Health and Research Employees' Association of New South Wales v Public Service Association of New South Wales

APPLICANT Mr J V Murphy of counsel Mr M Williamson, The Health and Research Employees' Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr G J Hatcher of counsel Mr T Craft, Health Administration Corporation

JUDGMENT: - 50 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President HUNGERFORD J SAMS DP McKENNA C Thursday, 29 November 2001 Matter No IRC 3376 of 1998 HEALTH AND COMMUNITY EMPLOYEES PSYCHOLOGISTS (STATE) AWARD

Application by The Health and Research Employees' Association of New South Wales for a new award to prescribe rates of pay and employment conditions for psychologists. DECISION OF THE COMMISSION [2001] NSWIRComm 302

1 These proceedings were commenced by way of an application filed by The Health and Research Employees' Association of New South Wales for a new award to cover psychologists employed by the respondent Health Administration Corporation in the New South Wales public health system. The application was filed on 25 June 1998 and, after certain interlocutory proceedings and extensive discussions between the parties, it was amended on 18 May 2000 and the hearing proceeded accordingly; as a result of matters arising during the hearing the applicant further amended its claim on 4 May 2001 to the form finally considered. The claim was opposed in its entirety by the respondent employer.

2 The primary purpose of the award sought was to restructure the classifications of the psychologist grades with resultant significant salary increases plus student supervision and managerial allowances. The application sought also to provide for a reconstituted classification Grading Committee, to introduce new arrangements in respect of private practice rights and to increase the quantum of training, education and conference leave. Other conditions of employment, as presently regulated by the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award [1991] 265 NSWIG 1430, were to continue unaltered.

Background to proceedings 3 The award application had its genesis in protracted demarcation proceedings from 1994 to 1998 in which the rights to the industrial representation of public sector psychologists was claimed by both the Public Service Association of New South Wales (as it was then known) and the applicant, to the exclusion of the other. That litigation before the Commission, both at first instance and on appeal, eventually resulted in the transfer of industrial coverage of psychologists, by consent, from the Public Service Association to the applicant organisation: see for example Public Service Association of New South Wales v Health and Research Employees' Association of New South Wales (1996) 92 IR 122 and Health and Research Employees' Association of New South Wales v Public Service Association of New South Wales (1997) 92 IR 158. As a consequence of the demarcation arrangements, a consent award was made by Wright J, President on 12 October 1998, entitled the Health Professional and Medical Salaries (State) Award [1999] 312 NSWIG 516, regulating the salaries of psychologists as well as those of other health professionals.

4 Further proceedings before the President in early 1999 involved a question as to whether the "no extra claims" provision in the said award prevented the applicant having the present application heard and determined before the expiration of the award on 31 December 1999 when the "no extra claims" commitment ceased. His Honour answered the question by ruling that the commitment did not operate so as to prevent the present claims being dealt with. The respondent then challenged the ruling on appeal but ultimately the award expired before the appeal was determined, thus enabling the claims to go forward and be heard.

The present proceedings 5 On 6 August 1999, the President made directions with respect to the filing of evidence in this matter. Counsel for both parties acknowledged that the claims raised special case considerations to require processing through the Special Case principle of the State Wage Case 1999 (1999) 88 IR 363 at p 377 (see to a similar effect the State Wage Case 2000 (2000) 97 IR 93 at pp 120-121 and now the State Wage Case 2001 (2001) 104 IR 438 at p 480).

6 The matter was listed in February 2000 to further prepare it for hearing and at which time Mr J V Murphy, counsel for the applicant, sought leave to amend the application and to have it stood over for further consideration as to any additional material which might be required in light of the amendment. Counsel advised also that a general or omnibus application for a new award had been filed for various classifications, including psychologists, in the health industry (Matter No IRC 6290 of 1999). On 19 May 2000, however, counsel informed the Commission that the claims relating to psychologists in the omnibus award application would be withdrawn as the applicant was content to rely on the present application to process its claims on behalf of psychologists. His Honour granted leave to amend the omnibus application in the terms sought and issued further directions for the filing of evidence in the present matter.

7 On 4 August 2000, Mr Murphy and Mr G J Hatcher of counsel, for the respondent, advised that all the evidentiary material had been filed and 10 days should be set down to hear the evidence with two days for submissions before the Full Bench. However, his Honour noted that "the matter comes within Principle 10 of the State Wage Case principles and the matter will therefore be dealt with on the basis that the President of the Commission will have to consider whether the matter is dealt with by a single member or by a Full Bench". In the result, the matter was before the Full Bench on 25 August 2000 for programming. Arrangements were then made for the evidence to be heard on delegation by Sams DP during February and March 2001 and for the Full Bench to hear the submissions on 28 and 29 March 2001. The matter so proceeded. The parties were also granted leave to file further written submissions and, in the case of the applicant, to file an amended claim. The last of the relevant documentation was filed on 4 May 2001.

Current salaries and classification structure 8 There are in excess of 900 psychologists employed throughout the public health system in the State, of whom over 70 per cent are women. Many are employed on a part-time basis and some others are engaged also in private practice.

9 Historically, the salary rates for public sector psychologists have been regulated by agreements or determinations made between the parties themselves. The first such agreement was made in 1953. That agreement, and subsequent salary adjustments up to 1982, maintained an identifiable nexus with the salaries of teachers in schools in the public education system. In 1982 the nexus was broken when psychologists received salary increases in line with movements in general public sector salaries and they have continued to receive adjustments from both State Wage Cases and from general movements in public sector rates. As indicated earlier, the current salaries for psychologists are prescribed by the Health Professional and Medical Salaries (State) Award and other conditions of employment are governed by the terms of the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award. Both those awards provide salaries and employment conditions for a wide range of public hospital professionals, including aboriginal health workers, audiologists, biomedical engineers, medical officers, counsellors, dental officers, dental assistants and technicians, therapists, dieticians, food inspectors, hospital scientists, librarians, medical superintendents, physiotherapists, speech pathologists and social workers.

10 At the present time, psychologists in the public sector commence on a nine-year incremental salary structure with two further annual allowances available thereafter. The annual commencement salary is $34,044, rising to $50,401 in the 9th year. The two allowances, in the 10th and 11th years, result in total annual salaries of $52,933 and $55,465 respectively but depend upon the respondent as the employer being satisfied by the work performed and the results achieved, the aptitude, abilities and qualities of mind that payment of the allowances is warranted. Appointment to this basic scale for the classification of Psychologist requires a three-year degree, primarily in arts or science with a major in psychology, and a further year to achieve honours in psychology or its equivalent. Those qualifications appear to have become the standard requirement for appointment at the entry level since about 1982, prior to which a four-year trained psychologist commenced on the 2nd year of the scale.

11 Introduced in 1959, the classification of Clinical Psychologist provides for a five-year incremental scale commencing at $48,305 and rising to $60,071 in the 5th year. The classification requires the qualifications of a psychologist (four-year trained) plus a two-year master's degree in clinical psychology or clinical neuropsychology (or the equivalent). A further two years of supervised employment is required also before eligibility for classification as a Clinical Psychologist.

12 In 1967, a classification of Senior Clinical Psychologist was introduced and may be accessed only by persons holding the required qualifications for a Clinical Psychologist (six-year trained). The current annual salary for this classification is $62,441.

13 The highest salary level in the current scale is that of Principal Clinical Psychologist at an annual rate of $72,246. The evidence disclosed that there were only three persons employed at this level in the State. There was some suggestion in the evidence that the respondent did not generally utilise this classification but there was no submission for its deletion from the structure as being unnecessary.

14 The classification of psychologists within the structure is not presently subject to any criteria laid down by an industrial instrument and the respondent retains the ability to appoint/promote a psychologist to one of the existing classifications in its discretion. As appears from the evidence, that is dependent upon the professional qualifications held according to the duties performed and, no doubt, the number of psychologists employed at a particular establishment consistent with the organisational arrangements in place. Nevertheless, cl 5 of the Health Professional and Medical Salaries (State) Award makes applicable the dispute resolution procedures contained in the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award; that latter award provides in cl 20 - Promotions and Appointments: (i) Promotion and/or appointment shall be by merit, provided however that no officers with a claim to seniority shall be passed over without having their claims considered.

(ii) In the case of an officer or officers disputing a promotion and/or appointment the Association may apply to the Public Hospitals (Professional and Associated Staff) (State) Conciliation Committee for determination of the dispute.

