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Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health)[2023] QIRC 325

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health)[2023] QIRC 325

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2023] QIRC 325

PARTIES:

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees

(Notifier)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

D/2022/118

PROCEEDING:

Arbitration of industrial dispute

DELIVERED ON:

15 November 2023

DATES OF WRITTEN SUBMISSIONS:

Notifier's written submissions filed on 30 June 2023, Respondent's written submissions filed on 28 July 2023 and Notifier's written submissions in reply filed on 25 August 2023

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

In answer to the question for arbitration:

Is Queensland Health required, in accordance with clause 2 a) of Attachment One to HR Policy D8 (Resident medical officers on secondment or rotation), to provide accommodation or pay for quarters of a reasonable standard free of charge for six (6) months to a Resident Medical Officer who is appointed to an accredited Vocational Training Scheme/Pathway/Network and a rotation appointment exceeds six (6) months?

The answer is:

No

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – dispute notified by the Notifier that the Respondent is liable to provide accommodation or pay for quarters of a reasonable standard, free of charge, for 6 months, to a Resident Medical Officer appointed to an accredited Vocational Training Scheme/Pathway/Network and where the  rotation appointment exceeds six months – dispute the subject of conciliation – dispute referred for arbitration – question for arbitration agreed between the parties and concerned the construction of relevant policies of the Respondent – policies preserved and incorporated as terms of the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 and of the Medical Officers’ (Queensland Health) Certified Agreement (No. 6) 2022 – on the construction of the applicable policy, Resident Medical Officer vocational trainees, appointed to an accredited Vocational Training Scheme/Pathway/Network and who are on rotation for more than six months, are not entitled to be provided, by a relevant Hospital or Health Service, accommodation of a reasonable standard, free of charge, for six months – answer to the question for arbitration is 'No'.

LEGISLATION:

Industrial Relations Act 2016, s 3, s 4 and ch 4, pt 5

Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 1.10 and sch 3

Medical Officers’ (Queensland Health) Certified Agreement (No. 6) 2022, cl 1.10 and sch 3

OTHER DOCUMENTS:

Resident Medical Officers on Secondment and Rotation IRM 2.7–11

Human Resources Policy – Resident medical officers on secondment or rotation D8 (QH-POL-448)

Human Resources Policy – Transfer and Appointment Expenses D4 (QH-POL-245)

CASES:

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2023] QIRC 180

Reasons for Decision

Introduction

  1. [1]
    By notice of industrial dispute filed on 2 December 2022, the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('the Union'), contended that a Resident Medical Officer ('RMO') vocational trainee, who was appointed to an accredited Vocational Training Scheme/Pathway/Network ('VTS') and who was on rotation for more than six months, was entitled to be provided, by a relevant Hospital or Health Service, accommodation of a reasonable standard, free of charge, for six months.
  1. [2]
    The Union contended that such an entitlement was conferred by virtue of sub-cl 2a) of a policy issued by the State of Queensland, through Queensland Health ('the Department'), namely Human Resources Policy – Resident medical officers on secondment or rotation D8 (QH-POL-448) which was published in April 2021 ('HR Policy D8').
  1. [3]
    The dispute was unable to be resolved by way of conciliation. The dispute was referred to me to be settled by arbitration.
  1. [4]
    The parties agreed on the question for arbitration, namely:

Is Queensland Health required, in accordance with clause 2 a) of Attachment One to HR Policy D8 (Resident medical officers on secondment or rotation), to provide accommodation or pay for quarters of a reasonable standard free of charge for six (6) months to a Resident Medical Officer who is appointed to an accredited Vocational Training Scheme/Pathway/Network and a rotation appointment exceeds six (6) months?

  1. [5]
    The parties proposed that the matter be determined on the papers on the basis of their written submissions.  I agreed to that course.
  1. [6]
    In compliance with a Directions Order I made on 31 March 2023, the Union and the Department have filed and served written submissions.
  1. [7]
    For the reasons that follow, the answer to the question for arbitration is: 'No'.

The relevant policies

IRM 2.7–11

  1. [8]
    Both parties have referred to a policy issued by the Department, which had application before the operation of HR Policy D8, entitled Resident Medical Officers on Secondment and Rotation –  IRM 2.7–11, which was effective from August 2007 ('IRM 2.7–11').
  1. [9]
    IRM 2.7–11 relevantly provided:

For normal appointment expenses of Resident Medical Officers please refer to IRM 2.7–32.

Resident Medical Officer's [sic] can also be appointed to a Medical Rotational Scheme where, during the contract period, they may be appointed to a number of different Districts for varying periods of time. In addition, the Resident Medical Officer may during their appointment undertake secondments to another District to provide services.

