DISPUTE REGARDING THE CLASSIFICATION OF A POSITION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Health Services Union of Western Australia (Union of Workers)

APPLICANT

-v-

Director General of Health in right of the Minister for Health as the Metropolitan Health Service at PathWest Laboratory Medicine WA

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Commissioner P E Scott

HEARD Friday, 13 October 2006

DELIVERED THURSDAY, 19 October 2006

FILE NO. PSACR 15 OF 2006

CITATION NO. 2006 WAIRC 05622

CatchWords Public Service Arbitrator – Application regarding declassification of vacant position in 2001 at PathCentre and correct classification of position transferred to PathWest in 2005 – Applicant’s member was not in the position and the Applicant was not the relevant registered industrial organisation at the time the position was declassified - Whether Public Service Arbitrator able to review the decision to declassify the position in 2001 - Whether Public Service Arbitrator able to review classification of position without assessing work value changes - Statement of Principles and circumstances considered  – Matter dismissed - Industrial Relations Act 1979 (WA) s.44; s.80E(1) and (2),  Government Officers Salaries Allowances and Conditions Award 1989;  Government Officers Salaries Allowances and Conditions General Agreement 2004;  Hospital Salaried Officers Award 1968;  Health Services Union - Department of Health - Health Service Salaried Officers State Industrial Agreement 2004.

Result Matter Dismissed

Representation 

Applicant Ms C Thomas

Respondent Mr J Ross

Reasons for Decision

1         The matter referred for hearing and determination pursuant to s.44 of the Industrial Relations Act 1979 (“the Act”), which had not been settled by agreement is as follows:

“1. The Applicant says that:

(a) The position, Duty Medical Scientist Position No. PC 001535, was not correctly classified by PathWest in 2005 when it was transferred from Path Centre and that the Respondent ought have ensured that all positions created within the new entity were classified correctly.

(b) It disputes in part the accuracy of the assessment reports, including the comparisons and conclusions therein, the Position Evaluation Questionnaire and the resulting BiPERS assessment score.

(c) The decision of the Respondent’s Classification Review Committee to declassify the appeal position to GOSAC Level 2/4 in 2001 is relevant to any review of the appeal position and essential if reviewed as a reclassification.

2. The Applicant seeks that:

(a)  The Public Service Arbitrator (“the Arbitrator”) determine the value of the position in 2005 rather than undertake a reclassification review which requires a demonstration of work value change between 2001 and 2005.

(b) The classification level of the appeal position be determined as HSU Level 6.

3. The Respondent rejects the Applicant’s claims and says that:

(a) The application can only be processed by way of a current reclassification application.  Any changes in the classification of the appeal position must be subject to significant work value change as prescribed in Principle 6 of the State Wage Case.

(b) There is no jurisdiction for the Arbitrator to determine the classification of the appeal position without a work value review.

(c) The Applicant’s member has a right to a review of the CRC’s determination of 15 March 2006 but no right to seek a review of the 2001 decision as at the time of that decision:

(i)  The Applicant was not the relevant registered industrial organisation;

(ii)  The HSU Award and Agreement had no application;

(iii) The current incumbent was not the incumbent of the appeal position; and

(iv) The current employer was not the employer.

4. The Respondent denies that the Applicant is entitled to the relief sought or any relief at all and requests that the application be dismissed.”

2         The parties are in agreement as to some of the history of this matter.  That history includes, most relevantly, that the Western Australian Centre for Pathology and Medical Research, “PathCentre”, was abolished from 15 July 2005 and the Metropolitan Health Service took over the functions previously undertaken by the PathCentre, by what is now known as PathWest. The employees of the PathCentre were covered by the Government Officers Salaries, Allowances and Conditions Award 1989 (No. PSAA 3 of 1989) (“GOSAC Award”) and the Government Officers Salaries Allowances and Conditions General Agreement 2004, an Award and Agreement to which the Civil Service Association of Western Australia Incorporated (“CSA”) was a party.  With the creation of PathWest, the positions of those employees were abolished and new positions were created, and due to the arrangements for industrial coverage, the positions became subject to the Hospital Salaried Officers Award 1968 and the Health Services Union – Department of Health – Health Service Salaried Officers State Industrial Agreement 2004, under the industrial coverage of the Health Services Union of Western Australia (Union of Workers) (“HSU”). 

3         The arrangements included that the employees ceased to be employed or engaged by PathCentre and became employed or engaged by PathWest.  The positions were translated into the structures of the Hospital Salaried Officers Award and the Agreement that related to it.  (See Western Australian Government Gazette Tuesday 12 July 2006, No. 131)

4         The evidence indicates that in 2001, the position, the subject of this matter, was downgraded from GOSAC Level 5 to GOSAC Level 2/4, which would translate to HSU Level 6 and HSU Level 3/5 respectively.  This was a decision made by the PathCentre Classification Review Committee in November 2001.  The evidence is also that the position was vacant at the time it was downgraded, and that a number of other positions were also downgraded at the same time.  There is no suggestion that the CSA, the organisation with industrial coverage at the time, objected to the downgrading. 

