Application for Crown Employees (School Psychologists – Department of Education) Salaries Award [2023] NSWIRComm 1051

The matters in contention

1. The Proposed Award anticipates a salary structure comprising of six salary "bands" for school psychologists. In broad terms, the controversy between the parties centres on the way in which the Proposed Award reflects that structure and how it is to be applied. The particular matters in contention may be summarised as follows: 1. the point in the salary structure at which a school psychologist should be placed on the commencement of their employment with the Department of Education ("Department"), and the criteria to apply in making that determination; 2. the requirements for progression of school psychologists through the salary bands; 3. in particular in relation to these matters, whether progression to Band 3 should require the attainment of "Advanced Certification" under the Professional Practice Framework, and whether the New Award ought to allow for a school psychologist to commence employment at that band; and 4. related or resultant drafting issues.

Applicable legislation and principles

1. The Secretary's application is brought pursuant to s 10 of the Industrial Relations Act 1996 ("Act"). There was no disagreement as to the principles that the Full Bench ought to apply in determining the application. Consequently, we will not reiterate those principles or reproduce extracts from the authorities from which they are derived. We limit ourselves to drawing attention to the observations of the Full Bench in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 ("Police and Paramedics") at [17]-[32].
2. We will assume familiarity with the Act and with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation"). We will not reproduce the provisions of the Act and Regulation to which we refer.
3. We are mindful of the Commission's jurisdiction under s 10 of the Act, and the matters to which we must by s 146(2) have regard in exercising that jurisdiction (including the objects in s 3). We note the constraints imposed on our jurisdiction by s 146C of the Act and by the Regulation.

Bifurcation of the hearing

1. At the commencement of the proceedings, the Full Bench was provided with a document titled "Joint Proposal to Bifurcate Hearing". That document started with the following statement: "1. The hearing may, subject to the matters below, be split into two stages and any contest about whether there is an increase in employee-related costs (taking into account any employee-related costs savings available to offset any such increase) in contravention of cls 6 and 6A of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (Regulations) shall be deferred until Stage 2 of the hearing." (Emphasis in original)
2. The Joint Proposal proceeded to identify the matters then in dispute, and which findings of the Commission in respect of those matters the parties considered would require a "Stage 2" hearing.
3. The Full Bench agreed to the bifurcation of the hearing proposed by the parties.

The public interest

1. The PSA submitted that in determining the terms of the New Award, the Commission should have regard to what it contends are difficulties in the Department attracting and retaining school psychologists. This was said to fall for consideration as a result of the obligation in s 146 of the Act for the Commission to have regard to the public interest in exercising its functions.
2. The evidence of the PSA's witnesses was, in broad terms, consistently to the effect that: 1. there is a growing need for psychological support to be available to students in both primary and secondary schools; 2. there is a shortage of school psychologists; 3. school psychologists are already challenged in meeting the existing demand for their services; 4. the Department has difficulty recruiting and retaining school psychologists (and school counsellors); 5. these difficulties will not be surmounted unless the Department can offer conditions that will attract staff from the private sector and remove the incentive for them to move to the private sector; and 6. the Proposed Award does not meet that objective.
3. In the PSA's Closing Submissions it contended: "24. Having regard to the matters referred to in paragraph 23 above, the PSA submits that the public interest would be served if the Secretary succeeds in recruiting suitably qualified psychologists with relevant experience. That is a relevant public interest consideration in the sense described by the majority of the High Court in O'Sullivan v Farrer. 25. Accordingly, pursuant to s 146(2) of the IR Act, in determining fair and reasonable conditions of employment for school psychologists the Commission should have regard to the public interest in ensuring that the Secretary is successful in recruiting suitably qualified psychologists with relevant experience."
4. The Secretary disputed that the Proposed Award would detrimentally affect the recruitment and retention of qualified school psychologists. He led evidence that between 2016 and 2022 there has been a significant increase in the number of school psychologists and senior psychologists, education ("SPEs") employed by the Department.
5. The Secretary further contended that the PSA's evidence did not rise to the point of supporting its contention that the Department had difficulties in attracting and retaining school psychologists. He submitted that the PSA's evidence was confined to hearsay accounts from witnesses who had been told that individuals had either turned down offers of employment with the Department, or had taken up opportunities in the private sector, due to the salaries on offer.
6. As the Secretary contended, the PSA's evidence was in large part limited to hearsay accounts of conversations held by the PSA's witnesses with others, who were often not identified. There was no evidence from an individual who had declined an offer of employment with the Department, or who had left their employment with the Department, on the basis that the conditions of employment in the Department were unsatisfactory. The PSA did not adduce any empirical evidence allowing for a comparison between the conditions of employment offered by the Department and those available elsewhere.
7. The PSA's evidence also focused predominantly on the salaries available to school psychologists in the Department. It is relevant that the PSA did not challenge the salaries contained in the Proposed Award. More particularly, the PSA's position did not reflect the fact that remuneration is not the only relevant consideration. The full suite of terms and conditions of employment, and intangibles such as job satisfaction, may be relevant to the question of attraction and retention. We observe that in this regard, Marcella Kabala, a school psychologist in the Department, deposed under cross-examination that notwithstanding that she considered the salaries paid by the Department to be uncompetitive, she stayed in her job because "she loved it". [1]
8. In sum, the evidence did not extend much further than the expression of opinions and concerns are held by the PSA's witnesses regarding attraction and retention of school psychologists. This evidence does not provide a proper basis on which to conclude that there are attraction and retention issues which would inform the Commission's exercise of its discretion.
9. We are also mindful of cl 8.5.1 of the Commission's Wage Fixing Principles, most recently re-affirmed in State Wage Case 2022 [2022] NSWIRComm 1081. That provision is in these terms: "8.5.1 Claims that are based substantially on comparative wage justice, attraction and retention or community standards will not be countenanced except as provided in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; (2002) 121 IR 28 and Re Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; (2003) 132 IR 244."
10. The PSA submitted, and we accept, that the Wage Fixing Principles are in the nature of guidelines. They do not have the force of statute, and cannot add to and do not detract from the Commission's jurisdiction under the Act: Police and Paramedics at [29]. However, as the Full Bench in that case went on to observe at [30], the Wage Fixing Principles derive their utility from their consistent and logical application to award proceedings brought before the Commission.
11. In the PSA's Closing Submissions, the union traversed the decisions in Re Public Hospital Nurses (State) Award (No 3) (2002) 121 IR 28; [2002] NSWIRComm 325 and Re Health Employees Pharmacists (State) Award (2003) 132 IR 244; [2003] NSWIRComm 453. Having done so, it contended (at par 33) that "clause 8.5.1 of the Wage Fixing Principles is no impediment to the Commission accepting the PSA's submission that it should have regard to the public interest in the Secretary succeeding in the recruitment of qualified psychologists with relevant experience".
12. We do not consider that the evidence led by the PSA in the present proceedings rises to the point of demonstrating the types of labour shortages and consequential effects which the Commission considered warranted its intervention in the two cases referred to in the preceding paragraph. That being said, the Secretary placed little reliance on cl 8.5.1 and took no issue with the PSA's submissions in respect of the public interest issues said to arise. Consequently, cl 8.5.1 has not had a material bearing on our decision.

