Solicitors:
Maurice Blackburn Lawyers (Applicant)
NSW Ministry of Health (Respondent)
File Number(s): IRC 450 of 2015
[2]
STatement
By an application filed on 20 June 2014 (Matter Number IRC 515 of 2014), the Health Services Union NSW ('the HSU') sought a new award to cover allied health assistants or, alternatively, a variation to the Health Employees (State) Award with respect to that class of employees of the Government of New South Wales in the service of the Crown (allied health assistants are engaged in the New South Wales Health Service - see s 115(1) of the Health Services Act 1997) (hereinafter 'the original application').
Allied health assistants assist allied health professionals with therapeutic and programme related activities. They do so under the supervision of these professionals in a variety of allied health disciplines. The disciplines nominated under the original application were dietetics, diversional therapy, exercise physiology, mental health, occupational therapy, orthotics/prosthetics, physiotherapy, podiatry, radiography and speech pathology.
On 1 May 2015, the Secretary for the Ministry of Health ('the Secretary'), who exercises the employer functions of Government in relation to the staff employed by the New South Wales Health Service (see s 116 of the Health Services Act), filed a Notice of Motion seeking that the aforementioned application be dismissed or stayed for want of jurisdiction. Reliance was principally placed, in that respect, upon s 146C of the Industrial Relations Act 1996 ('the Act') and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ('the Regulation').
Whilst not conceding the jurisdictional challenge advanced by the Secretary, the HSU met the motion, in practical terms, by the filing of a fresh application with respect allied health assistants on 1 July 2015 (hereinafter 'the application'). The application was in similar terms to the original application but was confined to seeking a new award. That award was proposed to be known as the NSW Health Service Allied Health Assistants (State) Award.
When the application was first called, Mr M Gibian of counsel, who appeared for the HSU, sought leave to discontinue the original application. That application for leave was granted. In like fashion, Mr R Warren of counsel, who appeared for the Secretary, withdrew the Notice of Motion. Further, the parties agreed that the evidence filed in Matter Number IRC 515 of 2014 would be evidence in these proceedings.
There is one further procedural matter that requires mention at the outset of this statement.
In early proceedings concerning the original application, the Secretary contended that the Commission should hear, at the outset, submissions as to whether the HSU had identified sufficient cost savings to sustain the application having regard to the provisions of s 146C of the Act and the Regulation. On 12 December 2014, the Full Bench ruled that we would not adopt that course but rather first consider the merits of the application. The approach adopted mirrors that which was later adopted in Operational Ambulance Officers (State) Award [2015] NSWIRComm 17. For convenience we set out an extract from that decision (at [5] and [6]) in order to reflect the approach adopted in this matter:
5 Prior to the commencement of the hearing of Matter No IRC 73 of 2014, procedural directions were made in effect dividing the case into, potentially at least, two stages. Those directions were made consistent with the process outlined in Re Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122 at [32].
6 The first stage of the proceedings involved hearing evidence and argument as to the merit of the application. If merit were established the second stage would involve hearing evidence as to the cost of the claim and the cost savings, if any, which may be necessary to ensure compliance with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("the Regulation").
That procedure was carried over into these proceedings.
This statement concerns the determination by arbitration of the first stage of these proceedings.
Despite earlier attempts at conciliation, there was a substantial contest as to most aspects of the application. The Secretary did, however, concede that a variation was required to the Health Employees (State) Award so as to ensure all allied health assistants were covered by an award. The Secretary's proposal (exhibit 7) was, in substance, to expand the scope of the existing classifications which had applied to most allied health assistants, namely, 'Technical Assistant', so as to cover all allied health assistants and to increase award rates of pay for allied health professionals by 2.5 per cent.
The evidence in the proceedings consisted of evidence carried over from the earlier proceedings as well as freshly filed evidence in these proceedings. As the matter was closely contested, most witnesses were cross examined and the Commission received substantial submissions as to the first stage. On the final day of hearing, the Commission reserved decision after the receipt of further written submissions as to some particular matters which were filed by the HSU and the Secretary on, respectively, 1 and 8 October.
The issues arising in the first stage of the proceedings were essentially four fold:
1. Irrespective of the content of any award made, should a separate award be made to regulate the employment of allied health assistants (noting that existing awards presently cover a substantial proportion of persons employed in that occupation)?
