John Wilson v Australian Capital Territory as represented by Act Health Directorate

[2015] FWC 7835

[2015] FWC 7835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238—Scope order

John Wilson
v
Australian Capital Territory as represented by ACT Health Directorate and others
(B2014/1133)

Jennifer Wyborn
v
Australian Capital Territory as represented by ACT Health Directorate and others
(B2015/275)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 13 NOVEMBER 2015

Proposed scope orders regarding a proposed enterprise agreement for medical practitioners employed in the ACT Public Service – applications dismissed.

[1] On 17 December 2014 Mr John Wilson, a bargaining representative for seven radiation oncologists employed by the Australian Capital Territory (the Territory) as represented by ACT Health and Calvary Health Care Pty Ltd (Calvary), together referred to as the Respondents, lodged an application under s.238 of the Fair Work Act 2009 (the Act) for a scope order. This was followed on 9 February 2015 by an application for a scope order by Ms Jennifer Wyborn, a bargaining representative for 48 senior medical practitioners (SMPs) employed by the Respondents. The applications relate to negotiations for a proposed enterprise agreement covering medical practitioners employed by the Respondents.

[2] The applications were listed for mention and directions by the Fair Work Commission (the Commission) on 9 February 2015 and were heard together on 11 and 30 March 2015. Mr Wilson appeared on his own behalf, while Mr David Chin of Counsel and Ms Heidi Robinson of Counsel appeared with permission for Ms Wyborn and the Territory respectively.

[3] Witness statements were provided by:

• Dr Hany Elsaleh, the Director of Radiation Oncology at the Radiation Oncology department within the Canberra Hospital (TCH), on behalf of Mr Wilson;



• Ms Wyborn; Dr Bronwyn Avard, the Clinical Director of Intensive Care at TCH; Dr Vaughn Oerder, the Deputy Director of Anaesthesiology at TCH; Dr Paul Burt, a staff specialist anaesthetist at TCH; Dr Simon Robertson, a staff specialist anaesthetist and intensivist at TCH; and Dr Heman Tse, a staff specialist anaesthetist at TCH on behalf of Ms Wyborn;



• Professor Frank Bowden, the Chief Medical Administrator – Canberra Hospital and Health Services and ACT Health, and Mr Russell Noud, Director – Public Sector Industrial Relations in the Chief Minister, Treasury and Economic Development Directorate of the ACTPS, on behalf of the Territory; and



• Dr Lavinia Hallam, the President of the Australian Salaried Medical Officer’s Federation ACT Branch (ASMOF).

[4] For the reasons set out below, I decline to make the Orders sought by Mr Wilson and Ms Wyborn and dismiss their respective applications.

Background

[5] On 3 December 2014 an application for approval of an enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2013-2017 (the Agreement) was dismissed by the Commission 1 after the Territory conceded that the requirements of s.180(2) of the Act had not been complied with. This followed objections raised by Mr Wilson on behalf of the radiation oncologists that he acts for. Mr Wilson also contended that the group of employees covered by the agreement was not fairly chosen. However, in the light of the Territory’s concession it was unnecessary for the Commission to determine that issue.

[6] By way of background, the Agreement would have covered all medical practitioners employed in the ACT Public Service (the ACTPS) by ACT Health on behalf of the Territory. ACT Health advised relevant ACTPS employees of the commencement of bargaining on 5 April 2013 (employees were also provided with a Notice of Employee Representational Rights (NoERR) at that time) and relevant employees employed by Calvary were similarly advised of the commencement of bargaining on 5 June 2013. By way of background, Calvary Hospital in the ACT is integrated into the Territory’s public healthcare system, though it also has a private hospital. The bargaining representatives cited in the application for approval of the Agreement were ASMOF and three employee bargaining representatives – the Australian Medical Association ACT Ltd (AMA), Dr Oerder and Dr Will Matthieson (both of whom are staff specialists). ASMOF supported the approval of the Agreement. Of the 189 employees who cast a valid vote, 157 employees voted to approve the Agreement. The Agreement, which would have covered around 970 employees, was made on 13 October 2014.

[7] Following the decision to dismiss the application for approval of the Agreement, despite further discussions between the parties, they have been unable to reach agreement on a number of issues. The first such meeting occurred on 4 December 2014 with further meetings in January 2015. The scope of the proposed agreement remains as one of the unresolved issues.