(Clause 24 - Disputes of this award contains a general procedure for the resolution of disputes, with final access to this Commission.)

15 Both parties recognised that this case was the first occasion the Commission, or its predecessors, had undertaken an arbitrated review of the salaries paid to public sector psychologists in New South Wales. If for no other reason, this aspect dictates a cautious approach to the claims made which, and in light of the extent of the material available, focuses our attention more on appropriate up-to-date salary levels but based on and by reference to the existing classification structure.

Claimed classification structure and salaries 16 The application in its final form, as filed on 4 May 2001, claimed the following classification scale and annual salaries as compared to the current position -

CURRENT CLAIM Salary Classification $ClassificationSalary $ Psychologist Psychologist 1st year 34,0441st year43,194 2nd year 35,6812nd year45,270 3rd year 37,8933rd year48,078 4th year 40,0254th year50,781 5th year 42,3865th year53,778 6th year 44,5826th year56,563 7th year 46,4467th year58,927 8th year 48,3058th year61,286 9th year 50,4019th year63,945 10th year * 52,933 11th year * 55,465

Senior Psychologist 1st year67,568 2nd year70,946 3rd year74,493

Clinical Psychologist Clinical Psychologist 1st year 48,3051st year61,286 2nd year 51,3452nd year64,351 3rd year 54,1663rd year67,568 4th year 57,2324th year70,946 5th year 60,0715th year74,493 6th year78,218 7th year82,129

Senior Clinical Psychologist Senior Clinical Psychologist 62,441 1st year and thereafter 1st year 85,003 2nd year88,402 3rd year91,939 4th year95,617 5th year99,441

Principal Clinical Psychologist Principal Clinical Psychologist 1st year and thereafter 72,2461st year and thereafter 109,386

• By allowance and subject to conditions (The above current salary rates are inclusive of the "16 per cent" public sector negotiated wages settlement reached in late-1999 to the extent of a 2 per cent increase from 1 January 2000 and 2 per cent from 1 January 2001; further increases pursuant to that settlement are not included, being 3 per cent from 1 January 2002, 4 per cent from 1 January 2003 and 5 per cent from 1 July 2003.) 17 The application sought detailed definitions for each of the five new classifications of psychologist by reference to characteristics, academic requirements and general features of the duties. It is convenient for present purposes to summarise the key aspects of the claim in those respects in order to identify the career progression concept on which it was based, as follows - Characteristics: The base grade Psychologist classification refers to a graduate trained in the independent application of existing treatment techniques, assessment procedures and the formulation of psychological reports. Progression to higher classifications, subject to determination by the Grading Committee, is to recognise increasing degrees of initiative and independent judgment in the provision of a psychological service: Senior Psychologist - "a high degree of experience ... with breadth and depth of experience in psychological methods and the provision of psychological services"; Clinical Psychologist - "exercises independent judgment concerning the selection and application of established principles, methods and techniques of psychological assessment and/or treatment"; Senior Clinical Psychologist - "expert knowledge of the methods, principles and practices of a specialist area of psychology and has an ability to practice psychology with a high degree of initiative and depth of experience"; and, Principal Clinical Psychologist - "significant expertise in the delivery of psychological services, and is a recognised leader in their clinical field and has contributed to the body of psychological knowledge, and/or the development and education of psychologists within the field". Academic requirements: The basic qualification for entry into the structure as a Psychologist and for appointment as a Senior Psychologist to be a four-year degree in psychology (or its equivalent). Apart from a certain amount of experience, for a Clinical Psychologist, Senior Clinical Psychologist and Principal Clinical Psychologist the qualification to be a post-graduate degree at the master's level or higher in a specialist clinical area of psychology, such as clinical psychology, clinical neuropsychology or other clinical specialty, of no less than two years' full-time duration (or its equivalent). General features of duties: The detailed general duties for the entry level classification of Psychologist included "the application of existing treatment techniques and assessment procedures; psychometric testing (eg intelligence, personality, vocational); psychological counselling; provision of psychological reports". For the more senior classifications, the clinical supervision of psychologists, psychological interventions adapting established principles and methods, and administration of clinical activities and service planning and policy become features. At the Clinical Psychologist level this was described as "the adaptive utilisation of psychological knowledge and principles in the assessment and treatment of a range of health disorders"; for the Senior Clinical Psychologist attention was to be directed to administrative duties (service planning, policy and supra-clinical duties), consultation (other psychologists, professional bodies and organisations), research (design, implementation and reporting), clinical duties requiring a high level of knowledge and experience in a specific area and training of psychologists and other health professionals in specialist psychological skills; and, for the Principal Clinical Psychologist duties were to develop to include significant teaching duties (at a university or in specialised clinical skills to other psychologists/students), significant ongoing psychological research (primary author of publications and presentation of papers at professional conferences and seminars) and administrative duties (advice to health regions, consultant for government and other agencies, and policy advice on human and psychological services at ministerial or chief administrator level).

18 In order to give effect to the operation of the new classification structure, the claim contained provision for the establishment of a Grading Committee. Its terms were quite detailed and laid down a procedure, as it said, "to consider and recommend to the Health Administration Corporation ... the grading of any new position or any variation of grading or classification of a position as a result of any substantial alteration of duties and/or responsibilities, applications for promotion based on classification criteria as set out in this award or in any case of anomaly". To some extent, this claim, if granted, would effectively supersede the provisions of cl 21 - New Positions and cl 24 - Disputes of the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award, although continuing provision is made for application to this Commission for the settlement of any dispute arising from the grading of a psychologist.

19 It will be evident that four significant changes to the existing classification structure were claimed, as follows - (1) A new three-level classification of Senior Psychologist. The stated purpose was to enhance the career path opportunities for the 9th year Psychologist who did not hold the necessary qualifications for appointment to the Clinical Psychologist stream. Duties would include clinical supervision, provision of psychological intervention and administrative tasks. Appointment to be through the Grading Committee. (2) The five-year scale in the Clinical Psychologist stream to be extended by two years to a seven-year scale. Additional duties to include special psychological interventions, supervision, assessment and diagnosis of psychological conditions, and the design and implementation of appropriate psychological procedures. Apart from enhancing career path opportunities, it was stated that this new scale would bring holders of higher qualifications more into line with other health professionals with equivalent qualifications. (3) The single salary level for the Senior Clinical Psychologist to be replaced by a five-year scale. Access to this stream to be through the Grading Committee and would require expert knowledge of methods, principles and practices in a specialised area of psychology, together with a minimum of five years' experience as a Clinical Psychologist. Other duties may include administration and research. (4) Significant salary increases at all levels, ranging from 26 per cent at the entry level Psychologist stream to 51 per cent at the Principal Clinical Psychologist level.

Other claims 20 Allowances: The claim sought $5.00 per student per day where a psychologist was involved in the clinical supervision or training of students, including psychologists-in-training. A managerial allowance of between 2 to 7.5 per cent of annual salary was sought where a psychologist had supervisory and primary management responsibility for from 1 to 25 or more staff.

21 Private practice rights: An extension of private practice rights was sought so as to include an allocation of four hours per week for private practice or an equivalent salary loading to enable pursuit of a higher qualification in an approved course. Where a Senior Clinical Psychologist or a Principal Clinical Psychologist elected not to engage in private practice a loading of $3,000 per year to be paid.

22 Training, education and conference leave: An entitlement to 25 days' leave each year with funding to attend professionally related conferences, seminars or training courses.

The applicant's evidence 23 The applicant relied on evidence from 14 psychologists who had a wide range of qualifications, experiences, specialisations and expertise in health service clinics and in metropolitan and country hospitals; evidence was led also from one of the applicant's industrial officers. The evidence covered all classifications of psychologist and comprised five persons in the Psychologist classification, six in the Clinical Psychologist classification, two in the Senior Clinical Psychologist classification and one person who was a Principal Clinical Psychologist. The evidence was largely uncontroversial in its terms but the real contest between the parties concerned the relevant conclusions to be drawn from it. It is impracticable here to refer to the detail of all of the evidence, which was quite voluminous, and it is sufficient to attempt a summary of the main points therefrom by reference to the current award classifications of the witnesses.

