Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union East and Director-General, NSW Health [2014] NSWIRComm 6 Hearing dates: 14/03/13, 15/03/13, 18/06/13, 26/06/13 Decision date: 05 March 2014 Before: Backman J Decision: The application is refused Catchwords: Notification of dispute under s 130 of the Industrial Relations Act 1996 (the IR Act) - application under s 136(1)(a) of the IR Act - application concerns the translation into the NSW Health Services Health Professionals (State) Award (the Award) of Cheryl Watterson's employment by the respondent as a Director, Nutrition and Dietetics, Greater Newcastle Acute Hospital Network (GNAHN), Hunter New England Local Health District (HNELHD) as at 30 November 2007 - structure of HNELHD - the Award translation process - relevant Award provisions - principles of Award construction - whether Ms Watterson's role akin to a "Head of Department" role - significance of the title "Director, Nutrition and Dietetics" - whether GNAHN a clinical network - whether error in the review process - "geographic region" and "zone" - "major functions and work areas" - descriptors under Level 8, Schedule B to the Award considered - orders Legislation Cited: Industrial Relations Act 1996 Cases Cited: Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241 Board of Bendigo TAFE v Barclay [2012] HCA 32 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 Kingmill Construction Pty Ltd T/A Thrifty Car Rental v Federated Clerks' Union of Australia, NSW Branch (2012) 106 IR 217 Perisher Blue Pty Ltd and Others v Australian Worker's Union (1999) 91 IR 274 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Category: Principal judgment Parties: Health Services Union East (Applicant) Director-General NSW Health (Respondent) Representation: Mr J Murphy of counsel (Applicant) Mr P Newall of counsel (Respondent) Ms C Wilkinson Sparke Helmore Lawyers (Respondent) File Number(s): IRC 1896 of 2011 DECISION 1The Health Services Union East (HSU East) (the applicant) notified a dispute under s 130 of the Industrial Relations Act 1996 (the IR Act). The respondent to the dispute is the Director-General, NSW Health, in respect of the NSW Ministry of Health (the respondent). The notification of dispute identified the terms of the dispute as follows: 1) Hunter New England Local Health District (formally known as Hunter New England Area Health Service) has not correctly translated Ms Cheryl Watterson, who has been and is performing the duties of Director Nutrition and Dietetics Greater Newcastle Acute Hospital Network. 2) Reference has been made by Hunter New England Local Health District to the NSW Health Service Health Professionals (State) Award, Clause 12 - Translation Arrangements, paragraph 12.1.3 which states ... "Employees will be placed into a position in the new structure that is most reflective of their current duties and responsibilities." At the time of translation to the new award salary structure, Ms Watterson was the Clinical Network Director Nutrition and Dietetics Greater Newcastle Acute Hospital Network and this situation remains unchanged. 3) Accordingly, all documentation supports translation to Level 8 of the NSW Health Service Professionals (State) Award. Ms Watterson has only been translated to a Level 7. 4) HSUeast disputes the Hunter New England Local Health District position that Ms Watterson is a Department Head. The HSUeast contends that she is responsible for multiple sites. 5) The award, agreement or determination which applies to the employees, etc. is: NSW Health Service Health Professionals (State) Award. 2Following a series of compulsory conferences which failed to resolve the issues between the parties the applicant applied to the Commission for the following directions under s 136(1)(a) of the IR Act: 1. Pursuant to s. 136(1)(a) of the Act the position of Director Nutrition and Dietetics, Greater Newcastle Acute Hospital Network (currently occupied by Ms Cheryl Watterson) is to be classified and remunerated at Level 8 Grade 2 under the NSW Health Service Professionals (State) Award with effect from the beginning of the first full pay period to commence on or after 30 November 2007. 2. Pursuant to s. 136(1)(a) of the Act Hunter New England Local Health District shall pay to Ms Cheryl Watterson back pay of the difference between the rate applicable to Level 7 Grade 1 and to Level 8 Grade 2 for the period from the beginning of the first full pay period to commence on or after 30 November 2007 up until the date of these directions. Such payment to be effective within 14 days. 3At the same time the applicant lodged several other applications expressed to be in the alternative. These included applications under s 136(1)(b) and (d), an application for declaratory orders under s 154, and, an application under s 175 of the IR Act. In submissions the applicant placed primary (if not sole) reliance on its application under s 136(1)(a). The respondent, although conceding that the Commission had power to make the directions sought under s 136(1)(a), objected to a number of the applications in the alternative on jurisdictional grounds. In my view it is unnecessary to consider these objections for two reasons. First because of the primary reliance placed on the application under s 136(1)(a) and secondly, because the applicant's case rises and falls on the success or otherwise of that application. 4The issue in the dispute concerns the translation into the Award of Cheryl Watterson (Ms Watterson), the Director, Nutrition and Dietetics, Greater Newcastle Acute Hospital Network (GNAHN), Hunter New England Local Health District (HNELHD). According to the applicant at the time of translation (30 November 2007) Ms Watterson held the position of permanent full time Director, Nutrition and Dietetics, GNAHN, in the Division of Allied Health, GNAHN, within HNELHD (or as it was then known, Hunter New England Area Health Service (HNEAHS)). Shortly stated, the applicant claims that HNELHD incorrectly placed Ms Watterson into a position classified under the Award as Level 7 Grade 1 and that the position into which she should have been placed in the Award is Discipline Specific Director/Advisor Level 8 Grade 2. The Commission is asked to interpret the relevant provisions of the Award, apply it to Ms Watterson's translation under the Award, and order the respondent to pay the salary due to her under the Award. The applicant points to what it says were a series of erroneous interpretations of the Award and to factual errors by the HNELHD and an internal review body called the Peak Level Committee which it says should be corrected to ensure that the Award is properly applied. 5Before descending into detail about the merits of the respective parties' submissions, it is necessary to provide some brief background facts. These may be distilled from the account of David William Rhodes, formerly employed by the respondent from January 2000 to August 2010, initially in the position of Area Director, Allied Health, Hunter Area Health Service (HAHS) and from July 2005 in the position of Area Director, Allied Health, HNEAHS. 6Mr Rhodes described the term "allied health" as an umbrella term applied to a number of distinct professions, often applied broadly in the health industry to encompass all health professions which are not medical, nursing/midwifery, dental or paramedic practitioners. In HNEAHS a number of allied health professionals were employed at the time of translation, including dieticians, medical radiation practitioners, occupational therapists, pharmacists, physiotherapists, podiatrists, psychologists, social workers and speech pathologists. 7Mr Rhodes explained that because allied health professionals work in a variety of organisational structures, it is common that many such professionals have a line manager who is either not of the same profession or does not have a clinical background. These line managers therefore may lack the knowledge and skills-base to provide clinical direction, supervision, monitoring and advice, to assist in the professional development of the allied health staff members. In order to provide this critical clinical governance, professional support is accessed through another person of the same profession. Accordingly, allied health staff have two formal reporting lines, one to the line manager for administrative, budget, safety, most human resources and quality functions, and the other to the professional manager for professional supervision and support, professional aspects of performance, management and education and training. 8As at 30 November 2007, Mr Rhodes held the position of Area Director Allied Health, HNEAHS. 9In 2005 the NSW Government reduced the number of Area Health Services (AHS) from 17 to eight by merging health services. At that time HAHS merged with the NEAHS and parts of the Lower Mid North Coast AHS to become HNEAHS. According to Mr Rhodes prior to the merger in 2005 there was a position known as Area Profession Director (APD) Nutrition and Dietetics in HAHS which reported to the Area Director, Allied Health Services (that is, Mr Rhodes). There was a similar position, known as the Area Advisor, Nutrition and Dietetics in the NEAHS. After the merger the two positions were amalgamated to become known as the APD Nutrition and Dietetics - Southern and Northern Area Advisor, Nutrition and Dietetics, respectively. The APD for the various allied health professions, including Nutrition and Dietetics, reported directly to the Area Director, Allied Health, HNEAS (Mr Rhodes). 10According to Mr Rhodes, the APD roles were intended to be the most senior professional and leadership positions for their particular allied health profession, representing their profession, and HNEAHS, in relation to external stakeholders, as well as being the point of contact for significant professional and performance issues. The APDs are members of the Area Management Forum, the peak meeting for service managers across the HNEAHS. Mr Rhodes also said that the APD position has the accountability for clinical governance of the profession and is responsible for establishing the strategic direction for the profession consistent with the LHD strategic direction. Following advertisements and recruitments to the position of APD toward the end of 2007, Helen Jackson was appointed as the APD for Nutrition and Dietetics. Prior to this Ms Jackson had been in the position of APD Nutrition and Dietetics - Southern. Prior to the merger in 2005, Ms Jackson had occupied the position of APD Nutrition and Dietetics in HAHS having first been appointed to that role in 2003. 