee system. Under that system employees can move to a higher classification on the basis of "personal progression", and appointment through merit selection to a vacant position is not necessary. Persons may be reclassified if it is demonstrated that the applicant is performing the duties of the higher classification. In terms of attraction and retention of psychologists, the departments to be covered by the proposed Award will remain at a significant competitive disadvantage compared to Health if employees in those departments are unable to progress to a higher classification on the basis of personal progression. (2) The classification committee system proposed by the PSA would require an applicant for reclassification to a higher classification to be performing the duties of the higher classification. There is intrinsic merit in providing for a system that recognises and rewards employees for having attained a higher level of skill, experience and knowledge and who are using that higher skill, experience and knowledge in the performance of their work. (3) The DPE's concern that "progression or promotion determined by extra qualifications and/or skills and/or experience… ignores organisational need for management and supervision hierarchy and responsibility" is overcome by the requirement that the higher level duties must be performed before reclassification may be recommended. Where the higher level of skill, etc., is not required in a department, presumably the department would be managed in such a way that the higher level work would not be performed and, consequently, there would be no basis for a reclassification claim. (4) There is intrinsic merit in a system that provides for opportunities for career and salary progression for psychologists who have reached the top step in their particular classification, in circumstances where they would otherwise have no opportunity to progress, apart from applying for any vacant higher positions which might arise. In this respect we note the evidence of Professor Bryant: It is important that psychologists have a clear career path or there is no motivation to improve qualifications or standards. Having a system that reviews a psychologist's standing within the psychologists' award and permits promotion to a higher level motivates psychologists to engage in advanced professional development and aspire to higher levels of performance. If there is no system in place to promote psychologists to a higher level, there is no career path for psychologists within the NSW public service. It should be recognised that psychologists within the NSW public service perform some of the most difficult duties, including working with prisoners, abused children, delinquent children and adolescents, people with intellectual disabilities, and other difficult populations. It is essential for the success of the departments in which they serve that high quality psychologists are retained within the ranks of the NSW public service. If the Classification Committee cannot promote psychologists as they progress through their career, it is inevitable that the best performing psychologists will leave the NSW public service and will join other agencies. The NSW public service will function more effectively if it has in place a system that can promote psychologists, because this mechanism will allow these departments to retain the personnel that they wish to retain in both junior and senior positions. (5) The make-up of the committee ensures that applications are assessed by persons who are senior in the profession of Psychology and/or who are senior public servants, thereby safeguarding the integrity and rigour of the process and its outcome. (6) The committee's task is to make recommendations to the Department Head who shall determine whether the recommendation is to be accepted or rejected. This will further buttress the integrity of the process and its outcome. (7) The parties will have access to the Commission in the event of any dispute; (8) The use of classification committees, or their equivalent for the purpose of assessment of professionals for promotion in the public sector, is not novel. They apply in respect of Scientific Officers, Legal Officers, Pharmacists, Hospital Scientists and Geoscientists. 41 The qualification on the classification committee system that we earlier foreshadowed will be that in order for an employee to be considered for reclassification to the Senior Psychologist level, the committee will be required to be satisfied the employee has met the criteria for the Psychologist classification, and has completed a minimum of one year at the 9th year of service and thereafter point on the salary scale for Psychologist. Further, in order for an employee to be considered for reclassification to the Senior Specialist Psychologist level, the committee will be required to be satisfied the employee has met the criteria for the Specialist Psychologist classification, and has completed a minimum of one year at the 5th year of service and thereafter point on the salary scale for Specialist Psychologist. The terms of the proposed Award will need to be amended accordingly. 42 Prior to implementation of the classification committee system the parties will confer as to how that is to occur. The Commission will be available to assist in that regard and if one or both parties considers it desirable for the Commission to have a monitoring role in the early life of the committee system that can be accommodated. These matters may be addressed at the time the terms of the Award are before the Commission for settlement. 43 The remaining matter in terms of progression is the PSA's proposed cl 4.5. Progression to the classification of Specialist Psychologist may occur when there is a vacancy or when: (i) an employee obtains a relevant Master's degree or higher, and (ii) the employee applies for reclassification to the position of Specialist Psychologist, and (iii) the relevant Department Head accepts the Principal Psychologist's recommendation as to the application. 44 The effect of cl 4.5 is that an applicant with a relevant Master's degree or higher is not required to undergo peer professional review by the Classification Committee nor is the applicant required to be performing the work of a Specialist Psychologist in order to be reclassified. 45 We are not attracted to the PSA's proposal in its current form. We consider that reclassification to the position of Specialist Psychologist should be subject to the same requirements affecting other classifications, except that an employee who has obtained the relevant Master's degree or higher would not be required to complete a minimum of one year at the highest year of service and thereafter point on the salary scale for the relevant classification. In other words, once the Master's degree is obtained that would provide the opportunity for making an application to a higher level provided all of the other requirements referred to in 4.1 - 4.4 of the PSA's clause 4 are met. Qualification requirements for the classifications of Specialist Psychologist and above 46 For the proposed classification of Specialist Psychologist and for each proposed classification above that, the PSA and DPE applications contain an agreed wording for a requirement that the employee hold a relevant Master's degree or higher. However, the PSA's application contains an alternative to this requirement, namely, that the employee may have: Education, training and experience deemed by the Department to be equivalent (for example as signified by membership of a relevant APS College such as Clinical Psychology, Clinical Neuropsychology, Counselling Psychology, Forensic Psychology). 47 The DPE's application has no equivalent to this in respect of the classifications of Specialist Psychologist and Senior Specialist Psychologist. However, in the higher classifications of Chief Psychologist and Principal Psychologist, it does contain something similar, namely, that "The Department Head may approve other appropriate degrees or experience for entry to this classification". 