CITATION: | Re: variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 088 | |
PARTIES: | Together Queensland, Industrial Union of Employees (Applicant) and State of Queensland (Queensland Health) (Respondent) | |
CASE NO: | MA/2020/23 | |
PROCEEDING: | Application to vary a modern award Application to refer matter to Full Bench | |
DELIVERED ON: | 19 March 2021 | |
HEARING DATE: | 1 February 2021 22 February 2021 | |
HEARD AT: | Brisbane | |
MEMBER: | McLennan IC | |
ORDER: | Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I find that it is appropriate for this matter to be referred to the Full Bench for Hearing. |
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CATCHWORDS: | INDUSTRIAL LAW – VARIATION OF MODERN AWARD – application to vary a modern award – where other unions party to award consented to variation – where Respondent objected to variation – where Respondent applied to the Commission to refer the matter to the Full Bench – whether application should be referred to the Full Bench | |
LEGISLATION: | Ambulance Service Act 1991 (Qld) Fire and Emergency Services Act 1990 (Qld) Industrial Relations Act 2016 (Qld) s 147, s 486 Health Practitioners and Dental Officers (Queensland Health) Award - State 2015 Hospital and Health Boards Act 2011 (Qld) s 66 Hospital and Health Service General Employees (Queensland Health) Award - State 2015 Public Service Act 2008 (Qld) TAFE Queensland Act 2013 (Qld) | |
CASE: APPEARANCES: | Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31 Mr K McKay and Ms K Flanders for Together Queensland, Industrial Union of Employees. Ms S Young for the Australian Workers' Union of Employees, Queensland. Mr K Ryalls and Ms C Jacobs for the State of Queensland (Queensland Health). |
Reasons for Decision
[1] Together Queensland, Industrial Union of Employees ('Together Union') filed an application to vary a modern award (the Hospital and Health Service General Employees (Queensland Health) Award - State 2015) ('Award') to include employees titled 'District Senior Officers' (DSOs).
[2] Together Union made the application under s 147(1)(b) of the Industrial Relations Act 2016 (Qld) ('Act') (emphasis added):
147 Commission's power to make or vary modern awards
(a) make a modern award;
(b) make an order varying a modern award.
(a) on its own initiative; or
(b) on the application of any of the following persons -
(i) the Minister;
(ii) an organisation;
(iii) an employer;
(iv) an employee; or
(c) on a review of a modern award under part 5.
[3] Specifically, Together Union's application sought to expand the Award coverage to include DSOs by the insertion of a classification structure and appropriate pay rates for this employee cohort.[1]
[4] Together Union's application to vary a modern award was filed in the Industrial Registry on 12 October 2020.
[5] Together Union had requested that proceedings not be scheduled earlier than January 2021. Therefore, proceedings were held before me in February 2021.
[6] The other unions party to the Award consented to the inclusion of the new DSO provisions proposed by Together Union. For the sake of completeness, they are:
[7] The State of Queensland (Queensland Health) objected to the application.
Who are 'District Senior Officers' (DSOs)?
[8] Material tabled by Queensland Health on 22 February 2021 described DSOs in the following way:
By way of background, there are 365 DSO roles across Queensland Health and the Hospital and Health system. DSO roles, also sometimes called Director level roles, are substantially equivalent to the Senior Officer positions (also commonly known as Director level roles) in Queensland Government departments. DSO roles, like the departmental equivalents of Senior Officers, are "white collar" managerial roles. DSO's are however typically located in the head offices of the relevant Hospital and Health Services rather than in the department proper, as is typically the case with Senior Officers.
…
DSOs have supervision and direction of other employees as a key attribute of the position descriptions. The majority of Queensland Health's DSOs supervise between 4 and 15 employees. In Queensland Health's organisational structure, the DSO position sits above and may manage a combination of employees in those roles al Professional Officers, Administrative Officers and Technical Officer streams.
What governs employment arrangements of DSOs at the moment?
[9] DSOs are employed under the Hospital and Health Boards Act 2011(Qld) ('HHB Act'). They are not Health Executives or Senior Health Service Employees. Therefore, DSOs' conditions of employment are governed by the industrial instruments listed at s 66(1) of the HHB Act, other than (f) which does not apply given DSOs hold tenured positions. However, despite that prescription, DSOs' current employment arrangements apply certain provisions of the Award by administrative arrangements.
[10] Prior to 2007, all DSOs' employment conditions were determined solely by the Director-General of Queensland Health.
