Health Employees Medical Radiation Scientists (State) Award and anor [2006] NSWIRComm 34

Health Employees Medical Radiation Scientists (State) Award and anor [2006] NSWIRComm 34 - NSWIRComm 2006 case summary — Zoe

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· Display judgement and demonstrate a high level of initiative and independence in problem solving OR Possess a postgraduate certificate in a relevant area of specialisation. At completion of one-year full-time (or part-time equivalent) at Level 3, Grade 1, Year 1, the MRS (Diagnostic Radiographer) will automatically progress to Level 3, Grade 1, Year 2. LEVEL 3 Grade 2 (Years 1 - 2: Consultant MRS) The MRS (Diagnostic Radiographer) after not less than the completion of 12 months service at Level 3, Grade 1, Year 2 may apply to the Chief MRS (Diagnostic Radiographer) for personal progression to Level 3, Grade 2. The applicant will be assessed by a panel of at least three Chief MRS' (Diagnostic Radiographers) or their representatives. The MRS (Diagnostic Radiographer) at this level will have extensive clinical expertise related to specific areas/modalities and be able to demonstrate a high level of competency and a consistently high standard of practice, as outlined in Level 3, Grade 1 and as determined by their peers (Level 4 and above). They will be expected to demonstrate their expertise through the development and maintenance of protocols, clinical reviews, teaching and delivery of in-service and presentations of papers/publications related to their area of expertise at departmental level and at conferences at national or international level. They may be called on in an advisory capacity to assist other MRS' (Diagnostic Radiographers) with difficulties encountered within specific situations relating to their area of expertise. Applicants should have substantiated reports by Senior MRS' (Diagnostic Radiographers) Level 4 or above and/or Staff Specialists. The reports should focus on the expertise, judgement, and provision of advice by the applicant, together with the impact on services provided by the department arising from the work of the applicant. A minimum of two reports should be included and at least one must be from an MRS. (Diagnostic Radiographer). This wider acknowledgment of their expertise may be for example, in publications in peer-reviewed journals. The MRS (Diagnostic Radiographer) Level 3, Grade 2 may also be designated as the Clinical Imaging Educator/Tutor. This position would be responsible to the Chief MRS (Diagnostic Radiographer) for the identification, provision and delivery of continuing education for MRS' (Diagnostic Radiographers) with both clinical and general management components. In addition, responsible for the co-ordination and determined service delivery of the educator/tutor function for undergraduates on clinical placement and MRS (Diagnostic Radiographers) undergoing PDY. At completion of one year full-time (or part-time equivalent) at Level 3, Grade 2, Year 1, the MRS (Diagnostic Radiographer) will automatically progress to Level 3, Grade 2, Year 2. LEVEL 3 Grade 3 The MRS (Diagnostic Radiographer) at this level must have obtained an appropriate recognised postgraduate diploma allied to their area of expertise. This refers to post graduate diploma in areas such as (but not restricted to) ultrasound, CT, MRI, mammography, angiography, QA, management, education, research or IT. Such applicable diplomas must be relevant to the area of specialisation. LEVEL 4 Grade 1 (Years 1 - 2: Section Manager / Assistant Chief MRS/Sole Chief MRS) A MRS (Diagnostic Radiographer) at this level would manage the operations of a section or functional unit (specialist or general) within the Diagnostic Radiology department and discharge the associated administrative duties. These operations include day-to-day management, throughput and patient care, patient scheduling as well as immediate staffing. The MRS (Diagnostic Radiographer) would be responsible to the Assistant Chief MRS (Assistant Chief Diagnostic Radiographer) or the Chief MRS (Chief Diagnostic Radiographer) for the overall QA, organisation, activities and maintenance of standards within the particular specialised section.

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· Participation in relevant professional committees. Example of these may be radiation safety, OH&S, QA or Area Health Service committees relevant to the professional activities of Nuclear Medicine. The Profession is free to bring forward new technologies and procedures as they develop with a view to gaining agreement of their inclusion in the above listed criteria. At completion of one-year full time (or part time equivalent) at Level 3 Grade 1 Year 1, the MRS (Nuclear Medicine) will automatically progress to Level 3 Grade 1 Year 2. LEVEL 3 Grade 2 (Year 1-2: Specialist / Educator Co-ordinator MRS (Nuclear Medicine) The MRS (Nuclear Medicine) may after not less than the completion of 2 years service (full-time or part-time equivalent) at Level 3, Grade 1, Year 2 apply to the Chief MRS for personal progression to Level 3, Grade 2, Year 1. A panel of at least three Chief MRS (or their representative) will assess the application. MRS (Nuclear Medicine) must have clinical expertise related to specific areas/modalities and be able to demonstrate a high level of competency and a consistently high standard of practice, as outlined in Level 3, Grade 1 and as determined by their peers (Level 4 and above). They will be expected to demonstrate their expertise through the development and maintenance of protocols, clinical reviews, teaching and delivery of in-service and presentations of papers/publications related to their area of expertise at departmental level and at conferences at national or international level. They may be called on in an advisory capacity to assist other MRS (Nuclear Medicine) with difficulties encountered within specific situations relating to their area of expertise. Applicants should have substantiated reports/appraisals by Senior MRS (Level 4 or above) and/or Staff Specialists. The reports should focus on the expertise, judgement, and provision of advice by the applicant, together with the impact on services provided by the department arising from the work of the applicant. A minimum of two reports should be included and at least one must be from a MRS (Nuclear Medicine). This wider acknowledgment of their expertise may be in publications in peer-reviewed journals.

