Health Services Union NSW v Secretary, NSW Ministry of Health in respect of NSW Health Pathology and Sydney Children's Hospital Network

Industrial Relations Commission (NSW)|2024-04-15

ology and Sydney Children's Hospital Network (Respondent) Representation: Counsel: L Saunders (Notifier) J Darams SC/ Mr N Fuller (Respondent)

Solicitors: Sparke Helmore Lawyers (Respondent)

DECISION

On 4 August 2024 the Health Services Union NSW (HSU) filed a Notification of an Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (IR Act). The respondent to the Notification was identified as the Secretary, NSW Ministry of Health in respect of NSW Health Pathology and Sydney Children's Hospital Network (Secretary).
The parties have agreed to an interim resolution of the dispute and the bringing to an end of this proceeding, on the basis that the Commission make an interim award by consent. I set out below the reasons why I am satisfied that the interim award - styled "Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award" (Conversion Interim Award) should be made.

Procedural Background of the Dispute

The Notification summarised the dispute as follows: "5 This dispute is about the proper classification of Technical Officers and Hospital Scientists engaged by the NSW Government under the structures of two different NSW Government corporate entities: NSW Health Pathology (NSWHP) and Sydney Children's Hospital Network (SCHN). 6 The Respondent employs Technical Officers and Hospital Scientists to perform scientific work in pathology laboratories and other settings. 7 The classification of Technical Officers and Hospital Scientists are dealt with in the [Health Employees' Technical (State) Award (TO Award)] and the [Hospital Scientists (State) Award (HS Award)] respectively. 8 The TO Award defines a Technical Officer as: "a person appointed as such who is the holder of the Biological Technicians Certificate, the Chemistry Certificate, the Nuclear Medicine Technician's Certificate, the Pathology Technicians Certificate, the Pathology Technicians Higher Certificate, the Associate Diploma of Health Sciences (Pathology Techniques) of the Department of Technical and Further Education, the Associate Diploma in Medical Technology awarded by the Riverina CAE or the Associate Diploma in Medical Laboratory Science awarded by the Charles Sturt University or such other certificate or course of training as, in the opinion of the employer, is appropriate." 9 The TO Award does not list the duties of a Technical Officer. 10 A Hospital Scientist is defined in the HS Award to mean: "an employee who has acquired the Diploma in Medical Technology of the Australian Institute of Medical Technologists (before 1974) or who has obtained a degree in science from an approved university or college of advanced education requiring a minimum of three years full-time study or such qualifications as the employer deems equivalent." 11 The HS Award does not list the duties of a Hospital Scientist. 12 Many Technical Officers hold science degrees and have substantially the same duties as Hospital Scientists. 13 The HSU's position is that if an employee holds a science degree and is required to undertake scientific work but is engaged and paid as a Technical Officer, the employee is misclassified. 14 Importantly, Technical Officers are entitled to lower rates of pay and generally receive less beneficial conditions of employment than Hospital Scientists. Hence, those misclassified employees are also underpaid. 15 The HSU has made extensive attempts to resolve the dispute without success."
The Secretary's position at the time the Notification was filed was that on the proper construction of the HS Award and the TO Award, the classification of Hospital Scientist (HS) entailed functions, duties and responsibilities that were different from and additional to, those of a Technical Officer (TO) such that no employee was wrongly classified. However, the Secretary did concede that a barrier to resolving the dispute was a "lack of specificity in the classification definitions of the TO Award and HS Award and, as a consequence, a divergence of views about the nature of scientific work that distinguishes a Technical Officer from a Scientific Officer." [1]
The matter was first listed for a compulsory conference before me on 14 August 2023, however at the request of the parties, it was delayed until 22 August 2023. On that day I attempted to resolve the dispute through conciliation and again on 10 November 2023 and 20 November 2023.
At the conclusion of the first conciliation conference on 22 August 2023 I directed the HSU to file a Summary of Case and for the Respondent to file a Response to Summary of Case, in order that the scope of the dispute and the nature of the relief sought by the HSU was better understood by the parties and by the Commission.
It is Summary of Case the HSU stated that it sought the following relief pursuant to s 136(1) of the IR Act: "a. the IRC recommends that each affected member is immediately reclassified from Technical Officer to Hospital Scientist; b. the IRC recommends that each affected member is paid the difference between what they were paid what they would have been paid had they been classified and paid as a Hospital Scientist during the applicable dates; c. the IRC directs the parties to confer on the quantum of any underpayment; d. the IRC directs the parties to confer on the application of these recommendations to any other employee of the Respondent in analogous circumstances; and e. the IRC directs that either party may request further conciliation in relation to any outstanding issues, including any individual employee's circumstances, which cannot be resolved by the parties."