48 We have some reservations about this element of the PSA's claim for the reasons expressed by Mr Britt for the DPE. Those reasons included the following: (1) There is no deeming provision in connection with the classifications of Clinical Psychologist and Senior Clinical Psychologist in the Health and Community Employees Psychologists (State) Award upon which the proposed Award's classification and salary structure is modelled. Professor Bryant's evidence was that the University of New South Wales established the first Master's degree in Forensic Psychology only in 1997 and there are very limited numbers of places in Master's degree courses, which meant that most Psychologists who wanted postgraduate training could not obtain it. All of these factors existed at the time of the Full Bench decision in the Health Psychologists Case and did not provide reasons for the deeming of qualifications based on experience in substitution of a Master's degree requirement in Health. (2) The Master's Course undertaken by a number of witnesses in the proceedings are rigorous, two-year full time courses with no credit being granted by the universities for prior work experience. If a university does not recognise prior training and experience as contributing towards a Master's degree there is no basis for a Department to recognise such training and experience being equivalent to a Master's degree. (3) There was the potential for the deeming provision to undermine professional standards. (4) It was contended for the PSA that the persons eligible under this provision would mainly be a closed or "grand parented" category because, apparently, the specialist colleges of the Australian Psychological Society ("APS") no longer admit as members persons who do not have Master's degrees in the relevant specialised areas. However, it is not clear on the evidence that this is correct. According to Professor Bryant there may be Colleges that still allow membership without a Master's degree. (5) The PSA contended that membership of one of the relevant APS colleges would be a reliable indicator that a Psychologist does have training and experience in a specialist area equivalent to a Master's degree because the Colleges maintain rigorous standards as to membership. That may or may not be so but as the DPE submitted, there was no evidence in the proceedings to support such a broad proposition. 49 On the other hand, there are the following competing considerations: (1) The DPE definitions of Senior Specialist Psychologist, Chief Psychologist and Principal Psychologist contain equivalency provisions (eg, in the definition of Chief Psychologist the Department Head may approve degrees or experience for entry to the classification other than those specified). It is difficult to see why specialist psychologists and senior specialist psychologists should not also have an appropriate deemed equivalency provision. (2) There are psychologists who have specialised for a long period of time but who do not have a Master's degree, yet they have been admitted as members of an APS college following rigorous assessment. Mr Hatcher referred to the example of Vincent Cook who gave evidence in the proceedings that: He has worked in Department of Corrective Services since February 1993, and is at the top of the base psychologist scale. He has specialised in forensic psychology over a long period of time, yet because he does not have a Masters degree in Forensic Psychology, he has no prospects of further progression with the department (unless one of the small number of Regional Senior Psychologist position became vacant and he won it in a competitive merit selection process). He was accepted as a full member of the APS Forensic College in 2002, but only after a rigorous application process in which he was required to demonstrate in writing his capacity to undertake forensic tasks and to obtain a range of references in support of his application from his supervisors... Under the [DPE] application, Mr Cook would be ineligible to become a Specialist or Senior Specialist Psychologist. (3) The issue of "deemed equivalency" was one arbitrated by a Full Bench of the Commission in Re Crown Librarians, Library Officers and Archivists Award Proceedings - Applications Under the Equal Remuneration Principle (2002) 111 IR 48 at [129]-[137]. The Full Bench determined in favour of a deemed equivalency provision (relating to qualifications and experience) stating, inter alia , (at [136(3)] that "Recognition of equivalent qualifications is a common feature of qualification requirements, including those in respect of the public sector professions" and (at [135]) that "Any equivalent qualification would usually be another academic qualification and may also be relevant work related experience or education and training or a combination thereof in appropriate cases, which would presumably be rare". (4) The decision as to whether education, training and experience could be deemed to be the equivalent of the substantive requirements in the relevant definition lies with the Department. 50 We consider it would be unreasonable to exclude a person, such as Mr Cook, from having the opportunity to seek classification as a specialist psychologist if the fact is the person has demonstrably acquired the knowledge and experience equivalent to the substantive requirements of the definition and is performing the work. 51 We are prepared to accept a deemed equivalency provision in the definitions of Specialist Psychologist and Senior Specialist Psychologist, but we would require the parties to confer further on the terms of the provision. For example, we do not think reclassification would be available for an employee without the necessary degree unless the employee has completed a minimum of one year at the highest year of service and thereafter point on the salary scale for the relevant classification and that the employee is able to demonstrate, in an objective way, he or she possesses the relevant specialist knowledge and experience and is able to apply that knowledge and experience at the requisite level. 52 Where a specialist college requires a Master's degree for membership but has admitted a psychologist without such a degree as a full member on the basis of demonstrated knowledge and experience, such membership may be used to support an application for reclassification, but it will not necessarily be conclusive proof of the requisite level of equivalent knowledge and experience. That judgment would be a matter for the relevant department. What is important here is maintenance of professional standards. 53 We note the PSA accepts that persons eligible under the deemed equivalency provision would mainly be a closed or "grandparented" category. We consider it should be closed. That is to say, the parties should agree on a period during which applications will be considered (once appropriate criteria are agreed) but after a certain date no further applications will be received. 54 The provisions relating to equivalency in the Chief Psychologist and Principal Psychologist's definitions will be in accordance with the DPE's proposed Award. Chief Psychologist salary level 55 The DPE and PSA both seek to include within the classification structure the position of "Chief Psychologist". The DPE proposes that the rate of salary of $94,156 and the PSA $97,552. Various submissions were made by the parties as to their respective positions regarding an appropriate salary level for this classification. We have decided that the rate of salary for the Chief Psychologist shall be $95,500 per annum. Transitional arrangements 56 As the PSA explained in its submissions, under an agreement made on 12 November 1982 between the Public Service Board of New South Wales and the PSA (Agreement No. 2405 of 1982), there are currently two annual increments payable, subject to satisfactory performance, at the top of the base psychologist classification. This effectively turns a 9-step classification into an 11-step classification across all departments. As the parties have agreed to adopt the Health Psychologists Award's 9-step structure, this gives rise to the question of how existing employees currently in receipt of those additional increments are to be translated across to the new structure. 57 As the PSA submitted, the problem is compounded in DCS, where there have been additional allowances payable as attraction and retention payments as a result of arrangements entered into in March and November 1998. The effect of these arrangements was to add another two steps to the top of the base psychologist classification, an additional step to the clinical psychologist classification, and an extra two steps to the classifications of senior psychologist, chief psychologist and head psychologist. Again, as the parties having largely adopted the Health Psychologists Award's classification structure, with its lower number of annual salary steps in each classification, this creates transitional problems. 58 The PSA proposed that the allowances described above be preserved (and "frozen") for existing employees in order that such existing employees obtain salary increases in the range of those it was agreed should be received by employees generally. However, the PEO proposed that the allowances be abolished, with any salary reductions that might occur as consequences being avoided by a salary maintenance provision. 59 The main differences in respect of actual salary increases proposed for existing employees are as follows: PSA DPE Base psychologist Step 10 – all departments 8% 3.2% Base psychologist Step 11 – all departments 7.7% 0% Base psychologist Step 12 – DCS 7.4% 0% Base psychologist Step 13 – DCS 7.1% 0% Clinical Psychologist DCS Step 6 7.7% 3.9% Head Psychologist DCS Step 2 7.3% 4.8% Head Psychologist DCS Step 3 7.1% 2.2% 60 The PSA submitted that in light of the demonstrated and agreed changes to work value (involving a net addition to work requirements), and the demonstrated and agreed problem with attraction and retention of psychologists, it was clear that the DPE proposal for transitional arrangements was flawed. Firstly, it meant that for important categories of existing employees, there was insufficient or no recognition of the changes in their work value. Secondly, it meant that nothing would be done by way of salary enhancement in order to retain the most experienced psychologists in public service departments (noting that a number of the witnesses called by the PSA would fall into this category). Thirdly, it would create an anomaly whereby more junior psychologists (including intern psychologists) would receive substantial salary increases, while senior psychologists (perhaps including those supervising interns) would receive little or no increase. The PSA's proposed transitional arrangements, by contrast, it was submitted, would ensure that all employees received an appropriate level of salary increase. 