C2004/2042, Transcript of Proceedings [2004] AIRCTrans 2042 (2 June 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7274
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/2042
C2004/2043

HEALTH SERVICES UNION
OF AUSTRALIA

and

AUSTRALIAN RED CROSS
BLOOD SERVICE

Notifications pursuant to section 99 of the Act
of an industrial dispute re clause 1(b)(iv) of
the Medical Scientists Award 1991 and clause 38 -
Technological Change of the Medical Scientists
Award 1991

MELBOURNE

2.16 PM, WEDNESDAY, 19 MAY 2004

PN1

DR R. KELLY: I appear for the Health Services Union of Australia and with me is MS C. BALL.

PN2

MR V. GODDARD: I appear on behalf of the Australian Red Cross Blood Service together with MR G. YOUNG.

PN3

THE SENIOR DEPUTY PRESIDENT: Dr Kelly, I have called these matters on together because they both involve the same award and the same employer and the same union. Is that appropriate?

PN4

DR KELLY: It is, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. What would you like to me what they are about, please?

PN6

DR KELLY: Yes, it possibly would be better characterised as a dispute over the application of the enterprise agreement which applies to the Red Cross Blood Bank and the Health Services Union of Australia. I think we have notified it as a section 99 but it is probably more appropriate that it was notified as a dispute under the grievance and dispute settling provisions of the enterprise agreement because essentially the matters at issue between us go to the application of the enterprise agreement and behind that enterprise agreement the Medical Scientists Award 1992.

PN7

Just by way of background, this matter involves the employment of scientists at the Ballarat site of the Australian Red Cross Blood Service. There is a single scientist employed at that site and in December 2003 the union wrote to the Red Cross Blood Bank in order to attempt to resolve three issues that had come up at that site. The sole scientist at that site when she was leave was relieved by another scientist for periods of leave, so the three issues there were around the payment of the relief scientist when she came into relieve and I am pleased to be able to tell the Commission that that matter is now resolved.

PN8

The other two issues were the payment of the sole scientist's allowance which is payable under the enterprise agreement between the Australian Red Cross Blood Service and the HSUA to the sole scientist at Ballarat and a dispute around the job description of the scientist at Ballarat. Probably the most straight forward of the two remaining issues is the payment of the sole scientist's allowance because the dispute over the confirmation of the job description has changed over time to now be in fact a dispute between the parties over potential organisational change and redundancy because the outworkings of the settlement of the first matter and the dispute over the second matter being the sole scientist's allowance has led to the Red Cross Blood Bank determining that they may change the organisation of work at the laboratory and I understand that there have been - I haven't been personally involved but I understand that there have been some correspondence between Ms Ball on our behalf and the Red Cross Blood Service around these issues.

PN9

They arose first of all around the job description. The issue then became whether the person was a scientist or a technician and that matter was never resolved and now it becomes an issue between us as to whether or not the job is going to be moved to Melbourne and the request by the union to provide us with information in writing so that we might consider that before we meet with the Australian Red Cross Blood Service about those issues. It is probably easier if I go first of all to the sole scientist issue.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I don't have a copy of the certified agreement. It wasn't referred to in the notification so I wasn't aware of it.

PN11

DR KELLY: No, I apologise for that. I could just give you the last page of the certified agreement appendix just to indicate that there is a sole scientist allowance under the agreement.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. What is the name of the agreement?

PN13

DR KELLY: The agreement is called Health Services Union of Australia Number 4 Branch and Australian Red Cross Blood Service - Victoria Certified Agreement 2002. The agreement contains a settlement of disputes and grievances provision within the agreement and as an appendix the rates of pay and allowances. So within the appendix, the last page of the appendix I have given you indicates that there is a sole scientist's allowance. Those columns of rates apply from the various operative dates and the last operative date is 1 March 2002.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. There is a heading called Sole Allowance.

PN15

DR KELLY: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: I assume that is in the scientist classification?

PN17

DR KELLY: It is, yes.

PN18

THE SENIOR DEPUTY PRESIDENT: And is there a clause in the agreement that indicates when that is payable?

