//
[2026] NSWIRComm 1025
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-04-02
Commissioner McDonald
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Davidson No 2; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Shah [2026] NSWIRComm 1025
Hearing dates: 24 and 30 March 2026
Date of orders: 2 April 2026
Decision date: 02 April 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner McDonald
Decision: (1) Pursuant to s 136(1)(b) of the Industrial Relations Act 1996 and cl 21 of the Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award, Schedule B of the Award is varied so as to include:
(a) as employees determined to be Technical Officers: Sinead Davidson and Nilay Shah;
(b) the date of this decision.
(2) The proceedings are otherwise dismissed.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Variation of Award pursuant to mechanism contained in the Award
Legislation Cited: Industrial Relations Act 1996 (NSW), ss 17 and 136
Cases Cited: Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073
Texts Cited: Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award 2024
Health Employees’ Technical (state) Award 2025
Hospital Scientists (State) Award 2025
Category: Principal judgment
Parties: In proceedings no. 2025/59706
Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology (Notifier)
Sinead Davidson (Respondent)
In proceeding no. 2025/83155
Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology (Notifier)
Nilay Shah (Respondent)
Representation: Counsel:
D Fuller (Notifier)
J Martin (Respondents)
Solicitors:
Sparke Helmore Lawyers (Notifier)
Other:
Health Services Union NSW (Respondents)
File Number(s): 2025/59706
2025/83155
Publication restriction: Nil
This decision concerns whether it was “fair and reasonable in all the circumstances” for the Secretary of the Ministry of Health (Employer) to refuse requests made by Ms Sinead Davidson and Mr Nilay Shah, both Technical Officers with NSW Health Pathology, for their classification as Technical Officers to be converted to Hospital Scientists. Hospital Scientists are covered by the Hospital Scientists (State) Award 2025, which provides for better remuneration and conditions than the Health Employees’ Technical (state) Award 2025, under which Technical Officers are employed.
In Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073 I determined the principled approach to the application of the Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award 2024 (Conversion Award), in particular cll 5, 19 and 20. I do not propose to rehearse those principles in this Decision as they were not disputed by the parties. However, it is helpful for the reader if I set out the terms of cll 3, 5, 19, 20 and 21:
Conversion request criteria
- A Technical Officer who:
a. holds a requisite science qualification; and
b. agrees to undertake the duties of a Hospital Scientist as determined by the Employer from time to time; and
c. has been employed by the Employer as a Technical Officer for at least 6 months,
may make a written request to the Employer to have their classification converted to a Hospital Scientist as contained within the Hospital Scientists Award (conversion request).
…
Entitlement & refusal
- A Technical Officer, who makes a valid conversion request under clause 3, is entitled to reclassification as a Hospital Scientist unless:
a. the Employer establishes it is fair and reasonable in all the circumstances to refuse the conversion request; or
b. the Technical Officer fails to provide the information required under clause 4.
…
Matters potentially relevant to refusal
- Matters which are potentially relevant to whether the Employer’s refusal of a conversion request was fair and reasonable in all the circumstances include, but are not limited to:
a. the particular nature of the science qualification held by the employee;
b. any gender disparity in pay within the laboratory or area worked, if any disparity exists;
c. any effect on the Employer’s ability to attract and retain skilled staff in the laboratory or area worked, where there are attraction and retention issues;
d. the nature of the laboratory or area worked, and the nature and volume of work performed where the employee currently works including duties performed by staff in the laboratory or area worked, technology and equipment used;
e. the experience, skills, training and other qualifications of the employee;
f. the performance of the employee;
g. the employee’s work experience and duration of the employment; and/or
h. the staffing numbers and skills mix in the laboratory or area where the employee currently works.
Matters not to be relied on for a refusal
- In justifying any refusal to convert an employee, the Employer cannot rely on an employee:
a. having not been offered or having not performed particular duties, or
b. not holding a competency because they have not had the opportunity to obtain it, as a reason for refusing a request to convert to Hospital Scientist.
Amendment of award to give effect to decisions
- Subject to section 17 and pursuant to section 136(1)(b) of the IR Act, the Schedules to this Award will be varied by the Commission as part of the determination of any disputes determined by the Commission in accordance with this Award.
It is not in dispute that both Ms Davidson and Mr Shah submitted valid conversion requests.
At [61] of Keryakous I explained that, in circumstances where cl 5 of the Conversion Award provides a Technical Officer (TO) who makes a valid conversion request with an entitlement to be reclassified as a Hospital Scientist (HS) (also referred to as a Scientific Officer or SO), the non-exhaustive matters listed in cl 19 “need to speak, on balance, against the TO in question being converted.”
The Employer tendered in evidence a Statement of Agreed and Disputed Facts in each matter. Those documents set out a number of agreed facts pertaining to each of Ms Davidson’s and Mr Shah’s circumstances and the laboratory in which they both worked and identified a number of disputed facts and issues that the parties asserted I need to resolve. At the commencement of the hearing, with the assistance of counsel for the parties, I further refined the facts and issues in dispute.
During my exchange with counsel for the parties, it was agreed that the principal reason the Employer refused each of Ms Davidson and Mr Shah’s conversion requests was because at the time the requests were made there was no operational need for more HSs in the laboratory in which they worked, being the Westmead Core Haematology/Morphology Laboratory (Laboratory). This reason falls into the factors identified in cl 19(d) and (h) of the Conversion Award.
The Employer submitted that this reason pointed “wholly” against Ms Davidson and Mr Shah being converted [1] , because:
increasing the number of HSs would result in a reduction in the amount of time that HSs spend performing HS duties which would impact the Laboratory’s ability to sustain proficiency and expertise in performing HS duties, including potentially affecting the ability of HSs to maintain their competencies in these duties;
increasing the number of HSs would not improve efficiencies in the Laboratory;
it would be a waste of public funds to pay HSs where there is no operational need for them; and
the Employer has a managerial prerogative to manage and conduct its business in the way it best thinks fit.
