Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19 | Case summary | Zoe

NSWNSWIRComm

Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19

[2007] NSWIRComm 19

Industrial Relations Commission (NSW)|1991-08-07|Before: Grayson DP, Fisher P, Hungerford JJ, Mr J, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1991-08-07

Before

Grayson DP, Fisher P, Hungerford JJ, Mr J, Mr P

Source

Original judgment source is linked above.

Judgment (102 paragraphs)

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CITATION: Public Hospital Medical Physicist (State) Award [2007] NSWIRComm 19

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PARTIES: Health Services Union Director General, NSW Department of Health

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Industrial arbitration - Application for new award - Existing award coverage limited and inadequate - Wage fixing principles - Work value change principle - Special case principle - Highly specialised and numerically small profession of medical physics - Chronic and ongoing shortage - Recognition of need and desirability of post-graduate qualification and accreditation - Significant net addition to work requirements by reason of technological change and degree of complexity in professional practice - Significant additional teaching and research requirements - Body of expert evidence essentially uncontested - Prior recognition through federal inquiry of need to improve remuneration levels and career pathways for medical physicists - Efforts by employer to partially address shortage of medical physicists by among other things funding of traineeships and scholarships - Such efforts commendable although arguably ineffective in absence of adequate remuneration levels and career pathways sufficient to attract and retain appropriately skilled and qualified persons CATCHWORDS: Held - Demonstration on the evidence of special attributes sufficient to satify requirements for special case - Special case made out - Work value change demonstrated - Application granted in part - New award made

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1 This matter involves an application by the Health Services Union (HSU) for a new award to be known as the Public Hospital Medical Physicists (State) Award. 2 The application is brought under Part 1 of Chapter 2 of the Industrial Relations Act 1996 (the Act) and would have the effect, if granted, of removing medical physicists from coverage under the Hospital Scientists (State) Award as to certain conditions of employment and from the Health Professional and Medical Salaries (State) Award as to salaries. It would have the further effect, if granted, of then creating a discrete award applying only to them. 3 The award sought would provide for:- · the creation of a new classification and salary structure with increased rates of pay and previously non-existent definitions and classifications titles. · twenty percent of normal working hours to be designated for teaching and research purposes · the establishment of a Progression Committee for the purpose of considering and if appropriate, recommending the promotion of medical physicists to higher levels within the new classification structure · an entitlement for each medical physicists to be granted twenty-five days per year by way of training, education and study leave (TESL) · funding for TESL to the monetary value of 15 percent of salary · an entitlement for each medical physicist to have access to reasonable office space, secretarial and administrative support as well as office and other equipment such as computers and mobile phones 4 The claim is brought in reliance upon the Special Case Principle and the Work Value Principle of the Commission's Wage Fixing Principles most recently enunciated in State Wage Case 2006 (153 IR 268) and the datum point for work value change is said to be 1 July 2006. 5 In the course of hearing, an inspection of the work of medical physicists was conducted at the Radiation Oncology Department, Royal North Shore Hospital and formal evidence was taken from the following witnesses in the following order: · Adjunct Associate Professor Lynne Douglas OLIVER, Head of Medical Physics, Radiation Oncology Department, Royal North Shore Hospital · Robert CHAMBERS, Senior Hospital Scientist (Medical Physics), Cancer Care Centre, St George Hospital · Gary Richard GOOZEE, Director of Medical Physics, Liverpool and Macarthur Cancer Therapy Centres, Liverpool and Campbelltown Hospitals · Michael Peter CURRIE, Trainee Medical Physicist, Radiation Oncology Department, Wollongong Hospital · Sian Katherine PRICE, Trainee Medical Physicist, Radiation Department, Wollongong Hospital · Jason Kane ARTS, Trainee Medical Physicist, Radiation Oncology Department, Liverpool and Campbelltown Cancer Therapy Centres · Associate Professor Martin Johnathon BUTSON, Principal Hospital Scientist (Medical Physics), Radiation Oncology Department, Wollongong Hospital · Dennis RAVLICH, Manager Industrial Services, Health Services Union · Gary John ARTHUR, ex-director of Medical Physics, Westmead Hospital · Dale Lindsay BAILEY, Medical Physicist, Department of Nuclear Medicine, Royal North Shore Hospital · Lee Thomas COLLINS, Principal Hospital Scientist (Medical Physics) Medical Physics Department, Westmead Hospital · Associate Professor Geoffrey DELANEY, Staff Specialist in Radiation Oncology, Liverpool and Campbelltown Hospitals · Kemati Feaueseese ENARI, Senior Hospital Scientist (Medical Physics) Radiation Oncology Department, St George Hospital · Edgar Bacani ESTOESTA, Senior Hospital Scientist, Department of Radiation Oncology, Nepean Hospital Cancer Care Centre · Emily Elizabeth FLOWER, acting Senior Hospital Scientist (Medical Physics), Westmead Hospital · Dr Christopher FOX, Director of Radiation Oncology, Illawarra Cancer Care Centre · Nigel FREEMAN, Principal Hospital Scientist, (Medical Physics) and Manager, Nuclear Medicine Department, Wollongong Hospital · Dr Steven Brian HARVEY, Principal Hospital Scientist (Medical Physics) and Manger, Nuclear Medicine Department, Wollongong Hospital · Andrew Gordon HOWIE, Senior Hospital Scientist (Medical Physics) Radiation Oncology Department, St George Hospital · Andrew Zoltan KOVENDY, Principal Hospital Scientist (Medical Physics) and Area Chief Physicist/Radiation Safety Officer, North Coast Cancer Institute · Professor Peter METCALF, Centre of Medical Radiation Physics, University of Wollongong