11According to Mr Rhodes the relationship between the APD positions and the positions occupied by dieticians was as follows: Dieticians are professionally accountable to the APD in the same way as nurses and midwives are professionally accountable to the Director of Nursing and Midwifery. Most dieticians have professional accountability through another senior dietician. Senior dieticians have professional responsibility directly to the APD. 12In his affidavit Mr Rhodes further explained that as at 30 November 2007, Ms Watterson was the Director of Nutrition and Dietetics for GNAHN. This role he characterised as equivalent to a head of department across three hospitals, John Hunter Hospital (JHH) and Royal Newcastle Centre (physically adjoining and located at the one site) and Belmont Hospital. There were four other Director positions in the division of Allied Health GNAHN - Director Occupational Therapy; Director Physiotherapy; Director Social Work; and Director Speech Pathology. I should note at this point that the applicant disputes Mr Rhodes' characterisation of Ms Watterson's position as, "equivalent to a head of department ...". I will return to this matter at a later stage in the decision. 13The Directors in the division of Allied Health, GNAHN, including Ms Watterson, reported to and were responsible to the Service Manager up to October 2007 and from October 2007 to the Operations Manager of Allied Health, GNAHN. 14Up to about July 2007 Mr Rhodes held the position of Service Manager, Allied Health, GNAHN in addition to his role as Area Director Allied Health. Sometime in early 2007 a decision was made to reallocate the function of Service Manager, Allied Health, GNAHN to an Operations Manager. Judith Henderson, formerly the Director of Physiotherapy, GNAHN, was appointed to the position on a trial basis. The new position combined the Department Head and Operations Manager positions. Mr Rhodes maintained the higher level functions of the Service Manager role. Ms Henderson reported to Mr Rhodes. As at 30 November 2007 Ms Henderson managed the financial, human resource, quality and safety matters of the Division of Allied Health. Budget development, service development matters and significant variances in activity and financial performances were referred to Mr Rhodes. Mr Rhodes continued to sit on the GNAHN Executive and Ms Henderson took over chairing the informal Division meeting. This continued until June 2008 when Mr Rhodes ceased to be the Service Manager of Allied Health, GNAHN. At the same time, the functions which had been retained by Mr Rhodes were transferred to Ms Henderson. Mr Rhodes explains that until the implementation of the Operations Manager position in late 2007, the Service Manager was responsible for the performance management and general supervision of all his "direct reports". This included Ms Watterson's position of Director Nutrition and Dietetics. Professional supervision was sourced through either another like professional or through peer review. As at 30 November 2007 Ms Watterson was "line managed" by the Operations Manager, Allied Health Services ([19] Ms Watterson's first affidavit). 15Annexed to Ms Watterson's affidavit sworn on 27 February 2012, are extracts of the HNEAHS annual reports for 2004/2005 and 2007/2008 (Annexure P). The earlier report contains a map of the HNEAHS divided into eight "clusters", one of which is titled, "Greater Newcastle Cluster", covering the local councils of Newcastle, Lake Macquarie and Port Stephens. In addition to the eight clusters the report cites four acute hospital networks one of which is GNAHN. According to the report GNAHN incorporates John Hunter Hospital (JHH), John Hunter Children's Hospital, Belmont Hospital, Newcastle Mater Misericordiae Hospital and The Royal Newcastle Hospital. According to Ms Watterson, the map depicts the structure of geographic clusters and acute hospital networks as at 30 November 2007. 16The report also refers to Managed Clinical Networks. According to the report these clinical networks are in addition to the eight geographic clusters and the four acute hospital networks. The clinical networks are described in the report in the following way: These networks enable linked groups of health professionals and organisations from primary, secondary and tertiary care to work together in a co-ordinated manner, unconstrained by existing professional and organisational boundaries to ensure equitable provision of high quality, clinically effective care. Managed clinical networks shift the emphasis from buildings and organisations towards services and consumers/carers with a focus on the 'patient journey'. Hunter New England Health's network of mental health services is an example of how Managed Clinical Networks will deliver services across the area. 17The later 2007/2008 report provides a description of "Area Clinical Networks" as follows: In addition to the geographic clusters and acute hospital networks, Hunter New England Health has established and continues to develop a number of Area Clinical Networks and Streams. Area clinical networks and streams are designed to improve co-ordination of service delivery and build staff capacity across the area to ensure equitable provision of high quality, clinically effective care. Area Clinical Networks and streams shift the emphasis from separate institutions to a system of integrated care for the consumer. Hunter New England Health's Children's, Young Persons and Family network, which consists of six streams including Newborn Services, Paediatric Surgery and Trauma, Tertiary Paediatrics, General Paediatrics, Violence Prevention and Child and Family is an example of how Area Clinical Networks will deliver services across the area. 18Given the similarity of descriptions between "Managed Clinical Networks" and "Area Clinical Networks", it would appear (and there were no submissions directed towards this aspect of the evidence) they are one and the same thing. The Award translation process 19On 30 November 2007 the NSW Health Service Health Professionals (State) Award (the Award) was made by the Commission. The Award covers allied health positions and other health classifications. In a briefing note prepared for the purpose of translating allied health positions, Mr Rhodes identified a number of outstanding issues in relation to the various professions covered under the Award. These included: * A number of staff classifications can be clearly directly transferred to the new Award without interpretation. However, the Award allows for transfer based on the current actual duties of the position (position grading) and the expertise of the occupant. * Should a staff member dispute the translation level determined by the AHS, and this is not resolved, the dispute will be referred for consideration by a joint arrangement with the Department and the HSU. 20An Award Translation Committee (ATC) was established to make a determination on the appropriate translation for each allied health position. A spread-sheet was generated comprising a list of allied health staff and containing a prescribed range of fields for each individual person. The process to be followed by each GNAHN Director is described by Mr Rhodes in his affidavit: The process was for each GNAHN Director, including Ms Watterson, to enter the information for all of the positions within their department. Ms Watterson entered the required data for the Nutrition and Dietetics service in GNAHN including information, comments and a recommendation for her own translation. As she reported to the Operations Manager for Allied Health GNAHN, Judith Henderson, the information should have been submitted to her. I cannot recall if this occurred. 21Mr Rhodes notes that some members of the ATC who were allied health professionals also required translation of their positions to the Award. Because these members could not be involved in the determination of their own translation, a Senior Positions ATC was established to determine the translation of the APDs and some other senior positions. Ms Watterson's position was reviewed by this group because she had proposed translation of her position to Level 8 under the Award and all Level 8 (the highest level) claims went to this Committee. Once the General Manager of a Cluster or a Hospital Group approved and signed off on the translations they were informed by letter of the determination and invited to submit an application for review should they disagree with the determination. All unsuccessful applicants were advised that should they wish to appeal the determination or decision they could request that the application be referred to the Union Specific Consultative Committee (USCC). If the matter was not resolved at that stage a further avenue of review was available to the Peak Review Committee through HNEAHS. That Committee considered HNEAHS applications from early 2010. 22Mr Rhodes notes that originally Ms Watterson nominated translating to Level 7 Grade 2 but that the proposed translation was to Level 8. The ATC considered the position against the criteria for both levels. According to Mr Rhodes the ATC considered the following factors: a. Line managed in the Department of Nutrition and Dietetics - 12.26 FTE (Full Time Equivalent) covering JHH and Belmont Hospitals and the Royal Newcastle Centre. If only line management FTE were considered, the position would translate as a Level 5 Department Head i.e. "Where the department contains more than 5 - 15 other full time equivalent health professionals or other technical and support staff providing clinical input. ... The criteria for a Department Head will generally rely upon the number of full time equivalent (FTE) health professionals or other technical and support staff within a department. This does not preclude the employer from taking into account other aspects or demands of the role including a significant variance between the actual number of staff managed to the FTE figure, organisational complexity, range and scope of duties and other responsibilities to be undertaken." b. Adopting the HP Award process above by taking into account other aspects or demands of the role, the ATC came to the following findings. The following professional support roles supported by this position were recognised:- * Professional supervision and management: JHCH Department Head (1 FTE) * STRAS dietitian (0.1 FTE) * Greater Newcastle Cluster Nutrition and Dietetics Team Leader (0.8FTE) * James Fletcher & Morisset Hospitals (0.2 FTE) * 13.2 FTE Dietary Technical Assistants line managed by Patient Support Services. c. The ATC recognised the contribution of the position to the other services to which these positions belonged. d. I refer to paragraph 23 of the Affidavit of Cheryl Watterson dated 27 February 2012 and make the following comments. The other positions detailed in the email annexed to the Affidavit at Appendix W were not given any weight as a peer review meeting does not encompass the full range of professional support activities that would be required (such as assistance in recruitment, individual supervision, performance review of professional matters, advice to managers etc) - these other professional supports were provided by other dietitians within HNEAHS. To include these positions in Ms Watterson's staffing profile would have been double counting. e. In recognising the above positions, Ms Watterson's position had a total line and professional FTE of 27.56 FTE. The ATC was of the view that a full FTE weighting could not apply to 15.3 FTE professionally supported positions as the line management functions (recruitment, induction, human resource management, accountability for safety, complaints management, and a major role in performance review) were carried out by other positions within HNEAHS. If the 12.26 line FTE and a small 'discount' (for line management functions not carried out by Ms Watterson) was applied to the professional FTE (say 3 FTE), the position would translate to Level 6. In general, the ATC thought that a higher discount could be warranted. However, the ATC considered that other aspects relevant to this position should be taken into account. 