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 2020
(AM2016/31)

4 yearly review of modern awards - Health Professionals and Support Services Award 2020 - substantive issues – further decision – coverage issue.

Background

[1] On 3 December 2018 we issued a decision (the December 2018 decision) 1 dealing with the substantive claims in relation to the Health Professionals and Support Services Award 2010 (now the Health Professionals and Support Services Award 2020;2 the HPSS Award). The December 2018 decision dealt with the substantive claims concerning the following eight provisions:

1. Span of hours;

2. Rostering;

3. List of common health professionals;

4. Translators and interpreters;

5. Weekend and shift penalties;

6. Substitution of public holidays by agreement;

7. New schedule for medical imaging; and

8. Meal breaks.

[2] The issue concerning the ‘List of Common Health Professionals’ (the List) contained in Schedule B to the HPSS Award was discussed at [79]-[126] of the December 2018 decision. The issue originates from a claim by the Health Services Union (HSU) to vary Schedules A and B to the HPSS Award to clarify that the List is indicative rather than exhaustive. Our preliminary view was 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 We decided to defer consideration of the coverage question and we issued a timetable for submissions and a hearing date in 2019 to address the coverage of the HPSS Award.4

[3] The issue concerning translators and interpreters was discussed at [127]-[146] of the December 2018 decision. The issue concerns a claim by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) which originally sought to include the occupations ‘Translator’ and ‘Interpreter’ in the List. The APESMA amended its application seeking instead to extend the coverage clause of the HPSS Award to include ‘Translators’ and ‘Interpreters’ rather than including the occupations in the List in Schedule B. The APESMA also proposed to vary classification definitions in Schedule A to insert the occupation of ‘Translator’ and to use the descriptors ‘NAATI credentialed’ and ‘non-NAATI credentialed’ instead of ‘Interpreter (unqualified)’ and ‘Interpreter (qualified)’.

[4] As we noted in the December 2018 decision, Schedule A to the HPSS Award (entitled ‘Classification Definitions’) contains ‘Interpreter (unqualified) in Support Services Employee - level 5’ and ‘Interpreter (qualified) in Support Services Employee - level 7’.  5 We confirmed that by virtue of the coverage clause, the HPSS Award already covers interpreters when they are employed by an employer in the health industry.6 However, as another eight modern awards make a reference to the occupation or activity of an interpreter either as a classification or in relation to the employee’s entitlement to an allowance, we found it to be desirable for there to be unambiguous award coverage for the ‘translator’ and ‘interpreter’ occupations.7 We considered that this would best be determined by a separate and careful consideration of the appropriate award or awards to cover these occupations and the appropriate rate of pay to be payable, which may require a consideration of work value or at least classification. We proposed to refer this issue to the President for his consideration and did so.

[5] On 18 August 2020 an application was made by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to extend occupational coverage of the HPSS award to translators and interpreters. APESMA also proposed variations relating to classification and description. In this circumstance the claims in relation to coverage for translators and interpreters will be addressed pursuant to this application to vary. 8

[6] The HSU’s claim concerning the substitution of public holidays by agreement, which was discussed at [166]-[167] of the December 2018 decision, was referred to the Plain Language Full Bench 9 (AM2016/15) and has since been determined.10

[7] We dismissed the Medical Imaging Employment Relations Group’s (MIERG) proposal to insert a new schedule to the HPSS Award to cover medical imaging and to provide separate pay and conditions of employees in private medical imaging practice. 11

[8] Finally, in the December 2018 decision we determined that variations would be made to the span of hours provision, the rostering provision, the penalty rates and shiftwork provision and the meal break provision of the HPSS Award. We provided proposed wording for the new provisions at [62], [77], [160] and [185] of December 2018 decision and interested parties were invited to comment. Submissions were received from a number of parties.

[9] On 9 January 2019 we issued a decision (the January 2019 decision) 12 which confirmed the proposed wording of the span of hours, rostering or meal break provisions as set out in the December 2018 decision. A determination13 was issued in conjunction with the January 2019 decision, resolving the substantive claims numbered 1, 2, 5 and 8 listed in [1] to this Decision.

[10] The only remaining matter to be determined by this Full Bench concerns the issue of coverage of occupations other than translators and interpreters under the HPSS Award.

[11] On 22 May 2019 a mention was held before Deputy President Booth to confirm the timetable for the filing of submissions and the listings for hearing in relation to outstanding issue in the HPSS Award. 14 On 20 June 2019 directions15 (the June 2019 directions) were issued by Vice President Catanzariti inviting submissions and evidence in relation to the following questions by 31 July 2019:

•  whether the occupations of Dental Hygienist and Oral Therapist should be covered by the award; and

•  whether the List of Common Health Professionals contained in Schedule B of the award should be indicative or exhaustive.

[12] At a directions hearing held on 23 August 2019, the Dental Hygienists’ Association of Australia (DHAA) submitted that the Full Bench ought to consider the question of whether the List in Schedule B should be exhaustive or indicative before considering the other two coverage matters set out in the June 2019 directions. 16 The logic of this proposition was that if the Full Bench decided that the List in Schedule B should be exhaustive, it would not be necessary to further consider the coverage of the HPSS Award as this finite list would spell out the coverage.

[13] The Full Bench acceded to this request 17 and accordingly on 17 September 2019 issued directions18 for the filing of submissions and evidence and set a hearing date of 2 December 2019. The purpose of the hearing was to consider the preliminary question of whether or not the List in Schedule B to the HPSS Award should be indicative. The following parties attended the hearing:19

•  Australian Business Industrial & NSW Business Chamber (ABI);

•  Australian Industry Group (Ai Group);

•  Australian Dental Association (ADA);

•  Australian Dental Prosthetists Association and another (ADPA);

•  DHAA; and

•  HSU.

[14] During the hearing the HSU 20 submitted that the List is, and should remain, indicative only. The ABI, which sought to rely on its written submissions,21 submitted that the current List is a non-exhaustive guide, which carries some inherent disadvantages as users are left without an appropriate level of clarity.22 The Ai Group23 and the DHAA24 submitted that the List is exhaustive, and should remain so. The DHAA further submitted that if the List was found to be indicative, it would be necessary to include an exclusionary list of health occupations in the award. 25 The ADA and ADPA did not advance a submission on the question, except to state that if the List is found to be indicative, the HPSS Award should exclude dentists and dental prosthetists, oral health therapists and dental hygienists. 26

[15] On 19 December 2019 we issued a decision (December 2019 decision) 27 confirming our provisional view and determining that the List in Schedule B of the HPSS Award is indicative not exhaustive. We also issued directions with the December 2019 decision (which were later amended on 27 April 202028) for the filing of submissions and evidence in relation to which health professional occupations should not be covered by the HPSS Award. Submissions and evidence were due by 28 February 2020 and parties were provided until 24 April 2020 to file submissions and evidence in reply.

[16] The matter was listed for mention on 28 January 2020 29 and for hearing on 4-8 May 2020.30 Due to the COVID-19 pandemic, and associated difficulties with the conduct of hearings, the matter was subsequently relisted for a directions hearing before Deputy President Booth by telephone on 14 May 2020.31 The following parties attended the 14 May 2020 directions hearing:32

•  ABI;

•  ADA;

•  ADPA;

•  DHAA;

•  HSU; and

•  Optometry Australia (OA).

[17] During the directions hearing parties were invited to raise any objection to the evidence filed in these proceedings. 33 Parties were provided until 22 May 2020 to file submissions, and interested parties had until 29 May 2020 to file submissions in reply.34 The directions further provided that after submissions have been filed, the Full Bench will indicate its determination of the admissibility for the finalisation of this matter of any evidence the subject of an objection. The Full Bench will then set a timeframe by which parties are to provide a list of the names of any witnesses required for cross examination.35 Once the list of witnesses required for cross examination is known, the matter will be listed for hearing for the purpose of cross-examination.

[18] Pursuant to the directions issued on 18 May 2020, an objection was received from the HSU in relation to evidence of the ADA, DHAA and OA. 36 Submissions in reply to the HSU’s objections were filed by the ADA37 and the DHAA38.

[19] On 11 August 2020 we published a Schedule of objections to evidence with rulings from the Full Bench (the Schedule). The Schedule contains a summary of the objections raised, the submissions filed in response and the determination by this Full Bench of the admissibility of evidence the subject of objection in these proceedings.

[20] We also issued directions with the Schedule requesting that interested parties provide a list of all witnesses required for cross examination and that parties confirm on behalf of witnesses required for cross examination whether the witness will be available on 8 or 9 October 2020 for hearing. 39

[21] The matter was listed for hearing before the Full Bench on 8 October 2020 in order to facilitate the cross-examination of the following witnesses:  40

•  Dr Carol Tran for the DHAA;

•  Ms Michelle Kuss for the DHAA; and

•  Mr Alex Leszczynski for the HSU.

[22] On 8 October 2020 this hearing was vacated by agreement of the parties due to the unavailability of an advocate and relisted for 27 October 2020. 41 The DHAA; the ADA; the ADPA and the HSU attended the hearing. The Full Bench heard evidence from Mr Leszczynski, Dr Tran and Ms Kuss via Microsoft Teams.42 At the conclusion of the hearing the Full Bench provided oral directions inviting parties to provide any closing submissions and a draft order giving effect to their submissions and evidence in this matter. Submissions were received from the ADA and the ADPA,43 the DHAA,44 the HSU45 and OA and will be discussed below.46

[23] This decision concerns the question of which health professional occupations should not be covered by the HPSS Award.

Legislative framework

General principles

[24] The legislative context for the 4 yearly review of modern awards (the Review) was canvassed in detail in the 4 yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision (the Preliminary Jurisdictional Issues Decision). 47 We adopt and apply that decision.

[25] Subsection 156(2) of the Fair Work Act 2009 (the Act) provides that the Fair Work Commission (the Commission) must review all modern awards and may, amongst other things, make one or more determinations varying modern awards.

[26] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues Decision. In that decision, the Full Bench said that during the Review, the Commission will proceed on the basis that prima facie, the modern award being reviewed achieved the modern award objective at the time it was made. 48 Variations to modern awards should be founded on merit-based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances.49

[27] A number of provisions in the Act that are relevant to the Review operate to constrain the breadth of the discretion in s.156(2). The modern awards objective (in s.134) applies to the performance or exercise of the Commission’s ‘modern awards powers’, which are defined to include the Commission’s functions or powers under Part 2-3 of the Act. The Review function in s.156 is in Part 2-3 of the Act and so will involve the performance or exercise of the Commission’s ‘modern award powers’. Therefore, the modern awards objective applies to the Review.

[28] The modern awards objective is set out in s.134(1):

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.”

[29] The modern awards objective is very broadly expressed, 50 requiring that modern awards, together with the National Employment Standards (NES), provide “a fair and relevant minimum safety net of terms and conditions”, taking into account the matters in ss.134(1)(a)–(h) of the Act.

[30] Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. The obligation to take into account the s.134 considerations means that each of these matters, in so far as they are relevant, must be treated as a matter of significance in the decision-making process. No particular primacy is attached to any of the s.134 considerations, and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[31] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. The s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.

[32] Section 138 of the Act is also relevant to the Review:

“A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[33] Terms that are included in modern awards must be ‘necessary to achieve the modern awards objective’. That which is ‘necessary’ in a particular case involves a value judgment taking into account the matters in s.134 of the Act, to the extent that these are relevant, having regard to the submissions and evidence directed to those considerations. Before varying a modern award in the Review, the Commission must be satisfied that the variation is necessary to achieve the modern awards objective.

[34] Section 136 deals with the content of modern awards:

“136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).”

[35] Section 138 of the Act provides that terms included in modern awards must be “necessary to achieve the modern awards objective”. That which is ‘necessary’ will involve a value judgment based on the assessment of the considerations stated in s.134(1)(a) to (h), having regard to the submissions and evidence. 51

[36] There are special rules in the Act dealing with the variation of coverage terms. 52 Section 163 provides:

“163 Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

(1) The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

(2) The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them.

Special rule about covering organisations

(3) The FWC must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.

The miscellaneous modern award 25

(4) The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.’

[37] As the claim is for the variation of a modern award, s.163(2) is not relevant as it only applies to the making of a modern award. It is clear from the context that the legislature intended to draw a distinction between varying the coverage of an existing modern award and making a new modern award (compare ss 163(1) and (2), and the use of the words ‘make’ and ‘varying’ in s.163(3)). Similarly, ss.163(1) and 163(3) are not relevant as the proposed change relates to the expansion of coverage under the HPSS Award and this would not stop certain employers or employees being covered by the award nor would it have the effect that an organisation not entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award, becomes covered by the award.

Caselaw concerning coverage

[38] A recent decision of the Commission 53 dealt with a review of the coverage provisions of the Miscellaneous Award 2010 (Miscellaneous Award decision) and set out a number of considerations in determining whether the award does, or should, operate to exclude any identifiable class of employees from coverage. In the decision, the Full Bench discussed the proper construction of s. 143(7) of the Act, which provides the following:

“(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 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.

Note:  For example, in some industries, managerial employees have traditionally not been covered by awards.”