Commencing salary

1. The Proposed Award sets out the basis on which the commencing salary for a school psychologist is to be determined; that is, the point in the salary structure at which a school psychologist will commence employment with the Department. In that respect, the Proposed Award is in these terms: 4.1 Salaries and rates of pay for School Psychologists are set out in Part B - Salaries, Table 1 and Table 3 of this award. … 4.2 The annual salary for School Psychologists will be in accordance with the School Psychologist's level of Registration with the Psychology Board on commencement of employment. 4.2.1 A School Psychologist with Provisional Registration with the Psychology Board will commence on Band 1.0. 4.2.2 A School Psychologist with a minimum of General Registration with the Psychology Board will commence on Band 2.0. The Secretary may approve an offer of a higher commencing salary within the Band 2 range being made to a prospective employee based on evidence of relevant experience as a psychologist being provided prior to acceptance of employment. 4.2.3 A School Psychologist with General Registration with the Psychology Board and Advanced Certification against the Professional Practice Framework will commence on Band 3.0. The salary bands that apply to a School Psychologist following employment with the Department are as follows: Band 1.0 Provisional Registration with the Psychology Board Band 2.0 General Registration with the Psychology Board and working towards Established Certification Band 2.1 General Registration with the Psychology Board and attainment of Established Certification Band 2.2 General Registration with the Psychology Board and maintenance of Established Certification Band 2.3 General Registration with the Psychology Board and maintenance of Established Certification Band 3.0 General Registration with the Psychology Board and attainment of Advanced Certification

1. We digress to observe that there is no apparent rationale to refer to "Band 1.0" and "Band 3.0" instead of simply "Band 1" and "Band 3". In fact, the use of ".0" might create the erroneous impression of different levels within the bands, as is the case with the several "Band 2" levels. In the New Award and in this decision, we will adopt "Band 1" and "Band 3".
2. The PSA sought to amend these provisions of the Proposed Award in a number of respects. It called for the table in the clause to be amended and relocated (a matter to which we will return), and for cll 4.2.2 and 4.2.3 of the Proposed Award to be replaced with the following: "4.2.2 A School Psychologist with a of [sic] General Registration with the Psychology Board will commence on Band 2.0. 4.2.3 A School Psychologist with General Registration with the Psychology Board and at least two years', but less than three years', relevant experience in a psychologist role with General Registration will commence on Band 2.1. 4.2.4 A School Psychologist with General Registration with the Psychology Board and at least three years', but less than four years', relevant experience in a psychologist role with General Registration will commence on Band 2.2. 4.2.5 A School Psychologist with General Registration with the Psychology Broad and at least four years' relevant experience in a psychologist role with General Registration will commence on Band 2.3. 4.2.6 A School Psychologist with General Registration with the Psychology Board and at least five years' relevant experience in a psychologist role with General Registration will commence on Band 3. 4.2.7 The Department must notify all prospective employees who apply for a School Psychologist role the matters set out in paragraph 4.2.1 to 4.2.6. 4.2.8 A prospective employee will not be eligible for a commencing salary under to [sic] clauses 4.2.3 to 4.2.6 unless they, upon being notified by the Department pursuant to clause 4.2.7, provide to the Department evidence of relevant experience in a psychologist role prior to acceptance of employment."
3. The PSA further proposed that the New Award contain the following definition (in cl 3): "'relevant experience in a psychologist role' means all experience in a psychologist role that is relevant to the role of school psychologist, and is not limited to experience as a psychologist in a school setting"
4. The difference between the parties comes down to the circumstances in which a school psychologist can commence employment with the Department at a level in the salary structure above Band 2.0. The Proposed Award assumes that a school psychologist with General Registration with the Psychology Board of Australia will commence on Band 2.0, unless the Secretary "approves an offer of a higher commencing salary within the Band 2 range" in accordance with cl 4.2.2. The PSA's proposed amendments would require appointment in the salary structure, up to and including Band 3, based on the school psychologist's years of "relevant experience in a psychologist role".
5. The question as to whether the New Award ought to allow for commencement of employment at Band 3 raises different issues to those relating to Bands 2.1, 2.2 and 2.3. We will address them separately.

