Health and Research Employees' Association of New South Wales v Public Service Association of New South Wales - [2001] NSWIRComm 302 - NSWIRComm 1998 case summary — Zoe

NSWNSWIRComm

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

[2001] NSWIRComm 302

Industrial Relations Commission (NSW)|1998-12-14|Before: Wright J, Hungerford J, Sams DP, Glynn J, Mr J

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Court

Industrial Relations Commission (NSW)

Decision date

1998-12-14

Before

Wright J, Hungerford J, Sams DP, Glynn J, Mr J

Catchwords

02/20/2001
03/05/2001
03/28/2001
03/29/2001

Source

Original judgment source is linked above.

Catchwords

02/20/200103/05/200103/28/200103/29/200105/04/2001 DATE OF JUDGMENT: 11/29/2001

Judgment (110 paragraphs)

[1]

CITATION : Health and Community Employees Psychologists (State) Award, Re [2001] NSWIRComm 302 APPLICANT The Health and Research Employees' Association of New South Wales PARTIES : RESPONDENT Health Administration Corporation FILE NUMBER: IRC 3376 of 1998 CORAM: Wright J President; Hungerford J; Sams DP; McKenna C CATCHWORDS : Award - Application for new award for psychologists in public hospitals - Special case - Wage fixation principles - Salaries - Classification structure - Definitions - Grading committee - Private practice rights - Allowances - Training, education and conference leave - First arbitrated award - Agreements previously made - Approach to apply - Award made. LEGISLATION CITED : Industrial Relations Act 1996 s 3(e) s 10 s 23 Pt 1 of Ch 2 Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award, Re [1962] AR (NSW) 250 Health and Research Employees' Association of New South Wales v Public Service Association of New South Wales (1997) 92 IR 158 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Pay Equity Inquiry, Re (unreported, Glynn J, 97/6320, 14 December 1998) CASES CITED : Public Hospital Social Workers Award, Re (unreported, Full Bench, 86/264, 20 December 1988) Public Service Association of New South Wales v Health and Research Employees' Association of New South Wales (1996) 92 IR 122 State Wage Case 1999 (1999) 88 IR 363 State Wage Case 2000 (2000) 97 IR 93 State Wage Case 2001 (2001) 104 IR 438 HEARING DATES: 02/19/2001; 02/20/2001; 03/05/2001; 03/28/2001; 03/29/2001; 05/04/2001 DATE OF JUDGMENT: 11/29/2001

[29]

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).

[38]

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.

[41]

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 -

[43]

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.

[47]

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.

[65]

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.

[88]

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.

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

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Judgment (110 paragraphs)

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