24 Psychologist: The five witnesses in this classification, their qualifications, areas of specialty and institution were - Name Qualifications Specialty Institution

Frances Gibson BSc(Appl Psych) (Hons), MA (Counselling), Neonatology Royal North Shore Hospital PhD(Psych) Raymond Isaacs MA(Psych) Mental health disorders Grafton Mental Health Unit Waffa Sawtell BA(Psych), MA(Psych) Counselling and health promotion Corner Youth Health Service, Bankstown, South Western Sydney Area Health Service Georgina Spilsbury BSc(Psych)(Hons) Alcohol and other substance abuse Herbert Street Clinic, Royal North Shore Hospital Tracey Williams BSc(Psych)(Hons) Rehabilitation Occupational Rehabilitation Service, Port Kembla Hospital

Dr Gibson has had 26 years' experience in the conduct of psychological and developmental assessments and follow-up of babies born of extremely high risk. Psychological assessments of infants and young children involved the clinical aspects of conducting the tests, engaging the child in activities, scoring and interpreting the findings and providing the results to parents. The work was performed as a member of a team and in close conjunction with other health professionals, particularly paediatricians. Despite the length of her experience and senior qualifications, Dr Gibson did not qualify for entry to the Clinical Psychologist stream because the qualifications were not strictly in a clinical discipline; in 1982 she attained the top 9th year level of the Psychologist classification. As a member of the College of Counselling Psychologists and the College of Developmental and Educational Psychologists of the Australian Psychological Society, Dr Gibson was required to attend conferences, seminars and engage in professional development activities to obtain credit points to maintain her membership of those professional bodies. In that endeavour, she said she was encouraged by the respondent and used periods of leave to do so and for which she paid the bulk of the costs; she was presently allowed five days' leave each year to attend conferences and the respondent financially supported those attendances to the extent of about half of the cost. Over the last few years, Dr Gibson has presented an average of three papers a year to various regional, national and international conferences in her specialty of neonatology. Dr Gibson was engaged in the training of psychologists and school counsellors in the area of infant assessment and the use of specific psychological tests and was an honorary associate at Macquarie University where, as a field supervisor for the Clinical Master's Programme in Psychology, she supervised students who will be qualified to enter the Clinical Psychologist scale. Mr Isaacs' experience since 1974 has covered drug counselling, community health and, latterly since 1990, the assessment and treatment of persons with mental illnesses, such as schizophrenia, bipolar disorder and other mental health disorders. He was concerned also with health education programmes, community development work and the supervision of other psychologists. Mr Isaacs, although classified and paid as a Psychologist, said he in fact performed the work of a clinical psychologist but was not classified as such because he did not have clinical qualifications - apparently, two attempts by him to gain such qualifications have been frustrated by distance (he worked and resided in Grafton) and funding restrictions imposed by the respondent. Nevertheless, he did say that the Northern Rivers Area Health Service supported its psychologists in relation to professional development through workshops and training programmes. Ms Sawtell since 1998 had been involved in the counselling and health promotion of young people and families of non-English speaking backgrounds, primarily in the Arabic community. In conjunction with local high schools and the Department of Juvenile Justice, she had been concerned with the design and implementation of an anti-violence programme for young men who display signs of high risk offending. Ms Sawtell considered the field of psychology was "rapidly evolving" and accepted the professional obligation to update her skills and knowledge; for that purpose, she received 2.5 days each year for external professional development and an annual entitlement of $80.00 for training and conference costs. Ms Spilsbury was engaged in the assessment, treatment and referral of clients who had substance abuse problems, including alcohol, tobacco, heroin, cannabis and other drugs. She participated in regular clinical supervision and the supervision of other psychologists. Her work included neuropsychological assessment of clients suspected of having alcohol related brain damage, or other drug induced cognitive deficits, and provided feedback and reports to the client and the referring agency. She co-ordinated group programmes for Quit-Smoking and Control-Drinking. Ms Spilsbury considered that the profession of psychology and its store of knowledge had "grown enormously" over recent years. Specifically, she said psychologists were expected to understand new developments, interpret developments for colleagues and other health professionals so as to meet the requirements of best practice of the respondent. It required psychologists to keep abreast of all developments in their relevant field of specialisation. Ms Williams had been employed as a psychologist since 1995 in the psychological and neuropsychological assessment of stroke, dementia and head-injured clients; she had developed and implemented rehabilitation programmes for such persons and engaged in counselling, training and liaison with families and other staff. She was involved also in research and evaluation of various programmes, including quality assurance, and in that respect she participated in team activities with other professional and non-professional staff. Ms Williams expressed the view that there was no real distinction between the role and responsibilities of psychologists and those of clinical psychologists.

25 Clinical Psychologist: The qualifications, areas of specialty and institution of the six witnesses engaged in this classification were - Name Qualifications Specialty Institution

Ruth Brunsdon BA(Psych)(Hons), MSc(Clinical Neuropsychology) Paediatric brain injury New Children's Hospital, Westmead Tse-Ling Chan BA(Psych)(Hons), MPsych Psychotic disorders Adult Mental Health Service, Campbelltown Hospital Suzanne Dang Under-graduate degree (Hons) (Chinese University of Hong Kong), MPsych Consultation in oncology and cardiology Bankstown-Lidcombe Hospital Sandra Grayson BSc(Psych)(Hons),MSc (Clinical Neuropsychology) Epilepsy and general adult disorders Westmead Hospital BSc(Psych)(Hons), Mandy McDonald MSc(Clinical Mental health Consultation Liaison Services, St Vincent's Mental Health Service, St Vincent's Hospital Psychology) Nikola Tomic Degree in Clinical Psychology (University of Belgrade), Post-graduate Specialisation in Medical Psychology (University of Belgrade) Psycho-diagnostics Bankstown Community Mental Health Service

Ms Brunsdon had been employed since 1997 in work involving the neuropsychological assessment of children and adolescents with brain injury or neurological disorders. Her duties required the design and implementation of treatment and rehabilitation programmes, including liaison with educational authorities, face-to-face contact with clients and working closely with neurosurgeons and neurologists. She was engaged also in research in her specialty, together with rehabilitation, student supervision, lecturing, attendance at seminars and conferences, and administrative duties. Ms Brunsdon, as a member of the College of Clinical Psychologists of the Australian Psychological Society as the relevant professional body, was required to accumulate a minimum number of professional development points each year from attendance at various professional workshops and seminars in order to maintain membership. A feature of her evidence was a case study which she said was typical of her work - a 10-year old girl had had a brain tumour removed and in consequence suffered the build-up of fluid causing pressure on the brain and resulting in memory disorders; she was required to consult with the neurosurgeon, meet with the child and her family and work with the school to assist the child's individual learning programme so as to maximise her functioning. Ms Chan divided her time between in-patient clinical services at the hospital and rehabilitation services in the community health team. She was required to be knowledgeable of community awareness of issues relating to mental illness and she conducted stress management workshops for carers of people with mental illness and, at the individual level, her work involved helping clients diagnosed with psychotic disorders to enable them to deal with the impact of their illness. Part of her work involved consultation to the treatment team, case managers and various committees about the form of psychological formulations, clinical management advice, psychological assessments and feedback. Ms Chan referred to the need to maintain professional standards by engaging in research, particularly with the rapid developments over the last five years in the relatively new field of psychological intervention for psychosis where previously the emphasis was on medical intervention using medications. A case study was presented by Ms Chan as part of her evidence of the psychological assessment, treatment and outcome of a 22-year old female patient diagnosed with schizoaffective disorder which involved clinical interview, standardised anxiety and depression questionnaires and self-reporting measures in two phases over a period of ten months involving 17 hourly sessions. Ms Dang provided assessment and psychological treatment based on carefully evaluated scientific results of mainly cancer and cardiac patients, both individually as well as in groups, and for that purpose liaised with the Departments of Oncology and Cardiology at the hospital. She worked one day per week in the Anxiety Clinic and half a day each week with the Department of Nutrition and Dietetics. The purpose of the psychological intervention she provided was to reduce mortality and morbidity in cardiac patients and to increase the quality of life with a reduction in psychological distress in cancer patients. Ms Dang stated the need for a psychologist to keep up-to-date with developments in the field of their specialty and she regularly engaged in research, including the presentation of papers at conferences and seminars. In a survey by her of advertisements in The Sydney Morning Herald of 135 vacant positions for psychologists between January and April 2000, Ms Dang concluded -

· 45 positions were for psychologists only; · 23 positions were for joint positions, such as social worker/psychologist or social worker/counsellor; · 67 were general positions for which psychologists might apply; · 88.9 per cent of positions for psychologists required or preferred a master's degree; and · 31 per cent of psychologist positions required membership of the College of Clinical Psychologists of the Australian Psychological Society or of the Society itself.