The School Counselling Service Salary Determination Procedure

1. Clare Archibald, the Acting Executive Director, Employees Relations for the Department, gave the following evidence: [2] "58. During the course of the negotiations with the Association in 2022 for a new Crown Employees (Psychologists in Schools) Award, the Department advised that it would develop a process to update the matrix to use for its internal decision making about the pre-employment starting salary for school psychologists. A draft document, the School Counselling Service Salary Determination Procedure for School Psychologists ('the Procedure') was developed. This reflects the process that the Department uses with school counsellors where it also applies a pre-employment salary determination process for school counsellors. This process is known as the Counselling Service Salary Determination Procedure for School Counsellors 59. The Procedure is an internal working document by the Department used in the recruitment process to provide hiring managers with a consistent process and set of principles to determine the relevant commencing salary of a candidate who has been successful in a merit-based assessment for a school psychologist role and to whom the Department proposes to make an offer of employment. 60. The relevant starting salary is determined by considering a candidate's level of registration with the Psychology Board of Australia and their years of relevant experience in a psychologist role which is then aligned to the relevant salary band. The Procedure also makes provision for a hiring manager to make a recommendation for a higher starting salary based on written evidence provided by the applicant. The hiring manager is required to complete a 'School Psychologist Commencing Salary Determination Form' which must be endorsed by the relevant Director or Executive Director. …The Department has advised the Association that this is the process it will apply for school psychologists. 61. The Procedure is intended to be the primary document to be used to determine the starting salary that will be made in the offer of employment for new school psychologists. 62. The Procedure provides an opportunity for a candidate, at the time they are offered employment with the Department, to request consideration for a higher starting salary based on relevant information that they may wish to provide to the Department. The Department will then consider that information and responds to the prospective employee's request and advise them of their decision. This means that the candidate is advised in advance of the starting salary that will be made in the offer of employment and can then make a decision as to whether or not to accept the employment offer, with full information about the starting salary based on the Department's consideration of relevant information in identifying the starting salary that will accompany the offer of employment."
2. The School Counselling Service Salary Determination Procedure ("Salary Determination Procedure") contains a table titled "Table 1 - Salary structure for School Psychologists". [3] That table is reproduced in Ms Archibald's affidavit, and is said by her to outline "the process for determining a school psychologist's salary on appointment". [4]
3. Appendix A to the Salary Determination Procedure comprises a document titled "Hiring Manager Salary Determination Decision Tree for School Psychologists". [5] The contents of "Table 1" and the "decision tree" are generally consistent with and are broadly reflected in the PSA's proposed cll 4.2.2 to 4.2.5.
4. In the PSA's Closing Submissions the union submitted: "48. Critically, if the written evidence supplied by the prospective employee satisfies the hiring manager (and the Student Wellbeing recruitment team during the subsequent review) that the prospective employee has the requisite number of years of 'relevant experience', then there is nothing in the language of the Salary Determination Procedure which permits the Secretary to offer starting salary at a lower band than the one shown in the Decision Tree. 49. Clause 4.2.2 of the award sought by the Secretary is at odds with the Salary Determination Procedure as it prescribes that all school psychologists with General Registration will commence at Band 2.0, subject to the qualification that the Secretary may approve a higher starting salary based on 'evidence of relevant experience as a psychologist being provided prior to acceptance of employment'. 50. The reference to 'may' in clause 4.2.2 in effect makes compliance with the Salary Determination Procedure optional for the Secretary, in the sense that even if the evidence supplied by the prospective employee satisfies the hiring manager that the employee has 'relevant experience' it is open to the Secretary to offer a starting salary at a lower band than the one shown in the Decision Tree. In other words, the language of clause 4.2.2 in effect gives the Secretary an unfettered discretion to depart from the procedure set out in the Salary Determination Procedure. Only the Secretary would benefit from having such unfettered discretion to ignore the Salary Determination procedure. 51. The practical effect of the Secretary exercising that discretion may be significant. The existence of the discretion would mean that there would not be any impediment to the Secretary awarding employees with identical 'relevant experience' different salaries with no avenue of review. An award provision that confers on an employer the right to unilaterally vary fundamental conditions of employment (which is the effect of the Secretary's clause 4.2.2) ipso facto does not set fair or reasonable employment conditions. 52. By contrast, clauses 4.2.2 to 4.2.5 in Annexure A sought by the PSA mirror the requirements of the Salary Determination Procedure set out in paragraphs 46(a) to (c) above. Those provisions reflect the current practice, which is also the practice that both parties agree ought to be followed going forward. Accordingly, the PSA submits that (unlike the Secretary's position) its position strikes a proper and proportionate balance between the parties' interests. 53. Importantly, the fact that the Salary Determination Procedure uses prescriptive language does not in itself adequately protect the interests of the Secretary's employees, given that there is no impediment to the Secretary simply amending the Salary Determination Procedure. Clauses 4.2.2 to 4.2.5 in Annexure A are necessary to ensure that the Secretary cannot avoid the dictates of the Salary Determination Procedure by amending the document and, as such, those provisions are necessary to strike a proper and proportionate balance between the interests of the Secretary and its employees." (Emphasis in original, footnotes omitted)
5. In a document titled "Outline of Final Submissions by Secretary, Department of Education in Reply" dated 16 May 2023 ("Secretary's Closing Submissions in Reply"), the Secretary submitted: "13. The Secretary's proposal reflects the current practice and conditions of employment for school psychologists. 14. The use of the word 'may' in the Secretary's proposed Award is not meant to and does not provide the Secretary with a discretion not to recognise previous service as a psychologist where such service has been recognised pursuant to the Procedure. Where such service is recognised pursuant to the Procedure it 'will' be recognised by the Secretary for the calculation of the commencing salary band for new employees." (Footnote omitted)
6. It is difficult to reconcile the Secretary's submissions with the language of cl 4.2.2 of the Proposed Award. The use of the word "may" in legislation or an instrument indicates that the power may be exercised, or not, at discretion: s 9(1) of the Interpretation Act 1987. To suggest, in effect, that in the context of the Proposed Award "may" is to be read as "will" is to invite confusion and future conflict.
7. It is also relevant that the Proposed Award makes no mention of the Salary Determination Procedure. Nothing in the Proposed Award obliges the Secretary to recognise, for the purposes of determining a school psychologist's commencing salary, "service [which] is recognised pursuant to the Procedure".
8. Further, although Ms Archibald deposed that the Salary Determination Procedure was "intended to be the primary document to be used to determine the starting salary" for school psychologists, she described it both as a "draft" and an "internal working document". It is on its face a draft document - the version in evidence bears a "draft" watermark. There is nothing in the evidence to suggest that the Salary Determination Procedure is in any relevant way binding on officers of the Department. There is consequently a legitimate basis on which the PSA might hold concerns that the document may be subject to variations in the future.
9. At [13]-[15] above, we referred to the acceptance by the Full Bench of the parties' proposal to bifurcate the hearing. The PSA submitted that if the Full Bench found in its favour in respect of, inter alia, its proposed cll 4.2.2 to 4.2.5, a "Stage 2" hearing would not be required as "that would not give rise to any increase in employee-related costs as the PSA is seeking merely to preserve the status quo (that is, the current practice)". [6]
10. The Secretary disagreed with that submission. He submitted that the PSA's proposed amendments (in this and in other respects) "depart from current practice and lead to a potential increase in employee related [sic] costs". [7] There is some tension between this submission and the evidence and submissions of the Secretary that the Salary Determination Procedure currently applies and would continue to apply to school psychologists commencing employment with the Department.
11. Having regard to the totality of the evidence, we consider that the structure anticipated by the PSA's proposed cll 4.2.2 to 4.2.5 better reflects what the Secretary submits is his intention as to the way in which cl 4.2.2 of the Proposed Award is to be read and operate. We have determined, subject to what follows, that this is the structure which ought to be reflected in the New Award.

