Health Employees Pharmacists (State) Award and other Awards [2003] NSWIRComm 453

Crown Employees (Administrative and Clerical Officers) State Award (No 2) (1993) 52 IR 243) Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 Employers First v The NSW/ACT Independent Education Union and Another (2002) 115 IR 8 Equal Remuneration Principle Re (2000) 97 IR 177 Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 Health and Research Employees' Association, (application by) for a new Hospital Technical (State) Award, (unreported, Matter No 296 of 1976, 25 August 1977). Hospital Employee - Technical (Metropolitan) Award & Anor [1971] AR NSW 272, Hospital Employees - Pharmacists (State) Award, unreported, (Matter No. 188 of 1980, 23 May 1980) Hospital Employees - Technical (Metropolitan) Award ([1971] AR (NSW) 272) Hospital Employees Medical Technologists (State) Award, unreported, (Matter No. 293 of 1976, 28 June 1978). Hospital Employees Medical Technologists (State) Award, unreported, (Matter No. 11 of 1979, 27 March 1979) Hospital Employees Pharmacists (State) Award (1974) 202 IG 1416 Hospital Employees Pharmacists (State) Award, unreported - (Matter IRC 6536 of 1997 24 March 1997). Hospital Employees Pharmacists (State) Award, unreported, (Matter No. 295 of 1976) Hospital Employees Pharmacists (State) Award, unreported, (Matter No. 304 of 1989, 11 October 1989) CASES CITED : Local Courts Anomaly Case [1989] AR (NSW) 638 Metal Trades Award, Re State Electricity Commission of Victoria (1964) 106 CAR 535. Operational Ambulance Officers (State) Award (2001) 113 IR 384 Public Hospital Nurses (State) Award (2002) 115 IR 183 Public Hospital Nurses (State) Award (2002) 115 IR 183 Public Hospital Nurses (State) Award (No. 3) (2002) 121 IR 28 Public Hospital Social Workers Award (unreported, Full Bench, 86/264, 20 December 1988) Public Service Association of New South Wales (application by) for a New Crown Employees (United Dental Hospital of Sydney) Award, (unreported, Matter No 642 of 1980, 26 September 1980), Railways Professional Officers Award (1958) 89 CAR 40 Social and Community Services Employees (State) Award (2001) 113 IR 119 State Wage Case 1989 (1989) 30 IR 107 State Wage Case 1991 (1991) IR 362 State Wage Case 2001 (2001) 104 IR 438 State Wage Case (2003) 121 IR 446 Transport Industry (State) Award (1996) 95 IR 126 United Dental Hospital of Sydney and Public Hospitals Dental Technicians Salaries (State) Award, (unreported, Matter No 522 of 1989, 14 November 1990). HEARING DATES: 11/11/2002; 11/12/2002; 11/13/2002; 11/18/2002; 11/19/2002; 11/20/2002; 11/22/2002; 11/25/2002; 11/26/2002; 12/04/2002; 12/06/2002; 12/19/2002; 03/11/2003; 03/12/2003; 04/23/2003; 04/24/2003; 04/28/2003; 04/29/2003; 05/05/2003; 05/06/2003; 05/07/2003; 05/09/2003; 07/29/2003; 08/26/2003 DATE OF JUDGMENT: 12/12/2003

HEALTH SERVICES UNION Mr J Murphy of counsel LEGAL REPRESENTATIVES: HEALTH ADMINISTRATION CORPORATION Mr R Goot, senior counsel and Mr P Ginters of counsel

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Walton J, Vice-President Grayson DP McLeay C 12 December 2003

PUBLIC HEALTH INDUSTRY (STATE) AWARD 1999 APPLICATION BY THE HEALTH AND RESEARCH EMPLOYEES' ASSOCIATION OF NEW SOUTH WALES FOR A NEW AWARD

HEALTH EMPLOYEES CONDITIONS OF EMPLOYMENT (STATE) AWARD 2000 APPLICATION BY THE HEALTH ADMINISTRATION CORPORATION FOR A NEW AWARD

HEALTH EMPLOYEES (STATE) AWARD APPLICATION BY THE HEALTH AND RESEARCH EMPLOYEES' ASSOCIATION OF NEW SOUTH WALES FOR VARIATION RE CLAUSE 1 DEFINITIONS

DECISION OF THE COMMISSION [2003] NSWIRComm 453

1 By a series of significant amendments to its originating process, the Health and Research Employees' Association of New South Wales, now known as the Health Services Union ('HSU') significantly confined the scope of a vast and labyrinthine application for a new award, which consisted of, in its original form, the consolidation of some thirty health industry awards, the review of eight occupational streams (including the establishment of new classifications or the restructuring of existing classification structures) and significant alterations to rates of pay and conditions of employment. Throughout the course of that process the Health Administration Corporation ('HAC') maintained a cross application.

2 However, in consequence of an agreement reached late in the proceedings, the scope of the amended application brought by the HSU was further reduced (for present consideration) to an application to vary six awards with respect to three occupational 'streams': pharmacy, dental and perfusion (which shall be hereafter referred to as "the application").

3 The balance of the HSU's amended application (addressing the remaining occupational and conditions of employment streams) and the cross claim by the HAC were stood over by consent until after determination of applications regarding those three streams. In addition, both the HSU and the HAC abandoned their respective prior applications for sector-wide award integration and consolidation. 4 Thus, the application presently under consideration bears little resemblance to the original form of the application (or for that matter the form of the application as last amended before the procedural arrangement reached by the consent of the parties). As will be observed from our opening remarks, this development did not result from a process of refinement through ordinary pre-trial processes (although we note that those preliminary procedures were quite substantial). Rather, the HSU made a series of substantial adjustments to its application during the proceedings, all of which, when taken together, substantially altered the size, dimension and nature of the matter. Whilst the ultimate confinement of the immediate scope of the proceedings is, no doubt, desirable in all of the circumstances, we would wish to remark that the course taken by the HSU resulted in substantial delays in the proceedings and made case management complex. Further, the HSU's approach to the proceedings resulted in it continually shifting ground as to the bases for its application suggesting that, in the early stages of these proceedings, less than an entirely realistic assessment may have been given to the nature and scope of the proceedings sought to be advanced. In any event, the application as ultimately pressed was quite modest when compared with its predecessors.

5 Whilst the HAC ultimately adjourned its cross claim for the inclusion of certain conditions of employment provisions and did offer in a very limited way alternative definitions for some employment classifications caught by the application, it essentially engaged in a blanket repudiation of the application by resisting outright any substantial reclassification, redefinition of classifications or adjustment to rates of pay. We consider that that approach (of essentially outright opposition) to be quite unsatisfactory in this matter for three reasons: 1. We refer to the recent observations of a Full Bench of this Commission in Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 at [61]: 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 pp8-9): 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. These remarks are apposite in the present matter. 2. There were aspects of the application which on a reasonable assessment of the competing positions of the parties required a different approach by the HAC. There was revealed in the evidence some deficiencies in the existing classification structures and gaps in the operation of the awards under consideration in this matter (which, in fact, had been partially resolved by administrative action taken by the HAC) which should have resulted in the HAC putting an alternative position with respect to various aspects of the application. For example, the HAC opposed outright the application for a new Perfusionist classification and offered no proposal as to an appropriate rate of pay for any existing or new classification in that respect, notwithstanding that it had been demonstrated during the proceedings that the existing classifications for that occupation were entirely redundant. Further, the HAC did not propose any alternate classification structure for Pharmacy Technicians, notwithstanding that the evidence demonstrated that the existing classifications and definitions were so grossly inadequate as to be inoperative in any legal or practical sense. 3. In the result, the Commission was left without any real assistance by the opponent to the primary application as to the appropriate resolution of the issues raised by it, in circumstances where it was reasonably clear that at least some alternative to the form of existing awards would be required. One consequence of this approach, as was observed by the Full Bench in the Psychologists case, is that, where there is a clear indication in the proceedings that some wage or classification adjustments are appropriate (in accordance with the wage fixing principles) the Full Bench is left without any 'arguable alternatives' from the HAC as to the form of the award, that is, the actual adjustments to the award which may be appropriate. Thus, we have been compelled, where classification and wage adjustments have been found to be warranted under the wage fixing principles in relation to a particular aspect of the application, as in the Psychologists case, to "accept more forcefully than we might otherwise have done," the position advanced (on the evidence) by the HSU.

6 The following brief outline of the course of the proceedings will demonstrate the magnitude of the change throughout the course of the proceedings. It is also important to establish the context in which we come to give judgment, particularly in circumstances where the HSU continues to press its application, in part, by reference to classifications and rates of pay found in awards which, if the HSU had pressed its original application, would have formed part of a common award or awards and in circumstances where the potential for a flow-on of any determination (or precedent established by it) is an issue in the proceedings. Course of the Proceedings

7 The original applications were filed by the HSU and the HAC on 20 December 1999 and 23 February 2000 respectively. By November 2002 when the matter came on for hearing, each applicant had filed two revised versions of the applications; the HSU on 7 December 2001 and 16 September 2002 and the HAC on 18 September 2001 and 16 September 2002. At that time the applications sought the consolidation of some 30 existing health sector awards, the HSU seeking at that time, one award for both rates of pay and conditions (although it later sought two) and the HAC four awards (separate salaries and conditions awards for two classes of employees; the classes deriving from the historical union coverage in the health sector and its affect on award formation [membership at an earlier stage having been divided between the HSU and the Public Services Association]).

8 The awards sought to be amalgamated by the HSU and the HAC were: 1. Health Employees' Conditions of Employment (State) Award made 3 March 1998 (307 IG 88) and all variations thereof; 2. Public Hospital (Professional and Associated Staff) Conditions of Employment (State) Award made 16 December 1983 (265 IG 1430) and all variations thereof; 3. Health Employees (State) Award made 19 May 1998 (307 IG 29) and all variations thereof; 4. Health Employees General Administrative Staff (State) Award made 19 May 1998 (307 IG 44) and all variations thereof; 5. Health Employees Administrative Staff (State) Award made 19 May 1998 (307 IG 15) and all variations thereof; 6. Health Employees Technical (State) Award made 19 May 1998 (307 IG 56) and all variations thereof; 7. Health Employees Engineers (State) Award made 19 May 1998 (307 IG 47) and all variations thereof; 8. Health Employees Pharmacists (State) Award made 19 May 1998 (307 IG 21) and all variations thereof; 9. Health Employees Medical Radiation Scientist (State) Award made 19 May 1998 (307 IG 63) and all variations thereof; 10. Health Employees Computer Staff (State) Award made 19 May 1998 (307 IG 52) and all variations thereof; 11. Health Managers (State) Award made 19 May 1998 (307 IG 73) and all variations thereof; 12. Health Employees Interpreters (State) Award made 19 May 1998 (307 IG 67) and all variations thereof; 13. Public Hospital Residential Services Assistant (State) Award made 19 May 1998 (307 IG 70) and all variations thereof; 14. Royal Rehab. Service-Weemala Unit Residential Care Staff (State) Award made 19 May 1998 (307 IG 26) and all variations thereof; 15. Dental Therapists (State) Award made 3 February 2000 (320 IG 1133) and all variations thereof; 16. Health Employees Dental Officers (State) Award made 17 March 1999 (310 IG 1156) and all variations thereof; 17. Health Employees Dental Technicians (State) Award made 17 March 1999 (310 IG 1153) and all variations thereof; 18. Public Hospital Dental Assistants (State) Award made 3 February 2000 (320 IG 1136) and all variations thereof; 19. Public Hospital Dental Staff (State) Award made 3 February 2000 (320 IG 1130) and all variations thereof; 20. Public Hospital Librarians Award made 30 November 1989 (257 IG 907) and all variations thereof; 21. Public Hospital Medical Record Librarians (State) Award made 17 August 1973 (193 IG 1691) and all variations thereof; 22. Public Hospital Physiotherapists, Occupational Therapists & Speech Pathologists (State) Award made 12 June 1986 (251 IG 308) and all variations thereof; 23. Public Hospital Social Workers (State) Award made 17 November 1999 (315 IG 731) and all variations thereof; 24. Public Hospital Professional Engineers (Biomedical Engineers) Award made 7 February 1982 (234 IG 444) and all variations thereof; 25. Scientific Officers (Public Hospital Dieticians) Award made 14 October 1976 (204 IG 1488) and all variations thereof; 26. Hospital Scientists (State) Award made 31 August 1988 (276 IG 1) and all variations thereof; 27. Public Hospital Medical Officers (State) Award made 15 December 1977 (209 IG 2771) and all variations thereof; 28. Public Hospital Medical Superintendents (State) Award made 3 December 1976 (265 IG 1417) and all variations thereof; 29. Health Professional & Medical Salaries (State) Award; made 12 October 1998 (312 IG 516) and all variations thereof; 30. Food Inspectors-Determination and all variations thereto. 9 The HAC's application also affected the Health Employees Status of Employment Interim (State) Award.

10 The seven occupational 'streams' affected by the HSU's application were: 1. Pharmacy 2. Dental 3. Perfusionist 4. Purchasing/Supply 5. Cardiac Technologist 6. Mortuary/Forensic 7. Hotel Services - Laundry 11 An eighth occupational stream was added following the joinder of proceedings in Matter No. IRC2703 of 2002, an application by the HSU regarding Security Officers.

12 There were also a series of 'streams' or claims related to conditions of employment in the sector generally brought by both the HSU and the HAC. These included: - Termination of Employment - Transfers between Hospitals - Grading/Credentials Committee - Infectious/Nauseous/Contaminated Work Allowance - No Extra Claims Clause - Typing Allowance - Hours of work (for radiographers and health managers) 13 In addition to seeking award consolidation, the HSU sought both an increase in rates of pay and the creation of new classifications or the re-classification of work within the various occupational streams. For example, the HSU sought the creation of nine new graduate Pharmacist grades (in addition to new Pharmacy Assistant and Pharmacy Technician grades), six new Cardiac Technologist grades (to replace former provisions for Heart/Lung Technicians and Assistants) and the creation of a new 'Laundry Worker' classification. The HSU also claimed wage increases (of different amounts and proportions across the areas of the claim). These were based in part on work value increases and in part on special case considerations, in particular endemic staff shortages and staff retention difficulties. As to conditions of work, the HSU sought changes in consequence of the amalgamation of the many different awards and various other amendments going to such things as payable allowances, termination and gradings. For example, the HSU sought the deletion of the medical terminology and typing efficiency allowances, the variation of the infectious cleaning allowance clause and the termination of employment clause and the insertion of a new clause regarding grading and credentials. 14 In contrast, the HAC's claims did not have a wide compass (other than, of course, the consolidation of the awards earlier referred to). As we have mentioned above, it compressed the provisions of many awards into four (two awards regarding conditions and two regarding rates of pay), but did not otherwise alter existing classifications or alter wages. It did, however, seek to alter conditions of work by the deletion of the infectious cleaning clause (and allowance), the introduction of a 'no extra claims' clause and the increase of maximum hours for radiographers. 15 The hearing was commenced in relation to the first three streams. We do not propose to track the variations in the HSU's position in the proceedings. It is sufficient to note that the HSU advised at various times during the hearing of the first three streams substantial revisions to its claim in relation to those initial streams (thereby reducing the amount claimed with respect to this aspect of its application). Both parties ultimately filed amended applications early this year in relation to those streams. 16 At this stage of the proceedings the parties reached agreement in seeking the consolidation of the many health sector awards into two awards, being one each for professional and non-professional staff (salaries and conditions both contained within the one award for each group). However, the HSU persisted with its application regarding classification changes and wage increases and variations to conditions of work. The HAC maintained its opposition to the aforementioned changes and pressed its own application with regard to conditions changes and in relation to Radiographers. 17 Evidence and submissions in the first three streams (pharmacy, dental, perfusion) were then heard to completion and some evidence was received regarding the fourth stream: Cardiac Technicians. 18 At this point the proceedings took a dramatically different course. By short minutes of order tendered on 29 April 2003, the parties jointly sought to constrain the proceedings (for the time being) bringing them to the aforementioned juncture, wherein we consider the HSU's application for variation of just six awards with respect to three streams. By virtue of this confinement of the claim (and the nature of its original application) no new application was filed by the HAC. Its claims were likewise stood over generally to a date to be fixed after the giving of this decision.

19 We may then turn to more closely define the application.

20 The awards presently sought to be varied by the HSU are as follows: 1. Health Employees Pharmacists (State) Award 2. Health Employees (State) Award 3. Health Employees Technical (State) Award 4. Health Employees Dental Technicians (State) Award 5. Public Hospital Dental Assistants (State) Award 6. Health Professional and Medical Salaries (State) Award 21 The pharmacy stream of the HSU's present application involved a consideration of three occupational classifications (Pharmacists, Pharmacy Assistants and Pharmacy Technicians). The dental stream included a consideration of the classification of Dental Technicians and Dental Assistants. The third stream concerned only the Perfusionist classification. The three streams shall be referred to collectively as 'the streams'.

22 The application in relation to each of the streams was pursued both as a special case or series of 'special cases' warranting the Commission's intervention to establish "fair and reasonable" rates of pay pursuant to s10 of the Industrial Relations Act 1996 ('the Act') and as instances in which work value changes warranted the Commission's intervention, in accordance with Principle 6 'Work Value Changes' of the Commission's wage fixing principles: State Wage Case (2003) 121 IR 446. The key factors advanced by the applicant as considerations in favour of the grant of the applications under those principles included: staff shortages and associated increases in workload and specialist knowledge, devolution of tasks and staffing difficulties; substantial increases in skills and responsibilities; increased complexity and pressures of work; higher-level qualifications being required; and, anomalies and inequities regarding rates of pay between different hospitals/areas and between comparable positions.

23 Since the hearing of this matter, the Commission has handed down its decision in State Wage Case 2003 , encapsulating the Commission's most recent statement of the wage fixing principles. The special case principle in that decision is not relevantly different to its predecessors in State Wage Case 2001 (2001) 104 IR 438 or State Wage Case - May 1991 (1991) 36 IR 362.

24 The special case principle, being principle 10, is in the following terms: 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. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.

25 The principles relevant to determining whether a particular case is a 'special case' are now well settled. We refer to our decision in Re Operational Ambulance Officers (State) Award (2001) 113 IR 384. In that decision we considered a number of authorities regarding the application of the special case principle, (including Re Social and Community Services Employees (State) Award (2001) 113 IR 119, Re Transport Industry (State) Award (1996) 95 IR 126 and Re Crown Employees (Administrative and Clerical Officers) (State) Award (No 2) (1993) 52 IR 243).

26 In Re Operational Ambulance Officers, it was stated (at [166]): In order to satisfy the requirement for a special case, the applicant must demonstrate that the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the wage fixing principles. In Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274, a Full Bench stated (at par 24): "Thus it can be seen, … that strict compliance with the wage fixing principles generally or with the work value principle and the structural efficiency considerations in particular is not required where as here a case is advanced as a special case. In saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe … that the present special case principle unlike its 1990 predecessor does not require that cases be considered 'in accordance with the structural efficiency and other relevant principles'. It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application".

27 In the Crown Employees case, it was stated (at 376 - 377): In our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case 'out of the ordinary' and thus to make it 'special', to decide whether the claim, in part or in whole, should succeed. Some of the cases brought under the special cases provisions have relied, it is true, on the work value principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage increases beyond those normally allowable under the principles.

28 Having considered those authorities, the Full Bench concluded that an applicant to a special case needs to establish an "adequate evidentiary foundation" to establish the special factors which warrant an award variation in order to set fair and reasonable conditions of employment. It was held (at [168]): In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).

29 This decision has been subsequently followed in other Full Bench decisions. In Re Public Hospital Nurses (State) Award (2002) 115 IR 183, a Full Bench held (at [13]): We respectfully agree with the observations of the Full Benches in the Social and Community Services Employees case and the Operational Ambulance case. We emphasise the need to "establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case". Further, although there is no general requirement that a special case must, to succeed, satisfy other specific principles ( Employers First and NSW/ACT Independent Education Union (2002) 115 IR 8 at par 8) other principles may have relevance; for example, because of the way in which the case is advanced: see also the passages cited above from the decisions in the Social and Community Services Employees case and the Operational Ambulance case.

30 Further, a Full Bench of the Commission in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 held (at [38]): We would further observe, as was recently recognised by the Full Bench in Re Operational Ambulance Officers (2001) 113 IR 384, the "primary test" for evaluating whether an award should be altered is whether the conditions of employment in the award are "fair and reasonable". Whilst made in the context of a special case, a consideration which may not be relevant in consideration of these proceedings, it was there recognised that conditions in an existing award are to be treated as "presumptively fair and reasonable" (although it must at once be recognised that it is sufficient to rebut that presumption by evidence sufficient to satisfy the ordinary civil standard of the balance of probability: see Public Hospital Nurses (State) Award (2002) 115 IR 183 and Re Operational Ambulance Officers ).

31 The basic premise of the HSU's claim was that "employees who perform very important and demanding work which attaches to each of these classifications within the public health system are underpaid for the work they perform such as to warrant the intervention of the Commission to establish "fair and reasonable" rates of pay". The reasons for this undervaluation, and the grounds on which the matter was advanced as a special case, or as a series of special cases, were identified as:

a Substantial increases in work value since the relevant datum points;

c Growing irrelevance of existing award provisions having regard to work as currently performed and the conditions under which that work is performed;

d Anomalies and inequities in rates of pay when compared to other classifications which require the same or similar level of professional qualifications, and which perform work of comparable value; and

e Significant disparities between the rates paid for the same work in the public sector and the private sector.

32 The HSU also identified labour shortages as providing sufficient grounds for finding that a special case exists, although it did so, in part, on the basis that such shortages resulted in a change to the nature of the work, skills and responsibilities of employees affected by the shortage.

33 We consider that, overall, the HSU has established a special case for the following reasons:

a Whilst there was not a single feature of the HSU case which, by itself, attract the operation of the special case principle, when taken in combination, we consider that those aspects of its case which we discuss below firmly warrant that conclusion.

b Those factors do not apply with equal force in relation to each stream, but there is a sufficiency of such factors as to warrant the finding of a special case with respect to the subject classifications within each stream.

c The features of this matter which when taken together lead to the finding of a special case with respect to the three streams are as follows:

i. In each classification in the streams there has been changes in work value such as would warrant the grant of salary increases under the work value principle.

ii. Those changes may be distinguished by their nature and extent. The magnitude of those changes has been generated, in part, by the present shortage of employees in each stream (although the extent of that shortage varies in each case). The shortage of employees has resulted in three significant alterations in the nature of the work in the streams:

a) There has occurred a percolation of skills and responsibilities to lower classifications in the hierarchy of work functions; b) Professional classifications have experienced changes in the range and scope of their professional roles as a result of being required to carry out enhanced roles in relation to the treatment of patients (occurring in an environment of significant change in technology and drug treatment), particularly in the provision of advice and educational activities. c) There has been an intensification of work by an increase in the volume, frequency and pressure of work. We have regard to this factor only to the extent that it assists in understanding and highlighting the change in the value of work of each classification. Work intensification ultimately needs, however, to be addressed as an issue going to employees' health, safety and welfare. iii. These factors have been compounded in many cases by the existence of anomalies and inequities in the existing classification structures and corresponding rates of pay in some awards, and the irrelevance of some award classifications, definitions and structures to the work in question.

iv. There has resulted a significant undervaluation of work for the classifications under consideration although we would emphasise that each classification exhibits such features in varying degrees.

v. There are public interest considerations in favour of addressing the present undervaluation of work, particularly where labour shortages exist. We shall further discuss these considerations below.

