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[2026] NSWIRComm 1037
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-05-07
Commissioner McDonald
Original judgment source is linked above.
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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 Meksasi [2026] NSWIRComm 1037
Hearing dates: 13 April 2026
Date of orders: 7 May 2026
Decision date: 07 May 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner McDonald
Decision: (1) Pursuant to s 136(1)(b) of the Industrial Relations Act 1996 and clause 21 of the Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award, Schedule A of that Award is varied so as to include:
(a) as an employee determined to be a Hospital Scientist, Rami Meksasi;
(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), s 136
Cases Cited: Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073
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
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: Secretary, NSW Ministry of Health in respect of NSW Health Pathology (Notifier)
Rami Meksasi (Respondent)
Representation: Counsel:
H Nguyen (Notifier)
J Martin (Respondent)
Solicitors:
Sparke Helmore Lawyers (Notifier)
Other:
Heath Services Union NSW (Respondent)
File Number(s): 2025/59761
Publication restriction: None
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). For the purposes of this decision it is helpful if I set out the terms of cll 3, 5, 19, 20 and 21 of the Conversion Award and discuss some aspects arising from my decision in Keryakous*,* and from my subsequent decision in 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 (Davidson & Shah).
Clauses 3, 5, 19, 20 and 21 of the Conversion Award provide:
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 Mr Meksasi submitted a valid conversion request.
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 parties agree that the Commission is charged with conducting a merits review: it must stand in the shoes of the Employer and determine the “correct or preferable” decision. [1] The parties also agree that as the Commission’s role is to conduct a merits review, any procedural fairness issues will fall away by reason of the Commission’s reconsideration of the conversion request. [2]
A review of the Employer’s decision to refuse a conversion request will invariably involve a consideration of the “duties of a Hospital Scientist as determined by the Employer from time to time” in a given laboratory. I explained how those duties are to be determined in Keryakous at [69] and [70] :
“69 … when considering the duties of a HS, which is fundamental to any consideration of a conversion request given that the TO will be expected to perform such duties and is an implicit element of at least the matters referred to in cl 19(d) and (h) of the Conversion Award, there needs to be an inquiry as to what the HS position entails. However, the focus of that inquiry must be upon those duties of the HS which are not required to be undertaken by TO. The duties a HS may perform in common with a TO are irrelevant for the purposes of the Conversion Award. It is the different duties the HS is required to undertake that distinguishes them from a TO…
[70]… I consider that the reference to “the duties of a Hospital Scientist” in the Conversion Award is a reference to duties that TOs are not required to perform. Clause 3 expressly requires a TO applying for conversion to “agree to undertake the duties of a Hospital Scientist as determined by the Employer from time to time.” Plainly those duties must be different to the duties the TO is already performing, otherwise there is no need for the TO to agree to undertake the duties and there would be no justification for the employee to be paid higher remuneration. Put simply, for the purposes of the Conversion Award “the duties of a Hospital Scientist” does not refer to duties which may overlap with the duties of TOs.”
Accordingly, a reference to “HS duties” or “SO duties” in this decision, as in Keryakous and in Davidson & Shah, is a reference to duties which are only required to be performed by a SO. Duties which a SO might perform in common with a TO are not SO duties.
As was the case in Keryakous and Davidson & Shah, Mr Meksasi’s conversion request was refused, in part, because the Employer considered that there were no additional SO duties available for Mr Meksasi to perform. [3]
I explained how this issue should be approached in Keryakous at [72] – [75]:
“72. First, cl 3 of the Conversion Award acknowledges that the duties of a HS are to be determined by the Employer. It is not for Transitional Committee or the Commission to question what duties the Health Secretary choses to allocate to a HS which it does not require a TO to perform. I consider that the written role descriptions are the primary evidence of what the HS duties are.
- Second, I consider it reasonable (although not necessarily fair, noting that the refusal must be both fair and 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. While Mr Spence, gave unchallenged evidence that a reduction in the amount of time that HSs spend performing their HS duties (i.e. those which TOs are not required to perform) due to a lack of those duties, “could affect the ability of Hospital Scientists to maintain their competencies in these duties”, I also consider 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[.] 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.
- While the absence of HS duties will point against conversion, the decision must be taken in light of all the circumstances. There may well be instances where there are no HS duties, but in all the other circumstances, including the matters listed in cl 19, it would not be fair and reasonable to refuse conversion. In other words, the lack of HS duties is not a “trump card” per se, although there may well be instances where that matter alone, following an assessment of all the circumstances, will mean that a refusal is fair and reasonable.
- Lastly, given that the Employer must establish that it is fair and reasonable to refuse a conversion request, it bears the onus of establishing that there are not, in fact, sufficient HS duties to ‘go around’ if this is the basis or one of the bases, upon which it relies to refuse a conversion request. It will not be sufficient to simply assert this is the case without establishing the grounds on which it is said there are not sufficient HS duties to allow the TO to be converted.”
“… 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.”
Consequently, in the case of Mr Shah, [5] I found that in the circumstances of his laboratory, which was highly automated with very few HS duties, that it was reasonable for the Employer to refuse Mr Shah’s conversion request “despite his long and efficient service, as it would involve a waste of public money.” [6] The decision was also fair in circumstances where, while Mr Shah was a long-standing and efficient employee, he did not have other outstanding personal qualities, such as had been demonstrated by Ms Keryakous.
In arriving at that decision, I noted that 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.” [7]
The Employer tendered in evidence a Statement of Agreed and Disputed Facts and Issues (Ex N6).