61 The other problem referred to by the PSA was that as a result of arrangements entered into in 1998, newly employed intern psychologists in DCS commenced at Step 4 of the base psychologist classification. However, the DPE proposed to change this practice, so that intern psychologists starting in DCS would now commence at Step 1, not Step 4. The effect of this proposal would be that the starting salary for new employees will be reduced by 7.8 per cent, with a "knock-on" effect of reducing salary rates for all steps thereafter. In effect, it was submitted, notwithstanding the agreed work value changes and the existence of attraction/retention difficulties, the DPE's proposal was that salaries for future employees be reduced compared to what they would have received under the current 1982 Agreement. 62 The DPE submitted it was inappropriate to continue the payment of the 1982 increments unabsorbed into the future for the following reasons: (a) Psychologists employed in Health are not in receipt of those increments. (b) The continuation of those increments will mean in time that existing psychologists who are not in receipt of that allowance or new psychologists will be working alongside the current employees performing the same roles at the same step on the scale but at a lower salary. The effect of the PSA proposal is to permanently create an anomaly whereby currently more junior psychologists (including intern psychologists) and future employees would receive substantially lesser salary than the current employees at the top of the scale. (c) The parties have recognised that a salary increase is warranted on the basis of work value. There is no basis for considering the work value of an existing employee in receipt of the additional increments to be greater than an employee who subsequently reaches the top of the Psychologist Scale and who was not in receipt of the increments at the time of the Award is made. (d) The parties agreed in the Agreed Statement of Issues that: 2.1 A single new award should be made to cover psychologists working in public service departments ("Psychologists"), to replace the existing agreement and various other departmental arrangements currently in place. 2.2 It is timely for the Commission to undertake a full review of the rates of pay and classifications of Psychologists. 2.3 There are special factors justifying the making of a new award for Psychologists with enhanced remuneration under the Special Case and Work Value Changes principles of the current Wage Fixing Principles, including that there has been a net addition to the work requirements of Psychologists in recent years. 2.4 The classification structure currently being applied to Psychologists is outdated and otherwise inappropriate. 2.5 Appropriate salary rates for Psychologists should be set having regard to at least the following factors: (i) the changes in the nature of work and skill and responsibility of psychologists in the NSW Public Sector; (ii) the need to attract and retain the services of suitable psychologists in circumstances where there is a current shortage of psychologists available to be employed throughout the NSW Public Service; and (iii) the decision of the Full Bench in Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 ("the Health Psychologists Case") – as a result of which the Health and Community Employees Psychologists (State) Award [Ex 2] ("the Health Psychologists Award") was made. The parties have agreed on the appropriate rates for future employees and there is no basis (assuming the agreed rates reflect the appropriate work value) that certain employees based on when they were employed should have a greater work value than comparable employees employed after a particular date. (e) The purpose of the application is to value the changes in the work being performed and that applies equally to existing and future employees. The mere fact that some employees do not receive an increase does not mean that there is insufficient or no recognition of the changes in their work value especially where the parties have agreed to the value to be attached to that work by other employees. 63 In relation to the increments at DCS introduced in 1998 it was submitted by DPE that it was inappropriate to continue the payment of those increments unabsorbed into the future for the following reasons: (a) Psychologists employed in Health are not in receipt of those increments. (b) For the reasons set out in [62] above. (c) In relation to DCS the additional increments were paid as attraction and retention payments as a result of arrangements entered into in 1998 Part of the reason identified by the parties in the Agreed Statement of Issues were: 2.5 Appropriate salary rates for psychologists should be set having regard to at least the following factors: (ii) the need to attract and retain the services of suitable psychologists in circumstances where there is a current shortage of psychologists available to be employed throughout the NSW Public Service; and The proposal by the PSA will effectively double compensate those psychologists employed by DCS on the basis of attraction and/or retention. 64 In relation to the issue raised by the PSA regarding the starting salary for intern psychologists in DCS, the DPE submitted that its proposal seeks to standardise across all Departments that step 1 be the entry point of first year interns and step 3 on the psychologist scale be the entry point for fully registered psychologists. The DPE noted that the PSA proposed the entry point for such persons also be steps 1 and 3 respectively, except in the DCS the starting points be Step 3 and Step 6 (respectively). 65 It was also noted that the current position, as a result of arrangements entered into in 1998 was that newly employed, intern psychologists in DCS commence at Step 4 of the base psychologist classification. 66 The DPE submitted that the effect of its proposal was that there would be a standardised approach across all the Departments and it would be consistent with the result in Health. It was submitted the PSA led no evidence that the work value of the classification of Psychologist in DCS (and not any other classification in DCS) was greater than that of the classification of Psychologist in any other Department or in Health. 67 Mr Britt submitted the PSA proposal would continue an anomaly whereby psychologists employed in DCS received greater remuneration than in any other Department and greater than in Health. 68 We accept that the question of appropriate transitional arrangements presents a difficult issue. On the one hand, the absence of salary increases for a significant number of the classifications is quite dramatic and unlikely to assist in improving morale and retention rates, especially among the more experienced ranks of existing employed psychologists. On the other hand, maintenance of the old allowances/increments (albeit frozen at the existing amount) will continue anomalies/disparities that are not only likely to cause discontent, but are inconsistent with the agreed objectives of the parties to move to a modern classification and rate structure that meets the needs of not only psychologists, but the employer as well. 69 On balance, however, we have decided that where the transitional arrangements would cause the new salary level for a step in a classification to produce a salary increase for existing psychologists of less than 5 per cent, an amount of 5 per cent should be preserved so that a psychologist will receive a minimum increase of 5 per cent. The parties are directed to confer on an arrangement whereby the 5 per cent amount is absorbed into future wage increases. So that, taking a simple example, one per cent of the 5 per cent may be absorbed into each of the increases arising out of State Wage Cases over the next five years. 70 In relation to the salaries for newly employed psychologists in DCS, they shall be as proposed by the DPE. We do not consider there is any sustainable basis for having the starting rate commence at year 3 as proposed by the PSA, given the desire for some consistency in the salaries of psychologists, including consistency with Health. Environmental allowance 71 It was submitted by the PSA that an environmental allowance was justified in order to properly compensate psychologists for the special skills required and special disabilities suffered when working in substantial and regular contact with clients in custodial or institutional settings. Currently, psychologists employed by DCS receive an environmental allowance in relation to their employment in a custodial setting. The proposed new allowance would absorb the environmental allowance currently paid to psychologists employed by DCS. 72 It was the evidence of Ms Booby that the allowance is applied in correctional centres as follows: (a) the work location is totally within a correctional centre to attract full payment; (b) there must be regular, direct and substantial contact with inmates; (c) the allowance can be paid on a pro-rata basis if the contact is not on a full time basis – 2-3 days attracts 50%, 4-5 days attracts 100%; (d) inmate contact is generally in a "supervisory" capacity. 