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Grade 1 (Years 1 - 2: Section/Functional Unit Manager/Senior Radiation Therapist) A Radiation Therapist at this level would manage the operations of a section or functional unit of a Radiation Therapy Department and discharge associated administrative duties. A section or unit within this level is a single treatment machine where the managers would be responsible for the administrative detail, such as day to day running, throughput and patient care, patient scheduling, as well as immediate staffing. The Radiation Therapist at this level would also be responsible for maintaining adequate QA on patient treatment sheets, record and verify systems (including data entry) Portal films, EPI and billing data entry requirements. The Radiation Therapist would also be actively involved in ensuring all treatment deviations are investigated, reported and corrective measures implemented where appropriate. A section or unit may also relate to sections within the treatment planning area. These sections may include, but are not limited to simulator, mould room and planning room. Radiation Therapy Level 4 grade 1 positions may also be established as multidisciplinary team co-ordinators, where the Radiation Therapist is responsible for the management and associated duties of the multidisciplinary team functions. Radiation Therapy Level 4 Grade 1 positions may also be established as Radiation Therapist - Education. A position of Radiation Therapist - Education is responsible to the Chief Radiation Therapist for the identification, provision and delivery of continuing education for Radiation Therapists, with both clinical and general management components; and for the co-ordination and appropriate service delivery of the tutor function for undergraduates/trainees on clinical placement and Radiation Therapists in their Professional Development Year. Radiation Therapists at this level are responsible for their own Continuing Professional Development and maintenance of their AIR Accreditation. At completion of one year full-time (or part-time equivalent) at Level 4, Grade 1, Year 1, the MRS will automatically progress to Level 4, Grade 1, Year 2.

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3 The grounds and reasons advanced by the HSU in support of its claim are as follows: The Current Award 1. The Health Employees Medical Radiation Scientists (State) Award ('the award') currently contains classification structures and definitions relevant to Medical Radiation Scientists - who fall largely within three professional groupings, being Radiographers, Nuclear Medicine Technologists, and Medical Radiation Therapists. 2. The classification structure, along with rates of pay, was broadly consistent amongst all three professional groupings until a consent variation to the award occurred in 2001. This introduced a specific classification structure for Radiation Therapists, and alternative rates of pay, which in part drew a nexus with the rates of pay available to Hospitals Scientists. 3. Other than the variation identified in 2001, rates of pay for all three professions has since 1996 only varied in line with wage agreements entered into by the NSW Government with public sector unions via two memorandums of understanding (with so called 1996 and 2000 wage agreements.) The suggested variation 4. The claim for Medical Radiation Scientists seeks the establishment of three classifications structures pertinent to each profession, albeit underpinned by a common salary structure. These new classification structures and definitions are based upon a number of parameters, including the level of formal qualifications held, competencies and skills required to be undertaken, and requisite levels of responsibilities in relation to managing clinical/technical modalities and staff. 5. The variation sought to the classification structure for Radiation Therapists are comparatively minor, and are more refinements of the changes introduced in 2001. The variation sought to the classification structure for radiographers and Nuclear Medicine Technologists are more extensive, but drawing on obvious parallels with the structure available for Radiation Therapists. 6. The classification structure and definitions sought, along with rates of pay, are contained in Schedule A to this application. 7. It is contended by the HSU that the variation sought is fair and reasonable, and has regard to previous decisions of the Commission in relation to claims for public hospital Pharmacists and Perfusionists, which reflected rates of pay available to Hospital Scientists. Special Case 8. The claim is pursued as a Special Case by the HSU (Wage Fixing Principles number 10) and also relies upon other aspects of the Commission's Wage Fixation Principles in support of the new structure and rates claimed (Wage Fixing Principles number 6). 9. The HSU contends that a combination of reasons exist, which satisfies the requirements needed to substantiate the claim for varied classification structures and rates of pay for these professions as being a Special Case. These include: (a) The difficulty in the public health system attracting and retaining such professionals, which has led to a crisis in staffing and experiences available to patients in the public health system. Such shortages impact on the timely provision of patient care, and exacerbate existing difficulties in the public hospital system in regard to 'patient flow through' and bed availability. (b) The professions are increasingly required and relied upon to undertake aspects of what may have been formerly expected or required of clinicians. (c) Significant increases in work value have occurred and been unrecognised, especially for Radiographers and Nuclear Medicine Technologists. 