The following conditions will apply to Resident Medical Officers on secondment or rotation to another hospital: –

…

  1. Board and Lodgings and Removal of Furniture and Effects
  1. In addition to the board and lodging provisions contained in Clause 10.2 of the District Health Services – Senior Medical Officers' and Resident Medical Officers' Award – State 2003, the following shall apply for Resident Medical Officers on secondment or rotation: –
    1. (i)
      A Health Service District should provide furnished accommodation of a reasonable standard and size free of charge for Medical Officers on secondment or rotation for a period of not more than two (2) months.
    1. (ii)
      A reasonable standard and size of accommodation is to be determined having regard to the number of persons in the employee's immediate family/household.
    1. (iii)
      Provided, that for periods in excess of two months, where an employee has supplied satisfactory evidence, acceptable to the Health Service District that the employee is maintaining a principle [sic] residence at the location of the employing hospital and the employee is not deriving income from such residence, the Health Service District must provide or pay for quarters as applicable in (i), of a reasonable standard free of charge up to a maximum of six (6) months.

HR Policy D8

  1. [10]
    HR Policy D8 relevantly provides:

Purpose:

To outline the entitlements for resident medical officers on secondment or rotation.

Application:

This policy applies to resident medical officers working for Queensland Health.

This policy does not apply to employees of Queensland Ambulance Service. Instead, Queensland Ambulance Service employees are to refer to their local policy/procedure.

Delegation:

The 'delegate' is as listed in the relevant Department of Health Human Resource (HR) Delegations Manual, or Hospital and Health Services Human Resource (HR) Delegations Manual, as amended from time to time.

Legislative or other authority:

  • Medical Officers (Queensland Health) Award – State 2015
  • Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018
  • Minister for Industrial Relations Directive 20/16: Motor vehicle allowances
  • Minister for Industrial Relations Directive 02/18: Hours, Overtime and Excess Travel

Related policy or documents:

  • Engagement of Resident Medical Officers HR Policy B65 (QH-POL-341)
  • Transfer and appointment expenses HR Policy D4 (QH-POL-245)

…

2  Secondments and rotations

The medical year is divided into terms of set durations for different RMO groups, e.g. interns do five terms across the year. During the year, RMOs may be required to undertake a secondment or rotation for one or more terms to gain a broader range of clinical experience in a speciality/sub–speciality or practice in another setting/location, e.g. a rural hospital.

RMOs can also be appointed to an accredited Vocational Training Scheme/Pathway/Network. During the contract period, the relevant Queensland Health or specialist medical college training program may require the vocational trainee to be appointed to a number of different Queensland Health hospitals or to private/interstate health services/facilities, for varying periods of time to fulfil training requirements. In addition, the RMO may be required, during their appointment, to undertake internal secondments to another HHS to provide services.[1]

Travel and accommodation assistance available to RMOs on secondment or rotation is outlined in Attachment One.

For normal appointment expenses of Resident Medical Officers please refer to Transfer and appointment expenses HR Policy D4.

  1. [11]
    Attachment One to HR Policy D8 provides:

Attachment One –  Resident medical officers on secondment or rotation: Travel and accommodation assistance

The following information is provided as the minimum mandatory standard practice, procedure or process to enable satisfactory compliance with this Queensland Health HR policy.

Local guidelines/procedures may be developed to facilitate implementation of this policy. Any local guidelines/procedures must be consistent with this policy and standard practice and ensure employee entitlements continue to be met.

…

2Board and Lodgings and Removal of Furniture and Effects

a)In addition to the board and lodging provisions contained in Clause 32 of the Award, the following applies to RMOs on secondment or rotation:

  1. A Hospital and Health Service (HHS) should provide furnished accommodation of a reasonable standard and size free of charge for RMOs on secondment or rotation for a period of not more than two (2) months.
  1. A reasonable standard and size of accommodation is to be determined having regard to the number of persons in the employee's immediate family/household.
  2. Provided, that for periods in excess of two months, where an employee has supplied satisfactory evidence, acceptable to the HHS, that the employee is maintaining a principle [sic] residence at the location of the employing hospital and the employee is not deriving income from such residence, the HHS must provide or pay for quarters as applicable in (i), of a reasonable standard free of charge up to a maximum period of six (6) months.
  3. After the two (2) month or six (6) month period, charges are levied as follows:

– Single employees – as per Clause 32 of the Award 'Board and lodging – resident medical officers'.

– Employees with family – charges shall be fixed by the HHS and are to be related to local commercial accommodation/rental charges as applicable to that standard of accommodation within the local environment.

b)No provision exists for payment of costs for transfer of furniture and personal effects under a rotation or secondment of up to six (6) months. A HHS may however grant concessions in order to supplement, to a limited extent, the furniture, etc, already provided in the furnished accommodation, if the secondment or rotation is for an extended period of six (6) months or more.

c)Should the RMO and/or the HHS wish to consider an option for the provision of unfurnished accommodation, this should only occur by agreement. In these circumstances, the employee is entitled to expenses for transport of furniture and effects as outlined in Transfer and appointment expenses HR Policy D4.

d)For a vocational trainee participating in an approved Vocational Training Scheme, when a rotation appointment is to exceed six (6) months, the provisions of the Transfer and appointment expenses HR Policy D4 relating to RMOs apply.