34 We note, however, that any adjustment to classifications and rates of pay arising from this finding will depend ultimately upon the precise nature and extent of changes in the value of work and the impact of other special case features upon the particular classifications under review. We propose to conduct our analysis in this respect later in this judgment by reference to the particular streams. It is appropriate, however, to pause at this juncture to consider globally the question of the 'shortage' of employees to explain the conclusion we have reached in this respect and, in particular, the limited extent to which we have taken into account this factor in reaching our conclusion, having regard to the current principles of wage fixation (even in circumstances where the special case principle operates).

35 The evidence in these proceedings establishes that there is a critical shortage of persons available to work in at least one of the relevant streams (pharmacy), and there are indicators of significant shortages, or difficulties in attracting and retaining employees, in other streams. In all cases, the shortages have had a significant impact upon the nature of work performed in each stream.

36 It was an agreed fact in the proceedings that there is currently a shortage of Pharmacists in the New South Wales public health system. Some debate arose as to whether there was in fact a general shortage of Pharmacists, or alternatively a "drift" of Pharmacists away from hospital positions. The HSU submitted inter alia that there is a shortage of Pharmacists in Australia, and perhaps worldwide. The HAC agreed that there is evidence of an Australia-wide shortage of Pharmacists, and submitted also that there is a world-wide shortage of Pharmacists, or at least a demonstrated shortage of Pharmacists in the United States of America, the United Kingdom, Canada, New Zealand and South Africa. It was the HSU's contention that there has also been a drift of Hospital Pharmacists to community based Pharmacies as a result of better remuneration and working conditions. The HAC submitted that the shortage impacts on both the hospital and the community sector.

37 We are satisfied that there is indeed a shortage of Pharmacists, relevantly within the New South Wales public health system. While neither party expressly contended that there is a current shortage of Pharmacy Assistants or Pharmacy Technicians in New South Wales, the shortage of Pharmacists has impacted directly on Pharmacy Technicians and Pharmacy Assistants due to the increased work load on Pharmacists and the devolution of work formerly done by Pharmacists. This will be discussed in greater depth later in our decision.

38 As to Dental Technicians, it was agreed that there was "evidence of some difficulties associated with the attraction and retention of Dental Technicians". The HSU further submitted, relying on the evidence of Mr Kramer, that "attraction and retention of talented Dental Technicians to the United Dental Hospital is becoming progressively more difficult" and that "it is becoming increasingly difficult to recruit and retain staff possessing advanced skills and training in laboratory work where clinical tolerances and requirements of the work produced demands such skills and training". Mr Kramer was not cross-examined on his evidence. The HAC submitted that such evidence is of limited value in these proceedings, as the HSU has failed to demonstrate that granting the claim in respect of Dental Technicians would have a significantly beneficial effect on recruitment and retention. We accept that the evidence establishes the position regarding the difficulties presently being experienced attracting and retaining Dental Technicians. We do not make any finding as such as to the potentiality of recruitment although we note that the evidence would suggest on a tentative basis that such a result may follow.

39 There was some contention as to whether there is a shortage of Dental Assistants in New South Wales. The HSU submitted, relying on the evidence of Ms Cox, that "Dental Assistants are now being used as Receptionists, Telephonists, Data Entry Persons, Administrative Assistants, and Dental Radiographers without payment of higher duties allowances. This has been brought about by shortages of staff. Due to this, fewer Dental Assistants are available to work in the clinics creating shortages. The Dental Assistant is functioning and carrying out many roles but no one can reciprocate to help with staff shortages". In response, the HAC tendered an affidavit of Ms Kenny, Director of Clinical Services at Westmead Centre for Oral Health, which included the following statement: 8) At paragraph 8(e), (k) and (l) of her statement Ms Cox refers to the fact that due to shortages in staff Dental Assistants are required to perform a number of different and/or additional tasks. In April 2002 15 new Dental Assistants and 5 new administrative assistants were appointed to the Westmead Centre for Oral Health so as to alleviate the amount of time spent by Dental Assistants doing administrative duties and so as to increase the number of Dental Assistants that are available to perform dental assisting duties. In addition I understand that additional funding is to be provided in the 2002-2003 financial year to allow the recruitment of additional dentists and Dental Assistants to meet expected increased patient numbers.

40 Ms Cox was cross-examined on her evidence regarding the shortage of Dental Assistants as follows: Q You have said that there are shortages of staff and that's why Dental Assistants have had to become multi-skilled, is that a fair summary of what is in your affidavit? A Yes. Q You would agree with me, wouldn't you, that in April of this year there were 15 new Dental Assistants and five new administrative assistants appointed to the Westmead Oral Health Centre? A Yes, but of those 15 many of them were only part time, being one or two days a week, and in September of this year re-advertising went up again and at present we have 30 requests to fill. Q When you say 30 requests…? A Positions available.

41 We are satisfied that there is a shortage of Dental Assistants but that some remedial measures are being taken. The effect of the shortage may thus be ameliorated, but this does not diminish the conclusion that a shortage of labour exists in this area, although not as significant as in the pharmacy stream. The shortage has nonetheless had a real impact on the value of work of this classification.

42 The HAC noted in its submissions that the duties described by the HSU are not new, and are consistent with the scope of clerical and reception duties of a Dental Assistant identified by the Full Bench in earlier proceedings. As we will later discuss in the context of each stream, we do not agree with this submission, and we consider the impact of the shortage is significant.

43 As to Perfusionists, the HSU relied on the evidence of Dr McMillan, Director of Perfusion Services, Department of Anaesthesia and Pain Management at the Royal North Shore Hospital in submitting that "staffing has become a problem with many Perfusionists leaving the profession due to the long working hours, call rosters and low salary. One is now very lucky to find a qualified Perfusionist looking for a job". Further, based on the evidence of Dr Dittmer, Deputy Head of Cardiac Physiology and Perfusion at The Children's Hospital at Westmead, the HSU submitted that "Westmead Hospital has been advertising for a Perfusionist for more than one year with no Australian applicants. The last two Perfusionists employed have been from overseas". The evidence of Drs McMillan and Dittmer was not challenged in this regard. We accept that there is a shortage of Perfusionists in New South Wales, and again as we will later discuss this has resulted, in part, in a change in the value of their work.

44 We turn then to consider the significance of the evidence of a shortage of employees in the respective streams to the determination of the application.

45 The HSU relied on the Public Hospital Nurses (State) Award (No. 3) (2002) 121 IR 28 in support of its claim. The HSU submitted that: there is clear and cogent evidence of the causal link between the current shortage of Hospital Pharmacists and the comparatively low rates of pay when compared to the private sector …The [HSU] submits that the Full Bench in this matter can be assisted by the approach of the Full Bench in the Nurses' Case in that it can be accepted that, in certain circumstances, a severe shortage of personnel in the particular profession can, of itself, warrant action by the Commission to increase rates of pay. However, in this matter [the HSU] relies upon the shortage of Hospital Pharmacists as one of a number of factors which together warrant significant wage increases in the context of a special case. In some respects these factors are inter-related. The shortage of Hospital Pharmacists is in itself a significant factor in this mix. However, the shortage has also impacted upon work value aspects of the claim such as increased work load and the devolution of work formerly done by Pharmacists to the newly created classification "Pharmacy Technician" with the consequent enhancement of the value of the work of the Hospital Pharmacists themselves.

46 The HAC submitted that it is a well established industrial principle that wage rates should not be set to address labour shortages. To do so would cause rates to be set other than on the basis of the true value of the relevant work. In this regard, the HAC referred to the decision in Re Equal Remuneration Principle (2000) 97 IR 177 at 215, where a Full Bench noted its approval of the observations of the Full Bench in Local Courts Anomaly Case [1989] AR (NSW) 638 at 645 that: Attraction rates as such are inconsistent with State Wage Principles as they reflect the problems of management and not the true value of the work required. Furthermore, they can set up within a wages structure pressures towards defensive increases designed to retain staff under challenge from rates elsewhere. Indeed, in part, this exercise under review is in reply to competitive rate challenges available in the private sector and elsewhere in the public sector which are drawing off staff from local courts. There can arise a circular self perpetuating process of wage enhancement against which we should be on guard. 47 In further support of this position the HAC cited Re Railways Professional Officers Award (1958) 89 CAR 40 and Re Metal Trades Award; Re State Electricity Commission of Victoria (1964) 106 CAR 535. In those cases, the Commission considered claims for wage rates which were generally referred to as "attraction wages" or "attraction rates". In both cases, the Commission maintained the position that setting wage rates in order to attract labour to address a shortage is an inappropriate basis for wage fixation. In the Railways Professional Officers case the Commission held (at 48): The first aspect of the Association's case, that is, that the grave and special conditions existing to-day justify an unorthodox approach, really an unprecedented approach, forces me to face this fact, that if the situation is as serious as the Association asserts, then it is certainly placing a major responsibility on the Commission to attempt the solution of what must be only regarded as a national problem. A problem which, no matter how one viewed it, could only be regarded as a major and socio-political problem and one which, to say the least, should not be the responsibility of the Commission. In my opinion the solution to the problem does not rest solely on the recruitment of engineers to the railway industry, or to any of the major industries for that matter, through inflated attraction rates, but rather by orderly recruitment of sudents [sic] and apprentices in numbers determined by accurate examination of the needs of industry and for national requirements. To suggest that a higher margin in the railway industry is the answer for this national problem is too unreal to warrant serious consideration. I can only regard the Association's request on these points as being one for an attraction rate. I do not intend to review the decisions of Commonwealth Arbitral Authorities rejecting attraction rates as a proper basis for fixing wages. Mr Marlin fully referred to the many decisions recorded on the principle. I have already made a decision on this point, and I now repeat what I said in my 1954 Railway Professional Officers decision 15th April, 1954: - I am not asked by the respondents, who have the responsibility for staffing and administering efficiently their respective organisations, to provide rates to attract staff and consistent with my attitude in previous cases by other organisations, I am not prepared to award arbitrarily attraction rates.

48 The HAC also relied on Public Hospital Nurses (No 3) case in support of its contention that to increase rates on the basis of a labour shortage would be contrary to the public interest. It relied upon the following passage of the Full Bench decision in that case (at [90]): We agree with the respondent that a claim for wage increases could not succeed if it was based solely on the contention that there was a shortage of a particular skill or class of labour, especially where the claimant is a party to a current agreement that provides for wage increases over the life of the agreement.

49 According to the HAC, although a wage increase was granted in the Public Hospital Nurses (No 3) case, it can be distinguished from the present matter as, unlike the evidence adduced in the Public Hospital Nurses (No 3) case, there is no evidence in this case that increased wage rates would resolve, or significantly contribute to the resolution of, the current shortage.

50 The Public Hospital Nurses (No 3) case does not support a contention, in our view, that a labour shortage is, of itself, grounds for a wage increase. We note the findings of the Full Bench in Public Hospital Nurses (No 3) (at [89]): As to the first proposition, namely, wage rates should not be set on the basis of labour or skill shortages, we emphasis that we are not proposing to increase rates of pay for nurses simply on the basis that there is currently a shortage of nurses. The evidence was that the shortage is causing a strain on the public hospital system in New South Wales; that the shortage is a serious problem that needs to be addressed as a matter of priority both in respect of the short and long term; that nurses are coming under increasing stress because of the shortage, with an effect on the value of their work; and, critically, that nurses' wages are below the level of all other comparable health professionals and this is contributing to the nursing shortage.

51 The Full Bench in the Public Hospital Nurses (No 3) went on to hold (at [91]): When considering an application for wage increases on the basis that a special case exists and where it is claimed that there is a shortage of labour, the Commission is entitled to look at all of the circumstances in order to determine whether a special case is made out. The circumstances will include the important consideration of the public interest. In our opinion, the disadvantaged position of nurses and the difficulties being experienced in the public hospital system because of the nursing shortage are powerful public interest considerations.

52 The Full Bench in the Public Hospital Nurses (No 3) case emphasised that changes in work value did not form part of the basis for their decision. In this respect, we note the findings of the Full Bench in the Public Hospital Nurses (No 3) case as follows: [24] There has been a great deal of evidence tendered in the proceedings regarding the work of nurses and how it is said the value of that work has increased. The HAC contended that there has been no increase in the value of work of nurses having regard to the relevant wage fixing principle. [25] We are yet to hear the submissions of the parties in relation to all of the evidence regarding changes in work value and so we are not in a position to make any final determination in that respect. We do consider, however, that sufficient material has been put to the Commission to allow us to form the view that since 1996 the work value of nurses in public hospitals has increased. … [28] The Commission will proceed to hear the parties' outstanding submission in respect of the work value aspects of the claim, the retention and qualification allowances and other outstanding issues, on the dates that have been set aside for that purpose in 2003. However, if there are to be any further adjustments to wages arising out of the work value claim and the claim for allowances, any relevant award variation should not operate before 30 June 2004. One possible exception that might allow an earlier operative date relates to the success or otherwise of initiatives to overcome the problem of attracting and retaining nurses in order to maintain a viable public hospital system. We address this question later in the decision. … [125] We have commented earlier that wage increases are not the whole answer to the nursing shortage but we consider that they can play an important part in a broader strategy that we are told is now being put into place to alleviate the shortage. We intend to monitor the effectiveness of this strategy, and its success or otherwise may be an important consideration in assessing the claims for qualification and retention allowances and in determining whether or not it is appropriate to apply any additional wage increase that might be awarded on work value grounds from a date earlier than 1 July 2004. If it can be demonstrated, for example, that the various initiatives implemented by the respondent to overcome the difficulties in attracting and retaining nurses in the public hospital system are working and that wage increases that have been awarded in this decision have had a limited impact, then it would be most unlikely that the Commission would be convinced to grant further increases prior to 1 July 2004. On the other hand, if the initiatives are having little or no effect and there is evidence that the wage increase has had a positive effect, there may be a case for any increase to be payable earlier than 1 July 2004.

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.

59 On 2 March 2000, the HSU entered into a written Memorandum of Understanding with the NSW Government, the NSW Nurses' Association, the Public Service Association of NSW and the Labor Council of NSW ("the MOU"). The HAC was not a party to the MOU.

60 The stated purpose of the MOU included the provision of a "cooperative and productive partnership to achieve a coordinated, whole-of-Government approach to improving service delivery to the people of NSW and enhancing the quality of life of employees". The MOU identifies in its annexure a number of 'Key Priorities' which are to be the focus of discussions between the parties in order for them to develop reforms and implement strategies for the introduction of improvements.

61 The MOU provided for public sector wide pay increases totalling 16 per cent, to be implemented in five instalments over the period 1 January 2000 to 1 July 2004. The preamble to the MOU states that "… there will be no new salaries or conditions claims arising from negotiation of productivity and efficiency improvements covered by this agreement. Relevant Awards and Enterprise Agreements will incorporate clauses to give effect to this commitment ".

62 The HAC initially submitted that the MOU represented a prima facie barrier to the HSU's application in relation to the three streams on the grounds that it attempted to undo the agreement reached in the MOU by "claiming in addition to agreed amounts further substantial increases in pay". That submission was subsequently withdrawn, however the HAC submitted that "the Commission needs to have regard to the wage increases granted pursuant to the MOU when considering the HSU claims. Regard should also be given to the quantum of wage increases received by employees covered by the claims from the applicable datum points, and the context in which various agreements were entered into by the industrial parties, including public sector wage outcomes".

63 We accept that the HSU entered into the MOU with the NSW Government and a number of other public sector unions. We note that the MOU was executed after these proceedings were commenced, and presumably therefore with knowledge of the existence and nature of the HSU's application. Further, we accept that, in entering the MOU, the HSU intentionally reserved its position in relation to the pursuit of the present application, and we note that there is nothing in the wording of the MOU which precludes any wage increase that may be awarded as a result of the application presently before us. The MOU does not represent a " prima facie " barrier to this application, although we will have regard to the increases in rates of pay granted under the MOU in making our determination.

64 Again, before examining the case for each stream more closely we propose to deal with some broader aspects of the basis upon which the HSU sought particular wage adjustments.

65 The HSU has sought to establish new rates of pay for each of the classifications under consideration by linking or aligning rates of pay for those classifications with the rates of pay for what the HSU submits are comparative classifications in other awards. Specifically, the HSU sought the following grading adjustments and rate alignments:

a As to Hospital Pharmacists, an alignment of the rates of pay for Hospital Pharmacists (as classified under the Health Employees' Pharmacists (State) Award) with the rates of pay set in the Health Professional and Medical Salaries (State) Award for Hospital Scientists, Senior or Chief Hospital Scientist and Principal Hospital Scientist;

b As to Pharmacy Technicians, an alignment of the rates of pay for Grade 1 and 2 Pharmacy Technicians applicable under the Health Employees (State) Award with the 8-year scale applicable to Technical Officers covered by the Health Employees Technical (State) Award, and an alignment of the rates of pay for Grades 3 and 4 Pharmacy Technicians with the 4-year scale for Grade 2 Technician Officers in the Health Employees Technical (State) Award;

c As to Pharmacy Assistants, an alignment of the rates of pay for two newly created grades of Pharmacy Assistants, presently covered by the Health Employees (State) Award, such that a Grade 1 Pharmacy Assistant would align with the 3-year scale for a Grade 2 Technical Assistant and a first year Grade 1 Technical Officer, and a Grade 2 Pharmacy Assistant would align with the first, second, third and fourth year for a Grade 1 Technical Officer; d As to Dental Technicians, an alignment of the rates of pay for Dental Technicians (currently prescribed by the Health Professional and Medical Salaries (State) Award) with rates in the Health Employees Technical (State) Award for Technical Officers and Senior Technical Officers;

e As to Dental Assistants, an amendment of the grading structure in the Public Hospitals Dental Assistants (State) Award from a 4 increment Base Grade and a 2 increment Senior Grade to a Grade 1 and 2 structure with 4 increments within each grade, and an alignment of the rates of pay for those new grades with the scale of rates applicable in the Health Employees Technical (State) Award to a Grade 1 Technical Officer; and

f As to Perfusionists, the creation of a 4 grade classification structure within the Health Employees Technical (State) Award, with rates of pay aligned with the rates payable under the Health Professional and Medical Salaries (State) Award for Hospital Scientists, Senior Hospital Scientists and Principal Hospital Scientists.

66 In making those classification comparisons, the HSU relied, in part, on there being an historical basis for the alignments it sought. It was an agreed fact that historically there has been a relationship between the salaries paid to Pharmacists and Hospital Scientists, there being an alignment of the rates of pay for Pharmacists and Scientific Officers from 1971 until increases in the rates for Hospital Scientists (who by then were classified under a new Hospital Scientists (State) Interim Award) were awarded in 1992 as a result of changes in work value, thereby breaking the nexus or alignment that previously existed. Other than for Pharmacists, however, the HSU's submission was primarily derived from an analysis of a purported comparative assessment of the classifications under examination and those sought to be used as comparators.

67 The HAC submitted that the HSU had not explained why the alignments it sought were justified, such that the HSU had failed to establish an adequate evidentiary foundation on which a special case may be based. In support of this contention the HAC furnished comprehensive submissions as to the historical basis for the current classifications and wage rates. We agree with the HAC's submission to the extent that we consider the HSU has failed to provide an entirely satisfactory explanation as to how (putting aside particular historical factors) the alignments it sought may be justified as a matter of evidence.

68 However, that is not to say that the approach taken by the HAC in this matter is without difficulty. As we have earlier observed, the HAC effectively adopted an "all or nothing" response to the HSU's application. The HAC has opposed the claim and asserted that there is no evidentiary basis for altering the existing classifications or rates of pay, without offering an alternative methodology for resolving the application to that advanced by the HSU (if it were successful in any respect). Given the clear anomalies that existed in respect of some classifications, and the fact that some of the existing award structures were entirely redundant (for instance, in relation to Perfusionists), we consider the HAC's response to the HSU's application (as we have earlier noted) unhelpful and in many respects perplexing.

69 On balance, we consider that the contentions by the HSU as to appropriate wage adjustments based on comparable classifications should be treated with great caution, and with a need to avoid any notion of 'comparative wage justice' found in past wage fixing regimes.

70 It appears to us that the appropriate course is to make any adjustments in classifications and wages by reference to the actual value of the work of the classification under review, or more particularly changes in the value of that work, and to have regard to external classifications only where there is some demonstrable historical or other appropriate basis for such an appraisal (say in the case of a clear anomaly which may be rectified by reference to such comparisons).

71 We consider that this approach is also necessary in the application of the special case principle in this matter, having regard to the limitations in the case brought by the HSU, and the limits to which the special case features of the matter may be taken in granting classifications and wage adjustments under the wage fixing principles. We note that this approach is consistent with that countenanced by the work value principle, being principle 6 of the wage fixing principles, which is in the following terms: (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle.

(b) In applying the work value principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.

(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

(d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989.

(e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle.

(f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.

(g) The expression "the conditions under which the work is performed" relates to the environment in which the work is done.

(h) The Commission will guard against contrived classifications and over-classification of jobs.

(i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle.

72 Our approach to the fixation of rates of pay has also been conditioned by three other factors:

a the position adopted by the HAC as earlier described in this decision;

b the undertaking by the HSU that there would be no flow-on of any pay adjustments awarded in this matter in the health sector (we note in this respect that the HSU has relevant interests with respect to areas of obvious concern as to flow-ons); and

c the need to have regard to the economic cost of any wage adjustments.

73 Section 146(2) of the Act deals with the public interest factors relevant in the exercise of the Commission's functions, and is in the following terms: The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of the Act; and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.

74 The HAC adduced evidence from Mr Kenneth Barker, Chief Financial Officer of the New South Wales Department of Health regarding the economic impact of the HSU's claim. Mr Barker estimated that the total cost of the claim, excluding the on-costs of superannuation and workers compensation, would be about $7,988,000, made up as follows:

a as to the Pharmacy Stream, a cost of approximately $3,607,000;

b as to the Dental Stream, a cost of $3,548,000; and

c as to the Perfusionist stream, a cost of approximately $833,000.

75 In his assessment of the cost of the claim, Mr Barker made the following conclusion in his affidavit: The claim made by [the HSU] is outside the scope of the Premier's Department Memorandum of Understanding signed with New South Wales public sector unions covering the period from 1 January 2000 to 30 June 2003. The only wage increases for which the Department of Health has funding from Treasury are those set out in the Memorandum of Understanding. Any increase in the total wages costs for the [HSU] workforce resulting from the claim may have to be funded from within the Health Department's existing budget. Any substantial increase in salary costs could only be covered from within the Department's budget through reductions in staff employed in the health sector or services provided by NSW Health.

