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Grant v State of Queensland (Department of Health)[2015] QIRC 115

Grant v State of Queensland (Department of Health)[2015] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Grant v State of Queensland (Department of Health) [2015] QIRC 115

PARTIES:

Anne-Maree Grant

(Applicant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

B/2015/5

PROCEEDING:

Application for reopening of Proceedings in HP/2013/14

DELIVERED ON:

11 June 2015

HEARING DATE:

20 April 2015

MEMBER:

Industrial Commissioner Fisher

ORDER:

The application is refused.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REOPENING OF PROCEEDINGS - apprehension Commission made an obvious error or created an anomaly - whether apprehension of error arises from finding appeal panel had not erred - application opposed by respondent - finding key reason applicant was unsuccessful was failure to establish a case for HP6 on her own appeal submission - finding public interest is not served by continuing with an unsatisfactory case - determined nothing new and relevant put in the reopening proceedings - decline to exercise discretion - application refused.

CASES:

Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007

Grant v State of Queensland (Queensland Health) [2014] QIRC 161

Re Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (1987) 126 QGIG 340

Bernardus Prange AND Brisbane City Council (B/2011/18) - Decision <http://www.qirc.qld.gov.au>

Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (2002) 171 QGIG 104

Queensland Nurses Union of Employees v Aged Care Queensland Inc. and Another (1996) 152 QGIG 1857

Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053

United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of Queensland (Queensland Health) (No. 2) [2014] QIRC 174;  Naggs v State of Queensland (Department of Health) No. 2 [2015] QIRC 026.

Re Teachers' Award - State (1974) 86 QGIG 611.

APPEARANCES:

Mr G. Butler for the Applicant.

Mr K. Ryalls for the State of Queensland (Department of Health), the Respondent.

Decision

  1. [1]
    As part of its enterprise agreement negotiations with relevant unions the Department of Health established a new classifications system for Health Practitioners in 2007.[1]  This system provided initially for HPs to be translated to the relevant classification level.  An HP who considered their position warranted a higher classification was able to have their role descriptions, duties and responsibilities evaluated against Work Level Statements relevant to the classification claimed.  Anne-Maree Grant was translated to HP5 but considered her position was more appropriately classified at HP6.  She went through the internal review processes, including an appeal, but was unsuccessful in obtaining the higher classification.
  1. [2]
    As the agreement permitted, Ms Grant lodged a dispute in the Queensland Industrial Relations Commission.  When this was unsuccessfully conciliated she sought the dispute be arbitrated.  The matter was referred to the Commission as constituted for that purpose.  My decision was that the Appeal Panel had not erred in recommending to the DirectorGeneral, Department of Health that her position of Manager-Ultrasound Services, Sunshine Coast and Cooloola Health Service District be maintained at HP5.[2]
  1. [3]
    Ms Grant seeks to reopen the proceedings primarily on the grounds that there is an apprehension that the Commission made an obvious error or created an anomaly.  According to Mr Butler, who represented Ms Grant, the apprehension of error arises from the finding that the Appeal Panel had not erred by failing to consider either the HP7 WLS claimed by Ms Grant or the relevant evidence submitted.  Had the evidence relevant to HP7 been considered, the balance would have been tipped in favour of Ms Grant being classified at HP6.  In addition, decisions from other Members of the Commission found that the Appeal Panel had erred when it had not considered various WLS that had been submitted.  In those cases the Members referred the appeal back to the Department for evaluation.
  1. [4]
    The application for reopening was opposed by the State of Queensland (Department of Health).  In its submission the application to reopen was in the nature of a quasi-appeal where the appeal period has long since passed.  The application seeks to "cherry pick" from other decisions delivered subsequently in the hope of benefitting from them.  In the Department's view, the application is predominantly based on hindsight, which is not a relevant ground for reopening a proceeding.[3]

