Australian Salaried Medical Officers' Federation (New South Wales) v State of New South Wales - [2025] NSWIC 9

Industrial Court

New South Wales

Medium Neutral Citation: Australian Salaried Medical Officers’ Federation (New South Wales) v State of New South Wales [2025] NSWIC 9
Hearing dates: 26 February 2025
Date of orders: 22 August 2025
Decision date: 22 August 2025
Before: Kite AJ
Decision:
I make the following orders:
(1) Leave to amend refused.
(2) Application dismissed.

Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – Breach – Remuneration – Public Sector – Health Professionals – Recruitment and hiring – Remuneration and salaries

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 151(1)
Health Practitioner Regulation National Law (NSW) 2009 (NSW), s 3
Health Services Act 1997 (NSW), ss 115(1), 116
Industrial Relations Act 1996 (NSW), ss 8, 355C(1), 357, 358(1), 372(1), 376, 403
Interpretation Act 1987 (NSW), s 3
Public Sector Management Act 1994 (WA), s 64

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
Civil Services Association of Western Australia Incorporated v Director-General, the Department of Justice [2019] WAIRC 817
Geo A Bond & Co Ltd(in liq) v McKenzie [1929] AR (NSW) 498
George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498
Health Services Union o/b Mr Tony Thomas v Health Secretary in respect of HealthShare NSW [2025] NSWIRComm 1065
In re Goodwin (1986) Tas R 6
K-Generation Pty. Limited v Liquor Licensing Court (2009) 237 CLR 501
Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170
New South Wales v Stockwell [2017] NSWCA 30
Public Service Association and Professional Officers Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 87 NSWLR 41, [2014] NSWIRComm 23
Queensland v JL Holdings Pty Ltd. (1997) 189 CLR 146
Workpac Pty Ltd v Rossato (2021) 271 CLR 456

Texts Cited:
Health Industry Status of Employment (State) Award
Health Industry Status of Employment (State) Award 2018
Health Industry Status of Employment (State) Award 2019
Health Industry Status of Employment (State) Award 2021
Health Industry Status of Employment (State) Award 2022
Health Industry Status of Employment (State) Award 2023
Public Hospital Medical Officers Award 2016
Public Hospital Medical Officers (State) Award 2017
Public Hospital Medical Officers (State) Award 2019
Public Hospital Medical Officers (State) Award 2021
Public Hospital Medical Officers (State) Award 2022
Public Hospital Medical Officers (State) Award 2023

Category: Principal judgment
Parties: Australian Salaried Medical Officers’ Federation (New South Wales) (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
T Dixon / R Kumar (Applicant)
O Jones / C Beshara (Respondent)
Solicitors:
Hall Payne Lawyers (Applicant)
Minter Ellison (Respondent)

File Number(s): 2024/00045113

JUDGMENT

Introduction

The applicant^[1] is an industrial organisation of employees registered under the Industrial Relations Act 1996 (NSW) (IR Act). It commenced these proceedings on behalf of its members seeking declarations and orders as to the respondent’s alleged failure to comply with the terms of the Health Industry Status of Employment (State) Award 2012 (the Status Award) and the Public Hospitals (Medical Officers) (State) Award (the Medical Officers Award), each as varied from time to time in the relevant period. The fundamental question at the heart of the proceedings turns on the proper construction of clause 1.4 of the Status Award.
1. As the matter commenced in the Supreme Court the parties are referred to in the pleadings as plaintiff and defendant. The practice in the Industrial Court is to refer to the parties as applicant and respondent. These terms are therefore used throughout this decision.
The claim is directed at the conditions of Doctors in Training (DiTs) about whom more is said in [9] below. The proceedings are representative in that the applicant has nominated four medical officers: Doctors Andrew Sanderson; Anna Wells; Benjamin Middleton; and Serge Geara, referred to in the originating process as the “Specified Doctors”, who were employed as DiTs in the period between February 2018 until approximately the end of November 2022. Their circumstances in that period are considered to be typical of DiTs covered by the Medical Officers Award.

Procedural History

The proceedings were commenced by statement of claim filed 31 January 2024 in the Supreme Court of NSW. That Court made procedural directions and orders for discovery during the first half of 2024. On 6 September 2024 the applicant filed a notice of motion seeking the transfer of the proceedings to this Court; the affidavit supporting the motion indicated the defendant agreed to the transfer. Walton J approved the transfer on 9 September 2024.
At the time of transfer the evidence in chief of both parties had been filed. Further directions were made by the President, Taylor J, on 24 September 2024, including that:

the matter was to be listed for conciliation;

the applicant was to file and serve particulars of loss and damage by 11 October 2024;

the applicant was to file and serve a document setting out the agreed facts and a further document setting out the issues of law and fact in dispute by 4 pm on 1 November 2024; and

the applicant and respondent were to file and serve written submissions and a schedule of objections 28 days and 14 days respectively prior to the hearing.

The conciliation before Commissioner McDonald on 5 November 2024 was ultimately unsuccessful. This matter then proceeded to what was expected to be a hearing over three days commencing on 26 February 2025.
The Statement of Agreed Facts is annexed as Annexure A (632 KB, pdf).
The Statement of Issues of Fact and Law is annexed as Annexure B (399 KB, pdf).

The Parties

The applicant

The applicant is an industrial organisation registered under Ch 5 Pt 3 of the IR Act. It is entitled to enrol and represent the industrial interests of salaried medical practitioners working in public and non-government health systems in NSW. More detailed information about the applicant is contained in paragraph one of Annexure A.
One group of members represented by the applicant is the group of interns, residents and registrars working in the public health system in NSW. This group is referred to as DiTs or Junior Medical Officers (JMOs).
The applicant obtained eligibility to cover DiTs on 22 November 2012. Prior to that time the Health Services Union NSW (HSU) had exclusive coverage of DiTs. The HSU continues to have coverage of this group of employees.

The respondent

The public health system in NSW is established and regulated under the Health ServicesAct1997 (NSW). Section 6 of the Health Services Act provides that the public health system consists of: all local health districts (LHDs);^[2] all statutory health corporations;^[3] the affiliated health organisations in respect of their recognised establishments and recognised services;^[4] and the Health Secretary in respect of the provision of ambulance services and other specified services.^[5]
2. Health Services Act s 8.
3. Health Services Act s 11.
4. Health Services Act s 13.
5. Health Services Act Ch 5A, Ch 10 Pt 1A.
The staff of the public health system are employed in the NSW Health Service^[6] by the respondent pursuant to s 116 of the Health Services Act. Subject to certain exceptions relating to senior executive staff,^[7] the employer functions of the respondent are exercised on behalf of the respondent by the Secretary of the Ministry of Health (the Health Secretary).^[8] Additional information about the respondent is contained in paragraph two of Annexure A.
6. Health Services Act s 115.
7. Health Services Act s 116(3), (3A)–(3D).
8. Health Services Act s 116(3), Dictionary.

The Issues

As will be apparent from the Statement of Issues the overarching issue is whether the Specified Doctors were employed as “temporary employees” pursuant to the Status Award. If the answer to that question is yes, are the Specified Doctors entitled to an allowance of 10% for the first 13 weeks of each contract period?
The second issue identified in the Statement of Issues is whether the respondent offered fixed term contracts “in preference to” ongoing contracts?
A third issue was identified in the applicants Submissions in Reply filed on 21 February 2025. Attached to those submissions was a draft Amended Statement of Claim. The amendment sought to add a claim for a civil penalty in respect of an alleged failure to classify properly the Specified Doctors in breach of clause 2.2 of the Status Award. The amendment was opposed.
There are, plainly, as identified in the Statement of Issues, several sub-issues which may arise depending upon the answers to the main questions.

The Relief Claimed

The applicant claimed:

Declarations that the respondent breached various Status Awards by failing to pay the 10% loading required by cl 3.2 of the Status Award.

Declarations that Doctors Geara and Wells are permanent employees as defined in cl 1.5 of the Status Award.

Orders for the imposition of civil penalties in respect of the alleged breaches.

Orders for the penalties to be paid to the Industrial Registrar for payment to the applicant.

Orders for the amounts not paid to the Specified Doctors arising from the failure to pay the 10% loading to be paid to the applicant together with interest.

Costs.

The Evidence

The applicant, in chief, read the affidavits of:

Andrew Sanderson, Consultant Radiologist (subject to objection as to the relevance of paragraphs 31 and 52);

Benjamin Middleton, Palliative Care and General Medicine Specialist (subject to objection as to the relevance of paragraphs 71-73);

Serge Geara, Motor Neurone Disease Fellow and Neurodegenerative Fellow (subject to objection as to the relevance of paragraphs 22-25, 41-43, 68, 69-71);

Anna Wells, Paediatric Physician Trainee (subject to objection as to the relevance of paragraphs 56-58); and

Andrew Holland, Executive Director of the applicant (subject to objection as to the relevance of paragraphs 36 (third sentence), 45, 60-72, 79 (final sentence), 85 (final sentence), 92-94 and 95 (second sentence).

In reply the applicant read the affidavits of:

Abdul-Hamid Sabih, Advanced Trainee in Addiction Medicine (subject to objection as to the relevance of paragraphs 12, 22 and 28); and

Sarah McCredie, Trainee in Obstetrics and Gynaecology (subject to objection as to the relevance of paragraphs 9, and the second sentence in paragraphs 15, 18 and 26).

The defendant read the affidavits of:

Elizabeth Mullins, Executive Director of Medical Services for Southern NSW Local Health District;

Andrew Patrick David Henderson, Network Director of Physician Training, Westmead Network;

Daniel Gialouris, Manager of the Medical Training and Administration Unit at Royal Prince Alfred Hospital;

Jaime Frances Berry, Network Manager (Co-lead) – JMO Services, Sydney Children's Hospitals Network;

Jeanette Chadban, Operations Manager for Medical Administration at Maitland Hospital;

Justine Harris, Chief Medical Workforce Advisor within the Workforce Planning and Talent Development Branch of NSW Health;

Nicholas Richards, Manager of Workforce Intelligence for NSW Health;

Nigel Peter Wolfe, Head of the Neurology Department, Blacktown Hospital and Mount Druitt Hospital;

Preeti Saraswati, Project Officer for Palliative Care, Western Sydney Local Health District; and

Sandhya Limaye, Staff Specialist, Department of Immunology, and Director of Wellbeing at Concord Hospital.

In reply, the defendant read the further affidavit of Justine Harris.
All affidavits, including the documents annexed or exhibited to them, were admitted into evidence subject to the objections notified in accordance with the Directions made by the President. It was agreed by the parties that the evidence subject to objection should be attributed such weight as considered appropriate by the Court.^[9] None of the witnesses were required for cross-examination.
9. Tcpt, 26 February 2025, p 2 (33 -35).
The applicant took objection, on the basis of relevance, to all the witness evidence led by the respondent except for that of Nicholas Richards. The essence of the objection was identified in the submissions of Mr Dixon for the applicant. He submitted:^[10]

“Your Honour will see that the bulk of the objections, coming from the applicant at least, are to this effect: the applicant’s evidence explains why it considers it to be preferable or necessary at its highest to structure its employment contracts of a particular duration. In other words, fixed term, short term, ranging from a matter of months up to three years, because of the training requirements imposed on doctors in training by the various colleges. And the objections, of course, were, well, that may be so. It may be a convenient thing, but ultimately this case turns on the proper construction of the award, and if the award requires that doctors be offered permanent positions after ten weeks, then that’s what the Court should operate on, irrespective of what pragmatic advantages there might be in structuring contracts otherwise. That was essentially the debate from the applicant’s point of view.”
10. Ibid.(35 -47)

As will become apparent I regard the evidence as relevant. It provides the context of the industry, at least that part of it in which DiTs are employed, in which the Awards operate. The witnesses explain the details of the various institutions having input into the training programs undertaken by DiTs and the requirements of those programs. Some information of that kind is contained in the Statement of Agreed Facts at paragraphs 47- 49 and 51. The evidence supplements that information.
The objections taken by the respondent related to generalised statements about the uncertainty of fixed term as opposed to ongoing employment. This had various impacts such as difficulty making life decisions, such as purchasing a property, planning for a family, or refraining from complaining or forgoing claims to overtime out of a concern that the person may be identified as a problem employee and jeopardise future employment. Dr Wells also said she lacked a sense of community because of the need to move around and uncertainty about where work may take her. The evidence of the witnesses suggest that this last issue is related to the training programs rather than the status of employment.
To the extent it provides some industry context I will have regard to the specified doctor’s evidence subject to objection, but I cannot accord it much weight because of its highly generalised nature.
The objections to the evidence of Dr McCredie and Dr Sabih are in a different category. Each objection relates to a statement that they were not paid the 10% allowance payable to temporary employees under the Status Award. They are not among the Specified Doctors and no claim is made on their behalf in these proceedings. The evidence is not relevant and I can give it no weight.

Awards

Although the claim alleges breaches of the Status Awards and the Medical Officers Awards there is a third award to be considered – the Health Professionals and Medical Salaries (State) Award (the Salaries Award) as varied from time to time. I will refer to the three awards as the Awards.
It was common ground that there was no material difference in the language or structure of the various iterations of the Awards. I will therefore use the singular when referring to one type of Award. This agreed fact suggests that there is little to be gained by reviewing the history of the Awards. The exception to that is in relation to the Status Award.
The first Status Award was made by consent by Hungerford J on 14 January 2000 on the application of the HSU. The application and transcript of the hearing was annexed to the affidavit of Mr Holland as part of Annexure AH 5. Several observations may be made about the application.
The first is that ASMOF, the applicant in these proceedings, was not a party to the proceedings. That is explained by Mr Holland’s evidence as referred to at [10] above.
The second is that the application was for the award to be made by consent.
The third is that the application was for an interim award. The reason advanced was that it was the intention to include the conditions prescribed in the “general award” when that award was made. The “general award” is not named although it may refer to the Health Employees Conditions of Employment (State) Award or the Public Hospitals (Professionals and Associated Staff) Conditions of Employment (State) Award both of which were identified in Schedule A to the application. The stated intention has not been achieved.
The next observation is that, as described by Mr Hull appearing for the Health and Research Employees Association (now the HSU):

“The award in its current form does represent an agreement that has been reached by the parties some weeks ago and in fact has been applied, as we understand it, on an administrative basis by the health industry.”

Hungerford J raised several issues with the parties. The first was the failure of the proposed award to identify to whom it applied. Mr Hull referred to the List of Awards in Schedule A. That prompted some observations from his Honour about drafting issues. He then invited submissions from Mr Blair, appearing for the Health Administration Corporation (HAC), seeking confirmation that the HAC consented to the application. Mr Blair, submitted:

“BLAIR: Yes your Honour. This has been a matter under negotiation for about seven months or so. It has been a fairly contentious issue. It was intended originally to be a Determination and late in the piece it was switched from being a determination under the relevant health legislation to an award of the Commission. That may account for some of the areas that your Honour is now bringing to our attention.”

Mr Blair confirmed that the HAC was committed to the spirit of the document and that it had been applied administratively. He then applied to return later in the day with a revised document “with the intent of making the award today.” Hungerford J stood the matter down to 2pm that day. The parties returned at that time with a revised document which included clauses as required by the IR Act and the Commission’s wage fixing principles. These circumstances have relevance to the principles applying to the construction of awards.

Medical Officers Award

The Medical Officers Award prescribes conditions of employment and defines the classifications of intern, resident, registrar and senior registrar. The classifications are defined as follows:^[11]

"Intern" means a medical officer serving in a hospital prior to obtaining full registration with the Medical Board of Australia pursuant to the Health Practitioner Regulation National Law Act.
"Registrar" means a medical officer who:
(i)   has had at least three years' experience in public hospital service as defined under this Award or any lesser period acceptable to the Ministry of Health, and
(ii)   is appointed as a registrar by a hospital, and
(iii)   is occupying a position of registrar in an established position as approved by the employer.
"Resident" means a medical officer who has obtained full registration.
"Senior Registrar" means a registrar holding higher medical qualifications and occupying a position of senior registrar in an established position as approved by the employer.

11. Public Hospital Medical Officers (State) Award 2023 cl 1.

These are the only classifications covered by the Medical Officers Award.
Clause 2 of the Medical Officers Award provides that salaries for Medical Officers are prescribed by the Salaries Award. The Salaries Award prescribes salaries for an array of professional and associated classifications listed in Part B of the Salaries Award. Conditions of employment for those covered by the Salaries Award are prescribed either by the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award or one of the eleven awards listed in Part C of the Salaries Award. The Medical Officers Award is one such Award. Salaries for medical officers are expressed at an annual rate. Part B of the Salaries Award also specifies a formula for calculating the hourly and daily rates to facilitate calculation of additional payments such as overtime or part-time work as prescribed in, relevantly, the Medical Officers Award.
The balance of the Medical Officers Award prescribes the usual range of conditions of employment found in awards of the Commission. One clause of note is cl 22 which provides for “Termination of Employment”. The clause is by no means unusual in that it provides for termination on notice of four weeks given in writing by either the employer or the employee. It is, however, significant in this case because the notion of “permanent employment” is referred to in the Status Award.

Status Award

The Status Award has nine clauses, four of which are or have been standard inclusions in all awards. The other five clauses are:

Definitions

Principles

Loadings

Arrangements for Existing Part-time Workers, and

Processes for Resolving Inconsistencies

The Definitions clause includes the following:

1.2   Employee means a person who is engaged on either a full time, part time, temporary, exempt or casual basis under a contract of employment in the NSW Health Service under s115(1) of the Health Services Act 1997, as amended or varied from time to time.
1.4   Temporary employee means a person who is engaged as an employee for a period not exceeding 13 weeks, provided that fixed term contracts of employment, whether for periods greater or lesser than 13 weeks, must not be offered in preference to ongoing contracts.
1.5   Permanent employee means a person appointed as such or a person who has worked in the same position, including a permanent relief position, for a continuous period of 13 weeks other than as an exempt employee.  Permanency is subject to the outcome of any appeal process.
1.7   Continuous period of employment means an uninterrupted period of 13 weeks employment involving at least one shift per week in that period but does not refer to exempt employees as defined. (Emphasis added.)

The Principles clause includes the following:

2.1   Employees who are engaged in meaningful work on a continuing basis are entitled to an expectation of permanency of employment subject to the provisions of this award.
2.2   It is the responsibility of the employer to ensure that all employees, upon engagement and at all appropriate times, are correctly classified as exempt, casual, temporary, or permanent according to the above definitions.
2.3   Where a person changes from casual to either temporary or permanent, the employment status of the person is deemed to have changed automatically.
2.4   During the period of continuing employment the status of an employee cannot be changed from permanent to temporary or casual or from temporary to casual, without the prior written consent of the employee.
2.7   A person who, by definition, is a temporary employee for a period of less than 13 weeks may be re-engaged by the same Health Service under more than one employment contract provided the aggregate period of the contracts, where consecutive, does not exceed 13 weeks.
2.8   Where the employee is retained beyond a continuous period of 13 weeksin the same position the employee is deemed to be permanent, subject to the outcome of any appeal. The application of this sub clause shall not be applied in a manner which is inconsistent with legislation or Government recruitment and employment policy, as varied from time to time. This subclause does not apply toan exempt employee as defined. (Emphasis added.)

The Loadings clause, apart from a provision for casual employees, includes the following:

3.2   Temporary Employees - A temporary employee shall be paid for the number of hours worked each week on an hourly rate calculated at the same hourly rate as prescribed for a full time employee in the same classification plus 10 per cent loading.  The loading shall cease to apply if:
(a)   the period of employment extends beyond 13 weeks
(b)   the employer and the employee agree, during the period of 13 weeks, that the employee will be employed on a permanent basis. (Emphasis added.)

Clause 4 preserves the rights of part-time employees in employment as at 1 January 2000 while they remain in the same position. Clause 5 provides that if an inconsistency arises between the Status Award and the awards listed in Schedule “A”, the Status Award is to prevail. In the original Status Award Schedule “A” included 28 awards. The 2023 Status Award Schedule “A” included 24 awards. The differences are unexplained but not considered material. What is clear is that Status Award is not confined to JMOs but applies to a wide array of employees engaged in the Health Service.

Factual Background

Before embarking on a review of the witness evidence it is convenient to identify some general concepts and some of the institutional framework regulating the health profession.
There is a distinction between pre-vocational and vocational training. The former relates to the first two years after graduation from an Australian university medical school. Unsurprisingly this period is often referred to as PGY1 and PGY2. During PGY1 the doctor has provisional registration and is called an intern. Thereafter, a doctor in prevocational training is referred to as a Resident Medical Officer (RMO) or Senior Resident Medical Officer (SRMO); in vocational training a doctor is referred to as a Registrar or Trainee.
The Medical Board of Australia (AMB) is established under legislation.^[12] Its functions include developing registration standards, approving accreditation standards recommended by an accrediting authority and approving accredited programs of study.
12. Health Practitioner Regulation National Law 2009 (NSW).
The Australian Health Practitioner Regulation Authority (AHPRA) is established under the same legislation. It provides administrative assistance to the AMB and other National Health Practitioner Boards. It also has responsibility for maintaining the register of health practitioners. If the National Board decides to appoint an external body to perform various aspects of its accreditation function AHPRA is empowered to enter contracts with that external body for the performance of that function.
The Australian Medical Council (AMC) is the accrediting authority for the AMB. It has accredited the Health Education and Training Institute (HETI) as the pre-vocational training authority for NSW.
Vocational Training is supervised by Specialist Medical Colleges, which are accredited by the AMC for that function. In general, doctors choose a career path after PGY2 and follow a specialist medical training program developed by one of the Colleges.

Applicant’s witnesses.

The Specified Doctors

Dr Sanderson

In the period 2010 to 2014 Dr Sanderson was employed by Western Health Metropolitan Health Service in Victoria as an intern, junior medical officer and surgical registrar. As at 7 June 2024 he was employed as a consultant radiologist at Southern Cross Medical Imaging in Victoria and has held that position since May 2022. Between 2014 and 2016 he undertook a research degree qualifying in 2016 as a Doctor of Medical Science in Radiology.
In 2015 he applied for, and was successful in obtaining, a position as a Trainee in Radiology at Royal Prince Alfred Hospital (RPAH) in Sydney. RPAH is a part of the Radiology Local Area Network 2. It also includes Concord Repatriation General Hospital (Concord), the Canterbury Hospital, Westmead Hospital and Orange Base Hospital. Each of those hospitals is accredited by the Royal Australian and New Zealand College of Radiologists (RANZCR) to provide training in radiology. RANZCR is the accredited body responsible for establishing training standards and recognising the attainment of specialist qualifications of radiologists.
In the period 1 February 2016 to 14 February 2022 Dr Sanderson was employed on a series of contracts with the respondent. Most of the details of those offers are set out in the Statement of Agreed Facts at paragraphs [35]-[46].
The first offer of employment, headed “Offer of Temporary Employment”, specified it was to commence on 1 February 2016 and end on 4 February 2018, although the offer noted that “clinical year start and/or end dates may change from time to time”. Notwithstanding the heading, the employment was described in the letter as “fixed term temporary”. The only Award referred to was the Medical Officers Award.^[13] Dr Sanderson was employed as a Registrar at the second-year rate in recognition of his employment as a Registrar at Western Health and his qualifications as a Doctor of Medical Science.
13. For the sake of brevity, I shall refer to the heading to the letter of offer, the description of the employment and the Award reference as the “usual characteristics”.
The subsequent contracts identified in the Statement of Agreed Facts had the usual characteristics. The exception apparent on the face of the third contract was that it referred to the Salaries Award and the Status Award as well as the Medical Officers Award. This is the only letter of offer in evidence which referred to the Status Award.
By letter dated 3 June 2020 the RANZCR advised trainees, including Dr Sanderson, that the final exams would be deferred to a date to be determined. Dr Sanderson says that the cause of the deferral was the then current covid pandemic. The delay meant that Dr Sanderson would not complete his training in the period expected and covered by his then contact. The third letter of offer, dated 11 January 2021, was issued and accepted. It was expressed to be for the period from 1 February 2021 to 2 May 2021. Dr Sanderson said in his affidavit that this was a temporary extension to his contract due to the delayed RANZCR exams. The agreed facts record that his period of employment was extended beyond the specified period to allow Dr Sanderson to sit an exam.
He attained his fellowship in the RANZCR on 16 December 2021 and became registered as a specialist radiologist on 31 December 2021. Dr Sanderson says that he worked “the rest of his 2021 contract until 14 February 2022”. From that date until 13 May 2022, he worked part-time as a Staff Specialist or consultant radiologist at RPA and Macquarie Health. He then took up his current appointment in Victoria.
Although his employment was described as temporary, Dr Sanderson says that he was not at any time paid a loading of 10% in respect of his temporary employment. Further, he said that he did not claim for much of the overtime he worked because he did not wish to be seen as causing trouble as that may hinder his job prospects of obtaining a new contract.

Dr Middleton

Dr Middleton completed his intern and residency years at the Royal Darwin Hospital. He was employed by the respondent between February 2016 and August 2021. He returned to Royal Darwin Hospital in August 2021 as an Advanced Trainee in Palliative Care and General Medicine. In February 2024 he commenced as a Palliative Care and General Medicine specialist at the same hospital.
He was first employed by the respondent from 1 February 2016 to 5 February 2017 as a Senior Resident Medical Officer, classified as a resident second year. He completed five rotations at different hospitals and in different areas. From 6 February 2017 to 4 February 2018 he was classified at the third-year rate for residents and completed a further five rotations. These first two contract periods are not referred to in the Statement of Agreed Facts presumably because no claim is made in respect of them.
From 5 February 2018 to 2 February 2020 he was employed in the position of Basic Physician Trainee (BPT) in General Medicine and classified as a registrar first and then second year.
From 3 February 2020 to 31 August 2021 he was employed as an Advanced Trainee in Palliative Medicine. In the first year he was classified as a registrar third year. He worked at Concord Hospital completing two terms in each of the Palliative Care Inpatient Unit and in Palliative Care Consults. Then, in the second year, as a registrar fourth year he worked at Prince of Wales Hospital (PoW) in radiation oncology.
Dr Middleton annexed to his affidavit letters of offer dated. Those relevant to the claim are:

3 October 2017 relating to the period 5 February 2018 to 2 February 2020;

29 November 2019 relating to the period 3 February 2020 to 31 January 2021; and

30 July 2020 relating to the period 3 February 2020 to 1 August 2021.

The apparent anomaly between these last two letters of offer is explained by Dr Middleton as arising from a communication to Advanced Trainees in Palliative Medicine from an officer of the respondent advising that Advanced Trainees did not need to apply for a position in 2021 because positions had already been allocated to them. Dr Middleton explained that the training program for advanced trainees in palliative care typically requires three years working in different workplaces and fields of work. When he received this communication, he contacted the writer to advise he had anticipated moving interstate sometime in 2021. He later received and accepted the last offer.
Each of these letters of offer had the usual characteristics. Dr Middleton, like Dr Sanderson, said he had never received a 10% loading in respect of his temporary employment.
Dr Middleton said he found the uncertainty of having to apply and interview for multiple jobs very stressful. The temporary nature of the work, he said, made family planning and making life decisions with his partner very difficult. He said he and his partner delayed purchasing a property due to the lack of certainty about where, and if, he would have work in the future with NSW Health. His anxiety about ongoing employment caused him to keep a low profile and not claim all the overtime he worked. He did not wish to be perceived as inefficient or costing the system money because he thought it may impact his future job prospects.

Dr Serge Geara

Dr Geara was employed at the time of affirming his affidavit as a Motor Neurone Disease Fellow and Neurodegenerative Fellow at Macquarie University Hospital (MUH). He notes that Fellows may also be referred to as “Consultants" or "Staff Specialists".
After graduating in medicine and surgery from the University of Sydney in 2015 he became registered as a medical practitioner on 4 January 2016. The relevant College for his area of specialty is the Royal Australian College of Physicians (RACP).
On Dr Geara's evidence there are four key requirements to qualify as a Fellow of the RACP. They are:

passing the divisional clinical examinations;

passing the divisional written examination;

passing annual assessments conducted by their supervisor while a DiT; and

completion of a “fellowship year”.

Dr Geara achieved the first requirement in 2021, the second in February 2019 and he had passed all annual assessments to the date of affirming his affidavit. He was then undertaking his fellowship year at MUH having been unsuccessful in several applications to complete his fellowship year in NSW Health. He expected to complete that element of his qualifications in February 2025.
In about mid-2015, in his final year of study, Dr Geara made application to NSW Health for a position as an intern. On 8 September 2015. He received a letter of offer; it had the usual characteristics. Employment was to commence on 18 January 2016 and continue to 5 February 2017. Upon satisfactory performance and achievement of general registration with the MBA at the end of the first clinical year he would progress to RMO year 1 for his second clinical year commencing 6 February 2017 and ending on 4 February 2018. No claim is made in respect of this contract period.
In about July 2017 he applied for employment with NSW Health as a BPT. He received a letter of offer dated 11 October 2017. The letter had the usual characteristics; the position referred to was as a BPT in General Medicine. The term was from 5 February 2018 to 2 February 2020. He accepted the offer and commenced in the role at Blacktown Hospital and then at Westmead Hospital. He was classified as an RMO year 2 and then year 3 during the life of this contract.
Dr Geara said that to become an "advanced trainee" it is necessary to pass the divisional clinical examination which has two parts. He attempted the exams in August 2019 but was unsuccessful. He was therefore unable to apply for a position as an advanced trainee in 2019.
He successfully attempted the exams again in November 2020 with the second part in April 2021. In about mid to late 2019 Dr Geara applied for a further BPT position with NSW Health. He was interviewed in September 2019. He received an email on 6 September 2019 thanking him for his acceptance of the offer and noting that formal letters of offer would be issued from mid-October 2019. He was required to complete some further paperwork, which he did, and a letter of offer dated 1 October 2019 was issued to him. It had the usual characteristics and was for the period 3 February 2020 to 31 January 2021. He was to commence as a Registrar second year.
On 6 March 2020 a general email was issued to staff relating to leave arrangements for the six months following 5 March 2020. In response to the "evolving novel coronavirus situation". Leave approvals for that period would be limited to "extenuating or special circumstances only". Dr Geara wasn't happy about that because he wanted to take four weeks leave in the year. He was restricted to two weeks leave. However, he did not complain because, like Drs Sanderson and Middleton, he did not want to appear difficult. He considered that complaining may negatively impact his prospects for continuing employment.
In about September 2019 he applied for a new contract. He received a contract dated 4 December 2020 with the usual characteristics. The period of employment was from 1 February 2021 to 6 February 2022. He was classified as a Registrar year 3. In about September 2021 Dr Geara had an interview with the Australian and New Zealand Association of Neurologists (ANZAN). On 29 September he was advised that ANZAN had completed the interview and selection process for advanced trainees Australian wide for 2022 positions, and that ANZAN recommended his appointment to Blacktown Hospital.
On 22 November he received an email to which was attached a letter of offer dated 9 November 2021 with the usual characteristics. Employment in the capacity of Advanced Trainee in Neurology at Blacktown was to commence on 7 February 2022 and end on 4 February 2024 unless he had not passed the divisional clinical examination by the end of the 2022 clinical year. In that case the employment would terminate on 5 February 2023.
Dr Geara referred to many applications that he made to NSW Health for positions to count as a fellowship year for the purpose of his qualification as a fellow of the RACP. He was unsuccessful in each of them despite, apparently, interviewing very well for at least some of the applications.

On 12 March 2024. He received an email from NSW Health confirming his separation date was 4 February 2024 and providing information about the steps he should take to confirm his address and contact details so that he could receive a final payslip.
Dr Geara said that at no stage in any of his contracts did he receive a 10% allowance in respect of temporary employment.

Dr Anna Wells

Dr Wells affirmed her affidavit on 13 June 2024. At that time she was on secondment to the Canberra Hospital operated by ACT Health. The secondment was to continue until at least 4 August 2024.
Dr Wells first trained in nursing, obtaining a degree from the Queensland University of Technology in 2012 and a graduate certificate from the University of Queensland in 2013. She graduated in medicine from the University of Newcastle in December 2018 and obtained a Master of Public Health from the University of New South Wales in 2024. She has been registered as a medical practitioner since 7 January 2019.
Prior to her secondment she was employed as a Paediatric Physician Trainee at Sydney Children's Hospital in Paediatrics. As explained at [90] below, she commenced in that position on 8 August 2022.
On 5 January 2022 she was accepted into the Medical Administration training program with the Royal Australian College of Medical Administrators (RACMA) effective from 7 February 2022. At the time of affirming her affidavit she was on leave from the RACMA program. In August 2022 she commenced the BPT training program with the RACP.
During her final year of university medical studies in about May 2018 Dr Wells applied for a position as an intern with NSW Health. On 21 September 2018 She received a letter of offer for a position within Hunter New England LHD. The letter had the usual characteristics. She would be employed as an intern between 21 January 2019 and 2 February 2020 and from 3 February 2020 to 31 January 2021, conditional on successfully completing her intern year, she was to continue as a RMO year 1. About late September 2018 she accepted the contract and commenced employment on 21 January 2019 working at John Hunter Hospital and Maitland Hospital.
In mid-2020 Dr Wells applied for further employment with NSW Health in various JMO positions. She was interviewed for a number of positions in late September 2020 and received an offer of employment from Illawarra Shoalhaven LHD which she accepted. The letter of offer dated 14 October 2020 had the usual characteristics. The position offered was as a SRMO in Paediatrics and Child Health at Shoalhaven Hospital to commence on 1 February 2021 and end on 6 February 2022. Dr Wells accepted the offer.
In about the middle of 2021 Dr Wells applied for positions of Trainee Medical Administrator and in the NSW Paediatric Network. She also applied for positions outside of NSW Health in Queensland and Victoria for paediatric training.
About 1 September 2021 Dr Wells received notification that she was successful in obtaining a position in the Southern New South Wales LHD at the South East Regional Hospital. She received a letter of offer dated 11 November 2021. The letter had the usual characteristics. The position offered was as a Trainee in Medical Administration. The term of the employment was to be from 7 February 2022 to 5 February 2023.
About 28 January 2022 Dr Wells received an offer of employment as a Paediatric Physician Basic Trainee for the period 8 August 2022 to 3 August 2025. Consistent with her acceptance of the position of Trainee in Medical Administration, she commenced employment on 7 February 2022 at the South East Regional Hospital but discussed with her supervisor the offer from the Sydney Children's Hospital Network. As a result, she received an amended letter of offer of employment dated 24 February 2022 varying the term of her employment to end on 7 August 2022 so that she could accept the offer at Sydney Children's Hospital Network.
The letter of offer for that position, dated 9 May 2022, had the usual characteristics. The term of employment was from 8 August 2022 to 3 August 2025. She was to commence as an RMO year 3 in Paediatrics and Child Health. Dr Wells accepted that offer.
Dr Wells did not receive at any point a 10% loading in respect of her employment with NSW health.
She said that being employed on temporary contracts resulted in uncertainty in terms of where she would be working long-term. That had impacts on other areas of her life, such as finances, establishing a sense of community and lack of geographic stability to permit life decisions such as buying property. She also considered it challenging to fully engage in the workplace as one is constantly “new" and must spend a lot of time building rapport with new colleagues. She also said it could be difficult to speak up about inappropriate behaviour or complain about workplace issues or award entitlements knowing that you were dependent on the same people for term reviews, references for future contracts or to get into training programs.

Other witnesses

Andrew Holland

Mr Holland is the Executive Director of the applicant and has held that position since 23 November 2015.
He described his responsibilities as Executive Director. He also confirmed the status and coverage of the applicant as an Industrial Organisation under the IR Act. He annexed a copy of the applicant's rules to his affidavit.
In relation to coverage, he outlined the history of the applicant obtaining coverage of DiTs on 22 November 2012.
Mr Holland summarised the current instruments prescribing the employment conditions of DiTs. They Include:

the Medical Officers Award;

the Salaries Award 2023;

the Status Award;

individual contracts of employment;

the Health Services Act (1997) and Directives made by the Secretary of the Ministry of Health under that Act;

provisions of the Government Sector Employment Act (2023) and Government Sector Employment (General) Rules 2014, which applied to NSW Health Service employees; and

policies, procedures and memoranda concerning the employment of DiTs including “Policy Directive – Employment Arrangements for Medical Officers in the NSW Health Service” (the Employment Directive).

Mr Holland annexed to his affidavit copies of the Medical Officers and Salaries Awards applicable from January 2018 to January 2024.
As already indicated at [30] he annexed the original application for a Status Award and the transcript of the hearing of that application.
Mr Holland also provided a summary description of the employment patterns of DiTs, outlining the need to apply for positions as interns, residents, registrars and trainees, with no guarantee of success. He also said that NSW Health recognises continuity of service for DiTs offered new contracts.
DiTs contracts refer to the Employment Directive, which he said has been a continuing source of disputation between the applicant and NSW Health during his tenure as Executive Director of the applicant. He did not provide any further detail as to the subject matter or matters of those disputes.
He annexed to his affidavit each iteration of the Employment Directive since the original, published in 2000. He noted that the 2010 Employment Directive mentioned the Status Award and asserted that DiTs were exempt employees.
Mr Holland also provides an overview of the recruitment process that DiTs are required to undertake.
On 15 February 2022 the applicant made a request, under the Government Information (Public Access) Act 2000 (NSW), seeking information about the numbers of medical officers employed in NSW Health. Mr Holland includes a table of the information ultimately obtained, showing the numbers as at 30 June 2021. The "Employment Categories" are described in the Table as: Permanent Full Time; Permanent Part Time; Fixed Term Full Time; Fixed Term Part Time; and Casual. In total there were 9,250 DiTs employed at that time, 8,293 of whom were said to be employed "Fixed Term Full Time" and 672 "Fixed Term Part Time".
Mr Holland also provided a summary description of the work DiTs undertake in the NSW Health Service. That includes a broad description of the increasing complexity of medical work as DiTs progress in their training.
He then provides a description of the detrimental impact of the employment patterns of JMOs. He instances occasions when the applicant has represented members:

who have become pregnant and had applications for maternity leave refused because:

their contract would expire during the period of proposed leave; or

their contract was due to expire shortly before the period they wished to take leave and NSW Health was refusing to offer a new contract;

who have performance issues raised and deflected because of the contract expiry, instead of being managed in accordance with the usual policy;

who have similar issues related to alleged misconduct;

who feel insecure about another contract being offered and where it may be located, causing uncertainty in family planning; and

have had difficulties obtaining approvals for finance.

Finally, Mr Holland annexed correspondence to and from NSW Health about the applicant's concern that NSW Health was not complying with the Status Award.
The response of NSW Health, dated 20 June 2023, was to the effect that as JMOs are engaged on contracts, generally, for a minimum term of 12 months. They were not therefore "temporary" within the meaning of the Status Award and therefore not entitled to a 10% loading.

Dr Abdul-Hamud Sabih

Dr Sabih graduated in medicine in 2018. During his employment at NSW Health, he has observed that JMOs work four or five clinical terms each year. A term, he says, is about 10 to 14 weeks. From time to time JMOs work in different specialties or locations for each of several terms. He annexed to his affidavit an extract from the website of NSW Health specifying JMO term dates for the clinical years 2021 to 2031. The terms for 2021 ranged between 10 and 12 weeks for a five-term year for interns. The five term year for other JMOs was either 10 or 11 weeks. Provision is also made for a four-term year with terms lasting 13 or 14 weeks. There are slight variations to this pattern in other clinical years.
From time to time JMOs receive emails from NSW Health requesting JMO term preferences, including preferred specialties and locations.
Consistent with this, Dr Sabih commenced as an intern in 2019. In 2018 he was invited to indicate his preferences for specialties and locations for the 2019 year. He asked to work one term in a rural location and specified a preference for Dubbo. He commenced work at RPAH. Between 3 February 2020 and 29 June 2020 he worked at Dubbo Base Hospital.
In 2021 he worked as a locum doctor in various hospitals across Australia. He also took a three-month holiday. In about November 2021 he signed a contract with NSW Health as a BPT for the period 7 February 2022 to 4 February 2024. BPT training is coordinated by HETI.
On 28 November 2023 he signed a new contract for the period 5 February 2024 to 2 February 2025 as an Advanced Trainee in Addiction Medicine, managed by RPAH. He commenced in February 2024 at RPAH and on 8 May 2024 moved to Concord for terms two and three of the clinical year. At the time of affirming his affidavit he expected to return to RPAH from 4 November 2024.

Dr Sarah McCredie

Dr McCredie graduated in medicine in 2018. At the time of swearing her affidavit she was employed as a Trainee in Obstetrics and Gynaecology.
On 21 January 2019 Dr McCredie commenced as an intern at RPAH. She was advised in May 2019 that she was to be seconded to Dubbo Base Hospital for one term, although that was increased to two terms during her time at Dubbo.
In January 2020 she progressed to RMO. From 3 February 2020 to 28 June 2020 she worked at Dubbo.
In January 2021 she accepted a role as an SRMO at Bankstown-Lidcombe Hospital for one year. On 5 February 2022 she accepted an amended contract as an SRMO in Obstetrics and Gynaecology at RNSH on a one-year contract. Between 2 May 2022 and 27 November 2022 Dr McCredie worked at Northern Beaches Hospital (NBH). It was communicated to her at the time she accepted the appointment that it was compulsory for her to work as an SRMO for 3 terms at NBH.
On 13 November 2022 she accepted a new contract as SRMO in Obstetrics and Gynaecology commencing on 6 February and running until 4 February 2024 at RNSH.
In December 2023 Dr McCredie accepted an offer as a Trainee in Obstetrics and Gynaecology at RNSH from 5 February 2024 until 6 February 2028. She was advised in June 2024 that she would be seconded to Gosford Hospital for the first six months of 2025 and Port Macquarie Hospital for the second six months.
Dr McCredie observed that the various hospitals at which she worked were not always in the same LHD but she was not required to sign a new contract on those occasions on which such a move occurred.

Respondent’s witnesses

Dr Elizabeth Mullins

At the time of swearing her affidavit, Dr Mullins was the Executive Director of Medical Services for Southern NSW Local Health District and had worked in the role from February 2022. Between September 2018 and February 2022 she was the Director Medical Services at South East Regional Hospital. In that role she was responsible for the management of all medical staff at the hospital.
Dr Mullins confirmed that Dr Wells was employed as a Trainee in Medical Administration from 7 February 2022 to 7 August 2022. She agrees that Dr Wells spoke to her about the offer of a position as a Paediatric Physician Basic Trainee in Sydney, commencing in August 2022 and that she agreed to vary the terms of her employment contract so that Dr Wells could take up that position.
During her employment at the hospital Dr Wells assisted Dr Mullins with clinical governance activities including incident and complaint review, rostering and recruitment. Dr Wells also accompanied her to executive meetings, committee meetings and budget discussions. Dr Wells acted as a liaison point for other JMOs and was also required to familiarise herself with the services provided at the hospital.
Dr Mullins explained that HETI works in partnership with NSW Health and RACMA to provide a training program for JMOs specialising in medical administration. She explained that RACMA is an independent organisation, accredited by the Australian and New Zealand Medical Council's to provide training in medical administration. RACMA sets the curriculum, administers assessments, trains supervisors and accredits sites in New South Wales to provide training in medical administration for those JMOs undertaking their fellowship. In 2022 twelve hospitals in New South Wales were accredited by RACMA to provide supervised medical management experience to JMOs undertaking their Fellowship. South Coast Regional Hospital was one of those twelve.
Dr Mullins annexed to her affidavit a copy of the curriculum published by RACMA for Trainees in Medical Administration. The essential requirements are:

completion of the RACMA training program consisting of workshops, written work, assessment reports and an oral examination;

completion of a Masters degree or equivalent containing content specified by RACMA; and

a minimum of three years full-time or equivalent supervised medical management experience in accredited training positions.

Dr Mullins also explained that the length of the employment contract facilitates several aspects of the training program.
It is usual for trainees to undertake training across several sites in order to obtain a broad range of experience. She illustrates that by noting that the South Coast Regional Hospital can provide training in general and rural medical administration but does not provide experience in tertiary-level system processes; management of academic departments; management of colleges or research institutions; management of eHealth; private healthcare; nor specialist services such as Justice Health or Children's Health Services. Although trainees are not required to work in each of those areas, RACMA encourages broad experience and its assessments generally contain questions about a broad range of facilities.
The number of available positions depends on progress through training. Hospitals with positions available advise HETI which conducts the recruitment campaign. Applicants called for interview are considered by a panel made up of directors of Medical Services, representatives from HETI and a representative from RACMA as chair.
There is only one trainee position at South Coast Regional Hospital. She notes that there are only two regional hospitals in NSW accredited to provide training in Medical Administration. Therefore, it is in the interests of the system as a whole for trainees to move to other hospitals to allow other JMOs to obtain rural experience in medical administration.
Recruitment to positions of Trainee is very competitive. It is highlighted by the number of positions available each year, which is in the range of 10 to 15. Dr Mullins explained that for the 2022 clinical year there were 45 applications, 24 proceeded to interview and 14 were offered positions.

Dr Andrew Henderson

At the time of swearing his affidavit, Dr Henderson had been employed in the role of Network Director of Physician Training for the Westmead Network since 2016. He is also a specialist neurologist at Westmead Hospital. He was involved in recruiting Dr Geara to the Basic Physician Trainee (BPT) positions between 2017 and 2021.
Dr Henderson explained that Basic Physician training is a formal training program overseen by the RACP. Hospitals are accredited by the RACP as training providers and organised into groups or networks. There are four hospitals in the Westmead Network: Westmead; Blacktown; Hornsby Ku-ring-gai; and Orange Base.
BPTs rotate to a different department every three months. The rotations are referred to as terms. In the result BPT's may work in one or more hospitals in their Network in order to obtain a broad clinical experience in all the sub-specialties of medicine. The RACP specifies the parameters for this training.
The purpose of a training position such as BPT is to provide a medical officer with the necessary training to become a specialist. While BPTs do provide a clinical service, the predominant focus of the role is training. There is an expectation that a BPT will progress through the training and become an Advanced Trainee, and then a specialist physician.
Advanced trainee roles are more specialised and focus on a particular area of medicine.
Dr Henderson explained that the recruitment process for BPT's involves interested medical officers applying for positions. The applicants considered most suitable are called for interview and invited to list the hospitals and networks in their order of preference. The interviewees are then listed by the panel in order of preference. The two lists are then “electronically matched".
Candidates are then offered a position in order of the matched rankings.
Dr Henderson said that when involved in the recruitment process, including making recommendations, he takes no account of a candidate’s history of taking leave, claiming over time, making complaints or raising issues. He is unaware of any other person on a selection panel doing so. Such matters are generally not known to him, and they are not addressed in references. He could not recall any former supervisor raising or discussing any of those issues with him.
The length of contract issued for BPTs is determined by reference to the individual candidate. The single biggest influence in Dr Henderson's consideration is the length of time likely required to complete the individual's training. In most cases the initial period is two years. He estimates 70 to 80% of BPT candidates pass the exams on the first attempt and therefore will complete the training within two years.

If they do not pass, a contract for a further year is issued in the expectation they will pass on the next occasion. BPTs have a maximum of four attempts at the written exam and three of the clinical exam. If the BPT does not pass in that time RACP exits them from the training program.
Extensions are also granted if a BPT has taken parental leave. Dr Henderson also expressed the view that, unlike other medical officer positions such as Career Medical Officers, BPT positions are not of indefinite duration. BPTs have a limited time to complete their training and there are others wanting to undertake such training. Those who successfully complete their training also want to move forward to different programs.

Dr Daniel Gialouris

Dr Gialouris is the Manager of the Medical Training and Administration Unit at Royal Prince Alfred Hospital. He deposed that Advanced Training in Palliative Care is coordinated by the RACP. On his understanding RACP conducts regular site accreditations to ensure that each facility is providing the level of supervision, training and experience to fulfil RACP’s training requirements.
Eligibility for admission to the Advanced Trainee in Palliative Care program requires the applicant to have:

completed RACP Basic Training;

a current medical registration; and

been appointed to an appropriate Advanced Training position.

Since 2017 the Advanced Training in Palliative Care program has been a three-year program including:

24 months of core training, which includes:

six months of inpatient unit/hospice;

6 months of community setting;

six months of teaching hospital/consultation;

six months of cancer care setting.

12 months of non-core training, which includes:

6 months of palliative medicine, variable or related specialty;

6 months of elective training;

1 advanced training research project; and

1 case study.

In Dr Gialouris’ opinion, since 2017, due to the RACP requirement of diversity of different types of care, it is not possible to complete all training requirements on one site. The RACP guidelines note that training should be completed across two or more sites. Decisions as to which sites a trainee rotates between are determined with reference to the trainee's preference, the facilities preference, the training requirements and the nature of the training offered at a facility.
Dr Gialouris observed that recruitment for Advanced Training in Palliative Care occurs as part of the annual NSW Health Medical Recruitment Campaign. The number of training positions available at each site Is determined by the number of positions accredited by RACP and the number of positions approved for recruitment, less the number of positions already filled by an existing trainee.
He noted that in clinical year 2020, in the first round, there were 70 applications for Advanced Training in Palliative Care, 49 candidates interviewed and 38 offers accepted across New South Wales. In the second round, there were 17 candidates interviewed and 14 offers made. Following two rounds of advertising there remained a number of vacancies. By comparison the 2024 figures were 69 applications, 50 candidates interviewed and 30 offers made.
In his experience, once on the training program, Departments will work with trainees to extend contracts or re-employ them to make up for training time lost due to parental or other leave. The process applicable for such extensions varies according to the particular candidate but is aimed to assist the candidate to fulfill the training requirements.

Jaime Frances Berry

Ms Berry is the Network Manager (Co-Lead) – JMO Services for the Sydney Children's Hospital Network. That Network includes Sydney Children's Hospital, Randwick; the Children's Hospital at Westmead; and the Newborn and Paediatric Emergency Transport Service which operates out of Bankstown Aerodrome.
Her role involves overseeing the activities that relate to attracting, recruiting and onboarding JMOs, as well as the activities that occur during and at the end of their employment.
Ms Berry was in her current role when Dr Wells was recruited as a Paediatric Physician Basic Trainee (PPBT) in Paediatrics and Child Health within the Eastern Paediatric Training Network. Dr Wells was employed under a contract due to expire on 3 August 2025. It was extended to 1 February 2026 to accommodate Dr Wells’ training requirements.
Ms Berry described the recruitment process which largely parallels that described by Drs Henderson and Gialouris. In the year of Dr Wells recruitment there were 179 applications for PPBT positions in the NSW Paediatric Training Network 97 doctors were appointed. The comparative figures for 2022 were 159 applicants and 85 appointments In 2023 there were 155 applicants with 81 appointments.
Ms Berry states that as the position of PPBT is a three-year training position a permanent contract is not able to be offered. The length of the contract offered aligns with the training requirements. If a doctor requires a longer period of time to complete their training they may be offered a contract extension.

Jeanette Chadban

Ms Chadban is employed as Operations Manager for Medical Administration at Maitland Hospital. She has a total of 32 years experience working for NSW Health. Between October 2006 and June 2021, she was Prevocational Network Manager of Network 12 in Hunter New England Local Health District. Accordingly, she was in that position when Dr Wells was recruited as an intern in January 2019.
Ms Chadban explained that all doctors educated in Australia are required to complete accredited intern training usually over a one year period to become eligible for general registration by the AMB.
In order to gain general registration, interns must meet the registration standards set by the AMB and endorsed by AHPRA. When Dr Wells was an intern the doctor needed to satisfactorily complete:

at least eight weeks in emergency medical care;

at least 10 weeks in medicine;

at least 10 weeks in surgery: and

a range of other approved terms to make up a minimum of 47 weeks full-time equivalent service.

Ms Chadban observed that, to provide interns with a diverse range of experience, Network 12 required trainees to complete at least one rural or regional term and one relief term. If the personal circumstances of an intern meant they could not meet these requirements they could ask for special consideration. Such requests were considered by a panel and either supported or declined.
Dr Wells’ rotations were at Calvary Mater Newcastle (2 rotations), John Hunter Hospital, Maitland Hospital and Belmont Hospital.
On attaining general registration trainees ae engaged for a year as a Resident Medical Officer (RMO). RMOs complete 5 rotations through different specialty and sub-specialty departments to further develop their skills and gain experience in a wide range of specialties. Dr Wells rotations were:

General Paediatrics at John Hunter;

Radiation Oncology at Calvary Mater;

Relief for John Hunter New England Network;

Orthopaedics at The Maitland Hospital; and

General Medicine Relief at the Maitland Hospital.

As to length of contract Ms Chadban said the progressive nature of medical training means that permanent contracts are not used. Two year contacts are generally used for PGY1 and PGY 2.
It was Ms Chadban’s experience that if a trainee sought parental leave, that was granted along with an extension of their contract to allow completion of their training requirements. Similarly, if an intern failed a term and repeated it, a contract extension would be granted.

Dr Justine Harris

Dr Harris is employed as the chief medical workforce advisor within the Workforce Planning and Talent Development Branch of NSW Health. Prior to her current employment she was engaged as the district Director Medical Workforce for Illawarra Shoalhaven Local Health District.
Dr Harris experience is that it takes on average 10 to 15 years from commencement of study in the medical school to become a qualified specialist in Australia. She identifies three stages of training:

completion of an AMC accredited university program taking 4 to 6 years full time study;

completion of prevocational training; and

completion of AMC accredited medical college training program leading to specialist qualifications, which takes a minimum of 3 to 7 years full-time training depending on the requirements of the College.

It is not uncommon for doctors to choose to work as a Senior RMO for a year before commencing their vocational training program. Some other doctors choose not to undertake specialist training or fail to gain entry to a training program. Such doctors continue to work for NSW Health as unaccredited trainees, career medical officers or locums.
In the 2024 clinical year 1,641 medical graduates applied for 1,153.5 intern positions with 1,061 accepting positions. Intern positions are funded by LHDs which are required to determine the number of positions they need and can fund. Graduates indicate their Network preferences in order as part of their application. HETI then allocates interns to positions using an algorithm that matches their preferences. States and Territories share intern information. If an intern has been successful in more than one jurisdiction, they are directed to withdraw from all save the one in which they intend to intern.
Interns are permitted to work only in positions accredited by HETI. New registration standards were introduced in 2024 requiring 47 weeks full time equivalent service including at least 4 rotations of 10 weeks each in different specialties. The rotations must include clinical experience in:

patients presenting with undifferentiated illness;

patients with chronic illness;

patients with acute and critical illness; and

peri-procedural patient care.

At successful completion of PGY1 DiTs can choose to stay at their current Network or apply for a position elsewhere as an RMO.
To complete their prevocational training RMOs are required to undertake and complete 5 rotations to the satisfaction of their supervisors and the local Director of Prevocational Education and Training.
Successful completion of the RMO year completes the prevocational training program. JMOs are then eligible to be admitted into a vocational training program. Dr Harris notes that some Colleges admit RMOs into their vocational training program before completion of their prevocational training, however the number is diminishing.
Dr Harris says that there are 16 Colleges accredited to deliver specialist training. Each College has different entry requirements and accreditation standards. The Colleges accredit training sites and/or training positions. RMOs must complete their training at an accredited site or in an accredited position in order to qualify as a specialist. While some training programs allow trainees to complete all their training at one location, others require trainees to undertake training at multiple sites or locations.
Some training programs are split into training stages such as basic and advanced training. Progression requires completion of the College requirements at each stage of training.
Dr Harris was the District Director of Medical Workforce at the Illawarra Shoalhaven LHD when Dr Wells was employed at Shoalhaven Hospital as an SRMO in Paediatrics and Child Health. During Dr Wells employment at Shoalhaven Hospital, she was relocated to Shellharbour Hospital to reduce her risk of contracting Covid-19 due to a declared medical condition. The move followed a risk assessment undertaken after advice provided by Dr Wells’ respiratory physician. Further, Dr Wells could not have undertaken all of her vocational training in Paediatrics and Child Health at Shoalhaven because it would not have met the requirements of the RACP.
The reply affidavit of Dr Harris was the subject of objection at least as recorded in the index to the Court Book. The basis of the objection was not specified but I assume it was because the respondent does not, generally, have a right to call evidence in reply. This affidavit responds to the affidavits of Drs Sabih and McCredie which have been filed in reply. They do not, however, do more than recount the experiences of two more doctors as DiTs. I therefore allow the affidavit of Dr Harris in reply to be read.
Dr Harris responds to Dr Sabih's statement to the effect that in his PGY 1 and PGY 2 years he worked at RPA and Dubbo Base Hospitals. She says that those two hospitals are in Prevocational Training Network One.
A Prevocational Training Network is a group of accredited facilities networked to provide prevocational training to JMOs. There are 15 such networks in New South Wales. Of those, 10 Networks include facilities in more than one LHD. During the PGY 1 and PGY 2 years a JMO will generally perform rotations in at least two facilities within a network.
In response to Dr Sabih's evidence as to his BPT Training and the requirement to work at Port Macquarie Base Hospital, PoW and Shellharbour Hospital, she says all of those hospitals are in the East Coast Medical Network which is one of 11 BPT Training Networks in New South Wales. Each such Network includes metropolitan, regional and rural sites to provide diversity in training experiences, meet the RACP Training Requirements and maximise the number of accredited training positions available in NSW.
The RACP Training Requirements include a requirement that at least twelve months training be undertaken in a Principal Teaching Hospital – Level 3 Hospital. The inclusion of smaller metropolitan, regional and rural hospitals allows NSW Health to distribute the JMO workforce across the State and offer larger numbers of training positions than would otherwise be possible. Since 2023, RACP accredits the network rather than individual facilities within it.
In relation to his working at RPA and Concord, as an Advanced Trainee in Addiction Medicine, Dr Harris notes that the two hospitals are in the same LHD and are jointly accredited by RACP for Addiction Medicine training.
In response to Dr McCredie's evidence as to the locations of her prevocational training, Dr Harris replies as above at [174] and [175].
In connection with her four-year contract as a Trainee in Obstetrics and Gynaecology, Dr Harris says the training program is coordinated by The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG). RANZCOG accredits all sites offering training. The College organises a combination of different sites into an Integrated Training Program (ITP). There are 10 ITPs in NSW with accredited rotations across major public teaching hospitals, outer suburban/peripheral hospitals and rural/provincial hospitals.
RNSH, Gosford District Hospital and Port Macquarie Base Hospital are all part of the North Sydney ITP.
RANZCOG’s basic training program involves Trainees working at two or more different hospitals with at least:

46 weeks in a tertiary hospital;

23 weeks in a rural hospital; and

46 weeks in a non-base hospital, (which can include rural rotation).

Nicholas Richards

Mr Richards is the Manager of Workforce Intelligence for NSW Health. He produced a report which analysed the number of health employees covered by the Status Award as at June in the years 2020, 2022 and 2024. Excluded from the analysis were:

casual;

agency staff; and

sessional staff (employees employed for a one-off engagement – usually interpreters).

The employees were categorised as:

permanent – an employee with an ongoing contract, that is one which does not have a set end date; or

temporary – an employee with a contract with a set end date.

The numbers were expressed as full-time equivalent (FTE) with percentages based on the FTE. The report was annexed to his affidavit. It shows that in 2024, 100% of Medical Officers, that is, employees engaged under the Medical Officers award, were temporary. But of the total employees covered by the Status Award, 75% were permanent. The corresponding figures for 2022 were 100% and 73%, and in 2020, 100% and 75%.

Nigel Wolfe

Dr Wolfe is, and has been since 2012, the Head of the Department of Neurology at Blacktown Hospital and Mount Druitt Hospital. He is also a full-time Staff Specialist in Neurology at those hospitals. He is a fellow of the RACP and a member of the Australian and New Zealand Association of Neurologists (ANZAN).
Dr Wolfe does not recruit trainees for Basic Physician Training but does have responsibility for the supervision of BPTs when they rotate through the Neurology service at Blacktown Hospital. In that way, he supervised Dr Geara as a BPT for a three month term in 2013.
The Advanced Training Program in Neurology is coordinated by the RACP via the Advanced Training Committee in Neurology (ATC). Eligibility for admission to the program requires successful completion of the Basic Training Program.
The RACP, via ANZAN, accredits individual hospitals for a specified number of positions for Advanced Trainees and determines whether the training completed by trainees satisfies the requirements of the program.
To Complete the Advanced Training Program, a trainee must:

complete three years of certified training, comprising:

A minimum of two years core training. No more than one year may be completed in the same location. Practically, this means Advanced Trainees complete their training in at least two different hospitals, which may be in two different LHDs; and

A maximum of one non-core year training at a hospital or institution of their choice; and

fulfil the expectations of the position as set by RACP and assessed by the Advanced Trainee’s two clinical supervisors in each hospital or institution. A report is completed for each six months of training by the two supervisors and the trainee which is then provided to the RACP.

Dr Wolfe supervised Dr Geara during his training at Blacktown Hospital between February 2022 and February 2023.
Recruitment for admission to the program is managed by ANZAN via the Education and Training Committee (ETC). The ETC has a number of subcommittees. Dr Wolfe has been a member of the ETC committee for NSW/ACT since 2012. He described the selection process as follows:

CVs are submitted by candidates with their online application. They are reviewed by two independent neurologists from outside of New South Wales and a consensus score is given. Some applicants are called for interview.

The ETC subcommittee for NSW/ACT then undertakes the interviews. Dr Wolfe said that he has never taken into consideration, and has never observed any other ETC member take into consideration, matters such as whether the applicant has made claims for overtime or taken or requested leave.

A weighted combined score of the CV (35%) and interview (65%) determines whether the applicant is considered suitable. A score of 55 out of 100 or better is regarded as success.

Candidates rank their hospital preferences and the Head of Department for each hospital will preference all the successful candidates.

Matches are then determined by the RACP algorithm, which prioritises candidate preferences over hospital preferences.

The ANZAN Match process is initially run State specifically but if positions remain unfilled, successful candidates from other States who have not been matched in their State may be matched to available positions in NSW/ACT.

ANZAN then recommends the appointment of successful candidates at accredited hospitals according to the results of the matching process.

While Dr Wolfe has no responsibility or role in issuing contracts or determining contract length for Advanced Trainees, he observes that it would not be possible to employ someone permanently as an Advance Trainee, as each position is a training position to which a new candidate is nominated each year by ANZAN.

The decision to offer JMOs fixed term contracts was motivated by the length of the various stages of training being undertaken.

The applicant’s submission that the Specified Doctors were temporary for the first 13 weeks is wrong because it is plainly contrary to the words of cl 1.4. The submission that the description given by the employer is determinative is inconsistent with the High Court decision in Workpac Pty Ltd v Rossato (2021) 27 CLR 456 (“Rossato”). At [57] their Honours Keifel CJ, Keane, Gordon, Edelman, Steward, and Gleason JJ said:

“A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship.” (Emphasis added.)

The characterisation of the relationship is to be determined at the commencement of the employment relationship: Rossato at [64].

The proviso in cl 1.4 confirms that fixed term contracts can be offered for less than 13 weeks (temporary) or more than 13 weeks (permanent).

The deeming provision in cl 3.2 is consistent with the concept of temporary employment being determined at the commencement of the contract. The 10% loading will cease “if” the employment extends beyond 13 weeks.

The applicant’s submission that cll 2.8 and 3.2 contemplate that a person may be employed for a period greater than 13 weeks on a temporary or non-permanent basis is wrong. Clause 2.7 affirms that a temporary employee (a person engaged for not more than 13 weeks) may be “re-engaged” subject to specified conditions.

A common purpose of a loading is to compensate for, amongst other things, the short-term nature of the employment or the absence of full entitlements associated with employment over a longer period. It will be seen that, in oral submissions, the former purpose was given most weight. That purpose has no application to employees such as the Specified Doctors.

The contention, that the description of the employment as temporary is the best evidence of the classification as temporary, is inconsistent with Rossato and the terms of the Status Award. The terms of the award are binding on the parties to the employment, they are not free to contract out of those terms.

A commonsense understanding of what it means to be a temporary employee is someone who does not enjoy security of tenure. That has no application to the Specified Doctors.

The respondent does not contend that there is an additional “implied class”. The correct classification under the Status Award is permanent.

Even contracts of indefinite duration are terminable on reasonable notice or summarily for breach. The Medical Officers Award cl 22 provides for termination on 4 weeks notice or such lesser period as the parties may agree. It also preserves the right to terminate summarily for ”misconduct or neglect of duty”.

These submissions were developed and supplemented at hearing. What was clear was that the parties were in agreement that the employees were not casual or exempt. The debate centred on whether they were temporary or permanent.
Mr Dixon submitted that much turns on the definition in clause 1.4 of the Status Award. He said:

“the [award] requires temporary employment to be limited to a period of 13 weeks. And if there’s an attempt to engage someone as a temporary employee for longer than that period, the award deems that person to be a permanent employee.”^[15] (Emphasis added.)
15. Tcpt, 26 February 2025, p 8(37).

He then referred to cl 1.5 which he described as critical because it identifies two parts to becoming a permanent employee. The first by appointment as such, the second, by working for a continuous period of more than 13 weeks.
No point is taken that the interpretation advanced by the applicant was inconsistent with legislation or government recruitment and employment policy, so the court need not be troubled by that issue.
The provision cl 3.2 (a) is important because:

“what it does is, it again indicates that the terms of the award contemplate temporary employment extending beyond 13 weeks, the possibility of that happening, because that’s what the clause is directed to. It’s directed to temporary employees.”^[16] (Emphasis added.)
16. Tcpt, 26 February 2025, p 9(49).

Mr Jones for the respondent drew attention to the evidence which showed that as the Specified Doctors’ contracts came to an end, a new contract commenced immediately so that employment was continuous. The contracts were designed to meet the requirements of their training.
He referred to cl 1.2 and the definition of “Employee” emphasising the categories of employment which, in that definition he notes are “full time, part time, temporary, exempt or casual”. He joined in an observation, made by Mr Dixon, that the drafters had conflated the first two categories with permanent employment. He emphasised also the language of “who is engaged” as supporting the submission that the characterisation is focused on the commencement of employment.
The applicant, Mr Jones submitted, offers no explanation as to how an employee engaged for more than 13 weeks can be a temporary employee. Next, in common with Mr Dixon, he referred to the two paths to permanency. The first by being “appointed as such”, which he described as “somewhat question-begging”.^[17] By reference to cl 3.2 (b), he postulated it was intended to mean appointed “on a permanent basis”.
17. Tcpt, 26 February 2025, p 24(24).
This distinction between the two paths, he submitted, makes clear that a permanent employee is someone who has been engaged for a period of more than 13 weeks. I understood the submission to mean that permanency can be achieved by being appointed for more than 13 weeks or by working more than 13 weeks.
The respondent accepts that the employees fell within the description in cl 2.1 of “employees engaged in meaningful work” and therefore they were “entitled to an expectation of permanency”. Clause 2.2 emphasises that classification is focused on the commencement of the employment relationship.
Clause 2.7 provides that a person “who by definition is a temporary employee for a period of less than 13 weeks” is able to be re-engaged, provided the aggregate period of consecutive contracts does not exceed 13 weeks. This clause again makes the distinction, based on the 13 week period, between temporary and permanent employment.
Mr Jones submitted that clause 3.2 does not have any sensible application to a person employed, from the outset, for a period greater than 13 weeks. The use of the word “if” is important because it reflects uncertainty. A person who, at the time of engagement, is not expected to be employed for more than 13 weeks is entitled to a loading. “If” it happens that the person is retained beyond that period, the person then becomes permanent.
The Status Award, he submitted, says that a person engaged for more than 13 weeks is not a temporary employee. To say that all persons employed on a fixed term contract, of whatever duration greater than 13 weeks, are temporary employees would be to greatly expand the definition of “temporary employee”.
As to the correct classification, the respondent submits these employees are permanent. The conclusion is reached essentially by interpreting the Status Award as a whole. Having regard to the express definition of “temporary employee” in cl 1.4, “permanent” must mean a person employed for a duration greater than 13 weeks. That is what “appointed as such” means in cl 1.5.
The only ascertainable purpose of the loading is to compensate employees engaged for less than 13 weeks for employment which is not secure beyond that timeframe. That has no sensible application to the Specified Doctors who were offered contracts of between one and three years.
“Permanency” does not require “indefiniteness” in any and all circumstances. In support of that proposition he cited In re Goodwin (1986) Tas R 6. The employee in question in that case had been engaged as a cadet for a period of six years. When his cadetship finished, he was appointed to a position as an engineer. The question was whether, for the purposes of the Tasmanian Retirement Benefits Act, he was employed in a permanent capacity during his cadetship.
Cosgrove J held that he was. As to the concept of permanency his Honour said at 18:

“It is difficult to establish the insignia of ‘permanency’. I use the inverted commas because, as counsel agreed, there is no employment which is permanent. Sometimes entry into or the capacity to enter into a superannuation scheme is regarded as an indication that employment is ‘permanent’. But that is to put the cart before the horse, because it is the character of ‘permanency’ in the employment that gives the right to enter the scheme. Indefiniteness is not the same as permanency, nor is a fixed termination point or a fixed point for the exercise of choice, a sure indication that the employment is other than permanent. Nearly all employees have a fixed retiring age. ‘Permanent’ offices in the Services have to retire upon reaching a certain combination of rank and age. To sign up for a period of years as an ‘other rank’ is to become a ‘permanent’ soldier or sailor. The term ‘cadet’ has, to my ear, accreditation akin to ‘permanence’ as meaning a junior member of the workforce training for staff appointment.” (Emphasis added.)

Mr Jones submitted that his Honour’s observations were cited with approval by Heerey J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 197 A-D.

Determination

The Status Award provides a quintessential example of an industrial instrument, in the words of Street J in Geo. A. Bond, which results

“from an agreement between the parties, couched in terms intelligible to themselves but … framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament”.

One must be cautious therefore to, as French J warned,

“not make too much of infelicitous expression in the drafting of [the] award nor be astute to discern illogicality or apparent inconsistencies.”

The Status Award, as I have noted at [30] - [36] above, was made in 2000. It was an interim award made by consent. The document presented to the Commission had several drafting issues, some of which were drawn to the attention of the parties. An adjournment was granted to permit the parties to address, at least, the formal issues required by the legislation and the Commission’s Award Making Principles. The form of the award as made has not changed for more than 20 years, save for amendments to Schedule A.
There are numerous inconsistencies in the Status Award. For example, the categories in cl 1.2 are not coextensive with the classifications in cl 2.2. The parties each submitted that the drafters conflated full time and part time with permanent. While that has some appeal, it fails to account for the fact that temporary employees may also be employed either full-time or part-time having regard to cl 1.7.
A second example is cl 1.7 itself which defines the term “continuous period of employment” as an uninterrupted period of 13 weeks with at least one shift per week in that period. For some reason it is confined to 13 weeks whereas other provisions speak of:

“a period not exceeding 13 weeks” (cl1.4);

“a continuous period of 13 weeks” (cl 1.5);

“a period of less than 13 weeks” (cl 2.7); and

“does not exceed 13 weeks” (cl 2.7).

A third example is that the term “continuous period of 13 weeks” is only otherwise found in cl 2.8. It seems to reflect there what is already in cl 1.5. It may be that the purpose of the definition is to enable a temporary employee to be deemed permanent on either a full time or part time basis according to the shifts worked (on a regular basis perhaps) in the qualifying period. Presumably casual employees are considered ineligible because the definition of that category limits employment to a period of one week (at least, one assumes, in uninterrupted employment), unless the short-term exception applies. “Short-term employment” is not defined.
Finally, the structure of the Status Award itself raises questions. The definitions clause contains the proviso about fixed term contracts. It is unusual to find an enforceable obligation in a definition. Is it meant to be an enforceable obligation or merely an aid to construction? A similar issue arises in the “Principles” clause. Clause 2.1 may be readily regarded as a principle. Clauses 2.3, 2.4, 2.5, 2.6 and 2.7 may also, to varying degrees, be regarded as principles. Are cll 2.2 and 2.8 principles or enforceable obligations?
These examples serve to emphasise that, whatever the outcome of these proceedings, the Status Award is in need of review.
The singular objective definition in the Status Award, of relevance in this case, is that of “temporary employee”. Such an employee is a person who is engaged for a period not exceeding 13 weeks. I accept the respondent’s submission that the definition focuses on the point of engagement. While the cases referred to: Rossato, In re Goodwin and Mulcahy, must be seen in the context of the statutory provisions concerned, they lend weight to the submission that the time for assessment is at the commencement of employment. It is very much strengthened by the language of the definition, particularly the words emphasised above and reinforced by the deeming provision in cl 2.8, which deals with the eventuality, unexpected at the point of engagement, of the employee being retained beyond 13 weeks. The language of cl 3.2(a) similarly reinforces that construction.
In my view cl 1.4 does not create a prohibition against fixed term contracts. I have formed that view, firstly, because the language used is that of preference rather than prohibition. Secondly, it is expressed in the context of temporary employment which the Status Award contemplates can be for terms up to 13 weeks. Nothing in that language suggests that such employment could not be for a fixed term of 13 weeks or less. The construction also accords with the language of cl 2.7 which contemplates more than one contract while requiring the aggregate not to exceed 13 weeks of consecutive employment.
There is a difficulty with the applicant’s contention that the issue is to be determined by the language used in the employment contracts which describes the employment as “temporary” and “fixed-term temporary”. If that were the test, then any description applied by the parties would resolve the issue. It would mean that cl 2.2 would have no work to do beyond urging the employer to be accurate. That is inconsistent with the applicant’s contention that it is an enforceable obligation. In my view the issue is to be determined by applying the terms of the Status Award to the “rights and obligations of the parties”. The labels used may be a factor to be considered but they are not decisive.^[18]
18. Rossato at [97].
Once it is accepted that the issue is to be resolved by the rights and obligations of the parties at the commencement of the employment, the focus must shift to the terms of the contracts. The contracts in evidence in this case all, with perhaps one exception, are for periods of not less than 12 months. The possible exception is the contract which permitted Dr Sanderson to remain in his training position until he satisfied the examination requirements which had been delayed by the covid pandemic. It was a contract of course which followed upon the expiration of his earlier contract and might properly be regarded, in that context, as an extension of that contract. It follows that none of the contracts fall within the definition contained within cl 1.4.
That is sufficient to permit the conclusion that the Specified Doctors were not “temporary employees” within the meaning of the Status Award. It does not follow that the employees are not within any of the categories of the Status Award or that they must be in an additional implied class.
The contention underpinning those propositions is that fixed term and permanent employment are mutually inconsistent. The applicant relied upon the decision of the Western Australian Industrial Relations Commission in Civil Services Association of Western Australia Incorporated v Director-General, the Department of Justice [2019] WAIRC 817. That case was concerned with employment under the Public Sector Management Act 1994 (WA). The employee had been a permanent public servant appointed under s64(1)(a) of that Act and then accepted employment under s 64(1)(b). The Commission held that the acceptance of the latter employment brought the earlier employment to an end. The former was indefinite employment the latter was fixed term; the Commission determined that the two forms of statutory engagement were mutually inconsistent.
By contrast the decisions in In re Goodwin and Mulcahy stand for the proposition that permanent employment is to be determined not by reference to the absence of a fixed termination point but by the essential relationship between the parties. That also needs to be determined in the context of the relevant legislation.
In this case the relevant context is the Health Services Act, the Status Award and the Medical Officers Award. In that context, it is clear that even ongoing employment is not permanent because the employment may be terminated on prescribed notice or for cause. There are four options under the Status Award. Only two of those options have possible application in respect of the Specified Doctors. They are either “permanent” or “temporary”. Given the definition of temporary employment and the effect of cll 2.8 and 3.2(a), permanent employment is defined by engagement for more than 13 weeks. The Specified Doctors were engaged, from the outset, for a period longer than 13 weeks.
There is no pleaded allegation that the employer has contravened the Status Award by preferring fixed term employment to ongoing employment. Nevertheless, in deference to the submissions of the parties on this point I will briefly express my view. I have already noted that there is not a prohibition on such contracts. It follows, to my mind, that the issue is to be determined by reference not to an individual contract but to a trend.
The important point to bear in mind about the construction of the terms of the Status Award, particularly in this context, is that it is not confined to the industry of junior medical officers. That being so, when it comes to assessing whether a preference has been given to fixed term employment rather than ongoing employment, it is appropriate to determine that in the context of the entire coverage of the award. The evidence in that regard is that in the order of 75% of persons covered by the award are employed on ongoing contracts. I would conclude therefore that the preference is for ongoing contracts.
Finally, there is a claim for a declaration that Doctors Wells and Geara are permanent employees. I note that Dr Geara ceased to be an employee of NSW Health on 4 February 2024. I have found that they are, or were, permanent employees albeit under fixed term contracts. To make the declaration in the terms sought would not resolve the issues dividing the parties; Ainsworth v Criminal Justice Commission.^[19] Therefore, I decline to make that declaration.
19. (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gordon JJ and at 596 per Brennan J.

Postscript

After these reasons were written, but before judgment could be delivered, the decision of Commissioner Howell in Health Services Union o/b Mr Tony Thomas v Health Secretary in respect of HealthShare NSW [2025] NSWIRComm 1065 came to my attention.
The case involved an application for interim relief against a threatened dismissal. The factual circumstances are quite different from those pertaining to this case. The employee concerned had been originally employed on a temporary full-time basis for a period one day less than 13 weeks. He was subsequently employed on a second contract for a further six months, followed by a third period of employment purportedly ending on 5 August 2025. All periods of employment were consecutive. The Commissioner found that the third contract was a contract of indefinite duration contrary to the respondent’s submission that the employee was engaged on a fixed-term or exempt basis.

Nevertheless, in the decision the Commissioner expresses some obiter views about the meaning of permanent employment in the Status Award. In the Commissioner’s view, expressed at [77] and [82], a “permanent employee” is one employed on an “ongoing contract” rather than for a fixed term or as a casual.
With great respect to the Commissioner, I disagree with the implicit suggestion that fixed term employment is necessarily inconsistent with permanent employment under the Status Award.

Conclusion and Orders

In summary I make the following findings.

The Specified Doctors were not temporary employees within the meaning of the Status Award.

The Specified Doctors were permanent employees within the meaning of the Status Award, albeit with a recognised termination date.

The Specified Doctors were not entitled to the temporary loading.

The Status Award does not prohibit fixed-term contracts.

I make the following orders:

Leave to amend refused.

Application dismissed.

I will hear the parties on costs.

**********

Endnotes

Decision last updated: 22 August 2025

Medium Neutral Citation:	Australian Salaried Medical Officers’ Federation (New South Wales) v State of New South Wales [2025] NSWIC 9
Hearing dates:	26 February 2025
Date of orders:	22 August 2025
Decision date:	22 August 2025
Before:	Kite AJ
Decision:	I make the following orders: (1) Leave to amend refused. (2) Application dismissed.
Catchwords:	EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – Breach – Remuneration – Public Sector – Health Professionals – Recruitment and hiring – Remuneration and salaries
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 151(1) Health Practitioner Regulation National Law (NSW) 2009 (NSW), s 3 Health Services Act 1997 (NSW), ss 115(1), 116 Industrial Relations Act 1996 (NSW), ss 8, 355C(1), 357, 358(1), 372(1), 376, 403 Interpretation Act 1987 (NSW), s 3 Public Sector Management Act 1994 (WA), s 64
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 Civil Services Association of Western Australia Incorporated v Director-General, the Department of Justice [2019] WAIRC 817 Geo A Bond & Co Ltd(in liq) v McKenzie [1929] AR (NSW) 498 George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 Health Services Union o/b Mr Tony Thomas v Health Secretary in respect of HealthShare NSW [2025] NSWIRComm 1065 In re Goodwin (1986) Tas R 6 K-Generation Pty. Limited v Liquor Licensing Court (2009) 237 CLR 501 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 New South Wales v Stockwell [2017] NSWCA 30 Public Service Association and Professional Officers Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 87 NSWLR 41, [2014] NSWIRComm 23 Queensland v JL Holdings Pty Ltd. (1997) 189 CLR 146 Workpac Pty Ltd v Rossato (2021) 271 CLR 456
Texts Cited:	Health Industry Status of Employment (State) Award Health Industry Status of Employment (State) Award 2018 Health Industry Status of Employment (State) Award 2019 Health Industry Status of Employment (State) Award 2021 Health Industry Status of Employment (State) Award 2022 Health Industry Status of Employment (State) Award 2023 Public Hospital Medical Officers Award 2016 Public Hospital Medical Officers (State) Award 2017 Public Hospital Medical Officers (State) Award 2019 Public Hospital Medical Officers (State) Award 2021 Public Hospital Medical Officers (State) Award 2022 Public Hospital Medical Officers (State) Award 2023
Category:	Principal judgment
Parties:	Australian Salaried Medical Officers’ Federation (New South Wales) (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: T Dixon / R Kumar (Applicant) O Jones / C Beshara (Respondent) Solicitors: Hall Payne Lawyers (Applicant) Minter Ellison (Respondent)
File Number(s):	2024/00045113