5         Mr Jason Cardey applied for, and was appointed, to the Level 2/4 position on 2 October 2003.

6         Upon the HSU taking over coverage in July 2005, the Secretary of the HSU, Mr Daniel Hill, advised the employer that the HSU had “formed the view that the position was erroneously and unfairly downgraded in the 2001 review” (Exhibit A1 – Appendix 3).  On that basis the HSU sought the respondent’s agreement to reclassify the position to HSU Level 6.  The HSU appeared to acknowledge that the situation fell outside the usual reclassification process which related to changes in work value but believed that it was appropriate to enter into discussions with a view to resolving the matter. 

7         Following a number of discussions, the respondent agreed to undertake a review of the position and a classification review was undertaken in March 2006 by Austral Training and Human Resources.  According to the report provided by the reviewer (Exhibit A1 – Appendix 9), the reason for the review is said to be “[t]his review follows a request by the Health Services Union that an earlier decision to downgrade the position be revisited and the position be reinstated to its previous Level 6 classification.”  Whilst this report refers to examining a number of documents including “statements of work value changes” (underlining added), it is clear from the remainder of the document that the whole basis of the review was not a change in work value at all but an assessment of the level of work value for the purpose of examining whether the reclassification was appropriate.  The review was not undertaken on the basis of the normal reclassification test of significant net addition to work value. 

8         On the basis of the review, the PathWest Classification Review Committee considered the situation and in a letter to Mr Hill of 17 March 2006, advised, that amongst other things, “the consultant conducted an extensive review in response to your claim that the position was erroneously and unfairly downgraded in the 2001 review of this position.  Upon review, the consultant has recommended that the position remain classified at HSO Level 3/5.  The consultant’s report is attached” (Exhibit A1 – Appendix 7).

9         On 15 May 2006 the PathWest Classification Review Committee wrote to Mr Cardey, who currently holds the position, the subject of the claim, and advised that “[t]he PathWest Classification Review Committee (CRC) convened to consider a review of a previous CRC decision in 2001 to downgrade the classification of the position to Duty Medical Scientist PC001535 from HSU Level 6 to HSU Level 3/5 … The committee noted that the consultant had conducted the review by assessing the work value of the position using Level 3/5 and Level 6 descriptors for comparison with the review position … The committee agreed with the consultant’s recommendation that the review position remain at Level 3/5 … This recommendation has been subsequently approved by the Chief Executive PathWest”  (Exhibit A1 – Appendix 8).

10      The applicant says that the Public Service Arbitrator (“the Arbitrator”) is able to consider the matter and come to its own decision with a finding that the position ought to be classified at Level 6.  However, the respondent challenges the Arbitrator’s jurisdiction to deal with the matter and says that the only way that the classification can be considered is in accordance with the usual reclassification review which requires consideration of the Work Value Principle contained within the Statement of Principles. 

11      The applicant agrees that it was not the relevant registered industrial organisation in 2001; its Award and Agreement had no application; the current incumbent was not the incumbent of the appeal position at the time of the downgrading; and the current employer was not the employer. 

The Matter for Consideration

12      The applicant asserts that it does not seek to review the 2001 decision but rather seeks that the position be properly classified upon being transferred from the PathCentre.  However, I find, as evidenced by the applicant’s claim to the employer upon which this dispute was initially referred to the Commission and then referred for hearing and determination, that it is that review and downgrading which is sought to be remedied, as well as a consideration of the position as it applied in 2005.  One would be hard pressed to conclude that it was fair and reasonable for the Commission to review a decision taken by a different employer, i.e. PathCentre some 5 years ago, when the then relevant union, the CSA, had a right to challenge that downgrading and did not do so.  It may be appropriate for the Commission to enter into a hearing and determination as to a dispute between the parties in respect of the proper classification of a position at this point, subject to whether it is within jurisdiction and subject to the application of the Statement of Principles.

Public Service Arbitrator’s Jurisdiction

13      The Arbitrator’s jurisdiction is set out in s.80E of the Act and relevantly provides in subclauses (1) and (2) as follows:

“(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.

(2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 

(a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a Government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and

(b) a claim in respect of a decision of an employer to downgrade any office that is vacant.”

14      It is clear that the jurisdiction of the Arbitrator includes dealing with industrial matters in relation to Government officers and, in particular, a claim in respect of the salary, range of salary or title allocated to the office occupied by a Government officer, and a claim in respect of a decision of an employer to downgrade an office that is vacant is also within the jurisdiction of the Arbitrator.  I find that the decision to downgrade as it related to the decision of PathCentre would have been within the jurisdiction of the Arbitrator at the time that PathCentre downgraded the position.  Further, the current classification of the position as it is held by PathWest is able to be considered by the Arbitrator.  As noted earlier, whether it is appropriate to consider a decision of an employer, not currently the employer, to downgrade the level of an office that was downgraded some 5 years ago is another matter. 

15      However, the question which immediately arises in this case is not one so much of jurisdiction but of whether the Arbitrator is actually able to provide a remedy in the circumstances of the operation of the Statement of Principles.  The Statement of Principles arising from the most recent State Wage Case decision ((2006) 86 WAIG 1631 at 1657), sets out the basis upon which the Commission is to consider claims before it. 

16      The Statement of Principles – July 2006 sets out in Principles 1 and 2 the manner and circumstances in which the Commission is to consider claims before it and they are as follows:

“1. Role of Arbitration and the Award Safety Net

Existing wages and conditions in awards and relevant agreements of the Commission constitute the safety net which protects employees who may be unable to reach an industrial agreement.

Wages and conditions of employment maintained in awards in accordance with these Principles and through the operation of section 40B of the Act are the safety net.

These Principles do not have application to Enterprise Orders made under section 42I of the Act.

2. When an Award or relevant Agreement may be varied or another Award made without the claim being regarded as above or below the Safety Net:

In the following circumstances an award or relevant agreement may, on application, be varied or another award made without the application being regarded as a claim for wages and/or conditions above or below the award safety net:

(a)  to include previous State Wage Case increases in accordance with Principle 3.

(b)  To incorporate test case standards in accordance with Principle 4.

(c)  To adjust allowances and service increments in accordance with Principle 5.

(d)  To adjust wages pursuant to work value changes in accordance with Principle 6.

(e)  To reduce standard hours to 38 per week in accordance with Principle 7.

(f)  To adjust wages for arbitrated safety net adjustments in accordance with Principle 8.

(g)  To vary an Award or relevant Agreement to include the Minimum Adult Wage in accordance with Principle 9.

(h) A consent variation to a single enterprise specific award or a consent replacement award to a single enterprise specific award under Principle 10 giving effect to structural efficiency initiatives or productivity based arrangements.

(i) Where awards already make provision for superannuation pursuant to principles which operated under State Wage Cases from 1986 until 1993 the terms of those clauses may be varied to refer to current Federal Statutes in lieu of employers’ contributions, but these clause shall not be varied otherwise.

(j) To vary the award to incorporate industrial agreement provisions into the award by consent pursuant to section 40A of the Act.  The incorporated industrial agreement wage rate and allowance provisions will not be subject to arbitrated safety net adjustments and will be identified separately in the award at the time of variation.”

(86 WAIG 1657)

17      The claim in this case is quite clearly for the purposes of the Arbitrator determining the value of the position with a view to changing that classification to HSU Level 6. 

18      I have examined “Principle 2 – When an Award or relevant Agreement may be varied or another Award made without the claim being regarded as above or below the Safety Net”. There was no argument before me that the previous State Wage Case increases, in respect of structural efficiency or previous arbitrated safety net adjustments is the basis of the claim.  In any event, an examination of the claim and Principle 2(a) even at a very cursory level, demonstrates that there can be no argument that this applies.  The claim does not seek to incorporate test case standards, nor to adjust allowances or service increments in accordance with Principle 2(b) or (c). 

19      In respect of adjusting wages pursuant to Principle 2(d) relating to work value changes, as noted above, the claim does not seek to review the classification on the basis of changed work value.  It does not seek to reduce standard hours of work or to adjust the arbitrated safety net (Principle 2(e) and (f)).  It does not seek to adjust the Adult Minimum Wage nor is it a consent variation to a single enterprise specific Award. (Principle 2(g) and (h))  It does not relate to superannuation or to incorporating industrial Agreement provisions into an Award (Principle 2(j)). 

20      In all of those circumstances, I am unable to find that the matter before the Arbitrator meets any of the matters which the Commission (in this case, the Arbitrator) is able to consider in accordance with the Statement of Principles.  The usual basis upon which reclassifications are able to proceed pursuant to the Statement of Principles is only in accordance with Principle 6 – Work Value Changes.  That Principle requires that there be a demonstration of “changes in the nature of the work, skill and responsibility required or the conditions under which work is performed”.  Those changes “should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification” (page 1658).  However, the applicant does not seek a reclassification based on “changes in the nature of work …” etc:  Given the status of those Principles and their binding nature on a single Commissioner, I am unable to find that the matter is one which the Arbitrator can deal with. 

21      Accordingly, I conclude that there is no capacity for the Arbitrator to consider this matter and it will be dismissed.