73 The environmental allowance in DCS was first established by the then Public Employment Industrial Relations Authority in 1990 for non-custodial staff who "satisfied the agreed criteria of substantial, regular and direct contact with prisoners". However, the quantum of the allowance was established at a rate "consistent with that paid to Medical, Nursing and Non-Nursing Staff at the Prison Medical Service", indicating the pre-existence of an environment allowance paid to staff at the Prison Medical Service. Thus, Mr Hatcher submitted, the existence of special work requirements and disabilities applying to professionals and other occupational groups working with prisoners has long been recognised. 74 Counsel for the PSA submitted that any distinction between DCS and DJJ was arbitrary and unjustifiable. As the inspections revealed, DJJ Centres involve psychologists working in a custodial setting in the same way that psychologists do in DCS correctional centres. Leaving aside age, the criminal profile of DJJ inmates is similar to that of DCS inmates. Mr Hatcher referred to the evidence of Mr Muir, the Acting Director-General of DJJ, who confirmed the DJJ inmate population housed in the eight juvenile justice centres that it operates, included persons convicted of a whole range of offences involving violence, murder and serious sex offences. 75 It was further submitted there was nothing novel about the payment of an environmental allowance to non-custodial employees working in DJJ centres on the same basis as in DCS correctional centres, for example: (a) Nurses employed by Justice Health who work in juvenile justice centres as well as in correctional centres receive under the Public Health System Nurses' and Midwives' (State) Award an environmental allowance which is currently $2,110 per annum. (b) Part-time casual TAFE teachers who teach within a correctional centre are, under the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2006 [2006] NSWIRComm 1012, entitled to be paid an environmental allowance which is currently $1.36 per hour for working in a correctional centre. This allowance is in fact paid to part-time casual TAFE teachers who work in juvenile justice centres as well as those who work in DCS correctional centres. (c) Teachers who work in schools within juvenile justice centres receive an annual allowance of $1,796, which is the allowance payable to teachers of classes with "students of disabilities" under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2006 and Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award 2004 [2006] NSWIRComm 1011. Principals of these schools receive an allowance of $2,342 as the schools are classified as a "school for specific purposes" for the purposes of the award. 76 Reference was also made to the evidence of Ms Ailsa Robinson, a Psychologist employed at Cobham Juvenile Justice Centre, and Mr Steve Garlick, the Co-Coordinator Special Services for DJJ's Northern Region about the client population in juvenile justice centres. Their evidence included the following: (a) Ms Robinson's clients are generally males aged 14 to 18 years who have committed offences including theft, car theft, robbery, armed robbery, assault, sexual assault, drug offences and weapon offences. Presenting problems of the Cobham clients which include drug withdrawal and mental illness, including depression, anxiety and psychosis. She said, "they experience adjustment difficulties, suicide ideation and self harm behaviour, anger management problems, extreme stress, grief and loss, trauma, developmental delays, family violence and low level of intelligence and education. They suffer from poor social skills and dysfunctional family relationships. They have poor coping skills and poor problem solving abilities." Ms Robinson is presented with situations involving young people who are actively engaging in self-harm behaviour and suicide attempts. For example, a young person may continually cut their arms or tie "clothing" around their neck. In the course of a normal day's work she is required to respond to crisis situations throughout the day. As an example a young person may become highly agitated in response to a court outcome. Ms Robinson spends an average of between one to five hours face to face with clients per day, or about 50 – 60 hours per month (Robinson). (b) "Sometimes there are risks associated speaking with the young people as they are unknown and their behaviour may be unpredictable. For example, we may ask something or bring something up for the young person that is extremely provocative and they may become violent. At times they are verbally abusive towards us. In the custodial environment, psychologists approach the young people with limited knowledge regarding their situation, as the young people are isolated from their family and community. Psychologists often have to deal with the manipulative behaviours of young people" (Robinson). (c) "The population in detention centres is changing because of diversion of offenders to youth justice conferencing or circle sentencing. Inmates are increasingly more difficult because of the harder-edge crimes they have committed or they are repeat offenders or high recidivist offenders." (Garlick). (d) Juvenile justice centres have detained inmates with mental health problems who suffer from depression or learning disorders. He says they may have psychotic episodes. They can be violent and aggressive. The Department has legislative provisions to allow psychologists to supervise young people with mental health disorders and developmental disabilities. However, there are no special facilities at Acmena Juvenile Detention Centre. There is only one nurse and one Centre Psychologist. The young people are often a danger to others and to themselves. There are no mental health professionals there nor does Justice Health provide mental health services (Garlick). 77 In relation to the claim for the payment of the environmental allowance for psychologists employed at DJJ, the DPE submitted that no other counsellors employed by DJJ were paid that allowance, even though they also have regular client contact. Further, that whilst it was conceded that the inspections revealed that Juvenile Justice Centres involve psychologists working in a custodial setting in the same way that psychologists do in DCS correctional centres, it was submitted there was still a question of degree when it came to a comparison of the working environment at Long Bay, in particular, and Cobham. 78 There was insufficient evidence before us regarding conditions in institutions operated by DADHC and whether payment of an environmental allowance was warranted at those institutions. But having regard to the evidence, and what the Full Bench saw on the inspections, we consider there is no basis at all for making any distinction between the environment experienced by psychologists at DCS correctional centres and that experienced at Juvenile Justice Centres operated by DJJ. 79 We acknowledge the concern voiced by the DPE about flow on if we were to award an environmental allowance to psychologists employed in Juvenile Justice Centres. However, the present inequity is so obvious that it cannot be ignored. The inequity is illustrated by the fact that prior to DCS taking over responsibility for the Kariong Juvenile Justice Centre from DJJ, no allowance was payable to psychologists employed there. Once DCS assumed responsibility, the allowance became payable notwithstanding that the environment or work of psychologists at Kariong did not change. 80 We propose to grant the claim in respect of Juvenile Justice Centres. Any claim by other classes of employees seeking flow on, if that were to occur, would need to be considered on its merits in accordance with the relevant wage fixing principles. Isolation allowance 81 The PSA submitted the proposed allowance was intended to capture those psychologists who work in country and regional locations who lack ready access to support and supervision from other psychologists. Its function was both to compensate psychologists for the disabilities associated with the lack of such support and supervision, and also to assist in overcoming the attraction and retention problems associated with isolated country positions. 82 It was contended there were particular difficulties in attracting psychologists to locations such as Kempsey, Dubbo, Wagga Wagga, Grafton, Tamworth and Goulburn. That situation, it was submitted, remained in the relevant departments despite the public service-wide strategies that have been put into place to attempt to address the problem. Mr Hatcher submitted there were currently no department-specific incentive programs in place to enhance the attraction and retention of psychologists in country areas. 