Industrial Relations Commission of New South Wales CITATION: Public Hospital Medical Physicists (State) Award [2008] NSWIRComm 166 APPELLANT NSW Department of Health PARTIES: RESPONDENT Health Services Union FILE NUMBER(S): IRC 260 of 2007 CORAM: Boland J President; Walton J Vice-President; Sams DP CATCHWORDS: Appeal - Reasons for decision - Award proceedings - New award made - Ground relating to excessive erroneous reliance on job methodology assessments rejected - Translation arrangements place non-accredited medical physicists in classifications which require accreditation at full higher rates - Accreditation was significant to the work value assessment of the classifications - Error in definition and translation aspect of new award - Appeal upheld - Matter remitted in one respect Health Employees Pharmacists (State) Award and Other Awards (2003) 132 IR 244 CASES CITED: Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19 Public Hospital Medical Physicists (State) Award [2008] NSWIRComm 5 Public Hospital Medical Physicists (State) Award (No 2) [2008] NSWIRComm 140 HEARING DATES: 5 June 2008 DATE OF JUDGMENT: 16 September 2008 APPELLANT Mr R Warren of counsel Mr P Sergent NSW Department of Health LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy of counsel Mr D Ravlich Health Services Union JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President SAMS, DP Tuesday 16 September 2008 Matter No IRC 260 of 2007 Public Hospital Medical Physicists (State) Award Application by NSW Department of Health for leave to appeal and appeal against a decision of Deputy President Grayson given 9.2.2007 in matter no. IRC 5671 of 2005 REASONS FOR DECISION [2008] NSWIRComm 166 1 This matter concerns an appeal by the NSW Department of Health ("the appellant") against the decision of Grayson DP given on 9 February 2007 (Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19) by which there was created, inter alia, a new classification and salary structure within a new award known as the Public Hospital Medical Physicists (State) Award ("the award"). 2 In his decision, Grayson DP created a new award for medical physicists in the public health system, removing them from the Hospital Scientists (State) Award (as to certain conditions of employment) and the Health Professional and Medical Salaries (State) Award as to salaries. The appellant did not challenge the making of the award, per se, nor the conditions of employment within it, but confined its challenge on appeal to certain aspects of the new classification and salary structure awarded by the Commission. The grounds of the challenge may be summarised as having two components. 3 First, the Department challenged his Honour's reliance upon the evidence of Professor Oliver and the application of a job evaluation methodology in the assessment of the salaries awarded which, it was said, were flawed. It was contended that the methodology (and ultimately his Honour's decision) was underpinned by an erroneous translation from the rates of pay for hospital scientists to those found within the new award structure. 4 Secondly, the Department challenged the salary afforded persons classified as 'Medical Physics Specialists' under the new award upon the basis that the award permitted employees so classified to attract a substantially increased rate of pay (albeit frozen at a particular level under transitional arrangements), even though the subject employees had not met the minimum qualification for the classification provided in the award, that is, accreditation by the Australasian College of Physical Scientists and Engineers in Medicine. We note that these submissions were accompanied by a related contention as to the adequacy of the definition for the classification itself. 5 On 8 February 2008, the Full Bench granted leave to appeal in Public Hospital Medical Physicists (State) Award [2008] NSWIRComm 5. 6 The reasons given by the Full Bench for granting leave were as follows, at [5]: 1. The question raised by the Department as to the grant of the 'Medical Physics Specialist' classification is a matter about which leave should be granted. If the Department's contention is correct, then the decision of his Honour would seem to have the effect of granting a salary increase to employees for the holding of an accreditation or qualification which they do not yet possess. It may be that this issue was not raised with sufficient clarity at first instance, particularly as to the significance of any accreditation requirements for work value assessments (which may also bear on the merits of the appeal), but the issue raises general matters of importance for award making sufficient to attract the grant of leave. 2. We consider that the ground of appeal concerning job methodologies and the assessment by Grayson DP of the evidence of Professor Oliver and Mr Craft to be of much less significance from the viewpoint of s 188 of the Industrial Relations Act 1996. If the issue raised on the appeal was confined to this matter, we would have refused leave to appeal. Whilst it would have been an error for his Honour to determine the salary question by the adoption of pay scales which simply derived from the use of job evaluation methodology or findings as to work value based on that methodology (let alone adopting such an approach where the methodology was erroneously applied), we have doubts as to whether his Honour reached his conclusion on that basis. Further, we do not consider the Department has a strong case in its challenge to the decision at first instance based upon the Deputy President's assessment of the conflicting evidence in this respect. 3. Another factor weighing against the grant of leave was the approach of the Department to the first instance proceedings. The Department steadfastly maintained a blanket opposition to salary adjustments and new salary rates (for new classifications) notwithstanding what his Honour described as, "the overwhelming merit of the HSU's case" (presumably in terms under the special case and work value aspects). His Honour's findings as to rates of pay require assessment in that light, particularly having regard to the Full Bench decisions of this Commission in Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 and Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244. Again, we have decided not to refuse leave on this basis, but this is a factor (as is the factor referred to in the previous subparagraph) that will bear upon the merits of the appeal. 