Australian Salaried Medical Officers Federation v Monash Health
[2021] FWC 6382
•18 NOVEMBER 2021
| [2021] FWC 6382 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Salaried Medical Officers Federation
v
Monash Health
(C2021/561)
COMMISSIONER CIRKOVIC | MELBOURNE, 18 NOVEMBER 2021 |
Dispute arising under an enterprise agreement - Clause 55 Long Service Leave - Clause 55.6 Counted as Service - Does service under 2015 Contract count as “continuous service”?
[1] This decision involves an application brought by the Australian Salaried Medical Officers Federation (Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Monash Health (Respondent).
[2] The parties are covered by the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021 (the 2018 Specialists Agreement). The Agreement was approved by the Fair Work Commission (the Commission) on 31 July 2018. It has a nominal expiry date of 31 December 2021. The Agreement applies to the Respondent and “(a) the Health Services (referred to in Schedule A) as employers, (b) all Doctors (as defined in subclause 3.1(i)) as employees; and (c) the Australian Salaried Medical Officers’ Federation”. 1
[3] The parties jointly submitted that the question for arbitration is:
“Does Dr Ang’s service under the 2015 Contract count as continuous service for the purpose of clause 55.6 of the Agreement” 2
[4] The Applicant contends that the Dr Ang’s “service” under the 2015 contract does count as continuous service for the purpose of clause 55.6 of the 2018 Specialists Agreement and that the answer to the agreed question is “yes”. The Respondent disagrees and submits that “the answer to the agreed question is no.” 3 There is no contest that Dr Ang signed a contract with Monash Health, expressed to take effect on and from 16 February 2015, titled “Casual medical officer – casual employment agreement.” (the 2015 Contract). Schedule 2 of the 2015 Contract titled “Position Details” states that the position title is “Casual Medical Officer – Monash Imaging Program.”
Background
[5] The Applicant filed an application on 4 February 2021. The matter was listed for conference on 16 February 2021, 3 June 2021 and 23 July 2021.
[6] As the dispute was unable to be resolved at conference, it was listed for arbitration. The parties provided consent directions for the filing of submissions and witness statements and the Commission subsequently listed the matter for arbitration. The hearing took place on 9 November 2021.
Issues in dispute
[7] In summary, the issue in dispute requires me to interpret clause 55.6 of the 2018 Specialists Agreement and determine whether Dr Ang’s service under the 2015 Contract counts as “continuous service” for the purposes of the clause.
Jurisdiction
[8] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 11. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Applicant’s Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.
Principles of Interpretation of Enterprise Agreements
[9] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 4 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.5 The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),6 has further distilled the principles. The starting point is the ordinary meaning of the words, read as a whole and in context.7 The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.
[10] I adopt and apply the principles as cited above in this decision without restating them.
Relevant provisions of the 2018 Agreement
“• Definitions:
(i) Doctor–
(i) means a medical practitioner employed by a Health Service as a Specialist
or Executive Specialist on a full-time or fractional basis; but
(ii) with respect to Dental Health Services Victoria, means only a Doctor
employed as an Anaesthetist.
(l) Fractional Doctor means a Doctor engaged on a fractional basis in accordance
with subclause 16.3.
(m) Full-time Doctor means a Doctor engaged on a Full-Time basis in accordance
with subclause 16.2(a).
(o) Health Service means a public hospital or health service listed in Schedule A.
(s) Institution means any hospital, health service (whether or not listed in Schedule
A) or benevolent home, community health centre, Society or Association
registered pursuant to the Health Services Act.
(bb) Statutory Body means the Department of Health and Human Services (Victoria)
and, formerly, the Department of Health (Victoria) and the Department of Human
Services (Victoria).
“• Long Service Leave
“• Entitlement
(a) A Doctor is entitled to Long Service Leave with pay for Continuous Service with
Institutions and Statutory Bodies, in accordance with the provisions of this clause
as follows:
(i) Six (calendar) months of long service leave after 15 years of Continuous
Service then two months of long service leave after each additional five
years of Continuous Service.
(ii) A Doctor may take pro rata long service leave after 10 years of Continuous
Service where the Health Service agrees. The Health Service will not
unreasonably withhold agreement.
“• Pro Rata Entitlement
• Pro-rata entitlements accrue on termination of employment after 10 years of service.
• Pro-rata entitlements are calculated as 1/30th of the period of Continuous Service since beginning employment, or since the last normal long service leave entitlement became due, whichever is later.
“• Calculating Service for Entitlement to Leave
• To determine a period of service of a Doctor, the Health Service must include the service or breaks set out in subclause 55.6.
• To calculate an entitlement, service or breaks listed in subclause 55.6 are counted as service, while the periods listed in subclause 55.7 are not counted as service but do not break continuity of service.
