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 Tuesday, 26 February 2008, Wednesday, 27 February 2008

WRITTEN

SUBMISSIONS WEDNESDAY, 27 FEBRUARY 2008, WEDNESDAY, 5 MARCH 2008

DELIVERED 23 APRIL 2008

FILE NO. PSA CR 15 OF 2006, PSA CR 20 OF 2007

CITATION NO. 2008 WAIRC 00253

Catchwords Public Service Arbitrator - Industrial Law (WA) – Reduction in level of classification of Level 7 duty/shift medical scientist positions – Appropriate level determined - Whether Public Service Arbitrator able to review classification of position without assessing work value changes – History of work value test - Test to be applied in determining classification levels/ criteria to be addressed - Whether Public Service Arbitrator able to review the decision to reclassify the position in 2001 - Position Evaluation Questionnaires and BiPERS assessment tool not determinative - Application of Work Value Change Principle - Statement of Principles and circumstances considered – Level of skill, responsiblitity and the circumstances under which the work is performed -  Flow-on - Industrial Relations Act 1979 (WA) s.44; s.80(E)(1) and (2) - Health Services Union WA Health State Industrial Agreement 2006 Cl.18(4)(e) - Government Officers Salaries Allowances and Conditions Award 1989 - Hospital Salaried Officers Award 1968.

Result Orders that the positions be classified Level 7

Representation 

Applicant Ms C Thomas

Respondent Ms C Drew

Reasons for Decision

1          These two matters relate to the appropriate level of classification of Duty or Shift Medical Scientist employed by PathWest.  They were not resolved by conciliation and were referred for hearing and determination pursuant to s44 of the Industrial Relations Act 1979 (the Act).

2          The schedule to the Memorandum of Matters Referred for Hearing and Determination in PSA CR 15 of 2006 is in the following terms:

1. The Applicant says that:

(a) The position, Duty Medical Scientist Position No. PC 001535, was not correctly classified by Path West 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.

3          The schedule to the matter in PSA CR 20 of 2007 is in the following terms:

1. The Applicant:

(a) Disputes the decision of the respondent to downgrade the classification of all Level 7 Duty/Shift Medical Scientist positions as detailed in the Internal Memorandum from Dr Peter Flett, Chief Executive dated 25 June 2007.

(b) Disputes that it sought a review of the Level 4/6 Medical Scientists positions working on shift.

(c) Says that the appropriate classification of the Duty/Shift Medical Scientist positions is HSU Level 7.

(d) Says that the Respondent has failed to demonstrate that any tasks, skills, responsibilities have been removed or the conditions under which the work is performed have changed sufficiently to justify the reduction in classification of these positions.

2. The Applicant says that the classification of the positions ought to be determined by reference to the work value of the positions in question.  The factors in determining the work value are:

(a) The value of the work performed;

(b) The responsibilities and skills required;

(c) Comparisons of the work requirements of the job with jobs (internal and external) having similar duties, responsibility and skill requirements;

(d) The structural relationships of the jobs; and

(e) An assessment against the Classification Level Descriptors as defined within Clause 18. – Salaries and Payment, sub clause (4) (e) of the Health Services Union WA Health State Industrial Agreement 2006.

It disputes that this matter ought properly proceed as a reclassification appeal pursuant to the work value change test.

3. The Applicant seeks an order that the Respondent’s decision to reduce the classification of the positions be quashed and that the positions be classified at HSU Level 7.

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

(a) (i) The work value of all health professional positions has been the subject of P 18 of 2003, and from 25 July 2005, PathWest health professionals were covered by that application.  The majority of medical scientists on shift work were classified as Level 2/4 under the Government Officers Salaries, Allowances and Conditions Award 1989 and on translation to the Hospital Salaried Officers Award 1968 were classified as Level 3/5. These positions were granted the benefits of P 18 of 2003 and were reclassified to Level 4/6 from 25 July 2005.

(ii) The Applicant sought review of the Level 4/6 medical scientist positions working on shift, as a small number of similar positions at the laboratories at Royal Perth Hospital and Fremantle Hospital and Health Service classified as Level 7, were transferred to the PathWest structure.

(iii) The Chief Executive Officer PathWest determined that there had been no change in work value of the medical scientists on shift and the level of work required was within the Level 4/6 range.

(iv) The Chief Executive Officer PathWest has determined that the work performed by all medical scientists on shift is at Level 4/6 and has taken appropriate steps to address the anomalies in respect to those positions in the amalgamated laboratories that were Level 7.

(v) If the employer requires other than staff at Level 4/6 to perform shift work, it can direct any medical scientists at the appropriate level to do so pursuant to clause 15 of the Health Services Union – WA Health State Industrial Agreement 2006.

(b) (i) The matter ought properly proceed as a reclassification appeal pursuant to the established work value change test.

(ii) If the matter is not to proceed as a reclassification appeal, then the Respondent seeks that the Arbitrator determine what test is to be applied in determining the classification levels including:

(aa) Whether there is a capacity for a process different to that applicable to reclassification appeals;

(bb) What tests are to be applied within an arbitrated process;

(cc) Whether a separate arbitrated process is to coexist alongside the traditional administrative review process based on the work value change test; and

(dd) What criteria are required to progress claims under an arbitrated process.