Both Ms Davidson and Mr Shah agreed that there was no operational need for more HSs in the Laboratory, [2] however they pointed to my finding in Keryakous at [74] that the lack of HS duties, while pointing against the granting of a conversion request, is not a “trump card” per se*,* and argued that their conversion:
would not significantly reduce the amount of time HSs in the Laboratory would spend performing HS duties so as to adversely impact the competencies of HSs in the Laboratory; and
would afford some benefits to the Employer, such as enabling audits of results to be performed more comprehensively.
The applicants argued that, while I observed in Keryakous that the lack of HS duties alone could mean that a refusal was fair and reasonable, that was not the case in respect of their refusals because the nature of the Laboratory was such that the vast majority of the work was performed interchangeably by HSs and TOs, such that arguments about wasting public money and managerial prerogative should not be given much weight. They also pointed to the fact that since their conversion refusals, the numbers of HSs increased (by reason of conversion of TOs) by 2 FTE, with no detrimental effect on the Laboratory’s proficiencies or HSs’ competencies.
With respect to Ms Davidson:
(i) did the work she was performing, in particular out of hours, on her own, and morphology work, indicate she was ready to perform HS duties? (ii) was it the case that another TO with similar experience to Ms Davidson was converted?
With respect to Mr Shah:
Was Mr Shah’s previous demonstration of disinterest in applying for HS roles or in pursuing career progressing opportunities, a relevant consideration in determining whether his conversion request should be refused?
Did Mr Shah’s performance and length of service point in favour of his conversion?
If the answer to (5) is yes, does this outweigh the factors pointing against his converision?
Was Mr Shah’s refusal unfair in circumstances where other TOs with less experience were converted, in circumstances where they had applied for conversion at the same time as Mr Shah?
Submissions filed by Ms Davidson prior to the delivery of Kerykous submitted there was a gender disparity in the Laboratory, which pursuant to cl 19(b) could have been a factor that the Employer failed to take into consideration when considering Ms Davidson’s conversion request. Ms Davidson gave some evidence that this was the case. However, following the delivery of Keryakous I allowed the parties the opportunity to file supplementary evidence and submissions. Ms Davidson filed Supplementary Submissions on 25 February 2025 which did not repeat any argument that gender disparity was a factor in favour of her conversion, and it was not mentioned in the Statement of Agreed and Disputed Facts or in oral submissions. In those circumstances I understand that the Employer took the forensic decision not to read certain evidence that may have countered Ms Davidson’s evidence. Consequently, I have not considered whether it was a factor in favour of her conversion.
The following facts were agreed in both proceedings, as regards Westmead Pathology and the Laboratory:
Westmead Pathology Department is a large referral GX Laboratory within Westmead Hospital, comprising the following specialities: general pathology, anatomical pathology, haematology, chemistry, genomics, immunology, microbiology, genetics and transfusion.
Westmead Hospital has 1000 beds and is the major tertiary hospital for western Sydney and a level 1 trauma centre.
The Westmead Pathology Department is a central hub which supports 27 laboratories in the West, Rural and Regional Networks. The laboratory is as a major referral centre for specialised testing servicing NSW, interstate and overseas referrals.
The Westmead Haematology Laboratory provides services ranging from routine high-throughput tests like full blood counts performed at all laboratories, to highly specialised bone marrow transplants, provided in larger tertiary hospitals.
The Westmead Haematology Laboratory operates 24 hours per day, 7 days per week, and performs routine haematology and morphology, coagulation, HP EPG haematology, and flow cytometry.
The Westmead Core Haem/Morphology Laboratory [the Laboratory] is part of the Westmead Haematology Laboratory.
The majority of testing performed in the Laboratory is conducted using various instruments or machines.
Morphology is performed in the Laboratory and does not use automated machinery. In Morphology, staff examine blood films / slides under a microscope. These slides may be prepared either by automated equipment or manually. Not all employees are trained in Morphology.
At the date of conversion, the Laboratory had:
(a) 1.54 FTE Senior Scientific Officers; (b) 5 FTE Scientific Officers; (c) 14.98 FTE Technical Officers.
(a) 1.54 FTE Senior Scientific Officers; (b) 5 FTE Scientific Officers; [4] (c) 1 FTE vacant Scientific Officer positions; (d) 12 FTE Technical Officers; (e) 2 FTE vacant Technical Officer positions.
I have concluded, on the evidence before me, that it was reasonable for the Employer to conclude that at the time Ms Davidson made her conversion request she did not have the experience and skills to perform HS duties.
Ms Soma Mohammed, the Laboratory Manager of Haematology at Westmead Hospital (which includes four laboratories, including the Core Haematology/Morphology Laboratory) gave unchallenged evidence, in the form of a table, as to twelve distinct duties that only HSs, or classifications higher than HSs, perform in the Laboratory. Although Ms Davidson initially contended that she performed one of those duties from time to time [5] , it was conceded in closing submissions that this was not the case. [6] It is therefore not in dispute that as at 14 November 2024, when Ms Davidson made her conversion request, she was not performing any HS duties. Pursuant to cl 20(b) of the Conversion Award this fact could not justify the Employer refusing the conversion request, but performance of HS duties can act as a counterbalance to factors pointing against conversion. It is accepted by both sides that HS duties require a higher level of skill, knowledge and/or experience than TO duties.
Ms Mohammed gave evidence, which was essentially unchallenged and I accept, that due to the heavy reliance on automation and Laboratory Information System (LIS)-guided processes, HS duties only account for approximately 5% of the workload of the Laboratory. Measured in time, this could be as little as 30 minutes a week for all HS duties, up to a maximum of 4 hours a week. However, Ms Mohammed also explained that the HS tasks are not readily measured by time, but rather by individual tasks. She explained that it was not practical or realistic to divide a task that can performed by one person between multiple people. Ms Davidson also gave evidence to the effect that one HS would perform all the additional HS duties for that week or day, with some HSs regularly doing more HS duties than others.
