Health Employees Pharmacists Award and Other Awards (No 2) [2005] NSWIRComm 264

Health Employees Pharmacists Award and Other Awards (No 2) [2005] NSWIRComm 264 - NSWIRComm 2005 case summary — Zoe

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6 The award presently contains no definitions covering 7 The new classification structure, rates of pay and Cardiac Technician Year 1 738.70 Year 2 766.50 Year 3 791.40 Year 4 813.30 Cardiac Technologist - Grade 1 Year 1 755.10 Year 2 783.50 Year 3 831.70 Year 4 888.70 Year 5 950.10 Year 6 1010.60 Year 7 1059.70 Year 8 1093.90 Cardiac Technologist - Grade 2 (Sonographer or EPS) Year 1 1176.60 Year 2 1216.00 Year 3 1249.90 Senior Cardiac Technologist Year 1 1386.80 Year 2 1425.80 Year 3 1473.70 Chief Cardiac Technologist Year 1 1518.60 Year 2 1556.70 these classifications. The HSU application contemplates firstly, the creation of a new expanded classification structure with new position titles and increased rates of pay and secondly, a series of discrete definitions identifying and describing the various newly titled positions. definitions proposed by the HSU are as follows: 1 July 2003 1 July 2004 1 July 2005 768.20 798.40 797.20 829.10 823.10 856.00 845.80 879.60 785.30 816.40 814.80 847.40 865.00 899.60 924.20 961.20 988.10 1027.60 1051.00 1093.00 1102.10 1146.20 1137.70 1183.20 1223.70 1272.60 1264.60 1315.20 1299.90 1351.90 1442.30 1500.00 1482.30 1541.60 1532.60 1593.90 1579.30 1642.50 1619.00 1683.80

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9 The extent to which such work value changes and special case attributes should bear upon the determination the Commission is asked to make is the essential contest between the parties. In that regard the HAC does not concede that all the changes relied upon by the HSU either have occurred or are relevant to the Commission's consideration and it does not concede, as to the special case aspect of the claim, that all of the factors relied upon by the HSU have been demonstrated. 10 The key differences between the HAC claim and the alternative proposed by the HSU reflect that essential contest between the parties and, as may be seen from a comparison of the claim and the alternative, the differences involve a consideration of the level at which the Cardiac Technician/Technologist might appropriately be aligned with Scientific Officers rather than Technical Officers. In the HSU claim, the Cardiac Technologist scale is aligned with the Scientific Officer scale from the proposed base grade and onwards whereas alignment with the Scientific Officer scale does not occur in the HAC alternative until the proposed Cardiac Technician Grade 3 at which level, we note, the position occupant would be qualified to perform cardiac sonography and/or electrophysiological studies. The HSU claim if granted would remunerate such employees at the Senior Scientific Officer level whereas the HAC proposal would not. 11 Furthermore, the HSU claim affords the base grade Cardiac Technologist the same eight-year incremental range as the base-grade Scientific Officer and it affords those classifications above the base-grade Cardiac Technologist the full eight-year Senior Scientific Officer range. Conversely the HAC alternative extends only to the second year of the Senior Scientific Officer for the proposed Chief Cardiac Technician thus reflecting a significant difference between the competing proposals, in the reach of career progression for employees in this field of endeavour. 12 We note that the classifications concerned were last the subject of consideration in arbitral proceedings before the Commission in 1972 at which time there was no requirement for formal qualifications for ECG Recordist/Technician (as the position was then titled.) 13 There was, however, until 2000 and since about 1983 a course available for Cardiac Technicians conducted by the Institute of Cardiopulmonary Technology of Australia 'the ICTA course'. This course over time, became a primary qualification for Cardiac Technicians although at no stage was the Hospital Employees (State) Award varied to reflect such a requirement. We are satisfied, however, on the unchallenged evidence of the HSU that the course was given such standing. 14 Subsequently, it became compulsory for Cardiac Technicians practicing cardiac sonography to hold a qualification recognised by the Australasian Sonographer Accreditation Registry ('ASAR'). At the time, existing staff could be accredited by ASAR through recognition of competencies obtained over five or more years. The evidence indicates that this transitional arrangement ceased at the end of 2002. 15 Training in cardiac sonography was initially provided in 1999 as part of the ICTA course. However, in 2000 the Cumberland College of Health Science commenced to offer a Graduate Diploma in Medical Sonography which is recognised by ASAR. A relevant degree or diploma was expected of applicants for admission into the Graduate Diploma course. 16 Since the closure of the ICTA course in 2000, the HSU contends that the course of study most preferred for employment as a Cardiac Technician has been an undergraduate degree in science. The Bachelor of Medical Science (Clinical Physiology) course offered by Charles Sturt University meets this requirement and advertisements for positions in public hospitals routinely specify a science degree as an essential qualification. The HSU points to the substantial majority of Cardiac Technicians at hospitals surveyed, possessing as a minimum degree level qualification, primarily a science degree. 17 We consider, on the overwhelming evidence, that the HSU contention in that regard has been made out and we note that at no stage has the award definition or rate of pay for these employees been varied to reflect such higher qualifications. Having said that we are mindful of the HAC contention that there is available for delivery by two Registered Training Organisations, one in Victoria and one in Newcastle, a level 4 AQF Certificate course in Cardiac Technology but it could not be said on any view of the evidence, to represent an accepted benchmark qualification for the purpose of carrying out the full range of duties required of the proposed Grade 1 Technologist. Neither of these courses of study or the qualifications emerging therefrom have formed the basis for recruitment of Cardiac Technologists to this date. (Rather it only emerged late in the HAC case that the courses existed. At this time the HAC was confronted with the contention that the degree courses were the only alternative means of qualification after the closure of the ICTA programme.) 18 We also bear in mind the submissions of the HAC going to the non-mandatory nature of the degree qualification held by appointees to subject positions in Cardiac Technology and whilst there is on the evidence as it stands, an initial attraction to that proposition there is a stronger inference to be drawn in our opinion from the very obvious fact that regardless of whether it can be said in the strict sense to be mandatory as for example with other science based classifications, the degree qualification is nonetheless the accepted norm for appointment to positions in mainstream cardiac technology today. We note in that regard the HAC concession that the degree qualification is necessary for employees required to perform sonography duties. 19 As to work value changes generally and as we have said it is accepted that the datum point for measurement of such changes for these employees is the date of effect of the second structural efficiency adjustment available pursuant to the State Wage Case 1989 (1989) 35 IR 183 (that is, 27 June 1990). 20 The unchallenged evidence relied upon by the HSU indicates that over the past fifteen years and as a result of significant technological advances, there has been an increase in the value of work in the sense of the skills and responsibilities exercised by employees in this field. 21 The changes in areas such as: · Electrocardiography · Holter Monitoring · Exercise Stress Tests · Cardiac Ultrasound · Transosophageal Electrocardiogram · Cardiac Catheterisation Laboratory · Pacemaker/AICD implantation and · Electrophysiology studies