"Relevant experience in a psychologist role"

1. The Salary Determination Procedure states: [8] "When making an offer of employment to the school psychologist, it is incumbent on the Hiring Manager to ensure the school psychologist is aware of the remuneration structure outlined in Table 1, and discusses with the school psychologist if they feel they have relevant professional psychology experience to be considered prior to finalising the commencing salary." (Emphasis in original)
2. The "Table 1" referred to in this extract is that to which we referred at [35] above.
3. The reference in the Salary Determination Procedure to a candidate's "relevant professional psychology experience" is significant. The question of what constituted "relevant experience" attracted considerable attention during the hearing, in large part due to the position then taken by the PSA. It is not necessary to traverse all of that evidence. It suffices to say that the evidence led overwhelmingly to the conclusion that not all experience as a psychologist will necessarily equip a person with the knowledge and skills necessary to work as a school psychologist. [9]
4. To a point, this is reflected in the use by the PSA of the phrase "relevant experience in a psychologist role" in its proposed cll 4.2.3 to 4.2.5, and the proposed definition of that phrase. In isolation, the proposed definition is consistent with the evidence.
5. However, a matter on which the PSA's proposed amendments is silent is the question of who determines "relevance". Katrina Ambler, an Industrial Officer for the PSA, deposed that it would be a matter for the Department make that determination. [10] There was no suggestion from the PSA to the contrary.
6. In the Secretary's Closing Submissions in Reply he contended: "19. Given the above evidence and the rationale for the Secretary's position and the multiple factors that may go to assess a prospective employee's experience, it is appropriate that it is the Secretary (through his Officers) that [sic] determines whether an employee commences on Bands 2.0 or 2.1 or 2.2 or 2.3 consistent with the current approach. 20. The approach of the Secretary in the proposed Award is also consistent with what occurs in respect to the commencing salaries for fully registered psychologists in the Crown (Psychologists) Award and as such what is proposed by the Secretary cannot be unfair by definition since it is contained in an award of this Commission."
7. We assume that these submissions are intended to refer to the Crown Employees (Psychologists) Award, to which Counsel for the Secretary drew our attention. He referred in particular to Table 3 in Part B of that Award, which provides that a psychologist who has met the criteria for full registration "will commence at Year 3 of the scale for Psychologist, unless the Division Head otherwise approves a higher commencing salary".
8. It is well-established that awards of the Commission are presumed to set fair and reasonable terms and conditions of employment: Police and Paramedics at [32(2)]. However, the terms and conditions of employment of an award are presumptively fair and reasonable in the context of the employees to whom it applies. It does not follow that an assumption can be made that it "cannot be unfair" for the terms of an award covering a particular cohort of employees to be applied to another, albeit similar, cohort.
9. We have determined that it is appropriate that the New Award define what is meant by "relevant experience". The New Award should, though, make it clear that the determination as to what is or is not "relevant" experience is a matter within the Department's discretion. Without limitation, we would expect this to comprehend matters such as the nature of the work previously performed by the candidate, where it was performed and the recency of the experience.

Band 3 of the salary structure

1. The Proposed Award does not contemplate a school psychologist commencing employment with the Department at Band 3 without attainment of Advanced Certification. This is a level of the salary structure into which a school psychologist may progress on attaining Advanced Certification under the Professional Practice Framework. The PSA contended that Advanced Certification should not be a requirement for progression to Band 3. Consistent with that position, the PSA's proposed cl 4.2.6 would require a school psychologist with at least five years' relevant experience as a psychologist to commence at Band 3.
2. We address the question of salary progression in respect of Band 3 at [75]-[93] below. For the reasons set out in those passages, we accept the Secretary's position that progression to Band 3 should be subject to the attainment of Advanced Certification and not simply years of experience or service. Consistent with those reasons, we do not accept that the New Award ought to contain the PSA's proposed cl 4.2.6.