The evidence established that the majority of the work undertaken in the Laboratory is undertaken by TOs, HSs and even Senior HSs, alike. However, duties that a HS might perform in common with a TO are irrelevant for the purposes of the Conversion Award. [7]
Mr David Spence, the Senior Operations Manager for Pathology Services across Western Sydney Local Health District for New South Wales Health Pathology, based at Westmead Hospital, gave evidence that he discussed Ms Davidson’s conversion request with Ms Mohammed who informed him that “Ms Davidson's skills, knowledge and experience were not yet subsequently [sufficiently?] developed for her to be able to perform the role of a Hospital Scientist”. Mr Spence stated that it was his understanding that this was relayed to the Internal Review Panel (IRP) convened by the Employer to determine conversion requests.
Curiously, although Ms Mohammed was called as a witness, she did not give evidence of what she informed the IRP. Nor did she give any evidence as to the basis for her opinion concerning Ms Davidson’s skills, knowledge and experience at the time of the conversion request. However, in response to Ms Davidson’s evidence that she was capable of performing HS duties and that Ms Mohammed had encouraged her to apply for HS positions, Ms Mohammed gave the following evidence:
“I do not agree that Ms Davidson is currently capable of performing Scientific Officer duties. She has not yet developed the skills required to conduct audits, such as slide audits, and is currently working on a Performance Improvement Plan (PIP) focused on achieving competency in Morphology. At this time, she is not suitable to act as a trainer in the laboratory. I consistently offer staff opportunities to develop their skills where possible. I encouraged Ms Davidson to apply for Scientific Officer positions in response to her expressed interest in becoming a Scientific Officer. However, this encouragement should not be interpreted as an endorsement of her current capability to perform the Scientific Officer role. Supporting staff in pursuing positions of interest is important for their professional development and growth.”
While this evidence refers to the situation as at 25 June 2025, when Ms Mohammed made her statement, rather than in November 2024 when Ms Davidson made her request for conversion, it may be readily inferred that if Ms Davidson was considered by her manager as not being ready to perform HS duties in June 2025, she would not have been capable of performing them with six months less experience. Ms Mohammed was not cross examined in respect of the views Mr Spence attributed to her as to Ms Davidson’s skill, knowledge and experience, or what she told the IRP in this respect. In those circumstances, and in circumstances where Mr Spence’s evidence in this respect was also not shaken in cross examination, I accept that Ms Mohammed formed the view in November 2024 that Ms Davidson's skills, knowledge and experience were not sufficiently developed for her to be able to perform the role of a Hospital Scientist and that she conveyed this to the IRP.
Ms Mohammed had held her role as Laboratory Manager since August 2020 and has worked for NSW Health since around 2000 when she commenced in the role of Trainee Technical Officer at Prince of Wales Hospital in the haematology laboratory. Thereafter she worked as a TO, a SO (2IC), an Acting Senior SO and 2IC and as a Senior SO, in haematology. She clearly has extensive relevant experience. She has been the Laboratory Manager for the whole of the time that Ms Davidson has worked in the Laboratory. I am not prepared to second guess the opinions of Ms Mohammed regarding Ms Davidson’s skills, knowledge and experience in circumstances where no challenge was made to them. There is nothing before me that inclines me to a view that those opinions were not reasonably held.
In any event, as I will outline shortly, there is evidence as to subsequent events that supports the view that at the time of her conversion request, Ms Davidson was not ready to perform HS duties. Consistent with the approach in Keryakous [8] , material that was not before the original decision maker may be considered “to the extent they cast light on the facts and circumstances that existed at the date of the Employer’s refusal.”
As outlined above Ms Davidson submitted that she was ready to perform HS duties because she worked alone and autonomously out of business hours; and performed morphology duties.
It is agreed that Ms Davidson holds the qualification of Bachelor of Biomedical Science from the University of Technology Sydney, conferred on 8 February 2022 and has been a TO in the Laboratory since 10 October 2022. I observe that her marks were very good and she achieved the Dean’s Merit List for Academic Excellence in 2020. There is no debate that she holds the requisite science qualifications to be converted. Prior to her appointment as a TO she was employed by the Employer as a Technical Assistant from 15 April 2021 until 9 October 2022.
At the time of her conversion request on 14 November 2024, Ms Davidson had been a TO for two years and one month.
Ms Mohammed gave evidence that Mr Shah had never indicated to her during performance and development discussions that he would like to perform higher level duties and gain broader experience. He had never responded to invitations for expressions of interest for higher or different duties and had indicated in his annual performance and development reviews that he was content with his current role and duties. Mr Shah agreed with this evidence in cross examination, although he also stated that he had applied for HS positions at other hospital three times and in his evidence in chief he noted that in his 2025 Performance Development Plan (prepared after his conversion request had been refused) he wrote that he looked “forward to his conversion application [being approved] on [the] basis of any experience and qualification.” He denied in cross examination that he saw the conversion process as an easier path than going through a merit selection process.
While Ms Mohammed did not give evidence that Mr Shah’s lack of expression of interest in career development was passed on to the IRP, nor was there evidence that the IRP considered this in their deliberations, in submissions the parties proceeded on the basis that it had been.
Counsel for the Employer submitted that Mr Shah’s lack of ambition, (my word, not his), in particular his failure to express any interest in or take up any development opportunities, indicated that Mr Shah was not amenable to developing his skills or knowledge beyond those of a TO – and hence was not suitable to be converted to a HS. This was not put to Mr Shah in cross examination, and I do not think this can be inferred.
An apparent lack of desire to perform higher duties is not a factor identified in cl 19 of the Conversion Award. While cl 19 is a non-exhaustive list, if the Employer considered an employee’s disinterest in pursing development opportunities to be indicative of an unwillingness to undertake higher duties or a lack of aptitude for HS duties, and hence a factor that pointed against conversion, this ought to have been put squarely to the employee to enable them to respond. There is no evidence it was done in this case, and it was not done in the hearing before me. In the circumstances, I do not consider it to be a relevant factor and it was not reasonable for the Employer to take it into account in determining to refuse Ms Shah’s conversion.
