NSW Health Service Allied Health Assistants (State) Award [2016] NSWIRComm 6

Conciliation

1. It followed that the first Statement did not resolve the question of an appropriate classification structure and rates of pay for the new award for the purposes of stage one of the proceedings.
2. The matter was adjourned for further conciliation conducted by Deputy President Harrison to assist in the resolution of these issues.
3. Conciliation proceedings took place on 12 November and 9 December 2015 and 22 January and 26 February 2016.
4. During the course of the conciliation, agreement was reached to increase rates of pay by 2.5 per cent from 1 July 2015. There was also substantial agreement concerning the structure of an award and agreement to add a new classification of "social worker" to the schedule of the award.
5. The parties were unable to reach agreement on the classification structure (including definitions), rates of pay and transitional arrangements.
6. The matter was returned to this Full Bench for determination.
7. This Statement constitutes a resolution of the remainder of the issues in stage one of the proceedings. We shall deal with each such issue below.

Classification Structure

1. The differences between the parties as to classification structure were reflected in the respective proposed draft awards in clauses dealing with definitions, qualifications, classifications and rates of pay. We do not propose to attend upon the minutiae of those differences but, rather, fix upon what we consider to be the principal differences lying between the parties as to classification structure. Those differences were threefold: 1. There was a dispute as to whether the entry level should be confined to allied health assistants under the direct supervision of a designated allied health professional or extend to allied health assistants who also operate under indirect or remote supervision, particularly those in rural or remote geographical locations. 2. The respondent sought the establishment of a classification structure with three yearly increments (with some qualification elements in the latter two years), whereas the HSU proposed three levels based upon the nature of duties or qualifications held by the allied health assistants. 3. The progression under the HSU classification structure was essentially by means of qualification, with level two being dependent upon holding a Certificate III qualification (or other qualification deemed equivalent by the employer) and entry to level three requiring the holding of a relevant Certificate IV qualification (or other qualification deemed equivalent by the employer). The HSU's draft award also provided that the employer may permit entry by unqualified allied health assistants into levels two and three where it has deemed an allied health professional to have "equivalent experience". The Ministry recognised that entry to years two and three may occur via the holding of Certificates III and IV respectively but provided that progression to each successive year may also occur, independent of any qualification held, by the completion of 12 months' satisfactory service in the previous year.
2. A single exception, which we will discuss below, when we consider that a new award should incorporate the classification structure proposed by the HSU.
3. As to the first issue, we do not accept the Ministry's contention that unqualified allied health assistants who work under indirect or remote supervision should be treated as equivalent to employees who work only under the direct supervision of an allied health professional.
4. It is clear that an entry level classification is required in the award to recognise that employees will initially receive training and direct and close supervision until they develop the requisite expertise allowing for advancement. However, we do not consider, on the evidence, that employees who have reached the level where allied health professionals have sufficient confidence in their clinical ability to function under indirect or remote supervision may be treated in the same way as those who are not so assessed.
5. We accept that the necessity to work remotely or under indirect supervision is a feature of geography and distance but that does not undermine the basic consideration that employees must be equipped with the skills to work in that environment and be accountable in that context for the work they perform under the remote supervision of allied health professionals. The fact that a number of unqualified allied health assistants already work in rural areas under remote supervision does not defeat this assessment but merely results in the conclusion that, with the benefit of this work value review, the conclusion may be reached that these employees are underpaid.
6. The HSU proposed that level two be constituted by allied health assistants who possessed the dual attributes of performing duties under indirect supervision and hold the requisite Certificate III qualification. In our view, the duality of that requirement is inappropriate and will unnecessarily disadvantage employees working in rural areas. In the result, we consider that level two entry should be available where employees are engaged under indirect or remote supervision or hold Certificate III qualifications (and in that case may or may not be under direct supervision).
7. There has been a steady progression to the establishment of a qualified workforce since the creation of Certificate III and Certificate IV qualifications. The Ministry has, in our view, quite correctly as a matter of practice and good public policy embraced the qualifications. In the recruitment of new employees, possessing a qualification is preferred and a willingness to obtain a qualification is required where qualified candidates are not available.
8. The evidence is that since 2007/2008 a large proportion of employees have gained a qualification. Mr Gibian relied upon the evidence of Ms Synnott (Exhibit 49, para 7) that the Ministry calculated that, by using an extrapolation of 2012 data, by 2014 86 per cent of allied health assistants would have gained a qualification (82 per cent Certificate IV and 4 per cent Certificate III) to refute the assertion that limited future opportunity to obtain qualifications could impact on the number holding qualifications.
9. Mr Gibian noted that new employees were likely to be required to hold a qualification prior to employment or be prepared to commit to obtain a qualification on appointment.
10. Mr Warren submitted that acquisition of qualifications was not uniform across all local health districts. He referred to Exhibit 44 which, he submitted, revealed that 44 per cent of allied health assistants at the Nepean, Blue Mountains Local Health District ('LBMLHD') did not have qualifications, to argue that the Commission should not introduce a system which does not reflect the current workforce system.
11. This submission is, in our view, ill conceived. In the converse, Exhibit 44 revealed that 56 per cent of allied health assistants do have the requisite qualifications. While this proportion is not as high as the State-wide average (of 86 per cent in 2014 upon the aforementioned extrapolation), it conforms with the trend toward a significant proportion of allied health assistants gaining qualifications, and is no doubt responsive to the initiatives taken by the Ministry. These developments should be recognised, encouraged and appropriately rewarded in the proposed award.
12. The Ministry contended that the classification structure proposed by the HSU would create a hard barrier to advancement and that many competent allied health assistants, particularly in rural areas, do not have such qualifications and have little practical opportunity to obtain them, thus being unfairly limited in progression.
13. That submission, in our view, is misconceived. Having progression in the classification structure based on qualification will be an incentive for improvement in the skill base, which is desirable in the public interest. In other words, the new classification structure will create positive 'stepping stones' to advancement. Moreover, the evidence before us indicates, contrary to the contentions of the Ministry, that applicants holding Certificate III and Certificate IV qualifications are preferred over unqualified candidates.
14. Further, the recognition of qualifications for advancement under the award will not prevent recognition of prior learning or placement of individuals with equivalent competency in the appropriate level based on clinical capacity under the classification structure proposed by the HSU as amended by this Statement. Hence, as a matter or practicality, there will not be a hard barrier to advancement.
15. The management of the changes introduced by an award made in these terms does not constitute an undue administrative burden. The award permits the employer to assess the progression of an employee by means other than the holding of a Certificate III or Certificate IV qualification by providing the opportunity of considering an alternative qualification or to assess the skills, knowledge and capability of the employee and to determine whether those factors are equivalent to a formal qualification. We agree with the submission of the HSU that anything arising from the making of this award is capable of being dealt with by the established administrative procedures in an unremarkable manner.
16. In particular, the absence of formal qualification for exercise physiology and a Certificate IV in radiography are not barriers to the establishment of the competency based classification structure as those matters may also be attended to by recognition of equivalent qualifications and experience.