It was an agreed fact that the Employer determined it was fair and reasonable in all the circumstances to refuse Mr Meksasi’s Conversion Request on or around 2 December 2024, having regard to the following:
“a. Clause 19, subclause d, the nature of the laboratory or area worked, and the nature and volume of work performed where Mr Meksasi currently works, including duties performed by staff in the laboratory or area worked, technology and equipment used; and
b. Clause 19, subclause h, the staffing numbers and skills mix in the laboratory or area where Mr Meksasi currently works.”
As already mentioned, the Employer refused Mr Meksasi’s request on the basis that there was no operational need for more SOs in the laboratory in which Mr Meksasi worked, being the Drugs and Driving Toxicology Unit (DDT Lab) within the Forensic Toxicology branch of the Employer’s Forensic & Analytical Science Service (FASS), but rather there was an operational need for more TOs to perform TO duties. Relatedly, the Employer contended that if Mr Meksasi was converted to a SO, he would still need to spend the majority of his working time performing the duties of a TO due to the high volume of “frontline” testing work (being TO work) required to be undertaken by the DDT Lab and the lack of TOs to perform that work. The Employer contended that converting Mr Meksasi in those circumstances would create an operational inefficiency and an unfairness to existing SOs, who would receive the same or similar pay to a recently converted Mr Meksasi, but who would be performing the more complex duties of a SO, while Mr Meksasi performed the duties of a TO; and to TOs in the laboratory who would be performing the same duties as Mr Meksasi, but being paid less to do so.
Mr Meksasi contended that, (similar to the situation in Shah), there is a large overlap between TO and SO responsibilities in the DDT Lab, with TOs and SOs performing the same duties around 50% of the time. As I understood the submission as it was put at the hearing, it was said that in those circumstances Mr Meksasi’s conversion would not give rise to any operational inefficiency as Mr Meksasi would continue to be able to perform the common duties, while also being able to perform SO duties, the extent of which would increase as his training progressed.
The Employer agreed there is a degree of overlap but says the extent of that overlap is less than 50% and, in any case, says that the reason for the overlap is because there are too few TOs to do the TO work, resulting in SOs having to step into the breach. Notably, the Employer’s view, as expressed by the Manager of the DDT Lab, Mr McBriar, was that SOs should only spend around 5-15% of their time doing frontline technical work (i.e. TO work), primarily as a part of their function as supervisors and trainers, with the rest of their time being spent on SO duties. This is a very different situation to Mr Shah’s and Ms Davidson’s laboratory where the lack of SO duties meant it was not possible for SOs to perform SO duties, as identified, for more than 5% of their total work time, even if there was more TOs to perform the TO work.
Both sides agreed SOs in the DDT Lab were not able to perform all their SO duties within ordinary hours and were having to draw on overtime to complete their SO duties, in particular, their reporting duties. The Employer contended this was due to SOs having to perform frontline testing work because there were (and are), not enough TOs to perform this work. The Employer argued that converting Mr Meksasi would not result in any productivity or efficiency gains for the DDT Lab and would in fact result in an operational and economic inefficiency, similar to that in , because Mr Meksasi would be paid more to perform much the same work, and it would only exacerbate the problem of SOs having to perform TO duties and failing to get through their SO duties. It would also effect an unfairness, as I outlined in the last sentence of [16] above.
The following facts were agreed regarding FASS and the DDT Lab: [9]
Within NSW Health Pathology (NSWHP), TOs work in either:
(a) Clinical pathology services (Clinical Operations or Clin Ops); or (b) Forensic and analytical science services (also referred to as FASS).
(a) NSW Police Traffic and Highway Patrol to administer the roadside drug testing program across the state of NSW, blood alcohol analysis and drug impairment related matters; and (b) NSW Police Force Sexual Assault Unit analysing sexual assault and drug spiking biological samples, to test for the presence of drugs.
(a) the range of drugs that an individual may use can be wide and varied; (b) illicit drugs are not standard preparations like prescription medications, and metabolism of these drugs can vary from individual to individual; (c) individuals may also use/abuse prescription medications, which will show in their test results, and must be distinguished from other substances; (d) substances may occur at different concentrations in blood than in urine. Accordingly, additional testing may be required to test for the presence of a drug in blood, once it is detected in urine. This requires specific knowledge of drug metabolism and the differences between sample types, which is gained through extensive training and experience.
(a) 600 drug driving cases; (b) 600 drug facilitated assault cases; and (c) 15,500 blood alcohol cases.
(a) 800 drug driving cases; (b) 700 drug facilitated assault cases; and (c) 16,200 blood alcohol cases.
(a) 2 FTE Senior SOs; (b) 5 FTE SOs; (c) 3 FTE TOs.
(a) 2 FTE Senior SOs; (b) 5 FTE SOs (including 1 inter lab SO); (c) 5 FTE TOs (including 1 inter-lab TO and 1 seconded TO, both of which will expire in June 2026).
Additional evidence as to features of FASS and the DDT Lab was given by Dr Deanna Paulin, Acting Director, FASS; Dr Stephanie Hales, Associate Director, Integrations Science, FASS; Todd McBriar, DDT Lab Manager and Mr Meksasi. Only Mr McBriar and Mr Meksasi were cross examined.
For present purposes there are six key facts regarding the DDT Lab, established by the agreed facts and the evidence giving by the witnesses.
The first, is that there is a demarcation within the DDT Lab between alcohol testing and drug testing.
Second, alcohol testing is reasonably straightforward as there is one compound, ethanol, being screened. Screening results are either positive or negative and testing is high volume, performed pursuant to Standard Operating Procedures (SOPs). Drug testing on the other hand is complex, requiring high level knowledge and skills. Extensive scientific analysis, interpretation and validation of results is untaken, by SOs, in order to produce a final report, which may need to be used as evidence in court. According to Mr McBriar it is not unusual for a less experienced staff member, who is relatively new to the form of science required in the DDT Lab, to take two and even up to four years to learn and understand all the relevant concepts.
Third, the time taken from testing, through to the production of a Certificate of Analysis (CoA) certifying the result, is a lot longer in the case of drug testing. Results from alcohol screening are typically available within 48 hours, with the CoA issued in around two weeks following second round testing of positive results. Drug testing on the other hand can take weeks. According to Mr McBriar a CoA is “supposed” to be issued in 28 days, however the turnaround time in the DDT Lab was, at the time he gave evidence, “around about 35 days” [10] and “depending on the case it could take up to maybe up to eight weeks.” [11]
Fourth, as discussed further below, because the alcohol testing is more straightforward, it is conducted by TOs, save for the issuing of the CoA, whereas while TOs will perform testing, that is, extractions and processing, or what Mr McBriar referred to as “frontline technical work” in respect of drug testing, the analysis, interpretation and validation of results, including production of reports and issuing the CoA, is undertaken by SOs. Consequently, as Mr McBriar explained, the DDT Lab is “intentionally Scientific Officer heavy, due to the complexity of testing and the requirements for validating results and writing reports for our stakeholders.” As set out at [23(12)] above, as at the date of Mr Meksasi’s conversion request, the DDT had seven SOs (including SSOs) and only three TOs.
Fifth, the DDT Lab has experienced a considerable increase in recent years in the number of cases it is required to process, in particular, drug cases. While the evidence was not entirely clear as to date the case numbers set out at [23(10)] were referrable to, the figures indicated there has been an increase of around 25% in drug cases, compared to a 4.5% increase in alcohol cases. Mr McBriar, who has been the DDT Lab Manager since 2022, gave evidence that there had been a significant increase in cases, year on year, and because the primary increase has been in the number of drug cases there has also been an increase in “complexity as well as the volume” which has had a significant impact on the workload of SOs. [12]
The following facts were agreed regarding the distinction between TO and SO duties in the DDT Lab:
TOs and SOs in the DDT Lab are distinct positions with defined duties.
There is a degree of overlap in the work performed by TOs and SOs, in that SOs are also currently performing some frontline technical work.
TOs are, among other things, responsible for blood alcohol testing and analysis, and the production and review of the screening reports for those tests. Alcohol is presented in the blood if the screening results come back as positive or negative for the presence of ethanol. These tests are high volume and performed in accordance with SOPs.
Positive results are batched together and allocated to a rostered SO. In these cases, TOs perform a second round of more comprehensive testing, and the results of that testing are then reviewed by a rostered SO who produces the certificate for court purposes.
In the DDT Lab, SOs are assigned a complex case, or cases, involving sexual assaults and drug impairment matters and often handle multiple cases at a time. The SOs are responsible for managing their cases, including the collation of data and writing of reports. The SO, or SSO overseeing the work of the SO, will direct the TOs to perform particular tests, rather than doing the testing themselves.
The results for complex cases are then reviewed and validated by a SO, who writes a report after collating the casefile. The casefile including the report is then peer-reviewed, usually by a trained and authorised member of staff, such as a SO authorised to complete peer reviews or an SSO. This is to ensure there are no errors before the report is released to NSW Police.
Unlike in a clinical laboratory, there is no pathologist to review or oversee results and reporting. In the DDT Lab, this is the responsibility of the SO, overseen by the SSO.
SOs are regularly required to give evidence in court as expert witnesses, such as in criminal cases. In court, they are likely to undergo intense cross examination on their report, including on the decisions they made, why they performed a particular test, whether their interpretation of the results is correct and the scientific methodology used. SOs need to have the depth of knowledge and skills to be able to explain and justify their methodology and analyses.
By contrast, TOs are rarely required to give evidence in court. If they do, it is to give factual evidence on the processes carried out in relation to the receipt and handling of samples and the test which were carried out.
It can take a person between two to four years, once they commence in the SO role and begin training, to be able to perform the full scope of duties of a SO in the DDT Lab, depending on:
(a) the nature/specialisation of their qualification and subjects studied; (b) their skills and experience; and (c) their knowledge of analytical chemistry, toxicology and metabolism.
In particular, it takes at least two years to get across the complex case work to be able to deliver accurate and defensible case work, reports and certificates. It can take longer than this to be competent to provide testimony in court.
Mr McBriar gave the following evidence as to the work done by TOs in the DDT Lab:
“Technical Officers in the DDT Lab, including Mr Meksasi, undertake the following work:
a. Perform tests and technical tasks relevant to the laboratory in accordance with documented protocols including sample extraction, scheduling and processing of samples
b. In the routine operation, maintenance and troubleshooting of instrumentation, on the proviso it can and should be escalated to more senior staff when required;
c. Limited decision making, working under the direction of Scientific Officers/Analysts;
d. Follow established methods and procedures (SOPs) in the performance of all tests and technical tasks;
e. Provide foundational education and training to new staff members on relevant methods and procedures;
f. Liaise with engineers and suppliers as necessary for the resolution of technical or equipment difficulties and/or basic troubleshooting.” [14]
In cross examination Mr McBriar agreed that SOs also perform the tasks referred to in paragraphs (a) and (d) above. This “overlap” with the work of TOs is discussed further below.