23According to Mr Rhodes as part of its assessment of the Level 8 application, the ATC formed the view that Ms Watterson's position and that of the other four Director positions in the GNAHN division of Allied Health were appropriately described by the Award definition of a Department Head. This definition appears in cl 2.4 of the Award: "Heads of Departments" are responsible for leading, directing and administering a department and the supervision of staff that work within the department. The staff supervised may include other health professionals and technical and support staff. Heads of Department may have responsibilities across a number of facilities/sites within a Local Health District. 24Mr Rhodes advises that the ATC concluded that Ms Watterson's position did not sufficiently meet the Level 8 descriptors under the Award which, Mr Rhodes summarised in the following way: a. (did not) have the authority to direct functions outside the department; b. was not independently able to determine overall workforce and clinical strategies beyond the department; c. did not have delegated a high degree of independence in the determination of clinical service strategies; d. did not have independence in the allocation of resources beyond the department; and e. was not seen as the central contact point for strategic consultations and liaison with Senior Executive management. 25Mr Rhodes records that taking into account the FTE (Full Time Equivalent) and the assistance in service development in mental health, the contribution to improving complex food services in the southern part of HNEAHS and the overall head count managed by Ms Watterson's position, the ATC recommended a translation of Level 7 Grade 1 which was subsequently approved by the General Manager. After reviewing the application Mr Rhodes says the ATC did not consider that there was any additional information presented to justify a Level 8 translation. This recommendation was approved by the General Manager. Mr Rhodes says that USCC did not reach agreement on Ms Watterson's translation because the HSU (Health Services Union) members on that Committee did not agree with the outcome of the ATC. Mr Rhodes was unable to comment on the decision-making process underpinning the Peak Review Committee because by that time he had left the HNEAHS. 26It may be useful at this point to set out the principal findings of the ATC, the USCC and the Peak Review Committee in relation to Ms Watterson's application. The relevant documentation is annexed to Ms Watterson's affidavit. A note by the ATC concerning Ms Watterson's application for translation of the position to Level 8 is in the following terms: July 09-Senior Positions ATC. Not supported for Level 8, confirmed as Level 7 Grade 1. Position line manages 12.26 FTE and prof manages approx 15 FTE (Dietitians and DTAs). Committee did not support application as GNAHN not considered consistent with Area, regional or zone concept, and the functions of the position are consistent with Dept Head roles for tertiary hospital facilities. A degree of complexity has already been accommodated in the initial translation ie full recognition of the PSS/DTA roles and responsibilities. NSW Health advise: "It should be noted that the fact a person may manage services over multiple sites is not a supporting argument for complexity and should not be used as a basis for putting someone on a higher level - refer to Award - 2.4". 27The stated grounds and reasons of the USCC are set out in a letter to Ms Watterson dated 2 October 2009 as follows: I write to advise you of the outcome of the review of your translation to the NSW Health Service Health Professionals (State) Award (the Award) by the USCC which was comprised of an equal representation from the Health Services Union (HSU) and Hunter New England Health Service (HNEAHS). The USCC did not reach a unanimous outcome in relation to your translation to Level 8 Manager. The USCC was not in agreement on whether the Level 8 classification should only be for Area wide positions and therefore whether a Level 8 is an appropriate translation for this position given it is based at John Hunter Hospital and belongs to one network. Your translation to the Award therefore remains as per the letter you received advising you of your initial translation classification and salary. You may elect to have your Application referred to a Peak Level Review Committee convened by NSW Health for further review. To do this you must complete and submit an "Application for Review by Peak Level Committee" form (see attached) to the following address within 10 working days of the date of this letter. Electronic applications are preferred. 28The findings of the Peak Review Committee are set out in a document, the relevant parts of which are extracted below: Although direct FTE managed by this position are within the Department Head Level 6 range, the HNEH Award Translation Committee initially translated this position as Level 7 Grade 1 recognising * the significant variation between FTE and head count directly lined managed (12 versus 26) * the complexity of the role * the significant input this position has into supervision of the 13.2 FTE diet technical staff line managed at 30th November 2007 through the food service department. Cheryl subsequently submitted an application for review to a Level 8. The ATC did not support this application on the following basis: The position line manages 12.26 FTE and professionally manages approx an addition 15 FTE (dietitians and DTAs). The ATC did not support the application as Greater Newcastle Allied Health Network (GNAHN) was not considered consistent with the Area, regional or zone concept and the functions of the position are consistent with Department Head roles for tertiary hospital facilities. A degree of complexity has already been accommodated in the initial translation ie full recognition of the Patient Support Services SS/DTA roles and responsibilities. It was noted that NSW Health advice has been that the fact a person may manage services over multiple sites is not a supporting argument for complexity and should not be used as a basis for putting someone on a higher level - refer to Award - 2.4. The application to the USCC resulted in a 'not unanimous outcome'. Please note the following points in considering this application: * This position has been professionally responsible to the current Area Profession Director (APD) since April 2004. The role has been in existence since at least 2004. In mid 2007, the role was expanded (and re-recruited) to cover the amalgamated AHS covering New England and Lower mid North Coast. * This position is not authorised to make professional decisions across HNEH. This is the role of the Area Profession Director. * As a senior dietetic position within HNEH, this position is expected to (and does) take a lead in some aspects of professional practice (eg food service representative at State level), however this position is in all professional aspects responsible to the Area Profession director. * The stated strategic role covers only a part of the profession across HNEH. This position provides leadership for 12 FTE (26 head count dietitians) from a total professional group across HNEH of over 100 head count. * The position does not provide leadership for dietetic services in the Greater Newcastle Cluster. This is the responsibility of separate part of HNEH. * The Director/Service Manager Allied Health position in GNAHN (refer pages 5 - 8 of application) has line management responsibility for multiple professions in the Division of Allied Health with over 140 line reports including a Level 7 Grade 3 Department Head. The position was open to recruitment internally and externally ie not restricted to one of the GNAHN Allied Health Directors. The applicant line reports to this position. The ATC maintains that the initial translation of this position to Level 7 Grade 1 is accurate and appropriate for this senior Dietetic role within HNEH. 29The document also contains a handwritten notation upon which the applicant relies as shedding further light on the reasons of the Peak Level Committee. The handwriting has not been attributed to any one person although as the applicant points out it is reasonable to conclude that the notation was made by a NSW Health's representative on the Committee. The notation is to the following effect: L8 are the peak of their discipline in the Area, zone, network, etc. This position is not that. There is an APD in Dietetics which is over this and has been since 2004. The PD describes a HOD role over multiple sites. HNE has recogn. complexity via upgrade to L7. Relevant award provisions 30Some words and expressions used in the various documents and by the parties are defined in the Award. One such expression, "Heads of Departments" in cl 2.4 has already been extracted and set out in this decision. The expression "complex" professional work is defined in cl 2.1 as follows: "Complex" professional work denotes work which includes various tasks involving different processes and methods that may be unrelated. It depends on analysis of the subject, phase or issue involved in each assignment and the appropriate course of action may have to be selected from the many alternatives. The work involves conditions and elements that must be identified and analysed to discern interrelationships. 31The term "Professional Supervision" is defined as cl 2.10: "Professional supervision" refers to supervision given to subordinate health professionals from the same discipline, which requires the exercise of professional judgment and consists of: * setting guidelines for the work of the health professional * suggesting approaches to the conduct of professional work * solving technical problems raised by subordinate health professionals * reviewing and sometimes checking the work of other health professionals. 