5. The Respondent denies that the Applicant is entitled to the relief sought or any relief at all.”

Background

4          In respect to PSA CR 15 of 2006, the Public Service Arbitrator dealt with this matter by Reasons for Decision dated the 19th October 2006 as to the application for the Statement of Principles (2006 WAIRC 05622).  That decision was the subject of an appeal to the Full Bench (FBA 37 of 2006, 2007 WAIRC 00396) and was remitted to the Arbitrator on the basis that, in effect, the Statement of Principles did not cut down the jurisdiction of the Arbitrator to deal with the matter and the Principles did not apply to it. 

5          Since then PSA CR 20 of 2007 also arose.  Its subject is the Duty/Shift Medical Scientist positions located at Royal Perth Hospital and Fremantle Hospital and Health Service (“RPH” and “FH” respectively), whereas the position in PSA CR 15 of 2006 is located at Sir Charles Gairdner Hospital (“SCGH”).  They were listed for hearing jointly on the basis that similar issues arise in respect of the Duty Medical Scientist position occupied by Mr Cardey SCGH, the subject of PSA CR 20 of 2007. 

6          The Parties filed the following Statement of Agreed Facts in the following terms:

1. During the 1970’s, the State Health Laboratory Service (SHLS), located on the Queen Elizabeth II Medical Centre, Nedlands, performed laboratory services for the Public Sector.  The Civil Service Association had industrial coverage.  Classification determinations affecting the SHLS were made by the Public Service Board. 

2. There were medical/hospital laboratories attached to teaching hospitals where the HSU had industrial coverage.  From 1971 the Hospital Salaried officer Appeal Board Agreement was signed and remained in operation until 1978.  This Agreement was based upon the Public Service Appeal Board Act.  From 1978, classification determinations were made in accordance with the Hospital Salaried Officers (Classification Review) Industrial Agreement No. 2 of 1978 under the Chairmanship of a Commissioner of the WA Industrial Relations Commission (WAIRC).

3. On 10 April 1995, Path Centre came into existence after being gazetted as an Agency.  Prior to this, it had been the SHLS, a branch of the Health Department.  The CSA achieved industrial coverage of all the salaried employees of Path Centre.  The remaining hospitals i.e. Royal Perth Hospital, Fremantle Hospital, King Edward Memorial Hospital and Princess Margaret Hospital continued to provide laboratory services under their own respective hospital boards and industrial coverage remained with the HSU.

4. The Path Centre was abolished on 15 July 2005 and Path West was created.  Path West was established as part of the Metropolitan Health Services and the HSU gained industrial coverage of Path West salaried employees (see Appendix 7 and 8).

PSA CR 15 of 2006

5. By way of correspondence dated 26 July 2005, the HSU raised the issue of the classification of the Duty Medical Scientist, Position No. PC 001535 with management of Path West.  The HSU raised concerns about the decision in 2001 to classify the position from a GOSAC Level 5 to a GOSAC Level 2/4.  The HSU sought a meeting to discuss these issues further (see Appendix 9).

6. A meeting between the parties took place on the 12th August 2005 and it was resolved at this meeting that the HSU would document its concerns regarding the decision.

7. The HSU documented its concerns by way of correspondence dated 31 August 2005 and sought confirmation of an agreed effective date (see Appendix 10).

8. Path West responded on 2 September 2005 (see Appendix 11 and 12) indicating that they would commission an independent assessment of the position and that this information would be forwarded to the Classification Review Committee for a final determination.  An effective date of 31 August 2005 was agreed for Post No. PC 001535.

9. Path West engaged Austral Training and Human Resources to conduct the review and their report was provided to Path West on 15 March 2006 (see Appendix 15).  This report was then forwarded to the Classification Review Committee who determined that the classification of the appeal position was correctly classified at Level 3/5 (now 4/6).

10. The HSU disagreed with the decision and lodged an application (PSAC 15 of 2006) to seek resolution of this matter by way of arbitration.

PSA CR 20 of 2007

11. On 10 January 2007 the HSU emailed Path West to seek urgent clarification regarding a recent job vacancy advertised on JobsWA.  The position was located at Fremantle Hospital (Post No. FH001536) and was an after hours Medical Scientist position in Haematology and Transfusion Medicine (see Appendix 16).

12. Path West advised that they had decided when this position became vacant that they would alter the classification from Level 7 to Level 4/6.  Path West advised that they were in the process of identifying the appropriate classification and as the position needed to be urgently filled a decision had been taken to advertise the position at the Level 4/6 rather than the Level 7.

13. The HSU protested this decision and advised that they were in dispute regarding the decision and that if the decision was not changed then the HSU would consider its options.

14. Path West advised 15 January 2007 that they had directed HCN to withdraw the advertisement but indicated that a new Medical Scientist position at level 4/6 would most probably be created and advertised in the near future.  The advertisement was withdrawn.