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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). 26 In this case, the HAC submits on a proper assessment of the evidence that notwithstanding changes in the nature of the work in cardiac technology including increased and more sophisticated testing regimes, the work is properly classified (and we infer valued) as that of Technicians as opposed to Hospital Scientists up to the level where sonography functions are carried out. 27 The HAC submits in the alternative, that if the Commission accepted that some adjustment should be made to employees at the level of and above those required to carry out sonography functions, that it would be appropriate to have regard to rates payable within the Scientific Officer classification structure, albeit not to the extent proposed by the HSU. 28 Notwithstanding the alternative proposal put by the HAC which goes some of the way towards resolving the impasse between the parties, there is and remains within the competing contentions, a fundamental divergence at the classification level immediately above the base grade Cardiac Technician, with the HAC proposing that the Technical Officer scale be applied and the HSU favouring the Scientific Officer scale. 29 We note that there is no issue between the parties as to the rates that should apply to the base grade Cardiac Technician. Insofar as the definition of this classification is concerned the HAC proposes that the award definition recognises that persons employed in this classification are required to perform "basic cardiopulmonary resuscitation". Otherwise the definitions proposed by the HAC and the HSU are materially indistinguishable. 30 We are of the view on balance, that there is greater industrial merit in the proposition for which the HSU contends namely that the increased levels of skill and responsibility as well as the significant penetration of degree qualifications into contemporary mainstream cardiac technology warrants the awarding of Scientific Officer based salaries and we propose to adopt that course accordingly. 31 In reaching that conclusion, we have taken into account the alternative proposal advanced by the HAC late in the proceedings which in effect, acknowledges the appropriateness of fixing salaries of those required to carry out sonography functions (and thereafter, increasing levels of supervisory and operational control) by reference to the established Scientific Officer scale and although the HAC proposal does not extend into that scale as far as the HSU proposal, it can fairly be described we think, as recognising the merit of having a five-level classification structure and also, as recognising the merit of having an incremental range within each of those levels. In those broadly stated respects, the parties are ad idem. 32 The marked point of difference, however, apart from the issue we have resolved above, is the breadth and reach of the new classification structure for Cardiac Technologists sought by the HSU extending as it would if granted in full, the existing three year range for ECG Recorder/Technicians across the full sixteen year incremental range presently applicable to Scientific Officer and Senior Scientific Officer classifications. 33 In that regard and as submitted correctly by the HAC, the Commission would be guided by the long standing and accepted principles recently adopted by the Full Bench in re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 at [60]: In reaching that conclusion, we note and adopt the long-established approach of the Commission in making an award in a career industry providing for incremental scales of salaries for grades of employee as stated by the former Industrial Commission in Court Session in Re Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award [1962] AR (NSW) 250 at p 284 as follows : There is one other general question to which we will refer before turning to the issues to be decided. It concerns the principle to be applied in providing by award for incremental scales of salaries for a class or grade of officer and for "steps" between classes or grades. It will be necessary for us to decide in the present case whether increments should be awarded for certain classified positions, how many increments should be awarded in the graded positions and how much the difference should be between the salaries awarded for the various grades and classified positions. Dealing with the function of increments between classes or grades and within them, the Commonwealth Conciliation and Arbitration Commission said in the Professional Engineers Case (No 2) (A 8508 p 47) -

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We would respectfully adopt what was there said as a statement of the correct principle which we should apply in the present case. It is a principle which has been applied in many cases decided in this jurisdiction since the Museum Case (Re Crown Employees (Professional) Conciliation Committee [1933] AR (NSW) 216). Its application in the present case will mean that we should award one or more increments for a classified position or for a grade of officer only if, and to the extent that, the evidence satisfies us that the work of an occupant of the position or of an officer in the grade will in some way be more valuable in one or more of the years succeeding the first year of his occupancy of the position or his service in the grade than it was in the first year. It will also mean that the salary differential between grades and classified positions should give effect to our view of the relevant work-value differences. 34 Although it is a matter lacking in precise focus on the evidentiary case presented by the HSU we are of the view and it may be inferred, of course, by the alternative position adopted by the HAC that, as might ordinarily be expected, there will be some progressive enhancement of the value of the work of the occupant beyond the first year. We consider it reasonable to assume in the circumstances of this claim including as we must considerations of the cost impact of the claim, that such progressive enhancement may extend for five years beyond the first year of the proposed base grade Cardiac Technologist; for two years beyond the first year of the proposed Cardiac Technologist Grade 2; for one year beyond the first year of the proposed Senior Cardiac Technologist; and for one year beyond the first year of the proposed Chief Technologist. 35 We have determined that the award should be varied to reflect our conclusions and that the existing classifications and rates of pay presently applying should be replaced by the following: Cardiac Technician $ Year 1 768.20 Year 2 797.20 Year 3 823.10 Year 4 845.80