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14 The evidence relied upon by the HSU in pursuit of its claim was, at least as to its technical aspects, essentially unchallenged and as with the award history, need not be recited in detail for the purpose of these reasons. 15 In summary and as to qualifications and training, the evidence revealed that prior to 1996, the prerequisite qualification for medical physicists was a science degree plus a license issued pursuant to the Radiation Control Act 1990 (NSW). In 1996, the Australian High Technology Advisory Committee of the National Health and Medical Research Council recommended that there should be a national minimum qualification standard for medical physicists as well as a national accreditation system and the establishment of training positions. 16 In 2001, the Australian College of Physical Scientists and Engineers in Medicine (ACPSEM) published its Position Paper identifying the required qualification standard, in addition to the undergraduate science degree, as being: (i) A higher degree (MSc or PhD) (ii) Two years in-house clinical training for registrars, and (iii) Three years in-house clinical training for base grade physicists 17 I note that the ACPESM is said to be and would appear to be accepted as the professional body that best represents the disciplines of medical physics across Australia and New Zealand and as such, it provides accreditation and educational infrastructure for Medical Physicists. 18 In mid 2002 as chair of the Radiation Oncology Inquiry Committee, Professor Peter Baume AO presented the results of a comprehensive study into radiotherapy (the Baume Report) to the federal Minister for Health and Ageing and to the extent that the report focuses among other things, on the state of the medical physics profession and makes recommendations designed to address the identified problems (such as continuing education, remuneration levels and career pathways) it is relied upon by the HSU and not disputed by NSW Health by and large as an authoritative blueprint for change. 19 In fact in 2004, NSW Health accepted and implemented the Baume Inquiry recommendation for the establishment of the Training, Education and Accreditation Program (TEAP) for Medical Physicists. As a consequence, the training and qualifications now required for entry into the profession are: · undergraduate degree majoring in physics or a relevant branch of engineering · postgraduate degree in medical physics from an ACPSEM approved tertiary institution · at least three years postgraduate clinical experience in the application of medical physics in radiation oncology · satisfies the Radiation Oncology Accreditation Panel that he or she has achieved the level of knowledge and competencies necessary to accept responsibility and to practice independently in radiation oncology medical physics 20 In terms of technological advances, a number of examples are cited by various witnesses as involving Medical Physicists in new and more complex and demanding work throughout the relevant period. 21 To take one such example, the evidence speaks of Intensity Modulated Radiation Therapy (IMRT) as a technique developed in the last five to eight years to more precisely deliver a highly customised set of radiation beams. It is said to represent a completely separate, new method of cancer treatment for radiotherapy patients. It does not represent an enhancement of existing procedures but rather a novel approach, pre-treatment planning method, dosimetry procedure and ultimate treatment procedure all of which is now either performed or supervised by the Medical Physicist, who is the person with sole responsibility for the accuracy of dose delivery in radiotherapy. The Medical Physicist creates the procedures and tools required by the Radiation Oncologist and Radiation Therapist to perform the treatment and is the only person within a radiotherapy department who can make IMRT available for use by the Radiation Oncologist. 22 By way of further example, there is reference in the evidence of numerous witnesses to Three Dimensional Radiotherapy Planning Procedures and Dose Calculations. Before 1996, all radiotherapy dose calculations were performed using something called correction based algorithms. That is, the Medical Physicist would measure and calculate how radiation would interact with water and use this as the basis for determining how the same radiation would interact with the human body. 23 The Medical Physicist would then create correction equations and correction methods for planning use for patient treatments. This was performed on the radiotherapy planning computer systems which were commissioned by Medical Physicists for use by the Radiation Oncologists and Radiation Therapists. Increases in complexity and accuracy of these techniques continued over time adding to the work value and complexity of a Medical Physicist's job. However, in approximately 1998-2000 a completely new method and approach was introduced called convolution and superposition radiation therapy planning. 24 Convolution and superposition planning utilises a completely separate and new method for calculating dose distributions for cancer treatment. The Medical Physicist now creates a completely different set of mathematical equations based on radiation interactions with all types of matter and utilises these models to more accurately plan the dose delivered to radiotherapy cancer patients. This has significantly changed the process for radiation therapy planning and has allowed accurate dose planning using 3 dimensional data sets instead of 2 dimensional slices of patient information. Thus, the introduction of 3 dimensional planning and convolution has completely changed the methods used for radiotherapy . The introduction and accuracy of 3 dimensional planning and convolution planning was solely introduced by Medical Physicists for use by the Radiation Oncologist and the Radiation Therapist. 25 These matters are not without technical complexity as the following exchange between counsel for NSW Health and Gary Goozee, Director of Medical Physics, Liverpool and Macarthur Cancer Therapy Centres, demonstrates: Q. I can understand you believe that. You say in paragraph 24 you are speaking of the acquisition and installation of the TPS and you said, towards the end of paragraph 24: "At this point I and other physicists had to model each radiation beam for each of the accelerators, match that model against the measured data, quantify the errors and repeat the process until the errors were within acceptable criteria". How do you get them within the acceptable criteria; do you adjust the parameters or do you look for an error in the measurements in the first place? A. We verify the data that we measure. Naturally, we try to make sure through repeat measurements and having other physicists check our set up when we acquire data which is going to be critical to ongoing treatment of patients that we have the mechanism in place to ensure that the data that we use is good data.