I pause to observe that a recommendation made pursuant to s 136(1)(a) is not enforceable: Police Association v NSW Police (No 3) [2005] NSWIRComm 243; 144 IR 150 at [61] (Boland J).
In her Response to Summary of Case the Secretary submitted that the relief sought by the HSU should not be granted because: "(a) on the proper construction of the HS Award and the TO Award, the classification of Hospital Scientist entails functions, duties and responsibilities that are different from and additional to those of a Technical Officer, which the Employees did not have at the relevant time(s); and (b) even if the Employees could be classified either as Technical Officers under the TO Award or as Hospital Scientists under the HS Award, which classification and Award apply is determined by the principal purpose of the Employees' employment or their major and substantial employment, which, at the relevant time(s), was the role of a Technical Officer."
The Secretary also submitted, in the alternative, that the HS Award and/or the TO Award should be varied to clarify the distinction between the classifications. The Secretary submitted that: "Such a variation would be appropriate because it would reflect: (a) the historical distinctions between the positions of Hospital Scientist and Technical Officer; (b) the distinction between those positions drawn by professional bodies such as the [National Pathology Accreditation Advisory Council (NPAAC0]; and (c) the need to recognise the different work value associated with Hospital Scientists compared with Technical Officers, as is reflected in their higher rates of pay."
Unfortunately, the matter was unable to be resolved through conciliation and so on 20 November 2023 I issued a Certificate of Attempted Conciliation and on 21 November 2023 I made orders for the matter to be heard by arbitration on 18 - 22 March 2024. Included in those directions was a direction that the Secretary file and serve a document setting out the terms of her proposed Award variation, as had been foreshadowed in the Response to Summary of Case.
The matter was listed for directions before me on 18 December 2023 at which time the parties jointly sought a variation to the proposed timetable and that the matter be heard at a date later than March 2024. After hearing form the parties, I vacated the earlier hearing dates and listed the matter for hearing on 15 - 19 April 2024 and adjusted the timetable accordingly, including the direction regarding the filing of the Secretary's proposed Award variation.
On 19 January 2024 the Secretary filed a document headed "Respondent's Proposed Award Variation". That document read as follows: Pursuant to section 136(1)(b) and section 17 of the Industrial Relations Act 1996 (NSW), the Hospital Scientists (State) Award 2023 (Award) is varied as follows: 1. The definition of "Hospital Scientist" in clause 1 of the Award is deleted and the following definition is substituted: "Hospital Scientist" means an employee appointed as such who: (a) is regularly required to perform scientific work of a professional nature; and (b) holds a requisite science qualification. 2. The following definition is inserted in clause 1 of the Award: "requisite science qualification" means a minimum of: (a) the Diploma in Medical Technology of the Australian Institute of Medical Technologists (before 1974); or (b) a relevant degree in science from an approved university or college of advanced education requiring a minimum of three years full-time study; or (c) such qualifications as the employer deems equivalent. 3. The following definition is inserted in clause 1 of the Award: "scientific work of a professional nature" means work of a nature that requires the employee to apply their requisite science qualification to adequately discharge their duties. Without affecting this definition, scientific work of a professional nature includes some or all of the following: (a) conducting scientific research; (b) having responsibility for developing scientific procedures or methods and/or new technology or techniques; (c) using scientific knowledge to assess and analyse data and/or identify, diagnose and remediate issues arising in tests or investigations; (d) evaluating quality assurance systems and processes and addressing quality control performance issues (e) training and verifying competencies of other employees in the principles underlying scientific procedures; (f) any further or other work determined by a Credentials Committee (as defined in clause 3(iv)) constituted for that purpose. Note: no employee classified as a Trainee Hospital Scientist, Hospital Scientist, Senior Hospital Scientist, Senior or Chief Hospital Scientist or Principal Hospital Scientist, or under the Award as at the date of this variation will be reclassified by reason of this variation.
On 28 March 2024 the parties requested that the matter be listed for mention as they were concerned that the hearing would likely take longer than five days. I duly listed the matter on 8 April 2024, being the earliest available date.
When the matter came before me on 8 April 2024 day the Secretary applied to adjourn the hearing scheduled to commence on 15 April 2024, in short because she needed additional time to prepare evidence and submissions in reply in respect of the Award variation and to enable Senior Counsel to properly prepare his cross examination, in circumstances where the HSU proposed calling 16 individual witnesses, who between them had prepared 23 statements. The Secretary also submitted that five days would not be sufficient to conclude the hearing, as there was likely to be around 30 witnesses in total, and that the proceeding was "a much bigger case than maybe the parties had anticipated or expected". [2]
The HSU formally opposed the adjournment application, however an issue emerged during the course of argument regarding the possibly that the Secretary's alternative application for an Award variation would have to be "processed as an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the Chief Commissioner" pursuant to Principle 8.1 of the Wage Fixing Principles, as set out in Annexure A to State Wage Case 2022 [2022] NSWIRComm 1081. Principle 8.1 of the Wage Fixing Principles provides: Any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, will be processed as an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the Chief Commissioner.
This in turn raised the question as to whether the Secretary was required to establish that her claim for a variation constituted a 'special case' within the meaning of Principle 8.4 of the Wage Fixing Principles. After hearing extensively from the parties, I made the following orders: 1. The respondent's application for an adjournment of the hearing is granted to the extent that no evidence is to be received when the matter is listed for hearing on 15 April 2024 and the listing of the matter for hearing on 16 - 19 April 2024 is vacated. 2. On 15 April 2024 the Commission will hear, as a separate question, whether the respondent's application for a variation of the Award engages the Wage Fixing Principles and is so, whether the application constitutes a special case. 3. The time for the respondent to file and serve its evidence and submissions in reply in respect of the variation application is extended to Thursday, 11 April 2024. 4. The matter is listed for further hearing on 3 - 6 June 2024 and 11 - 14 June 2024 at 10.00am in person.
Upon reflection, as I explained to the parties at the hearing on 15 April 2024, if the Wage Fixing Principles were engaged by the Secretary's application for a variation of the HS Award, noting that she contended they were not, and the application was not allocated to me by the Chief Commissioner for determination, the question of whether the application constituted a special case would be a question for the Full Bench.
When the matter came before me on 15 April 2024 for hearing of the separate question, the parties each proposed an alternate, but similar, way to proceed, without the need for me to immediately determine whether the Secretary's variation application would engage the Wage Fixing Principles.
First, the Secretary proposed that I confer with the Chief Commissioner and request that the Secretary's variation application be allocated to me for hearing and determination and that I make such determination as part of the overall hearing and determination of the dispute.
Secondly, the Secretary stated that instead of applying to vary the HS Award only if the Commission found in favour of the HSU's interpretation of the Award, she would argue that the variation should be made in any event, given that a dispute about the interpretation of the HS Award has arisen, in order to correct any apparent ambiguity. She foreshadowed that she would be submitting that that such variation would not engage the Wage Fixing Principles as it would not result in a change in conditions within the meaning of Principle 8.1 as it would merely reflect how employees are currently classified and paid.
The HSU maintained that the proposed variation would engage the Wage Fixing Principles if the Commission were to find in favour of the HSU's interpretation of the HS Award, as the variation would result in a change in conditions for persons employed as Technical Officers, but who have a science degree and engage in scientific work, even though they had not enjoyed such conditions to date.
The HSU proposed that if the Chief Commissioner considered the variation application should be heard by a Full Bench, the "Dispute application" should be heard by me first, as it was keen not to lose the benefit of the scheduled hearing dates, and I should deliver a decision on the interpretation question first, and the variation application, if pressed, would then be heard by the Full Bench thereafter, on the basis that evidence in the dispute be evidence in the variation application and vice-versa and that an order be made that the Full Bench delegating the hearing of the evidence and the making of the necessary factual findings in the Variation application to me, that is, as part of the dispute hearing.
The Secretary had misgivings as this approach and maintained that the better approach was for me to hear and determine both the dispute and the variation application.
Ultimately, I decided to confer with the Chief Commissioner as suggested and, in the event the Chief Commissioner was not minded to allocate the hearing of the variation application to me, I proposed to relist the matter for further directions. Otherwise, the hearing dates scheduled for 3 - 6 and 11-14 June 2024 were confirmed.
I duly conferred with the Chief Commissioner and during the afternoon of 15 April 2024 the Industrial Registrar wrote to the parties advising that: "To the extent that the Secretary's application for a variation of the Hospital Scientists (State) Award 2022 will engage the Wage Fixing Principles in respect of the possible "change in conditions", the Chief Commissioner has considered the need for a Full Bench to determine this matter. She is satisfied that it is appropriate that the Secretary's application should be heard by Commissioner McDonald sitting alone and has allocated the arbitration of the application to her."
The hearing therefore proceeded as scheduled on 3 June 2024, on the basis that I was required to determine whether the relief as sought by the HSU should be granted and whether the Secretary's proposed variation to the HS Award should be made.

The hearing and the further conciliation

On 3, 4, 5, 6, 11 and 12 June 2024 the Commission heard opening submissions and received evidence from 16 witnesses for the Association and five witnesses for the Secretary. On the morning of 12 June 2024, before the hearing resumed and for the reasons I explain below, I privately inquiring of counsel for the parties whether the parties might be amenable to exploring further conciliation. When doing so, I presented counsel with a draft of a possible variation to be made to the HS Award, which could potentially resolve the impasse between the parties.
While the hearing resumed on 12 June 2024 to enable two of the Secretary's witnesses to give evidence, the parties ultimately agreed to return to conciliation, and I made the following orders on that day: 1. The hearing is adjourned part heard. 2. The listings of the matter for hearing on the afternoon of 12 June 2024 and on 13 and 14 June 2024 are vacated. 3. The hearing will resume on 1 and 7 August 2024. 4. The parties are to inform the Commission prior to 4:00pm on 13 June 2024 of suitable dates for a conciliation. 5. The parties have liberty to restore the matter to the list on short notice. 6. I note the undertakings given by counsel on behalf of their instructing party that neither party will exercise its right pursuant to s 173 of the Industrial Relations Act 1996 (NSW), to object to me continuing to arbitrate the dispute, if the parties determine that I should attempt to conciliate the dispute.
Given the consent position the parties have reached to resolve the dispute it is not necessary, nor appropriate for me to detail the nature of the evidence or the views I had begun to form regarding it. This is all the more so given the interim and qualified nature of the parties' agreement. Nevertheless, it is appropriate that I record why I took the step of interrupting the hearing to encourage the parties back to the negotiating table and why I consider that the Commission should implement the agreement ultimately reached by the parties by making an interim award.
In short, four significant matters appeared to be emerging from the totality of the evidence, namely: 1. the nature of the functions, duties and responsibilities of TOs and HSs varies from workplace to workplace, such that it is difficult to discern bright lines to enable the two classifications to be properly distinguished based on the work currently being undertaken by employees employed in those classifications; 2. the absence of bright lines also exists within some workplaces, with TOs in some workplaces performing the same or even higher functions and duties, and holding the same or greater responsibilities, as HSs in the same workplace; 3. the Secretary is experiencing staff attraction and retention issues, which may be caused or exacerbated by the inappropriate classification of some employees as TOs rather than HSs and the lack of a clear career path; and 4. while it is difficult to discern bright lines to distinguish the two classifications, some work experience is necessary before an employee should be classified as a HS.
It is important that I stress that the identification of the above matters is very much an expression of my preliminary thoughts regarding the evidence, noting that I have not yet heard from four of the Secretary's witnesses, nor have I had the benefit of closing submissions. Nevertheless, as at 12 June 2024 it appeared to me that while the HSU was likely to demonstrate a real industrial inequity that required addressing, and potentially had persuasive legal arguments in favour of its interpretation of the Awards, in particular the 1973 decision of Sheldon J reported in 2005: Re Scientific Officers (Public Hospital Scientist) (State) Award and Hospital Employees Technical (State) Award (2005) 147 IR 362, the solution which best addressed the objects of the IR Act; which met the Commission's obligation, as set out in s 146(2) of the Act, to take into account the public interest when exercising its functions; and, importantly, was within the power of the Commission to implement and would be binding on the parties, was likely to be some kind of variation to the HS Award. However, I was yet to be persuaded that the variation proposed by the Secretary was appropriate given some of the evidence, and there was a possibility that the 'no extra claims' clause contained in both the HS Award and the TO Award and/or the Wage Fixing Principles could operate to curtain the ability of the Commission to make a suitable variation to either Award.
The parties attended protracted conciliation conferences before me on 4, 26, and 31 July 2024 and 1, 7 and 23 August 2024. Senior and/or junior counsel for both parties attended most of those conferences. I am aware that meetings and discussions between the parties also occurred between the conferences. On 29 August 2024, when the matter was listed for report back, the parties informed me that they had reached a consent position to resolve the proceeding, namely the making of the Conversion Interim Award. I directed the HSU to file and serve material in support of the proposed Award as required by Practice Note No. 6, by 6 September 2024 and listed the matter for hearing of the application for the making of a consent award on 11 September 2024.

Relevant Legislation

The provisions of the IR Act to which I am required to have regard when determining whether to make the Conversion Interim Award are: 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations, (i) to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective and efficient delivery of services. … 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 11 When award may be made (1) An award may be made - (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by - (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 12 Persons bound by award (1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 13 Formal matters relating to making of award (1) An award is required to be in writing, expressed to be an award and signed by at least one member of the Commission. (2) An award is to be published by the Industrial Registrar on the NSW industrial relations website. (3) An award is to comply with such other requirements as to form and procedure for its making as may be made by the regulations or (subject to any such regulations) by the rules of the Commission. (4) The Commission may give directions as to the standard format for awards. 14 Mandatory dispute resolution procedures in awards (1) An award is not to be made unless it contains procedures for the resolution of industrial disputes under the award (dispute resolution procedures). (2) However, an award need not contain dispute resolution procedures if the Commission is satisfied that another specified award already does so. (3) Dispute resolution procedures are to include procedures for - (a) consultation at the workplace, and (b) the involvement of relevant industrial organisations. (4) Dispute resolution procedures in awards do not apply to employers who employ fewer than 20 employees, unless the award specifically applies those procedures to such an employer. 15 Commencement of award (1) An award comes into force on the date specified by the Commission. (2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website. (3) An award may be expressed to apply retrospectively, but not earlier than the date on which - (a) application for the award was lodged with the Industrial Registrar, or (b) the Commission itself initiated proceedings for the award, or (c) the industrial dispute giving rise to the award was notified to the Commission. (4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection - (a) an award that sets conditions of employment in connection with a project, (b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers. 16 Term of award (1) An award applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission. (2) The nominal term of an award must not be less than 12 months nor more than 3 years. (3) However, an award that sets conditions of employment in connection with a project may have a specified nominal term that does not exceed the expected duration of the project. (4) An award may in special circumstances be made on an interim basis. Any such award is to be expressed to be an interim award and applies only for the period (not exceeding 12 months) specified in it. 17 Variation or rescission of award (1) The Commission may vary or rescind an award. (2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied. (3) An award may be varied or rescinded in any of the following circumstances only - (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. … 23 Equal remuneration and other conditions Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. … 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following - (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. … 146 General functions of Commission (1) The Commission has the following functions - (a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law. (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to - (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy, and (c) for the exercise of a function about public sector employees - the fiscal position and outlook of the Government and the likely effect of the exercise of the Commission's function on the position and outlook. (3) Subsection (2) does not apply to proceedings before the Commission in Court Session that are criminal proceedings.
In addition, r 6.8 of the Industrial Relations Commission Rules 2022 (NSW) (IRC Rules) provides: 6.8 Applications for consent awards (1) An application for a consent award must be supported by an affidavit setting out - (a) the way in which the consent award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value, and (b) the reasons why the making of the consent award is in the public interest having regard to the matters set out in the Act, section 146(2). (2) The following must be filed with the application for the consent award - (a) the supporting affidavit, (b) an electronic copy of the proposed award. (3) In this rule - consent award means an award made by mutual consent of all parties to the proposed award, and includes a variation of an award made by mutual consent of all parties to the original award.
Lastly, I am required to have regard to the Wage Fixing Principles. Principle 2.1 relevantly provides: In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as an Arbitrated Case under Principle 8: a) … b) … c) … d) where the application is consented to by the parties, in which case, it will be dealt with in accordance with the Act.

The Proposed Conversion Interim Award

The HSU tendered a draft of the Conversion Interim Award [3] and, consistent with the requirements of r 6.8 of the IRC Rules, read an affidavit of Jeremy Lappin affirmed on 6 September 2024. [4] Mr Lappin attested and senior counsel for the Secretary confirmed, that the proposed Conversion Interim Award, is consented to by all parties.
The Conversion Interim Award has some 33 clauses, and it is not a necessary to set out the whole of the Award in this decision. Nevertheless, some provisions of the proposed Award require mention.
In short, the Conversion Interim Award allows a TO who meets certain criteria to be converted to a HS, save for in two specified circumstances. The principal operative provisions of the Conversion Interim Award are contained in cll 3 - 6. Those clauses provide: Conversion request criteria 3. A Technical Officer who: a. holds a requisite science qualification; and b. agrees to undertake the duties of a Hospital Scientist as determined by the Employer from time to time; and c. has been employed by the Employer as a Technical Officer for at least 6 months, may make a written request to the Employer to have their classification converted to a Hospital Scientist as contained within the Hospital Scientists Award (conversion request). Request requirements 4. The Technical Officer will provide a completed conversion request application form, a copy of their degree certificate and academic transcript, evidence of their work experience and their written agreement to perform Hospital Scientist duties. Entitlement & refusal 5. A Technical Officer, who makes a valid conversion request under clause 3, is entitled to reclassification as a Hospital Scientist unless: a. the Employer establishes it is fair and reasonable in all the circumstances to refuse the conversion request; or b. the Technical Officer fails to provide the information required under clause 4. Conversion date 6. If the Employer accepts a conversion request, the Technical Officer's classification will be converted to a Hospital Scientist effective the date the conversion request was made.
'Requisite science qualification' is defined in the Definitions to mean: (A) the Diploma in Medical Technology of the Australian Institute of Medical Technologists (before 1973); or (B) a degree in science at Australian Qualifications Level 7 with subjects or a major predominantly relevant to pathology or, if employed in a non-pathology area, to the position to be employed in; or (C) a degree in science at Australian Qualification Level 7 with subjects or a major partially relevant to pathology or, if employed in a non-pathology area, the position employed in, and 2 years' of experience as a Technical Officer or Hospital Scientist; or (D) a degree in Science at Australian Qualifications Level 7 and 3 years' of experience as a Technical Officer or Hospital Scientist; or (E) a qualification which has been assessed by the body appointed by the Commonwealth government to assess qualifications for skilled migration visas as meeting the qualification requirement of Medical Scientist ANZ234611; or (F) such qualifications and experience as the employer deems equivalent.
Clause 19 sets out a non-exhaustive list of matters "which are potentially relevant to whether the Employer's refusal of a conversion request was fair and reasonable in all the circumstances". Clause 20 sets out certain matters which the Employer cannot rely upon to justify any refusal to convert an Employee.
Clause 7 provides that if the Employer refuses the conversion request it must provide with its notification of refusal, its reasons for refusal "including the basis it has concluded that it fair and reasonable to refuse the request" and "the notification, and covering email, must clearly inform the Technical Officer of their right to refer the request to the Transitional Committee and take advice from the Union or such other representative the Technical Officer may choose."
Clause 2 provides for the creation and composition of the 'Transitional Committee' and clauses 8 - 11 provide for a process whereby the Transitional Committee may determine whether the refusal was fair and reasonable in all the circumstances.
Clause 12 provides that if the Employer, Union or the Technical Officer disagrees with the decision of the Transitional Committee, either one of them can notify a dispute to the Commission for determination. Critically, cl 21 envisages that the Commission will determine such notified dispute by making a variation to the Conversion Interim Award. Clause 21 provides: Subject to section 17 and pursuant to section 136(1)(b) of the IR Act, the Schedules to this Award will be varied by the Commission as part of the determination of any disputes determined by the Commission in accordance with this Award.
Schedules A and B to the Conversion Interim Award currently appear as follows: Schedule A - Employees determined to be Hospital Scientists Name Date of Decision