It was agreed that Mr Shah holds a Bachelor of Science (Microbiology) from Gujarat University, India, which was conferred on 16 December 2000 and he has been a TO in the Laboratory since 13 October 2010. There is no debate that he holds the requisite science qualifications to be converted. At the time of his conversion request, on 13 November 2024, he had worked in the Laboratory for over 14 years, which on any view is significant. Prior to working for the Employer he worked at Laverty Pathology full-time as a TO for three years, where he specialised in the automated area and veterinary haematology.
Mr Shah is trained and competent in core haematology and morphology. The evidence indicated that Mr Shah, unlike Ms Davidson, had extensive experience in morphology and was one of the Laboratory’s most experienced and better performers in morphology. Most of his shifts are in morphology.
Mr Shah gave evidence that he regularly exceeded the KPI of 80 slides per day, sometimes exceeding 120 slides per day and even 150 slides per day. He submitted that this is a “significant efficiency boost for the lab”. He also gave unchallenged evidence that he has never been advised of an error in his reports during the random audits conducted by HSs.
Mr Shah annexed to his statement a document containing the number of “blood films per day” data for all staff in the Laboratory. The Employer analysed this data and found that Mr Shah exceeded the 80 slides per shift around 33% of the time. This was the fifth best performance (in terms of speed) out of 16 employees. Two other employees exceeded 80 slides per shift over 70% of the time. Regardless, Mr Shah plainly has a very good record as a morphologist and I consider that his performance has contributed to the Laboratory’s efficiency.
While Ms Mohammed gave evidence that exceeding the 80 slides per shift KPI does not necessarily provide a material efficiency gain to the Laboratory and is not necessarily an indicator of outstanding performance or efficiency because excessive speed could increase the risk of errors and impact patient safety, there is no evidence that Mr Shah’s accuracy was impacted by the quantity of slides he processed per shift.
As I said at [41], I accept that the accurate and efficient performance of morphology work would, prima facie, indicate that an employee was capable of performing higher level work. Unlike Ms Davidson, whose skills and experience were considered by her manager not to be ready for higher duties, no such view was taken in respect of Mr Shah.
I consider that Mr Shah’s long, unblemished and impressive service as a TO, much of it performed in morphology, being factors referred to in cl 19(e), (f) and (g), point in favour of his conversion.
As Mr Shah’s performance and length of service point in favour of conversion, I now have to consider whether those matters outweigh the agreed fact that there was no operational requirement for more HSs in the laboratory.
I explained in Kery**akous that the focus when determining what is reasonable is from the perspective of the Employer and that this “is because at base, employees are employed to perform duties for an employer, to meet the employer’s goals and objectives, in exchange for remuneration; and an employer, subject to law, including applicable industrial instruments, has a managerial prerogative to manage and conduct its business, including its employees, in the manner in which it best thinks fit. The ability of the Employer to refuse a conversion request if reasonable (and fair) is a recognition of this prerogative.” [12]
The Employer is entitled, indeed as a recipient of public funds is expected, to manage its business in a manner which it considers will best achieve the Employer’s objectives as cost effectively as possible. The evidence showed that the objectives of the Laboratory are to deliver timely and accurate blood test results to patients. It is reasonable for the Employer to try to do this for as little cost as possible.
The question that arises in respect of Mr Shah is, therefore, what effect would his conversion have on the Employer’s operations and if that effect is deleterious, does that outweigh the factors that point in favour of his conversion?
The Employer argued that increasing the number of HSs would result in a reduction in the amount of time that HSs spend performing HS duties which would impact the Laboratory’s ability to sustain proficiency and expertise in performing HS duties, including potentially affecting the ability of HSs to maintain their competencies in these duties. I consider this argument, in the particular circumstances of this Laboratory, should be given little to no weight.
Mr Shah pointed out that at the time Ms Mohommed prepared her statement and opined that HS duties amounted to around 4 hours per week, there were seven HSs in the Laboratory, resulting in an average of 34 minutes of SO duties per 1 FTE HS, meaning that an additional SO in the mix would mean that the average time spent on HS duties would reduce to 30 minutes per 1 FTE HS. Mr Shah submitted that an additional HS would have next to no impact on the amount of HS duties performed by current staff.
There was some evidence that at the time Ms Mohammed prepared her statement two of the HSs, who were in fact converted TOs, were not in fact performing HS duties (that is, duties only HSs do), nevertheless I do not consider that this significantly detracted from Mr Shah’s point.
I accept Ms Mohammed’s evidence that HS duties are not in reality divisible in the way Mr Shah’s analysis required. It is not practicable or the reality, for a task that can be performed by one person in half an hour to be divided between multiple people, with each person performing a few minutes of the task. However, what is clear from both parties’ evidence is that there are very, very few HS duties at all in the Laboratory.
“a. increased random audit checks;
b. earlier identification and correction of errors;
c. more timely resolution of issues in the lab;
d. assistance with competency assessments;
e. support ongoing development of TO's through staff training;
f. enhanced interpretation of complex results, blood films, and ability to manage analyser flags;
g. quicker communication of critical results to clinicians.”
“Each of these factors adds significant value to the lab in terms of both quality and performance of staff, staff progression, as well as patient safety. Increased audits, prompt communication with clinicians when required, and identification of errors are all imperative to the safety of patients. If an error is missed, it has the potential to delay treatment by a number of days for a patient with a disease such as Leukemia. Catching an error early ensures patients receive the best quality and appropriate care.
Similarly, by enhancing the quality of interpretation, the accuracy and reliability of reports is also improved, directly correlating with patient outcomes and safety.”
