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.