Amcor Limited v Construction, Forestry, Mining and Energy Union and Others [2014] NSWIRComm 6 | Case summary

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.

Amcor Limited v Construction, Forestry, Mining and Energy Union and Others

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Judgment (7 paragraphs)

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Cases Cited (6)