The PSA's proposed cll 4.2.7 and 4.2.8

1. The PSA submitted that cl 4.2.7 "merely incorporates into the award the obligation contained in the Salary Determination Procedure" [11] and that in drafting cl 4.2.8 it had "largely adopted the language that was used by the Secretary in drafting clause 4.2.2". [12]
2. The Secretary opposed the inclusion of the provisions. In the Secretary's Closing Submissions in Reply he submitted: "22. There is no need to include the PSA's proposed clause 4.2.7. Firstly, the information would need to be provided to all prospective employees rather than those candidates who are offered employment by the Secretary and is a departure from current practice. 23. Secondly, the provision of information to prospective employees is governed by the Procedure and there is no basis to assume that the Secretary will not continue to provide prospective employees with the information as required in the Procedure. 24. The proposed clause 4.2.8 of the PSA is again a departure from the current practice. The current practice is that the Secretary (through his officers) makes the decision about the commencing salary band based upon their opinion of 'relevant experience'. The PSA clause does not expressly recognise that it is the Secretary (through his officers) who make this decision. It is also unclear as to whether the proposed clause 4.2.8 will only apply to employees employed after the commencement of the Award. …"
3. We accept that the PSA's proposed cl 4.2.7 is a departure from current practice. In this regard, we draw attention to the extract from the Salary Determination Procedure reproduced at [45] above. We also accept that to impose an obligation on the Department to "notify all prospective employees who apply for a School Psychologist role" of the relevant matters is unwarranted. Any obligation to provide information to applicants for employment should be limited to those to whom an offer of employment is to be made.
4. However, consistent with the observations that we have already made, we do not consider that it is sufficient for the Secretary effectively to ask the Commission to accept an assurance that he will apply and continue to abide by the terms of the (draft) Salary Determination Procedure. To the extent that the Secretary asks the Commission to accept his assurances as to how the Department will conduct itself in future, there is no reason why he should not be held to them in the terms of the New Award.
5. In respect of the Secretary's opposition to the inclusion of the PSA's proposed cl 4.2.8, we have already addressed his concern that it will be for him, through his officers, to assess a candidate's "relevant experience" and to decide at what level in the salary structure the candidate should commence employment. As the New Award will be clear in that respect, nothing in the proposed cl 4.2.8 would fetter the Secretary's discretion in this regard.
6. The effect of the PSA's proposed cll 4.2.7 and 4.2.8 is that a candidate must be made aware of the relevant provisions of the award, and if they seek to commence at a level above Band 2.0 it will be for them to produce the information to satisfy the Secretary, through his officers, that commencement at a higher level is appropriate. Provided that this process is confined to successful candidates and does not fetter the Secretary's discretion in his assessment as to the candidate's "relevant experience", we consider that the inclusion of a provision addressing the matters contemplated by the PSA's proposed cll 4.2.7 and 4.2.8 is desirable. They lend clarity and certainty to the process by which a school psychologist's commencing salary/band is to be determined, and how a prospective employee will be made aware of that process.

Salary progression

1. The Proposed Award provides as follows: "Salary Progression and Maintenance 4.5 Salary progression from Band 1.0 to Band 2.0 will take effect from the first full pay period after the completion of a minimum of 12 months service, attainment of General Registration with the Psychology Board and subject to the satisfactory performance of their duties via an annual performance and development plan. 4.5.1. For those School Psychologists who have 12 months of service at Band 1 but do not have General Registration with the Psychology Board, progression from Band 1.0 to Band 2.0 will take effect from the first pay period after the School Psychologist attains General Registration and subject to the satisfactory performance of their duties via an Annual Performance and Development Plan including goals consistent with working towards the attainment of Established Certification. 4.6 Salary progression from Band 2.0 to 2.1 will take effect from the first full pay period after the completion of 24 months service at Band 2.0 for those School Psychologists who continue to meet the requirements of General Registration with the Psychology Board and subject to the satisfactory performance of their duties via an Annual Performance and Development Plan including goals consistent with the attainment of Established Certification. 4.7 Salary progression from Band 2.1 to 2.2 and from 2.2 to 2.3 will take effect from the first full pay period after the completion of 12 months service for those School Psychologists who continue to meet the requirements of General Registration with the Psychology Board and subject to the satisfactory performance of their duties via an Annual Performance and Development Plan including goals consistent with the maintenance of Established Certification. 4.8 Salary progression from Band 2.3 to Band 3.0 will take effect from the first full pay period after confirmation of evidence at the Advanced Certification and General Registration by the Psychology Board for School Psychologists who have been remunerated at Band 2.3 for a minimum of 12 months service and subject to satisfactory performance of duties via the Annual Performance and Development Plan including goals consistent with the maintenance of Established Certification. For those School Psychologists who have Advanced Certification and General Registration with the Psychology Board but do not have 12 months service at Band 2.3, progression from Band 2.3 to Band 3.0 will, subject to satisfactory performance of duties via the Annual Performance and Development Plan, take effect from the first full pay period after the completion of 12 months service at Band 2.3."
2. The PSA sought two variations to these provisions. The first, which the PSA described as a "single issue of drafting", [13] would require that in each clause the words after "Annual Performance and Development Plan" be placed in parentheses and the word "including" be replaced with "which may contain". Consequently, each clause would relevantly read: "…subject to the satisfactory performance of their duties via an Annual Performance and Development Plan (which may contain goals consistent with the attainment [or maintenance] of Established Certification)."
3. The second change is to remove the requirement of Advanced Certification for progression from Band 2.3 to Band 3. The PSA sought that cl 4.8 be amended to read: "4.8 Salary progression from Band 2.3 to Band 3.0 will take effect from the first full pay period after the completion of 12 months service at Band 2.3 for those School Psychologists who continue to meet the requirements of General Registration with the Psychology Board and subject to satisfactory performance of duties via the Annual Performance and Development Plan (which may contain goals consistent with the maintenance of Established Certification)."

