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Dr Wayne Shipley & Ors v Metro South Hospital and Health Service[2019] QIRC 71

Dr Wayne Shipley & Ors v Metro South Hospital and Health Service[2019] QIRC 71

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dr Wayne Shipley & Ors v Metro South Hospital and Health Service [2019] QIRC 071

PARTIES:

Ali, Asher

Evans, Brendan

Fry, Melissa

Gunawardena, Gihan

Holmick, Simon

Hucker, Matthew

Hurley, Michael

Kelly, Matthew 

Hurley, Jaime

Shipley, Wayne 

Tennakoon, Chandrasena

Waterson, Annette

(Applicants)

v

Metro South Hospital and Health Service

(Respondent)

CASE NO:

D/2018/6

PROCEEDING:

Application for declaration

DELIVERED ON:

21 May 2019

HEARING DATES:

4-5 December 2018

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDER:

  1. Application is granted. 
  1. I will hear the parties on the orders to be made.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR A DECLARATION – where Applicants contend that they have an entitlement to an allowance – whether entitlement exists –  interpretation of a certified agreement

LEGISLATION:

CASES:

Hospital and Health Boards Act 2011 s 35

Industrial Relations Act 2016 (Qld) s 463, s 464

Industrial Relations Act 1999 ch 6A

AMWU v Berri Pty Ltd [2017] FWCFB 3005

Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447

Jones v Dunkell [1959] 101 CLR 298

Together Queensland, Industrial Union of Employees v State of Queensland (Department of Health) [2016] QIRC 119

APPEARANCES:

Mr D Quinn, Holding Redlich Lawyers, for the Applicants.

Messrs K. Ryalls and B Jenkins for the Respondent. 

Reasons for Decision

  1. [1]
    The Applicants are Senior Medical Officers "SMO's" working in the "Emergency Department" of Beaudesert Hospital which operates within the Metro South Hospital and Health Service (MSHHS) network. The Applicants have applied to the Commission for a declaration that they are entitled to the Emergency Department Speciality Allowance ("ED25") pursuant to clause 4.14.3 of the Medical Officers (Queensland Health) Certified Agreement (No.4) 2015 ("MOCA4"). Clause 4.14.3 is in the following terms:

Emergency Department specialty allowance

Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3, and the medical officer's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend, an allowance of 25% of base salary is paid in addition to amounts in Clause 4.14.1 and 4.14.2.[1]

  1. [2]
    Clause 4.14.3 is under the heading 4.14 "Attraction and Retention Incentive Allowance–Senior Medical" which relevantly provides: 

The parties agree that retention of skills and experience of medical officers is crucial to the effective functioning of the Queensland public health system, and further that is necessary to attract people with such skills and experience to work in Queensland's public health system. With this aim, the following allowances will apply: These allowances are not ‘all purpose' and therefore are not included in base salary for the purposes of the Superannuation (State Public Sector) Act 1990 (and associated Deed, Notice and Regulation.[2]

  1. [3]
    Relevantly, I have the power to make a declaration about an industrial matter pursuant to s 463 of the Industrial Relations Act 2016.
  1. [4]
    The Applicants asked the Commission to determine five questions:
  1. Is the Emergency Department at Beaudesert Hospital an "Emergency Department" as referred to in clause 4.14.3 of MOCA4?
  1. Do the Applicants work "in" that Emergency Department?
  1. Are the Applicants working under a rostering arrangement in accordance with Clause 4.3 of MOCA4?
  1. Do the Applicants' rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend?
  1. Is the allowance of 25% of base salary in clause 4.14.3 payable on all normal hours worked by an SMO entitled to the allowance?
  1. [5]
    Prior to the hearing the parties prepared an Agreed Statement of Facts[3] which settled questions "b", "c", and "d". Therefore, the only questions which remain for determination is "a" and "e", that is whether the Emergency Department at Beaudesert Hospital is an Emergency Department for the purposes of MOCA4 and clause 4.14.3 and whether under clause 4.14.3 the allowance is payable on all normal hours worked by an SMO. 
  1. [6]
    It is contended by the Respondent that while some Beaudesert Hospital SMO's received the ED25 allowance under their individual high income guarantee contract (HIGC) this was paid to them in error.
  1. [7]
    It is the position of the Respondent that the Applicants are not entitled to the allowance because the Beaudesert Hospital Emergency Department is not a Level 4 or above emergency facility in accordance with the Clinical Services Capability Framework (CSCF).
  1. [8]
    The Respondent's position is that the "emergency facility" was classified at Level 4 from 28 June 2016 to 6 June 2017. It is accepted by the Respondent that the ED25 allowance is payable to the Applicants for that period.  From 7 June 2017 the "emergency facility" was reclassified to Level 3 in accordance with the CSCF.

Background to ED25

  1. [9]
    The ED25 has on the material before the Commission a 12 year history. It was initially negotiated outside of and following the negotiations for MOCA1 in 2005. The purpose of the ED25 allowance was said to be for a specific purpose, namely, to recruit and retain personnel for Emergency Departments at both metropolitan and regional hospitals.
  1. [10]
    The implementation of ED25 was set against a background of an acute workforce crisis in Emergency Departments of metropolitan and regional hospitals and in the context of the closure of an Emergency Department and the imminent risk of closure of another.
  1. [11]
    ED25 was applied to a SMO working extended hours rosters in Emergency Departments. Prior to the negotiation and certification of MOCA4, all SMO's were employed on individual high-income guarantee contract HIGC's under Chapter 6A of the now repealed Industrial Relations Act 1999. All HIGC's contained a remuneration schedule where supplementary payments were made to SMO's as specialty payments. The supplementary payments were applied in the HIGC's by reference to a system of tiers.
  1. [12]
    Of relevance, is the recruitment and retention incentives which included a speciality payment of 25% for working extended hours arrangements in Emergency Departments. This represented the existing Option A supplementary benefit contract which had been offered since 2006.