A position description for a TO in the DDT Lab was tendered in evidence. It indicated that the role of TO is somewhat broader and more complex than indicated Mr Briar, but ultimately nothing turns on this.
Mr McBriar gave the following evidence as to the duties performed by SOs in the DDT Lab:
“…the following are duties performed by Scientific Officers in the DDT Lab:
a. Determine the tests to be undertaken for each complex case;
b. Interpret and validate test results after the ‘frontline’ testing has been done;
c. Determine if sufficient testing has been completed so the casefile can be collated for the preparation of reports, review reports, provide expert statements and expert evidence in court on all aspects of work performed;
d. Independent decision making on complex cases i.e. those beyond blood alcohol testing. For example, if the quality of a result does not meet expectations and reanalysis of a sample is required or the criteria for the proper identification of a substance needs to be reviewed or more advanced testing (Time-of Flight Mass Spectrometry) is required due to the nature and type of the substance in the sample (for example it is a novel substance, or a rarely seen substance) This is done by Scientific Officers independently or with little to no supervision.
e. Maintain a thorough knowledge of the principles, uses and limitations of the laboratory's instruments, methods, and procedures, and maintain scientific knowledge and skills sufficient to enable contributions to the improvement of the analytical methodology;
f. Provide training of staff across all laboratory procedures to ensure consistent and accurate application of laboratory practices. Scientific Officers with the appropriate experience and competency provide the required training and supervision of other Scientific Officers for the purposes of batch data validation, how to collate and report on complex cases and the final peer review process;
g. Participate in the introduction of new technologies by developing and validating methods, ensuring appropriate evaluation and documentation;
h. Involved in research, including to develop new and/or improve procedures, policies, methods, and equipment;
i. Give presentations, lectures, and expert opinion to internal and external stakeholders (e.g. NSW Police);
j. A level of understanding, experience and involvement in maintaining the DDT Lab’s NATA 17025 accreditation and the required quality assurance tasks (vertical audits, NATA surveillance visits).
Mr McBriar’s description largely accords with the position description for a SO in the DDT Lab that was tendered in evidence. In cross examination Mr McBriar accepted that TOs also have to have the abilities described in paragraphs (e) and (j) above, but again, nothing really turns on this.
Despite the concessions made by Mr McBriar, it is clear that there are many tasks in the DDT Lab that only SOs do. Put overly simply, the TOs perform “frontline” technical work in respect of both alcohol and drug testing, that is, extracting samples, processing and case folder preparation; while SO duties involve ordering specific drug tests, analysing, interpreting and validating drug tests, and reporting on and certifying all results. SOs also attend court when required to give evidence in respect of tests and are required to undertake research, method reviews and the implementation of new technologies. The work of a SO requires higher order thinking and analysis than that required of a TO.
The following facts were agreed with respect to Mr Meksasi and his conversion request: [15]
Mr Meksasi is currently employed as a TO working in the DDT Lab within the Forensic Toxicology branch of FASS.
Mr Meksasi has worked in this role since 9 October 2023, when he commenced on a temporary contract. Mr Meksasi became a permanent employee on 29 July 2024.
Mr Meksasi holds the qualifications of Bachelor of Science from Western Sydney University (conferred in 2019) and a Masters of Forensic Science from Western Sydney University (conferred in 2021).
Prior to joining FASS, between August 2021 to September 2023, Mr Meksasi worked in various roles including Laboratory Aide, TO and SO in the Special Chemistry/Toxicology section at Laverty Pathology. Mr Meksasi was employed as a SO at Laverty Pathology from 24 October 2022 to 1 October 2023.
From 3 February 2025 to 29 June 2025 Mr Meksasi undertook a 5-month secondment role in the DDT Lab as a SO, to fill a temporary vacancy.
On 12 November 2024, Mr Meksasi made a conversion request in accordance with clause 3 of the Conversion Award.
At the time of his conversion request, Mr Meksasi did not perform the duties of a SO.
Mr Meksasi has never been required to give evidence in court.
The conversion request of Mr Meksasi was reviewed by an Internal Review Panel (IRP) convened by the Employer on 2 December 2024.
The Employer determined it was fair and reasonable in all the circumstances to refuse the conversion request on or around 2 December 2024, in particular having regard to the following:
(a) Clause 19, subclause d, the nature of the laboratory or area worked, and the nature and volume of work performed where Mr Meksasi currently works, including duties performed by staff in the laboratory or area worked, technology and equipment used; and (b) Clause 19, subclause h, the staffing numbers and skills mix in the laboratory or area where Mr Meksasi currently works.
Mr Meksasi was notified of the Employer’s decision on or around 10 December 2024.
A referral was made by Mr Meksasi to the Transitional Committee, who met to consider Mr Meksasi’s request on 13 January 2025.
Both the Employer and Mr Meksasi provided supplementary information to the Transitional Committee for their consideration in determining the conversion request.
The Transitional Committee was split and unable to make a decision by majority vote.
Mr Meksasi did not withdraw the Conversion Request. As such, the Employer notified this dispute pursuant to cl 12 of the Conversion Award.
Around the same time as Mr Meksasi’s request was before the IRP, one other TO from the DDT Lab had their conversion request considered and refused on the same operational grounds as Mr Meksasi, but also due to the person’s very limited experience as a TO and performance concerns. The other TO subsequently withdrew their conversion request and remains a TO.
To date, these are the only two conversion requests in the DDT Lab and no conversions have been made.
