Health Employees' Technical Officer To Hospital
Scientist Conversion Interim Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Health Services Union NSW,
Industrial Organisation of Employees.
(Case No. 247724 of 2023)
|
Before Commissioner McDonald
|
11 September 2024
|
AWARD
Arrangement
Preamble
Definitions
Operative clauses
Clause No. Subject Matter
1. Application
2. Transition
Committee
3. Conversion
request criteria
4. Request requirements
5. Entitlement
& refusal
6. Conversion
date
7. Notification
of refusal
8. Referral
to Transitional Committee
9. Deemed
referral to Transitional Committee
10. Transitional
Committee convening
11. Decisions
of Transitional Committee
12. Notification
of dispute to IRC
13. Time for notification
to be made
14. Deemed conversion
where no decision
15. Deemed conversion
where no notification to IRC
16. Date of conversion
where IRC determines
17. Refused requests
and delay of any further request
18. Agreed extensions
of time
19. Matters potentially
relevant to refusal
20. Matters
not to be relied on for a refusal
21. Amendment
of award to give effect to decisions
22. Withdrawal
of requests
23. Implementation
process
24. Application
form to be agreed & content of form
25. Employees
not to be worse off
26. Dispute resolution
27. Commencement
and nominal expiry
28. Award to
be reviewed
29. Union not
to pursue particular disputes
30. Employer
not to withdraw, alter or withhold duties
31. No
prevention of direct hire as Hospital Scientists
32. Classification
attached to person not position
33. Backdating
of early applications
Schedules
Schedule A - Employees determined to be Hospital
Scientists
Schedule B - Employees determined to be Technical
Officers
Schedule C - Allowable Content of Application Form
Preamble
This award is made by consent as an interim resolution of a
dispute under sections 10 and 136(2) Industrial Relations Act 1996 (IR
Act) about the correct interpretation of the classification of ‘Hospital
Scientist’ within the Hospital Scientists (State) Award 2023 (Hospital
Scientists Award), and separately as to whether it ought to be varied. This
Award is made on the basis that it is not taken to prejudice either party’s
position in respect of that dispute, in the event that the underlying issue
cannot be resolved through broader award negotiations.
Definitions
‘Employer’ means the Secretary of the Ministry of
Health exercising employer functions on behalf of the Government of NSW.
'Health Service' means a Local Health District
constituted within the meaning of s.8 of the Health Services Act 1997, a
Statutory Health Corporation within the meaning of s.11 of that Act, and an
Affiliated Health Organisation within the meaning of s.13 of that Act, as
amended or varied from time to time.
‘Union’ means the Health Services Union (NSW Branch).
‘Technical Officer’ means a person employed in the
NSW Health Service under s.115(1) of the Health Services Act 1997 as
Technical Officers or Senior Technical Officers under the Health Employees’
Technical (State) Award 2023, as amended or varied from time to time.
‘Requisite Science Qualification’ means:
(A) the Diploma in
Medical Technology of the Australian Institute of Medical Technologists (before
1973); or
(B) a degree in
science at Australian Qualifications Level 7 with subjects or a major
predominantly relevant to pathology or, if employed in a non-pathology area, to
the position to be employed in; or
(C) a degree in
science at Australian Qualification Level 7 with subjects or a major partially relevant
to pathology or, if employed in a non-pathology area, the position employed in,
and 2 years’ of experience as a Technical Officer or Hospital Scientist; or
(D) a degree in
Science at Australian Qualifications Level 7 and 3 years’ of experience as a
Technical Officer or Hospital Scientist; or
(E) a qualification
which has been assessed by the body appointed by the Commonwealth government to
assess qualifications for skilled migration visas as meeting the qualification
requirement of Medical Scientist ANZ234611; or
(F) such
qualifications and experience as the employer deems equivalent.
Application
1. This Award
shall apply to Technical Officers, the Employer and the Union.
Transitional Committee
2. A peak level
statewide Transitional Committee consisting of an equal number of Employer and
Union representatives is to be established within a month of this Award being
made unless otherwise mutually agreed between the parties.
a. The Employer
and the Union are to have the right to select their representatives however the
representatives (other than those exercising an administrative function, who
will not hold a vote) must hold appropriate scientific qualifications and be
classified as a Senior Hospital Scientist or Principal Hospital Scientist or
equivalent.
b. Where no
Senior or Principal Hospital Scientist is available to sit on the Transitional
Committee, a Hospital Scientist- with at least 8 years’ experience as a
Hospital Scientist- may sit on the Transitional Committee with agreement from
the Employer and Union. Agreement will not be unreasonably withheld.
c. An employee
of the Union may attend as an observer if requested by a member of the
Transitional Committee. Any such observer is not to participate in or interfere
with the conduct of the Transitional Committee.
Conversion request criteria
3. A Technical Officer who:
a. holds a
requisite science qualification; and
b. agrees to
undertake the duties of a Hospital Scientist as determined by the Employer from
time to time; and
c. has been
employed by the Employer as a Technical Officer for at least 6 months,
may make a written request to the Employer to have
their classification converted to a Hospital Scientist as contained within the
Hospital Scientists Award (conversion request).