The Agreed Statement of Facts

  1. [13]
    So far as is relevant, I have extracted the following from the Agreed Statement of Facts:
  1. There are currently about 16 senior doctors who work in the Beaudesert Hospital Emergency Department.
  2. All Applicants also work in other departments in Beaudesert Hospital according to their relevant skills

SMO Roster

  1. All Applicants work rotating rostered shifts across a two week roster pattern.
  2. The roster requires all the Applicants to work week days, weekends and public holidays.
  3. All the Applicants are also regularly rostered to be on-call from 11.30pm to 8am for the Emergency Department after finishing the 3pm to 11.30pm late shift. Standby or on-call shifts require them to be available to return to the hospital within 10 minutes of a call to attend to emergencies.
  4. All of the Applicants work an extended span of ordinary hours arrangement in accordance with clause 4.3 of MOCA4.

Patient numbers

  1. The Emergency Department operates 24 hours a day, 365 days a year.
  2. It receives patients from the Queensland Ambulance Service and patients who present independently to the Emergency Department.

Facilities

  1. The Emergency Department operates 24 hours a day, 365 days a year.
  2. The Emergency Department is a dedicated emergency medicine facility on the Eastern Side of the hospital
  1. The Beaudesert Hospital Emergency Department has:
  1. a dedicated resuscitation area with appropriate equipment to provide advanced paediatric, adult and trauma life support prior to transfer to definitive care;
  2. an on-site 24 hour accessible dedicated blood product supply
  3. 24 hours access to laboratory and radiology services
  4. retrieval services
  5. speciality care or advice from other hospitals in its network by phone and telehealth video
  6. a dedicated ambulance bay
  7. an Emergency Department Short Stay Unit

Medical care available

  1. The Emergency Department is capable of advanced care of presenting emergencies including:
  1. intubation and ventilation
  2. cardioversion of dysrhythmias
  3. thrombolysis of acute coronary syndromes
  4. treatment of anaphylaxis
  5. snake bite, management of traumatic injuries, including the sedation and manipulation of fractures, repair of wounds
  6. treatment of life-threatening infections such as meningitis and sepsis
  7. undifferentiated chest, abdominal, back, limbs, head and dental pain
  8. severe trauma such as motorbike and car accidents, patients that have been run over by vehicles, major crush injuries involving multiple fractures

Hospital Network

  1. Beaudesert Hospital is part of the Metro South Health network which includes PA Hospital, QEII Hospital, Logan-Beaudesert Hospitals, Redlands-Wynnum Hospitals, Addiction and Mental Health Services and Oral Health Services.
  2. Beaudesert Emergency Department receives patients via QAS and private transport outside its immediate region, including when other hospitals in the network (most commonly Logan) are in bypass mode.
  3. Bypass patients include high acuity patients and those from suburbs close to Logan Hospital.

 

Public identification of the Emergency Department

  1. Beaudesert Hospital has various signs identifying to the public the Emergency Department.
  2. SMOs and other staff consistently refer to their workplace as the "Emergency Department".
  3. The Respondent maintains various webpages which provide information concerning the facilities and services at Beaudesert Hospital.[4]
  1. [14]
    It can be seen from the Agreed Statement of Facts that the Beaudesert Hospital emergency department is open 24 hours a day, year round, and its facilities are capable of providing advanced care of presenting emergencies such as the treatment of life threatening infections and severe trauma incidents arising from motorbike and car accidents.

Approach to interpreting a certified agreement

  1. [15]
    The approach to be adopted in interpreting a certified agreement is not in issue between the parties. In Together Queensland, Industrial Union of Employees v State of Queensland (Department of Health) Neate IC examined the leading authorities on the principles of interpretation and wrote:

   [20] In United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) ("United Voice"), the Commission was referred to the following decisions of the Commission, the Industrial Relations Court of Australia, and the Federal Court of Australia to inform the approach that the Commission should take to answering the questions in that case: Kucks v CSR Ltd, Short v F W Hercus Pty Ltd, Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd, and United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service.

   [21] The propositions relevant to this case that emerge from those authorities are, in summary:

  1. (a)
    deciding what an existing award means is a process quite different from deciding what might fairly be put into an award;
  1. (b)
    narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely to be of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon;
  1. (c)
    ordinary or well-understood words are in general to be accorded their ordinary or usual meaning;
  1. (d)
    such meaning may be found in a reputable dictionary;
  1. (e)
    extrinsic materials may be used in the interpretation of a certified agreement to resolve an ambiguity in the meaning of a clause or if the language is susceptible of more than one meaning;       
  2. (f)
    evidence of prior negotiations to establish objective background facts which were known to both parties and the subject matter of the agreement is admissible;
  1. (g)
    evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectations is not receivable.

   [22] Both parties referred to the following principles set out  in the decision of a Full Bench of the Fair Work Commission in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd ("Golden Cockerel"):

  1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
  1. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
  1. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
  1. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
  1. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aide the interpretation of the agreement.
  1. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
  1. (a)
    evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
  1. (b)
    notorious facts of which knowledge is to be presumed;
  1. (c)
    evidence of matters in common contemplation and constituting a common assumption.
  1. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
  1. Context might appear from:
  1. (a)
    the text of the agreement viewed as a whole;
  1. (b)
    the disputed provision's place and arrangement in the agreement;
  1. (c)
    the legislative context under which the agreement was made and in which it operates.
  1. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties.  A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
  1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.  The task is always one of interpreting the agreement produced by parties.[5]

Is the Emergency Department at Beaudesert Hospital an "Emergency Department" as referred to in clause 4.14.3 of MOCA4?