Ms Mohammed refuted this evidence at length. In short, her evidence was:
there is no operational or patient safety based need for increased audits as the current frequency is sufficient for the Laboratory to be appropriately accredited under the National Association of Testing Authorities (NATA);
increased auditing would create inefficiencies as it would divert time away from the primary priority, being the timely processing of patient samples and reporting of results;
the Laboratory has effective processes in place [with the current staffing profile] to minimise errors;
while audits occasionally identify errors, this is not common;
she is not aware of “issues in the lab” which would be rectified by an additional HS - the Laboratory underwent NATA accreditation in February 2026 and no major issues or concerns, including in relation to audits or their frequency, were identified;
competency assessments and staff training is undertaken by HSs who have been formally signed off as designated trainers – an additional HS would not necessarily allow for assistance with competency assessment or staff training as this would require them to be specifically trained and signed off as competent to do so;
an additional HS would not lead to “enhanced interpretation of complex results, blood films, and ability to manage analyser flags” as this not a HS duty in the Laboratory – complex diagnostic tasks are performed in the specialised laboratories, while all staff who are trained and deemed competent are expected to be able to interpret results, films and manage analyser flags; and
all staff who have trained and deemed competent including Technical Assistants, Trainees, TOs and Hospital Scientists are required to report critical results to the requesting clinician by phone within 30 minutes of the result becoming available – the presence of an additional HS would not result in faster communication of critical results to clinicians.
I generally accept Ms Mohammed’s evidence. Logically, the fact that there are very few HS duties in the Laboratory, and there is objectively already more HSs than are necessary to perform the HS duties, must mean that there would be no productivity or efficiency gains from converting existing TOs to HSs. Some of the benefits described by Mr Shah might be seen if the Laboratory were to employ more staff overall, but it will not be achieved by classifying existing TOs as HSs. Expressly bluntly, given that 95% of the work in this Laboratory is performed equally by HSs and TOs, converting an existing TO will produce little to no productivity or efficiency gain. Rather, it will have a negative impact on the economic efficiency of the Laboratory, due to the need to pay the TO more following conversion.
Although I consider it was reasonable for the Employer to refuse Mr Shah’s request, the question remains, was it fair? If not, his conversion could still occur.
Dr Paulin, Acting Director, Forensic & Analytical Science Service at NSW Health Pathology, and the chair of the IRP, gave uncontested evidence that four conversion requests from the broader Westmead Haematology Laboratory (which, as already noted, includes other specialised laboratories aside from the Laboratory), which it is agreed included Mr Shah’s, were reviewed by the IRP on 2 December 2024 and were considered and compared alongside each other. According to Dr Paulin one request was supported “despite the lack of Hospital Scientist duties to be allocated, [because] this person had been performing some of those Hospital Scientist duties already” and “in fairness to that individual, the IRP determined to support the Technical Officer’s conversion request”. Ms Mohammed gave evidence that this person was undertaking complex analyses and some HS duties in the flow cytometry laboratory, a different laboratory to that in which Mr Shah worked. In cross examination Mr Mohammed also gave evidence that this person had 13 ½ years’ experience.
It is not contested that Mr Shah was not performing HS duties. I do not consider that the conversion of a TO who was performing HS duties, a significant factor in their favour, and who otherwise had comparable years of experience to Mr shah, demonstrates that Mr Shah was treated unfairly. As I explained in Keryakous at [81] if “it is determined that there are insufficient HS duties available for all the applicants to be converted to HS, to ensure fairness between the applicants the matters listed in cl 19 which are personal to the applicants may be used to differentiate between applicants.”
Mr Shah, pointed to the fact that Converted SO 3, whom it is agreed was one of the four considered on 2 December 2024 by the IRP, was converted. However for the reasons discussed at [56] and [57] no issue of fairness viz-a-viz Mr Shah arises because the decision to convert was made by the Transitional Committee, not by the Employer.
It is the case that subsequent to Mr Shah’s refusal, another TO - referred to as Converted SO 2 - who had worked in the Laboratory for around five and half years, was converted. No direct issue of fairness arises, however, for completeness, I note that Ms Mohammed’s evidence was that this person had previously worked as a HS and had rotated across flow cytometry and the Laboratory.
I make the following orders:
Pursuant to s 136(1)(b) of the Industrial Relations Act 1996 and cl 21 of the Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award, Schedule B of the Award is varied so as to include:
(a) as employees determined to be Technical Officers: Sinead Davidson and Nilay Shah; (b) the date of this decision.
The proceedings are otherwise dismissed.
I note that as twelve months has passed since the date of the Transitional Committee’s decision in respect of both Ms Davidson and Mr Shah, pursuant to cl 17(e)(ii) of the Conversion Award, both Ms Davidson and Mr Shah are now eligible to once again apply for conversion. In circumstances where one of the converted TOs resigned in or around January 2026, and there is currently a HS position vacant (although I understand that it is a 2IC position which may require special competencies), they may have more success next time around, however, as before, that will depend on all of the relevant circumstances.
Janet McDonald
Commissioner
**********
Tcpt, 30 March 2026, p 34(2)-(3).
Tcpt, 24 March 2026, pp 2(35)-(38), 3(23)-(24).
Tcpt, 24 March 2026, pp 4(14) – (23), 5(13) – (20).
The Statements of Agreed and Disputed Facts , Ex Health D7 and Health S6 stated that there were 6 FTE however oral evidence given by Ms Mohammed indicated that the correct number is 5 with 1 position vacant.
Tcpt, 24 March 2026, p 6(22)-(25).
Tcpt, 30 March 2026, p 47(1)-(4).
Keryakous [69].
See at [42] and [194].
Ex Heath D3 [65].
Tcpt, 30 March 2026, p 47(3).
Tcpt, 30 March 2026, p 14(24).
Keryakous at [54].
The letter to Ms Davidson from the Employer refusing her conversion request was not tendered in evidence, so I am unaware as to exactly what reasons were given by the Employer for the refusal, however it was agreed that the Employer also refused Ms Davidson’s request because it was considered that she did not yet have the experience and skills to perform HS duties [3] , being the factor identified in cl 19(e) of the Conversion Award. Ms Davidson agreed this was a reason given by the Employer for refusing her conversion request, but she disputed that was in fact the case.
