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- Navathe v State of Queensland (Queensland Health)[2024] QIRC 247
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Navathe v State of Queensland (Queensland Health)[2024] QIRC 247
Navathe v State of Queensland (Queensland Health)[2024] QIRC 247
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Navathe v State of Queensland (Queensland Health) [2024] QIRC 247 |
PARTIES: | Navathe, Pooshan (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | B/2024/83 |
PROCEEDING: | Application for an interim injunction |
DELIVERED ON: | 11 October 2024 |
MEMBER: | O'Neill IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – employment – industrial dispute – urgent application for an interim injunction to maintain the status quo and to restrain the introduction of a new roster – where the Respondent seeks to introduce a new roster for the Applicant from 14 October 2024 – where the Applicant raised a dispute – where the Applicant says the Respondent deviated from the status quo – consideration of clauses in the Medical Officers' (Queensland Health) Certified Agreement (No. 6) 2022 – consideration of the discretion to order an interim injunction under section 473(1)(a) of the Industrial Relations Act 2016 (Qld) – held prima facie case made out for breach of status quo obligation – balance of convenience favours the Applicant – application allowed and injunction ordered |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 262, s 473, s 474 |
CASES: | ABC v O'Neill (2006) 227 CLR 57 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134 Dalley & Ors v Kelsey & Ors [2018] ICQ 6 Elford v State of Queensland (State Library of Queensland) [2015] QIRC 176 Kucks v CSR Ltd (1996) 66 IR 182 Morgan v State of Queensland (Queensland Health) [2020] QIRC 184 Queensland Teachers Union of Employees v TAFE Queensland [2024] QIRC 159 |
Reasons for Decision
- [1]Professor Pooshan Navathe ('the Applicant') has filed an application for orders pursuant to s 473(1)(a) of the Industrial Relations Act 2016 ('the IR Act') to restrain his employer the State of Queensland (Queensland Health) ('the Respondent') from making changes to his work roster.
Relevant Background
- [2]The Applicant is a practising occupational physician and has a dual speciality in Occupational and Environmental Medicine and in Medical Leadership.
- [3]The Applicant has been employed as the Executive Director Medical Services at the Central Queensland Hospital and Health Service ('CQHHS') since approximately
16 June 2021. - [4]Shortly after his commencement in the Executive Director Medical Services role, the Applicant has been working a compressed roster with his working hours being 07:00 to 17:00 hours Tuesday to Friday.
- [5]The Applicant states that this arrangement resulted from a verbal agreement reached with the Chief Executive of CQHHS, Mr Steve Williamson at the time of his appointment in March 2021.[1]
- [6]This arrangement was put in place to enable the Applicant to undertake some clinical work in order to maintain his clinical competency.
- [7]Consistent with the verbal agreement the Applicant, thereafter, worked a four-day roster which enabled him to undertake clinical work every Monday.
- [8]The Applicant received correspondence from Ms Lisa Blackler, Health Service Chief Executive, dated 14 August 2024,[2] in which Ms Blackler noted that in line with clause 12.4.7 of the Medical Officers' (Queensland Health) Certified Agreement (No. 6) 2022 ('the Certified Agreement') she was considering amending the Applicant's work roster to one in which he would work 08:30 to 17:00 hours, Monday to Friday.
- [9]Ms Blackler noted in her correspondence that aligning the Applicant's rostered hours to a standard work week would ensure that his expertise and leadership were continuously accessible and aligned to the operational needs and strategic objectives of the Health Service.
- [10]The correspondence provided the Applicant with an opportunity to respond within 14 calendar days.
- [11]The Applicant duly provided correspondence to Ms Blackler dated 3 September 2024[3] in which he set out the history leading to the establishment of his current roster and the reasons why it was appropriate for his current roster to remain in place. In summary, the Applicant contended:
- To maintain competency in his specialty in Occupational and Environmental Medicine he needed to practice in order to maintain his registration.
- Specialist clinical work was only available during normal hours of business Monday to Friday.
- Undertaking the clinical work in addition to his leadership role was of benefit in enhancing his clinical credibility with medical staff, and through that improved engagement enabled significant benefits to his role as the EDMS of CQHHS.
- Despite undertaking the clinical work, he had continued to be placed (and complete) his Executive on call and SMO on call duties on Mondays over the last three years. He has also continued to provide EDMS support as required.
- He had worked for three plus years in accordance with the current arrangements and a change to the arrangements would have a significant detrimental effect on him in terms of being able to maintain his clinical skills and experience.
- [12]The Applicant also noted that clause 12.4.7 of the Certified Agreement did not give the Respondent the unilateral right to vary his workday and hours. He noted that clause 12.4.7 provides that the Service can refuse the working of ten-hour shifts if it was concerned that such an arrangement adversely affects service delivery such as a reduction of clinics or results in additional overtime. The Applicant contended that no concern had been expressed about adverse service delivery and accordingly he did not believe that clause 12.4.7 provided any ability for the Respondent to vary his working hours.
- [13]The correspondence dated 3 September 2024 concludes with the Applicant notifying Ms Blackler of a dispute in accordance with Clause 1.14 of the Certified Agreement. The Applicant further notes that clause 1.14.4 of the Certified Agreement requires the status quo to continue to exist while the dispute resolution procedure was being followed and that clause 1.14.3 states that the first step was for discussion to occur with a management representative.
- [14]By correspondence dated 23 September 2024[4] Ms Blackler responded to the Applicant noting that pursuant to clause 12.12.1 of the Certified Agreement, the Applicant was entitled to have a meal break of 30 minutes clear of work commitments. Ms Blackler determined that the Applicant's current roster arrangement was not compliant with the Certified Agreement because he was not having a meal break and that at a minimum a change to the Applicant's roster pattern to include a meal break was required.
- [15]The correspondence went on to provide:
I have given further consideration to your personal circumstances, including that you are a dual specialist in Occupational and Environmental Medicine and in Medical Leadership. I am aware that in order to maintain competency in your speciality, you must practice in it to maintain your registration and to meet your minimum continuing professional development points each year. I understand that specialist clinical work is only available during business hours, Monday to Friday.
Notwithstanding, you are employed as the EDMS for CQHHS, requiring a qualification in specialist medical administration. You are not employed, nor are you required to work as a specialist clinician. As such, while I acknowledge that a change to your current roster arrangement would have a significant detrimental effect on you in terms of being able to maintain your clinical skills and experience, I do not accept this as valid rationale as to why your roster should not be changed, noting that you are employed as the EDMS and your specialist clinician work undertaken on a Monday is private work, unrelated to your employment with CQHHS.
Further, I refute your claim that despite your absence from the workplace on a Monday that you have continued to provide support as required on the basis that within your response you submit that you undertake work in a private capacity on a Monday. It would be unrealistic to expect that you can be readily available to provide the necessary support required in your of EDMS, while still focusing on the responsibilities of your other role. Additionally, I have observed several instances where there have been delays in you responding to matters considered urgent.[5]
- [16]Ms Blackler went on to note that clause 12.4.8 of the Certified Agreement provides that the method of working the 80-hour fortnight may be altered, with 14-days' notice of the change. Ms Blackler concluded that it was reasonable and necessary to change the Applicant's roster to a standard working week and that effective from Monday 14 October 2024 the Applicant would be rostered to work Monday to Friday from 8:30 to 17:00 with a 30-minute unpaid meal break.
- [17]The Applicant filed a Form 10 – Notice of industrial dispute in the Queensland Industrial Relations Commission on 27 September 2024.
- [18]With the date for the commencement of the new roster looming on 14 October 2024, the Applicant lodged the present application seeking injunctive relief on 4 October 2024.
The Certified Agreement
- [19]Clause 1.14 of the Certified Agreement contains the dispute resolution procedure and relevantly provides:
1.14.1 The parties will use their best endeavours to co-operate in order to avoid disputes arising between the parties. The emphasis will be on finding a resolution at the earliest possible stage in the process.
1.14.2 The parties agree to co-operative and consistent approach to resolving industrial issues and disputes with a view to reducing disputation.
1.14.3 In the event of any disagreement between the parties as to the interpretation, application or implementation of this Agreement, the following procedures will be followed:
- When an issue is identified at the local level by an accredited and/or appointed union representative, the employee/s concerned or a management representative, an initial discussion should take place at this level. This process should take no longer than seven days.
- If the issue remains unresolved, it may be referred to the HHS management (or equivalent) for resolution. HHS management (or equivalent) will consult with the parties. The employee may exercise the right to consult and/or be represented by their Union representative during this process. This process should take no longer than 14 days.
- If the issue remains unresolved, it may be referred to the Medical Officers Certified Agreement (No.6) Oversight Committee (MOCA 6 Oversight Committee). The MOCA6 Oversight Committee will deal with the issue in a timely manner unless Clause 1.14.3(d) applies. Notwithstanding this, the parties reserve the right to refer the matter to the Queensland Industrial Relations Commission (QIRC) for resolution. If the MOCA6 Oversight Committee forms an agreed view on the resolution of the issue, this is the position that will be accepted and implemented by the parties.
- If the MOCA6 Oversight Committee considers that the issue falls outside the interpretation, application and implementation of this Agreement, or has whole of department implications, it may refer the issue to an appropriate body depending on the issue as agreed by the parties for consideration.
- Notwithstanding the above, if the issue remains unresolved, either party may refer the matter to the QIRC.
1.14.4 The status quo prior to the existence of the issue is to continue while the dispute resolution procedure is being followed, if maintenance of the status quo does not result in an unsafe environment.
1.14.5 When an employee (or their representative) elects to pursue a grievance under the Award, they are to refer to the Award for information regarding the procedure.
1.14.6 During the life of the agreement the parties will establish a MOCA subcommittee which will:
- review disputes to assess whether industrial obligations are being observed; and
- make recommendations to the Director-General.
1.14.7 Nothing contained in this procedure shall prevent unions or the Queensland Government from intervening in respect of matters in dispute, should such action be considered conducive to achieving resolution.
Relevant Statutory Provisions
- [20]The power of the Commission to make interim or interlocutory orders, grant injunctions, including interim injunctions is expressed in ss 262 and 473 of the IR Act.
- [21]The relevant provisions of ss 262(4)(b) and (c) are set out below:
262Action on Industrial Dispute
…
(4) Without limiting subsection (3), the commission may do 1 or more of the following—
...
- make orders, or give directions, of an interlocutory nature;
- exercise the commission's powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
…
- [22]Section 473 of the IR Act provides as follows:
473 Power to grant injunctions
(1) On application by a person under section 474, the commission may grant an injunction—
- to compel compliance with an industrial instrument, a permit or this Act; or
- to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
…
- In this section—
injunction includes an interim injunction.
…
Relevant Case Authorities
- [23]In Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads),[6] his Honour Vice President O'Connor considered an application for an injunction pursuant to s 473 of the IR Act. His Honour cited the test that was followed by his Honour, President Martin, as his Honour then was, in Dalley & Ors v Kelsey & Ors,[7] which followed their Honours, Gummow and Hayne JJ in ABC v O'Neill.[8] His Honour, the Vice President, went on to summarise the test as follows:[9]
- [17]In an interlocutory application of this nature, having regard to the facts, the Commission is required to consider:
- whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and
- whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the Respondent will suffer if an injunction were granted.
- [24]In Morgan v State of Queensland (Queensland Health),[10] his Honour Deputy President Merrell considered an application for an interim injunction to restrain further action being taken in a disciplinary process. His Honour made the following pertinent observations about the power in s 473 of the IR Act:
- [16]Having regard to the context in which the term 'injunction' is used in s 473(1) of the Act, there is no reason why 'injunction' in that section should be given a different meaning to the extent the Commission is empowered to grant an injunction by that section. The exercise of a power by the Commission pursuant of s 473(1) of the Act to grant an injunction is clearly an exercise of judicial power by the Commission because the Commission is enforcing compliance with the Act, a permit or an industrial instrument. Thus, by the grant of the injunction, the Commission is determining the rights and liabilities of persons, as opposed to the creation of rights and liabilities which is a legislative function.
- [17]The power in s 473 includes the power to grant an interim injunction. There is no definition of the phrase 'interim injunction' given in the dictionary of the Act. Generally, an interlocutory injunction is usually expressed to last until the final hearing or further order whereas an interim injunction lasts until a named date or further order. However, having regard to the context in which the phrase 'interim injunction' is used in s 473(10) of the Act, it does not seem to me that the granting of an injunction on the basis that it is not final is limited to orders of the kind traditionally made as interim injunctions. It seems to me to be open to grant an injunction under s 473(1), until the final hearing of a substantive application, to compel compliance with an industrial instrument, a permit or the Act or to restrain or prevent a contravention, or continuation of a contravention, of an industrial instrument, a permit or this Act.[11]
(emphasis added, footnotes omitted)
- [25]In Queensland Teachers Union of Employees v TAFE Queensland,[12] Industrial Commissioner Pratt provided the following observations as to how the phrase "status quo" should be interpreted:
- [35]As to the meaning of "status quo", it is important to also note that when interpretating industrial instruments such as awards or certified agreements, a narrow or pedantic approach should be avoided. It should be borne in mind that the drafters of such instruments were likely of a practical bent of mind and more concerned with expressing an intention in ways likely to be understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[13]
Issue
- [26]The issues that fall for determination in the present application are whether:
- The Applicant has a prima facie case, that is, there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and
- Whether the balance of convenience favours the granting of the injunctive relief sought.
Consideration
Prima facie case
- [27]In the Applicant's submissions,[14] the Applicant records the grounds for the injunction being that the Applicant is a party to an industrial dispute in accordance with s 474(1)(a) of the IR Act by virtue of him filing the Notice of Industrial Dispute on 27 September 2024.
- [28]The Applicant submits that the Respondent's breach of the Certified Agreement is a continuing or anticipated breach on the basis that:
- The Respondent was made aware by virtue of correspondence sent by the Applicant on 4 September 2024[15] that in accordance with clause 1.14.4 of the Certified Agreement that while the parties are in dispute about the proposed change to the Applicant's roster that the status quo must remain; and
- Despite the Applicant's correspondence dated 4 September 2024,[16] the Respondent wrote on 23 September 2024[17] to the Applicant in which:
- There was no attempt to organise a meeting between the parties pursuant to clause 1.14.3 of the Certified Agreement;
- The Applicant's working days and hours would be changed, and this would come into effect on 14 October 2024; and
- The Respondent provided no response to the Applicant raising the status quo provision contained in clause 1.14.4 of the Certified Agreement.
- [29]As a consequence, the Applicant submits that the Respondent has demonstrated a failure to comply with the Certified Agreement and further the Applicant has provided evidence which demonstrates a prima facie case.
- [30]Pursuant to a directions order made on 9 October 2024, the Respondent filed submissions in response to the application on 10 October 2024.
- [31]In that submission, the Respondent makes the following appropriate concessions:
- The Respondent concedes that due to some confusion around the interpretation and application of Clause 1.14 relating to the specifics of this matter and the decision- making process, the below points:
- The status quo in relation to the Applicant will remain in place until such time as the dispute resolution process is completed; and
- Commencing on the 21 October 2024, the Respondent will be in contact with the Applicant to arrange the initial discussion as per Clause 1.14.3 (a).
- The Respondent does not oppose the injunction application and as always, the Respondent is committed to supporting and ensuring compliance with the relevant industrial instruments.
- Further, the Respondent is committed to working through the dispute resolution process as outlined in MOCA6 and notes the Respondent can refer the matter to the QIRC.[18]
- [32]Despite those concessions, because the application involves the exercise of a judicial discretion by the Commission,[19] it is still necessary for the Commission to be satisfied that the Applicant has established an appropriate basis for the granting of injunctive relief.
- [33]I am satisfied that the Respondent was placed on notice by the correspondence from the Applicant dated 4 September 2024 that there was an industrial dispute. Further the Applicant by his invocation of clauses 1.14.3 and 1.14.4 of the Certified Agreement clearly placed the Respondent on notice of his request that:
- As the first step in the dispute resolution procedure that there be a discussion with a management representative; and
- The status quo be maintained pending the completion of the dispute resolution process.
- [34]The Respondent did not arrange a discussion with a management representative as requested by the Applicant. Instead sent the Applicant the correspondence from Ms Blackler dated 24 September 2024,[20] notifying of the Respondent's intent to proceed with the introduction of a new roster for the Applicant from 14 October 2024.
- [35]By taking this action I am satisfied that this evidences a failure to comply with the Certified Agreement by the Respondent.
- [36]In Elford v State of Queensland (State Library of Queensland),[21] Industrial Commissioner Neate considered an application for an injunction from an employee seeking to restrain the respondent from proceeding with a disciplinary process until a grievance process had been dealt with.
- [37]Industrial Commissioner Neate was satisfied in that matter that the jurisdiction of the Commission to grant an injunction was enlivened in circumstances where the Respondent had determined to not accept the Applicant's letter as a grievance and that as a consequence the Respondent considered that there was no requirement to maintain the status quo. The Commission was satisfied that this was a basis for finding that there was a threatened contravention of the Award.[22]
- [38]I am satisfied that the same conclusion is appropriate regarding the current application, and I am satisfied that the Applicant has established a prima facie case that there has been a failure to comply with the Certified Agreement by the Respondent.
Balance of Convenience
- [39]In the Applicant's signed statement dated 3 October 2024 the Applicant contends that if he is forced to work the proposed roster from Monday, 14 October 2024, his private practice will be impacted and consequently:
- Patients who have been booked in to see him over the next few weeks will be adversely impacted because the waiting list for seeing an occupational physician is in the months;
- The Applicant's ability to maintain his professional registration will be impacted because he needs to practice in his specialty in order to maintain his competency;
- Specialist clinical work is only available between the hours of business on Monday to Friday which restricts his ability to practice on those days; and
- His current leadership role with the Respondent will be impacted because doing clinical work in addition to his leadership role is of benefit in enhancing his clinical credibility with the medical staff and through that, improved engagement enables significant benefits to his role as an Executive Director of the Respondent.
- [40]The Respondent has not provided any evidence or submissions in support of a contention that the Respondent will be prejudiced if the Applicant's new roster does not commence on Monday, 14 October 2024.
- [41]To the contrary, the Respondent's submissions filed on 10 October 2024 confirms that the Respondent does not oppose the injunction application and is now committed to working through the dispute resolution process outlined in the Certified Agreement.
- [42]In light of this, I am satisfied that the balance of convenience favours the granting of the injunctive relief sought by the Applicant.
- [43]It therefore follows that the application should be allowed.
Orders
- The application is allowed.
- The Respondent is hereby restrained from taking any further steps with respect to the action against the Applicant initiated by it through the letter of 14 August 2024 under the hand of Lisa Blackler, Health Service Chief Executive of the Respondent until the grievance raised by the Applicant in his letter of 4 September 2024 pursuant to clause 1.14.1 of the Medical Officers' (Queensland Health) Certified Agreement (No.6) 2022 is finalised.
Footnotes
[1] Form 2 – General Application to the Queensland Industrial Relations Commission filed on 4 October 2024, Attachment 'PN-2' (correspondence from the Applicant dated 3 September 2024) ('Attachment 'PN-2').
[2] Form 2 – General Application to the Queensland Industrial Relations Commission filed on 4 October 2024, Attachment 'PN-1'.
[3] Attachment 'PN-2' (n 1).
[4] Form 2 – General Application to the Queensland Industrial Relations Commission filed on 4 October 2024, Attachment 'PN-3' ('Attachment 'PN-3'').
[5] Ibid.
[6] [2022] QIRC 134, [16] ('DTMR').
[7] [2018] ICQ 6, [27].
[8] (2006) 227 CLR 57, [65].
[9] DTMR (n 6) [17].
[10] [2020] QIRC 184.
[11] Ibid, at [16]–[17].
[12] [2024] QIRC 159.
[13] Kucks v CSR Ltd (1996) 66 IR 182 at 184, cited and followed by Kirby J in Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96].
[14] Form 2 – General Application to the Queensland Industrial Relations Commission filed on 4 October 2024, Schedule 1.
[15] Attachment 'PN-2' (n 1).
[16] Ibid.
[17] Attachment 'PN-3' (n 4).
[18] Respondent's written submissions filed 10 October 2024, [8]-[10].
[19] Morgan v State of Queensland (Queensland Health) [2020] QIRC 184 at [16] (Merrell DP).
[20] Attachment 'PN-3' (n 4).
[21] [2015] QIRC 176.
[22] Elford v State of Queensland (State Library of Queensland) [2015] QIRC 176 at [68](i) and [69] (Neate IC).