2. Has the HSU succeeded in making out an arbitrated case under principle 8 of the Wage Fixing Principles (see State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 and cl 14 of the Wage Fixing Principles established by the State Wage Case 2015 [2015] NSWIRComm 31) and, in particular, has the HSU satisfied the criteria stated in sub-principles 8.2 and 8.4 for an increase in wages (including new classification structures) for the group of employees the subject of the application?
3. Having regard to those principles and the requirements of the Act, and in particular s 10 thereof, should a new classification or classification structure be established for allied health assistants?
4. If the Commission considered that a new classification structure should be created, what structure should be adopted and what rates of pay should be fixed in that respect?
The answer to these questions (with the possible exception of the first question) must, of course, depend upon the ultimate determination in the matter and, in particular, any arbitration of issues arising under stage two.
We have decided to express an early view via this statement as to the above questions in advance of giving detailed reasons in a decision as to stage one of these proceedings. We do so to avoid the significant delay which will arise if further steps in the proceedings are required to await detailed reasons. We are mindful of the fact that, if affirmative answers are given to the first three questions, then further processes will be required in order to reach a conclusion as to the fourth question. In turn, the hearing of stage two of the proceedings will be dependent upon that very quantification process so that proper assessments may be made as to costs (and the related question of cost savings). We also have in mind the limited opportunities for the Full Bench to sit in the disposition of the balance of the matter.
This statement, then, sets out the conclusions we intend to reach with respect to questions one to three respectively and some views as to the further progress of proceedings (including steps required for the resolution of the fourth question).
The conclusion we have reached with respect to the first question is that a separate award should be made for allied health assistants known as the NSW Health Service Allied Health Assistants (State) Award. Broadly speaking the structure of the award proposed by the HSU appears to be suitable but we express no final view in that respect at this stage.
We answer the second question in the affirmative. In particular, we consider there have been changes in the nature of work and level of skill and responsibility required of the persons performing the work of allied health assistants such as to satisfy the work value criteria. Changes in qualification requirements and qualifications form an important part of our conclusions in that respect. However, the work value change has been variable in its distribution and impact across the workforce.
The HSU has also made out a special case. Our conclusions, in that respect, relate specifically to the process, publication and implementation of the following: the Final Report in the Special Commission of Inquiry into Acute Case Services in NSW Public Hospitals (by Commissioner Garling SC as he then was); the Allied Health Assistance Initiative; and, the Allied Health Assistant Framework (which was released in August 2013 by the New South Wales Ministry of Health).
We also answer the third question in the affirmative. The HSU has made out a case to replace the existing classification system for allied health assistants in favour of a new classification system. We consider the alternative proposition advanced by the Secretary is neither an appropriate resolution to the successful application brought by the HSU nor a suitable classification system for allied health assistants under their present working arrangements in the New South Wales Health Service.
We do not consider that it is appropriate to answer the fourth question at this time. The resolution of that question would benefit from further conciliation (which both parties have agreed to undertake) and, if conciliation fails, further submissions directed specifically to that question in light of this statement.
We propose to give some broad guidance to the parties in advance of those further processes as follows:
1. We consider that the definition of the base level classification proposed by the HSU is attended by some difficulties, some of which were amply demonstrated in the case mounted by the Secretary;
2. We consider that the classification structure should provide for progression which, inter alia, would recognise qualifications;
3. We have reached no final conclusion as to appropriate rates of pay or relativities but we expect that the salary adjustments which would arise for a substantial number of allied health assistants falling within the new classification structure will exceed 2.5 per cent and that the overall cost of the new award will exceed 2.5 per cent;
4. The award should provide for transitional arrangements.
In the result, we adjourn stage one of the proceedings into conciliation before Harrison DP with a view to considering the form of the new award including the classification structure and quantification of salary adjustments arising under the new classification structure. His Honour shall commence that process with a conciliation conference held in Sydney at 10.30am on Thursday 12 November 2015. If the matter does not settle in that forum we will then adjudicate upon the balance of the matters in stage one of the proceedings at an early time.
[3]
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Decision last updated: 28 October 2015