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. 7 From that starting point the question becomes what the appropriate level of remuneration should be or in other words what intrinsic value for industrial purposes should be placed on accreditation per se. It is fair to say that this is the vexed issue which has continued to divide the parties. On the one hand accreditation formed a significant part although by no means the exclusive basis of the case brought by the Health Services Union at first instance and the union therefore cannot divorce itself from the proposition it then advanced to the effect that accreditation was of itself worthy of recognition in money terms in the rates of remuneration fixed for medical physicists. It follows that some measure of difference between those who are accredited and those who are not should exist regardless of whether the work carried out by medical physicists throughout the State's hospitals might otherwise be materially indistinguishable. 8 It is further apparent and I am comfortably satisfied from the cases presented, that the value of accreditation is significantly greater at the level of Medical Physics Specialist in the new classification structure than at the level of Senior Medical Physics Specialist, or Director Medical Physics Specialist. This is because broadly stated, the work of the base grade Medical Physicist Specialist is essentially scientific in nature whereas at the top of the promotional hierarchy, the work of the Director becomes increasingly focused on administrative functions thus rendering the process of accreditation less applicable to the functions required of the particular position as one progresses through to the more senior levels provided by the classification structure in the new award. Indeed, both NSW Health in the alternative proposals it advanced and the HSU acknowledged this (albeit tacitly in the case of NSW Health) in suggesting various ways in which the Commission could approach the task of determining the matter. 9 Taking those things into account, the absence of accreditation in my opinion, should sound in varying degrees impacting most significantly at the base grade Medical Physics Specialist level and diminishing progressively throughout the promotional hierarchy with the necessary corollary that the adjusted rates for non-accredited specialists should not result in those occupying more senior positions in the classification structure receiving lower rates of remuneration than their less senior accredited counterparts. In that regard I agree with Mr Murphy's submission that such an outcome would be industrially inappropriate. 10 I therefore determine that a non-accredited Medical Physics Specialist should receive 10% less than an accredited Medical Physics Specialist; that a non-accredited Senior Medical Physics Specialist should receive 4% less than an accredited Senior Medical Physics Specialist and a non-accredited Principal Medical Physics Specialist or Director Medical Physics Specialist should receive 3% less than their accredited counterparts and I so order. 11 Having so determined it will be necessary to include at the relevant clause in the award a definition covering non-accredited Medical Physics Specialists so as to overcome the limiting effects of the area, incidence and duration clause which confine the award to employees therein defined. The parties are directed to file and serve within 21 days in hard copy and computer readable format, an appropriately amended award giving effect to the Commission's determination. 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.