WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00938 CORAM :PUBLIC SERVICE ARBITRATOR Commissioner T Emmanuel HEARD : Thursday, 12 October 2017 DELIVERED : MONday, 13 November 2017 FILE NO. : PSA 2 OF 2016 BETWEEN : Catherine Shaw Applicant AND South Metropolitan Health Service Respondent CatchWords : Public Service Arbitrator - Industrial Law (WA) - Claim for reclassification - Manager Medico-legal/FOI Service - New clinical services - New duties - More responsibility - Education - Flow on effect - Whether there has been a significant increase in work value Legislation : Industrial Relations Act 1979 (WA) s 80E(2)(a) Result : Application dismissed Representation: Applicant : Ms P Marcano (as agent) Respondent : Ms R Sinton (as agent) Cases referred to in reasons: The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the hospitals formerly comprised in the Metropolitan Health Service Board v The Health Services Union of Western Australia (Union of Workers) [2013] WAIRC 00836; (2013) 93 WAIG 1565 Ong v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the WA Country Health Service [2014] WAIRC 00827; (2014) 94 WAIG 1505 Shehade v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the employer [2015] WAIRC 00973; (2015) 95 WAIG 1786 Western v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the WA Country Health Service [2014] WAIRC 01223; (2014) 94 WAIG 1789 Willers v WorkCover, Western Australian Authority [2010] WAIRC 00183; (2010) 90 WAIG 333 === REASONS FOR DECISION === ¶1 Ms Shaw has been the Manager Medico-legal/FOI Service (review position) for the Fiona Stanley Fremantle Hospital Group (Hospital Group), which is part of South Metropolitan Health Service (Health Service), since October 2014. Before that, Ms Shaw was the Manager Legal Services at Fremantle Hospital and Health Service (Fremantle). ¶2 Ms Shaw applied for the review position to be reclassified from level G8 to level G10. The Classification Review Committee denied Ms Shaw’s claim for reclassification. ¶3 Ms Shaw asked the Health Service to review her claim for reclassification, providing further information in support. The Health Service reviewed Ms Shaw’s claim. It concluded that although there was some evidence of increased work value, it was not enough to justify reclassification to level G10. ¶4 Ms Shaw appeals the Health Service’s decision not to reclassify the review position. She claims there has been a significant increase in work value since the review position transitioned from Fremantle to the Hospital Group. She says the work has become more complex, more skills and knowledge are required and the level of responsibility has increased. ¶5 The Health Service says there is an insufficient increase in work value and significant potential for flow on to similar WA health system positions. ¶6 I must decide whether there has been a significant net increase in the review position's work value, arising from changes to the work, skill, responsibility or conditions. Principles ¶7 To succeed in her claim for reclassification, Ms Shaw must establish that there has been a significant net increase in the review position's work value which arises from changes to the position's work, skill, responsibility or conditions under which the work is performed. ¶8 The test the Public Service Arbitrator applies when considering work value changes is set out in the Statement of Principles of the State Wage Order [2017] WAIRC 00355: 7. Work Value Changes 7.1 Applications may be made for a wage increase under this Principle based on changes in work value. 7.2 Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. 7.3 In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award classifications structure but also against external classifications to which that structure is related. There must be no likelihood of wage “leapfrogging” arising out of changes in relative position. 7.4 These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this provision. 7.5 In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. 7.6 Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. 7.7 The time from which work value changes in an award should be measured is any date that on the evidence before the Commission is relevant and appropriate in the circumstances. 7.8 Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this provision. 7.9 Where the tests specified in 7.2 and 7.3 are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work and the nature and extent of the change in work. 7.10 The expression “the conditions under which the work is performed” relates to the environment in which the work is done. 7.11 The Commission should guard against contrived classifications and over-classification of jobs. 7.12 Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other provision of these Principles, shall not be taken into account in any claim under this provision. ¶9 The Public Service Arbitrator applies the test strictly. Ms Shaw's case ¶10 Ms Shaw gave evidence and called Ms Zagari and Dr Mark as witnesses. Ms Zagari is the Acting Executive Director for the Hospital Group. Dr Mark is the Director of Clinical Services for the Hospital Group and the Area Director of Clinical Services for the Health Service. The review position reports