Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073

The experience, skills, training and other qualifications of the employee - cl 19(e)

1. The 'Questions to consider' in the Framework are appropriately directed to issues with the applicant's experience, skills, training and other qualifications which would point toward a refusal of the conversion request. Those questions are:

"○ Are there concerns regarding the experience, skills, training and other qualifications of the employee, not covered by other matters in this table, such that they are not capable of performing the duties of a HS within the laboratory or area in which the Technical Officer works?

○ If overseas qualification, has the qualification been assessed by AIMS and/or NOOSR? If so, what is the nature of the assessment?"

1. There was some discussion during the hearing as to how this matter and cl 19(g) - the employee's work experience and duration of employment - sits comfortably with cl 20, which prevents the Employer from relying on the fact that the employee has not on been offered to perform or has not performed particular duties or that they do not hold particular competencies (being internal or external qualifications to perform certain work, including on certain equipment), as a reason for refusing a request to convert an employee. Counsel for the Employer made the following submission:

"...the employer can take into account the duties that the employee does have experience in performing as an aspect of evaluating the experience of the employee. Similarly, the employer can take into account the duties that the employee does perform and has performed to identify what skills they have. It can do that for the purpose of considering whether the employee would be capable of performing or obtaining competency in hospital scientist duties as defined by the employee. That's, in my submission, the natural way of reading these clauses together, and it accords with common sense and experience. .... It's commonly the case that an employee who applies for a high level position may not have had the opportunity to perform all of the duties of the higher level position, and of course, it would be fair to say that they shouldn't [not] be given that position just for that reason, but it must be relevant to take into account the experience and the skills that they do have, having regard to the duties that they have actually performed in their work, to assess whether they're capable of performing the duties that they haven't performed but that are part of the higher level job."[7]

"What is relevant in the question of experience, and ..., it becomes relevant if a person is not capable of doing the work. If the employer generally arrives at a conclusion ‑ or the IRP arrives at a conclusion ‑ that this person, for whatever reason, is not capable of working as a hospital scientist, then obviously it becomes a relevant matter, but the award assumes that after six months with a relevant qualification then you can make that application. But here that was never said.

It was never put in cross‑examination today, or otherwise suggested that Ms Keryakous was not able to do that work. But you recall that the IRP promoted every person who did the work of a hospital scientist, that was the evidence, but if the person did not do that work then they were invariably rejected on experience grounds, including that they did not do the work and so did not have the requisite experience. Now that, in my submission, crosses the line and goes into cl 20(a) territory."[8]

1. Both parties were largely ad idem that the Employer could take into account the employee's experience, skill, training and qualifications, but could not refuse someone because they had not actually performed the HS duties. The difference is the Employer's approach, at least in submissions and it may transpire, in practice, appeared to be that the employee had to establish, by their experience, skill, training and qualification, that they were capable of performing the HS duties. In other words, they had to make out a case in favour of their conversion. As I have been at pains to stress, the employee does not need to do this. The Conversion Award presumes that an applicant who has made a valid conversion request has the relevant experience, skill, training and qualifications to be a HS - until such time as that presumption is rebutted.
2. Clauses 19(e) is principally directed toward establishing whether a TO is incapable of performing the duties of a HS, not whether they are capable of performing them, as that is assumed by the fact that the applicant who has submitted a valid conversion request is entitled to conversion.
3. Nevertheless, as is the case with the other matters listed in cl 19 which concern the personal qualities of the applicant, the matters listed in cl 19(e) may also offset negative indica or distinguish an applicant from other contemporary applicants (if need be). To take my earlier example, a TO with a PhD from Oxford in the very field in which their laboratory undertakes testing may operate as a counterweight, partially or completely, to other matters which indicate the conversion request should be refused.

1. The 'Questions to consider' in the Framework are appropriately directed to issues with the applicant's performance which would point toward a refusal of the conversion request and also appear to be directed toward ensuring that an applicant who may have performance issues, is not unfairly penalised by a conversion refusal if appropriate managerial action has not first been taken to address the concerns. This is appropriate given the need for a refusal to be fair, as well as reasonable. Those questions are:

"○ Are there concerns regarding unsatisfactory or inconsistent performance in the Technical Officer role?

○ Are these evident by results, competencies assessment and/or PDP/Rs?

○ What level of support/action has been undertaken to rectify the identified performance issue?"

1. If support has not been provided, the extent and nature of the performance issues will need careful scrutiny. A relative minor performance issue that has not been managed, may not be a fair and reasonable reason, by itself, to refuse conversion, whereas a significant performance issue may, even if the issue has not been appropriately managed. It will depend on all the circumstances.
2. Again, performance issues which speak in favour of conversion will only be relevant to act as a counterweight against negative indicia or to distinguish an applicant from other contemporary applicants (if need be). Otherwise, an applicant does not need to establish they have performed well, or higher than expectations. They do not need to make a case for their conversion.

The employee's work experience and duration of the employment - cl 19(g)

1. The 'Questions to consider' in the Framework with respect to cl 19(g) are as follows:

"○ Is the Technical Officer or equivalent or higher, experience relied upon in terms of clause 3 of the Interim Award, relevant to the HS position in which the Technical Officer works?

○ Is the relevant experience FTE equivalent and with sufficient continuity of service?"

1. The matter listed in cl 19(g), as revealed by these questions (the second of which introduces the concept of 'continuity of service' which is not mentioned anywhere in the Conversion Award), and similar to the matters listed in cl 19(a) and (e), appears to allow an interrogation of the matters that have otherwise been accepted to constitute a "valid conversion request", including what constitutes a "Requisite science qualification", so as to give rise to an entitlement to conversion pursuant to cl 5. As such, to be fair and reasonable, a refusal based on this matter will need to be compelling. Care must be taken that the matter is not used to effectively disqualify an otherwise qualified applicant, that is an applicant with a "Requisite science qualification" and who has been employed by the Employer as a TO for at least six months. The employee's work experience and duration of employment, despite meeting cl 3 requirements, must clearly indicate that they are not capable of performing HS duties.
2. For instance, it might be fair and reasonably determined that a TO with a science degree at Australian Qualifications Level 7, but which degree did not include pathology or any health science, who has three years' experience as a TO, but all of that experience was gained in non-pathology work, would not be capable of undertaking HS duties in a highly manual pathology laboratory performing complex testing.
3. As to whether the period of experience/employment duration referred to in the definition of "Requisite science qualification" and cl 3 needs to be "FTE equivalent", that is not clear from the terms of the Conversion Award. It seems to me that it a suitably qualified person who has only worked for the Employer for one day a week over six months, while being entitled to make a conversion request and being entitled to conversion, may not in fact have gained sufficient experience to be capable of performing HS duties. Whether this is in fact the case will depend on all the circumstances. For instance, if the person worked as a HS for twenty years in a similar laboratory prior to working for the Employer as a TO for six months, the fact they have worked for one day a week for the Employer for six months, would not point toward their request being refused.
4. As with other of the personal matters referred to in cl 19, to the extent the employee's work experience and duration of employment speak in favour of conversion, this will only be relevant to act as a counterweight against negative indicia or to distinguish an applicant from other contemporary applicants (if need be).

The staffing numbers and skills mix in the laboratory or area where the employee currently works - cl 19(h)

1. The matter listed in cl 19(h) was perhaps the source of most consternation on the part of the Respondent and her representatives. I apprehend this was because it was seen as a being used by the Employer to implement the policy or position the HSU considered the Employer had to the promotion of TOs to HSs prior to the implementation of the Conversion Award, that is, that historical ratios of TOs to HSs in a given laboratory were used to refuse promotion, regardless of the extent to which HS duties were performed by TOs in the laboratory or were required to be performed in a given laboratory. The HSU submitted that the reliance on "benchmarking" and "ratios" of staff, by the Employer to justify rejecting a conversion request to be arbitrary, lacking in rationality, and therefore unreasonable and unfair."[9]
2. The "Questions to consider" in the Framework with respect to cl 19(h) are as follows:

"○ How many HS positions are required within the laboratory in which the TO works?

○ How does the current staffing structure/numbers compare with the required/benchmarked structure/numbers?

○ Are there vacant HS positions within the laboratory?

○ How many other TOs are eligible/likely to request a conversion? What would this do [to] the ration of TO:SO and number of HS required within the laboratory?

○ How does any specialisation/skill mix of the TO align with the skill/specialisation needs/gaps in the laboratory they (sic) TO works?

○ How is supervision and support provides to the Technical Officer?"