10. The HSU would accordingly contend that for the above reasons, this claim satisfies the requirements for a Special Case, in that it demonstrably has " special attributes " and is " out of the ordinary " [ Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 166]. Work Value Changes 11. During the second half of 2004, by agreement between the Health Administration Corporation ('HAC') and the HSU, site visits were conducted to review workplace changes and 'pressures' specifically relevant to Radiographers and Nuclear Medicine Technologists. 12. The sites visited included: Radiography Department Westmead Hospital Royal Prince Alfred Hospital Royal North Shore Hospital Tamworth Base Hospital Muswellbrook Hospital Kurri Kurri Hospital Nuclear Medicine Department Westmead Hospital Liverpool Hospital St George Hospital Tamworth Base Hospital 13. During these visits a number of issues and concerns were identified by the HSU and its members, which underpin the variation sought. These include, but were not limited to, the following:

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Ø recruitment and retention problems leading to significant shortages, especially amongst senior and/or experienced professionals; Ø as a consequence, a 'heavy' reliance in some instances on less experienced of PDY employees that places further pressures on a dwindling number of senior professionals for supervision and training; Ø a further consequence of the 'skewed' experience and seniority profile of Departments is the increasing reliance and demands on those that remain for working additional hours; Ø as technology and services become more varied and more clinically precise, greater reliance is being placed upon professionals in Radiography and Nuclear Medicine Departments to 'participate' in determining the mode of treatment selected by the requesting clinician; Ø professionals are being required to participate in more complex and varied procedures that are of a therapeutic nature and are now called on to offer advice in a consultative situation; Ø an increase in the number of complex procedures now undertaken; Ø issues with the current award in relation to, for example, recognition for sonographers or any other specialised qualification, along with specialist or consultant services; Ø an 'explosion' of new technology; and Ø increases in workloads 14. Despite the variation to the award in 2001 for Radiation Therapists, the HSU believes similar issues also continue to impact on that profession. 15. Rates of pay for all three professions, more so for all levels of Radiographers and Nuclear Medicine Technologists working in the public health system, have fallen behind those of their peers and professional colleagues working in the public and private sector undertaking similar competencies and/or qualifications. 16. The inability to attract and retain these professions within the public health system has only served to aggravate the stressful working conditions and demands placed upon such professionals. This also impacts on the clinical and operational activities that can be delivered by the public health system. Conclusion 17. The new classification structures and altered of rates of pay resulting from the adoption of the suggested variation, would in the submission of the HSU, be a just and reasonable outcome of the work value changes, as well as an appropriate reflection of the Special Case aspects of the claim. 18. Further, the adoption of the variation would further consolidate and establish the progressive implementation of a 'common' salary structure for like health professionals in the public health system. 4 The HAC application The application brought by the Health Administration Corporation seeks to increase the prescribed standard hours of work for Radiographers, Trainee Radiographers and Radiotherapists from 35 per week to 38 per week. The application is in these terms: SCHEDULE A HEALTH EMPLOYEES CONDITIONS OF EMPLOYMENT (STATE) AWARD Proposed HAC Variation 1. Delete in clause 3, Hours, paragraph (iv). 3. Delete in clause 6, Permanent Part-Time and Part-Time Employees, Part 1-Permanent Part-Time Employees, paragraph (ii) the words: '(Radiographers and Trainee Radiographers will be calculated on the basis of one thirty-fifth)'. 4. Delete in clause 6, Permanent Part-Time and Part-Time Employees, Part 2 - Part-Time Employees, paragraph (i) the words '(in the case of Radiographers the calculation would be one thirty-fifth of the appropriate rate plus 15 per centum thereof)'. 5. Delete in clause 17, Long Service Leave, subclause (vi) the words: 'bears to 35 hours for Radiographers and 38 hours for other employees' and insert the words: '38 hours'. 6. Delete in clause, 18, Sick Leave, paragraph (i) the words: 'provided however, that for Radiographers and trainee Radiographers such leave shall be allowed on the basis of 70 rostered ordinary hours for each year of continuous service'.