83 Psychologists who do not receive professional support, it was submitted, face special difficulties in terms of dealing with complex cases, receiving advice and feedback about their work, and keeping their knowledge up to date. The payment of an allowance in recognition of this was appropriate. Reference was made to the "one man branch" or "in-charge" allowance, which has been paid by DCS to Ms Drayden-Thompson since 1991 whilst she had to work alone and without support at Grafton correctional centre. The allowance claimed here is of the same quantum. Mr Muir, the Acting Director-General of DJJ, accepted that the criteria for the payment of the isolation allowance now proposed by the PSA would be suitable to address the attraction and retention problems that he accepted did exist in country areas. 84 In opposing the allowance the DPE submitted: (a) The allowance is not paid by Health to psychologists employed outside the metropolitan areas of Sydney (including the Central Coast), Newcastle and Wollongong and who have no other registered psychologist employed at their work location; (b) The requirement that another Psychologist be employed at their work location ignores both modern means of making rapid contact with a supervisor and the existence of multi-disciplinary teams of professionals providing support; (c) There is evidence that DOCS psychologists in non-metropolitan areas receive 3 hours group supervision per month plus individual supervision; in DJJ all Psychologists receive one hour per week supervision averaged over the month. In DCS regular supervision is provided. Although it may be more difficult to provide non-metropolitan psychologists with ready personal access to another psychologist for supervision the evidence shows that the majority of Departments provide a reasonable level of supervision to all of the psychologists in both metropolitan and non-metropolitan areas; (d) The allowance as currently drafted by the PSA would be paid to the psychologist employed by DJJ at Orana which is close to Dubbo since DJJ has a person in the position of specialist services co-ordinator at Dubbo and that person visits Orana two or three times a week because the person is not based at Orana. Secondly, the allowance as drafted fails to recognise there is much less professional isolation at Dubbo compared with Wagga Wagga and Grafton in DJJ; (e) In relation to the issue of attraction and retention of Psychologists there are, in addition to agency specific incentives and programs, at the service-wide level a broad package of strategies designed to acknowledge the fact that some locations are isolated from a range of services, have difficulty in attracting staff and present particular challenges that affect retention. These strategies include: (i) relocation assistance; (ii) remote area allowance; (iii) additional leave; (iv) rental subsidies; (v) skills shortage allowance; (vi) flexibility in employment arrangements; (vii) the practice of co-location; and (viii) computers and internet access to improve access to distance learning and to facilitate formal and inform support and career networks; (ix) training and development opportunities with costs associated with relief, travel and accommodation to attend courses met under the under the Crown Conditions Award. (f) The paying of a universal allowance does not recognise that the ease or difficulty of attraction and/or retention may depend upon the particular location and the need to look at a comprehensive package to attract persons to rural areas and there are differences between rural areas; (g) The DPE concedes that the evidence reveals that some Departments have had difficulties in recruiting for and/or retaining psychologists in country areas as Kempsey, Dubbo, Wagga Wagga, Grafton, Tamworth and Goulburn although the reasons for such difficulties may have multiple causes. This does not mean that all psychologists employed in non-metropolitan regions should potentially be paid the allowance whether there is any difficulty in attracting them or retaining them. (h) If the Commission were to grant the allowance it would inevitably lead to claims by other sections of the workforce seeking similar allowances at some cost to the State. 85 We do not consider the PSA has made out a case for the payment of an isolation allowance. We note the initiatives/strategies being undertaken to overcome the difficulties of attracting and retaining staff in isolated locations and any money would be better spent on developing these, rather than on an isolation allowance. Moreover, with the modern means of communication available to psychologists in remote locations, it is difficult to justify the payment of an allowance on the basis that they lack access to colleagues. The claim for an isolation allowance is refused. Training leave 86 The PSA submitted that its claim for a minimum leave entitlement for professional training, education and conference leave was not intended to lead to the creation of an entirely new entitlement, but rather to ensure that as part of an existing entitlement of up to ten days training leave per year under clause 86(f) of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2002 can be devoted to professional development. The terms of the award provision proposed by the PSA were as follows: The employer has a responsibility to ensure that psychologists have appropriate and equitable access to professional training, education and conference attendance relevant to both the employer and employee. The minimum entitlement for professional training, education and conference attendance leave is five (5) working days per annum (non cumulative). The five working days are included in and are not additional to the leave entitlements under Clause 86(f) of the Crown Employees (Public Service Conditions of Employment) Award 2002 (The Award) or any replacement award. All other entitlements shall be in accordance with the relevant provisions of Clause 86 of the Award. 87 Reference was made to the evidence on the importance of professional development: (a) The Psychologists Act 2001 clearly recognises the importance of continuing professional development for psychologists. Under section 20, on applying for re-registration in NSW a registered psychologist must provide information on matters which may affect the continuation of their ability to practice, including " details of any continuing professional development undertaken by the psychologist during the return period ". (b) Dr Hunt confirmed that professional development is necessary for the maintenance of professional standards and competences and keeping up to date in the profession. The PRB would take into account the professional development activities of the psychologist in the event of a complaint against the psychologist. (c) There is an expectation in the PRB's Code of Conduct that psychologists maintain competence in their area of psychological practice through ongoing professional development. (d) Members of the APS are required to comply with minimum requirements relating to professional development in order to maintain membership. As Professor Bryant and Dr Hunt confirmed, the APS is the only body which sets standards in this area. 88 Mr Hatcher submitted that despite the clear need for psychologists to have the capacity to attend professional development opportunities, the evidence demonstrated that, in practice, many psychologists received little or no professional training directly from their departments, and had little or no opportunity to attend professional training courses, conferences and the like: (a) In DCS, courses currently provided are not appropriate in content nor are they are pitched at the level appropriate to the professional development of psychologists. They are not currently recognised by APS for professional development purposes. An annual internal training conference for psychologists was discontinued in 2002, and has not been replaced by any alternate form of professional training. The allocation of funds for psychology training has been decreasing. (b) Ms Drayden-Thompson's evidence was that she did most of her research in her own time and frequently paid her own way to conferences of relevance to her work. She has found the conferences very valuable and says they help her do her job better. On the occasions that the Department has paid for the conference fees, she has had to pay for the travel and accommodation. Ms Drayden-Thompson added, " at other times I have paid for everything myself and have claimed what I could on tax but it only compensates a small amount of the total expense of maintaining my professional development ". (c) Similarly, Mr Cook's evidence was in the last three years he has funded his own attendance at two workshops and partially funded his attendance at another two. Mr Newell said that he could attend professional development only for about one to two days a year, which was not sufficient. (d) DCS internal courses are for offender program staff and are geared to the level of welfare, alcohol and other drug workers, and services and programs officers. The general courses for staff at Grafton and