1. As I explained at [96] and [97] above, I consider that cl 19(d) and cl 19(h) are directed toward a critical review of the work being performed in the applicant's laboratory or area, with the objective of ascertaining the extent of HS duties required to be performed in the laboratory, and the absence of HS duties will point against conversion, although a decision to actually refuse a conversion must be taken in light of all the circumstances. Clauses 19(d) and (h) are not a 'trump card' as such, although I can certainly envisage a case where it will be fair and reasonable for the Employer to refuse conversion solely on the basis that there are not sufficient HS duties for the applicant TO to perform, where there are no significant positive countervailing matters to indicate that, on balance, it would not be fair and reasonable to refuse the conversion request.
2. I can understand why the Respondent and the HSU were concerned that the "Questions to consider" indicated that the Employer was merely relying on pre-determined or historical benchmarks or ratios, instead of undertaking a critical review as to the actual number of HSs required to perform the HS duties in a given laboratory. The second and fourth questions in particular indicate this was the case.
3. Further, the evidence indicates that every letter sent by the IRP to the Transitional Committee explaining why it refused a conversion request either set out a table indicating the HS:TO ratio in the subject laboratory against other similar laboratories, from which a single "benchmark" figure was calculated; or referred to a "review of current staffing structures, ratios" being conducted, and then used that to determine that there "are no available Hospital Scientist duties" for the applicant.[10] On the face of it, it does suggest that existing ratios of classifications were being used to justify refusals, instead of the Employer undertaking an assessment of the actual amount of HS duties required to be performed so as to properly answer the first question posed in the Framework.
4. Dr Paulin gave the following evidence as to how the IRP actually went about the task of assessing the matter identified in cl 19(h):

"39. When assessing staffing numbers and skills mix in the laboratory or work area the IRP considered information about laboratory profile and Power Bl data, along with input of requirements within the laboratory from the Senior Operations Manager or Laboratory Manager. The laboratory profile refers to the nature of the laboratory/work area, volume of work, work performed, and equipment/technology used. It also includes information on the positions and staffing numbers within the laboratory such as Laboratory Manager, Senior Hospital Scientist, Hospital Scientist, Technical Officer and Technical Assistant.

40. This information provided a preliminary indication of whether there were Hospital Scientist duties available, based on the current staffing mix of Technical Officers and Hospital Scientists in the relevant laboratory/work environment.

41. In some early conversion request decisions of the IRP, the term 'ratio' was used. The ratio simply showed the ratio of Technical Officers to Hospital Scientists within a given laboratory, and how that compared with other similar laboratories.

42. The ratio is not reflective of actual skill mix of staff, duties available, budget or any pre-determined structure. NSWHP does not have any standard or benchmarked 'ratios' for its laboratories. It was rather one data point of staffing mix in a laboratory representing how many Hospital Scientists versus Technical Officers were currently in that laboratory. It helped inform consideration of laboratories of a similar size or complexity, enabled comparison across geographies and allowed the IRP to consider similarities and differences in staffing needs based on the specific nature of the laboratories.

43. This wasn't the sole data relied upon by the IRP in determining whether it was fair and reasonable to refuse a conversion request on the basis of clause 19(d) and (h).

44. The information the IRP had access to in respect of the staffing numbers, skills mix and nature of the work performed in the laboratory was broader than just the ratio, and included laboratory profiles, the PowerBI workforce data and dashboards, and local information provided by Senior Ops, HR and laboratory managers.

45. Given the sheer volume of conversion requests within the first month, and the timeframes for assessing and communicating conversion requests decisions, this data point was communicated in letters to applicant. However, it did not represent a full view of the depth of consideration given to whether the staffing numbers and skills mix indicated there were available Hospital Scientist duties within each laboratory."

1. Dr Paulin was cross examined quite extensively with respect to this evidence, in an endeavour to establish that the "ratios" or "benchmarks" has been used uncritically, to refuse conversion requests. These efforts were largely unsuccessful. For instance, Dr Paulin gave the following evidence in cross examination with respect to the letter sent by the IRP to the Transitional Committee with respect to Ms Keryakous:

"Q. In the last sentence it says, "The following table outlines the comparative SO to TO ratio for haematology laboratories at the time of review"; do you see that?

A. Yes. I think that was ‑ the haematology was an error, I believe.

Q. Do you see the word "benchmark" at the bottom of that table?

A. Yeah.

Q. Your evidence now was that benchmarking formed no part of the consideration. That's just not right, is it?

A. No, it's not. It wasn't in consideration. I think the benchmark is the way ‑ that's sort of the average, if you like. We didn't compare that, but that gave guidance around ‑ you can see there that Westmead was below and so they're one part of the decision making or information the IRP assessed is that if you just look across some comparative laboratories, we would expect that there are SO duties that would be available to be performed as one of the elements of the consideration of the IRP.

Q. Yes, but this is information that you've provided to the transitional committee and it squarely involves an indication that the IRP took into account a comparison of other laboratories and you arrived at a benchmark?

A. We didn't arrive at a benchmark.

Q. There's a benchmark figure there in that document, is there not?

A. No, I appreciate it, but I don't think that that was the intention or how it was utilised by the IRP."

1. It seems reasonable to me that if the ratio of HSs to TOs in a given laboratory is lower than the ratios of those positions in similar laboratories, it may indeed indicate that there are HS duties available to perform in the laboratory, and vice versa, but plainly this would only form one part of the critical inquiry that should occur when determining the extent of HS duties required to be undertaken in a given laboratory and hence the optimum number of HSs to be employed in a given laboratory.
2. I can see no difficulty in the approach to cl 19(h) that Dr Paulin outlined in her evidence. Whether that approach was in fact followed in a given case, and a true assessment made as the optimum numbers of HSs in a laboratory based on the HS duties to be performed in that laboratory, will depend on the evidence in that given case.

Resolution of the Issues in Dispute Identified by the Parties

1. Having outlined the principled approach to determining whether a refusal is or was, fair and reasonable, I return briefly to the issues in dispute as identified by the parties and particular submissions made by the parties.
2. The above discussion adequately addresses paragraph 2 and paragraph 3b of the JSI, at least at the level of principle. Whether it was fair and reasonable for the Employer to refuse Ms Kerykous' request for conversion and the relevance of event's post dating the Employer's refusal, are matters I address later in this decision.
3. Paragraph 3a of the JSI asks whether, in determining whether the Employer's refusal of a conversion request was fair and reasonable in all the circumstances for the purposes of clause 12 of the Conversion Award, it is relevant or permissible to have regard to certain matters. I address each of those matter in turn.

Whether the employee requesting conversion should have been classified as a Hospital Scientist under the HS Award - JSI 3ai

1. This was a submission squarely made in the Respondent's Outline of Submissions filed on 12 June 2025 (RS), hence the Notifier had included it as an issue in dispute in the JSI. The submission (and others which referred to the "industrial circumstances") was, sensibly, abandoned by the Respondent at hearing.[11]

Whether the work or duties performed by the employee requesting conversion are properly characterised as 'scientific' - JSI 3aii

1. I have addressed this issue at [95] and [96] above. Whether the work performed by a TO requesting conversion is "scientific work" is irrelevant to whether a refusal was fair and reasonable. Notions of what is, and what is not, scientific work is not helpful and as history has shown, apt to cause dispute. The real question is what are the HS duties (being duties a TO is not required to undertake and which are determined by the Employer from time to time) and are there sufficient HS duties in the laboratory or area in which the TO works for the TO to undertake such duties if they were converted. It is however, only one element of the fair and reasonable equation.

The comparative pay rates of first-year employees under different awards - JSI 3aiii

1. The Respondent submitted at RS [7], [9] - [10]:

"7. Further, the Scientific Officer classification to which Ms Keryakous seeks reclassification is a base level professional classification. Scientific Officer pay rate are comparable to those applicable to first year Registered Nurses, first year Exercise Physiologists, or first year Welfare Officers. As for the latter two classifications, the relevant award defines employees at Level 1 - Year 1 as "newly qualified employees" and "beginning practitioners who are developing their skills and competencies.

...

[9] Rejection based on being unable to currently perform the work described above is not fair or reasonable in light of the base level nature and pay rates associated with the Scientific Officer classification (which correlate to those applicable to "beginning practitioners who are developing their skills and competencies").

[10] The industrial circumstances weigh heavily in favour of Ms Keryakous's conversion and against a finding that the rejection of her request was fair and reasonable."

1. The Employer submitted at [10] of her Outline of Submissions in Reply (NRS):

"However, the fact that groups of employees under different awards are paid at similar rates to Scientific Officers is uninformative as to the level of skill or responsibility involved in the work of a Scientific Officer or the other indicia of the value of that work. The Respondents' argument is evocative of comparative wage justice reasoning, which the Commission treats with great caution. The HSU has not demonstrated any historical or other connection between the Scientific Officer classification and the other classifications referred to that would warrant appraising it by reference to them."

1. I agree with the Employer's submission, however this contention was ultimately abandoned by the Respondent at the hearing.[12]

An employee's lack of experience, skills or knowledge in circumstances where they have not have the opportunity to develop those through their work experience - JSI 3aiv

1. This issue is essentially the same issue identified by the Respondent in JSI 4b, namely: the extent to which cl 20 of the Conversion Award precludes the employer from relying on an employee's lack of experience in performing particular duties or lack of opportunity to gain particular competence.
2. I addressed this issue above in my discussion as to the matters identified in cll 19(a), (e), (f) and (g) and I do not propose to rehearse those matters again.
3. I would remark however, that the Respondent's written submissions on this point misrepresented what the Employer submitted. At RS [27] the Respondent stated that the Employer had submitted at NS [33] that "it is necessary for Ms Keryakous to be able to perform all of the duties it determines are required of Scientific Officers prior to converting to Scientific Officer." That is not what is said at NS [33] and it is not said anywhere in the NS or otherwise submitted by the Employer that this was the case. What the employer consistently, and I consider correctly, submitted, as made plain in NRS at [12] was:

"While the Employer cannot rely on an employee having not been offered or having not performed particular duties or not holding a competency because they have not had the opportunity to obtain it (clause 20), the Employer (and the Commission) can have regard to the employee's experience and skills, including as demonstrated by their performance, to assess their capability to perform the duties and obtain the competencies expected of a Hospital Scientist. That is the form of reasoning relied on by the Notifier in each case. If this reasoning were not permissible, subclauses 19(e) to (g) would effectively be nullified."

