Akins v National Australia Bank

LEGISLATION CITED: Industrial Relations Act 1996 s 176, s 188, s 191

Akins v National Australia Bank (1994) 34 NSWLR 155 CCH Australia Limited v Bowen (1998) 79 IR 206 Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284 CASES CITED: Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19 State Wage Case 2007 (2007) 163 IR 253

HEARING DATES: 14 August, 14 November and 11 December 2007

APPELLANT: Mr R Warren of counsel NSW Department of Health (Mr P Sergent, Industrial Officer) LEGAL REPRESENTATIVES:

RESPONDENT: Mr J Murphy of counsel Health Services Union (Mr D Ravlich)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Friday 8 February 2008

Application by NSW Department of Health for leave to appeal and appeal against the decision of Deputy President Grayson given on 9 February 2007 in Matter No IRC 5671 of 2005

1 The New South Wales Department of Health ("the Department") has sought leave to appeal from that aspect of the decision of Grayson DP given on 9 February 2007 (Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19) which created a new classification and salary structure within a new award known as the Public Hospital Medical Physicists (State) Award. Leave to appeal was opposed by the respondent, the Health Services Union ("the Union"). 2 By his decision, the Deputy President 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 applicant does not challenge the making of the award, per se, nor the conditions of employment within it (his Honour having rejected certain aspects of the conditions claimed by the Union) but, as we have noted, confined its challenge on appeal to certain aspects of the new classification and salary structure awarded by the Commission. 3 The Department did not challenge the finding by his Honour that the Union had made out a special case and satisfied the conditions of the work value principle pursuant to the State Wage Case 2007 (2007) 163 IR 253 at [348] and [351]. Nor does the Department contend that his Honour should not have awarded salary increases as a result of that finding. Rather, the application proceeds upon the narrow basis that the classification structure and salaries awarded were inappropriate (in part) and excessive, having regard to the case presented to his Honour by the Union. The attack on the first instance decision was essentially twofold. 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 been accredited for the position by the Australasian College of Physical Scientists and Engineers in Medicine in accordance with criteria for entry to the new classification (at least in substance) under the relevant definition of the new award. We note that these submissions were accompanied by a related contention as to the adequacy of the definition itself. 5 We consider the application for leave to appeal should be granted. We do so for the following reasons:

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. 6 On balance, then, we consider that it is appropriate that we grant leave to appeal. Before making orders to that effect it is appropriate that we deal with one matter that arose during the course of the hearing of the appeal. After various matters were raised by the Full Bench, the Department sought leave to bring fresh evidence pursuant to s 191(2) of the Industrial Relations Act 1996 ("the Act"). Whilst there was a variety of material presented, in essence, the Department sought to put before the Commission an alternative classification and salary structure to that awarded by his Honour (and justification for that approach). We refused to grant that application for the following reasons:
2. In Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284 at [87], the Full Bench indicated that, in general terms, the three-pronged "test" stated in Akins v National Australia Bank (1994) 34 NSWLR 155 at [160] was applicable to the determination as to whether special grounds existed for the purposes of s 191(2) of the Act (that is, where a party had sought leave to adduce further evidence in an appeal). It is clear that the application made by the Department in this case failed to meet the first two components of that test.
3. We agree with Mr R Warren of counsel for the appellant that the Akins' tests are not exhaustive of considerations as to whether special grounds have been made out under s 191(2) of the Act. We agree, as the Full Bench did in Electrical Contractors (at [79]), with the decision of the Full Bench in CCH Australia Limited v Bowen (1998) 79 IR 206 that the resolution of an issue relating to further evidence on appeal must ultimately depend upon the appellate Court's assessment of whether the admission of the evidence is necessary to avoid a "miscarriage of justice" (see Bowen at [211]).
4. However, the proper administration of justice requires a balancing of both the interests of the parties and, in cases such as the present, the public interest in the proceedings. The proper balancing of those considerations in this case, in our view, warrants the refusal of the additional evidence. It is, no doubt, important that the Full Bench of the Commission supervise the proper application of the wage fixing principles and the adjudication of salaries, particularly in the public health sector (and other major areas of public employment). However, that task cannot be undertaken in a vacuum. Here, the Department raised for the first time, on appeal, an alternative classification and salary structure. That may have been a significant factor in its favour. However, the suggested structure brought with it a series of complications which could ultimately only be resolved by undertaking a substantial de novo hearing of the classification and salary application. That is not a suitable use of the powers of the Commission under s 191(2), it trammels on the interests of justice so far as the concerns of the affected members of the Union, and is contrary to the fundamental principle of the finality of the proceedings.

Orders 7 The Full Bench orders that leave to appeal be granted. Reconstitution of the Full Bench 8 In view of the unavailability of the presiding judge for the hearing of the balance of the appeal, the Full Bench will be reconstituted (see s 176 of the Industrial Relations Act) and the proceedings listed for the setting of further hearing dates.

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