Consideration

  1. [5]
    In his submission, Mr Butler referred to the decision of Linnane VP in Bernardus Prange AND Brisbane City Council,[4] which cited with approval the decision in Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch[5] where Bloomfield C listed factors which have grounded the exercise of discretion to reopen proceedings in the past.  However, as de Jersey J made clear in Queensland Nurses Union of Employees v Aged Care Queensland Inc. and Another,[6] the discretion to reopen proceedings is unfettered and the various factors relied on or identified in other proceedings are no more than guidelines.  Further, as Bloomfield C said, "the relevant authorities make it clear that the discretion must not be exercised lightly or without good reason."
  1. [6]
    In my decision I noted that in Ms Grant's appeal submission she had claimed many HP7 WLS and these had not been considered by the Appeal Panel in circumstances where she was claiming the HP6 level.  Mr Butler submits that the Commission made an error by failing to take account of the fact that each HP level builds upon the preceding one and that consideration of the appeal submission and evidence would have led to a favourable outcome for Ms Grant.  This error was brought into sharp relief by the decisions of other Members who had found that absent any adequate explanation of the decision, failure to consider all WLS referenced constitutes error by the Appeal Panel.  As such, the Commission created an anomaly which could only be rectified by returning the appeal to the Department for evaluation.
  1. [7]
    The Commission was clearly alert to the issue of the Appeal Panel not considering all WLS submitted as much was made of this during the substantive hearing.  However, the point made in my decision was that in the arbitration proceedings I was not taken to, i.e., specifically referred to, any documentation amongst the volume of material submitted, that shows the Appeal Panel was obliged to consider WLS relevant to a classification higher than that being claimed.  Referencing documentation showing each WLS builds upon the one below does not make the point claimed and establish that I fell into error.
  1. [8]
    It is the case that I was the first Member to consider the failure of an Appeal Panel to consider without explanation apparently relevant WLS claimed in any HP appeal constituted an error in the process.[7]  This further evidences that I was alive to the argument when it was made in the arbitration proceedings.
  1. [9]
    I am aware of the position taken subsequently by other Members concerning the Appeal Panel's failure to consider all WLS referenced and that this might be thought to be a firmer position than I had taken in Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health).[8]  However, each Member determined the HP dispute on the case that was presented in the arbitration proceedings.  Further, in my view, the arbitration of an HP dispute involved more than a comparison of the appeal submission and supporting evidence with the WLS claimed and where there was insufficient or inadequate matching, referring the appeal to the Department for reevaluation.  The approach taken by me in Ms Grant's case, and indeed in all others that I have determined, was to consider, in addition, whether a case had been made for a higher classification.  Reaching a conclusion on this would assist in determining whether the Appeal Panel had erred and if so, the appropriate outcome e.g., to refer the matter back to the Department for re-evaluation or to determine a new classification level.
  1. [10]
    That this approach might differ from other Members does not make it wrong nor does it create an anomaly.  Determining a dispute by making a finding on the appropriate classification was a course that was clearly available to the Commission in exercising its arbitral powers.  It demonstrably led to beneficial outcomes being determined by the Commission as constituted for some HPs, without referring the appeal submissions to the Department for re-evaluation.[9]
  1. [11]
    The submission made on behalf of the applicant takes no account of the reason the Commission did not interfere in the decision made by the Department.  The key reason Ms Grant was unsuccessful was that she had failed to establish a case for HP6 on her own appeal submission.  The Commission gave detailed consideration to the contention that the Appeal Panel had found that Ms Grant failed to provide evidence to support her claim for HP6.  I concluded:

"[25] In that part of the appeal submission requiring the appellant to provide a summary of the evidence demonstrating that the role met each relevant criteria, Ms Grant nominated the various WLS on which she relied.  However, these were not necessarily referred to in the body of her appeal submission and other WLS were listed therein.  Further, it is not clear what evidence supported which WLS that were claimed. …

[26] The Commission considers that in Ms Grant's appeal submission there was minimal identification of, or elaboration on, the elements of her role that could assist the Appeal Panel in reaching the conclusion that she met the WLS for HP6.  In particular, Ms Grant provided little information and evidence to satisfy the Appeal Panel about how she met the claimed HP6 WLS so as to demonstrate that her classification level was not commensurate with her role and responsibilities. ..."

  1. [12]
    This decision was open on the material and made in response to her argument to the Commission.  Because the appeal submission was deficient in not distinguishing the evidence supporting the various WLS that were claimed (whether HP6 or HP7), returning it to the Department to consider WLS not considered by the Appeal Panel will not assist her.  The public interest, another factor that can be relied on to reopen proceedings,[10] is not served by continuing with an unsatisfactory case.
  1. [13]
    Mr Butler also submitted that his arguments about the Commission making an error or creating an anomaly were also relevant to the other grounds he relied on to reopen the proceedings, viz., the availability of new and relevant material that was not available at the original hearing; information that the Commission has been misled at arriving at its original decision; and the creation of undesirable outcomes.  In my view there has been nothing new and relevant put in the reopening proceedings that was not put in the original proceedings.  For the reasons already given, I am also not satisfied the other grounds have been made out.
  1. [14]
    In the circumstances no good reasons exist to reopen the proceedings and I decline to exercise my discretion to do so.  It is a case of the applicant being dissatisfied or disappointed by the outcome and these are not reasons to reopen the proceedings.[11]
  1. [15]
    The application is refused.
  1. [16]
    Order accordingly.

Footnotes

[1] Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1).

[2] Grant v State of Queensland (Queensland Health) [2014] QIRC 161.

[3] Re Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (1987) 126 QGIG 340.

[4] Bernardus Prange AND Brisbane City Council (B/2011/18) - Decision <http://www.qirc.qld.gov.au>

[5] Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (2002) 171 QGIG 104, 107.

[6] Queensland Nurses Union of Employees v Aged Care Queensland Inc. and Another (1996) 152 QGIG 1857.

[7] Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053 [29], [30].

[8] Ibid.

[9] See:  United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) v State of Queensland (Queensland Health) (No. 2) [2014] QIRC 174;  Naggs v State of Queensland (Department of Health) No. 2 [2015] QIRC 026.

[10] Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (2002) 171 QGIG 104, 107.

[11] Re Teachers' Award - State (1974) 86 QGIG 611, 613.

Close

Editorial Notes

  • Published Case Name:

    Grant v State of Queensland (Department of Health)

  • Shortened Case Name:

    Grant v State of Queensland (Department of Health)

  • MNC:

    [2015] QIRC 115

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    11 Jun 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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