Collins v Queensland[2015] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   Mr Craig Collins commenced work for the Queensland Department of Health (Queensland Health) as a Cadet Radiographer at Townsville General Hospital in 1987, eventually transferring to the Redcliffe Hospital in 2001 as a Professional Officer Three (PO3) with an extended scope of practice. After being advanced to a PO4 level in January 2007 in recognition of his specialist sonographer skills, Mr Collins's role was translated to a Health Practitioner Level 4 (HP4) position following the introduction of a new health practitioner structure.

2. [2]
   A Phase 2 process under the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1), provided employees with an opportunity to have their role descriptions, roles and responsibilities evaluated against Work Level Statements (WLS) relevant to their classification. At the time, a new role description reflecting a HP5 status was developed for Mr Collins by the Acting Director of Medical Imaging Services as part of a work unit proposal. Mr Collins sought to have his role reclassified to a HP5 level. The proposed HP5 classification was subsequently refused in November 2009.

3. [3]
   Mr Collins appealed the Phase 2 outcome in accordance with the procedure provided for in HPEB1 but was unsuccessful.  The Appeal Panel recommended Mr Collins's classification remain at the HP4 level, noting: "Some elements of HP5 in Scope, some elements of HP5 in Knowledge, Skills and Expertise. HP4 elements met in Accountability. Holistically, a high level HP4." The Director-General of Queensland Health endorsed the appeal panel's recommendation.

4. [4]
   Subsequent to the decision of the Appeal Panel Mr Collins filed a Notice of Industrial Dispute in relation to his classification. The dispute was subsequently assigned a new matter number, HP/2013/12, for the arbitration proceedings.

Subject of Dispute

5. [5]
   Mr Collins is seeking to have his position as a Specialist Clinical Radiographer / Sonographer reclassified from its current classification as an HP4 to a higher classification of HP5.

6. [6]
   Mr Butler, who represented Mr Collins in the arbitration proceedings, submitted the Commission can and should order that the original appeal and any subsequent decision be set aside or varied so that the Applicant is reclassified to the originally proposed and WLEP approved HP5 level.

The evidence and argument before the Commission

7. [7]
   Mr Butler, on behalf of Mr Collins, submitted there were numerous procedural and factual errors in Queensland Health's reclassification process and the Appeal Panel's findings including:

1. The Work Level Evaluation Team's (WLET) rejection of the specialist role endorsed by Mr Collins's Work Unit Manager;
2. WLET’s finding that a lack of management and non-clinical responsibilities justified the HP4 evaluation;
3. Incorrect interpretation of HP5 WLS by WLET;
4. Failure to resolve inconsistent outcomes between the Work Level Evaluation Panel (WLEP) and WLET;
5. The blanket rejection of all but one HP5 position by WLET;
6. The failure of the Appeals Panel to conduct an evaluation across the specified criteria and WLS;
7. The failure of the Appeals Panel to consider all the WLS at the HP5 level nominated by the Applicant notwithstanding the inclusion of ample evidence in support of the HP5 criteria;
8. The failure of the Appeals panel to provide adequate reasons for the decision and to allow Mr Collins to respond to adverse findings; and
9. The lack of regard for Mr Collins's dual discipline role, extended reporting role, leadership role, scope of practice accreditation and the subsequent devaluation of his role and status within his work unit.

8. [8]
   More specifically, Mr Butler contends that despite Mr Collins's inclusion of three specified criteria and references to each criteria in his original appeal documentation in combination with commentary for each WLS at an HP5 level, the Appeal Review outcome failed to address all WLS claimed (HP5-1, HP5-3, HP5-4, HP5 -15 and HP5-36) and further rejected other HP5 level statements despite significant evidence provided in support of the WLS including a role description which was not challenged by Queensland Health during the proceedings. 
9. [9]
   Mr Butler further submitted the Appeal Outcome documentation selectively recognised the specialist nature of Mr Collins's role in some areas, but failed to address other related HP5 criteria such as HP5-16, HP5-17, HP5-18, HP5-32, HP5-33 and HP5-35, instead referring to other HP4 statements which weren’t claimed in his original appeal application.