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36 As to definitions, we note the competing claims and have determined that the following will apply: Definitions Cardiac Technician - means a person who performs ECGs, Exercise Stress Testing and Holter Loop Recorders. Cardiac Technologist - Grade 1 - means a person who has attained a Bachelor of Science Degree or qualifications or competencies deemed equivalent by the Health Administration Corporation and may be required to perform ECGs, Exercise Stress Testing, Holter -Loop event recorders as well as VVI pacemakers, dual chamber pacing/cardiac catheter and Implantable Cardiac Defibrillators (ICD's). Cardiac Technologist - Grade 2 - means a person who has attained a Post Graduate Degree in Sonography or qualifications and competencies deemed equivalent by the Health Administration Corporation and performs Cardiac Sonography or Electrophysiological Studies (EPS). Senior Cardiac Technologist - means a person who can perform all duties of Cardiac Technologist Grade 1 and assists the Chief Cardiac Technologist with management either through: · undertaking supervisory duties in a Deputy or Second-in Charge role overseeing Cardiac Technicians and/or Cardiac Technologists and/or · having responsibility for the day to day running of a discrete function within the department. Chief Cardiac Technologist - means a person who can perform all the functions of a Cardiac Technologist and who is responsible for the management of the Department including the development of operational protocols. 37 As in Pharmacists, we note the HSU claim is expressed in a way which, if taken literally, seeks not only to increase the present rates but also to adjust the rates of pay applying from 1 July 2003. In the absence of argument to the contrary, we will treat the HSU claim as essentially a claim for prospective adjustment of rates by way of re-alignment with other classifications although we consider that some measure of retrospectivity is warranted having regard to the manner in which the proceedings have been conducted. We determine that the variations set out above shall apply from the first full pay period to commence on or after 11 February 2005. SECURITY OFFICERS 38 The occupation of Security Officer is another occupation for which the award currently contains no definition and for which a single rate of pay is provided in the Health Employees (State) Award. The HSU has applied to create a classification structure and definitions which, they say, are based on the qualification and workplace competencies held and duties performed. The definitions proposed are for a Security Officer and a Senior Security Officer. 39 The HAC opposed the application, stating that the claim was not justified either on special case or work value grounds. The reasons provided were that a Departmental circular issued at the time the classification was inserted into the award provided a definition which remains relevant, as Security Officers still perform the functions set out in that definition. In addition, the HAC noted that the Health Employees (State) Award and the Health Employees Conditions of Employment (State) Award make provision for the payment of an allowance to persons who are required to handle money or to those who have responsibilities in relation to fire safety, making it unnecessary to incorporate these tasks into a definition. 40 Wide ranging training programs are in place to assist Security Officers in the performance of their duties. It is appropriate for the Commission to take into consideration evidence of the resources provided to assist with the implementation of changes and address the ongoing consequences of such changes, submitted the HAC, in accordance with the decision in Re Crown Employees, Teachers, Departments of Education and Technical and Further Education [1980] AR 127 at 132.6 where Dey J said: In assessing the amount of the increase I have borne in mind the fact, referred to in previous judgments (particularly the 1974 judgment of the Commission in Court Session in the Crown Teachers' Case ), that the changes which have occurred may need to be viewed against off-setting factors by way of various betterments and improvements which have occurred in the relevant period. 41 The HAC cited Dey J again in Re Crown Employees (Teachers) Awards [1980] AR 910 at 925.7 as follows: Moreover, as in the previous fixations, the various "betterments" which have been introduced, such as reduced class sizes and reduced face-to-face teaching hours for trade teachers, as well as improved back-up services and other subsidiary improvements, cannot be ignored as factors which affect the conditions under which the work is performed, and so constitute off-setting factors in considering the net addition to work value. The relevance of these factors cannot be eliminated by the proposition advanced by Mr Sexton that the purpose of their introduction was to improve the quality of education for the students and not to improve the working conditions of teachers, because they necessarily have that by-product. 42 The HAC contended that the resources provided to address the ongoing consequences of change is material to the Commission's consideration of the work value changes aspect of the HSU's claim.

