TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

The Community and Public Sector Union
(State Public Services Federation Tasmania) Inc.
(T11561 of 2004)

and

Minister Administering the State Service Act 2000

Industrial dispute - more responsible duties allowance - work performed and level of responsibility - classification definition - position description - order issued

REASONS FOR DECISION

[1] On 28 June 2004, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc (CPSU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 (Department of Health and Human Services) arising out of the non-payment of an allowance to Robert Nicolson.

[2] The matter was listed for a hearing (conciliation conference) on 29 July 2004 and further listed for hearing on 24 August 2004. Mr R Miller appeared for the CPSU. Mr R Clegg appeared for the Minister, with Dr G F X McInerney.

[3] Mr Nicolson is a radiographer employed in the Department of Medical Imaging at the Royal Hobart Hospital. He is classified as a Professional Employee Level 1 as defined in the Community and Health Services (Public Sector) Award (the award).

[4] In 1994 a Level 3 position in the MRI section became vacant. Mr Martin Rush, then a substantive Level 2, was appointed to this vacancy on a temporary acting basis and was, as a consequence, paid a higher duties allowance. Mr Rush continued to hold this acting position for nine years, until being appointed on a permanent basis in February 2004.

[5] Between 1994 and 2002 a series of four employees undertook the role of the vacant Level 2 position previously occupied by Mr Rush. These employees rotated through various sections of the Department working in areas such as MRI, CT, Ultrasound, general and Angio. The position was occupied on an acting basis with the relevant employee being paid the appropriate allowance.

[6] In November 2002 Ms Lindy Whitton, the then incumbent in the acting Level 2 position, was appointed to a different Level 2 position on a permanent basis.

[7] Mr Nicolson, who was already qualified and accredited in MRI, and, in his view, was performing the same role as the previous incumbents in the acting Level 2 position, approached the Chief Radiographer, Mr Mottram, seeking payment of the allowance on the same basis as had applied previously. This request was formalised in correspondence to Mr Mottram dated 25 February 2003.

[8] On 26 February Dr McInerney, Director of the Department, responded as follows:1

"In response to your letter to Justin Mottram dated 25^th February 2003, regarding your temporary reassignment to a Level 2 position, please accept the following observations:

• While I understand that the Level 2 position in question has been filled on an acting basis in the past, departmental management has no obligation to repeat such an arrangement while dealing with wider establishment issues.

• With regard to MRI staffing, the only substantive position currently vacant is that of supervisor (Level 3), and management is currently seeking to fill this role. There is a possibility that the filling of this position will leave a Level 2 position vacant, and that would be subsequently advertised.

• Competence in MRI does not automatically make radiographers eligible for Level 2 status. I am thus unsure what duties you are referring to when you state that you are 'asked to perform extra duties'.

While we recognise you have a wide breadth of expertise and that you are a valuable member of staff, management have elected not to reassign you to a Level 2 position on such a short term basis. We trust you will be patient while we address what we believe are more pressing staffing issues."

[9] Mr Nicolson responded by letter dated 27 February, expressing dissatisfaction with this outcome, and, by inference, seeking reconsideration of the decision. No response was received.

[10] On 10 September 2003 Mr Nicolson again wrote to Dr McInerney in the following terms:2

"I refer to our previous correspondence regarding my request for higher duties as a Level 2 Radiographer in the MRI department. As you are aware, the substantive occupant of that position, Martin Rush, has been acting Level 3 in MRI for the past 9 years. During this time, 4 radiographers have fulfilled the subsequently vacant Level 2 role in higher duties.

I first wrote to the Chief Radiographer, Justin Mottram, in February 2003 to officially put on record my dissatisfaction at not receiving higher duties whilst performing all tasks required of the Level 2, whilst Martin is acting Level 3. Although you did reply to this letter, I found it to be an unsatisfactory response. I therefore sent you a second letter in order to clarify some issues and attempt to resolve the matter.

It has now been almost 7 months since writing the second letter to which I have received no response, and there has been no resolution of this issue. I am still very much aggrieved by the situation.

I am still performing all duties required of the Level 2 role, whilst Martin Rush continues acting as the Level 3 in MRI, so there is a position available to afford me the higher duties to which I qualify.

It has now been 11 months since these higher duties became available, since the last person receiving them vacated the role by obtaining a permanent Level 2 position elsewhere in Medical Imaging. It was at that time I first expressed my wish, verbally, to Justin, to obtain these higher duties, as I have been performing the duties of the position description since February 2002, and still am performing all duties necessary to qualify for them.

These Level 2 higher duties have been paid to all 4 radiographers who have consecutively occupied the same role in our department as I currently do. This goes back nine years to when Martin Rush originally vacated the Level 2 role to act as the Level 3, a situation which still exists today.

In your one and only response 7 months ago you stated that you would not assign me the higher duties, as resolution of the Level 3 position was imminent, which would result in the advertising of the permanent Level 2 position. You described the situation as short term and that you had other more pressing staff issues to address. However at the same time you did manage to organise Lindy Whitton's higher duties as a Level 3 to cover a period of only 6 weeks whilst Martin Rush was on vacation.

The processing of a higher duties claim is neither lengthy nor difficult and I do not see why this would unduly impact upon your time especially considering the value of maintaining a loyal, healthy, productive, efficient and dedicated work force.

I am enthusiastic about my role in the MRI department and I seek to be treated in a manner which is in keeping with past precedent, and to be afforded equal and just consideration for my contribution to the Medical Imaging department.

I am requesting a timely response to my letter as I wish to resolve the matter forthwith."

[11] There was also an inconclusive approach to the State Service Commissioner.3 However the matter was not resolved and was ultimately referred to the Commission.

[12] By way of remedy the applicant seeks the payment of an appropriate allowance during the period September 2002 until 17 July 2004.

Evidence

[13] Evidence was taken from the following witnesses:

For the applicant:

• Martin Mansfield Rush; Supervising Specialist in the MRI Department for the past ten years.

• Andrew Maurice Saunders; Supervisor Radiographer in charge of CT.

• Andrew James White; Senior Specialist Radiographer responsible for quality improvement and education within the Department.

• Robert Stuart Nicolson; the applicant.

For the employer:

• Lindy Lou Whitton; Level 2 Radiographer.

• Shane Francis Morgan, Level 3 Radiographer in charge of Angio and special procedures.

Award Definition and Position Description

[14] A Professional Employee Level 2 is defined in Clause 7 Definitions of the award as follows:

"Under broad policy control and direction, a senior professional practitioner who performs novel, complex or critical professional work, or performs a limited range of the duties of professional manager or professional specialist with general professional guidance. The work includes the formulation of professional or policy advice for senior management and may involve provision of such advice to senior executives in other Agencies, the private sector and the wider community. Normally there is limited corporate effect at this level as technical advice is often reviewed by more senior employees. The work includes the role of team or project leader requiring the co-ordination of the work of a number of professionals and/or other personnel who will not necessarily be in the same work discipline as the leader. Employees at this level may oversee the operation of a section comprising professional and/or technical personnel engaged in field, laboratory, clinical, production or operational work which may be organized on a geographical or functional basis.

Employees at this level are expected to have wide experience in their professional fields. They perform a variety of tasks of a novel, complex or critical nature, either individually or as a leader or member of a team. Direction is provided in terms of a clear statement of overall objectives with limited direction as to work priorities. A professional at this level working as a member of a team will have the skills and experience necessary to perform all the tasks undertaken by the team or to have the knowledge and judgement to seek and use specialist advice when it is required. Specialists require substantial or higher knowledge in a particular discipline or field and the exercise of independent professional judgement to resolve complex problems and issues."

[15] This, by necessity, is a broad based definition designed to embrace professional employees throughout the Department of Health and Human Services.

[16] The applicant submits that he performed duties consistent with the Position Description applicable to Specialist Radiographer - MRI Unit. This PD, rated by the Department as a Level 2 position, reads as follows:4

"Function

Responsible for performing basic imaging examinations and other specialised procedures, particularly Magnetic Resonance Imaging (MRI).

Primary Tasks

1. To perform basic imaging procedures.

2. To perform novel, complex and critical imaging procedures, exercising professional judgement within MRI.

3. To take a leading role in the supervision and training of less experienced staff performing duties within MRI, ensuring that acceptable contemporary professional standards are maintained.

4. To assist in the design and updating of protocols and duty guidelines for work practices performed within MRI, ensuring compliance with work practices.

5. Maintain an up-to-date knowledge of new techniques and advances within MRI.

6. Participate in Quality Assurance activities.

7. Deputise for the Senior Specialist in MRI as required.

Level of Responsibility

• To perform novel or complex imaging procedures in MRI, to facilitate patient diagnosis, clinical management and care, without supervision, to contemporary professional standards.

• Responsible for patient welfare and standard of care received, by using imaging equipment and associated accessories safely, avoiding causing hazards to themselves, other staff, patients and equipment.

• Responsible for implementation of the ALARA principles to achieve the optimum diagnostic result, by the selection of appropriate imaging equipment, technical factors and accessories.

• Maintain professional levels of patient care and comply with moral and ethical codes.

• To ensure the optimum diagnostic outcome of examinations performed by less experienced staff.

Direction/Supervision Received

The occupant operates with limited direction from the Senior Specialist in MRI, to ensure broad unit objectives and philosophies are maintained.

A high degree of independent professional judgement is expected in meeting the set objectives and in the resolution of novel or complex problems and issues in both specialist areas.

Selection Criteria

(I) Essential Qualifications/Requirements of the Position

(As prescribed by current Awards or otherwise approved by the Commissioner for Public Employment).

• Eligible for Registration in Tasmania by the Radiographers Registration Board.

(II) Desirable Requirements of the Position (knowledge, skills, experience and desirable qualifications)

1. Wide experience and competence in conducting a range of complex imaging procedures in MRI.

2. Knowledge of modern techniques and instrumentation in MRI.

3. Good communication skills.

4. Ability to handle the interactive relationship with the patient with tact, ensuring that the patient's privacy, dignity and confidentiality is maintained.

5. Ability to provide professional guidance and supervision to less experienced staff.

6. Significant degree of initiative and scientific interest."

[17] Mr Clegg submitted that this PD was out of date in that it had been replaced with a revised PD effective from July 2003.5

[18] From the evidence it would seem that there was a lack of awareness amongst the staff as to the application, or indeed existence, of these revised PDs. If there was any material difference, pertinent to this case, between the old and the new, the employer did not draw it to the Commission's attention. If the revised PD did in fact materially alter the expectations and requirements of persons subject to the PD, there would of course be an obligation on the employer to consult with those affected.

[19] From my own examination of the documents I conclude that, whilst there are changes in style and terminology, there does not appear any material difference in terms of duties, responsibilities and selection criteria.

[20] For these reasons, coupled with the fact that the revised PD did not come into effect until July 2003, I conclude that the original PD is the appropriate document against which the duties performed by Mr Nicolson are to be tested.

Were the Duties and Level of Responsibility Required of Mr Nicolson Consistent With That of a Professional Officer Level 2?

[21] Evidence of Mr Nicolson:

• At the time of Ms Whitton's promotion, I was the only radiographer trained in MRI with the necessary experience to be placed on the (MRI) roster.⁶

• As a consequence of the split shift arrangements in MRI there can be up to four hours per day when I was working unsupervised.⁷

• When on call or relieving Mr Rush during leave periods, I worked unsupervised.⁸

• There is nothing in the Level 2 PD that I did not do during the normal course of my work.9

[22] Asked whether he had been given any indication that his competencies were not at Level 2, Mr Nicolson responded:10

"Quite opposite to that in fact. I've had much positive feedback from all my supervisors. Mr Rush informs me that he would probably place me second after him in terms of knowledge in the area. I am used as the senior radiographer throughout the department and used as a senior shift CT radiographer."

[23] Evidence of Mr Rush:

• Mr Nicolson performed all the tasks identified in the Level 2 PD.¹¹

• Mr Nicolson has all the 'Desirable Requirements of the Position' as detailed in the PD and has the competencies that he requires of a person working at Level 2 under his control.¹²

• Mr Nicolson is totally in charge of MRI when he is 'on call'.¹³

• Mr Nicolson meets the Level of Responsibility requirements as outlined in the PD.¹⁴

• Mr Nicolson was competent in the MRI field to the level of the previous occupant.¹⁵

• To a limited extent Mr Nicolson provided training for Level 1 operators in MRI.¹⁶

• It is possible for a Level 1 radiographer to be on the roster and responsible for the MRI unit.

• Mr Nicolson performed his duties to a level consistent with his (Mr Rush's) expectations of a Level 2 Professional Employee under the award.

[24] Evidence of Mr Saunders:

• Mr Nicolson performed all the tasks identified in the Level 2 PD.¹⁷

• Mr Nicolson undertook the duties, responsibilities and functions of the position described in the PD to the level Mr Saunders expected of a Level 2 Professional Employee, and further, his level of competency was no less than others who had previously occupied the position and been paid an additional allowance.¹⁸

• A Level 1 Radiographer could also provide feed back in relation to protocols.19

• Whilst Mr Nicolson was involved in training of less experienced staff, his role was limited.20

[25] Evidence of Mr White:

• Mr Nicolson had a leading role in supervision of less experienced staff and student radiographers. He has highly developed skills as an educator or training facilitator.²¹

• Mr Nicolson meets all the Desirable Requirements for the Level 2 position and performed at no less level of competency than previous incumbents in the position.22

[26] Evidence of Ms Whitton:

• The main difference between Level 1 and Level 2 is that a greater supervisory and leadership role is expected at Level 2.²³

• Skill areas are assigned to the roster, rather than levels.²⁴

• A Level 1 Radiographer can be placed on the MRI roster.

[27] As to the difference between her former role and that of Mr Nicolson, Ms Whitton said:25

"THE COMMISSIONER: Ms Whitton, how was your role any different to that that's been performed by Mr Nicolson over the past couple of years?---I have acted as the level 3 in MRI so I've performed higher duties at a level 3 and as - for a brief time, as the chief radiographer. I think it would be fair to say that I have a greater role in training. I would have had a minor role in training Mr Nicolson and a greater role in training Erin Vidler although the major role is taken by the level 3 radiographer in that area. I had a large role in helping to rewrite the protocols for that area in conjunction with the level 3. Other than that I would say there was no difference apart from those issues."

[28] Later Ms Whitton clarified her evidence by stating that she was unaware of what Mr Nicolson did in relation to protocols.

[29] Evidence of Mr Morgan:

• Level 2 radiographers are often people with the ability to perform in several areas.²⁶

• There are no specific Level 2 positions on the roster.27

[30] Asked as to the requirements for a Level 2 position, Mr Morgan said:28

"MR CLEGG: What do you, in your opinion, professional opinion, what do you believe is required for a level 2 radiographer?---For a level 2; okay. I concede that in a level 1 radiographer you go from someone who is fresh out of school to someone who has progressed to an ability to work independently and basically has the skills to perform a procedure as the Director would like, and that goes from very beginning to that stage. I see a level 2 as being someone who can - is accepted as being - having the ability to perform these procedures but also has the ability to educate and to show leadership in how they handle themselves in that time and so I see the difference between level 1 and 2 as being someone who is good at doing procedures and who is also able to educate the junior staff and also to, by their example of how they present for work and how they deal with doctors and other specialists that come in - involved, that they are have the ability to deal with them at a more professional level than a level 1."

• Mr Nicolson had the skill set to operate at Level 2 but his leadership skills were not that expected of a Level 2 radiographer.²⁹

• Any concerns in relation to leadership capacity had not been brought to the attention of Mr Nicolson.30

Finding

[31] Stripped to its essentials, the only question to be determined is whether or not Mr Nicolson performed work which was consistent with that of a Level 2 radiographer, as defined in the award and supplemented with the appropriate position description.

[32] In this context I accept that there was no specific Level 2 position on the roster nor was there any requirement on the employer to appoint Mr Nicolson (or anyone else) to a Level 2 position.

[33] I also accept that what might have happened in the past is only relevant to the extent that it provides a point of comparison for the duties and level of responsibility exercised by Mr Nicolson. Past arrangements do not in themselves compel an employer to continue the same arrangements into the future.

[34] It is equally true that it is not open to an employer to allow and accept an employee to work at a higher level, and avoid financial recognition of the employee's contribution, simply by failing to make a formal appointment.

[35] It follows that the only consideration is the work performed by Mr Nicolson, not whether there was a designated Level 2 position on the roster, nor whether the employer chose to make a Level 2 appointment.

[36] In the absence of any submissions to the contrary, I have accepted the Position Description31 as a proxy for the award definition of a Level 2 Professional Employee.

[37] The evidence of Messrs Rush, Saunders and White points overwhelmingly to a conclusion that Mr Nicolson satisfied all the Level 2 requirements of the PD, and further, exhibited a level of competence similar to that of previous incumbents who had been paid a higher allowance on an acting basis.

[38] The only area of minor contention was in relation to the training of less experienced staff. Whilst the training role of Mr Nicolson in MRI was limited, the evidence of Mr White was that Mr Nicolson had a leading role in the supervision of less experienced staff including student radiographers, and had "highly developed skills as an educator and training facilitator".

[39] On close examination of Ms Whitton's evidence, she did not distinguish in any material sense the duties and level of responsibility in her previous role from that exercised by Mr Nicolson during the relevant period. It would seem that the only real distinction Ms Whitton drew was when she was acting in a Level 3 position, which is not relevant to this case.

[40] Mr Morgan acknowledged that Mr Nicolson utilised a skill set at Level 2, but had shortcomings in the area of leadership. There also appeared to be an under current concerning Mr Nicolson's capacity to "set an example". These issues were not put to Mr Nicolson in cross-examination and must therefore be discounted accordingly. In any event, if the employer held genuine concerns with this aspect of Mr Nicolson's performance, it should have been raised with him and appropriate measures taken to address any perceived shortcomings. This did not occur.

[41] I do not accept that the issues raised by Mr Morgan are of such a nature as to negate the overwhelming evidence which supports a conclusion that Mr Nicolson performed duties, during the relevant period, which were consistent with requirements of a Level 2 Radiographer. I find accordingly.

ORDER

Pursuant to s.31 of the Act, I hereby order that Mr Nicolson be paid an allowance consistent with that previously paid to Ms Whitton, for the period commencing when Ms Whitton vacated her previous role (approximately September 2002) until 17 July 2004.

The parties are to confer as to the appropriate amount of the allowance and commencement date, with recourse to the Commission as necessary.

Tim Abey
COMMISSIONER

Appearances:
Mr R Miller for The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr R Clegg for the Minister Administering the State Service Act 2000 (Department of Health and Human Services) with Dr G F X McInerney

Date and Place of Hearing:
2004
July 29
August 24
Hobart

1 Exhibit A8
2 Exhibit A10
3 Exhibit A11
4 Exhibit A3
5 Exhibit M2
6 Transcript PN 425
7 Transcript PN 442
8 Transcript PN 442
9 Transcript PN 404
10 Transcript PN 406
11 Transcript PN 79 to 100
12 Transcript PN 111, 112
13 Transcript PN 114
14 Transcript PN 118
15 Transcript PN 130
16 Transcript PN 179
17 Transcript PN 260 to 279
18 Transcript PN 283, 284
19 Transcript PN 293
20 Transcript PN 302
21 Transcript PN 324 and 327
22 Transcript PN 360, 361
23 Transcript PN 539
24 Transcript PN 543
25 Transcript PN 557
26 Transcript PN 585
27 Transcript PN 587
28 Transcript PN 597
29 Transcript PN 598
30 Transcript PN 606
31 Exhibit A3