Ms Davidson argued that she did have the necessary skills and experience to be converted as she worked alone and autonomously out of business hours; and performed morphology duties, which both Ms Davidson and Mr Shah submitted are “highly complex” and not a skill held across the board within the Laboratory. She contended that her performance of these duties not only demonstrated that she had the necessary skills and experience to be converted but were factors in favour of her conversion. The Employer however:
contended that all TOs, if competent, can work alone out of hours;
disputed that morphology duties, which all TOs are ultimately expected to perform, were particularly complex; and
relied on the fact that after the conversion request was refused Ms Davidson was placed on a Performance Improvement Plan (PIP) due to errors in her morphology work, which continued for some 25 weeks, which included two extensions and 48 days of training, which evidenced that Ms Davidson was not ready, at the time of her conversion request, to undertake HS duties.
Ms Davidson also asserted that she had the necessary skills and experience to step up to HS duties, as another TO – referred to as “Converted SO 3” – had similar experience to her, but was converted, nonetheless. The Employer agreed that Converted SO 3 had similar experience to Ms Davidson, but pointed to the fact that Converted SO 3 was not converted by the Employer, but by the Transitional Committee, a body established under the Conversion Award to determine whether the Employer’s refusal was fair and reasonable in all the circumstances and which has the power to grant a conversion request. The Employer also led evidence which showed that Converted SO 3 is now on a PIP, as they failed competency in morphology, vindicating the Employer’s decision not to re-classify Converted SO 3.
Ms Davidson otherwise pointed to no other matter that would counterbalance the two reasons why the Employer refused her conversion request.
The letter to Mr Shah from the Employer refusing his conversion request was also not tendered in evidence, so I am unaware as to exactly what reasons were given by the Employer for the refusal. Nevertheless, in addition to there being no operational need for another HS in the Laboratory, it was agreed that Employer also refused Mr Shah’s request because he had not shown previous interest in applying for vacant HS roles when they arose and had indicated during his performance development process prior to the conversion request, that he wanted to remain as a TO. While Mr Shah did not dispute these facts he asserted that they were not relevant considerations and it was unreasonable for the Employer to have taken them into account.
Mr Shah otherwise relied upon his exemplary and long service of some 14 years at the time of his conversation request, with some 18 years’ experience in haematology laboratories; that he worked primarily in morphology, which is complex and requires specific training and competencies that not all employees in the laboratory hold; and the fact that he regularly exceeded the Key Performance Indicator (KPI) of 80 morphology slides per shift. He submitted that his fast and accurate performance provided a material efficiency gain for the Laboratory and/or was an indicator of outstanding performance or efficiency.
While the Employer agreed that Mr Shah’s performance was good, it did not accept that exceeding the KPI of 80 slides per shift provided an efficiency benefit to the Employer which would act as a counterbalance to the two reasons given by the Employer for refusing his conversion request, because with increased speed comes increased risk of error.
Mr Shah also complained that other TOs were converted, who had significantly less experience than he did. In particular, he referred to the fact that Converted SO 3, whose application was considered around the same time as his own, had considerably less experience than he did. He asserted that the refusal to convert him in these circumstances was not fair. The Employer again pointed to the fact that it was the Transitional Committee who decided to re-classify Converted SO 3, not the Employer. In relation to two other TOs who were converted (by the Employer or the Transitional Committee, it is not clear on the evidence), one had been undertaking complex analyses and some HS duties in the flow cytometry laboratory and the other had previously worked as a HS and rotated across flow cytometry and the Laboratory.
Both applicants asserted that the refusals had not been procedurally fair. At [45] of Keryakous I observed that a denial of procedural fairness could render the Employer’s refusal unfair and/or unreasonable. I went on to record at [46] that as both sides agreed that the Commission was to conduct a merits review, “that is, the Commission is to stand in the shoes of the Employer and determine the “correct or preferable” decision”, that is the approach I took and in the absence of any objection to that approach in these proceedings, it is the approach I have taken again. That being the case, any flaws in the process undertaken by the Employer will fall away by reason of my reconsideration of the conversion requests.
Considering the above, the only questions I need to answer in order to answer the overarching question as to whether the conversion requests were fair and reasonably refused are:
Mr Spence gave generally unchallenged evidence that Ms Davidson’s responsibilities as a TO include:
performance of tests such as full blood count, coagulation tests, and erythrocyte sedimentation rate tests, which are performed on automated equipment;
blood film morphology;
monitoring inventory of products, reagents and consumables;
participating in external and internal quality control and quality assurance programs; and
identifying and responding to equipment failures with the assistance of senior staff as and when required.
Ms Davidson commenced training to perform blood film morphology in early January 2024 and her competency assessment was conducted on 4 July 2024 when she was signed off as competent after meeting all training requirements. Thereafter she began independent reporting.
It is an agreed fact that the IRP decided to refuse Ms Davidson’s conversion request on 20 November 2024, and she was notified of the refusal on or around 10 December 2024. Thus, at the time of her conversion refusal she had only performed blood film morphology independently for around five months. Ms Davidson’s evidence was that it “takes about 5 or 10 years to become entirely confident in morphology because it is so complex.”
Ms Davidson, like Ms Shah, contended that blood film morphology work is complex and is indicative of an ability to operate at a higher level. Such testing is used to diagnose blood disorders, including serious illnesses such as acute leukemias. Treatment outcomes from morphology need to occur quickly (e.g. a matter of days) and hence accurate and efficient reporting is essential. All staff in the Laboratory, TOs and HSs, are expected to learn and perform morphology.
It was not contested that morphology is largely a manual task, unlike the bulk of the work in the Laboratory which is a highly automated. Ms Mohammed explained that the work involves the examination of blood films/slides under a microscope. The slides are prepared either by automated equipment or manually. The morphologist reads, analyses and comments on what they observe on the slide. A blood count is performed and checked against other blood count tests and identifications made of morphologically normal and abnormal blood cells, by looking at their shape, size, colour and granularity. The results are recorded in the LIS and clinically significant findings are referred to a Registrar in accordance with published review criteria, for further review.