Request requirements
4. The
Technical Officer will provide a completed conversion request application form,
a copy of their degree certificate and academic transcript, evidence of their
work experience and their written agreement to perform Hospital Scientist
duties.
Entitlement & refusal
5. A Technical
Officer, who makes a valid conversion request under clause 3, is entitled to
reclassification as a Hospital Scientist unless:
a. the Employer establishes it is fair and
reasonable in all the circumstances to refuse the conversion request; or
b. the Technical Officer fails to provide
the information required under clause 4.
Conversion date
6. If the
Employer accepts a conversion request, the Technical Officer’s classification
will be converted to a Hospital Scientist effective the date the conversion
request was made.
Notification of refusal
7. In the Event
that the Employer Refuses the Request on the Basis Set Out in Clause 5:
a. the
notification must include its reasons for doing so, including the basis upon
which it has concluded that it is fair and reasonable to refuse the request;
and
b. the
notification, and covering email, must clearly inform the Technical Officer of
their right to refer the request to the Transitional Committee and take advice
from the Union or such other representative the Technical Officer may choose.
Referral to Transitional Committee
8. Within
1 calendar month of a refusal on the basis set out in clause 5 being
communicated to a Technical Officer in accordance with clause 7, the Technical
Officer or Union may refer the request to a Transitional Committee constituted
in accordance with clause 2 to determine whether the refusal was fair and
reasonable in all the circumstances.
Deemed referral to Transitional Committee
9. Subject
to clause 18, if the Employer does not make a decision in respect of a
conversion request and communicate that decision to the Technical Officer who
made the request by the date 1 calendar month after the request, the request
will be taken as referred to the Transitional Committee on that date.
Transitional Committee convening
10. Within
1 calendar month of a conversion request being referred to the Transitional
Committee under clause 8 or 9, the Transitional Committee will be convened by
the Employer to determine whether the refusal was fair and reasonable in all
the circumstances.
Decisions of Transitional Committee
11. A decision of
the Transitional Committee under clause 10 is to be by majority.
Notification of dispute to IRC
12. The
Employer, Union or the Technical Officer may notify a dispute to the Industrial
Relations Commission for determination as to whether the Employer’s refusal of
a conversion request was fair and reasonable in all the circumstances if the Employer, Union or the Technical Officer disagrees
with the decision of the Transitional Committee.
Time for notification to be made
13. A
notification to the Industrial Relations Commission under clause 12 may be made
within 1 calendar month of the decision of the Transitional Committee under
clause 10.
Deemed conversion where no decision
14. Subject to
clause 18, in the event that the Transitional Committee does not make a
decision within 1 calendar month of the Transitional Committee being required
to convene under clause 10, 14 days after that date the Technical Officer will
be deemed converted to Hospital Scientist effective the date of the request
being made, unless the Employer notifies the matter to the Industrial Relations
Commission or the Technical Officer withdraws their conversion request within
that 14 day period.
Deemed conversion where no notification to IRC
15. If:
a. the
Transitional Committee decides that the Employer’s refusal of a conversion
request was not fair and reasonable in all the circumstances; and
b. no
notification to the Industrial Relations Commission is made within the period
specified in clause 13;
then the Technical Officer will be deemed converted to
a Hospital Scientist effective the date the conversion request was made.
Date of conversion where IRC determines
16. If a
notification is made to the Industrial Relations Commission in accordance with
clauses 13 or 14, and the Commission determines that the Employer’s refusal of
a conversion request was not fair and reasonable in all the circumstances, then
the Technical Officer will be converted to a Hospital Scientist effective the
date the conversion request was made.
Refused requests and delay of further requests
17. If the Employer
refuses a conversion request and:
a. no referral to
a Transitional Committee is made in accordance with clause 8; or
b. the
Transitional Committee decides that the Employer’s refusal of a conversion
request was fair and reasonable in all the circumstances and no notification to
the Industrial Relations Commission is made within the period specified in
clause 13 ; or
c. a
notification is made to the Industrial Relations Commission in accordance with
clauses 12, 13 and 14, and the Commission determines that the Employer’s
refusal of a conversion request was fair and reasonable in all the
circumstances,
then:
d. the Technical
Officer will not be converted to a Hospital Scientist; and
e. the Technical
Officer is prohibited from making a further conversion request unless:
i. the nature of
their employment, including the duties required of them, materially changes; or
ii. 12 months has
passed since the date of the decision of the Transitional Committee.
Agreed extensions of time
18. When dealing
with a request, the Technical Officer and the Employer may agree to alter any
of the timeframes specified in clauses
8, 9, 10, 13 and 14. Such agreement will be in writing.