“• Counted as Service:
• calculating Continuous Service, the following is counted as part of the period of service:
• service for which long service leave or payment in lieu has not been received in one or more Institutions including Statutory Bodies directly associated with such Institutions for the period required by subclause 55.1(a) of this Agreement;
• service with Her Majesty’s armed forces;
• service with a business that was transmitted, transferred, assigned, conveyed or succeeded from one business to another;
• any paid leave taken;
• leave of absence where the absence is authorised in advance in writing by the Health Service to be counted as service;
• any absence from work of not more than fourteen days in any year on account of illness or injury or if applicable such longer period as provided in clause 49 - Personal/Carers’ Leave;
• service as part of a specialist training program accredited by a Specialist Medical College with an employer not covered by this Agreement where:
(i) the break between period of employment is not more than two months duration or such longer period as provided in subclause 55.9(a)(ii) (Allowable period of absence for Parental Leave); and
(ii) the Doctor has not received payment for their long service leave benefit for that service.
• in the case of Doctors who commence employment with a Victorian public Health Service after 30 November 2008, service with an interstate government health service, provided that such interstate government health service employment was within two months of commencing employment with a Victorian public Health Service;
• absence on account of injury arising out of or in the course of his or her employment of the Doctor for a period during which payment is made under clause 49 - Personal/Carers’ Leave;
• any interruption or ending of the employment by the Health Service if such interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave.”
“• Not Counted as Service but Not Breaking Continuity of Service:
• calculating Continuous Service, the following is not counted as part of the period of service but does not break continuity of service:
• absence on unpaid parental leave or an equivalent period for parental leave purposes (up to 24 months between engagements) under subclause 55.9(a)(ii);
• absence arising directly or indirectly from an industrial dispute;
• any period of time from employment between engagements with a Statutory Body, any Institution and any other provider that is less than the Doctor’s allowable period of absence from employment pursuant to subclause 55.9 below;
• the dismissal of a Doctor by a Health Service if re-employed within two months of the dismissal;
• any leave of absence authorised by the Health Service which has not been authorised in advance in writing by the Health Service to be counted as service;
• any other absence of a Doctor by leave of the Health Service, or on account of injury arising out of or in the course of employment not covered by subclause 55.6(i) above.
“• Continuous Service includes entitlements pursuant to previous Victorian Industrial Awards or Agreements
• Continuous Service includes continuous service with Institutions and Statutory Bodies within the meaning of any industrial instrument in operation in Victoria that covered the Doctor prior to the date upon which this Agreement covers the Doctor, subject to the allowable period of absence at subclause 55.9. This includes service recognised by an industrial instrument where the Doctor was employed as part of an accredited Specialist training program by an employer not covered by that agreement. (See subclause 68.7(f) of the AMA Victoria - Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021, where relevant.) The requirements of subclause 55.13 apply”
“• Allowable Break in Service
• A Doctor’s allowable period of absence from employment will be the greater of:
• five weeks in addition to the total period of paid annual leave and/or personal leave that the Doctor actually receives on termination, or for which he or she is paid in lieu; or
• such longer period of absence equivalent to and for the purpose of parental leave under the NES.
Evidence
[11] The Applicant relied on a witness statement from Dr Ang dated 27 August 2021.
[12] The Respondent relied on witness statements from Dr Richard King, Honorary Physician at Monash Health and Mr Michael Holman, Director Talent Management, People and Culture at Monash Health, both dated 14 October 2021. Neither party sought to cross examine the other parties’ witnesses.
[13] The parties provided an agreed statement of facts which I have reproduced below:
• Dr Ang was employed by Western Health from 6 March 2008 to 7 February 2010.
• Dr Ang was employed by Monash Health from 8 February 2010 to 1 February 2015 as a Registrar on a full-time basis.
• Dr Ang was employed by I-MED (a private organisation) from 9 February 2015 to 7 February 2016 on a full-time basis.
• Dr Ang was employed by I-MED from 10 February 2016 to 16 September 2016 on a full-time basis.
• Dr Ang signed a contract with Monash Health, expressed to take effect on and from 16 February 2015 (the 2015 Contract).
• Dr Ang did not perform any service, nor was she paid any remuneration, under the 2015 Contract.
• Dr Ang signed a contract with Monash Health expressed to take effect from 17 September 2016 as a Fractional Senior Medical Practitioner and continues to be so employed on a full-time basis.
[14] The substance of the dispute is essentially one of construction. The background facts leading to the dispute are uncontroversial. In essence, the Applicant submits that Dr Ang entered into a contract with Monash Health expressed to take effect on and from 15 February 2015 (the 2015 Contract) and that “service” under the 2015 Contract counts as continuous service irrespective of whether Dr Ang was required to perform any work under the 2015 Contract.
