Fair Work Act 2009

s.739 - Dispute resolution

Dispute arising under enterprise agreement - classification dispute - dispute determined.

• [1] The Health Services Union (HSU) has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 17 of the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (Agreement). The application refers to the Commission for determination a dispute that has arisen between the HSU and Northern Health concerning the construction of the classification structure in the Agreement and its application to five members who are employed by Northern Health as theatre technicians. The HSU contends that the members should be classified at grade 5. Northern Health submits that the employees do not meet the requirements of grade 5, and that, although they are paid as grade 4 technicians, their correct classification is in fact grade 3.

• [2] The classification structure is found in schedule 2D of the Agreement. Clause 10.1 of that schedule sets out a five grade structure for theatre technicians. The classifications for grades 4 and 5 are set out below. Of particular relevance is the 'progression' clause in the grade 4 classification, which explains when an employee will progress to grade 5. The HSU contends that its five members meet the requirements of the progression clause.

• has greater than thirty-six (36) months experience (full-time equivalent) as a Theatre Technician

• hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,
• An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;

• has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and
• operates with a high degree of autonomy and accountability.
• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:
  • supervision and training of junior Theatre Technicians (where employed)
  • quality and governance
  • floor coordination
  • rostering.
• may be required to perform Higher Duties where the Theatre Technician Manager is on leave.
• or where mutually agreed, work across multiple hospitals/sites/campus'.

A Grade 4 will progress to Theatre Technician Grade 5 where the Theatre Technician can establish they:

• have greater than twelve (12) months experience (full-time equivalent) working as a Theatre Technician Grade 4
• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:
  • supervision and training of junior Theatre Technicians (where employed)
  • quality and governance
  • floor coordination
  • rostering."

• has greater than twelve (12) months experience (full-time equivalent) working as a Theatre Technician Grade 4

• hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,
• An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;

• has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and
• operates with a high degree of autonomy and accountability; and
• undertakes additional given responsibilities determined locally, including, but not limited to supervision and training of junior Theatre Technicians (where employed), quality and governance, floor coordination and rostering; and
• where mutually agreed, work across multiple hospitals/sites/campus'; and
• will be required to perform Higher Duties where the Theatre Technician Manager is on leave."

• [3] The HSU submitted that since July 2022, the five employees have met the requirements for progression to grade 5, and that Northern Health has wrongly refused their numerous requests to be reclassified. It said that the progression clause in the grade 4 classification was clear about what was required in order for a theatre technician to progress to grade 5. The worker must have more than 12 months' full-time experience at grade 4 and must have undertaken additional given responsibilities determined locally. The progression clause sets out examples of such additional responsibilities, which include supervision and training of junior technicians, quality and governance, floor coordination and rostering. The HSU said that it was sufficient that an employee have undertaken any of these responsibilities, and that its members had each provided witness statements explaining the additional duties that they had undertaken, including floor coordination, supervision and training, among other things.

• [4] The HSU submitted that, contrary to the apparent understanding of Northern Health, there was no term in the Agreement which gave employers covered by it the discretion to decide whether to recognise progression to grade 5, or to impose additional eligibility requirements, such as the presence of an available vacancy at the grade 5 level. Nor was it the case, as Northern Health had suggested in its correspondence to the union, that progression to grade 5 required an employee to have a higher level of autonomy and accountability, and to have demonstrated skills in a more comprehensive and structured way beyond individual tasks. The Agreement said nothing about such matters. The HSU said that the progression provision in the grade 4 theatre technician classification could be contrasted with the progression clause in the grade 2 dental assistant classification, which refers to 'progression by annual performance appraisal process'. The latter provision gave the employer a margin of discretion. The former did not.