  1. [16]
    It is submitted by the Applicants that before addressing any suggestion of ambiguity the Commission is required to identify if the words of Clause 4.14.3 of MOCA4 have a plain meaning and to determine whether a genuine ambiguity exists.[6]
  1. [17]
    The Applicant's submit that the evidence before the Commission is unequivocal and that the phrase "Emergency Department" in Clause 4.14.3 has an ordinary meaning. That ordinary meaning is recognised and relied upon consistently by the parties and people dealing with the Respondent's facilities at the Beaudesert Hospital.
  1. [18]
    The Applicants refer to screenshots from the Queensland Department of Health website. The website states that the Beaudesert Hospital operates an Emergency Department. In addition, the website states that the Beaudesert Hospital operates a 24-hour Emergency Department and in the 2016 -2017 financial year, there were 14,277 patients admitted to the Emergency Department.
  1. [19]
    The Beaudesert Hospital website has a dedicated page for the Emergency Department which advises the public:

 Our emergency department is open 24 hours a day seven days a week.

There is no need to call first, just arrive at the department at any time.

The site goes on to note:

When you arrive:

when you arrive at the emergency department, please go straight to the reception counter you will be triaged by a qualified nurse.[7]

  1. [20]
    The website for Metro South Region Hospitals directs members of the public to the Beaudesert Hospital which lists Emergency Department at other hospitals and centres. The Queensland Government maintains a website titled "Queensland Government Data" under the heading "Emergency Department Summary – 1" the number of Emergency Department attendees at the  Beaudesert Hospital for  July 2018 is listed as 996.
  1. [21]
    The Beaudesert Hospital's Emergency Department is clearly signed "Emergency Department" as does the other signage throughout the hospital. The hospital signage utilises the red and white lettering and the red and white cross that comply with the minimum standards of the Australian College of Emergency Medicine (ACEM) S 12 "Statement on the Delineation of Emergency Departments".[8]
  1. [22]
    The Beaudesert Hospital is utilised on a daily basis by the Queensland Ambulance Service (QAS) as an Emergency Department. Members of the public, as determined by the QAS, who require emergency treatment are transported to the Beaudesert Hospital Emergency Department.[9]
  1. [23]
    The Department of Health's Guideline for "Emergency Department Short Stay Unit" indicates that the Beaudesert Hospital operates an Emergency Department short stay unit.[10]
  1. [24]
    The Queensland Health Guidelines Emergency Department Short Stay Unit defines an Emergency Department as follows:

Emergency Department is a dedicated hospital-based facility specifically designed in staff to provide 24-hour emergency care. An Emergency Department cannot operate in isolation and must be part of an integrated health delivery system within a hospital both operationally and structurally.[11]

  1. [25]
    For the purposes of Queensland Health Emergency Department extended hours benefit contract arrangements, an Emergency Department is defined as:

a dedicated area in a public hospital that is organised and administered to provide emergency care to those in the community who perceive the need for or are in need of, acute or urgent care including hospital admission.[12]

  1. [26]
    The "2016-2017 Operational Plan for Logan and Beaudesert Hospitals - Logan Bayside Health Network Metro South Health, April 2016" relevantly states the following:

Beaudesert Hospital is a modern, rural health facility located in Queensland's Scenic Rim region. The 28 bed hospital is the main provider of first line hospital care to the rural communities of Beaudesert, Rathdowney and Kooralbyn.

Services provided include a low risk maternity service, a low risk surgical service, and an emergency department.[13]

  1. [27]
    The ACEM in its "Statement on the Delineation of Emergency Departments" defines an Emergency Department in the following way:

Emergency Department (ED): an Emergency Department is the dedicated area in a hospital that is organised and administered to provide a high standard of emergency care to those in the community who perceive the need for, or are in need of, acute or urgent care including hospital admission.[14]

  1. [28]
    The same definition of an Emergency Department is used in the Department of Health Guidelines for Emergency Department Short Stay Unit.[15]
  1. [29]
    The Respondent contends that the CSCF defines Emergency Department for the purposes of clause 4.14.3 of MOCA4. Section 35 of the Hospital and Health Boards Act 2016 requires the Director-General and each Health and Hospital Service (HHS) to enter into a service agreement. Each service agreement defines the health services provided by a HHS and assist in determining funding for the delivery of those services.[16]
  1. [30]
    Ms Sketcher-Baker, the Executive Director of the Patient Safety and Quality Improvement Service in the Department of Health told the Commission that the Hospitals and Health Boards Act, requires that each HHS must enter into a service agreement.[17]  That service agreement is binding between the hospital, the HHS and the Health Department.  Within that service agreement there are a number of requirements that must be fulfilled.  The service agreement identifies that a HHS must have undertaken a baseline self-assessment against the CSCF V 3.2.[18]  A HHS must notify the Department of Health if there is a change to the CSCF baseline self-assessment, and they must undertake a self-assessment if a CSCF module is updated or a new module is introduced.[19] 
  1. [31]
    The CSCF V3.2 upon which the respondents rely to assist in determining the eligibility of the Applicants to receive the ED25 contains the following definition of Emergency Department:

The term emergency department is generally used to describe facilities ranging from high-level departments with emergency medicine specialists and trainees employed 24 hours a day, through to rooms in small rural and remote hospitals staffed by rostered local general practitioners and generalist nursing staff. For the purposes of this module, Level 1 to Level 3 services will be referred to as emergency care centres, while higher level services will be known as emergency departments.

