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Unreported Judgment

Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health)[2015] QIRC 6Bloomfield DP
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Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health)[2015] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health) [2015] QIRC 006
PARTIES:	Together Queensland, Industrial Union of Employees (for Paul Florian) (Applicant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	HP/2013/9
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	9 January 2015
HEARING DATE:	8 November 2013
MEMBER:	Deputy President Bloomfield
ORDERS:	The decision of the Director-General, Queensland Health to classify Mr Florian at level HP5 is set aside. Mr Florian'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. In the event Mr Florian 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 Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health) [2015] QIRC 005
APPEARANCES:	Mr R. Rule for Together Queensland, Industrial Union of Employees, for Mr P. Florian, the Applicant. Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent.

Decision

[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.

[2]
Mr Paul Florian, who (at that time) occupied the role of Director, Environmental Health in the Central Queensland Public Health Unit and Central West Public Health Unit, Central Area Health Service, was one of the seven persons on whose behalf the dispute notification was lodged.

[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 Florian's matter (HP/2013/9) was assigned to the Commission as presently constituted.

Background to the dispute

[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 Florian translated from Professional Officer Level 5 to Health Practitioner Level 5 (HP5).

[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 Florian was submitted as part of a WUP by Central Area Population Health Services at a nominated level of HP6.

[6]
The process to evaluate and moderate WUPs involved the following steps:

Step 1 - Lodgement of WUPs with Central Office - Queensland Health

Step 2 - Evaluation of WUPs 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).

[7]
Although the WLEP assessed Mr Florian'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."

[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 Florian 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."

[9]
After receiving advice that his position had been evaluated at HP5, Mr Florian lodged an Appeal in November 2010 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."

[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

[11]
On behalf of Mr Florian 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."

[12]
On behalf of Mr Florian 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 Florian 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 Florian's position."

[13]
Extensive reference was also made to material submitted to the Appeal Panel by Mr Florian 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.

[14]
In addition, Mr Florian was said to be recognised in Queensland and nationally as a reference point for pest management and fumigation, drafting the Pest Management Act 2001 and accompanying Regulation. Mr Florian's role also involved him leading and managing a team of 8 FTE spread across five Health Service Districts and 25 local governments prior to amalgamation as at 30 May 2008. One of the employees supervised was at level HP5.

[15]
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 Florian. 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.

[16]
Criticism was also made of the Appeal Panel's failure to review a number of elements of the work level statements contained in Mr Florian's Appeal documentation, as well as the assessment of two other elements which Mr Florian had not referenced in his Appeal material. Importantly, in Together's submission, the Appeal Panel gave no explanation "for these glaring omissions".

[17]
In addition to the above concerns, extensive reference was made to the material contained within Mr Florian's Appeal documentation in support of an argument that that material clearly suggested that Mr Florian 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.

[18]
Finally, the submissions lodged on behalf of Mr Florian took issue with Mr Hamilton's evidence to the effect that the only difference the WLET could identify between the eleven positions of Directors of Environmental Health Services was the size of the subordinate team managed. It was argued that Mr Hamilton's comment suggested that size of the subordinate teams was a determining factor in the classification of DEHs at level HP5 in circumstances where the size of the subordinate team managed was not a criterion in the work level statements.

[19]
In relation to Mr Florian's criticism that the size of the subordinate team managed by a Health Practitioner level 6 is an irrelevant argument, it is necessary for me to record my disagreement with such proposition. The work level statements for HP6 record that persons occupying such positions "demonstrate well-developed clinical expertise in their given area, with a high level of managerial responsibility across large or diverse multi-disciplinary teams within a large facility or speciality health service." Further, knowledge of the size of the team supervised/managed enables an assessment body, such as an Appeal Panel, to add relevant context to a particular health practitioner's claims about the nature of their duties and, in particular, the degree and level of their responsibilities. For example, similar or identical words used by two individuals to describe their duties, roles and functions can be viewed and assessed in a totally different context if one of them is responsible for a team of five persons whereas the other is responsible for a team of twenty-five persons.

Nature of these proceedings

[20]
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."

[21]
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."

[22]
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?

[23]
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.

[24]
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."

[25]
As a result of understandings reached between the industrial parties, an additional component, "People and Resource Management", had been added to the three headings mentioned in paragraph [23] by the time employees began to lodge Appeals against their initial classification under the 5-stage process described above. In accordance with the requirements set out in pro-forma Appeal documents, Mr Florian lodged his 23 page Appeal, seeking re-classification at level HP6, in November 2010.

[26]
Although the role of the Appeal Panel was to assess each appellant's material against the relevant elements of the work level statements for the HP level claimed, this was not done in the case of Mr Florian. Instead, the Appeal Panel only assessed some of the elements, and also assessed several elements not referred to by Mr Florian, as shown in the following table:

Work level criteria addressed by Mr Florian	Work level criteria assessed by Appeal Panel	Appeal Panel Assessment
HP6-1	-	Not assessed
HP6-2	HP6-2	Does not meet
HP6-4	HP6-4	Does not meet
HP6-5	HP6-5	Does not meet
HP 6-7	HP 6-7	Meets
HP6-3	-	Not assessed
HP6-6	-	Not assessed
HP6-8	HP6-8	Does not meet
HP6-9	HP6-9	Does not meet
HP6-17	HP6-17	Does not meet
HP6-10	HP6-10	Does not meet
HP6-11	HP6-11	Does not meet
HP6-18	HP6-18	Meets
-	HP6-12	Does not meet
HP6-13	HP6-13	Does not meet
HP6-14	HP6-14	Does not meet
HP6-15	HP6-15	Meets
HP6-16	HP6-16	Does not meet
-	HP6-17	Does not meet
HP6-19	-	Not assessed
HP6-27	-	Not assessed
HP6-20	HP6-20	Does not meet
HP6-21	-	Not assessed
HP6-22	HP6-22	Meets
HP6-23	-	Not assessed
-	HP6-27	Meets
HP6-28	-	Not assessed
HP6-29	-	Not assessed
HP6-30 (by reference to 6-2 and 6-16)	-	Not assessed
HP6-31	-	Not assessed

[27]
As can be seen, the Appeal Panel did not consider 11 of the 27 elements of the work level statements addressed by Mr Florian in the course of his Appeal. This constitutes an error on the part of the Appeal Panel.

[28]
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 Florian and the other six DEHs whose classification was left unchanged as HP5. This failure also constitutes an error by the Panel.

[29]
Accordingly, given the content of the two paragraphs immediately above, as well as the decision of the Commission to remit each of the disputes concerning the classification of Director of Environmental Health Services thus for considered by it (namely Messrs Shillig^[5], Morton^[6] and Figueroa^[7]) to Queensland Health for reconsideration, I have come to the conclusion that the most equitable way to deal with Mr Florian's dispute notification is to afford him the same outcome.

[30]
In the circumstances I therefore determine and Order:

The decision of the Director-General, Queensland Health to classify Mr Florian at level HP5 is set aside.

Mr Florian'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.

In the event Mr Florian is reclassified to a higher level the reclassification is to take effect on and from 7 September 2012.

[31]
In making such decision I make it clear that I express no view about whether Mr Florian'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.

[32]
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.

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

Editorial Notes

Published Case Name:
Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health)
Shortened Case Name:
Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health)
MNC:
[2015] QIRC 6
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 List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
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
Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health)	[2015] QIRC 5	2 citations Jump To Cite 1 - [2015] QIRC 5 Cite 2 - [2015] QIRC 5

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Together Queensland, Industrial Union of Employees (for Paul Florian) v State of Queensland (Queensland Health)[2015] QIRC 6