Australian Salaried Medical Officers Federation v Victorian Institute of Forensic Medicine
[2023] FWC 1046
•3 MAY 2023
| [2023] FWC 1046 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Salaried Medical Officers Federation
v
Victorian Institute of Forensic Medicine
(C2022/3969)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 3 MAY 2023 |
Alleged dispute about a matter arising under an enterprise agreement.
The Australian Salaried Medical Officers Federation (ASMOF) has filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute. ASMOF made its application raising the dispute with the Victorian Institute of Forensic Medicine (VIFM) pursuant to clause 41 of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2018 (Agreement).[1]
Conferences were held on 1 August 2022 and 14 September 2022, following which ASMOF notified an intention to exercise the right under clause 41.8(b) of the Agreement to object to the Member of the Commission who had exercised conciliation powers in relation to the dispute exercising arbitration powers.
A Mention was held before me on 21 November 2022 and the parties eventually agreed upon the following questions they required the Commission to arbitrate:
“(1) What is meant by a “week” for the purposes of clause 13.3 of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologist and Physicians) Agreement 2018 (Enterprise Agreement) for a:
(a)full-time employee; and
(b)fractional employee.
(2) Does the level of remuneration that CFM Physicians receive, including the on-call allowance provided for in clause 13.2 of the Enterprise Agreement and the continuous duty allowance provided for in clause 12 of the Enterprise Agreement, reflect an expectation of CFM Physicians performing remote work when they are required to work remotely when rostered on call pursuant to clause 13 of the Enterprise Agreement which may involve and is not limited to:
(a) answering telephone calls;
(b) providing forensic medical advice during telephone calls;
(c) keeping detailed records in relation to telephone calls answered; and
(d) providing supervision to Forensic Medical Officers and/or Registrars on Duty.”
Principles
The principles that apply to the interpretation of an enterprise agreement have been outlined by the Full Bench of the Commission in AMWU v Berri Pty Ltd[2] (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[3] The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.[4]
The Full Court of the Federal Court in James Cook University v Ridd (Ridd)[5] has since summarised the principles associated with the interpretation of enterprise agreements as follows:
“(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).”[6]
Agreement Clauses
Amongst the definitions in clause 6 of the Agreement, ‘Salary’ is defined as “the usual remuneration payment a Practitioner receives in the normal course of his/her duty.”
In Clause 8, the types of employment, under which practitioners employed under the Agreement are engaged, are defined as follows:
“8.1 Full-time employment
A full-time Practitioner is a Practitioner who is engaged to work an average of 38 hours per week.
8.2 Part-time employment
A part-time Practitioner is a Practitioner that is engaged to work less than full-time hours on a reasonably predictable basis.
A part-time Practitioner is entitled, on a pro-rata basis, to the equivalent pay and conditions of a full-time Practitioner.”
Clause 9 of the Agreement provides:
“9 Hours of Work
9.1A full-time Practitioner’s normal hours of work shall be an average of 38 hours per week which shall be worked between 7.00am and 6.00pm Monday to Friday (“Ordinary Hours”).
9.2 Ordinary Hours will be worked over 4 or more days, as agreed. If the Ordinary Hours are to be worked over less than 5 full days, the half or full day off (as the case may be) shall be explicitly agreed and fixed in advance. The arrangement of such time off shall take appropriate account of the VIFM’s need for continuous cover in the relevant specialty during normal operating hours.
9.3 Ordinary hours will be averaged over a 4 week period.”
Clause 10 of the Agreement provides:
“10 Safe Hours of Work
The obligation to work safely applies to both the VIFM and Practitioners.
Many issues relating to the subject of safe hours are either so complex or so situational that they must be dealt with by the parties involved, based on the situation at hand and within a generally accepted framework.
It is agreed that the National Code of Practice- Hours of Work, Shift work and Rostering for Hospital Doctors forms a suitable framework under which to consider safe working hours issues.
The VIFM confirms its responsibility not to roster or arrange work hours such that an excessive or unsafe work pattern for
Practitioners exists at the VIFM’s place of work. Practitioners should not perform work outside of their principal employment such that it would result in an overall excessive or unsafe work pattern for the Practitioner.”
Clause 11 of the Agreement provides for remuneration and remuneration increases as follows:
“The Annual Salary rates will be increased by the amounts set out below:
a) 9% from the first pay period commencing on or after 1 September 2018
b) 3% from the first pay period commencing on or after 1 September 2019
c) 3% from the first pay period commencing on or after 1 September 2020
d) 3% from the first pay period commencing on or after 1 September 2021
The VIFM will pay a Practitioner in accordance with the annual salary rates and classification structures set out in Appendix 1.
The rates include allowances for Continuous Duty, On Call and Payment in Lieu of Private Practice.”
