Health Services Union v Sydney West Area Health Service

Industrial Relations Commission (NSW)|2007-10-09|Before: Maidment J

CITATION: Health Services Union v Sydney West Area Health Service [2007] NSWIRComm 1064

APPLICANT Health Services Union PARTIES: RESPONDENT Sydney West Area Health Service

CATCHWORDS: Dispute - grading of Ward Clerks - Recommendation issued during conciliation - backpay requested - passage of time affecting case - case not made out - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

Health and Research Employees Association of New South Wales & The Hunter Area Health Service and Others [2001] NSWIRComm 1013 CASES CITED: Jones v Dunkel (1959) 10 CLR 298 Health Services Union v Ambulance Service of New South Wales (No. 1) [2007] NSWIRComm 151

APPLICANT Ms K King Health Services Union LEGAL REPRESENTATIVES: RESPONDENT Mr G Foy Sydney West Area Health Service

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by Health Services Union of a dispute with Sydney West Area Health Service and another re incorrect grading of ward clerks

1 This is a notification by the Health Services Union ("the Union") pursuant to s130 of the Industrial Relations Act 1996 ("the Act") of a dispute with Sydney West Area Health Service and another ("the AHS"). The dispute concerned the Union's application for re-grading of Ward Clerks at Blacktown/Mt Druitt Health ("BMDH") from Administration Officer Level 1 to Administration Officer Level 2 under the Health Employees Administrative Staff (State) Award ("the Award"), for a period prior to September 2003. 2 The dispute was listed for compulsory conferences on a number of occasions in 2006 before Deputy President Grayson, who subsequently issued a certificate of attempted conciliation. Directions were issued in preparation for a hearing of the matter which was listed before me on 4 October 2007. 3 Based on the facts that an internal memorandum issued in May 2001 confirmed a new organisational structure effective 1 May 2001, a regrade application for Ward Clerks at Blacktown/Mt Druitt was submitted in November 2002 and the application was discussed at a disputes committee in April 2004, the Union contended (in its outline of contentions filed 20 August 2007) that Ward Clerks at Blacktown/Mt Druitt "should at the very least be paid Administration Officer Grade 2 [sic] rates from 1 May 2001." Ms King appearing for the Union clarified during the proceedings that the Union sought an order for the classification and remuneration of Ward Clerks at Mount Druitt Hospital at Administration Officer Level 2 from 2 March 1998 until November 2003. 4 Mr Foy appearing for the AHS submitted that the positions of Ward Clerk at Blacktown and Mount Druitt Hospitals were properly classified as Administration Officer Level 1 during the relevant period. In November 2003 the Ward Clerks were reclassified to Level 2 following the rollout of the computerised Patient Identification Management System ("PIMS"). An offer to backdate the payment to September 2003 to cover the period of training for the introduction of PIMS was refused by the Union. History of the Award 5 The Award was made on 2 March 1998 by His Honour Justice Maidment (307 IG 82), introducing definitions of seven levels of Administrative Officer, at Levels 1, 2, 2A, 3, 4, 5 and 6. It replaced the Health Employees' Administrative and Clerical (State) Award published 8 May 1998 (304 IG 897), which contained rates of pay for Clerks from Grades I to VIII, without definitions, along with rates for other classifications. The transitional arrangements were set out by the NSW Health Department in Circular No 98/27 issued on 29 April 1998. The translation table attached to the circular showed that the position of Clerk Grade 1 translated to Administration Officer Level 1, Clerk Grade 2 to Administration Officer Level 2, and so on. 6 Ms King made the point that there was no assessment of the work of Ward Clerks prior to the Translation being implemented. While not refuting this claim, Mr Foy pointed out that there were no challenges made to the grading at the time. 7 The definitions in the Award included the following: Administration Officer - Level 1 - These positions are established for undertaking routine clerical work. An employee at this level may be a trainee with no previous experience. Work is performed under close supervision, requiring the application of basic skills and routines such as providing receptionist services, straightforward collating, collecting and distributing, carrying out routine checks by simple comparisons, maintaining basic records, mail procedures, obtaining or providing information about straightforward matters and routine user maintenance of office equipment. Work performed is within established routines, methods and procedures. The work which it is envisaged would come within this level would require the exercise of any one or more of the skills as set out below: Operate personal computers, printing devices attached to personal computers, paging system calculator.