76 The HAC, relying on the evidence of Mr Barker, submitted that if the HSU's claim were granted in whole or in part, it "has the potential to place a not insignificant burden on the Department of Health's ability to provide health services".

77 We accept the evidence of Mr Barker, which was unchallenged, as to the potential cost of the HSU's claim. However, while Mr Barker's evidence is clear in terms of fiscal cost, it does not disclose the particular impact of that cost on the economy or the public health system, other than a general reference to reductions in staff or services. As an illustration of how the amount of $7,988,000 could otherwise be utilised, Mr Barker deposed that this would be "sufficient to employ an additional 182 staff covered by the claim of their current average cost ($44,003)". Other than to imply that such additional staff could not be employed in the event the HSU's claim is granted in full, it is not entirely clear how the public health system will be affected by the wage increases sought in this matter and how the HAC's submissions in this respect should be evaluated in circumstances where there are already severe shortages in some of the classification areas.

78 The HAC referred to the decisions in the Psychologists case and the Crown Employees case as supporting the notion that, while not necessarily determinative in itself, the economic impact of a claim is an important consideration in arbitrations of this kind.

79 We agree and accept that economic considerations are relevant in our determination of this matter. We also note in this respect, however, the decision of the Full Bench in the Crown Employees case at 377 - 378: A further matter in the present case in this context is, of course, budgetary factors concerning the State of New South Wales which have been brought comprehensively to our attention by the Crown in the course of the proceedings. The Crown's preferred option of industrial coverage of its employees by way of enterprise agreement, rather than award, as demonstrated by Ex 2, has already been exhaustively discussed, as has its decision that, under that enterprise agreement system, additional amounts available from Treasury to fund wage increases will be capped at 3 per cent from 1993-94 (in reality 1.5 per cent on the basis that virtually no agreements have so far been executed in the present financial year), 2 per cent in 1994-95 and 2 per cent in 1995-96. It is entirely appropriate to give the evidence and submissions of the Crown on these aspects careful and weighty consideration, but at the same time it must be emphasised that the Commission cannot be constrained in its statutory wage-fixing obligations by limiting itself to increases which the Crown submits, on budgetary considerations, should not be exceeded. (emphasis added)

80 Further, our consideration of the economic impact of any wage increases we may grant must be counterbalanced against a number of other significant factors. Firstly, our finding that the HSU has established a sufficient evidentiary foundation for a special case demonstrates that wage increases are warranted. As earlier discussed, that conclusion is based, in part, on our findings regarding the undervaluation of work performed by persons in the classifications in the relevant streams and the magnitude of the quantitative and qualitative changes in the value of work performed in those classifications (exacerbated by labour shortages).

81 Secondly, we reiterate the significant public interest features of this matter. The claim relates to wages and conditions for employees engaged in classifications within the public health sector, in areas which are clearly important to the New South Wales public, and in circumstances where the existing classification structures and rates of pay are inappropriate, no longer relevant, and/or contain clear anomalies and inequities. Whilst the evidence is unclear as to whether increased remuneration alone would be sufficient to resolve the existing labour shortages in the public health sector, this is not to render the issue of a labour shortage irrelevant to the questions of wage determination or public interest. Indeed, to argue otherwise is to miss an important consideration. Whilst these important areas of the public health system are experiencing labour shortages (in varying degress), the HAC, and ultimately the wider community, relies on the persons presently employed in those areas to maintain that system by taking on additional tasks, developing new skills and working under considerable pressure to fill the void created by the labour shortage, and by providing at all times a prompt, uninterrupted, high quality service, notwithstanding the fact that they may have inadequate human resources to do so. Effectively, these employees are bestowed with the day-to-day responsibility of dealing with labour shortages at the workplace level, in circumstances where such labour shortages are in some cases critical State-wide concerns. The employees are significant in maintaining this important public facility, thus that those persons have not received any financial recognition for their efforts is patently a matter of significant public interest, particularly to the extent that inadequate salary levels and promotional structures may place greater pressure on maintaining the staffing levels presently existing in the health sector.

82 Thirdly, we note that the HSU's claim in this matter is limited to three discrete streams within the public health sector. In that regard we further note the undertakings given by the HSU that there will be no flow-on outside those streams, thereby restraining any wider cost implications beyond the classifications being considered.

83 The HAC further contended that the strict requirements of the wage fixing principles have not been met because any changes in work value (at least insofar as the Pharmacy and Perfusionist streams are concerned) since the applicable datum points have been adequately compensated by increases in wage rates that either have taken place or are yet to take place pursuant to various agreements reached between the HSU and the HAC. We do not accept this argument, as there is nothing in the nature of the agreements we have seen relating to pay increases over the relevant period which would adequately address the special case factors that we have identified in this matter. We do not consider that those agreements were intended to comprehend the significant value changes discussed in this judgment. In particular, we note that the MOU does not apply to this application and hence the HAC would have us now examine the matter on the basis of the wage increases afforded employees since the datum points simpliciter. Moreover, we note that the wage adjustments referred to by the HAC are common to all public sector employees who are members of the HSU. We have concluded, in short, that the work is undervalued by comparison to the value of the work and the skills and responsibilities held by employees in the subject classifications (including changes in their functions, duties and responsibilities since the relevant datum points).

84 Rates of pay for Hospital Pharmacists and criteria for appointment to or progression between the various grades are presently prescribed by the Health Employees Pharmacists (State) Award ("The Pharmacists Award").

85 That Award, at Part B, Table 1 - Monetary Rates sets out the following structure:

CLASSIFICATIONS Rate from 1.1.2002 Rate from 1.1.2003 Rate from 1.7.2003 3% 4% 5% Pharmacists Grade 1 - Unregistered $603.90 $628.10 $659.50

Grade 1 1st Year $676.40 $703.50 $738.70 2nd year $701.90 $730.00 $766.50 3rd year $796.00 $827.80 $869.20 4th year $905.20 $941.40 $988.50 5th year $949.20 $987.20 $1036.60

Grade 2 1st year $980.00 $1,019.20 $1070.20 2nd year $1054.20 $1096.40 $1151.20 3rd year $1089.20 $1132.80 $1189.40

Grade 3 Senior Pharmacist Director of Pharmacy - Group 5 Hospital Deputy Director of Pharmacy - Group 3 Hospital 1st year $1119.80 $1164.60 $1222.80 2nd year $1150.40 $1196.40 $1256.20

Grade 4 Director of Pharmacy - Group 4 Hospital Deputy Director of Pharmacy - Group 2 Hospital 1st year $1182.20 $1229.50 $1291.00 2nd year $1222.40 $1271.30 $1334.90

Grade 5 Director of Pharmacy - Group 3 Hospital Deputy Director of Pharmacy - Group 1 Hospital 1st year $1259.50 $1309.90 $1375.40 2nd year $1291.40 $1343.10 $1410.30

Grade 6 Director of Pharmacy - Group 2 Hospital 1st year $1334.20 $1387.60 $1457.00 2nd year $1367.30 $1422.00 $1493.10

Grade 7 Director of Pharmacy - Group 1 Hospital Group A - 1st year $1404.10 $1460.30 $1533.30 Group A - 2nd year $1437.60 $1495.10 $1596.90

Group B - 1st year $1472.50 $1531.40 $1608.00 Group B - 2nd year $1507.10 $1567.40 $1645.80

Fellowship Allowance $24.30 $25.30 $26.60

Criteria for appointment to or progression between the various grades is found within the Definitions clause of the award in the following terms: "Director of Pharmacy" means a Pharmacist who has been appointed as such in a pharmacy department of a hospital

"Deputy Director of Pharmacy" means a Pharmacist who is appointed as such to an established position approved by the Health Administration Corporation and whose function is to assist the Director of Pharmacy in the administration of the Department.

"Pharmacist" means a person who is registered under the Pharmacy Act 1964. A Pharmacist who has after registration not less than three years experience in hospital pharmacy and can demonstrate competency in at least one of the essential competency criteria and 3 other competency criteria will be classified as a Pharmacist Grade 2.

Provided that Pharmacists paid at the eighth year of service rate immediately prior to transfer to this structure shall not be eligible for incremental progression unless they meet the criteria for appointment to Grade 2.

"Pharmacist Grade 3" means a Pharmacist who is responsible to the Director of Pharmacy of the Deputy Director of Pharmacy for the management and efficient performance of a specific unit or function of the hospital's pharmacy Department. Such appointment shall only be made where the hospital employs at least 5 Pharmacists. OR Director of Pharmacy Group 5 Hospitals or Deputy Director of Pharmacy Group 3 Hospitals

"Pharmacist Grade 4" Director of Pharmacy Group 4 Hospitals and Deputy Director of Pharmacy Group 2 Hospitals.

"Pharmacist Grade 5" Director of Pharmacy Group 3 Hospitals and Deputy Director of Pharmacy Group 1 Hospitals.

"Pharmacist Grade 6" Director of Pharmacy Grade 2 Hospitals.

"Pharmacist Grade 7" Director of Pharmacy Grade 1 Hospitals.

86 Although not prescribed by the award, the evidence indicates that a person may be appointed to the entry level as an unregistered Pharmacist and must then be employed for a minimum of one year under supervision before being registered and therefore eligible for appointment as a Pharmacist thus, as will be seen, requiring a minimum five years pre-appointment training.

87 By reference to the documentary evidence produced by the HSU and by the evidence of Mr Craft (who was called by the HAC) the history of and antecedents to the Pharmacists Award are as follows: (i) On 27 May 1971 in Re: Hospital Employees - Technical (Metropolitan) Award ([1971] AR (NSW) 272) Sheppard J awarded rates of pay to Hospital Pharmacists which reflected an agreed position between the parties that the base grade rates should equate to those paid to Scientific Officers employed in the Government Service. This agreement came about because the qualification to become a Pharmacist had, by virtue of the Pharmacy Act 1964, become a regular graded course of at least three years duration at university. As a consequence of this judgment the rates for Registered Pharmacist were aligned precisely with the first five years of the eight year Scientific Officers' scale. Sheppard J adopted the rate proposed by the then Health Commission for the classification of Graduate Assistant Pharmacist. This rate was substantially below the rate for Scientific Officer year 1 and was slightly higher than the rate for a Trainee Scientific Officer fourth year who was a person employed as such pursuing a part-time degree. Sheppard J awarded a two-year scale of Deputy Chief Pharmacist and Chief Pharmacist in charge of three or less registered or unregistered assistants which equated to the rates of Scientific Officer years 6 and 8. For Chief Pharmacist, in charge of four or more assistants, the two-year scale awarded equated to the rates for Senior Scientific Officer years 1 and 3. The rate awarded for Chief Pharmacist - Royal Prince Alfred Hospital fell between the rates for Senior Scientific Officer years 5 and 6 (see [1971] AR (NSW) 272 at pp287-288). There is no reference in Sheppard J's judgment to any examination by him of the work performed by, or work value of, Scientific Officers and Senior Scientific Officers (of the type said by the HAC to be necessary in this case) to support the alignment between the rates for the two groups that resulted from that judgment. The range of increases awarded by Sheppard J to Pharmacists was from "nearly 20 per cent" up to "nearly 40 per cent" (1971 AR (NSW) 272 at 303).

(ii) The first Hospital Pharmacists (State) Award was made in February 1974 ( Re Hospital Employees Pharmacists (State) Award (1974) 202 IG 1416. The alignment with Scientific Officer rates continued at the time (1974) 193 IG 1975).

(iii) On 28 June 1978, Cansdell CC awarded Medical Technologists rates equivalent to those for Scientific Officers and Senior Scientific Officers on the basis (in part) that the old Diploma in Medical Technology course had been discontinued from the end of 1973 and replaced by a Bachelor of Science degree course ( Re Hospital Employees Medical Technologists (State) Award , unreported, Matter No. 293 of 1976, 28 June 1978). This decision was upheld on appeal by McClelland J by judgment of 27 March 1979 ( Re Hospital Employees Medical Technologists (State) Award , unreported, Matter No. 11 of 1979, 27 March 1979). As a result the rates of pay for the first five years for the base Medical Technologist scale equated to the five year Pharmacist scale, but Medical Technologists received three further increments. The rates for Senior and Chief Medical Technologists were aligned to the rates for Senior Scientific Officers and, as a consequence, exceeded the rates payable to Chief and Deputy Chief Pharmacists. For example, before the Cansdell decision covering Medical Technologists, the "thereafter" rate for the higher level of Chief Medical Technologist (over 300 ADA) was $308.70 pw ((1976) 212 IG 604). At the same time the "thereafter" rate for a Chief Pharmacist in charge of four or more assistants was $339.30 ((1978) 212 IG 1025), 10% more than the Chief Medical Technologist rate. After the Cansdell decision the "thereafter" rate for the highest level of Chief Medical Technologist (over 200 ADA) became $391.40 p.w, 15.4% higher than the Chief Pharmacist in charge of four or more assistants. This alteration in the relative position of Medical Technologists vis a vis Pharmacists occurred largely as a result of the introduction of a requirement for Medical Technologists to achieve a 3 year science degree for appointment to a position.

(iv) Following proceedings before Cansdell CC ( Re Hospital Employees Pharmacists (State) Award , unreported, Matter No. 295 of 1976) and later before Glynn , J on appeal ( Re Hospital Employees - Pharmacists (State) Award , unreported, Matter No. 188 of 1980, 23 May 1980) the relationship between the rates for Pharmacists and Scientific Officers was re-aligned. Again, there is no reference in the decision of Cansdell CC or in the judgment of Glynn J to any examination of the work value of Scientific Officers in order to support the new alignment created between Pharmacists and Scientific Officers' rates of pay.

(v) On 11 October 1989, the former Industrial Commission in Court Session ( Cahill V-P, Bauer and Maidment JJ) varied the Hospital Employees Pharmacists (State) Award ( Re Hospital Employees Pharmacists (State) Award , unreported, Matter No. 304 of 1989 11 October 1989) by reference to the work value principle, the Structural Efficiency Principle and the Anomalies and Inequities Principle of the then wage fixing principles (see State Wage Case (1989) 30 IR 107). The variation created the new classification "Specialist Clinical Pharmacist" and increased rates of pay for promotional positions, particularly the classification of Chief Pharmacist, where the work value changes had been most marked. The Commission noted that the increased rates were amply warranted and were in accord with those applying to other health professionals in hospital employment. Again, there does not appear to have been any specific examination of the work or work value of those "other health professionals" to support their Honours' conclusion. Whilst the rates for base grade Pharmacists for whom an 8 year incremental scale applied remained unaltered under the varied structure, the rates for promotional positions (Grades 2-7) awarded by the Commission in Court Session, were aligned with those for Scientific Officers as follows: Pharmacist Senior Scientific Officer Grade 2 1st year 1st year 2nd year 2nd year Grade 3 1st year 3rd year 2nd year 4th year Grade 4 1st year 5th year 2nd year 6th year Grade 5 1st year 7th year 2nd year 8th year Principal Scientific Officer Grade 6 1st year 1st year 2nd year 2nd year Grade 7A 1st year 3rd year 2nd year 4th year

Grade 7B 1st year 5th year 2nd year 6TH year

((1989) 262 IG 393 and (1988) 275 IG 265) (vi) We note at this point that the award historically prescribing (since 1971) rates of pay and conditions of employment for Hospital Scientists namely, the Scientific Officers (Public Hospital Scientists) (State) Award was rescinded and replaced in August 1988 by a new award entitled Hospital Scientists (State) Interim Award (1988) 276 IG 1. The new award also rescinded and replaced the Hospital Employees Medical Technologists (State) Award and it represented among other things, the merging of the industrial interests of the Public Service Association of New South Wales ('PSA') and the HSU in the area of hospital laboratory practice. Prior to that, the PSA had exclusive coverage of Scientific Officers and the HSU had exclusive coverage of Medical Technologists. The new joint Hospital Scientists award followed and maintained the alignment between the two groups hitherto reflected in the rescinded awards.

(vii) In March 1992, the Industrial Commission of New South Wales in Court Session ( Cahill - VP, Sweeney and Hill , JJ) varied the Hospital Scientists (State) Interim Award by increasing rates for Senior Hospital Scientists 4th year and above by 8% and for Principal Hospital Scientists by 12% ((1992) 286 IG 532). The increases were based upon changes in work value. It was at this point that the alignment which we set out in (v) above appears to have been dislocated for reasons which were doubtlessly known inter partes but are not readily apparent from the material before us on the decision of the Commission.

(viii) In March 1997 Cahill V-P made a new Pharmacists award by putting into place, with the consent of the parties, the seven-grade structure as it appears in the current award (in Re Hospital Employees Pharmacists (State) Award - IRC 6536 of 1997 24 March 1997 unreported). The revised seven-grade structure accommodated all existing classifications (viz Unregistered Pharmacist, Registered Pharmacist, Specialist Pharmacist, Senior Pharmacist, Deputy Chief Pharmacist and Chief Pharmacist) and reduced the old general scale to five incremental levels with the top of the new Grade 1 in effect equating to the 7th year of the old general scale.

(ix) Since 1994 there have been three negotiated rounds of salary increase commonly affecting employees in the hospital system in particular and public sector employees in general, the most recent of which was in the form of salary increases arising from the March 2000 Memorandum of Understanding to which we have referred elsewhere in these reasons. The Claim for Pharmacists 88 By its application, the HSU seeks an alignment, or re-alignment as the case may be, between the rates of pay for Hospital Scientists and Hospital Pharmacists. The claim is based on both the work value and the special case principles. In that regard, and despite the particular history of the Pharmacists Award, it is accepted by the parties to these proceedings that historically there has been a relationship between salaries paid to Hospital Scientists and salaries paid to Hospital Pharmacists. There currently exists, however, a disparity between the classification structures and rates of pay respectively applying to those two groups. By that we mean the alignment of which we speak in the aforementioned award history, having ceased in 1992, has made way for salary rates and classification structures as between Hospital Scientists and Hospital Pharmacists which no longer bear the historical relationship one to the other.

89 The starting point of the claim is the alignment between the rate for Grade 1 Unregistered Pharmacists (presently $659.50 per week) and Hospital Scientists (Scientific Officer) 2nd year (presently $783.50 per week) both at their respective award rates, having completed 4-year degree courses. The proposed alignment then follows over five further incremental steps, the 3rd, 4th, 5th, 7th and 8th years of the Scientific Officer scale ending with a common "thereafter" rate (presently $1093.90 per week).

90 The claim thereafter seeks to align Hospital Pharmacists Grade 2 - 7 with various points within the Senior Scientific Officer and Principal Scientific Officer scales, said by the HSU to be comparable in so far as levels of skill and responsibility are concerned.

91 Mr J Murphy of counsel, who appeared for the HSU, submitted on behalf of the HSU that, were the HSU's claim to be granted by the Commission, there would be no flow-on implications for Hospital Scientists, and gave an undertaking in that respect on behalf of his client. He conceded, however, that the requirement for persons appointed as Principal Hospital Scientist to hold, in certain circumstances, a Masters or Doctoral degree or its equivalent is firstly, not replicated in the claim on behalf of Hospital Pharmacists and secondly, is a matter to be taken into account by the Commission. We take that to mean that were the Commission to consider the holding of a Masters or Doctoral degree to be a factor going towards a higher worth being placed on the work of a Principal Hospital Scientist, then it would not be an entirely surprising outcome. However, Mr Murphy further submitted in that regard that, on balance, and given the small number of Pharmacists occupying that level of seniority, the absence or non-replication of comparable post-graduate qualification requirements for Hospital Pharmacists would not derogate from the claim.

92 The HSU claim as to Pharmacists is as follows: Classifications Rate from 1/01/02 Rate from 1/01/03 Rate from 1/07/03 PHARMACISTS Grade 1 - Unregistered $717.50 $746.20 $783.50

GRADE 1 1st year $761.60 $792.10 $831.70 2nd year $813.80 $846.40 $888.70 3rd year $870.10 $904.90 $950.10 4th year $970.40 $1,009.20 $1,059.70 5th year $1,001.70 $1,041.80 $1,093.90

GRADE 2 1st year $1,077.50 $1,120.60 $1,176.60 2nd year $1,113.60 $1,158.10 $1,216.00 3rd year $1,144.60 $1,190.40 $1,249.90

GRADE 3 Senior Pharmacist Director of Pharmacy - Group 5 Hospital Deputy Director of Pharmacy - Group 3 Hospital 1st year $1,270.00 $1,320.80 $1,386.80 2nd year $1,305.20 $1,357.40 $1,425.30

GRADE 4 Director of Pharmacy - Group 4 Hospital Deputy Director of Pharmacy - Group 2 Hospital 1st year $1,305.20 $1,357.40 $1,425.30 2nd year $1,349.70 $1,403.50 $1,473.70 GRADE 5 Director of Pharmacy - Group 3 Hospital Deputy Director of Pharmacy - Group 1 Hospital 1st year $1,390.70 $1,446.30 $1,518.60 2nd year $1,425.60 $1,482.60 $1,556.70

GRADE 6 Director of Pharmacy - Group 2 Hospital 1st year $1,527.30 $1,588.40 $1,667.80 2nd year $1,607.60 $1,671.90 $1,755.50

GRADE 7 Director of Pharmacy - Group 1 Hospital Group A - 1st year $1,685.80 $1,753.20 $1,840.90 Group A - 2nd year $1,765.00 $1,835.60 $1,927.40

Group B - 1st year $1,844.60 $1,918.40 $2,014.30 Group B - 2nd year $1,885.40 $1,960.80 $2058.80

93 The HSU submitted that the evidence of its witnesses amply disclosed that there had been significant changes in the nature of the work of, the conditions under which the work is performed by and the responsibility required of Pharmacists such as to satisfy the test set out in Principle 6 - Work Value Changes of the Commission's wage fixing principles (see State Wage Case 2003). Further, it was submitted that the work value changes relied upon had occurred, in large measure, since the relevant datum point, being 1 July 1996.

94 The HSU also submitted that there is clear and cogent evidence of a causal link between the current shortage of Hospital Pharmacists (which is agreed between the parties) and the relatively low rates of pay in hospital pharmacies when compared with community pharmacies.

95 The HSU contended, in broadly stated and non-exhaustive terms, that changes in prerequisite qualifications, increased course complexity and duration, the role, responsibilities and accountability of hospital Pharmacists, the level of specialist pharmacological knowledge required, the shortage of Pharmacists within and beyond the hospital system, the increased work load and the distortion in the historical salary relationship between Hospital Pharmacists and Hospital Scientists have created the basis upon which the Commission would find that a special case had been made out and further, that the requirements of the work value principle had been satisfied.

96 The HSU pointed to the evidence as to significantly increased workloads of Hospital Pharmacists, examples of which may be conveniently but again not exhaustively summarised as follows:

· Greater emphasis on patient counselling and education as an important aspect of pharmaceutical care; · Expansion in the use of and accountability for expenditure on drugs dispensed through the Commonwealth funded s100 scheme; · Decreased length of hospital stay of patients with consequential increase in patient turnover; · General shortage of registered Pharmacists and consequential increase in supervision of unregistered staff such as graduates, technicians and assistants who are used to fill certain vacancies; · Difficulty attracting and retaining registered Pharmacists within the public health system; · On call requirements and compulsory weekend/public holiday rosters which have become increasingly onerous and which are inadequately remunerated; · Expanded role of educator to nursing and allied health staff as well as consumers of pharmaceutical services; and · Increase in the number of new and highly potent drug entities with increased emphasis on controlled usage and expenditure and monitoring of the quality of usage.