[15] For the sake of completeness, I note that in addition to the 2018 Specialists Agreement and the 2015 Contract, the parties referred me to:
• AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2013 (the 2013 Specialists Agreement)
• A contract between Dr Ang and Monash Health said to take effect from 17 September 2016 (the 2016 Contract)
• Victorian Public Health Sector (AMA Victoria) - Doctors in Training (Single Interest Employers) Enterprise Agreement 2013 (the 2013 DiT Agreement)
• AMA Victoria - Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021 (the 2018 DiT Agreement)
• The Medical Practitioners Award 2010 (the 2010 Award)
[16] I also note that two employment contracts are in evidence before me between Dr Ang and I-MED, a private entity, not related to the Respondent. The first, a contract between Dr Ang and I-MED from the period 9 February 2015 (the 2015 I-MED Contract) on an ongoing basis. The terms of Dr Ang’s employment with I-MED were the subject of a revised contract said to take effect from 10 February 2016 (the 2016 I-MED Contract).
Submissions of the Parties
[17] For the sake of efficiency, I have distilled below the key submissions advanced by each party.
[18] The Applicant contends that the question to be arbitrated should be answered “yes” and in support of this position advances the following arguments:
• Pursuant to the accepted principles regarding the interpretation of enterprise agreements (recently set out in Skene; and previously in Berri), the starting point is the ordinary meaning of the words, read as a whole, understood in light of the Agreement’s industrial context and purpose, and not divorced from industrial realities. In determining whether an agreement has a plain meaning or is ambiguous, regard may be had to evidence of surrounding circumstances.
• The 2015 Contract meets the requirements of service for the purposes of clause 55 of the Agreement as “service” does not require the performance of work it can be “constituted by the fact of employment”.
• Clause 55 of the Agreement deals with the long service leave entitlement of specialists covered by that agreement and generally provides that long service leave entitlements exist if a specialist has accumulated continuous service for 10 or more years.
• The definition of continuous service is “inclusive and not exhaustive.”
• Clauses 55.8 and 54.3(b) provide a separate and different definition of continuous service. relevantly, for the purposes of 55.8 and 55.6 of the 2018 Agreement, continuous service includes periods for which no work for any employer covered by the 2018 Agreement has occurred and where no payment is made by any employer covered by the 2018 Agreement. This is evident from the fact that continuous service for the purposes of clause 55 includes service with Her Majesty’s Armed Forces and leave of absence where the absence is authorised in advance in writing by the Health Service.
• Service for the purposes of clauses 55.6 and 55.8 needs to be understood having regard to its ordinary meaning, the Macquarie Concise Dictionary relevantly defines the word service as:
• The performance of duties as a servant; occupation or employment as a servant.
• Employment in any duties or work for another, a government, etc.
• Service can be satisfied by the fact of employment.
• The fact that Monash Health did not ask Dr Ang to perform any work during the period of the 2015 Contract cannot derogate from the fact that the 2015 Contract was an employment contract and that is sufficient to meet the definition of “service” for the purposes of clauses 55.8 and 55.6 of the 2018 Specialists Agreement.
• A two step process is required to calculate continuous service in the Agreement.
• First by counting the 10 matters set out in clause 55.6 as part of the period of service and secondly, by taking into account periods identified in clause 55.7 which do not count as service but do not break continuity of service.
• The definition of continuous service with institutions includes “continuous service with Institutions and Statutory Bodies within the meaning of any industrial instrument in operation in Victoria that covered the Doctor prior to the date upon which this Agreement covers the Doctor”.
• This means that continuous service under the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2013 (the 2013 Specialists Agreement} is included.
• proper categorisation of the 2015 contract
• The 2015 Contract is described as being a casual contract and the 2015 Contract purports to engage Dr Ang as a casual Specialist.
• Casual employment of Specialists and Doctors in Training is permitted under the Medical Practitioners Award 2010.
• The Medical Practitioners Award 2010 is the modern award underpinning the following enterprise agreements:
• Victorian Public Health Sector (AMA Victoria) - Doctors in Training (Single InteresEmployers) Enterprise Agreement 2013 (the 2013 DiT Agreement)
• AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2013 (the 2013 Specialists Agreement)
• AMA Victoria - Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021 (the 2018 DiT Agreement)
• AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021 (the 2018 Specialists Agreement)
• The 2013 DiT Agreement and the 2018 DiT Agreement both provide for the casual employment of Doctors covered by those agreements.
• The 2013 Specialists Agreement and the 2018 Specialists Agreement do not provide for the employment of casual Specialists.
• As casually employed Specialists are not excluded from coverage of either the 2013 Specialists Agreement or the 2018 Specialists Agreement and as both the 2013 Specialists Agreement and the 2018 Specialists Agreement do not provide for the employment of casual Specialists then casual employment of Specialists is not permitted under both the 2013 Specialists Agreement and the 2018 Specialists Agreement.
• In response to an argument advanced by the Respondent that the 2013 Specialists agreement did not prohibit Monash Health from engaging casual employees, the Applicant submits as follows:
36. If casual Specialists were employed or intended to be employed by the Respondent or any other of the 37 Health Services named as being covered by the 2013 Agreement then such casual Specialists would be outside of the coverage of the 2013 Agreement. This would have required the Respondent and the other Health Services to have identified this fact and would have required the Respondent and the other Health Services to have explained to the FWC why the group of Specialists to be covered by the 2013 Agreement was fairly chosen when the group only contained Full time and Fractional Specialists but excluded casual Specialists.