1. During argument I put to counsel for the Respondent that the correct approach to cl 20 could be compared to the situation I was in prior to my appointment as a Commissioner of the Industrial Relations Commission:

"Prior to coming here I'd never delivered a decision, but plainly someone thought that I had the necessary skills, qualification, training, to deliver a decision, but I'd never actually done it. It didn't count against me in the way that cl 20(a) counsels against saying, "If you've never delivered a decision, you can never be a Commissioner". Plainly that would be silly and, clearly, that's what cl 20(a) is directed toward, but you would expect someone to demonstrate something of their skills, knowledge, et cetera, which would indicate that they were capable of doing that."

1. That proposition was embraced enthusiastically by both counsel for the Respondent and the Employer. My only qualification to what I said during argument, following my careful consideration of the terms of the Conversion Award, is that in light of a qualifying TO's entitlement to conversion (a benefit I did not enjoy whilst still a barrister!) is that the Employer will need to establish, for a refusal to be fair and reasonable, that the qualifications, experience, skills, knowledge and performance of the TO applying for conversion indicate that they are incapable rather than capable, of undertaking the duties of a HS.

The sub-Issue identified by the Respondent - JSI 4a

1. The Respondent identified as "sub-issues" (to the primary issue in 2a of the JSI) "the relevance/weight of the various circumstances put forward by the parties in each case" and then listing a number of "circumstances".
2. This issue and many of the circumstances identified in JSI 4a are addressed in my discussion of the principled approach to determining whether a refusal of a conversion request is/was fair and reasonable in all the circumstances. Each conversion request will turn on its own facts.
3. There are a few "circumstances" identified by the Respondent in JSI 4a which I have not specifically addressed.
4. The Respondent queries the extent to which the use of automated machinery and the performance of manual work is relevant to the refusal of a conversion request. Mr Spence gave the following evidence in chief, in respect of Ms Keryakous's laboratory:

"Due to the automation in this laboratory (and chemistry laboratories generally), there are less duties for a Hospital Scientist to perform when compared to laboratories in other disciplines which are performing more manual, bespoke and/or complex testing."

1. Mr Spence was cross examined at some length as to his understanding of exactly what was involved in operating the so-called automated testing equipment used in Ms Keryakous's laboratory. He conceded that he did not know what kind of intervention might be required on the part of the person operating one of the machines that Ms Keryakous was responsible for operating, because he had never used it.[13]
2. Evidence was given by Mr Aaron Heagney, the Laboratory Manager of Clinical Chemistry at Westmead Hospital for NSWHP, being the person to whom Ms Keryakous directly reported. His evidence was led in reply to the Respondent's evidence. He gave evidence that:

"Due to the level of automation in the laboratory, it is common for a sample not to be touched after it is loaded onto the Roche analyser by a Technical Assistant or Technical Officer. The automation system is able to perform all aspects of sample testing, including: preparation steps such as centrifugation; sending the sample to all the analysers that it may need to be tested on that are on the automation system; providing portions of the samples for testing in other departments or on non- automated analysers within the laboratory; and, storage of the specimen in refrigerated storage units. This is all done within the Roche analyser which then completes the testing and generates results. The analyser automatically tests all tests that have been requested, and most results are directly sent back to the requesting doctor without further input or review by a member of the Chemistry Lab."

1. However, in cross-examination he accepted that alarms occur during automated testing which require employee intervention to resolve and that a level of skill or knowledge is necessary to resolve to resolve some of those matters.[14]
2. The Respondent tendered in evidence a document containing a log of the alarms which had gone off on one of the machines Ms Keryakous was usually responsible for, over a six-hour period. It indicated that some 400 or so alarms had gone off. Ms Keryakous gave evidence, about which she was cross examined at length, to the effect that each of the alarms required some degree of intervention. That was disputed by Mr Heagney, who maintained that only some of the alarms required intervention.
3. Evidence was given by Dr Louise Weinholt, Direction of Operations. Metropolitan Laboratory Services at NSWHP and an Employer member of the Transitional Committee. She gave the following evidence in cross examination:

"Q. What do you consider to be the effect on the staffing requirements if there is a highly automated laboratory?

A. A highly automated laboratory generally means less hands‑on with the samples. So the samples run through, you know, that very highly ‑ sort of high ‑ like, very, very large, high volume analysers. Often the results are auto validated. So the results go out and only abnormal results are then flagged for review or whether they need to be phoned through to a clinician. So specialised laboratories ‑ you know, so that's what I mean by "automated". Specialised testing tends to be more expertise is required and certainly not performed at all sites.

Q. What affect does that have on the staffing requirements?

A. So, generally speaking, those sites would generally have more technical officers. It depends on historic ratios, but where we have high levels of automation, there's less need for a specialised scientific role."[15]

1. The thrust of the Respondent's argument was the work Ms Keryakous was performing was skilled, scientific work, regardless that it involved the operation of highly automated equipment. It was also work performed in common with the HSs in the laboratory. This being the case, so the Respondent argued, it was not fair and reasonable for her to be refused conversion.
2. The flaw in this approach, as I have already discussed, is that it re-introduces the concept of what is, and what is not, scientific work and overlooks a proper analysis of what constitutes HS duties as determined by the Employer. This flawed approach was one that appears to be adopted by both Union and Employer members of the Transitional Committee alike, albeit that each side came to a different view - as they have throughout the long and tortured history of this dispute - as to what is, and what is not, scientific work. That this was the case is clear from Dr Weinholt's evidence in chief:

"There is a fundamental difference in what people, namely Ms Cunliffe and I, consider scientific duties. In my experience the HSU representatives on the TC always considered the duties discussed to be scientific whereas I did not share this view."

1. At the risk of repetition, whether the duties being performed by either the TO or the HS are "scientific" is not relevant under the Conversion Award. What is relevant is establishing what the Employer has determined to be HS duties (being duties that a TO is not required to perform, the primary evidence of which will be the role description) and whether, in light of those duties which the Employer is entitled to require the applicant for conversion to perform upon conversion, the Employer has established it is fair and reasonable for the conversion to be refused.
2. If operating an automated machine is a TO duty, it will not be a HS duty for the purposes of the Conversion Award, although HSs in the laboratory may also operate the machine. However, it may be that responding to certain issues arising from testing conducted on an automated machine is a HS duty, e.g. interpreting and verifying results obtained from the machine and troubleshooting and resolving issues arising in respect of the operation of the machine.
3. The Respondent queries the extent to which "support from colleagues" is relevant to the refusal of a conversion request. As already explained, an applicant for conversion who has submitted a valid conversion request, does not have to make a case in favour of conversion as they have a presumptive entitlement to conversion. Support from colleagues, particular senior colleagues, may operate however to offset any matter which indicates that the conversion request should be refused.
4. The Respondent queries the extent to which "safety" is relevant to the refusal of a conversion request. Mr Spence gave the following evidence in chief:

"There are multiple risks in converting somebody to a Hospital Scientist when they do not have the necessary skills, knowledge and experience:

a. It creates a risk for the organisation in that there might be significant errors that occur in testing or go out in reports, causing patient risk and loss of confidence in the work we do;

b. Incorrect results may lead to an incorrect diagnosis and have an adverse impact on a patient's treatment and overall prognosis; and

c. Errors resulting in adverse patient outcomes may result in litigation, such as a civil claim against the organisation or an inquest;

d. Errors can impact on the management of quality controls in day to day laboratory operations."

1. The Respondent argued that the change of classification from TO to HS does not oblige the Employer to allocate to the employee work they are not competent to perform. The Respondent's approach is predicated on the concept that TOs and HSs in a given laboratory (perhaps most laboratories) share many of the same duties. Therefore, the converted TO can continue to (safely) perform the same duties following conversion. I rejected this argument at [69] - [70] above. I agree with the following submission made by the Employer at NRS [35]:

"It is implicit in clause 3 of the Interim Award that the Employer is able to decide what the duties of a Hospital Scientist are. Therefore, it is entirely reasonable that if converted, an applicant can safely perform those duties. To be clear, the Notifier accepts that an appropriately skilled and experienced applicant cannot be barred from conversion if the capability issue is simply a matter of attaining some competencies. But, it is illogical to convert an applicant who does not have the requisite skills or experience to safely do the work they have agreed to do."

Was it Fair and Reasonable to Refuse Ms Keryakous's Conversion Request

1. Finally, I turn to the question of whether the refusal of Ms Keryakous's request for conversion was fair and reasonable.
2. The Employer tendered in evidence a "Statement of Agreed Facts" (SOAF) concerning Ms Keryakous's circumstances. That document provided as follows:

"1 Ms Keryakous is currently employed .as a Technical Officer working in the Chemistry Laboratory at Westmead Hospital (the Westmead Chem Lab).

2 Ms Keryakous has worked in this role since 2017.

3 Prior to this, Ms Keryakous was employed by the Employer as a:

a. Technical Officer at Westmead Hospital (Microbiology/Serology Department) between 8 November 2010 and 2017;

b. Laboratory Assistant between 8 April 2004 and 7 November 2010; and

c. Laboratory Aide between 6 February 1995 and 7 April 2004.

