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Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health)[2015] QIRC 5

Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health)[2015] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health) [2015] QIRC 005

PARTIES: 

Together Queensland, Industrial Union of Employees (for Harold Figueroa)

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

HP/2013/8

PROCEEDING:

Action on industrial dispute

DELIVERED ON:

9 January 2015

HEARING DATE:

5 November 2013

MEMBER:

Deputy President Bloomfield

ORDERS:

  1. The decision of the Director-General, Queensland Health to classify Mr Figueroa at level HP5 is set aside.
  2. Mr Figueroa's Appeal is remitted to Queensland Health for reconsideration and determination of the appropriate classification level of the position occupied by him as at 20 May 2008.
  3. In the event Mr Figueroa is reclassified to a higher level the reclassification is to take effect on and from 7 September 2012. 

CATCHWORDS:

INDUSTRIAL LAW – ACTION ON INDUSTRIAL DISPUTE – Classification of position – New classification structure – Employees engaged as health practitioners – Job descriptions, roles and responsibilities evaluated against new work level statements – Internal appeal process unsuccessful – Failure by internal appeal panel to consider all work level statement descriptors – Such omission constitutes an error of process – Remedy – Decision of Director-General set aside – Appeal remitted to respondent for reconsideration and determination of the appropriate classification level.

CASES:

Industrial Relations Act 1999, s 230

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

Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision

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

Newton v State of Queensland (Queensland Health) [2014] QIRC 121

Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145

Morton v State of Queensland (Queensland Health) [2014] QIRC 193

APPEARANCES:

Mr R. Rule for Together Queensland, Industrial Union of Employees, for Mr H. Figueroa, the Applicant.

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

Decision

  1. [1]
    On 7 September 2012 Together Queensland, Industrial Organisation of Employees (Together) notified the Queensland Industrial Relations Commission (the Commission) of an industrial dispute under s 229 of the Industrial Relations Act 1999 (the Act) about the reclassification of seven of its members, in accordance with the provisions of the Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1), by the State of Queensland (Queensland Health).  Each of the seven employees held the position of Director of Environmental Health Services but was located at a different centre within Queensland Health. 
  1. [2]
    Mr Harold Figueroa, who was (at that time) working for the Wide Bay Public Health Unit was one of the seven persons on whose behalf the dispute notification was lodged. 
  1. [3]
    After a conciliation conference failed to resolve the dispute the individual health practitioners covered by the dispute notification were assigned a new HP case number and their individual disputes referred to arbitration.  Mr Figueroa's matter (HP/2013/8) was assigned to the Commission as presently constituted. 

Background to the dispute

  1. [4]
    HPEB1 established a new classification structure for employees of Queensland Health engaged as a Health Practitioner.  The process for implementing the new classification structure was set out in clause 18 of HPEB1.  Phase 1 of the process allowed direct translation of employees who met certain criteria.  Mr Figueroa translated from Professional Officer Level 5 to Health Practitioner Level 5 (HP5).
  1. [5]
    Phase 2 allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements through a rather complex process which was designed to ensure consistency of outcome across the approximate 11,000 health practitioners employed by Queensland Health.  The initial process involved the development of a role description for each health practitioner, which was evaluated against the new work level statements contained in HPEB1 to determine a HP level.  Individual health practitioner outcomes were then incorporated into a Work Unit Proposal (WUP) which was prepared for every work unit across Queensland.  The role description developed for Mr Figueroa was submitted as part of a WUP at a nominated level of HP6?.  The question mark indicated that Mr Figueroa's Manager, the Senior Director, Central Area Population Health Service, was unsure about the appropriate level because the work level statements were not clear enough to allow the Senior Director to identify the appropriate level.  As a result, Mr Figueroa submitted what was called an Employee Initiated Application (EIA) seeking to have his classification confirmed at HP6. 
  1. [6]
    The process to evaluate and moderate WUPs and EIAs involved the following steps:
  •  Step 1 - Lodgement of WUPs and EIAs with Central Office - Queensland Health
  •  Step 2 -   Evaluation of WUPs and EIAs against the work level statements by a HP discipline-specific Work Level Evaluation Panel (WLEP)
  •  Step 3 -  Intra-discipline Relativity/Consistency Review conducted by a multi-disciplinary Work Level Evaluation Team (WLET)
  •  Step 4 -  Inter-discipline Relativity/Consistency Review (IDR) conducted by a multi-disciplinary group comprised of members from WLEP and WLET
  •  Step 5 -  Health Practitioners Interest Based Bargaining (HPIBB) Group Oversight, including the subsequently developed Oversight Sub Group (OSG).
  1. [7]
    Although the WLEP assessed Mr Figueroa's position as HP6 it was subsequently evaluated at HP5 by the IDR Group after input by the OSG.  In recording its decision the IDR Group said "At least HP5.  No lines of enquiry to support a higher level." 
  1. [8]
    In the course of his evidence Mr Donald Hamilton, of Queensland Health - who had provided impartial evaluation process advice to members of the WLEPs, WLETs and IDR - said that the decision to evaluate Mr Figueroa and other Directors of Environmental Health Services at HP5 reflected the concerns of the majority of WLET members that the Environmental Health WLEP recommendations that such Directors should be classified at HP6 was questionable when compared to WLEP recommendations for other HP disciplines.  "Of particular concern was the work level statement requirements for strategic professional management and leadership on a State-wide basis.  WLET was concerned that each of the eleven (11) Directors of Environmental Health Services (of designated geographic areas) did not possess State-wide scope and accountabilities."
  1. [9]
    After receiving advice that his position had been evaluated at HP5, Mr Figueroa lodged an Appeal as part of the HP Phase 2 Appeal process.  He subsequently received advice that his Appeal was unsuccessful and that his classification was to remain at level HP5.  The reason his Appeal was unsuccessful was stated to be:

"The duties or accountabilities could not be matched to work level statements at the nominated level.  A more detailed statement of reasons for the decision is attached."

  1. [10]
    The attachment was a two page Statement showing the elements of the work level statements the Appeal Panel had assessed and a record of the Panel's assessment.  Against each element the Panel had recorded either "Meets" or "Does not meet".  Where the latter assessment was provided the Statement recorded the following Panel comments "The duties or accountabilities could not be matched to work level statements at the nominated level."  The same notation was included under the heading "Additional Panel Comments" at the end of the two page Statement.   

 Applicant's contentions

  1. [11]
    On behalf of Mr Figueroa it was submitted that because all Directors of Environmental Health (DEH) "are required to perform the same role, and have the same expectations, accountabilities and responsibilities regardless of the size of the office they manage" it is inequitable and unjust that some DEHs are being remunerated at HP6 while others, in identical positions with identical responsibilities and the like, are still being remunerated at HP5.  Such situation is contrary to Queensland Health's Health Practitioner Communique 01/07/09 which acknowledges:

"It is imperative for the workforce, Queensland Health, unions and every health practitioner that the principal of comparative remuneration for comparable work is adhered to.  If we do not get this right, the workforce will be disenfranchised.  We cannot have a situation where two employees doing identical or very similar roles are remunerated at different levels."

  1. [12]
    On behalf of Mr Figueroa it was argued that this anomalous situation of DEHs being classified at different levels had been corrected in four instances by the internal Appeal Panel but not for Mr Figueroa or six of his colleagues.  It was also submitted "the positions reclassified in the appeal process are demonstrably required to perform the same role, have the same expectations of and perform duties to a Role Description that has the same responsibilities, expectations and accountabilities as the one submitted for Mr Figueroa's position."
  1. [13]
    Extensive reference was also made to material submitted to the Appeal Panel by Mr Figueroa designed to show the level and degree of his influence upon, and responsibility for, the development of certain State-wide initiatives within Queensland Health over a number of years.  Further, Mr Figueroa's role involved him leading and managing a team of 5 FTE, with joint management responsibility for two Senior Environmental Health Officers, spread across two geographical locations, servicing three Health Service Districts and 15 local governments prior to amalgamation as at 30 May 2008.
  1. [14]
    Particular mention was made of the decision of the Appeal Panel to reclassify a Ms Sharon Jurd, who was employed in the role of Director Environmental Health Services in the Gold Coast Public Health Unit at the relevant time, and her evidence about the similarity between her role description and that of Mr Figueroa.  Her evidence was to the effect that the respective role descriptions differed in only minor aspects to describe locally run programs and, subject to that qualification, required each of the Directors of Environmental Health to perform fundamentally the same functions and perform the same duties irrespective of location. 
  1. [15]
    Criticism was also made of the Appeal Panel's failure to review a number of elements of the work level statements contained in Mr Figueroa's Appeal documentation, as well as the assessment of other elements (invariable assessed as "Does not meet") which Mr Figueroa had not referenced in his Appeal material.  Importantly, in Together's submission, the Appeal Panel gave no explanation "for these glaring omissions". 
  1. [16]
    In addition to the above concerns, extensive reference was made to the material contained within Mr Figueroa's Appeal documentation in support of an argument that that material clearly suggested that Mr Figueroa met various criteria set out in the work level statements which the Appeal Panel must not have considered, or must not have properly considered, in light of the Panel's assessment that he did not meet the particular criteria.  Additional submissions were made to the effect that Mr Figueroa's role was focused on providing a consultancy capacity to other health practitioners in his area of operation and across the State, respectively. 

