| [2022] FWCFB 34 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error
Variation on the Commission’s Own Motion—Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018
(AM2013/33 and others)
Health and welfare services | |
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 18 MARCH 2022 |
Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative to correct an error – Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018
[1] In our decision of 4 September 2018, we determined to terminate three 1 State reference public sector transitional awards and to replace these awards by making a State-reference public sector modern award titled the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 (Health Award).2 The provisions of that Health Award reflected an agreement as to content between the parties who participated in the proceeding.
[2] On 3 December 2021 we published a statement 3 identifying errors in the Health Award relating to the higher qualification allowance payable to employees in certain classifications as follows:
1. the standard rate for an audiologist in clause C.1.8 is listed as a Medical Scientist Grade 1, Year 3;
2. the classification for Genetic Counsellors does not identify a classification for the standard rate;
3. the classification for a Medical Physicist does not identify a classification for the standard rate; and
4. the classification for a Psychologist does not identify a classification for the standard rate.
[3] We also identified a further issue that some other rates in the Health Award are inconsistent with the equivalent rates in the superseded instrument, the Medical Scientists Pharmacists and Psychologists (Public Sector – Victoria) Award 2003 as follows:
“For example, the higher duties allowance for a Clinical Perfusionist under the corresponding superseded award is referrable to Grade 1 Year 1 (see Clause 19.2.4(b)). The corresponding allowance in the Health Award is referrable to Clinical Perfusionist Grade 1 Year 3. Further, for a Dietitian the allowance in clause 19.3.6(b) of the relevant superseded award is referrable to the Dietitian Grade 1 Year 2, while the corresponding allowance in the Health award is referrable to Dietitian Grade 1 Year 3.” 4
[4] We sought the parties’ view on whether these rates should be amended.
[5] As to issue 1 in [2] we expressed a provisional view that clause C.1.8(c) should be amended as follows:
“(c) The standard rates of pay for the purpose of this clause shall be “Medical Scientist Audiologist Grade I, Year 3” 5
[6] As to the second and third issues in [2] we noted that neither Genetic Counsellors nor Medical Physicists appeared in any of the four terminated state reference public sector awards. The classifications appear in the Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Interest Enterprise Agreement 2017-2021 (the Enterprise agreement). Our provisional view was that rates of pay would need to be included in the Health Award for the Genetic Counsellor and Medical Physicists classifications. We posited that an alternative approach would be to delete those provisions altogether.
[7] As to issue number 4 in [2] we expressed a provisional view that clause C.8.6(b) should be amended as follows:
“(b) Such allowance shall not be cumulative in the case of multiple higher qualifications. The standard rate of pay for the purpose of this clause shall be Psychologist Grade 1, Year 1” 6
[8] On 28 January 2022 we received a joint submission from the Victorian Hospital’s Industrial Association and the Health Services Union. 7 The parties agree with the Commission’s provisional views for the resolution of issues 1 and 4.8 The parties preferred the option of deleting the references to Genetic Counsellors and Medical Physicists to resolve the second and third issues as the Health Award should reflect the four terminated state reference public sector awards.9
[9] In relation to the rates identified in [13] and [15] of the Statement, the parties indicated that neither party holds concerns over the existing language of the Health Award. 10
[10] We confirm our provisional views in relation to issues 1 and 4 and we will make the amendments to the Health Award as indicated. We are satisfied that the issues we identified are errors in the Health Award and that our discretion should be exercised under s.160 of the Act to correct them.
[11] As to issues 2 and 3 we note the parties’ view that the references relating to Genetic Counsellors and Medical Physicists should be deleted. It appears clear to us that the inclusion of these two classifications has created an uncertainty in the Health Award. Given that the provisions cannot be traced back to any of the terminated state reference public sector awards we consider that deleting the provisions from the Health Award is appropriate. We are satisfied that we should remove the uncertainty by deleting all reference to those classifications from the Health Award.
[12] We deal next with the alignment of some allowance rates derived from the Medical Scientists Pharmacists and Psychologists (Public Sector – Victoria) Award 2003 (Pre-modern Award). As we noted at [13] of the Statement, some higher qualifications for which the allowances are payable under the Health Award do not correlate entirely with the position that pertained under the Pre-modern Award. The table below illustrates the differences.
| Classification |
Qualification |
Pre-modern Award |
Current Health Award |
| Clinical perfusionist |
Graduate Certificate in Clinical Perfusion |
No equivalent |
4% of Clinical Perfusionist Grade 1, Year 3 per week |
| Graduate Diploma in Bacteriology or Graduate Diploma in Health Administration |
No equivalent |
6.5% of Clinical Perfusionist Grade 1, Year 3 per week | |
| M.A.A.C.B., Diploma of Bacteriology, M.Sc., M.App.Sc., M.A.I.P., H.G.S.A.C.C. Graduate Diploma in Health Administration (see clause 4 - Definitions) or any other recognised equivalent Degree or Diploma from a tertiary institution, |
6.5% of Clinical perfusionist Grade one, 1st year of experience per week |
7.5% of Clinical Perfusionist Grade 1, Year 3 per week | |
| F.A.A.C.B., F.A.I.M.L.S., D.Sc., Ph.D., F.A.I.P., F.I.M.L.S. or Member of the Royal College of Pathologist |
10% of Grade 1, 1st year of experience per week |
10% of grade 1, year 3 per week | |
| Dietitian |
Graduate Certificate or other recognised equivalent qualification |
No equivalent |
4% Dietitian Grade 1, Year 3 |
| M.Sc., H.G.S.A.C.C., Graduate Diploma in Health Administration |
6.5% of the Dietitian, Grade 1, 2nd year rate per week. |
7.5% of Dietitian Grade 1, Year 3 | |
| Doctor of Philosophy, Doctor of Science in Dietetics, Fellowship of the Australian Institute of Medical Scientists |
10% of the Dietitian, Grade 1, 2nd year rate per week. |
10% of Dietitian Grade 1, Year 3 | |
| Medical scientist |
Certification Examination for Respiratory Function Scientists, Board of Registered Polysomnographic Technologists, Cytotechnologist |
No equivalent |
4% of Medical Scientist Grade 1, Year 3 |
| Graduate Diploma in Health Administration, Graduate Diploma in Medical Laboratory Science or other recognised equivalent, |
M.Sc., H.G.S.A.C.C., Graduate Diploma in Health Administration 6.5 % of the Dietitian, Grade 1, 2nd year rate per week. |
6.5% of Medical Scientist Grade 1, Year 3 | |
| Diploma in Bacteriology, Membership of the Australian Association of Clinical Biochemists, Member of the Australian Institute of Physics, Master of Science, Master of Applied Science, Human Genetics Society of Australasia Certified Cytogeneticist etc |
M.A.A.C.B., Diploma of Bacteriology, M.Sc., M.App.Sc., M.A.I.P., H.G.S.A.C.C., Graduate Diploma in Health Administration 6.5% of the Scientist Grade I, 1st year of experience |
7.5% of Medical Scientist Grade 1, Year 3 | |
| Fellowship of the Australian Association of Clinical Biochemists, Fellowship of the Australian Institute of Medical Scientists, Doctor of Science, Doctor of Philosophy, Fellowship of the Human Genetics Society of Australia etc |
10% of Scientist Grade I, 1st year of experience per week |
10% of Medical Scientist Grade 1, Year 3 | |
| Pharmacists |
Graduate Certificate in a field of pharmacy, or other recognised equivalent degree |
No equivalent |
4% of Pharmacist Grade 1, Year 2 |
| Fellowship Diploma in the Society of Hospital Pharmacists, the Graduate Diploma in Hospital Pharmacy, Graduate Diploma in Clinical Pharmacy, Post Graduate Diploma in Health Science Administration, Graduate Diploma in Epidemiology |
Fellowship Diploma of the Society of Hospital Pharmacists of Australia, the Graduate Diploma in Clinical Pharmacy or the Graduate Diploma in Hospital Pharmacy 5% Pharmacist grade I, 3rd year of experience |
6.5% of Pharmacist Grade 1, Year 2 | |
| Master of Pharmacy, Master of Science Pharmacology |
No equivalent |
7.5% of Pharmacist Grade 1, Year 2 | |
| Doctor of Pharmacy |
No equivalent |
10% of Pharmacist Grade 1, Year 2 |
[13] The qualification structure from the applicable Pre-modern Award to the Health Award has been updated. The allowances that compensate for similar or identical qualifications in the Pre-modern Award to the Health Award have been increased. Some additional allowances have been included in the Health Award that did not appear in the Pre-modern Award. It appears to us that there are no allowances that have been changed that operate to the detriment of employees under the Health Award when comparing them to the Pre-modern Award.
[14] Consequently, we are not persuaded there is an ambiguity, uncertainty or error requiring rectification pursuant to s.160. And as the parties have indicated that they do not hold concerns about the existing language in the Health Award in this regard, we have determined not to make any changes to these rates.
[15] A draft determination giving effect to the amendments is attached to this decision. We give parties 14 days from the date of this decision to file any comments in relation to the terms of the draft determination. We will deal with any comments received on the papers and a final determination will be issued in due course.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<MA000157 PRXXXXXX>
ATTACHMENT
MA000157 PRXXXXXX |
| FAIR WORK COMMISSION |
DRAFT DETERMINATION |
Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error
Variation on the Commission’s Own Motion
(AM2013/33)
HEALTH PROFESSIONALS, MEDICAL SCIENTISTS AND SUPPORT SERVICES (VICTORIA) STATE REFERENCE PUBLIC SECTOR MODERN AWARD 2018
[MA000157]
Health and welfare services | |
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, XX MONTH 2022 |
Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative to correct an error – Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 – award varied.
A. Further to the decision issued by the Full Bench of the Fair Work Commission on XX Month 2022 [[2021] FWCFB XXXX] the above award is varied as follows:
1. By deleting the words “Medical Scientist” in clause C.1.8(c) and inserting the word “Audiologist”.
2. By deleting clause C.4.
3. By deleting clause C.5.
4. By renumbering clauses C.6 to C.8 as clauses C.4 to C.6.
5. By inserting the number “1” after the phrase “Psychologist Grade 1, Year” in clause C.8.6(b).
6. By updating the table of contents and cross-references accordingly.
B. This determination come into operation from XX Month 2022. In accordance with ss.165(3) and 166(5) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period on or after XX Month 2022.
DEPUTY PRESIDENT
1 Termination of a fourth award, Hospital Specialists and Medical Administrators Award 2002 CRV [AT816036], was deferred until the conclusion of the State Reference Public Sector Modernisation proceeding, see [2018] FWCFB 5557 at para [21].
2 [2018] FWCFB 5557 and PR722369
4 Ibid at [13]
5 Ibid at [4]
6 Ibid at [14]
7 Victorian Hospital’s Industrial Association & the Health Services Union, Submission, 28 January 2022
8 Ibid at [2] and [5]
9 Ibid at [3] – [4]
10 Ibid at [6]