Ms Grayson identified psychology as the study of people and their behaviour, including the brain, behavioural relationships, inter-personal relationships and social relationships; she said that psychologists focussed on management and therapy whereas psychiatrists focussed mainly on diagnosis and medical treatment. Ms Grayson's work was entirely clinically based and she saw clients for the purpose of diagnosis, prognosis, consultation, management and prediction of outcome with respect to cognition. Her work required a comprehensive understanding of neurological conditions, neuro-anatomy and how they inter-related. Ms Grayson was strenuously encouraged by the hospital's Director of the Epilepsy Unit, a medical practitioner, to be involved in research covering psychological tests, memory tests and the comparative utility in the pre-surgical investigation stage. She was engaged also in the supervision of master's degree students which required her to be present during the assessment of patients by students and the monitoring of that process; she taught students the different types of psychological disorders. A feature of Ms Grayson's evidence was the reference to two case studies: first, she was concerned with a 17-year old girl with intractable temporal lobe epilepsy; and, second, a 52-year old man with recent complaints of memory difficulties, mild confusion and unusual behaviour. Ms McDonald worked with four consultant psychiatrists and two clinical nurse consultants as the only psychologist providing mental health services to the general hospital. Her duties involved the provision of clinical psychology services to in-patients and out-patients of the hospital covering consultations and direct patient contact in all medical specialties. She said patients may be referred to her because the treating medical team believed they were becoming depressed or may have an anxiety or some sort of traumatic symptom; she provided psychological assessment and intervention as well as liaising with the treating medical team as to how best to manage and facilitate the patient. Ms McDonald engaged in research and in that respect she was currently in the process of presenting a research proposal to further develop the appropriate referral of oncology patients to clinical psychologists. Ms McDonald provided training and education services to the hospital staff and she described that role as "huge" as she was the only person with expertise in cognitive behaviour. She affirmed the continuing need for professional development in her position and was required to make presentations at conferences, to attend conferences and seminars, and to educate other staff. Ms Tomic had 28 years' experience in psycho-diagnostics and the treatment of people with emotional and inter-personal difficulties, including the physical manifestation of psychosomatic disorders. In particular, she had been concerned in recent years with treating nocturnal and diurnal enuresis (bed wetting) in children by using a combination of behaviour therapy and suggestive therapy. She worked in the Anxiety Disorder Clinic for about four hours per week and every Saturday to maintain and develop her professional skills. Her private practice clients had different problems to those encountered in her work situation and they covered work related problems, post-traumatic stress, panic disorders, sleep problems, sexual abuse disorders and eating disorders.

26 Senior Clinical Psychologist: Two witnesses were employed by the respondent in this classification and their qualifications, areas of specialty and institution were :

Name Qualifications Specialty Institution

Vijaya Manicavasagar BSc(Psych)(Hons), MSc(Clinical Psychology), PhD (Med) Psychiatric research and training Liverpool Hospital Renate Wagner Dip in Higher Education, PhD(Psych) Anxiety disorders Bankstown Anxiety Clinic, Bankstown Hospital, South Western Sydney Area Health Service

Dr Manicavasagar had had 10 years' experience and was employed now as the Research Co-ordinator and Supervisor of the clinical practices of psychologists in the South Western Sydney Area Health Service; she was engaged in the teaching of medical students, psychology students and nursing students. A particular aspect of practice in that area was dealing with refugees seeking asylum who experienced trauma related problems and depression. Dr Manicavasagar conducted private practice at two separate locations and she said the work in private practice was more varied insofar as the type of psychosocial disabilities encountered were concerned. She said private practice by a psychologist benefitted the public hospital system by increased exposure to a variety of client problems the range of which may not be available within the public system, to a wider liaison with medical practitioners and other health professionals, to development of shared programmes, to increased autonomy, independence and specialisation, to increased opportunity to develop and enhance clinical skills and competencies, and to enable the development and preparation of materials for private patients for translation for use with public patients. Dr Wagner was the Director of the Bankstown Anxiety Clinic and was the Area Adviser for over 100 psychologists. As such, Dr Wagner had published the Psychology Review 2000 covering a collection of service initiatives, publications, committee memberships, conference presentations and teaching efforts of psychologists in the area; also, she lectured at the University of New South Wales and was an Honorary Associate to the Universities of Sydney, New South Wales, Macquarie, Wollongong, Western Sydney and New England. Dr Wagner's responsibilities included the provision of assessment and therapeutic intervention services for people with anxiety disorders, administration of the Anxiety Clinic (which had 400 patients a year and employed eight psychologists), quality assurance, research, supervision, teaching and membership of various advisory committees relating to mental health issues in society. The main components of her employment were therapy, research, teaching, consultation and administration. Recognising that psychology was a relatively young profession, Dr Wagner said in the past two decades there had been an explosion of knowledge in regard to diagnosis, assessment and treatment of psychological disorders so that psychologists were required to stay in touch with developments by attending conferences, workshops and seminars. She said that in the past specialisation in the field "was a rarity" and entry level psychologists were four-year trained and, prior to that, three-year trained. Today, most psychologists were at either the four-year honours or six-year master's levels. Dr Wagner described the restrictions of the current salary scale in terms that four-year trained psychologists with only nine levels available might reach the upper limit at , say, age 31 years and then have "nowhere else to go"; similarly, clinical psychologists reached the five level ceiling at an early age unless they were appointed as a Senior Clinical Psychologist but where the pay differential was slight. A feature of Dr Wagner's evidence was reference to a case study involving a 26-year old male referred from his general practitioner with severe social anxiety; she detailed the patient's clinical and psychometric assessment diagnosis, treatment and follow-up.

27 Principal Clinical Psychologist: The evidence disclosed there were only three persons employed as a Principal Clinical Psychologist throughout the 15 health areas in the State being at the Northern Sydney Area Health Service, South Eastern Sydney Area Health Service and the Hunter Area Health Service. Dr Reinhard Ronnebeck was located at the Royal North Shore Hospital as Principal Clinical Psychologist and his relevant details were -

Name Qualifications Specialty Institution

Reinhard Ronnebeck BPsych, MSc(Clinical Psychology), PhD(Clinical Psychology) Family psychology Royal North Shore Hospital

Dr Ronnebeck had had more than 22 years' experience and had worked in the field of psychology in the United States, Germany and Australia. He was responsible for over 100 psychologists employed in the Northern Sydney Area Health Service and was involved in the placement of post-graduate psychology students; in that respect, he was concerned with recruitment, discipline, staff education and professional development. Dr Ronnebeck engaged in research of and working with children and families who had severe emotional and behavioural problems often as a consequence of family breakdown, domestic violence and child abuse. He had a variety of administrative functions including as Team Leader of the Lower North Shore Child and Family Health Service, a service employing 32 persons being social workers, psychologists, occupational therapists, speech pathologists, paediatricians and clerical staff. He deposed to the increase in the number of referrals to the service over the last five years notwithstanding the maintenance of staff levels resulting in a dramatic increase in work pressure and efficiency required. Dr Ronnebeck emphasised the transition for psychologists from a three-year degree to a minimum standard of a four-year honours degree plus post-graduate education, such as a master's degree in the clinical psychology field. He maintained that the increased level of qualifications was necessary in order to meet the emerging demands of the employer, including in the important area of research methodology.

28 In an affidavit sworn by Robert Hull, Senior Industrial Officer of the applicant, particulars of post-graduate courses offered by Macquarie University in the year 2000 and details of that University's Post-graduate Certificate in Applied Psychology were provided.

29 In relation to the evidence overall, we interpose at this point a general submission made by Mr Murphy in the following terms : The evidence of the applicant's witnesses discloses that Psychologists as a professional group in the health system are highly trained professionals who are required to achieve academic excellence in order to obtain admission to the profession. The work that they perform is demanding of great skill and professional expertise in that they are required to diagnose mental and behavioural disorders in clients and to construct intervention and treatment programmes to enable those clients to cope with and potentially overcome those illnesses and disorders.