According to Ms Davidson’s unchallenged evidence, to perform morphology work “you must have a strong scientific background within haematology, and haematological diagnostics, as well as experience and confidence in what you are manually seeing, and thus identifying and reporting.”
There was some debate as to whether morphology work is “complex”. Mr Spence’s evidence was to the effect that it is work that is more complex than other work performed in the Laboratory, due to the fact that it is a “manual test”; that it requires specific skills and “there is an onerous training regime which employees need to undertake in order to [be] deemed competent”. While Ms Mohammed was less ready to concede that the work is complex and maintained that all work undertaken in the Laboratory is complex and requires special training and achievement of competencies to perform, I accept on the balance of the evidence, that the accurate and efficient performance of morphology work would prima facie indicate that an employee was capable of performing higher level work. However, without more, and noting that Ms Davidson had only been performing this work for around five months, after which, as I will explain, errors in her work were detected, the fact she had commenced performing this work does not counter Ms Mohammed’s view that she was, as at November 2024, not ready to perform HS duties.
It is agreed that Ms Davidson, like other TOs and HSs, prior to her conversion request regularly worked night shifts when she was the only staff member in the laboratory. During weekdays, from 5:30pm to 9:00pm, there is only one staff member in core haematology and one staff member in morphology and after 9:00pm there is only one staff member until 6:00am. If that staff member is not competent in morphology, no morphology work is undertaken during those hours.
Ms Davidson gave evidence that after 9:00pm “staff are expected to perform all the duties of the laboratory by themselves (manual and automated analysis and verification of specimens, blood film morphology for stat films, machine maintenance - both routine and troubleshooting, provide clinical and analytical advice to others). Furthermore, many smaller laboratories close after-hours meaning that all of their samples are sent to Westmead Haematology for processing, adding additional work to an already heavy workload.”
However, there was scant evidence to indicate that the work Ms Davidson was performing out of hours was relevantly different to the work she performed during business hours and this was expressly denied by Ms Mohammed. [9] Ms Davidson stated that she performed “all duties” required of HSs when she worked outside of hours. I do not accept this evidence in light of the concession in closing submissions that she was not performing any HS duties [10] and her own evidence in chief that she only performs work that she is trained and assessed as competent in. Ms Mohammed explained that even when working alone Ms Davidson would only perform work she was signed off as competent to complete and that there is always a technical support person on call, being a Senior SO or herself.
I consider the fact that Ms Davidson worked alone out of hours to be a neutral factor when considering whether it was fair and reasonable for the Employer to conclude that Ms Davidson did not have the experience and skills to perform HS duties.
In February 2025, approximately three months after her conversion request, Ms Davidson undertook what I understand was a routine morphology competency assessment. She did not perform well. She assessed 20 slides, 12 of which had to be returned to her for a second review as she had failed to identify the relevant features. After the review, six still did not meet “acceptable criteria” and she was required to undergo retraining. A further competency assessment was scheduled for late April 2025.
In the meantime, in March 2025, Ms Davidson made two mistakes when performing blood film morphology. She agreed in cross examination that they were serious mistakes. In discussion with Ms Mohammed and others from NSW Health Pathology, Ms Davidson apparently indicated that a lapse in concentration may have contributed to the errors. Due to the nature of the mistakes and after discussion with the senior staff in the Laboratory and the Supervising Pathologist, on 31 March 2025 Ms Mohammed suspended Ms Davidson’s morphology reporting to ensure there was no impact on patient safety or results. It bears repeating that morphology is a TO duty, not a HS duty, although HSs also perform it.
Ms Davidson underwent further morphology training throughout April and undertook a morphology assessment in late April. While there was some improvement from the assessment in February, Ms Davidson’s performance was again adjudged to be unsatisfactory, both in speed and accuracy. Consequently, she was placed on a Performance Improvement Plan (PIP). It is an agreed fact that the PIP lasted from May 2025 to November 2025, after which she was once again assessed as competent and allowed to continue to perform morphology work unsupervised.
In cross examination Ms Davidson asserted that many other TOs, some from rural and regional laboratories, also failed the morphology assessment in February 2025. That may be so, but in the absence of evidence that those same TOs were, in or around that time, converted to HSs, that fact does not bear on whether it was reasonable for the Employer to conclude that Ms Davidson did not have the experience and skills to perform HS duties.
In her statement Ms Davidson explained that the first morphology reporting error that had occurred in March was the result of fatigue, after having worked an excessive number of shifts and following night shifts. While this was not contested by the Employer, who otherwise noted that no complaints about fatigue or rostering had been made prior to the mistake, it was established that the second error and the competency assessments in both February and April were not affected by fatigue issues.
In her statement Ms Davidson complained that the standards she was required to meet in the April morphology assessment were unreasonable, particularly as many of the slides she was required to assess were “generally things never seen or are a rare modification of a known disease” which even very senior practitioners with “40+ years’ experience get wrong or argue over the correct result”.
In cross examination Ms Davidson again explained that one of the reasons she failed the April competency assessment was because it included slides which Ms Mohammed told her she “wouldn’t actually have ever seen”. [11]
My role is not to determine whether the Employer’s management of Ms Davidson was appropriate or fair. What I have to determine is whether it was reasonable for the Employer to conclude that Ms Davidson did not have the experience and skills to perform HS duties. On Ms Davidson’s own evidence, the slides she was required to examine during the competency assessments contained things she had never seen before. This is entirely understandable, given she only commenced during morphology work in July 2024. However, her lack of experience, as at November 2024, was the very thing that the Employer pointed to as a reason for refusing her conversion.