Clause 12 of the Agreement then deals with Continuous Duty:
“12 Continuous Duty
Practitioners may from time to time, be required to work more than their Normal Hours due to the need to remain on duty when VIFM needs require, notwithstanding the occurrence of normal meal breaks, conferences or the expiration of their rostered hours.
A 10% Continuous Duty allowance is included in the annual salary rates set out in Appendix 1.”
Clause 13 of the Agreement outlines the following in relation to On Call:
“13 On Call 13.1
13.1All Practitioners must be available to perform duty outside their rostered hours, or outside Ordinary Hours as defined by clause 9.1.
13.2A 10% On Call allowance is included in the annual salary rates set out at Appendix 1.
13.3The On Call allowance referred to in clause 13.2 is compensation for up to 10 weeks on call per year. Compensation by way of a further allowance for any period beyond 1 0 weeks will be by way of mutual agreement.
13.4A Practitioner who is on call in accordance with this clause will receive 1 week’s paid annual leave in addition to the entitlement under clause 26.”
Clause 14 of the Agreement provides:
“14 Recall
14.1In addition to the entitlements in clause 13, a Practitioner who is recalled for duty away from the place at which they are available for contact will, in respect of each recall, be paid an amount equal to 1/38th of the weekly wage rate as payment for time spent in travelling, and will also be paid for the actual time worked at the place to which they are recalled at the hourly rate of time and a half on weekdays and double time on weekends or public holidays.
14.2A car is to be made available to a Practitioner when the Practitioner oncall and is recalled to duty.”
Appendix 1 of the Agreement provides:
“50 APPENDIX 1: CLASSIFICATION STRUCTURE AND ANNUAL SALARY RATES
These rates include allowances for Continuous Duty, On Call and Payment in Lieu of Private Practice.”
Question 1
“What is meant by a “week” for the purposes of clause 13.3 of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologist and Physicians) Agreement 2018 (Enterprise Agreement) for a:
(a)full-time employee; and
(b)fractional employee.”
In written submissions, ASMOF stated:
“Question 1 can be answered but attributing a meaning to the word “weeks” in clause 13.3 does not deal with the real issue which is determining whether the On call requirements being imposed by VIFM on the CFMs is reasonable.”[7]
Further, ASMOF submitted that Question 1 should be answered as follows:
“A week as used in clause 13.3 is a period of 7 days each of 24 hours making a total of 168 hours in a week. 10 weeks as referred to in clause 13 3 means a period of 10 weeks in which each week can be a period of 7 days each of 24 hours making a total of 1680 hours in the 10 weeks. The answer to Question 1 is the same for both full time and part time CFMs and in the case of part time CFMs employed on different part time hours the answer does not change.”[8]
At the hearing, ASMOF provided the following answer when asked to outline the purpose of Question 1:
“MR RYAN: When we had the last appearance before you we were trying to work out how to progress this matter and these two issues were discussed by the parties before you. It very clearly appeared to me at that time that the question of purpose 1 was to determine what was actually being paid for in terms of on call availability, and it was only once I sat down and started to carefully look at this issue that I came to the conclusion that we’d asked the wrong question or we’d asked a question that wasn’t necessary to answer…”[9]
When the same question was put to VIFM the following exchange ensued:
“MR O’GRADY: The background to question 1 was that it was being contended by Mr Ryan and his client that a week was 38 hours and that therefore the only on‑call that a physician could be required to work for the 10 weeks was a total of 380 hours, and we took issue with it, because we say, as you’ve seen in our submissions, that a week is in effect all time other than the time that somebody’s rostered to work. Seven days of all the time, other than the time that the physician’s rostered to work.
THE DEPUTY PRESIDENT: Yes.
MR O’GRADY: Mr Ryan, as we understand it, has altered his position, so we are now on a unity ticket, and so the clarification of that question we would say would have utility because it would put to bed the notion that the meaning of ‘week’ as used in clause 13 is informed, in effect, by the meaning of ‘week’ in clause 9 - or rostered hours, a week’s work in clause 9.
THE DEPUTY PRESIDENT: Any time during a seven‑day period during which you’re not rostered to work your 38 hours.
MR O’GRADY: Yes. That’s our answer to question 1 and that’s what we’ve stated in our submissions, and as we understand it, whilst there’s some differences in the figures and we’ve tried to expand upon where we understand those differences are in our written submissions, the notion that a week is simply 38 hours is no longer being ‑ ‑ ‑
THE DEPUTY PRESIDENT: What I’m trying to understand is, is there a dispute here as to how on‑call is rostered?
MR O’GRADY: As we understood it, the issue in respect of a week that we understood was being put forward by the applicant was to the effect that you can only roster 10 times 38 hours in respect of on‑call, and that’s not what we do and it’s not what we’re doing, and as we understand it, there’s no longer a dispute about whether we have to do it in that way.