37. Further if casual Specialists were employed or intended to be employed by the Respondent or any other of the 37 Health Services named as being covered by the 2013 Agreement, but the same casual Specialists were to be excluded from coverage of the 2013 Agreement, then the Respondent and the other Health Services covered by the 2013 Agreement would have had to explain the coverage term of the 2013 Agreement and the effect of the coverage term of the 2013 Agreement to ensure that those Specialists who were to be covered by the 2013 Agreement and who would make the 2013 Agreement understood which Specialists were to be covered by the 2013 Agreement and which Specialists were to be excluded from the coverage of the 2013 Agreement.
38. The Respondent has failed to provide any evidence that addresses the issues raised by Principle 13 in Berri and by sections 180(5), 186(3) and (3A) of the Fair Work Act.
39. In the absence of clear evidence that casual employment of Specialists was occurring or intended to occur at the time of the making of the 2013 Agreement and was clearly intended to be outside of the coverage of the 2013 Agreement then the Commission should draw the proper conclusion that casual employment of Specialists is not covered by the 2013 Agreement because casual employment of Specialists was neither occurring nor intended to occur during the life of the 2013 Agreement.
40. In the absence of the evidence referred to above it is clear that the 2013 Agreement was intended to operate to the exclusion of the Medical Practitioner Award 2010 in relation to casual employment. In other words the only permitted forms of employment for Specialists were Full time or Fractional and that casual employment of Specialists was not contemplated nor permitted under the 2013 Agreement.”
• The Applicant points to “principle 13 in Berri and sections 180(5), 186(3) and (3A) of the Fair Work Act” 8 to argue that “casual Specialists would be outside of the coverage of the 2013 Agreement” and therefore the 2015 Contract that was underpinned by the 2013 Agreement could have only been a contract for a fractional specialist.
[19] The Respondent contends that the question to be arbitrated should be answered “no” and in support of this position advances the following arguments:
• The principles adopted in Skene and Berri as to the proper course for interpretation of an agreement are appropriate 9
• That applying these principles the Commission should find that Dr Ang did not perform ‘service’ for Monash Health and, as a result, she did not perform ‘continuous service’ under the 2015 Contract. 10
• In the absence of an express definition, the term ‘service’ in an enterprise agreement takes its ordinary meaning and that ordinary industrial meaning of the word ‘service’ in Australia is a ‘period of employment’. 11
• That the ordinary definition incorporates a requirement that a person performs or carries out the relevant duties or work. 12
• Casual workers can render service but at common law each casual engagement, i.e. each individual shift by a casual employee ‘stands alone’ and must be considered a separate engagement. That common law rule applies unless it is displaced by the terms of the Agreement and in this case the Agreement does not evince an intention to displace that rule. 13
• That a signed agreement reflecting that an applicant was ‘in a pool of casuals and may be offered future engagements should suitable opportunities arise’ did not ‘establish’ an ‘employment relationship’. 14
• That under the 2015 Contract, Dr Ang was not requested to work and she did not perform any work. Therefore, Dr Ang did not perform any service within its ordinary meaning. 15
• That each engagement of Dr Ang as a casual would have constituted a separate period of service notwithstanding that Dr Ang did not perform any engagements. 16
• That the 2015 Contract merely established the terms and conditions by which any future engagements by Monash Health would be governed. As Dr Ang never completed a shift under this agreement, “no employment relationship was established” and therefore Dr Ang never performed ‘service’ under the 2015 contract.
• The fact that there are exemptions in contained within the Agreement for training and military service does not detract from the fact that the Applicant did not perform any service under each category of the exemptions. 17
The 2015 Contract constituted a break in Dr Ang’s continuous service
• The Respondent contends that Dr Ang was absent from work between 2 February 2015 to 16 September 2016. 18
• That when applying the construction that clause 55.6 contains exemptions that do not break service and 55.7 contains events that do count as service, then between 2 February 2016 and 16 September 2016, “Dr Ang did not perform any service or attend work in any capacity for Monash Health.” 19
• Dr Ang was employed on a full-time basis by MIA Victoria Pty Ltd, which trades as I-MED Network Radiology and describes itself on its website as ‘the leading private diagnostic imaging provider in Australia’. Monash Health submits the period Dr Ang was employed with I-MED amounts to a break in service.
• That Dr Ang’s absence from work does not fall within any of the types of service or breaks listed in cl 55.6 of the Agreement.
• The Respondent rejects the Applicant’s contention that Dr Ang can rely on the exemption in clause 55.6(a) as I-MED is not an Institution, nor a Statutory Body directly associated with such an Institution and therefore that the exemption in 55.6(a) does not apply.
Dr Ang was ineligible to accrue continuous service as a casual employee
• That Dr Ang was engaged as a casual employee and was therefore ineligible to accrue long service leave under the 2015 Contract based on the proper interpretation of the Agreement.