32Clause 12 is headed "Translation Arrangements". It provides, relevantly: 12.1 The translation to the new structure for health professionals covered by this award will be undertaken utilising the following basic principles. ... 12.1.3 Employees will be placed into a position in the new structure that is most reflective of their current duties and responsibilities. ... 33Schedule B to the Award, headed "Classification of Health Professional Positions" sets out the grading classifications for allied health professionals covered under the Award. Levels 7 and 8 provide, relevantly: Level 7 Positions at Level 7 are managers, leaders or deputy managers of large units, teams or departments. The work requires considerable co-ordination and the position is responsible for human, physical and financial resources. The position contributes directly to the development of policy for the work area and must have a sound understanding of the broader policy and strategic context. Programs, strategies and priorities are generally decided at a higher management level but positions at this level have the authority to decide how to achieve results within the limits of available resources. Decisions at this level have direct consequences on the achievement of results for the area for which the position is responsible. Level 7 positions may maintain a clinical load or may be required to provide an expert speciality consultancy role in their area of expertise. The size and complexity of the areas managed and the consequent impact on the nature of the work and are reflected in the different grading of positions as follows: ... Department Head * Where the department contains more than 25 - 40 other full time equivalent health professionals or technical and other support staff providing clinical input - Level 7, Grade 1 * Where the department contains more than 40 - 55 other full time equivalent health professionals or technical and other support staff providing clinical input - Level 7, Grade 2 * Where the department contains more than 55 other full time equivalent health professionals or technical and other support staff providing clinical input - Level 7, Grade 3 The criteria for a Department Head will generally rely upon the number of full time equivalent (FTE) health professionals or other support staff within a department. This does not preclude the employer from taking into account other aspects or demands of the role required including a significant variance between the actual number of staff managed to the FTE figure, organisational complexity, range and scope of duties and other responsibilities to be undertaken. Level 8 - Discipline Specific Director/Advisor Positions at this level lead, direct, co-ordinate and provide strategic advice on major functions or work areas within a Local Health District(s), a geographic region, zone or clinical network. Positions at this level will make a major contribution towards the development and achievement of the strategic directions of the Local Health District(s). They have significant responsibility for the resources under their control. Discipline Directors/Advisors will exercise a high degree of independence in the determination of overall workforce and clinical service strategies, priorities, work standards and the allocation of resources. The position will make independent decisions related to area wide expert practice in their field and will be responsible for outcomes for clients and the organisation from the practice of other health professionals and staff. The position participates in strategic management and service development decisions. The position requires expert professional knowledge of methods, principles and practice and skills across client groups and work areas. Positions at this level are required to apply senior strategic processes in the management of departmental resources and services. Positions at this level have a combination of operational and strategic roles as follows: * has professional responsibility with regard to strategic workforce and service development and professional practice across a Local Health District(s), a geographic region, zone or clinical network * provides professional co-ordination and leadership across a Local Health District(s), a geographic region, zone or clinical network to department heads * acts as a central point of contact for strategic consultation and liaison with Senior Executive management and the Allied Health Director/Advisor * may have a dual role of department head * may be required to provide an expert speciality consultancy role in their area of expertise * may be involved in the provision of relevant clinical or leadership training, management development and/or mentoring to staff within the Local Health District(s), geographic region, zone or clinical network. The varying size and complexity of disciplines and the scope of the Discipline Director/Advisor positions and the consequent impact on the nature of the work are reflected in the different grading of positions as follows: * Where the area of responsibility includes up to 25 full time equivalent health professionals or technical and other support staff providing clinical input - Level 8, Grade 1 * Where the area of responsibility includes more than 25 - 55 full time equivalent health professionals or technical and other support staff providing clinical input - Level 8, Grade 2 * Where the area of responsibility includes more than 55 - 100 other full time equivalent health professionals or technical and other support staff providing clinical input - Level 8, Grade 3 * Where the area of responsibility includes more than 100 other full time equivalent health professionals or technical other support staff providing clinical input - Level 8, Grade 4. The criteria for a Discipline Director/Advisor positions will generally rely on the number of full time equivalent health professionals or technical and other support staff within the area of responsibility. This does not preclude the employer from taking into account other aspects or demands of the role required including a significant variance between the actual number of staff managed to the FTE figure, organisational complexity, range and scope of duties and other responsibilities to be undertaken. Principles of award construction 34A useful starting point with regard to the principles of award construction may be found in Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241. The issue in that decision was whether, following a corporate reorganisation, employees became entitled to redundancy payments under the provisions of an industrial agreement (see [1] per Gleeson CJ and McHugh J). This in turn required the Court to construe the relevant provisions of the industrial instrument. Gleeson CJ and McHugh J (at [2]) referred to the approach to construction as turning upon, "the language of the particular agreement, understood in the light of its industrial context and purpose ...". Gummow, Hayne and Heydon JJ approached the construction issue having regard to a wide range of material including the circumstances under which the agreement came to be made. Their Honours' intended approach to the issue was set out first in summary form (later followed by a detailed analysis) which appears at [30]: Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate. 35Award interpretation has been held to be akin, or to be undertaken in a similar fashion, to other enactments: see Kingmill Construction Pty Ltd T/A Thrifty Car Rental v Federated Clerks' Union of Australia, NSW Branch (2012) 106 IR 217 at [67] which endorsed and approved the observations of Walton J, President, in Perisher Blue Pty Ltd and Others v Australian Worker's Union (1999) 91 IR 274 at 283 - 284. 36In written submissions the applicant relied upon City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [50] - [57] for two propositions, namely that the construction of an award begins with a consideration of the ordinary meaning of its words, and, if the terms of an award are clear and unambiguous, the award must be interpreted according to those terms (see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Board of Bendigo TAFE v Barclay [2012] HCA 32 at [41]). Matters agreed between the parties 37Before commencing my analysis of the application I should set out three matters about which there is no controversy. These are set out in the applicant's submissions, extracted below: The parties are agreed that the translation of employees covered by the Award, including Ms Watterson, must be based upon employee's duties and responsibilities as they were as at 30 November 2007. The parties are also agreed that either Level 7 Grade 1 or Level 8 Grade 2 is 'most reflective' of Ms Watterson's duties and responsibilities. Accordingly, the differences between the criteria for those two levels are especially important in the resolution of this dispute. The parties are further agreed that the grading of Ms Watterson's position is based solely on the number of full time equivalent (FTE) health professionals or technical and other support staff within her area of responsibility. It is agreed that Ms Watterson's area of responsibility is 25 plus FTE ... Analysis of the application 38The applicant submitted that Ms Watterson was not employed as a Head of Department of Nutrition and Dietetics for a particular hospital but as a Director. Moreover the description "Head of Department" is said to be incorrect when regard is had to the history of Ms Watterson's position, her contract of employment, her job description as well as the organisational context of her position with HNEAHS/LHD. 39Ms Watterson became the permanent full time Director, Nutrition and Dietetics, GNAHN in November 2004. Her Job Description (reviewed September 2004) at paragraph 5 states that the position is responsible to "Area Director, Allied Health Services". Paragraph 6, headed "Organisation Context" states: The position involves the planning, development and management of services across three sites - Belmont, John Hunter and Royal Newcastle Hospitals - to achieve optimal patient care outcomes. The development of an organisational culture which supports continuous improvement and responsiveness to HAHS service development plans. 40The Job Description at 8.5.2, headed "Maintain a clinical role as determined in consultation with line Manager", states: 8.5.2 Maintain the professional accountability for the clinical component of the Dietary Technical Assistant roles within GNS. Oversee the clinical orientation, ongoing education and performance review of DTAs in collaboration with Patient Support Services. 