PN19

DR KELLY: No, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: No, that would be too simple, wouldn't it?

PN21

DR KELLY: That would be too simple.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. I will hand you back that page, Dr Kelly.

PN23

DR KELLY: You are aware of the complexities of our awards and agreement and that would be far too simple.

PN24

THE SENIOR DEPUTY PRESIDENT: Far too simple.

PN25

DR KELLY: Far too simple. So indeed we need to go back to our Victorian Medical Scientists State Award.

PN26

THE SENIOR DEPUTY PRESIDENT: Haven't we got this - no, this is an agreement now, not a simplified award.

PN27

DR KELLY: Now, your Honour, if I can just let you into this delicious little tail, we have offered the VHIA and the Department of Human Services to consolidate the awards and EBAs so we would only actually be referring ever to two documents which would be the new EBA 2004 and an award, which would be the simplified award. We have offered them that opportunity and they have said they are not interested.

PN28

THE SENIOR DEPUTY PRESIDENT: Well, the next time you get Mr Jonathan here tell me and I will twist his arm.

PN29

DR KELLY: Thank you. So we do need to go back to the old State award and that is where we find the reference to sole scientist. I haven't photocopied the whole award but I will hand you the salary schedule which appears in part 1 of the Victorian State Medical Scientists Award 1992.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN31

DR KELLY: The sole scientist allowance only applies to grade 1 scientists who are required to work alone. So going to page 3 on the right hand side of this photocopy.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

DR KELLY: Down to (b), scientist grade 1.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

DR KELLY: Then we find provided that with Roman numbering, (iv), additional rates:

PN36

A sole scientist, ie, a scientist who is the only scientist employed in a department shall be ...(reads)... scientist grade 1.

PN37

So they get an allowance of 5 per cent of the scientist grade 1 rate in addition to their weekly rate.

PN38

THE SENIOR DEPUTY PRESIDENT: So it is 5 per cent of $466.10?

PN39

DR KELLY: It was then in 1992 and on that schedule to which I referred the sole scientist's allowance is currently $33.80 as at March 2003.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

DR KELLY: The scientist concerned has been employed at the Ballarat laboratory for more than six years so this is a matter of a claim that goes back six years.

PN42

THE SENIOR DEPUTY PRESIDENT: And I take it there has been some attempt at resolving it between the parties?

PN43

DR KELLY: Yes, there has. There has been a exchange of letters and there have been meetings between Ms Ball and I believe Mr Goddard. So there has been a series of meetings and attempts to resolve this matter between the parties and it remains unresolved, which is why we are before you today.

PN44

THE SENIOR DEPUTY PRESIDENT: Well, it seems straight forward enough on its face. Now, Mr Goddard, why isn't the Red Cross paying that allowance, or why it shouldn't?

PN45

MR GODDARD: Your Honour, the earlier references to the complexities of the Medical Scientists Award perhaps under various variations from that '92 interim award, if it might assist the Commission I am going to refer to the consolidated award of 2003. The reference to the dispute settlement procedure in the enterprise agreement I fully concur with Ms Kelly that it is appropriate that the matter be heard under that particular provision.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, in that case I will give leave to the HSUA to amend the notification to a notification under the dispute settling procedure in the certified agreement. I don't require any formal application, but we will treat it as a matter under the dispute settling clause of the certified agreement.

PN47

MR GODDARD: Clause 19.5.5(b)(iv) of the 2003 award has a similar reference to the, for want of a better word, primary award, in 1992 - - -

PN48

THE SENIOR DEPUTY PRESIDENT: The primary award being the old Victorian award?

PN49

MR GODDARD: The old Victorian award, yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR GODDARD: And presently the allowance does equate to $33.80 per week or $1757.60 annually. Our grounds for refusal go to an interpretation of the 19.5 which begs the question, your Honour, we feel where it says:

PN52

Is the only scientist employed in a department.

PN53

THE SENIOR DEPUTY PRESIDENT: I was wondering what a department meant when I read it.