After Mr Meksasi’s conversion request had been refused, on or around 12 February 2025 and 10 April 2025 respectively, the Employer converted two FASS employees (SO 1 and SO 2) who were employed in the Drugs Toxicology Unit (not the DDT Lab).
The conversions of SO 1 and SO 2 are not relevant to whether the refusal of Mr Meksasi’s conversion request was fair and reasonable in all the circumstances.
In this matter, unlike Davidson, the Employer did not contend that Mr Meksasi did not have the skills, knowledge and experience to be a SO. It is clear from the evidence that Mr Meksasi is capable of performing the duties of a SO, albeit that he would, of course, as would anyone moving from the position of TO to SO, require training and some years of experience in performing SO duties before he would be fully competent in performing all the duties required of a SO.
That being the case, Mr Meksasi’s personal circumstances are only relevant to the extent that they might counterbalance the factors the Employer relied upon to refuse his conversion. Mr Meksasi relied on three matters which he says acted as such a counterbalance.
First, at the time of his conversion request he had had approximately 16 months experience working as a SO with Laverty Pathology. The Employer did not dispute this, but maintained that the work of a SO at Laverty, a private clinical laboratory, is not comparable with the work of a SO in the DDT Lab.
According to Mr McBriar:
“In broad terms, clinical testing work involves undertaking prescribed tests on patient samples, where the results are sent to medical practitioners to diagnose and treat conditions, with the patient the main stakeholder. Clinical testing uses commercially prepared tests to which samples are added before being run through automated systems. Forensic analytical work is typically more complex and labour intensive because it often involves performing testing on unknown samples on advanced instrumentation, interpreting the data and then drafting expert reports for use in a legal context i.e. Criminal courts, NSW Police or the NSW Coroner.” [16]
Mr Meksasi explained in cross examination that he worked in the toxicology department at Laverty and used extracted biological samples when testing, not commercially prepared tests. [17] He also explained that in his role as a SO at Laverty he prepared reports but accepted that he did so under the direct supervision or guidance of a specialist pathologist. [18]
According to Mr Meksasi, in his role at Laverty he was responsible for analysing and processing batches of drug-related casework, such that the training he received at NSWHP built upon the experience he had already developed at Laverty. He also asserted that the instruments and biological sample types used in both roles are similar, which enabled him to have a seamless transition. [19] He accepted however, that a different ISO standard applied to the forensic work done at the DDT Lab compared to that used for clinical pathology.
Mr McBriar accepted in cross examination that the Mr Meksasi had “transferrable skills” as a result of his prior experience at Laverty. [20]
Second, Mr Meksasi pointed to the fact that he was selected to undertake his secondment as a SO, following a merit-based selection process, prior to making his conversion request. (He did not commence the secondment until 3 February 2025, after his conversion request had been refused.) He submitted that this indicated that the Employer had trust and confidence in his ability perform SO duties. Mr Mc Briar agreed in cross examination that Mr Meksasi was selected for the secondment because of his good performance and strong work ethic. [21]
Lastly, as a result of his secondment, Mr Meksasi continues to perform some discrete SO duties. While there was some debate about the extent to which Mr Meksasi performs SO duties following his return to his substantive TO role on 30 June 2025, Mr McBriar’s own evidence was that he does perform some “discrete Scientific Officer duties.” [22]
The parties identified as an issue requiring factual findings, the “scope” of SO and TO duties. While there was a minor debate about that, the real and relevant issue is not the scope of the duties, but rather the amount of TO and SO duties in the DDT Lab. This is, in essence, what was identified as Issues 3 and 4. I do not consider that it is necessary for me to resolve at a granular level the scope of the duties of TOs and SOs. It is sufficient to identify that there is a reasonably clear distinction between the two roles, with TOs principally performing what is generically referred to as ‘frontline testing work’, while SOs are required to perform higher level analysis and reporting, as well as other higher level work.
In Davidson & Shah, it was agreed that there was no operational need for more HSs in the laboratory as there was a lack of HS duties. In that case there was simply no HS duties for Mr Shah (or Ms Davidson) to perform. In this case Mr Meksasi contends that there were (and are) SO duties for him to perform. The Employer did not really cavil with this contention at the hearing. Mr McBriar, who has been the DDT Lab Manager since 2022, gave no evidence to the effect that there would be no SO duties for Mr Meksasi to perform were he to be converted. Rather, Mr McBriar’s evidence was to the effect that the DDT Lab needed more TOs to perform frontline testing work, in order to relieve SOs from performing this work, to enable them to focus on their SO duties. His evidence, and that of Mr Meksasi, also revealed however, that the increased case numbers had also increased the amount of SO work.
The evidence clearly showed that an increase in cases, in particular drug cases, has necessitated more frontline testing work to be done, and consequently SOs were having to be involved in this work. According to Mr McBriar, “a more permanent complement of Technical Officers in the laboratory, … would allow more time for Scientific Officers to focus on their specific tasks.” [23] He explained that the increase in work also increased the casework reporting of SOs, which they were struggling to perform during ordinary working hours due to the operational need for them to do frontline TO work. [24]
Dr Hales, who was not cross examined, and who was a member of the IRP, gave evidence that Mr Meksasi’s conversion request was refused because “not only did the DDT Lab not have additional Scientific Officer duties available for Mr Meksasi to perform, but it did have an operational need for Technical Officers to perform Technical Officer work.” [25]
As I said in Keryakous, the Employer “bears the onus of establishing that there are not, in fact, sufficient HS duties to ‘go around’ if this is the basis or one of the bases, upon which it relies to refuse a conversion request.” [26] Mr McBriar, as the DDT Lab Manager, is best placed to comment upon the work undertaken in the DDT Lab. Based on his evidence, and that of Mr Meksasi, I am satisfied that at the time of Mr Meksasi’s conversion request there would have been SO duties for Mr Meksasi to perform. The DDT Lab, which undertakes complex scientific and forensic analysis and reporting, is very different to the highly automated laboratory in which Ms Davidson and Mr Shah worked. It has a large amount of SO duties, hence, as Mr McBriar explained, it is SO heavy. It has experienced a significant increase in cases, particularly drug cases, causing the amount of SO work to increase and reporting times to extend.