41The applicant relies on these parts of the Job Description in support of its submission that Ms Watterson's position was as a Director of GNAHN which incorporates rural hospitals as opposed to a Head of Department for a particular hospital. 42A quick perusal of the definition of "Heads of Departments" in the Award reveals that it is not confined to one hospital. The definition refers to responsibilities as extending, "across a number of facilities/sites within a Local Health District." 43The applicant also drew my attention to paragraph 8.1.2 of a Job Description for Ms Watterson's position which sets out an aspect of the detailed tasks of the responsibilities of the position as follows: 8.1.2 Promote a customer focus within the department, and as appropriate, seek feedback from clients and carers on service matters. 44The purpose for so doing was to make the point that the expression "within the department" was repeated in a later version of the Job Description for Ms Watterson's position (reviewed September 2004) with the expression "within the Service" (see clauses 8.1.2 and 8.1.3). According to the applicant this is further evidence that as at 30 November 2007, HNEAHS understood that the position held by Ms Watterson was the position of Director of the Acute Hospital Services (JHH, Royal Newcastle and Belmont hospitals) located in the "Greater Newcastle Sector", and not the position of a Head of Department for a particular hospital. 45I have already observed that the definition of "Head of Department" in the Award is not confined to a particular hospital. 46Nor, in my view, can any real significance be attributed to the use of the title "Director", without more, to describe the position, or more to the point, as confirmation that the position was incorrectly described as a "Head of Department". 47In his affidavit Mr Rhodes helpfully set out some of the history of Ms Watterson's position. It was established in 1990/91 to cover only JHH. At that time it was a professional support role without staff line reporting to it. Instead, staff reported to positions in the patient care division, such as divisions of medicine, surgery, paediatrics. Sometime around 1994 the line management of dietetic staff was transferred to Ms Watterson's position and, according to Mr Rhodes, the dietetics service functioned as a traditional department. In 2001 the position took on expanded responsibilities for Royal Newcastle and Belmont hospitals. At some later stage the paediatrics division became recognised as a distinct hospital known as the John Hunter Children's Hospital (JHCH). Line management for staff providing services to the JHCH transferred to CAYHNET (Children and Youth Health Network) which later became known as Kaleidoscope. Profession reporting (as opposed to line servicing) was retained by the GNAHN Director position. Ms Watterson's position in relation to these arrangements was that it was able to provide advice which Mr Rhodes said would generally be accepted but if a dispute arose the ultimate decision would be made by CAYHNET management. Ms Watterson's position also provided professional support into performance reviews for the Department Head for Nutrition and Dietetics in JHCH. 48According to Mr Rhodes the five Director positions in the division of allied health (as at 30 November 2007), which included Ms Watterson's position, were overseeing services at multiple sites, and because of this the decision was made to use the title "Director". However, Mr Rhodes sought to emphasise, the positions did not relate to any significant analysis by Human Resources. Although Ms Watterson in her position would lead activities in GNAHN for Nutrition and Dietetics this was under the direction and supervision of the Operations Manager/Senior Manager Allied Health, GNAHN. By way of example Mr Rhodes referred to the Clinical Division identifying a service change. When this occurred the Operations/Senior Manager would liaise with the Service Manager of the Clinical Division and the General Manager of GNAHN to define the scope of allied health services required for the changed service delivery. The profession directors would then be consulted as to how this could be delivered by their particular service and the Operations/Senior Manager, Allied Health GNAHN would then assemble a single response and submit a proposal from the division of allied health. 49Mr Rhodes said that the position held by Ms Watterson did not have independent authority to lead, direct or co-ordinate changes to the Nutrition and Dietetics service in GNAHN. Approval was required from the Operations/Senior Manager, Allied Health GNAHN. As at 30 November 2007 Mr Rhodes said that in his role as Senior Manager, Allied Health GNAHN, Ms Watterson was one of his reports through the Operations Manager, Ms Henderson. As Senior Manager he was responsible for Ms Watterson's performance reviews until the Operations Manager, Allied Health GNAHN position was implemented towards the end of 2007. In his affidavit Mr Rhodes described the duties and responsibilities pertaining to Ms Watterson's position as at November 2007: Ms Watterson's position is responsible for Nutrition and Dietetics service across the JHH, Royal Newcastle Centre and Belmont Hospital. This includes the day to day direction, performance management and supervision of the dietitians at these sites, ensuring appropriate supervision is available and in place, managing the Nutrition and Dietetics budget and meeting budget performance targets, participating in developing the budget for Nutrition and Dietetics for the following financial year, role in facility service planning in conjunction with the Clinical Divisions and the usual managerial functions in health such as responsibilities around EQuIP accreditation surveys, complaints management, including responding to complaints from the Health Care Complaints Commission relevant to her services and student placements. As at November 2007, Ms Watterson was also responsible for the dietitian providing services at the James Fletcher / Morisset Hospitals, as part of HNEAHS Mental Health. It also included the professional supervision of the Dietary Technical Assistants, the senior dietitian for JHCH, the senior dietitian for Greater Newcastle Cluster (GNC) and a position in the STRAS Unit, GNC. 50In cross-examination Ms Henderson also gave some evidence which bears some relation to the characterisation by Mr Rhodes of Ms Watterson's position as "Head of Department". The passage is extracted below: Q. In para 32 you refer to the position of Director Nutrition and Dietetics (Discipline Director or head of department) occupied by Miss Cheryl Watterson, do you see that? A. Yes. Q. Where is the title head of department? A. In 2000 when David Rhodes drafted the proposal and the plans for the new division of Allied Health, the proposed duty statements were headed head of department and the initial positions were recruited under those duty statements and the title was head of department. Q. That was back in 2000 was it? A. Yes, yes. When we were appointed David and I had one of our first meetings together and David said it would sound more authoritative although it would be the same role if the positions were described as director but the function was head of department. 51One matter that emerges from the evidence on this issue is that Ms Watterson's position entailed responsibilities confined to Nutrition and Dietetics across a number of sites, including a number of hospitals within GNAHN, which was, and is, one of four acute hospital networks operating within the HNELHD. This characterisation is consistent with the definition of Heads of Departments under the Award. However, it is not of itself determinative of the issue of whether the position was properly graded. Positions at Level 8 are described under the Award as having a combination of operational and strategic roles and "may have a dual role as department head". Other descriptors of the respective positions in the Award need to be considered. 52The applicant also relies on a number of errors which are said to be apparent from the reasons of the Senior Positions ATC when it determined Ms Watterson's position as Level 7 Grade 1. These include the omission of any reference to "clinical network" which appears in the Level 8 descriptors after the words, "Positions at this level lead, direct, co-ordinate and provide strategic advice on major functions and work areas within a Local Health District(s), a geographic region, zone (or clinical network)". The applicant says that the omission indicates that the ATC erred in failing to consider whether the GNAHN was a clinical network, "within the meaning of the term as used in the Award". The applicant contends that it is clear the GNAHN was and is a "clinical network" for the purpose of the Award. 53According to the applicant the term "clinical network" is a term in everyday use. Its ordinary meaning is clear and unambiguous and it includes any network within a health system which provides links between doctors, nurses and allied health professionals for the delivery of health care and advice to patients. In written submissions the applicant developed its contentions on the meaning of the expression as follows: The ordinary meaning of "clinical network" would catch the Greater Newcastle Acute Hospital Network, described by HNEAHS as part of its "health network" whose stated purpose is to "to support the provision of clinical care as close as possible to where people live" and "encourage stronger professional links between the doctors, nurses and allied health professionals at tertiary referral hospitals and rural referral hospitals. This means stronger support for rural clinicians and better access for rural people to the wide range of services available in the Hunter New England area" (Hunter New England Area Health Service 2007/2008 Annual Report p. 9). According to this report GNAHN consists of John Hunter Hospital, The Royal Newcastle Centre, John Hunter Children's Hospital, Belmont Hospital and the Calvary Mater Newcastle. The employer also used the term "network" when refusing Ms Watterson's claim for Level 8 Discipline/Advisor at the HNEAHS USCC level of appeals. The correspondence to Ms Watterson at Annexure AZ of Exhibit 1 contains the statement: "The USCC did not reach a unanimous outcome in relation to your translation to Level 8 Manager. The USCC was not in agreement on whether the Level 8 classification should only be for Area wide positions and therefore whether a Level 8 is an appropriate translation for this position given that it is based at John Hunter Hospital and belongs to one network." It might be thought that the term "clinical network" is a term of art or bears a special public health industry meaning. However, neither party has offered any evidence of the history of the award in relation to this matter, the circumstances under which it was made, or the proceedings surrounding and documents associated with the making of the Award. Accordingly, the Commission is entitled to, and should rely, on the ordinary and natural meaning of the term in resolving this dispute. 