Public Hospital Medical Physicists (State) Award (No 2) [2008] NSWIRComm 140

Industrial Relations Commission of New South Wales

CITATION: Public Hospital Medical Physicists (State) Award (No 2) [2008] NSWIRComm 140

PARTIES: Health Services Union NSW Department of Health

FILE NUMBER(S): IRC 5671 of 2005

CORAM: Grayson DP

CATCHWORDS: Application for new award - First award covering medical physicists employed in public hospitals - Employer appeal against first instance decision - Appeal dismissed save for one issue - Issue remitted for further hearing and determination - Further evidence and submissions - New rates struck for non-accredited medical physicists - Intrinsic value of accreditation diminished from base grade to top level in classification structure - Rates varied to reflect such diminution

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Re Public Hospitals Medical Physicists (State) Award [2007] NSWIRComm 19 Re Public Hospitals Medical Physicists (State) Award IRC 260 of 2007

HEARING DATES: 23/07/08, 07/08/08

DATE OF JUDGMENT: 11 August 2008

Mr J Murphy, of counsel Health Services Union LEGAL REPRESENTATIVES: Mr R Warren, of counsel NSW Department of Health

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Grayson DP

11 August 2008

Matter No IRC 5671 of 2005

Public Hospital Medical Physicists (State) Award

Application by the Health Services Union for a new award

DECISION

[2008] NSWIRComm 140

1 On 9 February 2007 the Commission as presently constituted published a decision in Re Public Hospitals Medical Physicists (State) Award [2007] NSWIRComm 19 the effect of which, as may be apparent, was to create a new award for medical physicists employed in public hospitals. 2 That decision was the subject of challenge by the employer, the NSW Department of Health, and in turn the subject of orders made by the Full Bench on 5 June 2008 in Matter No. IRC 260 of 2007. The orders of the Full Bench were as follows: 1. That the appeal is upheld with respect to those Medical Physics staff: not currently undergoing training, including but not limited to the Training, Education and Accreditation Program (TEAP) in a medical physics speciality towards obtaining accreditation by the Australian College of Physical Scientists and Engineers in Medicine (ACPSEM), or such other accreditation body acceptable to the Director-General, NSW Department of Health; and those Medical Physics staff not accredited by the ACPSEM or such other accreditation body acceptable to the Director-General, NSW Department of Health. 2. That the HSU application for Matter No IRC 5671 of 2005 be remitted to Deputy President Grayson to hear and determine the matter for those Medical Physicist staff included in the terms of paragraph 1 (one). 3. On or before 4.00pm, 26 June 2008, the Health Services Union ('HSU') to file and serve any further material relevant to Matter 5671 of 2005 for the proceedings as outlined in paragraph 2 (two). 4. On or before 4.00pm, 26 June 2008, the Department of Health (DOH) to file and serve any further material relevant to Matter 5671 of 2005 for the proceedings as outlined in paragraph 2 (two). 5. That leave be granted to either party to apply generally with respect to Orders 3 and 4. 6. That in the interim those Medical Physicist staff included in the terms of paragraph 1 (one) are to remain covered by the terms and conditions of the Hospital Scientists (State) Award 7. That in all other aspects the appeal is dismissed. 8. That the stay granted by Justice Staff in Matter No 260 of 2007 on 6 March be dissolved. 3 In the result, the matter was again listed for hearing before me on 23 July 2008 and 7 August 2008 in the course of which documentary material filed by the respective interests was tendered and admitted into evidence and the parties made extensive submissions in support of their competing positions. 4 It is accepted for the purpose of these supplementary proceedings and notwithstanding that the Full Bench has yet to publish its reasons in the appeal matter, that the import of the orders made by the Full Bench and indeed the rulings to which I was taken on the transcript, was that the Full Bench reached a clear conclusion that medical physicists who had yet to obtain accreditation within the meaning of the relevant definitions clause of the new award could not receive and should not receive the same rate of remuneration as their colleagues who had obtained such accreditation. In that regard and although it was initially contended otherwise by NSW Health, it seems plain enough that the orders of the Full Bench set out above cannot be read to include the classification of Medical Physics Registrar and as much was impliedly accepted by Mr Warren of counsel in his closing submissions. 5 That being so the task of the Commission having regard to the cases presented and to the orders made by the Full Bench is to determine the appropriate industrial outcome for those non-accredited medical physicists. To their credit the parties have genuinely attempted in conciliation chaired by the Commission to reach some common ground in that regard but have been unable to finally resolve their differences. 6 As a starting point and with no disrespect to the position taken by NSW Health I am comfortably satisfied on the evidence that non-accredited medical physicists numbering some thirty three persons throughout the State are nonetheless carrying out the essential functions of medical physicists at all levels of the promotional hierarchy up to and including, in one case, the level of Director of Medical Physics at St George Hospital. In such circumstances and plainly in my opinion, non-accredited medical physicists should be part of the newly made medical physicists award. Conversely they should not as NSW Health initially proposed, remain tied by way of a percentage adjustment to the Hospital Scientists pay scale.