I said in Keryakous*,* that the duties a HS may perform in common with a TO are irrelevant for the purposes of the Conversion Award. [27] I made this observation in the context of explaining the distinction between HS duties and TO duties. I was not suggesting that that the performance of duties in common would be irrelevant to the consideration of a conversion request. The degree of overlap between SO and TO duties may indeed bear on the reasonableness of the decision to refuse a conversion request as it may inform the extent of SO duties available.
If SOs are spending a very high percentage of their work time performing duties in common with TOs, that is, not doing SO duties, that may indicate that there are very few true SO duties. This was the case in Davidson & Shah. However, the reasons for a high overlap in terms of time spent performing duties in common must be examined. And there may be other indicia, such as large amounts of overtime being recorded by SOs, which clarify the true extent of SO duties.
In Davidson & Shah*,* HSs spent most of their time performing tasks in common with TOs, due to the fact that the laboratory in which Ms Davidson and Mr Shah worked was highly automated and consequently there was only around half an hour to four hour a week in total spent by HSs in that laboratory performing HS duties. The lack of HS duties was ultimately determinative of the refusal of Mr Shah’s conversion request being held to be fair and reasonable in all the circumstances.
In the present matter all the evidence indicated that the reason why SOs were performing a considerable amount of work in common with TOs was due to there being too few TOs to undertake all of the necessary frontline technical work. This was caused or exacerbated by the overall increase in cases processed by the DDT Lab, in particular drug cases and was causing SOs to engage in overtime “so they [could] catch up on reporting”. [28]
I accept Mr McBriar’s evidence that ideally SOs would only perform frontline technical work around 5-15% of their time, typically as part of their supervisory responsibility.
There was some debate about the extent to which SOs were performing TO work. According to Mr Meksasi, SOs were spending 50% of their time – which I took to refer to their ordinary hours – doing TO work. Mr McBriar suggested it was less than this although he did not put a figure on it. He gave evidence that “currently … [around] 70% of extractions are performed by Technical Officers and 30% of extractions are performed by Scientific Officers.” [29]
Ultimately, I do not need to decide the degree of overlap. I have already found that there were (and are) SO duties for Mr Meksasi to perform were he to be converted. Nonetheless, it is plain that there was and is a considerable overlap in the work done by TOs and SOs in the DDT Lab due to the lack of sufficient TOs to perform frontline testing work.
The answer to this question - when looked at in isolation – is also, yes. The evidence clearly showed that SOs were (and are) struggling to complete all their SO duties within ordinary hours and that reporting times for drug cases were blowing out. To the extent the Employer contended (and I am not sure that she did), that all SO duties would be able to be completed if the existing complement of SOs did not have to perform TO work and that therefore there was no need for more SOs, but rather more TOs, the Employer did not establish this on the evidence. This is in contradistinction to Shah where the Employer did establish that all HS work was able to be performed by the current cohort of HSs.
The evidence indicated that the reason SOs were not able to complete all their SO duties was due to a combination of insufficient TOs and an increase in cases. As Mr McBriar confirmed “[c]asework has increased for Scientific Officers, but as Scientific Officers are being utilised for frontline work due to the increase in sample volumes, this lessens their ability to perform their Scientific Officer duties during standard working hours.” [30]
Additional SOs in the DDT Lab would plainly assist in the completion of the DDT Labs’ SO duties, even if it meant that SOs would continue to have to perform some TO duties. Whether the conversion of an existing TO to a SO would assist in the completion of the DDT Labs’ SO duties and/or otherwise provide productivity or efficiency gains, is a different question and is addressed in the following section addressing issue 5.
The Employer contends that Mr Meksasi’s conversion would give rise to an “operational inefficiency” [31] . It submitted that if Mr Meksasi were converted:
it would not ameliorate where the work demands are - which is frontline technical testing work;
Mr Meksasi would still need to spend up to 75% of this time doing TO work due to the operational exigencies, and the balance of his time would need to be spent upskilling to SO duties; and
training Mr Meksasi would take much longer than usual given the volume of TO work that he would need to do; and
paying Mr Meksasi more would be a waste of public funds in circumstances where the bulk of his time would still be spent performing TO work and it “is plainly reasonable for the Employer to manage its operations economically.” [32]
In Davidson & Shah I found [33] that, as 95% of the work in the laboratory was performed equally by HSs and TOs, due to their being very few HS duties, converting an existing TO would produce little to no productivity or efficiency gain. Rather, I found it would have a negative impact on the economic efficiency of the Laboratory, due to the need to pay the TO more following conversion. I repeated what I said in Keryakous at [73] [34] , “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.” In those circumstances it would be reasonable for the Employer to refuse the conversion request as 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.”