15. On 12 February 2007 the HSU sought clarification from Path West regarding another position that had previously been a substantive Level 7 but was being advertised at Level 4/6.  This position was located at Royal Perth Hospital in the Core Clinical Pathology and Biochemistry Department.

16. Path West advised that this advertisement would also be withdrawn.

17. Mr Keith Dodd from Dodd and Young Human Resource Consultants was engaged to initially review the position at Fremantle Hospital (see Appendix 147). Mr Dodd was asked to subsequently review the positions at King Edward Memorial Hospital and Royal Perth Hospital and he submitted a further report (see Appendix 18).

18. On 5 May 2007 an Extraordinary Meeting of the Path West Classification Review Committee was held to discuss the issues of the classification of Shift Medical Scientists across all Path West sites (see Appendix 19).

19. On 25 June 2007 Dr Peter Flett, Chief Executive issued an Internal Memorandum to Site Managers advising that Health Industrial Relations Service had reviewed the Shift Medical Scientist positions and in conjunction with senior management from Path West had determined that these positions would be classified at Level 4/6 throughout Path West (see Appendix 22).  Staff directly affected were advised in writing of this decision.

20. The HSU received notification of this decision on 26 June 2007 via email from Mrs Mary Burns, A/Manager Human Resources.

21. The HSU responded to Mrs Burns via email requesting copies of various documents that were utilized in making this decision.

22. On 26 June 2007 the HSU lodged an application in the WAIRC (i.e. PSAC 20 of 2007) as a result of this decision.

23. At the conference held into this application on Friday 29th June 2007 the Arbitrator issued a direction pursuant to s 44(6)(ba)(iii) of the IR Act that a range of documentation be provided to the applicant.

24. The respondent complied with this direction by the stipulated date.

25. It should be noted that “Medical Scientist” used to be referred to as a “Medical Laboratory Technologist”.

Method of Assessment

7         The first issue for consideration is the appropriate mechanism for the review of the level of these positions.  It had been argued by the Respondent that the Work Value Change test is applicable and that the Applicant needs to demonstrate that there has been a significant increase in the work value of the position to justify the reclassification.  Conversely, the Applicant says the Respondent must demonstrate that there has been a reduction in the level of work to justify the reduction in classification.

8         It is noted that the Statement of Principles do not apply to the consideration of this matter.  The question though is whether the Work Value Change test applies, regardless of it being incorporated into those Principles. 

9         The concept of Work Value is one means of setting remuneration levels for particular work by determining the value to be attributed to that work.  The concept has been in existence for many years before the concept of “work value change” was included within the Principles as one of the limited ways in which an increase in the level of remuneration could be justified.

10      Work Value is a tool or mechanism to assess the requirements of a job, and then to assign a relative value to the job.  In the Scientific Officers Case ([1962] AR (NSW) 250 at 268), it was noted that the proper course was “to fix a rate based exclusively on work value”.  Reference was made in that decision to the Professional Engineers Base Grade Case of the Commonwealth Conciliation and Arbitration Commission in June 1961 (Serial No. A 8508) where the Commission said that there had previously been too much attention to salary patterns, the appropriate position in the wage structure, relationships with other employees, “and too little attention to actual duties, responsibility and work value…” The Scientific Officers Case also noted the New South Wales Marine Motor Drivers Case of 1960 where Beattie J said:

“A consideration of the work done by the employees still remains a predominant matter, for, in essence, the Commission’s task is to place a value on the work done by employees in the classes for whom wages are to be fixed as minima”.  (1960 AR 256 at 259)

11      The decision in the Scientific Officers Case (supra) refers to the assessment of the work value by reference to the nature of the work, the responsibilities of the position, the conditions under which it is performed, and the qualifications and experience required. 

12      It is noted that in the Metal Trades Award 1952 ((1967) 121 CAR 587), the Commonwealth Conciliation Act and Arbitration Commission examined the work undertaken pursuant to that award for the purpose of establishing margins to be applicable to the rates of pay.  In that case, Commissioner Winter had undertaken an investigation on behalf of the Commission taking account of “such factors as skill, qualifications, aptitude, experience, nature of the work and conditions in which or under which it is carried out.” [at 589]

13      Wording similar to that used in the Scientific Officers Case (supra) and the Metal Trades Award Case (supra) is reflected in the Work Value Change Principle of this Commission’s Statement of Principles ((2007) 87 WAIG 1487 at 1517), where:

“Changes in Work Value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed.  Changes in work by themselves may not lead to a change in wage rates.  The strict test for an alteration in wage rates is that the change in the nature of the work 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.”

14      Most importantly for the purposes of this matter, the Principle is titled “Work Value Change” and the Principle commences with the words “Applications may be made for a wage increase under this Principle based on changes in work value.” (emphases added)

15      Therefore the  Work Value Change Principle contained in the Statement of Principles clearly demonstrates by its wording that it relates to claims based on changes in work value.  Where the claim is not based on changes in work value that Principle (even if it otherwise applied) has no application.  However, assessment of the work value of a position remains the appropriate mechanism for determining the appropriate level of classification.  The history of work value demonstrates that it is a scheme which enables the allocation of a level of classification to a position by reference to a range of criteria used to measure the requirements of the job.  This concept of work value predates the current system of the Wage Principles.

