DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Health Professionals and Support Services Award 2010
(AM2016/31)

4 yearly review of modern awards - Health Professionals and Support Services Award 2010 – further decision.

[1] On 3 December 2018 we issued a decision (December Decision) 1 dealing with the substantive claims in relation to the Health Professionals and Support Services Award 2010 (HPSS Award).

[2] In the December Decision at paragraphs 79 to 126 we dealt with submissions and evidence in relation to Schedule C of the HPSS Award. Schedule C is entitled ‘List of Common Health Professionals’. The controversy we were considering in the December Decision sprang from the HSU’s claim that Schedule A and B of the HPSS Award should be amended to clarify that the list of Common Health Professions contained in Schedule C is an indicative list and not an exhaustive list. After considering the submissions and evidence we said at paragraph 113:

“Our preliminary view is that it is undesirable to constrain the coverage by reference to an inflexible list of occupations, the names of which and/or work performed may change over time as advances in the health profession occur”

[3] Also at issue was the coverage of the occupation of Oral Health Therapist, and by implication the associated occupation of Dental Hygienist.

[4] We decided to defer consideration of these coverage questions and issue a timetable for submissions and a hearing date in 2019 to address the coverage of the HPSS Award. 2

[5] On 22 May 2019 and 23 August 2019 directions hearings were held before Deputy President Booth. At the hearing of 23 August 2019, the Dental Hygienists Association of Australia (DHAA) submitted that the Full Bench ought to consider the question of Schedule C before considering the other coverage matters. The logic of this proposition was that if the Full Bench decided that Schedule C should be exhaustive it would not be necessary to further consider the coverage of the award as this finite list would spell out the coverage.

[6] The Full Bench acceded to this request and accordingly on 17 September 2019 the Full Bench issued directions for submissions and evidence and set a hearing date of 2 December 2019.

[7] This decision concerns the matters addressed at that hearing.

Submissions

Health Services Union (HSU)

[8] HSU submits the List of Common Health Professionals (the List) in Schedule C of the HPSS Award is 3, and should be, indicative only.4 They submit the broad term ‘Health Professionals’ is expanding and specialising.5 For example, there are health professionals recognised and registered that did not exist 10-20 years ago.6 HSU submits the HPSS Award should explicitly state that the List is indicative to prevent confusion7 and to ensure that the List is not used by employers to resist award coverage.8 They contend by treating the List as indicative, future employers will retain the capacity to persuade the Commission why a particular professional group should fall outside coverage.9

[9] In reply to opposing submissions from ABI and NSWBC, Ai Group, DHAA, ADA, ADPA and MIERG 10, HSU summarises their position that clause 4.1 of the HPSS Award defines its coverage of employees by reference to the classification list in clause 15.11 They submit Schedule B.2 determines the classification levels of Health Professional Employees based on factors such as qualifications, experience and responsibility level12; while Schedule C only provides a list of common health professionals covered.13 Accordingly, HSU submits that an amendment to limit Schedule C to be an exhaustive list incorrectly suggests that this Schedule defines the HPSS Award’s coverage.14

[10] HSU proposes an amendment to the preamble to Schedule B.2 as follows:

“B.2. Health Professional employees – definitions

The List of Common Health Professionals is an indicative list and is not an exhaustive list of all the health professional occupations covered by this Award.” 15

Australian Business Industrial and New South Wales Business Council (ABI and NSWBC)

[11] ABI and NSWBC maintain that the HSU draft determination is unnecessary. 16 They submit that the current List is already indicative,17 not an all-inclusive guide of the types of health professionals covered.18 They submit that inclusion in the List serves as an example of what may be included in a particular award classification19; but that the List does not determine award coverage, which is determined by clause 4. Accordingly, any changes to the List should not result in change in coverage.20

[12] ABI and NSWBC then outline some limitations resulting from the List as currently drafted. They submit that if the List is indicative, then ‘users are left without an appropriate level of clarity as to which ‘specified employees’ mentioned in s. 143(2) of the Fair Work Act 2009 are covered by the Award. 21 They submit that wording in Schedule B referring to ‘a list’ (as opposed to more conclusive wording such as ‘the list’) and ‘common’ (suggesting there might be other, less common professions) is not useful and introduces additional confusion to users when determining whether an occupation is included in the List.22 However, they did not propose specific draft amendments.