[39] The Full Bench made the following remarks concerning the application of s 143(7):

“[31] We consider that the starting point of our consideration is necessarily s 143(7), the prohibition in which establishes an absolute limit to the potential coverage of the Miscellaneous Award irrespective of any other merit considerations. We note at this point that the relevant effect of s 137 read together with s 136(1)(b) is, to the extent that a coverage term in a modern award is expressed to cover classes of employees the subject of the prohibition in s 143(7), it has no effect.

[32] There are four conclusions which may be stated about the proper construction of s 143(7). The first is that it prohibits modern awards being “expressed to cover” the specified classes of employees. That is, the prohibition operates by reference to the terms in which the coverage provisions of a modern award are framed, and requires that such provisions, properly interpreted, not have the effect of extending coverage to the proscribed classes of employees. It does not require that the terms of the award coverage clause simply repeat or incorporate the words of the subsection, or that it contain an express exclusion of the proscribed classes of employees from the coverage of the award.

[33] Second, s 143(7) identifies in paragraphs (a) and (b) two separate classes of employees, separated by the disjunctive “or”. That means that if the coverage term of an award clause is expressed to cover employees falling in one or both of paragraphs (a) and (b), it offends the prohibition.

[34] Third, in relation to s 143(7)(a), we consider that the construction of the words “…those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards…” in clause 4.2 of the Miscellaneous Award adopted in paragraphs [37]-[38] of the Gold Coast Kennels decision is equally applicable to s 143(7)(a) (noting that clause 4.2 was evidently intended by the AIRC award modernisation Full Bench to reflect the terms of s 143(7)(a)). That is, on the plain meaning of s 143(7)(a), the class of employees the subject of the prohibition consists of those employees who:

(1) have not traditionally been covered by awards (State or federal); and

(2) have not traditionally so been covered because of the nature or seniority of their role.

[35] The class of employees in s 143(7)(a) therefore does not include employees who have not traditionally been covered by awards for a reason other than the nature or seniority of their role. The obvious and perhaps primary example of this would be employees performing new or emerging types of work who have not yet been the subject of any application or considered for award coverage. Another possible example is obscure groups of employees who have historically simply “fallen through the gaps” of award coverage.

[36] Fourth, the prohibited class in s 143(7)(b) consists of employees who perform work that is not a similar nature to work that has traditionally been regulated by awards – regardless of why this is the case, unlike s 143(7)(a). However, to fall within this class, the work must not be “similar in nature” - that is, not of a character, kind or sort that has a likeness or resemblance - to traditionally award-regulated work. Thus, merely because employees perform work that is not the same as traditionally award-regulated work is not sufficient by itself to place them within the prohibited class in s 143(7)(b). It is also to be noted that s 143(7)(b) operates by reference to “work” that has traditionally been “regulated” by awards, unlike s 143(7)(a) which is concerned with employees traditionally not “covered” by awards. Thus employees who perform work which resembles in character or kind any work which has traditionally been the subject of award regulation will not fall within the excluded class.” 54

[40] The Full Bench then considered the coverage of a number of specific categories of employees to determine whether they would be affected by any amendment to the coverage provisions in the Miscellaneous Award:

“[54] The second category consists of staff employees in a senior supervisory role who are excluded from coverage of the Aluminium Industry Award 2010 by clause 4.3(d) of that award (together with staff employees in managerial, professional or scientific roles). That exclusion was the result of a decision of the AIRC award modernisation Full Bench issued on 4 September 2009. ¹⁵ The rationale for the exclusion is not expressly stated in the decision, but we infer that it was because such employees had not traditionally been covered by awards. We have undertaken a preliminary examination of pre-modern award coverage of the aluminium industry. That examination suggests that earlier awards were generally made on an enterprise basis and did not include explicit classifications for staff employees in senior supervisory roles. Our preliminary view is therefore that such employees are excluded from modern award coverage by s 143(7)(a), and are excluded from the coverage of the Miscellaneous Award by the current clause 4.4. Any interested party which takes a contrary view may make further submissions in accordance with the direction at the end of this decision.

…

[56] The fourth category is website designers. To the extent that website designers are not covered by the Graphic Arts, Printing and Publishing Award 2010, we do not consider that by default they would necessarily be covered by the Miscellaneous Award. The Ai Group contends in its submissions that they were excluded from the coverage of the former award because there were no pre-modern awards covering work of this nature. If so, they are excluded from modern award coverage by s 143(7)(a) (unless the work was not award-covered because it was “new or emerging” as at 2009), and from the coverage of the Miscellaneous Award by the current clause 4.4. No modification to clause 4.2 or 4.3 would affect this…

[57] In respect of meat inspectors, the position is a little more complex. Meat inspectors employed by the Australian Government have traditionally been award-covered, and are currently covered by the Australian Public Service Enterprise Award 2015. However, clause 4.3(a) of the Meat Industry Award 2010 exempts from its coverage “meat inspectors (being employees of an employer covered by this award who are engaged to perform duties equivalent to duties usually performed by AQIS Meat Inspectors)”. This exemption arose from a submission made by the AMIC in the award modernisation process on 12 June 2009 that such employees “by reason of their seniority and independent activity, were traditionally not covered by federal meat awards”. If this is correct, such meat inspectors would be excluded from award coverage by s 143(7) and from the coverage of the Miscellaneous Award by the current clause 4.4. While it is apparent that that privately employed meat inspectors were traditionally not covered by awards, it seems unlikely however that this was because of their “seniority”, given that Australian Government inspectors were award-covered. The AMIC notably did not contend that private meat inspectors were excluded from award coverage because of the nature of their work. The more likely explanation is that award coverage simply failed to follow the fairly recent reform of the meat industry whereby export meat inspection was effectively privatised. If this is the case, then it may be that clause 4.3 in its current form serves to exclude meat inspectors from coverage under the Miscellaneous Award, and its deletion would affect that position. We invite further submissions about this in accordance with the direction at the end of this decision.”

[41] The Full Bench also considered that it was anomalous to have differential coverage of cleaners and security guards, depending on the industry in which they performed their work. Referring to that differential outcome, the Full Bench said:

“[46] We can identify no intelligible industrial rationale for this outcome. With respect to cleaners and security guards, who generally perform lower-skilled duties for low or modest pay, we see no reason why the identity of their employer should make a difference as to whether such employees have the benefit of award entitlements or not. Being award-free means, among other things, that such employees have a lesser entitlement to minimum wages (being only entitled to the National Minimum Wage), and have no entitlement to penalty rates for working unsociable hours or for overtime, in circumstances where the work performed is the same as that of award-covered employees. [47] Neither the AIRC award modernisation Full Bench’s statement of 25 September 2009 nor its decision of 4 December 2009 explain the rationale for clause 4.3. There is no suggestion that the outcome to which we have just referred was intended. Nor is there any indication that the Full Bench intended to make award-free employees who had previously been covered by an award.”

[42] Another recent decision of the Commission 55 considered an application to extend the coverage of the Amusement, Events and Recreation Award 2010 (Amusement, Events and Recreation Award decision) to encompass ‘golf facilities including but not limited to golf clubs, on-course and off course golf shops and during ranges.’. The Full Bench determined in favour of the application, providing the following consideration:

“[8] We have considered the various written submissions made, over time, by the PGA in the context of the principles enunciated in the Pilots Award Decision. We note also that no party has availed itself of the opportunity to make a submission concerning the variation to the Award proposed by the PGA, let alone oppose the PGA’s proposals. Based on what is before us in the PGA’s submissions, there is somewhat of an industrial lacuna concerning aspects of the golf industry. We are satisfied that it is appropriate to determine this matter on the papers (as the PGA had proposed) and make a determination varying the Award effectively in the terms proposed on 20 February 2020 by the PGA, so as to provide an award-specific fair and relevant minimum safety net of terms and conditions

[9] Our conclusion that it is appropriate to vary the Award in the terms proposed by the PGA is reinforced by the fact that the variation addresses trainee-related classifications within the golf industry. We consider that is a significant matter for potentially younger and/or vulnerable workers as opposed to the presumptively older golf professionals to whom the proposed variation also refers. Borrowing from what was said by a Full Bench concerning classifications in the swim industry in 4 Yearly Review of Modern Award: Fitness Industry Award 2010, 7 we similarly consider here that given the practical and sensible effect of these variations, we are satisfied the variations proposed by the PGA are necessary to achieve the modern awards objective; we also accept the variations are appropriate having regard to that objective and the circumstances of the Award more generally.”

[43] We note the recent decision of another Full Bench of the Commission 56 in relation to a claim to extend the coverage of the Aboriginal Community Controlled Health Services Award 2010 (Aboriginal Community Controlled Health Services Award decision) to include Aboriginal and Torres Strait Islander health workers and practitioners (A&TSIHWs and A&TSIHPs). In determining in favour of this claim, the Full Bench stated the following:

“[113] The evidence adduced by NATSIHWA in support of its claim to extend the coverage of the Award, which we have earlier summarised was uncontested and we accept the evidence. The claim, if granted, would result in a hybrid award coverage. The proposition advanced would alter coverage currently limited to a distinct group of employers – Aboriginal Community Controlled Health Services – and their employees to one where in addition to these employers and all their employees coverage would extend to the distinct occupations of A&TSIHWs and A&TSIHPs in private practice. In this sense the Award would become an occupational and industry award. The proposed title of the Award - Aboriginal and/or Torres Strait Islander Health Workers and Practitioners and Community Controlled Health Services Award - reflects this hybrid coverage.

[114] As earlier noted, the only opposition to the proposal was that advanced by AFEI, which did not appear at the hearing, nor did it adduce any evidence in support of its position on coverage or in opposition to that led by NATSIHWA. The first point of opposition, that of the potential for overlapping or multiple award coverage of medical practices and other health services, is readily answered. These practices and services already face dealing with multiple awards depending on the type and breadth of service offered and the health occupations which they chose to employ in delivering the services offered. By itself this is not an impediment to acceding to the coverage claim. More relevant however, is the fact that there is no other modern award which currently covers the employment of A&TSIHWs and A&TSIHPs in private practice. The most relevant award, the HPSS Award, does not contain any classification which contains the requirement that the relevantly classified health professional practice “a culturally safe and holistic approach to health care”. Nor are we able to identify any other award which contains a comparable requirement. This is an inherent requirement of the occupations the subject of NATSIHWA’s claim.

[115] There is no evidence that expanding coverage will have a negative or adverse impact on private practices or other health services. AFEI’s contention to the contrary is not supported by evidence. We invited the AMA to participate in the proceedings, inter alia, to hear from representatives of medical practitioners operating private medical practices about the potential for any adverse impact of NATSIHWA’s claims. As we have already noted the AMA elected not to participate and simply observed that it supported NATSIHWA’s attempts to provide for fair conditions of employment for A&TSIHWs and A&TSIHPs, but the coverage issue should be resolved through proceedings dealing with the HPSS Award. The AMA does not say that it opposes award coverage of the occupations of A&TSIHW and A&TSIHP in private practices or that extending coverage of the Award will have any adverse impact on private medical practices.

[116] We are satisfied that the expanded coverage will not have any material immediate negative impact on private practices and health services, when account is taken of the modern awards objective and the fact that these workers employed outside of the health services currently covered by the Award, are not covered by any award providing them with fair and relevant minimum safety net terms and conditions of employment.

[117] The second basis for opposition advanced by AFEI relates to the historical basis for making the Award, namely that the services provided by the employer’s covered by the Award are notably different from that which might be described as mainstream health services. Whilst it must be accepted that the historical context for making the Award and setting its coverage is the distinct nature of the work carried out by Aboriginal Community Controlled Health Services and their recognition as a distinct sector of the health industry, that reason alone is not a barrier to extending the Award’s coverage. It must be remembered that a central proposition advanced by NATSIHWA in support of expanding coverage is that A&TSIHWs and A&TSIHPs in private practice are currently not award covered but should be. The work A&TSIHWs and A&TSIHPs carry out in private practice is, by reason of their cultural background, cultural understanding and training, the same work that is carried out by these occupations when delivering health services through an Aboriginal Community Controlled Health Service. Relevantly, A&TSIHWs and A&TSIHPs are trained and endeavour to deliver health care to Aboriginal and Torres Strait Islander communities in a culturally safe and holistic way. In this way in private practice A&TSIHWs and A&TSIHPs bring forth and apply the unique character of healthcare delivery that is inherent in the model of healthcare delivery adopted by Aboriginal Community Controlled Health Services and carried out, inter alia, by A&TSIHWs and A&TSIHPs in their employ. In the result the distinct nature of service delivery recognised in the current Award coverage is thereby preserved and maintained in the proposed expanded coverage.

[118] Moreover we accept that expanding the coverage to cover A&TSIHWs and A&TSIHPs in private practice will, in addition to establishing fair and relevant minimum safety net terms and conditions of employment for these workers, likely lead to a greater recognition of the roles performed by them and also lead to an increase in workforce participation which, as the evidence earlier recounted shows, will contribute to better health outcomes and access to culturally appropriate health resources for the Aboriginal and Torres Strait Islander communities in which these workers deliver health services.

[119] We are also satisfied on the evidence that there is a shortage of personnel delivering culturally appropriate primary health resources to Aboriginal and Torres Strait Islander communities and that the growth in the workforce has failed to keep pace with the population growth in these communities. We are persuaded on the evidence that expanding coverage and the real prospect of increasing workforce participation in these occupations in the result will help to alleviate this shortage. In addition, it seems to us that clear award coverage by expanding the coverage provisions of the Award will likely lead to greater employment opportunities for these workers in private practices that provide services to Aboriginal and Torres Strait Islander communities.

[120] Without repetition, we accept NATSIHWA’s submission that expanding the Award’s coverage is consistent with the modern awards objective and that the several other discretionary considerations identified at [48] – [66] of its submissions favour an extended award coverage.

[121] We will therefore vary the Award to expand the coverage of the Award in the manner sought. Consistent with the changing coverage we consider that it is appropriate to change the title of the Award…

[44] Another decision by a Full Bench of the Commission 57 concerns proposed variations to the Broadcasting and Recorded Entertainment Award 2010 (Broadcasting and Recorded Entertainment Award decision) including an application to expand coverage to include captioners, audio-describers, subtitlers and subtitling editors (together, the new roles). The Full Bench noted that they respectfully adopt the approach outlined in the Penalty Rates Case ([2017] FWCFB 1001) at [95]-[141] in their consideration of this issue. The Full Bench determined to vary expand the award coverage, stating the following:

[24] There was no opposition to the CPSU’s application. We consider that it would be inconsistent with the modern awards objective for employees in the new roles to remain effectively award-free (save for the Miscellaneous Award and a lone enterprise award), and agree that the BREA is the most appropriate award to cover these employees. We therefore consider it necessary to extend the coverage of the BREA to include the new roles. We also accept the CPSU’s evidence and submissions in relation to the necessity of breaks for captioners and audio-describers while working on visual display terminals, and the inclusion of the shift penalty as sought.

Submissions

[45] A number of claims have been made in respect to the coverage issue in the HPSS Award. Submissions arising from the December 2019 directions in relation to this issue have been received from:

•  ADA and ADPA(submission, reply submission and supplementary submission);

•  DHAA (submission, reply submission and supplementary submission);

•  The Australian Dental and Oral Health Therapists’ Association (ADOHTA) (submission);

•  HSU (reply submission and supplementary submission);

•  Australian Medical Association NSW Branch (AMA(NSW)) (submission);

•  Australian Medical Association (AMA) (submission and supplementary submission) and

•  OA (submission and supplementary submission).

Initial Submissions

ADA and ADPA - re dentists and dental prosthetists – 28 February 2020

[46] The ADA and the ADPA submit dentists and dental prosthetists should not be covered by the HPSS Award. 58 The ADA and the ADPA rely on their previous submissions59 stating that dentist and dental prosthetists have not traditionally been covered by an award;60 the HPSS Award was never intended to cover dentists and dental prosthetists and their work is not similar in nature to those listed in Schedule B61. Further, the eligible members of the ADA and the ADPA do not seek coverage under the HPSS Award62 as there is no application or evidence for extending the coverage of the HPSS Award.63 

Dental Hygienists Association of Australia – re dental hygienists and oral health therapists – 28 February 2020

[47] The DHAA relies on previous submissions 64 and submits that dental hygienists and oral health therapists should not be covered by the HPSS Award and remain award free.65 The DHAA further submits dental hygienists and oral health therapists have traditionally not been covered by a modern award66 in comparison to the dental therapists which they characterise as a ‘“legacy” profession’.67

[48] The DHAA refutes the ADHOTA submission that oral health therapists were only registered by one state board, being NSW, in 2010 68 and submits that oral health therapists were recognised as working in every State and Territory of Australia in 2009 and has been a recognised profession since 2000.69 The DHAA further submits that the existence of NSW state awards70 including the classification, nor their inclusion in education and research via the Higher Education Industry Academic Staff Award 2010,71 do not support their inclusion.

[49] The DHAA submits that award coverage would drive down the wages of dental hygienists and oral health therapists, 72 which it argues would disadvantage the workforce which is overwhelmingly female.73 The DHAA further submits that new graduates would be significantly disadvantaged in comparison to current award-free conditions. 74

Australian Dental and Oral Health Therapists’ Association – re Oral Health Therapists – 28 February 2020

[50] The ADOHTA agrees with the Full Bench decision that the list is indicative and submits that in the absence of a modern award that covers the profession, ‘oral health therapists’ should be included in the List of Common Health Professions. 75

Australian Medical Association – re Medical Practitioners – 5 February 2020

[51] The AMA submits that medical practitioners (doctors) employed in the private sector must not be covered by the HPSS Award. 76 The AMA submits that doctors do not fall into the category of job titles listed in Schedule B to the HPSS Award as they cannot be considered ‘of the same kind’ when the ejusdem generis rule is applied.77 It supports HSU’s view that the HPSS Award was never intended to cover doctors since an earlier Full Bench did not consider doctors and nurses when determining the salary structure of health professionals in the industry.78 The AMA contends that traditionally public sector doctors have their “actual rates and conditions” regulated through collective instruments and are distinct from private sector doctors who are not traditionally covered by awards because of their nature. The AMA submits that the Medical Practitioners Award 2020 has set the boundaries on the meaning and coverage of doctors in the private sector79 since the Full Bench stated that the “Medical Practitioners Award is not to apply to medical practitioners generally”.80

Australian Medical Association NSW Branch – re medical practitioners – 28 February 2020

[52] The AMA(NSW) supports AMA’s submissions that medical practitioners (doctors) should not be covered by the HPSS Award. 81 It submits that the HPSS Award covers both ‘health professionals’ and ‘support services employees’ and it would be inappropriate to apply the same terms to private sector doctors as they engage in work of a different nature and receive a competitive renumeration reflective of their work arrangements and market forces.82

Optometry Australia – re optometrists – 28 February 2020

[53] OA submits that an indicative list would create uncertainty as the nature of work performed by optometrists does not closely align to the occupations listed in Schedule B to the HPSS Award. 83 They submit that optometrists, due to the seniority and nature of their role,84 should not be covered by the HPSS Award as it would offend s. 143(7) of the Act.85 They contend that pre-reform awards covered less senior employees in the optometry industry as they performed a distinct nature of work as opposed to optometrists who were always “listed alongside occupations such as manager or legal professionals because of the seniority of their role.”86 They also maintain that the HSU’s Rules do not cover optometrists.87 In reference to several surveys conducted in 2018-2019, they submit that optometrists receive a significantly higher rate of pay than the minimum rates provided under the HPSS Award.88 It follows their view that it will be inconsistent with the modern awards objective for optometrists to be covered by the HPSS Award because it would lead to a reduction of salaries amongst other unintended consequences.89

Submissions in reply

ADA and ADPA – re dentists and dental prosthetists – 13 May 2020

[54] The ADA and the ADPA rely on their previous submissions 90 and submit that dentists and dental prosthetists should not be covered by the HPSS Award.91They jointly oppose the HSU’s submissions,92 and submit that dentists and dental prosthetists have traditionally not been covered by awards because of the seniority of their role and nature of their work which are not similar to classes of employees that have been traditionally regulated by awards.93 The ADA and the ADPA submit that, in the absence of any valid concerns,94 the philosophical approach taken by the HSU should not be considered to impose coverage under the award.95

Dental Hygienists’ Association of Australia – re dental hygienists and oral health therapists – 24 April 2020

[55] The DHAA submits that dental hygienists and oral health therapists should not be covered by the HPSS Award as their “duties, functions, renumeration and responsibilities” correspond more to that of a traditionally award-free dentist than a traditionally award-covered dental therapist. 96 The DHAA contends that by extending coverage to dental hygienists and oral health therapists, a major decline in their wages would occur, especially for female employees who work on a part-time basis with different private employers.97 The DHAA supports OA’s submissions and highlights the HSU’s rules do not cover dental hygienists and oral health therapists.98 The DHAA also maintain that dental hygienists and oral health therapists would suffer the same detriment OA has posited for optometrists.99

[56] In reply to the HSU’s submission, 100 the DHAA summarises its position that an imposition of award coverage will result into pressure on dental hygienists and oral health therapists to enter arrangements that have restricted benefits to award coverage. The DHAA cites clause 24.2 of the HPSS Award which provides limited scope for overtime or penalty rates for these two occupations.101 The DHAA rejects the HSU’s submission that the award is beneficial as it confers additional rights, rather the DHAA contends that the imposition of award coverage would result in the reduction in the existing rights of dental hygienists and oral health therapists, for example, in cases where a medical practice is temporarily closed.102 The DHAA also disagrees with the proposition advanced by the HSU that the HPSS Award offers for “more robust protections” during the COVID-19 pandemic.103 Albeit while some state awards cover dental professionals, the DHAA submits that this does not justify a change to extend coverage to dental hygienists and oral health therapists as both occupations existed when the HPSS Award was made in 2009.104

[57] The DHAA relies on decision [2009] AIRC FB 948 to support its view that imposing an award coverage will put dental hygienists and oral health therapists at a disadvantage for the same reasons the Full Bench relied upon in 2009, and would be more detrimental during the present health crisis. 105

Health Services Union – re medical practitioners, optometrists, dentists, dental prosthetists, dental hygienists and oral health therapists

[58] The HSU submits that the question of whether particular Health Professional occupations should not be covered by the HPSS Award requires a consideration of whether s.143(7) of the Act operates to prevent the particular class of employees from being covered; and whether it is consistent with the modern awards objective in s.134, and therefore appropriate, for the employees to be covered. 106

Medical practitioners

[59] The HSU does not oppose medical practitioners being excluded from the scope of the HPSS Award, given the existence of the Medical Practitioners Award 2020. 107

Optometrists

[60] The HSU submits that optometrists should be included within the coverage of the HPSS Award. 108 The HSU notes that OA’s principal objection to award coverage is that optometrists do not have a history of award coverage.109 The HSU contends that argument is based on the terms of the award modernisation request, and upon s.143(7) of the Act, which substantially replicates the terms of a passage in the request.

[61] While the HSU accepts optometrists have not traditionally been covered by awards, it maintains that there is no evidence that the absence of award coverage of employed optometrists has been because of the seniority or nature of their roles per clause s.143(7)(a). Rather, the HSU suggests that the absence of award coverage is the result of the relatively modest numbers of optometrists and the fact that the majority of practising optometrists are (and have been) self-employed and accordingly no occasion arose for coverage of those professionals.  110

[62] The HSU submits that nothing in s. 143(7)(b) of the Act provides an impediment to the coverage of optometrists by the HPSS Award. 111 Contrary to OA’s assertion,112 the HSU submits that work performed by optometrists is of a similar nature to health professional work that has traditionally been regulated by the pre-modern awards.

[63] Moreover, the HSU submits that the qualifications required for professional practice as an optometrist are consistent with those of other health professionals. The classification descriptions in clause B.2 of the HPSS Award are capable of application to employed optometrists in both public or private practice. 113

[64] The HSU rejects the OA’s submission that award regulation of optometrists could result in any significant disadvantage to that cohort. 114 The HSU contends that nothing about the introduction of enforceable minimum standards (which exceed the NMW and the NES, which are otherwise applicable to employed optometrists) has the legal consequence of undermining or negating any existing contractual entitlements. Moreover, the HSU submits that the improvement of the relevant minimum standards would have the result of diminishing the bargaining power of employed optometrists.

[65] The HSU notes that the estimated average full-time equivalent salary for the employees (as opposed to the self-employed persons) who were respondents to the survey is well below the high-income threshold (currently about $148,000). It further states that the bulk of employed optometrists (according to the survey) earn below that threshold, with only about 15 per cent earning above $130,000. The HSU concludes that nothing in that evidence provides support for a conclusion that coverage by the HPSS award would increase costs for employers. 115

[66] Finally, the HSU draws similarity between the work of optometrists and the allied health profession of orthoptist, which is included in the List in Schedule B^.116 The HSU submits that the work of optometrists is also similar to the work performed by other primary health care practitioners who are award covered. Moreover, it argues that it is consistent with the modern awards objective in s.134 to ensure that the minimum safety net of terms and conditions applicable to similar health professionals applies to optometrists.

Dentists

[67] The HSU opposes dentists being excluded from the HPSS Award.¹¹⁷ As to the operation of s.143(7) of the Act, the HSU relies on its analysis of that provision above.¹¹⁸

[68] The HSU notes that the submissions of the ADA dated 28 February 2020 identify the submissions it has made previously. The HSU relies on its previous submission dated 14 November 2019 in response to the ADA’s submissions, and makes some further observations below.

[69] The HSU notes that it is incorrect to say that employed dentists have not traditionally been covered by awards. Rather, coverage was dealt with on a state by state basis at the time of modernisation.¹¹⁹ The HSU provides examples of a range of historical state-based awards covering dentists.¹²⁰

[70] Indeed, the HSU submits that there was not an absence of award coverage of dentists as a consequence of the seniority or nature of their role.¹²¹ The HSU notes that dental roles for both recent graduates, and at very senior levels, were award covered in a number of jurisdictions and areas of practice. It further argues that the absence of general coverage in private practice is just as likely to have arisen due to the fact that prior to the HPSS Award being made (as is the case now) most practising dentists in the private sector were self-employed or engaged as independent contractors (and no occasion arose for award coverage of those professionals).

[71] Further, the HSU submits that s. 143(7) of the Act does not compel the exclusion of dentists from the HPSS Award. Further, for dentists in employed roles, it is desirable and appropriate that they be covered by the award that otherwise covers health professionals. Absent such coverage, the HSU notes that employed dentists will in any event be covered by the NES and the NMW. The HSU submits that there is no basis in principle or logic for the application of differential and less favourable minimum terms and conditions to dentists. ¹²²

[72] The HSU referenced a recent decision ([2020] FWCFB 754) in relation to the Miscellaneous Award, in which the Full Bench concluded that it was anomalous to have differential coverage of cleaners and security guards, depending on the industry in which they performed their work.¹²³ The HSU submits that a similar inequity would arise if health professionals such as dentists are exempted from award coverage, while their fellow health professionals are afforded the higher minimum wages and more robust protections resulting from award coverage.¹²⁴ Moreover, the HSU contends that in the current setting given the risk to health professionals arising from the COVID-19 pandemic, and the arrangements in respect of the pandemic which have now been incorporated in Schedule X of the HPSS Award, the importance of consistent treatment of all health professionals becomes even more evident.

Dental Prosthetists, Dental Hygienists and Oral Health Therapists

[73] The HSU submits that dental prosthetists, dental hygienists and oral health therapists (the three professions) should not be excluded from coverage under the HPSS Award. In its submission, the HSU begins by dealing with the roles of the three professions together due to the relationship between the roles, and the roles within dental care which currently covered by the HPSS Award.

[74] At the outset, The HSU notes that the HPSS Award already covers a number of roles involved in the provision of dental care.¹²⁵ For example, Schedule A, which contains the Classification Definitions for Support Services Employees, includes amongst the indicative Technical and Clinical roles listed those of ‘Dental Assistant’ and ‘Dental Technician’.¹²⁶ Moreover, the List in Schedule B to the HPSS Award includes the profession of ‘Dental Therapist’. ¹²⁷

[75] The HSU contends that the three professions should not be excluded from the scope of the HPSS Award. Firstly, the three professions have a history of award coverage, although the HSU concedes that such history would not be regarded as entirely comprehensive.¹²⁸ The HSU points to a number of pre-modern awards across various States and Territories in which the three professions had been covered.¹²⁹

[76] Moreover, to the extent that there has not been award coverage of the three professions in the private sector, the HSU submits that such history is not relevant to the consideration in s.143(7) of the Act, and in any event, the Commission would not consider the absence of private sector coverage was because of the seniority or nature of the roles. ¹³⁰

[77] Further, the HSU submits that the three professions each involve work which is similar in nature to work that is already covered by the HPSS Award (and other awards), and which falls naturally within the classifications in the award. ¹³¹ For example, the work of both oral health therapists and dental hygienists is similar to the work of the dental therapist, which is already included in the HPSS Award, and is also regulated by the Australian Health Practitioner Regulation Agency (AHPRA). Additionally, the work of dental prosthetists is similar to the work of orthotists and prosthetists (which are listed in Schedule B to the HPSS Award). Further, the work of dental prosthetists is similar to, and has a long connection with, the work of dental technicians (which role is already included in the HPSS Award). Additionally, it is appropriate that each of the roles be covered by the HPSS Award having regard to the considerations in s.134 of the FW Act. ¹³²

[78] Additionally, the HSU submits that it is undesirable for some dental health roles to be award covered and others not, as the roles may interact in workplaces and in teams comprised of other award covered roles. The HSU submits that where enterprise bargaining occurs in dental workplaces or in workplaces which include dental roles, it is undesirable that professional roles likely to be the subject of bargaining are not covered. ¹³³ Further, absent such coverage, those employees will be covered by the NES and the NMW, which is less favourable minimum terms and conditions to those employees than to their fellow health professionals, who are covered by the HPSS Award.¹³⁴

Oral Health Therapists

[79] The HSU accepts the DHAA submission that the role of oral health therapist is one of relatively recent provenance. ¹³⁵ The role was incorporated in the NSW pre-modern awards from about 2008, at which time it was also recognised by the New South Wales Dental Board. The process of award modernisation was already in contemplation at that time.

[80] The HSU notes that apart from in NSW, none of the state dental boards were registering oral health therapists as oral health therapists (as opposed to registration as dental therapists and dental hygienists) prior to 2010. ¹³⁶ Further, the profession of oral health therapists is one which has had dramatically increasing numbers in the past decade or so. The HSU contends that its increase in numbers has occurred at the expense of dental therapists as the terms of the NSW Award indicates the profession is one which incorporates, and was envisaged to replace, the dental therapist role. The HSU reiterates that the work of the role is similar to the work of the dental therapist, which is already covered by the HPSS Award.

[81] The HSU submits that oral health therapists should not be excluded from coverage under the HPSS Award despite the relative absence of reference to oral health therapists in pre-modern awards, as that absence was more likely due to the modest numbers in the profession and the fact that it was not a recognised and registrable profession in the respective states and territories apart from NSW prior to 2010, than the nature of the work, or the seniority of the role. ¹³⁷

Dental Hygienists

[82] The HSU notes that at the Exposure Draft Stage, and at the making of the modern award, the profession of ‘dental hygienist’ was included in the List. However, ‘dental hygienist’ was later removed from the List by a decision and order of the Full Bench of the then Australian Industrial Relations Commission (AIRC) made on 24 December 2009¹³⁸ (that is, before the HPSS Award came into operation), as a consequence of an application made by the DHAA.¹³⁹ The HSU extracted the reason provided by the Full Bench in dealing with the application as follows:

‘[4] We have no reason to believe that the DHAA does not represent a significant number of dental hygienist employees. Further, no other organisation or person has made any submission on the application.’ 140

[83] The HSU submits that there is nothing to prevent the Full Bench from reconsidering the role of dental hygienists in the present review.¹⁴¹ Whilst the Commission should have regard to the decision of the Full Bench, as noted by the Full Bench in the Aged Care Award Decision¹⁴² (relying on the decision in the Penalty Rates Case¹⁴³⁾, the HSU urges that it is necessary to consider the context in which that decision was made, including the fact that there was no contradictor, and the matter was not fully argued.

[84] The HSU acknowledges that while the dental hygienists were the subject of award regulation prior to modernisation (albeit not in the private sector), it submits that the Full Bench should give little weight to that fact. For the reasons set out above in relation to optometrists, the HSU submits that a historical absence of award coverage in a particular sector does not prevent modern award coverage.¹⁴⁴

[85] On the basis of the NSW and Victorian pre-modern awards, the HSU submits that dental hygienists were considered to be at a level equivalent to that of dental therapists.¹⁴⁵ In NSW, the maximum salary available in the classification was lower than the maximum available to dental technicians, dental prosthetists and oral health therapists. The HSU contends that the role of dental hygienist is one that would be regarded as especially senior, when regard is had to the skills, qualifications, level of responsibility, and remuneration.¹⁴⁶

[86] The HSU submits that dental hygienists should not be excluded from coverage under the HPSS Award despite the absence of award coverage in the private sector.¹⁴⁷ The HSU submit that such absence was more likely due to the limited numbers in the profession, and their patterns of working (in private practice or as independent contractors) than the nature of the work itself, or the seniority of the role.

Dental Prosthetists

[87] The HSU submits that the role of dental prosthetist is one which has emerged from the role of dental technician, and is closely connected with that role.¹⁴⁸ Dental prosthetists either perform their own dental technician work of making the dental prosthetic or work closely with a dental technician. At least in Queensland, the role of dental prosthetist was regarded as a technical role, rather than a health professional role.

[88] The HSU contends that the assertion by the ADPA, that there is no history of coverage of dental prosthetists in the private sector is not entirely correct.¹⁴⁹ The HSU notes that dental prosthetists were covered in Tasmania in the private sector, and, in the public sector across several States^.150

[89] The HSU submits that the work of dental prosthetists is substantially the same across both public, community and private sectors, additionally, the evidence from dental prosthetists is that they can work simultaneously across the public health, community health and private health sectors.¹⁵¹

[90] The HSU submits that the role of dental prosthetist is not of such seniority as to explain its absence from private sector awards.¹⁵² In fact, the HSU notes that in the NSW public sector award, dental prosthetist roles are equivalent to those of senior dental technicians, and a range of mid-level professional roles.¹⁵³ Moreover, in Queensland, the roles are in streams with other health professionals. The profession is not singled out for advancement through the classifications by reason.¹⁵⁴

[91] The HSU reiterates that the relative absence of coverage in one sector (that is, the private sector) does not provide a proper basis for excluding a profession from award coverage.¹⁵⁵ The question posed by s.143(7) of the Act is whether a class of employees has traditionally been covered, not whether a class of employers has been covered. The HSU posits that there is no basis in logic or principle why a role which is award covered in a public sector setting should not be award covered in the private sector. The HSU submits that the observations above about the Full Bench decision in respect of the Miscellaneous Award apply with even greater force to the profession of dental prosthetist^.156

[92] The HSU highlights the witnesses evidence which demonstrates that that when they were working in the private sector, the dental prosthetists were more likely to have to undertake their own dental technician work, that is, work at a lower level of skill and requiring less qualification^.157

[93] The HSU considers the absence of dental prosthetists from private sector awards is more likely to be the consequence of their limited professional number, and the fact that many of their number in private practice work as independent contractors, and thus would not fall within the scope of awards, rather than a product of the seniority or nature of their work.¹⁵⁸ The HSU further submits that there is nothing intrinsic to the tasks and duties of the dental prosthetist which has been identified which was relied on to deny the profession award coverage pre-modernisation, nor that would amount to a proper basis for resisting modern award coverage^{. 159}

[94] The HSU posits that there is evidence that dental prosthetists are currently considered to be covered by the HPSS Award, despite not being specifically listed in the List.¹⁶⁰ The HSU notes that according to evidence from dental prosthetists, they consider themselves to be health professionals.¹⁶¹ The evidence suggests that dental prosthetists have a unique role to play in improving the overall health of their patients^.162

[95] The HSU notes that the evidence from the HSU’s dental prosthetist witnesses is that they do wish to be covered by the HPSS Award and see value in the protections that award coverage provides.¹⁶³ This is in contrast to the claims of the ADPA and its witness, Jenine Bradburn. 164 The HSU contend that the evidence of its dental prosthetist witnesses shows that they consider the ADPA to represent the interests of self-employed dental prosthetists, but not employees.¹⁶⁵

Proposed variations and supplementary submissions

[96] Supplementary submissions were received from ADA and ADPA, DHAA, the HSU, AMA and OA.

HSU submission–– 4 November 2020

[97] On 4 November 2020 the HSU made additional written submissions and noted that it continued to rely on its earlier submissions. 166

[98] The HSU proposed the following changes to the HPSS Award.

A.2 Health Professional employees – definitions

An indicative list of common health professionals which are covered by the definitions is contained in Schedule B – List of Common Health Professional

Schedule B - Indicative List of Common Health Professionals

The following professions be inserted into the list at Schedule B:

Dental Hygienist
Dental Prosthetist
Dentist
Optometrist
Oral Health Therapist

[99] The HSU noted that the evidence provided by its witnesses at the hearing was not challenged and referred the Full Bench to its submission dated 10 April 2020 regarding that evidence. 167

DHAA evidence

[100] The HSU suggested that the evidence of the DHAA witnesses had been influenced. 168

[101] The HSU submitted that the Full Bench should not accept the DHAA witness evidence that the coverage of dental hygienists and oral health therapists by the HPSS Award would cause a decrease in the rates of pay for those occupations and compromise the ability of those workers to negotiate their pay rates and conditions. 169 Its submissions included:

•  The views of the DHAA witnesses are not supported by their actual experiences and constitute speculation and opinion. 170 In support of its position it pointed to Dr Tran’s evidence that she received a pay increase in her most recent pay negotiations and had chosen a position with a lower rate of pay171 and Ms Kuss’ evidence that her employer was open to negotiating an increase in her starting rate, however she chose not to pursue this.172

•  Ms Kuss’ views about the likely impact of extending the HPSS Award coverage should not be given weight because it is based on a misunderstanding that dental hygienists without a 3 year degree cannot progress from the lowest rate at Level 1. In fact, the HSU submit, clause 17.1 provides for progression through the pay points in Level 1. 173 The HSU suggested the DHAA membership may be misinformed.174

[102] The HSU submitted that including dental hygienists and oral health therapists in the coverage of the HPSS Award will have a beneficial effect. It submitted the following in support of its position:

•  Statutory minimum rate of pay applicable to dental hygienists and oral health therapists will increase from the National Minimum Wage to the rates in the Award; 175

•  Ms Kuss’ and Dr Tran’s actual experience of negotiating pay rates accords with Mr Leszczynski observations in his statement dated 7 August 2019 about the remuneration of sonographers. Following their inclusion in the HPSS Award, sonographers are now one of the highest paid professions in enterprise agreements for health professionals in Victoria, with the applicable rates well exceeding the minimum rates specified in the Award and many employers paying sonographers rates in excess of those specified in their enterprise agreements. 176

•  Mr Leczszynski observed that the inclusion of art therapists in the coverage of the HPSS Award, a profession not covered by the pre-reform awards in Victoria, led to better recognition of the profession and the achievement of bargained rates always well above the Award rates. 177

[103] The HSU observed that evidence by the DHAA witnesses that their daily duties are more similar to a private sector dentist than a public sector dental therapist appeared directed at engaging s.143(7) of the Act. 178 In response, the HSU submitted that:179

Subsection 143(7) of the Act does not require the Commission to make a finding as to the profession to which the work of a dental hygienist or oral health therapist is most similar, and then to determine award coverage by reference to that profession. Rather, it prohibits the Commission from extending award coverage to a class of employee if their work is not of a similar nature to work that has traditionally been award-regulated.

[104] The HSU also submitted that s.143(7) of the Act does not warrant any distinction between work performed in the public and private sectors. 180

[105] The HSU submitted that dental hygienists and oral health therapists perform work that is similar to work traditionally regulated by awards. The HSU submitted that the work of dental hygienists and oral health therapists is similar to that performed by other health professionals, in particular dental therapists, and in the context of a dental practice is analogous to that of allied health practitioners such as sonographers and physiotherapists in medical practices. The HSU submitted that the work need not be most similar to that of a dental therapist to avoid exclusion by s.143(7) of the Act. 181

DHAA submission - 2 November 2020

[106] The DHAA proposed the following changes to Clause 4.6 and Schedule A.1 of the HPSS Award:

4.6. This award does not cover:

(a) employees excluded from award coverage by the Act;

(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

(d) employees performing the duties of an Oral Health Therapist and/or Dental Hygienist

A.1 Health Professional employees—definitions

A list of common health professionals which are covered by the definitions is contained in Schedule B—List of Common Health Professionals. These definitions to not apply to the occupations of Dental Hygienist and Oral Health Therapist. These occupations are not covered by this Award.

[107] The DHAA acknowledged that Dental Therapist was added to the HPSS Award list in 2009 and Dental Hygienist was included briefly and then removed following a decision by the AIRC in December 2009. In relation to the consideration set out at s.143(7) of the Act the DHAA submitted that dental hygienists, oral health therapists, dentists and doctors have all been traditionally award-free in the private sector because of the nature of their role prior to and since 2009. 182 It submitted that the application of other awards and enterprise agreements to members of these professions in the public sector (and those covered by the Higher Education Industry Award 2010) should not change the status quo within the private sector.183

[108] It further added that the life of the dental therapist profession is concluding and reiterated its position that the role of oral health therapist is entirely different to, and has not replaced, that of dental therapist. 184 It submitted that neither the inclusion of dental therapist in the coverage of the HPSS Award or the decline of the profession provides a basis for extending the coverage of the HPSS Award to include two award-free occupations.185

[109] The DHAA confirmed its view that in terms of duties and method of remuneration, the role of oral heath therapist is much more like a dentist than a dental therapist. It submitted Dr Tran’s evidence, which included reference to research that performing preventive dentistry procedures constitutes 80% of day-to-day work for an oral health therapist and 65% for a dentist, supported this view. 186 The DHAA noted that Dr Tran’s statement that the duties, tasks, functions, skill sets and method of remuneration of private sector dental hygienists and oral health therapists are closely aligned to a private sector dentist and are in no way similar to a public sector dental therapist.187

[110] They further noted that Dr Tran is an internationally published author and professional authority in oral health therapy. 188

[111] The DHAA submitted that expanding the HPSS coverage to include dental hygienists and oral health therapists will be detrimental to the well-being and livelihoods of both these professions. 189 It submits that under the HPSS Award, dental hygienists and oral health therapists in clinical practice will be classified at Level 2, or at best Level 3, because the requirements of the higher classification levels require managerial, training, mentorship and budgetary responsibilities which are usual for senior clinicians in private dental practice. Consequently, the DHAA submit, the ability of dental hygienists and oral health therapists to maintain their current market rates will be compromised.190

[112] The DHAA acknowledged that the HPSS Award offers workers a leave loading, minimum engagement period and a couple of other small allowances, however particularly noting the reduced availability of overtime penalties owing to the span of hours and associated flexibility provided by the HPSS Award, it submitted that the HPSS Award does not adequately compensate for the reduced rates of pay. 191

[113] The DHAA submitted women will suffer particularly as a result because the professions are primarily female and many positions are part-time. 192 As a consequence of these significant disadvantages, the DHAA submitted extending the HPSS Award coverage as proposed contravenes s.134(1)(c) of the Act regarding “the need to promote social inclusion through increased workforce participation.“193

[114] In support of its position the DHAA referred the Full Bench to the decision of the AIRC in 2009, stating that the Full Bench in that case accepted their arguments that award coverage would cause detriment to dental hygienists. 194 The DHAA submitted no changes have happened since 2009 that justify departing from the AIRC decision.195

ADA and ADPA – submission re dentists and dental prosthetists – 3 November 2020

[115] The ADA and the ADPA proposed the following changes to clause 4.6 of the HPSS Award: 196

4.6 This award does not cover:

(a) Medical Practitioners;

(b) Dentists;

(c) Dental Prosthetists;

(d) [such other occupations as the Commission determines]

(ae) employees excluded from award coverage by the Act;

(bf) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(cg) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees

[116] The ADA and the ADPA submit that the titles and duties of dentists and dental prosthetists do not require further expansion or definition because they are safeguarded by the Health Practitioner Regulation National Law and are restricted to registered practitioners, including practitioners performing in the recognised specialties within dentistry. 197

[117] They submit that the exclusion clause could ‘quite comfortably’ be located in clauses 4, 17, schedules B and C of the HPSS Award. 198 It follows their view that each of the modern award examples provided by DHAA appeared to be the most appropriate as they dealt with the question of exclusion directly in clause 4 of the HPSS Award.199 ADA and ADPA continued to rely on their previous submissions and witness evidence.200

[118] They did not make any submissions on whether other occupations should be excluded from the coverage of the HPSS Award but included Medical Practitioners in their proposed clause since its exclusion from award coverage was uncontroversial. 201

Optometry Australia - submission re Optometrists – 9 November 2020

OA propose the below changes to clause 4.6 of the HPSS Award to expressly exclude Optometrists from coverage: 202

4.6 This award does not cover:

(a) Optometrists;

(ab) employees excluded from award coverage by the Act;

(bc) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(cd) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[119] OA relies on their previous submissions 203 and further submits that optometrists should not be covered by the HPSS Award as it would be inconsistent with s 143(7) of the Act.204

AMA’s submission – 4 November 2020

[120] AMA The relies on their previous submissions 205 and support ADA and ADPA’s joint submission and draft determination in relation to clause 4.6 of the HPSS Award.206

Witness evidence

[121] Witness statements were provided by the DHAA and the HSU prior to the hearing on 27 October 2020 and were accepted into evidence at the 27 October hearing. 207 These statements are summarised below.

Witnesses for the DHAA

Carol Tran - DHAA

[122] Ms Carol Tran gave evidence in relation to her experience as an oral health therapist in the private sector. Ms Tran stated she believes rates of pay for oral health therapists and dental hygienists would decrease if they were covered by the HPSS Award as their ability to negotiate wage rates and conditions would be compromised. She believes it is unsuitable to cover therapists.

[123] Ms Tran is a member of the DHAA who represent her interests as an oral health therapist over the ADOHTA, which does not.

[124] Ms Tran stated the services and skills of an oral health therapist are more aligned with a private sector dentist than a public sector dental therapist as oral health therapists provide more services and are remunerated on clinical performance and revenue generated.

[125] Ms Trans’s evidence is that, like dentists, the majority of an oral health therapist’s work is to provide preventative dentistry procedures²⁰⁸. Both professions are similarly aligned to provide clinical care for patients.

Michelle Kuss - DHAA

[126] Ms Michelle Kuss gave evidence from her experience as a graduate qualified Dental Hygienist employed in the private sector. Ms Kuss believes that the current pay rates for oral health therapists and dental hygienists, who traditionally have been award free, would slide to award minimum rates if covered by the HPSS Award. She also states her belief that award coverage would compromise an individual’s ability to negotiate with their employers.

[127] Ms Kuss states she is a member of the DHAA who represent her interests as an oral health therapist over the ADOHTA, which does not.

[128] Ms Kuss gave evidence that her daily job duties are more similar to a private sector dentist than to a public sector dental therapist. Specifically, dental hygienists provide more services and are remunerated on clinical performance and revenue generated.

[129] Based on previous experience, Ms Kuss states, like dentists, the majority of a dental hygienist work is to provide preventative dentistry procedures. As a dental hygienist, Ms Kuss states she is reviewed on the same basis as a private sector dentist.

[130] Ms Kuss states private sector dentists, dental hygienists and oral health therapists collectively do not hold managerial positions but are employed as practitioners of clinical services.  209

Cheryl Dey - DHAA

[131] Ms Cheryl Dey gave evidence in relation to her experience as a dental hygienist in the private sector. Since Ms Dey’s employment, she has negotiated her working conditions, believing her industry to be award free.

[132] Ms Dey states that her current per hour pay rate is 25% higher than the highest award rate she would be likely classified under in the HPSS Award. In her view, oral health therapists and dental hygienists would be disadvantaged, and lower rates of pay would apply if covered by the HPSS Award and her ability to negotiate her personal working conditions would be compromised.

[133] Ms Dey is a member of the DHAA who represented her as a dental hygienist over the ADOHTA, which does not.

[134] Ms Dey stated her job is closer aligned to a private sector dentist than a public sector dental therapist as dental hygienists provide more services and are remunerated on clinical performance and revenue generated. As a dental hygienist, Ms Dey is reviewed on the same basis as a private sector dentist.

[135] Ms Dey argues that, like dentists, the majority of a dental therapist’s work is to provide preventative dentistry procedures. Both professions are similarly aligned to provide clinical care for patients. 210

Amy McDermott - DHAA

[136] Ms Amy McDermott gave evidence from her 20 years’ experience as a dental hygienist employed in the private sector where she has negotiated her terms and conditions of employment; and believed her occupation was award free.

[137] Ms McDermott states her current rate of pay per hour is around 50% higher that the award rate she would be likely classified under if covered by the HPSS Award. Such a reduction from her negotiated rates would have a negative impact on her personal finances.

[138] It is the opinion of Ms McDermott that the current pay rates for oral health therapists and dental hygienists would slide to award minimum rates if covered by the HPSS Award, including her ability to negotiate wage rates and conditions.

[139] Ms McDermott is a member of the DHAA who represent her interests as a dental hygienist over the ADOHTA, which does not.

[140] Ms McDermott states her job is closer aligned to a private sector dentist than a public sector dental therapist as dental hygienists provide more services and are remunerated on clinical performance and revenue generated. Also, both professions ae similarly aligned to provide clinical care for patients. As a dental hygienist, Ms McDermott states she is reviewed on the same basis as a private sector dentist.

[141] Ms McDermott states private sector dentists, dental hygienists and oral health therapists collectively do not hold managerial positions but are employed as practitioners of clinical services.  211

Kay Bull - DHAA

[142] Ms Kay Ball gave evidence from her 14.5 years’ experience as an oral health therapist employed in the private sector. Since Ms Ball’s employment she has negotiated her terms and conditions of employment; and understood her occupation was award free.

[143] Ms Ball states her current rate of pay per hour is 37.7% higher than the award rate she would be likely classified under if covered by the HPSS Award and she would not progress beyond this rate because her position in private practice does not lead to managerial responsibilities. Ms Ball is of the view that her employer would reduce her hourly rate of pay, causing her financial detriment, if covered by the HPSS Award. Alternatively, Ms Ball feels her employer would consider her hourly rate of pay as ‘over the award’ and reduce provisions such as overtime, weekend penalty and paid breaks.

[144] Ms Ball believes she is unable to seek enterprise bargaining because of her employer’s size and believes her ability to negotiate wage rates and conditions would be compromised if covered by the HPSS Award. 212

Alison Taylor - DHAA

[145] Ms Alison Taylor gave evidence in relation to her experience as a lecturer and clinical tutor in dental hygiene and previous work as a dental hygienist for 29 years.

[146] In her previous experience, Ms Taylor had negotiated her terms and conditions of employment; and understood her occupation was award free. Ms Taylor states she believes award coverage of dental hygienists and oral health therapists would seriously affect the industry, believing minimum rates of pay will lower wages. Ms Taylor is concerned about what effect changes of award coverage may have on the industry and the impact on her family finances. 213

Susan Melrose - DHAA

[147] Ms Susan Janine Melrose, Dental Hygienist at Weston Dental Surgery, gave evidence that her current hourly rate of pay is approximately 109% higher than the highest award rate she would obtain under the HPSS Award. Ms Melrose gave evidence that the imposition of an award coverage would jeopardise any future salaries and employment conditions. She qualified such an approach as a “backward move” as the benefits of an award-free status that she has enjoyed during the fourteen years of her career will need to be forsaken. 214

Christina Zerk - DHAA

[148] Ms Christina Zerk gave evidence from her experience as a Dental Hygienist. She gave evidence that she was able to negotiate an hourly rate of pay 35% higher than the award rate under the HPSS Award. She stated that the imposition of an award coverage would not allow her to progress beyond “Level 2, Pay Point 4” because in the private practice, there is no need for her to acquire managerial duties. Ms Zerk is concerned that an award coverage would lead to a reduction in her future salaries and jeopardise her future employment conditions. 215

Lyn Carman - DHAA

[149] Ms Lyn Dawn Carman, Dental Hygienist at Dental on Eyre, gave evidence that her currently hourly rate of pay is 150% higher than the highest award rate she would obtain under the HPSS Award. Ms Carman gave evidence that she has been employed in this profession for 33 years and the imposition of an award coverage will significantly put her family finances at risk. She is concerned of a potential reduction in her future salaries and employment conditions.²¹⁶

Benjamin Marchant - DHAA

[150] Mr Benjamin Marchant gave evidence from his experience as a Registered Pharmacist, Director of Pharmacy and Victorian President of the Pharmaceutical Society of Australia. Mr Marchant gave evidence that the introduction of the Pharmacy Industry Award 2010 drove down the wage rates of pharmacists working in the private sector because most employers considered the award rate as a recommended standard rate for pharmacist employees. Mr Marchant stated that the imposition of an award coverage could have a similar effect on dental hygienists, dental therapists and oral health therapists. 217

Samson Chan - DHAA

[151] Mr Samson Chan, Registered Pharmacist and Partner of the Cura Pharmacy Group, gave evidence that all the pharmacists he employed were paid above award rate before the Pharmacy Industry Award 2010 was introduced. Mr Chan gave evidence that as an employer, he used the award rate as a benchmark and consequently reduced the ordinary hourly rate of the pharmacists who worked at his practice. He stated that dental hygienists and oral health therapists could find themselves in a similar situation if an award coverage is imposed. 218

Witnesses for the HSU

Alex Leszczynski - HSU

[152] Alex Leszczynski, Senior Industrial Officer with the HSU, provided his statement in relation to experience in working with dental prosthetists, dental therapists and dentist members. He states the HSU has dental prosthetist members in public health services and community health centres, covered by the HPSS Award. The HSU also engages in enterprise bargaining to regulate employee conditions in those workplaces.

[153] Mr Leszczynski refers to Victorian Allied Health Professionals Association involvement in enterprise bargaining for dental prosthetists in public and community health centres²¹⁹. Mr Leszczynski further cites the F17 supplied by the Victorian Hospital Industry Association, in its application for an enterprise agreement²²⁰, which translated Dental Prosthetists to Health Professional Level 1 or 2 of the HPSS Award.

[154] Mr Leszczynski stated that in the Allied Health Professionals enterprise agreement the classification for dental prosthetist was revised to reference registration and accreditation with the Dental Board of Australia²²¹. Similar updating occurred for other health professionals such as registration and accreditation references for physiotherapists. The enterprise agreement does not cover dentists; however it was Mr Leszczynski’s understanding that the ADA sought APESMA to negotiate enterprise agreements on behalf of dentists at independent community health facilities a few years ago.

[155] Mr Leszczynski refers to submissions made by the DHAA that community pharmacists rates of pay has been negatively affected since coverage by the Pharmacy Industry Award 2010²²². He refers to a previous role at APESMA where it was APESMA’s view community pharmacists were lower paid in comparison to other professionals represented by APESMA and increasing their rates was a focus at the time. 223

Gregory Roche - HSU

[156] Mr Gregory Roche, Dental Prosthetist at the Royal Dental Hospital of Melbourne (Hospital), gave evidence that there is no difference in the substance of the tasks he performed in the private sector and the Hospital, except when he owned his solo practice, where he had to perform both laboratory work as a dental technician and clinical work as a dental prosthetist.

[157] Mr Roche stated that he considered himself a health professional as he attends to the health needs of patients who have lost all or some of their natural teeth and his role is to improve their outcomes.

[158] Mr Roche gave evidence that there is a similarity in the roles of dental therapists and dental prosthetists, albeit the scopes of their practices might be different. It follows his view that dental prosthetists should be included in the HPSS Award. 224

Anastasia Staikopoulos - HSU

[159] Ms Anastasia Staikopoulos, a Dental Prosthetist and Lab Project Coordinator at Link Health and Community, gave evidence that the nature of her work is similar to the work she has previously performed in private practice, except that now she no longer performs technical and laboratory work and sees more patients compared to when she worked in private practice.

[160] Ms Staikopoulos gave evidence that in the community health sector, dental prosthetists frequently work alongside dental therapists and dentists. She states her view that dental prosthetists are health professionals as they have a significant role in treating a patient’s oral health and also because they are registered as dental practitioners similar to dental therapists. Ms Staikopoulos stated that the imposition of an award coverage will allow dental therapists and dental prosthetists to work as a team and prevent the loss of protection of award wage rates. 225

Craig Whitehead - HSU

[161] Mr Craig Whitehead gave evidence from his experience as a self-employed Dental Prosthetist since the 1980’s, who is also employed on a part-time basis at the Royal Dental Hospital Victoria and at DPV Health, which is a Community Health organisation. He states his work at the Hospital is covered by the highest applicable level of Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020.

[162] Mr Whitehead gave evidence that he performs the same duties across the three different sectors, and that his work at the specialist clinics operated through the hospital is unique in Australia because it requires a higher skill set and dexterity which are attainable through several years of expertise. This includes working with people with complex health issues and physical disabilities.

[163] He states he joined the HSU 5 years ago as he felt the ADPA was not willing to support his industrial issues at the hospital.

[164] He gave evidence that he considered himself a health professional as both his work in the private and public sectors allow him to improve the quality of life and health outcomes of his patients. Mr Whitehead stated he is concerned that dental prosthetists may have access to less rights and protections if they are not award covered. 226

Anthony Varos - HSU

[165] Mr Anthony Varos gave evidence from his experience as a qualified Dental Prosthetist since 1990 and is currently employed at the Royal Dental Hospital of Melbourne, Monash Health (Cranbourne) and Dental Health Services Victoria. Before working in public health, he also had his own private practice.

[166] Mr Varos gave evidence that the substance of the work he performed in private and public sectors are the same, except a few differences, notably, overseeing his own laboratory work in his private practice and dealing with patients with complex cases, including special needs and phobia cases, in the public sector.

[167] Mr Varos gave evidence that he considered himself to be a health professional as he improves the health outcomes of his patients by helping them to eat or smile. 227

Oral evidence

[168] Three witnesses gave oral evidence at the 27 October 2020 hearing. This evidence is summarised below.

Oral evidence of Alexander Leszczynski for the HSU on 27 October 2020

[169] Mr Leszczynski confirmed he has provided three witness statements in relation to the coverage issue. The first was dated 17 March 2017 228, the second on 7 August 2019229 and the third summarised above at paragraph [145].

[170] Mr Leszczynski gave oral evidence that he was not aware of any change in the circumstances of dental hygienists and oral health therapists in terms of potential disadvantage since 2009 when the DHAA sought to remove the reference to dental hygienists from Schedule B of the award. 230 He gave evidence that Art Therapists were not historically covered by pre-modern awards and as a result of being covered by the HPSS Award now, it has resulted into better outcomes for them because during enterprise bargaining they are referred as being in the health profession.231

[171] He stated that having an occupation covered by the HPSS Award and listed as a health profession clarifies that they share similarities to other health professionals and during enterprise bargaining, it is recognised that their rates of pay should be commensurate with other health professionals who are award covered. 232 He gave evidence that he always negotiates the rates of pay significantly above the modern award rates, including the most recent public sector agreement he negotiated, which included Art Therapists.233

[172] Mr Leszczynski gave evidence that it is possible for Sonographers to be classified at Level 4 as they can be regarded as “fairly senior employees with quite significant responsibilities including managerial responsibilities”. 234 He gave evidence that a well-qualified health professional who had no supervisory responsibilities, budget allocation responsibility or managerial responsibility, could be classified at Levels 1, 2 or 3, depending on the type of work they are performing.235 He gave evidence that someone who has a Diploma would be classified at Level 1 but can progress to other levels.236 He stated that having a Degree is not an impediment to progress through the classification structure.237

[173] He gave evidence that being award-covered is advantageous to bargaining across the public sector, private sector or not-for-profit sector, because the minimum rates terms and conditions that would apply to those employees would be better under the award as there would be a higher better off overall test threshold to get over than if someone was just covered by the national minimum wage. 238

Oral evidence of Dr Tran for DHAA on 27 October 2020

[174] Dr Tran stated that she is the Vice President of the Dental Hygienists Association of Australia, national, a research fellow and lecturer at the University of Queensland, a private practice oral health therapist in special periodontal practice in Brisbane, and an accreditation team member and examiner for the Australian Dental Council.

[175] Dr Tran stated that she is qualified to compare a dentist and oral health therapist because she practises as an oral health therapist in private practice and has worked alongside dentists on a day-to-day basis for the past 15 years, including during her undergraduate training.

[176] Dr Tran stated that she is qualified to draw conclusions from the article annexed to her witness statement because she is an oral health therapist, a research fellow within the University of Queensland, she has practised alongside dentists for the past 15 years and she teaches within the dentistry and oral health programs at the University of Queensland. Through this experience she is exposed on a daily basis to how dentists are educated and perform their day-to-day work.

[177] Dr Tran stated that she is qualified to comment about the comparability of an oral health therapist to a dental therapist because she is a qualified oral health therapist and has previously worked in the Victorian public sector as a dental therapist.

[178] Dr Tran explained that there is some similarity in the wording of her witness statement to those of Ms Kuss, Ms Day and Ms McDermott because, owing to the last-minute nature of the preparations, her witness statement was provided as an example to others.

[179] Dr Tran confirmed that she drafted paragraph 4 of her statement and that prior to filing it she sent it to other DHAA members, however she denied suggesting others write their statements in similar terms. She confirmed that she advised that her statement could be used as a sample statement.

[180] Dr Tran confirmed that the DHAA is a company registered under the Corporations Act 2001 and not an organisation of employers or employees registered under the Fair Work (Registered Organisations) Act 2009.

[181] Dr Tran stated that she believes rules related to membership of the DHAA are displayed on the DHAA website. She stated that the rules for obtaining membership of the DHAA require the person to be a registered dental practitioner in Australia by AHPRA.

[182] Dr Tran stated that she believes the last time she consulted the membership rules would have been in 2017 or 2018 when the DHAA constitution was reviewed.

[183] Responding to questions about why the rules were not provided to the Commission in evidence, Dr Tran stated that she wouldn't have thought the rules relevant to the present proceedings.

[184] Dr Tran’s response to the question that the rules might show the basis on which people are entitled to be members of the organisation or contribute to the decision making was that DHAA maintains a consultative relationship with its members, including conducting regular surveys.

[185] Dr Tran confirmed that she holds a three-year Bachelor's Degree and a Doctorate in her field and that she has practised as an oral health therapist since 2009. She confirmed that she regards herself as possessing the highest level of professional knowledge and as a senior and recognised member of the profession with a proven record of achievement.

[186] Dr Tran stated that being a clinician and oral health therapist practising in a clinic with her current range of duties she believes she would be classified at level 2 under the HPSS Award.

[187] Dr Tran confirmed that she currently works at Brisbane City Periodontics, along with two other oral health therapists. Dr Tran confirmed that the practice is owned by the periodontists under a group partnership arrangement. She stated that she is privy to how the partners in the practice are remunerated, but she is not privy to each partner’s actual remuneration, for example the present weekly or annual rate of any of the members of the practice.

[188] Dr Tran confirmed that she is paid an hourly rate of $55 regardless of the type of treatment she provides.

[189] Dr Tran stated that until 2 years ago she received about $50 an hour. She confirmed that she approached her employers and asked for an increase, noting that she had demonstrated that she could perform clinically, that she had increased patient satisfaction and retention rates, she had increased her billable hours. Dr Tran confirmed that the partners did not argue against increasing her rate or make mention of the national minimum wage applying to her employment.

[190] Dr Tran clarified that in respect of her remuneration she is not paid on a percentage basis of her billings, but others in the profession are.

[191] Dr Tran confirmed that she is remunerated on clinical performance and revenue generated with an hourly rate of pay and that the revenue she generates is reviewed on a yearly basis and her remuneration will vary according to her annual review.

[192] Dr Tran confirmed she is reviewed and may receive a pay increase if regarded as meeting targets and stated that this arrangement is similar to that for a dentist.

[193] When asked why she would not regard herself as being classified at level 3 under the HPSS Award given her evidence about her level of expertise and role. Dr Tran stated that her level of expertise would not be recognised in private practice. Dr Tran expressed her understanding that level 3 involved supervisory responsibilities and in her private practice she sees patients on a day-to-day basis and does not perform a supervisory role.

[194] In response to a question as to whether she independently applied professional knowledge and judgment in her work, Dr Tran responded that a periodontist is always consulted.

[195] Dr Tran stated that she does not perform novel, complex or critical tasks specific to her discipline.

[196] Dr Tran agreed that she performs basic tasks and stated that she does not believe that she works in an area that requires a high level of specialist knowledge and skills. She stated that in terms of her work in private practice, she is not actively contributing to the development of professional knowledge and skills in her field.

[197] Dr Tran disagreed with the suggestion that if Dr Tran’s employer sought to decrease her rate of pay she would be able to meet that with an argument about all of the matters she outlined earlier regarding her performance and most recent pay increase. Dr Tran stated her belief that if she became subject to the award, regardless of whatever she could argue, her current salary would go down.

[198] Dr Tran confirmed that her employer had not indicated to her in any discussions an inclination to decrease her rate or that award coverage would likely lead to an inclination to decrease her rate.

[199] Dr Tran confirmed that at the time she wrote her statement she was employed by 3 practices. She is currently only employed by Brisbane City Periodontics as a permanent part-time employee working 27 hours per week. She confirmed that while a part-time employee in multiple practices she worked between 8 to 12 hours a week at each. At the first and second practices, for a period of 1 year, she earned $60 per hour.

[200] Dr Tran confirmed that she last worked in the public sector in Victoria about 12 years ago and she has no recent experience as a dental therapist in the public sector.

[201] Dr Tran confirmed that she has not worked in the USA, she has not taught in the USA, she has not done any research project in the USA and she has not received any dental treatment in the USA.

[202] In reply to the suggestion that Dr Tran’s knowledge of the practice of the dental profession in the USA is extremely limited. Dr Tran stated that she believes that teeth service of dentistry is very similar in the USA and Australia.

[203] Dr Tran stated she was aware of how the dentists at the other two practices she recently worked were remunerated, but not how much they were remunerated. She confirmed she was not privy to their contracts or discussions about how they are reviewed or remunerated. She confirmed that she does not participate in meetings amongst the partners at her practice.

[204] Dr Tran stated that she believes 3 dentists are employed at Brisbane City Periodontics. She confirmed that in the other two practices she worked in recently she believes 12 dentists were employed overall.

[205] Dr Tran disagreed with the suggestion that her opinion at paragraph 15 of her witness statement, where she makes the comparison between private sector oral health therapists and employed dentists, is based on a limited cohort of people within the industry. Dr Tran stated that during her 15 years working as an oral health therapist, including in the Victoria and Queensland public sectors, she has probably dealt with over 100 dentists.

[206] Dr Tran clarified that she has 11 years of practice in the private sector out of a total of 12 years’ experience in practice.

[207] Dr Tran stated that she is qualified to compare and apply American literature to the Australian context because she has a PhD in dentistry and is a research fellow within the University of Queensland.  She stated the two countries are very similar.

Oral evidence of Michelle Kuss for DHAA on 27 October 2020

[208] Ms Michelle Kuss gave oral evidence as a clinical dental hygienist practising in a specialist periodontal practice, a practitioner member of the South Australian Dental Board Registration and Notification Committee and Director and Treasurer of the National Dental Hygienists Association of Australia. 239 She stated that she qualified as a dental hygienist in 1996 and was awarded a Certificate after 18 months of study.

[209] Ms Kuss stated that she was at the highest level of her profession at this stage and believed that she could be recognised as a senior member of the profession. 240 and that whilst she has mostly worked in the private sector, she was also exposed to the public sector until November 2018 as she undertook clinical tutoring of students when they were treating patients.241 She gave evidence that since February 2020, she has been employed as a dental hygienist in the private sector and was not currently privy to the dentists' remuneration or their process of performance review.242 She stated that in her previous position she had no ownership interest in the practice but was privy to the performance review process for dentists for 15 years.243

[210] Ms Kuss stated that in her current role she occasionally has access to an assistant if she requires one and undertakes independent consultations which require critical and complex work. 244She stated that she is not involved in evaluating procedures for work that has been performed nor contributes to discussions about how work can be improved.245 She gave evidence that she is referred by dentists.246

[211] Ms Kuss gave evidence that she is currently earning $65 per hour and that she was paid $60 per hour in her previous employment. She stated that she did not leave her previous employment because of the rate but she would not have accepted a lesser rate in a future position. 247 She stated that the starting rate offered was negotiable, but she did not see any reason to negotiate.248She further stated that there was no reference to the national minimum wage during the discussion of her starting salary.249 She gave evidence that she is not aware how the legislated rate that applied to her employment compared to the modern award rates.250She stated that she is paid an annual salary, not an hourly wage and is remunerated by salary not by reference to clinical performance and revenue generated.251 She stated that in her previous employment, she was in a good position to negotiate salary increases because she had budgets to meet and had targets to meet.252

[212] Ms Kuss gave her opinion that the award rate of “Level 1, Paypoint 1” would apply to her current role because she would be considered an undergraduate since she does not have a degree, cannot participate in research activities and is performing a clinical role rather than an administrative role. 253 She stated that in her view the progression through the classification structure would not apply to her until she obtains a three-year degree.254 Ms Kuss stated that her opinion would not change with regard to the disadvantages of award coverage if she was found to be classified at Level 2 or Level 3.255

Consideration

[213] Before coming to our conclusion we have had regard to the effect of s.143(7) of the Act. We have asked ourselves two questions: firstly, does s. 143(7) prohibit the HPSS Award being expressed to cover the class of employees of the occupation? This would be the case if the occupation was not traditionally covered by awards because of the nature or seniority of the role. Secondly, does the class of employees of the occupation perform work that is not of a similar nature to work that has been traditionally regulated by awards. We note the work does not have to be the same but similar, described in the Miscellaneous Award decision as “likeness or resemblance”. Because paragraphs (a) and (b) of s.143(7) of the Act are separated by the disjunctive “or” if the answer to either of these questions is yes, we must conclude that the Award cannot be expressed to cover the occupation. This would prevent the occupation being listed in Schedule B List of Common Health Professionals and would support the insertion of an exclusion.

[214] Next we have considered whether we are satisfied that the variation proposed is necessary to achieve the modern award objective? The modern award objective, broadly expressed, requires that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions. We note that this involves a value judgement taking into account the matters in s.134 of the Act. It is an exercise of the discretion of the Commission and one that must be done on the basis of a consideration of all the matters in s.134 of the Act with none of them having particular primacy.

Medical Practitioners

[215] We consider the submissions of the AMA and the HSU amount to the proposition that medical practitioners ought not be covered by the HPSS Award and we concur with that submission. We note that there are no submissions to the contrary. The Medical Practitioners Award 2020 covers medical practitioners defined in clause 4 of that award to the exclusion of any other modern award. Whilst that coverage is confined, as stated by the AMA in its submissions referred to at paragraph [51] above (and made clear by the Full Bench in Vahid Sedighi Gourabi v Westgate Medical Centre)  256 the HPSS Award could not therefore cover medical practitioners covered by that award. The same Full Bench recognises that medical practitioners in general practice and private specialist practice have traditionally been award-free. We consider that s.143(7)(a) of the Act means that the HPSS Award could not be expressed to cover medical practitioners and we consider that the insertion of an exclusion in the HPSS Award is compatible with this conclusion. We will insert an exclusion in clause 4 of the HPSS Award as sought by the AMA. We are also satisfied that this variation is necessary to achieve the modern award objective. We will include this variation in the Determination that accompanies this decision.

Dental Prosthetists, Dental Hygienists and Oral Health Therapists

[216] We are not persuaded that it is appropriate to exclude the occupations of dental prosthetists, dental hygienists and oral health therapists from the HPSS Award. There is nothing in the evidence given by employees who are dental prosthetists, dental hygienists and oral health therapists that suggests these classes of employees were not traditionally covered by awards because of the nature or seniority of the role. Rather, the circumstances described in the Miscellaneous Award decision and the Broadcasting and Recorded Entertainment Award decision that of employees performing new or emerging types of work that has not yet been the subject of an application or considered for award coverage or have “fallen through the gaps” of award coverage seems more applicable.

[217] The work of dental prosthetists, dental hygienists and oral health therapists seems to us to resemble in character or kind work already covered by the HPSS Award. It is acknowledged that Schedule A of the HPSS Award, which contains the Classification Definitions for Support Services Employees, includes amongst the indicative Technical and Clinical roles listed those of ‘Dental Assistant’ and ‘Dental Technician’. The List of Common Health Professionals in Schedule B includes the profession of ‘Dental Therapist’. That this is considered a “legacy profession” does not detract from the point, indeed the evolution of the professions of dental hygienists and oral health therapists appears to support the conclusion that these occupations resemble in character or kind work already covered by the HPSS Award. The HSU also points to the history of award coverage in pre-modern awards, albeit not comprehensive.

[218] The evidence given by employees who are dental prosthetists, dental hygienists and oral health therapists does not point to the nature or seniority of the roles being the reason for their absence of award coverage.

[219] We note that as stated in paragraph [83] above the role of Dental Hygienist was removed from the list of common health professionals in a predecessor award to the HPSS Award by a Full Bench of the AIRC, a predecessor tribunal to the Commission. We agree with the HSU that we are not precluded from revisiting this decision and give the circumstances of this decision (there was no contradictor) we consider that it is appropriate to do so.

[220] We are not persuaded by evidence given on behalf of the ADHA that award coverage would produce downward pressure on the wages of these occupations. The credibility of this evidence was undermined by the line by line replication of the same evidence given by 8 employees on behalf of the ADHA. The contention that once there is an award minimum wage, employers will reduce employees’ wages, is not plausible given there is already a NMW and this has not occurred.

[221] We are satisfied that it is necessary to achieve the modern award objective to not exclude, and to explicitly include, dental prosthetists, dental hygienists and oral health Therapists in the coverage of the HPSS Award. A fair and relevant minimum safety net of terms and conditions would be provided by so doing. We have considered the matters contained in sections 134(a) to (h) and on balance consider that these professions will better served through award coverage than being award free. In particular we consider that award coverage will encourage collective bargaining. We also believe that award coverage will provide important qualitative benefits in access to dispute resolution and consultation provisions.

[222] We consider that it is appropriate to include these occupations in the list of Common Health Professionals contained in Schedule B of the HPSS Award. We will include this variation in the determination that accompanies this decision.

Dentists and Optometrists

[223] . The HSU sought the coverage of dentists and optometrists. The submissions made by the HSU in support of the inclusion of these occupations on the List of Common Health Professionals in Schedule B of the HPSS Award acknowledged the absence of award coverage in the past but contended that s.147(7) of the Act posed no constraint to changing this because the absence of award coverage was not based on the nature or the seniority of the role of optometrist. The submissions made by the ADA and OA in support of the exclusion of these occupations from the HPSS Award were largely concerned with the absence of past award coverage

[224] We accept that the evidence does not show that s.147(7) places a constraint on the Full Bench, however this submission ignores the exercise of the discretion of the Full Bench concerning the modern award objective that is required to change a circumstance that has pertained in the past. As we say in paragraph [26] above, variations to modern awards should be founded on merit-based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances. We consider that we do not have enough evidence, or sufficiently compelling submissions, to responsibly exercise our discretion to change the status quo.

[225] We will neither exclude these occupations from the coverage of the HPSS Award nor include them on the List of Common Health Professionals in Schedule B of the Award.

[226] We note that an application to vary a modern award may be made in accordance with s. 158 of the Act.

Schedule B List of Common Health Professionals

[227] The HSU has proposed that we vary the HPSS Award to reflect the December 2019 decision. We agree that the HPSS Award should be varied to appropriately reflect that decision, but we consider that it is sufficient to add the word “indicative” in Schedule A to the preamble to the Health Professional employees – definitions. To add the word to the title of the List of Common Health Professionals would be cumbersome and is not necessary. It will be clear from the reference we will insert in Schedule A and we have made it clear in the December 2019 decision that the List of Common Health Professionals is indicative and not exhaustive. We will include this variation in the Determination that accompanies this decision.

Conclusion

[228] We consider the variations proposed above are appropriate and consistent with the modern awards objective in s 134(1) of the Act. The date of effect of the changes will be delayed to 1 July 2021 to provide time for the parties to make the necessary adjustment needed. A determination giving effect to this decision has been published in conjunction with this decision. The variations will take effect on 1 July 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724588>

 1   [2018] FWCFB 7350.

 2   Note: The 2020 version of the award commenced on 18 June 2020. All reference to the ‘HPSS Award’ in this Decision refers to the Health Professionals and Support Services Award 2020.

 3   [2018] FWCFB 7350 at [117].

 4   Ibid, at [125]-[126].

 5   Ibid, at [146].

 6   Ibid, at [147].

 7   Aged Care Award 2010; Amusement Events and Recreation Award 2010; Australian Capital territory Public Sector Enterprise Award 2016; Australian Government Industry Award 2016; Australian Public Service Enterprise Award 2015; Christmas Island Administration Enterprise Award 2016; Nurses and Midwives (Victoria) State Reference Public Sector Award 2015 and Parliamentary Departments Staff Enterprise Award 2016.

 8   Professionals Australia, application, 7 September 2020.

 9   [2018] FWCFB 7350 at [166]-[167].

 10   PR712231; [2019] FWCFB 5145.

 11   [2018] FWCFB 7350, at [174]-[175].

 12   [2019] FWCFB 120.

 13   PR703713.

 14   Directions, 3 May 2019.

 15   Directions, 20 June 2019.

 16   Transcript, 23 August 2019 at PN30-PN31.

 17   Correspondence from FWC, 28 August 2019.

 18   Directions, 17 September 2019.

 19   Transcript, 2 December 2019.

 20   Ibid, at PN200, PN210 and PN264.

 21   Ibid, at PN408.

 22   ABI submission, 14 October 2019.

 23   Transcript, 2 December 2019 at PN357-PN358.

 24   Ibid, at PN465.

 25   Ibid, at PN420, PN447 and PN460.

 26   Ibid, at PN259, PN443.

 27   Decision, 19 December 2019.

 28   Correspondence from FWC, 27 April 2020.

 29   Notice of listing, 19 December 2020.

 30   Ibid.

 31   Amended Notice of listing, 27 April 2020

 32   Transcript, 14 May 2020

 33   Directions, 18 May 2020; Ibid, at PN550- PN550

 34   The timeframe for the objections and responses was extended to 25 May 2020 and 1 June 2020 respectively.

 35   Directions, 18 May 2020.

 36   HSU submission, 25 May 2020.

 37   ADA submission, 1 June 2020.

 38   DHAA submission, 1 June 2020.

 39   Directions, 11 August 2020.

 40   Notice of listing, 30 September 2020.

 41   Notice of listing, 23 October 2020.

 42   Transcript, 27 October 2020.

 43   ADA and the ADPA, submission, 3 November 2020.

 44   DHAA, submission, 2 November 2020.

 45   HSU, submission, 4 November 2020.

 46   Optometry Australia, submission, 9 November 2020.

 47   [2014] FWCFB 1788.

 48   Ibid at [24].

 49   Ibid at [23].

 50   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

 51   [2014] FWCFB 1788 at [36].

 52   Note 1 in section 156(2) of the Act.

 53   [2020] FWCFB 754.

 54   Ibid, at [31]-[36].

 55   [2020] FWCFB 1518.

 56   [2020] FWCFB 3827.

 57   [2017] FWCFB 3803

 58   ADA and other submission, 28 February 2020, at [2].

 59   ADA and other submission and witness statement, 14 October 2020; ADPA and other submission and witness statement, 14 October 2020; ADA submission in reply, 12 March 2020.

 60   ADA and other submission, 28 February 2020, at [2]

 61   ADA and other submission, 28 February 2020, at [3] (b)

 62   ADA and other submission, 28 February 2020, at [3] (d)

 63   ADA and other submission, 28 February 2020, at [3] (g)

 64   DHAA submissions of 9 December 2019, 25 November 2019, 14 October 2019, 14 August 2019, 31 July 2019, 14 March 2018, 11 December 2017, 13 June 2017, 22 May 2017, 17 March 2017, 2 August 2016, 29 April 2016, 5 November 2015, 21 August 2015, and at arbitration before the Full Bench on 2 December 2019 and on 11 and 12 December 2017.

 65   DHAA Reply Submission, 28 February 2020 at [4].

 66   DHAA Reply Submission, 28 February 2020 at [14].

 67   DHAA Reply Submission, 28 February 2020 at [21] and [62].

 68   DHAA Reply Submission, 28 February 2020 at [37].

 69   DHAA Reply Submission, 28 February 2020 at [35] and [44].

 70   DHAA Reply Submission, 28 February 2020 at [47] and [52].

 71   DHAA Reply Submission, 28 February 2020 at [43].

 72   DHAA Reply Submission, 28 February 2020 at [25], [26] and [28] and the 2009 AIRC decision [2009] AIRCFB 948.

 73   DHAA Reply Submission, 28 February 2020 at [28].

 74   DHAA Reply Submission, 28 February 2020 at [29].

 75   ADOHTA submission, 28 February 2020.

 76   AMA submission, 5 February 2020, at [2].

 77   Ibid, at [5]- [6].

 78   Ibid, at [7]; HSU correspondence, 3 September 2019.

 79   Ibid at 12.

 80   Decision - [2019] FWCFB 3874, at [28].

 81   AMA (NSW) submission, 28 February 2020, at [1] – [3].

 82   Ibid, [9] – [11].

 83   OA submission, 28 February 2020, at [3]and [20].

 84   Ibid, at [10] – [13].

 85   Ibid, at [17].

 86   Ibid, at [14] – [16].

 87   Ibid, at [21]; Health Services Union Rules incorporating alterations of 23 May 2018 (R2018/48).

 88   Ibid, at [23] – [26].

 89   Ibid, at [22].

 90   ADA and ADPA submission, 14 October 2019.

 91   ADA and ADPA submission, 13 May 2020, at [7].

 92   HSU submission, 10 April 2020

 93   ADA and ADPA submission, 13 May 2020, at [42].

 94   Ibid, at [48] and [51].

 95   Ibid, at [52].

 96   DHAA submission, 24 April 2020, at [15].

 97   Ibid, at [14].

 98   Ibid, at [16].

 99   Ibid, at [17].

 100   HSU submission, 10 April 2020.

 101   DHAA submission,, 24 April 2020, at [23] – [25].

 102   Ibid, at [26] – [28].

 103   Ibid, at [29] – [33].

 104   Ibid, at [41] –[47].

 105   Ibid, at [51] –[52].

 106   HSU submission, 10 April 2020 at para 3.

 107   Ibid, at para 7.

 108   Ibid, at para 8.

 109   Ibid, at para 9.

 110   Ibid, at para 13.

 111   Ibid, at para 14.

 112   Optometry Australia submission, 28 February 2020 at para 19.

 113   HSU submission, 10 April 2020, at para 15.

 114   Ibid, at para 16.

 115   Ibid, at para 17.

116 Ibid, at para 18.

117 Ibid, at para 19.

118 Ibid, at para 21.

119 Ibid, at para 22.

120 Ibid, at paras 23-27; See Health Employees Dental Officers (State) Award (C4296); Health Employees Dental Officers (State) Award (C4296); District Health Services Employees’ Award – State 2003; Dental Employees Award (AN170024); Health and Community Services Industry Sector – Minimum Wage Order – Victoria 1997 (AP784047); Health Services Union of Australia (Aboriginal and Torres Strait Islander Health Services) Award 2002 (AP819920); Aboriginal Community Controlled Health Services (Northern Territory) Award 2002 (AP817919); and Aboriginal Organisations Health and Related Services (Northern Territory) Award 2002 (AP818988).

121 HSU submission, 10 April 2020 at para 28.

122 Ibid, at para 29.

123 Ibid, at paras 30-31.

124 Ibid, at para 32.

125 Ibid, at para 34.

126 Ibid, at para 35.

127 Ibid, at para 36.

128 Ibid, at para 41.

129 Ibid, at paras 42-75. In New South Wales: Dental Therapists (State) Award; Public Hospital Dental Therapists (State) Award (C4280); Public Hospitals (Dental Staff) Award (C4281); Health Employees Oral Health Therapists (State) Award (C3073); Health Professional and Medical Salaries (State) Award; Health Employees Dental Technicians (State) Award (C0836); Health Employees (Dental Prosthetists and Dental Technicians (State) Award (C7074); Health Employees (Dental Prosthetists and Dental Technicians (State) Award; Health Professional and Medical Salaries (State) Award; Dental Technicians (State) Award (AN120180); In Victoria: Dental (Private Sector Victoria) Award 1998 (AP779110CRV); Health and Community Services Industry Sector – Minimum Wage Order – Victoria 1997 (AP784047); In Queensland: Dental Technicians Award; District Health Services Employees’ Award – State 2003; In Tasmania: Dentists Award (AN170025); Hospitals Award (AN170046); In Western Australia: Dental Technicians and Attendant/Receptionists Award 1982; Hospital Employees (Perth Dental Hospital) Award 1971 (AN160160); Health Employees (Dental Health Services) Award 2003; and in South Australia: Dental Technicians and Attendants Award (AN150045):

130 HSU submission, 10 April 2020, at para 41.

131 Ibid, at para 41.

132 Ibid, at para 41.

133 Ibid, at para 41.

134 Ibid, at para 98.

135 Ibid, at para 76.

136 Ibid, at para 77.

137 Ibid, at para 79.

138 [2009] AIRCFB 948

139 HSU submission, 10 April 2020, at paras 37-38.

 140   Ibid, at para 39.

141 Ibid, at para 40.

142 [2019] FWCFB 5078 at [111]

143 [2017] FWCFB 1001.

144 HSU submission, 10 April 2020, at paras 81-82.

145 Ibid, at para 83.

146 Ibid.

147 Ibid, at paras 84-85.

148 Ibid, at para 86.

149 Ibid, at para 87.

150 Ibid.

151 Ibid, at para 41.

152 Ibid, at para 88

153 Ibid.

154 Ibid.

155 Ibid, at para 89.

156 Ibid.

157 Ibid, at para 90.

158 Ibid, at para 91.

159 Ibid.

160 The evidence of Alex Leszczynski is that the Form F17 completed by the Victorian Hospital Industry Association which reveals that the VHIA considers that Dental Prosthetists covered by the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020, being aligned to Health Professional Level 1 or 2 of the HPSS Award for the purposes of the Better Off Overall Test.

161 Ibid, at para 93; Statement of Anastasia Staikopoulos at [22]

162 Statement of Anthony Varos, at [30].

163 Ibid, at para 94.

 164   Statement of Jenine Anne Bradburn, at p.31 [20].

165 Statement of Gregory Roche [28]; Ibid, at para 95.

 166   HSU submission dated 4 November 2020 at para 3.

 167   Ibid, at paras 4 and 5.

 168   Ibid, at paras 8 and 14.

 169   Ibid, at para 7.

 170   Ibid, at paras 9 and 11.

 171   Ibid, at para 9.

 172   Ibid, at para 10.

 173   Ibid, at para 10.

 174   Ibid, at para 10.

 175   Ibid, at para 13.

 176   Ibid, at para 11.

 177   Ibid, at para 12.

 178   Ibid, at paras 14-15.

 179   Ibid, at para 16.

 180   Ibid, at para 16.

 181   Ibid, at para 17.

 182   DHAA submission dated 2 November 2020 at para 9.

 183   Ibid, at paras 4-9.

 184   Ibid, at paras 10-11.

 185   Ibid, at para 12.

 186   Ibid, at paras 13-14.

 187   Ibid, at para 16.

 188   Ibid, at para 15.

 189   Ibid, at para 25.

 190   Ibid, at paras 17-18.

 191   Ibid, at para 19.

 192   Ibid, at para 20.

 193   Ibid, at para 21.

 194   Ibid, at paras 21-23.

 195   Ibid at paras 23-27.

 196   ADA and ADPA submission, 3 November 2020, at para 7 and p.3.

 197   Ibid, at paras 3-4.

 198   Ibid, at para 5.

 199   Ibid, at para 6.

 200   ADA and ADPA submission, 28 February 2020; ADA and ADPA submission, 13 May 2020.

 201   ADA and ADPA submission, 13 May 2020, at para 8.

 202  OA submission, 9 November 2020, at p.2.

 203   OA submission, 28 February 2020.

 204   OA submission, 9 November 2020, at paras 1-2.

 205   AMA submission, 4 November 2020; AMA submission, 5 February 2020.

 206   ADPA and ADA submission, 3 November 2020.

 207   Transcript, 27 October 2020 at PN [16]-[41].

208 Witness statement of Carol Tran of 27 February 2020.

 209   Witness statement of Michelle Kuss of 27 February 2020.

 210   Witness statement of Cheryl Dey of 28 February 2020.

 211   Witness statement of Amy McDermott of 28 February 2020.

 212   Witness statement of Kay Ball of 16 June 2019.

 213   Witness Statement of Alison Taylor of 19 June 2020.

 214   Witness Statement of Susan Melrose of 26 June 2019.

 215   Witness Statement of Christina Zerk of 24 June 2019.

216 Witness Statement of Lyn Carman of 30 July 2019.

 217   Witness Statement of Benjamin Merchant of 16 July 2019.

 218   Witness Statement of Samson Chan of 30 July 2019.

219 Witness Statement of Alex Leszczynski of 10 April 2020 at para 4.

220 Witness Statement of Alex Leszczynski of 10 April 2020 at para 5.

221 Witness Statement of Alex Leszczynski of 10 April 2020 at para 6.

222 DHAA submission, 28 February 2020, ar paras 29-31.

 223   Witness Statement of Alex Leszczynski of 10 April 2020 at paras 8 and 9.

 224   Witness Statement of Gregory Roche of 9 April 2020.

 225   Witness Statement of Anastasia Staikopoulos of 9 April 2020.

 226   Witness Statement of Craig Whitehead of 9 April 2020.

 227   Witness Statement of Anthony Varos of 9 April 2020.

 228   Witness statement of Alexander Leszczynski of 17 March 2017.

 229   Witness statement of Alexander Leszczynski of 7 August 2019.

 230   Transcript - 27 October 2020, at PN86-PN64.

 231   Ibid, at PN129.

 232   Ibid, at PN130.

 233   Ibid, at PN131.

 234   Ibid, at PN137.

 235   Ibid, at PN138.

 236   Ibid, at PN147.

 237   Ibid, at PN149.

 238   Ibid, at PN152.

 239   Transcript – 27 October 2020, at PN406.

 240   Ibid, at PN428-PN431.

 241   Ibid, at PN432- PN434.

 242   Ibid, at PN435-PN439.

 243   Ibid, at PN439-PN442.

 244   Ibid, at PN443-PN446.

 245   Ibid, at PN447-449.

 246   Ibid, at PN452.

 247   Ibid, at PN453-458.

 248   Ibid, at PN460-PN464.

 249   Ibid, at PN465.

 250   Ibid, at PN474.

 251   Ibid, at PN476-PN480.

 252   Ibid, at PN481-PN486.

 253   Ibid, at PN493.

 254   Ibid, at PN499 – PN508.

 255   Ibid, at PN524-PN525.

 256   Decision – [2019] FWCFB 3874, paras [32]-[33].