Nature of these proceedings

  1. [17]
    The approach to be taken by the Commission in matters of this type is now well settled.  In the case of Shillig[1], Industrial Commissioner Fisher stated:

 "[15] On arbitration, the Commission's powers are confined to correcting any error that may have occurred in the agreed reclassification process and it is incumbent on the Applicant to demonstrate the error.  In my view the practical application of the decision of the Full Bench in Dr John Parke AND State of Queensland (Queensland Health) ('Parke')[2] 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."

  1. [18]
    A similar conclusion was recorded by a Full Bench of the Commission in the case of Newton[3]:

 "[17] In our view, given the nature of the task undertaken by the Appeal Panel to consider whether the Work Level Evaluation of all the employee's duties, roles and responsibilities should result in the employee's position being reclassified, we consider that the role of the Commission is to determine whether the Appeal Panel erred.

 [18] 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 that appeal process." 

  1. [19]
    As Industrial Commissioner Black noted in the case of Crowhurst[4] "(a)nswering the question whether the appeal panel has fallen into error can involve considerations such as whether the decision of the appeal panel was not reasonably open to it on the information before it, whether the appeal panel overlooked or failed to take into account material which it should have considered, whether the appeal process involved procedural flaws…"

Did the Appeal Panel fall into error?

  1. [20]
    The work level statements for Health Practitioner Six (HP6) comprise a number of elements, under three headings, for employees regarded as being in a professional clinical stream or a professional management stream, respectfully.  The three headings under each stream are:
  • Scope and nature of level
  • Knowledge, skills and expertise
  • Accountability. 
  1. [21]
    Explanatory notes accompanying the reclassification guidelines distributed to management and employees of Queensland Health relevantly recorded:

 "How will hybrid clinical and management roles be classified?

Positions will be allocated to a level based on an evaluation of all aspects of their role.  This will include appropriate consideration of both clinical and management responsibilities.

 What are the Work Level Statements?

The Work Level Statements aim to describe the scope and nature, knowledge, skills and expertise and accountability of work which is undertaken at each level to ensure consistency of classification across this workforce.  Each level systematically builds on the level below.

Although the Work Level Statements provide a generic description of health practitioner roles at each of the given HP levels, they are not a Job Description and are not designed to be used as such. 

 How are evaluations made using the Work level Statements?

Evaluations of a role consider the scope and nature of the position, the knowledge, skills and abilities required, and the accountabilities involved.  As described above, allocation to a level will be based on an evaluation of all aspects of the role against the Work Level Statement criteria and a holistic assessment based on evaluation of all aspects of the role or position having regard for responsibilities, the level of complexity, degree of multi-speciality and/or advanced level of knowledge, skill, experience and leadership in the discipline or profession, as to which level is most appropriate for that position."

  1. [22]
    In the course of his Appeal documentation, Mr Figueroa highlighted what he described as "General Differentiators (Clinical and Management) to HP5" level employees.  He also highlighted the content of his approved role description and sought to develop links between that description and the criteria contained within the work level statements.
  1. [23]
    Because of the way Mr Figueroa set out his submission, in that he grouped multiple criteria under the one heading before providing detail about how he claimed he met that criteria, it would have been somewhat difficult for the Appeal Panel to assess his Appeal against the work level statements for an employee requesting classification at HP6.  In addition, the task was made more complex because Mr Figueroa also claimed that he met certain criteria for the HP7 level.  Doing the best I can to identify the criteria Mr Figueroa addressed compared to that assessed by the Appeal Panel, I have structured the following table. 