THE DEPUTY PRESIDENT: Is that correct, Mr Ryan?
MR RYAN: I think that summary is fair. The difficulty with the roster is that the issue was much more complex than just the number of the hours, it was a lot of other factors, but I think the way Mr O’Grady has summarised that in terms of the issue around hours and the way we’ve both approached it in terms of the written submissions we’ve both made to the Commission, which have a high degree of similarity, I think we’re all on the same - or we’re on the same page now in terms of that issue.
Where we’re going to be apart is on a whole range of other issues that relate to the rostering, which are not necessary to determine the question of what is a week.
THE DEPUTY PRESIDENT: Again, I’m just trying to get to the - Mr Ryan, you’ve been asked to project your voice by the monitors, so just when you’re speaking, just if you can project it towards the microphone there. I don’t have any problem projecting my voice, as you can discern.
MR RYAN: Yes. So, Deputy President, I think there’s a high degree of unanimity of view between us and the respondent in relation to this question around the hours and it may be that this is an issue that has evolved as we’ve been progressing this dispute.
I don’t take any issue with Mr O’Grady’s characterisation of how this issue was first (indistinct), but I think that what has become clear is that the issue of what constitutes the week for the purposes of the on‑call payment issue, we’re in high levels of agreement.
THE DEPUTY PRESIDENT: Yes. See, I don’t know really what I need to do with question 1 now. I don’t think much turns on it.
MR O’GRADY: Well, from our part, Deputy President, we’d ask that you answer it in the way that we’ve said it should be answered, which we deal with ‑ ‑ ‑
THE DEPUTY PRESIDENT: Yes, all right. Yes. I can’t see how much relevance it really has.
MR O’GRADY: So that’s dealt with in paragraph 4.
MR RYAN: Deputy President, I do think that there is real benefit in terms of answering the question. Even if we might have asked the wrong question or it might have been phrased in the wrong way, it still, I think, is a very relevant question.”[10]
Both parties have referred to the definition of a “week” in the Macquarie Concise Dictionary (5th Edition):
“a period of seven consecutive days, commonly understood as beginning (unless otherwise specified or implied) with Sunday, followed by Monday, Tuesday, Wednesday, Thursday, Friday and Saturday.”
Both parties have also submitted a week is simply a period of seven days. VIFM submits that, in the context pertaining to the parties, a “week” is a seven day period and further, that on each of the seven days, the period during which a practitioner can be required to be on call is any time outside their rostered hours on the relevant day, relying on clause 13.1 of the Agreement.[11] In its written submissions, ASMOF asserts a week ‘as used in clause 13.3’ is a period of 7 days.[12]
Clause 13.3 purports to explain what is compensated by the On Call Allowance. Read within the context of clause 13.1 and clause 9, the On Call Allowance applies to time outside a practitioner’s rostered hours or ‘Ordinary Hours’. While the Agreement does not have a provision relating to rosters and the rostering of hours of work, ‘Ordinary Hours’ are defined. Clause 9.1 outlines features of ‘Ordinary Hours’ as being:
A practitioner’s ‘normal’ hours of work;
An average of 38 hours per week, averaged over a four week period;
Worked between 7.00am and 6.00pm Monday to Friday; and
Worked over four or more days, as agreed.
Clause 12 makes reference to ‘Normal Hours’ and ‘rostered hours’ without defining them.
The On Call allowance is described as being compensation for “up to 10 weeks on call per year” in clause 13.3, which also makes provision for compensation by mutual agreement “for any period beyond 10 weeks” (my emphasis). This suggests that a ‘week’, for the purposes of clause 13.3, need not always constitute seven consecutive days. In this regard, I have noted on call is rostered by VIFM on a shift-by-shift basis for Forensic Physicians,[13] and 7-day weekly blocks for On-call pathologists.[14]
I therefore consider that the answers to Question 1 are:
a)For Full Time employees: a ‘week’ for the purposes of clause 13.3 of the Agreement is a period of seven days, with the relevant portion of each day the full time employee is required to be on call being the period outside the employee’s rostered hours or Ordinary Hours (as defined by clause 9.1); and
b)For Part Time employees: the meaning of a ‘week’ for the purposes of clause 13.3 of the Agreement is the same, with clause 13 applied on a pro rata basis.
Question 2
“Does the level of remuneration that CFM Physicians receive, including the on-call allowance provided for in clause 13.2 of the Enterprise Agreement and the continuous duty allowance provided for in clause 12 of the Enterprise Agreement, reflect an expectation of CFM Physicians performing remote work when they are required to work remotely when rostered on call pursuant to clause 13 of the Enterprise Agreement which may involve and is not limited to:
(a)answering telephone calls;
(b)providing forensic medical advice during telephone calls;
(c)keeping detailed records in relation to telephone calls answered; and
(d)providing supervision to Forensic Medical Officers and/or Registrars on Duty.”