The respondent's evidence 30 The respondent relied upon evidence from four senior health administrators. Those persons, their positions and the subject-matter of their evidence were as follows - Name Position Subject-matter Robert Blair Manager, Employee Relations - Department of Health Employment profile of psychologists, negotiations for new award, "real offer", policies re private practice and conference leave, review of study leave, grading and cost of claims Raad Richards General Manager of Liverpool Area Health Service and previously General Manager of Bankstown Area Health Service Team work concept of psychologists, definitions as claimed, grading committee, private practice rights, recruitment, cost of claims and flow-on effects Peter Sainsbury Director, Division of Population Health of Central Sydney Area Health Service Management of psychology services, cost of claim and flow-on effects, grading committee, private practice rights, leave and recruitment Gregory Stewart Chief Officer of Wentworth Area Health Service and formerly Director, Health Services of Central Sydney Area Health Service Private practice rights, grading committee, cost of claim and flow-on effects

31 Mr Blair conducted a review of the number of psychologists in the public health system and their employment profile as at January 2000; it disclosed that -

· 948 psychologists were employed in the system, that is, 729 full-time equivalent positions; · 30 per cent of psychologists had over five years' service; · over a 12-month period, psychologists at the rate of 123 full-time equivalent positions left the system; · 28.4 full-time equivalent vacancies (3.9 per cent of the available positions) existed; and · of the vacancies, 18.4 per cent had existed for less than six months but none were vacant for more than 12 months. Mr Blair shortly referred to the negotiations with the Public Service Association during 1995/96 concerning salary increases for psychologists and he said that whilst the respondent made an offer, which was subsequently improved, it was not accepted. Apart from a senior clinical nurse consultant, Mr Blair was not aware of any other classification in the health system which required, as did the Clinical Psychologist classification, a qualification at the master's degree level plus a further 12 months of practical experience. Mr Blair provided details of the respondent's policies with respect to private practice rights and to conference and further education leave for psychologists; he added he had no knowledge of any disputes relating to private practice rights and the management of leave for study purposes and career development was currently under review. As to the respondent's estimated cost of each of the applicant's claims, based on the present base salary cost (excluding on-costs) of approximately $37.6 million per annum, Mr Blair advised as follows - (a) Salary and classification structure: $14 million per annum. (b) Private practice rights: $3.5 million per annum. (c) Training, education and conference leave: $2.5 million on present salary rates or $3.5 million if the salaries claim were granted. (d) Travel costs: $16.5 million per annum.

32 Mr Richards, who had been involved in managing health services since 1988 across all categories of health professionals, medical, nursing and administrative staff and ancillary services, deposed that psychologists worked within mental health teams and within a variety of community and allied health services. Although unaware of the professional requirements for psychologists to obtain and retain membership of their professional organisation, the Australian Psychological Society, Mr Richards considered that the definitions and criteria in the claim were not sufficiently rigorous to prevent disputation nor did they appropriately justify the increases proposed. Specifically, he disagreed with the assertion that patients in the public system displayed different psychological conditions than those encountered in private practice. The current grading committee arrangements were, in Mr Richard's view, appropriate and there had been no disputes in the operation of the present system. He deposed too that the applicant's claims, if granted, would encourage a flow-on effect to other health workers and with significant cost implications, particularly as to the claim for private practice rights and training, education and conference leave. Mr Richards finally said he was unaware of any significant recruitment difficulties or of any problems with psychologists relating to study leave or career development leave.

33 Mr Sainsbury had responsibility in the Central Sydney Area Health Service for the management of community based health services, public health services and health promotion services, including psychological and other counselling services. He emphasised the substantial increases in costs, without any obvious benefits to the system, if the applicant's claims were granted and said it would be "inevitable" that other health professionals would make claims to re-establish parity with psychologists. In the result, he said a reduction in publicly provided psychological services affecting the most disadvantaged people would result and even though he was unaware of any difficulties in recruiting psychologists. As to the definitions and criteria claimed relating to grading of the new classifications, Mr Sainsbury considered they were "extremely subjective" and potentially invited disputation; he considered it would be very difficult to avoid positions "creeping" from one grade to the next. Mr Sainsbury deposed that the current private practice arrangements worked well and the system had been very sympathetic to psychologists who wished to undertake private practice; he was unaware of any refusals to permit psychologists to so engage. As to the claim for additional study and conference leave, Mr Sainsbury said he was unaware of any disputes in that area and he could see no reason for allowing psychologists considerably more favourable conditions than those enjoyed by other health professionals.

34 Dr Stewart gave evidence focussing very much on the private practice claim and said that in the Central Sydney Area Health Service employing 71 psychologists the granting of the claim would result in the loss of 7.5 full-time equivalent psychologist positions a week; presently, each application by a psychologist to engage in private practice was considered on a case-by-case basis and he had no knowledge of any disputes relating to outside employment. As to the claims for private practice rights, salary increases and improved study and conference leave, Dr Stewart referred to the potential flow-on effects to other groups with significant cost implications. As to the existing arrangements for the grading committee, Dr Stewart acknowledged there were occasional disputes but they were resolved through the usual industrial processes.

Submissions for the applicant 35 Mr Murphy based the applicant's case on the proposition that this was the first occasion the rates of pay and classification structure for psychologists had been considered by the Commission or by its predecessors. Counsel said the history and salary movements disclosed that the classification structure had remained virtually unchanged for at least 34 years notwithstanding structural efficiency considerations in the 1980s. Increases in salaries had occurred as a consequence of negotiated determinations or agreements and, in recent years, salaries had been adjusted in line with general public sector movements and State Wage Case increases. Consideration of the present claims by way of a special case under the State Wage Case principles was, therefore, warranted.

36 Regardless of the salary increases claimed, counsel submitted the position of psychologists had effectively gone backwards since an agreement in 1974 when entry to the structure required a three-year degree only with a four-year degree graduate entering at the second year of the scale. The evidence, he contended, was that the minimum qualification now at the entry level was a three-year degree with a fourth year honours in psychology. From 1989, a master's degree qualified a psychologist as a Clinical Psychologist after six years' training in a clinical discipline. Reliance was placed on the requirements for admission to become a Master of Clinical Neuropsychology at Macquarie University and the level of academic rigour involved in achieving the minimum qualification for appointment as a Clinical Psychologist.

37 Mr Murphy traced the developments which had occurred since the applicant had acquired from the Public Service Association the right to represent the industrial interests of psychologists in 1998. Those developments, he said, revealed some recognition by the respondent employer that something needed to be done about the employment conditions of psychologists, particularly as to salary rates. The respondent was disclosed as making what it described as a "real offer" during the parties' negotiations of the present claim and, whilst the applicant rejected the offer, Mr Murphy expressed dismay that no counter-claim had been proposed by the respondent, even in terms of its "real offer" or otherwise, but rather it maintained during the hearing that the existing salaries and classification structure should remain unaltered.

38 In tracing the history of the current classification structure, Mr Murphy detailed the requirements for each of the streams and noted in particular -

· the allowances at years 10 and 11 of the Psychologist scale were not automatic; · no other professional classification required a four-year degree, a two-year master's degree and two years of employment experience; · a single rate of the current amount did not reflect the skills and responsibilities of a Senior Clinical Psychologist; · only 6.2 per cent of all psychologists were presently classified as Senior Clinical Psychologist; and · there were only three Principal Clinical Psychologists employed in the State's public hospital system, so that the position had now largely, and regrettably, fallen into disuse.

39 Counsel described the evidence of the witnesses as disclosing a group of highly training professionals who were required to achieve academic excellence. However, the overall position confronting psychologists in comparison to other health professionals was, as counsel said, "fairly grim and fairly bleak". On the other hand, nursing was cited as an example where career opportunities and promotion had expanded in recent years such that a nurse was able to progress to a Nurse Manager's position on a salary in excess of $90,000 per annum. A four-year trained psychologist with a Bachelor of Science degree with Honours in Psychology would presently commence employment as a Psychologist on a salary rate of $34,044 per annum which was $983 per annum less than the first-year rate for a hospital scientist who had a three-year degree and who commenced on $35,027. The starting rate for a hospital scientist with a four-year degree was the second year rate of $36,347, being $2,303 more than the commencing salary of a psychologist with equivalent qualifications. A scientist in a public hospital with a master's degree could progress to an annual salary rate in excess of $72,000 whereas a Clinical Psychologist similarly with a master's degree could only progress to a rate of just over $60,000. In referring to the rates for hospital scientists as being comparable and relevant, Mr Murphy pointed to the important distinction in the psychologists' favour as being that their work concerned the "whole patient"; hospital scientists, on the other hand, looked at "things under a microscope". Thus, submitted counsel, the work of psychologists was more akin to that of the medical profession to which there was a real comparison as illustrated by the various case studies documented by the witnesses in these proceedings to demonstrate an appreciation of the work performed by psychologists in a clinical setting. Similar comparisons were made with the salaries of nurses, social workers, speech therapists, speech pathologists, physiotherapists, occupational therapists, medical officers, medical registrars and dental officers. Counsel submitted a number of anomalies existed when one considered the position of psychologists by reference to virtually any other professional classification in the public health system in the State.