[8] On 9 December 2014 Mr Wilson wrote to all other bargaining representatives advising that he had concerns that bargaining for the proposed enterprise agreement was not proceeding efficiently or fairly because it was not appropriate for the proposed agreement to cover radiation oncologists. That letter also set out a number of concerns of the radiation oncologists which Mr Wilson represents regarding the provisions of the proposed agreement. ACT Health responded to Mr Wilson’s letter on 15 December 2014. On the issue of the coverage of the proposed agreement, ACT Health’s response was that it considered the coverage of the proposed agreement to be “entirely appropriate and consistent with its predecessors going back some considerable time.” The response also foreshadowed that the Territory would vigorously oppose any submission to the contrary. ASMOF responded to Mr Wilson’s letter on 10 December 2014 stating that its view was that the agreement should cover radiation oncologists and that it was not appropriate to develop a separate agreement for this group of employees.

[9] Mr Wilson’s scope order application proposes that the proposed agreement exclude radiation oncologists but cover all other medical practitioners employed by the Respondents, whereas Ms Wyborn’s application proposes that the proposed agreement cover all medical practitioners employed by the ACTPS other than SMPs. SMPs comprise specialists and senior specialists.

[10] On 16 January 2015 Ms Wyborn wrote to ACT Health requesting that it consider separating SMPs from the other medical practitioners in the negotiations for the proposed agreement as doing so would facilitate “fair and efficient conduct of the bargaining process”. That letter does not appear to have been copied to other bargaining representatives, though ACT Health’s response of 19 January 2015 was copied to all bargaining representatives. In its response ACT Health expressed the view that a move from one agreement to two or more agreements covering medical practitioners would create unnecessary administrative complexity. The response also indicated that such a change in scope would not of itself alter the Territory’s position in respect of the provisions of an agreement(s).

[11] As previously noted, the applications were listed for mention and directions in February 2015 and were heard in March 2015.

Mr Wilson’s Case

[12] Mr Wilson submitted that he has met and was meeting the good faith bargaining requirements as set out in s.238(4)(a) of the Act. As to the issue of whether bargaining would be fairer or more efficient if the order he sought was made, Mr Wilson submitted that from the perspective of radiation oncologists bargaining to date had been neither fair nor efficient. In respect of fairness, Mr Wilson highlighted that the proposed increase in the facility fee in relation to radiation oncologists in the proposed agreement is adverse to the interests of radiation oncologists and those that they care for. In particular, Mr Wilson highlighted that radiation oncologists are the only SMPs for who an increase in the facility fee is proposed. As to efficiency of the bargaining process, Mr Wilson highlighted that there are now five distinct employee bargaining representatives – himself, ASMOF, the AMA, Ms Sullivan representing four gastroenterologists and Ms Wyborn. Mr Wilson submitted that the solution proposed by Ms Wyborn, i.e. a separate agreement for SMPs, would not address the concerns of radiation oncologists but simply relocate the problem.

[13] As to the issue of whether the group of employees to be covered by the proposed agreement had been fairly chosen, Mr Wilson submitted that there were clear differences in the operation and organisation of radiation oncologists and the radiation oncology department at TCH and all other medical practitioners employed by the Respondents. Those differences were that radiation oncologists have since 2006 operated their own distinct trust fund which provides for some of the remuneration of radiation oncologists and also funds cancer research, the training and education of staff in the radiation oncology department at TCH and the development of the department in general. Mr Wilson also submitted there is a geographic distinction between radiation oncologists on the one hand and all other SMPs employed by the Respondents.

[14] Dr Elsaleh in his witness statement set out the background to his engagement by ACT Health and the establishment and operation of the Radiation Oncologists Sub Fund (ROSF). In his witness statement, Dr Elsaleh highlighted the increase in the facility fee for radiation oncologists from 20% to 30% in the proposed agreement as a key area of concern. More particularly, Dr Elsaleh disputed that the increase related to an increase in costs incurred by ACT Health in providing the supporting infrastructure and staff, adding that no material had been provided substantiating that assertion. Dr Elsaleh further deposed that ACT Health had not engaged in fair and equitable bargaining for a number of reasons, including the abovementioned assertion of the increased costs in providing infrastructure in the radiation oncology department 2.