The use of the term emergency department to describe such a broad range of settings can lead to misunderstandings of service capabilities and delivery. A hospital-based emergency service must have amenities and functions greater than the minimum standard for Australasian College for Emergency Medicine (ACEM) Level 1 Emergency Department role delineation to be considered an emergency department.[20]

  1. [32]
    It is an admitted fact that SMO's and other staff at Beaudesert Hospital consistently refer to their workplace as an Emergency Department when talking to patients and community members, as do patients and community members.[21]
  1. [33]
    In the evidence of Dr Simon Holmick, an SMO at Beaudesert Hospital the following exchange took place:

 His Honour:  But that's not what it's called, is it?  It's called an emergency department at Beaudesert still, isn't it?  

 Dr Holmick:  Yes.  We call it an emergency department.  The signs out the front are Emergency Department.  We're in the red and white of, you know, the Swiss emergency department style.  We, the staff, refer to it as that.  The website refers it to that.  The Logan Hospital refers to us an emergency department.  The public refers to us as an emergency department and the Queensland Ambulance considers us an emergency department.  I can show you pictures of three ambulance lined up in front of our hospital that certainly wouldn't want to be brought to Beaudesert if it was called anything other than an emergency department if I was sick.[22] 

  1. [34]
    Consistent with Dr Holmick's evidence, the Applicants tendered a photograph of three ambulances lined up in from of the Beaudesert Hospital.[23]
  1. [35]
    I accept that the Beaudesert Hospital has an Emergency Department. It has a common meaning which has been consistently relied upon by those working within the Beaudesert Hospital and those who seek the services of an Emergency Department whether they be members of the public, the QAS, or other hospitals within the MSHHS network. The Beaudesert Hospital signage is reflective of an Emergency Department. The Hospital is consistently identified as having an Emergency Department on its own website, on the website of the MSHHS, and on the Queensland Government public website. The publications of the MSHHS, in particular, the 2016-2017 Operational Plan for Logan and Beaudesert Hospitals - Logan Bayside Health Network Metro South Health describes the Beaudesert Hospital as having an Emergency Department.
  1. [36]
    Notwithstanding the above conclusion, I will, for completeness, deal with the Respondent's argument that the language of Clause 4.14.3 of MOCA4 is ambiguous or susceptible to more than one meaning.

Is the term "Emergency Department" ambiguous or susceptible to more than one meaning?

  1. [37]
    The Respondent submits that the term "Emergency Department" is not defined in MOCA4. They submit that the CSCF has been used by the Respondent over a number of years to define "emergency service"', "emergency department" and "emergency care centres". Having regard to the fact that the term "Emergency Department" is susceptible to more than one meaning, it is on the Respondent's submission, appropriate to admit evidence of the surrounding circumstances as an aide in the interpretation of the agreement.
  1. [38]
    The Applicants argue that if the Commission is minded to investigate the issue of ambiguity, then it is contended that there is no admissible evidence before the Commission of the surrounding circumstances which can assist in identifying that the CSCF in relation to the meaning of Emergency Department in MOCA4.
  1. [39]
    To assist in the interpretation of Clause 4.14.3 of the agreement, the Respondent called Dr Denis Lennox. Dr Lennox worked for Queensland Health for more than four decades and was involved in industrial negotiations from 2005 in relation to the bargaining process for the MOCA 1 agreement. Dr Lennox was able to elucidate the background to the ED25 allowance, he said:

  Dr Lennox:  I was a member of the medical interest-based bargaining group, which was the union and management committee group negotiating MOCA 1 in 2005.  2005 was an extraordinary year in Queensland's medical history.  Not only were we facing extraordinary shortages of workforce throughout the system, of course, the events of Bundaberg and Dr Jayant Patel and the Bundaberg Commission Hospital – Bundaberg Hospital Commission of inquiry were occurring.  The government was under extreme pressure as a result of these events.  MOCA f – MOCA 1 had been negotiated through that period, quite an extraordinary industrial agreement involving the Premier's direct arrival at the negotiation table.  It had been agreed to by the end of 2005.  During that period of time there had been no proposal, no discussion at all of what subsequently became the ED25 per cent allowance.  In fact, that was announced to the interest-based bargaining group by the government af – after a – a weekend of crisis.  So during 2005 Caboolture Hospital Emergency Department had closed for lack of staff.  That created a – on top of the other events in 2005, a significant crisis of confidence in our health service.  Private providers were called in at that stage to re-establish the service.  The next most vulnerable emergency service was Ipswich Hospital.  I believe on a particular weekend the following week's rosters were looking as if they could not be filled and on that weekend, I understand, the Executive Officer of the Australian Medical Association negotiated with the Acting Premier Anna Bligh at that time, and the following week when the interest-based bargaining group met, we were advised the government had agreed to the 25 per cent allowance for emergency positions.

 His Honour:  So it wasn't part of your working group process, that one?

 Dr Lennox:  No. No.  Your Honour, the working group, in fact, was quite aghast when advised, because, in fact, it risked upsetting the fairly fine balance which had been negotiated through the MOCA 1 negotiations at that point.[24]

  1. [40]
    Dr Lennox said that the ED25 allowance was not directly related to hours of service or duties but that it was a recruitment and retention strategy to address the workforce crisis.[25] Dr Lennox gave the following evidence in relation to the definition of an "Emergency Department".

Mr Ryalls:  So in relation defining an emergency department, what is your understanding of how Queensland Health has historically defined emergency departments within the Queensland Health system?

Dr Lennox:   At the time of implementation all parties clearly understood that this applied to emergency departments in – you know, in layman's terms, it was for the large emergency departments, metropolitan, outer metropolitan and regional Queensland.  Most frequently at that time, reference to the College of Emergency Physicians, definition of "emergency departments" was used by parties, but that – that was a fairly open, accepted process amongst the parties.  Subsequently, the department relied upon the differentiation of emergency services through the clinical services framework and it's become, traditionally and historically, applied to – to category 4 emergency departments.

His Honour:   But not exclusively?

Dr Lennox:  Exclusively. Yes.  I – in that respect, I probably, more than anyone else within the system, had been a point of reference for broader application, your Honour, of – in, in fact, there was an instance in 2008 in which a senior medical officer – in fact, I think the person was a qualified rural generalist at that time – was granted the allowance.  The matter was referred to me and I advised – and supported by colleagues within the system, and I believe it was accepted in the medical interest-based bargaining group as well that that was an inappropriate application of the allowance, and in the period of time between the implementation of this allowance in 2006 until I retired there'd been a number – not a huge number, but a number of instances where reference had been made to me about its application to smaller emergency services.  The standard response – historical response has always been no, it didn't apply.[26]

  1. [41]
    Dr Lennox said that it was his understanding that the Applicants were "rural generalists" and that there is a clear remuneration package provided under MOCA4 which did not entitle the doctors to the allowance.
  1. [42]
    In evidence, Dr Lennox initially said that at the time of the first iteration of the MOCA, the definition of Emergency Department was most frequently by reference to the ACEM.[27] Finally, he asserted that the definition was determined by reference to the CSCF.
  1. [43]
    The ACEM statement on the Delineation of Emergency Departments identifies a list of 10 minimum standards to be met to be classified as a Level I Emergency Department:
  1. Must operate structurally and functionally within a hospital
  1. 24 hour dedicated nursing staff with a dedicated Nurse Unit Manager or equivalent
  1. Daily rostered medical staff and 24 hours a day, seven days a week access to medical staff after hours
  1. Dedicated facilities to manage emergency presentations
  1. Co-located dedicated resuscitation area with appropriate equipment to provide advanced paediatric, adult and trauma life support prior to transfer to definitive care
  1. 24 hour access to blood products
  1. 24 hour access to laboratory and radiology services
  1. 24 hour access to specialty care or advice
  1. 24 hour access to retrieval services, as appropriate
  1. If there are no emergency specialists (Fellows of ACEM (FACEMs)) on staff then the Emergency Department must be part of an Emergency Medicine Network.[28]
  1. [44]
    The Applicant submits that Dr Shipley's evidence addresses, in detail, the minimum 10 standards and demonstrates that the Beaudesert Hospital Emergency Department meets all of those standards.[29]
  1. [45]
    In examination-in-chief, Dr Shipley was asked to assess the Emergency Department of Beaudesert Hospital against the list of 10 minimum standards minimum standards identified by ACEM. His evidence was:

 Dr Shipley:   So these are the – the Australian College for Emergency Medicine identify there was the following basic elements that were to be – that the hospital needed to fulfil in order to call it an emergency department, and that links in, of course, with the signage.  They said that if you hadn't met these minimum standards, their policy was that it was unsafe to call us – call yourself or use the word "emergency" in front of a hospital or      

 Mr Quinn:  We might move on to that issue separately?  

 Dr Shipley:  Yep.

 Mr Quinn:  In relation to that dot point listing 3, it identifies?  

 Dr Shipley:  Yes.

 Mr Quinn:   under "emergency department", ED must have the following basic elements.  Can you just walk through to identify?  

 Dr Shipley:  Yes.

 Mr Quinn:  the facilities at Beaudesert that – and identify whether they meet those standards?  

 Dr Shipley:  Yes.  So starting from the top:

   ...must operate structurally and functionally within a hospital. 

We obviously meet that criteria being part of Beaudesert Hospital.  The next criteria:

...24-hour dedicated nursing staff with a dedicated nursing unit manager or equivalent. 

We meet that definition as well.  We have 24-hour dedicated staff and always had a dedicated nurse unit manager in charge of ED.  The next point:

...daily rostered medical staff and 24 hours a day, seven days a week access to medical staff after hours. 

We meet that definition.  We are rostered on between the hours of 7 am to 11.30 pm, which is quite a good coverage – as example, PA is only 8 till 10 in terms of senior medical officers – and then in between the hours of 11.30 and 7 am we are within 10 minutes access to the hospital. 

   ...with dedicated facilities to manage emergency presentations. 

We have that and, of course, I showed that to – to the Commission amongst the photos. 

...a co-located dedicated resuscitation area with appropriate equipment to provide advanced paediatric adult and trauma life support prior to transfer to definitive care. 

   We meet that definition. 

   ...24-hour access to blood products. 

   I showed in the picture that we have blood at all times 24 hours. 

   ...24-hour access to laboratory radiology service. 

We meet that criteria.  We have the X-ray that I showed and we've also got access to the laboratory.  We use Logan, which is half an hour away, and 24 hours a day we just send a cab if we need it outside of hours and it gets picked up several times a day as – as inclusion to that point of care testing. 

   ...24-hour access to speciality care and advice. 

And I showed that. Obviously phone Logan, PA, we get our access within our network. 

   ...24-hour access to retrieval service as appropriate. 

I'm very thankful that we do have this.  It's an amazing service and we do have 24-hour access at Beaudesert Hospital.  And the final point:

If there are no emergency specialists on staff, then the emergency department must be part of the emergency medicine network. 

 Dr Shipley:  And we are part of the emergency medicine network, which includes the PA, Logan, QEII and Lady Cilento, and then it just talks about notes, yeah.

 Mr Quinn:   I might stop you there then?  

 Dr Shipley:  Yep.  So that was the minimum standards that you had to – you had to get to be able to call yourself an emergency department.

  1. [46]
    Dr Shipley was then asked as to whether the Beaudesert Hospital complied with the Australian College of Rural and Remote Medicine "Recommended Minimum Standards for small rural hospital emergency departments".[30] The standards are relevant to rural hospital facilities such as the Beaudesert Hospital.  Dr Shipley confirmed in his evidence that all of the requirements of the College standards were met by the Beaudesert Hospital. The following exchange occurred in examination-in-chief:

 Mr Quinn:  If I could hand up another document.  Can you identify for the Commission what that document is, Dr Shipley?  

 Dr Shipley:  Yes. So this is from the College of – Australian College of Rural and Remote Medicine, of which I'm a fellow.  These college – this college looks after obviously rural emergency departments such as Beaudesert Hospital.

 Mr Quinn:   And at the bottom of page 2?  

 Dr Shipley:   Yes. There's a heading there:

General Principles.  An emergency department must have the following basic elements. 

 Mr Quinn:   Are you familiar with this document?  

 Dr Shipley:  Yes.

 Mr Quinn:   You've reviewed it recently?  

 Dr Shipley:  Yes.

 Mr Quinn:  Rather than have you spend the afternoon going through every dot point and every dash point, have you identified any elements of that standard that Beaudesert Hospital doesn't meet? 

 Dr Shipley:  No.  We meet all the minimum standards that are – that are said there are basic elements.

 His Honour:  So that's the general principles.  The physical environment and personnel, it meets all those?  

 Dr Shipley:   Yes.  So the first section is the minimum requirements      

   Yes? then the basic elements, and then it goes into more detail      

Yes? of recommendations, and they do make the point of that they're recommendations but the basic elements is a must.[31] 

  1. [47]
    As the Applicant notes, the evidence of Dr Shipley was unchallenged.
  1. [48]
    It would appear from the evidence of Mrs Steinhardt, the Director of Senior Medical Workforce and Employment and Workforce Planning at MSHHS, that the payment of the ED25 allowance ceased because:

The advice provided to us from Dr Lennox and the Department of Health was that Beaudesert was not entitled to the 25%… Because of the CSCF. That they – they were not a level 4.[32]

  1. [49]
    Even if it was accepted that the Clinical Services Capability Framework applied, the evidence is that the ED25 allowance may be payable for a hospital characterised as a level 3 Emergency Department.
  1. [50]
    The email of Mark Uzelin, the Acting Principal Advisor of the Employee Relations Unit of the Department of Health states:

There is no industrial definition of an emergency department. The Clinical Services Framework (attached) is used to determine eligibility. Level 3 may qualify and level 2 and below do not qualify.[33]

  1. [51]
    In cross examination Dr Lennox was asked the following questions in relation to his views on Mr Uzelin's statement:

 His Honour:  Doctor, if we just take a step back.  The sentence is: 

The clinical services capability framework attached is used to determine eligibility –

and you can assume that it's eligibility for ED payments, and then it goes on to say level 4, which would be under the clinical services capability framework and above?

 Dr Lennox:  Correct.

 His Honour:   qualify for an ED25?  

 Dr Lennox:  Yes.

 His Honour:  and level 3 may qualify and level 2 and below do not qualify.  That's how he's assessed it?  

 Dr Lennox:   Okay.

 His Honour:  So what's your opinion in regard to that statement?  

 Dr Lennox:  I'm – I'm of some – I'm not certain about level 3.

 His Honour:  But would you accept that level 4 and above qualifies?  

 Dr Lennox:  Yes, indeed.

 His Honour:  But level 3 may qualify.  You don't agree with that?  

 Dr Lennox:  I'm – I'm not certain.  I'm      

 His Honour:  No, and why don't you?  

 Dr Lennox:  I wouldn't have that certainty?  Because I'm not sure that level 3 warrants the services of a workforce with emergency physicians.

 His Honour:  And level 2 and below do not qualify.  You'd agree with that statement?  

 Dr Lennox:  I agree, yes.[34]

  1. [52]
    The evidence before the Commission was that in the last quarter of 2015, the Applicants and the other SMO's who were to be covered by MOCA4 were advised by the Respondent that their Tier 4C(ED) recruitment and retention allowance under individual contracts would be "Translated to the new MOCA4 Attraction & Retention Allowances",[35] and that "Temporary SMO will be entitled to participate in private practice arrangements and will receive full access to general, emergency, regional and rural attraction allowances in accordance with relevant MOCA 4 clauses".[36]
  1. [53]
    The "Queensland Health Offer for a new Medical Officers' Certified Agreement (MOCA4)"[37] reflects the commitment given by Queensland Health to maintain those individual Tier 4C employment arrangements negotiated during the introduction of high income guarantee contracts, in accordance with the terms of those agreements.
  1. [54]
    The Applicants submit that at the time of making of the MOCA4, the Beaudesert Hospital met the existing common meaning of Emergency Department. SMO's working in the emergency Department of Beaudesert Hospital were engaged under an arrangement which met the test for the payment of the ED25 allowance, and that the Respondent committed to the SMO's that the existing ED25 arrangements would be maintained under the proposed MOCA4.
  1. [55]
    Clause 4.18 of MOCA4 contains the following commitment:

maintain individual Tier 4C remuneration arrangements negotiated during the operation of high-income guarantee contracts, in accordance with the terms of those agreements.

  1. [56]
    The Respondent has not adduced any evidence concerning the negotiations leading up to MOCA4. Dr Lennox's evidence is limited to the negotiations in 2006 and does not assist the Commission in determining what was agreed or otherwise between the parties in relation to MOCA4 in 2015. At the highest, his evidence confirms that there were no negotiations in relation to the definition of Emergency Department.
  1. [57]
    I accept that the Respondent has failed to adduce any evidence from any person involved in the negotiations for MOCA4; has not tended any document and has provided no explanation why such evidence has not been presented to the Commission. The Applicants submit that I should apply the rule in Jones v Dunkell.[38] The principle in Jones v Dunkell at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue. It is reasonable therefore to assume in the present case that failure to adduce before the Commission some circumstance, document, or witness in relation to the negotiations concerning MOCA4 serves to indicate that the Respondent fears to do so, and the evidence, if adduced, would have expose facts unfavourable to the Respondent.[39]
  1. [58]
    The Respondents contention that the CSCF is the means for defining "Emergency Department" cannot be accepted. An assessment of the surrounding circumstances does not identify relevant evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; notorious facts of which knowledge is to be presumed; or evidence of matters in common contemplation and constituting a common assumption.[40] The Respondent's unilateral adoption of the CSCF as a means of determining the definition for the purposes of ED25 is irrelevant. Regard is not to be had to the subjective intentions or expectations of the parties but rather it is the common intention which must be identified objectively.

How is ED25 to be calculated?

  1. [59]
    Having determined that the Beaudesert Hospital's Emergency Department is an Emergency Department for the purposes of MOCA4 it is now necessary to determine the question as to how ED25 is to be calculated.
  1. [60]
    The Statement of Agreed Facts identifies those Applicants who have received an ED25 allowance prior to 2016 while working at the Beaudesert Hospital. In evidence before the Commission, Ms Steinhardt confirmed that all SMO's including those identified Applicants were paid ED25 based upon all hours worked and not simply those hours performing task inside the Emergency Department.[41]
  1. [61]
    It is contended by the Respondent that if the Applicants definition of "Emergency Department" was accepted, it would mean that the allowance would be paid on all hours work by an SMO on a shift. This would include circumstances where an SMO was employed in a variety of different environments. The thrust of the Respondent's argument is that an SMO could only ever be considered to "work in an Emergency Department" at the times when they are actually performing work in an "Emergency Department" as defined by the CSCF.
  1. [62]
    The Respondent submitted that the allowance is payable on all hours worked on a shift by an SMO entitled to the allowance. However, the submission is based on the premise that "Emergency Department" for the purposes of clause 4.14.3 of MOCA4 is defined by reference to the CSCF. The Respondent contends that an SMO is employed in an Emergency Department on a full-time basis. They are not, on the Respondent's argument, employed in generalist roles to perform roles outside of the relevant Emergency Department.
  1. [63]
    The Statement of Agreed Facts identified that the work in the Beaudesert Hospital Emergency Department the Applicants all work an extended span of ordinary hours in accordance with clause 4.3 of MOCA4. The statement further confirms that the Applicants work a range of rotating shifts including starts from 7 am; evening shifts; and rostered finishing times of 11:30 pm across all days of the week weekends and public holidays. The evidence confirms that the Applicants are also regularly rostered on call from 11:30 pm to 8 am for the Emergency Department requires them to attend emergencies being back in the hospital within 10 minutes. In addition, the SMO roster identifies an obligation when rostered for clinical support time or theatre the rostered document identifies it as OT/ED or CST/ED.[42]
  1. [64]
    In addition, there is an obligation to return to the Emergency Department by acting as the second on-call SMO when formally rostered to be on-call for anaesthetics as well as working overtime in the Emergency Department in addition to their rostered hours.
  1. [65]
    Dr Hurley told the Commission:

Dr Hurley:  … so the operating theatre roster, for instance, normally that will finish at about 20 to 11 and 12 o'clock, and then there's the expectation is that you – there may be a clinic but if there isn't a clinic which is a lot of the time, we'll – we go and work in the emergency department for the afternoon.  Equally, operating theatres – so, for instance, even this fortnight, the surgeon is on holidays so therefore those shifts just default to working in the emergency department.  If you're on the ward often you can get ward round done at a certain period of time and then you come and work in the emergency department.  If you go to Palen Creek, that clinic finishes at a various – varying time but again, you come back and work in the emergency department. So essentially all shifts default to the emergency department as where you go either when your jobs finished or if there's a cancellation, yeah, you go there and work.

 Mr Quinn:   And how have you been directed for that default to occur?  

 Dr Hurley:  It's actually in the orientation manual for protocols of the hospital where everything revolves around the emergency department but it's a – it's – we have our own direction.  We just do that ourselves.  There's no formal phone call or discussion.

Mr Quinn:  Well, it's a standing direction?  

Dr Hurley:  Standing direction, correct.[43]

  1. [66]
    The Applicants argue that the clause 4.14.3 of MOCA4 was never intended to create a limitation relating to time spent performing tasks inside an Emergency Department. They submitted that the time based criteria had been an issue in the early days of ED25 but that no agreement was ever reached.
  1. [67]
    In cross-examination, Dr Lennox was referred to the Briefing Note to the Director General of 5 June 2006 concerning the Emergency Department Extended Hours Option A Payment and, in particular, the following passage:

Further discussions at a senior level have occurred.  Considerable concerns have been raised by the unions regarding the department's intention to seek a minimum number of extended hours shift per fortnight due to many emergency department SMOs working irregular shift patterns.[44] 

  1. [68]
    Dr Lennox was asked:

  Mr Quinn:  Now, I might get you to go back and read it again, but as I understand the recommendation, what it does is then remove – I can't point – I can't point it to you because it doesn't – it's not there any more.  It removes essentially the previous position, which was that there had to be a minimum of two afternoon shifts or one afternoon shift for the individual to be entitled to the allowance; is that correct?  

 Dr Lennox:   Yes.[45] 

  1. [69]
    The development of a time-based solution to the calculation and payment of ED25 remained, according to the Applicants, an outstanding issue. I agree.
  1. [70]
    In the minutes of a meeting convened between representatives of the Respondent and union representatives held on 15 November 2010 for the purposes of discussing ED25 the two issues identified for discussion. The first was the hours that needed to be worked to attract ED25; and the second was a definition of Emergency Department. The minutes of that meeting record that whilst a number of options were discussed, no agreement was reached in relation the number of hours which needed to be worked by an SMO to attract an ED25 payment nor a definition of emergency department.[46]
  1. [71]
    To support their interpretation, the Applicants argue that under clause 4.14.5 the payment of ED25 under clause 4.14.3 is "payable for paid leave". It is submitted that it would be impossible for the allowance to be payable for leave periods if it was only paid for hours when an SMO was providing services within an Emergency Department.
  1. [72]
    The relevant background facts do not support an interpretation of clause 4.14.3 of MOCA4 which suggests that the clause was intended to limit the calculation of ED25 only to circumstances where an SMO actually performed work in an "Emergency Department". Accordingly, the ED25 allowance is to be calculated and paid upon all paid hours worked by an SMO.

Conclusions

  1. [73]
    It cannot be said that there is evidence before the Commission which assists in establishing the objective background facts which were known to the parties at the time of the development of MOCA4. There was no evidence concerning the circumstances surrounding the negotiations for MOCA4. There is no evidence before the Commission of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; no evidence of notorious facts of which knowledge is to be presumed; and no evidence of matters in common contemplation and constituting a common assumption.[47]
  1. [74]
    Dr Lennox's evidence had little current value. It gave some personal historic perspective but the evidence was subjective and was reflective of his intentions and expectations. His  evidence was clear that there had been no proposal or no discussion on what subsequently became the ED25 allowance. Dr Lennox told the Commission that the negotiations for ED25 were between the Executive Officer of the Australian Medical Association and the then Acting Premier Anna Bligh and did not involve "the interest-based bargaining group" and it was not "an industrially-agreed outcome".[48]
  1. [75]
    The early historical context surrounding the development of ED25 has limited relevance now. What is clear is that there is no industrial definition of Emergency Department. It was never in the contemplation of the parties that the CSCF would be used as a mechanism for the determination of whether a hospital, in this case the Beaudesert Hospital, would have an emergency facility classified as an Emergency Department. I accept that there was no agreement between the parties to MOCA4 that CSCF would serve as the benchmark definition of an Emergency Department for the purposes of the agreement.
  1. [76]
    I am not of the view that the CSCF has any application in the present circumstances. Even if it did, the evidence of Mark Uzelin and to a lesser extent Dr Lennox suggests that a level 3 Emergency Centre "may" be eligible for the ED25.
  1. [77]
    In dealing with this matter it is necessary to make the following observations. Notwithstanding the Department's awareness of the deficiency in the definition of Emergency Department, the issue has "limped on" through negotiations for three consecutive enterprise agreements. The Department's own documents clearly identify the deficiency. Yet nothing was done. It is likely that this application would not have been necessary had the Department dealt with the issues in a timely and appropriate way. It can only be hoped that the deficiencies that have been long identified are appropriately addressed in the lead up to MOCA5.
  1. [78]
    For the reasons advanced above the applicants ought to succeed on their application.
  1. [79]
    I will hear the parties as to the orders to be made.

Order

  1. The Application is granted.
  1. I will hear the parties on the orders to be made.

Footnotes

[1] Medical Officers (Queensland Health) Certified Agreement (No.4) 2015, p 19, cl 4.14.3.

[2] Medical Officers (Queensland Health) Certified Agreement (No.4) 2015, p 18, cl 4.14.

[3] Exhibit 34.

[4] Exhibit 34.

[5] [2016] QIRC 119, [20]-[22] (citations omitted).

[6] AMWU v Berri Pty Ltd [2017] FWCFB 3005, [114] 9.

[7] Exhibit 7.

[8] Exhibit 7.

[9] Exhibit 6.

[10] Exhibit 10.

[11] Exhibit 10.

[12] Exhibit 21, RTI page 134

[13] Exhibit 8, p 6.

[14] Exhibit 4, p 6.

[15] Exhibit 10.

[16] Respondent’s Submissions, [15].

[17] T2-56 Ln 35-36.

[18] T2-54 Ln 42-43.

[19] T2-54 Ln 44-46.

[20] Exhibit 26.

[21] Agreed Statement of Facts, [21].

[22] T1-39 Ln 15-24.

[23] Exhibit 3.

[24] T2-3, Ln 40-47 – T2-4, Ln 1-15.

[25] T2-4 Ln 39-42.

[26] T2-5 Ln 44 – T3 Ln 24 (emphasis added).

[27] T2-16, Ln 1-5.

[28] Exhibit 4, 2.

[29] T1-57 Ln 26-44; T1-58 Ln 1-46; T1-59 Ln 1-8.

[30] Exhibit 5.

[31] T1-59 Ln 21 – T1-60 Ln 1-5.

[32] T2-73 Ln 37-38.

[33] Exhibit 23.

[34] T2-45 Ln 20-45.

[35] Exhibit 30.

[36] Exhibit 31.

[37] Exhibit 32.

[38] [1959] 101 CLR 298.

[39] Ibid, 320-321.

[40] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41].

[41] T2-78 Ln 26-27.

[42] T1-31 Ln 1-5.

[43] T1-17 Ln 20-41.

[44] Exhibit 17.

[45] T2-33 Ln 6-11.

[46] Exhibit 19.

[47] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41].

[48] T. 2-4 Ll.3-19.

Close

Editorial Notes

  • Published Case Name:

    Dr Wayne Shipley & Ors v Metro South Hospital and Health Service

  • Shortened Case Name:

    Dr Wayne Shipley & Ors v Metro South Hospital and Health Service

  • MNC:

    [2019] QIRC 71

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    21 May 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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