[11] DSOs employed in Allied Health roles were included in the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (CA/2007/63). That subset of DSOs are now covered by the Health Practitioners and Dental Officers (Queensland Health) Award - State 2015.
[12] Together Union's application seeks to establish wage rates and associated provisions for the remaining DSOs within the Award via the variation proposed.
Why has this become an urgent issue now?
[13] This DSO cohort have not had a pay increase since 2017, resulting in some subordinate staff now being paid more than them. For example, the DSO 2.2 annual salary is $133,938. Annually, this is just $1 per year more than an AO8(3) and $2,485 a year less than an AO8(4) working in Queensland Health.
[14] DSOs are likely to experience ongoing detriment by not receiving any pay increase until the question of applicable industrial instrument is resolved.
What has happened so far?
[15] The Together Union's application sets out a schedule of variations sought to the Award, essentially adding a stream for DSOs as a new Schedule to that Award and amending various clauses in the Award to also reflect that change.
[16] Queensland Health opposes the application to vary the Award and extend coverage to the DSO cohort.
[17] While the Department recognises these employees have not had a pay increase since 2017, Queensland Health representatives stated that they have no instructions as to how that situation may be ameliorated through any alternative proposal at this time.
Should this matter be referred to the Full Bench?
[18] Together Union and Queensland Health representatives have each made oral and written submissions as to whether this matter should appropriately be referred to the Full Bench, in proceedings before me.
Queensland Health's submissions
[19] Queensland Health seeks that this matter be referred to the Full Bench. In summary, their arguments are that:
Like Senior Officers under the Public Service Act 2008 ('PS Act'), DSOs have not historically been covered by awards or certified agreements. Their terms and conditions have been set under a Directive issued by the Director-General, Queensland Health.
Together Union's submissions
[20] Together Union has advocated that the matter be heard by a single Commissioner. In summary, their arguments were that:
Consideration
[21] Section 486 of the Act provides a broad discretionary power that the Commission can exercise on its own volition (emphasis added):
486 Referring matter to full bench
[22] On 22 February 2021, I informed Together Union and Queensland Health representatives that I considered it was appropriate to refer the matter to the Full Bench.
[23] My reasons follow:
[24] However, pursuant to s 486(2) of the Act, the President's approval is required before exercising my discretion to refer this matter to the Full Bench to determine.
[25] I appreciate Justice Martin's comments in the matter of Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland[12] that s 486 of the current Act differs from the repealed section of the previous Act, in that there is no longer a specific requirement for the President to be satisfied that a matter is of substantial industrial significance before it can be referred to a Full Bench; notwithstanding the power to refer is not unfettered.[13]
[26] For the reasons outlined above, I am persuaded that these matters have particular significance warranting the referral of this matter to the Full Bench.
The Questions to be Decided
[27] The parties shared their respective views on the questions to be decided by the Full Bench - in the event that the President approves the referral. However, it is acknowledged that this would ultimately be a matter for the Full Bench in the event that the matter was approved for referral.
[28] Together Union's view was that there were two questions to be decided:
[29] Queensland Health's view was that there was only one question to be decided:
[30] It was the Department's preference that any requirement to establish specific provisions for DSOs be a matter of negotiation between the Department and unions in the first instance, in the event that the Full Bench were to decide that DSOs should be covered by the Award.
Conclusion
[31] Pursuant to s 486(1) of the Act, I find that it is appropriate for matter MA/2020/23 to be referred to the Full Bench to determine.
[32] Under s 486(2) of the Act, a matter may only be referred to the Full Bench for Hearing with the President's approval. This Decision is now referred to the President for his determination.
Order
[33] I make the following order:
Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I find that it is appropriate for this matter to be referred to the Full Bench for Hearing.
[1] The details of the variations sought to the Award are contained in the Form 2 Application filed by Together Union in this matter on 12 October 2020.
[2] Form 20 Affidavit of Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health, page 3, [14].
[3] Form 20 Affidavit of Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health, page 3, [15].
[4] Form 20 Affidavit of Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health, page 3, [16].
[5] Form 20 Affidavit of Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health, page 3, [22].
[6] Together Union's written submissions, 22 February 2021, page 4, [21].
[7] Together Union's written submissions, 22 February 2021, page 4, [22].
[8] Together Union's written submissions, 22 February 2021, page 5, [28].
[9] Together Union's written submissions, 22 February 2021, page 6, [29].
[10] Together Union's written submissions, 22 February 2021, page 6, [30].
[11] Form 20 Affidavit of Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health, page 4, [23].
[12] [2017] QIRC 31.
[13] Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31, [5].