Ms Davidson complained that she was unexpectedly given a time limit for the competency assessment, which made her feel stressed and extremely pressured. I accept that was the case. Nonetheless, the time limit given - 20 slides in four hours – was well under the KPI of 80 slides for an eight hour shift. While it may be the case that there were factors beyond Ms Davidson’s control that impacted on her performance in the April competency assessment, I observe that the subsequent PIP endured for some 25 weeks and involved two extensions, before she was once again assessed as being competent, indicating that there were real issues in her skills and experience throughout 2025.
According to Mr Spence, mistakes in morphology “are more likely to occur where an employee has a lack of experience” and he opined that Ms Davidson “may well have the ability to one day be deemed competent in morphology, when she … acquired more experience”. It would appear that the experience she has gained since April 2025 has now resulted in her been assessed as competent, and such experience ought to place her in a better position to apply for conversion than was the case when she was a two-year out graduate TO.
It is the case that another TO with similar qualifications and experience to Ms Davidson, and who worked in the Laboratory doing similar work to Ms Davidson - so-called Converted SO 3 - was converted, however the evidence establishes that they were not converted by the Employer, but by the Transitional Committee. It was established that Converted SO 3 is now on a PIP, as they failed competency in morphology, which the Employer submitted vindicated its decision not to re-classify Converted SO 3.
As the Employer refused Converted SO 3’s request, their subsequent conversion provides no assistance to Ms Davidson’s argument that she had the same skills and experience as Converted SO 3 and should therefore have been regarded by the Employer as ready to assume HS duties. The fact that Converted SO 3 is now on a PIP further speaks against Ms Davidson’s contention. Nor does any issue of fairness viz-a-viz Ms Davidson arise, both because the evidence shows that Converted SO 3’s application for conversion was made and considered after Ms Davidson’s application had been refused and because the decision to convert was made by the Transitional Committee.
It is reasonable for the Employer to only consider for conversion Employees that have sufficient skills and experience to be able to be trained to safety and competently perform the higher duties of a HS. In the circumstances it was reasonable for the Employer to conclude that Ms Davidson, at the time of her conversion request, did not have the experience and skills to perform HS duties.
Axiomatically, Ms Davidson was not performing at a level or undertaking duties, which would point in favour of her conversion. Consequently issues (2) and (3) identified in paragraph [19] do not arise for consideration.
According to Mr Spence’s uncontradicted evidence, “much of the workload, processing the high volume of testing can be done by Technical Officers.” He stated that converting additional staff “will result in a reduction in the amount of time that Hospital Scientists within the Haem Lab spend performing their duties such as Quality Assurance review, validation or verification work, training, and higher level trouble shooting and will impact the Laboratory’s ability to sustain proficiency and expertise in performing Hospital Scientist duties, including potentially affecting the ability of Hospital Scientists to maintain their competencies in these duties.”
I accept that, as a matter of logic, it is possible that the addition of more HSs in the Laboratory could affect the ability of HSs in the Laboratory to maintain competencies in their HS duties due to a reduction in the time spent performing those duties. However, the amount of HS duties undertaken in the Laboratory is already so low – dropping to as little as 30 minutes a week, shared across 5 – 7 HSs, not to mention Senior HSs who also perform the HS duties – that it is difficult to accept that maintenance of proficies and competencies is not already a challenge. However, there was no evidence that it has been to date.
I accept that the additional of another HS to the Laboratory would have an almost negligible impact on the amount of time HSs in the Laboratory spend on HS duties such that any argument about this having a deleterious effect on the maintenance of proficies and competencies must be given little to no weight.
The Employer argued that increasing the number of HSs would not result in additional capacity efficiencies in the Laboratory. I agree.
Mr Shah expressed the view that an addition HS would allow for:
In Keryakous I said, at [73], that I considered it reasonable for the Employer to consider denying a conversion request if there are genuinely insufficient HS duties to sufficiently occupy the proposed number of HSs. I went on to say “that the conversion of TOs to the position of HS in circumstances where they will not be required to actually perform the duties of a HS (i.e. those duties which TOs are not required to perform) would represent a waste of public funds.” I stated and I now repeat that it “is plainly reasonable for the Employer to manage its operations economically. This is all the more, so when public funds are used to run those operations.”
I consider that the circumstances of this particular Laboratory, which is highly automated, with very few HS duties, is such that it would not be reasonable for the Employer to convert Mr Shah, despite his long and efficient service, as it would involve a waste of public money.
Mr Shah submitted that arguments about wasting public money and managerial prerogative should not be given much weight in circumstances where the majority of tasks in the Laboratory are undertaken by HSs and TOs interchangeably. I do not agree. I think this fact speaks to a need for the Employer to be particularly attuned to managing human resources as cost effectively as possible.
The Employer argued that the lack of HS duties could mean that if Mr Shah were converted he would not be able to be allocated HS duties and it would be unfair to both existing HSs doing HS duties if Mr Shah were paid the same as them without doing HS duties; and to TOs who would be performing the same duties as Mr Shah but being paid less to do so. While there is some force in this argument, I have not given it much weight, as it is a matter for the Employer to ensure that whatever HS duties there are, they are equally shared amongst the HSs, to ensure fairness all round. However, I also accept that at some point the dilution of duties across the HS cohort would result in there being very little to distinguish a HS from a TO, which once again underscores the potential waste of public money.
In arriving at this difficult decision, I have placed considerable weight on the particular circumstances of the Laboratory. If there was more scope in the Laboratory for the performance of higher level work which would produce some benefit to the public, the outcome may well have been different.
Consistent with what I said in Keryakous at [74], I have arrived at this decision in light of all the circumstances. I have considered whether there were any other factors that pointed in favour of Mr Shah’s conversion. Unlike Ms Keryakous, Mr Shah does not have significant and relevant post-graduate qualifications and he has not obtained letters in support of his conversion, as Ms Keryakous did, which speak to his leadership skills or other qualities which would indicate that he should be re-classified as a HS. It is purely his tenure and efficiency which point in favour of conversion, however in this case it is not enough to counterbalance the Employer’s interest in being able to run its operations as economically as possible.