The drafting issue

1. This issue arose from a concern held by the PSA with the terms of an earlier draft of the award sought by the Secretary, that the attainment or maintenance of Established Certification was an additional requirement for salary progression. During the hearing, the Secretary clarified that this was not his intention. Rather, the intention was to confirm that the "Annual Performance and Development Plan", as that term is defined in the Proposed Award ("Annual PDP"), would be "in line with" the attainment or maintenance of Established Certification. [14]
2. The PSA submitted that the changes it sought should be made for two reasons. First, the identification of goals that are to be included in an Annual PDP is a matter that should be left to the relevant school psychologist and those who are directly responsible for managing and supervising their performance. The PSA contended that it would be inappropriate for the Commission to stipulate what goals should be included in an Annual PDP, as to do so would amount to a substantial interference with the management prerogatives of the Secretary.
3. Second, the use of the parentheses and the expression "which may contain" make it clearer that the reference to Establish Certification qualifies or relates to the Annual PDP and does not import a separate additional requirement for salary progression.
4. The Secretary opposed the variations sought by the PSA. On the first of the PSA's contentions, the Secretary submitted that the language he proposed does not stipulate goals but simply provides that such goals are to be consistent with either the attainment or maintenance of Established Certification. Further, to the extent that the Commission considered that the language might impinge on the Secretary's management prerogatives, it is his prerogative and he seeks the making of an award in the terms of the Proposed Award. On the second of the PSA's contentions, the Secretary submitted that the language of the provisions in the Proposed Award was sufficiently clear.
5. More generally in opposing the PSA's variations, the Secretary stressed the significance of the Professional Practice Framework. Janet Rowe, the Leader Psychology Practice for the Department, deposed that Professional Practice Framework "provides all members of the counselling service with a set of behavioural descriptors that reflects a continuum of professional growth in psychological skills across three levels: Foundation, Established and Advanced" [15] and that the descriptors "are detailed and measurable and highlight key competencies emphasising an evidence-based approach across the four domains". [16]
6. In the Secretary's Closing Submissions he submitted: "47. The introduction of the Professional Practice Framework has provided a set of relevant standards that has created a unifying framework, providing both school counsellors and school psychologists with the same competencies. Without the Professional Practice Framework, the Department would not have a set of standards that are relevant for the development of psychological skills of the counselling service. 48. The Professional Practice Framework provides a frame of reference for the annual goal-setting in the Department's mandatory Performance and Development Plan and a mechanism for identifying areas staff wish to develop. That is the Professional Practice Framework is not an additional impediment to progression but part of the Annual Performance and Development Plan which includes goals from the Framework consistent with the level of certification."
7. At first glance, there may seem to be little substantive difference between the use of the word "including" as opposed to "which may contain". The latter phrase is facilitative and would not preclude the Secretary including goals consistent with working towards, attainment of or maintenance of Established Certification (as the case may be). However, having regard to Ms Rowe's evidence and the Secretary's submissions, we accept that the New Award ought to be more directive that the Annual PDP will include such goals.
8. Further, to the extent that the phrase "which may contain" allows the possibility that such goals need not be included, it raises the possibility of future disagreement as to the terms of an individual's Annual PDP.
9. For these reasons, we do not agree that the change sought by the PSA in this regard ought to be made.
10. We accept the PSA submissions that the addition of the parentheses around the relevant phrases would add clarity and certainty as to the intention of the award.

Progression to Band 3

1. The PSA's proposed cl 4.8 is premised on its opposition to Advanced Certification being a condition for progression to (and indeed, appointment on commencement at) Band 3. It advances three arguments in this respect: 1. the instruments that govern the Advanced Certification process, namely the Professional Practice Framework and the Professional Practice Framework Guide to Advanced Certification ("Advanced Certification Guide"), are under the Secretary's control. It is open to the Secretary to make changes to those documents (subject to consultation pursuant to cl 8.2 of the Proposed Award) that could make it more difficult, or even impossible, to obtain Advanced Certification; 2. the requirement to obtain Advanced Certification imposes an unreasonable additional burden on school psychologists; and 3. the requirement would be inimical to the public interest in ensuring that the Secretary succeeds in recruiting suitably qualified psychologists with relevant experience.
2. Consistent with this position, the PSA proposed that the definition of "Advanced Certification" in the Proposed Award be deleted on the basis that if appointment or progression to Band 3 was not subject to that requirement, the definition was unnecessary.
3. In the alternative, the PSA submitted that the Commission should incorporate the Professional Practice Framework and the Advanced Certification Guide into the New Award. This would ensure that any changes to those documents could only be made by way of an award variation, and not unilaterally by the Secretary.
4. We are not persuaded that the requirement for Advanced Certification for progression to Band 3 is either an "additional" one, or would be unduly burdensome.
5. Ms Archibald deposed that the requirement has been in place since 17 December 2020. Marcella Kabala, a school psychologist in the Department called to give evidence by the PSA, confirmed her understanding that attainment of Advanced Certification is currently a requirement for progression from Band 2.3 to Band 3.
6. As to how burdensome the requirement is, Ms Ambler deposed: [17] "64. In brief, the process of obtaining Advice Certification involves: a. submission of a document that evidences the attainment of Advanced Capabilities listed in the PPF; b. independent review of the candidate's practice by independent observers (who are generally SPEs); c. Submission of observer's reports; d. Assessment of the application by a panel."
7. It is relevant that the process of obtaining Advanced Certification is voluntary. Further, the evidence led by the PSA as to the burden that the process would impose on staff is not particularly extensive or compelling. It does not rise much higher than opinion and speculation.
8. Erin Kremer, a school psychologist in the Department called to give evidence by the PSA, stated: [18] "58. Further, the Department's requirement that SPs must attain Advanced Certification under the PPF in order to move to band 3.0 would impose an additional burden on the current workload of: a. the SPs who wish to attain the Advanced Certification; and b. the SPEs who would have to observe the SPs [sic] performance and prepare observation reports. 59. To my observation, SPs already have a full workload. SPs are also not provided with administrative support. Accordingly, I am concerned that some of the work associated with obtaining the Advanced Certification may need to be done by SPs and SPEs out of work hours, for which they will not be paid."
9. Ms Kabala referred to the requirement that a supervisor, who may be the SPE, must prepare detailed observation reports of the school psychologist. She stated that she would "struggle to see how an SPE would be able to perform these additional duties in a timely manner, particularly if they are undertaking a psychology caseload". [19]
10. Belinda McGaw, a school psychologist in the Department called to give evidence by the PSA, expressed the view that it would be "reasonable to expect that SPEs would have difficulty taking on the duties associated with gaining Advanced Certification if they are already at capacity supervising provisionally registered psychologists". [20] This opinion must be viewed in the context of Ms McGaw admitting that she does not know the full extent of what is involved in a SPE supervising a school psychologist to gain Advanced Certification.
11. Pauline Kotselas is the Leader Mental Health Services, Student Support and Specialist Programs Directorate, in the Improvement and Education Reform Group portfolio for the Department. She was called to give evidence by the Secretary. She accepted that the progression to Advanced Certification does involve additional work for staff. She stated, however, that the process is voluntary and once the certification is obtained "the yearly maintenance process is not onerous". [21] She also gave evidence that strategies are in place to address situations where a school psychologist is seeking a principal supervisor and the relevant SPE does not have the capacity to take on that supervision.
12. As to the requirement for Advanced Certification, Ms Rowe referred to it as providing "the opportunity for the acknowledgement of exemplary staff" [22] and to the ability for such staff "to access a higher salary level and also to provide a clear, structured and appropriate mechanism for them to do so". [23] Ms Kotselas referred to the Advanced Certification Guide as being "a guide for members of the counselling service who are considering undertaking the voluntary process to demonstrate and importantly, to be recognised for exemplary professional practice and leadership". [24]
13. The Secretary submitted that the PSA's proposed cl 4.8 had the effect of treating Band 3 as a Band 2.4, capable of being achieved through nothing more than satisfactory service for 12 months at the Band 2.3 level. In the Secretary's Closing Submissions he contended: "37. Band 3.0 from its inception was seen by the Secretary as something more than an additional Band 2.4. given the requirement of advanced certification and the demonstrated abilities that are acknowledged in the advanced certification process. It is considerably more than an additional year of service. The concept of Band 3.0 recognises excellence in practice and allows employees to be rewarded without seeking a promotional position. … 39. Similarly, Band 3.0 should not be available to new employees who have not been assessed by the Secretary as meeting advanced certification."
14. We accept these submissions. On all of the evidence, there is a demonstrated rationale for the Department to have introduced the concept of Advanced Certification. The approach for which the PSA contends, which essentially calls for a year-on-year progression through the salary bands (albeit subject to performance), would undermine that rationale. One may wonder what incentive a school psychologist would have to seek Advanced Certification, if not to secure progression to Band 3.
15. We also have regard to the fact that under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022, Advanced Certification under the Professional Practice Framework is a condition for school counsellors to progress from Band 2.3 to Band 3.
16. For these reasons, we are not persuaded that cl 4.8 of the Proposed Award should be amended in the form suggested by the PSA. It follows that we do not accept that the definition of "Advanced Certification" in cl 3 of the Proposed Award ought to be deleted.
17. We are also not persuaded that the Professional Practice Framework and the Advanced Certification Guide ought to be incorporated into the New Award. The concerns expressed by the PSA as to the possibility of the Secretary seeking to unilaterally amend these documents are in part addressed by clause 8 of the Proposed Award, which provides as follows: "8. Professional Practice Framework 8.1 The Professional Practice Framework applies to all [E]mployees. 8.2 Any changes to the existing Professional Practice Framework or the development of a new framework will be the subject of consultation between the parties."
18. This clause makes it clear that no changes could be introduced by the Secretary without first consulting with the PSA. If the Secretary sought to introduce changes without consulting the PSA appropriately, particularly if they might have the effect of significantly altering the purpose and effect of the New Award, there are avenues available to the PSA under the Act to seek the Commission's assistance.
19. Further, in light of all of the evidence, particularly that which describes the process by which the Professional Practice Framework came to be created and implemented, there is force to the Secretary's submission that "it beggars belief that the Secretary would create a Band 3.0 position and then make it impossible for school psychologists to obtain this Band". [25]