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26 Further yet, there is reference in the evidence to new and more complex forms of imaging. Traditionally, forms of medical imaging have included radiographic films, Computed Tomography (CT) and Magnetic Resonance Imaging (MRI). The complexity of these forms of imaging has significantly increased over the last ten years which has increased the work value of the Medical Physicist and the complexity of their jobs. For example, CT has changed from single slice static collection to multislice helical and reconstruction techniques. 27 However, completely new forms of imaging techniques have been introduced by Medical Physicists over the last ten years across all sections of clinical medicine with the following information specific for radiotherapy applications. MRI fusion has been made available for radiotherapy treatment planning over the last 5-7 years by Medical Physicists for Radiation Oncologists' use in defining the cancer volumes. This provides a completely new technique of planning where the MRI can be used for further delineation of the cancerous tissue. The images must be "fused" with the CT images for accuracy of alignments. 28 Positron Emission Tomography (PET) is now used (last 4-5 years) for imaging of cancer and fused to CT information for use in cancer treatment. The Medical Physicists are solely responsible for acquiring this information and providing it for accurate use by Radiation Oncologists in clinical treatment. PET/CT technology which incorporates a combination of PET images with CT images has been commissionable and made available for use in radiotherapy over the last 2-3 years by Medical Physicists. 29 Single Photon Emission Computed Tomography (SPECT) which is an imaging technology that uses gamma ray emitting isotopes attached to tracers to permit imaging of physiological processes has also been combined with CT and made available for use in radiotherapy in the last 1-2 years. 30 Additionally, the evidences details the advances in linear accelerator technology which require Medical Physicists to increasingly provide front-line support and in order to do so, to obtain a far broader and more in-depth knowledge and competence in the use, calibration, maintenance and testing of radiotherapy machines. 31 The increased complexity of the linear accelerator since 1996 is due to the development of some very sophisticated computer controlled accessories added to the linear accelerator design. Additional medical physics support is required for the newly developed accessories: (a) computer controlled patient set-up record and verify systems (R&V); (b) patient treatment database computer server and network between planning and treatment equipment (internal department I/T system expanded to be a patient image database for treatment and planning purposes, data management for clerical reporting, billing and statistical analysis purposes as well as the treatment R&V system); (c) smaller, more complex multileaf collimators (MLC) comprising more leaves of 5 mm (or less) widths; (d) electronic portal imaging device (EPID) with expanded use for IMRT, radiation dosimetry, imaging capabilities - such as cone beam scanning and on-board imaging just installed at RNSH; (e) computer treatment planning system (TPS) upgraded to 3-D planning methods in 1997, inverse IMRT computations by 2000 and Monte Carlo electron beam dosimetry which has just been installed for testing before clinical implementation; (f) planning CT-scan imaging installed in 2003-4; (g) special diagnostic image data as CT-scans (1996), MRI (1998), SPECT/CT (2006) and PET/CT (in development)