In the present matter, if Mr Meksasi were converted, he would be able to perform SO duties and thus ‘earn his keep’, however I agree with the Employer that the conversion of Mr Meksasi, if his TO role was not filled, would produce little to no productively or efficiency gain in the DDT Lab. Based on Mr McBriar’s evidence, and the application of logic, I conclude that:
Mr Meksasi being converted, and not replaced, would adversely impact the capacity of the DDT Lab to complete frontline duties, due to the reduced capacity at the TO level;
distributing Mr Meksasi’s frontline duties across the SOs (including Mr Meksasi) would have the effect of having each SO perform even more TO work, instead of SO work, which is not financially efficient and would be “detrimental to their development” [35] (alternatively, Mr Meksasi could be directed to continue his TO duties which would not be financially efficient); and
while Mr Meksasi would be able to perform SO duties, (noting he would only be able to perform many of them after considerable training and experience) there would be little or no productivity gain in the performance of SO work overall due to the fact that each SO would be performing even more TO work.
“An additional Scientific Officer would only benefit the DDT Lab and/or assist with the casework only if there was the requisite compliment of Technical Officers to assist. Scientific Officer caseload does increase when they are assisting Technical Officers with frontline work because there are not enough Technical Officers to perform the testing.” [37]
As mentioned at the beginning of this decision, under cl 5 of the Conversion Award a TO, who makes a valid conversion request under Cl 3, is entitled to reclassification as a Hospital Scientist unless the Employer establishes it is fair and reasonable in all the circumstances to refuse the conversion request (or the TO fails to provide the information required under cl 4).
In that context I do not accept that it is fair or reasonable for the Employer to refuse a conversion request on the basis that, despite there being SO duties available for the conversion candidate to perform, the conversion would not result in productivity or efficiency gains because it would reduce the numbers of essential TOs, causing (higher paid) SOs to perform (more) TO work, absent evidence of there being an actual impediment to the TO role being filled.
There was no such evidence in this case. The Employer lead no evidence in chief as to any difficulties in hiring TOs.
In cross examination Mr McBriar stated no inquiries had been made as to whether Mr Meksasi’s role as a TO would be replaced, were he to be converted to a SO:
“Q. So, you say that a significant portion of the time would be spent performing TO work to meet the DDT labs operational needs. That's just a necessary part of the transitional phasing we discussed earlier, isn't it?
A. Not necessarily, I would say, is that this is based on if Mr [Meksasi] was stepped into a transition to a senior - to a scientific officer role and that technical officer role was not filled, that 50 to 75% of his time as an SO would still be involved in frontline work.
Q. But that's on the presumption that it's not filled.
A. That is exactly right. That's - that's right.
Q. There's no reason why you wouldn't think that it would be filled.
A. The reason why is 'cause we have an established FTE of the operations, and because one was transitioned over, doesn't mean that it automatically means that - that we'll be getting an additional FTE.
Q. No, but that's not..(not transcribable)..you have to make a business case for it. That's correct?
A. I believe I'd make a business case for it, if it was required. I'm not entirely sure if we'd get over the
Q. Well, you've got a pretty good business case, haven't you? You've had gradually increasing cases for a considerable period of time, you said.
A. Mm.
Q. At some point, you have to have an increase in FTE. You'd agree with that, wouldn't you?
A. Depending - depending on many factors. One of them would be on the - the backlogs that we're having and if we - how far are we in meeting our KPIs.
Q. You haven't made any inquiries as to whether an additional TO, as to whether that would happen or not.
A. At this stage, I've made no inquiries, no.”
“One of the things that I will be currently pursuing to see if we can extend the contract of the other temporary technical officer for a lot longer, which would revive a - a business case in the form of a brief, which would talk about our need for technical officers to be able to do the frontline work.” [39]
As noted at [31] above, the DDT Lab, indeed FASS as a whole, has no difficulty in attracting and retaining staff. The Employer has not established that there is any impediment to filling Mr Meksasi’s TO role were he to be converted to a SO role. It may well be the case that FASS would need to make a business case to the Employer to be allowed to employ more TOs, however there is no evidence that that business case would not be successful. That being the case, I do not consider it was fair or reasonable for the Employer to refuse Mr Meksasi’s conversion by reason of matters set out in cl 19(d) or (h) of the Conversion Award.
As I said in Keryakous and in Davidson & Shah it is plainly reasonable for the Employer to manage its operations economically. However, I do not consider it reasonable or fair for the Employer to refuse a conversion request merely because there are insufficient TOs and/or it is presumed that the converted TO will not be replaced. Such an approach could operate to thwart the intention of the Conversion Award. Of course, as I have indicated, there may be situations where there is a real impediment to the recruitment of a TO to replace the converted TO, which could point against a TOs conversion, however there was no evidence of that in this case.
To be clear, Mr Meksasi’s situation is quite different to Mr Shah’s. In Mr Shah’s laboratory there were objectively more HSs than were necessary to perform the laboratory’s HS duties. The conversion of Mr Shah in those circumstances would produce no productivity or efficiency gain, even if Mr Shah’s TO position was filled. The evidence in that case was that all of the HS duties as determined by the Employer were being covered by the existing cohort of HSs. That was, and is, not the case in the DDT Lab. As Mr McBriar’s evidence confirmed, there would be productivity and efficiency gains in the DDT Lab if Mr Meksasi were converted and if his TO position was thereafter filled.
As I have found it was not fair and reasonable for the Employer to refuse Mr Meksasi’s conversion request by reason of matters set out in cl 19(d) or (h) of the Conversion Award, there is no need for me to determine issue 6 or 7. For completeness I will nonetheless briefly address the issues.