97 Mr R Goot , senior counsel, with Mr P Ginters of counsel, on behalf of the HAC, contended that the Commission would not be satisfied that the HSU evidence, when tested against the rigorous provisions of the work value principle, was sufficient to justify the claim.

98 Moreover, the Commission would not conclude on the evidence, it was submitted by the HAC, that there is necessarily a connection between what the HAC contended was a general shortage of Pharmacists and salary rates paid in hospital pharmacies, and that absent a proper comparison between graduate Hospital Scientists and Hospital Pharmacists, that there was no satisfactory basis to conclude that the difference between the two groups is necessarily anomalous or inequitable such as to make out a special case.

99 The underlying theme of the HAC's arguments in relation to the prerequisite tests for satisfaction of the work value principle was that the ongoing acquisition of specialised knowledge is consistent with the requirement and obligations of professional practice in general and pharmacy practice in particular and was ever thus. In support of this submission, the HAC referred to the decision of the Industrial Commission in Re Hospital Employees - Technical (Metropolitan) Award & Anor (1971) AR 272 at 280 where it was held: The parties agree that the pharmacy course referred to in s13 should be regarded as being of a comparable standard to a course for a science degree, and that a Pharmacist is entitled by his training to be regarded in the community as a professional person who has been scientifically trained and who is able to take responsibility accordingly. 100 It was the HAC's submission that the evidence relied upon by the HSU, to the extent that it may reveal such changes since the 1 July 1996 datum point, does not warrant a finding as to significant net addition as contemplated by the work value principle. Further, the HAC submitted that to the extent that any person engaged in the pharmacy stream may have experienced work value changes since the relevant datum point, those persons have been (or will be) adequately compensated by increases in wage rates that had occurred (or will occur) as a result of agreements reached between the HSU and the HAC.

101 Similarly, it was submitted by the HAC that the emergence of new drugs and the expansion of more complex drugs, to the extent that the work of Pharmacists in their dispensing and counselling role has thereby become more onerous, is no more than a continuation of the historical professional work of the Hospital Pharmacist.

102 As to the expansion of the Pharmacy Degree course from 3 years to 4 years, this does not, according to the HAC, justify a change in the rates of pay for Pharmacists. Indeed, the HAC submitted that the fact that additional training is required operates against the HSU's work value claim, as the extra year of training will better prepare students for the practice of pharmacy, thus reducing the amount of time spent by Pharmacists training and supervising graduates. In that regard, the HAC also made a more general submission that the HSU's claim is characterised by a refusal to acknowledge the existence of factors which have ameliorated the effect of changes or which have been of active benefit to Pharmacists.

103 The HAC further submitted that the claim for increased wages inappropriately applies to all Pharmacists, including those who have completed the 3 year degree. In that regard, the HAC submitted that "a wage increase that applies across the board would amount to an unjustified windfall gain for 3 year tertiary trained Pharmacists. This is because they would receive an increase that is referrable to a particular criteria (Completing a 4 year university degree) notwithstanding the fact that they have not satisfied that criteria".

104 In terms of the HSU proposal to re-align the salaries of Hospital Pharmacists with Hospital Scientists, the HAC submitted among other things that the Commission would not find an anomaly or inequity vis a vis the starting salaries of Hospital Pharmacists and Hospital Scientists (and thereby adjust the unregistered graduate Pharmacists rates of pay) unless satisfied that there was a firm basis to conclude that a proper comparison could be made between graduate Pharmacists and graduate scientists. In this and other aspects of the HSU anomaly and/or inequity case, the HAC contended that the mere statement of a comparison without more, does not demonstrate the existence of an anomaly and/or inequity let alone one that requires rectification by the Commission. The HAC pointed to the absence of evidence before the Commission as to the work of Hospital Scientists and their skills and responsibilities or any material that would enable some meaningful or relevant comparison. The HAC submitted further that it was insufficient for the HSU to ground its anomaly and/or inequity case in the non-existence of a previous nexus between Hospital Pharmacists and Hospital Scientists particularly when such a nexus was broken in part as a result of deliberate but differing industrial strategies adopted at the time by the Public Service Association (then representing Hospital Scientists) and the HSU (representing Pharmacists).

105 It will be convenient in the interests of brevity to deal in précis form, rather than recite, the comprehensive evidence taken. In that regard, we note that in relation to the Pharmacists, the HSU called the following witnesses:

a Peter Barclay, Specialist Clinical Pharmacist in Renal Medicine, Westmead Hospital

b Sylvia Bridie, Registered Pharmacist, Albion Street Centre, Princes of Wales Hospital

c Tim Chen, Lecturer in Pharmacy Practice, Sydney University

e Margaret Duguid, Director of Pharmacy, Royal North Shore Hospital

f Maria Guareschi, Registered Pharmacist, Bankstown - Lidcombe Hospital

g Maggie Gibson, Senior Pharmacist in charge of Dispensary Services, Royal North Shore Hospital

h Veronica Murdoch, Director of Pharmacy, Wollongong Hospital

i Kingsley Ng, Director of Pharmacy, Westmead Hospital

j Suzanne Quader, Registered Pharmacist, Prince of Wales Hospital

k Joane Rimington, Clinical Specialist Pharmacist for Infections Diseases/HIV at Prince of Wales Hospital

l Clarissa Salzman, Chief Pharmacist, Bankstown-Lidcombe Hospital

m Penelope Thornton, Deputy Director of Pharmacy, Westmead Hospital

n Joanna Tsang, Registered Pharmacist, Princes of Wales Hospital

o Meredith Verge, Registered Pharmacist, Royal North Shore Hospital

p Susanne Weress, Clinical Pharmacist, Royal North Shore Hospital

106 As to the changes to Pharmacists' qualifications, we note that the evidence revealed changes in the Bachelor of Pharmacy degree course which occurred in 1997 whereby it became a 4-year full-time course covering a mix of basic and applied sciences including chemistry, maths, psychology and the pharmaceutical sciences such as pharmaceutics and pharmaceutical chemistry, pharmacology, pharmacy practice and clinical practice.

107 For example, Mr Tim Chen, Lecturer in Pharmacy Practice at Sydney University gave evidence that the Pharmacy Degree course at Sydney University changed in 1997 from a 3-year curriculum to 4 years with the first cohort of students completing the degree in 2000 and graduating in 2001.

108 According to Mr Chen, the course was extended for a variety of academic reasons said to be relevant to these proceedings and going largely to changes in the practice of pharmacy. The fourth year of the new degree course has a focus on pharmacotherapeutics and experiential learning (otherwise called clinical practice) involving students in clinical placements in hospital and community pharmacies as well as nursing homes, outpatient/specialist clinics and other elective placements of choice. Following their tertiary studies, pharmacy graduates are now required to undertake 2000 hours of supervised pre-registration training followed by written and oral assessments conducted by the Pharmacy Board. Hospital Pharmacists play an important role in precepting students during clinical placements in the 4th year and may also act as a preceptor for graduates over the 12 month pre-registration training period. 109 Mr Chen acknowledged in cross-examination that Pharmacists who had completed the 3-year course were not required to undertake any re-training or to attend a refresher course.

110 The expert witnesses all gave evidence to the effect that the emergence of new drugs has made the knowledge and dispensing of medications more complex, as well as increasing the amount of patient counselling that is required. By way of example, Ms Rimington gave evidence regarding what she described as the "expanding production of biotechnology pharmaceuticals", stating: Many thousands of molecules are utilised by health care professionals as medicinal substances. Traditionally these substances were derived from plant and animal sources. However, technological advances have enabled the manufacture of synthetic molecules. The drive for new technologies producing novel compounds has expanded the way in which drugs are manufactured. There is now the ability to produce biotechnology products and utilise them as drugs. One of the first examples of a biotechnology product was recombinant insulin.

111 Ms Thornton gave evidence regarding the implications of the increased number and complexity of drugs, for instance stating: The complexity of drug products on the market in Australia means that it is impossible for prescribers to understand the full spectrum of available drug therapy along with diagnosis and other treatment and they now require specialist professionals (Pharmacists) to advise.

112 In addition to the increasing volume and complexity of drugs, increases in work skills and responsibility and workload were attributed to, inter alia , the introduction of the Highly Specialised Drug scheme (with the consequent increase in administrative work and monitoring), increases in the number of patients for whom Highly Specialised Drugs are prescribed, the increased significance of patient counselling and education as an important aspect of pharmaceutical care, the higher turnover of patients in public hospitals, and the shortage of Pharmacists in public hospitals generally. 113 Ms Salzmann gave evidence as to the turnover of patients in public hospitals, deposing in her affidavit that the length of stay at hospitals has reduced over the last 5 years from 7-10 days down to 4-5 days. This has the result of increasing the skills and workload of Pharmacists, for instance, because there is a greater demand for discharge counselling and co-ordination of treatment plans.

114 In cross-examination, the HAC challenged the evidence adduced by the HSU as to the changes in work performed by Pharmacists by suggesting, broadly stated, that any increase in duties does not represent a "significant net addition" to Pharmacists' duties; that the additional work described was being performed prior to the relevant datum point; that the increased work is of a nature and quality of that which is usually required of any professional person; and/or that there is insufficient evidence to support the HSU's contention that the work described by the witnesses has "increased substantially". 115 As to the cost implication of the HSU claim, the HAC relied upon the evidence of Kenneth Barker, Chief Financial Officer, New South Wales Department of Health and more generally as to the award history and salary movement, upon the evidence of Trevor Craft, Assistant Director Employee Relations, New South Wales Department of Health. Also, and with respect to the development of training and qualification regimes for pharmacy and other streams, the HAC called evidence from Peter Bayley, health management consultant.

116 As to the HAC contention in respect of the prerequisite tests for satisfaction of the work value principle, we are mindful of the HAC's carefully crafted and detailed attack on the body of evidence relied upon by the HSU. We have been, and remain cognisant of, the underlying theme of the HAC arguments in this regard emanating as they do in part from the notion that the ongoing acquisition of specialised knowledge is consistent with the requirement and obligations of professional practice. We do not, however, agree with the HAC that the relevant tests have not been met. We are satisfied that there are sufficient changes in work value such that there is an adequate foundation and justification for wage increases under the work value principle and as we have earlier described, the special case principle. 117 We point here, although not exhaustively or by ranking in order of importance, to matters that were in our view sufficiently well established in evidence as having occurred since 1996; as going beyond that which would ordinarily fall into the category of professional development and which when taken together with changed work have resulted in the devolution of certain functions to unregistered staff, constitute a significant net addition to the work requirement for Hospital Pharmacists as we are disposed.

118 The emergence of high cost biotechnology pharmaceuticals, for example, was spoken about by numerous witnesses as firstly being limited in terms of availability, to hospitals as distinct from community pharmacies and secondly, in their rapid expansion, as placing added pressure on Hospital Pharmacists in terms of the specialised knowledge required and the development of protocols to outline appropriate indications and usage within hospitals.

119 By way of further example, a significant proportion of the large number of high cost specialised drugs now marketed for treatment or management of diseases such as hepatitis B, C, and HIV are subsidised by the Commonwealth Government under s100 of the National Health Act 1953 . The management and accountability for useage of these drugs as well as the processes for obtaining reimbursement for the cost of such useage have imposed a considerable additional burden on Hospital Pharmacists more pronounced in the case of, but not limited to, Directors and Deputy Directors of Pharmacy.

120 There is a significantly increased emphasis on the training and supervision by the Hospital Pharmacist, of unregistered staff with related responsibilities for quality control. This is one of the consequences of an alteration in the numerical balance between Hospital Pharmacists and unregistered staff and the training of technicians, for example, to reliably perform critical sterile production and to work in specialised areas such as cytotoxic drug reconstruction is a substantial additional responsibility.

121 The increased complexity of drug therapy in recent years has dictated increased input by Hospital Pharmacists into the management of drug therapy in hospitals. Evidence-based medicine requires acute treatment to be delivered in accordance with approved protocol and Hospital Pharmacists now play a key role in the development and approval of such protocols as well as the co-ordination of them among the disparate medical specialties requiring access to particular drugs.

122 The reduction in length of stay in hospital by means of discharging patients to what is termed ambulatory medicine has created a new community liaison role for the Hospital Pharmacists in facilitating firstly, seamless discharge by communication with local medical practitioners (GP's), local chemists, nursing homes and the like and secondly in co-ordinating treatment plans with the GP, haematologist, rheumatologist, microbiologist and the like for patients being referred to ambulatory medicine.

123 The requirement for improved operational efficiency to meet Department of Health benchmarks such as admission on day of surgery, reduced length of stay, improved discharge planning, decreased waiting times in Emergency Department and the like have collectively impacted on Hospital Pharmacists.

124 The fact that certain pharmacists functions have devolved to unregistered staff throughout the relevant period does not derogate in our view from the proposition for which the HSU contends, namely that there has been a significant net addition to the work requirements of Hospital Pharmacists. We consider that the devolution of certain functions has resulted in both a concentration of and change in the work of Pharmacists by expanding their advisory, supervisory and educative roles.

125 We note in that regard, the significant change in the advisory and educative roles played by the Hospital Pharmacists involving for example, the hitherto unfamiliar roles of Technician Preceptor and Clinical Pharmacist Mentor.

126 By that, we should not be taken to mean that in the past, there had been no superintendence by the Hospital Pharmacist of undergraduate students in pharmacy because the evidence in that regard is clearly to the contrary. However, the difference between what was described in the evidence as a one week familiarisation placement (where the student would effectively be shown around the hospital precinct) and the experiential learning component of the extended degree course involving as it does among other things, a 12 week clinical placement has significantly impacted upon the work of the Hospital Pharmacists in a way which to our minds, has imposed precepting and mentoring roles that can fairly be described as hitherto unfamiliar and by implication, different to roles previously carried out.

127 Furthermore, the dramatic expansion throughout the relevant period in the range and complexity of drugs, has resulted in Hospital Pharmacists becoming to a substantially greater degree than before, the focal point of specialist knowledge and advice throughout the hospital for medical and allied staff in the prescription and administration of drugs to patients. We cite here an example of the tangible benefits of the increased advisory and educative role carried out by Hospital Pharmacists whereby the involvement of a pharmacist in the preadmission clinic at Royal North Shore Hospital has dramatically reduced the prescribing error rate from ninety per cent to two per cent.

128 Before turning to the question of qualifications it is appropriate at this juncture to deal with some more general considerations. As we have mentioned, we do not accept as the HAC contends, that the additional knowledge and skills required of Hospital Pharmacists can or should in the context of these proceedings, be consigned to the realm of continuing historical professional work and although minds may differ as to what should reasonably be expected by way of professional development, such issues are in the sense of industrial regulation, ultimately matters of fact and degree and must in their determination rest on what is, in the judgment of the Commission, fair and reasonable in terms of rates of pay and conditions of employment.

129 The test of whether there have been changes in work value such as to satisfy the relevant wage fixing principle is necessarily a global one. It is not amenable to microscopic evaluation of discrete functions of the particular classification or classifications under review and we agree in that regard with the HSU submission that although a thorough and exhaustive analysis of the work in question is required in each case, the application of an unduly rigid or function specific approach to changes in the work of professionals such as Hospital Pharmacists (which in our view are amply demonstrated by the evidence) would render it virtually impossible for a professional classification to satisfy the test. We do not consider such a result to be a fair and just one, and nor do we consider such a result to be consistent with the spirit and intention of the Commission's wage fixing principles. 130 We would, emphasise that those principles would dictate that such a realistic evaluation of the nature of the work of professionals would be tempered by the requirement to avoid the double counting of features said to constitute the elements of work value change (so as to avoid compensation for features of the work that merely arise from ordinary professional development or have been previously taken into account in wage reviews). However, we do not agree with the HAC's submission that changes in work value that have occurred since 1 July 1996 have been or will be adequately compensated by existing arrangements. 131 It is also important to note that, whilst the consideration of work value per se occupies much of the submissions of the parties in this matter (and naturally this judgment), it should not be overlooked that for the most part, work value considerations were an important factor in the HSU's case for, and our findings in favour of, a special case. 132 We note again the HSU's submission that, if the Commission were minded to grant the claim advanced in respect of Pharmacists, there would be no flow-on implications for Hospital Scientists. We are satisfied, as previously discussed, that there is no likelihood of leapfrogging arising out of the changes in the position of Pharmacists rates relative to others.

133 As to qualifications, we accept that there have been changes to the Pharmacy Degree course, such that there is now an additional year of training which is primarily focused on clinical practice. We are further satisfied on the evidence that this additional training has added significantly to Pharmacists' qualifications, both in terms of their knowledge acquired through tertiary education and clinical training. 134 We would also observe that the new degree course is clearly a direct and tangible academic acknowledgment of the additional knowledge and skills generally required of a Pharmacist currently working in the health system. Whether such additional skills and knowledge are acquired by rigorous skills acquisition and enhancement at the workplace, as is the case with existing employees or in part, by the extended course duration followed by pre-registration training is not to the point because, the extension of the degree course duration is of general significance in that it is a reflection of the additional skills required of the present day Hospital Pharmacist. Put another way, the fact of the redesign and extension of the Pharmacy Degree course, on the evidence before us, is a clear and unambiguous response by the tertiary institutions to the higher levels of skill and knowledge required of practising pharmacists and to the need to better equip new inductees into the profession to cope with those higher demands. Viewed in that way as we consider it should be, it may be seen that the extended degree course is of general significance for the purpose of these deliberations and cannot be confined as the HAC sought to do, to the first and subsequent cohort of graduates who emerge from the universities so equipped. We reject the proposition for which the HAC contends that recognition of the extended degree course as a matter relevant to considerations of work value would in some way, amount to a windfall gain for graduates in the 3-year degree course.

135 Thus, the emergence of graduates from the new 4-year course has a direct affect on existing employees. For example, and as we have earlier observed, the role of preceptor for a Hospital Pharmacist has changed in the light of the different calibre of graduate, and a 12-week clinical placement for final year students is significantly more demanding than the previous 1 week familiarisation placement offered under the 3 year degree course. 136 We do not accept the HAC's submission that, having obtained additional training, graduates require less supervision, thereby reducing the workload of the Hospital Pharmacist. Such an argument is not credible. The skills of the new graduate will be used in our view to assist in overcoming the shortage of pharmacists as graduates with superior skills may be engaged more readily in full service functions. This requires a greater supervisory and educative role by the Hospital Pharmacist to achieve this more expeditious conversion.

137 As to the HAC's submission regarding the dislocation of the alignment of rates of pay for Hospital Pharmacists and Hospital Scientists arising, in part, from the different industrial strategies adopted by the unions representing those two groups, we are not persuaded on the material before us that the HAC has presented a correct representation of what transpired in 1992.

138 Simply put, the material discloses a departure from the alignment of rates of pay between these groups but it does not disclose why it occurred and to the extent that the HAC submitted different industrial strategies as the basis of such a departure, we consider that it would be unsafe to so conclude on the evidence as it stands. Moreover, industrial strategies could not account for the full amount of the differential, and the extent to which such a factor may be seen as offsetting any wage increases it must be tempered by the requirement of s10 of the Act to set fair and reasonable conditions of employment.

139 At all events and as to those propositions, the HSU points to the agreement between the parties to the present proceedings that there has been an historical relationship between salaries paid to Hospital Pharmacists and salaries paid to Hospital Scientists. The HSU further argues that the relationship was established by the Commission (per Sheppard J in 1971 and later by Glynn J in 1980) albeit with the consent of the employer of the time, but nonetheless only after the Commission had satisfied itself as to the appropriateness of such a nexus. On neither occasion was the Commission presented with detailed evidence as to the work of scientific officers in hospitals. The HSU contended and correctly so, in our view, that it had traditionally been the case that once a change in work value has been established, the Commission in setting appropriate rates, is entitled to look at rates of pay for other classifications or for the same classification in other awards. In doing so, the Commission may have regard to historical relationships, particularly where, as in this case, the decline in that relationship does not seem to have arisen from any reassessment of the relative value of the work of the two groups, (or any other factor which might indicate that the previous relationship was inadequate). Further, the HAC failed to indicate any other basis for the assessment of rates of pay, if a special case was made out by the HSU.

140 The HSU submitted that the Commission should in determining fair and reasonable rates for Hospital Pharmacists, have regard to rates of pay for Hospital Scientists. We agree, and in doing so note, as we are exhorted to do by the HSU, what the Full Bench said in Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 at [54]: This latter aspect of 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.

141 In that case, as the HSU submitted, there was no suggestion from the Full Bench that it required detailed evidence concerning the work of Hospital Scientists or other health professionals in order that the Commission may have regard to salary rates applying and we consider in this case that a similar approach is available (particularly as we have emphasised where the HAC advanced no actual contrary basis for assessment). However, as earlier discussed, we have been careful in adopting the approach proposed by the HSU to weigh the changes arising from such an approach with actual work value changes to ensure any wage adjustments are appropriate.

142 Having regard to those matters, there is in our view much to commend the HSU application in respect of Hospital Pharmacists and, save for certain classifications where strict adoption of the rates proposed would be inappropriate, we will grant it accordingly. We note in so doing the HSU submission to the effect that there will be no-flow-on implications for Hospital Scientists arising from such a result and secondly, that the alteration of rates resulting from our decision represents a just and reasonable measurement of work value changes in money terms as well as an appropriate reflection of the special case which has been made out. 143 We further note in coming to our decision in that regard that the quantum of increase granted at entry level to Pharmacists at the pre-registration stage (ie, Pharmacist Grade 1 - Unregistered) recognises among other things that persons appointed to such positions will have completed the 4-year degree course and will be paid a rate equivalent to 4-year degree course graduates appointed as Hospital Scientists under the relevant award. Until now the rate payable to a 4-year pharmacy graduate at the unregistered entry level has been and unreasonably so in our view, almost thirteen per cent below the rate payable to a 3-year science graduate ($659.50 p.w and $755.10 p.w respectively).

144 Additionally, we have determined that the non-replication in the HSU claim, of the requirement for persons appointed to the level of Principal Hospital Scientist to hold a post-graduate degree is a matter which militates against the granting of the claim in full. Weighing such matters in the balance and having regard to Mr Murphy's proper concession in that regard to which earlier reference has been made, we consider it appropriate to grant the HSU claim in part only at the top end of the Hospital Pharmacists scale. One important consequence of this approach will be a more uniform quantum of increase across the broad range of the Hospital Pharmacists' scale which is commensurate with the impact of work value change at the various levels of the scale. 145 In saying there will be a more uniform quantum of increase across the Hospital Pharmacists' scale, we should not be taken to mean that the approach we have taken will result in uniform increases per se . Rather, the approach we have taken will mean there will be less disparity between the increases at various levels of the Hospital Pharmacists scale (particularly at the upper end) than would flow from the granting of the HSU claim in full. Further, and to the extent that there is some unevenness in the increases as between the various levels as a result of the linkage with Hospital Scientists, we consider this to be, as we have inferred, a rational outcome and one which is generally reflective of the work value and special case aspects of the HSU claim which have been made out on the evidence. Finally, we consider it appropriate that the largest percentage wage increase has occurred at the unregistered Pharmacist level given the change in qualifications required for the position.

146 The classifications and definitions thereof for Pharmacists under the relevant award shall remain unchanged. The new rates of pay for Pharmacists will be as follows: Classifications Weekly Rate of Pay PHARMACISTS $783.50 Grade 1 - Unregistered

GRADE 1 1st year $831.70 2nd year $888.70 3rd year $950.10 4th year $1059.70 5th year $1093.90

GRADE 2 1st year $1176.60 2nd year $1216.00 3rd year $1249.90

GRADE 3 Senior Pharmacist Director of Pharmacy - Group 5 Hospital Deputy Director of Pharmacy - Group 3 Hospital 1st year $1386.80 2nd year $1425.30

GRADE 4 Director of Pharmacy - Group 4 Hospital Deputy Director of Pharmacy - Group 2 Hospital 1st year $1425.30 2nd year $1473.70

GRADE 5 Director of Pharmacy - Group 3 Hospital Deputy Director of Pharmacy - Group 1 Hospital 1st year $1518.60 2nd year $1556.70

GRADE 6 Director of Pharmacy - Group 2 Hospital 1st year $1667.80 2nd year $1709.40

GRADE 7 Director of Pharmacy - Group 1 Hospital Group A - 1st year $1797.20 Group A - 2nd year $1840.90

Group B - 1st year $1883.80 Group B - 2nd year $1927.40 Fellowship Allowance $26.60

147 At the outset, we observe that the award classification of Pharmacy Technician came into existence in the manner described by a circular published by the NSW Department of Health on 3 December 2001.

148 The circular was in the following terms: New Classification - Pharmacy Technician

The Department has approved a new classification of Pharmacy Technician, together with appropriate definitions and salary rates. The new classification has been created to free up hospital Pharmacists to enable them to undertake more of the advisory/education function to medical staff, as well as patients.

The new classification of Pharmacy Technician consists of three levels with provision for a Senior/In-charge and a Specialist Technician.

The definitions for Pharmacy Technicians are as follows:

Pharmacy Technician Level 1 - means a person who is appointed to such a position and who has successfully completed a nationally recognised Pharmacy Technician Certificate Course at Certificate Level 4. Such person is under the supervision of a Pharmacist and/or a more Senior Pharmacy Technician

Pharmacy Technician Level 2 - means a person who has successfully completed a nationally recognised Pharmacy Technician Certificate at Certificate Level 4, has relevant pharmacy experience and displays competency in performing complex tasks under supervision of a Pharmacist in specialist areas of practice such as but not limited to cytotoxic drug reconstitution, sterile production, clinical trials, information systems management etc. This position may also be supervised by a Grade 3 Pharmacy Technician. This classification may operate in a supervisory capacity. Jobs at this level have greater responsibilities than those at level 1.

Pharmacy Technician Level 3 - means a person appointed to such a position who has successfully completed a nationally recognised Pharmacy Technician Certificate at Certificate Level 4 and who has extensive experience beyond that required of a Pharmacy Technician level 2 and who also has formal accredited qualifications in management studies (at least VETAB equivalent). The position would be primarily responsible for the management and development of all Pharmacy Technicians and Pharmacy Assistants. The position would carry responsibility for the effective performance and development of non-professional pharmacy services, participating in departmental committees and continuous education/management training programs. Inherent in this position is the ability to display competency in performing complex tasks with limited supervision.

The rates of pay for Pharmacy Technicians are as follows: Salary Micropay Workforce Grade 1 1st year $573.10 04.936.1104PHT101 2nd year $583.30 04.936.1204PHT102 Grade 2 1st year $599.40 04.936.21O4PHT201 2nd year $613.90 04.936.22O4PHT202 Grade 3 1st year $627.70 04.936.31O4PHT301 2nd year $642.70 04.936.32O4PHT302

The Department will seek to have the new classification of Pharmacy Technician included into the award.

The new rates are effective from the first full pay period to commence on or after 1 November 2001.

If there is a Pharmacy Assistant (6th year and thereafter) currently employed who meets the criteria for appointment and is reclassified as Pharmacy Technician, Grade 1, they will continue to be remunerated on a personal basis at the salary of Pharmacy Assistant, 6th year and thereafter.

The new rates will be introduced in the Micropay and Workforce updates for December 2001.

Any additional costs are to be met by Area Health Services.

Any enquiries concerning this matter should be directed to the relevant Human Resources personnel in the Area Health Service. Only Human Resources personnel from Area Health Services are to contact the Department direct.

Robert McGregor Acting Director General 149 Prior to 3 December 2001, there was no award recognition of Pharmacy Technicians, notwithstanding that persons with qualifications of relevance to such a classification were and had been for substantial periods of time, employed within the NSW public health system to carry out work as Pharmacy Technicians. As the above circular reveals, the impetus for formal award recognition was expressed to be for the purpose of freeing up Hospital Pharmacists "to enable them to undertake more of the advisory/educational functions to medical staff as well as patients".

150 The industrial parties agreed at the time that the Health Employees (State) Award would be varied to include the new classification structure and rates of pay although, as the HSU submitted in these proceedings, its consent to that award variation did not extend to an acknowledgment or acceptance of the adequacy of the rates of pay thus prescribed.

151 In the result, the Health Employees (State) Award contains the following classification structure and rates of pay:

Classifications Rate from 1.1.2002 Rate from 1.1.2003 Rate from 1.7.2003 3% 4% 5%

Pharmacy Technician - Grade 1 1st year $590.30 $613.90 $644.60 2nd year $600.80 $624.80 $656.00

Pharmacy Technician - Grade 2 1st year $617.40 $642.10 $674.20 2nd year $632.30 $657.60 $690.50

Pharmacy Technician - Grade 3 1st year $646.50 $672.40 $706.00 2nd year $662.00 $688.50 $722.90

152 Movement through or appointment to the various levels within the classification structure is ostensibly prescribed by the "Definitions" clause of the award which is as follows: (xxxiii ) Pharmacy Technician Grade 1 means a person who is appointed to such a position and who has successfully completed a nationally recognised Pharmacy Technician Certificate Course at Certificate Level 4. Such person is under the supervision of a Pharmacist and/or a more senior Pharmacy Technician.

(xxxiv) Pharmacy Technician Grade 2 means a person who has successfully completed a nationally recognised Pharmacy Technician Certificate Course at Certificate Level 4, has relevant pharmacy experience and displays competency in performing complex tasks under supervision of a Pharmacist in specialist areas of practice such as, but not limited to, cytotoxic drug reconstruction, sterile production, clinical trials, information systems management etc. This position may also be supervised by a Grade 3 Pharmacy Technician. This classification may operate in a supervisory capacity. Jobs at this level have a greater level of responsibility than those at Grade 1.

(xxxv) Pharmacy Technician Grade 3 means a person appointed to such a position who has successfully completed a nationally recognised Pharmacy Technician Course at Certificate Level 4 and who has extensive experience beyond that required of a Pharmacy Technician Grade 2 and who has formal accredited qualifications in management studies (at least VETAB equivalent). The position would be primarily responsible for the management and development of all Pharmacy Technicians and Pharmacy Assistants. The position would carry responsibility for the effective performance and development of non-professional pharmacy services, participating in departmental committees and continuous education/ management training programs. Inherent in this position is the ability to display competency in performing complex tasks with limited supervision.

153 We say the classification only ostensibly provides classification definitions because there has been, until more recently, no Pharmacy Technician Course at Certificate Level 4 in Australia which would permit entry to the classification. We will say more about that shortly.

154 Prior to the inclusion of the classification in the award, a Pharmacy Technician would be qualified as such by completing the Pharmaceutical Society of Australia's Dispensary Technician Training Course at Certificate 3 level, by attending the Wal Scerrie Pharmacy Academy at the University of Technology Sydney (UTS) or by completing courses offered by overseas institutions which were deemed to be of the prerequisite standard.

155 The requirement for persons who are appointed to the newly created award classification to have "successfully completed a nationally recognised Pharmacy Technician Course at Certificate Level 4" was predicated on the erroneous understanding that the Hospital Pharmacy Technicians program which began to be offered by the Charles Sturt University in 2000 was such a course.

156 The term "nationally recognised" is intended to mean recognised within the Australian Qualifications Framework (AQF) which is a comprehensive, nationally consistent framework for all qualifications in post-compulsory education and training. It does not include recognition of overseas qualifications (held by some Pharmacy Technicians who gave evidence). 157 It was agreed between the parties that although Charles Sturt University may have represented its program as "Certificate Level IV", it is not a nationally recognised AQF Certificate Level IV as contemplated by the award classification for Pharmacy Technicians.

158 It is further agreed that, prior to 2003, there was no operational nationally recognised Pharmacy Technician course at AQF Certificate Level IV and that in 2003, Charles Sturt University would begin to offer such a nationally recognised course entitled "Certificate IV in Health Service Assistance (Hospital/Community Health Pharmacy Technician)".

159 Charles Sturt University will also begin to offer a nationally recognised AQF Certificate Level III course entitled "Certificate III in Health Service Assistance (Hospital/Community Health Pharmacy Assistance)".

160 To the extent that such measures may offer an ultimate remedy for the very obvious deficiency in the present award definitions and classifications of Pharmacy Technician (which are in an award sense and an administrative sense otiose), the fact remains that the first cohort of graduates from the new course has yet to emerge. Against such a background, it seems to us that there is little to be gleaned for the purpose of these deliberations, from the consent arrangements in respect of Pharmacy Technicians which the parties entered into in 2000, save that they indicate that the existing arrangements are for all intents and purposes inoperative and misconceived.

161 Indeed, the witnesses called by the HSU in support of its claim for Pharmacy Technicians deposed, without exception, to being paid as either Administrative Officers under the Health Employees Administrative Staff (State) Award or as Pharmacy Assistants under the Health Employees (State) Award and not as Pharmacy Technicians. Their rates of pay ranged from $669.30 p.w. to $803.10 p.w. This position applied, notwithstanding that they had obtained qualifications and/or experience which both equipped them to and provided the basis for their engagement to perform the full range of work as Pharmacy Technicians. Claim for Pharmacy Technicians

162 The HSU application seeks to replace the existing 3 - level award structure for Pharmacy Technicians with a 4 - level structure aligned with Technical Officers under the Health Employees Technical (State) Award. It is intended that appointees to the first level of the proposed structure will have successfully completed a qualification in a relevant field recognised by the Pharmaceutical Society of Australia or up to the level of Certificate III issued by a tertiary education institution such as Charles Sturt University. Appointees to subsequent levels will have successfully completed a nationally recognised Pharmacy Technicians Certificate Course at Certificate Level IV. In the top two levels appointees will be required to perform complex tasks in specialised areas such as cytotoxic drug reconstruction, sterile production, clinical trials, information systems management and at the top level, an overlay of management, development of support services, participation on departmental committees and continuous education/ management training programs will be expected.

163 Thus, it is proposed that the essentially administrative arrangements presently applying to Pharmacy Technicians be replaced by the 4 - level structure such that all Pharmacy Technicians including Deputy Senior Pharmacy Technicians and Senior Pharmacy Technicians would be expressly provided for both in terms of the existing and impending qualifications and in terms of rates of pay within a discrete award provision.

164 The HSU claim in respect of Pharmacy Technicians is as follows: Variation 1. Replace the existing definition for "Pharmacy Technician - Grade 1" contained in sub-clause (xxxiii) of Clause 1 - Definitions , as follows;

Pharmacy Technician Grade 1 - means a person appointed to such a position who has successfully completed a qualification in a relevant field recognised by the Pharmaceutical Society of Australia or up to the level of Certificate III issued by a tertiary education institution e.g Charles Sturt University.

(Transitional Arrangements - At the time of implementation of the award, Pharmacy Assistants who have at least 3 years relevant pharmacy experience and competencies gained through on the job training to perform tasks equivalent to those of a Pharmacy Technician, Grade 1, should be graded as a Pharmacy Technician, Grade 1.)

2. Replace the existing definition for "Pharmacy Technician - Grade 2" contained in sub-clause (xxxiv) of Clause 1 - Definitions , as follows;

Pharmacy Technician Grade 2 - means a person who is appointed to such a position and who has successfully completed a nationally recognised Pharmacy Technician Certificate Course at Certificate Level 4. Such person is under the supervision of a Pharmacist and/or more senior Pharmacy Technician.

Transitional Arrangements - At the time of implementation of the award, Pharmacy Assistants who have at least 6 years relevant pharmacy experience and competencies gained through on the job training to perform tasks equivalent to those of a Pharmacy Technician, Grade 2, should be graded as a Pharmacy Technician, Grade 2.)

3. Replace the existing definition for "Pharmacy Technician - Grade 3" contained in sub-clause (xxxv) of Clause 1 - Definitions , as follows;

Pharmacy Technician - Grade 3 - means a person who has successfully completed a nationally recognised Pharmacy Technician Certificate Course at Certificate Level IV, has relevant pharmacy experience and displays competency in performing complex tasks under the supervision of a Pharmacist in specialist areas of practice such as, but not limited to, cytotoxic drug reconstruction, sterile production, clinical trials, information systems management, etc. This position may also be supervised by a Grade 4 Pharmacy Technician. This classification may operate in a supervisory capacity such as a Deputy Senior/Second-in-Charge position. Jobs at this level have greater responsibilities than those at Grade 1 and 2.

4. Insert to Clause 1 - Definitions an additional sub clause (xxxvi) that introduces the new classification and definition of "Pharmacy Technician - Grade 4" as follows:

Pharmacy Technician Grade 4 - means a person appointed to such a position who has successfully completed a recognised Pharmacy Technician Certificate at Certificate Level 4, and who has extensive experience working within a pharmacy as a Pharmacy Technician Grade 2 and/or Grade 3 and has accredited qualifications in management studies of a formal nature recognised by the Area Health Service (these studies may be conducted by the Area Health Service on a local internal basis). Generally the position would be primarily responsible for the management of all Pharmacy Technicians and Pharmacy Assistants in a large unit. The position would carry responsibility for the effective management and development of pharmacy support services under the Director or Deputy Director of Pharmacy. Participate on departmental committees and continuous education/management training programs. Inherent in this position is the ability to display competency in performing complex tasks with limited supervision.

5. Replace the existing Monetary Rates contained in Table 1, Part B, for "Pharmacy Technicians - Grades 1, 2 and 3) as follows, which also includes rates pertinent to the new classification of Pharmacy Technician - Grade 4":

Rate from 01/01/02 Rate from 01/01/03 Rate from 01/07/03 Pharmacy Technicians Grade 1 1st year $617.40 $641.10 $674.20 2nd year $632.80 $657.60 $690.50 3rd year $646.50 $672.40 $706.00 4th year $662.00 $688.50 $722.90

Grade 2 1st year $676.40 $703.50 $738.70 2nd year $701.90 $730.00 $766.50 3rd year $724.70 $753.70 $791.40 4th year $744.80 $774.60 $813.30

Grade 3 1st year $796.10 $827.90 $869.30 2nd year $823.40 $856.00 $899.60

Grade 4 1st year $851.40 $885.50 $929.80 2nd year $905.20 $941.40 $988.50

165 The HSU submitted that, given the recent introduction of the Pharmacy Technician classification, the work value principle has no application to the work performed by persons in that classification. However, the HSU submitted that there are a number of factors which are relevant and should be taken into account when determining "fair and reasonable" rates of pay, including the technical nature of the work performed and the devolution of duties from Pharmacists.

166 It was the HSU's submission that there were significant anomalies and inequities in the rates of pay set for Pharmacy Technicians. According to the HSU, there is no basis for aligning the rates of pay for Pharmacy Technicians, with those for Technical Assistants under the Health Employees (State) Award, and the HAC had offered no justification for having determined the rates of pay in that way.

167 In opposing this aspect of the claim, the HAC submitted that no attempt has been made by the HSU to justify the increases sought, either by alluding to historically relevant reference points with Technical Officers or by other means, to establish that the existing rates are no longer fair and reasonable so as to warrant intervention by the Commission.

168 The HAC further submitted that the HSU has not established a special case in relation to Pharmacy Technicians, and noted that "the mere fact that two classifications of employees in the public health system are paid at different rates does not demonstrate the existence of an anomaly and/or inequity".

169 The HAC also contended that the broad definition of Pharmacy Technician proposed by the HSU is such that some employees caught by the definition may receive wage increases of more than 25%. Increases of such magnitude are not justified according to the HAC.

170 Evidence relied upon by the HSU in support for its claim for Pharmacy Technicians was called from the following witnesses:

a Susan Kelly, Senior Pharmacy Technician Royal North Shore Hospital (paid as Administration Officer Level 5)

b Jennifer Kimberly, Pharmacy Technician, John Hunter Hospital (paid as Pharmacy Assistant - 6th year)

c Monica Middleton, Senior Pharmacy Technician, Prince of Wales Hospital (paid as Administration Officer Level 5)

d Ann Stubley, Pharmacy Technician, Sydney Children's Hospital, Randwick (paid as Pharmacy Assistant - part time for 3 days and Administration Officer - Level 4 for 2 days)

e Becky Walsh, Deputy Senior Pharmacy Technician, Prince of Wales Hospital (paid as Administration Officer Level 4)

171 As with the claim on behalf of Pharmacists, the HAC relied on evidence called from senior departmental officers Messrs Barker and Craft in estimating the cost of the claim and in tracing the history of this particular classification.

172 The administrative or award classification structure introduced in December 2001 purported to give formal recognition to a hybrid group that had emerged in the pharmacy stream (between the classifications of Pharmacist and Pharmacy Assistant). The rationale for the new classification was specified in the Departmental circular as follows: The new classification has been created to free up hospital Pharmacists to enable them to undertake more of the advisory/education functions to medical staff, as well as patients.

173 In making this statement, there was, in our view, an implicit recognition that significant pharmacy duties had started to be devolved due to the shortage of Pharmacists, and the need for Pharmacists to focus their attention on their clinical and education duties.

174 However, in the event, the administrative structure failed to give that recognition, for reasons which are twofold. Firstly, the structure created entry conditions which were incapable of satisfaction such that the provisions were otiose. Secondly, the structure failed to sufficiently recognise that persons engaged as Pharmacy Technicians were required to obtain skills significantly higher than those of Pharmacy Assistants with many aspects of their work bearing some familiarity with that of Pharmacists. We agree that the classification structure and rates of pay selected for the position based as they were on inadequate Technical Officer comparators, were insufficient . 175 Accordingly, a vacuum was created which was not adequately filled by the administrative arrangements which were initially put in place by the HAC and later reflected in a consent award. In the result, the present arrangement is entirely unsatisfactory, there being firstly, no award recognition of specific Pharmacy Technician qualifications from Australia, the United Kingdom and New Zealand notwithstanding the recognition of such qualifications by the Pharmaceutical Society of Australia and secondly, an inadequate award definition which has qualification requirements which hitherto have not been attainable, and thirdly, inadequate payments for Senior Pharmacy Technicians and Deputy Senior Pharmacy Technicians, who like Pharmacy Technicians generally, are remunerated as Administrative Officers and/or Pharmacy Assistants. 176 The evidence revealed that in addition to persons classified as Pharmacy Technicians, certain hospitals now employ Senior Pharmacy Technicians and Deputy Senior Pharmacy Technicians in respect of whom there is no specific award provision, let alone a satisfactory award provision.

177 Further, the evidence also revealed that there had been significant change in Pharmacy Technicians duties, even though the position is of relatively recent origin. Pharmacy Technicians have assumed increased responsibility as their training, expertise and experience permitted and as the emerging needs of the hospital system required, for technically complex tasks which had historically been carried out by Hospital Pharmacists. We refer here by way of example to the performance of critical sterile production-functions and to work now carried out by Pharmacy Technicians in specialised areas such as cytotoxic drug reconstruction. The existing award prescription for Pharmacy Technicians does not adequately reflect this change.

178 Thus, the work of Pharmacy Technicians has continued to evolve with very substantial changes, even after the new classification was introduced, such that, in our view, a new classification structure is required to be introduced in order to properly reflect in a special case the formal qualifications, work place training and skills and responsibilities of this group. By this means the present anomalies and inequities in their classifications and rates of pay will be rectified.

179 In so concluding, we are mindful of the evidence relied upon by the HSU to the effect that the role of the Pharmacy Technician has increased since the end of 1996 due to the devolution of those tasks previously performed by Pharmacists which could in a relative sense, be described as routine. The devolution of which we speak is, in our view of the evidence, clearly and causally related to declining Pharmacist numbers. An example of these tasks referred to in the evidence was the collection of schedule 8 drugs for the ward such medications being packed and sealed by the Pharmacist with the Pharmacy Technician now supervising ward nursing staff as to the amount and accuracy of the drugs supplied against the particular drug order. This was said to be, and not challenged, a valuable time saving measure in freeing up Pharmacists for more complex tasks and an increase in the level of skills and responsibilities required of Pharmacy Technicians. Other examples of functions which have devolved to Pharmacy Technicians in consequence of declining Pharmacist numbers include, but are not limited to, ancillary labelling, preparing prescription medications, ward rounds and chart checking. As earlier discussed, this represents the strong connection between a shortage of employees and the development of new skills and responsibilities at the workplace.

180 As can be seen from the foregoing, the HSU proposal contemplates by way of transitional arrangements, that Pharmacy Assistants with at least 3 years relevant pharmacy experience and competencies gained through on-the-job training who perform tasks equivalent to those of Pharmacy Technicians Grade 1, should be graded as Pharmacy Technician Grade 1.

181 The proposal further contemplates, by way of transitional arrangements, that Pharmacy Assistants with at least 6 years relevant pharmacy experience and competencies gained through on-the-job training to perform tasks equivalent to those of a Pharmacy Technician Grade 2, should be graded as a Pharmacy Technician Grade 2.

182 We take this to mean that such persons are to be recognised as being capable of performing tasks equivalent to Pharmacy Technicians at the Grade 1 and 2 levels respectively without necessarily possessing the AQF Certificate III or IV level qualifications otherwise required for appointment at those levels.

183 We note further, in that regard, the evidence that a number of Pharmacy Assistants were encouraged to undertake and have completed the so - called Certificate Level IV course from Charles Sturt University in the expectation that successful completion would enable them to be appointed as Pharmacy Technicians. As we have earlier observed, such expectations remain unrealised due among other things, to the present award requirement for completion of a nationally recognised AQF Certificate Level IV. However, those Pharmacy Assistants were engaged in duties equating at least in part to those designated for Pharmacy Technicians.