7 The matter was stood over for hearing on the merits. On 5 June 2008, after hearing the parties, we announced that we decided to partially uphold the appeal. The following orders were made: 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. 8 We gave short reasons for those orders at the time of their announcement as follows: 25.15 President: We have considered what the parties have put to us today on the appeal. We have decided to dismiss the appeal, save for accreditation issue and we make it clear in that respect only, the appeal is upheld. We have decided to remit the accreditation issue to his Honour, Deputy President Grayson. We direct that parties to file and serve any material upon which they which to rely in the remitted first instance proceeding, with 21 days from today. We consider that the error at first instance was that His Honour made an award providing for the same rate of pay for accredited and non-accredited medical physicists. The error has implications for the definitions in the subject award insofar as the definitions do not include non-accredited medical physicists, the area incidence and duration clause of the Award and the transition provisions in clause 8 and table 2 of the Award. 9 We propose to shortly elaborate upon those reasons. Methodology 10 The appellant submitted that Grayson DP had erred by utilising a job evaluation methodology or making findings as to work value based upon the evidence of Professor Oliver in order to determine the new classifications and salary levels under the award. The appeal should be upheld on this basis, it was contended, because the methodology employed by Professor Oliver was fundamentally wrong. 11 In this respect, we essentially propose to reiterate what was said in the leave decision. In short, we do not accept that his Honour made his decision on the basis of a complete acceptance of Professor Oliver's evidence. Thus, the main premise of the attack on the decision at first instance, namely that the evidence of Professor Oliver was determinative of the salary assessment made, was erroneous. In any event, we do not think that it has been sufficiently demonstrated that there are material flaws in Professor Oliver's methodology to warrant interference in the decision at first instance. There is, therefore, no basis for upholding the appeal on this ground. 12 This conclusion is a fortiori when it is recalled that the appellant advanced no alternative position as to new salary rates during the first instance proceedings. With those circumstances applying at first instance, we consider that the salary outcome selected by Grayson DP fell within an available range (even if on the boundary of it). We apply, in this respect, by analogy, the reasoning of the Full Bench in Health Employees Pharmacists (State) Award and Other Awards (2003) 132 IR 244. 13 For those reasons the ground of appeal is rejected. Classification 14 In making the award, Grayson DP created new award classifications and salaries for medical physicists who had been previously been classified under the terms of the Hospital Scientists (State) Award. 15 Clause 1 of the award set out various classification definitions for those undertaking the role of Medical Physicists as follows: Medical Physicist is a generic description for the purposes of this award. It refers to all persons employed as a Medical Physics Registrar, Medical Physics Specialist, Senior Medical Physics Specialist, Principal Medical Physics Specialist or Director Medical Physics Specialist. Medical Physics Registrar means a person who is employed and undergoing training, including but not limited to the Training, Education and Accreditation Program (TEAP), in a medical physics speciality towards obtaining accreditation by the ACPSEM, or such other accreditation body acceptable to the Director-General, NSW Department of Health. Medical Physics Specialist means a person with qualifications and clinical experience acceptable to the Director-General, NSW Department of Health and the ACPSEM, or such other accreditation body acceptable to the Director-General, NSW Department of Health. Senior Medical Physics Specialist means a Medical Physics Specialist with 5 years post accreditation as a Medical Physicist Specialist and whose progression has been approved by the progression committee as per the determined criteria. Principal Medical Physics Specialist means a Senior Medical Physics Specialist Year 4 whose progression to this level has been approved by the progression committee as per the determined criteria. Director Medical Physics Specialist means a Medical Physics Specialist with experience and competency at least equivalent to that of a senior medical physics specialist Year 4, with direct supervision of at least two other medical physics specialists (or higher grade) and who meets one of the following criteria: - is responsible for a physics specialty at a site - is responsible for multiple specialties at a site - is responsible for a single specialty across multiple sites (including responsibility for Directors of a Specialty). The Director will be appointed at a level dependent on the number of FTE medical physics specialists (or higher grade) under line supervision: Level 1: 2 to 5 Level 2: >5 to 10 Level 3: >10 16 Clause 7, Area Incidence and Duration, was expressed in the award as follows: This award shall apply to employees as defined herein employed in public hospitals and Area Health Services in the State, excluding the County of Yancowinna, within the jurisdiction of the Public Health Employees (State) Industrial Committee. This award will take effect from [date of decision] and shall remain in force until 30 June 2008. 