Matters potentially relevant to refusal
19. Matters which
are potentially relevant to whether the Employer’s refusal of a conversion
request was fair and reasonable in all the circumstances include, but are not
limited to:
a. the particular
nature of the science qualification held by the employee;
b. any gender
disparity in pay within the laboratory or area worked, if any disparity exists;
c. any effect on
the Employer’s ability to attract and retain skilled staff in the laboratory or
area worked, where there are attraction and retention issues;
d. the nature of
the laboratory or area worked, and the nature and volume of work performed
where the employee currently works including duties performed by staff in the
laboratory or area worked, technology and equipment used;
e. the
experience, skills, training and other qualifications of the employee;
f. the
performance of the employee;
g. the
employee’s work experience and duration of the employment; and/or
h. the staffing
numbers and skills mix in the laboratory or area where the employee currently
works.
Matters not to be relied on for a refusal
20. In justifying
any refusal to convert an employee, the Employer cannot rely on an employee:
a. having not
been offered or having not performed particular duties, or
b. not holding a
competency because they have not had the opportunity to obtain it,
as a reason for refusing a request to convert to
Hospital Scientist.
Amendment of award to give effect to decisions
21. Subject to
section 17 and pursuant to section 136(1)(b) of the IR Act, the Schedules to
this Award will be varied by the Commission as part of the determination of any
disputes determined by the Commission in accordance with this Award.
Withdrawal of requests
22. A Technical
Officer may withdraw a conversion request at any time.
Implementation process
23. The Employer
will develop processes for implementation of this interim award to:
a. inform
Technical Officers of this Award and the process, procedure and form for making
a conversion request;
b. identify
categories of employees who may require additional support to make a request
for reclassification due to career disadvantage that may be associated with
possibly race, geography, sexuality, gender, marital status, disability,
language barriers, age and responsibilities as a carer;
c. offer, and
where appropriate, provide additional support to those employees to make a
request to be reclassified;
d. establish an
alternative pathway for applications to be made other than to the employees’
direct line manager;
e. inform
Technical Officers they may withdraw their conversion request at any time;
f. provide new
employees engaged as a Technical Officer with information about this Award and
the process for making a conversion request; and
g. consult with
the Union regarding the above.
Application form to be agreed & content of form
24. The application
form referred to in clause 4 and 23.a. must be agreed between the Union and the
Employer. The content of that form is prescribed by Schedule C to this Award.
Employees not to be worse off
25. Employees will
not be worse off by reason of this Award, in that:
a. the conversion
of a Technical Officer to a Hospital Scientist by way of this Award will be
subject to a transitional arrangement; and
b. the
transitional arrangement will be as such to ensure there is no detriment to the
Technical Officer in them converting to a Hospital Scientist in respect of rate
of pay.
Dispute resolution
26. The dispute
resolution procedures contained in the Health Employees Conditions of
Employment (State) Award 2023, as varied or replaced from time to time,
shall also apply to relevant employees.
Commencement and nominal expiry
27. This Award
commences from 2 months after the day it is made, will nominally expire 12
months after commencement and prevail to the extent of inconsistency with other
awards.
Award to be reviewed
28. Prior to the
nominal expiry, this Award will be reviewed by the Industrial Relations
Commission.
Union not to pursue particular disputes
29. The Union will
not commence or continue any dispute pursuant to section 130 of the IR Act
regarding the proper interpretation of the "Hospital Scientist"
classification within the Hospital Scientists Award during the nominal term of
this Award.
Employer not to withdraw, alter or withhold duties
30. The Employer
will not withdraw, alter or withhold an employee’s duties to avoid
reclassification in accordance with this interim Award.
No prevention of direct hire as Hospital Scientists
31. Nothing in this
interim award prevents an employee being hired directly as a Hospital Scientist
in accordance with the Hospital Scientist Award.
Classification attached to person not position
32. Where the
Technical Officer’s classification is converted to a Hospital Scientist, the
classification is attached to the employee, not the position.
Backdating of early applications
33. Where a request
is made pursuant to clause 3 of this Award within 1 month of the Award’s
commencement, and the employee converts to a Hospital Scientist, the effective
date of the conversion will be backdated to 1 month prior to the request being
made.
Schedule A - Employees determined to be Hospital
Scientists
Schedule B - Employees determined to be Technical
Officers
Schedule. C -
Allowable content of application form
- Name:
- Assignment
number:
- Date of conversion
request:
- Current FTE:
- Cost centre
(if known):
- Current
classification (including grade and year increment e.g. Technical Officer Grade
2 Year 3):
- Location of
work (including laboratory and department):
- Area of work
(e.g. microbiology):
- Qualification/s
(including name, university and year completed):
- Copy of
qualification certificate and transcript attached:
- Where
relevant to requisite science qualification, memberships or assessments of
professional bodies (certificate or letter attached):
- Experience
relevant to classification/relevant science qualification:
·
Date of commencement with NSW Health as a
Technical Officer:
·
Date and location/area of work as a Technical
Officer (or above):
·
Statement of service, statutory declaration or
similar evidence attached for positions outside of NSW Health:
- Agreement to
perform the duties of a Hospital Scientist as determined by the Employer and,
if available to the employee, the relevant Hospital Scientist position
description:
- Other
information the employee would like to add in support of their conversion
request:
- Additional
further information as agreed between the Union and Employer.
J. McDONALD, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.