Rates of Pay

1. The rates proposed by the HSU have the following bases:

• Level 1: the existing rates for Technical Assistant Grade 1 applicable to occupational therapists and dieticians.
• Level 2: the rates prescribed by the Health Employees Technical Officers State Award for the first four years of the Technical Officer classification and rates prescribed for Dental Assistants and Pharmacy Technician by the Health Employees State Award which have a Certificate III qualification.
• Level 3: the rates align with the eighth year of the Technical Officer Grade 2 of the Dental Assistant classification of the Public Hospitals Dental Assistants State Award which have a Certificate IV qualification.

1. Mr Gibian contended that the basis for alignment of these classifications reflected that allied health assistants had become a qualified workforce and that there had been commensurate changes in their work and responsibility.
2. Mr Warren submitted that the Commission should apply the Work Value Sub-Principle in the traditional manner as expressed in the Health Employees Pharmacists (State) Award and other Awards [2003] NSWIRComm 453; (2003) 132 IR 244.
3. He submitted that the Commission, having concluded that there is a significant net addition to the work value of allied health assistants, should independently assess rates of pay for the group and not merely adopt rates of pay from other health industry awards.
4. We accept the argument advanced by Mr Warren, although we will also take into account that the HSU has made out a Special Case.
5. The HSU claim proposes increases in rates of pay up to 20 per cent costed by the Ministry at $5m per annum. The Ministry submits that this level of increase cannot be sustained on a work value basis
6. The current rates of pay for allied health assistants are those prescribed for Technical Assistant Grade 1 by the NSW Health Employees State Award. Those rates are as follows:

• 1st Year $ 913.20 pw
• 2nd Year $ 931.40 pw
• Thereafter $ 952.60 pw

1. We do not accept that there is sufficient evidence to establish a direct correlation between allied health assistants and pharmacy assistants, pharmacy technicians and dental assistants upon which the HSU proposition is founded and we decline to establish a nexus. Nor do we consider that the work value changes and Special Case we have found warrants increases in rates of pay of the level proposed by the HSU. We consider that the incremental scale proposed by the HSU creates irregularities and inequality in the sliding scale.
2. The counterpart of these considerations is that we consider the rates of pay proposed by the Ministry substantially understate the appropriate rates of pay for allied health assistants, particularly having regard to work value considerations.
3. We determine the following salary scale and rates of pay for allied health assistants: Level 1 Entry: $913.20 Year 1: $ 925.00 Level 2 Year 1: $ 935.00 Year 2: $952.60 Year 3: $965.00 Level 3 Year 1: $995.00 Year 2: $1015.00 Year 3: $1040.00

Transitional Issues

1. We consider that the transitional salary arrangements proposed by the HSU are suitable.

Stage Two

1. This Statement, subject to the giving of further reasons, if required, represents the culmination of stage one of the proceedings. This Statement does not, of course, represent a final determination of the HSU's application. The ultimate disposition of the matter is subject to the Industrial Relations Act 1996 and, in particular, s 146C and, in consequence, the regulation.
2. Having regard to the position of undertakings previously given by the parties as to conciliation, we consider that stage two of the proceedings will be benefited from further conciliation undertaken by Harrison DP.

Directions

1. We direct that: 1. The HSU file and serve on or before 4pm Monday 13 June 2016 a draft award reflecting our first Statement and this Statement; 2. The HSU shall serve upon the Ministry of Health a draft set of proposals for the purposes of the conciliation of stage two of the proceedings on or before 4pm Monday 20 June 2016. The proposal should be cognisant of the determinations made in stage one, previous exchanges between the parties as to costings and, ultimately, the regulation; 3. The parties are directed to confer before the further conciliation and two days before the date fixed for conciliation the parties are to file a schedule setting out their positions as to the resolution of stage two; and 4. The matter shall be set down for conciliation before Harrison DP on a date to be fixed in July 2016.

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