Schedule B - Employees determined to be Technical Officers Name Date of Decision

It is my view, and that of both parties, that the agreement of the parties to submit to the jurisdiction of the Commission to vary the Conversion Interim Award pursuant to ss 17 and 136(1)(b) in the event that a dispute is notified to the Commission pursuant to cl 12 of the Award, obviates the requirement for the variation to be dealt with as an Arbitrated Case under Wage Fixing Principle 8, due to Principle 2.1(d) (see [62] below) or would justify the application being dealt with as a special case within the meaning of Principle 8.4.
Clauses 14 and 15 result in a TO being deemed converted to a HS in the event that certain deadlines are missed.
Clause 27 provides: Commencement and nominal expiry 27. This Award commences from 2 months after the day it is made, will nominally expire 12 months after commencement and prevail to the extent of inconsistency with other awards.
I understand that the delay in commencement is to enable the Secretary to make administrative arrangements to enable the expected applications for conversions to be processed. The parties have agreed that this delay should not operate to the disadvantage of employees and so cl 33 provides: Backdating of early applications 33. Where a request is made pursuant to clause 3 of this Award within 1 month of the Award's commencement, and the employee converts to a Hospital Scientist, the effective date of the conversion will be backdated to 1 month prior to the request being made.
There is a preamble to the Conversion Interim Award which reads as follows: This award is made by consent as an interim resolution of a dispute under sections 10 and 136(2) Industrial Relations Act 1996 (IR Act) about the correct interpretation of the classification of 'Hospital Scientist' within the Hospital Scientists (State) Award 2023 (Hospital Scientists Award), and separately as to whether it ought to be varied. This Award is made on the basis that it is not taken to prejudice either party's position in respect of that dispute, in the event that the underlying issue cannot be resolved through broader award negotiations.
Section 16(4) of the IR Act provides that an "award may in special circumstances be made on an interim basis."
I was provided with little assistance from the parties as to what the authorities say constitutes 'special circumstances' within the meaning of s 16(4), however both submitted that such special circumstance exist, and I am satisfied that they do.
In Re Public Hospital Nurses' (State) Award (No 3) [2002] NSWIRComm 325; (2002) 121 IR 28 at [124], in the context of a proposed increase to salary rates, the Full Bench (Wright J President, Walton J Vice-President, Boland J, Grayson DP McLeay C) observed that any interim increase must be approached cautiously "so as not to embarrass the final result". These observations were approved in Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch and Employers First [2002] NSWIRComm 207 at [16] (Wright J President, Walton J Vice-President, Redman C) and in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2003] NSWIRComm 479; 129 IR 135 at [33] (Wright J President Walton J, Vice-President Boland J, Grayson DP, McLeay C).
While it would preferable that an award was made that would wholly resolve the dispute between the parties, given the extremely protracted nature of the dispute and in light of the matters referred to at [32], I am satisfied that special circumstances exist such that the making of an interim award is appropriate. Similar to the views expressed by the Full Bench in Re Crown Librarians, Library Officers and Archivists Award Proceedings Applications under the Equal Remuneration Principle [2002] NSWIRComm 55; 111 IR 48 at [149] (Wright J President; Kavanagh J; Boland J; McKenna C) I do not consider it "fair or appropriate" to delay the benefits that may flow to TOs who may be entitled under the proposed Conversion Interim Award to be converted to the classification of HS, while the parties continue to work out suitable classifications for TOs and HSs and/or the permanent path for conversion from TO to HS, in circumstances where the parties have been at odds regarding this matter for years. As counsel for the HSU submitted on 11 September 2024, the situation had almost become "insoluable".
While the Conversion Interim Award will see certain employees converted from the classification of TO to HS in circumstances where TOs may not be so converted in similar circumstances pursuant to the terms of a future award, I do not consider that this would result in an embarrassment of the kind referred to by the Full Bench in Re Public Hospital Nurses' (State) Award (No 3).
Further, in reaching a consensus position which will have an immediate impact on current affected employees, and which will allow the parties to test the processes they have devised for the conversion of TOs to HSs, and to monitor the ongoing impacts of the conversion of TOs who meet the criteria, the parties should be better placed to permanently resolve the underlying issue through broader award negotiations.
I am also comforted by cll 28 and 29 of the Conversion Interim Award which provide: Award to be reviewed 28. Prior to the nominal expiry, this Award will be reviewed by the Industrial Relations Commission. Union not to pursue particular disputes 29. The Union will not commence or continue any dispute pursuant to section 130 of the IR Act regarding the proper interpretation of the "Hospital Scientist" classification within the Hospital Scientists Award during the nominal term of this Award.
Indeed, without cl 29 I would not make the Award as it would not sufficiently resolve the dispute presently before me.
In relation to cl 28 I propose to direct the Industrial Registrar to instigate a review of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award on or about 11 September 2025.
For completeness I note that HSU suggested in submissions made on 11 September 2024 that as the Conversion Interim Award has a nominal term it may be regarded as a 'normal' award rather than an interim award. I have not heard argument in respect of that question and so express no view as to its correctness.