• Section 22(1) of the Fair Work Act does not expressly define service but does provide for a common law meaning being “an unbroken period of service” 20
• That while casual employees can render service, with respect to casual employees ‘there is no continuity of service from one engagement to the next’ and that ‘continuous service is inconsistent with casual employment’ 21
• Clause 55 of the Agreement does not alter the common law definition of casual employee under the Agreement.
• Had it been intended that a permanent employee was entitled to have service as a casual employee recognised as ‘continuous service’, contrary to the common law this would have been expressly provided for in clause 55 of the Agreement. 22
• That since the 2015 Contract was a contract was for casual employment, Dr Ang cannot have accrued continuous service during that period. 23
• That applying s 15 of the Act and following the Rossato indicia, it can be concluded that the nature of Dr Ang’s employment under the 2015 Contract, there was no ‘firm advance commitment to continuing and indefinite work according to an agreed pattern of work’, as reflected by the terms and conditions of employment into which the parties entered at the time the offer was made”
• The nature of the 2015 Contract, including the causal loading provided to Dr Ang, is a strong indication that the contract was intended as a casual employment contract. 24
• The Fact that Dr Ang was not entitled to “fractional allocation of hours and she was not entitled to annual leave” 25 is further indication of its casual nature.
• 2013 Agreement excludes casual employment of Doctors
• The Respondent argues that that the 2013 Specialists Agreement did not prohibit Monash Health from engaging doctors as casual employees and contend the 2013 Agreement said nothing about such employment. 26
• That if the 2013 Agreement did not provide for casual employments, then the casual employment would be provided for by the “Fair Work Act 2009, the Medical Practitioners Award 2010, and common law employment contracts.” 27
Consideration
[20] Before turning directly to the question posed by the parties, I note that the parties were for some time unable to reach agreement as to the question posed for arbitration. Relevantly, the Applicant asks the Commission to restrict its enquiry to the specific question posed and to disregard the Respondent’s second contention set out in its written submissions, that Dr Ang’s absence from Monash Health from 2 February 2015 to 16 September 2016 constituted a break in her continuous service. 28 I have answered the question posed by the parties noting the Respondent’s submission that the dispute can be resolved without addressing the Respondent’s alternate submission above.29
[21] That said, I consider it worth noting that the question posed incorrectly suggests an answer because it assumes the existence of service and asks whether Dr Ang’s “service” under the 2015 Contract counts as continuous service for the purpose of clause 55.6 of the Agreement. In my view, it is a misguided assumption there being no service performed by Dr Ang pursuant to the 2015 Contract.
[22] For completeness, I observe that the 2015 Contract is headed “Casual Medical Officer Casual Employment Agreement” and sets out the terms of appointment in clause 1 as follows: “1.1 as a casual employee you may be offered any number of shifts, or no shifts” ... and “you are free to accept or reject such offers.” The contract also states that “the employment relationship is such that Monash Health may elect to offer engagements on a particular day and you, as the employee to this agreement has the ability to elect whether you want to work or not.” 30
[23] Clause 3 of the 2015 Contract, which deals with remuneration, provides that there is no entitlement to annual leave, sick leave, compassionate leave “or long service leave” as the “rate of pay includes a loading in lieu of such benefits”. Schedule 2, headed “Position Details”, describes Dr Ang’s title as “Casual Medical Officer - Monash Imaging Program”.
[24] In addition, the Dr Ang and Monash Health entered into a further contract in September 2016 headed “Fractional Senior Medical Practitioner Employment Agreement” which sets out in schedule 2 the position details and remuneration in which the hours of work per week are 8.5 and the classification description is “Spec Year 2, 7.1-10.5 hrs”. I note that the 2016 Contract provides for entitlement to annual leave, sick leave and long service.Further, unlike the 2015 Contract, it provides that “further terms and conditions of the appointment are contained in applicable legislation and the AMA Victoria - Victorian Public Health Sector Medical Specialists Enterprise Agreement 2013 (Enterprise Agreement). However, those terms and conditions are not incorporated into and do not form part of this Agreement” 31. I note that the 2015 Contract makes no mention of the 2013 Specialists Agreement.
[25] As stated above, the parties agree that “Dr Ang did not perform any service, nor was she paid any remuneration, under the 2015 Contract”. It is not in contest that from 9 February 2015 to 16 September 2016, Dr Ang was employed on a full-time basis by MIA Victoria Pty Ltd, which trades as I-MED Network Radiology and describes itself on its website as ‘the leading private diagnostic imaging provider in Australia’.
[26] In accordance with the principles earlier stated, the construction of the agreement begins with a consideration of the “ordinary meaning of the words, read as a whole and in context.” 32 Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of clause 55 in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context. The interpretative task also requires a consideration of the “language of the particular agreement, understood in the light of its industrial context and purpose” and a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”33 There is no real contest between the parties as to the approach to the interpretation of the terms of an enterprise agreement.