to Dr Mark in his role as the Director of Clinical Services. ¶11 In summary, Ms Shaw says there has been a significant increase in the review position's work value because, since the transition from Fremantle to the Hospital Group: the nature of the work has become more complex because Fiona Stanley Hospital (Fiona Stanley) is larger and provides more clinical service areas than Fremantle did and the Facilities Manager at Fiona Stanley is a private contractor; more skills and knowledge are required because of the new and more complex clinical service areas at Fiona Stanley; and the level of responsibility has increased because the review position is contacted directly for advice and works independently and autonomously. ¶12 She says the review position should be reclassified because of these new duties and the higher level of education and interpersonal skills now required. New clinical services ¶13 Ms Shaw says the review position requires broader and more complex knowledge of different areas of health because the Hospital Group provides clinical services that were not provided at Fremantle. They include: Renal Transplant Services; State Burns Unit; Paediatric Surgery; Tertiary Neonatal Service; State Haemophilia Centre; High-risk obstetric services, including Diabetes in Pregnancy Service; State Rehabilitation Service; Mother and Baby Mental Health; Youth Mental Health; Lung Transplant Unit; Advanced Lung Disease Department; Advanced Heart Failure and Cardiac Transplant Service; and Elective Neurosurgery. ¶14 Ms Shaw says the review position has an increased workload because Fiona Stanley is a busy hospital. Before the Hospital Group was formed, Fremantle had a total of 587 beds. The total bed capacity of the Hospital Group has increased by 562 beds to 1,149 beds. She now supervises more full time equivalent employees than she did previously. ¶15 Ms Zagari gave evidence that the services at Fiona Stanley are significantly more complex, the Hospital Group is a larger service that crosses two campuses and the patients are very different to those at Fremantle. ¶16 Dr Mark gave evidence that the review position's role has become more complex because of increased patient expectations, political imperatives and the fact that many public sector staff work part-time in private practice. He said Fremantle was not under such a level of scrutiny and the real-time nature of the review position's role is probably the most changed aspect. New duties ¶17 Ms Shaw argues that the review position has the following new duties: dealing with personal injury and public liability claims; advising and assisting medical, nursing and allied health staff; liaising with State Solicitor’s Office to get legal opinions; managing internal freedom of information (FOI) applications; and instructing and assisting internal Medical Report writers with medico-legal reports. ¶18 She says it has been necessary to develop new policies as a result of working in a new hospital. Ms Shaw acknowledges that she received a temporary special allowance from 6 October 2014 to 31 December 2015 for that. However, Ms Shaw says the business case made for her temporary special allowance, including managing policies and procedures and working with the Department heads, involves ongoing responsibilities. ¶19 Ms Shaw gave evidence that because the Facilities Manager at Fiona Stanley is a private contractor, this adds to the complexity of the hospital and the claims considered by the review position. Ms Shaw notes that she must determine liability in circumstances where there is third party involvement, due to Facilities Manager's role at Fiona Stanley. ¶20 Ms Shaw says the additional duties add responsibility and increase the level of knowledge required because of high-risk litigation areas, including mental health, youth mental health services, paediatric surgery and high-risk obstetric services. These have increased the skills and complexity required to perform the review position. She says the Health Service has acknowledged that legal issues involving children are significantly different and involve more risk than issues involving adults. ¶21 Ms Zagari gave evidence that the review position now requires increased skills and knowledge because of the complexity of the patients and the changing legal landscape and therefore the advice she seeks from the review position is more complex and frequent. ¶22 Ms Shaw says the Health Service’s submission that the review position's duties have only broadened and that work value assessments must be based on the essential requirements of the role undervalues the duties required of the review position and the added complexity. Responsibility ¶23 Ms Shaw gave evidence that the review position is expected to provide advice directly to co-directors, directors and consultants without the Director of Clinical Services being involved. The Director of Clinical Services role is less hands-on than it used to be. She said that people who receive medico-legal advice from the review position are expected to follow the advice and the review position has authority to make decisions in complex situations. ¶24 Ms Zagari gave evidence that she 'absolutely depend[s]' on the advice or interpretation of advice