Glenn Innes are not of a high enough level to claim professional development points from the APS. Grafton Correctional Centre is reluctant to send staff to the courses because the cost of travel, accommodation and expenses are prohibitive. (e) Mr Allerton confirmed that a similar situation applied in the DJJ, citing a shortage of psychologists and budgetary problems meaning that practical opportunities to access professional development are restricted and psychologists themselves usually have to pay attendance fees. Mr Troth said there was a small amount of training for psychologists in the DJJ which would most likely satisfy the requirements for 10 (ten) generalist points in the APS but rarely the specialist points. Most training for psychologists and counselors in DJJ is provided internally. Psychologists generally paid for themselves to attend conferences unless presenting an approved paper. (f) In relation to DOCS, not all DOCS psychologists have been granted leave to attend external courses and a number have only done so at their own expense. There is a great deal of inconsistency in the way different line management dealt with applications to be paid for a conference or workshop. Mr Davis said: " most psychologists I have spoken to with usually pay for conference registration themselves but either have either accommodation, days in lieu of work, meals and travel covered by arrangement with their line manager. Travel allowance claims are negotiated between the psychologist and their line manager ". (g) In DADHC, Mr Ferris said that when he held a Psychologist position, he was concerned that he might lose his membership of the APS because he had not done enough hours of professional development to satisfy the requirement. He says DADHC management does not understand the need to take part in professional training and accredited courses specific to psychology. For the first time since he joined DADHC in March 2004, he had recently been reimbursed for attendance at conferences. 89 The PSA submitted that its proposal for five days' professional training, conference, education and study leave was a moderate and proportionate response to the issues identified in [88] above. Professor Bryant regarded it as appropriate in order to maintain professional standards. Further, that there was no genuine "flow-on" issue, since there was no new leave entitlement created as such. It was noted that some other public sector professionals have far more generous provisions, for example, Crown Employees (Medical Specialist, Various Agencies) Award. 90 The DPE proposed the following award provision in respect of professional development: Psychologists are expected to maintain competence through ongoing professional development in accordance with PRB guidelines. The Department shall not unreasonably refuse requests by psychologists to attend relevant training, education and conferences. Attendance at approved training, education and conferences shall be in accordance with the Staff Training and Development Clause of the Crown Employees Public Service (Conditions of Employment) Reviewed Award 2006 as amended from time to time. 91 The DPE expressed opposition to the PSA's claim on the following grounds: (a) Psychologists in Health are not guaranteed a minimum of 5 days per annum, non-cumulative entitlement to leave for attendance at professional training, education and conference leave. (b) If the Commission were to grant the claim it would lead invariably to claims by other sections of the workforce for a similar level of mandated minimum leave of five days for attendance at professional training, education and conference leave. The cost of such a claim for the entire workforce would be over $350 million. (c) The provision of training to Psychologists has never been the subject of a dispute between the DPE and PSA to date. The proposed clause is likely to cause disputes rather than resolve them. The clause does not specify who shall determine whether the training etc is appropriate to the needs of the agency or whether the cost of the course is appropriate for the agency or what happens if an employee does not wish to attend such training or what happens if there is no training available in the 12-month period. (d) There is no minimum standard of training prescribed by NSW Psychologists Registration Board. The question of a lack of training only becomes important to the Board where a complaint may be raised and not otherwise. In such circumstances where the NSW Board which is the specialist body registering psychologists does not mandate a minimum standard of training the Commission should be not seek to set such a standard. This is especially the case in the absence of any evidence that psychologists in the Public Sector have been the subject of complaint to the NSW Board or when completing registration forms for the Board are stating nil as their on going training. (e) DCS continues to provide access to training to its psychologists. DJJ continues to provide access to training to its psychologists. DJJ has staff development days twice a year for psychologists. In addition, psychologists in DJJ have further professional development days. DOCS continues to provide professional training to psychologists of 4-6 days per year and psychologists may attend other conferences and workshops if approved. (f) In the alternative, if the Commission were to specify a mandated minimum level of training etc, per year it should not be the figure of 5 days but of 20 hours. 92 We do not propose to set any minimum entitlement for professional training, education and conference leave. The Conditions Award already provides for an existing entitlement of up to ten days' training leave per year and it is simply a matter of psychologists accessing that leave. We note there have not been any disputes over access to such leave in so far as psychologists are concerned. 93 We do, however, consider that it is appropriate to make it clear in the Award that psychologists shall have access to relevant training etc, leave and that requests for such leave shall not be unreasonably refused by the employer. The provision shall be in the following terms: Psychologists shall have appropriate and equitable access to professional training, education and conference attendance relevant to both the employer and employee in order that they may maintain competence through ongoing professional development in accordance with PRB guidelines. The Department shall not unreasonably refuse requests by psychologists to attend relevant training, education and conferences. Attendance at approved training, education and conferences shall be in accordance with the Staff Training and Development Clause of the Crown Employees Public Service (Conditions of Employment) Reviewed Award 2006 as amended from time to time. Professional supervision 94 The PSA has proposed an award provision in the following terms: All classifications of psychologists will be provided with one hour per week on average of professional supervision in the workplace. If adequate professional supervision is not available at the workplace the employer will provide suitable time-in-lieu arrangements and financial support to ensure adequate and appropriate external supervision. 95 In support of its claim the PSA submitted that proper professional supervision of psychologists was at least as essential as ongoing professional development. For intern psychologists, there are detailed guidelines issued by the PRB providing for a minimum level of professional supervision, which require 160 hours of supervision and workshop attendance over a two-year period – with the supervision requirements averaging about an hour per week. 96 It was further submitted that the code of professional conduct established by the PRB under the Psychologists Act contained requirements relating to maintenance of competence through ongoing professional supervision. It was contended that a failure of a registered psychologist to undertake professional supervision may be taken into account in the Board's consideration of a complaint against a psychologist, and may have consequences for any action or penalty that the PRB decides to take. 97 Reliance was placed on Professor Bryant's evidence that proper professional practice required professional supervision to be provided on a weekly basis, preferably for about one hour per week. Further, that psychologists in private practice in Australia will pay for supervision from senior psychologists to ensure their skills are upgraded on an ongoing basis. 98 In referring to the PRB Guidelines the PSA noted the preferred mode of supervision (of interns) was face-to-face. Alternative methods, such as video conferencing and/or telephone calls can be used only at the discretion of the principal supervisor and, in particular circumstances of difficulty in providing face-to-face supervision. Equally, according to Dr Hunt and Professor Bryant, for registered psychologists, including more senior and experienced psychologists, the preferred method of professional supervision was face-to-face. Research had confirmed that the full educational benefit was obtained by this means. 