40 As to the other claims concerning employment conditions, Mr Murphy submitted the establishment of a bipartisan grading committee was necessary to enable proper consideration of applications for appointment to senior positions. Similar mechanisms were available for hospital scientists and nurses.

41 The application sought allowances for student and staff supervision. Such supervision was an important part of the work of psychologists but it was currently unrecognised by appropriate additional payments. Most health professionals, as Mr Murphy submitted, received additional remuneration for the supervision of staff.

42 Mr Murphy contended the evidence demonstrated that exposure to patients in private practice enhanced a psychologist's skills and benefitted patients in the public system. The claim for improved private practice arrangements should, therefore, be encouraged so as those skills were not lost to the public system.

43 Mr Murphy submitted the evidence disclosed that the current arrangements for professional development, such as attendance at conferences and seminars, was inadequate. Psychologists gave up their own time and financial resources to maintain and enhance their skills in a rapidly changing profession; the lack of evidence as to any disputes in this area was because psychologists did not ask for leave when they knew it would be denied.

44 As to the conditions claims generally, Mr Murphy submitted they should be considered separately and distinct from the salaries claim.

45 Finally and importantly, Mr Murphy acknowledged this was not an equal remuneration case. However, the Commission was entitled to have regard to pay equity issues in the context of a special case. The profession was heavily female dominated, 73.7 per cent of all psychologists employed, and the current classification structure and rates of pay had features in common with other female dominated classifications as considered by Glynn J in the Pay Equity Inquiry (unreported, IRC97/6320, 14 December 1998), namely, lower wage rates and inadequate provision for career progression when compared to other health professionals, lack of previous consideration by the Commission and work which involved the application of "soft" skills rather than the application of technology.

46 In opening the case for the respondent, Mr Hatcher immediately took issue with the applicant's proposition that the work of psychologists had never been valued in that although the Commission may not have done so the parties themselves had successfully assessed the value of the work over very many years resulting in agreements between them. It followed, on counsel's submission, that the present claim was not so much about valuing the work of psychologists but rather to reward them for years of experience in performing the work - as counsel asked rhetorically, why should a salary scale stop at three years, five, six or 12 years? In rejecting Mr Murphy's reliance on evidence of the respondent's "real offer", Mr Hatcher explained it as having been made in the context of two industrial organisations of employees competing for the affections of the psychologists and the employer's best endeavours to resolve the problem by a "without prejudice" proposal; Mr Hatcher emphasised there had been no attempt by the applicant here to progress negotiations as to alternatives. And so it was, faced with a claim pursued in the Commission for an arbitrated resolution, that the respondent adopted the position the existing salaries and employment conditions were fair and reasonable; it was for the applicant to discharge the onus on it that changes should be made - it had not done so.

47 A fundamental submission made by Mr Hatcher was that the applicant was "tinkering at the edges" of the current classification structure with a view to obtaining increases without any change in the work, without any change in the conditions under which the work was performed and without any review of the classifications. Counsel said the submission of Mr Murphy that the work of psychologists had not been valued for 34 years was not consistent with the applicant's own evidence. For instance, when the new classification of Clinical Psychologist was inserted in 1959 and that of Senior Clinical Psychologist in 1967 it had to be assumed that the parties had revisited their agreement and determined that the new classifications were appropriate. It was simply not open to compare rates for other health professionals and claim higher salaries for psychologists through automatic progression in the incremental structure but without examining the actual work performed. In that respect, Mr Hatcher referred to the substantially lower rates of pay in the award covering psychologists in the private sector as being rates set for "a like body of employees": see Private Hospital Professional Employees (State) Award [2000] 313 NSWIG 419.

48 Reliance was placed by Mr Hatcher on the decision of Schmidt J in the demarcation dispute between the Public Service Association and the present applicant, as cited earlier, as authority for the proposition that the Commission needed to be positively satisfied that this was a case not only of disadvantage but of such disadvantage to the psychologist employees as to warrant characterisation as a special case. Counsel accepted the minimum entry qualification for psychologists was a four-year degree, having previously been a three-year degree, but submitted there was provision for other equivalent qualifications to be accepted. In the result, counsel said the claim was for nothing more than a wage increase in disguise.

49 As to the other claims concerning the conditions of employment, again it was submitted the applicant had not made out a case. Specifically, it was submitted there was no evidence that the existing grading procedures were ineffective and, indeed, the evidence was that no disputes had arisen concerning their operation. As to the claim for private practice rights, that was an "unusual claim" and about which no evidence had been adduced which disclosed that employees had been denied opportunities to engage in private practice; it was not open, counsel said, to make a comparison for that purpose between psychologists and salaried medical professionals. Moreover, there was the potential for flow-on and significant cost implications if that claim was granted. As to additional conference and training leave, Mr Hatcher submitted the existing arrangements were adequate and there was no evidence to suggest otherwise; a significant financial burden would be imposed if that claim were granted.

50 Pursuant to s 10 of the Industrial Relations Act 1996, the task of the Commission in determining the present claims by the applicant is to ensure the setting of fair and reasonable conditions of employment, including rates of salary, for psychologists in the State's public health system. In doing so, the requirements otherwise set out Pt 1 of Ch 2 of the Industrial Relations Act as to the making of awards generally and particular conditions of employment in awards must be kept in mind. Specifically in that latter respect, and in light of the submissions made by Mr Murphy in which he acknowledged that the application was not brought as an equal remuneration case, we have approached our task by reference to s 23 of the statute so as to ensure that the award to be made provides equal remuneration and other conditions of employment for men and women performing work in the classifications concerned. In the context of those requirements, the case proceeded as a special case in accordance with the Special Case principle of the State Wage Case 2001 which relevantly provides (104 IR at p 480) : 10 Special Case

Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

51 Both parties argued their respective cases by acknowledging the principles applying to special case applications which were recently restated by a Full Bench of the Commission in Re Pastoral Industry (State) Award (2001) 104 IR 168 at p 184 in par [73], as follows : This is a special case. The onus which falls on an applicant in such proceedings is well settled. In a special case an applicant must meet the ordinary onus to make out its case on the evidence: see Occupational Health Nurses' Superannuation (State) Award [(1996) 85 IR 158] and Teachers (Non-Government Schools) (State) Award and other Awards (unreported, Fisher P, Sweeney J and Varnum DP, 17 August 1990). Matters of the cost of the claim and the public interest also arise for consideration. For completeness, we think it helpful to cite what the Commission said in Teachers (Non-Government Schools) (State) Award (at pp 23-24) in developing the Special Case principle as to the elements of the cost of a claim and the public interest, as follows : The next issue is whether a case has been made out under the special cases principle. In the National Wage Case August 1989 (Print H4000) the Australian Industrial Relations Commission said of this principle :

"Both the ACTU and the Commonwealth contended that increases beyond those generally available for structural efficiency may be approved in special cases, provided that the cases are processed through a special case mechanism and provided there is negligible cost or it can be demonstrated that it should be approved on public interest grounds ." (italics added)

The special cases principle adopted by the Australian Commission and by this Commission does not refer to the criteria of "negligible cost" or "public interest grounds". Nevertheless we are of the view that we should apply these criteria.

We do not think the case advanced in these proceedings could meet the "negligible cost" criteria. The parties argued however that their cases satisfied the "public interest ground" and we think this argument is made good. ...

52 It is plain from the authorities that the onus rests on the applicant here to make out a special case based on the evidence presented in the proceedings and, in weighing such evidence, the Commission is obliged to take into account the cost of the claims, including the potential for flow-on to other employees (particularly in the public sector) and the public interest generally. Mr Blair's evidence attended directly to the cost if the applicant's claims were granted in whole and as individual components; that evidence, unchallenged as it was, disclosed the cost of the claims would almost double the present total costs, excluding on-costs, of employing psychologists. On any view, we do not think such a result could reasonably satisfy the special case criteria of "negligible cost". However, and given that that factor may, and probably does, indicate the quantum of the salary increases sought by the applicant was excessive and would, if granted, impose significant costs on the public health system in the State, an assessment must necessarily be made in terms of the "public interest" ground whether otherwise a special case had been made out. In other words, it seems to us, in discharging our statutory duty to make an award setting fair and reasonable conditions of employment the cost implications, whilst most important, are to be taken into account as one factor, but not decisively so in itself, which may cause the refusal of a claim. We think that may appropriately be accommodated in a case, and the present is but an instance, by tempering the final outcome so as to result, as par (e) in s 3 - Objects of the Industrial Relations Act suggests, in facilitating "appropriate regulation of employment through awards". The same consideration should apply, in our view, in assessing the potential for flow-on with its resultant cost implications.