that the review position provides. She supported Ms Shaw's evidence that clinicians seek advice directly from the review position and rely heavily on it and compared that to the situation at Fremantle, where the Director of Clinical Services provided advice as an intermediary. ¶25 Dr Mark gave evidence that the review position is often the first point of contact for medical staff when faced with difficult medico-legal situations, which are often time-sensitive and not situations where the review position can 'phone a friend'. The review position must be able to work autonomously and give practical and sensible advice promptly. Dr Mark does not micromanage the review position and he expects that staff follow the advice provided without consulting him. The review position is empowered to manage the Medico-legal Service and the FOI Service. BIPERS ¶26 Ms Shaw says that the Health Service gave the review position too low a BIPERS score and put too much weight on that score. ¶27 In particular, Ms Shaw says the review position should have received a higher score for education level, interpersonal skills, scope of activities, instructions received and influence on results. ¶28 The review position now requires a certain level of decision-making, analysis and understanding of complex issues and legal opinions. An employee who has completed the equivalent of Year 10, even if she had seven to 10 years' experience, would not necessarily be able to undertake the review position's duties. Education to a Year 10 level is not an acceptable minimum requirement and what is actually required is significantly more. ¶29 I understand Ms Shaw’s evidence to be that she could not work in the review position, as it is now, without a tertiary qualification. She does not believe a Year 10 level of education is enough. Ms Zagari's evidence was that she did not expect that somebody educated to a Year 10 level could necessarily perform at the minimum standard expected of the review position. Dr Mark’s evidence was consistent with Ms Shaw's and Ms Zagari's evidence. He said it would be unrealistic to believe a person educated to a Year 10 level could perform in the review position at the required level. ¶30 Ms Shaw says review position is required to have continuous contact with internal and external stakeholders, requiring a high level of skill in negotiating and gaining cooperation from these stakeholders. ¶31 Ms Zagari gave evidence that she believed interpersonal skills were 'the thing that [the review] position requires more than anything' and must be of 'an extremely advanced' nature. Flow on ¶32 Ms Shaw says flow on effects would be very limited and would likely only affect one role at Royal Perth Hospital. The Health Service's case ¶33 The Health Service called Mr Howell and Mr Anderson as witnesses. Mr Howell is the Principal Consultant at Howell and Associates. He did the reclassification assessment for the review position. Mr Anderson is a Senior Classification Review Officer with Health Support Services. ¶34 The Health Service says that although the review position now spans the Hospital Group, its duties are still of a similar nature. ¶35 It argues that a change in position does not automatically lead to an increase in work value. The changes made to the review position’s job description form (JDF) are minor. They broaden the duties and do not add significantly to the review position's work value. ¶36 The JDF sets out the essential minimum skills required. A significant increase in work value must be based on the essential requirements of the position. The Health Service says that there have been no changes to the essential minimum requirements and skills needed to do the review position. New clinical services ¶37 The Health Service does not dispute that Fiona Stanley provides more clinical services than Fremantle did. ¶38 The Health Service says that the work performed in relation to the wider variety of clinical services provided at Fiona Stanley has not significantly changed the nature of the work performed by the review position. It recognises that there has been an increase to the review position's work volume, but says that this does not equate to an increase in work value. It cites Ong v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the WA Country Health Service [2014] WAIRC 00827; (2014) 94 WAIG 1505 in support of its argument that broadening of a role does not equate to a significant increase in work value. ¶39 Change of itself is not sufficient. Rather, the change must bring a higher level of work, skill or responsibility or changes to the work environment that make the work of a higher level: Shehade v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the employer [2015] WAIRC 00973; (2015) 95 WAIG 1786. ¶40 The Health Service says that while additional clinical services may add to workload and work pressure, there is no significant increase in work value without a requirement for increased skills and responsibility: The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the hospitals formerly comprised in the Metropolitan Health Service Board v The Health Services Union of Western Australia (Union of Workers) [2013] WAIRC 00836; (2013) 93 WAIG 1565. ¶41 Mr Howell gave evidence