[27] Clause 55, headed “Long Service Leave”, broadly sets out the entitlement to Long Service Leave with pay for “continuous service” with Institutions and Statutory Bodies and provides an entitlement for leave for six months after 15 years of continuous service and where the health service agrees on a pro rata basis after 10 years. The remaining sub clauses of clause 55, deal largely with the mechanism to be adopted by the health service to determine eligibility for Long Service Leave.
[28] The Applicant submits that “calculating continuous service is determined by applying a two step process”. 34 I agree with the Applicant that clause 55.6 sets out the breaks that are counted as “part of the period of service.” Second, the periods identified in 55.7 “do not count as service” but “do not break continuity of service”. That said, I note that the Applicant does not rely on Clause 55.7 “for the purposes of answering the question”35. I observe that the approach posited by the Applicant above is broadly consistent with the approach set out at clause 55. 5 headed “Calculating Service for Entitlement to Leave”.
[29] The Applicant further submits that the “question is to be answered by considering the application and operation of clause 55.6(a)” and 55.8 and I note the Applicant’s concession that paragraphs (b) through to (j) of Clause 55.6 do not apply to Dr Ang’s circumstances and are not relied upon. 36
[30] The Applicant states that the word “service” in clause 55.6(a) must be understood “having regard to its ordinary meaning” and does not require the performance of work. In essence, the Applicant submits that “service” can be constituted by the fact of the “employment”. In support of its submission the Applicant points to the Macquarie definition of “service” as “the performance of duties as a servant; occupation or employment as a servant” 37 and “employment in any duties or work for another, a government, etc.”38. Further, the Applicant points to allowances for gaps in service which count as service under the 2018 Specialists Agreement, such as service with Her Majesty’s armed forces (see clause 55.6(b)), a leave of absence that is authorised in advance in writing by the Health Service to be counted as service (see clause 55.6(e)), and time spent undertaking a specialist training program accredited with an employer (see clause 55.6(g)), as evidence of instances where gaps in service are counted as service under the Agreement and do not require the performance of work.
[31] It follows, according to the Applicant, that whether the 2015 Contract is a casual contract or a contract for a fractional specialist, “it is a contract of employment” and is sufficient to constitute “service” for the purpose of clause 55.8 and 55.6(a). 39 Further, the Applicant submits that Dr Ang was prepared to work for the Respondent and “the fact that Monash Health did not ask Dr Ang to perform any work during the period of the 2015 contract cannot derogate from the fact that the 2015 contract was an employment contract” and meets the definition of “service” for the purposes of clauses 55.8 and 55.6(a).40
[32] Further the Applicant submits that the 2015 Contract properly characterised, is a contract of employment for a fractional specialist under the 2013 Specialists Agreement. This aspect of the argument appears to be premised on the Applicant’s assertion that the 2013 Specialists Agreement (unlike the respective 2013 DiT Training Agreement) does “not provide” 41 for the employment of casual specialists. As the 2015 Contract was “made” during the operation of the 2013 Specialists Agreement, which is “underpinned”42 by the Medical Practitioners Award 2010, it follows that the 2015 Contract is a contract of employment for a fractional specialist.43 That is, given that it is not a full-time contract of employment “the 2015 Contract was not and could not be a contract for the casual employment of a Specialist”44 and accordingly the Applicant contends that “the 2015 Contract was and could only be a contract for the employment of a Fractional Specialist under the terms of the 2013 Specialists Agreement.”45 To support its submission, the Applicant relies on principle 13 of the Berri decision and s.186(3) and (3A) of the Fair Work Act 2009 (Cth).
[33] The Applicant also contends that in the absence of clear evidence that casual employment of specialists was occurring or was intended to occur at the time of the making of the 2013 Specialists Agreement, “the Commission should draw the proper conclusion that casual employment of specialists is not covered by the 2013 Agreement.” 46 Further the Applicant submits “the only permitted forms of employment were Full time or Fractional and that casual employment of Specialists was not contemplated nor permitted under the 2013 Agreement.”47
[34] Further, in support of its position, the Applicant points to the evidence of Dr Ang, that she was advised by Mr Mathew Jetmar, Advisor - People and Culture, that “casual service does not break service for the purpose of long service leave (LSL) 48, that on 17 January 2019, Dr Ang received a letter from Monash Health confirming that she “commenced employment with Monash Health on 08 Feb 2010” and that in November 2020, Dr Ang received an award from Monash Health “in recognition of 10 years of dedicated service to Monash Health”.
[35] For the reasons below, I have concluded that the answer to the question posed is “no”. As stated above, the interpretation of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the terms of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context may appear from the text of the Agreement viewed as a whole, the disputed provision’s place and arrangement in the Agreement and the legislative framework under which the Agreement is made. Clause 55 of the 2018 Specialists Agreement has been reproduced above after paragraph 10. Outside of clause 55, there is little to be gleaned from the context of the provisions of the Agreement that provides assistance in the interpretation of clause 55.
