Award History
61The broad classification of radiographer, which later evolved into the class of diagnostic radiographer, was originally governed by the general awards which covered a range of hospital technical employees (see Hospital Employees - Technical (Metropolitan) Award ('HETM Award') and the Hospital Employees - Technical (State) Award ('HETS Award')). The relevant classification structure within those awards differentiated between the lower and higher levels of classification by way of the requirement for appointment, that is, the upper tiers of the classification structure could not be reached by means of a system of progression which emerged automatically when a set of preconditions were met such as a yearly advancement by an incremental step.
62On the lower levels, the awards prescribed a classification for trainee radiographers with several grades and a classification for radiographer with several grades, through which incremental progression was automatic upon each year of service.
63The higher levels of the awards, however, provided for particular promotional positions to which appointment by the employer was required in order to attract the classification and corresponding rate of pay. Those classifications were: 'Senior Radiographer in a section' (defined as "a Radiographer who is responsible to the Chief Radiographer for the administration of a separate section of the X-Ray Department of a hospital including the training of trainees in that section"), an ACR (defined as "senior radiographer who has been appointed as second in charge to the Chief Radiographer") and, finally, a Chief Radiographer (defined as "a Radiographer who has been appointed Chief Radiographer in an X-Ray Department of a Hospital"). Upon those awards, an ACR was to receive an allowance above the rate payable to a Senior Radiographer and the rate of pay for a Chief Radiographer was dependent upon the numerical grouping of the adjusted daily average ('ADA') of occupied beds in the hospital that employee managed (with higher rates of pay corresponding to increases in the ADA).
64The HSU conceded that the HETM and HETS Awards did not create a requirement (by implication) to establish the position of ACR within the classification of radiographer, nor was there an obligation to appoint a radiographer to the same (although it was contended that, as a hospital would necessarily fall within one of the numerical groupings that attracted a particular rate of pay for a Chief Radiographer, the position of Chief Radiographer was required).
65That concession overlooks a further feature of those awards, which carried through successor awards, that would stand against the drawing of the implication sought with respect to the HETM and HETS Awards. The lower levels of those awards provide for automatic progression from a base grade to successive levels such that to deny access to one of the classifications of trainee radiographer or radiographer would deny the very efficacy of the Award. No such conclusion could be reached with respect to the higher levels, however, as entry to those classifications was based purely on appointment at the discretion of the employer. The fact that the ACR position was paid by way of allowance underlines that it was accessed by appointment as required by the employer, and conforms, in principle, with the broader analysis above. The operation of those awards was, therefore, not dependent upon the establishment of, and appointment to, the positions at the higher levels of the classification structure. Thus, in conformity with the concession made by the HSU on alternative grounds, an implication could not be drawn that, upon the terms of those awards, the relevant employer was required to establish an ACR position and appoint a diagnostic radiographer to the same.
66The HSU contended the implication sought to be drawn in this matter could, however, be found in the 1997 award which was made by Cahill J by consent on 24 March 1997.
67The 1997 award retained the dual structure of the classification structure prescribed in earlier awards (that is, that, in contrast to the lower levels, the upper tiers of the classification structure could not be reached automatically by the mere possession of the criteria specified in the definition for a particular level). It represents the genesis of the present form of the classification structure in that it effected a largely skill-based hierarchy of classifications and introduced the three classes of medical radiation scientist described above (although the class currently known as 'diagnostic radiographer' was referred to simply as 'radiographer' within that structure).
68The classification structure in the 1997 award was in the following terms:
"Radiographer" means a person who has acquired a Bachelor of Applied Science in Medical Radiation Technology or has equivalent qualifications recognised by the accreditation board of the Australian Institute of Radiographers.
"Radiographer in Training" means a person who is undertaking a Bachelor of Applied Science in Medical Radiation Technology or equivalent qualification which will lead to recognition by the accreditation board of the Australian Institute of Radiographers.
...
"Medical Radiation Scientists (MRS)" are employees employed as radiographers, radiation therapists and nuclear medicine technologists and who are classified into five levels as follows:
Level 1 - MRS at this level are employed during their professional development year. Progression between Level 1 and Level 2 is automatic upon the completion of the professional development year.