ASMOF submits,[15] the Annual Salary Rates set out in Appendix 1 of the Agreement comprise the following:
The Agreement does not contain Overtime or Additional Hours payment clauses, but it may be noted that the Recall clause (clause 14.1) provides for penalty rates to be paid for actual time worked when a practitioner is recalled for duty away from the place where they are on call.
ASMOF submitted that the essence of Question 2 is whether remote work performed whilst on call is paid for.
When asked at the hearing to articulate the purpose of the On Call allowance in clause 13.2 of the Agreement, Mr Ryan for ASMOF submitted it was:
“To pay a person for being at a place where they have to hold themselves ready to either return to work - or to return to work. They have got to be available. That’s the on call component of it.”[16]
This proposition was expanded upon as follows:
“MR RYAN: Well, the proposition is that the on call is, and this is what the language of the enterprise agreement says, available for contact. That’s what they’re being paid for, available for contact.
THE DEPUTY PRESIDENT: Indulge me here; the phone rings, what happens?
MR RYAN: They pick it up and answer it.
THE DEPUTY PRESIDENT: Right.
MR RYAN: And it’s either going to be come back to work, which means trigger recall. If it means I want you to do some work or you must be doing some work, which is telephone advice or whatever, is not paid for.
THE DEPUTY PRESIDENT: So what are they paid for?
MR RYAN: They’ve only been paid to be available. They’re available for contact, that’s the payment. If they’re going to perform work, and the historic concept is, because this came out of the industrial awards as well, but the historical concept was you simply went back to work, and the old authorities that I showed shows that the Commission has been dealing with this for years.”[17]
ASMOF submitted VIFM is seeking to have the requirement for a practitioner who is on call to perform duty at the place they are available for contact read into clause 14.1 and by doing so, VIFM is attempting to rewrite the clause to create a completely new obligation.[18]
ASMOF asserts that the plain language of clauses 11, 12, 13, 14 and 16 of the Agreement supports the following conclusions.
(a)The base rate of pay component the Annual Salary does not include any payment for Continuous Duty, On Call, Private Practice or Recall to duty because additional payments for each of these four payments are specifically provided for.
(b)The base rate of pay is therefore limited to remuneration for the ‘Normal Hours’/rostered hours/ ‘Ordinary Hours’ worked by a practitioner and the plain words of clauses 9, 11, 12, 13 and 14 of the Agreement support this conclusion.
(c)When a practitioner continues to work after the end of their ordinary hours of work in a period during which they are on call, such work is remunerated through the payment of the Continuous Duty allowance specified by clause 12, as opposed to the base salary or the On Call allowance or payments for Recall.
(d)When a practitioner returns to work during a period of on call, such work is remunerated by the payments for Recall specified in clause 14, as opposed to the base salary or the Continuous Duty allowance or the On Call allowance.
(e)Work performed by a practitioner outside of ordinary hours is not paid for when the practitioner is not On Call or such work is not continuous with their Normal Hours. Further, such work is not remunerated as part of the base rate of pay and nor is such work remunerated through:
i)The payment of Overtime (noting the specific absence of such a clause in the Agreement); or
ii)The Continuous Duty allowance; or
iii)The On Call allowance; or
iv)The payments for Recall specified in clause 14.
(f)Work performed by a practitioner outside of ordinary hours is not paid for when the practitioner is on call but not recalled for duty away from the place where they are available for contact, and the work is not continuous with their Normal Hours. Further, such work is not remunerated as part of the base rate of pay and nor is such work remunerated through:
i)The payment of Overtime (noting the specific absence of such a clause in the Agreement); or
ii)The Continuous Duty allowance; or
iii)The On Call allowance; or
iv)The payments for Recall specified in clause 14.
When questioned about the wording in clause 13.1 of the Agreement, the position of VIFM was articulated as follows:
“MR O’GRADY: Yes, and in our submission, the wording in 13.1 is to the effect that practitioners must be available to perform duty outside of their ordinary hours. So they’ve got to be available to perform duty - not to be contacted but to perform duty.
If the type of duty that they need to perform necessitates a recall then clause 14 kicks in, but if the type of duty that they’re required to perform doesn’t necessitate a recall, then they perform it, and to the extent to which they’re compensated for it, they’re compensated for it pursuant to the provisions in the - or their remuneration level and the 10 per cent allowance, is the way we seek to put it, Deputy President.
THE DEPUTY PRESIDENT: All right.
MR O’GRADY: And again, we would say that a construction that gives rise to a situation where the assistance to, say, a frontline doctor can’t be provided or isn’t dealt with in this agreement when on the evidence historically this is work that has traditionally been performed by these individuals, we would say cuts against the tenor of the authorities on construing enterprise agreements.