53 Against the finding of a special case and the making of an appropriate award accordingly, Mr Hatcher's fundamental proposition was that the existing salaries and classification structure must be fair and reasonable because the parties themselves had, over the years, negotiated and agreed salary increases largely as a result of movements in the public sector generally or consistent with increases granted to teachers in schools. Whilst such a view has superficial attraction, indeed it might well be valid in a particular case, we do not accept it as appropriate in the present case. The fact that agreed rates of pay followed movements in other awards for other classifications may reflect little more than a convenient means of adjusting rates but without any regard at all for the inherent value of the work or the conditions under which it be performed. In a sense, such an outcome is not unlike Mr Hatcher's submission as to the basis for the respondent's "real offer" during earlier negotiations of this claim, but as to which it was not prepared to disclose for incorporation into any new award, namely, that it was a convenient means of responding to a particular problem in the contest for membership between the present applicant and the Public Service Association. At least, in our view, the fact some offer was made by the respondent for higher salary rates for psychologists represented an admission that the present rates were not wholly fair and reasonable and should be adjusted. The question, then, for us in these proceedings is by how much.

54 Having considered the evidence as to the work performed by psychologists in the context of the historical setting of their conditions of employment by negotiated determinations or agreements, we are comfortably satisfied that on this first occasion the Commission has been called upon to resolve the claims by arbitration that the applicant has made out a special case for appropriate adjustments to be made. Of significance also, in moving to make an appropriate award we note that the present classification structure has remained largely unaltered for 34 years but where the recent development of area health services, as distinct from stand-alone hospitals, has affected the nature and responsibilities of psychologists in the total health setting as involving a multi-disciplinary approach and performed as a community-wide based function. This latter aspect in the work performed by psychologists as it has developed necessarily requires, as Mr Murphy suggested, assessment of the salary rates for psychologists against those for other health professionals, particularly hospital scientists. The applicant has established the existence of a special case and it remains to determine the degree to which that should be recognised consistent with the evidence. Overview of the evidence

55 The applicant's 14 psychologist witnesses represented a diverse cross-section of the levels of seniority, specialty, experience, skills and expertise of public sector psychologists. It included persons in the base classification of Psychologist, such as Ms Sawtell, Ms Spilsbury and Ms Williams who had had a few years of experience only but patently in areas requiring a high level of professional application and knowledge, to Dr Gibson and Mr Isaacs who had in excess of 25 years' experience each and who were clearly working at high levels of responsibility, including in the supervision of students and other psychologists, and as part of community-based health programmes. A feature of that evidence was the work of the psychologists as members of a team working closely with other health professionals, including medical practitioners. In the clinical field, the evidence was to a similar effect for the classification of Clinical Psychologist, as illustrated in particular by that of the six persons who gave evidence from Ms Brunsdon who had about four years' experience to Ms Tomic with 28 years' experience; a special feature of that evidence was the extent to which multi-disciplinary work was performed and the depth of research. The witnesses employed in the clinical environment as Senior Clinical Psychologist or Principal Clinical Psychologist illustrated the career nature of the profession. Dr Manicavasagar had 10 years' experience in research and training and with a broad and varied private practice; Dr Wagner had responsibility for advising over 100 psychologists, but with responsibility also for administering an anxiety clinic dealing with mental health issues in society; and Dr Ronnebeck as a Principal Clinical Psychologist, both in Australia and overseas, had responsibility for over 100 psychologists and worked with children and families who had severe emotional and behavioural problems.

56 A feature of the evidence of most of the witnesses worthy of mention was the practical demonstration by them of their work by the use of real-life case studies. We found those case studies most helpful in aiding our task in assessing the range of skills, expertise and experience psychologists were required to display in the course of their work and the interaction between them and other health professionals.

57 As we have intimated earlier, the evidence of the applicant's witnesses was largely uncontested. Indeed, the evidence led for the respondent was not directed as a challenge to that evidence but rather focussed upon the terms of the definitions claimed, the grading committee, private practice rights, training and conference leave, recruitment and cost of the claims. The evidence of Mr Blair was particularly instructive in providing an employment profile of psychologists. The remaining evidence of Mr Richards, Mr Sainsbury and Dr Stewart was of assistance in showing how psychologists worked within mental health teams in providing a variety of community and allied health services. Their evidence as to the classification definitions claimed by the applicant, together with the operation of the proposed grading committee, was significant at this stage as cautioning against a too ready acceptance of the claims and the need perhaps for some restraint and further consideration. We have to say, however, that we found it regrettable the witnesses in dealing with those aspects did not provide alternative formulations but only spoke negatively of the claims made. We will return to this aspect later.

58 Our assessment of the overall evidence in the case, including the documentary material presented, may conveniently be summarised as leading to the following conclusions - (1) The profession of psychology has undergone significant developments in recent years. Dr Wagner described it as an "explosion of knowledge" in the last 20 years and the evidence of Ms Sawtell and Ms Spilsbury was to a similar effect. In the result, psychologists are required to continually maintain and develop their knowledge in light of developments and research; the application of such knowledge is effected often in a clinical setting and in conjunction with other health professionals. (2) The practice of psychology has become increasingly specialised whereas Dr Wagner described specialisation in the past as a "rarity". This trend has necessitated a greater focus on updating knowledge, particularly having in mind the pace and depth of research, and has emphasised the application of more detailed skills and expertise in the chosen specialised field be it in paediatric brain injury, epilepsy, neonatology, substance abuse, rehabilitation or counselling. (3) There is a significant emphasis on the achievement by psychologists of academic excellence and high standards of professional expertise. (4) To be eligible for, and to retain membership of, the relevant professional body, the Australian Psychological Society and its various Colleges, a psychologist must demonstrate on-going professional development through recognised programmes, conferences or additional qualifications. (5) The qualification for appointment as a Psychologist in the public health system at the entry level requires a three-year degree with a fourth year honours in psychology. To qualify as a registered psychologist requires a further two years of supervision in the practice of the profession. (6) Appointment as a Clinical Psychologist requires a minimum of six years' training at the master's degree level with a mandatory component of supervision. (7) Senior psychologists are required to be involved in the training and supervision of students and other but less experienced psychologists. This involves practical supervision together with formal teaching sessions and acting as tutors, often in a tertiary institution. (8) There is an increased focus on multi-disciplinary diagnosis, treatment and follow-up by psychologists usually as part of a clinical team involving medical practitioners, nurses, therapists and social workers.

59 The present classification scales for psychologists have remained largely unaltered from an era, more than 30 years ago, when the work performed and the conditions under which it was performed were significantly different from those existing today. In those earlier times, psychologists worked in dedicated public mental institutions whereas now they work as an important part of the integrated general hospital and public health system through area health services and with a greater community focus. That focus involves working within a team of multi-disciplinary health professionals involving co-operation, liaison, advice, education, training and supervision. The undisputed evidence disclosed that the profession has made rapid advances in recent years with an increasing emphasis on specialisation in clinical diagnosis, assessment, treatment and follow-up. We are left in no doubt, on the evidence, that the qualifications and academic rigour expected of psychologists today is far greater than that which existed when the classification scale was first established. Significantly for present purposes, the evidence established, in our view, a career industry where the qualifications, knowledge and responsibilities increased markedly as the individual psychologist gained experience in performing the various functions at the respective levels.

60 We are satisfied, therefore, that the present classification scale is unsatisfactory and does not provide a fair and reasonable career path for public hospital psychologists. In reaching that conclusion, we note and adopt the long-established approach of the Commission in making an award in a career industry providing for incremental scales of salaries for grades of employee as stated by the former Industrial Commission in Court Session in Re Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award [1962] AR (NSW) 250 at p 284 as follows : There is one other general question to which we will refer before turning to the issues to be decided. It concerns the principle to be applied in providing by award for incremental scales of salaries for a class or grade of officer and for "steps" between classes or grades. It will be necessary for us to decide in the present case whether increments should be awarded for certain classified positions, how many increments should be awarded in the graded positions and how much the difference should be between the salaries awarded for the various grades and classified positions. Dealing with the function of increments between classes or grades and within them, the Commonwealth Conciliation and Arbitration Commission said in the Professional Engineers Case (No 2) (A 8508 p 47) -

"Upon the first aspect we see no room for doubting that in a scale of salaries reflecting work-values - with due consideration of all matters ancillary or incidental thereto- the proper function of increments must be a measurement of the increasing value of an employee's work within a class by experience, practice, observation and learning; and upon promotion, by his ability and aptitude to perform the higher grade and more skilled work involved, ex hypothesi , in the promotion."