54The reference to "one network" in the correspondence quoted above when describing Ms Watterson's position as based at JHH and belonging to "one network", in my view is a reference to the GNAHN. It does not follow that because the acronym GNAHN contains the word "network" that the GNAHN is a "clinical network" as that expression is used under the Award. 55Under the Level 8 descriptors the expression is used in conjunction with the provision of strategic advice on major functions and work areas within a Local Health District, a geographic region and zone. The expression therefore cannot be considered in isolation. It is predicated upon the requirement to "lead, direct, co-ordinate and provide strategic advice on major functions and work areas". Moreover it is expressed to be in the alternative to a local health district, a geographic region and zone which may suggest, of itself, that a clinical network is something more than an acute hospital network such as the GNAHN, located within a Local Health District. 56The applicant's contention that the expression "has an ordinary meaning which would be consistent with the GNAHN as part of the HNEAHS health network" is not supported by any developed explanation or evidence by the applicant as to why this contention should be accepted. 57The expression "clinical network" has a particular meaning and significance within the public health system in New South Wales. Mr Rhodes gave evidence on the meaning of the expression in cross-examination. This evidence was not impugned. In my view Mr Rhodes was eminently qualified to give the evidence. He is a highly experienced public health employee who worked in a number of senior positions within the HNELHD over many years. There has been no suggestion to the contrary. In his evidence Mr Rhodes distinguished between GNAHN (as a network) and the expression "clinical network" and explained the meaning of that latter term: Q. One of the networks that was well established at the time was the Greater Newcastle Acute Hospital Network? A. That was a name, it wasn't functionally the same as a clinical network. The clinical networks were based upon health issues. Q. I want to put to you that what was the concern of the employees within the Greater Newcastle Acute Hospital Networks was certainly health issues? A. The theme of each clinical network was around say women and children or paediatrics or mental health, drug and alcohol. That was what was meant by the focus of the clinical network, and the clinical network spread across the whole area and provided standards, guidelines, protocols, et cetera, for individual services to manage clients and patients with those clinical diagnoses. 58This explanation is consistent with the expressions "Managed Clinical Networks" and "Area Clinical Networks" to which I adverted earlier, that is, a clinical network is akin to a system of integrated care which shifts the emphasis from buildings and organisations towards services and commissions/carers. The expression "Area Clinical Networks" is uplifted from the HNEAHS 2007/2008 report. The applicant relied on the report (in the written submissions extracted above) in support of its contention that the GNAHN constituted a clinical network. According to that report (and the earlier report for 2004/2005) Managed Clinical Networks/Area Clinical Networks exist and operate in addition to the eight geographic clusters and the four acute hospital networks (including GNAHN) which form part of the HNEAHS/LHD. The applicant suggested that Mr Rhodes' explanation that a clinical network "spread across the whole area" could not be correct because it produced the result that the expression "Local Health District" used in conjunction with "clinical network" in the Level 8 descriptors would be rendered redundant. I do not agree. As Mr Rhodes explained the expression is directed towards describing a system focussed upon particular health issues such as children's health, mental health and drug and alcohol issues. 59It follows from this analysis that a "clinical network" is quite different from an acute hospital network. Moreover, it must be borne in mind as I earlier observed that the expression cannot be viewed in isolation in the Award. This particular Level 8 descriptor is preceded by, and must be read together with, the words "Positions in this level lead, direct, co-ordinate and provide advice on major functions and work areas within a (clinical network)". Finally, it should be noted that Ms Watterson managed and was responsible for one single unit within the GNAHN as Director of Nutrition and Dietetics, not GNAHN itself. 60The applicant also criticised what was perceived as an error in the characterisation of the FTE staff reporting to Ms Watterson's position. It will be recalled that the ATC found that Ms Watterson's position line managed 12.26 FTE and professionally managed approximately 15 FTE (Dietitians and DTAs). According to the applicant the error by the ATC occurred when it characterised some FTE's as being line managed and other FTE's as receiving professional input from Ms Watterson but that the Award does not allow for a different consideration of the two types of FTE's in determining the grading for a position. 61In addition the applicant submitted the following matters should be taken into account on this issue: For a position to be classified as a Department Head, Level 7, Grade 1, the Award requires that "the department contains more than 25 - 40 other full time equivalent health professionals or technical and other support staff providing clinical input". 62The basis upon which the submission was put relies upon the following extract said to be from Appendix A, Schedule B of the Award: The Award uses the terms (grading), "will generally rely upon the number of full time equivalent health professionals or technical and other support staff within an area of responsibility" (Exhibit 1, Appendix A, Schedule B). 63The extract taken from the particular Level 7 descriptor is not complete, however. The full extract is as follows: The criteria for a Department Head will generally rely upon the number of full time equivalent (FTE) health professionals or other support staff within a department. This does not preclude the employer from taking into account other aspects or demands of the role required including a significant variance between the actual number of staff managed to the FTE figure, organisational complexity, range and scope of duties and other responsibilities to be undertaken. 64In my view, this is precisely what the ATC was attempting to do when it took into account other aspects and demands of the role. The functions taken into account by the ATC have been set out earlier in this decision. It appears to me to be entirely consistent with what the Award contemplates and permits, in relation to an assessment of the criteria for a Department Head. 65In addition the applicant submitted the following matters should be taken into account on this issue: For a position to be classified as a Department Head, Level 7, Grade 1, the Award requires that "the department contains more than 25 - 40 other full time equivalent health professionals or technical and other support staff providing clinical input". This requirement does not apply to Ms Watterson's position. Her area of responsibility for other staff providing clinical input was 25 plus, however, these staff were spread across a number of services and departments. Both Ms Watterson and Mr Rhodes substantially agree on the FTE in Ms Watterson's area of responsibility and their locations across four acute hospitals (JHH, JHCH, RNC and BDH); Patient Support Services, a community dietetic service, two mental health hospitals and a residential unit. (Exhibit 1, Paragraph 23, Appendix W, Exhibit A, Paragraph 154). In Exhibit 1, Appendix AAB, the Allied Health Service Manager, Greater Newcastle Acute Hospital Network, who was Ms Henderson at the time (2009), states on page 3 that the "FTE managed in Nutrition and Dietetics (including reliever who was on staff Nov 07) = 12.77 which is Level 5 Dept Head". And later "The Diet Aides (Dietary Technical Assistants) are not Line Managed by the Director Nutrition and Dietetics. If professional input of diet Aides is considered a substantial role of the Director Nutrition and dietetics, the role could be considered as constituted by: 1. Line management of 12.77 FTE = Level 5 Dept Head plus complexity (Diet Aide professional input; head count of Nutrition and Dietetics) taking the position to Level 6. 2. Management or input to FTE = 25.97 (Dietitians and Diet Aides) which is Level 7 grade 1" This error is also documented on page 2 where 12.26 line managed FTE are counted in Ms Watterson's area of responsibility and approximately an additional 15 FTE are professionally managed and are designated as "complexity". There is a handwritten note "L51" with a ring around it. The Union contends that this is the departmental representative's note. 66These issues are dealt with by Mr Rhodes in his affidavit where he refers to the factors considered by the ATC. The relevant portion of Mr Rhodes' affidavit has been set out earlier in this decision (at [23] and [24]). If the ATC had only considered line management functions Ms Watterson's position would have translated as a Level 5 Department Head. The ATC however looked into other aspects and demands of the role in ultimately deciding that the position should be translated to Level 7 Grade 1. 67As Mr Rhodes explained in his affidavit, the other positions referred to by Ms Watterson in her affidavit at paragraph 23 were not given any weight because a peer review meeting does not encompass the full range of professional support activity that would be required and which were provided by other dietitians within HNEAHS. To include these positions in Ms Watterson's staffing profile therefore would have been double counting. 68The applicant's next series of contentions were directed towards the words "geographic region" and "zone" which appear in the opening paragraph of the first Level 8 descriptor. According to the applicant these words are ordinary English words and in the context of the Award they are clear and unambiguous. Resort was had to the Macquarie Dictionary 5th Ed 2009 definition of the words. A geographic region according to the applicant, within the context of the Award is, "simply a small geographic area of the whole geographical area covered by the AHS", and a "zone is a division of a larger area according to a system". 