CITATION: | State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061 |
PARTIES: | State of Queensland (Department of Health) (Applicant) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees (Respondent) |
CASE NO.: | B/2019/70 |
PROCEEDING: | Application for declaration |
DELIVERED ON: | 23 February 2023 |
HEARING DATES: | 28, 29 and 30 March 2022 |
MEMBERS: | Merrell DP Pidgeon IC Dwyer IC |
HEARD AT: | Brisbane |
ORDERS: | The orders contained in paragraph [302] of these reasons for decision. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – EMPLOYEES IN EMPLOYMENT OF STATE – APPLICATION FOR DECLARATORY RELIEF – Applicant and Respondent are parties to certified agreements entitled Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 and Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 – both certified agreements contained clauses entitled 'Emergency Department speciality allowance' which provided for an allowance of 25% of base salary to be paid to Senior Medical Officers in certain circumstances – genuine dispute between the Applicant and the Respondent over whether Senior Medical Officers, to whom the clauses in both certified agreements applied, have to work all of their hours of work in an Emergency Department to be entitled to the 25% allowance – Applicant applied for a declaration that the clauses in both certified agreements only apply to Senior Medical Officers who must be engaged to work in an Emergency Department under an extended hours roster within the meaning of the certified agreements and who must work all of their rostered hours under the extended hours roster in an Emergency Department – principles of construction of certified agreements made and approved under the Industrial Relations Act 1999 and Industrial Relations Act 2016 – whether, on the construction of the two certified agreements, a Senior Medical Officer was required to work all of their rostered hours in an Emergency Department to be entitled to the allowance of 25% of base salary – on the construction of the clauses in both certified agreements, a Senior Medical Officer did have to work all of their rostered hours in an Emergency Department to be entitled to the allowance of 25% of base salary – when discretion should be exercised by the Queensland Industrial Relations Commission to make a declaration – whether discretion to make a declaration should be exercised in the present case – whether declaration should be made in the form sought by the Applicant – declaration made to resolve a genuine dispute between the parties – declaration made in the form sought by the Applicant |
LEGISLATION: | Australian Public Service, General Employment Conditions Award 1995, cl 11 Australian Public Service Redeployment and Retirement (Redundancy) Award 1987, cl 5 Fair Work Act 2009, s 182 Industrial Relations Act 1999, s 141 and s 156 Industrial Relations Act 2016, s 164, s 451, s 463 and s 464 Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015, cl 1.2, cl 2.3, cl 4.2, cl 4.3, cl 4.8 and cl 4.14 Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 1.2, cl 2.6, cl 11.3, cl 11.4, cl 11.20 and cl 11.24 |
CASES: | Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2022] FCAFC 50; (2022) 314 IR 231 Australian Manufacturing Workers' Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 Australian Municipal, Administrative, Clerical and Services Union v Australian Tax Office [2013] FWCFB 4752; (2013) 234 IR 366 Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 82 FCR 175 Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2020] QIRC 086 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2021] QIRC 157 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520; (2003) 198 ALR 442 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Commissioner of the Australian Federal Police v Police Federation of Australia [2022] FCA 272 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 Dr Wayne Shipley & Ors v Metro South Hospital and Health Service [2019] QIRC 071 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223 Polan v Goulburn Valley Health [2016] FCA 440 Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202 Queensland Public Sector Union v Department of Corrective Services [2002] QIC 39; (2002) 170 QGIG 422 Ridd v James Cook University [2021] HCA 32; (2021) 310 IR 109 Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87 Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54; (2020) 4 QR 31 Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 Watson v Foxman (1995) 49 NSWLR 315 |
APPEARANCES: | Mr A. Herbert of Counsel instructed by Mr M. Moy of McCullough Robertson Lawyers for the State of Queensland (Department of Health). Ms L. Doust of Counsel instructed by Mr L. Forsyth of Hall Payne Lawyers for the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees. |
Reasons for Decision
Introduction
an allowance of 25% of base salary ('the ED 25 allowance') is paid to the SMO in addition to other allowances paid under other relevant clauses (sub-cls 4.14.1 and 4.14.2 of MOCA 4 and sub-cls 11.24.1 and 11.24.2 of MOCA 5).
-should the Commission make a declaration? and, if so
-should the declaration be made in the form sought by the Department in its application?
The parties' contentions
The Department's contentions
-part 4 of MOCA 4 which prescribes employment conditions;
-the heading to cl 4.14, namely, 'Attraction and Retention Incentive Allowance - Senior Medical Officers,' and the content of that clause, which, in its preamble, refers to the parties' agreement that the retention of skills and experience of medical officers is crucial to the effective functioning of the Queensland public health system, and further that it is necessary to attract people with such skills and experience to work in Queensland's public health system and, with that aim, the ED 25 allowance will apply; and
-sub-clause 4.14.4 provides an acknowledgement for clarity, namely, '… that the allowances in Clause 4.14.1, 4.14.2, 4.14.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP';[7]
-then it would not be possible to describe the payment as a 'speciality' attraction and retention payment;[11] and
-such an interpretation ignores the ordinary meaning of the heading to the clause 'Emergency Department speciality allowance' and further requires the introduction of words 'some of their shifts' to qualify and diminish the word 'works', thereby substantially altering the ordinary object of the meaning of the word 'works' as that word appears in the clause;[12] and
-what became the ED 25 allowance was not created for the first time upon the negotiation of MOCA 4, rather it was first provided to particular employees engaged under Option A contracts, in and from 2006, by means of an Option E addendum to that contract ('Option E contracts') and which was then carried forward in the terms of HIGCs;
-the Option E contracts were the genesis of the ED 25 allowance which later translated into MOCA 4; and
-the provisions of the Option E contract were that the ED 25 allowance was payable to SMOs working their ordinary hours in an Emergency Department;[15] and
The Union's contentions
-the SMO works in an Emergency Department;
-that work is performed under a rostering arrangement in accordance with either cl 4.3 of MOCA 4 or cl 11.4 of MOCA 5 concerning extended hours arrangements; and
-the SMO's rostered hours include evening shifts during the week or anytime on the weekend;[17]
-focuses attention on the basis or purpose of the SMO's engagement, in that the clauses operate by reference to the performance of work and operate at the time work is being performed, rather than directing attention to the time at which the employee is initially employed; and
-imports a requirement that all of an SMO's work be performed in the Emergency Department, in that the ordinary meaning of the words '… works in' is not '… works only in' and the performance of some work is enough to satisfy the first element of the disputed sub-clauses; and
-require the employer to specify, at the point of engagement, that the SMO is allocated or attached to any particular department or section of a hospital or a health service;[21] and
-limit the directions that may be given to an SMO by the employer as to the parts of the hospital or health service in which the SMO is required to perform their work;[22] and
-casual staff, resident medical staff and staff with private practice rights are excluded from the entitlement to the allowance, whereas part-time employees are not; and
-a part-time SMO working all of their 12 hours per week in the Emergency Department would be entitled to the allowance, but a full-time SMO working 24 of their 40 hours per week in the Emergency Department would not.[28]
The relevant provisions of the certified agreements
The parties to MOCA 4 and MOCA 5
Clause 4.14 of MOCA 4
4.14 Attraction and Retention Incentive Allowance – Senior Medical Officers
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.
