T12631
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, Tasmania No. 1 Branch The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (T12631 of 2006) and Minister Administering the State Service Act 2000
Industrial dispute - meaning of "allied health professionals" - forensic scientists - probation and parole officers - professional employees in offender services - leave reserved - no extra claims - finding REASONS FOR DECISION [1] On 28 March 2006, the Health Services Union of Australia, Tasmania No. 1 Branch and The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the HSUA and 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 relating to the application of the Tasmanian Public Sector Allied Health Professionals Industrial Agreement 2005 to certain occupational groups employed within the Tasmanian Public Sector. [2] This matter was listed for a hearing (conciliation conference) on 11 April 2006, for preliminary issues on 1 May 2006, inspections on 22 May 2006, and for hearing on 29 May, 30 May, 19 June, 12 July, 18 July, 9 August and 17 August 2006. Mr T Jacobson appeared for the HSUA, Mr M Johnston appeared for the CPSU and Mr P Baker and Ms J Fitton appeared for the Minister. [3] On 19 December 2005 the Tasmanian Public Sector Allied Health Professionals Industrial Agreement 2005 (the HP agreement), was approved.1 This agreement delivered significant salary increases, including the notion of "pay parity", together with other benefits, to "Allied Health Professionals" (HPs) in the Departments of Health and Human Services, Justice, Education and Police and Public Safety. [4] The initial dispute notification sought a determination that certain occupational categories be defined as Health Professionals and that the terms of the HP agreement apply. [5] This notification was subsequently amended. The applicant unions now seek that "the Commission determine if the occupational groupings listed in this application are in fact Health Professionals and are therefore subject to Clause 35 of the Public Sector Unions Wages Agreement 2004 and the claim made by the CPSU and HSUA on behalf of these occupational groups". [6] The occupational groups, the subject of this application are: · Forensic Scientists in the Department of Police and Public Safety; · Probation and Parole Officers in the Department of Justice; · Professional staff employed in Offender Services in the Department of Justice. [7] The case occupied some 10 sitting days, involving inspections, extensive witness evidence and comprehensive submissions going to both preliminary and substantive issues. Preliminary Issues [8] In a decision dated 29 April 2004, Leary P approved the Public Sector Wages Agreements Nos. 1 and 2 of 2004 (the wages agreement).2 This agreement, which has application to the wider public sector (with some exceptions), delivered, inter alia, a cumulative salary increase of 14.75% over the life of the agreement. This agreement has, up to this point in time, applied to employment categories the subject of this application. [9] Relevantly, the wages agreement contains two clauses that were the subject of debate in this matter. They are:
[10] Mr Baker submitted that the pursuit of the claim before the Commission was a breach of the No Extra Claims commitment and should not go forward on this basis alone. He said:3
[11] And later:4
[12] Further, Mr Baker said no direct approach had been made to DPEM.5 [13] Mr Baker acknowledged that ultimately the HP agreement covered HPs outside DHHS. He submitted that this had to be seen in the context of an intensive industrial and media campaign. He said:6
[14] Mr Baker acknowledged the existence of a chain of e-mail correspondence immediately prior to the registration of the HP agreement. This correspondence did not, in his submission, diminish the Government's consistent position in relation to these claims. [15] Further, the unions made no reference to any outstanding issues during the registration process. To the contrary, the unions' submissions suggested that the issue of coverage had been dealt with. Mr Baker submitted that the failure to refer to these outstanding issues was contrary to the "duty to ensure there is full and frank disclosure" in proceedings before the Commission. [16] The unions' response may be summarised as follows. [17] The leave reserved for HPs in the wages agreement was expressed in the broad and there is no basis for it to be read down by limiting application only to HPs employed in DHHS. [18] The claim was formally lodged on 7 July 2004 and applied to all HPs, both inside and outside DHHS. An extract from this claim document reads:7
[19] On 23 December 2004 the unions lodged with the Minister comprehensive classification standards. These included standards for Community Corrections Officer/Child Family Service Worker8; Forensic Scientist9 and Social Worker10. [20] The covering letter to DHHS enclosing the above classification standards contains the following reference:11
[21] A union Health Professional Update dated 10 October 2005 contains the following reference:12
[22] On 30 November 2005 the CPSU wrote to the Director, Industrial Relations (Mr Willingham) in the following terms:13
[23] It is not clear whether the Government responded to this correspondence. However on 9 December 2005 Mr Willingham commenced a chain of e-mail correspondence, which is reproduced in full below:14
[24] The hearing in relation to the HP agreement was on 13 December 2005. There was no reference in the proceedings to any of the employment categories in dispute. Similar to the wages agreement, the HP agreement also contains a No Extra Claims clause. Finding [25] A reading of the transcript of the wages agreement hearing reveals that there was no reference at all to the Leave Reserved clause. [26] I am satisfied that the unions' formal claim lodged in July 2004 clearly flagged an intention to go wider than DHHS. This was reinforced by the classification standards lodged in December 2004. [27] In my view, absent a specific qualification, there is no basis for placing a narrow construction on the term health professionals by limiting to occupations within DHHS. As a matter of broad principle, occupational groupings are not necessarily limited to single agency boundaries. Further, units within agencies are subject to transfer at any time for reasons quite unrelated to industrial regulation. [28] The outcome of the HP agreement, the disputed categories aside, clearly went beyond DHHS. Whilst I understand Mr Baker's submission as to industrial context, it is nonetheless an industrial reality. [29] I conclude therefore that the Leave Reserved clause in the wages agreement did not limit HPs to employment within DHHS. Accordingly, the unions were not constrained by the No Extra Claims clause from pursuing a claim for the disputed occupational categories. [30] That however is not the end of the matter. The HP agreement also contains a No Extra Claims clause. The absence of any reference to the disputed categories during the approval process was a serious omission. No Extra Claims undertakings are a critically important component of the bargaining process and are to be taken seriously. [31] Taken in isolation, the absence of a leave reserved clause and/or a reference to outstanding issues during the approval process, would ordinarily be fatal to the pursuit of a claim of this nature. [32] In this instant matter there was however a chain of e-mail correspondence only a few days before the hearing. This correspondence appeared to conclude with an agreed position as to the way forward, although certainly not an agreed outcome. [33] In the circumstances I am prepared to accept that failure to refer to the matters in dispute during the approval process was an oversight. [34] I conclude that the unions are not constrained from pursuing the application, as amended. Definitional Issues [35] A key consideration is what are the criteria for the determination of a Health Professional? [36] I deal firstly with the question of "professional" status. [37] There was no contest to the submission that a person holding an appropriate tertiary qualification from a recognised institution is a "professional". [38] Corrections employees hold a range of tertiary qualifications, and in some cases, no tertiary qualification at all. Mr Jacobson submitted that all employees without tertiary qualifications were "grandfathered" by the "3 streams decision" of 199615 and hence deemed to possess appropriate qualifications to enable translation to the Professional Employees Award. Since that time a tertiary qualification has been a mandatory requirement for the positions in question. [39] Mr Baker accepted Mr Jacobson's submission on this point. I therefore conclude that all employment categories the subject of this application are "professional" employees. The remaining question is whether they are Health Professionals. [40] Mr Jacobson submitted a range of definitions. [41] The Collins English Dictionary defines health as:16
[42] The World Health Organization definition is:17
[43] The HP agreement states:
[44] The agreement then goes on to list the "Occupational Groups defined as Allied Health Professionals for the terms of this Agreement". The list, for DHHS, reads:
[45] The agreement in Schedule 4 lists the occupational groups defined as Allied Health Professionals for agencies other than DHHS:
[46] This list, Mr Jacobson submitted, was far broader than the following definition of allied health professionals found in the Allied Health Professional Workforce Planning Status Report (May 2003):18
[47] Mr Jacobson concluded by submitting:19
Forensic Scientists Overview [48] The forensic scientists subject to this application are employed by Forensic Science Service Tasmania (FSST). The majority of staff are employed in the NATA accredited laboratory, in New Town. [49] Historically FSST was situated within DHHS. In July 1998 the Service was transferred to DPIWE. In July 2000 the service was transferred to DPPS and it remains within DPEM currently. The reasons for these transfers are not entirely clear, although I am satisfied that industrial regulation was not a factor. It would seem that staff involved in the restructures were given "anti detriment" undertakings, particularly in relation to accumulated sick leave. [50] FSST services are provided by two forensic biology sections (the Biological Examination Section and DNA Profiling Section) and a Forensic Chemistry Section. Evidence [51] Sworn evidence for the applicants was provided by representative witnesses from each discrete area of FSST. Commander Tully provided evidence for the Minister. The witness evidence was comprehensive and has been fully considered. The following summary highlights the issues pertinent to the current application. Dr Kathryn Campbell [52] Senior Specialist, Toxicology. Holds a Bachelor of Science, Bachelor of Pharmacy and a PhD. [53] Qualifications are very similar to hospital scientists working in RHH. Eligible for corporate membership of the Australian Institute of Medical Scientists. [54] Toxicology services the same clients, and provides service for the same purpose, as do forensic medicine personnel of the DHHS. [55] Techniques used, foundations of procedures and quality controls are comparable with that used by medical scientists. [56] The major difference is the scope of the screen. "... we look for unknowns, and they look for things that they know they are looking for."20 [57] The majority of work comes from DHHS. [58] Forensic pathology would be unable to fulfil obligations to client groups without replication of functions currently performed in FSST. [59] Notwithstanding the restructuring, still produce the same outputs for the same purpose and for the same clients. Dr Campbell said:21
[60] Agreed that overall role is to assist in the administration of the law, and that the results of testing are for evidentiary, not diagnostic purposes. [61] Agreed that the majority of tests in FSST as a whole related to crimes against property (volume crime). Christopher Guy McKenzie [62] Forensic Biologist, with a Bachelor of Medical Science degree. Had previously worked in hospital environment. [63] Forensic Biology has been moved and restructured over the years but the basic work has remained the same. It began as an offshoot of Forensic Pathology and retains all of the original affinity with this branch of medicine. [64] The work is performed in a standard laboratory environment with techniques similar to those used in pathology laboratories. [65] Some of the material examined is obtained directly from medical practitioners and reports are issued to these medical practitioners to assist in patient care. [66] The general functions of his area have remained the same for 25 years, and have not been affected by Departmental restructuring. [67] Agreed that most work is for evidentiary purposes, although some has diagnostic uses. [68] There is a general health and wellbeing outcome for victims when there is a resolution of a crime. Laszlo Szabo [69] Head of DNA Profiling Section. Holds a B.Sc. with specialties in Biochemistry, Microbiology, Immunology and Histology. Work prior to FSST was in medical research. [70] Originally the Forensic Biology Laboratory was situated in the RHH, adjacent to the hospital pathology laboratories, with which it shared some facilities. [71] Was originally classified as a Hospital Scientist under the Hospital Scientists Award. [72] During past 16 years work tasks and responsibilities did not change as a direct result of the move from one agency to another. [73] The molecular biology procedures used in DNA profiling are also widely used in a medical pathology environment. [74] In relation to similarities between medical scientists at the RHH and forensic scientists, Mr Szabo said:22
[75] Specimens are often collected by medical practitioners and the results are returned to these practitioners. This process operates in a similar way to the referral paradigm within DHHS pathology laboratories. [76] Identification of the perpetrator of a crime has a direct impact on the health and wellbeing of victims, both physically and psychologically. [77] By preventing further attacks on victims, and providing a deterrent affect, DNA profiling has a direct benefit to the health and wellbeing of the Tasmanian community. [78] In relation to forensic laboratories interstate, three are located in Health Departments, four with Police and one with Administrative and Information Services. [79] Forensic pathologists dealing with deceased persons are considered to be health professionals. [80] Agreed that his work is mainly associated with crime. [81] In terms of numbers volume crime significantly outweighs crimes against the person. However the latter is more labour intensive. Andrew James Griffiths [82] Forensic Scientist, Acting Head of Toxicology Section. Holds a Master of Applied Science. [83] Whilst major component of work involves analytical chemistry, the results/reports produced encompass health related topics of biochemistry, anatomy, physiology and pharmacology. [84] The major purpose of the Toxicology Section is the analysis of biological specimens for drugs and poisons for a variety of different case types, all with relevance to the medicolegal system and some with direct relevance to public health, eg sexual assaults, drink spiking, coronial cases and road safety (drugs and alcohol in drivers). [85] Clandestine laboratories pose a threat to public health and safety. Ana Maria Herta [86] Forensic Scientist. Holds a degree in Biomedical Science. Prior to FSST had worked in a range of hospital and laboratory settings as a medical and research scientist. [87] A number of the tests and techniques used are similar to those used for diagnostic purposes in a hospital environment. [88] Work in close contact with the Police and the DPP. Also in regular communication with forensic pathologists and medical practitioners (sexual assault cases). The latter has significant health and wellbeing implications. [89] Similarities with hospital scientists include working with human specimens; exposure to similar OH&S issues (blood); NATA accreditation and similar reporting arrangements. [90] The bulk of the work is similar or identical to the functions of a hospital scientist. [91] Focus is on assisting in the identification of offenders. [92] Majority of her work is for the Police and involves crimes against the person. [93] Ms Herta concluded:23
Commander Thomas Alexander Tully [94] Commander of Operations Support within which Forensic Services is located. This includes FSST. He acknowledged that he had very little to do with the FSST as opposed to the rest of the forensic service. [95] The Police Department is the major user of FSST services. The majority of requests for examinations and/or testing are made by Police or the office of the DPP. [96] The common purpose of tests/examinations is the administration of justice. He is not aware of the scope of work going beyond the evidentiary purposes of court proceedings. [97] DNA testing assists in the prosecution of offenders. However he is not aware of any evidence that it has a deterrent impact. [98] Additional resources have been put into FSST to cope with volume crime. [99] Agreed that it could be beneficial to public health for the community to know the types of drugs that are involved in driving under the influence, drink spiking, sexual assault and similar events. Statistical Data [100] Statistical data was provided from a variety of sources and witnesses. The following picture emerges. [101] In 2005 there were 15,761 tests conducted.24 [102] The following is a breakdown of the various categories:25
[103] 6,306 of these tests were devoted to burglaries, stealing and crimes against property (volume crime).26 [104] According to Mr Dolliver, Director, FSST, the following workload factors are relevant:27
[105] In relation to Toxicology, the table below displays the number of tests conducted for the client by test type in 2005:28
[106] According to a submission from Mr Johnston 97% of cases are subject to medical testing.29 Definition of Forensic Science [107] Mr Johnston submitted the following definition:30
[108] Mr Johnston also referred to the following exchange with Mr De Bomford:31
Other Relevant Submissions Mr Johnston, for the applicant: [109] The toxicology service provided by FSST has been negotiated with the pathologist. It has never been negotiated or discussed with Tasmania Police. [110] All pathology samples come directly to FSST, not through Police Forensic Services. [111] A number of occupational categories contribute to the administration of justice, eg hospital scientists, child protection workers, youth justice workers. This does not change the fact that they are health professionals. [112] Forensic scientists studied medical science with medical scientists. Now they use their techniques in a forensic laboratory. The term "forensic" does not alter their status as a HP. Mr Johnston concluded:32
Mr Baker, for the Minister: [113] From the evidence, forensic scientists do not directly support health providers. [114] With the exception of Toxicology, most requests for tests come from Police or the DPP. [115] The science practised by FSST staff does not differ greatly from that of medical scientists. It is the outcome that is different. Forensic scientists produce results for their evidentiary value while medical scientists produce results for their diagnostic value. Forensic science is the application of science to assist in the administration of the law. [116] The NATA accreditation for the hospital laboratories is different to that for FSST. Probation and Parole Officers (POs) Professional Staff employed in Offender Services [117] Both these categories are employed within the Department of Justice. POs are concerned with the supervision of offenders external to the prison system. Offender Services staff are concerned with programs and activities within the prison system. [118] There are clear similarities between the two groups such that it is convenient to consider them together. A summary of the evidence provided by witnesses for the unions and Minister follows: Anne Elizabeth Fitzgerald [119] Probationary Officer in the Rosny Office of Community Corrections since 1996. Does not hold tertiary qualification but deemed to be professionally qualified by virtue of grandfathering process. Qualified as a mediator and trained to present a number of programs and assessments. [120] These programs and assessments include a cognitive skills program known as Offending is Not the Only Choice (OINTOC); Sex Offender Assessment and Relapse Prevention for Sex Offenders; Auslan; Domestic Violence/Relapse; Wisconsin risk/needs assessment; anger management and various drug and alcohol courses and seminars. [121] Approximately 70% of offenders present with issues relating to substance abuse. Whilst there is provision to refer such persons to specialist agencies within the community, there are occasions when due to work commitments and geographic location, it is necessary to undertake assessment and relapse prevention myself. For example, there are no alcohol and drug counselling services available on the East Coast north of Sorell. [122] It is necessary to draw links between health issues and propensity towards certain behaviours. The existence of certain medical conditions is a determining factor in the management of a client. [123] Agreed that she was not qualified to treat mental health issues. Similarly POs do not diagnose. However are trained to recognise certain mental health issues, which have not previously been diagnosed, and to refer for appropriate assessment. Robert John Pearson [124] Probation Officer, with regional caseload responsibility. Holds a B.A.(Hons) in Applied Social Studies and a post graduate diploma in Youth and Community Work. Previous positions include generic case-worker, co-ordinator of Children's Court, Juvenile Justice Worker and Project Officer. [125] Trained as a facilitator in various programs including Family Violence Offender Intervention Program, Sex Offender Treatment Program, and OINTOC. [126] In relation to supervision of offenders, Mr Pearson said:33
[127] In rural and regional areas the referral services are not available. [128] No structured sex offender program in the community (outside the gaol) and hence program is provided by POs. [129] From 1992 to 1994 the position was generic in DHCS and POs would take on both a juvenile and adult caseload. This changed when juvenile justice stayed with Health. I still provide a service of assisting juveniles in the Huon area. A similar position applies in the North where juvenile justice workers don't have complete coverage. [130] The process for supervising and enforcing court orders is essentially the same for Youth Justice as it is for adult offender. The main difference is that the restorative justice model used with Youth Justice means there are less prosecutions. [131] Agreed that the programs are behaviour type courses with objective of changing behaviour so as to not re-offend. Matthew James Bain [132] Program Facilitator in the Sex Offender Treatment Program. Holds a Bachelor of Social Work and a B.A. [133] At various stages of the program am required to exercise the following skills: assessment; group facilitation; counselling; health promotion. Qualified to facilitate OINTOC. [134] The SOTP requires the exercise of skills as a therapist, including active listening, professional discretion and discernment. [135] The assessment process for SOTP requires a clinical interview. Throughout the program assessments are charted to monitor progress. [136] Believes it is necessary to have a degree in behavioural science to be a program facilitator. Erin Louise Hunn [137] High Needs Support Counsellor in Therapeutic Services Team of Offender Services. Holds a Bachelor of Social Work. [138] Required to exercise assessment skills to assess risk of suicide or self-harm. Then must implement a plan to manage these risks and provide inmate with adequate crisis support. This requires counselling skills. [139] Required to attend multi-disciplinary team meetings and liase with health professionals including clinical psychologists. Required to provide psycho-social assessment and treatment including design, development, implementation and evaluation of treatment programs. [140] A management plan may include a reference to a clinical psychologist. [141] Reports to the Senior Psychologist and "on a par" with the assessment psychologist, both of whom are subject to the HP agreement. Diane Kaye Baker [142] Probation and Parole Officer in the Rosny Office of Community Corrections. Holds a B.A. with Hons in Psychology and a Graduate Diploma in Rehabilitation Counselling. [143] Many behaviour interventions based on psychological techniques such as cognitive behaviour therapy, dialectical behaviour therapy, and motivational interviewing. [144] Have a sound knowledge of mental health problems, including diagnostic criteria, description, treatment and research findings. [145] Agreed that role is to supervise offenders in the community. [146] Agreed that the courts view POs as officers of the court, not health professionals. [147] POs are expected to address criminogenic needs, and that involves addressing health problems, alcohol, drug use and suicidal behaviours. [148] POs do not treat individuals. [149] Youth Justice Workers have a similar role to POs. Paul Kenneth De Bomford [150] Independent Corrections Consultant. Previously Region Manager, Community Corrections, for 27 months. [151] Aim of a PO is to, in accordance with direction of the Courts and Parole Board, assess and mange offenders with the aims of reducing re-offending and increasing public safety. [152] POs are required to prepare pre-sentence reports and reports on suitability for community based orders. Some of the questions relate to health issues, but case-management guidelines recommend external assessment be sought. [153] POs corroborate progress from external sources. [154] POs do not provide therapeutic intervention. They can however direct a person to attend appointments with specialist health providers. [155] OINTOC is designed to increase the thinking skills of offenders. It is not a behavioural therapy. A health qualification is not required to deliver the program. [156] In relation to health issues Mr De Bomford said:34
[157] The assessment tool and case management guidelines are designed to take account of health issues, not treat the problems. [158] POs are not provided with health specific training. [159] 75% of offenders present with alcohol or drug issues. [160] Counselling skills are utilised right through the period of the order, not just on programs. [161] Prior to 1996 POs were deemed to be welfare workers under the Welfare Workers Award. [162] Counselling skills are not the exclusive domain of health professionals. [163] SAINTOC is not a health intervention. [164] The Statement of Duties for Probation Officer and Youth Justice Worker are very similar. [165] POs have a range of qualifications including Social Work, Education, Rehabilitation, Counselling and the Law. [166] Mr De Bomford concluded with the following observation:35
Graeme Leslie Barber [167] Director of Prisons. [168] On the relationship between the prison and the DHHS on health matters, Mr Barber said:36 "... We, in July 2001 we handed over management of all health-related issues to Department of Health and Human Services and we operate under a service level agreement with them to provide services to us. So they look after general health issues and mental health issues and we provide accommodation security. They manage anyone with a mental health illness and the other people that are behavioural issues are managed by us." [169] Psychologists don't deliver health services. Mr Barber went on to say:37
[170] Acknowledges that the Statement of Duties for High Needs Support Counsellor specifies the following duties:38
[171] Suicidal behaviours would be considered a health risk. But it is not the role of the prison service staff to provide health treatment. Award Coverage [172] Prior to the establishment of the "four streams awards" POs were employed under the terms and conditions of the Welfare Workers Award. This award contained the following definitions:39
[173] It followed that Probation Officers, Social Workers and Child Welfare Officers were all engaged under the same award, irrespective of Agency. [174] This award was abolished in 1997 and employees translated to either the Professional Employees Award, or the Community and Health Services (Public Sector) Award. This translation process, Mr Jacobson submitted, was relatively seamless as there was no distinguishable difference between the salaries and conditions in the respective awards. As a consequence the change was not a matter for discussion, Mr Jacobson said. [175] Mr Baker submitted that prior to the Welfare Workers Award POs were covered by the Technical Employees Award followed by a discrete Probationary Officers Award. Over a period of time other classifications were included in this award including social workers. At some point the award was presumably re-named the Welfare Workers Award. Mr Baker asserted that in the late eighties social workers began to agitate about wage levels, which he said were at a diminished level as a consequence of the linkage with POs. Mr Baker said that the union submitted a claim to remedy this position. However it did not proceed in that it was overtaken by the Structural Efficiency Principle and subsequent four streams award concept. Other Relevant Submissions Mr Jacobson, for the HSUA: [176] The role of a PO is broader than dealing with crime and applying the law. He said:40
[177] The role of Youth Justice Workers is very similar in terms of the nature of the work, level of responsibility, and scope of work. Mr Jacobson submitted:41
[178] As a consequence of lack of services in regional areas, POs become health service providers. [179] Counselling is part of a broader treatment process to address offending behaviour. [180] POs have been disadvantaged by administrative re-organisation. [181] Employees are responsible for the delivery of a wide range of programs, a number of which relate to treatment, prevention and relapse prevention. [182] The programs delivered by Offender Services staff clearly have a health function. For example the Sex Offender Treatment Program is a "group-based rehabilitation and intervention program" which by virtue of its name, "is a treatment program". Mr Baker, for the Minister: [183] From the range of pre-sentence reports tendered it is clear that POs gather information from a range of sources including health service providers. They take into account health issues in making recommendations. However in the case of health treatment, the context is invariably a referral to a health professional. POs do not provide treatment. Mr Baker submitted:42
[184] Some of the programs in question are delivered by clerical and administrative employees. Other programs are delivered by teachers and technicians. This does not in itself make them HPs. [185] There is no evidence as to what Youth Justice Workers do. [186] It is not a valid argument to contend that anyone who assists anyone in the community is a health worker. Findings [187] Historically workplace bargaining in the State Public Sector has had a strong centralised element. For more than a decade there have been a series of wage agreements which, by and large, have applied to much of the public sector. On occasions there have been agency or occupation specific agreements which, whilst stand-alone, have in fact adopted the key elements of the centralised agreement, particularly in relation to wage and salary adjustments. [188] There have also been notable exceptions to this centralised approach. Teachers, Nurses and Salaried Medical Practitioners, for example, have tended to run their own race with stand-alone agreements bearing little or no relationship to the centralised agreement. [189] More recently the trend towards stand-alone agreements has gathered strength. These agreements have invariably applied to well-defined occupational groups with clear delineation of the boundaries of scope. [190] It is fair to say that these latter agreements have a strong element of market forces attached to them. [191] The decision approving the HP agreement43 noted Mr Lynch for the CPSU submitting:
[192] Mr Pearce (for the Minister) observed:
[193] The Commission makes no criticism of this approach. Indeed it is difficult to imagine a more compelling reason for entering into such an agreement than market forces. [194] The difficulties with the HP agreement is that, unlike a number of occupation specific agreements that have gone before it, the boundaries are not clearly defined. From the employees point of view it is not difficult to understand why certain groups feel aggrieved by the breaking of what they perceive as long standing arrangements as to industrial regulation. Similarly from the Minister's point of view, a desire to limit unbridled "me-tooism" is a legitimate concern. [195] At this point I would emphasise that whilst the Commission does have a wide jurisdiction in relation to the settlement of industrial disputes (s.31), an agreement may only be varied by the consent of the parties. It follows that this decision is limited to the question of whether or not the occupations in question are health professionals. [196] I accept Mr Jacobson's submission that there is no one universally accepted definition of health professional. Of the alternatives available, the definition in the HP agreement, together with how it has been applied, has the most persuasive value. [197] I deal firstly with forensic scientists. [198] The following factors lend support for the notion than forensic scientists are HPs: · FSST was part of DHHS for a longer period than either of its most recent homes in DPIWE and DPEM. Whatever the reasons for subsequent structural changes, they are unrelated to industrial regulation. · The work within FSST has not changed before or after any of the changes referred to above. · The qualifications of the scientists are similar to that of hospital scientists. They are eligible for membership of the same professional bodies. · A number of the witnesses had previous employment in a hospital/medical laboratory environment. It would seem that forensic scientists and medical scientists could move in either direction in terms of employment. · Both forensic and medical scientists were covered by the Hospital Scientists Award prior to the four streams decision. · Both forensic and medical scientists work in a NATA accredited laboratory, albeit a different accreditation. · The DHHS is a significant client of FSST. Without replication of FSST, the forensic pathologists could not deliver the required outcomes. · Forensic scientists regularly communicate with health professionals. · The work of forensic scientists directly contributes to the broader wellbeing of the community. Arguably there is a direct health outcome for individuals in a limited number of cases (particularly sexual assault). [199] Against the above must be weighed the following: · Slightly less than 50% of tests conducted relate to crimes against property (volume crime). However 97% of all tests embrace medical science testing. · Overall DPEM is the largest client of FSST. · Overwhelmingly the work of FSST is for evidentiary rather than diagnostic purposes. [200] The use of the word "forensic" does not in itself debar an occupation from health status. To do so would exclude professions such as forensic pathologist and forensic dentists. [201] On balance I have no hesitation in concluding that forensic scientists employed by FSST are health professionals. Whilst I obviously cannot be categorical, I have little doubt that had FSST remained within DHHS, they would have been part of the HP agreement. The all-embracing nature of the categories included (provided they are employed by DHHS) lends support to this conclusion. Whilst I accept that the anti detriment undertaking does not extend beyond the specific matters referred to (sick leave), I have no doubt that the FSST forensic scientists have been (probably unwittingly) disadvantaged by an administrative decision unrelated to industrial merit. [202] I turn now to Probationary Officers and professional staff employed in Offender Services. [203] I accept the evidence of Mr De Bomford that the primary purpose of a PO is to, in accordance with direction of the courts and Parole Board, assess and manage offenders with the aims of reducing re-offending and increasing public safety. [204] POs and Community Corrections staff hold a range of qualifications including social work, youth and community work, psychology, rehabilitation counselling and law. [205] According to the evidence, 75% of offenders present with drug and/or alcohol issues, and a lesser percentage with aspects of mental illness. [206] There can be no doubt that POs must take into account health issues in developing reports and recommendations, and in the supervision of offenders in the community. I also accept that in regional areas, through the absence of support services POs will inevitably take on a front-line role in the management of these health issues. [207] Against this, the evidence points overwhelmingly to a conclusion that POs do not "treat" medical conditions, nor have they been provided with health specific training. Fundamentally their health role is to detect and refer health issues to the appropriate service provider. [208] I note that the Statement of Duties for the High Needs Support Counsellor refers to "assessment and treatment including the design, development, implementation and evaluation of treatment programs". From the evidence however it would appear that this is more aligned with crisis management rather than necessarily a health issue. [209] High level counselling skills are a necessary requirement across all positions in question. However counselling is a skill that is not the exclusive domain of health professionals. [210] The various programs delivered in both areas appear to be focussed more on changing behaviour rather than health outcomes, even though in some there is a linkage. [211] Overall I am unable to conclude that Probationary Officers and Offender Services staff, subject to this application, are health professionals. This conclusion does not in any way diminish the vitally important role of the employees in question. It simply means that they do not meet the definitional constraints of a health professional. [212] Nor does it necessarily end there. I have concluded that some of the categories included in the HP agreement in all likelihood fail to meet definitional constraints, if strictly applied. Youth Justice Workers are, in my view, in this category and there may well be others. The parties have chosen to include them in the agreement and I am in no way critical of this decision. In one sense it underlines the arbitrary nature of definitional parameters, when a broader view of the real issues is required. [213] I do not accept Mr Baker's submission that there is no evidence before the Commission in relation to Youth Justice Workers. The Statement of Duties was tendered and there was direct evidence pointing to the similarity between POs and Youth Justice Workers. We also have the history of the Welfare Workers Award, the generic nature of the position in the early nineties, and the overlap, which continues, in some areas even today. [214] On the basis of the material before me I conclude that there is no industrial basis for treating the two positions differently. This conclusion is unrelated to the question of whether either position meets the definition of a health professional. [215] In the same vein as forensic scientists, it may well be that these employment categories have been disadvantaged by administrative decisions as to where they are located at any given time, rather than industrial merit considerations. This of course can cut both ways, depending on the circumstances of the day. It is perhaps a challenge to the parties to develop a bargaining model sufficiently robust to avoid unfortunate artificial outcomes. [216] The matter is referred back to the parties for further consideration. Mr Baker foreshadowed in his closing submission that there are issues of substance to be addressed in determining the way ahead. [217] Any party may refer this matter back to the Commission if considered necessary or desirable. Tim Abey Appearances: Date and Place of Hearing: 1 T12462 of 2005
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