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32 Medical Physicists are ultimately responsible for maintaining all of these new technologies and providing beam data on any change that these technologies have on the beam quality. For example, installing a new linear accelerator in a department with all of the new technologies available has resulted in substantial increases in the commissioning tests and acceptance tests that need to be conducted to ensure the beam data have been modelled as accurately as possible. If this is not done correctly then this can be disastrous for the patient welfare as it is this data that is used to plan treatment delivery. All of these technological advances require evaluation and development, most of the responsibility for which falls to the Medical Physicist. This has meant a dramatic increase in the skills required of Medical Physicists and a significant increase in their responsibility. 33 The significance of the role of the Medical Physicists in reducing the risk of treatment error cannot be understated. While other health professionals' errors may lead to effects on one patient's treatment, an error on the part of the physicist may lead to significant treatment complications in a large group of patients. 34 Brachytherapy is another example of increased complexity and responsibility affecting the work value of Medical Physicists throughout the past ten years. Brachytherapy involves the use of sealed radioactive sources (i.e. the source is encased into a biologically inert capsule - usually platinum, gold or similar) implanted into a tumour as either: (a) a surface mould (e.g. lesions on the surface of skin and ophthalmic applicators); (b) an interstitial implant (e.g. prostate implants) or (c) an applicator with the radioactive source placed into a cavity of the body (e.g. gynaecological treatments). 35 In addition to the technological innovation discussed above, and in part as a corollary to it, various witnesses spoke of the dramatic and substantial increase over the past ten years, in the teaching responsibilities of Medical Physicists who have become involved, for example, in providing lectures to registrars in radiation oncology and medical oncology. Medical Physicists at Royal North Shore Hospital conduct weekly lectures on clinical physics aspects of treatment and planning techniques for the benefit of all departmental staff as part of their continuing professional development. 36 Moreover, the complexity of the new equipment and techniques that the department has regularly introduced since 1996 requires detailed tuition and training sessions to ensure optimum quality of treatment and to reduce the likelihood of mistakes or accidents occurring in radiotherapy practice. The Medical Physicist who attends specialised training overseas with manufacturers, visits centres of excellence and attends workshops, courses and conferences, and is thus trained in these new techniques then becomes a trainer of the rest of the staff in the department upon return. 37 Since the introduction of the Training Education and Accreditation Program (TEAP) in 2004, there has been a requirement for regular tutorials, teaching sessions, clinical training and reviews to be conducted in relation to TEAP participants and this has added significantly to the workload and responsibilities of those physicists upon whom the teaching requirement falls. In the case of Associate Professor Oliver, lectures are provided to MSc students in the medical physics course at Sydney University (presumably since his professorial appointment in 2003) and PhD students are supervised. 38 Many of the witnesses also spoke of the increased administrative burden borne by the more senior physicists in terms of record keeping, collection and dissemination of relevant reference material, management of occupational health and safety risks in a work environment where radiation apparatus and sources are regularly and increasingly in use and various aspects of staff recruitment and personnel management which might otherwise be reserved to those employed in human resources positions. This has required the acquisition by the more senior physicists of new and different skills. Special Case

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39 The HSU contends that a combination of reasons exist, which satisfies the requirements needed to substantiate the claim for a new award containing a new classification structure, rates of pay and certain conditions of employment for Medical Physicists as being a Special Case. These include: 1. The historical reliance upon the provisions of the Hospital Scientist (State) Award has become increasingly irrelevant for this small group of highly specialised professionals. This award can no longer provide an adequate industrial framework for the profession of Medical Physics in relation to the training and accreditation dynamics involved., the advance in skills, competencies and responsibilities, as well as the structure of the workplaces and services provided. 2. The profession of Medical Physics is now subject to a rigorous qualification and accreditation pathway of some five years prior to any individual becoming accredited as a Medical Physicist. The 'registrar' period, involving intensive clinical training and the mandatory completion of a post-graduate degree, has now instituted a professional pathway that is reflective of the profession becoming increasingly perhaps more akin in its dynamics to a 'medical profession' as opposed to its historical perspective of a '(allied) health professional'. 3. The 'trainee' period of five years requires significant academic and training barriers to be overcome as part of a systemic recognition of the modern and contemporary needs of the profession and the expectation of the community of having the highest quality - and safest - radiation and nuclear medicine oncology services being provided by the public health system. 4. The current utilisation of the Hospital Scientist (State) Award has led to differing interpretations by Area Health Services as to how Medical Physicists should be classified, which has led to inconsistencies and has contributed to a 'churn' of Medical Physicists from one Area to another. This is entirely unsatisfactory. 5. The current classification structure utilised and rates of pay provided has led to profound difficulties in attracting and retaining such a highly qualified and small group of professionals. This profession is ill served by award structures that no longer reflect the dynamics of the profession and its educational pathways. This is especially in relation to a profession which can truly be described as being subject to a competitive world 'market' for highly skilled individuals. 6. Unfortunately, the manifestation of such an inability to attract and retain quality professionals has inevitably led to the level of services being impacted upon and impaired - to the detriment of the community and ultimately the health dollar. 7. Significant increases in work value since the relevant datum point have occurred in the profession, with an explosion in new technologies and commensurate clinical capacities and acumen being required. 8. There is little doubt that the contribution of this small group of professionals has and can only be expected to continue to help revolutionise the care and treatment of various cancers and malignancies - the ultimate benefit of individual patients, the community in general and ultimately the health system. 9. Such expertise and responsibilities are now poorly served by the presently inadequate award prescription that has been 'adapted' and utilised for the profession for some forty plus years. 10. The profession of Medical Physics has not been the subject of discrete arbitral proceedings other than in an ancillary fashion during proceedings involving Hospital Scientists. Certainly no opportunity has occurred, for example, to facilitate an assessment as to the greater level of education and training now required to become an accredited Medical Physicist, which reflects more onerous educative and professional expectations. 40 The HSU contends for these reasons, that the application presently before the Commission sufficiently demonstrates special attributes and is sufficiently out of the ordinary as to satisfy the requirements for a special case (Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 166). 41 The HSU further contends and the evidence plainly asserts that the recruitment and retention difficulties which have been and are continuing to be experienced within the hospital system, are in part if not wholly attributable to what is perceived to be inadequate remuneration levels and career pathways for Medical Physicists. Whether that is actually so involves an element of speculation but it cannot be doubted that any shortfall in the number of suitably qualified and experienced Medical Physicists has the potential to impact negatively on community health outcomes and whilst it is acknowledged by the HSU that efforts have been made at government and employer level to ameliorate the problem, there is an apprehension that failure to address the core problems of remuneration and career pathways will render those efforts ultimately ineffective. 42 Professor Oliver explained the position this way:

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43 One aspect of the claim which divides the parties is the proposal to create a registrar classification into which those may be placed who firstly, have obtained relevant graduate degree qualifications, (ie, as recognised by the Australian Institute of Physics); secondly, have either obtained or are in the process of obtaining relevant post-graduate degree qualifications and thirdly, are working towards accreditation. 44 Accreditation is presently offered by the professional body ACPESM whose members assist in the provision of a clinical training package developed by ACPESM with a nominal five year duration. There period of clinical training towards accreditation and appointment as a suitably qualified and experienced medical physicist may vary from the nominal five year period depending on the rate of progress the particular individual and the HSU claim envisages as its rationale that the classification title "Medical Physics Registrar" is to be preferred to the existing term "Medical Physics Trainee" in best describing those at the advanced level of qualification and clinical experience required of Medical Physicists. 45 The HSU evidence points to the dictionary definition of the term 'trainee' as being 'an apprentice, learner, novice, beginner' which is considered to be more appropriate to those receiving training at the undergraduate level such as for example, the trainee hospital scientist under the Hospital Scientists (State) Award. There is little doubt on a practical basis, that the use of the term 'trainee' in the case of medical physicists is capable of being misunderstood when compared with hospital scientists and equally, as NSW Health argues, the same level of misunderstanding could be said to arise from the use of the title 'registrar' which has traditionally applied to medical officers training to become specialists. 46 Either way, I do not consider the use of the term 'registrar' to be inappropriate when one considers the terms of the definition proposed and as with all award prescription, any practical difficulty in its operation can be readily cured by discussion between the industrial parties and suitable variation if required. 47 It may be observed at this point as stated earlier in these reasons, that the claim advanced by the HSU on behalf of Medical Physicists draws heavily upon the findings and recommendations contained in the so-called Baume Report. In the course of the inquiry giving rise to that report, Professor Baume and his committee had the benefit of a comprehensive review into the relative remuneration levels, career opportunities and roles of the non-medical workforce (including medical physicists) in radiation oncology. The review was carried out by consultants named Healthcare Management Advisors Pty Ltd (HMA) and the findings and recommendations contained in the HMA Report also form an integral part of the HSU case. The introductory comments contained in the HMA Report which (like the Baume Report) is a voluminous document covering a broad range of subject matter, give perspective to it: Radiation Oncology is one of several treatment options for cancer. It is considered alongside surgery, chemotherapy and hormone therapy, and in many instances a combination of these options will be considered. Radiation Oncology as a treatment approach has progressively evolved since the discovery of x-rays and radium (in the late 1890s). Whilst well documented elsewhere (see for example AHTAC, 1996) the technology used, treatment process and expertise required to perform treatment have all advanced, particularly in the last decade. Increasing rates of cancer within the community have expanded demand for radiation oncology and in turn this has stimulated the development of new radiation oncology facilities. The Australian Health Technology Advisory Committee (AHTAC) undertook a major review of radiation oncology services in 1996 and a significant conclusion was the recognition that current referral rates for services in Australia were below other comparable countries. The report suggested that 50-55% of newly diagnosed cancer patients was an appropriate target level for treatment using radiation therapy with rates at that time being approximately 38%, and have remained relatively static since that time. Whilst significant financial resources have been allocated in recent years to acquire additional equipment across Australia that is necessary to deliver radiation oncology services (a number of private sector sites have also commenced operation), a key constraint to expanding service delivery has been the shortage of trained professional (including radiation oncologists, radiation therapists and medical physicists (AMWAC, 1998; ROTC 2001). In seeking to address these and other issues, the Radiation Oncology Tripartite Committee (ROTC) was formed that comprised representatives of the:

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"investigate the relative remuneration, career opportunities and roles of the radiation oncology non-medical workforce." 48 Using a job evaluation methodology supplied by sub-consultants Mercer Cullen Egan Dell, HMA reached conclusions as to the present deficiencies in remuneration levels and career pathways which support the HSU claim. Items of particular importance included in the HMA Report are as follows: · Vacancy Rates - As at 1/3/2002 vacancy rates across the respondent units were running at 7.1% with 50% of these vacancies being at the base level. Some 9.7% of staff were replaced in 1999/2000 and this rose to 19.4% of staff being replaced in 2000/2001. · Hours of work - Within the public sector, standard hours of work for Medical Physicists were between 35 and 40 hours. Actual hours worked (ignoring the impact of part-time arrangements) were typically reported as being 15-20% higher than standard hours. · Opportunities for advancement - The relatively small number of positions available to Medical Physicists and reported stability within more senior levels of the profession were reported to limit the opportunities for individuals to progress within the remuneration structure. Younger Medical Physicists identified the lack of promotion prospects as a major factor in consideration of leaving the career. Of particular note was a comment expressing frustration at the level of remuneration compared with other professional groups with lower qualification requirements and less perceived responsibility. · Age of workforce - The average age of incumbents in all categories is much older than the profile observed for the radiation therapists, which supports the view put forward that it takes many years to progress through what is a limited career structure · Opportunities for research - A major interest for many Medical Physicists was the capacity to undertake research related to their profession. The opportunity to undertake or participate in more long term research activities was identified as a possible area for development by a number of Medical Physicists. The current shortages of Medical Physicists were reported to place additional pressure on remaining Medical Physicists to maintain the safe operation of units, and reduced the opportunities and time available to participate in research, other than that required for immediate practice. There was also a perception reported that more long term research was not accepted as a component of the normal work role. · Attracting Staff to the Profession - It was commonly reported that, once employed, the field was intellectually stimulating and had the added advantage of dealing with problems that were directly related to patient care. The rapid growth in the knowledge base and technology associated with the field was also identified as an attraction. · Enhancement of the Professional Environment - Access to professional development opportunities and the capacity to allow sufficient time to undertake research, were frequently identified by physicists as areas of their work environment that could be improved. · Remuneration - The remuneration provided to medical Physicists, controlling for variations in work value and career paths across professional groups is relatively low (compared with professions such as chemists, geologists and engineers). The comparison of paylines suggests that as Medical Physicists advance within the career structure their position relative to other professional groups declines. · Overseas - The remuneration rates reported in Canada and the United States are significantly greater than those found within Australia, adding some weight to reports by current Medical Physicists that a move overseas often lured promising young Medical Physicists from Australia. A noted advantage in overseas practice was acknowledgement of academic and research opportunities available within a Medical Physicist role internationally. · Conclusion - Whilst the current analysis suggests that initially, medical physics provides moderate remuneration and may represent an attraction for recent graduates, the opportunities to progress, and relative deterioration of remuneration over the course of a career, may represent a deterrent to individuals selecting medical physics as a career. This supports the contention of Medical Physicists that their position relative to other groups within and beyond the health professions may have deteriorated. 49 The foregoing conclusions were accepted by the Baume Inquiry which recorded the following comments concerning the remuneration and working conditions of medical physicists: · Shortage of Medical Physicists - There is a shortage of experienced Medical Physicists working in radiation oncology with an overall 8.9 per cent vacancy rate for Medical Physicists in 1999, and a high attrition rate, which has been exacerbated by the recent departure of leading physicists and recent graduates to overseas positions. Despite NSW Health financing 27 medical physics training positions since 2004, the situation has not improved. · Patient Safety - Several incidents have been recorded in Australia, which could suggest that patient safety may be at risk because of Medical Physicists shortages. It is the view of the Inquiry that patient safety requires an adequate number of Medical Physicists. · Retention of Medical Physicists and Remuneration - Inadequate salaries have been identified by Medical Physicists as a major area of dissatisfaction. Current remuneration for Medical Physicists certainly does not appear to reflect the level and length of postgraduate training required to become fully accredited Medical Physicist (up to eight years), and offers little reward for continuing education or additional postgraduate qualifications. A higher degree is often required to advance beyond base grade of Senior Medical Physicist level. Although it may assist in career progression to most senior levels after attainment of a higher degree, in most cases there is no direct financial reward for gaining accreditation from ACPESM. It should be noted that since the publication of the Baume Report it has become, in NSW, necessary for entry into the profession of Medical Physicist that an applicant hold, as a minimum, a Masters degree (or higher) in addition to a Bachelors degree in Science. The salary levels of Medical Physicists do not reflect the level of education and training required of them, or the responsibility they have in ensuring that radiation dose delivered is correct through calibration of linacs