[15] In a supplementary witness statement Dr Elsaleh reiterated his view that he had not been provided with any financial data to justify any increase in the facility fee for radiation oncologists. Dr Elsaleh further attested that granting the scope order sought by Mr Wilson would in his opinion facilitate fairer and more efficient bargaining because the entitlements relevant to Junior Medical Officers (JMOs) were not in dispute and because there is profound disagreement relating to the facility fee to apply to radiation oncologists and the operation of the ROSF. In his supplementary statement Dr Elsaleh also disputed a number of aspects of Professor Bowden’s witness statement 3.

[16] Key aspects of Dr Elsaleh’s oral evidence were that:

(i) the bonuses for staff members of the radiation oncology department are derived from the ROSF;
(ii) the only difference between the handling of public and private patients in the radiation oncology department related to how they were billed;
(iii) radiation oncologists contribute exclusively to Scheme C Private Practice Payments 4;
(iv) geographical remoteness (in terms of not being able to refer patients to hospitals elsewhere in the ACT) is not something that is entirely unique to radiation oncologists;
(v) an increase in the facility fee to 30% would firstly have an effect on the revenue going into the ROSF and will, inter alia, also potentially have an effect on staff who are starting their employment as it will ultimately affect their incomes; and
(vi) the increase in the facility fee could also ultimately have a long-term effect for established radiation oncologists if they are working normal hours.

Ms Wyborn’s Case

[17] Ms Wyborn submitted that ACT Health’s refusal to address the issues raised in her log of claims and the question of scope raised by both her and Mr Wilson had led to an impasse in the bargaining process which is preventing the fair and efficient conduct of bargaining. Ms Wyborn submitted that she has met and is continuing to meet the good faith bargaining requirements as set out in s.238(4)(a) of the Act.

[18] Ms Wyborn also submitted that granting the scope order which she sought would facilitate efficient bargaining by reducing the number of bargaining representatives at the table and allowing proper engagement around specific productivity initiatives, as well as consideration of strategies that may be employed to ensure long-term stability in relation to staffing at the hospitals in Canberra. Further, Ms Wyborn expressed concern that proceeding with the proposed agreement will lead to unfairness in the bargaining process, highlighting that as at 1 January 2015 there were 299 SMPs compared to 561 JMOs employed by ACT Health. Ms Wyborn highlighted that as a result SMPs will be significantly outnumbered by JMOs in any vote regarding the proposed agreement and that the changes of concern to SMPs do not affect JMOs. Ms Wyborn contended that JMOs were therefore likely to vote up an agreement in order to receive back pay and pay rises which will be of immediate concern to them.

[19] Ms Wyborn also contended that the evidence shows that the managerial responsibilities of SMPs are significant and that a separate agreement for SMPs would recognise their seniority. In support of that submission Ms Wyborn relied on the decision of a Full Bench of the then Fair Work Australia in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (United Firefighters) 5.

[20] Ms Wyborn further contended that it was also important to recognise the difficulties that have been encountered by the bargaining representatives for the SMPs when they tried to negotiate terms and conditions which are unique to the SMPs, submitting that a failure to grant the scope order would potentially entrench the inefficient bargaining process and wed the parties to their opposing views. In this regard, Ms Wyborn relied on the decision in APT Gas Management Services Pty Ltd and APA GasNet Australia (Operations) Pty Ltd v AMWU and Ors (APT Gas) 6. Ms Wyborn further contended that granting the scope order would have a significant and positive effect on the efficient and fair conduct of the bargaining process by allowing the JMOs to vote on the existing proposed agreement and allowing SMPs to progress negotiations on issues that are unique to them.

[21] Ms Wyborn submitted that the group of employees covered by her application are fairly chosen because:

(i) the staffing profile of the hospitals in Canberra has changed significantly since 2011 when the existing agreement was negotiated;
(ii) the group is defined with reference to the roles and responsibilities of the employees within it; and
(iii) the group is not a minority or sectional interest advancing marginal issues.

[22] Ms Wyborn also submitted that whilst there is no key geographical distinction in respect of those that she represents, there are operational and organisational distinctions which are significant and create a compelling argument as to why the Commission should be satisfied that the group is fairly chosen. Those distinctions include SMPs having managerial and administrative responsibilities which JMOs do not have, the greater risk and responsibility borne by SMPs relative to JMOs, the responsibility of SMPs for the education, training and mentoring of JMOs, the obligation of SMPs to provide clinical support to their department and JMOs, the fact that SMPs can bill private patients whereas JMOs cannot and that the employment arrangements under the existing enterprise agreement operate very differently for JMOs and SMPs, with JMOs generally employed under fixed term contracts whereas SMPs are for the most part employed on a permanent basis within the ACT health system.

[23] Finally, Ms Wyborn contended that the Commission should be satisfied that it would be reasonable in all the circumstances to grant the scope order, particularly as there is strong support from various stakeholders for the separation of the group from negotiations for the proposed agreement.

[24] Ms Wyborn tendered two witness statements 7 by her which set out the background to her appointment as a bargaining representative and outlined the negotiations to date, the steps she had taken to outline the concerns of those that she represents regarding the proposed agreement, and the information she had sought from ACT Health regarding a number of issues relating to the proposed agreement. Ms Wyborn was not required for cross examination.

[25] Dr Avard deposed in her initial witness statement 8 that she became involved in the negotiations for the proposed agreement in about December 2014 when she appointed Ms Wyborn as her bargaining representative. Dr Avard attested that she appointed Ms Wyborn as a bargaining representative as she was concerned with a number of significant provisions in the proposed agreement and wanted specialist advice and assistance. Dr Avard also provided the Commission with a copy of a petition signed by 36 SMPs in support of Ms Wyborn’s scope order application. Beyond this, Dr Avard highlighted some of the major distinctions between JMOs and SMPs, highlighting the managerial responsibilities of SMPs, SMPs’ clinical risk and responsibilities and the lack of private billing rights for JMOs as key areas of difference.

[26] In a supplementary witness statement 9, Dr Avard attested that in about June 2013 she contacted ASMOF to raise concerns about a number of issues that related to Intensive Care Unit (ICU) doctors and SMPs generally but that she received no response from ASMOF. As such, Dr Avard considers that the interests of SMPs had not been effectively advanced in the bargaining process. In her supplementary statement Dr Avard also disputed a number of aspects of Professor Bowden’s witness statement.

[27] Under cross examination Dr Avard attested that:

(i) ASMOF acted on her behalf in the negotiations for the Agreement;
(ii) JMOs working in the ICU have varying levels of responsibility depending on their level of training, adding that their responsibility includes monitoring a patient and identifying when additional assistance is needed;
(iii) SMPs are responsible for determining the level of training that a JMO requires to be able to complete their job and any remedial action that may be required;
(iv) not every specialist receives a management allowance, only those specialists that have a management role;
(v) the increase in the number of JMOs working in the ICU since 2009 has increased the amount of training required;
(vi) JMOs working in the ICU are a crucial component of frontline of patient care;
(vii) an important part of the dynamics of the ICU is the importance of JMOs and SMPs working together;
(viii) none of the issues which she raised with the ASMOF were in any way reflected in the Agreement;
(ix) she only learnt of the provision providing for the automatic expiry of her Special Employment Arrangement (SEA) within 15 months of the proposed agreement coming into operation after she appointed Ms Wyborn as her bargaining representative; and
(x) she did not understand the NoERR given to her by ACT Health in April 2013, adding that as a member of ASMOF she would have expected to be told if there were any provisions in the Agreement that were likely to have a significant effect on her and her staff.

[28] In their witness statements Drs Oerder 10, Burt11 and Robertson12 largely highlighted some of the key differences between JMOs and SMPs in similar terms to those set out by Dr Avard in her witness statements, though all three cited employment arrangements as another area of difference. In his witness statement Dr Oerder also referred to the period he was an employee bargaining representative for the Agreement, attesting that he attended two meetings with ACT Health and other non-union bargaining representatives. More particularly, Dr Oerder deposed that when he raised issues at those meetings he felt the response from ACT Health to be dismissive of the concerns he raised on behalf of his craft group. Drs Oerder and Robertson also provided supplementary witness statements13 in which they disputed aspects of Professor Bowden’s witness statement. Drs Burt and Robertson were not required for cross examination.