69The expressions are not defined in the Award. Resort to the dictionary is not necessarily of assistance for the reason I identified earlier, namely, the expressions, like the term "clinical network" cannot be considered in isolation from the remainder of the particular Level 8 descriptor in which they appear. They are preceded by, and must be considered together with the words, "Positions at this Level, direct, co-ordinate and provide strategic advice on major functions and work areas within a ... (Local Health Districts) ...". Whether or not Ms Watterson's position operated within a geographic region or zone is wholly dependent upon whether the position provided strategic advice etc. on major functions and work areas (whether for a particular area, zone, geographic region or clinical network). 70This brings me to the next series of contentions relied upon by the applicant which were directed towards "major functions and work areas (within a Local Health District(s), a geographic region, zone or clinical network)". Again the applicant has sought (incorrectly in my view) to have the expressions considered in isolation from the remainder of the Level 8 descriptor. 71 As a starting point the applicant focussed on the word "major" and postulated it meant that the functions or work areas in nutrition and dietetics (that Ms Watterson's duties and responsibilities concern), "should constitute a large ie important part of nutrition and dietetics functions and work areas within an AHS, a geographic region, zone or clinical network." Ms Watterson's position, it is said, was responsible for the planning in the discipline of nutrition and dietetics within HNEAHS and was responsible for the planning, development and management of the Nutrition and Dietetics Services patients in JHH, the only tertiary hospital within the HNEAHS and the major referral centre for Hunter New England Health. The applicant also relied upon a previous Award under which Ms Watterson's position had been designated as "Chief Dietitian". JHH as the only tertiary hospital within HNELHD/AHS is said to be a "major function and work area". 72The applicant also relies upon the following responsibilities which are set out in Ms Watterson's affidavit on the basis that they are reflective of her position as a Level 8 Grade position under the Award: In addition, within the geographic region or zone known as the Greater Newcastle Cluster, Ms Watterson was responsible for: (a) maintaining the professional accountability for the clinical component of the Dietary Technical Assistants (DTAs) roles in relation to John Hunter Hospital, Royal Newcastle Centre, and John Hunter Children's Hospital; overseeing the clinical orientation, ongoing education and performance review of DTAs in collaboration with Patient Support Services in relation to John Hunter Hospital, Royal Newcastle Centre, and John Hunter Children's Hospital [FTE 13.2] (Exhibit 1, Annexure AAL, Clause 8.5.2); (b) the outcomes for clients and HNEAHS from the practice of the Senior Dietitian providing the clinical and professional service in nutrition and dietetics to patients at the only two mental health hospitals, James Fletcher and Morisset, within the geographic region or zone known as Greater Newcastle [FTE 0.2] (Exhibit 1, Paragraph 49, Appendix AV); (c) the professional supervision, co-ordination and leadership to the Head of Department Nutrition and Dietetics John Hunter Children's Hospital for operational aspects of the John Hunter Children's Hospital nutrition and dietetic services, including patient menu management for the whole of the JHH/RNC facility, the adult enteral formulae dispensed by the paediatric formula room; JHH/RNC/JHCH enteral feeding pumps and dietitian shared office environment, within the geographic region or zone known as Greater Newcastle [FTE 1] (Exhibit 1, Paragraph 14, Appendix N); (d) the outcomes for clients and HNEAHS from the practice of the Dietitian providing the clinical and professional service in nutrition and dietetics to patients at STRAS - Short Term Rehabilitation Aged Care Stay Unit located at Belmont District Hospital, within the geographic region or zone known as Greater Newcastle [FTE 0.1] (Exhibit 1, Paragraph 49, Appendix AV); and (e) the professional supervision, co-ordination and leadership to the Head of Department Nutrition and Dietetics providing the clinical and professional service in nutrition and dietetics to the Community Health Services located at Newcastle, Raymond Terrace, Wallsend, Windale, Toronto, and Nelson Bay and to the Rankin Park Rehabilitation Unit, within the geographic region or zone known as Greater Newcastle [FTE 0.8]. This relationship, duties and responsibilities were documented by the employer in JD Reviewed 2004 (Exhibit 1, Paragraphs 15 & 66, Appendices O and AAL). 73Ms Watterson's duties and responsibilities were also said to be "most reflective" (refer cl 12.1.3 of the Award) of the Level 8 criteria, paragraph 6, dot point 1 and dot point 2. The first dot point concerns professional responsibility with regard to "strategic workforce and development and professional practice ...". In this regard the applicant contends that Ms Watterson provided professional co-ordination and leadership in nutrition and dietetics to each department head within the geographic region and zone known as Greater Newcastle. 74The contention in my view cannot be accepted. It is unsupported by evidence, and in any event, stands in contrast to the evidence of Mr Rhodes, earlier referred to, that Ms Watterson's position was essentially a "Head of Department" position. The second dot point relies on Ms Watterson's position as providing strategic advice to GNAHN and CARE Network Service Executive Management as well as planning and implementing service developments and professional practice across the Greater Newcastle geographic region and zone of HNEAHS. The applicant has not sought to support the particular contention by reference to any evidence, apart from pointing to cl 7.2 of the position's job description which provides that a key responsibility is, "... collaboration with senior managements of the GNS Acute Service (and the CARE Network - added in the job description reviewed in 2004), plan, organise, implement and evaluate service provision and delivery to meet customer needs". It is not apparent to me how an extract from the job description which focuses on collaboration, meets the criteria in paragraph 6, dot point 2, which directly concerns the provision of professional co-ordination and leadership. Of greater significance are the opening words in relation to which the dot points in paragraph 6 must be assessed, namely, "Positions with this level have a combination of operational and strategic roles as follows:". The requirements of a Level 8 position to perform a dual role consisting of both operational and strategic components was not directly addressed by the applicant. I propose to deal with this issue in more detail shortly. 75As for the other matters raised in support of the contention that Ms Watterson's position concerned the provision of strategic advice etc. on "major functions and work areas", I make the following observations. First, the respondent in submissions accepted that Ms Watterson's position had responsibilities involving planning, development and operational management of the nutrition and dietetics services within GNAHN. It does not follow, however, that Ms Watterson's position falls within and can be properly described as a Level 8 position and that Ms Watterson's duties and responsibilities as at 30 November 2007 were "most reflective" of the Level 8 criteria. Simply put, the respondent contends that the functions of the position were not and are not strategic in nature as contemplated by Level 8. Nor does the respondent accept the applicant's conclusion that the JHH is a "major function" and "work area" within an "Area Health Service, a geographic region, zone or clinical network" solely because it is a tertiary hospital. I agree with the respondent's contention with regard to the last mentioned matter. The contention of the applicant was put no higher than a bare assertion without supporting evidence, and there is no evidence to which the Commission has been directed that might have provided some support for the assertion that JHH, because it is a tertiary hospital, is therefore a "major function" and "work area" in relation to which Ms Watterson's position provides strategic advice etc. The applicant's reliance on predecessor awards and how Ms Watterson's position was graded under those awards is not relevant to any of the issues presently under consideration. 76 The applicant also contended that Ms Watterson's position met the Level 8 criteria, paragraph 6, dot point 3 ("acts as a central point of contact for strategic consultation and liaison with Service Executive Management and the Area Allied Health Director/Advisor"). The basis upon which this is put is that Ms Watterson's title, duties and responsibilities and her position's location at HNEAHS's only tertiary level hospital, and within the Greater Newcastle geographical region, provide evidence that she occupies the management position which is the "end-point" of accountability and responsibility for everything to do with the discipline/profession of Nutrition and Dietetics in Greater Newcastle. In contrast the Level 7 "Head of Department" positions according to the applicant do not include generally making or being involved in decisions about "programs, strategies and priorities". 77The notion of "end-point" accountability was raised in the evidence of Marianna Milosavljevic, a witness called by the applicant. In her affidavit Ms Milosavljevic gave the following evidence: In the case of Level 8 it was specifically designed to reflect the existence of discipline directors. This meant these management positions were the 'end-point' of accountability and responsibility for everything to do with that discipline/profession. The span of this responsibility could be for a zone/network or geographical region within a larger health service. (Paragraph 8) The total number of Discipline Directors for each area/district was not prescribed. The expectation was that each health area/district would examine their allied health management positions. This examination would compare the current job descriptions, as of the 30th November 2007 to the criteria outlined in the HPA or level 8 Directors". (Paragraph 9) There were no Level 8 Discipline Director positions in existence prior to November 30th but there were positions that fulfilled the role of level 8 positions. If these positions had the end point responsibility for their profession within a district / network / geographical area they would have met the main requirements of a level 8 Director. (Paragraph 12) 78According to the applicant the essence of Ms Watterson's grievance is that at 30 November 2007 she was employed by HNEAHS as the Dietitian with "ultimate responsibility" for major functions or work areas in nutrition and dietetics within the Greater Newcastle Sector, GNAHN, and "Greater Newcastle" was a geographic region and zone within HNEAHS and the GNAHN was a clinical network within HNEAHS. 