Level 2 - MRS at this level have completed their professional development year and are employed as either a Radiographer, Nuclear Medicine Technologist or Radiation Therapist.
Level 3 - MRS at this level perform complex clinical procedures and demonstrate a degree of competency in them which reflects a level of continuing education and/or practical expertise. The MRS have maintained a consistently high standard of practice within the profession and demonstrated proven problem solving skills. They contribute to the establishment of clinical protocols and the development of activities, techniques and procedures within the department. They demonstrate a level of expertise by performance or means such as tutoring in the clinical situation to either undergraduate, post-graduate students or other health professionals or by obtaining an appropriate post-graduate qualification or have gained recognition as an acknowledged expert through publication or delivering technical papers at seminars and/or conferences and/or supervise the operations of a section of the department (specialist or general) and perform associated administrative duties.
Level 4 - MRS at this level may manage a department in a hospital of less than 200 ADA or be appointed to a designated position of Assistant Manager in a hospital. Employees shall not be eligible to progress to the second year of this level unless they manage a department in a hospital of over 100 ADA or its equivalent.
Level 5 - Grade 1 - MRS at this level will be appointed to manage a Radiography Department in a hospital of less than 300 ADA or manage a Nuclear Medicine Department in the following hospitals: St. Vincent's Hospital, Liverpool Hospital, St. George Hospital.
Grade 2 - MRS at this level will be appointed to manage a Radiography Department in a hospital of less then 500 ADA or manage a Nuclear Medicine Department in the following hospitals: Royal Prince Alfred Hospital, Westmead Hospital, John Hunter Hospital, Royal North Shore Hospital, Prince of Wales Hospital.
Grade 3 - MRS at this level are appointed to manage a Radiography Department in a hospital of more than 500 ADA.
Grade 4 - MRS at this level are appointed to manage the Radiography Departments in the following hospitals: Royal Prince Alfred Hospital, Westmead Hospital, Royal North Shore Hospital, St. Vincent's Hospital, Prince Henry/Prince of Wales Hospitals, Liverpool Hospital.
69The skill-based structure deriving from this award was a substantial focus of the HSU's attention in the present proceedings, to the extent that, as noted above, reliance was placed upon the Wage Fixing Principles, in particular the structural efficiency principle, extant at the time of its making (to which I will later return).
70The form of the 1997 award varied the previous position specific classification structure such that the classifications of trainee radiographer and radiographer were compressed into the first two levels of the five level classification structure, the latter levels of which were largely skill-based.
71Hence, Level 1 and Level 2 of the classification structure provided for automatic yearly progression along an incremental scale, whereas access to Level 3 was dependent upon being possessed of particular skills (although, as I will discuss below, the mere possession of those skills did not, in itself, guarantee a radiographer progression to that classification). By Level 4, however, entry to the classification was, at least partly, by way of appointment (in particular to the designated position of Assistant Manager in a hospital).
72The language employed in the opening words of the parts of definitions in Level 5 Grade 1 and Grade 2 of the 1997 award differed from that found at Level 5 Grade 3 and Grade 4. Grades 1 and 2 provided that "MRS at this level will be appointed...". When read in conjunction with the expression "at that level", the phrase "will be appointed", whilst not entirely unattended with ambiguity, appears to simply affix the rate of pay for a radiographer classified at that level. Despite some infelicity of language, the expression used in Grades 3 and 4, "MRS at this level are appointed...", also affixed the remuneration that a diagnostic radiographer appointed to the level will be entitled. The reason for the discrepancy between the two formulations in Level 5 in the 1997 award is not clear, however it may simply reflect the fact that radiographers were already employed in particular positions at the time that the award was made.
73Another notable variation from the HETM and HETS Awards to the 1997 award is the inclusion of the term "manage" as a functional descriptor for the classifications at Level 4 and Level 5. It may be noted, in this respect, that that function may be associated with the Chief Radiographer and there is no reference, in terms, to the ACR in the 1997 award.
74This analysis demonstrates that, at least at the higher levels of the classification structure, progression was expressed to be dependent upon appointment to subject positions (and was, therefore, of a different character to the lower levels of the structure).
