WA health workers: your agreement and pay, clause by clause.

The application sought to amend the Hospital Salaried Officers' Award 1968 to improve the entry and exit points of the classification structure for clinical psychologists, on the basis of increased work value, with effect from 18 August 1997, the date the application was filed ([1]). The union estimated about 135 positions at a cost of $540,000 ([18]).

The Commission set out the approach to professional work value:

(a) general changes that apply across the workforce, such as computerisation, do not count ([144]), but evolutionary change "can be just as substantial and significant as revolutionary change" ([145]);

(b) professionals are expected to keep up with their field without that being treated as work value, but that is not an absolute bar where real change is shown ([146]-[147]);

(c) job descriptions alone do not show the whole picture ([154]).

The changes found included more complex assessment and diagnosis (co-morbidity, substance abuse, an ageing population), a much larger body of knowledge, new treatment methods, responsibility for assessment and treatment once held by psychiatrists, heavier supervision and a longer registrar training period ([154], [164]). Not every change applied at every level, but there was "a high level of change across all of the public health sector clinical psychologist positions" ([155]). Workload, lower pay than private practice, and attraction and retention were not work value factors ([157]). Taken together, the changes were "a significant net increase in their work value since 1990" ([169]).

On flow-on, other groups would have to prove their own case, but "the prospect of flow-on should not deny to one group" the benefit of what it had proved ([170]). The cost, at most 135 positions and $540,000 to $924,000 against a $1.8 billion health budget, was no impediment ([173]). The new structure was set out at [178]. Because the employers' commitments to create senior positions had been "either ignored, thwarted by budget constraints or bogged down" ([199]), special circumstances justified some retrospectivity, from 1 September 2001 ([200]-[201]).

In the decision's words: "the prospect of flow-on should not deny to one group the benefit of increases in remuneration due to the increased work value they have demonstrated." ([170]).

Outcome: Won by the union, in part. The award was amended to give clinical psychologists a better structure, with registrars entering at level 6.1 and senior clinical psychologists progressing to the top of level 9, operative from 1 September 2001. Entry to level 10 and the proposed higher grades were not established on the evidence.

A duty medical scientist position had been downgraded in 2001, while vacant (HSUWA v Director General of Health [2006] WAIRC 05622 at [4]), and in 2007 PathWest's Chief Executive decided to classify all Level 7 duty and shift medical scientist positions at Level 4/6 (Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00253 at [3]). The union challenged both, not on the ground that the work had changed, but that the level was wrong.

(a) First decision. The usual route for reclassification under the Statement of Principles needs a work value change, and given those Principles' "binding nature on a single Commissioner" the Arbitrator held she could not deal with the claim, which was dismissed (HSUWA v Director General of Health [2006] WAIRC 05622 at [20]-[21]).

(b) The appeal. The Full Bench held that the Arbitrator's jurisdiction "is not in any way expressed to be the subject to any General Order, including the Statement of Principles" (Health Services Union of Western Australia (Union of Workers) v Director General of Health [2007] WAIRC 00396 at [115]). The Principles did not apply to a claim to classify one position, and the claim had to be heard even if it did not fit the work value change principle ([128], [132]). Because the error went to jurisdiction, the purported decision was not a "decision" caught by the bar on appeals, so the appeal could proceed; the decision was quashed and the claim remitted ([140], [142]).

(c) On remittal. Where a claim is not based on changed work value, the positions' work value is still assessed, by "the nature of the work, skill and responsibility required or the conditions under which work is performed" (HSUWA v Director General of Health [2008] WAIRC 00253 at [15]-[17]); that the claim differed from the usual reclassification appeal did not stop the Arbitrator dealing with it ([18]). Evaluation tools such as position questionnaires "are helpful tools" but "not determinative", and higher workload and recruitment problems do not justify a higher level ([20]). These scientists work after hours without professional supervision, are rostered only once near the top of Level 4/6 and after months of further training ([27]-[30]), and take effective control of the laboratory after hours ([63]). Working autonomously is not enough ([48]); what distinguished them was that they "bear a higher level of responsibility" and "have a higher level of decision-making" ([50]). The positions were classified at Level 7 ([53], [61]), on a "unique combination of circumstances" ([63]).

In the decision's words: "assessment of the work value of a position remains the appropriate mechanism for determining the appropriate level of classification." (HSUWA v Director General of Health [2008] WAIRC 00253 at [15]).

Outcome: Won by the union, on appeal and then on the merits. The first claim was dismissed because no wage principle fitted it; the Full Bench quashed that decision; on remittal the after-hours duty and shift medical scientist positions were classified at Level 7. Also: appeal HSUWA v Director General of Health [2007] WAIRC 00396; decision on remittal HSUWA v Director General of Health [2008] WAIRC 00253.

The officer was appointed in 2002 to an "award free" position whose salary was to mirror the award and agreement increases (HSUWA v Director General of Health [2010] WAIRC 01130 at [1], [4]). A work value review of health professionals in the specified callings then lifted every senior position reporting to him ([85]). After the union applied, an employer review put his own position at Level 11 on appointment and Level 12 now, but no increase was paid because he was already paid above Level 12 ([87]). His contract documents said he had no automatic adjustment for internal changes in relativity, but that he could renegotiate if work value changed ([91]; Director General of Health v Health Services Union of Western Australia (Union of Workers) [2011] WAIRC 00332 at [76]).

(a) First decision. The Arbitrator found a pre-contract agreement that the position's relativity would be kept, and ordered the salary increased (HSUWA v Director General of Health [2010] WAIRC 01130 at [91]).

(b) First appeal. The Full Bench held it "was not open to find" that keeping the position's status was a term of the contract; the earlier discussions were pre-contractual and the relativity was the officer's expectation only (Director General of Health v HSUWA [2011] WAIRC 00332 at [77]-[79]). But the union's referral also alleged that the employer had acted in a way that was not fair, just or reasonable, so it "was not confined to the contractual rights of the parties", and the matter was sent back for a hearing on the merits ([80], [102]-[104]).

(c) On remittal. The dispute about the amount of his salary was an industrial matter the Arbitrator could hear, and it was about fairness, not enforcing a contract (Health Services Union of Western Australia (Union of Workers) v Director General of Health [2012] WAIRC 00059 at [57]-[58]). It was unfair that the increased work value of the position "is not being recompensed" and was absorbed into his existing salary ([59], [62]). The claim was for a differential accumulating since August 2003 ([65]).

(d) Second appeal. The Full Bench upheld the power to act on fairness. "Minimum rates in industrial instruments prescribe rates of pay as legal minima" and employees may pursue over-award payments, which are not confined to contract (Director General of Health v Health Services Union of Western Australia (Union of Workers) [2012] WAIRC 00362 at [70], [72]). But the dispute was "not a dispute about the salary that is allocated to the level 12 office" ([77]), and the Arbitrator had no power to increase the salary of the position itself; the orders were recast to increase the over-award payment to the officer ([78]-[79]). Such a claim needs "cogent reasons" ([98]), and the orders, though calculated from past dates, were not retrospective, because the obligation to pay arose only when the order was made ([84]-[85]).

Outcome: Won by the union in the end, on fairness rather than contract. The first decision was suspended on appeal and the matter remitted, because no contractual promise of relativity existed. On remittal the refusal to increase the officer's pay was held unfair. On the employer's second appeal, which succeeded on the form of the order, it was recast so that it increased his over-award payment, not the salary of the office. Also: appeal Director General of Health v HSUWA [2011] WAIRC 00332; on remittal HSUWA v Director General of Health [2012] WAIRC 00059; second appeal Director General of Health v HSUWA [2012] WAIRC 00362.

The PathWest employee worked from 1 September 2014 to 6 December 2022 and, as a former employee, brought a dispute about pro rata long service leave for more than seven but less than 10 years (Stabler [2026] WAIRC 00360 at [2]-[4]). The Long Service Leave Act 1958 (WA) does not apply to an employee whose own long service leave entitlement is "at least equivalent" to the Act's (s 4A(4)).

(a) The 2025 decision. A chef de partie at Fiona Stanley Hospital had worked there just under 10 years, nearly seven of them for the private contractor that ran the service, before the work came in-house (Phoolwuntee Devi Kullup v South Metropolitan Health Service [2025] WAIRC 00364 at [1]). Under the PACTS agreement 2022, leave accrued and was paid out on termination after 10 years ([2]); under the Act, payment followed seven years ([3]). The Industrial Magistrate held that the comparison "is a single comparison of the composite entitlements, assessed globally" ([66]). The Act was better in only one case, an employee leaving with between seven and 10 years outside the agreement's listed circumstances ([71]); otherwise the agreement was equal or better ([72]), and overall its entitlements were "superior" ([73]). So the Act did not apply ([74]-[75]). In the alternative, her service with the contractor would not have counted, because her federal agreement had given equivalent leave ([89]-[92]). The claim was dismissed ([93]).

(b) The 2026 decision. The 2020 agreement's long service leave clause is in substantively identical terms to the 2022 one ([12], [16]). The employee's argument, that the agreement cannot be "at least equivalent" if any class of employee is worse off, "cannot be reconciled" with the Industrial Appeal Court's global, prospective approach ([14]). Nor does the Act fill a gap: if the agreement is globally at least equivalent, the Act does not apply at all "and there is no ‘gap’ for the LSL Act to fill" ([15]). The Act did not apply, and none of the agreement's listed circumstances did, so there was no entitlement under either ([19]-[20]). The Commission had jurisdiction over the dispute, so PathWest's jurisdiction argument failed, but the claim was "doomed to fail" and was dismissed because further proceedings were not necessary or desirable in the public interest ([21]-[25]).

In the decision's words: "the comparison is a single comparison of the composite entitlements, assessed globally." (Kullup [2025] WAIRC 00364 at [66]).

Outcome: Lost by the employees. A former PathWest employee with eight years' service had no pro rata long service leave under the PACTS agreement 2020, and the Long Service Leave Act did not apply. The 2025 claim, by a former hospital chef with just under 10 years at Fiona Stanley Hospital, failed for the same reason under the 2022 agreement. Also: earlier decision applied Kullup [2025] WAIRC 00364.

The officer started on 1 August 1995. In 2000 she signed a workplace agreement and converted 6.5444 weeks of pro rata long service leave into 4.9083 weeks of annual leave, and stopped accruing long service leave while on it; she left it in October 2001 (HSUWA v Director General of Health [2012] WAIRC 01117 at [2], [35]; Health Services Union of Western Australia (Union of Workers) v Director General of Health [2012] WAIRC 00048 at [13]-[14]). The employer later said her 10 years ran from 8 October 2001.

(a) First instance. Long service leave is "a reward for long and faithful service" (HSUWA v Director General of Health [2012] WAIRC 00048 at [17]). Periods excluded by the definition of continuous service do not end it; "they are merely excluded from the calculation of service" ([20]). Nothing in the instruments says service "is broken and must start again" ([23]). Her service began on 1 August 1995 ([27]), less excluded periods; the clause excluding compensated service "is clearly designed to avoid double-dipping" ([28]). The declaration excluded three periods: the service converted to annual leave, the time under the workplace agreement and a period of leave without pay (Health Services Union of Western Australia (Union of Workers) v Director General of Health [2012] WAIRC 00261, declaration A3).

(b) The appeal. The union argued that only the weeks of leave converted, not the years of service that earned them, should be deducted (HSUWA v Director General of Health [2012] WAIRC 01117 at [5], [35]). The Full Bench disagreed: "It is the period of service that has been converted that is to be deducted" ([75]). The words "payment, or any other compensation" include converting leave into a discounted form of another leave ([77]). The payment was for her service from 1 August 1995 to the workplace agreement, so that period does not count, less leave left to her credit by a calculation error ([78]-[79]). The appeal was dismissed ([80]).

Outcome: Split. The union won the declaration that the officer's long service leave service ran from her 1995 start, not from 2001. It lost on whether the years she had converted into discounted annual leave under a workplace agreement still counted: they did not, and the appeal was dismissed. Also: first instance HSUWA v Director General of Health [2012] WAIRC 00048; declaration HSUWA v Director General of Health [2012] WAIRC 00261.

The union said three former employees, employed on fixed-term contracts over several years at Swan Kalamunda District Hospital, should be entitled to the transition payment on the hospital's closure (recital 1). The Arbitrator took into account:

(a) their "particular and unique circumstances";

(b) information suggesting strongly that the employer had intended, soon after the first contracts, to create positions for which they would be eligible for permanency;

(c) the difficulty in finding out why that never happened; and

(d) the disadvantage to them from "the respondent’s failure to advertise or formalise the positions" (recital 2).

Otherwise they appeared to meet the tests for the transition payment under reg 40 of the redeployment and redundancy regulations (recital 3). The Arbitrator recommended that the employer make the payment to the three (the recommendation). The file was later recorded as discontinued (pack index; not read).

In the decision's words: "the three employees having been disadvantaged by the respondent’s failure to advertise or formalise the positions" (recital 2).

Outcome: Won by the union, by recommendation (not a binding order): the employer should make the reg 40 transition payment to three former fixed-term employees.

The Panel determined that health professionals, pathology collectors and dental assistants covered by the HPSS Award "have been the subject of gender-based undervaluation", and that this was a work value reason to vary their minimum rates ([16]). It gave provisional views and invited parties to be heard on rates, operative dates and phasing ([18]).

(a) Health professionals. There "was never any basis" for departing from aligning the bachelor's degree classifications with the C1(a) rate in the metals framework, and diploma-level rates sat well below the equivalent rates too ([173]). The undervaluation is "clearly gender-related" because the workforce is "plainly female-dominated" ([174]). The Panel proposed a new structure with rates set by the qualification level of each profession ([176]-[177]), and illustrated the effect for a biomedical technologist, a physiotherapist and a psychologist, with existing employees' rates protected where an AQF Level 5 translation would otherwise lower them ([179]).

(b) Pathology collectors. The award listed them at Support Services Levels 4, 5 and 6 without distinction, so Level 4 was the effective minimum ([203]); about 91% are women ([204]). They were undervalued because their wage structure was aligned "with the masculinised C10 rate without any proper consideration of the work value" of the occupation ([232]-[233]). Alignment with the aged care caring skills benchmark was rejected, because part of the work, such as handling the sample after it is taken, does not involve the patient ([234]). An experienced collector belongs at Level 7 ([235]), with increases of 1.8 to 10.9 per cent ([236]).

(c) Other medical technicians. Apart from pathology collectors, the evidence did not allow a finding that medical technicians had been undervalued, though the Panel did not rule out a future review ([199], [202]).

(d) Cost. Private hospitals' revenue is constrained by insurer contracts, but a large proportion of their staff are paid above award rates ([297]-[298]). Private pathology is labour-intensive, most collectors are paid the award minimum, and providers rely on unindexed Medicare payments ([299]). Neither stopped the variations, but both called for phasing ([300]).

In the decision's words: "The undervaluation we have identified is clearly gender-related, since it detrimentally affects a workforce which, on the basis of the data previously identified, is plainly female-dominated." ([174]).

Outcome: Won by the unions, in large part. Health professionals, pathology collectors and dental assistants under the HPSS Award were found to have been the subject of gender-based undervaluation, justifying higher minimum rates. Other medical technicians were not, for want of evidence.

(a) No change was not an option. Australian Pathology argued that no variation was needed. No other employer party supported it, and the cost of the collector increases, about 0.35% to under 0.9% of total business costs, was "entirely insufficient" to justify doing nothing (Gender-based undervaluation review [2025] FWCFB 297 at [5], [106]-[107]).

(b) Pathology collectors. Experience means "industry experience as a pathology collector", and the qualification is the "Certificate III in pathology collection" ([132]). The final levels are ([133]):

(i) Level 5, entry: unqualified with less than 12 months' experience as a collector;

(ii) Level 6, qualified: Certificate III with less than 12 months' experience, or unqualified with 12 months to two years;

(iii) Level 7, experienced: Certificate III with 12 months' or more experience, or unqualified with two years' or more.

The increases range from 1.8 to 10.9 per cent: about 4 per cent (or the whole increase if less) from 1 April 2026, more for those moving from Level 4 to Level 7, and the rest from 1 January 2027 ([159]).

(c) Health professionals. The provisional structure was kept, with higher levels for senior clinicians, specialists, supervisors, educators and managers ([153]), and the increases phased in five roughly equal stages 12 months apart ([160]). In May 2026 the Panel moved the start of the new structure and first stage to 1 October 2026, because employers needed time to gather qualifications and translate staff, keeping the later stages on 30 June each year from 2027 to 2030 (Gender-based undervaluation – priority awards review [2026] FWCFB 123 at [80]). It also held that:

(i) the increases will not be absorbed into future annual wage reviews, because otherwise the rectification "would be substantially vitiated" ([76]);

(ii) Level 1 pay follows the profession's standard minimum qualification, and a further degree gained later does not lift pay unless it justifies a higher level ([84]);

(iii) experience means years of experience in the profession, not with one employer ([88]-[89]); and an overseas-qualified professional who meets the Level 1 definition is paid as Level 1 ([86]).

In the decision's words: "If this would occur, the rectification of gender-based undervaluation which we intend to achieve would be substantially vitiated." (Gender-based undervaluation review [2026] FWCFB 123 at [76]).

Outcome: Won by the unions, with phasing. The Panel fixed the final classifications and operative dates, rejected Australian Pathology's case that nothing should change, and later moved the health professionals' start to 1 October 2026. Also: Gender-based undervaluation review [2026] FWCFB 123.

The question was whether the employer could rely on cl 27.5 of the Health Professionals and Support Services Award 2020, "Direction to take annual leave during shutdown – dental and medical practices" ([2]). The union brought the dispute under the award's dispute clause; the immediate directions were withdrawn by agreement, but the underlying question went to arbitration by consent ([3]-[5]).

The Full Bench held that the award "distinguishes between a 'medical practice' and a 'pathology practice'": its definition of private practices lists them separately, cl 13.2(b) repeats the distinction, and the shutdown clause names medical practices alone ([33]-[34]). The award's history was consistent with the shutdown clause being meant only for dental and medical practices ([42]). Evidence that pathology is a discipline of medicine did not help: "The question is not whether pathology is a discipline of medicine, but rather whether it is a 'medical practice'" under the award ([54]). The employer "is not able to give a direction under clause 27.5 for employees to take paid annual leave during a temporary shutdown period" ([55]).

Permission to appeal was granted because the decision has "likely persuasive force" for other employers and employees in the health industry, though only the parties are bound ([29]). The appeal was dismissed ([56]).

Outcome: Won by the union. Permission to appeal was granted but the appeal was dismissed.