Australian Dental Association (ADA)

[13] ADA claims that the HSU took ‘an overly pedantic reading to the … Award focusing on technicality rather than substance’, 23 and submits that there is ‘nothing ambiguous’ about the ‘definitive language’24 used in Schedule B of the HPSS Award that would mean the List ‘could be regarded as anything other than exhaustive.’25 ADA submit their view that during award modernisation the HSU had originally intended the classification structure to cover all health professionals.26

Australian Dental Prosthetists Association (ADPA)

[14] ADPA submits that the List should be exhaustive, which would have the effect that dental prosthetists are not covered by the HPSS Award because the current list doesn’t specify this profession. 27 They maintain that in the private sector, dental prosthetists have always been award free.28 They refer to their joint submission with ADA which highlights their unified views.29

ADA AND ADPA

[15] ADA and ADPA jointly submit the List is and should remain exhaustive 30, as the HPSS Award never intended to cover professions not on the List.31 They submit there is no application to extend the coverage of the Award; no evidence to support such an extension; and most titles in Schedule C are static.32 To achieve greater clarity, ADA and ADPA suggest including a preamble to Schedule C as follows:

“This Award applies to those health professionals whose duties and qualifications are the same or substantially the same as the common titles for those professionals in the following list.” 33

Medical Imaging Employment Relations Group (MIERG)

[16] MIERG submits that the List is exhaustive. 34 MIERG support ADA and ADPA’s submissions.35

Dental Hygienists Association of Australia (DHAA)

[17] DHAA submit the List is and should remain exhaustive for the sake of certainty, efficiency, ease and support for employers, small business owners and employees. 36 They submit other awards also contain exhaustive lists.37 DHAA refute HSU’s view that an exhaustive list would allow employers ‘with a creative approach to job description’38 to determine award coverage.39 They state that the List is of occupations, not jobs: ‘as such, incorrect assumptions about award coverage by employers are much more likely to be made if the List is indicative.’40 DHAA submit that ‘award variations are available to deal with any changes in occupational nomenclature in the usual way.’41

[18] DHAA submit that further clarity could be obtained by adding an exclusion clause. 42 It then submits as example a number of modern awards which contain exclusion clauses.43 Regardless of how the Full Bench decides on the List, DHAA proposed the following amendment, which has an exclusion clause (at 4.4)44:

“Coverage

4.1 This award covers the following employers and occupations:

(a) Employers throughout Australia of employees in the health industry (as defined) in the classifications listed in this award and those employees to the exclusion of any modern award;

(b) employers engaging a health professional employee falling within the classification listed in clause 15. Clause 15 has application only to the occupations specified in Schedule B – List of Common Health Professionals. (emphasis added).

4.2 This award does not cover an employee excluded from award coverage by the Act

4.3 This award covers health professionals engaged in the occupations set out in Schedule C of the Award.

4.4 The following occupations are not covered by this Award:

a) Dental Hygienist;

b) Oral Health Therapist.”

[19] In reply, should the Commission view that the list should be indicative, DHAA proposed the following variation:

“A.2 Health Professional employees – definitions

An indicative list of common health professionals which are covered by the definitions is contained in Schedule B – Indicative List of Common Practice Areas and Titles. This list does not include the award free occupations of Dental Hygienists or Oral Health Therapists.” 45