that the increased complexity in the review position's role because of the increased number of clinical services does not reflect a significant change in work value. This is because the key responsibilities of the review position are strongly similar. The review position is required to manage the provision of a medico-legal and FOI service, which has protocols, processes, procedures and ‘a body of knowledge around it’. The application of that in one environment compared to another is similar. New duties ¶42 The Health Service says the review position is engaged to provide medico-legal advice on all streams of medical practice and, whether the advice is more or less complex, the skills and knowledge required to perform the role are the same. ¶43 I understand the Health Service’s argument to be that the review position has always advised on complex matters. That it may now advise on different complex matters does not increase work value. ¶44 Mr Howell gave evidence that apart from FOI activities, the existing and proposed JDFs describe similar duties at a similar level of responsibility and complexity. The FOI activities increase the quantity of matters in the proposed JDF but do not add significant complexity or authority to the role. Increased knowledge and skills are not required for the review position to provide advice in relation to the broader range of clinical services offered. ¶45 Ms Shaw received a temporary special allowance during the commissioning of Fiona Stanley when she worked in a commissioning project officer position at a higher level. The Health Service says that this was because of an increase in work value for a temporary period in setting up the new service. Those additional project and policy duties were not ongoing. ¶46 In Mr Howell's view, the additional full time equivalent employees the review position now supervises are minimal and do not increase work value. Responsibility ¶47 The Health Service says that the autonomy and expectation of the review position has not changed. Fremantle was a tertiary hospital before it became part of the Hospital Group. The level of skill, knowledge and competencies required is the same across a tertiary hospital environment. ¶48 Mr Howell gave evidence that he understands the review position is currently required to make decisions autonomously and independently, which it did before the transition from Fremantle to the Hospital Group. Although the review position now works across more client areas, it has the same responsibility to provide advice in medico-legal matters. ¶49 The proposed JDF shows that the review position provides expert advice. Mr Howell’s evidence is that, despite this, alternative or second options are available, the review position works from an established body of knowledge and follows clearly documented processes and directives. He says that to show an increase in work value, the review position must be the principal and authoritative counsel in relation to medico-legal matters. BIPERS ¶50 The Health Service says it made an informed assessment when working out the BIPERS score. Mr Howell's evidence was that BIPERS is one of the instruments used in a reclassification assessment, but is not a significant one. He noted that the BIPERS score for the review position was around the midpoint of the level G8 band. Mr Anderson gave evidence that BIPERS is a tool in the assessment but does not come into play until a significant increase in work value has been established. ¶51 The Health Service argues that a post-secondary qualification is not essential for the review position. There is no statutory or other identified or accepted qualification for the position. It says essential educational requirements must be distinguished from beneficial or desirable ones: Western v Director General of Health as delegate of the Minister for Health in his incorporated capacity under s 7 of the Hospital and Health Services Act 1927 as the WA Country Health Service [2014] WAIRC 01223; (2014) 94 WAIG 1789. ¶52 The review position works from an established body of knowledge. ¶53 Mr Howell gave evidence that he found that the review position mostly dealt with internal contacts rather than external contacts. ¶54 The Health Service says that the review position’s scope of activities is narrow because many activities are supported by clear guidelines and procedures. ¶55 The review position does not demonstrate conflict resolution and negotiation skills necessary to achieve a higher score. ¶56 In summary, the Health Service argues that its BIPERS assessment is accurate. Flow on ¶57 The Health Service says there is a strong likelihood for flow on to other positions in the WA health system, particularly the level G8 comparator positions at Royal Perth Hospital and King Edward Memorial Hospital because they have very similar duties. Mr Anderson gave evidence that the level G8 medico-legal position at Royal Perth Hospital has applied for reclassification. Consideration ¶58 It is clear from the evidence that Ms Shaw is a dedicated and capable employee. I accept, as does the Health Service, that Ms Shaw performs the review position at a high level. ¶59 However, the question to be answered is whether there is a significant increase in work