10. [10]
    The general thrust of Queensland Health's submissions was that Mr Butler had failed to substantiate a case for Mr Collins to be reclassified from HP4 to HP5 and had also failed to clearly demonstrate the procedural and factual errors asserted during the proceedings.  Queensland Health also argued Mr Butler was pursuing a fresh merit based review or a de novo assessment by the Commission of Mr Collins's existing HP4 classification notwithstanding the decision of the Full Bench in Newton v State of Queensland^[1] which dealt with jurisdictional and procedural matters around the work level evaluation process at paragraph 18 stating:

"Thus, in order for the applicant to succeed in arbitral proceedings before a single Member of the Commission, the applicant must demonstrate that the Appeal Panel erred.  The Commission is not concerned with anything that occurred prior to the appeal process."

11. [11]
    Queensland Health submitted that by the time the matter is referred to the Commission, the process undertaken during Phase 2 is no longer the operative decision in relation to the extant classification of the employee, because the determination of the Appeal Panel stands apart from the Phase 2 evaluation, and therefore the recommendation of the Appeal Panel and the subsequent decision of the Director-General wholly displaces and removes any effect of the processes undertaken in Phase 1 and Phase 2 of the classification procedure.

12. [12]
    In response to Mr Butler's submissions relating to the constitution of the Appeal Panel, the Department responded the panel was properly constituted in accordance with Clause 19.6 of HPEB1 in that it consisted of two management representatives, a workplace representative and a representative from Mr Collins's discipline.

13. [13]
    Queensland Health further submits that notwithstanding there were 5 WLS at the HP5 level which were not addressed in the Appeal Outcome, the Appeal Panel had found that various WLS at the HP4 level were more appropriate for his classification.  Further, Mr Collins had failed to differentiate himself from HP4 WLS to attain the classification of HP5.

 Findings

14. [14]
    The alleged procedural error with respect to the constitution of the Appeal Panel and the appointment of an independent chair has been raised and considered in another proceeding before the Commission.  In this regard I adopt the conclusion of Black C in Hamlyn^[2] regarding the absence of an independent chair of the Appeal Panel. In this matter the Commissioner stated at paragraph 16:

"Given that the proposal to include an independent chairperson is not mandated by HPEB1 but is expressed in the form of a 'guideline', and given that the guidelines involve processes agreed by the parties to HPEB1, I accept that the same parties may be able to vary the guidelines and it may be open to them to agree that in a particular case, or generally, that an external chairperson would not be used."

"No error in the appeal process arises from a consideration of this factor."

15. [15]
    Mr Butler, on behalf of his client also raised a number of procedural and factual errors, and in particular the approach taken by the WLET during Phase 2 of the evaluation process.

16. [16]
    In my view, the submission of Queensland Health with respect to the Commission's capacity to deal with events which may have occurred in Phase 1 and 2 of the reclassification process is correct.  That is, the Commission should not be concerned with anything that occurred prior to the appeal process.  In this respect I also concur with the views of Fisher C in Together Queensland, Industrial Union of Employees (for Gregory Shilling) v State of Queensland^[3] where she noted:

"In my view the practical application of the decision of the Full Bench in Dr John Parke^[4] is consideration of the Appeal Panel Statement and the decision of the Director-General or their delegate. The onus rests with the Applicant to show how or where the Appeal Panel and/or the Director General or their delegate fell into error."

17. [17]
    The critical issue in this appeal is that the Appeal Panel failed to recommend that Mr Collins's position be reclassified from HP4 to HP5.  In particular, Mr Butler submitted the Appeal Panel failed to address or acknowledge evidence provided by Mr Collins in support of at least five HP5 criteria, instead referring to HP4 criteria which did not form part of the original appeal material.  Mr Butler also argued Queensland Health had not challenged or questioned the accuracy of the HP5 role description relied on by the Applicant for his appeal during the proceedings before the Commission.

18. [18]
    In response, Queensland Health submitted that when assessments are made there can be a cascading effect whereby in the eyes of the Assessor a particular level is not met, so lower or subordinate work level assignments are assigned to the assessment.  Queensland Health's submissions to the Commission referred to a corresponding subordinate HP4 WLS for each HP5 WLS which was not addressed by the Appeal Panel.
19. [19]
    The difficulty I have with Queensland Health's submission is that a close review of the Appeal Outcome documentation highlights that the subordinate HP4 WLS referred to in the Department's written submissions do not appear to align with the missing HP5 WLS which weren’t addressed by the Appeal Panel. Further, there are a range of other HP4 criteria that have been addressed within the document that were not included in Mr Collins's original appeal documentation and do not appear to be the same as the subordinate HP4 WLS provided by Queensland Health.