Ai Group

[20] Ai Group relies on decision [2009] AIRCFB 948 to support its view that the List is exhaustive. 46 If the List is not exhaustive, then the effect of the AIRC’s decision to remove dental hygienists from the List would arguably be superfluous.47 Ai Group submits that the List ‘does not, expressly or otherwise, state or suggest that the Award covers ‘health professionals’ generally. Rather … it is the health professionals in Schedule C, and only those professionals that are covered by the Award.’48 They submit that an indicative list would give rise to ‘considerable uncertainty’, and make it ‘impossible to ascertain precisely where the coverage of the instrument starts and finishes.’49 Ai Group submit that the coverage of Modern Awards is meant to remain relatively static unless a successful variation application is made.50

[21] Ai Group submit that if HSU’s proposed amendment were granted, ‘the Commission would effectively be expanding the coverage of the Award in an indefinite manner, without proper consideration being given to the additional health professionals that would subsequently be covered by it.’ 51 They submit HSU’s proposed amendment would not meet the modern awards objective.52

[22] Ai Group supports submissions of ABI and NSWBC, ADA and ADPA and DHAA barring certain points. 53 Ai Group oppose ABI and NSWBC’s characterisation of the List as a non-exhaustive guide.54 They submit wording to ‘a list’ as opposed to ‘the list’ suggests ‘an intent the list merely reflects a number of common occupational names which may be used in reference to covered occupations.’55 Ai Group submit ADA and ADPA’s views on ‘Child Life Therapists’ should be dealt with as a discrete issue.56 They oppose ADA and ADPA’s proposed preamble and submit this would introduce further uncertainty.57 They oppose DHAA’s suggestion of an exclusionary list of health occupations because an exclusionary list is contradictory to not having an indicative list.58 Ai Group submits if the Full Bench determines the List is exhaustive, then a note can be inserted to provide additional clarity.59

Aged Care Employers

[23] In its 2017 submission, Aged Care Employers support the position of AIG on this matter. 60

Business SA

[24] Business SA submits that an indicative list would be confusing and ambiguous, and supports an exhaustive list. 61

Private Hospital Industry Employers Association (PHIEA)

[25] PHIEA submit that the List should be indicative due to the ‘constant evolution of position titles and the introduction of variations to existing professional disciplines’. 62 However, after reading HSU’s 2015 submission63, and following discussion with other employer parties, they decided the List should be exhaustive.64 PHIEA express concerns that positions which lack qualifications may be added to the List of professionals if the list is not exhaustive.65 In its most recent submission, PHIEA support Ai Group’s submissions.66

Consideration

[26] We have decided to confirm our provisional view and determine that the List in Schedule C of the HPSS Award is indicative not exhaustive.

[27] We have done so for the following reasons:

a) The roles of some health professionals are adjusting as technology, research and consumer demand are changing.

b) The titles of some health professionals are changing as professional bodies prefer one title over another.

c) It is not desirable for some health professionals to be covered by the HPSS Award and others to be award free simply because of a change in name or adjustment in role.

d) It is inconsistent with the modern awards objective that “The FWC must ensure that modern awards, taken together with the NES, provide a fair and relevant minimum safety net of terms and conditions” to confine the coverage of the HPSS Award to a limited number of specific titles of health professionals.

e) It is consistent with the modern awards objective and s.143 (2) of the Fair Work Act 2009 (FW Act) that clause 4 Coverage of the HPSS Award, in conjunction with Schedule B2 Health Professional employees – definitions, governs the coverage of the HPSS Award, supplemented, rather than confined by Schedule C.

[28] We are mindful of s.143(7) of the FW Act that says:

(7) A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under the laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

[29] We note the proposal for a new preamble to Schedule C put forward by ADA and ADPA and the proposal from DHAA for formulations that specifically exclude the occupations of Dental Hygienists and Oral Health Therapists. We also note the submission of the ADA and the ADPA that dentists and dental prosthetists ought not be covered by the HPSS Award.

[30] We consider that those proposals are premature since our hearing was limited to the question of “whether the List of Common Health Professionals contained in Schedule C of the Award should be indicative or exhaustive” in accordance with the directions of 17 September 2019.

[31] In light of s.143 (7) of the FW Act, and the confined question being determined in the manner it has been, we will provide a timetable for submissions and set a hearing date for any interested party to further address the coverage of the HPSS Award.

[32] The HPSS Award will not be varied until we finalise the coverage of the HPSS Award so no determination accompanies this decision.

Conclusion

[33] We have determined that the List in Schedule C of the HPSS Award is indicative.

[34] We have issued directions with this decision for the filing of submissions and evidence in relation to which Health Professional occupations should not be covered by the HPSS Award.

[35] As per the directions issued with this decision, the matter is:

•  listed for mention on Tuesday 28 January 2020 at 10.00am (AEDT) by telephone; and

•  provisionally listed for hearing on Monday 4 May 2020 – Friday 8 May 2020 at the Fair Work Commission in Sydney.

VICE PRESIDENT

Appearances:

Ms R Liebhaber and Ms L Doust for the HSU.
Mr H Harrington for Ai Group.
Ms K Thomson for Australian Business Lawyers and Advisors.
Ms K Murphy and Dr C Tran for the DHAA.
Mr B Miles and Mr D Wilkinson for the ADA.

Hearing details:

2019.
2 December.
Sydney with videolink to Newcastle.

Final written submissions:

Business SA’s submissions dated 25 January 2015.
Aged Care Employer’s submissions dated 9 June 2017.
PHIEA’s submissions dated 13 August 2019.
ABI and NSWBC’s submissions dated 14 October 2019.
ADA’s submissions dated 14 October 2019.
ADPA’s submissions dated 14 October 2019.
MIERG’s submissions dated 14 October 2019.
HSU’s submissions dated 15 November 2019.
Ai Group’s submissions dated 25 November 2019.
DHAA’s submissions dated 25 November 2019.

Printed by authority of the Commonwealth Government Printer

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 1   [2018] FWCFB 7350.

 2   [2018] FWCFB 7350 at [126].

 3   HSU Submission, 28 January 2015.

 4   HSU Submission, 17 March 2017; HSU Submission , 22 May 2017; HSU Submission, 15 November 2019.

 5   HSU Submission, 4 March 2015 at [4]-[5].

 6   HSU Submission, 4 March 2015 at [6].

 7   HSU Submission, 17 March 2017.

 8   HSU Submission, 12 February 2018 at [52].

 9   HSU Submission, 17 March 2017.

 10   HSU Submission, 15 November 2019 at [10]; Submission, 22 August 2019 at [5]-[8]; Submission, 22 August 2019 at [12].

 11   HSU Submission in reply, 15 November 2019 at [10(a)-10(b)].

 12   HSU Submission in reply, 15 November 2019 at [10(d)].

 13   HSU Submission in reply, 15 November 2019 at [10(e)].

 14   HSU Submission in reply, 15 November 2019 at [10(f)-(g)].

 15   HSU Submission in reply, 15 November 2019 at [11(c)]. An earlier draft of this proposed Schedule can be found at HSU Submission, 17 March 2017 at [23], [37].

 16   ABI and NSWBC Reply Submission, 21 August 2015 at [2.6]; ABI and NSWBC Submission, 14 October 2019.

 17   ABI and NSWBC Submission, 14 October 2019 at [2.1] and [2.4]; Submission, 2 February 2015 at [49]; Submission, 5 March 2015; Submission, 21 August 2015 at [2.2]-[2.3].

 18   ABI and NSWBC Submission, 14 October 2019 at [2.1] and [2.4]; Submission, 2 February 2015 at [49]; Submission, 21 August 2015 at [2.2]-[2.3].

 19   ABI Submission, 2 February 2015 at para [49].

 20   ABI Reply Submission, 21 August 2015 at [2.1]-[2.9].

 21   ABI and NSWBC Submission, 14 October 2019 at [3.3].

 22   ABI and NSWBC Submission, 14 October 2019 at [2.6] and [2.7].

 23   ADA Reply Submission, 9 June 2017 at [70].

 24   ADA Reply Submission, 9 June 2017 at [37].

 25   ADA Reply Submission, 9 June 2017 at [23].

 26   ADA Reply Submission, 9 June 2017 at [39]-[66].

 27   ADPA cover letter to ADA and ADPA Submission, 14 October 2019 at [12].

 28   DPA cover letter to ADA and ADPA Submission, 14 October 2019 at [8].

 29   ADPA Submission, 14 October 2019 at [13]-[14].

 30   ADA and ADPA Submission, 14 October 2019 at [9]; ADA Reply Submission, 9 June 2017 at [66].

 31   ADA and ADPA Submission, 14 October 2019 at [9a] and [81].

 32   ADA and ADPA Submission, 14 October 2019 at [9b-9c].

 33   ADA and ADPA Submission, 14 October 2019 at [70].

 34   MIERG Submission, 14 October 2019.

 35   MIERG Submission, 14 October 2019.

 36   DHAA Submission,14 October 2019 at [6] and [31]; DHAA Submission, 21 August 2015 at [8]; Correspondence, 4 July 2016; Response to further report to the Full Bench, 29 April 2016; Submission, 17 March 2017.

 37   DHAA gave the examples of the Aboriginal Community Controlled Health Services Award 2010, the Ambulance and Patient Transport Industry Award 2010 and the Animal Care and Veterinary Services Award 2010: DHAA Reply Submission, 22 May 2017 at p. 3.

 38   HSU Submission, 12 February 2018 at [60].

 39   DHAA Submission, 31 July 2019 at [19]-[20]; DHAA Submission, 14 October 2019 at [15]-[16].

 40   DHAA Submission, 31 July 2019 at [20].

 41   DHAA Submission, 14 October 2019 at [33].

 42   DHAA Submission, 31 July 2019 at [21].

 43   DHAA Submission, 14 October 2019 at [21]-[29].

 44   DHAA Submission, 14 October 2019 at [7].

 45   DHAA Submission, 14 March 2018.

 46   Ai Group Reply Submission, 4 March 2015; Submission, 31 July 2019; Submission, 19 August 2019; Submission, 11 November 2019; Submission, 25 November 2019.

 47   Ai Group Reply Submission, 4 March 2015 at [74]-[75]; Reply Submission, 28 August 2015 at [81]-[83]; Submission, 31 July 2019 at [23]. ADA also use the example of AIRC’s decision to remove dental hygienists from the List to support its claim that the list is intended to be exhaustive: ADA Reply Submission, 9 June 2017 at [65].

 48   Ai Group Reply Submission, 8 June 2017 at [28]-[84].

 49   Ai Group Reply Submission, 8 June 2017 at [36], [46]-[50].

 50   Ai Group Submission, 31 July 2019 at [19].

 51   Ai Group Reply Submission, 8 June 2017 at [50].

 52   Ai Group Reply Submission, 8 June 2017 at [53]-[83].

 53   Ai Group Submission, 11 November 2019 at [8].

 54   Ai Group Submission, 11 November 2019 at [10].

 55   Ai Group Submission, 11 November 2019 at [14].

 56   Ai Group Submission, 11 November 2019 at [20].

 57   Ai Group Submission, 11 November 2019 at [21]-[24].

 58   Ai Group Submission, 11 November 2019 at [29].

 59   Ai Group Submission, 11 November 2019 at [26].

 60   ACE Reply Submission, 9 June 2017 at [3].

 61   Business SA Submission, 28 January 2015 at Item 2, p. 6.

 62   PHIEA Submission, 27 January 2015 at [8]; Submission, 17 February 2015 p.3-4, p.8-9, p.10.

 63   HSU Submission, 28 January 2015.

 64   PHIEA Reply Submission, 17 February 2015 at pp. 3-4, 8-10; Submission, 19 August 2015 at p.4; Submission, 13 August 2019 at p.2.

 65   PHIEA Reply Submission, 18 August 2015 at p. 4.

 66   PHIEA Submission, 13 August 2019 at p.2.