DISPUTE RE CLASSIFICATION LEVEL OF ADVANCED SCOPE PHYSIOTHERAPIST

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00371

DELIVERED : TUESday, 6 May 2014

FILE NO. : PSACR 2 OF 2013

Applicant

AND

Minister for Health - The Minister for Health is incorporated as the board of the Hospitals formerly comprised in the Metropolitan Health Service Board under s7 of the Hospitals and Health Services Act 1927 (WA) and has delegated all the powers and duties as such to the Director General of Health

Respondent

CatchWords : Public Service Arbitrator – Matter referred for hearing and determination pursuant to s 44 – Permanent appointment – Level of classification – Fixed term contracts – Modes of Employment policy – Public Sector Standards – Employment Standard – Operational Directives – Health Professionals Work Value Review – Consent Order [2002] WAIRC 06639

Legislation : Public Sector Management Act 1994  s 3, s 34  Public Sector Standards, Employment Standard

  Public Sector Management (Breaches of Public Sector Standards) Regulations 2005

  Modes of Employment Policy  Department of Consumer and Employment Protection, 21 May 2001  cl 5, cl 6, cl 8

  Operational Directive OD339/11

  Operational Directive OD0386/12

  Operational Circular OP2103/03

  WA Health Services Union – PACTS – Industrial Agreement 2011  cl 9, cl 9.1(a), cl 9.1(c), cl 9.1(d)

Result : Application granted in part

Representation:

Applicant : Ms C Drew

Respondent : Mr M Aulfrey of counsel and Mr J Ross

Case(s) referred to in reasons:

Hospital Salaried Officers Association of Western Australia (Union of Workers) v Metropolitan Health Service Board [2002] WAIRC 06639

Reasons for Decision

1          The matter referred for hearing and determination is as follows: 

1. The applicant says that:

(a) Ms Jan Mountford, Ms Brigitte Tampin and Ms Jennifer Persaud (the employees) have been employed by the respondent on contiguous fixed term contracts of employment undertaking the work of Advanced Practice Physiotherapist at Level P4.

(b) The positions are properly ongoing and the employees are entitled to have a reasonable expectation of those positions being ongoing.

(c) The employees were engaged in those positions through a competitive merit selection process, however, the absence of clear evidence of such a process ought not to be an impediment to their being permanently appointed to such positions.

(d) The respondent ought to permanently appoint the employees to such positions in accordance with clause 9.1(c) of the WA Health Services Union – PACTS – Industrial Agreement 2011 and that their permanency be granted pursuant to their fixed term contracts, at Level P4.

(e) That the positions occupied by the applicants are properly classified at Level P4.

2. The applicant seeks orders:

(a) THAT the employees be permanently appointed to the positions pursuant to their fixed term contracts at Level P4.

(b) THAT the positions occupied by the employees are properly classified at Level P4.

3. The respondent says that:

(a) The employees have been correctly employed on fixed term contracts, but says their initial employment at Level P4 was improper.  There was no intention or expectation created that they occupied permanent positions; there was also no legitimate capacity or authority in the relevant decisionmaker/s for the employees to ever be employed at Level P4.

(b) The positions are appropriately classified at Level P3 and the applicant has not demonstrated a significant net addition to work value over and above that recognised in the review of health professional positions dealt with in application P 18 of 2003.

4. The respondent objects to the orders sought and seeks an order that the matter be dismissed.

2          The parties have prepared a Statement of Agreed Facts and have filed a substantial number of agreed documents.  Witness evidence has been received from Ms Janice Mountford, Senior Physiotherapist (Advanced Practice), Department of Neurosurgery Spinal Clinic, Sir Charles Gairdner Hospital (SCGH); Dr Brigitte Tampin, Senior Physiotherapist (Advanced Practice Physiotherapist), Physiotherapy Department, Neurosurgery Spinal Clinic, SCGH; Mr Ian Cooper, Head of Department of Physiotherapy, SCGH; Mr Jeffery Tapper, former Head of Department of Physiotherapy, SCGH; Mr Dan Hill, Secretary of the applicant Union; Dr Charles Roger Goucke, Staff Specialist for the Departments of Anaesthesia and Pain Management, SCGH; Professor Neville Knuckey, Head of Department of Neurosurgery, SCGH since 1995 and since 2003 concurrently Director of Neurosurgical Service of WA; Mr Gerard Hardisty, Orthopaedic Surgeon, Department of Orthopaedics, North Metropolitan Health Service; Mr Alan Reubenson, Director of Clinical Education (Physiotherapy), Curtin University; Ms Louise Giglia‑Smith, Advanced Practitioner Physiotherapist, Physiotherapy Department, North Metropolitan Health Service; Ms Jennifer Persaud, Advanced Practitioner Physiotherapist, Physiotherapy Department, SCGH; Ms Karen Lennon, Acting Head of Department of the Physiotherapy Department of SCGH in 2008/9;  Mr Richard Charles Clark, Senior Development Officer, Department of Health; Dr Amanda Ling, Executive Director, SCGH; Mr John Holland; Mr John Little Ross, Principal Industrial Relations Consultant, HIRS; and Mr Jeremy Sheppard, Senior Industrial Relations Consultant, WA Health Industrial Relations Service. 

3          The industrial instrument applying to the employment of the specified calling of Physiotherapist in the public health system is currently the WA Health – Health Services Union – PACTS – Industrial Agreement 2011 (the Agreement).  It is agreed that the employees concerned are public sector employees and are not public service employees (Public Sector Management Act 1994 (WA) s 3 and s 34). 

Background

4          In 2006, there was great emphasis on reducing patient waiting lists.  Senior members of the Department of Physiotherapy at SCGH promoted a new model of care which had had success in the United Kingdom.  This involved a highly experienced and qualified physiotherapist undertaking a clinic to manage referrals to particular specialists from general practitioners, so as to enable patients who would otherwise have to wait a significant period to see the specialist to be ‘triaged’, diagnosed, and a treatment pathway determined. 

5          A trial of this model was established involving patients referred to the Division of Neuroscience, Department of Pain Management, for a medical opinion regarding spinal pain disorders.  This was to be a trial for three months and funding, available for projects aimed at reducing waitlists, was obtained for this trial period. 

6          Due to the short timeframe available to get the project underway, Mr Tapper and Mr Cooper needed to quickly identify and engage appropriate senior physiotherapists to undertake the clinic. 

7          Ms Mountford was one of three such physiotherapists each engaged on part‑time, fixed term contracts for the trial period.  Ms Mountford commenced on 11 April 2006.  She continues, to this day, on fixed term contracts of approximately six months’ duration. 

8          In 2009, one of the physiotherapists in the Pain Management role resigned, and following a call for expressions of interest, Dr Brigitte Tampin was engaged, also on a fixed term contract of approximately six months duration on a part‑time basis.  She, too, continues today on a fixed term contract. 

9          Soon after the Pain Clinic trial was established, in late 2006, a similar role was established in the Orthopaedic Clinic, also on a trial basis, utilising outpatient reform funding.  Following a call for expressions of interest, Ms Jennifer Persaud was engaged on the first of a series of fixed term contracts. 

10       As the roles were temporary, at least initially, according to Mr Tapper, a judgment call was made as to the appropriate level of classification rather than await the lengthy process of having a classification determined by the Classification Review Committee (CRC).  As there was no formal position for the employment, the vacant position of Deputy Chief Physiotherapist at Level 9 (P4) was utilised.  None of the officers concerned actually performed the role of Deputy Chief Physiotherapist. 

11       The formal approval to create the positions of Advanced Practice Physiotherapist (APP), and to fill the vacant positions was given on 23 May 2010 and 3 June 2010 respectively, subject to the classification level being determined.  The classification assessment report and related documentation was submitted to the Whole of Health CRC, the respondent’s peak reclassification body on 3 August 2012. 

12       On 31 January 2013, the Whole of Health CRC finalised the creation of the APP position, determining the classification as Level P3.  The position was formally created on 31 January 2013.  Application PSAC 2 of 2013, which led to this matter, was filed on 19 February 2013. 

13       On 12 April 2013, the Health Services Union lodged supplementary material with the Whole of Health CRC requesting reconsideration of the level of classification to P4.  The Whole of Health CRC reconsidered the classification of the position, confirming the level as P3 in August 2013. 

ISSUES AND CONCLUSIONS

Terminology

14       It was clear from the beginning of the hearing that the employees concerned in this matter are not familiar with the intricacies and terminology relating to the formal creation of positions, the determination of classification levels and appointment of individual officers to permanency.  This is to be expected – they are highly experienced and qualified physiotherapists, not human resource management personnel.  There was confusion or a lack of clarity as to the distinction between a position being formally created (that is, becoming what was often referred to as a permanent position) and an employee being granted permanent appointment as opposed to being on a fixed term contract.  For the purposes of this decision, I will refer to the position of APP being created and to whether the individual employees ought to be granted permanency in their employment. 

15       There are three separate and distinct steps involved in the issues the subject of this matter;  firstly, the formal creation of the position, secondly, the determination of classification and finally, conversion to permanency of individuals in those positions.  The employer has decided to formally create the position and has done so, therefore that matter does not need to be addressed.  I will deal with conversion to permanency next, and lastly the level of classification. 

(1) Conversion to Permanency

16       The applicant seeks that Ms Mountford, Dr Tampin and Ms Persaud be permanently appointed to the APP positions which have now been formally created.  They say that their circumstances meet the criteria set out in the Modes of Employment Policy and the terms of the Agreement, as well as on the basis of fairness.  Each of the employees was engaged initially on a fixed term contract and they have continued to be employed on fixed term contracts of approximately six months’ duration up to now.  No permanent appointments have been made pending the outcome of this matter. 

17       The evidence demonstrates, and I find, that each of the employees continued to undertake work and to make appointments with patients and book periods of leave for periods going beyond the particular contract.  There were times when they continued to work following the expiration of a particular contract, in anticipation of receiving the next contract.  They often received and signed their contracts after the commencement date of the particular contract.  For Ms Mountford, this has been going on for eight years, for Dr Tampin and Ms Persaud for five years. 

18       In considering whether permanency should be awarded, it is appropriate to look at the terms of the industrial instruments which apply and to any other subsidiary legislation and policies and procedures. 

19       The Agreement sets out that subject to the provisions of cl 9 – Contract of Service, ‘the employer may employ employees on arrangements that are most appropriate in the circumstances’ (cl 9.1(a)) and that ‘the employer undertakes to employ employees on a permanent basis wherever possible’ (cl 9.1(c)).  Clause 9 is to be read in conjunction with the Consent Order in PSAC 15 of 2000, however, the Consent Order does not become a provision of the Agreement (cl 9.1(d)). 

20       The Consent Order ([2002] WAIRC 06639) requires the Public Health Sector agencies employing fixed term contract employees to review the positions occupied by employees and ‘where the positions are not related to a finite project or task then the agencies shall take steps to fill the position in accordance with the requirements of the Modes of Employment Policy issued by the Department of Consumer and Employment Protection in May 2001’ (cl 4). 

21       Clause 5 sets out a two‑step process for determining which positions come within the scope of this arrangement.  Step one requires a review of the history of the fixed term contract employee prior to the expiry of the current fixed term contract and where the position was clearly related to a finite project or task, to exclude the employee from further consideration.  Step two applies to those employees not excluded in step one.  The criteria require consideration of the employment history as to whether: 

(a) they have been continuously employed on a fixed term contract of service, or continuously rolled over on fixed term contracts, or employed on a series of fixed term contracts interspersed with periods of ongoing employment for which there is no formal documentation; at the same level performing substantially the same duties and by the same employing authority, for 12 months or more;

(b) the position is a genuine ongoing position; and

(c) the record of employment indicates that the position was filled by an open competition process at some stage for at least one of their fixed term contracts.  (Clause 5)

22       If all of the criteria at step two are fulfilled, the employment of fixed term contract employees is to be confirmed as permanent (cl 6). 

23       The Public Sector Standards under the Public Sector Management Act 1994 (WA) are to be followed, including that the position is filled by open competition and the Modes of Employment Policy must be adhered to otherwise the employee cannot be confirmed as permanent (cl 8). 

24       The Consent Order also sets out the following relevant definitions: 

Continuously employed: 

means employees who have had ongoing unbroken employment with the same employing authority and a reasonable expectation of an ongoing relationship.  Periods of absence corresponding to periods of accrued annual leave and sick leave entitlements would not be considered a break in service. 

External funding:

Means where funding for a project is clearly outside the consolidated fund or an intra agency grant, eg. Federal or private sector grants.  However, where external funding has been consistent on a historical basis and it can reasonably be expected to continue, the agency shall assess the percentage of fixed term employees that fulfil the criteria set out above that can be converted, subject to the agency’s operational needs and the expectation of continued funding…

Open competition: 

Is met where the position is advertised as widely as appropriate and selection followed a merit‑based assessment of skills, knowledge and abilities with the process being transparent and capable of review. 

Project:

Covers all situations where work is of a finite nature including staff employed;

• for seasonal work;

• on work which is substantially externally funded including multiple external funding;

• where employment is purely to cover a defined fixed period of leave of an existing employee;

• workers compensation absence;

• on a contract basis for the period of a project or multiple projects. 

25       I note that while the Consent Order does not become a provision of the Agreement, it is an Order of the Commission and is to be complied with.  The Modes of Employment Policy (the Policy) dated 21 May 2001 sets out ‘a framework for the conversion of entry‑level contract officers to permanent status and future management of fixed term contracts in the public sector’ (Agreed document 2.3).  The Policy notes, amongst other things, that ‘Agencies should employ staff on arrangements most appropriate for their particular needs’.  It sets out circumstances under which fixed term contracts are appropriate, including for ‘work on projects with a finite life, where funding is not guaranteed past a certain date’.  Under the heading of ‘Guidelines’ it sets out that ‘[p]ermanent employment should be used unless work is required for a specific task that has a limited duration or for which only short term funding is available.’ 

26       The Public Sector Standards under the Public Sector Management Act 1994 (WA) include the Employment Standard, effective 21 February 2011.  The respondent’s Operational Directive, OD339/11 (Agreed document 1.6) sets out that the Recruitment, Selection and Appointment Policy and Procedure was ‘developed to reflect changes to the Public Sector Management Act 1994 that pertain to the regulation of public employment.  The changes include the introduction of the Commissioner’s Instruction Employment Standard…’. 

27       The Employment Standard establishes four principles to be applied in this process.  The two most relevant are the Merit Principle and the Transparency Principle.  The Merit Principle is to be used when making employment decisions based on merit.  ‘Merit usually involves the establishment of a competitive field’ of candidates.  A Competitive Field includes ‘more than one person who meets the requirements of the vacant position; competitive fields are generally achieved through the advertising of a vacancy’. 

28       The next relevant principle is the Transparency Principle which requires decisions to be transparent and capable of review.  The Commissioner’s Instruction on Employment Standard:  Questions and Answers of May 2011 says that this means that ‘processes undertaken and decisions made can withstand independent scrutiny ... agencies should ensure that clear and concise documentation explaining the process and how the final decision was made is available’ (Agreed Document 1.3). 

29       Public Sector bodies need to advertise, but there are circumstances where this need not occur.  For example, the Operational Directive contains a flow‑chart setting out options of advertising and non‑advertising.  If it is considered that advertising is not appropriate, then a request needs to be made to HCN.  Acting, secondment and fixed term contract opportunities of less than six months, where there is no likelihood that these opportunities will be extended, are circumstances where advertising may not be relevant. 

30       Where the authorised delegate is satisfied that advertising will not attract a competitive field due to the specialist nature of the position, is another.  The authorised delegate in these circumstances is the Chief Executive of the respective Area Health Service (Agreed Document 1.6, 8). 

31       Therefore, in determining whether Ms Mountford’s, Dr Tampin’s and Ms Persaud’s employment ought to be converted from fixed term contracts to permanency, I find that the criteria set out in the Consent Order, supplemented by the Modes of Employment Policy, and the Operational Directive OD339/11 informed by the Employment Standard, set out appropriate criteria and definitions.  The criteria relevant to this matter include: 

1. Continuous employment through a series of fixed term contracts, interspersed with periods of ongoing employment for which there is no formal documentation; at the same level performing substantially the same duties, for 12 months, or more;

2. Continuous employment includes ‘a reasonable expectation of an ongoing relationship’;

3. The position is a genuine ongoing position;

4. The position was filled by an open competition process at some stage;

5. Open competition means the position being advertised as widely as appropriate and selection followed a merit‑based assessment of skills, knowledge and abilities, with the process being transparent and capable of review, that is, ‘the processes undertaken and decisions made can withstand independent scrutiny.’ 

Ms Mountford’s Recruitment

32       Mr Cooper contacted the Schools of Physiotherapy at Notre Dame and Curtin Universities to alert them to the opportunity for a suitably qualified physiotherapist to assist with the initial trial, for three months, of the Pain Clinic role (exhibit A5 [8]).  Mr Cooper says Mr Tapper contacted Senior Physiotherapists in all metropolitan hospitals, and the opportunity was also circulated to all physiotherapy staff at SCGH, which at the time was approximately 58 FTEs. 

33       Mr Tapper says that ‘[d]ue to the short time frame for wanting an appointee and the short duration of the contract, the successful applicant was sought via a ‘head hunting’ approach whereby suitably qualified staff around Perth were contacted via phone to explain the position and invited to forward an expression of interest.  There was more than one interested candidate’ (exhibit A3 [4]). 

34       There was no formal interview process.  Ms Mountford said she had an informal interview with the Head of Pain Management.  There are no records of the recruitment process.  Ms Mountford commenced a three and a half month contract on 11 April 2006 and has, as noted earlier, continued since then on contracts of six months or less until now.  There is no evidence that she has, since early 2006, been required to submit an application or expression of interest in respect of these contracts. 

Dr Tampin’s Recruitment

35       In 2009, Dr Tampin was told by Ms Mountford that one of her colleagues had resigned and that Karen Lennon, then Acting Head of Department of Physiotherapy, was seeking expressions of interest for a 0.2 FTE at the Neurosurgery Spinal Clinic.  Ms Lennon’s call for expressions of interest was by email sent to ‘SCGH, Physiotherapy Staff’ on 13 March 2009 (exhibit A4 appendix 11).  It was headed ‘EOI L9 Comprehensive Spinal Clinic 5 months contract from 1 April 09’.  At least three others expressed interest, including Ms Giglia‑Smith, Mr Clark and Mr Reubenson.  The call for expressions of interest was circulated to persons other than SCGH staff who had previously expressed interest in the Orthopaedic Clinic position and this was the basis for, at least, Mr Reubenson being informed of it (exhibit A2 Attachment 1).  Dr Tampin commenced on 16 April 2009 in a contract until 4 September 2009, being four and a half months.  She has continued on contracts of six months or less since then. 

36       There is no documentary evidence as to the selection process for this contract. 

Ms Persaud’s Recruitment

37       Ms Persaud became aware of a call for expressions of interests for a three month project post at SCGH being for a Consultant Physiotherapist at Level 9 (HSU P4) within Orthopaedics.  Ms Lennon sent an email to SCGH Physiotherapy staff dated 11 February 2009 headed ‘L9 Consultant Physiotherapist Orthopaedic Triage Project’.  The email noted that ‘[t]he project would run over 3 months’ and that the timeframe for responses was short, to be by 13 February 2009, that is two days, because ‘there is a need to have someone working on the project as soon as possible’ (exhibit A6, Attachment IVa). 

38       There was no interview process.  Expressions of interest were assessed on the documentation submitted.  At least three others besides Ms Persaud expressed interest in the position.  Ms Persaud commenced on 3 March 2009 on a fixed term contract which expired on 25 May 2009 (just under three months).  She has continued to work in the position on contracts of six months and less since then. 

Project v Ongoing Role

39       The evidence makes clear that when the APP roles were first undertaken, they were on a project basis.  They were subject to regular review and business cases were put forward on a regular basis to secure funding.  Funding was initially from specific sources aimed at reducing waitlists and having patients attended to more quickly than the then current model of care.  As this was a new model of care, and might have been seen as intruding upon the traditional role of medical specialists, support was necessary from a range of sources including those medical specialists who would normally have seen the patients without the physiotherapist being interposed in that situation.  The evidence demonstrates that the role in the Orthopaedic Clinic was in jeopardy in March 2010 as a number of surgeons were not entirely supportive of the physiotherapists’ then role (exhibit R4, tab 12, documents 27 and 28).  The Minutes of the Meeting of the Orthopaedic Triage Clinic of 31 March 2010 suggest that the trial was to conclude and the roles wound up from the end of June 2010.  They include ‘JP (who I conclude is Jennifer Persaud) and LGS (who I conclude is Louise Giglia‑Smith) agreed it would be difficult to return to their previous employment at such short notice and the contract extension would be required to finish off the project.  All agreed that the position needed to continue to the end of June.’  The role was to be redefined from March 2010 if the Clinic was to continue in its then trial form.  However, Ms Persaud says that in fact, it continued as before subject to her undertaking what she described as ‘work‑based learning’ regarding paper triaging to satisfy the surgeon who had been performing this role (ts 116).  She also says that two surgeons who had not been supportive of continuing with the model had left soon after, and that she spoke individually with orthopaedic surgeons and obtained their support for its continuation and for their work (ts 126). 

40       I also note that Ms Persaud sent an email to Mr Hardisty on 10 November 2010 headed, ‘OTC continuation?’  I believe ‘OTC’ is reference to the Orthopaedic Triage Clinic.  Attached to the email was a ‘Triage Clinic Report for Surgeons October 2010’ and the email contained a statistical summary of patient referrals.  The email goes on to say: 

Important!

Mine and Louise’s contracts are due to expire on 24.12.10.  I wondered if you wished to continue with OTC?  If you and the participating Surgeons agree to continue I will need to raise paperwork for contract extension asap so please would you advise further? 

(exhibit R4, tab 12, document 31)

41       The Request to Fill Vacancy form, along with the Request to Appoint (Temporary) form, were submitted for the next contracts from December 2010.  They included the reason for the request to fill the vacancy as being: 

Advanced Practice Triage post in Orthopaedic Clinic – further 6 months trial proposed of revised service delivery model…

Instead of pursuing permanency at this time we have modified the clinic service with greater governance from the orthopods and increased clinical consultancy by Advanced Practice Physio post.  As such we, Mr Hardisty, and the CSU would like to trial a further 6 months under this revised model and reassess effectiveness again. 

(exhibit R1, tab 3, document 7)

42       As noted earlier, formal approval to create the positions was then given on 23 May 2010 and 3 June 2010, subject to the determination of classification. 

43       From 30 May 2011 to May 2013, Request to Fill Vacancy forms were submitted six‑monthly for ‘further extension required to temp contract as we still await the classification determination from HCN for similar posts in comprehensive spinal clinic post to be determined prior to advertising’ (exhibit R1, tab 3, document 8 for 30/5/11 to 9/12/11; document 9 for 9/12/11 to 18/6/12; document 10 for 18/6/12 to 30/11/12, and document 11 for 3/12/12 to 10/5/13).  From 2013, reference to ‘HCN’ changed to ‘Health CRC’ (exhibit R1, tab 3, document 12 for 11/5/13 to 11/10/13 and document 13 for 11/10/13 to 31/12/13).  By this time the matter was before the Public Service Arbitrator. 

44       Mr Tapper’s evidence confirms that the employees were aware of his intention to advertise the position once the classification process was finalised (exhibit A3 [36]) and that they were not eligible for permanency was always made clear (exhibit A3 [37]).  I also note an email from Dr Tampin dated 14 May 2010, headed, ‘Renewal of contract’, in which she queried whether her contract would be renewed or the position would be advertised.  Mr Tapper responded, copying in Ms Mountford, as follows (formal parts omitted): 

Approval received this week to advertise posts for permanent fill.  Both pain clinic portion (0.6 FTE Jan) and my cost centre portion (0.6 FTE you and Claire) have been sent to HCN to prepare advert. 

They are each under different post numbers and I have requested that they be advertised at the same time.  However Pain got theirs in 1 week earlier so there is a chance they will be advertised separately. 

The next issue is whether HCN accepts the level 9 or P4 pay level for these ground breaking posts.  So I am waiting to see if goes ahead without a fight. 

The usual recruitment process time is about 2 months. 

This implies that an extension to contracts would be sought to cover any gap till permanent appointees can commence.  If you all are applying, and were successful, then we would simply transfer from temp to permanent as soon as the usual appeal period had lapsed post submitting the selection paperwork to HCN. 

A break in service is not recommended in July as it would re‑set your accrued cumulative leave and long service leave to nil.  You would also have to be paid out entitlements for any annual leave owing.  You would also potentially have to complete all new paperwork again.  Better to renew and just take leave – paid if you have or unpaid if you have none left. 

(exhibit A1, attachment 2) (see also ts 45 and ts 55)

45       Although Ms Persaud did not receive a copy of this email, she gave evidence that Mr Tapper spoke to her and explained that the positions were still temporary.  ‘The contracts were temporary because they were used as a device while they were waiting for the position to be created so that we could go to permanency and get classification’ (ts 124). 

Do the circumstances of Ms Mountford, Dr Tampin and Ms Persaud meet the requirements for conversion to permanency? 

46       In applying the various criteria from the Agreement, the Consent Order, the Modes of Employment Policy, the Employment Standard and the Operational Directive, I note the following:

1. The circumstances of each of these employment arrangements started out as being on finite projects, which were subject to review and refinement.  They were initially subject to project based funding but after a time, were funded from the Department’s operational budget.  Therefore, by the time the decision had been made that the positions would be formally created and be truly ongoing, in 2010, the situation had changed from them being finite projects to being genuinely ongoing positions, albeit not yet formally created.  They were formally created on 31 January 2013.  The fact that the situation changed over time is important in respect of other criteria. 

2. The employees have been continuously employed since their initial short term contracts, on a series of fixed term contracts interspersed with periods of ongoing employment for which there was no formal documentation, or for periods where the documentation was formalised after the contract had commenced.  They have been engaged on work of essentially the same nature, subject to the development and refining of the roles over a number of years. 

3. While they might have had a genuine hope of ongoing employment fed by the continual renewal of their contracts, it could not be said that the employees concerned could have had a reasonable expectation of an ongoing employment relationship, particularly for the whole of the arrangement.  Mr Tapper made clear to all three employees, either by email to Dr Tampin and Ms Mountford of 14 May 2010 or by conversation with Ms Persaud, that they would ultimately need to apply for the positions, once the positions were created and classified, and he adverted to the prospect of their not being successful.  There was nothing within his communications with them which would suggest they could anticipate automatic acceptance into these positions.  Unfortunately, what was not foreseen was how long the process would take.  That lack of timeliness is unfair to the employees concerned but does not overcome the problem of them not having a reasonable expectation. 

4. Were the positions filled by open competition?  The various policies et cetera recognise that open competition may be as little as there being more than one candidate, and that in appropriate cases such as where specialist expertise is required, advertising may not be necessary.  However, it needs to be remembered that when the employees were initially appointed, these positions were known to be for short term projects.  In Ms Mountford’s case, it appears that a ‘head hunting’ approach was taken, although a number of organisations were contacted to advise them of the availability of the position.  There is no transparency to the process as there are no records and there was no real interview process.  This was for a trial of a new model of care, for a contract of less than six months.  Dr Tampin responded to a call for expressions of interest for a five month contract.  There are no records available of an interview process or of any selection process.  Ms Persaud responded to a call for expressions of interest with only a two day response time.  This was for a ‘project’ and was for three months. 

47       Therefore, I find that the positions were not truly filled by open competition following a merit‑based assessment which was transparent and capable of review.  Nor did the employees have a reasonable expectation of an ongoing employment relationship beyond the time necessary for the formal creation, classification and advertising of the position. 

48       In those circumstances, the employees do not meet the criteria for permanency.  Given the length of time they have undertaken these roles, their significant input to the creation and development of a new model of care, this may seem unfair to them.  However, fairness must be viewed objectively, not merely from their perspective.  The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) give a right to appeal against an appointment process.  Where there is a very short term contract or project as the initial vehicle for employment, then an unsuccessful candidate is unlikely to bother to challenge that process.  However, the process is there to protect the interests of all individuals concerned and the system, for long term or permanent appointments.  There may be others who would have applied for the positions had they been advertised for a permanent appointment, or for a longer fixed term contract, with a reasonable response period, but who did not do so because the positions were promoted as being for brief periods, with no indication of longevity. 

49       Accordingly, the matter in so far as it relates to permanent appointment will be dismissed. 

(2) Level of Classification

50       The parties have dealt in some detail with the position and title as to whether it is Advanced Scope or Advanced Practice Physiotherapist.  I note that the Job Description Form which has been established is for an Advanced Scope Physiotherapist, however, I make no comment on the appropriateness or otherwise of either title.  The issue here is the level of classification. 

51       I note the terms of the Job Description Form and its essential selection criteria in particular.  The job description form provides the following main duties: 

1. PRIME FUNCTION / KEY RESPONSIBILITIES:  Provide expert consultation, clinical assessment and a triage function for patients referred to the relevant medical consultant’s clinic. 

2. Provides expert consultation, clinical assessment and a triage function for patients referred to the relevant medical consultant’s clinic. 

3. Orders further diagnostic assessment in accordance with best practice protocols/pathways. 

4. Makes independent decisions to determine an appropriate treatment plan to meet the patient’s needs and optimise patient outcome, including referral for further medical/surgical assessment, or other treatment within the health service or community services. 

5. Liaises with Heads of the relevant medical departments and Physiotherapy to evaluate the operation of the Clinic, identify service development needs and manage implementation of required changes. 

6. Provides expert advice and education, to management and clinical staff within Sir Charles Gairdner Hospital and to external agencies involved in delivery of care. 

7. Management of interfaces with referring GPs, allied health services, waiting list managers and surgeons, and medical practitioners including negotiation on management plans. 

8. Maintains accurate and confidential patient records supported by developed clinical governance policies and processes. 

…

52       The selection criteria for the position contains the following essential minimum requirements: 

1. Eligibility for full registration with the Physiotherapist’s Registration Board of WA. 

2. Possession of a relevant Post Graduate Qualification, such as Manipulative(Musculoskeletal) or Sports Physiotherapy. 

3. Expert relevant clinical experience, knowledge, and demonstrated advanced skills in the physiotherapeutic management of patients within the allocated specialty area.

4. Demonstrated ability in service planning and in the design and implementation of service changes. 

5. Demonstrated highly developed communication skills including negotiation and liaison experience with external providers such as GP services. 

6. Demonstrated ability to work autonomously and in a team within a complex clinical setting. 

7. Demonstrated involvement in ongoing clinical and professional development, quality improvement and research activities including reporting on key performance indicators. 
…

53       In February 2005, as part of the Health Professionals Work Value Review (P 18 of 2003) an Introductory Paper was prepared, along with Work Value Submissions for each of the Specified Callings, including for physiotherapy.  The Work Value Review covered changes to those professions individually and as a group over the 15 years from October 1989, that is until 2004.  The Introductory Paper makes reference to the development of alternative models of care, to the change to a team based approach, and the change in medical referrals then requested by general practitioners and other medical professions was no longer a prescribed treatment of an already‑diagnosed condition (Introductory Paper [2.1.1], Agreed Documents 4.1, tab 1A). 

54       The Work Value Submission on behalf of the Profession of Physiotherapy dated April 2005 foreshadowed the creation of the clinic role the subject of this matter.  It said: 

The Head of Sir Charles Gardiner Hospital Pain Clinic is currently proposing a more developed triage role for the Physiotherapist in the neurosurgical, orthopaedics and pain outpatient clinics.  Much like the role practised at the Austin Hospital in Melbourne, this has great potential to positively affect waiting lists in these clinics and improve patient management. 

(Agreed document 4.1, tab 1B, 135)

55       This case is not about whether the Health Professionals Work Value Review encompassed the level of work now being performed by the APP or whether the role has developed since.  The Health Professionals Work Value Review Introductory Paper and the individual profession papers dealt with changes across the profession and in particular professions.  The changes that occurred in each profession were not the same.  Those documents did not determine the level of classification.  They were generally descriptive of overall changes to the professions.  The classification structure remained as it was but there was a consequential increase of level of classification on account of work value changes.  The level of increase in the classification was not dealt with in those papers. 

56       This case is about where, within the classification structure, this position falls and about what level the work value of the position attracts.  It is not a claim of increased work value. 

57       These positions did not exist at the time of the work value review, although they were foreshadowed.  The actual role and responsibilities was established after the review documents were completed and have since been refined.  They were established as a trial and that trial has proven successful, all of which has occurred since the work value assessment. 

58       As to the actual role and duties, the evidence of the applicant’s witnesses has been most helpful and I accept, in particular, Mr Cooper’s and Mr Tapper’s evidence.  Accordingly, I find that the scope of this role includes: 

1. Triaging patients.  This is not an assessment as to urgency or priority as might be undertaken by a registered nurse in an emergency department, prior to the patient being assessed and diagnosed by a doctor.  The APP is the first point of contact for patients already on the waiting list.  They have come onto the waiting list by a referral from, for example, their general practitioner who might simply have referred for diagnosis and treatment.  The APP generally assesses and makes the first diagnosis of patients and decides on appropriate treatment in most cases.  Under the previous model, all of the patients on the waiting list would need to see a consultant surgeon.  In the APP model, this has been reduced to about 25%.  The APP is responsible for deciding not merely the physiotherapy treatment, but whether the patient may benefit from surgery and usually in consultation with the patient and with the surgeon, refers them in that direction where appropriate.  Of the remainder of patients, they may be diagnosed and treated or referred elsewhere including back to their GP, with recommendations or no treatment required. 

2. The APP has authority to discharge the patient back to the referrer without consultation with the surgeon. 

3. The distinction between this role and that of a P3 position is that the P3 Physiotherapist treats as a physiotherapist.  The APP assesses and treats or refers or determines the treatment pathway in substitution for an assessment by the consultant.  This is the context in which it is a medical substitution role. 

4. The APP has responsibility for patient care.  This is part of the reason why some surgeons were rightly concerned in March 2010 about the APPs seeing new patients.  Ultimately this was resolved after Ms Persaud was supervised for a short time as she undertook the initial paper triage of new patients previously undertaken by a consultant.  It appears from other documents that Ms Mountford also undertook this initial triage in consultation with surgeons.  Ultimately, the full scope of the role continued to develop.  The concerns of the surgeons demonstrates why this role ought to be considered to be a high level one, where a physiotherapist is undertaking work without the previous level of involvement of consultants until a later stage in the patient’s progress through the system, if at all. 

5. The APP also refers for a variety of assessments and investigations which other physiotherapists do not do. 

59       These are reasons why the Job Description Form appropriately provides for expert consultation, clinical assessment and triage function.  The position makes independent decisions beyond those normally required of P3 Physiotherapists.  It is why the essential minimum requirements include possession of a relevant Post Graduate Qualification.  The selection criteria for a position:

must correlate directly to the competencies required to undertake the position. … A field of applicants for a position may not be inappropriately restricted by the inclusion of unnecessary requirements for formal qualifications and/or professional registration or other unnecessary requirements in the essential selection criteria. 

(Operational Directive OD0386/12, 14 August 2012, Agreed Document 6.9)

60       This is a position with a very high level of expertise and responsibility, and a post graduate qualification could not be included as an essential requirement unless it were essential. 

61       The classification descriptors ‘identify the characteristics of positions at each classification level and will assist in defining the key responsibilities and summary of duties for each position’ (emphasis added) (Operational Circular OP2103/06, 19 September 2006, Agreed Document 2.5).  These descriptors assist in determining, they do not determine, the level of classification of a position.  They cannot be determinative because each position is a unique combination of elements.  The descriptors will provide an indicative level.  Also, they cannot require, for example, an expert clinical position to also have supervisory and research responsibilities where those things do not fit within the required role. 

62       As with position creation and many other procedures with the human resource function, these descriptors are an aid to ensuring a consistent and regularised approach.  They are not an end in themselves.  In the public health system, the end is the care of the patient and the processes and procedures are set up to regularise and regulate the way the system meets the needs of the patients, hopefully, not the other way around. 

63       Therefore, where the requirement for a post graduate qualification is set out in the essential selection criteria and set out in the Knowledge and Skill Proficiency Standards of the classification descriptor, it reflects the high level of expertise required of this position. 

64       I note that, particularly in the early stages of the development and establishment of these clinics, planning and direction of service delivery as well as higher order communication and negotiation skills would have been required.  This is not likely to have continued to the same extent as during the initial and testing stages of the positions.  However, the classification descriptors for higher level positions are heavily weighted towards management roles.  Given the time during which the classification descriptors were developed and that this role is new and clinically based, the descriptors need to be read taking account of the requirements of the position and to fit the position, rather than exclude it. 

65       I find that while the role does not have the same level of responsibility as the Nurse Practitioner, who has limited prescribing rights, this role is the most comparable within the WA Public Health Sector. 

66       I am reluctant to make any formal comparisons with positions outside of the WA Health Professionals area as there is no evidence that otherwise comparable positions have been subject to a minimum rates adjustment process or have had their work value otherwise assessed. 

Flow‑on

67       As noted earlier, this is not a claim arising from changed work value.  Therefore the issue of flow‑on, while important, does not have the same impact.  However, I appreciate the concerns expressed about flow‑on potential.  This is a new role with a large potential for growth.  A role that truly acts as a medical substitute, achieving a number of system‑wide benefits, for speedier resolution for patients, at lower cost to the system and with the added benefit of career development within the profession, may have real potential for the future across a range of areas and professions.  The test will ultimately be whether any positions claiming the P4 level are justified on their own merits.  However, it is not a ticket for P3 positions generally to be reclassified to Level P4. 

68       In all of those circumstances, I am satisfied that the position of Advanced Practice Physiotherapist in the Pain Clinic and in the Orthopaedic Clinic, as undertaken by Ms Mountford, Dr Tampin and Ms Persaud, ought to be classified at Level P4.