We would respectfully adopt what was there said as a statement of the correct principle which we should apply in the present case. It is a principle which has been applied in many cases decided in this jurisdiction since the Museum Case (1933 AR 216). Its application in the present case will mean that we should award one or more increments for a classified position or for a grade of officer only if, and to the extent that, the evidence satisfies us that the work of an occupant of the position or of an officer in the grade will in some way be more valuable in one or more of the years succeeding the first year of his occupancy of the position or his service in the grade than it was in the first year. It will also mean that the salary differential between grades and classified positions should give effect to our view of the relevant work-value differences.

61 In reaching our conclusion, we are not unmindful of the traditional rigidities in public service structures which are no doubt reflected in the psychologist's scale as set over 30 years ago. Such a scale, in our view, does not meet the new demands and wholly different nature of the work of public hospital psychologists as we have identified. That issue was not dissimilar to that discussed by a Full Bench of the Commission in Re Public Hospital Social Workers Award (unreported, Full Bench, 86/264, 20 December 1988) where the Industrial Commission in reviewing the salary scale for social workers commented (at pp 8-9) : Historically, traditional rigidities in the public service structure have resulted in salary scales which have had to satisfy two different functions, firstly to provide a management and supervisory hierarchy to satisfy the requirement of control and secondly to provide appropriate salaries reflecting skill and responsibility.

In this case, however, whilst there would appear to be deficiencies in the structure the employer has not sought to put forward by constructive submissions as to how the difficulties might best be overcome from the employer's point of view.

Clearly, society, the employer and the social workers themselves consider that social work and social worker roles have progressed from adjuncts to the provision of medical and hospital services to an integral and professional service provided not only to the individual patients but also the other health professionals. Stresses which modern society has placed upon the individual within that society have led to a greater range of professional work than has been necessary or desirable in the past. We consider similar comments are apposite in the present case. The respondent's position was to oppose any change in the classification structure or any increase in salaries; it proposed no alternative to the applicant's claims. As unfortunate as that approach may be in not providing the Commission with an arguable alternative, we have to say it has compelled us to accept more forcefully than we might otherwise have done the evidence led in these respects by the applicant.

62 There are two discernible "streams" in the classification structure for psychologists being that for the "Psychologist" and that for the "Clinical Psychologist". We note the evidence of Ms Williams, however, to the effect that there was no real distinction between the role and responsibilities of clinical psychologists and psychologists; we can well understand that view being offered because the evidence, as we understood it, disclosed much overlapping in the functions due, no doubt, to the team concept and the multi-disciplinary approach. The essential distinction between the two streams seemed to be the focus of the clinical psychologist towards mental and other health disorders in a clinical setting whereas the psychologist was concerned more with behavioural disorders, assessment and counselling. Nevertheless, as we have said, there was much overlapping and the work performed by Mr Isaacs made this point as did the evidence of Dr Wagner, Dr Gibson and Ms Spilsbury. A real point of distinction seemed to be the need for the clinical psychologist to hold academic qualifications in a strict clinical discipline. The applicant sought continuation of the separate classification streams in any new award and, as presently advised, we would be disinclined to suggest it be upset; it is a matter, perhaps, for attention in a future review if thought appropriate. However, for present purposes, and at the least, the blurring of the two streams confirms the conclusions we have otherwise reached, namely, that the Psychologist stream requires up-grading by a new and more senior classification and, at the same time, the base-grade classification is under valued in its salary levels; as for the Clinical Psychologist classification, the divergence into the wider psychological areas supports an upward evaluation of the salary levels in that stream.

63 In viewing an appropriate classification structure we have had very much in mind the definitions proposed by the applicant and the criticism of them by the respondent's witnesses based on lack of rigour and as being so subjective as to invite disputation. We are far from satisfied the criticism levelled was justified but equally, on the evidence, we are not satisfied the proposed definitions should be adopted. Up to the present time the classifications and grading of psychologists have been relatively free of disputes and the changes we intend to the structure would not, we think, disturb that experience. Again, like the classification structure itself, this matter should more conveniently be subject to further consideration between the parties and made, if necessary, the subject of a future review.

64 Similarly, we do not intend to grant the claim in relation to the establishment of a grading committee. We are not satisfied the detailed procedure claimed is appropriate, particularly in light of the lack of disputes in this area and the respondent's opposition to it based upon the evidence of Mr Richards and Dr Stewart that no issues had arisen as to the operation of the current system and any disputes which arose in individual cases were resolved through the processes currently available. Again, however, this aspect could be the subject of further consideration between the parties and, to the extent necessary, the subject of review in future award proceedings.

65 We propose to make the following changes to the present classification structure - (1) The deletion of the two allowances provided for a Psychologist demonstrating satisfaction of certain specified conditions after completing 12 months' service at the salary prescribed for the maximum of the scale and after 12 months in receipt of such first allowance. (2) A new classification of Senior Psychologist be created with three salary levels, the criteria for appointment as such to be based on the criteria for payment of the two deleted allowances. Transition to the new classification to be to a salary level equivalent to the allowance presently received by a Psychologist; otherwise, appointment to be to the first year level. (We interpose the comment, as a guide, that Dr Gibson and Mr Isaacs would be candidates for appointment as a Senior Psychologist.) (3) Two additional salary levels to be inserted for the classification of Senior Clinical Psychologist.

66 Based upon the conclusions reached by us from the evidence, as earlier summarised, and in light of our views as to an appropriate classification structure, the annual salary rates we propose to award are as follows -

Classification Salary $ Psychologist

1st year of service 37,000 2nd year of service 39,000 3rd year of service 41,000 4th year of service 43,500 5th year of service 46,000 6th year of service 48,500 7th year of service 51,000 8th year of service 53,000 9th year of service and thereafter 55,000

1st year of service 58,000 2nd year of service 60,500 3rd year of service and thereafter 63,000

1st year of service 53,000 2nd year of service 56,000 3rd year of service 59,000 4th year of service 62,000 5th year of service and thereafter 65,000

1st year of service 68,000 2nd year of service 70,000 3rd year of service and thereafter 72,000

67 We are not satisfied the applicant has established a case to warrant any award in relation to the other claims made with respect to student and managerial allowances, training, education and conference leave and private practice rights.

68 In determining the new classification structure and salary rates we have taken into account the work performed, the conditions under which it is so performed and the agreement of the parties as to further salary increases in the order of 12 per cent by instalments from early-2002 to mid-2003. As to these other claims, we are of the view the evidence was inconclusive and against which the respondent's evidence was supportive of the continuation of the present entitlements and administrative arrangements by which they were allowed and, importantly, without any apparent difficulties or disputes.

70 We accordingly make a new award to give effect to the conclusions reached in this decision as incorporating the following features - (1) The new award shall be known as the "Health and Community Employees Psychologists (State) Award" and shall take effect from the beginning of the first pay period to commence on or after 1 December 2001 and shall apply thereafter for a period of two years as its nominal term. (2) The new award shall prescribe the classification structure and salary rates as set out in this decision. (3) As to conditions of service, the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award shall apply to psychologists covered by the new award. (4) As to dispute resolution, the dispute procedures contained in the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award shall apply to psychologists covered by the new award. (5) Leave is reserved, on application, to apply in relation to the salary rates fixed by the new award to adjust them to incorporate the three remaining increases pursuant to the negotiated public sector wages settlement, being respectively 3 per cent from 1 January 2002, 4 per cent from 1 January 2003 and 5 per cent from 1 July 2003. (6) The new award shall specify that it rescinds and replaces all monetary rates for psychologists covered by its terms as presently prescribed by the Health Professional and Medical Salaries (State) Award.

71 The applicant is directed to file and serve within 14 days of today a document setting out the terms of the draft award to give effect to this decision and for the purpose of settlement before the Industrial Registrar. To the extent necessary, recourse may be had to a member of this Bench. _____________________

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