16      The matters before the Arbitrator on this occasion do not rely on any aspect of a claim of changed work value.  On the contrary, the claims are based not on changed work value but on changed (reduced) classification levels.  The claims are that the changed (reduced) classification level is inappropriate. 

17      Therefore, according to the authorities cited above, for the purposes of determining whether the appropriate classification is at one level or another, it is necessary to examine the work value of the positions. This is done by reference to the same factors as are considered in reference to change, being “the nature of the work, skill and responsibility required or the conditions under which work is performed,” which mirror those aspects examined by Winter C in the Metal Trades Award 1952 case, the Scientific Officers Case and referred to above.

18      If the classification level is appropriate to the nature of the work, skill and responsibility required or the conditions under which the work is performed, then the level of classification remains the same.  This consideration applies to both reclassification appeals and to these claims.  However, a reclassification appeal is usually based on a claim that there has been a significant net addition to the work value of the position by changes to the skill, responsibility or other work requirements.  The fact that these claims are different to the usual reclassification appeal does not prevent the Arbitrator exercising jurisdiction under s80E of the Act.  Section 80E(2) of the Act is, in effect, a subset of subsection (1) and, in particular, it enables the Arbitrator to deal with matters relating to the appropriate classification level of a position, whether it is based on significant net addition to work value or on a challenge to the level of classification allocated to, for example, a newly created position.

19      There are other aspects in respect of classification determination which need to be noted.  The first is that particular jobs have some aspects which are of a permanent nature and are performed on a regular basis.  Other duties and responsibilities are performed only part of the time.  Those duties or responsibilities could be performed intermittently, or they could be regular but minimal, forming only a very small part of the job.

20      It should also be noted that in the assessment of level of skill and responsibility:

• a higher level of classification is not necessarily justified if the position performs a broad range of work which is all at the same level;
• a higher level of classification is not justified on account of higher than usual/average work load;
• it does not take account of attraction and retention issues.
• Position Evaluation Questionnaires, along with BiPERS assessments, are helpful tools in the assessment of the value of a position.  However, they are not determinative.  It is not unusual for different factors within such assessments to be given different values by the incumbent, the supervisor, the management and an independent assessor.

21      In assessing the work value of a position one also needs to examine where it fits in the classification structure. 

The Development of the Professional

22      The positions the subject of these matters are part of what are generically called the Health Professions.  In this case, the employer has classified these positions as Level 4/6 in the HSU broad banded classification structure.

23      The Scientific Officers Case also dealt with the purpose of incremental scales of salaries and steps.  It noted in respect of the Professional Engineers Case (No. 2) (A 8508 page 47):

“Upon the first aspect we see no room for doubting that in a scale of salaries reflecting work-values…the proper function of increments be a measurement of the increasing value of an employee’s work within a class by experience, practice, and learning; upon promotion, by his ability and aptitude to perform the higher grade and more skilled work involved…in the promotion” (page 284).

24      In what is known as the Chiefs and Deputies case ((1992) 72 WAIG 614), Commissioner Negus made comment regarding the development of skill and expertise in the professions and how that relates to the incremental scheme.  He said:

“In each profession, new graduates who obtain employment, are accepted as being in an extension of their academic training and are remunerated accordingly.  They are classified Level 2/4 (Clause 7) (C.S.A) or at Level 3/5 under the H.S.O.A scales.  That grading starts them at $26,533 p.a and incorporates five further incremental movements on an annual basis which brings the end rate to $36,688.  Those are the November 1991 rates, which incorporate at 2.5% increase over the comparative chart (supra).

I have reason to believe that the rationale which underpins the Level 2/4 (Clause 7) classification and its associated incremental progressions may not be widely understood across the public sector.  It is possible that in some workplaces the situation has been misinterpreted and I am reasonably certain that the related concept of criteria progression has taken on an air which was never envisaged by its creators.

The erection of the Structural Efficiency Principle, predicated upon the provision of career paths and the establishment and maintenance of appropriate relativities across all areas of employment, demands that we seek to achieve a commonality of approach at least across the public sector.  Such a common approach must also take care not to discriminate between these professional callings and clerical/administrative officers nor indeed those employees whose skills are based on trade qualifications associated with their functions.  Basic principles must be applied even handedly whether we are considering workers at 80% or at 180% of the tradesperson’s rate.

The parties to public sector salary awards have been implementing one phase of the award restructuring or award modernisation process for some time now with their joint study of skills resource management.  It is my understanding that one outcome of the process of skills identification and more precise job definition will be a new approach to the concept of incremental progression.  When the skills required for the efficient operation of an enterprise have been identified and classified into a hierarchy then training opportunities will no doubt be made available to allow acquisition of those skills by employees.

Presumably employees will advance through the sub-strata of salary increments within a broad-band as rapidly as they can demonstrate the possession and application of the required skills…

As noted earlier, there is a guaranteed movement through six increments spanning three levels during the first six years of post-graduate employment.  At that point further upward movement, as a general rule, depends upon competing for and winning advertised vacancies as and when they occur.  That has been the traditional and time honoured method of career advancement in the public sector and it has been the only way in which superior performance has been recognised and rewarded.  Employees in some of the professional callings have been extended an extra privilege, in that criteria progression has been made available to them.

The Public Service Commissioner outlined the general principles governing criteria progression in a circular dated 31 January 1989.  It is my belief that the extension of the privilege was intended to provide a mechanism for professional officers who were worthy of promotion to be able to achieve some career advancement despite there being no vacant items available for advertisement at the higher levels.  It is a concept which fits squarely within the career paths notion of the Structural Efficiency Principle and it seems to me that the time is ripe for the industrial parties to devise some model pyramid structures which might provide a framework against which a member of a profession could measure and assess some reasonable career aspirations.

…

The rationale which underpins the six step progression through the full range of three broad-banded levels should be clearly stated so as to dispel some of the cloud of misconception which I suspect pervades many minds in the public sector.  The regular salary increases are a recognition that a graduate with a newly acquired baccalaureate degree is but an apprentice in relation to the effective practice of the profession.  The early years on the job provide an opportunity for the tyro, under the supervision and guidance of more senior colleagues, to continue to develop further expertise and knowledge relating to the practice of the profession.  The work value of the practitioner will increase year by year and that increasing value will be recognised by the significant salary increases. 

It follows axiomatically that an 8%  pay rise should not occur at the stroke of a pen.  If it is justified by increasing work value then it should be awarded on the basis of real evidence that the professional development and experiential growth has in fact occurred.  It might be reasonable to expect then that a performance appraisal system for professional officers would be even more carefully structured and implemented than might be acceptable for public servants moving through annual increments of a single broad-band.  Given that the extra payments are directly related to performance linked accumulation of knowledge and expertise, it follows inexorably that one qualifies for the annual increase, not by growing older but by practicing the profession.

…

The next axiom is that professional officers who reach the top increment of the base level can be considered to be fully fledged in their calling and able to practise with minimal supervision.  By definition, they will be expected to participate in sufficient post-graduate study, seminars, conferences and the like to keep pace with the ongoing development which is a feature of every profession.” (Emphasis added.)

(It is noted that due to the recent Review of Specified Callings (P18 of 2003), reference by Negus C to Level 3/5 is now Level 4/6.)

25      I respectfully concur with the comments of Negus C.  It should be recognised that Level 4/6 encompasses 3 otherwise separate levels.  They are combined to enable the newly qualified but inexperienced professional to develop their skills and expertise over time.  At the top of that 3 level range, they ought to be autonomous, “fully fledged”, professionals, competent to perform with minimal supervision.  That is the context in which these positions are to be considered.

These Positions

26      Individual claims are required to be treated according to their particular circumstances, characteristics and history.  In respect of the position occupied by Mr Cardey, there is a lengthy history.  It is important in this case that the Respondent agreed to review the decision to downgrade the position and, following that review, maintained its decision to downgrade level of classification of the position.  The Applicant challenges that decision.  The other matter also relates to the downgrading of the level of classification, to positions said to be similar.

27      These claims do not relate to all medical scientist positions but to a particular group whose roster arrangements mean that they work after hours, without professional supervision.  They are isolated from their professional and line management supervisors when on night shift.  During that time when they perform after hours duty without supervision, the Applicant says that they are required to perform at a higher level than is generally to applicable medical scientists working day shift.  They have no immediate access to superior expertise and bear a higher level of responsibility for decision making and technical expertise than those medical scientists who do not perform after hours work in isolation. 

28      The shift arrangements allow for the medical scientists on day shift to work with peers at the same level and to refer to and be supervised by more senior, more responsible officers in respect of, in particular, urgent and more complex matters.  That supervision is not available to these officers when they perform night shift. 

29      The Duty or Shift Medical Scientists’ roster allows them to work some regular shifts where they are in contact with their colleagues and supervisors, such as the afternoon shift.  This enables training and familiarisation with developments in the profession and in the workplace generally.  However, for a very significant portion of their roster, they are isolated from other professional expertise.  In fact that is the basis upon which the position is established.

Additional Training

30      It is agreed that entry level Medical Scientist could not undertake after hours duty in isolation as these positions do.  Only an officer in the upper increments of Level 4/6 is considered for being rostered after hours because the nature of the work is autonomous.  They then receive additional training for a period of some months before being rostered after hours.  The evidence is that some Medical Scientists at the top of the Level 4/6 scale are not confident enough to work in isolation in this way, even after such training. 

The Job Description Form

31      The Current Job Description Form applying to the position which Mr Cardey occupies (Statement of Agreed Facts and Agreed Set of Documentation, Volume 1, Appendix 15) lists its Key Responsibilities as:

“Is the Duty Haematology Medical Scientist for PathCentre in routine haematology, coagulation and transfusion medicine working unsupervised after-hours.  Accountable for the rapid provision of results, their interpretation and validation.  Provides after-hours Haematology reference laboratory functions for all PathCentre laboratories.  Provides expert scientific advice to medical officers and scientists both, internal and external, to the Division and PathCentre.  Determines further evaluation of equivocal results.  Solves and troubleshoots technical problems which potentially prevent the provision of results.  Shift Relief (Haematology) – See Section 6”  (Emphasis added).

32      In section 4 – Statement of Duties for this position, the professional requirements are:

“Works as the Duty Haematology Medical Scientist for PathCentre in the routine haematology, coagulation and transfusion medicine sections of Haematology in the Clinical Pathology Division unsupervised after-hours to provide a 24-hour service to the Sir Charles Gairdner Hospital and Branch laboratories.  Applies approved procedures and practices, both routine and complex, to examine clinical specimens, in accordance with quality assurance standards.

1.1 Accountable for the rapid provision of results, their interpretation and validation.

1.2 Provides after-hours Haematology reference laboratory functions for all PathCentre laboratories.

1.3 Provides expert scientific advice to medical officers and scientists both, internal and external, to the Division and PathCentre.

1.4 Determines further evaluation of equivocal results.

1.5 Solves and troubleshoots technical problems which potentially prevent the provision of results.

1.6 Responsible for compliance with internal quality assurance programs and maintenance of accreditation standards as they apply to after-hours Haematology, Coagulation and Transfusion Medicine.

1.7 Participates in continuing scientific education and competency programs. 

1.8 Contributes to staff training as required.”

33      The Essential Selection Criteria for this position include the demonstration of substantial experiences in particular areas, including in the use of modern automated haematology analysers and computing systems, demonstrated use of analytical problem solving skills and the ability to work unsupervised and to provide team leadership.

34      It is noted that this Job Description Form does not refer to this position as supervising or managing any other positions, and does not indicate that any other positions report directly to the position, however it is interesting that the position is actually required to provide team leadership.

Other Evidence

35      Mr Cardey challenges that there are senior staff on call and says he works totally unsupervised after hours.  He says that the only on call staff that are available are Medical Scientists who can be called in to replace an employee who calls in sick or if the work load necessitates due to some major trauma.  He says that there is now a new laboratory assistant in haematology working until 1800 hours Monday to Friday under supervision and notes that the “manual” requires that the shift scientist supervises the laboratory out of hours.  Mr Cardey’s evidence also includes that the branch laboratory personnel contact him regarding equivocal results which require them to send a sample to him for further testing.  He says that the cross matching of blood with anti bodies requires skills and experience that the branch scientist is not trained to handle. He has given a range of examples of the types of circumstances in which branch scientists contact him for advice.

36      According to Dr Kent the position occupied by Mr Cardey is required to work unsupervised providing all the necessary services in the three areas of Haematology.  Dr Kent also notes that phone calls are frequently received from branch laboratories’ staff and that their problems are mainly resolved by this position, but this sometimes requires liaison with the on-call pathologist.  He says that there is also a considerable number of telephone calls from medical staff especially junior  medical staff at Sir Charles Gairdner Hospital who have problems with the interpretation of haematology results and the position is required to provide this expert advice.  He says that such direct contact with the branch laboratory staff and medical officers is extremely rare for normal hours Level 4/6 Medical Scientists.

37    Ms Brogden’s statement says that these positions do not meet the Level 7 descriptors in a number of aspects in respect of line supervisory responsibility, but meet other requirements for example: the “[p]rovision of advanced services for patients with acute conditions or complex needs in a field recognised and required by the industry, requiring advanced practical skills” (Respondent’s Statement, attachment 6 at para 31).  They provide an advisory service to the branch laboratories.  In respect of the position in the Department of Haematology, Fremantle Hospital: “the only out of hours referred work that is referred into the teaching hospital is antibody identification.  The only reason it is referred is not because the skills are not there but because the cost of retaining that testing in all the branch laboratories outweighs the need for the very few times that the service would be required and does not affect patient outcome” (Critique of the Reports by Dodd and Young, Statement of Agreed Facts, vol 2, 21, p2).

Statistical Analysis

38      Mr David Roy Taylor gave evidence of undertaking a statistical analysis of the tests performed by these officers between 7pm and 7am. (Statement of Agreed Facts, vol 3, 3.8)  I have considered those statistics and conclude that they have very little meaning for the purposes of this issue.  Bald numbers of test and the time they might take is of very little assistance in deciding whether there is a higher level of complexity and responsibility held by these positions.

Access to Pathologists on Call

39      There is also an issue of the actual degree of responsibility borne by these positions.  The Respondent says that there are other more senior professionals available to be consulted if necessary.  There is a pathologist available on call and other officers are contactable by telephone. It is clear, particularly from the evidence of Mr Cardey, that it would only be in extreme cases that a pathologist would be called in.  The Shift Medical Scientists are trained and competent to meet the great bulk of circumstances they encounter.

Scientific Work/Clinical Application

40      One of the particular areas of dispute is the line between the scientific work and its clinical application.  I find that an experienced, competent Medical Scientist undertaking this work will, upon finding particular results to particular tests, realise that there is an issue which needs discussion with the clinician.  Such an issue might be a reading which leads the scientist to believe that the test was undertaken in a way which may have interfered with the results, such as a blood test being taken from the drip arm of the patient.  This is a question of the scientist’s expertise in the testing process rather than involvement in the clinical situation.  Had I heard from clinicians I can readily assume that those clinicians would most vehemently object to any suggestion that the Medical Scientist is involved in giving advice which steps over the line into the clinical environment. 

41      Therefore whilst I accept Dr Kent’s evidence that the scientist has an important role to play in the monitoring of a patient’s condition by reference to a series of tests, and that junior doctors may welcome the expertise of a medical scientist, there is a line to be drawn.  That line is drawn on the basis of the testing, analysis and interpretation of the results, not in a clinical role.  As the Respondent says:

“Clinical interpretation of the results is the responsibility of the requesting clinician and, if required, a Pathologist”.  (Respondent’s Submission 5 March 2008, p 6)

Tertiary Hospital v Branches

42      The work performed at the laboratories concerned is said by the Applicant to be more complex than the work in the branch laboratories because the more complex cases of patients are dealt with in those tertiary hospitals.  It is also said that the tests concerned are more complex in terms of the validation of results and their analysis.  The Applicant’s witnesses say that the work of these laboratories, performed by the After Hours Medical Scientist is more specialised than the work performed in the branches, whereas the branches perform a broader range of tests.  The Medical Scientists working in branches are said to contact the After Hours Medical Scientists for advice and guidance in the areas of their expertise.

43      The Respondent says that the personnel at the branches are competent to perform the same tests, but for the sake of the most productive allocation of resources, particular functions are focussed on the laboratories where the After Hours Medical Scientists work.

44      I find that there is a broader range of testing undertaken by the branches and the complex cases and specialised testing undertaken at what might be called the tertiary laboratories.  In fact, Job Description Form recognises this, saying that the After Hours positions provide “after hours Haematology reference laboratory functions” and expert advice to medical officers and scientists both internally and externally.

Conclusions

45      In applying the type of factors which make up the Work Value assessment criteria, the question is whether the nature of the work of these positions is such that they exercise higher levels of skill and responsibility and that the conditions under which work is performed mean that their work value is at a higher level than those of Medical Scientists not working night shift.  If so, is it at such a higher level as to warrant the positions being classified at the higher level?

46      One of the weaknesses of the broad banded system, and in particular where there are 3 levels combined as in the level 4/6 is that within that 3 level classification, there will be positions which require different levels of responsibilities, expertise and involve different levels of complexity.  There will be some which will require the maximum responsibility, expertise and complexity whilst others may not meet those maxima in any or all of the aspects of the position.  All of those positions have the same classification.

47       It is to be remembered that the classification of Level 4/6 encompasses 3 separate levels, allowing for the development of the professional, from the fledgling to the autonomous. 

48      There are many health professionals who work in positions where they are required to work autonomously.  Social workers are a case in point.  One would expect that they would be fully trained and competent to do so or have access to others for expertise and support.  However this does not make them Senior Professionals as is required for classification at Level 7. 

49      The evidence leads me to believe that the Duty Medical Scientists – After Hours, the subject of these matters, perform at a higher level than their day shift colleagues.  They spend a not insignificant period of their total roster in circumstances where higher level expertise and supervision is not immediately available.  Therefore, the portion of time when they are required to take on a higher level of responsibility is substantial.  As noted by both Dr Kent and Mr Taylor, a purely statistical analysis of the number of tests performed does not in itself indicate the degree of complexity or level of responsibility held by these positions. 

50      I point out that it is not merely that they work autonomously which is the issue separating them from their colleagues.  Most significantly, it is that while they are working in professional isolation, they perform work and bear responsibility not expected of those working in a collegiate, supervised environment.  So it is not the circumstances under which they work per se which is the distinguishing feature, but that they bear a higher level of responsibility for the work of the laboratory, for the expert advice sought from them, both internally and externally, by clinicians and other laboratory personnel.  They have a higher level of decision-making.

51      This is confirmed by the fact that Medical Scientists are not considered suitable to fulfil the requirements of this role until they are at or near the top of the 3 level classification, with additional training.  Even then, some are not considered confident to perform in isolation.

52      Therefore, I conclude that the Medical Scientists who work in isolation, who perform at an advanced level and provide expert advice to clinicians and other laboratories, are performing work at a higher level than is contemplated by Level 4/6.  The expectation of this position is in effect that it will perform autonomously at a level where an officer at Level 4/6 would normally be able to refer directly to a Level 7 for further advice. The expectation is that the After Hours Medical Scientists will handle a great bulk of any matters that come to them.  The evidence of referral to higher level expertise such as pathologists is that it occurs very rarely.

53       Therefore, I find that the Duty Medical Scientist – After Hours position ought to be classified at Level 7.  In coming to this conclusion I note Ms Brogden’s evidence that a number of the criteria for the Descriptors for Level 7 are met, but others are not (Respondent’s Statement, attachment 6 at para 27 – 44).

54       Having reached this conclusion, I note, with reservations, the Descriptors for the various levels of Health Professionals arising out of the Health Professions Work Value Review (P18 of 2003).  This reservation is on the basis that the parties have not had the opportunity to argue the matter before me.  In those circumstances I draw no conclusions about those Descriptors and whether it is necessary for each aspect be met for every position.

55      The Health Professions Work Value Review of all of the specified callings was based on a claim of increased work value and medical science disciplines were generally part of that Review.

56      Reference has been made to the Descriptors for the Revised Classification Structure agreed between the HSU and the Department of Health (Statement of Agreed Facts, vol 1, 4).  This is a very instructive document and distinguishes between the different levels.  The opening paragraph reads:

“Prerequisite: Essential Academic Requirements for All Health Professional Specified Callings Positions.

The minimum essential academic requirements for Health Professional positions will be a three or four year tertiary degree as designated and required for each Specified Calling.

Where legislation requires Registration to practise, health professionals will require registration with the appropriate Registration Board”.

57      The document then goes on to deal with the requirements for each level.  Level 4/6 is described as follows:

“Level 4/6 provides for health professionals from entry level following tertiary graduation to the maximum point within the Level 4/6 incremental range.

Initially the work of a new graduate is subject to professional supervision and at entry level the health professional will deliver professional services and will make decisions that impact on the services they provide with formal supervision and guidance from senior health professionals.

As experience is gained, the contribution and the level of professional judgement increases and professional supervision decreases, until a wide range of professional tasks is capable of being performed under general professional guidance.  With experience and increased skill level, independent professional judgement will be exercised in recognising and solving problems and managing cases where principles, procedures, techniques and methods require expansion, adaptation or modification.

Having progressed to the maximum point within the Level 4/6 incremental range the health professional will be an autonomous practitioner.”

58      Level 7 is then described as being:

“LEVEL 7 Health Professional Progressional or 1st Promotional Point.

Level 7 is a senior health professional position.  The senior health professional will deliver professional services independently, seeking guidance as required.

Decision Making Standards

The position will make independent decisions that impact on practice at this level.  The senior health professional will seek guidance from higher level health professionals as required for decisions related to professional services and duties, including staff and student supervision. 

Communication Standards 

The position will require effective communication in clinical/professional, administrative and education aspects of the role and will require use of a high standard of negotiation, organisational and liaison skills with all staff and patients.

Knowledge and Skill Proficiency Standards

The position will require thorough professional knowledge of methods, principles and practice and skills across client groups and work areas, and may require other qualifications or training relevant to the particular practice setting.  The position will require professional development in practice areas as well as development in leadership and/or supervision and administration processes.

Professional Role Standards and Characteristics for a Level 7 Senior Health Professional Position

Emphasis on each criterion will reflect the focus of the individual position. 

• Provision of advanced services for patients with acute conditions or complex needs in a field recognised and required by the industry, requiring advanced practice skills.
• Coordination and evaluation of a recognised area of advanced professional practice for a region/area or teaching hospital.
• Provision of an advisory service in relation to advanced clinical/professional practice for a region/area or teaching hospital.
• Liaison with external agencies in the implementation and evaluation of advanced services.
• Undertakes research in areas of advanced professional practice.
• Provision of education/training for health professionals, staff and/or students.”

59      The document does not say whether each one of these 6 criteria are to be met for any particular position.  However reference to “emphasis on each criterion will reflect the focus of the individual position” could mean each position requires all of those aspects but that the focus on each particular aspect will vary from position to position. Alternatively, it may mean that each position will not necessarily contain each of those aspects but may contain a combination of some of them.

60      The issue has not been sufficiently aired before me for a definitive conclusion to be reached. However it is difficult to contemplate that there will be many, if any, positions at Level 7 which would meet all of those criteria.  The evidence of Ms Brogden was to that effect (Respondent’s Statement, attachment 6 at para 27 – 44).

61      The positions the subject of these matters have been demonstrated to have work value above that for Level 4/6.  Aspects of the Level 7 descriptors which are met include: that it delivers professional services independently; making independent decisions impacting on practise at that level; an appropriate and effective level of communication, negotiation and liaison skills.  There is also a requirement for additional training and skills development to enable work in isolation of the level required.  The Professional Standards and Characteristics include the provision of advanced services for patients with acute conditions or complex needs, involving advanced practice skills, the provision of an advisory service in relation to an advanced professional practice involving advice to clinicians and to branch laboratories.

62      Therefore, while I make no findings in this regard, these positions appear to meet the types of requirements set out in the Descriptors for Level 7.

Flow On

63      I hope to have made clear the reasons for these positions being appropriately classified at Level 7 is not merely that they work in isolation without immediate access to higher level expertise and advice.  That is not unusual for a qualified, competent, fully fledged professional at Level 4/6.  Rather it is the unique combination of circumstances applicable to the After Hours Medical Scientist who does not have peer support or supervision, but who also takes effective control of the laboratory after hours, is the referral point for more complex work undertaken by the laboratory in which he or she works.  It is my expectation that beyond the positions dealt with in these matters, such a confluence of circumstances would be most unusual, and flow-on unlikely.

64      Accordingly, orders shall issue that the appropriate classification for the positions the subject of these matters is Level 7.