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43 In addition, the HAC contended that rates of pay compare favourably with the rates provided for in the Security Industry (State) Award. 44 The HSU contended that a special case exists for Security Officers because: the current award has no definition for the classification of Security Officer and is a single classification with only one rate of pay; the administrative arrangements provided in the 1982 Health Commission of NSW Circular remain the only identifiable 'reference point' as to the duties and expectations for the classification; a comparison of the duties canvassed in the 1982 Circular with those contained in a number of job descriptions provided by existing Security Officers in affidavits lodged highlights the significant expansion of the scope of duties and responsibilities undertaken by such employees; the current single rate of pay available for Security Officers is also anomalous when compared to the rate of pay provided for the classification of Health and Security Assistant; in addition, changes to the licensing requirements occurred under the Security Industry Act 1997; and the inherent risk and dangers involved have increased as a reflection of the more hazardous and violent nature of some in society. 45 The HSU contended that the tasks and competencies reasonably expected to be undertaken by Security Officers have been recognised by the Australian National Training Authority as being at Certificate III level, and that the increasing relevance of the Certificate III qualification has created anomalies and inequities in rates of pay when compared to other classifications which rely upon the same or similar levels of qualification. 46 The HAC in reply stated that the claim was not justified, either on work value or special case grounds. The HAC pointed to the incorporation of the new classification of Health and Security Assistant in the award on 12 March 2002 and, in particular, to the wide range of training programs provided to assist Security Officers in the performance of their duties, as attested to in the witness statements provided by a number of Security Officers. 47 We find that a special case has not been made out by the HSU, in that it was not demonstrated that the case has such '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. The description of Security Officer duties remains sufficiently relevant for the purpose of defining the role, while any expansion of duties set out in evidence does not satisfy the requirements of the special case principle which is well established by the Commission (see the Pharmacists case, Operational Ambulance Officers (State) Award (2001) 113 IR 384, 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. 48 We agree with the HAC's contention that appropriate resources have assisted with the implementation of changes which have occurred over time, including training programs to assist Security Officers in the performance of their duties. We note also that Security Officers have received the pay increases applicable to public health employees generally. 49 The comparison was made between the rate of pay for Security Officers and that of Health and Security Assistants, who perform limited security functions in conjunction with their primary role of Hospital Assistant Grade 1, 2 or 3. The situation whereby Health and Security Assistants are currently paid more than Security Officers is said by the HSU to be anomalous. That argument alone is insufficient to satisfy the special case principle, although we will say more about the comparative roles later in this decision. 50 As to the claimed increase in inherent risk and dangers, these issues relate more appropriately, in our view, to the work value changes principle rather than the special case principle, and will be discussed further in that context. 51 We turn then to consider some particular aspects of the HSU's work value case. By way of background, the evidence shows that the classification of Security Officer was introduced into the award in 1982 as a single classification and rate of pay. Circular no 82/177 issued by the then Health Commission of New South Wales provided a definition as follows: " Security Officer " means a person appointed as such to a position approved by the Health Commission of New South Wales . 52 The Circular further stated: It is intended to apply to positions the duties of which are beyond those traditionally required in positions of "Patrol Officer" such as the checking and securing of doors, windows and gates and watching for and reporting signs of damage, danger, intrusion etc., and the direction and control of traffic. Work features which would exist to a substantial measure in the new classification might include: - a more demanding role in respect to the control of unauthorised persons as evidenced by the issue of equipment for personal protection and appointment as a Special Constable; - the regular use of motor vehicles; - responsibility for the collection and custody of cash; - responsibility for undertaking detailed investigations of incidents necessitating interviewing and preparation of report. 53 The Circular noted that the agreement had been reached with the then Health and Research Employees' Association (now the HSU) to insert the classification into the award. However, in the current proceedings the HSU submitted that the consent of the union did not extend to an agreed definition or necessarily of an acknowledgement of the rates of pay which were then prescribed. 54 The classification has not been subject to arbitral proceedings. 55 The HSU claim for Security Officers is for definitions to be inserted into the Health Employees (State) Award as follows: Security Officer - means a person appointed as such who undertakes routine duties involving the responsibility of the protection of persons and property within a healthcare setting, routine patrolling and securing of premises, escorting staff, the operation of basic security equipment, assisting in the control and restraint of persons displaying unsocial behaviours, having responsibility for the safe custody of cash and valuables, and monitoring fire alarms. A Security Officer will hold a current security licence at the appropriate level to perform the above duties which align with the competencies of a Certificate III in Asset Security Training Package. Senior Security Officer - means a person appointed as such who undertakes the duties of a security officer and in addition performs such duties as the operation of specialised security equipment, leading small teams and training. Persons in this position are to hold a current security licence at the appropriate level to perform the above duties and be able to use discretionary judgement in relation to the assessment of security risks within a healthcare environment. 56 The rates of pay sought by the HSU are equivalent to the rates for a Technical Officer Grade 1, on the basis of the equivalent qualification being required for the positions, and our earlier decision in the Pharmacists case in relation to Pharmacy Assistants and Technicians and Dental Assistants and Technicians. 57 Mr Murphy for the HSU submitted and it is accepted that the datum point for the measurement of work value changes for these employees is the date of effect of the second structural efficiency adjustment allowable under the 1989 State Wage Case. A review which was to follow the 1997 Funding Agreement did not take place, with the result that the classification has not been reviewed since its introduction. 58 The HSU contended that the net addition to work duties and responsibilities required to be undertaken by Security Officers since the datum point was illustrated in the affidavits of evidence, and included: the recognition and increasing relevance of a Certificate III qualification; a clear increase in the duties and responsibilities undertaken by Security Officers from that countenanced in the 1982 Circular; increased responsibilities for a variety of duties that encompass a much broader definition of the security and safety of facilities, accompanied and underpinned by specific training being undertaken by Security Officers; an ability to respond to Chemical, Biological and Radiation incidents; and the heightened responsibility and awareness that arises from being required to be involved in the restraint of patients and/or individuals who may be perceived as being of potential threat to patients and their family and visitors, other employees or the facilities itself. 59 The evidence revealed that Security Officers are required to hold a class 1A/B security licence issued in accordance with the Security Industry Act 1997 and the Security Industry Regulation 1998. The Regulation provides that an applicant for a class 1 or 2 licence must attain approved competency standards for the class of licence sought and, in the case of a class 1 licence, must complete an approved basic first aid course. The Regulation sets out a number of provisions relating to the issue of licences. 60 No other qualification was required, in any of the job descriptions for Security Officers provided in evidence, except for a driver's licence, with the exception of Liverpool Health Service which required a Security Certificate II and a current Senior First Aid certificate. It is our understanding, based on the evidence of Mr Deighan, that holding a current first aid certificate is part of the requirement for a security licence. Although some Security Officers hold a Certificate III, the holding of a Certificate III is not so widespread that it would be considered to be the norm, as we have found in the case of ECG Recorder/Technicians. 61 It is incumbent on the Commission to have regard as we have done with other occupational streams to the employer's actual requirements for the position. The position of Security Officers is unlike the situation where, for example as with ECG Recorder/Technicians, a higher level of formal qualification has become a requirement for the position. The security licences are issued by an external body, standards for which are established and are outside the control of the respondent. That they may change in the future is not an issue that we can reasonably take into account, with the level of uncertainty that the evidence holds in regard to it. 62 As to the work undertaken by Security Officers, while there appears to be a variety of duties undertaken the evidence does not convince us that there is a change in work value sufficient to meet the requirements of the principle to justify the claim. We acknowledge that training is provided to Security Officers and that there have been some increases in the breadth of tasks, some of which also affect the overall level of responsibility. However, these changes are not sufficient to satisfy the requirements of the work value principle, as they do not substantially expand the scope of the skills and responsibilities of the subject employees. 63 The evidence of witnesses was that the role of Security Officer has expanded from undertaking lock-ups and patrols to, in the case of Mr Deighan, Security Officer at Wollongong Hospital, attending to helicopter arrivals and departures; responding to aggressive patients and restraining them when required; dealing with intoxicated visitors; escorting patients and relatives to cars; monitoring Closed Circuit Television cameras, fire and other alarm systems; regular collection of monies; collecting and receipting lost property and other duties associated with security operations at the hospitals. In addition, there has been training in Chemical, Biological and Radiation contamination with the requirement for Security Officers to act in a first response capacity. We do not accept that there is an added level of skill or responsibility inherent in these tasks which take the role significantly beyond that which it encompassed in 1989, apart from the normal changes for which Security Officers have been recompensed over the years. 64 The HSU claimed an increase in the inherent risk and dangers of the position of Security Officer. The necessity to protect health workers from abuse and attack was noted in the Ministerial press releases of July 2001, acknowledging 'a number of violent attacks in hospitals'. The Minister for Health announced five million dollars in recurrent funding and a further five million dollars in recurrent funding to deploy more security personnel. The evidence was that shortly thereafter, the new classification of Health and Security Assistant was adopted by the parties and inserted into the award with a rate of pay higher than that existing for a Security Officer. No evidence in regard to the addition of the new classification indicated any intention to take the rate for the classification into account in determining a future rate of pay for Security Officers, or that the new rate was set in relation to that of a security officer at the time, yet the HSU has now claimed that the differential between the two rates is anomalous. We do not think that that contention can be sustained upon the evidence before us. 65 The definition for a Health and Security Assistant is as follows: " Health and Security Assistant " means a person appointed as such who has the following responsibilities: a person required to undertake limited duties associated with the care of patients such as pre-operative shaves, routine enemata, bathing of patients, general assistance in wards and cleaning duties; and/or a person who undertakes routine clerical/administrative work (Level 1); and /or a person who has the primary functions usually undertaken by the classification of Hospital Assistant Grade 1, 2 or 3; and/or any other classification of staff agreed to between the Health Administration Corporation and the Association. and in addition, undertakes securing, watching, guarding and/or protecting as directed, including response to alarm signals and attendances. Such employee is required to be appropriately licensed in accordance with the Security Industry Act 1997. 66 At the time the variation was made, a claim for Security Officers was before the Commission, as part of the original 1999 application in these proceedings, which claim was subsequently separated and later re-joined. In spite of the HSU's contention that it was in the context of a claim for Security Officers that the variation for Health and Security Assistants was agreed, there was no evidence provided to the Commission to allow for any direct comparison with the work or wage of a Security Officer. The position was 'created to accommodate those areas of need for a security function or response where there is insufficient work to engage the services of a full time security officer...' No evidence was provided by any employee in the position of Health and Security Assistant and the evidence generally did not establish a basis for the union's contention. The evidence did not allow a proper comparison of the roles, nor did it properly establish a way to rectify any anomaly that may be found to exist in the current pay structure. 67 In any event, the mere existence of an anomaly between award classifications is not a determinative. We note our observation in Pharmacists (at [243]) as follows:: The particular anomaly 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. There as here, an anomaly was insufficient to satisfy the special case principle. In regard to Dental Technicians other factors existed which, taken together with the anomaly, affected the finding that a special case existed. In regard to Security Officers that is not the case; there is insufficient evidence to convince us that a special cases exists.

