Health Services Union NSW and Central Coast Local Health District re Regrade Policy [2013] NSWIRComm 44

DECISION 1This matter arises pursuant to a notification in accordance with s130 of the Industrial Relations Act 1996 ("the Act") by the Health Services Union NSW (HSU). 2The matter was subject to conciliation before Commissioner Stanton who issued a Certificate of Attempted Conciliation on 18 February 2013 and made directions to bring the matter to Hearing. 3Mr Murphy of counsel appeared for the HSU and brought evidence from Mr R Hull, an Officer of the HSU since 1999. Mr Saunders of counsel appeared for the Central Coast Local Health District (CCLHD) (the Respondent) and brought evidence from Mr Ian Arnold, Workforce Operations Manager. 4The dispute concerns the revision of the Respondent's grading policy with effect from 22 October 2012 ("the new policy") (exhibit 8 at attach. IAA). 5The objection of the HSU is that the new policy does not provide for what is described as a 5% salary matching provision for appointment of an incumbent in the event a position is regraded. 6Mr Arnold in his evidence (exhibit 8) describes the 5% salary matching provision applicable prior to introduction of the new policy, deposing (para 13): 13. Both the Former NSCCAHS Grading Policy and the Former CCLHD Grading Policy contained respectively at clause 5.3 the following clause: "If the application for position grading or restructure is approved, the position must be filled in line with normal recruitment requirements. If there is a current incumbent who is affected by the application, the incumbent will be appointed directly if the incumbent meets the essential criteria of the regraded position and if the salary difference between the commencing salary of the regraded position is within 5% of their current salary rate. For Health Manager positions, incumbents may be directly appointed to the regraded position if their current salary rate is within 5% of the minimum salary of the applicable salary band of the regraded position. Where new grading is greater than 5% of the incumbent's current salary the position will be advertised in accordance with current recruitment requirements." 7The HSU seeks reinstatement of the salary matching provision by Award, Order or Direction, being the form of remedy available pursuant to s136 of the Act. 8The practical effect of this provision is that when a position is subject to regrading and the increase in salary is 5% or less the incumbent employee remains in that position. 9Where the regrading produces an increase in excess of 5% the position becomes open and subject to advertisement in accordance with current recruitment processes. 10Current recruitment requirements include operation of the New South Wales Government Policy "Managing Excess Staff of the NSW Health Service" ("MES Policy") and associated Procedures (exhibit 8 at attach. IAE), 11The relevant provisions of the MES Policy and associated Procedures are: These procedures explain how excess staff members are managed in the NSW Health Service. This policy directive and attached procedures is intended to: (a) convey to managers the steps and approach that they are required to follow when considering whether staff members are excess and when any such staff members have been declared excess; and (b) provide information and guidance to excess staff members as to the employer's current policy and intended approach to managing them in relation to redeployment and redundancy. 1.2 Key definitions Affected Staff: are staff members whose positions have been deleted, altered or relocated as a result of organisational change and who will become excess if they are not placed in a position within the new structure. ... ... Excess Staff: means members of staff of the NSW Health Service who are advised in writing that they no longer have a substantive position in the Division of the NSW Health Service in which they are employed and where no suitable vacant permanent or temporary positions are available. Once an excess staff member is appointed to a permanent position, that staff member is no longer considered excess. ... ... Suitable position: is a position where the excess staff member can meet the selection criteria for the position, or is likely to perform adequately in the position in a reasonable period of time, given access to appropriate training and support, and the position is of equivalent salary to the excess staff member's former substantive position (or lower, if the staff member consents); and the position is located within reasonable commuting distance, or at any other location agreed to by the excess staff member. ... ... 4. DECLARING A STAFF MEMBER EXCESS During organisational change there are often affected staff members whose positions have been deleted, but who may yet be placed within the new structure. Organisations are to inform those staff members in writing that they are affected, and that the staff member will be granted priority access to suitable vacancies across NSW Health, provided that: