WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2014 WAIRC 00577 CORAM : ACTING SENIOR COMMISSIONER P E SCOTT PUBLIC SERVICE ARBITRATOR HEARD : FRIDAY, 6 JUNE 2014, WRITTEN SUBMISSIONS - TUESDAY, 10 JUNE 2014, MONDAY, 16 JUNE 2014 DELIVERED : THURSDAY, 3 JULY 2014 FILE NO. : PSA 8 OF 2012, PSA 9 OF 2012, PSA 10 OF 2012, PSA 11 OF 2012, PSA 12 OF 2012 BETWEEN : ROBERT GOODIE; CHRISTINA SUZANNE STILIAN; MARCELLE CANNON; KENNETH THOMSON; JOHN BREARLEY Applicants AND DIRECTOR GENERAL OF HEALTH AS DELEGATE OF THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S7 OF THE HOSPITAL AND HEALTH SERVICES ACT 1927 AS THE WA COUNTRY HEALTH SERVICE Respondent CatchWords : Reclassification appeals – Health professional position requirements – Requirement for tertiary qualifications – Management position – Work value – Work Value Principle – Increased complexity Result : Applications dismissed Representation: Applicant : Ms P Marcano as agent for the applicants Respondent : Mr J Sheppard for the respondent Reasons for Decision 1 The applicants occupy positions of Regional Managers Mental Health classified at Level G10 and they seek reclassification to Level G11. Clinical Role 2 The hearing of this matter was delayed for nearly a year due to attempts by the parties to resolve the dispute as to whether these positions are properly health professional positions, and the requirements or otherwise, for tertiary qualifications. The hearing finally proceeded on the basis that they are to be reviewed as general management, not health professional, positions. In those circumstances, I do not intend to determine that issue. 3 However, during the hearing the issue arose of any clinical requirements of these positions and then, by reference to other potential comparative positions, the requirement for clinical experience and whether this is a proxy for a tertiary qualification in a health profession calling. The parties have made written submissions. 4 While not determining that question, I make the following observations. It is for the employer to create positions according to its requirements. If those requirements, as determined by the employer, include that to perform the job properly, the incumbent needs to perform some clinical work, provide some clinical consultancy advice or oversight, or have a clinical background to 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 859 properly understand and manage the work of staff, such as if involved in a clinical way in clinical governance (as opposed to undertaking the organisational, processing and reporting on outcomes of meetings where clinical personnel are responsible for clinical input and determination), then it seems to me that the role is clinical and may well be a health professional position. There are some clinical roles which, due to either professional training or registration requirements, did not previously require a tertiary qualification. However, today they constitute a small and diminishing group and are being overtaken by more tertiary based qualification requirements. In those circumstances, it seems to me that to define such positions as non-health professional may deny the real and genuine requirements of the positions, notwithstanding what appears to be a conflict with the requirement for a tertiary qualification inherent in the specified callings. 5 One of the major issues for consideration in this matter is the role of the Regional Manager in regard to responsibilities undertaken ‘in partnership’ with the Clinical Director. The evidence of Mr Brearley makes clear that it is the Clinical Director who has responsibility for the oversight of clinical issues within the particular Mental Health Service. He spoke of the development of the clinical governance framework. The Western Australian Country Health Service (WACHS) produced an overarching clinical governance framework which applies to all services under the WACHS. Each service was then to prepare its own framework under that overarching framework, dealing with its own particular needs, including patient profiles and services. The Regional Manager’s role was to bring together the appropriate people to make sure the service was meeting national standards. Mr Brearley cited an example regarding safety, quality and service development. 6 It is very clear, having heard his evidence and the evidence of Mr Goodie, that particular clinical governance issues come to the Regional Manager, who arranges for the particular issue to be reviewed at a meeting convened by him for which clinical advice will be provided. For example, where an issue has arisen in the Emergency Department and is referred to him by a member of the clinical staff, the patient or in any other way, the Clinical Director deals with the clinical aspects of the issue. The Regional Manager convenes the meeting, writes up the minutes and outcomes, and manages the action items. He or she is responsible for following up to ensure the appropriate actions and standards are complied with. 7 Mr Brearley also gave evidence of being without a dedicated Clinical Director in his region for over a year and he had to draw on the advice of consultant psychiatrists. 8 Without deciding the matter conclusively, the evidence of both Mr Brearley and Mr Goodie leads me to the view that the Regional Manager Mental Health role is a general management one. It involves staff management, financial management, strategic planning and service policy and procedures and the logistics of running the service. The management of the service is undertaken in collaboration with the Clinical Director, and it is this latter role which undertakes the clinical aspects of the work. The Regional Manager’s role in the clinical governance process is about the process, not the clinical aspects; that is, ensuring that the appropriate processes have been adhered to. The Clinical Director’s role is more about whether the appropriate clinical decisions and processes have been taken. 9 The selection criteria do not list a tertiary qualification as essential. A tertiary qualification in behavioural, social science or management is a desirable selection criteria, but it is not essential. What is not clear is whether, in reality, to have the appropriate background to understand the work of the service and the staff, a clinical background is necessary. Mr Goodie gave evidence that he could not have appropriate discussions about clinical governance issues with the Clinical Director without having a tertiary qualification. 10 This is a matter for the employer to determine. Does the employer want a manager whose role is financial and resource management, or does the proper performance of this role also require a clinical background? Work Value Claim 11 The applicants rely predominantly on changes to the positions said to have occurred in around 2009 and 2010, and they say these changes constitute a significant net addition to work value. 12 The changes relied upon are: • Professional supervision and management of staff and service delivery across multiple service sites • Strategic Leadership and Management skills and knowledge; • High level knowledge and skills ensuring compliance of mental health services and associated governance systems; • Leadership, direction and decisions impacting on the formulation and development of strategic initiatives; • Developing and implementing Mental Health Service Delivery initiatives; • High level of knowledge and skills in providing guidance and consultation in relation to complex cases; and • Sole accountability for the compliance and reporting requirement of clinical services. These changes have evolved and have been the result of new requirements, some legislative, some organisational requirements, which have now become an intrinsic part of these roles. (Applicants’ Statement of Evidence (2), [6.1]) 13 The question to be answered is whether the requirements of the position have changed by way of a significant net addition to work requirements since around 2009 as claimed. It is not a claim which can be justified by reference to comparative positions either primarily or alone. The first question is whether the work, skills and responsibilities of the position, or the conditions under which the work is performed, have changed such as to constitute a significant net addition to work requirements justifying a higher level of classification (The Work Value Principle (State Wage General Order [2013] WAIRC 00353, Schedule 7.2; (2013) 93 WAIG 476)). If the answer to that question is ‘yes’, only then do the comparisons come into the equation. 860 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 14 The respondent argues that these claims seek to double dip on changes from the Health Professions Work Value Review (Hospital Salaried Officers Association of Western Australia (Union of Workers) v Hon Minister for Health and Others (2006) 86 WAIG 279; [2006] WAIRC 03473). The changes in that case encompass the period to 6 August 2003. The changes in this case are said to have arisen since then, in 2009 and 2010. 15 I note the work requirements referred to in the reviews which have taken place over a number of years, including that undertaken by Mr Holland in 2005 and that by Mr Young in 2008. The review documents record and anticipate some of the changes relied on in this claim. For example, the 2005 review of the Kimberley Health region position recorded that the position already included a significant quality assurance role. Nothing described by the witnesses before me makes the quality framework duties referred to of a higher level than was undertaken in 2005. The review also anticipated the creation of in-patient units. 16 Other aspects of the work were described in the evidence in terms of increased complexity. However, I am unable to find that this is substantial, given the pre-existing requirements of the position as reflected, particularly in the 2005 Review. They appear to perform much the same work as previously. The arguments raised by the evidence appear to rely on claims regarding comparative positions rather than real change to the requirements of the positions compared with previous requirements. At least some of the changes relied on as justifying the higher classification were in place in 2005 and are not new since 2009-10. 17 Of the changes listed in [6.1] of the applicants’ submissions, I am unable to find that the evidence demonstrates that these changes have occurred since 2009, or if they have, that they relate to work, skills or responsibilities or conditions which are beyond the requirements of Level 10. 18 In comparison with Level 10 Program Manager positions, some of these positions have some responsibilities particular to the issues of isolation and logistics. However, they do not make the overall position more complex. 19 In these circumstances, the applications must be dismissed. 2014 WAIRC 00578