• [5] The HSU emphasised that the words 'undertakes additional given responsibilities determined locally' and the words that follow them in the second dot point in the 'progression' clause at grade 4 are the same as the words that appear in the third dot point in the 'duties' clause at grade 4, and also the same as the words that appear in the progression clause in the grade 3 classification, which addresses the requirements to progress to grade 4. They are also very similar to the words appearing in the third dot point under 'duties' at grade 5. The HSU said that the effect of these words was that theatre technicians who establish that they have undertaken the 'additional responsibilities' to progress from grade 3 to grade 4 did not have any 'new hoops' to jump through in order to progress from grade 4 to grade 5, other than the requirement to have greater than 12 months' experience as a grade 4 technician (see the first dot point in the progression clause at grade 4). The HSU submitted that its five members had clearly undertaken the additional responsibilities because they were paid as grade 4 technicians, and therefore, as they all had 12 months experience at level 4, there was no basis for Northern Health to refuse to reclassify them at grade 5.

• [6] The HSU said that on 16 April 2024, Northern Health had written to it and stated that, to the extent that members had undertaken additional duties, this had been the result of 'immediate staffing needs rather than a formal assessment of Grade 5 readiness'; but the Agreement said nothing about an assessment of readiness. On the other hand, Northern Health's letter plainly confirmed that the members had the relevant skills and had indeed undertaken relevant additional duties at level 4. Another reason given by Northern Health for not promoting the members had been that they were not capable of assuming higher-level duties and responsibilities inherent to grade 5 positions, but the HSU said that this did not make sense because it was acknowledged that the members had in fact undertaken duties of the kinds set out in the grade 4 progression clause.

• [7] Northern Health's primary contention was that the five technicians could not progress to grade 5 because they were currently grade 3 technicians and therefore did not satisfy the first requirement of the 'progression' clause in the grade 4 classification: they did not have greater than 12 months' experience working as a grade 4, and in fact had no experience working at this level. The Agreement had introduced a new classification structure. Grade 4 theatre technicians were translated to grade 3 (see clause 35). Some of those who were reclassified, including the 5 members, contended that they should be classified at grade 4 in the new structure. Northern Health conducted a review and agreed to pay the five employees at level 4 under the new structure. Northern Health contended that this was in the nature of an accommodation of the employees' grievances rather than an acknowledgement that they were properly classified at grade 4 under the new structure. In this regard, clause 75 of the Agreement stipulated that employees were to be classified 'in accordance' with the Agreement. This required an objective assessment of an employee's circumstances. To be a grade 4 technician, the Agreement required an employee to have the 'experience' (36 months full-time equivalent) and the particular 'qualifications' listed in the grade 4 classification. This the five employees had. But it was also necessary that an employee satisfy all of the five requirements listed under 'duties' in the grade 4 classification. Northern Health said that although they met the first two of these, they did not meet the third, because they did not 'undertake additional given responsibilities determined locally'. Although it would be sufficient for an employee to undertake any of the duties listed as examples in the third dot point, the employees undertook none of them. Northern Health relied in this regard on the evidence of Lana Dent, the nurse unit manager.

• [8] Northern Health contended that, not only had the five employees not performed any of the additional responsibilities referred to in the grade 4 classification, there was no evidence that any work of this type had been 'determined locally' to be additional responsibilities for the purposes of the clause. This would have required some arrangement between the employer and the employee as to what the relevant responsibilities would be. But nothing of the kind had occurred. The fact than an employee had done certain work that might be described as 'supervision' or 'quality and governance' etc. was not enough.

• [9] Northern Health further contended that the five employees could not be required to perform higher duties as contemplated by the fourth dot point under 'duties' at grade 4 (they had agreed to do higher duties on occasions but were not compelled to do so), nor did they work across multiple campuses in accordance with the fifth dot point. Northern Health submitted that for these reasons the employees did not have 12 months' experience working as a grade 4 theatre technician, even if they were paid at this level, and therefore they did not meet the first requirement under the 'progression' clause in the grade 4 classification in the Agreement. Northern Health contended that the five employees were therefore theatre technicians at grade 3, not grade 4, and that they were not eligible to progress to grade 5.

• [10] Northern Health's second principal submission was that even if the employees were considered to be grade 4 theatre technicians, they had not satisfied the second criterion in the progression clause. Although this condition was in the same terms as the third dot point under 'duties' in the grade 4 classification, the reference here to 'additional given responsibilities determined locally' meant 'additional' duties that were over and above those which had qualified an employee for the grade 4 classification. This meaning was consistent with the nature of a classification structure which typically, and in this case, entailed a hierarchy of work for the purposes of remuneration, and it would not make sense for progression to the next level in the structure to require the same duties to be performed as for the current level. The five employees had not identified any work that they had undertaken that was additional to the duties which, in their contention, had qualified them for the grade 4 classification.

• [11] I am satisfied that the Commission is authorised by clause 17 of the Agreement to determine the dispute by arbitration. The question that has been submitted for determination is whether Northern Health must reclassify the five employees as grade 5 theatre technicians. Northern Health invited me to make factual findings that the employees were grade 3 technicians, and submitted that if I did so, it was not necessary to consider the proper construction of the Agreement, because there could be no question of the employees progressing to grade 5. However, the orthodox approach is first to ascertain the proper construction of the relevant provisions and then to apply that construction to the facts. As will become apparent, this is also the more efficient approach in this case.

• [12] The principles that apply to the interpretation of enterprise agreements are well-known and need not be restated. In essence, the meaning of a provision is to be ascertained by reference to text, context, and any objectively manifested intention or purpose. The provision that is centrally in contest is the progression clause in the grade 4 classification. The HSU's construction is that the words 'additional given responsibilities determined locally' etc that are referred to in the second dot point in the progression clause in grade 4 have the same meaning as the words 'additional responsibilities' etc referred to in the third dot point under 'duties' in grade 4, and those words as they appear in the progression clause in grade 3. The words are the same in each instance. The HSU submitted that the same words must be given the same meaning and that accordingly its interpretation was correct. I disagree.

• [13] First, the word 'additional' means 'added', 'supplementary' or 'extra'. It suggests a relationship: additional to something else. Where 'additional responsibilities' and the associated words appear in the progression clauses in grades 3 and 4, the immediate context is the text that comprises the descriptors for those grades. 'Additional responsibilities' in the progression clause at grade 3 logically refers to responsibilities that are additional to the responsibilities of the grade 3 classification. The same is true at grade 4. In order to progress to the next grade, employees must undertake responsibilities that are additional to the ones that they are already performing in their current grade. It does not make sense to say that, for the purpose of progressing from grade 4 to grade 5, employees are to undertake 'additional responsibilities' by continuing to do the same thing. Such a contention collides with the inherent meaning of the word 'additional'. On the HSU's construction, the 'additional responsibilities' that are required for progression are not added, supplementary or extra: they can be the same as those that have already been undertaken. The HSU's construction also runs contrary to the broader context in which the word appears, namely a classification structure, which by its nature is an ascending graded structure for work and pay. It is only logical that where the structure speaks of additional responsibilities for higher grades and progression between grades, the 'additionality' is relative to the context of the grade in question.

• [14] There are other reasons why the HSU's construction cannot be correct. On the HSU's interpretation, once theatre technicians have progressed from grade 3 to grade 4, all that is necessary for them to progress from grade 4 to 5 is that they serve 12 months at grade 4. The union contends that, because the 'additional requirements' that are needed to move from grade 4 to grade 5 are the same as those needed to move from grade 3 to grade 4, the technician will already have undertaken the required additional responsibilities once she or he reaches grade 4. Thus, after 36 months as a theatre technician at grade 3, the technician progresses to grade 4, and after a further 12 months, the technician moves to grade 5. I find it improbable that such a framework could have been intended. The meaning contended for by the HSU could have been achieved by a one line statement that a grade 4 theatre technician will progress to grade 5 after 12 months at grade 4. But the Agreement does not say this. It goes on to require that employees undertake 'additional given responsibilities'. Moreover, a singularly time-based progression criterion from grade 4 to 5 is implausible in the context of a classification structure that is concerned with four relevant subcategories, only one of which is time-based 'experience'.