184 As to the HAC's submission that the HSU has failed to establish that the rates set are no longer "fair and reasonable", we consider this to be a curious submission in the light of what is said above and one which must be rejected. This is because, as earlier discussed, the classification structure and rates of pay which are presently prescribed fall demonstrably short of what can be described as industrially adequate. The classification structure is essentially inoperative and the ad hoc administrative arrangements, and consequently the present classification and rates of pay, have not been established upon the basis of any proper assessment of the value of this work including the recent changes to the duties performed by these employees.

185 Furthermore, the structure and rates of pay reflect an attempt by the parties to establish them de novo without acquiescence on the part of the HSU in their adequacy and clearly upon a basis that was wholly inadequate. Viewed in this way, we see no reason why the task of fixing rates for Pharmacy Technicians should not now be approached on a first award basis or something analogous to it.

186 We are of the view that as with Hospital Pharmacists, the HSU claim advanced in respect of Pharmacy Technicians is a meritorious claim and we grant it accordingly (noting again that no alternative schedule of wage variation was suggested by HAC, including no opposition being expressed per se to the proposed new structure). It is implicit in reaching such a conclusion that we are well satisfied that the work required of Pharmacy Technicians, particularly those functions which have devolved from Pharmacists, will thereby be fairly and reasonably remunerated. We are also persuaded, in the converse, that the existing award/administrative arrangements do not afford such measures.

187 The award will therefore be varied to include the classification structure and definitions claimed by the HSU and the following rates of pay:

Pharmacy Technician Rate Grade 1 1st year $674.20 2nd year $690.50 3rd year $706.00 4th year $722.90

Grade 2 1st year $738.70 2nd year $766.50 3rd year $791.40 4th year $813.30 Grade 3 1st year $869.30 2nd year $899.60

Grade 4 1st year $929.80 2nd year $988.50

188 Historically, the classification of Pharmacy Assistant does not appear to have been the subject of specific arbitral consideration by the Commission or its predecessors.

189 The Health Employees (State) Award presently defines Pharmacy Assistant as: (xxviii) a person appointed as such who is engaged in compounding or dispensing medicinal preparations pursuant to a Medical Officer's prescription under the supervision of a Registered Pharmacist.

190 The same award relevantly prescribes the following rates for this classification:

PART B TABLE 1 - MONETARY RATES

CLASSIFICATIONS RATE FROM 1.1.2002 RATE FROM 1.1.2003 RATE FROM 1.7.2003 3% 4% 5% Pharmacy Assistant - Adult 1st year $561.70 $584.20 $613.40 2nd year $571.10 $593.90 $623.60 3rd, 4th & 5th years $581.80 $605.10 $635.40 6th year and t/after $612.90 $637.40 $669.30

Claim for Pharmacy Assistants 191 The HSU proposed, by way of variation of the Health Employees (State) Award, that the above scale be replaced by a 2 grade structure with each grade containing 4 incremental steps. The first of the 2 grades is intended for persons without formal qualifications and the other for persons with formal qualifications.

192 The first grade proposed for Pharmacy Assistants equates in the main with the top grade presently prescribed within the same award for Technical Assistants. The second grade proposed for Pharmacy Assistants equates in part with rates prescribed for Technical Officer Grade 1 under the Health Employees Technical (State) Award.

193 The HSU claim is as follows: Replace the existing definition for "Pharmacy Assistant" contained in sub clause (xxxiii) of Clause 1 - Definitions , as follows:

Pharmacy Assistant Grade 1 - means a person appointed as such who is engaged in drug distribution duties, hospital pharmacy production and dispensing activities under the supervision of a Registered Pharmacist and/or Pharmacy technician.

Pharmacy Assistant Grade 2 - means a person appointed as such who is engaged in drug distribution duties, hospital pharmacy production and dispensing activities under the supervision of a Registered Pharmacist and/or Pharmacy Technician, and who holds a qualification in a relevant field recognised by the Pharmaceutical Society of Australia or up to the Level of Certificate III issued by a tertiary education institution e.g Charles Sturt University.

Replace the existing Monetary Rates contained in Table 1 - Part B , for "Pharmacy Assistant" as follows:

Rate from 01/01/2002 Rate from 01/01/2003 Rate from 01/07/2003 Pharmacy Assistant

Grade 1 1st year $577.00 $600.10 $630.10 2nd year $590.30 $613.90 $644.60 3rd year $600.80 $624.80 $656.00 4th year $617.40 $642.10 $674.20

Grade 2 1st year $617.40 $642.10 $674.20 2nd year $632.80 $657.60 $690.50 3rd year $646.50 $672.40 $706.00 4th year $662.00 $688.50 $722.90

194 As with other classifications within the Pharmacy stream, the HSU brought its claim in respect of Pharmacy Assistants on a special case basis relying in addition thereto, upon changes in work value in justification of the increases sought.

195 The HSU called the following witnesses in support of this aspect of its claim:

a Kathryn Archbold, Pharmacy Assistant, Maitland Hospital

b Helen Clough, Pharmacy Assistant, Cessnock District Hospital

c Margaret Duguid, Director of Pharmacy, Royal North Shore Hospital

d Zoran Kandic, Pharmacy Assistant, Prince of Wales Hospital

e Ellen Peters, Pharmacy Assistant, Westmead Hospital

196 The HAC in opposing the claim, contended that no basis had been advanced for disturbing the existing classification structure or scale of rates applicable to Pharmacy Assistants and the Commission would not be persuaded without more, as to the appropriateness of aligning Pharmacy Assistants with Technical Assistants and Technical Officer Grade 1.

197 There can be little doubt on the evidence presented that the work of the Pharmacy Assistant has become more complex and demanding involving as the evidence indicates, higher levels of proficiency in a range of computer applications, many more drugs with new products, and a greater range of generic products, awareness of and conformity with drug controls in place in the hospital pharmacy including as we have already mentioned, in-house economic controls on drug supply as hospitals increasingly endeavour to gain control over drug expenditure. Hospital pharmacies and as a consequence, Pharmacy Assistants, have become increasingly involved in clinical trials, a major growth area for medical research in Australia.

198 Additionally, Pharmacy Assistants undertake much of the technical work in the preparation and production within the hospital pharmacy of products which are not commercially available including:

b parenteral nutrition solutions for adults and neonates

c complex injections that cannot be prepared in the ward environment

d critical injections such as those injected into the brain, the spine, the eye

e certain eye drops, skin creams and mixtures for children

199 To the extent that the work of the Pharmacy Assistant is by and large carried out under the supervision of the Pharmacist, it is nonetheless the case as we view the evidence, that the complexity of the work required of them and the skills needed to satisfactorily perform it have materially increased since 1996. So also has the requirement for training increased in the same period and whilst much of this is carried out within the hospital environment, Pharmacy Assistants are increasingly undertaking the Dispensary Assistants Training Course offered by the Pharmaceutical Society of Australia (NSW Branch). These are in our minds, changes in the work value of Pharmacy Assistants which have been driven largely, if not exclusively, by a perceived need on the part of hospital administrators and the HAC's management, to reconcile the growth in demand for pharmacy services on the one hand with the difficulties associated with imposing additional burdens on declining Pharmacist numbers on the other.

200 It is noted that the same observations apply to what we have said about the work of Pharmacy Technicians and it seems clear to us that these changes are, as the HSU contends, referrable by and large albeit in varying degrees to the period 1996 to date. As much is apparent from the research to which we have been taken in the course of these proceedings which among other things, identified the shortage of qualified Pharmacists as being coincidental with hospital budget reforms which have changed workloads, inpatient length of stay, increased patient throughput and instilled a culture of 'doing more with less' (see for example A Demand Model for Hospital Pharmacists by K. O'Leary 12 December 2001) and one obvious change in consequence of those things has been to the role of supporting staff including Pharmacy Technicians and Pharmacy Assistants (see also, The Study of the Demand and Supply of Pharmacists 2000 to 2010, 18 February 2003; Pharmacy Labour Force to 2001, Australian Institute of Health and Welfare 2003; Workforce Planning Study Hospital Pharmacists in NSW, July 1999, Pharmacy Board of New South Wales).

201 Moreover and as the HSU contends, it may reasonably be viewed as anomalous that the current award makes no provision for recognition of qualifications held by Pharmacy Assistants at any level and further, that by keeping Pharmacy Assistants at the third incremental step for three years as the current award does, there is an unexplained and in our view, overtly unjust barrier to the recognition of on-the-job skills acquisition which would ordinarily allow progression after one year, to the next incremental step.

202 In all the circumstances we are of the view that the HSU has made out its case in respect of Pharmacy Assistants although we are not persuaded as to the appropriateness of granting the claim in full. As we have set out earlier, the first of the proposed grades in the new 2-grade structure for Pharmacy Assistants provides both for modest increases in the existing rates of pay and for annual incremental progression through each of the four steps. We consider this to be an appropriate award prescription.

203 The second of the proposed grades seeks to import into the award recognition in the formal sense of qualifications in what is described as a relevant field recognised by the Pharmaceutical Society of Australia or up to AQF Certificate Level III issued by a tertiary institution. We consider this to be an appropriate award prescription. A difficulty emerges, however, in that the rates of pay claimed by the HSU for Pharmacy Assistant Grade 2 would if granted, remunerate the occupants of such classifications at the same rate as occupants of Pharmacy Technician Grade 2 classifications who are required to possess the higher Certificate Level IV qualifications. 204 Conversely, we note the similarity between prerequisite qualifications proposed for Pharmacy Assistant Grade 2 and those applying to Pharmacy Technician Grade 1. We consider it appropriate to create a higher grade for Pharmacy Assistants with formal qualifications but will limit that higher grade to two steps instead of the four steps claimed and in that way, overcome the difficulty described above. It follows and appropriately so, in our view, that the increases for Pharmacy Assistants will thereby be more modest than would be the case if the HSU claim were granted in full. As with Hospital Pharmacists and Pharmacy Technicians, we consider this to be a rational outcome and one which is reflective of the work value and special case aspect of the HSU claim which have been made out on the evidence.

205 The award will therefore be varied to include the definitions claimed for Pharmacy Assistants and the following classification structure and rates of pay:

Pharmacy Assistant Rate Grade 1 1st year $630.10 2nd year $644.60 3rd year $656.00 4th year $674.20

Grade 2 1st year $674.20 2nd year $690.50

206 The Health Employees Dental Technicians (State) Award does not contain any definitions for Dental Technicians, nor does it contain any means of differentiation between a Trainee Dental Technician and the three existing grades of Dental Technician for whom salary rates are provided. The only relevant clause is clause 3, Progression, which sets out the means by which a Dental Technician may progress from Grade 1 to Grade 2, as follows: Progression from Grade 1 Dental Technician to Grade 2 Dental Technician is dependent on the fulfilment of the following criteria:

(i) having at least 3 years experience as a registered Dental Technician; and (ii) (a) successful completion of the first year of the Dental Prosthetics course conducted by the Department of Technical and Further Education; or (b) having qualifications deemed by the Health Administration Corporation to be equivalent to the first year of the Dental Prosthetics course; and (iii) demonstrating skills in excess of those required of a Dental Technician Grade 1; and (iv) being proficient in, and spending the major part of his/her time engaged in, one or more of the following areas of work: orthodontic appliances; cast metal dental techniques; crown and bridge; osseo-integrated implant technology; maxillo facial and complicated prosthetics, including over-dentures, oburators, precision attachments and magnets, occlusal splints, complete and partial dentures requiring complicated (that is crossbite, class II and class III jaw relationship) tooth arrangements in balanced occlusion. There is nothing in the award that assists in the determination of progression from Grade 2 to Grade 3.

207 The Health Professional and Medical Salaries (State) Award contains rates of pay for a number of classifications of employees including Trainee Dental Technician Stage 1 to 4, Dental Technicians Grade 1 years 1 to 6, Grade 2 years 1 to 3, Grade 3 years 1 and 2, Deputy Chief Dental Technician at the United Dental Hospital of Sydney and Westmead ("UDH") and Chief Dental Technician at the UDH. Rates of pay for all the above positions are set out in the award as annual salaries. In addition, the award sets out an equivalent set of classifications, with the exception of Trainee, under the heading: Dental Technicians - United Dental Hospital. These rates of pay are provided as weekly salaries, and appear to approximate the annual rates.

208 There is one additional rate set out in the award, namely, a personal rate for Ian Talley. Mr Talley's rate falls between the top rate for a Grade 3 Dental Technician and the rate for a Deputy Chief Dental Technician.

209 The award history for Dental Technicians is contained largely within the decision of Mills C in Re an application by the Public Service Association of New South Wales for a New Crown Employees (United Dental Hospital of Sydney) Award , (unreported, Matter No 642 of 1980, 26 September 1980), and the decision of Glynn J in Re United Dental Hospital of Sydney and Public Hospitals Dental Technicians Salaries (State) Award , (unreported, Matter No 522 of 1989, 14 November 1990).

210 Mills C made a new award which increased the rates payable to Dental Technicians, compared to and based on changes which had occurred since 1974 in the duties of Dental Technicians. The reasons for the decision of Glynn J set out in some extensive detail the changes in work practices and responsibilities of Dental Technicians over the years between 1980 and 1990 which formed the basis of the consent position of the industrial parties to the then award, the Public Service Association of New South Wales ("PSA") and the HAC. The award combined Dental Technician classifications at the UDH and at public hospitals under a single award. The definitions of Dental Technician, Grades 1 to 3, and rates of pay for Dental Technicians, Grades 1 to 3, as well as Deputy Chief Dental Technician and Chief Dental Technician arising from the decision of Glynn J were set out in a circular issued by the NSW Health Department on 27 February 1991 .

211 The claim before the Commission comprised an application to amend the Health Employees Dental Technicians (State) Award by deleting the existing clause 3, Progression and inserting in its place a new clause 3, Classifications, as follows:

Trainee Dental Technician means a person appointed as such who is undertaking the Diploma of Dental Technology conducted by NSW TAFE or an equivalent course in Dental Technology.

Dental Technician Grade 1 means a person appointed as such who has successfully completed the Diploma of Dental Technology conducted by NSW TAFE or an equivalent course in Dental Technology.

(Transitional arrangements: At the time of implementation of the Award, Dental Technicians who have undergone training in Dental Technology to a level that was acceptable for appointment as a Dental Technician at the time will be graded as Dental Technician Grade 1.)

Dental Technician Grade 2 means a Dental Technician who fulfils the following criteria:

(i) having at least 3 years experience as a registered Dental Technician; and (ii) (a) successful completion of the first year of the Dental Prosthetics course conducted by NSW TAFE: or (b) having qualifications deemed by the Health Administration Corporation to be equivalent to the first year to the Dental Prosthetics course; and (iii) demonstrating skills in excess of those required of a Dental Technician Grade 1; and (iv) being proficient in, and spending the major part of their time engaged in, one or more of the following areas of work; orthodontic appliances; cast metal dental techniques; crown and bridge; osseo-integrated implant technology; maxillo facial and complicated prosthetics, including over-dentures, oburators, precision attachments and magnets, occlusal splints, complete and partial dentures requiring complicated (that is crossbite, class II and class III jaw relationship) tooth arrangements in balanced occlusion.

Dental Technician Grade 3 means a Dental Technician who fulfils the following criteria:

(i) having at least 6 years experience as a registered Dental Technician; (ii) successfully completed all qualifications of a Dental Technician Grade 1 and 2; (iii) shows a high level of competency.

Dental Technician Grade 4 means a Dental Technician who fulfils the following criteria:

(i) meeting all the requirements of a Dental Technician Grade 3; or (ii) in charge of a unit/department.

The amended application seeks to align rates for Dental Technicians with the Technical Officer scale contained in the Health Employees Technical (State) Award at levels claimed by the HSU to be sensible, based on comparable qualifications and responsibilities.

212 The claim by the HSU also sought to incorporate into the award definitions for: Trainee Dental Technician; Dental Technician Grade 1 years 1 to 6; Dental Technician Grade 2 years 1 and 2; Dental Technician Grade 3 years 1 and 2; and Dental Technician Grade 4 years 1 and 2.

213 The following table shows the rates of pay claimed by the HSU for Dental Technicians, compared with the equivalent grades for Technical Officers and Senior Technical Officers.

Dental Technicians Technical Officer Grade YearGradeYear 1 115 26 38 421 53 64 2 14 2Senior TO1 3 11 22 4 12 23

214 The rates proposed by the HSU are set out in the amended application as weekly rates of pay, and eliminate the duplication resulting from the existing generic rates and the separate listing of rates for employees at the UDH, as exists in the current award.

215 The HSU submitted that the evidence demonstrated that Dental Technicians were significantly underpaid for the complexity of the work they perform, the skill and responsibility exercised by them and the minimum level of qualifications they are required to hold.

216 It was submitted by the HAC that the evidence relied upon by the HSU fell well short of justifying the propositions which the HSU contended the evidence supports, and on which the HSU relied for satisfying the work value principle.

217 In the period from January 1994 to July 2003, Dental Technicians have received 45% wage increases, being 7% between January 1994 and November 1994, 6% from July 1995 to July 1996, 16% from January 1997 to December 1999 and a further 16% from January 2000 to July 2003. The HAC submitted that the Commission would not grant the wage increases sought by the HSU because of the increases already received by Dental Technicians adequately compensated them for any changes that have occurred in their work during the relevant period.

218 In the alternative to the definitions proposed by the HSU, the HAC have proposed the following classification structure for Dental Technicians: Trainee Dental Technician means a person appointed as such and who is undertaking training and qualifications which lead to eligibility for registration as a Dental Technician under the Dental Technicians Registration Act 1975 (NSW).

Dental Technician, Grade 1 means a person appointed as such and who is registered as a Dental Technician under the Dental Technicians Registration Act 1975 (NSW).

Dental Technician, Grade 2 means a Dental Technician appointed a such, and who:

(i) has at least three years full-time experience as a registered Dental Technician or equivalent, and (ii) has demonstrated skills and knowledge in excess of that required of a Dental Technician, Grade 1, and (iii) due to their higher level technical skills and general competence at work, are able to work effectively with limited supervision, and (iv) are capable of providing training and technical advice to contribute to the development of Trainee Technicians and Dental Technicians, Grade 1.

Dental Technician, Grade 3 means a Dental Technician appointed as such, and to whom a practising certificate has been granted by the NSW Dental Technicians Registration Board enabling the Dental Technician to practice dental prosthetics. The scope of dental prosthetics practice is defined in the Dental Technicians Registration Act 1975 (NSW). Submissions - Work Value

219 The HSU submitted that the relevant date for examination of changes in the value of the work of Dental Technicians was 14 November 1990, being the effective date of Glynn J's decision. The parties agreed that this was the last detailed consideration of Dental Technicians' terms and conditions of employment.

220 The HSU submitted that there was no evidence that the upgrade of qualifications from Certificate to Associate Diploma, or from the previous apprenticeship leading to a Certificate of Proficiency, was considered in the proceedings before Glynn J.

221 In its amended form, the HSU application sought recognition of the increased level of qualifications and work value. It sought to extend the grading structure and career path of Dental Technicians in recognition of their performing highly specialised work or for being in charge of a unit or department.

222 The HSU submitted that the work of a Dental Technician has altered significantly due to the introduction of new, more complex technology and advanced technical procedures and materials. The change in the nature of work has created the requirement for Dental Technicians to become specialised in precise areas of dental technology and to become knowledgeable and skilled in more than one area of specialisation. For example, submitted the HSU, the evidence revealed that Dental Technicians at the UDH are required to rotate through specialist areas every 12 months.

223 The UDH is at the cutting edge of technology since 1996, submitted the HSU, leading the way in the specialised area of facial reconstruction, with Dental Technicians working in this area having skills unique within the profession.

224 The evidence also showed, it was submitted, that Dental Technicians at the UDH have become more directly involved with the teaching of students, both graduate and post-graduate, since 1998. Further, there was a strong onus on Dental Technicians to engage in ongoing training and study to remain relevant and skilful within the field of dental technology.

225 Supporting a contrary view, the HAC submitted that the requirement to show that the work of Dental Technicians had altered to the extent of showing such a significant net addition to work requirements as to warrant the upgrading to the classification structure had not been met. The evidence of the various Dental Technicians gave examples of the work of Dental Technicians and stated only that the work is "different", "constantly changing", "becoming more complex", "detailed and time consuming", with an "upgrading of equipment materials and processing systems", and like comments, without providing sufficient quantification of any changes and, in many cases, without providing a datum point for comparison of any changes. Much of the evidence, it was submitted, was of a general and non-specific nature. The evidence, it was submitted, did not deal in a precise and detailed way with the specific changes that are said to have occurred since the datum point, that is, since November 1990.

226 Claims that the UDH is at the cutting edge of technology were not substantiated, and play little part in a work value case. Similarly, the evidence that one Dental Technician has skills unique within the profession does not assist the claim for an across the board work value increase.

227 In any event, submitted Mr Goot , the specialised skills of persons working in the maxillo-facial area were recognised in the 1989 work value case before Glynn J. So much was acknowledged in the Agreed Statement of Change document provided by the parties to Glynn J in October 1990.

228 As for their involvement in training, the HAC submitted that the evidence fell short of establishing that the teaching obligations of Dental Technicians, as a group, have increased to the extent of providing a significant net addition to their work as would justify the claim presently before the Commission. No evidence was led to show the significance of training in the overall job of Dental Technicians or what, if any, change has occurred in the level of training provided by Dental Technicians, or from when. The nature of the responsibility carried in the training of new Dental Technicians and Trainees was not identified, and, in particular, there was no evidence as to whether it amounts to a change in the nature of work sufficient to constitute a significant net addition to work. The role of Dental Technicians in training was acknowledged in the Agreed Statement of Change in the proceedings before Glynn J, and has thus been taken into account.

229 The HSU rely on a number of anomalies said to exist in regard to Dental Technicians. They are:

· Dental Technicians employed at the UDH work alongside Dental Technicians employed by the University of Sydney, who are paid at a higher rate. · Dental Technicians are paid at a rate lower than rates set by the Commission for classifications required to hold significantly lower levels of qualifications. · Some Dental Technicians are directly involved with the teaching of graduate and post-graduate students at the UDH. · The current award provides no definition for a Grade 3 Dental Technician, nor any guidance for progression to that level.

a There is evidence of some difficulties associated with the attraction and retention of Dental Technicians.

b It is becoming increasingly difficult to recruit and retain staff possessing advanced skills and training in laboratory work where clinical tolerances and requirements of the work produced, demands such skills and training.

231 In comparing the rates of pay of Dental Technicians employed by the University of Sydney with those at the UDH, the HSU did not compare other elements of the industrial instrument applying at the University with the conditions under which the UDH Dental Technicians are employed. The HAC submitted that the HSU submissions on this point were meaningless in terms of demonstrating any anomaly and/or inequity, as: No comparison was made between the Public Hospital Professional & Associated Staff Conditions of Employment (State) Award which sets out conditions of employment for UDH Dental Technicians, among others, and the enterprise agreement which governs the terms and conditions under which work is performed by Dental Technicians employed by the University of Sydney, namely, the University of Sydney General Staff Enterprise Agreement 1999-2002. Further, the HAC submitted that the existence of disparities between these two groups of Dental Technicians was before the Commission in previous work value cases. The HSU submitted that Dental Technicians are paid at rates lower than those paid to employees in classifications requiring lower levels of qualifications. For example, the "thereafter" rate for a Dental Technician is lower than the highest rate for a Technical Officer Grade 1 established when that position required only a TAFE Certificate, compared with the Associate Diploma required for a Dental Technician (by $29.80). Further, it was submitted by the HSU that progression for a Technical Officer from Grade 1 to Grade 2 was automatic for holders of a Higher Certificate or Associate Diploma, while the current award prescription requires that certain criteria are met for progression of Dental Technicians from Grade 1 to Grade 2. The difference between the highest rate for a Technical Officer Grade 2 and that for a Dental Technician Grade 2 is $166.50, despite the Dental Technician having an equivalent or higher qualification and having to satisfy criteria for progression. The current award provides no definition for Dental Technician Grade 3 nor any guidance for progression to Grade 3, submitted the HSU.

232 The HAC submitted that the HSU pointed to rates for Technical Officers but made no attempt to lead evidence as to the skills and responsibilities of Technical Officers, their work or changes in the value of their work. It was submitted that the mere existence of different rates of pay does not in itself demonstrate the existence of an anomaly.

233 The HAC submitted that the HSU failed to demonstrate its claim that there is a shortage of Dental Technicians, or that, if the claim were successful, it would have a significantly beneficial impact on the recruitment and retention of Dental Technicians.

234 In support of its claim in relation to Dental Technicians, the HSU called the following witnesses:

b Peter Williams, Technician in Charge of Prosthetics Laboratory, Crown and Bridge Section, UDH

c Helen Rovatsou Fragakis, Technician in Charge of Prosthetic Laboratory, Orthodontics Section, UDH

d William Joseph Lawton, Section Head - Prosthetic Laboratory, Deputy Chief Dental Technician, UDH

h Graham Key, Head Teacher of Dental Technology, Randwick TAFE

i Peter Gregory Kramer, Head of the Dentistry Department, UDH

235 The HAC called evidence from Trevor Craft, Assistant Director Employee Relations, NSW Health Department.

236 The evidence revealed that the qualification required for the position of Dental Technician is a Diploma in Dental Technology. This qualification was upgraded in about 1998 from the previously existing qualification of Associate Diploma, which came into being in 1989 (and had, in turn, replaced the Certificate course which had existed since 1977). The Associate Diploma was a 2 year course of 1500 hours; the Diploma is a 2 year course of 1584 hours in length. In addition, TAFE offers an Advanced Diploma in Dental Prosthetics.

237 The evidence went largely to changes in the nature of the work since 1990 and increased responsibilities of Dental Technicians. Reference was made to the introduction of more complex technology and advanced technical procedures and materials. Examples given of different appliances now commonly used, which were not in use in 1996, were magnetic activated devices, bonded twin blocks and bonded rapid maxillary expansion. The precision demanded in the preparation of prosthesis is such that the tolerances are measured in microns. There was evidence that every patient in the maxilla-facial section requires different techniques and processes of dental technology, individually developed on a case by case basis. Implants are also used in place of prosthesis in many cases. Some of the processes used by Dental Technicians are very delicate and sensitive, compared with those in place prior to 1990.

238 The requirement for Dental Technicians to become knowledgeable and skilled in more than one area of specialisation was supported by the evidence that Dental Technicians at UDH are required to rotate through specialist areas every 12 months.

239 The evidence revealed that, since 1996, UDH was at the cutting edge of technology in Australia, leading the way in the specialised area of facial reconstruction and maxillo facial prosthetics. Dental Technicians working in those areas have skills unique to the profession.

240 With respect to comparative rates of pay within the industry, the parties agreed that Dental Technicians employed by the University of Sydney who work with Dental Technicians employed at UDH are paid in excess of the rates of pay paid to the Dental Technicians employed by UDH. The evidence revealed that Dental Technicians at UDH work alongside University Dental Technicians who are paid approximately 25% more than the Technicians employed by UDH. On the evidence both groups of Dental Technicians do the same work and carry the same responsibilities.

241 Since 1998, Dental Technicians at UDH have become more directly involved in the teaching of students, both graduate and post-graduate. It was also agreed between the parties that Dental Technicians perform work across a number of different areas within their field of expertise, and that they are involved in education and training. There was evidence of some difficulties with the attraction and retention of Dental Technicians.

242 As previously observed, in the case of Dental Technicians, we are satisfied that a special case exists. The particular factors which we consider make out a special case in this area are:

a An anomaly exists between the rates of pay for Dental Technicians and other classifications in the public health system with similar or lesser qualifications;

b An anomaly exists between rates of pay for Dental Technicians and others working alongside them employed by the University of Sydney;

c The award does not provide definitions for Dental Technicians or guidance for progression between Grade 2 and Grade 3;

d There is not currently available an adequate career path for Dental Technicians, many of whom are highly skilled. The difficulties in attracting and retaining Dental Technicians is another aspect of this issue; and

243 The particular anomaly that exists in terms of Dental Technicians receiving lower rates of pay than other public health system employees with similar or lesser qualifications is not in itself sufficient to demonstrate the special case attributes of the application, but we are satisfied that the extent of those differences, together with the other issues itemised above, satisfy the requisite standard.

244 We agree that the relevant datum point for consideration of the work value aspect of the claim for Dental Technicians is the date of the decision of Glynn J, namely, 14 November 1990.

245 It is clear on the evidence that Dental Technicians are required to attain a Diploma, updated since the relevant datum point from an Associate Diploma.

246 We are satisfied on the evidence that the areas of specialisation achieved on rotation through specialist areas by Dental Technicians at the UDH reach beyond what was required of them in 1990. So too, does the extent of their involvement in teaching graduate and post-graduate students. Whilst we are satisfied that such skills and responsibilities should be recognised, we are not satisfied that they apply across the range of Dental Technicians employed within the public health system. Indeed, it was conceded by the HSU that some aspects of dental technology are unique within the profession. However, these are skilled and specialised areas of dental technology which are not currently recognised in the award.

247 The complexity of the technology involved in the work of Dental Technicians together with advanced technical procedures and materials are matters affecting Dental Technicians across the board, not limited to those employed at UDH.

248 We are satisfied that some Dental Technicians are exercising managerial responsibilities and/or supervision and training of undergraduates and other students which ought to be appropriately recognised in the award structure.

249 The claim seeks to align Dental Technicians' rates with those of Technical Officers and Senior Technical Officers. However, the definition of Technical Officer in the Health Employees Technical (State) Award refers to a range of Certificates, which on face value would appear to be of lesser status than a Diploma. However there is nothing otherwise before the Commission which allows us to determine whether the qualifications required for a Technical Officer are comparable with the qualification normally attained by a Dental Technician.

250 The amended application seeks to align the new structure for Dental Technicians with various steps on the existing award structure for Technical Officers and Senior Technical Officers, with some steps of the latter structure not used and others repeated. There appears to be no attempt to justify the particular alignment of steps in the scale with the application.

251 The HSU have attempted to align a Dental Technician Grade 2 year 2 with a Senior Technical Officer year 1, again with no justification provided either by way of evidence or submission. The award definition of a Senior Technical Officer, namely, "a person appointed to a position approved as such by the Health Commission", is singularly unhelpful in this regard.

252 It is noted that the HSU submitted that the amended application "would, if granted, establish a sensible alignment between Dental Technicians and Technical Officers in the pubic hospital system and would, in future, allow for a relatively smooth transition to full Hospital Scientist rates if and when the minimum qualification requirement for Dental Technicians becomes the attainment of a three year science degree."

253 Further, the HSU submitted that: "… in the absence of any realistic or sensible counter proposal by the HAC, the Commission should grant its application…"

254 Whilst we understand the force of that submission as a general proposition, it needs to be tempered by a realistic assessment of the true extent of the change in the value of the work of this classification and the other special case features affecting these employees.

255 In regard to the definitions proposed by the HSU, we have concern about the lack of specificity in the proposed definition for Grade 4 in the proposal. The use of the word "or" between two sets of requirements means that there is no essential differentiation between Grade 3 and Grade 4.

256 We are, however, satisfied that there should be four grades of Dental Technicians based on the level of skills and responsibilities undertaken by some Dental Technicians and the need to provide an adequate career path for those in the profession as well as those wishing to enter it. It is acknowledged that there are highly skilled and talented Dental Technicians who work autonomously for whom an appropriate career path is not available currently.

257 In regard to the rates of pay sought in the HSU application for Dental Technicians, it is only when they are compared with the rates of pay sought in the applications for other classifications within the three streams under present consideration that the alignment starts to become sensible. By use of the existing award structure for Technical Assistants, Technical Officers and Senior Technical Officers, parameters appear to have been set for comparison of the rates of pay for Dental Technicians, as well as Dental Assistants, Pharmacy Technicians and Pharmacy Assistants.

258 We have referred to shortages of Dental Technicians earlier in this decision. We note that the frustration caused by the lack of career path was evident in this respect. A number of Dental Technicians gave evidence that their career path was restricted, and that no further recognition of their skills and responsibilities was available. We further note the parties' agreed statement to the effect that there is evidence of some difficulties associated with the attraction and retention of Dental Technicians. 259 The changes in work value of Dental Technicians was expressed in terms of increased roles, greater responsibilities particularly in the areas of OHS, infection control, research and technology. The greater precision of instruments and attachments requires a higher degree of skill. New, sometimes revolutionary processes require ongoing training. The evidence showed that developments in technology required constant effort on the part of Dental Technicians to stay abreast of developments. The ever-growing demand on services was mentioned, along with more research work and greater involvement in the teaching of students. The work of Dental Technicians was said to be more demanding, specialised, skilled and creative.

260 Overall, it can be said that the HSU case for the Dental Technicians was made out, although expressed with a degree of generalisation that was, at least to some extent, less than satisfactory. The degree of precision required in their work was not present in the witness statements, where expressions such as "the responsibilities have grown", "materials have changed", "broader and more indepth" and "changed dramatically", with specifics limited to descriptions of procedures or equipment that did not explain the detail of skill or responsibility required, or the precise time when new materials or equipment were introduced or the precise period of time over which particular changes occurred. Nonetheless, the witness statements together with oral evidence provided sufficiently useful information to allow us to determine the relevant period in the case of many witnesses, and to consider only those changes which took place since November 1990.

261 A number of witnesses gave evidence that the work of Dental Technicians employed at UDH was the same as the responsibilities of Dental Technicians employed by Sydney University. Because UDH is a teaching hospital, the two groups of Technicians work alongside each other.

262 A submission was made on behalf of the HAC that this was an insufficient basis to presume a comparison of wages was relevant. However, this contention did not rise above mere advocacy, with the HAC not calling any evidence to refute the evidence led by the HSU demonstrating the similarity of the work of the two groups.

263 We are satisfied, on the evidence, that there has been sufficient increase in the demands on Dental Technicians to go beyond the normal changes in efficiency, technology and the like that have been compensated for by wage increases provided to them. The increase in demands include the complexity of the work, the skill and responsibility of the work they perform and the qualifications they are required to hold. While the case has not been made out as forcefully as it has with other classifications in other streams which are the subject of this decision, there was sufficient evidence to show a significant net addition to work requirements since the datum point, such as to warrant a variation to the grading structure for Dental Technicians. It does not however warrant the full extent of the claim being awarded.

264 In our view it is appropriate on the material before us (and with the absence of any alternate contention advanced by the HAC) to use the Technical Officers rates for Dental Technicians, but not, as proposed by the HSU, commencing at Year 5 of a Technical Officer Grade 1, and skipping steps, for which no rationale has been presented. Rather, the rates will commence at that of a Technical Officer Grade 1 Year 5, and progress at a slower rate than that proposed, in accordance with the table set out below. 265 We adopt the definitions for Dental Technicians proposed by the HSU for Trainee Dental Technician and for Dental Technician Grade 1, Grade 2 and Grade 3. We require the parties to determine an appropriate definition for Dental Technician Grade 4, which properly distinguishes it from the Grade 3 definition. We note there was no application to vary the rate of pay for Trainee Dental Technicians, although we are of the view that their rates of pay should be expressed as weekly rates, consistent with other classifications in the same stream. The new rates of pay for Dental Technicians will be as follows:

266 As well as rates for Dental Technicians and other classifications, the Health Professional and Medical Salaries (State) Award contains rates of pay for Dental Assistants. The award contains junior rates for employees at 17, 18, 19 and 20 years of age, and rates for Dental Assistant years 1 to 5, and Senior Dental Assistant years 1 and 2. It then sets out a similar set of classifications under the heading: Dental Assistants - United Dental Hospital. The rates of pay for the two sets of classifications are equivalent, both being contained in the award as annual salary rates. In addition, the award contains a rate of pay for a Transferred Dental Assistant which is listed as, and equivalent to the rate of pay for, a Dental Assistant - 5th year.

267 The Public Hospitals Dental Assistants (State) Award contains a definition of "Employee" as follows: "Employee" means a person employed in any Hospital or Area Health Service in the classification of Junior Dental Assistant, Dental Assistant or Senior Dental Assistant.

268 In regards to progression between grades, the award relevantly contains clause 5, Rates of Pay, which reads as follows: (a) Rates of pay shall be in accordance with the rates of pay for Junior Dental Assistants, Dental Assistants and Senior Dental Assistants as set out in the Health Professional and Medical Salaries (State) Award. (b) Any employee who has successfully completed one of the following courses: Certificate of Proficiency of the Dental Assistants Association of Australia; Certificate of the Dental Assistant Education Council of Australia; T.A.F.E. Dental Assistant courses conducted in Queensland, South Australia, and the Australian Capital Territory; Courses conducted by Westmead Hospital, Perth Dental Hospital and Royal Melbourne Dental Hospital for Dental Assistants.

shall be eligible to progress to the next step on the salary scale from the first pay period in the month following successful completion. (c) Previous service as a Dental Assistant is to be taken into account in determining the commencing salary on employment.

269 Prior to the current application, the last detailed consideration of Dental Assistants' terms and conditions of employment was conducted by a Full Bench of the Commission in Re United Dental Hospital of Sydney, Public Hospitals and Area Health Services Dental Assistants Salaries (State) Award and Anor (unreported, Matters No 708 of 1990 and 281 of 1991, 11 July 1991). The decision was in response to two applications for a new award, one by the PSA and the other by the HAC. The award was made by consent of the parties, bringing Dental Assistants covered by three separate industrial instruments under a single award, and rationalising the salary scales providing salary increases for some employees.

270 In the period from January 1994 to July 2003, Dental Technicians have received a total of 45% wage increases, being 7% between January 1994 and November 1994, 6% from July 1995 to July 1996, 16% from January 1997 to December 1999 and a further 16% from January 2000 to July 2003.

271 The duties performed by Dental Assistants were summarised in the Full Bench decision as follows: Summary of clinical duties:

Preparation of equipment instruments and materials for dental procedures in the clinical area Preparation of the patient for treatment Preparation and mixing of all restorative materials including lining, filling and impression materials Assisting the dentist or dental therapist with treatment Development and mounting of x-rays Disposal of contaminated waste, instruments and materials Decontamination of the dental unit, equipment and burs Sterilisation of instruments Demonstration of oral hygiene techniques

Reception and discharge of patients from the clinic Maintenance of dental records Making appointments and re-appointments Assisting in taking patients' medical histories Keeping statistics on attendances, examinations and consultations with parents.

272 The HSU sought to replace the existing definition of "employee" in the Public Hospitals Dental Assistants (State) Award with new definitions for Dental Assistants and to align the classification structure and rates of pay for Dental Assistants with rates paid to Technical Officers. It is noted that the application, if successful in regard to both Dental Assistants and Pharmacy Technicians, would result in Dental Assistants receiving the same rate of pay as Pharmacy Technicians Grades 1 and 2. The HSU submitted that such alignment would have no implications for other qualifications for salary structures.

273 The HSU sought recognition of the increased level of qualifications required for Dental Assistants and the increased value of the work performed by them.

274 The reference to Junior Dental Assistant in the definition of "employee" is not replicated in the application, which sought to replace the existing Dental Assistant and Senior Dental Assistant with classifications to be known as Dental Assistant Grades 1 and 2. The proposed new definitions are as follows: Dental Assistant Grade 1 - means a person appointed as such who has successfully completed a qualification in a relevant field recognised by the Dental Assistant Education Council of Australia or up to the level of Certificate III issued by a tertiary education institution eg. TAFE.

(Transitional Arrangements - At the time of implementation of the Award, the Dental Assistants who have at least three years relevant dental experience and competencies gained through on the job training to perform tasks equivalent to those of an Assistant Grade 1, should be graded as an Assistant Grade 1.)

Dental Assistant Grade 2 - means a person who is appointed to such a position and who has successfully completed a nationally recognised Dental Assisting Certificate course at Certificate level IV.

(Transitional Arrangements - At the time of implementation of the Award, the Dental Assistants who have at least six years relevant dental experience and competencies gained through on the job training to perform tasks equivalent to those of an Assistant Grade 2, should be graded as an Assistant Grade 2.)

275 The application by the HSU sought to maintain the existing rates of pay for Junior Dental Assistants and replace existing rates for Dental Assistant and Senior Dental Assistant, as well as Transferred Dental Assistant and all rates under the heading Dental Assistants - United Dental Hospital. While the retained Junior Dental Assistant rates are expressed as annual rates, the rates proposed for insertion into the award for Dental Assistant Grade 1 and Dental Assistant Grade 2 are expressed as weekly rates. This is an historical differentiation which, we would suggest, may be addressed by the parties with a view to achieving internal consistency in the way monetary rates are expressed, that is, either all to be expressed as weekly rates or all expressed as annual rates.

276 The Health Professional and Medical Salaries (State) Award contains rates of pay for a large number of classifications, some of which are expressed as weekly rates, while others are provided in the form of annual rates. In the case of Dental Assistants, the parties are satisfied to have a single set of rates of pay in the award, expressed as weekly rates.

277 The rates of pay proposed for Dental Assistants by the HSU are equivalent to the rates in the Health Employees Technical (State) Award for a Technical Officer Grade 1. Rates proposed for a Dental Assistant Grade 1, years 1 to 4 are equivalent to the respective steps on the existing scale for a Technical Officer Grade 1 years 1 to 4. The rates proposed for a Dental Assistant Grade 2 years 1 to 4 are equivalent to the existing rates for a Technical Officer Grade 1 years 5 to 8, respectively.

278 The HAC opposes the claim by the HSU. As earlier mentioned, the HAC submitted that the Dental Assistants had received the wage increase provided to pubic servants generally through the agreement set out in the MOU, as well as previous across the board wage increases. These increases, it was contended, were offset against productivity increases which would apply over time.

279 In the alternative, the HAC proposed to retain the existing titles of Dental Assistant and Senior Dental Assistant in accordance with the following definitions: Dental Assistant means an employee appointed to a position whose duties include preparation of patients for oral examination; and assist other dental workers, such as dentists, dental therapists and dental hygienists, in providing examination and treatment of teeth, mouth and gums. Dental Assistants also assist with dental radiography and process dental radiographic film; maintain and store instruments, equipment, materials and inventory; and carry out other chair-side, clerical and receptionist duties.

Senior Dental Assistant means an employee with at least three years experience as a Dental Assistant appointed to a position whose responsibilities include supervision, rostering, training and quality assurance; and who is in charge of at least five or more Dental Assistants.

280 The HAC did not propose any variation in the rates of pay associated with these definitions.

281 The HSU submitted that the relevant datum point for a work value claim for Dental Assistants was 7 June 1991.

282 The increased status of the qualification obtained by Dental Assistants from a 12 month Certificate II course to an 18 month Certificate III course, it was submitted, reflected the expansion of the course to include communication, first aid and a requirement for increased competence in dental health, education and radiography.

283 The HSU submitted that it is essential for Dental Assistants to have completed the Dental Assisting Certificate III course in order to be employed in the public health system.

284 The work performed by Dental Assistants over the last 5 to 6 years had changed significantly requiring the development of new skills, submitted the HSU. The changes were as a result of the introduction of Universal Standards for Sterilisation and Infection Control; the introduction of the Information System of Oral Health computer program; the requirement to educate clients on Oral Health; the introduction and emphasis on four-handed dentistry; the introduction of new equipment and product materials; an increase in administrative duties; more onerous OHS regulations; the introduction of specialist areas such as intravenous sedation, Special Care Units and relative analgesia; the introduction of Child Protection legislation, with associated training and awareness and an increase in the number of patients treated.

285 The HAC submitted that the TAFE certificate is not a prerequisite to a position as a Dental Assistant, relying on evidence that it is "desirable", at least in the Illawarra Area Health Service.

286 While the HAC conceded that there may have been changes in emphasis in the work performed by Dental Assistants over the last 5 to 6 years, the evidence did not show that the changes have been sufficient to constitute a significant net addition to their work. In this respect, the HAC relied on the description of the duties performed by Dental Assistants, as set out in the decision of the Full Bench in 1991. Much of the evidence of the applicant, it is submitted, relied on matters that have previously been taken into account by the Commission. To the extent that there have been changes, these have been adequately compensated for by the increases already received over time.

287 The HSU submitted that it is mandatory in the public health system for an applicant for a Dental Assistant position to hold a formal qualification at least at the level of Certificate III. Yet the base grade paid to Dental Assistants is lower than that paid (using the rate of pay applicable as at 1 January 2002), for example, to Hospital Assistants Grade 2 (by $5.50 per week), Technical Assistant Grade 1 (by $36.80 per week) or Grade 2 (by $47.90 per week), all of which are positions requiring no formal qualification. The "thereafter" rate for a Dental Assistant is lower than the "thereafter" rate paid to Technical Assistants Grade 1 and 2, and the current rate for a Pharmacy Assistant. The amount paid for the "thereafter" rate to classifications with similar qualification requirements, such as Technical Officers, is $169 per week higher than that paid to Dental Assistants. An Administration Officer Level 1, a position which the HSU submitted was clearly less skilled that that of a Dental Assistant is paid a "thereafter" rate of $48.90 per week higher than that of a Dental Assistant

288 The HAC submitted that there has been no evidence before the Commission as to the skills and responsibilities of Technical Officers, and therefore, the Commission would not determine, on the evidence, whether any anomaly is demonstrated by the comparison of Dental Assistants rates of pay with those of Technical Officers.

289 In addition, the HAC submitted that the HSU had not made a case as to why two additional increments for Grade 2 or Senior Dental Assistants, however called, should be included in the award.

290 The comparison of the "thereafter" rate for Administrative Officers with the equivalent rate for a Dental Assistant is unhelpful, submitted the HAC, in the absence of any material to support the comparison.