Application of Legislative Provisions to the Interim

Pursuant to ss 11(1)(b) and 136(1)(b) of the IR Act I may make an award under Part 1 of Chapter 2, in an arbitration, to resolve an industrial dispute.
Both parties, who are both suitably qualified to do so, have applied for and consent to, the making of the Conversion Interim Award, with the result that, pursuant to Principle 2.1(d) of the Wage Fixing Principles, the application may be dealt with without the application requiring consideration as an Arbitrated Case under Principle 8.
The Award meets the formal requirements of the IR Act. Specially: 1. clause 26 provides that the dispute resolution procedures contained in the Health Employees Conditions of Employment (State) Award 2023, as varied or replaced from time to time, shall apply to relevant Employees, thereby complying with s 14; 2. clause 27 provides that the Award commences "2 months after the day it is made, will nominally expire 12 months after commencement and prevail to the extent of inconsistency with other awards". I propose to make an order, as required by s 15(1), that the Award commence on 12 November 2024. The Award complies with sub-ss 16(2) and (4) as the nominal term of the Award is 12 months; 3. the Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value, as required by s 23.
In regard to equal remuneration, Mr Lappin gave the following evidence: "For the following reasons, the new award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value: a. The new award explicitly takes into account any gender disparity in pay within the workplace (clause 19.b.). b. The new award explicitly requires the Employer to provide additional support to access benefits under the new award, where it is required, on the basis of gender (clause 23.b.). c. The new award provides a pathway to pay entitlements which are equal regardless of gender.
Clause 19.b. of the Conversion Interim Award provides: Matters potentially relevant to refusal 19. Matters which are potentially relevant to whether the Employer's refusal of a conversion request was fair and reasonable in all the circumstances include, but are not limited to: a. … b. any gender disparity in pay within the laboratory or area worked, if any disparity exists; …
Clause 23.b. of the Conversion Interim Award provides: Implementation process 23. The Employer will develop processes for implementation of this interim award to: a. … b. identify categories of employees who may require additional support to make a request for reclassification due to career disadvantage that may be associated with possibly race, geography, sexuality, gender, marital status, disability, language barriers, age and responsibilities as a carer; …
I agree with Mr Lappin that the Conversion Interim Award meets the requirements of s 23 of the IR Act.
Finally, in respect of the requirements of s 146(2) of the IR Act I accept and adopt unreservedly Mr Lappin's evidence, which was in the following terms: "Objects of the Act 6. For the following reasons, the making of the new award is in the public interest because it accords with the objects of the Act: a. (a) to provide a framework for the conduct of industrial relations that is fair and just: the new award does not have any apparent impact on the framework for the conduct of industrial relations in NSW. The new award is a product of the existing framework. b. (b) to promote efficiency and productivity in the economy of the State: there is no information available to me to suggest that the new award with detrimentally impact efficiency and productivity in the State of NSW. The Award will promote productivity improvements by potentially clarifying a career path for employees with science degrees and increasing the skill level of the workforce. c. (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level: the new award provides for involvement of representatives of the employer and employees as key decision makers within the new award (clause 2). Employees and the employer also have extensive rights of appeal (clause 8 and 12). d. (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies: the Health Services Union NSW holds key rights under the new award and is integral to its function (clauses 2, 8, 12, 23, and 24). Employees must also be informed of their right to take advice from the union (clause 7.b.). The award has arisen through participation in cooperative industrial relations processes by the Union and the employer, and its making would encourage this conduct in the future. e. (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments: the new award provides a clear and structured process leading to an entitlement for a particular set of employees meeting objective criteria. f. (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value: this object of the Act is dealt with above at paragraph 4 of this affidavit. g. (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality: the new award is an agreement reached by consent between the parties in resolution of this matter via conciliation. It is resolution which avoids the delays and legal technicality of the continuation of a hearing, writing of a decision, and any subsequent appeals. It is also a resolution which attempts to end years of dispute between the Health Services Union NSW, employees and the employer about the proper classification of a particular set of employees. The new award also enables the intervention of the Industrial Relations Commission NSW to conciliation and/or arbitrate disputes where necessary and provides a clear non-technical process for the resolution of any disputes. h. (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations: the new award (clause 28) requires review by the Industrial Relations Commission NSW prior to its nominal expiry, which allows the parties a period of time to review its operation and time to agree on any reforms in a cooperative manner, while providing a predetermined pathway into the Commission for the new award's review and reform, if required. i. (i) to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective and efficient delivery of services: clause 19.c. of the new award explicitly refers to consideration of the employer's ability to attract and retain skilled staff in the area worked, where there are attraction and retention issues. The new award also provides a more objective and more explicit criteria for the determination of classifications than currently exists. Effect on the state of the economy of New South Wales and its likely effect on that economy 7. There is no information available to me to suggest that the making of the new award will any effect of the state of the economy of New South Wales. 8. There is no information available to me to suggest the making of the new award will have any effect on the fiscal position and outlook of the Government."

Conclusion

The parties in this matter are sophisticated and experienced industrial players, who were represented by very experienced counsel, the Secretary by both senior and junior counsel, and I have given weight to the agreement that has been reached by them after many days of hard-fought negotiations in arriving at my decision to make the Conversion Interim Award. I consider that by reaching agreement the parties achieved a better result for each of them than they otherwise might have achieved had the matter proceeded to a concluded arbitrated hearing. The parties and their representatives are to be congratulated for their responsible, diligent, cooperative and constructive approach to a difficult and lengthy industrial dispute.

Orders and Notation

I make the following orders: 1. By consent the Commission makes the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award in terms of Exhibit HSU - 42. 2. By consent the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award shall commence on 12 November 2024. 3. The Industrial Registrar is directed to instigate a review of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award on or about 11 September 2025. 4. By consent, the proceeding is otherwise dismissed. 5. The Commission notes the agreement of the parties that the making of the Interim Award and the dismissal of the proceeding is without prejudice to either party's position in respect of the dispute giving rise to the proceeding, in the event that the underlying issue giving rise to the dispute cannot be resolved through broader award negotiations. Janet McDonald Commissioner

Endnotes

Secretary's Notice in Reply filed 21 August 2024.
Tcpt, 8 April 2024, p 3(32).
Exhibit HSU 42.
Exhibit HSU 41. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2024

At a glance

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Judgment (14 paragraphs)

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Cases Cited (8)

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