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and is supported by the following grounds and reasons: SCHEDULE B GROUNDS AND REASONS 1. The Health Administration Corporation is seeking variations to the Health Employees Conditions of Employment (State) Award to amend existing provisions for the maximum ordinary hours of work for Radiographers and Radiographers in Training from 35 hours per week to 38 hours per week in order to introduce uniformity in respect of all classifications covered by this Award. 2. At present, clause 3 of the Health Employees Conditions of Employment (State) Award provides that the ordinary hours of work for day workers and apprentices 'shall be an average of 38 hours per week in each roster cycle', but further provides that the ordinary hours of work for Radiographers and Trainee Radiographers 'shall be an average of 35 hours per week in each roster cycle'. 3. The award provision providing for a 35-hour week for Radiographers was introduced in 1938 by Webb J in In re Hospital Employees (Metropolitan) Conciliation Committee [1938] AR(NSW)507 on the basis that this was the standard then applicable under the International Recommendation for X-ray and Radium Protection. Since the 1934 International Recommendation, the fundamental principles on which international guidance and recommendations are based have changed as the body of scientific knowledge on the effects of radiation has advanced. 4. Current international standards of not focus on hours or work. The International Commission on Radiological Protections, in Publication No 57, Radiological Protection of the Worker in Medicine and Dentistry notes at paragraph 142 that 'no special arrangement is required with respect to working hours and length of vacation'. 5. The International Commission's most recent Recommendation in 1990 approached the issue of radiological protection on the basis of maximum dose limits. 7. An increase in the ordinary hours of work for radiographers to 38 hours per week will not adversely affect the health of Radiographers. 8. Nuclear Medicine Technologists are required under the Health Employees Conditions of Employment (State) Award to work a 38-hour week. 9. It conforms with sound industrial relations principles for persons employed under the same Award conditions of employment to be required to work the same maximum ordinary hours each week. 10. The current award provision regarding the hours of work of Radiographers and Radiographers in Training is therefore anachronistic and inconsistent. 11. The variation sought is not contrary to the public interest 12. The Applicant relies on such other grounds and reasons as the Commission may deem fair and reasonable. 5 In support of its case in both matters and in addition to the documentary material relied upon, the HSU called evidence in affidavit form from the following witnesses:-

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Hours Case · Ingrid EGAN, Radiographer, Mona Vale Hospital · Naomi Elizabeth THOMAS, Radiographer, Lismore Base Hospital · John Andrew THOMAS, Diagnostic Radiographer, St George (Public) Hospital · Joanne Elizabeth DRAKE, Deputy Chief Radiographer, Prince of Wales Hospital · Kim ADELE, Radiographer, Prince of Wales Hospital · Dunja VASILIJEVIC, Radiographer, Prince of Wales Hospital · Matthew James TOWNING, Radiographer, Cooma Hospital · Janene Lesley HELWEGE, Radiographer, Ballina Hospital · George SAADE, Radiographer, Prince of Wales Hospital · Brian Frances KELLY, Radiographer, Prince of Wales Hospital · Kadie May HOSFORD, Radiographer, Westmead Hospital · Colin BULL, Radiation Oncologist, Director Radiation Oncology Network, Westmead and Nepean Hospitals · Jillian LEWIS, Radiographer, Westmead Hospital · Andrew Richard HODGSON, Radiographer, Westmead Hospital · Hang Thu NGUYEN, Radiographer, Westmead Hospital · Alana Kirsten WILLS, Radiographer, Westmead Hospital · Shaira Salim HADWANI, Radiographer, Westmead Hospital · Frances ADIWIDJAJA, Radiographer, Westmead Hospital · Jenna DEAN, Radiographer, Westmead Hospital · Melissa Marie GRAND, Radiographer, Westmead Hospital · Salman ZANJANI, Radiographer, Westmead Hospital · Vanathy MANIVASAHAN, Radiographer, Westmead Hospital · Andrew James MALITT, Radiographer, Westmead Hospital · Darrin Wayne GRAY, Radiographer, Director of Medical and Imaging Service, Gosford and Wyong Hospitals · Peter Jack WESTAWAY, Radiographer, Nepean Hospital 6 Of the numerous witnesses set out above it is appropriate to observe that the collective body of evidence thereby adduced went for the most part unchallenged as to changes in the nature of work, skills and responsibilities of the various classifications concerned and the environment in which the work is done. Indeed, in the salaries case, only Mr Ravlich, Mr Thomas, Mr Gregory, Mr Gray, Mr Goddard, Mr Burt, Ms Cook, Ms Walters, Mr Duggan Mr Scott, Ms Rivet, Ms Dunning, Mr Hopper and Ms Carmody were required for cross-examination and in the hours case, only Mr Bull, Mr Zanjani, Mr Hodgson, Ms Grand and Ms Dean were so required. This was particularly in so far as the HSU evidence in the hours case was concerned, largely because of the similar nature of the evidence as to the impact of increased hours of work on the various witnesses but also, it may be inferred, importantly in the overall context of the cases presented by the respective interests, because of the absence of grounds or sufficient grounds upon which to mount an attack on that evidence. For example, HAC mounted no attack on the HSU contention as to the antiquated and outdated nature of the present award definitions and classification structure which relies in grading and remunerating promotional positions upon an historical list of hospitals and a formula used to calculate the adjusted daily average of occupied beds neither of which have relevance in contemporary circumstances. 7 For its part, HAC called evidence from the following witnesses:- Salaries Case · Dr Roy DONNELLY, Director Medical Administration, Royal Prince Alfred Hospital · Kenneth Reginald BARKER, Chief Financial Officer, New South Wales Department of Health Hours Case · Lee COLLINS, Medical Physicist Westmead Hospital · Trevor CRAFT, Assistant Director Employee Relations, New South Wales Department of Health Of those witnesses, HSU required Mr Barker and Mr Craft for cross-examination. 