291 In support of its claim in relation to Dental Assistants, the HSU called the following witnesses:

a Gail Frances Walsh, Senior Dental Assistant, Port Kembla Hospital Dental Clinic

b Fiona Tremlett, Dental Assistant, Nowra Community Health Centre

c Sandra Louise Cox, Assistant Clinic Coordinator of General Practice, Westmead Centre for Oral Health

e Vivien Morley, Teacher in Dental Courses, Open Training and Education Network - Distance Education

a Josephine Kenny, Director of Clinical Services, Westmead Centre for Oral Health

b Dr Eva Piekarz, Clinical Director Dental Health, Illawarra Area Health Service

c Trevor Craft, Assistant Director Employee Relations, NSW Health Department

293 The evidence went to the range of duties undertaken by Dental Assistants and Senior Dental Assistants. Dental Assistants work, it was contended, had increased over the relevant period to include participation in various oral health programs, liaising with interpreters, updating procedures for infection control in line with universal standards, and developing computer skills as new computer programs are introduced. Senior Dental Assistants carried responsibility for supervising Dental Assistants, ensuring reception areas run smoothly, attending management meetings, participating in staff appraisals, ordering materials and conducting OH&S inspections. Since 1990, they have had to become computer literate dealing with appointments and email correspondence.

294 The evidence revealed the attainment of new skills and responsibilities for Dental Assistants since 1990 are in the areas of: · computer literacy · infection control · OH&S · child protection · conflict resolution · forensic dentistry · sterilisation procedures.

295 It was agreed between the parties that the relevant qualification for a Dental Assistant is the TAFE Certificate III, updated following a review in about 1997-1998. Other dental assisting courses were available at as a Certificate IV, entry to which had the Certificate III course as a pre-requisite. The Certificate IV courses in Dental Assisting were in the areas of Dental Radiography, Oral Health Education and Assistance During General Anaesthesia, each of which is a specialist course in an area not covered by the Certificate III course.

296 As to the work value case for Dental Assistants, we agree that the relevant datum point is 7 June 1991. In determining whether there has been such a significant net addition to work requirements as to warrant the upgrading to the classification structure as is set out in the application, it is necessary to compare the work of Dental Assistants currently undertaken, and the associated level of responsibilities, with those undertaken prior to 1991.

297 There is some inconsistency in the evidence as to the work done in the early 1990s when compared with the duties set out in the 1991 Full Bench decision. However, when a comparison is made between the evidence of the work currently undertaken by Dental Assistants with that set out by the Full Bench in 1991, we concur with the submission of the HAC that part of the evidence relied upon by the HSU concerned matters that have previously been taken into account by the Commission. Thus, some changes in the duties of a Dental Assistant sought to be brought to account in this matter have been appropriately compensated for by the increases in remuneration previously received by Dental Assistants over the years.

298 By comparison, there remain also substantial discrepancies between the tasks listed by the 1991 Full Bench and the work currently done by Senior Dental Assistants. Indeed, the tasks set out in the definition proposed by the HAC for Senior Dental Assistants appear not to have been contemplated by the 1991 Full Bench.

299 However, the skills and responsibilities undertaken by Dental Assistants, on the other hand, have increased to encompass newer infection control, sterilisation techniques and occupational health and safety awareness, child protection awareness and training, conflict resolution, customer focus and forensic dentistry. The increased number of patients dealt with by Dental Assistants has increased the workload overall.

300 Moreover, there are two aspects of the case brought for Dental Assistants concerning qualifications which demonstrate significant work value changes for those employed in that classification in the New South Wales health system (noting the parties agreement that Certificate III is the appropriate qualification for Dental Assistants). Firstly, the formal qualification generally underpinning the work of this class of employee are not recognised in their pay scale. This much is clear from the definition of the classification in the relevant award. This conclusion is reinforced by a simple comparison with higher rates paid to Hospital Assistants Grade 2 and Technical Assistants Grade 1 and Grade 2, none of whom are required to hold a qualification. Secondly, the definition and rates of pay in the award do not comprehend the upgrade in the qualifications for Dental Assistants to Certificate Level III.

301 If it were to be accepted that the rates of pay should be aligned with a classification which has an equivalent qualification as its basis, the Technical Officers' rate may be appropriate. However, the definition of Technical Officer in the Health Employees Technical (State) Award refers to a range of certificates but, as was stated in regard to Dental Technicians, there is nothing before the Commission which allowed us to determine whether the qualifications required for a Technical Officer are comparable with the qualification normally attained by a Dental Assistant.

302 In all the circumstances, we are satisfied that the Technical Officer rate is a reasonable point of comparison in regard to an appropriate increase in wages, and in the absence of an alternative and on the weight of the evidence, we adopt it.

303 We have formed the view that the definitions proposed by the HSU for Dental Assistants, including the proposed transitional arrangements, are appropriate, and shall replace the existing definitions. We reject the alternative proposition put forward, late in the proceedings and without substantiation, by the HAC.

304 The rates proposed by the HSU for Dental Assistants commence at the lowest rate for a Technical Officer who, it is said, hold an equivalent or lesser qualification. The proposed rates increase annually on an incremental scale, without skipping any steps in the scale for Technical Officers, unlike the case proposed for Dental Technicians. Rather, the number of incremental steps in the proposed grading structure is reduced by one. Where there are five annual increments at Grade 1 it is proposed by the HSU that there will be four increments at Grade 1. In all the circumstances, we believe it is appropriate to adopt the rates claimed for Dental Assistants, as well as adopting the definitions proposed by the HSU.

305 We are aware that in doing so the rates for a Dental Assistant at Years 5 and 6 overlap with those for Dental Technicians Grade 1 Years 1 and 2. No objection was raised as to the overlap by the HAC and, in the result, we have adopted the structure proposed by HSU.

306 We adopt the definitions for Dental Assistants proposed by the HSU. The new rates of pay for Dental Assistants will be as follows:

4th year $813.30 Perfusionists

307 The current award coverage for Perfusionists is limited to a reference in the Health Employees Technical (State) Award to a rate of pay for each of the "present occupants" in the early 1970s of the position of Perfusionist at St Vincent's Hospital, Prince Henry Hospital and Royal Prince Alfred Hospital. There is no definition of Perfusionist contained in the award. Only one of the occupants of the position at the time of the making of the award continues to be employed as a Perfusionist and is no longer paid in accordance with the award. In short, the award provisions have no application to the work of Perfusionists in the health system in New South Wales.

308 In the result, as we will discuss momentarily, the HAC has established various administrative arrangements to provide for the rates of pay of Perfusionists, although such arrangements are both inconsistent and inequitable. None of these present regulatory difficulties inspired the HAC to make any affirmative proposition for adjustment in classifications or rates of pay for this classification during the course of these proceedings.

309 The only arbitrated decisions relating to Perfusionists were that of Sheppard J in Re Hospital Employee - Technical (Metropolitan) Award & Anor [1971] AR NSW 272, and Cansdell CC in In the Matter of an application by the Health and Research Employees' Association, for a new Hospital Technical (State) Award , (unreported, Matter No 296 of 1976, 25 August 1977).

310 Sheppard J inserted into the award a classification of Perfusionist which related to one person only - the Perfusionist employed at St Vincent's Hospital. The rate inserted into the award was equivalent to that of a Senior Medical Technologist, being the rate paid to the relevant employee at the time of the application. In his decision Sheppard J described the role of the Perfusionist and the relevant training and experience of the then incumbent, Mr Robertson.

311 The role of the Perfusionist was described as follows (at 308 - 309): [Mr Robertson] is the person who operates what is known as the heart-lung machine and is responsible for its preparation before an operation in which it is to be used takes place. The machine is a pump oxygenator which mechanically takes over the functions of the heart and the lungs during an operation in which it is necessary that the patient have no cardiac action of his own. Open heart surgery involving the use of this machine takes place at St Vincents Hospital 3 or 4 days per week. The machine is prepared and assembled under sterile conditions and this process takes one and a half to two hours. When the machine is assembled it is thoroughly tested and primed, that is filled with blood, physiological solution and plasma to the volume of the patient and with a chemistry equivalent to that of the patient. The surgeon inserts a cannula in through the aorta and a second connection is made through the machine into the right side of the patient's heart while the machine is kept clamped on. When the surgeon is ready the Perfusionist removes the clamp and the perfusion period commences. This is the period during which the machine is the patient's life support. The longest period of perfusion Mr Robertson has experienced is 6½ hours, the average being between 2 and 3 hours. During the perfusion period changes which must be made are made by the Perfusionist. These changes control the blood pressure, return of blood to the heart, depth of consciousness of the patient, intake of oxygen, quantity of anaesthetic, blood gas situation and blood chemistry. The Perfusionist has to administer the anaesthetic by injecting it into the blood circulating through the machine because, in the absence of any lung capacity, the patient cannot be kept anaesthetised by conventional procedures. This does not mean that Mr Robertson takes over from the anaesthetist who remains completely in charge of the anaesthetization of the patient. The type of anaesthetic, the volume used and the overall condition of the patient continue to be his responsibility.

312 The decision of Cansdell CC shows that the award was varied in 1973 by consent to incorporate the Perfusionist at Prince Henry Hospital.

313 The current rate for a Senior Medical Technologist is the same as the rate for a Senior Hospital Scientist, contained in the Health Professional and Medical Salaries (State) Award. That rate is $1176.60 to $1249.90 and compares to the rates currently paid administratively, which range from $950.10 to $1927.40 for a Perfusionist and the rate of $961.50 which appears against the irrelevant classification in the Health Employees (State) Award.

314 In the case of Perfusionists, the claim before the Commission, submitted Mr Murphy , is based on rectification of a series of anomalies and the task of work evaluation.

315 The HSU's application sought to amend the Health Employees Technical (State) Award by inserting definitions for four grades of Perfusionists and replacing the existing rates for Perfusionists with new monetary rates. The application provides for rates of pay, classification structures and career paths based upon the Hospital Scientists (State) Award. The four grade scale provides an alignment between Perfusionists and Hospital Scientists, Senior Hospital Scientists and Principal Hospital Scientists. It was submitted that the claim, if successful, would have no implications for the Hospital Scientists (State) Award by way of flow-on.

316 The definitions proposed by the HSU were as follows: Perfusionist - Grade 1 (Trainee Perfusionist) - means a person appointed as such who holds, or is qualifies to hold, an appropriate tertiary qualification (Bachelor of Science, Bachelor of Applied Science or equivalent qualification) and who is training in perfusion.

Perfusionist - Grade 2 (Certified Perfusionist) - means a person who has obtained the qualification of Certification in Perfusion of the Australasian Board of Cardiovascular Perfusion or equivalent qualification who is capable of performing perfusion duties of a complex nature including research and development tasks.

Perfusionist - Grade 3 (In-Charge Perfusionist) - means a person who complies with all duties of a trained Certified Perfusionist but in addition manages the every day operation of the department in conjunction with a medical officer.

Perfusionist - Grade 4 (Director of Perfusion Services) - means a person appointed as such who is the most senior Perfusionist within the hospital and who is solely responsible for the direction and supervision of other Perfusionists within the hospital. Director of Perfusion Services is expected to exercise organisational, supervisory and management skills, mature technical and clinical knowledge, judgement as it relates to the operation and testing of equipment, to continue to develop expertise with advances in the relevant body of technical and clinical knowledge and to seek and utilise other specialist advice when required to.

317 The rates of pay sought to be inserted into the award by the HSU were aligned with what the HSU claims are appropriate levels within the Hospital Scientists structure as follows:

Perfusionists Hospital Scientists Grade YearClassificationYear 1 1HS7 28 2 1Senior HS1 22 33 44 55 66 77 88 3 1Principal HS1 22 4 13 24

318 The HSU submitted that the amended application removed existing anomalies and inequities, and recognised the value of work undertaken by Perfusionists.

319 The HSU relied on evidence that the role of the Perfusionist has become increasingly skilful, technical and complex.

320 The HSU's submission was that the position of the HAC in seeking to retain the current award provision for Perfusionists is extraordinary and indefensible.

321 The HAC, in opposing the claim, submitted that the current provision in the Health Employees Technical (State) Award should be retained.

322 The HAC submitted that the Commission would not grant the wage increases sought by the HSU because of the increases already received by Perfusionists by way of general public sector salary movements under the MOU.

323 The HAC submitted that the HSU has failed to meet the evidentiary onus that it bore in bringing a special case.

324 The practice of clinical perfusion comprises those functions necessary for the support of, treatment, measurement or supplementation of the cardiopulmonary and circulatory systems of a patient. In operating equipment to meet patients' physiological needs during heart surgery and associated procedures, the job of a Perfusionist, it is claimed by the HSU, has become more complex and demanding over time.

325 The evidence included a series of slides which showed the changes in technology since 1981, particularly in the last ten years, and in technology involved in paediatrics since 1995. The HSU submitted that in the 1970s each Perfusionist performed only a few cases, noted in the decision of Sheppard J to be three or four per week, compared with the current rate of between 10 and 20 cases per week. Both the techniques performed and the equipment used are more complex. The deterioration of adult patients' health and their age at the time of surgery have both increased over time, that is, patients are older and sicker at the time of surgery, thus increasing the level of the Perfusionist's responsibility to keep the patient alive during surgery.

326 The HAC rejected any reliance by the HSU on the work value principle because, it was submitted, Mr Murphy had earlier stated that the case in relation to Perfusionists was not pressed on that basis. In any event, it was submitted that the requirement for the completion of a Bachelor of Science degree came into effect in 1990, prior to the relevant datum point of 1 July 1996.

327 The HSU also relied, in particular, on the wide discrepancies between rates of pay that currently apply to Perfusionists within the public health system across the State, and the lack of applicability of the current award specification of Perfusionist. It is submitted that rates should be paid in accordance with appropriate levels of the Hospital Scientists award.

328 The contention by the HSU that "appropriate levels" in the Hospital Scientists' structure have been selected was rejected by the HAC. It is, they contended, without justification. Nor has the HSU tendered evidence of the skills and responsibilities of Hospital Scientists, the nature of the work performed by them or the changes in their work over time. Such evidence would be essential, it was submitted by the HAC, to substantiate any comparison with Hospital Scientists.

329 Accordingly, the HAC submitted: The Commission does not have before it sufficient material to make a comparison with Hospital Scientists, Senior Hospital Scientists and Principal Hospital Scientists. It would be contrary to the public interest for the Commission to set rates on a comparative basis with Hospital Scientists, without such additional material.

330 In addition, the HAC expressed concern with particular aspects of the proposed definitions including the comparison with employees of similar qualification and responsibility. The Perfusionist at Grade 3 and 4, for example, is not required to hold a post-graduate degree equivalent to a Masters degree, which qualification is required for appointment as a Principal Hospital Scientist.

331 In support of its claim in relation to Perfusionists, the HSU called the following witnesses:

a Robert Stacey, Director of Clinical Perfusion, Prince of Wales Hospital

b Darryl McMillan, Director of Perfusion Services, Department of Anaesthesia and Pain Management, Royal North Shore Hospital

c Lesley Hines, Chief Clinical Perfusionist, Westmead Hospital

d John Dittmer, Deputy Head, Cardiac Physiology and Perfusion, The Children's Hospital, Westmead.

332 The HAC called evidence from Trevor Craft, Assistant Director Employee Relations, NSW Health Department

333 The evidence showed that a Perfusionist must complete an academic and practical course structured over two years, operated by the Australasian Board of Cardiovascular Perfusion ("ABCP"), leading to a Clinical Perfusionist Certificate. Entry to the course is open to graduates holding a Bachelor of Science degree of three years duration with studies in physics and chemistry, who are employed in a cardiac unit. The evidence further revealed that current advertisements for the position of Perfusionist require applicants to be accredited by the ABCP.

334 Prior to 1990, there existed no formal education path or educational requirement for Perfusionists.

335 In addition, it was agreed between the parties that since on or about January 2002 the ABCP has introduced a re-certification program which aimed to maintain standards of practice and which required a number of education points to be achieved by Perfusionists within each three year period. Because of the limited opportunity to achieve points through attendance at conferences within Australia, Perfusionists were required to keep abreast of new technologies and procedures by attending overseas conferences and workshops and through journal reading.

336 As earlier mentioned, the evidence revealed that Perfusionists are paid at a variety of rates including a special rate known as Code 99, under the Hospital Scientist or Senior Hospital Scientist rates in the Health Professional and Medical Salaries (State) Award or under the Health Employees Administrative Staff (State) Award. Code 99 is a code in the pay system that allows an Area Health Service to pay a non-award rate to any employee. The evidence revealed a wide disparity in the rates paid to Perfusionists in New South Wales hospitals. Relevant evidence included the facts that Paediatric Perfusionists with additional 12 months training are not paid any more under the salary structure than those without the additional training and that experienced Perfusionists in some cases are paid the same or less than others who are relatively newer to the field.

337 There is evidence before the Commission that shortage of staff has become a problem, with Perfusionists leaving the profession because of long working hours, call rosters and low salary. In this context, it is noted that the amount of out-of-hours work has increased dramatically over the last few years. There are currently 28 Perfusionists, operating 11 machines used in open heart surgery. Six of these are trained to work in paediatrics. Westmead Hospital has been advertising for a Perfusionist for more than one year with no Australian applicants.

338 We have come to the view that the application in regard to Perfusionists meets the special case principle for the following reasons:

a The current award provision for the position of Perfusionist is obsolete;

b There is, therefore, no adequate award prescription for the position of Perfusionist, while the evidence shows that there are some 28 Perfusionists working in public hospitals in NSW;

c The evidence reveals a wide disparity between the rates actually paid to Perfusionists. It also demonstrates that those rates are not based, as is the case in other categories of employees in the public health sector, on differences in skills, experience and responsibilities; and

d There have been significant changes in the work of these employees which should be recognised by new award classifications and rates of pay above the existing rates fixed by award or administrative arrangements.

339 As to this last consideration, it is clear on the evidence that the work of Perfusionists has become more complex and more technically demanding, requiring greater skill and expertise, to the extent that the role of Perfusionist has undergone significant alteration since the time that it was first inserted into the award. A datum point relevant to the consideration of a work value case was not clearly established by the parties. The HAC submitted that the relevant principle might be the First Award principle, but further submitted that the application could not be successful as it was not argued on that basis. In all the circumstances, it is appropriate to consider the evidence in the light of the special case principle, without confining any possible outcome by way of other principles already mentioned, neither of which have been shown to apply in this case.

340 Indeed, we agree with the HSU's submission that the HAC's position of retaining the existing award provision for Perfusionists is 'extraordinary', as an overwhelming case was presented in support of this aspect of the HSU's application.

341 It is appropriate at this time to properly recognise the work done by Perfusionists and also to remove the existing anomalies and inequities, as far as can be done, that have resulted from a lack of adequate award coverage. Whilst the salary adjustments received by Perfusionists since January 1994 will necessarily impact upon the scope for adjustment, that consideration must be tempered by the fact that other public sector employees have received such increases in circumstances where, unlike here, the adjustments have been applied prima facie to properly valued rates of pay matched against proper classifications.

342 The evidence includes a spreadsheet showing that the amounts claimed by the HSU would provide increases to rates of pay on a percentage basis when compared with the current award prescription. We find this comparison of little utility given, as we have stated, that the award provision has no application. The actual increases claimed would affect the Perfusionists variably, in accordance with each one's current rate of pay.

343 As to the claim before us to introduce new definitions into the Health Employees Technical (State) Award, in the absence of any alternative proposal, it seems appropriate to agree to the HSU's proposed definitions. The range of positions proposed are consistent with the evidence before us, to the extent that Perfusionists are employed by the HAC in roles as described. They have the further advantage of providing a career structure for employees looking to enter the profession within the public health system.

344 The definitions proposed by the HSU do not, however, seem to fully acknowledge the training and perfusionists practicing in paediatrics. In the light of our decision generally, the parties may wish to give some consideration to that matter in the future (when the award is open for review). 345 In considering the HSU claim to insert into the Health Employees Technical (State) Award rates of pay that align with Hospital Scientists, we are mindful of the HSU's submission that the claim, if successful, would have no implications for the Hospital Scientists (State) Award.

346 We note that the original insertion of an award provision for a Perfusionist was at the then rate for a Senior Medical Technologist, which rate equated to that paid to a Senior Hospital Scientist. Whilst there has been no evidence, as submitted by the HAC, as to the comparable value of work performed by a Hospital Scientist, or the changes over time in the work carried out by Hospital Scientists, there was nothing put by the HAC as to a more appropriate comparator. Nor is there any evidence that anything in the award might warrant a departure from that earlier approach, although we emphasise, as we have earlier, that we consider that this approach is merely an application of the work value and special case principles and not some comparative wage assessment per se .

347 We note also that that definition of Senior Hospital Scientist in the Hospital Scientists (State) Award requires a Degree in Science or an equivalent qualification, as well as being in charge of a section or having been approved by the HAC for appointment. We are satisfied, for present purposes, that this provides an adequate standard for comparison with a Certified Perfusionist who is required to hold a Perfusionist qualification, obtained over two years and maintained though ongoing education, after obtaining a Degree in Science.

348 Given the historical antecedent, in particular, as well as the qualification required, the comparison of a Grade 2 or Certified Perfusionist with a Senior Hospital Scientist seems apt. A positive response to the claim for Grades 1, 3 and 4 Perfusionists centred around that alignment, with rates for Grade 1 based on those payable to Hospital Scientists and for Grades 3 and 4 on Principal Hospital Scientists, follows logically from that conclusion.

349 In the case of Perfusionists we, therefore, grant the application by the HSU.

350 We adopt the definitions for Perfusionists proposed by the HSU. The new rates of pay for Perfusionists will be as follows:

2nd year $1797.20 Operative Date

351 We note in coming to the making of orders in the proceedings that the HSU claim is expressed in a way which, if taken literally, seeks not only to increase rates of pay applying to the stream classifications since 1 July 2003 (the present rates) but also to adjust the rates of pay which applied to those classifications from 1 January 2002 and from 1 January 2003.

352 We further note that the existing awards were varied by the MOU to provide increased rates of pay from the same three dates namely, 1 January 2002 (3%); from 1 January 2003 (4%) and from 1 July 2003 (5%) throughout the life of the MOU and that, on the face of it, the HSU claim appears without any argument in support of retrospectivity, to simply utilise the format of the existing award (which includes rate structures applying across a time scale) and apply to that format the rates of pay for classifications with which alignment is sought. In the absence of argument to the contrary we will treat the HSU claim in the way we have described it namely, as essentially a claim for prospective adjustment of rates by way of re-alignment with other classifications.

353 We are of the view, in any event, and even if the HSU claim had been pressed on a retrospective basis from 1 January 2002, that the cost impact to which we must have regard, would preclude the grant of retrospectivity and further that the increases we have determined should apply from the first full pay period to commence on or after 1 January, 2004. Having regard to the same consideration, we determine that the award shall operate for a period of one year. Orders

354 We direct that the HSU file and serve draft orders reflecting the conclusions reached by us in this decision on or before 4 pm Tuesday, 3 February, 2004. The HAC shall then file and serve a document either concurring with the proposed orders or setting out the areas of dispute on or before 4 pm Tuesday, 10 February, 2004. In the event of agreement, we shall make the orders in Chambers. In the event of disagreement, we shall list the matter for a short hearing (one half hour) at 9.30 am Friday, 20 February, 2004. Further in the event of a disputed matter, the parties shall confer to resolve differences before the date fixed for the hearing of such matters. _______________________

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