Level 2 - Training of other employees may be required. Undertaking a range of operational and administrative tasks under general instruction and close supervision but with discretion in selecting the most appropriate method and sequence. Requires knowledge of specific procedures and regulations. The exercising of basic judgment is required, although problems encountered are of a simple nature, with solutions found by reference to established methods and procedures. The work which it is envisaged would come within this level would involve a range of activities requiring the use of numeric, written and verbal communication, and other work skills appropriate to the tasks and responsibilities. In addition to other pay office duties, the actual calculation of salaries. 8 There have been no variations to the Award classifications since that time.

Background to the claim 9 The chronology of some of the relevant events is usefully set out in the AHS's outline of contentions as follows: 1. In November 1999, Western Sydney Area Health Service (now SWAHS) introduced a new Patient Administration System (PAS). That system included a component called PIMS (Patient Identification Management System). 2. PIMS/PAS was introduced at Westmead Hospital in November 1999 and was subsequently and progressively introduced into other hospitals across the Area Health Service. 3. A submission seeking the regrading of the Westmead Ward Clerks was received by Area Management on 24th January 2001. This was the first approach by Ward Clerks from any hospital within the Area of regrading following the introduction of the Health Employees Administrative Staff (State) Award in 1998. 4. As a result of negotiations between the Area Health Service and the Health Services Union (HSU), agreement was reached to regrade the Ward Clerks at Westmead from Administrative Officer (AO) level 1 to AO level 2, effective from the date of receipt of the regrading submission by Management, that is 24th January 2001. 5. This Agreement was made in a genuine attempt by the parties to recognise the current and potential contribution made by the Ward Clerks and was made on the basis that it "should not be used as a precedent for any other current or potential claims". 6. The progressive roll out of PIMS/PAS continued with its introduction at Blacktown/Mt Druitt in November 2003. 7. Ward Clerks at Blacktown/Mt Druitt were regraded from AO1 to AO2 effective from September 2003. 8. In May 2004 PIMS/PAS was introduced at Auburn Hospital and consistent with the approach adopted by the Area at Blacktown/Mt Druitt the Ward Clerks there were regraded from AO1 to AO2 from March 2004. That process was accepted by the staff concerned. 9. The Area has taken the view that the Ward Clerk grading of AO1 was the appropriate one and was consistent with the Award definition until the introduction of PIMS across the Area and has regraded the affected staff accordingly. 10. Notwithstanding the HSU's position that the duties of Ward Clerks correspond to the Award definition of an AO2, it is the Area Health Service's view that there has been an acceptance of its contention that it was appropriate to regrade these clerks to AO2 following the progressive introduction of PIMS/PAS. The May 2004 introduction at Auburn Hospital is evidence of that. 10 It is noted that the Union claimed that the issue was first raised in April 2000, not January 2001. In correspondence dated 26 April 2000, the Union stated: The Association writes on behalf of the Clerical sub-branch at Westmead and all of our members employed as Ward Clerks. It is our understanding that all Ward Clerks employed at Westmead Hospital are classified as "Administration Officers Level 1". Under the Award provisions as set out in the Health Administrative Staff (State) Award, work within this level is performed under close supervision requiring the application of basic skills. It further states that an employee at this level may be a trainee with no previous experience. We note that all Ward Clerks at Westmead Hospital carry out a broad range of duties in accordance with their job descriptions which requires them to undertake operational and administrative tasks under general instruction but with discretion in selecting the most appropriate method and sequence. Also they require knowledge of specific procedures and regulations and exercise basic judgment. This is consistent with the classification of "Administration Officer Level 2" as set out in the above named award. Area Health Services surrounding Western Sydney have recognised the above situation within their own hospitals and have reclassified all Ward clerks to the grading of Administration Officer Level 2. The Association on behalf of the Westmead Clerical sub-branch now requests that Westmead Hospital take action to reclassify all Ward Clerks to the grading of Administration Officer Level 2, this to be effective from this date. The Association further understands that this will have effect across all of Western Sydney Area Health and may require consultation to be resolved. ... 11 Regardless of the date on which the issue was first raised, it is clear from the evidence that the question remained "live" through to October 2004, and was revitalised by the Union mid-2006, leading to the current proceedings. The Union's arguments Reasons for offers in 2003 12 The AHS advised in 2004 that the BMDH Ward Clerks would be regraded from September 2003, the time when the PIMS training commenced. The AHS has consistently maintained its position that the regrading of Ward Clerks throughout the AHS generally took place following the introduction of the PIMS and the Patient Administration System ("PAS"). The introduction of PAS was underway during 2001 and was fully operational by 1 January 2002. The Union contended that the AHS's decision to regrade was in response to the Union's earlier application for regrading, which was not dependent on the introduction of the PIMS. Because of this, the Union refused the offer to backdate the re-classification to September 2003. 13 Correspondence from the AHS shows the reason for its decision as the introduction of PIMS. While the chronology of events indicates that the application for regrading was made prior to the regrading taking place, the Union brought no evidence to support its contention that the reason for the regrading was different to that given by the AHS. Ward Clerks at Westmead 14 Ward Clerks at Westmead Hospital were regraded from Administration officer Level 1 to Administration officer Level 2 from 24 January 2001. The offer to regrade the Westmead Ward Clerks was made in a document headed "without prejudice" and included the words: This offer ... should not be used as a precedent for any other current or potential claims.