79Many of these contentions I have already dealt with. In my view the evidence does not sustain the contention that Ms Watterson's position was one of "ultimate responsibility" or that the position was the "end-point" of accountability. Ms Milosavljevic's evidence needs to be assessed in the context of the actual words used in the Level 8 descriptors. It is worthwhile setting out again here what those actual words are: Positions at this level have a combination of operational and strategic roles as follows: * has professional responsibility with regard to strategic workforce and service development and professional practice across an Area Health Service, a geographic region, zone or clinical network * provides professional co-ordination and leadership across an Area Health Service, a geographic region, zone or clinical network to 'head of departments' * acts as a central point of contact for strategic consultation and liaison with Senior Executive management and the Area Allied Health Director/Advisor * may have a dual role of 'head of department' * may be required to provide an expert specialty consultancy role in their area of expertise * may be involved in the provision of relevant clinical or leadership training, management development and/or mentoring to staff within the Area Health Service, geographic region, zone or clinical network. 80First, it is noteworthy that the descriptors do not use the term "end-point". Secondly, the descriptors are predicated upon the position combining an operational role and a strategic role. The evidence in my view does not support a contention that Ms Watterson's role was "strategic" in the sense the word is employed in the Level 8 descriptors. It was primarily operational. Moreover the position on the evidence was not the "end-point" in respect of operational matters relating to the GHAHN. Instead this function fell to the Service Manager, Allied Health/Operations Manager, GNAHN. 81Mr Rhodes, whose evidence on this issue was not impugned and whose evidence I accept for the reasons adverted to earlier, explained that structurally the position held by Ms Watterson did not have independent authority to lead, direct or co-ordinate changes in the Nutrition and Dietetics Service in GNAHN. Approval was required from the Operations/Service Manager, Allied Health GNAHN. As Service Manager, Mr Rhodes was responsible for Ms Watterson's performance reviews. In late 2007 his functions were performed by the Operations Manager, Ms Henderson. 82Mr Rhodes also gave evidence that Ms Watterson's role was not to lead, direct, co-ordinate and provide strategic advice on major functions or work areas across the Greater Newcastle Cluster (GNC) and especially the GNAHN. Her position he said did not have the responsibility or authority to direct and co-ordinate major functions and work areas across the GNC. The General Manager and GNC Director of Allied Health had the responsibility. Similarly the position was not responsible for leading or directing the Food Service Dietary Technical Assistants. Ms Watterson's position, said Mr Rhodes, was limited to clinical matters, not overall functions which were the responsibility of Patient Support Services (see in this regard the job description reviewed September 2004 at 8.5). Mr Rhodes also said that Ms Watterson's position provided strategic advice on matters but that advice was also sought from the APD Nutrition and Dietetics (that is, Ms Jackson) on a frequent basis. Mr Rhodes further explained that in GNAHN, Ms Watterson was required to gain approval for all changes to service delivery prior to implementation. Depending on the nature and impact of the change, approval was provided by the Operations Manager, the Area Director Allied Health Services or the General Manager. Planning, organising, implementing and evaluation of service functions and policy development were required to be in consultation with Service Managers and the APD Nutrition and Dietetics. Moreover Mr Rhodes pointed out that Ms Watterson had limited authority to spend money on behalf of HNEAHS or to make decisions regarding human resources. These matters are confirmed by the job description (reviewed September 2004) for Ms Watterson's position. Paragraph 10 of the job description, headed "Delegation", states: 10.1 Human Resources: approval of staff selection reports, annual leave, sick leave 10.2 Goods and Service Expenditure: up to $1,000. 83On any view of it, these limited financial and human resources functions attached to Ms Watterson's position are not indicative of the Level 8 descriptors which require that the position "(has) significant responsibility for resources under their control". Ms Watterson's position in this regard in my view more appropriately falls within a Level 7 position, which provides that "Programs, strategies and priorities are generally decided at a higher management level but positions at this level (ie Level 7) have the authority to decide how to achieve results within the limits of available resources." 84The evidence taken as a whole demonstrates in my view that the various review bodies which dealt with Ms Watterson's application for translation and with subsequent reviews of the determinations made, did not fall into error or make factual errors in the course of those determinations. The ATC's decision found that Ms Watterson's application was not supported in part because GNAHN was not considered consistent with Area, regional or zone concepts and that the functions of the position were consistent with the functions of, "Department Head roles for tertiary hospital facilities". For the reasons I have given I can perceive no error in these findings. The material presented in this application is not persuasive of a conclusion that Ms Watterson's position should have been classified at Level 8 in accordance with the grading structure under Schedule B of the Award and by reference to cl 12.1.3 of the Award. The fact that the USCC was unable to reach a unanimous decision on the issue of whether the Level 8 classification should be for "area wide positions" (as opposed to the position being based at JHH and belonging to one network) cannot be accorded any significant weight. No complaint has been raised that the procedures utilised during the review were unfair. In any event, Ms Watterson was able to avail herself of a further avenue of review to the Peak Level Committee, which dealt with her review application in considerable detail, as indicated by the extract of the Committee's decision. There is no doubt that Ms Watterson was and is a senior, highly competent, experienced and valued employee but I have been unable to detect any error of significance in any of the review bodies' decisions or determinations which might have persuaded me that Ms Watterson's position should have been classified at Level 8. 85This leads me to make some brief observations about the proceedings generally. First, the respondent provided three avenues of review for those employees dissatisfied with the translation process. As I have noted, Ms Watterson availed herself of all avenues of review and no complaint has been made that the review process was procedurally unfair. Secondly, I have had some misgivings during the conduct of the proceedings that the Commission in reality was being asked to conduct a further review. This is not my function nor do I consider that I have the power to undertake such a function. What I have attempted to do is to apply the relevant provisions of the Award to Ms Watterson's position in order to determine whether, as a result of the translation process, Ms Watterson was placed into a position in the new structure that was "most reflective" of her duties and responsibilities as at 30 November 2007. 86A third matter which requires comment concerns the contentions of the applicant that the relationship between Ms Watterson's position and the Operations Manager (Ms Henderson) and the APD Nutrition and Dietetics (Ms Jackson) is relevant to whether or not the criteria for a Level 8 position matched Ms Watterson's duties and responsibilities as at 30 November 2007, "only if either of those relationships have the result that Ms Watterson does not lead, direct, co-ordinate and provide strategic advice for nutrition and dietetics within GNAHN. Only then could it be said that a Level 8 position was not reflective of her responsibilities". Comprehensive submissions were devoted to this particular issue by the applicant. At one point in the submissions the applicant contended that the position of Operations Manager, GNAHN did not meet the criteria for classification and grading as a Discipline Specific Director/Advisor Level 8, Grade 3 and, that the position, "has been wrongly, indeed unlawfully, classified and graded by HNEAHS". The applicant's submissions descend into considerable detail as to what it contends are the functions and responsibilities of the two positions of Operations Manager and APD Nutrition and Dietetics. In relation to the position of APD Nutrition and Dietetics the applicant advanced the proposition: ... that the position did not have responsibility, including ultimate responsibility, for the discipline of nutrition and dietetics for GNAHN, nor did that position "professionally supervise" Ms Watterson in the discharge of her duties and responsibilities as Director Nutrition and Dietetics GNAHN. 87I do not intend, nor would it be appropriate, to conduct an analysis of the respective positions which would also involve a comparative exercise between those positions and Ms Watterson's position. In relation to the respective duties and responsibilities of the Operations Manager and the APD, Nutrition and Dietetics positions, in my view such an exercise is not relevant and does not fall within the ambit of the application. It is also questionable as to whether or not I have the power to do so. The applicant effectively asks me to consider whether the positions of Operations Manager and APD, Nutrition and Dietetics were properly graded, by reference to Ms Watterson's duties and responsibilities, during the translation process. No such applications, in any event, are presently before me. 88For the foregoing reasons the application is refused. ********** 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. Decision last updated: 05 March 2014