99 Mr Hatcher submitted there was evidence of inadequacies in the provision of professional supervision by the relevant departments. For example: (a) Professional supervision provided by DOCS may not be sufficient to meet all requirements for registration of a provisionally registered psychologist in the minimum time. The provisionally registered psychologist may need to seek additional or alternative supervision and pay a fee for this. The fee is the personal responsibility of the provisionally registered psychologist. (b) In DADHC, Mr Wagner's evidence was that professional supervision was not up to desired standards. DADHC had entirely dismantled any professional support for its psychologists. Three Senior Psychologists from Child Protection were no longer allowed to support the Disability psychologists. Mr Ferris' evidence was that a group of DADHC psychologists had to set up their own group of Clinical Supervision as Senior Psychologists in DADHC were not recognised or paid to provide clinical supervision. He said that there was " no individual supervision at all in DADHC's Metropolitan North Region ". There had been several instances of interns being left with no supervisors and Mr Ferris himself had never received any formal professional supervision while working in DADHC. (c) Professional supervision in public service departments was also severely limited by the number of psychologists that Senior Psychologists have to supervise and the distance that they have to travel to provide supervision. 100 The PSA submitted that in the light of this demonstrated inadequacy in provision of professional supervision, and the clear evidence about the minimum degree of professional supervision required to maintain professional standards, its claim on this matter was fair and reasonable. 101 The DPE proposed the following award provision: Intern psychologists shall be provided with professional supervision in accordance with PRB guidelines as amended from time to time. All psychologist classifications shall be provided with professional supervision to maintain competence in their area of practice through ongoing supervision in accordance with PRB guidelines. 102 The DPE opposed the PSA's claim on the following grounds: (a) Psychologists in Health are not guaranteed an average of one hour per week in the workplace, or if adequate professional supervision is not available at the workplace, the employer will provide suitable time-in-lieu and financial support to ensure adequate and appropriate external supervision. In Health there is no benchmark level of supervision. (b) The clause proposed by the DPE was consistent with the Supervision Guidelines of the NSW Psychologists Registration Board for both interns and psychologists. (c) The clause proposed by the PSA fails to take into account the special requirements of the NSW Psychologists Registration Board for interns and/or provisionally registered psychologists where there are specific requirements as to the types of supervision and who may conduct the supervision. (d) There was no evidence of any disputes between the PSA and any Department concerning the failure by the Department to provide a Psychologist with appropriate professional supervision. (e) It was inappropriate for the Commission to mandate a minimum level of supervision of psychologists where the NSW Registration Board itself did not mandate a minimum level of supervision. (f) In the absence of such supervision in the workplace, the Department under the PSA proposal would have to provide time in lieu arrangements (what ever that may mean) and financial support (not quantified) to ensure adequate and appropriate external supervision (not defined) for the psychologist. The costs that would have to be paid by the Department for this supervision include the costs of the external supervision and costs of travel for outside supervision. (g) Various witness in the proceedings have stated that "professional supervision" can be provided by various mediums including individual, group, peer supervision within the group, telephone, review of reports, email, observation and audio/video tape. Further, the level of supervision depends on individual needs and experience. (h) The effect of the PSA claim was that a Department in order to comply with the requirement of an average one hour per week would need to have in place systems that recorded the time spent by a supervising psychologist with each psychologist in group sessions, peer supervision within the group, telephone attendances, time spent reviewing reports, time spent in responding to emails, time spent in observations and watching or hearing audio/video tapes. This was clearly impracticable. (i) The PSA's clause was unnecessary since employees are receiving an adequate level of professional supervision. In DOCs psychologists are being provided with 3 hours group supervision per month plus individual supervision each month. In DCS psychologists are being provided with more than one day per month supervision and Lyndon Newell spends 70-80% either travelling to visit psychologists in his area for whom he is responsible to supervising them. DCS also have a comprehensive supervision policy for psychologists. Supervision in DJJ is one hour per week averaged over a month but there may be specific reasons where this was not adhered to. Steve Garlick's evidence was that in DJJ up until the end of 2005 there was five hours of group supervision, two hours of peer supervision plus individual supervision each month and although this practice had changed, the hours of supervision were essentially the same. 103 For the reasons submitted by the DPE we do not propose to grant the PSA's claim in respect of professional supervision. In particular, we note the impracticability of keeping track of an average of one hour per week supervision and the fact there have been no disputes over the issue. Moreover, whilst there may be pockets of inadequate supervision we are not convinced that it is a sufficiently widespread problem to require us mandating a minimum weekly period of supervision. 104 We propose to include in the award the provision proposed by DPE. That will at least make it clear that supervision must be provided to a prescribed standard. Any alleged failure to provide such supervision may be dealt with through the Award's grievance and dispute settling procedures. Any wholesale failure to provide such supervision would provide a basis for the PSA to renew its application once the new award expired. Payment of Registration Fees 105 The PSA sought the following award provision: Employees will be reimbursed the cost of the annual registration fee payable under the Psychologist Act 2001 106 It was submitted for the PSA that the new awards proposed by both the PSA and PEO required that persons holding designated psychologist positions be registered as psychologists with the PRB. This was to be compared, for example, to persons employed as counsellors who will often be trained as psychologists and use at least some of the training and skills of psychologists, but are not required to be registered. 107 Mr Hatcher noted that under the Psychologists Act, a registered psychologist must renew registration annually by (amongst other things) paying a renewal fee. It was the responsibility of the psychologist to pay the annual fee by the due date. The current registration fee is $80 per annum. Public Service departments do not currently pay the registration fees for psychologists. 108 It was submitted that in the circumstances where it is proposed that registration be a requirement for employment, it is fair and reasonable that the employer reimburse the psychologist for payment of the registration fee. Psychologists would not be the only professional group to have registration fees paid: solicitors employed in the public service currently have their practising certificate fees of $230 per annum paid by the employer. It was submitted that whilst the DPE expressed a concern about "flow-on" to a number of professional comparator groups in the public sector, most of those identified did not have registration fees to be paid. 109 The DPE opposed the PSA's claim for payment of registration fees. Opposition was based on the following grounds: (a) Psychologists employed in Health must be registered. Psychologists employed in Health do not have their registration fees paid for them. (b) The payment of other registration fees for other professions such as nurses would impose a considerable cost impost on the State. (c) Other than the payment of fees for solicitors' practising certificates where the employee is a qualified solicitor and is required in the course of their daily duties to perform legal work of nature ordinarily carried out by a Solicitor or member of the legal profession, there is no evidence of any example of a Department paying registration fees for employees. The basis of the payment of solicitors' practising certificates appears to be lost within "the mists of time". 110 Where it is a statutory requirement for a professional to be registered in order to practise, it seems to us that payment of any registration fee is the responsibility of the individual. We note that under the Psychologists Act a person who is not a registered psychologist must not indicate that the person practises psychology or is qualified to practise psychology: s 7. 