PN54

MR GODDARD: Yes, your Honour. Can I say that the 2003 award contains similarly to the 1992 award the various definitions of what is a department. Reference to clause 19.5.7(c) speaks of:

PN55

A pathology department which means a department consisting of four or more of the following ...(reads)... radioimmunoassay.

PN56

It also refers at clause 19.5.13(a)(ii) to a particular formula for identifying what is a department or section. It goes to defining what is in fact a unit in calculating for purposes of responsibilities and gradings and states that a unit is one of andrology and there is a long list of them, your Honour. I could provide that list if it is helpful to the Commission.

PN57

We say also, your Honour, that the award specifies a department in express terms as in clause 19.5.10 where it highlights organisations such as the Royal Children's Hospitals and talks about the haematology department, the Royal Melbourne Hospital where it talks of a biochemistry department, a haematology department and a microbiology department. Nowhere, your Honour, in the award is the Australian Red Cross Blood Service or its predecessor, the Red Cross Blood Bank, are referred to as a department for the purposes of the award.

PN58

It may also interest the Commission that the association seems to have recognised perhaps a deficiency and notwithstanding Ms Kelly's comments about the VHIA earlier, the need for simplification, the current log of claims which is before the public hospitals and health agencies for negotiation for a new Public Sector Certified Agreement seeks to redefine what is a sole practitioner and the payment there to a medical scientist and I might say, your Honour, that had that been in the enterprise agreement that we currently have we probably wouldn't be in dispute over whether there was application of a sole practitioner since it refers to a particular work site and it refers to a unit or a section and not a department.

PN59

The application seeks to have the allowance applied to a sole practitioner to a work site, as I have previously stated. That is the case where a medical scientist is the only person employed in their unit or section as defined by the award. The Australian Red Cross Blood Service employs some 150 persons in the classification of a medical scientist, the majority of which are engaged in the activities of testing associated with the collection and processing of the blood and blood products.

PN60

Testing is an activity which the blood service does not conduct in Ballarat. All testing for the State of Victoria is conducted at the Southbank site. Notwithstanding this Ms Hooper has been employed by the blood service since 1 June 1995 when it is my understanding that she was transferred from the then Blood Bank which operated out of the Ballarat Base Hospital onto the payroll employment of the then Red Cross Blood Bank. Ms Kelly says that the claim is for the past six years. The claim was first brought to our notice in March 2003 and the correspondence, as Ms Kelly says, started about December 2003.

PN61

We have reached an impasse in regard to this. We have reached an impasse in regard to the other matter in that the original citation in correspondence from the Medical Scientists Association was referring to technological change and clause 37 of the 1993 interim award and it was unclear what it was that the medical scientists were actually claiming, that we had a lack of consultation or what in fact was the issue in regard to technological change. Having said and put that the grounds for the refusal go to the interpretation, the Australian Red Cross Blood Service is willing to have the Commission by conciliation in the matter. Thank you.

PN62

THE SENIOR DEPUTY PRESIDENT: What does a scientist do, the person at Ballarat?

PN63

DR KELLY: Your Honour, perhaps it would be helpful if I handed up the job description of the person, Lynette Hooper. It is, as I understand it, is blood banking, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you. This is a job description that was signed in 1996 and there has been some negotiations around changing the job description but so far those negotiations have not been concluded so this is the original job description which has applied and does apply now and you will notice that it refers to a department which was the specific issue that we are at issue around the payment of the sole scientist allowance. This person is a Blood Bank scientist at Ballarat Blood Bank and the department is technical services Ballarat.

PN65

She is the only scientist employed in the department called technical services at Ballarat. I could take you back to the award in terms of what a department means if that would assist your Honour, but I think it is pretty clear from the job description and the use of the term department and the fact that she is the only scientist employed at Ballarat that indeed the sole scientist allowance ought to apply.

PN66

THE SENIOR DEPUTY PRESIDENT: What do you say about conciliation, Dr Kelly?

PN67

DR KELLY: Happy to conciliate, your Honour, but I don't think it is actually necessary. I think it is actually quite clear and I don't know that we can conciliate away from a position where we say that this is a clear provision under the award and the enterprise agreement and ought to be paid. We are certainly not able to come to some halfway house with the employer over this.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Goddard, it does seem fairly clear, doesn't it? If you look at the job description and you have got a copy of it, have you? Did Dr Kelly give you a copy? The person concerned, Ms Hooper, is employed in the technical services department.

PN69

MR GODDARD: If I might say, your Honour, that one of the issues that has been protracted has been this position description is dated 1 January 1996. It was due for review in 1998. It is still a matter of resolution with the employee concerned that the work that is required to be done is not the work of a medical scientist.

PN70

THE SENIOR DEPUTY PRESIDENT: Why has she been employed as a medical scientist for eight years?

PN71

MR GODDARD: Well, I could go into that detail if your Honour wishes but it really goes to what occurred, is my understanding, back in 1993 and I had no part in this, it was before my time so to speak, when the Blood Bank of Victoria centralised its regional testing activities into the Southbank site.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR GODDARD: And there were two places where people classified as scientist still remained after that date. One was in Ballarat which conducted an inventory and distribution function, that is, a particular blood banking. That is, stock went in so to speak and stock goes out and the Geelong Hospital site which continued to do processing I believe until 1998 and engaged scientists in the work of a scientist. Since that time those scientists were transferred into Melbourne or to other occupations and Ms Hooper and Ms Lindsay were not the cause of any ..... I suppose in terms of operational viability for the distribution of blood and blood products for the Ballarat region.

PN74

THE SENIOR DEPUTY PRESIDENT: But the fact of the matter is, is it not, that Ms Hooper has been classified and paid as a medical scientist since 1996?

PN75

MR GODDARD: That is correct, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: And she works in the technical services department of the Red Cross Blood Service and located at the Ballarat Blood Bank?

PN77

MR GODDARD: If I might assist, your Honour, the technical services department is now known as the laboratory operations and it takes into account all of the testing laboratories at Southbank. It just does not specifically refer to a department being in Ballarat. She is not the sole scientist in the department if one views the department as being the larger of the definition, that is, where multiple testing is taking place and there are multiple responsibilities for testing.

PN78

THE SENIOR DEPUTY PRESIDENT: So you say the department is larger than the location at Ballarat and she is not the only medical scientist employed in the department?

PN79

MR GODDARD: That is right.

[2.40pm]

PN80

THE SENIOR DEPUTY PRESIDENT: She is just the only scientist employed at Ballarat.

PN81

MR GODDARD: That is correct. She is the only scientist employed at Ballarat excepting for the person that Ms Kelly referred to before who from time to time will relieve when this person is on leave.

PN82

THE SENIOR DEPUTY PRESIDENT: Well, it is not straight forward, is it, Dr Kelly?

PN83

DR KELLY: Well, your Honour, there is another provision in our award which determines how a person is to be classified and graded and that goes by location. So irrespective of whether there is a laboratory at Southbank and a laboratory at Ballarat, then the provisions of the award come into play in determining how a scientist actually has their grading determined under this award and I believe that you have been handed part of the 2003 simplified award.

PN84

THE SENIOR DEPUTY PRESIDENT: I assume what those documents are, yes.

PN85

DR KELLY: I think those are what those documents are. So in relation to how a medical scientist is classified, custom and practice has been that you don't look at, for example, at Eastern Health you don't look at Box Hill Laboratory and add up the points for Box Hill and then add in the points for Maroondah, then add in the points for Angliss Hospital to determine a scientist grading.

PN86

You look at the location where they are employed and you take these points to determine whether they are a grade 1, a grade 2, a grade 3 or a grade 4 and it is within those point structures that we find the reference to departments and they are in fact those references to departments and units form part of a provision in the award which is called definition and a department or section is determined according to these waiting factors. So it has never been put before that we should in grading a scientist at Ballarat, determine that her grading depends on how many scientists there are at Southbank.

PN87

Each physical location is taken as a separate location and we have always interpreted the grading structure to be in relation to your location. Otherwise we could have the absurd position where somebody is a grade 4 scientist at Box Hill and that then precludes somebody who is working independently at, in my Eastern example, Maroondah or Angliss could not be graded at that level, even though they supervise other staff. So this has always been used on a geographical basis. This is the first time I have heard that we should roll somebody into a larger geography in order to determine what their grading is.

PN88

If I can take you to those. Do you have a copy of the whole award?

PN89

THE SENIOR DEPUTY PRESIDENT: No, no.

PN90

DR KELLY: We are operating in a bit of a vacuum here.

PN91

THE SENIOR DEPUTY PRESIDENT: We are if the parties aren't providing me with the documents.

PN92

DR KELLY: The page that you were handed I think took you to - because I didn't get a copy of - - -

PN93

MR GODDARD: Might I assist the Commission, this is my copy.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. But this all being overtaken with the potential reorganisation, is it?

PN95

DR KELLY: Well, yes, I think it might be because - I haven't been involved, Ms Ball can speak to it, but as I understand it there has been an attempt by the Red Cross Blood Bank now to say that the person involved is not a scientist but is a technician. So there is an attempt to reclassify the person in the position as a result of the outworkings of this dispute.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Goddard did seem to suggest that she is not performing scientist's work.

PN97

DR KELLY: And that is a matter of contention between the parties at the moment. At the moment the status quo as I understand it prevails and she is being paid as a scientist and up until the point that these matters became active was a scientist and there had never been any suggestion that she was other than a scientist. This seems to be a rather new suggestion that follows on from the prosecution of these matters.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes, because it is suggested that the work that she does is not the work of a scientist I take it.

PN99

DR KELLY: Well, that is the contention of the Red Cross Blood Bank notwithstanding that what she is doing is blood banking and blood banking is a unit under our award and agreement. So that is an issue that is there in the wings if you like. But under our award and agreement - - -

PN100

THE SENIOR DEPUTY PRESIDENT: Does she need to use scientific training in the role she has?

PN101

DR KELLY: Well, we would say that she does need scientific training because what she is doing is actually maintaining the supplies of blood at the regional level and sending out and receiving blood supplies.

PN102

THE SENIOR DEPUTY PRESIDENT: Is she doing any testing or quality control?

PN103

DR KELLY: Yes, she is required to undertake the management of the quality systems, participate in urgent on call duties for urgent blood request and refrigeration failures. I am not sure exactly whether she does do any testing but that is not actually the definition of a scientist per se and I should point out in case I need to that the word medical scientist extends beyond pathology scientist, although probably 90 per cent of them are working in pathology, they work in many other areas that are not strictly pathology.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes. Well, to some extent this matter will turn on that issue too as to whether or not Ms Hooper is performing the work of a scientist or not and has been performing the work of a scientist or not. I mean if she hasn't then your argument falls to the ground. If she has then there is still the debate as to whether or not she is a sole scientist in the department. So the two matters are somewhat linked it seems to me.

PN105

DR KELLY: As I understand it her duties haven't changed and the Red Cross Blood Bank in 1996 classified her as a scientist.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, but the suggestion is that that is an erroneous classification.

PN107

DR KELLY: It has become erroneous eight years later because somebody has - - -

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, it is a bit hard for the employer to contend.

PN109

DR KELLY: A bit hard to sustain I submit.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Goddard, what is the intention in relation to that position?

PN111

MR GODDARD: I understand, your Honour, from when we have sent correspondence to the Medical Scientists Association the operations manager has indicated that the inventory and distribution function at Ballarat is able to be transferred to Southbank, that is, that blood and blood products can be distributed from Southbank rather than Ballarat for logistical operational reasons and operational considerations and that correspondence went quite recently to the Medical Scientists.

PN112

THE SENIOR DEPUTY PRESIDENT: And will that result in Ms Hooper's job at Ballarat ceasing to exist, will it?

PN113

MR GODDARD: Well, that is a likely outcome, yes.

PN114

THE SENIOR DEPUTY PRESIDENT: And that is the subject of the second issues as to what information has been provided to the union?

PN115

DR KELLY: That is correct, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: I think it might be worth going into conference if the parties don't disagree with that. Yes, thank you.

NO FURTHER PROCEEDINGS RECORDED