4 Ms Keryakous holds the following qualifications:

a. Diploma of Pathological Techniques 2002;

b. Bachelor of Medical Science 2010;

c. Master of Science 2011;

d. NATA Accreditation Certificate "The Art of Internal Audit" 2024; and

e. People Management Skills Certificate.

5 Westmead Pathology Department is a large referral GX Laboratory within Westmead Hospital. which is comprised of the following specialities: general pathology, anatomical pathology, haematology, chemistry, genomics, immunology, microbiology, genetics and transfusion. Westmead Hospital has 1000 beds and is the major tertiary hospital for western Sydney and a level 1 trauma centre. The Westmead Pathology Department is a central hub which supports 27 laboratories in the West, Rural and Regional Networks. The laboratory is as a major referral centre for specialised testing servicing NSW, interstate and overseas referrals.

6 The Westmead Chem Lab processes approximately 2500 specimens per day. It performs detailed biochemical tests on body fluids, including blood, urine, and cerebrospinal fluid. Chemical pathology testing underpins the care and management of many common conditions: high blood glucose levels, which may indicate diabetes, elevated troponin enzyme levels, suggesting a recent or ongoing heart attack and measuring proteins in cancer tumours to help determine the effectiveness of treatments. The laboratory also performs therapeutic drug monitoring and screening for illegal drug use.

7 The Westmead Chem Lab operates 24 hours per day, 7 days per week. The majority of the work is performed using Roche analysers forming part of an serum work area.

8 On 14 November 2024, Ms Keryakous made a conversion request in accordance with clause 3 of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award 2024 (the Interim Award).

9 At the time of the conversion request, the staffing mix in the Westmead Chem Lab was 1 FTE Senior Hospital Scientist, 5 FTE Hospital Scientists, 17 FTE Technical Officers and 1 FTE Senior Technical Officer.

10 The Conversion Request of Ms Keryakous was reviewed by an Internal Review Panel (IRP) convened by the Employer.

11 A decision was made to refuse the Conversion Request and notification made to Ms Keryakous accordingly on or around 10 December 2024.

12 A referral was made from Ms Keryakous to the Transitional Committee on or around 11 December 2024, to review the referral from the Employee and make a decision as to whether the refusal of the Conversion Request was fair and reasonable in all of the circumstances.

13 As per clause 11 of the Interim Award, a decision of the Transitional Committee is to be by majority.

14 Supplementary information provided by both the Employer and Ms Keryakous was provided to the Transitional Committee for their consideration in determining the conversion request.

15 The Transitional Committee was split and unable to make a decision by majority vote.

16 As per clause 14 of the Interim Award, in the event that the Transitional Committee does not make a decision within 1 calendar month of the Transitional Committee being required to convene under clause 10, 14 days after that date the Technical Officer will be deemed converted to Scientific Officer/Hospital Scientist effective the date of the request being made, unless the Employer notifies the matter to the Industrial Relations Commission or the Technical Officer withdraws their conversion request within that 14 day period.

17 Ms Keryakous did not withdraw the Conversion Request. As such, the Employer notified this dispute pursuant to clause 12 of the Interim Award.

18 The principal basis on which the Employer contends it is fair and reasonable to refuse the Conversion Request are:

a. The nature of the Westmead Chem Lab, and the nature and volume of work performed in the Westmead Chem Lab including duties performed by staff and technology and equipment used (clause 19 (d) of the Interim Award);

b. Ms Keryakous· knowledge, experience, skills, training, and other qualifications (clause 19(e)); and

c. The staffing numbers and skills mix in the Westmead Chem Lab (clause 19(h).

19 Ms Keryakous disputes that the refusal of the conversion request was fair and reasonable in all the circumstances.

20 The grounds upon which Ms Keryakous contends it was not fair and reasonable to refuse the Conversion Request are:

a. [this ground was withdrawn at the hearing],[16]

b. the particular nature of the qualifications held by Ms Keryakous and their relevance to her work (clause 19(a)),

c. staffing shortages and vacancies within Ms Keryakous's laboratory (clause 19(c)):

d. the complex and scientific nature of the work performed (clause 19(d)),

e. the overlap in the duties performed by Technical Officers and Hospital Scientists in Ms Keryakous's laboratory (clauses 19(d) and (h)), and

f. Ms Keryakous's experience, training, support from senior colleagues, and performance within pathology (clause 19(e) and 19(f)).

1. Let me say at the outset that I do not consider the matters identified at SOAF [20(d)] and [20(e)] to be relevant to the question of whether it was fair and reasonable for the Employer to reject Ms Keryakous's conversion request for the reasons I have canvassed at length above.
2. Consistent with the approach I outlined at [46] I propose to stand in the shoes of the Employer and determine the "correct or preferable" decision. Regrettably however, and despite the Employer urging me to conduct a merits review, it seems the Employer did not tender in evidence all of the material that was before the IRP when it made its decision. Rather, the Employer tendered in evidence, as an annexure to Dr Weinholt's statement, the bundle of material that was provided to the Transitional Committee with respect to Ms Keryakous's application. That material consisted of:

(1) Ms Keryakous's "Conversion Request Application Form" dated 12 November 2024 and copies of the documents evidencing Ms Keryakous's tertiary qualifications;

(2) A copy of a Position Description for a "Medical Laboratory Scientist" (this document was different to the Position Description annexed to Mr Spence's statement, but not in any substantial way);

(3) A copy of Ms Keryakous's resume;

(4) A letter of support dated 11 November 2024 from Dr Ashraf Mina;

(5) A letter dated 10 December 2024 to Ms Keryakous from Dr Paulin advising her request for refusal had been refused and the reasons for the refusal (Refusal Letter);

(6) a document headed "Interim Award Conversion Request Transitional Committee" containing a table with Ms Keryakous's name, the date and revised date the Committee's decision was due, the Reasons for Refusal and "Outcome";

(7) A letter from Dr Paulin to the Transitional Committee dated 16 January 2025 outlining why the IRP determined to refuse Ms Keryakous's application;

(8) An undated letter from Ms Keryakous to the Transitional Committee addressing the matters raised in the refusal letter she had received from Dr Paulin;

(9) Email correspondence between Ms Keryakous and the Employer regarding an extension of time, pursuant to cl 18 of the Conversion Award, for the Transitional Committee to reach its decision.

1. I have had regard to all of this material. I have also had regard to the evidence of Dr Paulin as to matters which the IRP considered when determining Ms Keryakous's request, and the evidence of Mr Spence, Mr Heagney and Ms Keryakous, regarding the work undertaken in the laboratory in which Ms Keryakous worked, the work Ms Keryakous did in that laboratory and the skills and knowledge demonstrated by Ms Keryakous in the performance of her work.
2. I have also had regard to a spreadsheet which the Respondent tendered in evidence[17] which I gather had been obtained by the Respondent from the Employer by way of an informal request and which set out information that was before the IRP in respect of three applicants for conversion, including Ms Keryakous (IRP Spreadsheet). The last two columns of that spreadsheet are of particular relevance. They contain the following information:

No Performance. Limited what shifts she is able to do. All children at school however picks and chooses shifts. Working on a TIRA.

1 - 3 could convert and still be able to offer SO duties. Competencies are up to date.

Wants to do more but is not at the stage of making decisions. Noting she is trying to upskill to be able to

The relevance of this information to my determination is discussed below.

Did Ms Keryakous satisfy the requirements of cl 3?

1. I am satisfied that Ms Keryakous made a valid conversion request, that is, she satisfactorily met all the requirements of cl 3 of the Conversion Award. The Employer raised no issue in the Refusal Letter or in Dr Paulin's letter to the Transitional Committee to indicate that Ms Keryakous had not met the requirements of cl 3 and in light of the evidence give by Dr Paulin to the effect that a request for conversion would only be referred to the IRP after it has been found to satisfy the cl 3 criteria by Ms Beveridge and Ms Thomson, it may be reasonably inferred that Ms Keryakous's application was "deemed to be complete" and she was "eligible to make the request".[18] In any event the evidence of Ms Keryakous's qualifications, years of tenure and her agreement to undertake HS duties, demonstrates that she met the requirements. Therefore, Ms Keryakous is entitled to be converted to a HS unless it is fair and reasonable in all the circumstances to refuse the conversion request.

1. The Employer raised no issue with respect to the matters identified in cll 19(a), (b), (c), (f) or (g) in the Refusal Letter or in Dr Paulin's letter to the Transitional Committee. However, Dr Paulin gave the following evidence in chief:

"Ms Keryakous also held qualifications that were assessed by Ms Thomson as not foundational in nature and not sufficiently related to the work of a Hospital Scientist in the Westmead Chem Lab."[19]

(1) Dr Paulin's evidence as to the process by which applications were first assessed by Ms Thomson (and Ms Beveridge) and "deemed" to be complete and valid before referral to the IRP;

(2) the lack of any reference whatsoever in the Refusal Letter or in Dr Paulin's letter to the Transitional Committee to indicate that the matter listed in cl 19(a) - the particular nature of the science qualification held by the employee - was a reason for Ms Keryakous's request being refused;

(3) the complete lack of any documentary material or other evidence to support this assertion; and

(4) the detailed evidence given by Ms Keryakous as to the relevant units of study she undertook as part of Bachelor of Medical Science and her Master of Science including:

(a) Human Metabolism and Disease;

(b) Proteins and Genes;

(c) Laboratory Quality Management;

(d) Public Health;

(e) Pathological Basis of Disease;

(f) Medical Chemistry;

(g) Principles of Chemistry;

(h) Cell Biology;

(i) Methods of Research (Masters);

(j) Perspectives of Sustainable Development (Masters)

(k) Advanced Analytic Techniques in Science (Masters).

1. There is a column in the IRP spreadsheet headed "Qualification Review". In respect of Ms Keryakous it simply says "D. Foundation subjects". These words may confirm that Ms Keryakous had the necessary "foundation subjects", rather than did not. The matter was not explored in cross examination.
2. In short, the evidence shows that none of those matters listed in cll 19(a), (b), (c), (f) or (g) indicate that Ms Keryakous's conversion request should be refused. However, the matters listed in cl 19(a), 19(f) - the performance of the employee; and cl 19(g) the employee's work experience and duration of employment - are matters which the evidence shows supported Ms Keryakous's conversion request. As such they provide a counterweight to any matter indicating her request should be refused. I will return to these matters below.

1. The first matter relied upon by the Employer to refuse Ms Keryakous's conversion is cl 19(d) - the nature of the laboratory or area worked, and the nature and volume of work performed where the employee currently works including duties performed by staff in the laboratory or area worked, technology and equipment used.
2. Dr Paulin's letters to Ms Keryakous and to the Transitional Committee explained that:

"To form the basis for the refusal, the Internal Review Panel considered the specific nature of the Chemistry Laboratory in Westmead, and the resulting roles, responsibilities and duties that are required to be performed to deliver pathology services in this laboratory. This included assessing the volume, complexity and mix of tests performed, the nature and volume of work performed in the laboratory, the level of automation in the laboratory and how that impacts the duties and responsibilities, and the technology and equipment available to support the delivery of the pathology services relevant to the Chemistry Laboratory in Westmead. The Internal Review Panel concluded the refusal to be fair and reasonable on the basis that the nature, complexity, mix and volume of testing performed in Ms Keryakous's laboratory, and the equipment, technology and/or automation in use within your laboratory are such that there are no available hospital scientist duties."

1. If this was indeed the approach adopted by the IRP it appears to be infected by the flawed reasoning I discussed at [144] - [145] above. While it may well be the case that the "nature, complexity, mix and volume of testing performed in Ms Keryakous's laboratory, and the equipment, technology and/or automation in use within [her] laboratory" means that there are no available HS duties available, those things to not themselves determine what is, and is not, HS duties. The position description for Medical Laboratory Scientist apparently included with Ms Kerykous' application (and the similar position description provided in evidence by Mr Spence), sets out what constitutes HS duties. Dr Paulin's letters give no indication that any consideration was given to the position description of a HS in Ms Keryakous' laboratory.
2. The approach of the IRP to the matter identified in cl 19(h) - the staffing numbers and skills mix in the laboratory or area in which the employee currently works, appears to be similarly flawed. The letter to Ms Keryakous stated:

"In addition, the Internal Review Panel considered the current and required staffing structure and skill mix for the Chemistry Laboratory in Westmead, and the resulting roles, responsibilities and duties that are available and required within the laboratory. This included a review of current staffing structures, ratios and staff numbers, vacancies and turnover, volume of conversion requests, specialisation and skill mix against needs within the laboratory, and how supervision, training and support is provided. A comparison across laboratories also informed the decision-making to ensure consistency and fairness across NSW Health Pathology laboratories. The Internal Review Panel concluded the refusal to be fair and reasonable on the basis that the laboratory you currently work in, currently has the appropriate skill mix for the work that needs to be performed for the provision of services and is currently structured and/or staffed such that there are no available Hospital Scientist duties."

"As there are insufficient Hospital Scientist duties to be allocated to you based on the staffing numbers, skill mix and nature of work performed in your laboratory, your conversion request cannot be supported at this time. The Internal Review Panel also considered the specific and increasing complexity and significance of the duties, roles and responsibilities undertaken by Hospital Scientists in the delivery of pathology services relevant to the Chemistry laboratory and/or area which you work and would encourage your continued development and training to reach the next stage of your career."

1. If indeed there were insufficient HS duties to be allocated to Ms Keryakous, this would point to the request being refused, however it is not determinative of the matter. It must be weighed up against any matter indicating Ms Keryakous's should be converted. There is no indication in the letter, or in the letter to the Transitional Committee, that this balancing exercise occurred. Rather, as the Respondent submitted, the absence of HS duties appears to have operated as a 'trump card', justifying the refusal of a request.
2. Dr Paulin gave some evidence that a balancing exercise did take place, with with the IRP effectively determining, contrary to Ms Keryakous's position, that there were no counterbalancing factors, however as Dr Paulin's specific recollection of the assessment of Ms Keryakous's conversion request was generally very poor, (for good reason given the number of requests), I have my doubts whether this balancing exercise actually occurred at the time the IRP made its decision. Whether it did or did not is now not important: the question is, was there in fact, insufficient HS duties to be allocated to Ms Keryakous, and if so, was that a fair and reasonable reason to refuse Ms Keryakous's request?
3. Dr Paulin's letter to the Transitional Committee contained the following additional information relevant to cll 19(d) and (h), which was not conveyed to Ms Keryakous in the Refusal Letter:

"3. When comparing staffing structure and skill mix, the Internal Review Panel considered other comparable chemistry laboratories within like referral GX Laboratories such as John Hunter Hospital, Liverpool, Randwick, Royal North Shore, and Royal Prince Alfred. Chemistry laboratories are continuing to be highly automated, and as such there are structural reviews of staffing mix and levels underway, with some laboratories being historically resourced. The following table outlines the comparative SO:TO ratio for chemistry laboratories at the time of review:

At the time of the conversion request assessment, the Westmead Chemistry laboratory employed 27.7FTE. The ratio of Hospital Scientists to Technical Officers is below benchmarked levels at 0.4. The laboratory SO/TO staffing mix is 7FTE Hospital Scientists, and 16FTE Technical Officers.

4. At the time of the conversion request assessment, there were eight eligible Hospital Scientist Conversion Request Applications submitted. Of these eight the Internal Review Panel supported one application, as it was determined based on the needs of the laboratory that there were sufficient hospital scientist duties that could be allocate to and the supported technical officer was based on NSWHP's assessment of who had demonstrated they had the knowledge, experience, skills, and training to safely perform the increasingly complex duties and responsibilities of a hospital scientist within the laboratory. The remaining seven applicants were either still undertaking training, had documented performance concerns, and/or required further development to be able to fully perform the roles, responsibilities, and duties of a hospital scientist."

1. As I stated at [119] above, it seems reasonable to me that if the ratio of HSs to TOs in a given laboratory is lower than the ratios of those positions in similar laboratories, it may indeed indicate that there are HS duties available to perform in the laboratory. The evidence in this respect indicated that there was scope for as many as 4.5 more HSs at the Westmead chemistry laboratory, to meet a "Benchmark" of 1 (11.5:11.5). Even if Liverpool was used as the comparator, being the laboratory with the next lowest ratio of 0.6, this would permit at least 2 more HSs, not one as indicated in Dr Paulin's letter.
2. As I set out at [118] above, Dr Paulin's evidence was the "Benchmark" was "sort of the average" of the similar laboratories. An average of the above identified laboratories provides a "Benchmark" of 1.9. It is entirely unclear how the "Benchmark" of "0.6 - 1" has been arrived at. If a "Benchmark" of 1.9 were applied, the Westmead Chemistry laboratory could have converted 8 TOs to HSs (15:8).
3. Concerningly, the information contained in paragraph 4 of Dr Paulin's letter to the Transitional Committee was not correct. Dr Paulin gave evidence in chief that at the time of the review of the conversion by the IRP there were five conversion requests, not eight (a further four were received after 20 November 2024)[20] and she accepted in cross examination that at the time Ms Keryakous's conversion request was considered (20 November 2024) four of those requests were accepted, not one.[21]
4. As I explained at [81], a particular issue of fairness arises when a number of TOs from the same laboratory apply at the same time, to be converted to TOs. If, it is determined that there are insufficient HS duties available for all the applicants to be converted to HS, to ensure fairness between the applicants the matters listed in cl 19 which are personal to the applicants may be used to differentiate between applicants. In this event, care needs to be taken that any such comparisons are fairly and appropriately made. I will return to this issue below.
5. As noted above, the IRP Spreadsheet indicated that Mr Heagney had reported to the IRP that "1 - 3 could convert and still be able to offer SO duties ... Current SO role being advertised."
6. Mr Heagney gave no direct evidence as to extent of HS duties available in his laboratory or the number of HSs he considered were necessary to perform those duties. Mr Spence gave no evidence as to this effect either.
7. Taking the information contained in the IRP Spreadsheet at face value, it seems that the laboratory in which Ms Keryakous worked was capable of supporting at least four more HSs - that is, an anticipated three through conversion and one through recruitment. Mr Spence gave evidence that there was a vacant HS position within the laboratory which was advertised on 14 November 2024. I do find it curious that the Employer would be advertising for new employees at a time when it was dealing with conversion requests under the Conversion Award, but I note that cl 31 permits this to occur.
8. As things transpired, four TOs were converted, and a further HS was hired. It seems clear therefore that the advice of Mr Heagney to the IRP as to the number of TOs that could be converted and successfully offered HS duties was not determinative of whether a request was refused in respect of all the TOs who applied from Ms Keryakous's laboratory.
9. The Respondent tendered a further piece of evidence that pointed to a need for more HSs in Ms Keryakous's laboratory. The Respondent tendered the Laboratory Manager's Report for November 2024.[22] That document indicated that HS work was significantly backlogged and the workload was "unrealistic". It contained the following statement: "Tasks will begin to be delegated to other scientific staff in 2025 once other tasks are back in control and additional scientists are recruited." Mr Heagney agreed in cross examination that one of the biggest concerns he had at the time was staff shortages.[23]
10. Based on the material available to me I conclude that at the time Ms Keryakous made her application for conversion there was sufficient HS duties to support at least a further four HSs, however in light of the guide provided by the 'Benchmark' table; the information contained in the Laboratory Manager's Report, and the absence of any evidence from Mr Heagney as to how he determined, by reference to the described duties of a HS in his laboratory that "1 - 3 could convert and still be able to offer SO duties", or that if Ms Keryakous had have been converted along with the four that were converted and the one that was hired, there would not have been sufficient HS duties to be performed by all of them, I do not consider that the matters listed in cll 19 (h) and (h) point against conversion. To the extent they do, I would not afford much weight to them for these reasons, with the result that they would be outweighed by the matters pointing in favour of Ms Keryakous's conversion, being matters referred to in cll 19(a), (f) and (g), as are discussed below.

1. While the Refusal Letter noted that the IRP's decision to refuse the conversion request was based on cl 19(e) (as well as cll 19(d) and (h)), the only explanation about the IRP's findings relevant to this matter in the Refual Letter was as follows:

"The Internal Review Panel also considered the specific and increasing complexity and significance of the duties, roles and responsibilities undertaken by Hospital Scientists in the delivery of pathology services relevant to the Chemistry laboratory and/or area which you work and would encourage your continued development and training to reach the next stage of your career."

1. Dr Paulin's letter to the Transitional Committee went further and stated:

"To form the basis for the refusal, the Internal Review Panel considered the specific and increasing complexity and significance of the duties, roles and responsibilities undertaken by Hospital Scientists in the delivery of pathology services relevant to the laboratory and/or area which the Technical Officer works. The Internal Review Panel concluded the refusal to be fair and reasonable on the basis that Ms Keryakous's knowledge, experience, skills and/or training require further development to be able to fully perform the roles, responsibilities, and duties of a hospital scientist within the Westmead Chemistry laboratory.

...

... the Internal Review Panel determines Ms Keryakous's required further development of her knowledge, experience, skills and/or training to be able to fully perform the roles, responsibilities, and duties of a hospital scientist within the Westmead Chemistry laboratory."

1. Dr Paulin gave the following evidence in chief going to the matter raised by cl 19(e):

"Prior to the IRP, Ms Beveridge sought further information from Mr Aaron Heagney on behalf of the IRP. The following information was obtained and considered: Whilst there were no performance issues at the time of the conversion request, Ms Keryakous had limited availability for work. Over time, this substantially impacted the duties and training able to be undertaken. There were high number of anticipated conversion requests within the Westmead Chem Lab and with clear delineation of duties across the Technical Officer and Hospital Scientist roles within the Westmead Chem Lab, there would only be so many Hospital Scientist duties available to be allocated and thus conversion requests that could be supported within the lab.

...

Despite her tenure, Ms Keryakous had limited exposure to and performance of Technical Officer duties (sic?). Ms Keryakous also held qualifications that were assessed by Ms Thomson as not foundational in nature and not sufficiently related to the work of a Hospital Scientist in the Westmead Chem Lab. Combined with limited availability, despite her tenure, Ms Keryakous's experience, skills, training and qualifications when compared to her peers who also submitted conversion requests within the Westmead Chem Lab made her less suitable for the available Hospital Scientist duties/positions."[24]

1. There is much to be said about this evidence. First, this evidence indicates that a comparison was indeed undertaken between the contemporary applicants, however no information has been provided as to the circumstances pertaining to those other applicants and Ms Keryakous was not informed that she had been judged to be "less suitable" than other applicants and if so, why.
2. Second, as I have already discussed, there is no evidence to support a view that Ms Keryakous' qualifications were not sufficiently related to the work of a HS in the Westmead Chem Lab. On the contrary, she holds a Masters of Science which included subjects directly relevant to the work of a HS including Advanced Analytic Techniques in Science which, according to Ms Keryakous's evidence provided her with "in-depth knowledge of advanced techniques used in laboratory analysis, such as mass spectrometry, chromatography, and other automated analytical methods."[25]
3. Third, this evidence indicates that Ms Keryakous's alleged "limited availability" and its apparent impact on the "duties and training able to be undertaken" was a factor in the IRP refusing her conversion request, however the evidence is that Ms Keryakous worked full time hours and was simply working on a TIRA (Temporary Individual Roster Arrangement) because she had a young child. This arrangement meant she did not work late afternoons or night shifts, however this did not affect her training as training is available during in normal business hours.[26] The TIRA was due to come to an end in June 2025.[27]
4. As noted above, the IRP spreadsheet contains the notation in the "Manager Discussion" column: "Limited what shifts she is able to do. All children at school however picks and choses shifts. Working on a TIRA." Notably Mr Heagney, Ms Keryakous's manager, who only gave evidence in reply, gave no direct evidence to support this notation, nor did Mr Spence.
5. Dr Paulin was cross examined about her evidence in respect of Ms Keryakous's "limited availability". Her evidence in cross examination cannot be reconciled with her evidence in chief:

Q. You said that you were unaware if Ms Beveridge was asked to go about back to Mr Heagney. How did you satisfy yourself that the limited availability for work was not related to the grounds for applying for the TIRA?

A. Because I'm confident we didn't make a decision to refuse based on limited availability for work.

Q. Why did you include this in your affidavit?

A. I was providing information to the information provided to the IRP.

Q. You're saying here that over time it substantially impacted on the duties and training able to be undertaken. Surely that was a matter that directly affected her ability to upskill and achieve competencies, correct, which is one of the grounds that you relied upon?

A. Yes, but not in relation to the TIRA.

Q. It doesn't mention the TIRA. What I'm putting to you is that the reason why I'm putting to you that there was a limited availability for work is because she was on an individual rostering arrangement. That was the reason. Are you aware of that?

A. I think there were two ‑ I don't recall the details. I do ‑ that there were two factors considered. One was around the TIRA wouldn't have been considered as a fair and reasonable refusal. The skills and capability of the employee would have been considered.

Q. The skills and capability, it states in paragraph 78, that that became an issue because of a limited availability for work; correct?

A. I don't think there's a ‑ I'm not sure about the causal link there, no.

Q. They're in consecutive sentences.

A. Yes.

Q. Over time this substantially impacted on the duties and training available to be judged taken. Do you accept that there's a causal link there?

A. No.

Q. It says it.

A. Into the TIRA. I'm talking about, so Ms‑‑

Q. I'm not talking about the TIRA.

A. Okay.

Q. If you listen to my question. The fact that she had limited availability for work over time was directly related to her inability to undertake training and duties which was a factor relied upon by the IRP; correct?

A. Yes.

Q. Her limited availability to work over time, I'm putting to you, was related to the fact that she was discharging parental responsibilities and was on a TIRA. I'm putting that to you.

A. No, I ‑ the IRP didn't consider the TIRA as reasons for refusal.

Q. Did you know about the TIRA?

A. Yes, we knew about the TIRA.

Q. Did you interrogate either Ms Beveridge or Mr Heagney, the manager, as to why there was a limited availability for work?

A. Yes.

Q. What was the reason?

A. In terms of ‑ in terms of the limited availability for work, talked about the duties performed, the training and competencies gained to ‑ we assess that against competency and ability to perform the hospital scientist duties.

Q. I'm asking you a very specific question: what to your knowledge was the limited availability for work? What was it?

A. I don't recall today, no.

Q. What I'm putting to you is that it was the fact that Mr Keryakous was not available to do night‑shift or afternoon shifts because of the TIRA. I'm putting that to you.

A. And I'm saying I don't know.

Q. Are you aware that one of the people who were promoted within Ms Keryakous's lab was a person, a person who was converted, was only working at the time two days a week; in other words, a part‑time employee who had limited availability for work?

A. And that's why I say limited availability was never a sole reason for refusing a conversion request.

Q. My question is simple: are you aware that one of the people who was promoted was working two days a week?

A. Yes."[28]

1. I do not accept that Ms Keryakous's working arrangements had any effect on her experience, skills, or training such as to point against her conversion request being refused.
2. The only other evidence that I have of what was before the IRP regarding Ms Keryakous's experience, skills, training and qualifications which point in favour of refusal is the notation in the IRP spreadsheet that Ms Keryakous: "Wants to do more but is not at the stage of making decisions. Noting she is trying to upskill to be able to."
3. Mr Heagney gave no direct evidence regarding this remark and was not cross examined in relation to it.
4. The evidence established that at the time Mr Heagney provided his remarks to the IRP (via Ms Beveridge), he had only been the manager of the Westmead Chemistry Laboratory for around six weeks. Prior to that he was working in the private sector. In response to a question from me, Mr Heagney explained that the information he provided to the IRP was based on his own observations and the records he could find or had access to.[29]
5. As noted above, the IRP was provided with a letter from Dr Ashraf Mina dated 11 November 2024. Dr Mina is a Principal Scientist with NSWHP, in the Drug Toxicology Uni at Macquarie Hospital. He had been a supervisor of Ms Keryakous some years previous, the evidence is not clear exactly how many years previous, but it may have been around seven. It is fair to say that Dr Mina's letter is a glowing endorsement of Ms Keryakous, contradicts any suggestion that Ms Keryakous was "not at the stage of making decisions" and importantly, strongly indicates that she had the skills to undertake HS duties as they are described in the HS Position Descriptions tendered in evidence. The letter includes the following:

"I am writing to offer my strong support for Evonne Keryakous, who has demonstrated exceptional skill and dedication in her role in ICPMR, CIDMLS. Throughout her time with me, Evonne has been instrumental in training and mentoring staff, ensuring they are well-equipped to carry out a variety of diagnostic tests accurately and efficiently. Her leadership and expertise in this area have been invaluable.

Evonne's commitment to excellence is particularly evident in her role as a primary trainer for several key immunology and serology tests. She has been responsible for training all levels of staff members to perform the following tests with precision and confidence: Hepatitis A lgM, Hepatitis B Surface Antigen, Hepatitis B Confirmatory Tests, EBV lgG, EBV lgM, Hepatitis B Core lgM, Syphilis, HIV Ag/Ab, Rubella lgG, and Rubella lgM.

Evonne's ability to explain complex procedures in a clear, accessible manner has helped ensure that the staff are not only proficient in performing these tests but also understand their clinical significance. She has successfully tailored her training methods to the varied learning styles of the team, creating an environment where staff feel supported and empowered to ask questions and seek clarification when needed.

...

Evonne's contributions extend beyond just training; she has also been a consistent source of support and guidance for the team, offering assistance with troubleshooting and problem-solving when challenges arise. Her collaborative approach has fostered a positive and cohesive work environment, and her professionalism and expertise are highly valued by her colleagues.

In conclusion, I wholeheartedly recommend Evonne for any future opportunities, as her skills, dedication, and leadership are invaluable assets to any organization. She has proven herself to be a highly competent and dependable professional, and I am confident that she will continue to excel in her career."

1. Dr Paulin was asked about Dr Mina's letter and gave the following evidence:

Q. The point is you never sought to interrogate Dr Mina about what he meant there, did you?

A. We interrogated current management. Dr Mina hasn't worked ‑ it was over seven years since Dr Mina had worked within that laboratory, and so we took the information provided under consideration, but, no, we didn't call Dr Mina as we spoke to current supervision."

1. As noted above the current supervisor was Mr Heagney, who had only observed Ms Keryakous for six weeks. In the circumstances I do not consider it fair and reasonable for the IRP to have preferred Mr Heagney's information over that provided by Dr Mina, a more senior scientist, in circumstances where Mr Heagney had only observed Ms Keryakous for six weeks. At the very least, further inquiries ought to have been made in light of the patently contradictory information.
2. Standing in the shoes of the Employer, and noting the Employer's acceptance that the Commission may consider material that was not before the original decision maker "to the extent they cast light on the facts and circumstances that existed at the date of the Employer's refusal" I have considered both the evidence Ms Keryakous gave as to the nature and quality of the work she has been performing, but also the two additional letters of support that were annexed to her statement, which were obtained after her conversion request had been refused.
3. The first was from Ms Tiziana Albornoz who had been Ms Keryakous's supervisor for four years up until Mr Heagney had assumed the role. Ms Albornoz's letter, like Dr Mina's, contradicted the suggestion that Ms Keryakous was "not at the stage of making decisions" and also indicated that Ms Keryakous has the experience, skills, training and qualifications, to undertake HS duties as they are described in the HS Position Descriptions. Her letter, dated 12 March 2025, reads as follows:

"To whom it may concern,

I would like to express my support for Evonne Keryakous, who is currently a technical officer at Westmead Hospital in the Clinical Chemistry department, to be upgraded to a Scientific officer.

I worked with Evonne for over 4 years in my role as 2IC of Clinical Chemistry. Throughout this time, she consistently demonstrated exceptional competence in her role and went beyond her core responsibilities to contribute meaningfully to the department.

Evonne played a key role in the project team rollout for 24-hour serology testing within the core chemistry lab. In addition to assisting with implementation, she was responsible for training chemistry staff in both the operation and interpretation of serology assays.

Her expertise extends to participating in manual testing in the endocrinology section which included manual testing including RIA.

In recent years, she had shown a strong commitment to quality control (QC) and quality assurance programs (QAP), developing advanced skills in both areas. She had also gained competency in operating and troubleshooting blood gas analysers, and I understand has recently become a Superuser and trainer.

Evonne's dedication to professional growth is evident in her completion of the NATA auditing course, after which she has actively conducted audits within the organisation. She possesses advanced skills in QC monitoring and troubleshooting, ensuring the effective management and investigation of outliers. She has also played a key role in running QAP, evaluating result validity, and addressing any discrepancies.

Beyond her technical expertise, Evonne exemplifies a responsible, proactive, and mature approach to her work, coupled with outstanding leadership skills."

1. The second letter of support was given by Conjoint Associate Professor Stephen Li, Director, Core Pathology & Clinical Chemistry and Director, Westmead Hospital Lipid Clinic. Associate Professor Li is an extremely senior pathologist whose opinion plainly must carry considerable weight. As his letter explains he is a supervisor of Ms Keryakous. Although the evidence did not explain how long he had been her supervisor, it seems clear it has been considerably longer than six weeks. Ms Keryakous explained that she would see Associate Professor Li everyday, but would only go to him with a question once or month so. Associate Professor Li's letter, dated 12 March 2025, reads as follows:

"I am pleased to provide this reference for Ms. Evonne Keryakous, who has worked under my supervision as a member of the laboratory team at Westmead Hospital. As the Director of Chemical Pathology, I have had the privilege of observing Evonne's exceptional skills, dedication, and contributions to the field of Clinical Chemistry over the years. With more than 30 years of experience at ICPMR, including the past 8 years specializing in Clinical Chemistry, Evonne has consistently demonstrated technical proficiency, leadership, and a strong commitment to scientific excellence.

Evonne has played an integral role in the success of the laboratory, contributing to various key areas of scientific responsibility. Among her many achievements, she has:

• Conducted routine and specialized laboratory testing, including biochemical, immunological, and endocrinological manual assays, always maintaining a high level of accuracy and efficiency.

• Led the transition of serology 24-hour hepatitis testing to the chemistry department, which significantly enhanced testing efficiency and accuracy while optimizing workflow and ensuring high patient care standards.

• Trained and mentored staff, fostering the professional development of laboratory personnel in accordance with NATA (National Association of Testing Authorities) guidelines, ensuring the maintenance of high standards of practice.

• Audited laboratories in line with NATA standards, ensuring compliance with regulatory requirements and laboratory best practices.

• Prepared and analyzed samples, consistently ensuring precision and adherence to quality control protocols.

• Maintained quality assurance and regulatory compliance, upholding strict protocols to ensure the laboratory's continued accreditation and compliance with RCPA QAP (Royal College of Pathologists of Australasia Quality Assurance Program).

• Managed instrument operation, maintenance, and troubleshooting, ensuring that laboratory equipment remained at peak performance.

• Provided data analysis and reporting, offering key insights to support clinical decision-making and contribute to research initiatives.

• Ensured quality control (QC) and quality assessment (QAP) from submission to review, ensuring full compliance with accreditation standards and regulatory requirements.

• Collaborated and worked effectively as part of the team, contributing to laboratory operations and implementing process improvements.

In addition to her extensive scientific and leadership experience, Evonne holds a Master of Science degree and is preparing to sit for the AACB exams to become a member of the Australasian Association of Clinical Biochemists.

I have no hesitation in strongly recommending Evonne for any future professional opportunities, and I am confident she will continue to excel as a Scientific Officer. She is a highly valued member of our team, and I have the utmost confidence in her abilities. Should you require any further information, please do not hesitate to contact me."

1. On any view Associate Professor Li's letter contradicts the suggestion that Ms Keryakous was "not at the stage of making decisions" and expressly indicates that Ms Keryakous has the experience, skills, training and qualifications to undertake HS duties as they are described in the HS Position Descriptions.
2. It is the case neither Ms Albornoz nor Associate Professor Li gave a statement in the proceedings, and hence their opinions could not be tested by the Employer. However, there was no suggestion by the Employer that the letters were not genuine expressions of the referee's opinions, and it seems to me they carry as much weight - indeed far more weight, given the level of detail provided and the length of time each referee had observed Ms Keryakous - than the hearsay evidence of Mr Heagney's opinion that Ms Keryakous was "not of the stage of making decisions". I accept that Associate Professor Li may not observe Ms Keryakous's on a day-to-day basis as closely as Mr Heagney might, however the unqualified views of such a senior clinician cannot be readily discounted.
3. Significantly, Dr Weinholt gave evidence that if she had seen Ms Albornoz's and Associate Professor Li's letters "she would have referred the application back to the IRP for a revised assessment."[30]
4. In support of its conclusion with respect to the matter identified in cl 19(e) the Employer relied on evidence given by Mr Spence. Mr Spence gave evidence in chief at length regarding Ms Keryakous' experience, skills, training and qualifications, which concluded with the opinion that "Ms Keryakous' skills, knowledge and experience were not sufficiently developed for her to be able to perform the role of a Hospital Scientist, despite length of tenure".[31]
5. For the reasons set out in the following paragraphs I do not accept Mr Spence's opinion.
6. First, Mr Spence does not directly supervise or work with Ms Keryakous.[32] Mr Spence's opinions and statements of facts were based on what Mr Heagney told him[33]; and what Professor Linda Houston told him, when he was preparing his evidence in reply, as to how Ms Keryakous came to work in the Chemistry Laboratory.[34] Mr Heagney had only observed Ms Keryakous at work for six weeks. Mr Spence stated he had observed Ms Keryakous doing automated work, but he was in no position to deny that she also performed manual certification work.[35] Mr Spence accepted in cross examination that his assessment that "Ms keryakous' experience and skills are not commensurate with those of a Hospital Scientist in the Westmead Chemistry Lab, despite her academic qualifications", was wholly formed from information obtained from other people and not from direct observation.[36]
7. Second, Mr Spence's opinion (to the extent it was his own and not Mr Heagney's) was based on facts with which Ms Keryakous took issue, including:

(1) Mr Spence stated that Ms Keryakous "is not trained in 17-hydroxyprogestreron nor does she operate the Diasorin XL analyser - which are specialised assays"; Ms Keryakous gave evidence that is she trained in these procedures and has performed these tests, however she could not locate the paperwork as she was "signed off" back in 2018 and she accepted that it has been some time since she performed the tests;

(2) Mr Spence stated that Ms Keryakous did not perform "second pass review" quality control "as she does not have the skills to do so"; Mr Keryakous gave evidence that she is "part of the Royal College of Pathologists Royal College of Pathologists of Australia Quality Assurance Program and have collaborated with scientists in [the] department to troubleshoot QC issues and have recommended corrective actions as part of the quality assurance programme in the laboratory.";

(3) according to Ms Keryakous, Mr Spence gave an incomplete list of her duties;

(4) Mr Spence stated that Ms Keryakous does not have "broad experience, that would allow her to perform the duties of a Hospital Scientist"; Ms Keryakous stated: "I have extensive experience covering nearly all of the laboratories at Westmead and have developed many transferable skills along the way. Over the years I have continually adapted to new technologies, automation of systems, and changing protocols demonstrating versatility and commitment to professional development.";

(5) Mr Spence stated that "Ms Keryakous' skills and experience are limited to the basic operations of a Chemistry laboratory. The tasks she performs are confined to largely automated processes defined by SOPs."; this was disputed by Ms Keryakous (and not borne out by the letters provided by Dr Mina, Ms Albornoz and Associate Professor Li);

(6) Mr Spence stated: "Ms Keryakous is not considered as a 'go-to' person for staff to come to with questions, or to train others on particular tasks. Conversely, Ms Keryakous is someone who is more likely to require support from other members of staff, or go to others with questions. Training is a duty of a Hospital Scientist, which Ms Keryakous does not regularly perform, if at all, as she does not possess the skills required"; Ms Keryakous stated: "I have been the go-to person for staff to come to particularly when I came from Serology to Core Chemistry. I did a significant amount of training of other staff at that time. ... Currently seniors and Scientific Officers will still come to me with queries about serology especially in the absence of other serology staff." (I note that Dr Mina in particular praised Ms Keryakous's efforts in training and mentoring staff);

(7) Mr Spence gave evidence of Ms Keryakous being slow to complete an internal audit, however the evidence established that she had not been alerted to the fact she had been allocated this task, but upon becoming aware of it, successfully completed it in time for NATA inspection.

1. I prefer the evidence of Ms Keryakous, who presented as a passionate, dedicated, knowledgeable and skilled employee. She became visibly upset when cross examined about Mr Heagney's remark to Mr Spence that she was not a "go-to person" in the laboratory. She was loath to be critical of her superiors. I have no reason to doubt that Ms Keryakous gave her evidence honestly. Moreover, her evidence was entirely consistent with the references given by Dr Mina, Ms Albornoz and Associate Professor Li and with the record of employment which showed that Ms Keryakous has worked in a number of different laboratories.
2. Mr Spence on the other hand demonstrated in cross examination that he had little to no knowledge of Ms Keryakous personally; had never used the machine in relation to which the alarm log report had been produced on which Ms Keryakous worked, and so did not know what was involved in operating the machine; and accepted that he had no reason to "cavil with or question the views of" Dr Mina, Ms Albornoz and Associate Professor Li, (which it seems he did not see until after Ms Keryakous's conversion request was refused), or what they had set out in their letters as to Ms Keryakous's experience and competencies.[37]
3. As much of the factual basis for Mr Spence's opinion falls away, I place no weight on the opinions expressed by Mr Spence.
4. In the circumstances I do not consider that the matter set out in cl 19(e) points against Ms Keryakous's conversion request being refused.

Conclusion regarding Ms Keryakous's conversion refusal

1. There are no matters listed in cl 19 that indicate that Ms Keryakous' conversion should be refused. As such I conclude that the Employer's refusal of Ms Keryakous's conversion request was not fair and reasonable in the circumstances. Even if the matters listed in cll 19(d) and (h) indicate that there were not sufficient HS duties to convert Ms Keryakous, along with four other TOs at the same time, for the reasons I outlined at [178], this matter is outweighed by the matters weighing in Ms Keryakous' favour, including her long experience working in NSWHP without any performance issues, her post graduate qualifications and the matters identified by Dr Mina, Ms Albornoz and Associate Professor Li.
2. While it is not necessary for me make any findings in respect of this matter, I am concerned that that Ms Keryakous was not treated fairly in the conversion process, in circumstances where there were five contemporaneous applications for conversion including Ms Keryakous. No information as to the qualities of the four TOs whose requests for conversion were not refused was tendered by the Respondent in evidence, despite Dr Paulin's evidence that an assessment had been made that Ms Keryakous was "less suitable" when "compared to her peers." The only information I have about the other four is evidence given by Ms Keryakous to the effect that "one person who was converted works only two days per week"[38], and evidence of her manager, Mr Heagney that this person works three days per week;[39] and evidence of Ms Keryakous that one of the persons converted has the same degree from the same university as her.[40]
3. Dr Paulin's evidence that Ms Keryakous's "limited" availability" had adversely impacted her duties and training; and her qualifications were assessed as "not foundational" and "not sufficiently related to the work of a Hospital Scientist in the Westmead Chem Lab" gives a hint that Ms Keryakous was unfairly and inappropriate compared with the other contemporary applicants.
4. I reiterate the remarks I made at [81] above.

(1) Pursuant to s 136(1)(b) of the Industrial Relations Act 1996 and clause 21 of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award, Schedule A of that Award is varied so as to include:

(a) as an employee determined to be a Hospital Scientist, Evonne Keryakous;

(b) the date of this decision.

(2) The proceedings are otherwise dismissed.

[1] The Secretary of the Ministry of Health is defined in the Dictionary to the Health Services Act 1997 (NSW) as "Health Secretary". Pursuant to s 116 of the Health Services Act the Health Secretary may exercise the employer functions of the Government of New South Wales in relation to staff employed in the NSW Health Service. Pursuant to s 116H(1) of the Health Services Act the Health Secretary is, for the purposes of any proceedings relating to a member of the NSW Health Service held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of that member.

[2] Transcript, 16 Jul y 2025, p 3(33) - (47).

[3] Tcpt, 15 July 2025, p 18 (21) - (26).

[4] Tcpt, 16 July 2025, p 81(41) - (42).

[7] Tcpt, 16 July 2025, p 58 (17) - (32).

[8] Tctp, 16 July 2025, p 81 (17) - (32).

[9] Respondent's Outline of Submissions filed 12 June 2025 at [34].

[10] Ex K6 - Statement of Denise Cuncliffe at [8].

[11] Tcpt, 16 July 2025, p 51(25)- (35); 54 (35)-(41).

[12] Tcpt, 16 July 2025, p 54 (35)-(41).

[13] Tcpt, 15 July 2025, p 77(48)-(49).

[14] Tcpt, 15 July 2025, p 87(49); p 89(11).

[15] Tcpt, 15 July 2025, p 71(26) - (40).

[18] Ex MOHK 2, Statement of Dr Deanna Paulin dated 15 May 2025, [32].

[20] Ex MOHK 2, Statement of Dr Deanna Paulin dated 15 May 2025 at [79(a)].

[21] Tcpt, 15 July 2025, p 43(42) - (47).

[24] Ex MOHK 2, Statement of Dr Deanna Paulin dated 15 May 2025, [78] and [79(b)].

[25] Ex K7, Statement of Evonne Keryakous -11 June 2025 at [16(c)].

[26] Ex K7, Statement of Evonne Keryakous -11 June 2025 at [86].

[28] Tcpt, 15 July 2025, p 59(17) - 60(48).

[29] Tcpt, 15 July 2025, p 95 (23)-(24).

[30] Ex MOHK 5, Statement of Dr Louise Wienholt dated 25 Juen 2025 at [37].

[31] Ex MOHK 6, Statement of David Spence dated 15 May 2025 at [21(a)].

[34] Tcpt, 15 July 2025, p 75(35) - 76(1)

[38] Ex K 7, Statement of Evonne Keryakous dated 11 June 2025, at [82] and [88].

[39] Ex MOHK 8, Statement of Aaron Heagney dated 25 June 2025 at [41].

[40] Ex K 7, Statement of Evonne Keryakous dated 11 June 2025, at [91].