[36] I have stated that the question posed by the parties incorrectly assumes that Dr Ang has performed “service” under the 2015 Contract. The parties did not dispute that the words in the Agreement were to be given their ordinary meaning, nor was it seriously suggested that the words in the clause are ambiguous or capable of more than one meaning. I agree with the parties that the words of clause 55.6 should be given their ordinary meaning. The relevant consideration is whether Dr Ang’s “service” was continuous for the purposes of clause 55.6. I agree with the Respondent that in the absence of a definition, the term service takes its ordinary meaning and that the ordinary industrial meaning of the word service is “a period of employment” which incorporates a requirement that a person performs or carries out relevant duties or work. I note the definition of “service” in section 22 of the Act, although not directly relevant, accords with this common meaning.
[37] There is no contest that Dr Ang did not perform any service (in its ordinary meaning) and as such there can be no continuous service pursuant to clause 55.6. In my view, the performance of work is an important consideration in determining whether an employment relationship has commenced. I agree with the Respondent that the ordinary definition of the word “service” includes a requirement that “that a person performs or carries out the relevant duties or work.” 49
[38] In all the circumstances, I am of the view that Dr Ang did not perform “service” within the ordinary meaning of that term for the purpose of clause 55 of the 2018 Specialists Agreement. It follows that there was no continuous service for the purposes of clause 55.6. The Applicant referred me to the decision of Belaj v Royal Women’s Hospital[2012] FWA 4067. In my view, the decision of Commissioner Ryan (as he then was) can be distinguished from the case before me principally on the basis that it did not relate to casual employment.
[39] As to the Respondent’s alternative argument that Dr Ang was engaged as a casual employee and was therefore ineligible to accrue long service leave under the 2015 Contract, I note that the 2015 Contract is a contract for a “Casual Medical Officer – Monash Imaging Program” 50. It establishes the terms and conditions that would govern any engagements of Dr Ang by Monash Health. Clause 3.2 of the 2015 Contract expressly states that Dr Ang is not entitled to long service leave as her rate of pay included “a loading in lieu of such benefits.”.
[40] I note the comments of the Full Bench in Unilever that:
“Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument. In this case, the Agreement says nothing about the matter.” 51
(my emphasis added)
[41] It is clear from the above that the common law position that casuals cannot accrue long service leave can be displaced by “statute, industrial instrument or contract”. That said, I agree with the Respondent that “the common law position remains unaltered by clause 55” and that there is nothing in clause 55 which displaces the prima facie common law position as outlined above.
[42] As to the nature of Dr Ang’s 2015 contract, I note the comments of the High Court in Rossato 52 ;
“[57] 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. The search for the existence or otherwise of a “firm advance commitment” must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement.
…
[62] To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.
[63] To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce “something more than an expectation” but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties’ bargain “a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made” 53 Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute.”54
[43] In my view, it follows from the above that the 2015 Contract was a casual contract of employment and Dr Ang cannot have accrued continuous service under that contract for the purpose of clause 55.6.
[44] As to the proposition that in light of the fact that the 2013 Specialists Agreement is silent as to casual employment and that absent relevant evidence, “the Commission should draw the proper conclusion that casual employment of specialists is not covered by the 2013 Specialists Agreement”, I am of the view that the submission is misconceived. I do not accept the Applicant’s submission that “the only permitted forms of employment for Specialists were Full time or Fractional and that casual employment of Specialists was not contemplated nor permitted under the 2013 Agreement.” 55I note that even if I were to accept the Applicant’s submission that the 2013 Specialists Agreement did not permit casual employment, and that casual employment was in breach of the Agreement, it does not in my view follow by default that Dr Ang was employed on some other contrived basis.
[45] I reject the assertion that the operation of s 186(3) of the Act requires the Respondent to explain persons who are not covered by the Agreement and that its failure to do so supports a conclusion that an inference should be made as to the proper characterisation of the 2015 Contract. The task before me is not whether the 2013 Specialists Agreement was properly made and the inference sought to be advanced by the Applicant is not, in my view, readily apparent on the material before me.
[46] In relation to the Applicant’s submission that “the evidence of Dr Ang at paragraph 13 of her Witness Statement and Attachments 10, 11 and 12 strongly support the contention of ASMOF/ AMA that Monash Health considered that the 2015 Contract was intended to and did constitute service with Monash Health” 56. I note that the 3 attachments referred to are the following materials:
• Attachment 10 is an email between Dr Ang and Monash Health about what constitutes a break in service
• Attachment 11 is a letter from Monash Health confirming Dr Ang commenced her service with Monash Health on 9 February 2010.
• Attachment 12 is a certificate/award from Monash Health to Dr Ang in recognition of 10 years’ service.
[47] I agree with the Respondent that “the evidence of the surrounding circumstances of Dr Ang and Monash Health’s entry into the 2015 Contract is inadmissible to contradict the plain language of the contract” 57In this regard I note the comments his honour Justice Mason in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 where his honour states “evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.”58 As such, any alleged representation of continuity of service arising from the email, letter and certificate/award above cannot displace the plain language of the 2015 Contract that Dr Ang was to be engaged as a casual and that Dr Ang was “not entitled to annual leave, sick leave, compassionate leave or long service leave as your rate of pay includes a loading in lieu of such benefits.”59 I have also considered the Respondent’s objections to the evidence of Dr Ang on the grounds of hearsay and relevance and note that Dr Ang was not subject to cross examination. For the reasons above, I have given the evidence as to surrounding circumstances limited weight.