8 History of Award (Medical Radiation Scientists) The current award, as may be seen from the table below, encompasses two classification structures, the first of the two structures being shared by Radiographers and Nuclear Medical Technologists and the second being exclusively for Medical Radiation Therapists (otherwise called radiotherapists). 9 The current rates of pay applicable to the two classification structures are as follows:- MEDICAL RADIATION SCIENTISTS Radiographer in training $630.60 p.w Level 1 $774.00 p.w Level 2 1st year of service $798.40 p.w 2nd year of service $ 885.90 p.w 3rd year of service $ 978.10 p.w 4th year of service $ 1, 024.20 p.w Level 3 1st year of service $ 1,077.10 p.w 2nd year of service $ 1,170.60 p.w Level 4 Grade 1 $ 1,206.80 p.w Grade 2 $ 1,283.40 p.w Level 5 Grade 1 $ 1,366.60 p.w Grade 2 $ 1,459.50 p.w Grade 3 $ 1544.30 p.w Grade 4 $ 1,587.40 p.w MEDICAL RADIATION THERAPISTS Level 1 1st year of service and thereafter $ 816.70 p.w Level 2 1st year of service $ 847.40 p.w 2nd year of service $ 961.20 p.w 3rd year of service $ 1,093.00 p.w 4th year of service $ 1,146.20 p.w Level 3 Grade 1 1st year of service $ 1,183.20 p.w 2nd year of service $ 1,272.60 p.w Grade 2 1st year of service $ 1, 272.60 p.w 2nd year of service $ 1, 351.90 p.w Level 4 Grade 1 $ 1,425.90 p.w Grade 2 $ 1,500.00 p.w Level 5 1st year of service $ 1,541.60 p.w 2nd year of service $ 1, 593.90 p.w Level 6 1st year of service $ 1848.90 p.w 2nd year of service $ 1898.70 p.w 10 The HSU claim, if successful, would have the effect of removing the disparity between the two classification/salary structures and in so doing, adopting what is said to be a common classification/salary structure more appropriately remunerating employees affected in the light of demonstrated work value changes and special case considerations. That common structure is drawn largely although not exhaustively from the classification/salary structure applicable to Hospital Scientists thus in HSU's manner of expression, completing the industrial and professional journey that commenced with employees requiring certificates with minimal entry requirements in the early 1970s to the position since about 1995 where degree qualification at undergraduate Level 2 is required and where, further to that, post-graduate study and other forms of continuing education are both commonplace and increasingly necessary for the maintenance of professional standards of competency in a constantly changing environment. 11 The detailed history of the classification structures the subject of the HSU claim is helpfully set out in the comprehensive affidavit of Mr Ravlich and with certain exceptions to which I will refer in a moment, which need not be recited for the purpose of these reasons. 12 Plainly, though and for many years prior to the award being varied in 2001, nuclear medicine technologists, radiation therapists and radiographers had shared an essentially common classification/salary structure both under the predecessor Hospital Employees Technical (State) Award and under the award in its present emanation applying as it has since first being made in 1997, exclusively to this group of employees. 13 In 2001, as a result of consent proceedings before the Commission, the award was varied to prescribe for the present 6-level classification structure for radiation therapists whilst maintaining the pre-existing 5-level structure for nuclear medicine technologists and radiographers. As earlier observed, it is this disparity as well as the perceived inadequacy of the classification/salary structures for these groups of employees generally (and having regard to work value and special case considerations) which the HSU, by its application, seeks to remedy. 14 The Contentions In bringing its application the HSU seeks to bring into existence what is described as a common framework of six levels for each of the three discrete groups of employees (viz radiographers, nuclear medicine technologists and radiation therapists) but importantly, a framework which is underpinned by definitions at each level which are unique to each discrete group and which are reflective of current technologies and clinical modalities and of the increasing responsibilities undertaken at all classification levels. 15 The classification structure also discards the current reliance (in the case of Radiographers and Nuclear Medicine Technologists) on the adjusted daily average of occupied beds (ADA) or the current 'listing' of hospitals as being antiquated and not a practical reflection of the services delivered by these groups of employees. Secondly, the claim seeks to introduce a common remuneration structure for all three groups of employees based on the six level classification framework. The rates of pay sought reflect those available to what the HSU contends are comparable health professionals. 16 It is contended by the HSU that the Commission, as in previous arbitral proceedings when dealing with health industry professions, should in determining fair and reasonable rates have regard to the rates of pay available to comparable health professionals such as Pharmacists, Hospital Scientists, Senior Hospital Scientists, and Principal Hospital Scientists. 17 Special Case The HSU contends that a combination of attributes exist which satisfy the requirements needed to substantiate the claim for a new classification structure and rates of pay for Radiographers, Nuclear Medicine Technologists, and Radiation Therapists as being a Special Case. These include: (a) The current award definitions and classification structure for certainly Radiographers and Nuclear Medicine Technologists is antiquated and not reflective of current technologies and clinical modalities and responsibilities, and relies upon grading and remunerating senior positions on a historical list of hospitals and ADAs that is redundant. This is wholly unsatisfactory.