4.14.1 General Attraction and Retention allowance
4.14.2 Regional and Rural attraction allowance
Amounts in Clause 4.14.1 (a) and 4.14.1 (b) will be increased by an additional:
4.14.3 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.
4.14.4 The parties acknowledge for clarity that the allowances in Clause 4.14.1, 4.14.2, 4.14.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP.[35]
4.14.5 The allowances payable under Clause 4.14.1, 4.14.2, 4.14.3 are payable for paid leave, and included as ordinary time earnings for superannuation.[36]
Clause 11.24 of MOCA 5
11.24 Attraction and Retention Incentive Allowance – Senior Medical Officers
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: (Please note, 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.)
11.24.1 General Attraction and Retention allowance:
11.24.1.1 For Specialist medical practitioners (excluding specialist general practitioners) an allowance of 50% of base salary;
11.24.1.2 For SMOs, other than those in Clause 11.24.1.1 an allowance of 35% of base salary;
11.24.1.3 Except that the sum of percentages in Clause 11.24.1.1 and or 11.24.1.2 will be reduced by 25% of base salary for those who:
a. nominate to participate in the granted private practice revenue retention arrangement
b. fail to complete the granted private practice agreement template within three months of certification of this Agreement or upon commencement of employment (whichever is later); or
c. have their granted private practice arrangement terminated in accordance with the termination provisions of the granted private practice agreement.
11.24.2 Regional and Rural attraction allowance:
Amounts in Clause 11.24.1.1 and 11.24.1.2 will be increased by an additional:
11.24.3 Emergency Department specialty allowance
11.24.3.1 Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 11.4, 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 11.24.1 and 11.24.2.
11.24.3.2 The parties acknowledge for clarity that the allowances in Clause 11.24.1 and 11.24.2 and 11.24.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP.[37]
11.24.3.3 The allowances payable under Clause 11.24.1 and 11.24.2 and 11.24.3 are payable for paid leave, and included as ordinary time earnings for superannuation.[38]
The principles of construction of certified agreements
The Department's submissions
No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it."
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.[42]
The Union's submissions
[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Ltd v Construction, Forestry, Mining and Energy Union, Gleeson CJ and McHugh J described the process in the following terms: “[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …”. Or, as Kirby J put it in the same case, “[i]nterpretation is always a text-based activity”.
…
[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
-to give the language a meaning it does not possess; and
-in order to engage in some other task of trying to ascertain what was really intended by one or other of the parties to an agreement.[47]
The relevant principles of the construction of certified agreements
[89] In his reasons, the primary judge said that “Toyota contended and it was not disputed, that an enterprise agreement made under the FW Act is a form of delegated legislation”. It appears that that contention was made in the context of Toyota's submission based on s 46 of the AI Act to which we have referred. However, although the FW Act provides that an enterprise agreement is “made” otherwise than by the Commission, the Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.
[90] An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act. It is enforceable under that Act, and not otherwise. There is, in the circumstances, no reason to approach the question of legislative intent with a predisposition informed by notions of freedom of contract.[51]
[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa):
… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.
[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:
… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting.
[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:
[64] As to category (i), evidence of prior negotiations will be admissible - but only for a defined purpose. As Mason J observed in Codelfa:
Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Ltd:
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.[60]
What is the construction of the disputed sub-clauses?
Overview of the parties' submissions
-as to the first limb, there is no controversy between the parties, namely, that the person must be employed as an SMO;
-as to the second limb, namely, that the person must be 'engaged' to work in an Emergency Department under an extended hours roster within the meaning of cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5, the disputed sub-clauses do not import a requirement that there be a specific engagement, and all that is necessary is that there is an extended hours roster in place; and
-as to the third limb, there was no requirement that the person must work all of their rostered hours under the extended hours roster in the Emergency Department.[66]
Objections to material tendered
The context of the disputed sub-clauses
As is evident from my judgment in Barlow v Qantas Airways Ltd (1997) 75 IR 100 at 113‑114, where I was sitting as a member of a Full Court of IRCA, I prefer Burchett J's approach to award interpretation. There is no sound reason why recourse to probative extrinsic material by the Court should be conditional on identification of an ambiguity. Further, there is no sound reason why use of the extrinsic material should be limited to identifying the mischief sought to be addressed by the award, as distinct from construing the meaning of the award itself. But the debate is rather academic. I regard myself bound by the approach of Burchett J in Short v Hercus, Drummond J having agreed with his Honour's approach on the issue of award interpretation and the use of extrinsic material.[75]
This survey of the subs 9/S of the PMM makes it apparent that it was contemplated that in the ordinary case only inter-city transfers were contemplated as giving rise to a redundancy situation. When subs 9/S of the PMM is considered together with the relevant terms of the Excess Staff Circular - they point to a scheme whereby the notion of "at a different locality" in the RRR Award was intended encompass a move the magnitude of which was inter-city, or of a similar scale, such that the employee would be required to move house to maintain her or his employment. In my view, the Excess Staff Circular and the PMM constitute part of the "context" in which cl 5(e)(iii) of the RRR Award should be considered: see Short v Hercus at 518. This is apparent from the implementation of the RRR Award and the Excess Staff Circular as an agreed package and with the common operational date in respect of both instruments. So, when cl 5(e)(iii) of the RRR Award was transplanted to cl 11.1.1(c) of the GEC Award, to quote Burchett J in Short v Hercus, it "... brought with it some of the soil in which it once grew".[81]
[28] The Full Court of this Court observed in Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 (TWU v Coles) that, although the observations in Kucks were made in dealing with the construction of awards, they apply equally to industrial agreements subject to one additional observation. Enterprise agreements are agreements in name only and their construction should not proceed on the premise that they are a form of bargain between agreeing parties (TWU v Coles at [40]; Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152; 244 IR 335 at [88]-[89]). In other words, because of the circumstances in which they are made and the consequences of contravention (i.e., penal consequences for contravention: s 50 of the FW Act), enterprise agreements have a legislative character.
[29] The main guides to construction are text, context and purpose and there is utility in bearing in mind the facts as they are known at the time the instrument is drafted (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [2] per Gleeson CJ and McHugh J; at [30] per Gummow, Hayne and Heydon JJ; at [64] and [96] per Kirby J; at [129]-[131] per Callinan J; TWU v Coles at [46]; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [16.160] et seq).
The Department's submissions
The history of the disputed sub-clauses
-the Option E 25% allowance was preserved for existing persons and was made available for new starters by way of individual employment contracts known as HIGCs, in respect of which remuneration was provided through a number of tiers, which relevantly included 'Tier 4C', which was a specialty recruitment incentive, and which included the Option E 25% allowance;[91] and
-during the negotiations for MOCA 4, it was agreed by the Department and the relevant unions that the Option E 25% allowance would be translated into the MOCA 4 attraction and retention allowances as the ED 25 allowance;[92] and
How sub-cl 4.14.3 of MOCA 4 came into existence
Now, it's as clear as crystal that that is the qualifying circumstance for which you become entitled to the benefit. That - the contract recites what the agreement is that has been reached and what it - and that that is the consideration for the payment of the benefit. Absolutely clear as crystal. The - there are a set of definitions, a senior medical officer - which is the person who is the party to this agreement - means senior medical officer as classified under the award working in an emergency department, not walking into an emergency department from time to time. Not visiting an emergency department, not waving at it out the window, but working in an emergency department.
Now, in ordinary industrial parlance, working in an emergency department means that's where you work, not that's where you don't work and you work somewhere else, but you go here from time to time. That's not working in an emergency department. That is working in whatever other department you're working in and coming to the emergency department from time to time and working there in conjunction of other things. No mention of having - of not working in the emergency department. And then the actual benefit is - which is not set out in the background of paragraph (c) that I referred to - the actual benefit is prescribed because paragraph (c) says the benefit you get in consideration of working in that way is as set out in this agreement.[107]
-there was no intention to have any diminution of previous entitlements; and
-there was a rejected Union claim to expand who would get the entitlement when the Option E 25% allowance was replicated in MOCA 4.[116]
The Union's submissions
There was no common understanding, assumption, or intention, that there be some preservation of the status quo, and it's important here to distinguish between what was necessarily the translation of a whole bunch of different components of remuneration, from one form of instrument across to a new form of instrument - so going from individual contracts which applied across a range of individuals, into an enterprise agreement. So one shouldn't mistake what was inevitably a translation into a preservation of the status quo.[118]
The Department's submissions in reply
-the mutual intention of what that means is objectively derived from the contracts which originally conferred the benefit; and
-that phrase has a special meaning, namely, an SMO who works all of their ordinary hours in the Emergency Department[129] which was consistent with Mr Hodgson's unchallenged evidence that the Option E 25% allowance was only ever provided to an SMO who works all of their ordinary hours in the Emergency Department.[130]
Is the history leading to, and content of, the Option E 25% allowance a cue to disclosing the context of the disputed sub-clauses?
The history leading to the Option E 25% allowance and its maintenance in the HIGCs
-more money was needed to attract people; and
-a long term view needed to be taken to develop a research culture and to have people choose to train in emergency medicine, and to make it more attractive for people to want to come into emergency medicine even though they have to do shift work; and
2. Additional Recruitment and Retention Packages
…
2.2 Emergency Department Specialists and Senior Medical Officers - Recruitment and Retention
Queensland Health is currently experiencing significant medical workforce shortages in Emergency Departments and anticipates that unless urgent action is taken the Department will continue to face intense pressure to keep Emergency Departments open and to staff expanded services in the future.
An additional 25% will be added to the Option A allowance for Specialists and Senior Medical Officers employed in Emergency Departments and who are working their ordinary hours of work through extended hours arrangements between 7.00am and 10.00pm Monday to Sunday. The defined shift patterns worked by Emergency Department senior medical staff could impact on the ability of these senior medical staff to earn additional remuneration through overtime compared to senior medical staff generally. The criteria for eligibility for this entitlement (e.g. number of extended hours shifts per week) will be agreed between Queensland Health, Queensland Public Sector Union and Australian Salaried Medical Officers Federation Queensland. This will be advised with the instructions for the template contracts and variations.
These new arrangements, including their inclusion in overtime and extended hours payment calculations, will be backdated to 1 January 2006.[142]
4.6 Emergency Department 25% loading ( ER Circular 24/06)
4.5 25% Emergency Department Loading
Action: HRB to re-examine the material governing the arrangements and issue a clarification.
The Option E 25% allowance and the Tier 4C remuneration contained in individual High Income Guarantee Contracts
Note 12 - Eligibility for Tier 4C payments (emergency doctors)
Up to 25 per cent of base salary is available to the service to attract and retain specialists.
The use of the speciality recruitment incentive payment will be subject to approval under a strict governance process.
Guide for emergency department appointments
The Clinical Services Capability Framework is used to determine the definition of an emergency department. To be eligible to receive Tier 4C for an emergency department SMO, the criteria below should be used as a guide:
Introduction
This document provides a set of parameters that assist Hospital and Health Services (HHSs) and commercialised business units (CBUs) to determine the value of a senior medical officer's (including medical superintendents with private practice (MSPP) and medical officers with private practice (MOPP) annual remuneration package.
…
This document provides the parameters within which HHSs and the Department may reach agreement with SMOs and MSPP/MOPPs about benefits and their framework contract of employment.
This document is not intended to form all or part of a contract with an SMO or MSPP/MOPP. HHSs and the department must not enter into contracts of employment with SMOs or MSPP/MOPPs that contain benefits outside the parameters in this document.[180]
Tier 4c-Specialty recruitment (0 - 25 per cent of base)
The speciality recruitment incentive is available to the service to attract new specialists or retain existing specialist staff that are critical to or enhance the capability of the service to deliver its service requirements to the community.
The use of the speciality recruitment incentive payment will be subject to approval under a strict governance process.
This incentive is not to be used as a method to implement general pay increases. Remuneration in Tier 4c needs to be considered at an individual and/or speciality group level within the service.
For existing SMOs translating to individual employment contracts, it is expected that use of this tier will not extend beyond those currently receiving the ED25% incentive other than in exceptional circumstances. Translating SMOs in receipt of the ED25% will continue to receive the ED25% for the course of employment within Queensland Health provided that they continue to meet the criteria to receive the ED25%.[182]
Retained for course of employment by translating Emergency Department staff.[189]
The relationship between the Option E 25% allowance preserved in the HIGCs and the disputed sub-clauses
-he stated to the parties, including the Union and TQ, in relation to the elements in Tier 4C, that the status quo would apply and that the unions indicated that was what they wanted; and
-the ED 25 allowance for MOCA 4 was drafted on the basis of that agreement;[192] and
ED25 - QH happy to weaken proposed wording for >=50% shifts evening or weekend to previous working or similar
Well, you're not suggesting, are you, that being prepared to set a benchmark of 50 when it met resistance it actually insisted on double that. It's a matter of logic. That's not what you suggest, is it?---No, because it was 100 per cent ultimately of time being worked in the emergency department to be eligible for the ED25 since the point of its inception. And the negotiated position was to continue that arrangement. That's my recollection of the discussion. That was Queensland Health's position.[203]
No, I'm talking about the position they were taking about entitlement to the allowance, Mr Hodgson. What I'm talking about is the position that the unions communicated and nobody communicated to you that they were thinking that 100 per cent is the gateway to ED25. That was never communicated by the unions in the discussions, was it?---No. Other than agreeing to the clause.
And it was never communicated by the unions to you that the unions believed that ED25 had always operated on the basis that it takes 100 per cent in the emergency department to be entitled to the allowance?---That particular issue was not protested.
They were saying participation was the key to entitlement, weren't they?---Yes. Participating in the emergency department.
Which is not performing all of your hours in the emergency department. You understood that, didn't you?---That was our position. Yes.
You understand that I'm asking you about the position communicated to you by the unions. I'm not asking you about your position?---The position communicated to us by the unions was not accepted.
Well, that might be right, but to the extent that there's any attempt in your evidence to suggest that something was clearly communicated as understood and accepted by the union, there was nothing that - or the unions - there was nothing that they had done to communicate to you that they accepted either that 100 per cent was to be the gateway or that 100 per cent had been the gateway in the past. That's right, isn't it?---Yes.[205]
…
-the drafting of sub-cl 4.14.3 of MOCA 4 was very similar to the HIGCs;[210] and
-the HIGCs replicated '… the wording of the option E contracts in relation to ED25';[211]
-the common objective of the parties was to maintain the status quo, including the Option E 25% allowance as preserved in the HIGCs; and
-no other contract was in evidence which demonstrated that the Option E 25% allowance was provided to anyone else other than SMOs who executed Option E contracts.
Background
A The SMO is employed by Queensland Health as a [insert job title].
B The SMO and Queensland Health have entered into an Option A Contract dated [insert date] (Option A Contract).
C In addition to the payments and benefits made by Queensland Health to the SMO pursuant to the Certified Agreement and the terms of the Option A ![State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 61](/judgmentview/image?name=358419.001.jpg&id=358419)
Contract, Queensland Health and the SMO have agreed that, in consideration for the SMO working their ordinary hours of work through an Extended Hours arrangement in an emergency department, Queensland Health will pay the SMO the Emergency Department Extended Hours Benefit on the terms set out in this Contract.
Agreed Terms
1Definitions
For the purpose of this document:
Award means the District Health Services - Senior Medical Officers' and Resident Medical Officers' Award - State 2003.
Certified Agreement has the same meaning as in the Option A Contract.
Emergency Department Extended Hours Benefit has the meaning given by clause 3.1 of this document.
Extended Hours means, with respect to the hours of operation of an emergency department, when Senior Medical Officers' rostered ordinary hours coverage is provided in accordance with the Certified Agreement at least from:
Senior Medical Officers (SMO) means Senior Medical Officers as classified under the Award working in an emergency department.
Supplementary Benefit has the same meaning as in the Option A Contract.
Supplementary Benefit Percentage has the same meaning as in the Option A Contract.
2Term
This document will commence on [insert date] and terminate on [insert date] unless terminated earlier in accordance with this document.
3Emergency Department Extended Hours Benefit
3.1 Where the SMO works in an emergency department providing Senior Medical Officers' coverage during Extended Hours as defined above and the SMO's ![State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 61](/judgmentview/image?name=358419.002.jpg&id=358419)
rostered ordinary hours include working of shifts where the majority of the shift is after 4.00pm Monday to Friday and/or on the weekend, the SMO's entitlement to the Supplementary Benefit under the Option A Contract will be ![State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 61](/judgmentview/image?name=358419.003.jpg&id=358419)
increased by adding a further 25% to the Supplementary Benefit Percentage as set out in Item 5 of Schedule 1 to the Option A Contract (Emergency Department Extended Hours Benefit).
3.2 If the SMO is entitled to payment of the Emergency Department Extended Hours Benefit under clause 3.1 then the Option A Contract will continue with full force and effect as if the Emergency Department Extended Hours Benefit forms part of the Supplementary Benefit in the Option A Contract. [219]
The specific submissions made by the Union
Is the documentary evidence, referred to by the Union, contrary to the Department's context contention, namely, that there was a common assumption that the Option E 25% allowance would be maintained in MOCA 4?
[U]sing MOCA 3 (extended hours contract) as a base and worked it up from there. Please advise of any concerns you may have, or alternatively provide suggestions for amendment … Given MOCA3 itself was silent on this issue I have attached a copy of the former extended hours supplementary benefit contract for reference.[226]
Is the further documentary evidence referred to by the Union contrary to the Department's context contention, namely, that there was a common assumption that the Option E 25% allowance would only be paid to SMOs who worked all of their ordinary hours in an Emergency Department?
Other circumstances, such as non-permanent ED staff working occasional extended shifts in an ED, can be addressed individually as they arise.[230]
Yesterday, I believe we reached agreement to issue clarifying criteria to assist SMOs and districts implement this benefit as follows:
Well, at the point where the - where Ms Kelleher[236], who's in a very senior industrial relations position with Department of Health, sends an email to Ms Cannon saying we've agreed on these other criteria, that's a bit more than chatter, isn't it?---I wouldn't be using this as the agreed criteria of an email. I don't think it's - certainly not - it didn't land in any contract or document and certainly conversations about what was the meaning and trying to get to it, but I don't believe that the parties got to it from this email and this brief.[237]
-as to how MOCA 4 should be drafted; and
-even as to whom the allowance was paid or should be paid; and
Attached is an email from the then Program Manager Greg Coonan in which he writes to Jenny Cannon who was the then Industrial Advocate for Together.
The email on its face appear [sic] to deny the claim that a specific location, Innisfail receive the ED 25 percent benefit.
The from Mr Coonan email [sic] accords with my 2017 recollection that for the 12 months preceding January 2012 the then named WRU had been "in discussion with Together and ASMOFQ on QH's understanding of the application of ED25%".
I note Mr Coonan's 23 January 2012 comment:- "Despite our best efforts, and notwithstanding the development of the document of 13 December 2011, it would appear that the definition of a emergency department for the purposes of this payment remains deficient. The possible devaluing of a payment that recognises the commitment of and demands placed on trained SMOs within an ED is of particular concern to QH. In the circumstances, QH proposes that further discussions occur to arrive at a more robust definition of an Emergency Department for the purposes of properly applying the ED 25% payment."
You may be aware that the allowance had previously been paid at Kingaroy and was withdrawn when the facility became part of our HHS.
Whilst we verbally confirmed that they were ineligible the doctors have requested a written response.
I have been unable to find one document that provides a definitive answer but I believe the following elements need to be in place:
…
-five of the doctors received the allowance via temporary contracts;
-five of the doctors did not receive the allowance when they subsequently accepted a permanent appointment at the Beaudesert Hospital; and
-another doctor's subsequent engagements (which were not particularised as temporary or permanent) did not include the allowance; and
The text of the disputed sub-clauses
The Department's submissions
-there is no provision for a part-payment or pro rata payment;
-there is no provision for part-hours; and
-there is no provision for fractional entitlements;[268] and
The Union's submissions
Where an SMO
Works in an Emergency Department
Under a rostering arrangement in accordance with clause 11.4 (or clause 4.3)
11.3 Hours of Work – Senior Medical Officers
11.3.1 The ordinary hours of work for SMOs are 80 hours per fortnight, or for a part time SMO the hours the employee is engaged to work in accordance with Clause 8.5 (a) of the Award.
11.3.2 Unless otherwise provided in this clause ordinary hours will be worked between 07:00 and 18:00 Monday to Friday.
11.3.3 For SMOs who have agreed to work an extended hours roster in accordance with Clause 11.5 ordinary hours will be worked at times and on days as dictated by the employee's extended hours roster.
11.3.4 Causes 11.3, 11.5, 11.13, 11.15, 11.16, 11.17, 11.18.3, 11.18.4, 11.18.5, 11.8.6, 11.20, 11.25, 11.26, and 11.32 do not apply to MSPP/MOPPs. To be clear clauses from MOCA5 that do not apply to MSPP/MOPPs include the following:
11.3.5 Ordinary rate means the wage rate outlined in Schedule 1.
11.3.6 The ordinary hours of work may be performed on one of the following bases, most suitable to the particular work location, after consultation with, and giving reasonable consideration to, the circumstances of the employee concerned:
11.3.7 The employer has the right to make the final determination as to the method (outlined in this Clause 11.3.7) by which the 80 hour fortnight is implemented or worked from time to time. The employer may refuse the working of a shift of 10 or more Ordinary Hours if it is concerned that it may adversely affect service delivery, such as a reduction of clinics or result in additional overtime.
11.3.8 The method of working the 80 hour fortnight may be altered, from time to time, upon the employer giving 14 days' notice or a lesser period as agreed with employee/s concerned.
…
11.4 Extended Span of Ordinary Hours to Meet Clinical Need – Senior Medical Officers
11.4.1 Shifts that are rostered outside the span of ordinary hours as prescribed at Clause 11.3.2 of the Agreement, in order to meet clinical need, may be proposed by the employer or employees who may be affected by any such change. A consultation process that acknowledges the commitment of SMOs to patient care and takes into consideration any suggested alternatives to the proposed roster change will be undertaken.
11.4.2 The consultation process will include information on:
11.4.3 The parties are committed to the principles of best practice rostering and agree to develop best practice guidelines based on evidence that will be used in implementing these rostering arrangements. Rosters that prescribe shifts between 23:00 and 07:00 are considered to be exceptional and must be agreed to by a participating SMO and will require particular attention to fatigue management.
11.4.4 After the consultation process and where an extended hours roster is agreed, the implementation process will require:
11.4.5 Where significant change is proposed to rosters or staffing arrangements, further consultation will be required consistent with the process at Clause 11.4.2 before a new roster can be implemented.
11.4.6 An employee may rescind their agreement to participate in the roster outside the span of ordinary hours:
11.4.7 The parties agree that nothing in Clause 11.4 should be construed as compelling an individual to work ordinary hours outside the span of ordinary hours at Clause 11.3.2.
-concerns rostering in order to meet clinical need; and
-provides that these shifts can be proposed by the employer or employees, and for those arrangements to apply sub-clause 11.4.1 provides that there will be a consultation process that involves provision of details of the matters referred to in sub-cl 11.4.2;[277]
-is properly credentialled to perform work within their scope, namely, an SMO who has the capacity or the skills and experience to work in the Emergency Department; and
-is one who is willing to enter into an arrangement which involves a commitment to be working outside ordinary hours.[282]
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
…
The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself.[295]
The Department's submissions in reply
The purpose of the disputed sub-clauses
The sub-headings to the disputed sub-clauses
The General Attraction and Retention allowance and the Regional and Rural attraction allowance
4.14.1 General Attraction and Retention allowance
11.24.1 General Attraction and Retention allowance:
11.24.1.1 For Specialist medical practitioners (excluding specialist general practitioners) an allowance of 50% of base salary;
11.24.1.2 For SMOs, other than those in Clause 11.24.1.1 an allowance of 35% of base salary;
11.24.1.3 Except that the sum of percentages in Clause 11.24.1.1 and or 11.24.1.2 will be reduced by 25% of base salary for those who:
a. nominate to participate in the granted private practice revenue retention arrangement
b. fail to complete the granted private practice agreement template within three months of certification of this Agreement or upon commencement of employment (whichever is later); or
c. have their granted private practice arrangement terminated in accordance with the termination provisions of the granted private practice agreement.
The ED 25 allowance
It follows that the headings to sections of an award are to be treated as part of the Award. Without rehearsing in detail the use which may legitimately be made of a heading, it is clear that a heading may be taken into consideration in determining the meaning of the provision where that provision is ambiguous and in determining the scope of a provision, see in Re Commercial Bank of Australia Limited [1893] VicLawRp 56; (1893) 19 VLR 333 at 375 per Holroyd J (with whom Hodges and Hood JJ agreed) and Silk Bros Pty Ltd v. State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1 at 16 per Latham CJ.[310]
The other words used in the disputed sub-clauses
Where an SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3 of MOCA 4 and Clause 11.4 of MOCA 5
The '… medical officer's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend'
The construction contended for by the Department is correct
The construction of the disputed sub-clauses
Should the Commission make a declaration?
The Department's submissions
The Union's submissions
-declaratory relief is directed towards resolving a dispute or quelling a controversy based on a concrete and established or agreed situation;
-the onus is on an applicant to establish the ambit of the rights to be declared and prove all facts necessary; and
-the precise terms of the declaration assume particular significance and that the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought.
-where the parties to the contracts and the parties to the certified agreements were different; and
-in circumstances where there is no evidence about the identity of the SMOs who would be affected by the declaration and the resultant effects on their rights;[320] and
A declaration should be made
Should the declaration be made in the form sought by the Department in its application?
The Department's submissions
The Union's submissions
Conclusion
Orders
[1] [2020] QIRC 086.
[2] [2021] QIRC 059.
[3] The Department's statement of facts and contentions filed on 6 September 2021 ('the Department's contentions'), para. 1(a) and the Union's statement of facts and contentions filed on 7 September 2021 ('the Union's contentions'), para. 3.
[4] The Department's contentions, para. 5.
[5] The Union's contentions, para. 4.
[6] The Department's contentions, para. 12.
[7] The Department's contentions, para. 13.
[8] The Department's contentions, para. 14.
[9] The Department's contentions, para. 15.
[10] The Department's contentions, para. 16.
[11] The Department's contentions, para. 17.
[12] The Department's contentions, para. 18.
[13] The Department's contentions, para. 21.
[14] The Department's contentions, para. 24.
[15] The Department's contentions, paras. 26-37.
[16] The Department's contentions, para. 38.
[17] The Union's contentions, para. 9.
[18] The Union's contentions, paras. 10-11.
[19] The Union's contentions, para. 12.
[20] The Union's contentions, para. 12.
[21] The Union's contentions, para. 15.
[22] The Union's contentions, para. 16.
[23] The Union's contentions, para. 17.
[24] The Union's contentions, para. 18.
[25] The Union's contentions, para. 18.
[26] The Union's contentions, para. 18.
[27] The Union's contentions, para. 19.
[28] The Union's contentions, para. 20.
[29] The Union's contentions, paras. 21-22.
[30] The Union's contentions, paras. 23-24.
[31] The Union's contentions, para. 28.
[32] The Union's contentions, para. 29.
[33] The Union's contentions, paras. 30-36.
[34] Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 ('MOCA 4'), cl 1.2 and Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 ('MOCA 5'), cl 1.2.
[35] These acronyms stand for, respectively, 'Medical Superintendent with Private Practice' and 'Medical Officer with Private Practice', Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015, sub-cl 2.3.1.
[36] Emphasis added.
[37] Again, these acronyms stand for, respectively, 'Medical Superintendent with Private Practice' and 'Medical Officer with Private Practice', Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 2.6.
[38] Emphasis added.
[39] T 3-5, l 3 to T 3-6, l 28 (30 March 2022). The principal authorities cited were Australian Manufacturing Workers' Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 ('Berri'), [114], Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 ('Codelfa') 352 (Mason J) and Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 ('Mainteck'), [72]-[85] (Lemming JA, Ward JA at [1] and Emmett JA at [13] agreeing).
[40] T 3-5, l 3 to T 3-6, l 28.
[41] [1993] FCA 72; (1993) 40 FCR 511 ('Hercus').
[42] Hercus (n 41) 517-518.
[43] T 3-7, ll 27-30.
[44] T 3-7, ll 40-44.
[45] Berri (n 39).
[46] Citations omitted. T 3-30, l 24 to T 3-31, l 30.
[47] T 3-31, ll 32-42.
[48] Industrial Relations Act 1999 s 141.
[49] [2014] FCAFC 84; (2014) 222 FCR 152.
[50] Jessup, Tracey and Perram JJ.
[51] Emphasis added.
[52] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 ('Bianco Walling'), [60] (Flick, White and Perry JJ).
[53] Ibid, [66].
[54] Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138, [59] (Bromberg J).
[55] [2020] FCAFC 123; (2020) 278 FCR 566 ('Ridd'). These principles were not called into question in the appeal of this decision to the High Court in Ridd v James Cook University [2021] HCA 32; (2021) 310 IR 109.
[56] The summary given by Griffiths and SC Derrington JJ in Ridd was cited with approval in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225, [249] (Jagot J) and in Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223, [31] (McElwaine J).
[57] Berri (n 39), [114], item 7 (Justice Ross, President, Deputy President Gooley and Commissioner Hunt) and Bianco Walling (n 52), [67].
[58] Bianco Walling (n 52), [70].
[59] Berri (n 39).
[60] Footnotes omitted.
[61] Berri (n 39), [114].
[62] Bianco Walling (n 52), [59]. The Court stated, at [60], that the appeal in that case did not provide the occasion for a review of the principles concerning the construction of enterprise agreements stated in Berri.
[63] [2022] FCA 272, [67].
[64] T 3-11, l 11 to T 3-13, l 25.
[65] T 3-28, ll 35-39.
[66] T 3-29, l 42 to T 3-30, l 15.
[67] Exhibit 10.
[68] T 2-10, l 34 to T 2-11, l 24 (19 August 2021).
[69] T 2-3, ll 22-27 and T 3-2, ll 7-19.
[70] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, [53] (French J).
[71] Hercus (n 41).
[72] Ibid, 518.
[73] Ibid.
[74] [1998] FCA 249; (1998) 82 FCR 175 ('AMACSU').
[75] Ibid, 178.
[76] Ibid, 179-180.
[77] AMACSU (n 74), 181-182.
[78] Ibid, 183.
[79] Ibid, 183-185.
[80] Ibid, 185.
[81] Ibid, 185.
[82] The authorities cited for the seven relevant principles applicable to the interpretation of an enterprise agreement, referred to by Griffiths and SC Derrington JJ in Ridd (n 55) at [65], included authorities concerned with the construction of awards, namely, City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53], Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 ('Kucks') at 184 and Hercus (n 41) at 518.
[83] [2022] FCAFC 50; (2022) 314 IR 231.
[84] T 3-8, l 29 to T 3-9, l 6.
[85] Dr Endean gave evidence on behalf of the Union.
[86] T 3-9, l 27 to T 3-10, l 34.
[87] T 3-10, l 36 to T 3-11, l 2.
[88] Exhibit 8, para. 4 and exhibit 'TH-1', pages 271 and 279-287 of the Court Book.
[89] Exhibit 6, para. 6, page 516 of the Court Book.
[90] T 3-11, ll 14-20.
[91] Exhibit 16, para. 4, pages 596-597 of the Court Book.
[92] Exhibit 16, para. 10, page 599 of the Court Book.
[93] Exhibit 19, paras. 51-52, page 1241 of the Court Book and T 2-51, ll 1-28.
[94] T 3-11, ll 24-28.
[95] T 3-11, ll 31-33.
[96] T 3-11, ll 34-35.
[97] T 3-11, ll 36-40.
[98] Hercus (n 41).
[99] T 3-12, ll 1-20.
[100] Who gave evidence on behalf of the Union.
[101] Who gave evidence on behalf of the Department.
[102] T 3-12, ll 22-30.
[103] [2003] FCA 520; (2003) 198 ALR 442, [34].
[104] T 3-12, ll 33-42.
[105] T 3-12, l 44 to T 3-13, l 34.
[106] T 2-35, l 18 to T 2-48, l 36.
[107] T 3-13, l 42 to T 3-14, l 14.
[108] T 3-15, l 45 to T 3-16, l 2.
[109] Exhibit 20, para. 5, page 1444 of the Court Book.
[110] T 3-16, ll 32-36.
[111] Exhibit 19, para. 50, page 1241 of the Court Book.
[112] T 1-78, ll 31-33.
[113] T 1-75, ll 27-30.
[114] T 3-17, ll 15-18.
[115] T 2-52, ll 29-36.
[116] T 3-17, l 37 to T 3-18, l 10.
[117] The Department's contentions, para. 24.
[118] T 3-42, ll 4-11.
[119] (1995) 49 NSWLR 315, 318-319 ('Watson').
[120] T 3-45, ll 1-12.
[121] T 3-45, ll 14-20.
[122] T 3-46, l 1 to T 3-51, l 20.
[123] T 3-51, ll 6-9.
[124] T 3-51, ll 14-16.
[125] T 3-51, l 45 to T 3-53, l 2.
[126] Mainteck (n 39), [75]-[81] (Lemming JA).
[127] T 3-64, ll 19-36.
[128] T 3-65, l 23 to T 3-66, l 27.
[129] T 3-67, l 45 to T 3-68, l 10.
[130] T 3-68, ll 20-22, T 3-69, ll 45-46 and T 3-70, ll 9-10.
[131] T 3-72, ll 1-24.
[132] T 3-71, ll 18-22.
[133] Exhibit 7, paras. 5-9, page 39 of the Court Book.
[134] Exhibit 7, para. 24, page 41 of the Court Book.
[135] Exhibit 7, para. 25, page 42 of the Court Book.
[136] Exhibit 7, para. 31, page 43 of the Court Book.
[137] Exhibit 7, para. 32, page 43 of the Court Book.
[138] Exhibit 7, paras. 42-54, pages 45-47 of the Court Book.
[139] The Union's Schedule of Objections, page 1499 of the Court Book.
[140] Hercus (n 41) 518.
[141] Exhibit 7, paras. 68-69, page 51 of the Court Book.
[142] Exhibit 7, exhibit 'SL-2', pages 62-63 of the Court Book. Emphasis added.
[143] The Union's Schedule of Objections, page 1501 of the Court Book.
[144] Hercus (n 41), 518.
[145] Exhibit 18, exhibit 'CE-3', pages 1318-1321 of the Court Book.
[146] T 1-53, l 5.
[147] Exhibit 9, para. 2.c., page 519 of the Court Book.
[148] Exhibit 9, para. 3, page 519 of the Court Book.
[149] Exhibit 9, para. 7, page 520 of the Court Book.
[150] Exhibit 9, para. 9, page 520 of the Court Book.
[151] The Union's Schedule of Objections, pages 1505-1506 of the Court Book, including citing Berri (n 39), [114], item 3, namely, that the common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.
[152] T 1-56, l 25 to T 1-57, l 2.
[153] Exhibit 18, paras. 16-17, page 1267 of the Court Book.
[154] Exhibit 18, para. 20, page 1267 of the Court Book.
[155] Exhibit 18, para. 19 and para. 26, pages 1267 and 1268 of the Court Book.
[156] Exhibit 18, paras. 32-36, page 1268-1269 of the Court Book and T 2-16, l 8 to T 2-26, l 9.
[157] Exhibit 18, para. 37, page 1269 of the Court Book.
[158] Exhibit 18, exhibit 'CE-10', page 1361 of the Court Book.
[159] Exhibit 18, para. 37, page 1269 of the Court Book.
[160] Exhibit 18, exhibit 'CE-5', page 1331 of the Court Book.
[161] Exhibit 18, para. 41 and exhibit 'CE-6', pages 1269 and 1334-1338 of the Court Book.
[162] T 2-16, l 8 to T 2-26, l 9.
[163] Exhibit 2, para. 7, page 118 of the Court Book.
[164] Exhibit 2, para. 8, page 118 of the Court Book.
[165] Exhibit 2, para. 11, page 118 of the Court Book.
[166] Exhibit 2, exhibit 'RB-6', pages 224-230 of the Court Book.
[167] The Union's Schedule of Objections, page 1495 of the Court Book.
[168] Exhibit 20, exhibit 'SR-8', pages 1447-1450 of the Court Book.
[169] Exhibit 2, para. 12, pages 118-119 of the Court Book.
[170] Exhibit 6, para. 6, page 516 of the Court Book. There was no objection by the Union to this material.
[171] Exhibit 8, para. 2, page 270 of the Court Book.
[172] Exhibit 8, para. 9, page 272 of the Court Book.
[173] Exhibit 8, para. 10, pages 272-273 of the Court Book.
[174] Exhibit 8, para. 11, page 273 of the Court Book.
[175] Exhibit 8, para. 11 and exhibit 'TH-2', page 306 of the Court Book.
[176] The Union's Schedule of Objections, pages 1491-1492 of the Court Book, citing Berri (n 39), [114], item 11.
[177] Exhibit 16, para. 4.b., pages 596-598 of the Court Book. There was no objection by the Union to this material.
[178] Entitled 'Attachment 3 - Total remuneration framework conditions for senior medical officers', pages 668‑681 of the Court Book.
[179] Exhibit 16, para. 4.b., page 597 of the Court Book and exhibit 'PB-4', pages 602-681 of the Court Book. There was no objection by the Union to this material.
[180] Exhibit 16, exhibit 'PB-4', page 668 of the Court Book.
[181] Exhibit 16, exhibit 'PB-4', page 668 of the Court Book.
[182] Exhibit 16, exhibit 'PB-4', page 679 of the Court Book. Emphasis added.
[183] Exhibit 16, exhibit 'PB-4', page 680 of the Court Book.
[184] Exhibit 10, pages 689-722.
[185] Exhibit 10, page 712.
[186] Exhibit 10, page 712.
[187] Exhibit 10, page 716.
[188] Exhibit 10, page 714.
[189] Exhibit 10, page 717. Emphasis added.
[190] Exhibit 6, paras. 3-4, page 515 of the Court Book.
[191] Exhibit 6, para. 5, page 515 of the Court Book.
[192] Exhibit 6, para. 6, page 516 of the Court Book.
[193] Exhibit 6, para. 7, page 516 of the Court Book.
[194] The Union's Schedule of Objections, pages 1502-1503 of the Court Book.
[195] Exhibit 8, para. 3, page 270 of the Court Book.
[196] Exhibit 8, para. 13, page 274 of the Court Book.
[197] Exhibit 8, para. 14, page 274 of the Court Book.
[198] MOCA 3 operated from 1 November 2012.
[199] Exhibit 8, para. 15, pages 274-275 of the Court Book.
[200] The Union's Schedule of Objections, pages 1492-1493 of the Court Book and Berri (n 39), [114], item 11, which is:
The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
[201] T 1-75, l 32 to T 1-77, l 38.
[202] T 1-81, ll 1-23.
[203] T 1-81, ll 25-30.
[204] Exhibit 19, paras. 49 and 52, page 1241 of the Court Book.
[205] T 1-82, l 36 to T 1-83, l 3.
[206] T 1-83, ll 24-40.
[207] Exhibit 19, para. 5.b), page 1236 of the Court Book.
[208] See the meeting minutes exhibited to Exhibit 19, being exhibits 'SR-1', 'SR-2', 'SR-3' and 'SR-4', pages 1243‑1252 of the Court Book.
[209] Exhibit 19, page 1241 of the Court Book.
[210] T 2-51, ll 1-4.
[211] T 2-51, ll 6-8.
[212] T 2-51, ll 16-18.
[213] This is the matter referred to in paragraphs [140]-[142] of these reasons, namely, that an SMO had to do 50%, or greater, weekend or evening shifts to be entitled to the ED 25 allowance.
[214] T 2-51, ll 22-28.
[215] T 2-52, ll 29-36.
[216] T 3-43, ll 17-18.
[217] T 2-52, ll 29-32.
[218] T 3-43, ll 20-24.
[219] Exhibit 2, exhibit 'RB-6', pages 226-228 of the Court Book.
[220] T 3-42, ll 33-38.
[221] T 3-43, ll 2-24.
[222] Exhibit 10, page 1011.
[223] Exhibit 10, page 1017.
[224] Referred to as 'the Australian Medical Association Queensland'.
[225] Exhibit 10, page 1092.
[226] Exhibit 8, exhibit 'TH-3', page 509 of the Court Book.
[227] Exhibit 8, exhibit 'TH-3', page 508 of the Court Book.
[228] Clause 3.3 of the Option E contracts provided that if the Department permanently closed the Emergency Department, then the SMO's entitlement to the Option E 25% allowance would continue for a further 26 consecutive weeks.
[229] Exhibit 10, pages 1112-1114.
[230] Exhibit 10, page 224.
[231] T 3-46, l 13.
[232] See e.g. Exhibit 3, exhibit 'AW-1', page 856 of the Court Book and Exhibit 10, page 261.
[233] Exhibit 10, pages 274 and 276.
[234] Exhibit 10, page 276.
[235] T 1-24, l 40 to T 1-27, l 25.
[236] This is a typographical mistake and should state 'Ms Kelaher.'
[237] T 1-26, ll 9-15.
[238] T 3-47, ll 7-12.
[239] Exhibit 10, pages 2372-2375.
[240] T 3-51, ll 6-17.
[241] Exhibit 10, page 2372.
[242] Exhibit 10, page 2375, para. (9).
[243] Exhibit 10, page 723.
[244] [2019] QIRC 071 ('Shipley').
[245] T 3-49, ll 22-26.
[246] Shipley (n 244).
[247] Exhibit 3, exhibit 'AW1', page 853 of the Court Book.
[248] Exhibit 3, exhibit 'AW1', page 856 of the Court Book.
[249] T 3-49, ll 41-43.
[250] Exhibit 3, exhibit 'AW1', page 856 of the Court Book.
[251] Exhibit 3, exhibit 'AW1', page 856 of the Court Book.
[252] See Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059, [70]-[71] (Deputy President Merrell, Industrial Commission Pidgeon and Industrial Commissioner Dwyer).
[253] Exhibit 10, page 261.
[254] T 1-35, l 9 to T 1-36, l 12.
[255] Ridd (n 55), [65](ii).
[256] Exhibit 10, pages 260-261.
[257] Exhibit 20, para. 10, page 1444 of the Court Book.
[258] T 2-47, ll 24-26.
[259] T 2-47, ll 26-32.
[260] Watson (n 119).
[261] T 3-18, ll 12-27.
[262] T 3-18, l 28 to T 3-20, l 34.
[263] T 3-20, ll 36-39.
[264] T 3-20, ll 39-45.
[265] See sub-cl 4.14.4 of MOCA 4 and sub-cl 11.24.3.2 of MOCA 5.
[266] T 3-21, l 5 to T 3-22, l 2.
[267] T 3-22, ll 4-31.
[268] T 3-23, l 46 to T 3-24, l 17.
[269] T 3-24, l 36 to T 3-26, l 36.
[270] T 3-32, ll 18-35.
[271] T 3-32, l 41 to T 3-33, l 2.
[272] There is no material difference with cl 4.3 as referred to in sub-cl 4.14.3 of MOCA 4.
[273] T 3-33, l 13 to T 3-38, l 14.
[274] T 3-33, ll 31-38.
[275] T 3-33, l 40 to T 3-34, l 11.
[276] T 3-34, ll 12-17.
[277] T 3-34, ll 19-33.
[278] T 3-34, ll 35-41.
[279] T 3-34, l 43 to T 3-35, l 3
[280] T 3-35, ll 1-6.
[281] T 3-35, ll 12-33.
[282] T 3-35, l 45 to T 3-36, l 18.
[283] T 3-36, ll 21-36.
[284] T 3-36, ll 36-42.
[285] T 3-36, l 42 to T 3-37, l 2.
[286] T 3-37, ll 5-41.
[287] T 3-37, l 45 to T 3-38, l 4.
[288] T 3-38, ll 9-14.
[289] T 3-38, ll 17-25.
[290] Berri (n 39), [114], item 9.
[291] Ibid, [114], item 2.
[292] Ibid, [114], item 3.
[293] T 3-39, ll 23-27.
[294] Codelfa (n 39).
[295] Codelfa (n 39), 352.
[296] Berri (n 39), [114], items 11 and 12.
[297] T 3-39, ll 41-44.
[298] T 3-58, l 42 to T 3-59, l 27.
[299] T 3-61, ll 18-47.
[300] T 3-62, ll 2-26.
[301] T 3-71, ll 15-18.
[302] T 3-71, ll 18-22.
[303] T 3-23, ll 33-36.
[304] T 3-56, ll 44-45.
[305] T 3-57, ll 1-34.
[306] Queensland Public Sector Union v Department of Corrective Services [2002] QIC 39; (2002) 170 QGIG 422 (' QPSU '), 423 (President Hall).
[307] See, e.g Australian Municipal, Administrative, Clerical and Services Union v Australian Tax Office [2013] FWCFB 4752; (2013) 234 IR 366, [29] (Watson Vice President, Deputy President Gostencnik and Commissioner Blair) and see, e.g Polan v Goulburn Valley Health [2016] FCA 440, [37], [40], [47] and [48] (Mortimer J).
[308] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 602 (Mason CJ, Deane, Dawson and Gaudron JJ) and 618 (McHugh J) and QPSU (n 306) 422, 423 (President Hall).
[309] QPSU (n 306).
[310] Ibid. Emphasis added.
[311] Macquarie Dictionary (7th ed, 2017), 'specialty' (def 4).
[312] T 3-53, l 33 to T 3-54, l 5.
[313] Kucks (n 82), 184.
[314] T 3-36, ll 21-41.
[315] T 3-72, l 38 to T 3-73, l 41.
[316] T 3-52, l 9 to T 3-53, l 31.
[317] Citing Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202 ('QNMU'), [47] (Martin J, President).
[318] [2020] QSC 54; (2020) 4 QR 31 ('Australian Institute for Progress').
[319] T 3-53, l 33 to T 3-54, l 47.
[320] T 3-55, l 37 to T 3-56, l 4.
[321] T 3-56, ll 24-32.
[322] Industrial Relations Act 2016 s 463(1).
[323] Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2021] QIRC 157, [14] (Deputy President Merrell).
[324] Australian Institute for Progress (n 318).
[325] Ibid, [34]-[36].
[326] Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 ('Blanch'), [6] (Young CJ).
[327] QNMU (n 317), [47] (Martin J, President).
[328] Any declaration made by the Commission, of course, excludes the SMOs who were successful in Shipley (n 244). This is a consequence of the undertaking made by the Department about those SMOs: see paragraphs 11‑12 of the Department's submissions filed on 20 December 2019 and T 1-87, l 15 to T 1-88, l 12 (10 September 2020).
[329] T 3-73, ll 33-40.
[330] Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87, [29] (Young JA, Beazley JA at [1] and Basten JA at [2] agreeing.
[331] T 3-63, l 14 to T 3-64, l 17.
[332] Which provides that the Commission may make a decision it considers appropriate, irrespective of the relief sought by a party.
[333] T 3-3, ll 10-16.
[334] T 3-53, l 33 to T 3-54, l 5.
[335] T 3-54, ll 7-13.
[336] Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377, [61] (Wheelahan J).
[337] T 3-63, l 27 to T 3-64, l 11.