It would give rise almost to a Cooper Brookes type capricious outcome and certainly would fail to give sufficient weight to the way in which this work has historically been performed.”[19]
VIFM drew upon the wording of the Recall clause of the Agreement (clause 14.1). VIFM submitted the corollary of clause 14.1’s contemplation of occasions when a practitioner is recalled for duty away from the place at which they are available for contact, is that there will be occasions where a practitioner is recalled for duty at the place at which they are available for contact. VIFM argues that were that not the case, it would be unnecessary for the Agreement to spell out that there is a particular form of recall, namely recall away from the place at which a practitioner is available for contact, that triggers the recall payment provided for by clause 14.1.
VIFM also relied on clause 25.2 of the Agreement:
“25.2 A Practitioner who is required to work on a day-specified in sub-clause 25.1 shall, in addition to being paid for the time so worked, be entitled to have one day added to paid annual leave, or by agreement, one day of paid leave may be taken at any other time. Clause 25.2 does not apply to Oncall pursuant to clause 13 and Recall pursuant to clause 14.”
(emphasis as per original)
VIFM submitted that the wording of clause 25.2 is consistent with the fact that a practitioner who is required to work when they are on call pursuant to clause 13 on a public holiday, will not receive an extra day’s leave. VIFM submitted that if there was no expectation of work when a practitioner is on call pursuant to clause 13, there would be no need to reference clause 13 in the last sentence of clause 25.2.
VIFM also submitted that Question 2 concerns whether or not the parties should be seen to have contemplated, in fixing the level of remuneration and providing for the other remuneration components, that the particularised remote work should be performed. VIFM submitted this was indeed in contemplation and when the level of compensation and the effect of a contrary construction (i.e. that the particularised remote work would not be done or could be refused to be done) are considered, with all of the serious consequences that would flow, the parties should be taken to have had it in contemplation that they would perform that work.
VIFM sought to rely upon the industrial context in which the Agreement was made and in which clauses 13 and 14 of the Agreement were drafted. In this regard, VIFM tendered a witness statement from its Chief Operating Officer, Mari-Ann Scott, dated 19 December 2022. ASMOF did not require Ms Scott for cross-examination but objected to the tender of the witness statement on the basis of relevance. ASMOF submitted the entirety of the witness statement was directed at post-agreement conduct and did not constitute evidence establishing a common understanding and as such, could not be considered an aid to the interpretation of the Agreement.[20] VIFM submitted the statement served to inform the Commission as to what VIFM does, and what the practitioners do. VIFM submitted such evidence would assist the Commission in properly construing the words the parties have adopted in the Agreement.[21] VIFM made the submission that the words of an enterprise agreement are not to be interpreted in a vacuum divorced from industrial realities, but in the light of the customs and working conditions of the particular industry and that the witness statement goes to that, relying on each of Berri, Ridd and The Australian Workers’ Union as authorised representative of several employees covered by the Agreement v Orica Australia Pty Ltd (Orica).[22] I determined to receive the witness statement as evidence[23] and then consider the submissions of the parties as to relevance.
I consider that answering Question 2 requires consideration of clause 13.1 of the Agreement. ASMOF contends that the wording of clause 13.1 of the Agreement establishes that the On Call allowance is payable in return for a practitioner being available for contact, whereas VIFM submits the wording of clause 13.1 is to the effect that practitioners must be available to perform duty outside of their ordinary hours and if the type of duty that they need to perform necessitates a recall, clause 14 (Recall) is then applicable.
Berri provides that the first task in construing an enterprise agreement is to determine whether an agreement has a plain meaning or is ambiguous or susceptible of more than one meaning.[24] If ambiguity is identified, it is permissible to take into account evidence of surrounding circumstances, including the historical context, to aid the interpretative task and resolve the ambiguity.[25] It is equally permissible to take into account the historical context in order to assist in determining whether ambiguity exists in the first place.[26]
I have considered the history of the agreements applicable to the parties and in particular, the way in which the agreements have outlined a regime for payment for work when a practitioner is on call.
I consider the starting point is the Victorian Institute of Forensic Medicine (Full-time Specialist Forensic Pathologist) Agreement 2004 (2004 Agreement),[27] which was described as the first collective employment agreement applicable to VIFM.[28] In the 2004 Agreement, provision for On Call and Recall was outlined in the same clause:
“13. ONCALL/RECALL
13.1 All Officers must be available to be contacted and/or recalled to duty outside their rostered hours, or outside ordinary hours as defined by clause 6.1 for a period not in excess of 10 weeks each calendar year. Such Officers will receive a week’s paid annual leave in addition to the entitlement under clause 23. Remuneration for a period in excess of 10 weeks shall be by way of mutual agreement.
13.2 An Officer who is recalled for duty away from the place at which they are available for contact shall, in respect of each recall, be paid an amount for the actual time worked at the place to which they are recalled at the rate set out below with a minimum of 1 hour to be paid (inclusive of travelling time).
From 1 January From 1 January
2004 2005
$135 per hour $140 per hour
13.3 An Officer shall be paid at the rate per hour set out in 13.2 where a call is outside ordinary hours but continuous with current work.
13.4 An Officer required to be on call shall provide appropriate means of transport.”
(my emphasis)
The On Call requirement was for Officers to ‘be available to be contacted’ and the compensation in return was a week’s paid annual leave (in addition to the annual leave entitlement otherwise provided for by the 2004 Agreement). It may also be noted that the 2004 Agreement contained both a ‘Continuous Duty’ clause and a ‘Private Practice’. Although the annual salary rates[29] were said to include allowances for Continuous Duty, Oncall/Recall and payment in lieu of private practice,[30] there was no quantification of such allowances. Particulars of the compensation for Continuous Duty were instead provided in Clause 13.3 of the 2004 Agreement, with payment effected by the payment of hourly rates of pay outlined in clause 13.2.
The 2004 Agreement was replaced by the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2010 (2010 Agreement).[31] The 2010 Agreement delivered annual salary rates that were substantially higher than the 2004 Agreement.[32] In a change from the 2004 Agreement, On Call and Recall were dealt with by separate clauses and the 2010 Agreement introduced a further change in the form of the compensation arrangements for On Call in the form of a particularised On Call allowance:
“13. ON CALL
13.1 All Practitioners must be available to perform duty outside their rostered hours, or outside Ordinary Hours as defined by clause 9.
13.2 A 10% On Call allowance is included in the annual salary rates set out at Appendix 1.
13.3 The On Call allowance referred to in clause 13.2 is compensation for up to 10 weeks on call per year. Compensation by way of a further allowance for any period beyond 10 weeks will be by way of mutual agreement.
13.4 A Practitioner who is on call in accordance with this clause will receive 1 week’s paid annual leave in addition to the entitlement under clause 26.
14. RECALL
14.1 In addition to the entitlements in clause 13 a Practitioner who is recalled for duty away from the place at which they are available for contact will, in respect of each recall, be paid an amount for the actual time worked at the place to which they are recalled at the following hourly rate with a minimum payment of 1 hour (inclusive of travelling time).
1 January 2010 1 October 2010 1 October 2011
$157.55 per hour $162.67 per hour $167.95 per hour
14.2 A Practitioner shall be paid at the rate per hour set out in subclause 14.1 where a call is outside Ordinary Hours but continuous with current work.
14.3 A car is to be made available to a Practitioner when the Practitioner on-call and is re-called to duty.”
(my emphasis)
The text of the On Call requirement changed from the requirement to be available ‘to be contacted’ to a requirement to be available ‘to perform duty’ and the compensation for On Call was enhanced by the introduction of the 10% On Call allowance, which was payable in addition to the existing entitlement of 1 week’s paid annual leave (itself additional to the annual leave entitlement otherwise provided for in the 2010 Agreement). The 2010 Agreement also increased the hourly rates payable for Recall, added a 10% Continuous Duty allowance to be included in enhanced annual salary rates (and payable in addition to the compensation provided for by Clause 14.2 of the 2010 Agreement) and introduced a 25% allowance in lieu of private practice, also to be included in the enhanced annual salary rates.[33]
The 2010 Agreement was subsequently replaced by the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2014 (2014 Agreement)[34] but apart from increases to the hourly rates payable for Recall in clause, there were no other changes to the terms and conditions pertaining to On Call, Recall or Continuous Duty. The 2014 Agreement also inserted the following into the Public Holidays clause, at clause 25.2:
“Clause 25.2 does not apply to Oncall pursuant to clause 13 and Recall pursuant to clause 14” into its clause 25.2.
When the 2014 Agreement was replaced by the Agreement, there was no change to clause 12 (Continuous Duty) and only a minor, single change to clause 13 (On Call).[35] The payment arrangements in relation to Recall were also subject to change. What had previously been provided for in clauses 14.1 and 14.2 of the 2014 Agreement was varied and consolidated into a new clause 14.1 of the Agreement as follows:
“In addition to the entitlements in clause 13, a Practitioner who is recalled for duty away from the place at which they are available for contact will, in respect of each recall, be paid an amount equal to 1/38th of the weekly wage rate as payment for time spent in travelling, and will also be paid for the actual time worked at the place to which they are recalled at the hourly rate of time and a half on weekdays and double time on weekends or public holidays.”
The relevant conclusions I make from this historical context are as follows:
a)the On Call requirement changed from a requirement to be available ‘to be contacted’ to a requirement to be available ‘to perform duty’;
b)this change was accompanied by the introduction of the 10% On Call allowance, which was payable in addition to the existing entitlement of 1 week’s paid annual leave and contributed to a not insignificant increase to the annual salary rates;
c)Compensation for Recall has remained an entitlement enlivened by the recall of a practitioner for ‘duty away from the place at which they are available for contact’; and
d)The entitlements to payment for time worked on a public holiday, plus an additional day of paid annual leave or paid leave (per clause 25.2) are not to apply to a practitioner who is On Call pursuant to clause 13 and/or recalled for duty pursuant to clause 14 on a public holiday.
The inference I draw from the historical context and these conclusions is that the various changes to the agreement terms reflect an expectation that practitioners would perform work at the place at which they were available for contact while On Call and not simply be available to be contacted.
The following contextual considerations support this interpretation:
a)The obligation to be available to be contacted in the 2004 Agreement was compensated by an entitlement to an additional week of paid annual leave;
b)This obligation and that compensation remain;
c)The new obligation in the 2010 Agreement for practitioners to be available to perform duties while on call in the place at which they are available for contact persists and is still accompanied by the 10% On Call allowance (which is noted by ASMOF to now equate to payments predominantly ranging between $21,004.13 - $28,880.34 per annum, and as high as $33,213.17 per annum);[36] and
d)The wording of clause 25.2 contemplates practitioners who are on call pursuant to clause 13 being required to work on public holidays.
When ASMOF notified its intention to exercise the right under clause 41.8(b) of the Agreement to object to the Member of the Commission who had exercised conciliation powers in relation to the dispute exercising arbitration powers, it described the state of affairs in an email to the Commission dated 11 October 2022, as follows:
“Matter C2022/3969 was subject to conciliation most recently on 14 September 2022. As you are aware, the parties were not able to progress the dispute towards a conciliated outcome.
In accordance with clause 41 of the VIFM Specialist Forensic Pathologists and Physicians Agreement 2018, the AMA seeks to progress this dispute to Arbitration and on this basis we request advice as to the steps that will now be taken for the matter to be reallocated to another member of the FWC, in accordance with clause 41.8.”
The response to this email from the lawyers for VIFM dated 12 October 2022 included:
“At the conclusion of the last conference … on 14 September 2022, the applicant agreed to provide … its proposed question for arbitration by 28 September 2022 prior to any further steps being taken in this matter - including the referral of the matter to another member of the Fair Work Commission. The applicant has not, to date, identified with any specificity the manner in which this dispute is said to arise under the VIFM Specialist Forensic Pathologists and Physicians Agreement 2018 (Agreement) or the specified issue it seeks to be arbitrated under the Agreement. Our understanding is that the purpose of the provision of the proposed question … was to enable that the true issues in dispute in the matter to be ventilated between the parties before the matter is referred to arbitration. However, to our knowledge, this has not occurred.
The respondent therefore respectfully requests that, if the applicant does wish to proceed to arbitration, that the step agreed at the conference on 14 September 2022 is undertaken before the matter is referred for arbitration.”
On 14 October 2022, ASMOF submitted a three-page position paper with the title “Matters to be arbitrated” which outlined 16 questions. At the Mention on 21 November 2022, VIFM tabled 23 questions in response. Ultimately the two Questions outlined above at paragraph [3] were agreed by the parties but as I have outlined above at paragraph [17], the ASMOF position at the hearing in relation to Question 1 became:
“MR RYAN: When we had the last appearance before you we were trying to work out how to progress this matter and these two issues were discussed by the parties before you. It very clearly appeared to me at that time that the question of purpose 1 was to determine what was actually being paid for in terms of on call availability, and it was only once I sat down and started to carefully look at this issue that I came to the conclusion that we’d asked the wrong question or we’d asked a question that wasn’t necessary to answer…”[37]
The parties then further addressed Question 1 in the terms outlined in paragraph [18] above.
By the conclusion of the hearing Mr Ryan for ASMOF made the following submissions:
“I need to say to the Commission that the nature of the dispute as it existed at the commencement of this arbitration and the nature of the dispute as it existed when I filed the written submissions on behalf of the applicant and the respondent filed its written submissions - the nature of that dispute is most likely going to be significantly changed by events which have occurred as a result of the intervention of another authority, namely WorkSafe.
I’m not yet certain as to how much of the nature of the dispute will change, but even once the Commission answers the two questions that we have posed, consistent with what the Commission said that time we had the mention, the directions, the Commission’s never going to answer 23 questions that were posed by the respondent and I suspect that the number of questions that even I posed would have been a bit much.
The parties are going to have to sit down at some point and redefine and clarify the questions, and recent events as a result of WorkSafe intervention will eventually play a role in redefining some of those questions.