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68 In opposition to the union's contentions, the HAC submitted that Security Officers still perform the functions set out in the Departmental Circular 82/177, and that the Health Employees (State) Award and the Health Employees Conditions of Employment (State) Award currently make provision for the payment of an allowance to those employees who are required to handle money or who have responsibilities in relation to fire safety. Conclusion 69 The HSU proposed a definition for a Security Officer which refers to alignment with Certificate III competencies, whereas the evidence shows that Certificate III qualification is not a prerequisite for the position. On the evidence, some Security Officers continue their training with a variety of courses. Indeed, the HAC in their contentions have highlighted the wide ranging training programs available to Security Officers. However, unlike the case for ECG Recorder/Technicians, the evidence did not show a mandatory or even widespread requirement for a Certificate III qualification for Security Officers. 70 While we agree that it may be appropriate to include the requirement to hold a security licence in the definition for Security Officer, we do not agree that it is appropriate to set out in the definition the level of certification of that licence, due to its regulation by the Security Industry Act (unless there is a clear case demonstrating the requirement for such a qualification arising from some other source). 71 In coming to our conclusion we have not been influenced by the rates in the Security Industry (State) Award. The HAC, while arguing that the rates of pay compared favourably with those in the Security Industry (State) Award, conceded that that award was a minimum rates award and did not necessarily reflect the rates paid in the security industry in the private sector. 72 The claim is for alignment with Technical Officers Grade 1, years 1 to 8, which claim, as we have stated, has not been made out. 73 As to the proposal that a separate or distinct classification of Senior Security Officer be introduced, we find that the HSU has made out a work value case based on the requirement to carry a range of responsibilities and to complete such tasks as were not incorporated into the understanding detailed in Circular 82/177 and which go beyond those of a Security Officer. These duties and responsibilities include leading and training others. 74 We agree with the HAC's expressed concern that the proposed definition included the responsibility of leading small teams without defining the size of the team, and that such an approach is inappropriate. The difficulty identified by the HAC may be overcome simply by deleting the word 'small'. We believe this is an appropriate course. 75 The leading hand allowance, as would be expected, is not payable to an employee whose classification denotes supervisory responsibility. The inclusion in the definition of the duty to lead (small) teams has an impact on the income level of these employees, as the retention of the relevant phrase removes the opportunity of attracting a leading hand allowance while the removal of the phrase in question allows the position to attract the leading hand allowance. We believe it is appropriate that the senior position incorporates the duty of supervision, or team leadership. On this basis, we accept the definition of Senior Security Officer as proposed by the union, with the exception of the word 'small'. In accordance with the definition of Leading Hand set out in the Award, because the definition of Senior Security Officer sought by the HSU denotes supervisory responsibility, an employee in the classification of Senior Security Officer will not attract the allowance. 76 We are of the view, on the basis of the evidence before us, that it is appropriate to introduce the classification of Senior Security Officer for those employees who carry out the duties of a Security Officer and, in addition, are required to hold the requisite licence to enable them to train others. The requirement to train others requires a specific qualification which should be recognised by the employer, separately or independently from the responsibility of leading or supervising other employees.