20. [20]
    Mr Don Hamilton's evidence on behalf of Queensland Health, whist quite detailed with respect to the approach taken by the Agency in relation to the various stages of the reclassification process generally, does not provide the Commission with any insight or explanation as to why particular HP4 WLS were addressed, or HP5 WLS not addressed by the Appeal Panel.

21. [21]
    Mr Collins prepared an extensive submission for the Appeal Panel which contained supporting documentation and cross-references to all relevant HP5 WLS for his role and the accompanying role description.  In particular, the material and accompanying references provided examples of his dual discipline role, extended reporting role, leadership role and scope of practice accreditation.  Whilst it may well be the case that Mr Collins did not satisfy a number of the missing or alternative HP5 WLS the difficulty the Commission has is that the Appeal Outcome documentation fails to provide the reader, after considering Mr Collins's application and relevant WLS, with even a basic understanding of how the Panel may have reached its conclusions and in particular why other HP4 WLS were considered in lieu of other possibly relevant HP5 WLS.

22. [22]
    In the matter of Morton v State of Queensland^[5], his Honour Deputy President O'Connor stated:

"In Public Service Board v Osmond (1986) 159 CLR 656, the High Court held that there is no general common law duty on decision-makers to provide reasons for administrative decisions in Australia.

In Cypressvale Pty Ltd v Retail Shop Lease Tribunal, Fitzgerald P said:

'… the law has moved on in the decade since Osmond…

… even Public Service Board v Osmond does not hold that fairness does not ordinarily require that reasons be given for decisions which affect rights and liberties; its conclusion was rather that at that time, those who made administrative decisions were not required to provide reasons because that was established by a long line of authority. It is not really surprising that, in a complex society in which there is a proliferation of tribunals with power to affect citizen's rights and liabilities, the courts have come to insist that it is an incident of a duty to act fairly that decisions be adequately explained.'

In my view, in order for the Commission to properly perform its functions in determining a reclassification dispute it was necessary for the Appeal Panel to provide a basic explanation of the fundamental reasons which led it to reach its conclusion that the applicant should be classified at HP5."

23. [23]
    On the face of it, the inclusion of the additional HP4 work level references by the Appeal Panel in conjunction with a lack of reasons or commentary in relation to the missing HP5 WLS essentially tips the balance of the reclassification outcome towards an HP4 finding for Mr Collins in circumstances where comments in the appeal outcome documentation refer to Mr Collins being 'holistically' assessed as a high level HP4.

24. [24]
    Ordinarily, the alleged failure of the Appeal Panel to consider all HP5 WLS descriptors might not necessarily have been an error of process particularly in circumstances where relevant 'subordinate' HP4 WLS may have been addressed.  In this matter however, I am concerned there is insufficient explanation provided as to why the Appeal Panel considered some HP5 work levels statements but not others, and further, why other HP4 WLS were included which may not necessarily be considered 'subordinate' WLS or aligned to those HP5 WLS that were not addressed.

25. [25]
    In this respect, I consider the apparent failure of the Appeal Panel in not considering other seemingly relevant WLS that were submitted as part of Mr Collins appeal documentation an error in the process.  Further, in circumstances where Mr Collins was already holistically considered to be a 'high level' HP4, reference to or acknowledgement of the missing HP5 WLS in the Appeal process may well have been enough to tip the scales in favour of an HP5 classification for Mr Collins.

26. [26]
    Having regard to the nature of the error in the process, the appropriate course for the Commission to adopt is to have the decision of the Director-General set aside and the matter referred back to Queensland Health for determination of the appropriate classification level, which should also include a close review of Mr Collins scope of practice accreditation, dual discipline role, extended reporting obligations and leadership role within and beyond his work unit.

Orders

27. [27]
    For the reasons advanced above I make the following orders:

1. The decision of the Director-General is set aside;

2. The matter of determining the applicant's appropriate classification level is remitted to Queensland Health;

3. The assessment of the applicant's classification level is to be undertaken on or before 31 March 2015.