It follows that the reasons for and timing of the grading of Ward Clerks at Westmead is not an issue for consideration in the present matter. The 2004 Disputes Committee 15 I note that the Ward Clerks at BMDH were regraded effective from 2 November 2003. The AHS's offer to backpay to September 2003 was rejected by the Union at the time. The issue of backpay up to November 2003 remained active. According to the evidence of Julie Cowdrey, an Organiser with the Union, the 2004 Disputes Committee was provided with the following information: · The award definitions for levels 1 and 2 Administration Officers. · The outcome of the dispute in regard to reclassification in the Hunter Area Health Service. · Copies of minutes and agenda from Ward Clerks' meetings. · Copy of original regrade application lodged in November 2002. · Job description from other facilities. · Some information about work performed by Ward Clerks at BMDH. 16 The regrade application lodged on 25 November 2002 was supported by the Clerical Services Manager and the Campus Manager at the Mt Druitt Hospital. It contained a number of unsigned assertions about the work of Ward Clerks as well as undated Statements of Duties. Ms Cowdrey acknowledged that the Area Human Resources Manager and the Human Resources Manager, Sydney South West Area Health Service disagreed with the evidence. Some time later an offer was made which was rejected by the Union. 17 The Union contended that "the outcome of the disputes committee did not have any bearing or take into consideration the original regrading application." No evidence was presented to support this contention. On the other hand, correspondence to the Union dated 26 July 2004 making an offer of settlement clearly makes reference to the Disputes Committee. I accept the AHS's contention that the evidence considered in making that offer would have included the material before the Disputes Committee. 18 The fact that the material presented to the Disputes Committee was disputed by the AHS at the time makes it difficult, if not impossible, in the absence of more specific evidence, to come to a different conclusion today to the decision reached by the AHS in 2004. Statements of duty prepared by Ward Clerks in 2003/2004 do not carry sufficient weight to be accepted as accurate materials by this Commission when they were not accepted as accurate by the AHS at the time.

Advertisements 19 The Union contended that "various positions for Clerks [at BMDH] were graded as Administration Officer Level 2." The copies of advertisements tendered were difficult to read, but it appears that the positions of Ward Clerks at Blacktown campus do not fit the Union's description of being graded at Level 2. The Level 2 positions were clerical positions other than Ward Clerks. 20 Ms Susan Manson, employed as a Ward Clerk at Mount Druitt Hospital since May 1999, stated that all positions were advertised in January 1999 as Administrative Officer Level 2. She provided a copy of an advertisement for a Ward Clerk which was not advertised as Level 2 (contrary to her statement). Ms King submitted that the inclusion in the advertisement of the words "Previous clerical position, good communication skills and proven ability to work unsupervised" meant that the positions were Level 2. Mr Foy, on the other hand, submitted that it was permissible to seek some experience and to do so was not inconsistent with the Level 1 descriptor, and that the ability to work unsupervised meant that candidates could be selected who had an ability to move up to a Level 2 position later in their employment, should one become available. 21 The Union noted in its contentions that recent advertisements for various clerical positions were advertised at Administration Officer Level 2. The advertisements provided in evidence were for various clerical positions across a range of Area Health Services and were dated 2007. I fail to see the relevance of these documents to the question presently before the Commission. It is more than reasonable that current vacancies for Ward Clerks are advertised as Level 2, since the positions have been classified this way for a number of years. Supervision

22 The decision of Commissioner Cambridge in Health and Research Employees Association of New South Wales & The Hunter Area Health Service and Others [2001] NSWIRComm 1013 was cited by Ms King in support of her submission that the degree of supervision was relevant to the grading of Ward Clerks at Mount Druitt Hospital between 2 March 1998 until November 2003. The Health and Research Employees Association of New South Wales is the name by which the Union, the applicant in these proceedings, was formerly known. 23 In his decision, the Cambridge C stated at [19]-[20]: 19. It is readily discernible that the Work Level Statements for the Administration Officer - Level 1 and Level 2 positions are generic descriptions which are not dissimilar to various broad work level descriptions which were inserted into numerous Awards during the process known as Award Restructuring. In this regard it should be noted that the Award also contains the following statement: "Work Level Statements - Employees will not be required to meet all conditions of the work level statements but will generally be expected to be carrying out the responsibilities contained within the descriptions." 20. The insertion of generic job descriptions in place of defined job classifications was a familiar component of the restructuring that has occurred in many Awards both of this Commission and in other jurisdictions. It is therefore not surprising to find that, on occasions, disagreement has arisen regarding the application of the broader position descriptions which replaced the more rigid job classifications. 24 The Commissioner noted the usefulness of workplace inspections in making his determination of the Award generic descriptors, the benefit of which, he said, "could not be overstated". He also noted the differences between the parties on the interpretation of the descriptors, even given "no significant factual contests" in the evidence. 25 Resulting from the workplace inspections, Cambridge C was able to analyse the level of supervision for shift workers and the range of duties performed by day workers. In particular, day workers rotated through a range of distinct roles which included PMI Clerk, Marking Through Clerk, Admissions Clerk, Relief Day Work, Emergency Clerk, Receptionist and Clinic Clerk, some duties of which were incorporated into the Level 1 descriptors, others in Level 2. Shift workers worked under conditions where the supervisor was, at times, at home and only contactable by telephone or pager. 26 No such comparable evidence was presented in the current proceedings. The only relevant assertions about the level of supervision were amongst the material disputed in 2004. Jones v Dunkel inference 27 Ms King suggested that witnesses employed by the AHS could have been called to give evidence, naming a number of employees involved in the 2004 Disputes Committee. She submitted that a Jones v Dunkel (1959) 10 CLR 298 inference be made. She referred to a decision of Deputy President Grayson in which it was found that the absence of witnesses called by the respondent to refute the Union's evidence was a significant omission (Health Services Union v Ambulance Service of New South Wales (No. 1) [2007] NSWIRComm 151). Ms King's submission overlooks the fact that, in the present case, there was no need to refute any evidence from the Union because the Union's evidence showed that material provided had been refuted by the AHS in 2004. 28 Further, if the Union had wished to call any of the named AHS employees, for the purpose of clarifying what material was objected to by the AHS in 2004 or any other purpose, they were free to do so. Recommendation of the Commission 29 On 13 October 2006, following a number of compulsory conferences in this matter, Grayson DP issued a statement incorporating the following recommendation: The Commission therefore confirms what has been said in private conference, and that is by way of the strongest possible recommendation that a sensible offer of settlement ought to be formulated by the employer and made to the union and if indeed that offer is sensible, then it ought to be accepted without hesitation in settlement of this dispute. I so recommend. 30 Because a Certificate of Attempted Conciliation was subsequently issued by His Honour and the matter referred to me for arbitration, it is evident that no such settlement was reached. In fact, Ms King submitted that the Commission take into account, pursuant to s134(2), that the recommendation was not followed by the AHS. 31 His Honour's comments immediately prior to the recommendation quoted above referred to the undesirability of the expense of significant time, effort and money in prosecuting the case. I can only agree with his sentiments in the circumstances of the current proceedings where, because of the time frame involved, there is no certainty or precision in the evidence before the Commission. 32 I have no doubt that an offer of settlement early in these proceedings may have produced a more agreeable outcome for all concerned.

The passage of time 33 One aspect of the Union's claim appears to be that a regrading should be granted because they have been asking for it for a long time. Of course, that is not an argument likely to succeed in any industrial matter. According to the dispute notification, Ward Clerks employed at BMDH were underpaid from 1 May 2001 to September 2003. The ongoing dispute has involved "extensive consultation and a dispute committee without satisfactory results". The AHS has "continually rejected" the Union's application to regrade the Ward Clerks. Unfortunately for the applicant, no new evidence has been presented to the AHS or to this Commission since 2004, sufficient to be persuasive of a different outcome. 34 The fact that the Union referred to an even earlier period in its draft orders provided during the hearing, that is, from 2 March 1998, adds to the difficulties which normally arise from the passage of time. 35 The Union relied in this matter on the decision of Cambridge C in a related matter, a dispute following which Administration Officers at Level 1 were reclassified at Level 2 from the date on which the dispute was notified. That outcome should have been reason enough to inform the Union of the importance of moving swiftly in settlement of the issues of re-classification outstanding at the time. 36 The Union's notification stated that employees at other facilities who carry out the same work as Ward Clerks at BMDH have been paid the Level 2 rate since January 2001. This claim has not been substantiated, either to the extent of determining "the same work" or when other Ward Clerks were paid. The notification also stated that a reorganisation occurred at Mt Druitt on 1 May 2001 without regrading or other increase in payment. The evidence does not show that any change occurred beyond a change in reporting lines, which would not justify a regrading or pay increase. 37 The passage of time has had the effect of narrowing the scope of the dispute from BMDH to Mount Druitt Hospital only. No reason was given for this. The time-frame over which the re-classification is claimed, however, has expanded from 1 May 2001 to September 2003 to the greater period from 2 March 1998 to November 2003. Again no reason was given for the change. Both changes were made without objection.

Conclusion 38 The Union's outline of contentions filed in this matter gave a brief summary of the historical events and the ongoing disagreement between the parties. 39 Various assertions were made during the lengthy period during which the application for regrading of Ward Clerks at BMDH remained active. The new organisational structure changed reporting lines, not affecting job descriptions. The submission presented to the Blacktown/Mt Druitt Executive Management Committee contained a job description for Ward Clerks at Westmead, not one for Ward Clerks at BMDH. The claim for back pay presented to a Disputes Committee in April 2004 was largely unsuccessful. 40 There was no evidence tendered to provide grounds for a different outcome before the Commission to that made by the AHS some years ago. Contested evidence before the Disputes Committee has not been clarified. Areas of disagreement have not been narrowed. The statement of duties undertaken by Ward Clerks at the relevant period does not fall outside the definition of Administration Officer Level 1. 41 I have taken into account the AHS's failure to comply with the recommendation of the Commission issued in October 2006. It does not persuade me to a different outcome than that which is required on the basis of the substantive evidence in the case. 42 In short, the Union has not made out its case. 43 As a result, it is not appropriate to make the Order sought by the Union, nor any other recommendation, direction or order in relation to the classification of Ward Clerks employed at Blacktown/Mount Druitt Health, including Mount Druitt Hospital, prior to September 2003. The Union's application is dismissed. 44 The matter is concluded.

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.

[2001] NSWIRComm 1013

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Judgment (17 paragraphs)

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Cases Cited (3)