Clause 4.10

1. Clause 4.10 of the Proposed Award is in these terms: "Where delays to the completion of the Annual Performance and Development Plan process occurs, subject to compliance with all other requirements of clauses 4.5 to 4.8, a School Psychologist will be entitled to progress to the subsequent salary band effective from the original increment date, including backpay as necessary, on confirmation of satisfactory performance."
2. The PSA took no issue with this provision, but contended that "there should also be a positive obligation on the parties to carry out the annual PDP process in a timely manner". It proposed that an opening sentence be inserted into the clause to read: "The Annual Performance and Development process must be carried out in a timely manner."
3. The Secretary opposed this amendment. He contended that "[t]he phrase 'timely manner' is an inexact phrase and is not a sound basis to impose an obligation on either the Secretary and/or an employee which could lead to either the Secretary and/or an employee being faced with proceedings and potentially the imposition of a penalty". [26]
4. It is, in our view, self-evident that in the ordinary course performance and development processes should be conducted in a timely manner. However, it is one thing to recognise this as an incident of sound workplace management, and another to impose it as an award obligation.
5. To the extent that a provision of an award is intended to impose a "positive obligation" on a party, it must be clear on its terms as to the nature of that obligation. The parties must not only be able to identify with certainty what they are required to do, but be able to comply. A requirement that something must be done "in a timely manner" is not only inexact and imprecise, but potentially ambulatory.
6. The PSA led limited evidence as to delays in the finalisation of Annual PDPs. Significantly, none of the PSA's witnesses stated that their progression through the salary levels had been delayed as a result. To the contrary, Ms Kabala deposed that she progressed despite not having completed her PDP. Ms Kotselas stated that "progression through the salary levels is managed through the payroll system following the employee satisfying the relevant service requirements unless there is an identified performance concern with the employee". [27] Under cross-examination she accepted that there is presently "a process of automatic progression that occurs through the payroll system", and that there were no plans to change that system. [28] It is difficult on the evidence to see how a delay in the completion of the Annual PDP would delay progression, unless performance concerns have been identified.
7. We are not persuaded to make the amendment to cl 4.10 of the Proposed Award sought by the PSA.
8. That said, whether or not completion of the Annual PDP would impede progression through the salary bands, and noting the terms of cl 4.10 of the Proposed Award, there is some evidence that there have been delays in Annual PDPs being finalised. Consistent with our observations at [97] above, we consider that this might be something that could be addressed through the New Award. We do not propose at this stage to suggest, much less determine, the form in which the New Award might do so. As these proceedings will be listed for further directions, for the reasons set out at [105]-[107] below, this is a matter which the Full Bench will canvass with the parties at that time.