Human Resources Policy – Transfer and Appointment Expenses Policy Number D4 (QH-POL-245)

  1. [12]
    Another policy, issued by the Department, which has bearing on the dispute is Human Resources Policy – Transfer and Appointment Expenses D4 (QH-POL-245) ('HR Policy D4').
  1. [13]
    HR Policy D4 has a publication date of June 2020. That policy states that its purpose is to '… outline the entitlements for transfer and appointment expenses for the nominated Queensland Health employees' and it is expressed to apply to 'Resident medical officers (RMOs)'.
  1. [14]
    HR Policy D4 relevantly provides:

4Resident Medical Officers

4.1 Appointment expenses

Appointment expenses for resident medical officers (RMOs) are covered by clause 29(c) of the Medical Officers (Queensland Health) Award –  State 2015 (the award). The award states that all 'reasonable costs' incurred on appointment shall be paid. All reasonable costs have been interpreted to mean a refund of a reasonable amount to cover the cost of petrol and oil for the journey and reasonable removal expenses for furniture and effects.

To provide a consistent approach to the refund of appointment expenses for RMOs the following provisions are to apply.

These provisions do not apply to RMOs on secondment or rotation. Arrangements for RMOs on secondment or rotation are outlined in the Resident medical officers on secondment or rotation HR Policy.

…

4.5 Board and lodgings

Clause 32 of the award outlines the charges to apply in respect of accommodation for-single Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2023] QIRC 325employees. Where "family" accommodation is supplied, charges shall be fixed by the HHS and shall be related to local commercial accommodation/rental charges as applicable to that standard of accommodation within the local environment (refer to clause 32(d)).

4.6 Transport of furniture and effects

Where furnished accommodation is not provided, an employee shall be allowed transport of furniture and effects to the new centre. The mode of transport shall be approved by the Health Service Chief Executive.

Subject to submitting at least two quotes, the employee is entitled to a refund of the cost of transport of furniture and effects, including packing, by an approved carrier, up to a maximum not exceeding 6 tonnes or 36 cubic metres.

The Health Service Chief Executive may approve beyond these limitations in special circumstances.

The employee is also entitled to an additional mass not exceeding 254 kilograms or 1.15 cubic metres for the transport of a professional/medical library/equipment belonging to the RMO.

Furniture and effects shall be insured to cover risks of damage in transit from the time the insured property leaves the employees [sic] residence until delivery to its final destination.

Where furnished accommodation is provided, storage expenses shall be allowed up to a total of 12 months, where necessary, including cartage to and from store, unloading, receiving, listing, stowage, unstowage and insurance during storage. The cost of storage is not to exceed the total value allowed for removal expenses. These expenses will not apply in cases where the employee maintains a separate principal residence.

In addition, the HHS may grant concessions in order to supplement to a limited extent the furniture etc already provided in the furnished accommodation.

The relevant certified agreements

  1. [15]
    On 31 May 2019, the Commission, pursuant to ch 4, pt 5 of the Industrial Relations Act 2016 ('the IR Act'), certified the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 ('MOCA 5').
  1. [16]
    Clause 1.10 of MOCA 5 provides:

1.10  HR Policy Preservation

1.10.1 The parties agree that certain matters that apply to employees covered by this Agreement will be preserved and incorporated as terms of this Agreement and contained within Schedule 3 of this Agreement.

1.10.2 The matters contained within Schedule 3, as they apply to employees covered by this Agreement, cannot be amended unless agreed by the parties. If matters are amended, the matters will be incorporated as a term of this Agreement.

1.10.3 The parties agree to work collaboratively and engage in the Human Resource Policy review process. If matters are amended, the matters will be incorporated as a term of this Agreement.

  1. [17]
    Schedule 3 to MOCA 5 ('Preserved Queensland Health Human Resources Policies'), at item (g), referring to 'HR policy D4', provided that the policy name was 'Transfer and Appointment Expenses' and stated that the policy applied to all employees.
  1. [18]
    Schedule 3 to MOCA 5, at item (i), referring to 'HR policy D8', provided that the policy name was 'Resident medical officers – secondment or rotation (subject to consultation)' and stated that policy applied to 'Resident Medical Officers'.
  1. [19]
    The Medical Officers’ (Queensland Health) Certified Agreement (No. 6) 2022 ('MOCA 6'), was certified by the Commission on 2 June 2023.
  1. [20]
    Clause 1.10 of MOCA 6 is the same as cl 1.10 in MOCA 5.
  1. [21]
    By the combined effect of cl 1.10 of MOCA 6 and sch 3, item (h), HR Policy D4 was preserved and incorporated as a term of MOCA 6. Similarly, by the combined effect of cl 1.10 of MOCA 6 and sch 3, item (j), HR Policy D8 was preserved and incorporated as a term of MOCA 6.