value to warrant the review position being reclassified. Work, skills and conditions ¶60 I accept that there has been some change in the duties and therefore the work performed. In part, this is due to the additional clinical services offered at Fiona Stanley. ¶61 I accept that the review position’s duties have broadened. As the Health Service points out, broadening of duties does not necessarily mean work value has increased. Where the broadened duties are of the same level or a lower level, work value will not increase. Of course, where the broadened duties are of a higher level or involve a sufficient increase in skill and responsibility, work value may increase. ¶62 The duties set out in the review position’s JDF have not materially changed, even taking into account the revisions made by Ms Shaw on the proposed JDF. ¶63 The evidence leads me to conclude that the broadened duties have increased the review position’s workload and work pressure. But I am not persuaded that the additional clinical services require the review position to have higher level skills or responsibilities. ¶64 A key responsibility of the review position is to manage medico-legal issues in the hospital environment. That necessarily involves dealing with all medico-legal matters as they arise. Some issues will be relatively simple and others complex. ¶65 I accept that the review position must now advise in relation to medico-legal issues that arise in the context of different areas of service provision, as set out in [13]. For example, youth mental health and high-risk obstetrics were not services provided at Fremantle. They are services provided at Fiona Stanley. ¶66 No doubt becoming familiar with legislation and medico-legal issues arising in these different contexts involves additional work. I am not persuaded it involves higher level skills or responsibilities. The same can be said for personal injury, public liability and FOI matters. ¶67 Ms Shaw’s evidence about the justification for the business case for the temporary special allowance paid from 1 July to 31 December 2015, set out in [18], was not supported by the documentary evidence. The documentary evidence suggests that the temporary special allowance was paid because of a lack of staff and limited administrative support, rather than managing policies and procedures and working with Department heads. But even if I accept Ms Shaw’s evidence about this matter, and that the business case conditions are ongoing, I do not consider that they involve higher level duties, skill or responsibility. ¶68 I accept that the review position’s workload has increased. But an increase in workload is not the same as an increase in work value. The same applies to work pressure. ¶69 I am not persuaded that the conditions under which the work is performed have significantly changed or that any such changes in conditions increase work value. Responsibility ¶70 Although not apparent from the JDFs, the evidence shows that the Director of Clinical Services is less involved now and the review position works more autonomously than before. I accept that the review position is now expected to make decisions autonomously. This increase in responsibility increases work value. BIPERS ¶71 Ms Shaw disputes the BIPERS score. ¶72 The evidence about BIPERS focussed on the education level required for the review position. While I accept that a higher education level would benefit this type of position, I do not consider that there have been changes to the review position that require a higher education level. I accept that a post-secondary qualification is not a minimum requirement. The minimum education requirement for the review position is a certificate of secondary education when paired with seven to 10 years’ experience. ¶73 The Health Service appears to have scored the review position 85 for education graded at 2 and experience graded at 4. However, the BIPERS key provided in Ms Shaw’s documents indicates that when education is graded at 2 and experience is graded at 4 the score should be 90. A score of 85 occurs when education is graded at 4 and experience is graded at 2. Other than this, which does not make a meaningful difference to the outcome, I am not persuaded that the Health Service gave the review position too low a BIPERS score. Further, as has been noted in many reclassification decisions, an assessment tool is a guide and not an absolute determinative tool: Willers v WorkCover, Western Australian Authority [2010] WAIRC 00183; (2010) 90 WAIG 333 [151]. Comparisons ¶74 While it is understandable that employees may focus on similarities to other positions, comparative wage justice is not part of the reclassification process. Comparisons only become relevant after a significant increase in work value is established. Conclusion Ms Shaw is a capable, dedicated and high performing employee. The review position’s workload and work pressure have increased. There has been some increase in work value, mostly due to increased responsibility. But overall the work, skill, responsibility and conditions under which the work is performed have not significantly changed. There has not been a significant increase in work value to warrant reclassification. The application is dismissed.