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(l) All these changes has created anomalies and inequities in rates of pay when compared to other classifications which also require the same or similar level of professional qualifications, and performing work of relative comparable value. 18 The HSU contends that for the above reasons, this claim satisfies the requirements for a Special Case, in that it demonstrably has "special attributes" and is "out of the ordinary" [Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 166]. 19 Work Value Changes The HSU relies upon the significant new addition to the work requirements of these employees as detailed in the evidence. These include: (a) The reliance on new employees having completed relevant tertiary qualifications, along with the need to complete additional qualifications. (b) As part of this increased level of educational requirements and reliance on continuing education, these employees are required to participate in Continuous Professional Development ('CPD') programs so as to maintain their accreditation with the relevant professional body. (c) The issues of increased and continuing education, and the increasing incidence of post graduate qualifications being sought (or required in specialty areas such as Sonography), is all reflective of a much higher level of academic and clinical competence that is a mandatory requirement and expectation of the profession and employer. (d) The requirement to utilise and apply appropriately additional technologies and resultant clinical modalities/skills is evident. It is clear that the advance in existing technologies to ever increasing levels of complexity, or the advent of new and innovative technologies, require the undertaking of additional and complex tasks. (e) It is clear that the utilisation of such technologies and the additional skills required to be held by all three groups of employees is now an essential feature as to how a patient's condition is more precisely diagnosed - leading to more definitive and earlier intervention. The treatment of patients with various malignant diseases has also been advanced to the potential benefit of the individual and the community as a whole. (f) All three groups of employees identify the continued evolution of greater degrees of autonomy and independence, in part as a reflection of their 'shift' from a technician to a clearly recognised highly trained health professional, and also in part due to the increasing unavailability of Radiologists and relevant specialists. This has led to a skill transfer and a certain reliance on the diagnostician role of these professions. (g) Senior classifications in all three groups attest to a significant increase in additional duties associated with their managerial function. These include, but are not limited to, an increase in the scope of HR functions undertaken; greater financial accountability and responsibility; along with having to become when new services or technologies are determined that now require the relevant Chief to become a project manager for the entire acquisition - pre and post - rather than as previously happened, being responsible for the operational commissioning and/or implementation. (h) When viewed in totality, these additional educational qualifications and levels of continuing education; the ever increasing level of technology and its complexity; a subsequent increase in the associated clinical tasks and judgment required; other additional responsibilities that are now falling upon these professionals; all equate in the view of the HSU to a significant increase to those dealt with by Sweeney J in 1989. (i) As the provided by the HSU attest to, there is a clear and heightened contribution of these professionals now expected, and indeed fundamental to the activities and performance of such professions in the public health system. 20 The HSU claim contemplates 1 July 1996 as the datum point for measurement of work value changes in the case of Radiographers and Nuclear Medical Technologists and in the case of Radiation Therapists, having regard to the consent award variation to which I have earlier referred, the datum point contemplated is no later than 1 January 2001 and no earlier than 1 July 1996.

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I accept that the use of the current classification structure in this way was and is necessary to try to attract and retain such skills. However, the inability of the current award to accommodate this without creating inequities and further anomalies is from my direct experience a very valid reason why the classification structure and rates of pay needs urgent modification. 26 At the conclusion of evidence, in fact on the date listed for submissions, HAC informed the Commission that it had formulated and communicated to HSU the previous evening, a written offer of settlement. The letter of offer was tendered and admitted into evidence without objection. With the consent of the parties, further conciliation was attempted and in the result the matters proceeded to conclusion by way of formal submissions with the parties agreeing to further consider their respective positions and to advise the Commission in the event that a conciliated outcome is achieved prior to the Commission's decision being handed down. 27 Importantly, though, the commendable albeit somewhat belated initiative by HAC in making the settlement offer carries with it the inevitable implication that there is an acceptance by HAC or to put it as neutrally as I can, there is no longer the same character of dispute between the parties as to the work value changes and special case attributes for which HSU contends. This fact when taken together with the absence of criticism by HAC of the revised definitions and criteria for progression proposed by HSU brings the ambit of dispute into much narrower and sharper focus. 28 It nevertheless remains the case, as submitted by Mr Warren, that the Commission must satisfy itself on the evidence presented that such work value changes and special case attributes exist. I will return to that matter in due course. 29 As to the appropriate measurement in money terms of any changes in work value and special case attributes demonstrated on the evidence, HSU points among other things to the approach taken by the Full Bench in Health Employees Pharmacists (State) Award (2003) 132 IR 244 and the acceptance by HAC in 2001 of the appropriateness of alignment between hospital scientists and radiation therapists. It is noted in that regard that the 2001 adjustment of radiation therapists rates had the effect of significantly lessening the quantum of increase for that group of employees, should the present HSU application succeed, by comparison with the other two groups namely, radiographers and nuclear technologists for whom there has been no such adjustment and hence there is further to travel in bringing them into line with hospital scientists. 30 HSU further contends, and it is not disputed, that the evidence amply demonstrates significant staff shortages across the three subject groups and that it does so in such a way in terms of the consequential effect of such shortages on the work of existing employees as to bring that issue squarely into focus as a relevant issue in consideration of whether a special case has been made out. 31 In Pharmacists at [53-58], the Full Bench said this about staff shortages: 53 Here, we consider that the shortages of labour demonstrated on the evidence are critically relevant because the shortages have resulted in changes in the nature of the skills and responsibilities associated with the work performed in the various streams. Those changes have occurred because the shortages have required changes in the work performed by employees in order to endeavour to maintain the level and quality of service in the health system, notwithstanding a reduction in labour resources. 54 Accordingly, we are of the view that the shortage of labour is a significant factor in finding that a special case exists, the reasons for which are primarily twofold. Firstly, as discussed earlier, the shortage of labour is connected to changes in work value. There is little doubt that a shortage of labour in the relevant streams has resulted in changes in the way work is now performed, such that it has resulted in changes in the nature of the work (that is, the requisite skills and responsibilities) and in the value of that work. 55 Secondly, given that this matter is concerned with significant shortages in a number of occupational streams in the public health sector, it is plainly a matter of considerable public interest. In this context, the fact that there is a labour shortage, and the magnitude of that shortage in some areas (such as pharmacy), is sufficient to make out a special case in this matter. 56 This approach is not inconsistent with earlier authorities referred to by the HAC as to "attraction rates" and fits comfortably, in our view, with the decision in Public Hospital Nurses (No 3) case. We note that the HSU did argue as follows: … the Commission, in these proceedings, is entitled to, and should, take into account considerations of an "attraction and retention" nature as has occurred in relation to nurses both in the State and Federal industrial jurisdictions. However, unlike the situation with nurses, this application on behalf of Hospital Pharmacists is not based entirely (or even substantially) on "attraction and retention" considerations. These are just part of a range of considerations that the Commission should take into account, in the context of a special case proceeding, which includes other matters established on the evidence such as the increased work value of Hospital Pharmacists and the existence of anomalies in the current wage structure for Hospital Pharmacists when compared to other health professionals. 57 To the extent that the HSU's case depended on attraction rates per se we reject it. 58 In the light of the approach we have adopted to the issue of 'shortage of labour', it is unnecessary to rule on the HAC's argument that the absence of evidence that increased wage rates will rectify any labour shortage requires resolution. However, we note that the increased wage rates we propose to grant may nevertheless have the effect of contributing to the rectification of labour shortages. There is evidence, for instance, that the level of wages for Hospital Pharmacists compared to community Pharmacists has contributed to a drift of Pharmacists from the public to the private sector. It may well be the case that increasing rates of pay for Hospital Pharmacists may go some of the way to rectifying the labour shortage in that area by closing the salary gap that exists between the public and private sector. However, we would emphasise that, while we have had regard to what may be a positive side effect of wage increases, such side effects are not the basis for any increases we will award.