111 The PSA relied on the fact that solicitors employed in the public service currently have their practising certificate fees paid by the employer. We are not aware of the origins of that arrangement, but we do not regard it as a precedent we should follow. Summary of conclusions 112 The new classification structure proposed by the parties is an appropriate one having regard to the parties' objectives, in particular, the desirability of consistency with public health psychologists and the Special Case principle. We are also satisfied (subject to dealing with the issue of the Chief Psychologist salary) that the agreed salary levels properly reflect changes in the work value of psychologists. We also accept that in circumstances of acute shortages the attraction and retention of professionals are factors that may be taken into account in fixing appropriate salary levels. To the extent the parties had regard to these factors in fixing salary levels, we consider it was permissible to do so. 113 We are satisfied that all of the other matters in respect of which the parties have reached agreement and which will be incorporated into a new Award constitute fair and reasonable conditions of employment for employees and are not inconsistent with either the public interest or the Commission's wage fixing principles. 114 In relation to those matters in respect of which there was no agreement between the parties the Full Bench has determined as follows: (1) In the description of the level of judgment and problem solving of Specialist Psychologist, it shall refer to "High level diagnostic ability in relation to psychological disorders". (2) The descriptor for Senior Specialist Psychologist will include under the heading "Education Training and Experience" the requirement, "Extensive experience as a Specialist Psychologist or other relevant work experience deemed equivalent by Department Head". (3) The new Award shall contain an "Appointment and Progression" provision consistent with that proposed by the PSA in cl 4 of its amended application subject to the following qualifications: (a) In order for an employee to be considered for reclassification to the Senior Psychologist level the committee will be required to be satisfied the employee has met the criteria for the Psychologist classification, and has completed a minimum of one year at the 9th year of service and thereafter point on the salary scale for Psychologist. Further, in order for an employee to be considered for reclassification to the Senior Specialist Psychologist level the committee will be required to be satisfied the employee has met the criteria for the Specialist Psychologist classification, and has completed a minimum of one year at the 5th year of service and thereafter point on the salary scale for Specialist Psychologist. (b) Reclassification to the position of Specialist Psychologist should be subject to the same requirements affecting other classifications except that an employee who has obtained the relevant Master's degree or higher would not be required to complete a minimum of one year at the highest year of service and thereafter point on the salary scale for the relevant classification. In other words, once the master's degree is obtained that would provide the opportunity for making an application to a higher level provided all of the other requirements referred to in 4.1 - 4.4 of the PSA's clause 4 are met. (c) Prior to implementation of the classification committee system the parties will confer as to how that is to occur. The Commission will be available to assist in that regard and if one or both parties considers it desirable for the Commission to have a monitoring role in the early life of the committee system that can be accommodated. These matters may be addressed at the time the terms of the Award are before the Commission for settlement. (4) In relation to a deemed equivalency provision in the definitions of Specialist Psychologist and Senior Specialist Psychologist: (a) We are prepared to accept such a provision but we would require the parties to confer further on the terms of the provision. For example, we do not think reclassification would be available for an employee without the necessary degree unless the employee has completed a minimum of one year at the highest year of service and thereafter point on the salary scale for the relevant classification and that the employee is able to demonstrate in an objective way he or she possesses the relevant specialist knowledge and experience and is able to apply that knowledge and experience at the requisite level. (b) Where a specialist college requires a Master's degree for membership but has admitted a psychologist without such a degree as a full member on the basis of demonstrated knowledge and experience, such membership may be used to support an application for reclassification but it will not necessarily be conclusive proof of the requisite level of equivalent knowledge and experience. That judgment would be a matter for the relevant department. What is important here is maintenance of professional standards. (c) We note the PSA accepts that persons eligible under the deemed equivalency provision would mainly be a closed or "grandparented" category. We consider it should be closed. That is to say, the parties should agree on a period during which applications will be considered (once appropriate criteria are agreed) but after a certain date no further applications will be received. (5) The provisions relating to equivalency in the Chief Psychologist and Principal Psychologist's definitions will be in accordance with the DPE's proposed Award. (6) The rate of salary for the Chief Psychologist shall be $95,500 per annum. (7) Where the transitional arrangements would cause the new salary level for a step in a classification to produce a salary increase for existing psychologists of less than 5 per cent, an amount of 5 per cent should be preserved so that a psychologist will receive a minimum increase of 5 per cent. The parties are directed to confer on an arrangement whereby the 5 per cent amount is absorbed into future wage increases. So that, taking a simple example, one per cent of the 5 per cent may be absorbed into each of the increases arising out of State Wage Cases over the next five years. (8) In relation to the salaries for newly employed psychologists in DCS, they shall be as proposed by the DPE. (9) Psychologists who have substantial regular and direct contact with clients in correctional centres operated by the Department of Correctional Services and Juvenile Justice Centres operated by the Department of Juvenile Justice shall be paid an environmental allowance of $2,143 per annum. The allowance shall be paid under the following conditions: (a) the work location is totally within a Correctional or Juvenile Justice Centre to attract full payment; (b) there must be regular, direct and substantial contact with inmates; (c) the allowance can be paid on a pro-rata basis if the contact is not on a full time basis – 2-3 days attracts 50 per cent, 4-5 days attracts 100 per cent; (d) inmate contact is generally in a "supervisory" capacity. (10) The claim for an isolation allowance is refused. (11) The Award shall contain the following clause: Professional Development Psychologists shall have appropriate and equitable access to professional training, education and conference attendance relevant to both the employer and employee in order that they may maintain competence through ongoing professional development in accordance with PRB guidelines. The Department shall not unreasonably refuse requests by psychologists to attend relevant training, education and conferences. Attendance at approved training, education and conferences shall be in accordance with the Staff Training and Development Clause of the Crown Employees Public Service (Conditions of Employment) Reviewed Award 2006 as amended from time to time. (12) The Award shall include the following clause: Professional Supervision Intern psychologists shall be provided with professional supervision in accordance with PRB guidelines as amended from time to time. All psychologist classifications shall be provided with professional supervision to maintain competence in their area of practice through ongoing supervision in accordance with PRB guidelines. (13) The claim for the payment of psychologists' registration fees is refused. (14) The parties shall agree on the duration of the new award. Orders and directions 115 The Commission makes the following orders and directions: (1) A new Crown Employees (Psychologists) Award is made in terms that are consistent with the findings in this decision, as they have been summarised at [114]. (2) The Award will take effect from the beginning of the first full pay period to commence on or after the date of this decision. (3) The PSA is directed to file and serve a draft award reflecting orders (1) and (2) inclusive hereof within 14 days of today. (4) Settlement of the terms of the new Award will occur at 10.00 am on Monday, 30 October 2006 before Boland J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.