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Senior Security Officer $ Year 1 $729.20 Year 2 $746.80 78 Again we note the HSU claim is expressed in a way which seeks to adjust the rates of pay applying from 1 July 2003. We do not think this is appropriate in the case of Security Officers. We determine that the variation set out above shall apply from the first full pay period to commence on or after the date of this decision, and for that reason the above rate is expressed in terms of the rate applying for the 1st and 2nd year of a Technical Officer - Grade 1, applying at the time of this decision. LAUNDRY STREAM 79 The HSU is seeking to insert into the Award definitions and rates of pay for those currently known as Laundry Employees and Laundry Forepersons, in lieu of the current provisions contained in the Health Employees (State) Award. The current award definitions contain an explicit gender differentiation in the case of Hospital Assistants and are outdated in the case of Laundry Forepersons. 80 It was submitted that the new classification structure proposed by the HSU and the alteration to rates of pay resulting from the adoption of the claim would be a just and reasonable outcome of the work value changes and application of the equal remuneration principle, as well as the special case aspects of the claim. 81 The HAC opposed the claim. Special Case 82 The HSU contended that a special case exists for classifications in the Laundry stream for the following reasons: (a) The Award has definitions for supervisory positions that in part rely upon the term "adjusted daily average of … occupied beds". Whilst this had a relevance when laundry services were structured to largely provide services in individual hospitals, it bears little or no relevance to the way Linen Services are now structured. (b) The Award still contains reference to gender based positions of Laundry Employee (female) and Laundry Employee (male). These two positions are subject to differing rates of pay. This provides in at least one workplace a rate of pay for predominately females that is a lesser rate to that of most of their male colleagues. This would appear to be based on a differential as to male employees allegedly being able to lift larger loads of dirty linen, which is not an appropriate manner to determine industrial arrangements. (c) The reference in the Award definition for a Hospital Assistant Grade 1 includes an employee being "required to perform general cleaning duties and other duties of a house-hold-chore type…" The manner that laundry services are now structured via a number of centralised Linen Services has left this definition as having no relevance, equating such work as being synonymous with what would occur within a household. (d) Affidavits lodged by employees working in Linen Services highlight the significant shift from hospital based laundries to a relatively small number of centralised Linen Services. This has resulted in these centralised facilities undertaking in most cases extraordinary levels of output for entire Area Health Services and even beyond. Some undertake contractual arrangements for clients outside of public health. (e) The changes via this centralisation has led to change in the manner that work processes are undertaken, and the procedures and equipment now required to accommodate the significant tonnage to be processed and completed each week. The pressure to achieve performance targets has been accentuated by the 'commercial' manner that the Linen Services engage with a number of clients, even within public health. This has inevitably had repercussions in the way that employees undertake their work, both by way of process/procedures and increased workplace pressures to achieve established targets. (f) Accordingly, increases in work value since the relevant datum point have occurred. This is in an environment whereby the manner that Linen Services have been established and structured has delivered increased productivity benefits to the public health system that can not go unrecognised. (g) The tasks and competencies reasonably expected to be undertaken by a number of employees within Linen Services have been recognised by the Australian National Training Authority as being at Certificate III level. (h) The increasing relevance of the Certificate III qualification has the potential to create anomalies and inequities in rates of pay when compared to other classifications which rely upon the same or similar levels of qualification. 83 We find that a special case has not been made out by the HSU with regard to its claim for new definitions and rates of pay for laundry employees. The claim is essentially based upon work value changes. However, we consider that the changes identified are insufficient to satisfy the Work Value Principle, let alone establish a basis to make out a special case (upon those same grounds).

[42]

84 The HSU contended that the changes to the work systems and responsibilities were attested to in the affidavits filed by laundry employees. These changes included: (a) The potential for an increasing relevance of a Certificate III qualification for those undertaking supervisory duties. (b) A change in the way that work is done, which has resulted in a shift to a more systemised and accountable work environment, often based on performance targets. (c) This change in the way that laundry services are now undertaken and delivered by a relatively small number of Linen Services, has delivered significant benefits and productivity savings to the public health system. (d) The changes to work processes and systems and the need to be able to progressively become competent in a wider range of procedures and directions than previous finds little recognition in a single rate of pay that is currently available in the Award. It is not industrially desirable to draw no distinction in the way that remuneration is structured for a new employee to one that is fully able to productively engage in the workplace. 85 The relevant datum point was agreed by the parties to be 1 July 1996, as part of the 1997 Funding Agreement. 86 The HAC contended that the implementation of automated and/or mechanised methods of laundering has resulted in a significant reduction in the number of manual handling tasks required to be performed by employees. Any necessary training or re-training was provided by the employer. Any benefits and productivity savings resulting from technological change were channelled back into the health system with a view to improving standards of patient care. 87 In addition, the HAC contended that the rates of pay received by Hospital Assistants Grade I and Grade II compared favourably with rates provided in the Laundry Employees (State) Award. (Again, it is noted that the nominated award was a minimum rates award and did not necessarily reflect the rates paid in the laundry industry in the private sector.)