Mr Meksasi contends that insufficient weight was given by the Employer when assessing his skills, knowledge and experience, to his prior experience with Laverty Pathology where he held various roles, culminating in a SO role.
Had there been a need to counterbalance a matter pointing against Mr Meksasi’s conversion, the fact he had performed as an SO at Laverty, would act as a counterbalance, however, the differences in the two workplaces and the type of work performed by SOs in each workplace, which were discussed at [42] – [45] above, would act to diminish the weight of this counterbalance.
I also accept, as counsel for Mr Meksasi, Mr Martin, submitted in closing submissions, that Mr Meksasi’s post graduate qualification in forensic science, with very good marks, would also act as a counterbalance, were it required.
As outlined above, Mr Meksasi’s gave evidence that he continues to perform some of the SO duties he performed whilst on his five-month secondment. While the parties agreed that 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” [40] , the Employer contended that the secondment was not material of this kind. I agree.
In closing submissions Mr Martin did not seek to rely upon Mr Meksasi continuing to perform SO duties post his secondment, but rather that the approval of Mr Meksasi to take on the secondment, before his conversion request was made, was indicative of his good work and performance and the trust and confidence the Employer had in his ability to perform SO duties. This was not disputed by the Employer and may have operated to provide a limited counterweight, had it been required.
I make the following orders:
Pursuant to s 136(1)(b) of the Industrial Relations Act 1996 and clause 21 of the Health Employees’ Technical Officer to Hospital Scientist Conversion Interim Award, Schedule A of that Award is varied so as to include:
(a) as an employee determined to be a Hospital Scientist, Rami Meksasi; (b) the date of this decision.
Janet McDonald
Commissioner
**********
Per Keryakous [18]; Statement of Agreed and Disputed Facts and Issues (Ex N6) [45].
Ex N6 [46].
Ex N2, [54]; R3 [4] and [5].
Davidson & Shah [82]-[83].
I found the refusal of Ms Davidson’s conversion request was fair and reasonable for different reasons.
Davidson & Shah [89].
Davidson & Shah [92].
Ex N6 [48] – [54].
Ex N6 [12] – [18].
Tcpt, 13 April 2026, p 11(44)-(45).
Tcpt, 13 April 2026, p 11(49).
Tcpt, 13 April 2026, p 14(16) – (35).
Ex N2 [30].
Ex N3 [24].
Ex N6 [1] – [5], [32] – [44].
Ex N5 [7].
Tcpt, 13 April 2026, p 40(9)-(10).
Tcpt, 13 April 2026, p 40(19).
Ex R4 [25].
Tcpt, 13 April 2026, p 10(43).
Tcpt, 13 April 2026, p 26(46).
Ex N3 [31].
Ex N3 [21].
Ex N5 [28] and [26].
Ex N2 [54].
Keryakous [75].
Keryakous [69].
Ex N5 [26].
Ex N5 [10].
Ex N5 [28]; See also Tcpt, 13 April 2026, p 15(26)-(30).
Notifier’s Outline of Submissions filed 9 February 2026 (NS) at [35].
Per Keryakous [73]; NS [29(c)].
Davidson & Shah at [87].
Davidson & Shah at [88].
Ex N5 [38].
Ex N5 [36(b)].
Ex N5 [29].
Tcpt, 13 April 2026, p 30(29)-(31).
Tcpt, 13 April 2026, p 31(5)-(9).
Per Keryakous [42] and [194]; Ex N6 [47].
Secretary, NSW Ministry of Health in respect of NSW Health Pathology
Meksasi
[2026] NSWIRComm 1025
In short, the Employer says it needs more TOs, not more SOs, hence it was fair and reasonable to refuse Mr Meksasi’s conversion request.
The parties identified the following issues, as being in dispute and requiring factual findings:
The scope of SO (only) and TO duties.
The degree of overlap between SO and TO duties and the factors/reasons for this overlap.
Whether the DDT Lab had an operational need for TOs to perform TO work at the time the conversion request was made.
Whether there was a need for additional SOs in the DDT Lab at the time the conversion request was made.
Whether, if Mr Meksasi was converted to a SO there would be productively or efficiency gains for the DDT Lab.
The relevance, if any, of Mr Meksasi’s prior role with Laverty Pathology to the assessment of his skills, knowledge and experience.
The extent to which the Commission can have regard to evidence of Mr Mejksasi’s 5-month secondment into the Scientific Officer role, given that this post-dated his conversion request. [8]
I address each of these issues below. Ultimately, in circumstances where I have concluded that the DDT Lab needs more TOs, and more SOs, but that there would not be any productivity or efficiency gains for the DDT Lab if Mr Meksasi’s was converted, if his TO role was not filled, I have also had to consider whether it is fair and/or reasonable for the Employer to refuse a conversion request due to there being insufficient TOs.
Lastly, Dr Hales gave evidence that FASS generally has high levels of attraction and retention of staff. She explained that forensic science is a very small field, and there are lots of applicants for jobs within FASS each year. The only exception to this is for the very highly specialised roles, mostly at the Senior Scientific Officer level, for which there are a very small number of practitioners across the country. Recruitment is highly competitive, and there are more graduates with forensic science degrees than there are available jobs. [13]
However, Mr McBriar also gave evidence, the effect of which confirmed that the operational and economic inefficiencies that would arise were Mr Meksasi converted, would only arise if “the conversion [did not result] in the replacement of the FTE Technical Officer role.” [36] He explained that: