Australian Salaried Medical Officers Federation v Melbourne Health

[2013] FWC 7632

[2013] FWC 7632

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Australian Salaried Medical Officers Federation
v
Melbourne Health
(C2013/5350)

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 21 OCTOBER 2013

Alleged dispute in relation to a proposed change during a contract period.

[1] On 29 July 2013 the Australian Salaried Medical Officers Federation (ASMOF) made an application for the Fair Work Commission to deal with a dispute in accordance with the Australian Medical Association and Melbourne Health Hospital Specialists Agreement 2002 (the agreement).

[2] ASMOF for Dr Anastasia Chrysostomou allege there is a dispute in relation to a proposed change during a contract period.

[3] The application is made pursuant to an agreement which is a “pre-reform agreement” made before 26 March 2006. By virtue of Item 1 of Schedule 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 section 170LW of the Workplace Relations Act 1996 applies.

[4] The matter was conciliated and no agreement was reached.

[5] Written submissions were tendered. The following witnesses gave evidence:-

Dr Anastasia Chrysostomou

Professor Stephen Holt

[6] I have had regard to all the submissions and evidence.

Agreement provisions

[7] The dispute concerns the interpretation of clauses 56.4 and 56.5 of the agreement, which provide:

‘56.4 Where a change proposed during a contract period is of such magnitude that it alters the fundamental nature of the contract and the Visiting Specialist does not agree to the change, then the entire contract of employment will be terminated as a retrenchment and the Visiting Specialist will be entitled to the normal Hospital practice in relation to retrenchment periods and payments.

56.5 A reduction in working hours to less than 50% of the hours agreed at the commencement of the contract period will be considered a change to the fundamental nature of the contract for the purposes of sub-clause 56.4.’

Authorities

[8] In Amcor Limited v Construction Forestry Mining and Energy Union 1Gleeson CJ and McHugh J in a joint judgement said:

“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.” 2

[9] In Kucks v CSR Limited 3 Madgwick J said:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

Submissions

[10] In this case it is agreed that the reduction of hours was less than 50 per cent, and therefore that clause 56.5 is not applicable, and that the reduced duties are within the scope of practice clause of Dr. Chrysostomou’s contract 4. The clause provides:

‘Melbourne Health complies with the Department of Human Services (Victoria) Credentialling and defining the scope of clinical practice for medical practitioners in Victorian Health Services - a policy handbook 2007. A copy of the policy handbook, and Melbourne Health policies and processes regarding credentialing and scope of practice are available from the Medical Workforce Unit. Your defined scope of practice is listed below.

Specialty - Nephrology, Royal Australasian College of Physicians

Inclusions - Surgical aspects of Dialysis and Rental Transplant Care

Exclusions - none.

Note: Scope of Practice may be amended throughout the contract period upon negotiation and agreement between the individual and Melbourne Health.’

[11] Does the proposal for reduced duties fall within clause 56.4, that is, is a change to the fundamental nature of the contract proposed?

[12] On 23 May 2013 Dr.Chrysostomou was given notice that her hours were to be reduced to 7.23 hours per week effective from 31 August 2013. Her hours were previously 14 per week. She would be allocated to two outpatients clinics per week with no ward service, and she would no longer have the role of Director of Peritoneal Dialysis 5.

[13] ASMOF submits that ward service was a key element of her work, and that the reduction in hours from two days a week to one day a week is of itself a change of such magnitude that it alters the fundamental nature of the applicant’s contract. This has to be considered having regard to the substantial change of hours. It submits that clause 56.4 is applicable, and that Melbourne Health is bound to apply Government retrenchment policy 6.

[14] Dr.Chrysostomou gave evidence that her duties were 28 hours per fortnight, or 14 hours per week, performing the following:

• ward service of about 2.5 hours per week;



• supervision of peritoneal dialysis in her role as Physician in charge of Peritoneal Dialysis, of about 2 hours per week;



• teaching and training undergraduate medical students and postgraduate Junior Medical Staff;



• outpatient clinics.

[15] Dr.Chrysostomou gave evidence about ward service, outpatient clinic work, her work as physician in charge of peritoneal analysis, the sequence of events and the proposed changes 7. She specifically responded to a number of claims made by Professor Holt, agreeing that she did not dispute the removal of responsibilities as Director of Peritoneal Dialysis on the basis that she anticipated that she would be given an alternative role, said that the acuity and complexity of medical problems in the inpatient far outweigh that of the outpatient, contrary to Professor Holt’s view, and specifically that ward work requires certain skills and duties, and other issues8. She rejected the view that her work would remain largely the same.

[16] Melbourne Health submits that under her written contract the applicant is engaged as a sessional specialist in her scope of practice of Nephrology, which has not changed, and that the fundamental nature of her contract has therefore not changed. It submits that the applicant’s ‘scope of practice’ set out in the agreed contract, and its sessional character, are the matters which constitute the ‘fundamental nature of the contract’ 9.

[17] It submits that her contract was 14 hours per week, and she worked in consultation at outpatient clinics, ward service, and peritoneal dialysis supervision and research 10. There is agreement about the above facts, except that Professor Holt gave evidence that the applicant was in fact previously paid for attending meetings, ie. 1.5 hours per week11.

[18] Professor Holt gave evidence that the applicant is employed as a Sessional Specialist in Renal and Endocrinology Services in the Department of Nephrology. The contract provides that the scope of her specialty is ‘Nephrology’ with inclusions of ‘Surgical aspects of Dialysis and Renal Transplant Care’. She has never had responsibility for surgical aspects of dialysis, which are carried out by surgeons in the Renal Transplant Surgical Unit. The specific duties to be performed by her are ‘broad and not particularised in the Contract’. The contract states however that her duties are inclusive of ‘work as directed by the Divisional Director/Departmental Head.’

[19] Professor Holt gave evidence that he differed with the applicant on a number of issues. He said that there is ‘very little difference’ between the duties performed by a consultant nephrologist in an inpatient and outpatient context. Outpatient may involve more skill. He said that the applicant did not do any ‘practical procedures’. Further, that the applicant is wrong about 70 per cent of nephrology inpatients have acute kidney failure, it is 10-20 per cent at most. Most acute renal failure does not require dialysis, just medical management. Almost all of the outpatients have serious comorbidities and are unstable. He said that the applicant will continue to have exposure to junior staff, participate in clinical meetings with colleagues, and she would continue to perform aspects of renal transplant care in the outpatient clinics. Her duties ‘remain largely the same’. She would continue to act as a Sessional Specialist in Renal Medicine in the Department of Nephrology within her scope of practice and in accordance with her contract 12.

Conclusion

[20] It is agreed that there is no variation of the contract proposed. The new duties are within the scope of practice clause of the contract. On the ordinary and literal meaning of the words, there is no change to the contract, let alone a change to the fundamental nature of the contract. The parties drafted clause 56.4, and chose to provide that the test was whether or not there is a fundamental change to the nature of the contract, not to the job, duties, or some other term.

[21] Even if regard is given to the changes in duties or job, the changes are to the minority of Dr.Chrysostomou’s work. Clinic work was about 8.5 of the 14 hours a week 13, with ward service 2.5 hours, and peritoneal dialysis 2 hours14, all approximate estimates. It is agreed that ward service and supervision of peritoneal dialysis would no longer be part of her duties. At most there may be some additional change to teaching, but the better view of the evidence is that there is not much change in this area as well, given that the teaching on Dr.Chrysostomou’s evidence took place during ward or peritoneal duties. In any event Professor Holt gave contrary evidence on that issue. Finally, the evidence on the qualitative changes to the work is equivocal, with a difference of opinion between Professor Holt and Dr.Chrysostomou on a number of matters. I agree that there is some qualitative change to the nature of the duties, and that the duties are not the same, but I am not satisfied that the change is ‘fundamental’. Even if a more purposive approach is taken to construction of clause 56, I am not satisfied that there was a fundamental change to the nature of the contract when the changes are viewed as a whole.

[22] Finally, it was in my view unnecessary for the employer to refuse to acknowledge Dr.Chrysostomou’s enthusiastic approach to her peritoneal work, and her contribution to that work over a long period of time 15.

[23] The proposed changes do not fall within the scope of clause 56. I dismiss the application. An Order is contained in PR543447.

DEPUTY PRESIDENT

Appearances:

Mr P Wheelahan of counsel for the applicant

Mr R Millar of counsel for the respondent

Hearing details:

4 October

Melbourne

2013

 1 [2005] 222 CLR 241

 2   Ibid, paras 1 and 2

 3 (1996) 66 IR 182 Madgwick J

 4   PN11-14

 5   Applicant Written Submission, paragraphs 7-9

 6   Applicant Written Submission, pp. 3-5

 7   Exhibit C2

 8   Exhibit C4

 9   Melbourne Health Submission, paragraphs 39-42

 10   Melbourne Health Submission paragraphs 3-9

 11   Witness Statement of Professor Holt, paragraph 29

 12   Witness Statement of Professor Holt, paragraph 34

 13   Witness Statement of Applicant, paragraph 14

 14   Applicant’s Outline of Submissions, Exhibit C1, paragraph 6

 15   Professor Holt, paragraph 18

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