The parties' submissions

The Union

  1. [22]
    First, the Union submitted that at the time MOCA 5 was certified by the Commission,  IRM 2.7–11 had standing and continued to have standing until it '… was reformatted into' HR Policy D8 during the life of MOCA 5.[2]
  2. [23]
    Secondly, the Union submitted:
  • that HR Policy D8 and IRM 2.7–11 must be interpreted literally and their words should be given their ordinary meaning;[3]
  • cl 2 of IRM 2.7–11 clearly provides for the entitlement in dispute;[4]
  • it is unaware of the entitlement, prescribed in sub-cl 2(a) of IRM 2.7–11, not being provided to vocational trainees who were on rotation for periods in excess of two months when IRM 2.7–11 was operational;[5]
  • the interpretation that will best achieve the purpose of HR Policy D8 is to be preferred to any other interpretation;[6] and
  • the objective of HR Policy D8 must be determined in accordance with the common law rules of construction and the ordinary meaning of the words in that policy.[7]
  1. [24]
    Thirdly, the Union submitted:
  • cl 2 of Attachment One to HR Policy D8 (and sub-cl 2(a) of IRM 2.7–11) contains provisions for two separate and distinct items, namely 'Board and Lodgings' and 'Removal of Furniture and Effects';[8]
  • sub-cl 2a) of Attachment One to HR Policy D8 applies to the entitlement of 'Board and Lodgings', and sub-cls 2b), c) and d) apply to the entitlement concerning 'Removal of Furniture and Effects';[9]
  • sub-cls 2b) and c) of Attachment One to HR Policy D8 refer to the transfer of furniture and personal effects and the payment of costs for such transfer, and not to the payment of costs of board and lodgings or accommodation;[10]
  • sub-cl 2 b) of Attachment One to HR Policy D8 refers to the transfer of furniture and personal effects where an RMO is on rotation or secondment of up to six months;[11]
  • sub-cl 2d) of Attachment One to HR Policy D8:
  1. -
    contemplates the opposite situation to that referred to in sub-cl 2b) of  Attachment One to HR Policy D8, namely '…when a rotation appointment is to exceed six (6) months' and, thus also refers to the payment of costs for transfer of furniture and personal effects, and not to board and lodgings;[12] and
  1. -
    refers to HR Policy D4;[13] and
  • therefore sub-cl 2d) of Attachment One to HR Policy D8, which was not a provision in IRM 2.7–11:
  1. -
    does not affect the meaning or operation of sub-cl 2a) of Attachment One to HR Policy D8; and
  1. -
    sub-cl 2a) of Attachment One to HR Policy D8 '… clearly defines the entitlement to Board and Lodgings'.[14]
  1. [25]
    Finally, the Union submitted, that its interpretation of HR Policy D8 was supported:
  • by reference to the Explanatory Notes to the Industrial Relations Bill 2016 that dealt with collective bargaining;
  • by reference to the provisions of the IR Act that deal with the no disadvantage test to be applied when certifying a certified agreement under ch 4, pt 5 of the IR Act;
  • by the express purposes of the IR Act contained in s 3 and s 4 of the IR Act; and
  • by the tracked comments made by an officer of the Department about the proposed sub-cl 2d) of Attachment One to the draft of HR Policy D8 when it was being finalised, namely:

Proposed inclusion to clarify arrangements for vocational trainees required to undertake rotations as part of their QH or college training program.[15]

  1. [26]
    By way of summary, the Union submitted:
  1. Policy D8 is clear and unambiguous, and clause 2 a) provides the answer to the question to be determined: that RMOs who are vocational trainees and who are appointed to an accredited Vocational Training Scheme/Pathway/Network for more than six (6) months will be provided accommodation of a reasonable standard paid for by the Hospital and Health Service free of charge for six (6) months.

The Department

  1. [27]
    The Department accepted that:
  • HR Policy D4 was a '… protected policy' under MOCA 5;
  • HR Policy D8 and HR Policy D4 were '…protected' under MOCA 6;
  • at the time MOCA 5 was certified, HR Policy D8 was not yet in existence and IRM 2.7–11 was '… not protected under MOCA 5'; and
  • HR Policy D8 '… became a protected policy upon its commencement' in April 2021.[16]
  1. [28]
    By way of a summary of its position, the Department submitted:

Summary of Dispute

  1. In response to paragraph 2 of the Notifier's submission, the Respondent submits that the Notifier's contention is incorrect on the basis that a RMO who is appointed to a Vocational Training Scheme/Pathway/Network (VTS) on a rotation appointment for more than six (6) months, has no entitlement to accommodation under clause 2 a) iii) (of Attachment One of HR Policy D8) because:
  1. a.
    Clause 2 a) does not apply to a RMO in those circumstances due to the effect of Clause 2 d);
  1. a.
    Instead, HR Policy D4 applies to RMOs in those circumstances.
  1. [29]
    In the development of its contention, the Department submitted that:
  • sub-cl 2 d) of Attachment One to HR Policy D8, under the heading of 'Board and Lodgings and Removal of Furniture and Effects',  provides:

For a vocational trainee participating in an approved Vocational Training Scheme, when a rotation appointment is to exceed six (6) months, the provisions of the Transfer and appointment expenses HR Policy D4 relating to RMOs apply;  and

  • as a consequence, the ordinary meaning of HR Policy D8 is that for a RMO on a VTS who is on a rotation appointment to exceed six months, the provisions of  HR Policy D4 apply instead of HR Policy D8.[17]
  1. [30]
    The Department further submitted that before the commencement of HR Policy D8 in April 2021, under IRM 2.7–11, RMO vocational trainees, namely RMOs on a 12 month VTS, were not entitled to the provisions under IRM 2.7–11 '… in circumstances where the entirety of their appointment was undertaken within the District to which they were appointed'.[18]
  1. [31]
    This was said to be because of the preamble to IRM 2.7–11, namely:

In accordance with Clause 4.2.1 of the District Health Services – Senior Medical Officers' and Resident Medical Officers' Award –  State 2003, appointments to Resident Medical Officer positions are for 52 continuous calendar weeks unless otherwise specifically stated (ie for a lesser period). Further initiatives have been implemented that enable contracts of longer that [sic] 52 weeks to provide greater employment security to Resident Medical Officers.

Resident Medical Officer includes Intern, Junior House Officer, Senior House Officer, Principal House Officer, Registrar or Senior Registrar.

For normal appointment expenses of Resident Medical Officers please refer to IRM 2.7–32.

Resident Medical Officer's [sic] can also be appointed to a Medical Rotational Scheme where, during the contract period, they may be appointed to a number of different Districts for varying periods of time. In addition, the Resident Medical Officer may during their appointment undertake secondments to another District to provide services.[19]

  1. [32]
    In making this submission, the Department referred to the plain meaning of the bolded and emphasised words in the third paragraph to the preamble (reproduced above) of IRM 2.7–11.[20]
  1. [33]
    In particular, the Department submitted:
  1. c.
    RMO appointments are generally for a period of 52 continuous calendar weeks unless otherwise specifically stated, including those appointments to a Medical Rotational Scheme/VTS in accordance with the relevant Award:
  1. Clause 4.2.1 of the District Health Services – Senior Medical Officers' and Resident Medical Officers' Award – State 2003 as referred to in IRM 2.7–11;
  1. Clause 8.2 of the Medical Officers' (Queensland Health) Award – State 2015 as referred to under HR Policy D8.
  1. d.
    A RMO appointed to a Medical Rotational Scheme/VTS is and was not automatically considered to be on a 'rotation' or 'secondment';
  1. e.
    While IRM 2.7–11 does not define "rotation" or "secondment", the circumstances where a RMO on a Medical Rotational Scheme/VTS would be considered on a 'rotation' or 'secondment' are expressed in paragraph 4 (bolded above) being where "during the contract period" (of 52 weeks), they were:
  1. Appointed, on a rotation, to a 'different District', being in a location different to the location of their appointment for a period of time; or
  1. Undertaking a secondment to 'another District' to provide services, being a District other than the District they were appointed to.
  1. f.
    IRM 2.7–32 (currently reflected in HR Policy D4) provides for 'normal appointment expenses' for RMOs, including RMOs on a "Medical Rotational Scheme" (known as a VTS under HR Policy D8);
  1. g.
    IRM 2.7–11 did not apply to RMOs on a "Medical Rotational Scheme" (known as a VTS under HR Policy D8) who provide services during the 'contract period' solely within the District to which they were appointed for the entire 52 weeks of their appointment.[21]
  1. [34]
    The Department then submitted, in relation to HR Policy D8:
  • as provided by the 'history' section of HR Policy D8, it sought to clarify when RMOs on a VTS would be entitled to accommodation resulting in the drafting comment '… clarified assistance for vocational trainees';[22]
  • HR Policy D8 defines 'secondment' to mean:

For the purposes of this policy, the term secondment refers to an RMO temporarily being released from their employing HHS/ Department of Health to occupy another position in Queensland Health at the same, higher or lower classification level, generally to provide clinical support and/or backfill.[23]

  • a RMO on a VTS does not fall into this category unless the RMO on a VTS is released from their position to occupy another position;[24]
  • HR Policy D8 defines 'rotation' to mean:

For a RMO (other than a vocational trainee), a medical year term (generally of at least 10 weeks) during which the RMO is provided with a block of experience in a particular clinical field or in a specific setting, e.g. a rural location. The rotation may be undertaken in the RMO's employing Hospital and Health Service (HHS)/Department of Health or in another health service.

For a RMO vocational trainee appointed to an accredited Vocational Training Scheme/Pathway/Network, a requirement of the relevant Queensland Health or specialist medical college vocational training scheme, for the trainee to undertake one or more placements of up to 12 months duration, in another Queensland or interstate, public or private, accredited training facility.[25];

  • a RMO on a VTS can be considered on a rotation where they are placed in another facility for a period of less than 12 months;[26]
  • HR Policy D8 also defines 'Vocational training scheme/pathway/network' to mean:

In Queensland, vocational trainees can be allocated to a training position in a vocational training scheme/pathway/network via three different avenues:

  1. a centrally managed Queensland Health pathway, network or training program
  2. directly by a Queensland Health facility accredited for training; or
  3. an individual specialist medical college, which allocates trainees to a Queensland or interstate facility.[27]
  • before the implementation of HR Policy D8, RMOs on a VTS were not entitled to accommodation per IRM 2.7–11 unless they were considered to be on a rotation or secondment in a different District to the one to which they were appointed;[28]
  • by including sub-cl 2d) of Attachment One to HR Policy D8, the Department sought to clarify the entitlements between RMOs on a VTS rotation for a period of up to 6 months as opposed to those RMOs on a VTS who are appointed to a facility for 12 months and who remain there for that period;[29]
  • the intent behind this policy decision is that – unlike RMOs appointed by the RMO campaign, namely, those appointed for a period of 12 months to the one facility or Hospital and Health Service – RMOs on a VTS are often required to attend different hospitals or facilities during a designated period (from 10 weeks up to 12 months) and:
  1. -
    for those RMOs who rotate every 10 weeks, accommodation should be provided; and
  1. -
    for those RMOs appointed to a facility for 12 months, irrespective that they are appointed by a VTS, normal appointment expenses apply under HR Policy D4;[30]
  • the ordinary meaning of cl 2 of Attachment One to HR Policy D8, means that it is intended to cover both 'Board and Lodgings' and 'Removal of Furniture and Effects';[31] and
  • the Union' submission – that sub-cl 2b) of Attachment One to HR Policy D8 refers to transfer of furniture and personal effects where a RMO is on rotation or secondment of up to six months and that sub-cl 2d) contemplates the opposite situation, namely when a rotation appointment is to exceed six months and only concerns the payment of costs for transfer of furniture and personal effects and not board and lodgings – cannot be accepted because sub-cl 2b) states:

No provision exists for payment of costs for transfer of furniture and personal effects under a rotation or secondment of up to six (6) months. A HHS may however grant concessions in order to supplement, to a limited extent, the furniture, etc, already provided in the furnished accommodation, if the secondment or rotation is for an extended period of six (6) months or more.[32]

  1. [35]
    The Department therefore submits that, as a consequence:
  • the first sentence in sub-cl 2b) applies if rotation or secondment is up to 6 months for any RMO;
  • the second sentence in sub-cl 2b) applies to a RMO who is not on a VTS, placed on secondment or rotation beyond six months; and
  • the opposite situation at sub-cl 2d) relates to RMOs on a VTS whose rotation appointment is to exceed six months, such that sub-cls 2a), b) and c) are excluded from applying to RMOs on a VTS rotation appointment beyond six months because sub-cl 2d) applies in that circumstance.[33]
  1. [36]
    By way of conclusion, the Department submitted:
  1. The Respondent submits that in circumstances where a RMO is appointed to an accredited VTS and a rotation appointment exceeds six (6) months:
  1. a.
    HR Policy D4 applies instead of Clauses 2 a) - c) of Attachment One to HR Policy D8, and
  1. b.
    Queensland Health is therefore not required to provide accommodation or pay for quarters of a reasonable standard free of charge.
  1. This submission is on the basis that:
  1. a.
    The effect of clause 2 d) of Attachment One to HR Policy D8 is that:
  1. i.
    Clause 2 a), b) and c) do not apply in those circumstances; and
  1. ii.
    HR Policy D4 applies to those circumstances instead;
  1. b.
    The purpose of the introduction of clause 2 d) was to clarify the arrangements for RMOs on a VTS as they were under IRM 2.7.11; and
  1. c.
    The introduction of clause 2 d) did not disadvantage this cohort of RMOs as there was no entitlement to the accommodation under clause 2 a) of IRM 2.7.11.

The Union's submissions in reply

  1. [37]
    In its submissions in reply, the Union submitted:
  • the IRM 2.7–11 and HR Policy D8 must be given their ordinary meaning;[34]
  • sub-cl 4.1 of HR Policy D4 provides that the provisions of that policy do not apply to RMOs on secondment or rotation and that arrangements for RMOs on secondment or rotation are outlined in '… the Resident medical officers on secondment or rotation HR Policy';[35]
  • as provided for in HR Policy D8, a RMO vocational trainee can be placed in the one placement for up to 12 months duration to be considered on rotation given the definition of 'rotation' contained in HR Policy D8;[36] and
  • HR Policy D8 is clear and unambiguous, and sub-cl 2a) of Attachment One to that policy provides the answer to the question to be determined, in that RMOs, who are vocational trainees and who are appointed to an accredited VTS for more than six months, will be provided accommodation of a reasonable standard, paid for by the Hospital and Health Service, free of charge, for six months.[37]

The construction of HR Policy D8

The relevant principles of construction

  1. [38]
    As I stated in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health):[38]

[53] It is important, when construing any document, to take account of the particular nature of the document in question, which may provide reasons for preferring one approach to construction over another. The Stand-by policies are obviously more legislative as opposed to contractual in nature. In any event, for the reasons given earlier, they were and are preserved and incorporated into MOCA 5. The primary principles of the construction of certified agreements were set out by a Full Bench of the Commission in State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.[39]

  1. [39]
    Therefore, as HR Policy D8 and HR Policy D4 were incorporated into MOCA 5 and, are incorporated into MOCA 6, the consequence is that, in my view, the principles of construction of certified agreements apply in respect of their construction.  

The construction of HR Policy D8

  1. [40]
    The Union submits that sub-cl 2a)(iii) of Attachment 1 to HR Policy D8 provides that if a RMO vocational trainee who is appointed to an accredited VTS, and is on rotation for more than six months, then the relevant Hospital and Health Service is obliged to provide accommodation, of a reasonable standard, free of charge, for six months.
  1. [41]
    Clearly enough, by the introductory provisions of HR Policy D8, its purpose is to '… outline the entitlements for resident medical officers on secondment or rotation.' However, that broad statement of purpose must be read subject to the text of the remainder of the policy.
  1. [42]
    HR Policy D8 provides definitions of the terms used within it. Relevantly, the following definitions are provided:

Rotation

For an RMO (other than a vocational trainee), a medical year term (generally of at least 10 weeks) during which the RMO is provided with a block of experience in a particular clinical field or in a specific setting, e.g. a rural location. The rotation may be undertaken in the RMO's employing Hospital and Health Service (HHS)/Department of Health or in another health service.

For an RMO vocational trainee appointed to an accredited Vocational Training Scheme/Pathway/Network, a  requirement of the relevant Queensland Health or specialist medical college vocational training scheme, for the trainee to undertake one or more placements of up to 12 months duration, in another Queensland or interstate, public or private, accredited training facility.

Secondment

For the purposes of this policy, the term secondment refers to an RMO temporarily being released from their employing HHS/Department of Health to occupy another position in Queensland Health at the same, higher or lower classification level, generally to provide clinical support and/or backfill.

Vocational training scheme/pathway/network

In Queensland, vocational trainees can be allocated to a training position in a vocational training scheme/pathway/network via three different avenues:

  1. a centrally managed Queensland Health pathway, network or training program
  2. directly by a Queensland Health facility accredited for training; or
  3. an individual specialist medical college, which allocates trainees to a Queensland or interstate facility.
  1. [43]
    As set out earlier in these reasons, cl 2 of Attachment 1 to HR Policy D8, deals with board and lodgings and also the removal of furniture and effects.
  1. [44]
    Sub-clause 2a) provides, in addition to '… the board and lodging provisions contained in clause 32 of the Award,' the following applies to RMOs on secondment or rotation:
  • at sub-cl 2a)(i), entitlements regarding, relevantly, '… furnished accommodation of a reasonable standard and size free of charge for RMOs on secondment or rotation for a period of not more than two (2) months.';  and
  • at sub-cl 2a)(iii), that for periods in excess of two months, where an employee has supplied satisfactory evidence, acceptable to the Hospital and Health Service, that the employee is maintaining a principal residence at the location of the employing Hospital, and the employee is not deriving income from such residence, the '… HHS must provide or pay for quarters as applicable in (i), of a reasonable standard free of charge up to a maximum period of six months'.
  1. [45]
    Sub-clause 2d) of Attachment 1 to HR Policy D8 provides that '… for a vocational trainee participating in an approved Vocational Training Scheme, when a rotation appointment is to exceed six (6) months, the provisions of the Transfer and appointment expenses HR Policy D4 relating to RMOs apply.'
  1. [46]
    In short, the Union's case is that:
  • sub-cl 2a)(iii) of Attachment 1 to HR Policy D8 applies to a RMO who is appointed to a VTS, where the rotation appointment exceeds six months, because such a rotation would be for more than the two months referred to in sub-cl 2a)(i);
  • sub-cl 2d) of Attachment 1 to HR Policy D8 has no effect on the operation of sub-cl  2a) because sub-cls 2b), c) and d) apply to the removal of furniture and effects and not to board and lodgings; and
  • therefore, sub-cl 2d) of Attachment 1 to HR Policy D8 only deals with the entitlements for a RMO appointed to an accredited VTS where the rotation appointment exceeds six months, but only in respect of the removal of furniture and effects and not in respect of board and lodgings because the latter entitlements are provided for in sub-cl 2a)(iii).
  1. [47]
    I cannot accept this construction.
  1. [48]
    First, HR Policy D4 deals with all aspects of transfer and appointment expenses, including:
  • at sub-cl 4.5, board and lodgings; and
  • at sub-cl 4.6, the cost of the transport of furniture and effects.
  1. [49]
    By sub-cl 2d) of Attachment 1 to HR Policy D8, HR Policy D4 expressly applies to a vocational trainee participating in an approved VTS when a rotation appointment (as defined in HR Policy D8) is to exceed six months. It simply cannot be the construction, that best achieves the purpose of cl 2 of Attachment 1 to HR Policy D8, to conclude that sub-cl 2d) only applies to such an RMO in respect of the costs of the transport of furniture and effects when HR Policy D4 covers both board and lodgings and the costs of the transport of furniture and effects.
  1. [50]
    That is, sub-cl 2d) of Attachment 1 to HR Policy D8 operates as a clear proviso to the other entitlements conferred by sub-cls 2a), b) and c), in respect of a RMO participating in an approved VTS when the rotation appointment is to exceed six months.
  1. [51]
    The plain words of cl 2 of Attachment 1 to HR Policy D8 are contrary to the construction pressed by the Union. 
  1. [52]
    Secondly, I accept that sub-cl 4.1 of HR Policy D4 provides that, in respect of appointment expenses generally, the provisions of that policy do not apply to RMOs on secondment or rotation and that arrangements for RMOs on secondment or rotation are outlined in '… the Resident medical officers on secondment or rotation HR Policy'.
  1. [53]
    However, that provision must be read with cl 2 of Attachment 1 to HR Policy D8 as a whole which, at sub-cl 4d), specifically states that HR Policy D4 applies to a vocational trainee participating in an approved VTS when a rotation appointment is to exceed six months.
  1. [54]
    Thirdly, the drafting note referred to by the Union, when sub-cl 2 d) of Attachment 1 to HR Policy D8 was being framed – namely, 'Proposed inclusion to clarify arrangements for vocational trainees required to undertake rotations as part of their QH or college training program' ('the drafting note') – tends to support the Department's case rather than the Union's case.
  1. [55]
    This is because sub-cl 2d) of Attachment 1 to HR Policy D8 is an entirely new provision and it makes no distinction about the application of HR Policy D4, to the RMOs to whom sub-cl 2d) applies, in respect of the entitlements of board and lodging compared to the cost of the transport of furniture and effects.
  1. [56]
    Related to this issue about the drafting note is the Union's submission that cl 2 of IRM 2.7–11 clearly provided for the entitlement in dispute. However, I prefer the Department's submissions about the construction of IRM 2.7–11.
  1. [57]
    On the plain words used in the fourth paragraph of the preamble to IRM 2.7–11, that policy only had application where the RMO was on secondment or rotation to another Health Service District, namely one different to the Health Service District to which the RMO was initially appointed.
  1. [58]
    Therefore, the entitlements contained in sub-cl 2(a) of IRM 2.7–11 had no application to a RMO on a Medical Rotational Scheme where the rotation occurred in the District to which the RMO was appointed. Viewed this way, it makes sense that sub-cl 2d) was introduced into Attachment 1 to HR Policy D8. This was because IRM 2.7–11 did not apply to RMOs on a 'Medical Rotational Scheme' – now an approved VTS – within the District to which they were appointed.
  1. [59]
    I am fortified in this view because the second clause in the substantive provisions of HR Policy D8, as emphasised earlier in paragraph [10] of these reasons, provides for:
  • RMOs being seconded or rotated within the Hospital and Health Service to which they were appointed;
  • RMOs, appointed to an accredited VTS, being '… appointed to a number of different Queensland Health hospitals' for varying periods of time to fulfil training requirements, which, despite the infelicitous language used, can only mean the rotation appointment of such a RMO within the Hospital and Health Service to which they were appointed or the rotation appointment of such a RMO to a Hospital and Health Service different to the one to which they were appointed; and
  • RMOs being seconded to other Hospital and Health Services.

Conclusion

  1. [60]
    For the reasons I have given, the answer to the question for arbitration should be answered in the negative.

Order

  1. [61]
    I make the following order:

In answer to the question for arbitration:

Is Queensland Health required, in accordance with clause 2 a) of Attachment One to HR Policy D8 (Resident medical officers on secondment or rotation), to provide accommodation or pay for quarters of a reasonable standard free of charge for six (6) months to a Resident Medical Officer who is appointed to an accredited Vocational Training Scheme/Pathway/Network and a rotation appointment exceeds six (6) months?

The answer is:

No.

Footnotes

[1] Emphasis added.

[2] The written submissions of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees filed on 30 June 2023 ('the Union's submissions'), para. 6.

[3] The Union's submissions, para. 7.

[4] The Union's submissions, paras. 9-10.

[5] The Union's submissions, para. 11.

[6] The Union's submissions, para. 12.

[7] The Union's submissions, para. 13.

[8] The Union's submissions, para. 14.

[9] The Union's submissions, para. 15.

[10] The Union's submissions, para. 16.

[11] The Union's submissions, para. 18.

[12] The Union's submissions, para. 19.

[13] The Union's submissions, para. 20.

[14] The Union's submissions, para. 21.

[15] The Union's submissions, paras. 23-33.

[16] The submissions of the State of Queensland, through Queensland Health filed on 28 July 2023 ('the Department's submissions') paras. 1-2.

[17] The Department's submissions, paras. 6-7.

[18] The Department's submissions, para. 11.

[19] Emphasis in the original.

[20] The Department's submissions, para. 12.b.

[21] The Department's submissions, para. 12.

[22] The Department's submissions, para. 15.

[23] The Department's submissions, para. 16.

[24] The Department's submissions, para. 17.

[25] The Department's submissions, para. 18.

[26] The Department's submissions, para. 19.

[27] The Department's submissions, para. 20.

[28] The Department's submissions, para. 21.

[29] The Department's submissions, para. 22.

[30] The Department's submissions, para. 23.

[31] The Department's submissions, paras. 24-28.

[32] The Department's submissions, para. 29 a. – c.

[33] The Department's submissions, paras. 29 d.

[34] The written submissions in reply of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees filed on 25 August 2023 ('the Union's reply submissions'), para. 3.

[35] The Union's reply submissions, para. 4.

[36] The Union's reply submissions, paras. 6-7.

[37] The Union's reply submissions, para. 21.

[38] [2023] QIRC 180.

[39] Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 325

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 Nov 2023

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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