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52 Whilst the Mercer Cullen Egan Dell (MCED) job evaluation methodology is acknowledged by NSW Health as a well established, credible and rigorous methodology that provides consistent outcomes when correctly applied, issue is taken with Professor Oliver's interpretation of the methodology as it appears in the HMA Report from which it is extracted. Additionally and although the MCED methodology refers to work value points, NSW Health submitted that the term is not synonymous with the Commission's work value changes principle. 53 On the evidence as it stands, I am unable to find fault with Professor Oliver's interpretation of the job evaluation methodology and to the extent that it is advanced by the HSU as supportive of its claim, it is not of itself determinative of the claim. Conversely, I know of no authority, rule or principle and none is put forward by NSW Health which precludes the use of this or any other credible job evaluation methodology in assisting the Commission in the discharge of its statutory function of setting fair and just rates of pay and conditions of employment. 54 This is particularly so when the position of the employer in this case of blanket opposition to the HSU claim despite its overwhelming merit, appears as the HSU submitted, to be an unfortunate continuation of the position adopted in earlier cases (see for example Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458 and Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244). In the circumstances the approach taken by the Full Bench in those cases must also be taken here. In the result, the evidence led by the HSU compels more forceful acceptance in the absence of any alternative, than might otherwise have been the case. 55 As was submitted by the HSU, no significant opposition based on the economic impact of the claim has been mounted by the employer. No serious challenge has been mounted against the salary structure and definitions proposed in the application and no serious challenge has been mounted against the evidence led in support of the claim. 56 I say that in due deference to the learned argument advanced by Mr Warren for NSW Health in reliance upon the observations of the Full Bench in Re Public Hospital Nurses (State) Award (No.4) (2003) 131 IR 17 and I bear in mind the discussion by the Full Bench in that case of the proper approach to the application of the work value principle in matters such as this where the work of professionals is being examined. I note further in that regard that the Full Bench in Nurses cited with approval the approach taken in earlier cases (see in particular Crown Employees (Teachers and Related Employees - Technical And Further Teaching Services) Salaries and Conditions Award (unreported, Industrial Commission of NSW No 1619 of 1989 Fisher P, Bauer and Hungerford JJ 7 August 1991 and Re Medical Officers Hospital Specialists (State) Award (1990) 33 IR 79). 57 I also bear in mind, as Mr Warren submitted, that the Commission should take particular care not to embark upon a process of double counting when assessing whether there has been a significant net addition to the work value of Medical Physicists in the past ten years. That submission is referable to the series of consent movements in salaries across the public health sector in that period but I think it would be wrong in the face of the overwhelming and essentially unchallenged evidence in this case, to conclude that those general salary movements were sufficient to adequately compensate Medical Physicists for the work value changes and special case attributes demonstrated here. 58 For all of that, I am comfortably satisfied that elements of work value change and special case attributes have been sufficiently made out on the evidence to justify the granting of the HSU salary claim save as to retrospectivity (which was not addressed as an issue in the course of proceedings) and I will do so accordingly. In so doing, I again note that that this is a very small group of highly specialised health professionals numbering approximately ninety persons throughout New South Wales and in taking into account the public interest (s 146 (2) of the Act), I may be taken to have paid due regard as in Pharmacists to the continuing effects of the labour shortage in the Medical Physics profession and the potential worsening of that position if no or no adequate remedial measures are taken. 59 In Pharmacists at [81] the Full Bench expressed the matter this way: Whilst the evidence is unclear as to whether increased remuneration alone would be sufficient to resolve the existing labour shortages in the public health sector, this is not to render the issue of a labour shortage irrelevant to the questions of wage determination or public interest. Indeed, to argue otherwise is to miss an important consideration. Whilst these important areas of the public health system are experiencing labour shortages (in varying degrees), the HAC, and ultimately the wider community, relies on the persons presently employed in those areas to maintain that system by taking on additional tasks, developing new skills and working under considerable pressure to fill the void created by the labour shortage, and by providing at all times a prompt, uninterrupted, high quality service, notwithstanding the fact that they may have inadequate human resources to do so. Effectively, these employees are bestowed with the day-to-day responsibility of dealing with labour shortages at the workplace level, in circumstances where such labour shortages are in some cases critical State-wide concerns. The employees are significant in maintaining this important public facility, thus that those persons have not received any financial recognition for their efforts is patently a matter of significant public interest, particularly to the extent that inadequate salary levels and promotional structures may place greater pressure on maintaining the staffing levels presently existing in the health sector. 