[48] As to the Applicant’s submission that that the Respondent was required to make a minimum payment to Dr Ang pursuant to the 2015 Contract irrespective of whether or not she performed any work for the Respondent pursuant to the 2015 Contract, I note for completeness the Applicant’s concession that “the FWC does not have jurisdiction to deal with a back-pay claim” 60 but that the Fair Work Commission can “determine that the 2015 Contract did require the Respondent to pay Dr Ang in accordance with Table 3 of Schedule B of the 2013 Specialists Agreement.”61 Given the question posed by the parties, I have not addressed this submission.
Conclusion
[49] The Applicant was absent from Monash Health for a period of in excess of 18 months. To accept the Applicant’s contention, Dr Ang’s absence from Monash Health could continue indefinitely, whilst Dr Ang continued to accrue “service” with Monash Health. Such an outcome is in my view incompatible with a textual and contextual reading of clause 55 and would result in outcomes which are potentially “contrary to commonsense” 62
[50] Given the manner in which the parties framed the question for arbitration, and the concessions of the parties referred to above, I have disposed of the dispute by answering the question posed, noting my comments at paragraphs 20 and 21 above.
[51] For the reasons above, in my view the answer to the question posed is “no”. Dr Ang’s service under the 2015 Contract did not count as continuous service for the purpose of clause 55.6 of the Agreement.
COMMISSIONER
Appearances:
Mr John Ryan for the Applicant.
Mr Mark Rinaldi of Counsel for the Respondent.
Hearing details:
9 November 2021, Melbourne, by Microsoft Teams.
Final written submissions:
Applicant: 29 October 2021.
Respondent: 15 October 2021.
Printed by authority of the Commonwealth Government Printer
<PR735931>
1 AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021, clause 4.1.
2 Directions for Arbitration, 6 August 2021.
3 Respondent’s Outline of Submissions, 15 October 2021, [2].
4 [2017] FWCFB 3005, [114].
5 Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447, [19] – [40].
6 [2018] FCAFC 131, [197].
7 Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.
8 Applicant’s Submissions in reply, 29 October 2021, [33].
9 Respondent’s Outline of Submissions, 15 October 2021, [8].
10 Ibid [7].
11 Ibid [11].
12 Ibid.
13 Ibid [12]
14 Ibid [13].
15 Ibid [14].
16 Ibid.
17 Respondent’s Outline of Submissions, 15 October 2021, [18].
18 Ibid [19].
19 Ibid [22].
20 Respondent’s Outline of Submissions, 15 October 2021, [28].
21 Ibid [29].
22 Ibid [32].
23 Ibid [33].
24 Ibid [35e].
25 Ibid [36].
26 Ibid [39].
27 Ibid [43].
28 Applicant’s Reply Submissions, 29 October 2021, [11] – [16].
29 Respondent’s Outline of Submissions, 15 October 2021, [26].
30 Schedule 2, 2015 Contract between Dr Ang and Monash Health.
31 Clause 3.1 2016 Contract between Dr Ang and Monash Health.
32 WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].
33 WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J).
34 Applicant’s outline of submissions, 27 August 2021, 4.
35 Ibid.
36 Ibid.
37 Ibid 3.
38 Ibid.
39 Applicant’s outline of submissions, 27 August 2021, 4.
40 Ibid.
41 Ibid 5.
42 Transcript of proceedings, 9 November 2021, PN 161.
43 Ibid.
44 Ibid 2.
45 Ibid.
46 Ibid [39].
47 Ibid [40].
48 Attachment 10, Witness statement of Dr Ang, Email dated 4 March 2019.
49 Respondent’s Outline of Submissions, 15 October 2021, [11].
50 See Schedule 2, 2015 Contract between Monash Health and Dr Ang.
51 Unilever Australia Trading Limited v AMWU (2018) 279 IR 110, [18].
52 WorkPac Pty Ltd v Rossato [2021] HCA 23.
53 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. See also Dietrich v The Queen (1992) 177 CLR 292 at 320. In relation to the position at State level, see Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180.
54 WorkPac Pty Ltd v Rossato [2021] HCA 23, [57] & [62] – [63].
55 Applicant’s Reply Submissions, 29 October 2021, [40].
56 Applicant’s outline of submissions, 27 August 2021, 4.
57 Respondent’s Outline of Submissions, 15 October 2021, [47b].
58 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 35 (Mason J).
59 Clause 3.2, 2015 Contract between Dr Ang and Monash Health.
60 Applicant’s Reply Submissions, 29 October 2021, [9].
61 Ibid [10].
62 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 273 [104] (Kirby J).
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