Table in Clause 4 of the Proposed Award

1. The Proposed Award includes a table between cll 4.2 and 4.3 (see [28] above). The PSA proposed that it be relocated to appear after cl 4.8 in its draft of the provision. It further proposed that the description against each band be amended. For instance, in respect of Band 2.0, it sought to have the words "General Registration with the Psychology Board and working towards Established Certification" replaced with "General Registration with the Psychology Board and the Annual Performance and Development Plan may contain goals consistent with working towards Established Certification" (our emphasis). Similar and consistent amendments were sought in respect of Bands 2.1, 2.2, 2.3 and 3.
2. In our view, the table should be removed completely. This is predominantly for the reason that it serves little purpose. To the extent that it identifies the several salary bands applicable to school psychologists, it replicates Table 1 in Part B of the Proposed Award, referenced at cl 4.1. It does not provide a meaningful delineation between the bands, most notably in respect of Bands 2.2 and 2.3 which contain identical language. In so far as the New Award sets the criteria to determine the band at which a school psychologist commences employment with the Department, and on which they progress through the salary bands, they are to be found in the terms of the New Award itself.

Conclusions

1. Having regard to the matters we have canvassed above, we have determined that the New Award should be in the terms of the Proposed Award, subject to the following: 1. in cl 3. Definitions, the New Award should contain the following definition: 'relevant experience in a psychologist role' means all experience in a psychologist role that is relevant to the role of school psychologist, as determined by the Secretary, or their delegate, in their sole discretion 1. cl 4.2.2 of the New Award should reflect, in large part, the terms sought by the PSA. However, to avoid confusion it should be made subject to the provisions which follow. It should read: 4.2.2 Unless clauses 4.2.3 to 4.2.5 apply, a School Psychologist with General Registration with the Psychology Board will commence employment with the Department on Band 2.0. 1. the table after cl 4.2.3 should be deleted; 2. the New Award should contain the PSA's proposed cll 4.2.3 to 4.2.5; 3. the New Award should contain the following provision: 4.2.6 When making an offer of employment to a prospective Employee, the Department must inform them of the terms of this clause 4 and give the prospective Employee an opportunity to put forward any information that they wish the Secretary to consider in determining whether the prospective Employee should commence employment on a band higher than Band 2.0. 1. parentheses should appear around the words "including goals consistent with working towards the attainment of Established Certification" in cl 4.5.1; 2. parentheses should appear around the words "including goals consistent with the attainment of Established Certification" in cl 4.6; 3. parentheses should appear around the words "including goals consistent with the maintenance of Established Certification" in cll 4.7 and 4.8; and 4. the reference to "employees" in cl 8.1 should read "Employees".

The need for a second stage hearing

1. As already stated, the Full Bench ordered that the hearing be bifurcated. In the event that there was any dispute as to whether the New Award would result in an increase in employee-related costs (taking into account any employee-related costs savings available to offset any such increase) in contravention of cll 6 or 6A of the Regulation, it would be deferred for determination in a second stage of the proceedings.
2. Given our determination, particularly at [104(4)] above, before making the New Award it is necessary to consider whether a second stage hearing is required. As noted at [42]-[43] we observed that the PSA contended that the insertion of its proposed cll 4.2.3 to 4.2.5 as they did not involve a departure from the current practice. The Secretary disagreed.
3. In the circumstances it is appropriate that the matter be listed for mention so that the parties can inform the Commission as to whether a "Stage 2" hearing is required. If so, directions can be made in anticipation of that hearing.

Order and direction

1. The Full Bench orders that matter number 2022/00119423 be dismissed.
2. Matter number 2021/00356548 will be listed for directions at a time and date to be advised.

Endnotes

1. Tcpt, p 113(35)-114(14)
2. Affidavit, Clare Jessica Archibald, 21 December 2021
3. Exhibit CJA 1 to the Affidavit, Clare Jessica Archibald, 21 December 2021 at p 109
4. Affidavit, Clare Jessica Archibald, 21 December 2021 at par 94
5. Exhibit CJA 1 to the Affidavit, Clare Jessica Archibald, 21 December 2021 at p 113
6. PSA's Closing Submissions at par 132
7. Secretary's Closing Submissions in Reply at par 52
8. Exhibit CJA 1 to the Affidavit, Clare Jessica Archibald, 21 December 2021 at p 110
9. Affidavit, Clare Jessica Archibald, 21 December 2021 at par 95; Tcpt, p 48(21-41) (Pauline Kotselas); Tcpt, p 99(22)-103(8) (Belinda McGaw);
10. Tcpt, p 128(34)-129(42) and p 130(36)-131(13)
11. PSA's Closing Submissions at par 59
12. ibid. at par 60
13. PSA's Closing Submissions at par 88
14. Tcpt, p 40(48)
15. Affidavit, Janet Elizabeth Rowe, 22 December 2022 at par 9
16. ibid. at par 10
17. Affidavit, Katrina Louise Ambler, 21 December 2022
18. Statement, Erin Talie Kremer, 21 December 2022
19. Statement, Marcella Kabala, 20 December 2022 at par 14
20. Statement, Belinda McGaw, 20 December 2022 at par 58
21. Affidavit, Pauline Kotselas, 15 February 2023 at par 34
22. Affidavit, Janet Elizabeth Rowe, 22 December 2022 at par 29
23. ibid. at par 21
24. Affidavit, Pauline Kotselas, 20 December 2022 at par 34
25. Secretary's Closing Submissions in Reply at par 37
26. ibid.at par 45
27. Affidavit, Pauline Kotselas, 15 February 2023 at par 13
28. Tcpt, p 51(15-20)

Amendments 01 September 2023 - Amended pursuant to cl 36.17 of the Uniform Civil Procedure Rules 2005 on the application of the parties to add the words 'without attainment of Advanced Certification' in Paragraph [54]. 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: 01 September 2023