60 Turning then to those aspects of the claim seeking the allocation of a specific quantum (20%) of normal working hours for teaching and research and a further specific quantum (25 days per year) for training, education and study leave, I am not persuaded that the HSU has made out its case. 61 For its part, NSW Health acknowledges that certain Medical Physicists have had their level of teaching increase in the last several years. As Mr Warren submitted, so much is evident from the establishment of the Training, Education and Accreditation Program (TEAP) and the consequential need to have more experienced Medical Physicists in a formal or informal teaching role. The evidence indicated that whilst there may be an increased emphasis on this role aimed at getting less experienced physicists in greater numbers to the prerequisite standard for accreditation, it was not a role that was required to be performed out of normal working hours in a manner which may warrant remedial award prescription. The same can be said of the training and research which on the evidence, is funded by NSW Health or equipment providers as the case may, on an as needs basis. There was no evidence of disadvantage to Medical Physicists who have attended such training and research venues in for example, the United States or Switzerland and therefore no warrant for remedial award prescription. 62 Furthermore, the concept of an annual funding entitlement for each Medical Physicist equivalent to 15% of salary appears to have as its genesis, the Training, Education and Study Leave (TESL) scheme available to Staff Medical Specialists. As Mr Warren submitted, the Staff Specialists TESL scheme was established by the Salaried Senior Medical Practitioners Determination issued by NSW Health in early 1998. The provisions of that Determination reflected provisions that had been previously contained in several Enterprise Agreements that covered Staff Specialists, which were in force prior to the 1998 Determination. The TESL scheme was granted by agreement with NSW Health in circumstances where it was recognised that the cost to NSW Health of the TESL arrangements would be recovered from the revenue derived from Staff Specialists exercising their rights of private practice as set out in the particular Determination. If the TESL scheme claimed by the applicant is granted in these arbitral proceedings, the necessary revenue base will be unfunded, as Medical Physicists do not exercise private practice rights such as would generate funds to support such a scheme. Indeed such scant evidence as is available in these proceedings on the point of private practice, was given by Professor Oliver, where he indicated his abandonment of his capacity to work as a consultant outside the Public Health System, by relinquishing his professional indemnity insurance. 63 As with the applicant's claim for a minimum of 20% paid time for Teaching and Research, there is little or no evidence as to the circumstances which would justify the Commission, in arbitral proceedings, flowing an expensive and unfunded scheme, previously granted to Staff Specialists, into the conditions of employment for Medical Physicists. It is estimated by NSW Health that such a scheme would cost an additional $1.75 million per annum, based on 60 Medical Physicists qualifying for the benefit. At a time when NSW Health is already affording significant resources to education and training of Medical Physicists, the grant of the TESL scheme would be an unjustified additional funding burden. As to that, I note the evidence of Mr Craft to the effect that NSW Health provides scholarships for Medical Physicists to facilitate the development of appropriately trained and qualified physicists in radiation oncology and in an effort to enhance the retention of Medical Physicists within area health services. In that regard, over $165 000 has been allocated as part of the 55 postgraduate scholarships awarded to Medical Physicists and Trainee Medical Physicists since 2004. 64 NSW Health has also allocated up to $200 000 per annum for the continuing professional development of Medical Physicists to enable attendance at workshops, conferences and other educational and developmental opportunities. 65 These initiatives are relied upon to demonstrate that NSW Health is proactive is providing educational and developmental opportunities, and accordingly it is opposed to the claim for a TESL allowance. Similar developmental opportunities are provided for other professional classifications who do not receive TESL. Indeed if these aspects of the claim were to succeed, it is submitted that there will be added pressure for NSW Health to afford the same condition for other professional groups. I accept that. 66 Further to that and as acknowledged by Professor Oliver, NSW Health was successful in obtaining funding from the Australian Government of an amount of $184 000 over two years for a Clinical Placement Coordinator (CPC). The CPC commenced in November 2004 and has been of considerable assistance in facilitating the implementation of the training program and in assisting the trainees. Ongoing funding from NSW for the position was allocated for the position from 2006/7. 67 A Chair in Medical Physics has been established at the University of Sydney to provide greater academic leadership and greater clinical training and support for staff. The Chair has been funded at $120 000 per annum for three years from 2005/6. This complements a position established at the University of Wollongong by the Cancer Institute NSW. 68 The Cancer Institute NSW is also promoting opportunities for development of professionals, including Medical Physicists, through a range of travel grants involving attendance at key cancer care meetings and through research opportunities. 69 In all the circumstances, I am not persuaded that the proposed award prescription referable to teaching and research and to TESL is appropriate or desirable and those aspects of the HSU claim are refused. 70 As to the remaining aspect of the claim dealing with the provision of adequate administrative support for Medical Physicists, it seems to me that such matters are best left to be dealt with on a case by case basis as and when perceived inadequacies are identified. There was certainly no clear picture which emerged from the evidence and no particular focus in arguendo upon shortcomings in that regard of such a widespread and general nature as to require award prescription. It goes without saying, however, that Medical Physicists like other professionals within large dynamic hospital enterprises should be provided with such levels of administrative support in terms of office space, computers, secretarial assistance and so on, as are necessary for them in carrying out their functions. The administrative support aspect of the claim is therefore refused. 71 The HSU application in its last amended terms ( as filed 14 December 2006) and save as to retrospectivity is otherwise granted. A new award entitled Public Hospitals Medical Physicists (State) Award is thereby made which will have and be given effect from the date of this decision. The parties are directed to file in hard copy and computer readable format within 28 days, an agreed document reflecting the terms of this decision.