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38 The contentions The HAC argument proceeds on the basis, broadly stated, that the evidence of Mr Lee Collins (Exhibit 63), being unchallenged in any material terms by the HSU, clearly demonstrates that the reason for Radiographers and Radiation Therapists being required to work a shorter working week than other persons in the workforce generally, no longer exists. To the contrary, Mr Collins' evidence demonstrates that Radiographers and Radiation Therapists working both in public hospitals in NSW and in private practice, are exposed to far less harmful radiation than current recommended minimum requirements. Indeed, Nuclear Medicine Technologists are seen to be exposed to greater levels of radiation than Radiographers and Radiation Therapists, still well below acceptable levels, and it is noted that they continue to work a 38-hour week. 39 The standardisation of ordinary working hours for all Medical Radiation Scientists to 38 hours per week is fully justified once it is acknowledged that the medical reason for some Medical Radiation Scientists working lesser ordinary hours per week, no longer exists. Indeed Mr Burt, the Operations Manager, Radiology Network, Liverpool Hospital, candidly agreed in cross examination that it was inequitable for the employees in the three streams of radiation science to work different ordinary hours. 40 Furthermore, it is noted, that a cornerstone of the HSU's claim for increased rates of pay for Medical Radiation Scientists is the comparison drawn to Hospital Scientists. If it is accepted by the Commission that Medical Radiation Scientists should have their salaries more closely aligned to those of Hospital Scientists, it is noted that Hospital Scientists receive their salary for working 38 ordinary hours per week. If equity demands that Medical Radiation Scientists be aligned to the Hospital Scientists salary scale, where applicable, then it follows that all Medical Radiation Scientists ought work the same number of ordinary hours each week as Hospital Scientists to receive the comparable salary rates. 41 For its part, HSU submitted that the mere fact that the scientific basis for awarding radiographers and radiotherapists a 35-hour week has long since disappeared does not of itself form a proper basis to reduce the working conditions for such employees. Evolving scientific thinking in terms of exposure to ionising radiation and its implications for the health and safety of employees so exposed has been known for many years notwithstanding which the disparate hours of work have remained unaltered. HAC is said to have offered no explanation as to why it is now appropriate to increase hours of work for these groups of employees particularly in an industrial environment where for many decades now, standard hours of work fixed by awards have been trending downwards. 42 Furthermore and although a good deal was made by Mr Warren in his cross-examination of HSU witnesses about the fact that full-time weekly earnings will not be reduced if hours of work increase from 35 to 38, there can be no doubt that there would be a reduction in real terms in the order of 8% in the hourly rate of pay and hence, the net value of the work performed and in the case of part-time employees of which there are many, there would be an actual reduction in remuneration received by reason of the fact that a divisor of 38 instead of 35 would be used to calculate earnings. Whichever way it is viewed, such an alteration in standard hours of work would be seen as a retrograde step by radiographers and radiotherapists and on the evidence presented, would have the potential to exacerbate the recruiting and retention difficulties and to cause employees to look more favourably at employment opportunities outside the public hospital sector. 43 Consideration In my opinion, there can be no doubt on the evidence presented that the HSU has made out a special case and has established changes in the nature of work, skill and responsibilities for the subject groups of employees and further that the changes demonstrated constitute such a significant net addition to work requirements as to warrant the creation of the new classifications sought by HSU. In considering the public interest, as is the Commission's obligation, I am mindful of the traditional approach of the Commission exemplified by the following exchange during the course of addresses: HIS HONOUR: I think the Commission, in considering the cost impact and the public interest, conceptually has to take into account actual dollars to the extent those dollars are in evidence, and also the public interest in terms of fairness and equity, and also an element of public interest in terms of the level and quality of service provided to those who have a need to consume. MURPHY: Precisely. I understand that is the approach adopted by the Full Bench in the previous matter. The public has an interest in the capacity of public hospitals to be able to attract and retain competent staff. 44 Plainly, the Commission's obligation to take into account the public interest involves the most earnest consideration of the economic impact of its decision in cost terms but also it involves questions of fair and just outcomes as well as the subtle relationship between the pure cost element and the end benefit which may accrue in the broader public interest. In Re Operational Ambulance Officer (2001) 113 IR 384 at [204], the Full Bench described such a relationship this way: Mr Hatcher submitted that an increase in the grant of annual leave would impose an additional cost burden on the Service with consequential reduction in funds available for recruiting and consequentially increases in the use of overtime. We have taken into account this consideration in assessing the quantum of any adjustment in annual leave in the decision. In the result, the increase that would have otherwise been granted has been modified, in part, having regard to the provisions of ss 3 and 146 of the Act. However, we also observe that the costs of granting the Association's claim must be seen in the context of any possible economic benefit arising from the claim. We are of the view that any such increased cost would, when properly viewed, be more in the nature of an investment in workplace safety which, by its very nature, would be calculated to bring about a reduction in the recurrent costs of workplace illness and injury. 