17 The award defined 'Accredited Medical Physicist' as meaning: "Accredited Medical Physicist" means a medical physicist who has been awarded accreditation by the relevant ACPSEM accreditation panel for a specialty . Such specialties include, but are not limited to, Radiation Oncology, Nuclear Medicine and Diagnostic Radiology. 18 The award contained the following Transitional Arrangement: 8.TRANSITIONAL ARRANGEMENTS (i) Medical Physicists without accreditation and transferring to the Specialist classification and year shown in Part C Table 2 may not progress further than that Specialist classification and year until ACPSEM accreditation is achieved. They are entitled to 4 hours per week of their normal weekly hours to study for Accreditation in which they have enrolled for a period of up to two years; (ii) Medical Physicists without accreditation and transferring to the Registrar classification and year shown in Part C Table 2 may not progress further than the Medical Physics Specialist Yr 1 until ACPSEM accreditation is achieved. They are entitled to 8 hours per week of their normal weekly hours to study for Accreditation in which they have enrolled until they reach Medical Physics Specialist Yr 1 when the entitlement for study for accreditation reduces to 4 hours per week for a period of up to two years. 19 The award contained a Translation Table which translated the award levels of Hospital Scientists, Senior Hospital Scientists, and Principal Hospital Scientists from the Hospital Scientist (State) Award to Medical Physics Registrar, Medical Physics Specialist, Senior Medical Physics Specialist and Director Medical Physics Specialist in the award. 20 The classification of Medical Physicist Registrar was established as the training award level and did not require accreditation. The other classifications, such as Medical Physics Specialist, Senior Medical Physics Specialist, Principal Medical Physics Specialist and Director Medical Physics Specialists, all had requirements that the medical physicists in those positions would be accredited. 21 It was the case, however, that the transitional arrangements of the award translated some non-accredited medical physicists to the new award classifications of Medical Physicist Specialist or above. Putting aside the classification of Medical Physics Registrar, the Transitional Arrangements in Part C of the new award allowed those non-accredited persons to be paid at the new rate but to be frozen in progression. In the result, the employees, so translated to the award, attained the full commencing rate of pay (with substantial increases in salary) but remained on that rate until they attained accreditation. 22 The contention, well made out by the appellant, was that this approach had a fundamental flaw. The rate of pay for the new classification Medical Physics Specialist and above was based upon a work value assessment which substantially took into account that the medical physicists in those positions would be fully accredited. The evidence in the proceedings, however, demonstrated that a substantial number of the employees who would be regulated under the award and who were intended to be classified as Medical Physics Specialist and above, were not so qualified. In our view, it was necessary in fixing rates of pay and transitional arrangements to have regard to the distinction between those with accreditation and those without accreditation. 23 True it is that many non-accredited medical physicists potentially satisfied some of the conditions for the new classifications of Medical Physics Specialist and above by having the requisite base qualifications and experience. However, the act of accreditation itself represented the acquisition of some real additional skills and responsibilities. This included supervisory duties and the responsibility of signing off on work. Indeed, accredited medical physicists were shown to have the power to overrule specialist medical practitioners, sign off on patient treatment plans and to accept responsibility for dosages given to patients. Their accreditation also meant that the accredited medical physicist had attained a level of sophistication with the technology of their field. There was a need to properly recognise these additional attributes in translation arrangements by confining the receipt of the full salary adjustment to only those employees who were properly accredited. 24 Thus, the translation arrangements contemplated by the award had employees being paid the full rate of pay for a position where they did not hold the full range of skills and responsibilities fixed to the position. This outcome is untenable. It may have been justified if the number of employees affected was minimal, but that situation did not apply in this case. Further, the problem may have been rectified in some cases if rates had been averaged to allow for the differential in skills. But this also did not occur in this case. 25 In a practical sense, the appellant was able to identify some particular instances which demonstrated the effect of the translation arrangements and the monetary impact of the same as follows: (i) At Bankstown Nuclear Medicine, Employee Number 1, who was a Senior Hospital Scientist Year 8 under the Hospital Scientists Award who was not accredited, would under the new award become a Medical Physicist Specialist Year 5. The annual salary of that person would go up from $91,375.00 to $124,380.00; (ii) At Nepean Hospital a Senior Hospital Scientist Year 8 without accreditation would become a Medical Physics Specialist Year 5, attracting a pay rise from $91,375.00 to $124,380.00. 26 In the result, the appellant has demonstrated error based on the second ground of its application. This error, in our view, requires appellate intervention. However given that there was insufficient evidence available for us from the first instance proceedings to resolve that question for ourselves, the matter was remitted to Grayson DP. ORDERS 1. We confirm the orders made at [7] hereof. Postscript 27 We note that in a decision given on 11 August 2008 in Public Hospital Medical Physicists (State) Award (No 2) [2008] NSWIRComm 140 his Honour struck new rates for non-accredited medical physicists. _________________ 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.