• [15] Additionally, the HSU's construction gives the second dot point in the progression provision in grade 4 no work to do, because, as it contends, the employees in question have already undertaken the additional responsibilities, and there are no new 'hoops' to jump through. As I understand it, the HSU also contended that the additional responsibilities at grade 5 are also the same as those previously required of employees at level 4. But if that were the case, the grade 5 classification would be redundant, because the progression clause at grade 4 would have done its work; all that would be required for grade 5 was a rate of pay.

• [16] The HSU contended that Northern Health's construction required words to be read into the relevant provisions, to the effect of there being a progression requirement that employees undertake further additional responsibilities. I reject this contention. 'Additional given responsibilities' in this context already connotes that there must be further responsibilities undertaken. It would have been tautological for the text to have referred to 'further additional' responsibilities.

• [17] There is no evidence that the five employees have undertaken any responsibilities that are additional to those that they claim to have undertaken as part of their grade 4 duties. On the proper construction of the Agreement, it is a necessary condition for progression from grade 4 to grade 5 that a theatre technician undertakes such additional responsibilities. In the absence of evidence substantiating the satisfaction of this requirement, the HSU's application must be rejected. Accordingly, I find that Northern Health is not required to reclassify the employees at level 5.

• [18] I reach this conclusion assuming, but without deciding, that the employees are properly classified at grade 4. The question for determination is whether the employees must be reclassified at grade 5, not whether they are properly to be regarded as grade 3 technicians despite being paid at grade 4. It is simply not necessary that I make factual findings to determine that question when it is clear from the proper construction of the Agreement and the evidence that the answer to the question posed for determination is 'no'.

• [19] There is an additional reason why the HSU's claim cannot be accepted. The progression clauses at grades 3 and 4 speak of employees undertaking additional given responsibilities that are 'determined locally'. To be determined, they must have been identified as given responsibilities for the purposes of the clause. This could not occur without the employer's agreement. In my view it is not enough that an employee simply undertakes work that might generally be described as 'supervision' or 'quality' or 'rostering' etc, as the HSU appears to have believed. The responsibilities must be particularised: which additional responsibilities will be undertaken, when, and how often etc. There is no evidence in this case that any additional responsibilities were locally determined for the purposes of the employees' progression from grade 4 to grade 5.

• [20] The HSU is correct to say that the Agreement does not state that progression to level 5 theatre technician is contingent on a vacancy at that level. However, the requirement that additional responsibilities be determined locally may have the practical consequence that an employer will be reluctant to agree to the determination of additional responsibilities for progression to the next level unless there is a vacancy or at least work that needs to be done at that level. But this is not a reason to prefer the union's interpretation. Disagreements about such matters can be taken through the dispute resolution procedure in the Agreement and ultimately to the Commission for determination. To my mind, the process of determining additional responsibilities locally is an important design feature of progression between grades. It confers a measure of flexibility that one would expect of an enterprise agreement that covers many different employers in the Victorian health sector.

• [21] I note for completeness that the employees cannot be considered to satisfy the requirements of the grade 5 classification directly, because they must first have met the conditions to progress to that level under the progression clause in grade 4. At grade 5, an employee must then perform all of the additional responsibilities in dot point 3 under duties, rather than just any of them. Finally, I agree with the HSU that some of the reasons cited by Northern Health in its correspondence with the union for not reclassifying the five members were not cogent ones. But this is beside the point. Northern Health is not required to reclassify the employees because they do not meet the requirements of the progression clause at grade 4.

• [22] The answer to the question submitted for determination is 'no'. Northern Health is not required to reclassify the five employees at grade 5.

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