45 In this case, for example, Mr Barker conceded although had not factored into his costings, that relief from existing staff shortages to a greater or lesser degree, would mean consequential savings in the cost of overtime presently being incurred and it is not difficult to imagine how improvements in service delivery achieved by better utilisation of resources would have positive outcomes in terms of economic benefit. 46 As to whether the HSU claim, involving as it does, a substantial element of retrospectivity should be granted in full, I am not so persuaded. Having said that, I do not consider the HAC offer to progressively move the three subject classifications into closer alignment with hospital scientists with eventual effect from 1 July 2007 to be a satisfactory means of concluding the proceedings. 47 As Mr Murphy submitted and it is not surprising given the obvious lateness and constraints of time in its formulation, the HAC offer is silent as to a framework of definitions which would underpin the proposed new classification structure. This compares with the comprehensive and detailed framework of definitions proposed by HSU about which there was no criticism by HAC during the course of proceedings. 48 Further, the HAC offer unlike the HSU claim proposes to limit the base grade employees, the largest group of employees to the penultimate year of the 8-year base grade hospital scientist range. There seems no reason for this other than as Mr Murphy suggested, as a means of reducing costs. If there is a justification for alignment with hospital scientists as I am comfortably satisfied there is, it would be inappropriate to deny entry level graduates, the largest representative group within the medical radiation classifications, the same scope and reach as their counterparts within the hospital scientist groups. 49 There are further points of difference between the HAC offer and the HSU claim as the two structures move upwards into the promotional hierarchy which are in the case of the HAC offer unexplained and unsupported by a framework of definitions. This is in contrast to the HSU claim and the latter, as Mr Murphy submitted, is based squarely on the outcome determined by the Full Bench in the Pharmacists case. I consider, on balance, that the HSU proposal is better supported on the cases presented and has more to commend it in the industrial sense. 50 There is then the vexed question as to whether the HAC offer is adequate in terms of its proposed phasing in of increases which in effect would mean that radiographers and nuclear medicine technologists get nothing in the way of salary movement until 1 July 2006 when they would move onto the radiation therapists structure and that radiation therapists would get nothing by way of salary movement until the three groups (radiographers, nuclear medicine technologists and radiation therapists) moved across onto an improved or a more beneficial hospital scientists structure on 1 July 2007. 51 I am of the view that the competing interests would be best served by the orders I propose to make which will have the effect of aligning the three subject groups with hospital scientists from a single operative date albeit prospectively and based on the classification structure and framework of definitions put forward by the HSU. To that extent, the HSU application is granted in part only. 52 As to the HAC application to reduce hours and whilst it can be appreciated in theory at least, that uniform hours of work as between the numerous classifications across the public hospital sector may have a superficial attraction from the point of view of reduction in the cost of labour and perhaps a greater degree of equity on the face of it, it would be an unusual and to my mind, inappropriate outcome of a major industrial case involving work value increases and special case considerations if, in the result, a significant number of employees received no increase or suffered an actual reduction in earnings and if all employees concerned with the application had the hourly value of their work downgraded by 8% or more. 53 That is not to say at some future time and in a different bargaining environment, the industrial parties to these proceedings may not wish to revisit the matter of standardising hours of work in a more mutually beneficial way. For the time being, however, the existing arrangements as to hours of work for radiographers and radiotherapists should remain undisturbed. I note in that regard, the absence of evidence going to industrial disharmony resulting from such arrangements and the history of almost seventy continuous years of existence of the arrangements notwithstanding the shift in emphasis many years ago in the scientific thinking which initially gave rise to the arrangement and I refer here as earlier observed, to the shift away from hours of work limitation to dose limitation as the accepted control measure for ionising radiation. 54 On balance, I am unable to conclude that there is a sufficient basis upon which to grant the HAC application. I make the following orders: 1. The HSU application in IRC 04/6746 is granted such that the relevant award is varied to include the definitions and salary structure proposed in the HSU application. 2. The variation will take effect on and from the first pay period to commence on or after 1 April 2006 and the new rates of pay will be those proposed by the HSU application to operate from 1 July 2005. 3. The HSU application is otherwise refused 4. The HAC application in IRC 05/2195 is refused 55 The HSU is directed to file and serve a document in the form of a draft variation reflecting the above orders within 14 days and HAC is to indicate its written consent within 14 days of receiving such document. In the event that there is disagreement as to the terms of the document, the matter will be listed for the purpose of settling such terms.

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Cases Cited (3)

Cited By (2)