Work level criteria addressed by Mr Figueroa

Work level criteria assessed by Appeal Panel

Appeal Panel Assessment

HP6-1 (Clinical)

-

Not assessed

HP7-1 (Clinical)

-

Not assessed

HP6-2 (Clinical)

HP6-2

Does not meet

HP7-2 (Clinical)

HP7-2

Does not meet

HP7-11 (Management)

HP7-11

Does not meet

HP6-3 (Clinical)

HP6-3

Does not meet

HP6-4 (Clinical)

HP6-4

Does not meet

HP6-5 (Management)

HP6-5

Does not meet

HP6-7 (Management)

-

Not assessed

HP6-30 (Management)

HP6-30

Does not meet

HP6-8 (Clinical)

HP6-8

Does not meet

HP6-12 (Management)

-

Not assessed

HP6-9 (Clinical)

HP6-9

Does not meet

HP6-17 (Management)

HP6-17

Does not meet

HP6-10 (Clinical)

HP6-10

Does not meet

HP6-14 (Management)

-

Not assessed

HP6-15(Management)

HP6-15

Meets

HP6-16 (Management)

-

Not assessed

HP6-19 (Clinical)

HP6-19

Meets

HP6-27 (Management)

-

Not assessed

HP6-34 (Management)

-

Not assessed

HP6-20 (Clinical)

HP6-20

Does not meet

HP6-21 (Clinical)

-

Not assessed

HP6-22 (Clinical)

HP6-22

Does not meet

HP6-23 (Clinical)

-

Not assessed

HP6-24 (Clinical)

-

Not assessed

HP6-28 (Management)

-

Not assessed

HP6-6 (Management)

-

Not assessed

HP6-31 (Management)

-

Not assessed

-

HP6-30

Does not meet

  1. [24]
    Notwithstanding the obvious difficulties in assessing Mr Figueroa's claimed duties, responsibilities and functions under the separate streams of clinical and management, respectively, it is nonetheless apparent that the Appeal Panel did not address elements 1, 6, 7, 12, 14, 16, 21, 23, 24, 27, 28, 31 and 34 of Mr Figueroa's submission against the work level statements.  This constitutes an error on the part of the Appeal Panel.
  1. [25]
    In addition, given that the Appeal Panel chose to reclassify four of the eleven Directors of Environmental Health who appealed their classification to the higher level of HP6, and to leave the remaining seven unchanged, one might have expected some further, or clearer, reasons than those provided at paragraphs [9] and [10] above for refusing the Appeals of Mr Figueroa and the other six DEHs whose classification was left unchanged as HP5.  This omission also constitutes an error on the part of the Appeal Panel. 
  1. [26]
    Accordingly, given the content of the two paragraphs immediately above, as well as the decision of two separate members of the Commission to remit the disputes notified on behalf of Mr Gregory Shillig[5] and Mr Bruce Morton[6], respectively, to Queensland Health for reconsideration, I have come to the conclusion that the fairest and most equitable way to deal with Mr Figueroa's dispute notification is to afford him the same outcome as granted to his two colleagues whose matters have been considered by the Commission. 
  1. [27]
    In the circumstances I therefore determine and Order:
  1. The decision of the Director-General, Queensland Health to classify Mr Figueroa at level HP5 is set aside.
  1. Mr Figueroa's Appeal is remitted to Queensland Health for reconsideration and determination of the appropriate classification level of the position occupied by him as at 20 May 2008.
  1. In the event Mr Figueroa is reclassified to a higher level the reclassification is to take effect on and from 7 September 2012. 
  1. [28]
    In making such decision I make it clear that I express no view about whether Mr Figueroa's classification should be at level HP5 or level HP6.  I have merely concluded that the nature of the errors made by the Appeal Panel warrant remit of his Appeal for re-consideration. 
  1. [29]
    I determine and Order accordingly.

Footnotes

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

[2] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16)-Decision .

[3] Newton v State of Queensland (Queensland Health) [2014] QIRC 121.

[4] Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145 at [10].

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

[6] Morton v State of Queensland (Queensland Health) [2014] QIRC 193.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health)

  • MNC:

    [2015] QIRC 5

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    09 Jan 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145
2 citations
Jump To
Cite 1 - [2014] QIRC 145
Cite 2 - [2014] QIRC 145
Morton v State of Queensland [2014] QIRC 193
2 citations
Jump To
Cite 1 - [2014] QIRC 193
Cite 2 - [2014] QIRC 193
Newton v State of Queensland (Queensland Health) [2014] QIRC 121
2 citations
Jump To
Cite 1 - [2014] QIRC 121
Cite 2 - [2014] QIRC 121
Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 53
3 citations
Jump To
Cite 1 - [2014] QIRC 53
Cite 2 - [2014] QIRC 53
Cite 3 - [2014] QIRC 53

Cases Citing

Case NameFull CitationFrequency
Scofield v Workers' Compensation Regulator (No. 2) [2018] QIRC 1031 citation
Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health) [2015] QIRC 62 citations
1

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