75The observations of Cahill J in Re Hospital Employees Medical Radiation Scientists (State) Award 1997, (Cahill J, 24 March 1997, unrep) at 1 - 2, in my view, bear out that conclusion with considerable clarity:
The new award per se will not have the effect of increasing salaries, but because of the amended classification structure which the award contains, and which is the main purpose of its making, existing employees, or some of them, will have the opportunity to progress to higher rates of pay than were previously available.
Under the restructure, various levels of medical radiation scientist are prescribed. There is firstly a radiographer in training classification and rate, and thereafter employees will be assigned to one of five levels prescribed by the award. Apart from level one, each of those levels has several salary rates prescribed, referable to years of service. (Emphasis added).
76Thus, whilst the 1997 award affixed the rates of pay for radiographers appointed to positions in the higher levels of the classification structure, and, in so doing, provided the opportunity to progress to said rates of pay, given the differential structure of the award, an implication cannot be found that the award imposed an obligation to establish positions at those higher levels, such as an ACR, and to appoint a radiographer to the same.
77The reliance of the HSU upon the contended effect of the structural efficiency principle, namely, that the 'skill-related career path' engendered by that principle supported the requirement to establish an ACR position in a department of the requisite size, may be returned to in the light of the above discussion.
78In my view, the HSU was correct in their submission that the structural efficiency principle underpinned the 1997 award. Although Cahill J did not expressly mention that principle in his decision, the structural efficiency principle was, as noted above, extant at the time that the 1997 award was made and the nature of the reform to the classification structure therein epitomised the changes brought about by the structural efficiency adjustment mechanism. However, a review of the operation of the principle does not support the contention advanced by the HSU in these proceedings.
79The structural efficiency principle formed the centrepiece of the Wage Fixing Principles during the period in which the 1997 award was made and must, therefore, be considered for that award to be properly understood.
80The principle had its genesis in National Wage Case - August 1988 (1988) 25 IR 170 and was adopted in State Wage Case February 1988 (NSW) (1988) 23 IR 340 (at 33). At that stage, the principle came to be expressed as a discrete principle, which carried through in that form until the State Wage Case - December 1993 (1993) 52 IR 157. The principle was expressed in that decision in the following terms (at 206-207):
Consistent with the October 1989, the May 1991 and the March 1992 State Wage Case decisions, the structural efficiency principle provides a framework through which it is intended that the parties to an award co-operate positively in a fundamental review of that award with a view to implementing measures to improve the efficiency of industry and provide employees with access to more varied, fulfilling and better paid jobs. The measures should include but not be limited to:
* establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;
* eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform;
* creating appropriate relativities between different categories of workers within the award and at enterprise level;
* ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry;
* including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments;
* updating and/or rationalising the list of interested parties to awards;
* addressing any cases where award provisions discriminate against sections of the workforce;
* examining both award and non-award matters to test whether work classifications and basic work patterns and arrangements are appropriate - the examination to include specific consideration of:
(i) the contract of employment including the employment of casual, part-time, temporary, fixed term and seasonal employees,
(ii) the arrangement of working hours, (iii) the scope and incidence of the award;
* inserting facilitative provisions in relevant clauses of the award;
* establishing a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity;
* providing in an award a provision to the effect that an employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training. Structural efficiency exercises should incorporate all past work value considerations.
81Thereafter, the principle was carried into effect by way of a statement of principle found in the preamble to the Wage Fixing Principles. In the State Wage Case - December 1994 (1994) 57 IR 1 the principle was expressed in the following terms (at 39):
In exercising its powers and obligations under the Industrial Relations Act 1991 (the Act), the Commission will continue to apply structural efficiency considerations including minimum rates adjustment provisions consistent with the State Wage Case - August 1988 (No 2) (1989) 27 IR 360; State Wage Case - October 1989 (unreported); State Wage Case - May 1991 (1991) 36 IR 362; State Wage Case - March 1992 (1992) 41 IR 239; State Wage Case - December 1993 (1993) 52 IR 157 decisions and the March 1990 Minimum Rates Adjustment (1990) 35 IR 183 decision.
82The principle was not disturbed in the State Wage Case April 1996 (1996) 64 IR 439, which was limited to the consideration of a narrowly confined issue, and remained in force in the State Wage Case - August 1997 (1997) 73 IR 200 (some four months after the 1997 award was made).
83It does not follow, however, that the principle operated to effect the requirement contended for by the HSU. The establishment of a classification structure which is stratified into levels based upon skill or function deriving from the operation of the principle does not necessarily mean that any employee possessed of skills nominated for a particular classification or able to perform the designated functions would be entitled, by that fact alone, to receive the salary prescribed for such classifications (unless appointed to a position in which those skills were required to be discharged or functions performed).
84The principle was established in 1988 in order to, inter alia, "provide workers with access to more varied, fulfilling and better paid jobs" (National Wage Case - August 1998 at 174). This "key element in a new system of wage fixation" was made "to facilitate the type of fundamental review essential to ensure that existing award structures are relevant to modern competitive requirements of industry and are in the best interests of both management and workers" by way of providing wage increases which were tied directly to implementation of the principle (National Wage Case - August 1998 at 175). The word 'access' in this context connotes that the employee may receive appointment to a 'better paid [job]' by means of obtaining a position through the acquisition of skills and qualifications necessary for the fulfilment of that position.
85This is supported by a passage of a decision of the Australian Industrial Relations Commission and the Industrial Commission of New South Wales (see National Wage Case August 1989 (1989) 30 IR 81 at 90 and State Wage Case August 1989 (1989) 30 IR 107 at 112), wherein it was anticipated that structural efficiency exercises would often incorporate the establishment of new classification structures in lieu of position specific structures. In discussing the transition of workers to those structures, both the state and federal Commission quoted in those decisions the following submission of the ACTU: "Hence workers should not be placed in a classification unless they have the training and experience necessary to perform the full range of the functions comprehended by the new classification and are actually required to perform those functions" (see State Wage Case August 1989 at 112).
86Those passages illustrate with reasonable clarity the nature and operation of the classification structures which emerged by way of the structural efficiency principle, namely, the new structures provided promotional or career opportunities for employees who acquired the skills corresponding to a particular classification level which may be accessed where a position is available and the employee acquires the requisite appointment to the same. This was confirmed, in practice, over the many years in which the principle operated in New South Wales.
87It would be antithetical to the structural efficiency principle to accept that any employee who has acquired the requisite skill set as defined in a classification structure must necessarily thereupon be appointed to a position at the relevant level. Such a conclusion must be a fortiori, if, as in this case, it is contended that it is necessary to create a position in the employer's enterprise or organisation to correspond with that skill set or functional characterisation (or position, in the case of the ACR) found within the Award. If there is no requirement to appoint someone then, as a matter of logic, there should be no need to create a position. Such a proposition would be no less antithetical to the principle.
88In contrast to the contention advanced by the HSU, the fact that the classification structure in the 1997 award derived from the structural efficiency principle demonstrates, in my view, that the presence of particular classifications, at least in the higher levels of the classification structure, did not create, in itself, a requirement to appoint an employee to the same, let alone, create a requirement for an employer to establish positions in its organisation structure matching those classifications. Upon a proper understanding of the operation of that system of award making, as described above, the possession of designated skills simply made certain employees eligible for access to a classification upon appointment to a position so classified (and, thereby, entitled to commensurate remuneration).
89On 14 February 2006, Grayson DP varied the Award ('the 2006 award'). Whilst his Honour maintained the essential structure of the classification system, that variation occasioned a substantial increase in the complexity of the classification structure (which is retained in essentially the same terms in the Award to date (extracted in [23] of this decision).
90In order to understand the variation made by Grayson DP, it is necessary to recall that a variation to the 1997 award was made by McLeay C on 26 October 2001 ('the 2001 award'). Upon the 2001 award the three classes of medical radiation scientist no longer shared a common classification structure. The five level classification structure provided by the 1997 award was retained to cover radiographers and nuclear medicine technologists (as those employees were then known), but a discrete six level classification structure was created by which to classify radiation therapists.
91In varying the structure provided for by the 2001 award, the 2006 award established a discrete classification structure for each of the three classes of medical radiation scientist (described, for the first time, as 'diagnostic radiographer', 'nuclear medicine' and 'radiation therapist'), but reintroduced a common salary structure for those classifications across the classes of medical radiation scientist, such that the three classes of medical radiation scientist were afforded equal remuneration despite their distinct definitions.
92The classification structure established for diagnostic radiographers comprised six levels. From Level 3 onwards, each level contained multiple grades and from Level 4 those grades were further divided into parts, each of which represented alternative criteria by which an employee may attract the payment of a salary corresponding to the subject grade. For the first time since an allowance was provided for the position in the HETM and HETS Awards, the ACR was specifically referred to as a position recognised in the definitions of particular levels or grades in the classification structure such that the appearance of the ACR in a part within a definition meant that an occupant of the position would be classified within the subject grade. In addition, the 2006 award discarded the previous reliance on the ADA of occupied beds, in favour of determining the classification applicable to certain medical radiation scientists, including an ACR, by the number of FTE staff employed in the relevant radiography department (see Health Employees Medical Radiation Scientists (State) Award and Anor at [15]).
93Thus, upon that award, the ACR position appears in several of the classifications for diagnostic radiographer, graded in accordance with the number of FTE diagnostic radiographers in the relevant department with a corresponding rate in the common salary scale.
94Nevertheless, as noted above, the classification structure within the 2006 award, and, ultimately, the Award itself, continued the classification structure which differentiated between lower and higher levels, as modified by the inclusion of a partially skill-based criteria at the higher levels per Cahill J. That continuation is evidenced by the following features of the Award:
(1)The classification structure retained the automatic progression between Level 1 and Level 2;
(2)The classification structure provided for appointment to Level 3;
(3)By implication, entry to the classifications from Level 4 onwards continued to be by appointment. There was no apparent intention to change the form of the classification structure that differentiated between the lower and higher levels by way of the requirement for appointment to a particular position in the higher levels and the language employed in the definition of each grade is suggestive of the same.
95Thus, a continuum may be drawn from the HETM and HETS Awards to the present form of the Award, in that respect, with nothing altering the inherent nature of the classification structure such that the Award continued to prescribe a requirement for appointment to access the higher levels of the classification structure, including that of the ACR.
96This is confirmed by the reasons given by Grayson DP:
47 As Mr Murphy submitted and it is not surprising given the obvious lateness and constraints of time in its formulation, the HAC offer is silent as to a framework of definitions which would underpin the proposed new classification structure. This compares with the comprehensive and detailed framework of definitions proposed by HSU about which there was no criticism by HAC during the course of proceedings.
48 Further, the HAC offer unlike the HSU claim proposes to limit the base grade employees, the largest group of employees to the penultimate year of the 8-year base grade hospital scientist range. There seems no reason for this other than as Mr Murphy suggested, as a means of reducing costs. If there is a justification for alignment with hospital scientists as I am comfortably satisfied there is, it would be inappropriate to deny entry level graduates, the largest representative group within the medical radiation classifications, the same scope and reach as their counterparts within the hospital scientist groups.
49 There are further points of difference between the HAC offer and the HSU claim as the two structures move upwards into the promotional hierarchy which are in the case of the HAC offer unexplained and unsupported by a framework of definitions. This is in contrast to the HSU claim and the latter, as Mr Murphy submitted, is based squarely on the outcome determined by the Full Bench in the Pharmacists case. I consider, on balance, that the HSU proposal is better supported on the cases presented and has more to commend it in the industrial sense. (Emphasis added).
97In the context of the award history, and the particular changes in the 2006 award, Grayson DP's reference to a "promotional hierarchy" (see [96] above) should not be seen as a departure from the classification structures in the antecedent awards discussed above, but in conformity with the conclusion that the Award affords the opportunity for employees to progress to higher rates of pay. In that respect, I do not accept the submission by the HSU that the promotional hierarchy referred to is "mandatory" such that all of the positions therein must be established and maintained and have a diagnostic radiographer appointed to the same.
98It might also be noted that there was no evidence as to the historical practice or convention by which diagnostic radiographers were selected for positions above Level 3 and, in particular, the position of ACR.
99The history of the Award thereby does not reveal, in my view, a basis for drawing the implication from the Award as sought by the HSU. Rather, the award history confirms the conclusion earlier reached by way of textual and contextual analysis that the Award does not prescribe a requirement to establish an ACR position in a department of the requisite size or appoint a diagnostic radiographer to the same.