[46]

93 Mr Wallace's evidence was supported by that of other witnesses. Ms Sewell said the Illawarra Linen Service also requires employees to rotate through the various sections of the laundry. Ms Masling said that training requirements are 'much higher' than in 1990. The training in the New England Linen Supply Service can take up to six months, according to Ms Taylor. Mr Meyers gave the same estimate for the Macquarie Area Health Service Linen Service. Mr Kaupke believed that new staff learn a lot in the first six months, continuing to increase their competence over the first 12 months of their employment. 94 Ms King is a member of the Community Services and Health Industry Training Advisory Board and the Health Industry Group Training Company. Her evidence included that TAFE NSW has developed a course against the Certificate II in Health Support Services (Laundry Support Services). There is not yet a Certificate III course. Certificates I, II and III in Laundry Operations are available through TAFE NSW, with Certificates II and III available in Victoria. However, there is only one Linen Service for which evidence was provided in regard to qualifications. The Central West Linen Service required the Sterilising Services Specialist to hold a Certificate II in Sterilisation Technology. Listed as desirable for this position were 'formal qualifications in Laundry Operations' which, according to Ms King's evidence, are available as Certificates I, II and III. For the position of Production Operational Staff, the Central West Linen Service listed as 'desirable' the Laundry Technology Certificate II. No qualifications were listed as essential. 95 Currently, the Award provides definitions for a Hospital Assistant Grade I and a Hospital Assistant Grade II, which incorporate the positions of Laundry Employees. These definitions include reference to the previous positions of Laundry Employee (female) at Grade I and Laundry Employee (male) at Grade II. These definitions are as follows: Grade I means an employee appointed as such who is required to perform general cleaning duties and other duties of a house-hold-chore type, excepting those specified in the definition of Hospital Assistant, Grade II. Without limiting the generality of the foregoing, it shall include duties traditionally associated with the former classifications of Ward Assistant (save as to those duties specified in the definition of Hospital Assistant, Grade II), Maid, Seamstress, Laundry Employee (female) , and/or Female Attendant. [Emphasis added] Grade II means an employee, male or female, appointed as such who is required to perform, in addition to the duties appropriate to a Hospital Assistant, Grade I, duties such as high cleaning, outside cleaning, stripping and/or sealing of floors, portering of patients and/or heavy equipment, etc, loading and/or unloading of commercial-type washing machines, cleaning of tooth and vomit bowls, sanitising of bed pans and other equipment, the cooking and/or preparing of light refreshments (e.g., eggs, toast, salads), making unoccupied beds. Without limiting the generality of the foregoing it shall include duties traditionally associated with the former classifications of Dressmaker, Kitchenman, Laundry Employee (male) , Porter (all grades), Porter/Cleaner (all grades), Lift Attendant, Laboratory Attendant-Male, Attendant-Vehicle Parking, General Useful, Incinerator Attendant, Gardener's Labourer, General Reliever (male). [Emphasis added] 96 Prior to the above definitions being inserted into the Award, the classifications of Laundry Employee (female) and Laundry Employee (male) existed without definition but with a differential rate of pay. The work of employees in these classifications has not been the subject of arbitration. 97 The anomaly in the current definitions of Hospital Assistant is in need of rectification, as they distinguish classifications on a gender basis alone, submitted the HSU. Mr Murphy submitted that there is an implicit undervaluation of the work of female employees, based on an antiquated notion of the alleged ability of employees to lift a certain weight of linen. 98 In the case of Laundry Forepersons, the definition is based on the outmoded and irrelevant notion of 'adjusted daily average', a formula relying on the number of occupied beds in a hospital. Where a service is not located within the grounds of a hospital for the provision of linen to that hospital, or provides a services to more than one hospital or non-hospital based services, the reliance on 'adjusted daily average' of beds is no longer useful.

[49]

103 The gender differentiation in the current definitions of Hospital Assistant Grade I and Hospital Assistant Grade II plainly raises the issue as to whether there is pay inequity arising from the current classification structure. However, the union has not brought a sufficient case to establish such a case under the Equal Remuneration Principle. In any event, the question will need to be addressed squarely under that principle and not as a matter raised as a special case. 104 As to the position of Foreperson, we find that a special case has been made out. We consider that there has been a substantial undervaluation of that position particularly in the light of the irrelevance of the definitions of the various grades for the position of Foreperson satisfies the special case principle. 105 The classifications of Laundry Foreman, Laundry Forewoman and Laundry Assistant Forewoman appeared in the Hospital Employees (State) Award, made by the Public Hospital Employees (State) Conciliation Committee in 1970, with definitions not dissimilar to those currently in use with the exception that Laundry Foreman only contained grades A, B and C. 106 Arising from proceedings before Conciliation Commissioner Johnson, an interim award had been made on 13 August 1971, in which the parties had agreed to include three grades for a Laundry Forewoman and to amend the definition of Laundry Foreman to Laundry Foreman/Forewoman Grades A, B and C. The rates of pay remained different. 107 The definition of Laundry Foreperson is as follows, and is substantially unchanged. Laundry Foreperson (in hospital having an adjusted daily average of 200 or more occupied beds), means the person employed as such and who is appointed to assist in the management of the laundry or to be responsible to the laundry manager for a section of the laundry and shall be graded according to the following: (a) Grade A - assisting in the management of a laundry or a hospital of 500 or more adjusted daily average. (b) Grade B - assisting in the management of a laundry of a hospital of 300 but less than 500 adjusted daily average or responsible for a section of a laundry of a hospital of 500 or more adjusted daily average. (c) Grade C - assisting in the management of a laundry of a hospital of 200 but less than 300 adjusted daily average, or responsible for a section of a laundry of a hospital of 300 but less than 500 adjusted daily average. Laundry Assistant Foreperson means a person employed as such in a hospital with an adjusted daily average of occupied beds of not less than 100 beds and who is regularly required to assist in the supervision of laundry staff. 108 The claim is to replace the existing classifications with a new classification structure which includes a supervisory classification which, the HSU contends, has more relevance than the current classifications. The HSU proposed the deletion of the reference to Laundry Employee (female) and Laundry Employee (male) in the definitions of Hospital Assistant Grade I and Grade II respectively, replacing them with a new definition of a Linen Services Officer, as follows: Linen Services Officer A person appointed as such who undertakes a range of duties utilising approved workplace operating procedures within a centralised Linen Service. This may include duties involved in the sorting, preparation, laundering and folding of linen items, as well as the inspection, repair and finishing of such linen items. 109 The rate of pay claimed for a Linen Services Officer was the amount for a Hospital Assistant Grade II at Year 1, a Hospital Assistant Grade III at Year 2 and an Assistant Foreperson rate at Year 3. Because a Laundry Employee (male) is currently paid as a Hospital Assistant Grade 2, this claim represents a minimum increase, providing three levels compared to the current single level. 110 The position of Laundry Foreperson would be replaced, on the HSU's application, by the position of Team Leader, Linen Services, with the following definition: Team Leader, Linen Services A person appointed as such who can undertake a range of duties utilising approved workplace operating procedures within a centralised Linen Service. This may include duties involved in the sorting, preparation, laundering and folding of linen items, as well as the inspection, repair and finishing of such linen items. In addition, the position will be responsible for the operational activities of a team of no more than six Linen Services Officers and their production outputs. The position holder will be required to exhibit team leadership, an ability to assist and mentor other employees, and be able to demonstrate competencies consistent with a relevant Certificate Level III. 111 The rate sought by the HSU for a Team Leader, Linen Services is that of a Technical Officer Grade 1, on the first three steps of that scale.

[51]

115 In certain cases productivity changes may establish a special case, but not as here where the changes are part of the routine improvements in the business and not resulting in significant shifts in the skills and responsibilities of employees as contemplated by the work value principle. Again, we adopt our comments made in Pharmacists (at [129] - [131]). 116 It is noted that the definition, 'Central Linen Service is a laundry which supplies a linen service to two or more separate hospitals', has been in the Award unchanged since 1973. The fact that centres provide laundry services to more than one hospital is not new. That the centres now provide services to places other than hospitals does not significantly change the nature of the work. Indeed, there is no application currently before us to change the definition of a central linen service. The competitive aspect of the role of the centres is not limited to laundry services, and is a not uncommon aspect to the changes in work generally across both public and private sectors, within and beyond the health system, and fall within the type of productivity increases that have been recognised through pay increases from time to time across the public health sector. 117 While the claim based on work value has not been made out, any gender inequity must be rectified. Unfortunately in the matter before us a case has not been squarely mounted to address the requirements of the Equal Remuneration Principle. The evidence did not presently satisfy us that the factors required to achieve that principle have been established. It is open to the parties, given our comments, to urgently address this issue. If no agreement can be reached between them, it is available to the HSU to bring an Equal Remuneration Principle case where a more detailed and close analysis can be undertaken. It is appropriate for us to comment that this conclusion does not prohibit a case being brought for the same group of employees under that principle, where any issues as to gender inequity as contemplated by the Equal Remuneration Principle can be directly considered. (We note in this respect that discrimination issues may also be raised in due course.) If necessary we would insert a leave reserved provision in the award to address the gender inequity issues. In the meantime, the specific gender titles in the award should be removed.

[54]

120 The proposed definition further sets out that 'The position holder will be required to exhibit team leadership, an ability to assist and mentor other employees, and be able to demonstrate competencies consistent with a relevant Certificate Level III.' The reference to Certificate III attempts to introduce a qualification that is not presently required by the employer, submitted Mr Goot. Such submission is entirely consistent with the evidence as outlined above. 121 On both issues - that is, the restriction on the number of employees to be supervised and the introduction of a new qualification not currently required - we agree with the submissions of Mr Goot for the HAC. There is nothing in the evidence to convince us otherwise. 122 However, the current definition of Laundry Foreman or Forewoman relies on the notion of 'adjusted daily average', which is outmoded for current purposes. The reference to 'adjusted daily average' is the daily average of occupied beds in a hospital, adjusted in accordance with a formula contained in the Award. Where Laundry Employees and Forepersons are employed by centralised linen services, and no longer by a laundry operating within and servicing only a particular hospital, the current definition is no longer relevant. It is surprising, considering comments earlier made by the Full Bench (in the Pharmacists case), that this aspect of the claim was not addressed by the respondent. Rather, the respondent, by not providing an alternative definition, has effectively argued for no change to the current outmoded definitions - an argument which must fail. 123 It would be inconsistent with our comments in regard to other occupational streams in the public health sector to retain the reference to Certificate III, where the evidence does not show a requirement for that level of certification. The question may, of course, be revisited by the parties if and when such qualification becomes necessary in the future for the position of Team Leader, Linen Services.

At a glance

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Judgment (58 paragraphs)

Cases Cited (9)

Cited By (1)