So there is no value in having a look at any of the elements that are in section 62. It’s simply not relevant at this point of time for the Commission to have regard to section 62 when the issues before the Commission are only what is the meaning of two - or issues involving the interpretation of terms in the enterprise agreement. If the Commission pleases.”[38]
The Commission’s task in exercising arbitration powers has been carried out in circumstances in which there has been an unhelpful lack of clarity relating to the nature of the dispute. Indeed, the nature of the dispute appears to be in a perennial state of change. Uncertainty regarding questions that require resolution in order for there to be resolution of the dispute (or disputes) between the parties persists.
Ultimately, having regard to the changes that have been made to the text of clause 13 and the other agreement terms to which I have referred, the introduction of the 10% On Call allowance for inclusion in the annual salary rates and the unchallenged evidence regarding the categories and pattern of On Call work that has been performed by Clinical Forensic Medicine Physicians (CFM Physicians) during the operation of the various agreements,[39] I consider the answer to Question 2 as put by the parties is that the level of remuneration that CFM Physicians receive reflects an expectation that CFM Physicians will perform remote work when they are required to work remotely when rostered on call pursuant to clause 13 of the Agreement, which may involve and is not limited to answering telephone calls, providing forensic medical advice during telephone calls, keeping detailed records in relation to telephone calls answered and providing supervision to Forensic Medical Officers and/or Registrars on Duty.
Disposition
The answers to the questions the parties have asked the me to determine are as follows.
Question 1
“What is meant by a “week” for the purposes of clause 13.3 of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologist and Physicians) Agreement 2018 (Enterprise Agreement) for a:
(a)full-time employee; and
(b)fractional employee.”
a)For Full Time employees: a ‘week’ for the purposes of clause 13.3 of the Agreement is a period of seven days, with the relevant portion of each day the full time employee is required to be on call being the period outside the employee’s rostered hours or Ordinary Hours (as defined by clause 9.1); and
b)For Part Time employees: the meaning of a ‘week’ for the purposes of clause 13.3 of the Agreement is the same, with clause 13 applied on a pro rata basis.
Question 2
“Does the level of remuneration that CFM Physicians receive, including the on-call allowance provided for in clause 13.2 of the Enterprise Agreement and the continuous duty allowance provided for in clause 12 of the Enterprise Agreement, reflect an expectation of CFM Physicians performing remote work when they are required to work remotely when rostered on call pursuant to clause 13 of the Enterprise Agreement which may involve and is not limited to:
(a)answering telephone calls;
(b)providing forensic medical advice during telephone calls;
(c)keeping detailed records in relation to telephone calls answered; and
(d)providing supervision to Forensic Medical Officers and/or Registrars on Duty.”
Answer: Yes.
DEPUTY PRESIDENT
Appearances:
J Ryan for the Applicant.
C O’Grady KC and M Garozzo of counsel for the Respondent.
Hearing details:
2022.
Melbourne.
December 21.
[1] AE501917.
[2] [2017] FWCFB 3005.
[3] [2014] FWCFB 7447.
[4] [2017] FWCFB 3005 at point 1 in [114].
[5] [2020] FCAFC 123.
[6] Ibid at [65].
[7] Written Submissions of ASMOF at 31.
[8] Ibid at 32.
[9] Transcript at PN 74.
[10] Ibid at PN 219–236.
[11] Writeen Submissions of VIFM at 16.
[12] Written Submissions of ASMOF at 32.
[13] Exhibit R1 at paragraph 111.
[14] Ibid at paragraph 126(c).
[15] Written submission of ASMOF at paragraph [36].
[16] Transcript at PN 71.
[17] Transcript PN 147-153.
[18] Transcript PN 57 and PN 58.
[19] Transcript PN 165-169.
[20] Transcript PN 28 and PN 37.
[21] Transcript PN 93.
[22] [2022] FWCFB 90.
[23] Witness Statement of Mari-Ann Scott dated 19 December 2022 – Exhibit R1.
[24] [2017] FWCFB 3005 at point 7 in [114].
[25] Australian Federation of Air Pilots v Regional Express Holdings Ltd t/a Regional Express[2017] FWCFB 4182 at [39].
[26] Ibid and Short v FW Hercus Pty Ltd [1993] FCA 72, (1993) 46 IR 128 at 134-136 per Burchett J; AMWU v Berri Pty Limited [2017] FWCFB 3005 at point 8 in [114].
[27] AG835653.
[28] Exhibit R1 at paragraph 129.
[29] AG835653 at Clause 11.1
[30] Ibid at Clause 11.2.
[31] AE877343.
[32] Ibid at Appendix 1.
[33] Ibid at Clause 16.
[34] AE409639.
[35] The reference to ‘clause 9’ in clause 13.1 was changed to ‘clause 9.1’.
[36] Written submission of ASMOF at paragraph [36].
[37] Transcript at PN 74.
[38] Transcript PN 283 – 286.
[39] Exhibit R1 at paragraphs [109] – [113] and [129] – [132].
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