[29] Key aspects of Dr Oerder’s oral evidence were that:

(i) he had appointed Dr Matthieson as his bargaining representative and had also been appointed as a bargaining representative himself;
(ii) he attended two bargaining meetings in September and November 2013 and agreed that at the first meeting he raised concerns about the use of on-call and recall of senior specialists and that at the second meeting he said very little 14;
(iii) he had an opportunity to raise any concerns during the two meetings he attended 15;
(iv) the concerns he raised about the use of TOIL for senior specialists were addressed in the Agreement 16;
(v) he did not raise any concerns about the process of negotiations, either during the two meetings he attended or outside the bargaining process 17;
(vi) at the conclusion of the bargaining process he signed the Agreement 18;
(vii) he was not aware of the vote for the Agreement as he did not receive a ballot paper, adding that he did not advise anyone at ACT Health that he had not received a ballot paper 19;
(viii) the only reason he appointed Ms Wyborn as his bargaining representative was that he was dissatisfied with the outcome of the bargaining process 20;
(ix) he and Dr Matthieson had been appointed as bargaining representatives following discussions with ASMOF which suggested that it was less keen to represent some specific concerns that anaesthetists had with the proposed agreement 21; and
(x) with regard to SEAs, Dr Matthieson provided no feedback as to what had been agreed in the negotiations on this issue 22.

[30] Dr Tse who had recently transitioned from a JMO to a SMP outlined in his witness statement 23 the transition process. In doing so, Dr Tse highlighted some of the differences between JMOs and SMPs in similar terms to his colleagues. Among other things, Dr Tse attested that once he was accepted as a fellow of the Australia and New Zealand College of Anaesthetists there was an increasing expectation on him to work without supervision but that as a JMO he was not trusted with full risk and responsibility. This only occurred when he became a SMP in a specialist area.

[31] Dr Tse’s evidence under cross examination was that:

(i) to become a qualified anaesthetist it takes some 10 years of training as a JMO, with the level of responsibility held by a JMO gradually increasing across that training period 24;
(ii) in circumstances where there is a bad outcome, a JMO would share responsibility for that outcome though the primary responsibility would rest with the SMP 25; and
(iii) JMOs have enormous responsibility 26.

The Territory’s Case

[32] ACT Health set out the background to negotiations for the proposed agreement highlighting that the bargaining process commenced in April 2013 and concluded in September 2014. A vote on the Agreement occurred in October 2014. ACT Health highlighted that there was no suggestion from bargaining representatives prior to that vote that the bargaining was not proceeding efficiently. Nor were any concerns raised about the fairness of the process, notwithstanding that concerns were expressed about some of the changes sought. While ACT Health acknowledged that ASMOF did raise the suggestion that there be separate agreements for junior and senior medical practitioners early in the bargaining process it did not press the matter when ACT Health did not agree. Further, the issue of a separate agreement for radiation oncologists was not raised at all prior to the vote.

[33] As to the bargaining process for the Agreement, ACT Health highlighted that nearly all the employee bargaining representatives, whether from ASMOF or individual nominees, were SMPs. Against that background, ACT Health submitted that the dispute over the proposed agreement has been constructed at the last moment by a minority of employees who are dissatisfied with the result of the bargaining process and had nothing to do with whether or not the coverage of the proposed agreement is appropriate.

[34] ACT Health did not dispute that Ms Wyborn had given notice of her concerns, nor did it dispute that Ms Wyborn or Mr Wilson are acting in good faith on behalf of those that they represent.

[35] ACT Health contended that neither the scope proposed by Mr Wilson or Ms Wyborn would result in a fairer or more efficient bargaining process than that currently underway. To the contrary, ACT Health submitted that the scope orders sought are likely to result in a more complicated bargaining process involving further delay and possible unfairness to other employees.

[36] ACT Health disputed Ms Wyborn’s submission that the negotiations are deadlocked, submitting that the proposed agreement has been the subject of a thorough bargaining process and was endorsed by employees but could not be approved due to a procedural failing that caused no substantial prejudice to anyone. In the view of ACT Health, the most efficient course of action would be to allow it the opportunity to put the proposed agreement for a further vote.

[37] As to the issues pressed by Ms Wyborn, ACT Health:

• submitted that in respect of some issues the position of the ACT Government was highly unlikely to change while in respect of others the claims had been rejected as they would involve a considerable increase in costs to the Territory;



• highlighted that the majority of SMPs are not part of the senior management of the ACTPS; and



• did not dispute that JMOs outnumber SMPs.

[38] As to fairness of the bargaining process, ACT Health highlighted that having separate agreements for JMOs and SMPs was very unlikely to result in a reduction in bargaining time, adding that under the current arrangements, ACT Health must already hold two versions of each bargaining meeting – one with ASMOF and another with the AMA and other non-union bargaining representatives. A separation of junior and senior medical practitioners would potentially mean each meeting has to be conducted four times. ACT Health also highlighted that as a matter of practice the weight of the bargaining process has traditionally rested with senior doctors, as JMOs are usually temporary employees on shorter contracts with movement between classifications about every year.

[39] With regard to the concerns of radiation oncologists concerning the proposed increase in facility fee, ACT Health highlighted that the issue was discussed in early 2014 when concerns were raised about the proposed level of increase and that as a result of those concerns the proposed facility fee was reduced from 50% to 30% in May 2014. ACT Health further submitted that there was ample opportunity for radiation oncologists to raise concerns about this aspect of the Agreement throughout the process.

[40] As to whether employees who will be covered by the agreement proposed to be specified in the scope order were fairly chosen, ACT Health submitted in respect of Ms Wyborn’s application that:

(i) there is no geographical distinction between SMPs and postgraduate fellows and Career Medical Officers (CMOs);
(ii) there is little in the way of organisational or operational difference between SMPs and postgraduate fellows and CMOs;
(iii) junior and senior doctors are operationally and organisationally integrated; and
(iv) although there is a distinction in terms of the right to engage in private practice, the distinction is of minimal importance in practice because a very significant number of SMPs do not exercise that right.

[41] ACT Health also contended that the distinction between SMPs and other senior medical officers is based on qualifications, experience and prestige, rather than any characteristic that is relevant to their operational or organisational role.

[42] With regard to radiation oncologists, ACT Health submitted that they are not organisationally distinct. ACT Health further submitted that it appears the primary differences between radiation oncology and other craft groups are firstly the existence of the ROSF and secondly differences in funding arrangements for some aspects of the practice. ACT Health highlighted that the general obligations and duties of the medical practitioners engaged within the radiation oncology department are the same as those in any other craft group and that notwithstanding the existence of the ROSF, in which the monies from private practice arrangements are held, the radiation oncologists’ entitlement to bonuses arises by operation of Scheme C Private Practice Payments which is identical to any other medical professional who elected to become a member of that Scheme. According to ACT Health this is not changed by the existence of the ROSF. While acknowledging that an increase in the facility fee will, if implemented, reduce the revenue from the private practice billings that go into the ROSF, ACT Health submitted that the increase in the facility fee will have no impact on the bonuses paid to the oncologists from the ROSF.

[43] Finally, ACT Health contended that making either scope order would be unreasonable having regard to the attitude of other stakeholders; the progress of the bargaining process to date; the lack of evidence that the scope orders will result in a change to the Territory’s position; and the real likelihood that the scope order, even if made, will do little but occasion further delay.

[44] Professor Bowden gave evidence on behalf of ACT Health. In his witness statement 27 Professor Bowden attested that junior and senior doctors have been covered by a common agreement for the past 15 years, though he acknowledged that there was a brief period between 1999 and 2002 when interns were covered by a separate agreement. Professor Bowden described the bargaining process for the proposed agreement as lengthy and cited two reasons as to why this had been the case. The first being the approach required by the ACT Government of bargaining separately with union and non-union bargaining representatives. This, Professor Bowden attested, meant that separate meetings were held with ASMOF on the one hand and the AMA and other non-union bargaining representatives on the other. The second reason was that the bargaining process for the proposed agreement ran in parallel with bargaining for common terms and conditions of employment across the ACTPS.

[45] Professor Bowden further deposed that early in the bargaining process Dr Hallam, on behalf of ASMOF, raised the prospect of separate agreements for junior and senior medical practitioners. ACT Health indicated that it would not support such an approach and the matter was not pressed further until raised by Ms Wyborn in January 2015. Professor Bowden also attested that the issue of a separate agreement for radiation oncologists was not raised at all until Mr Wilson’s appointment as a bargaining representative in December 2014.

[46] In respect of the issue of the increase in facility fee for radiation oncologists, Professor Bowden stated that the issue was discussed in separate meetings with radiation oncologists in February and March 2014 with his recollection being that Dr Elsaleh was present at all of those meetings.

[47] Professor Bowden further deposed that following the Commission’s decision not to approve the Agreement in December 2014, ACT Health was served in January 2015 with a significant number of additional claims by Ms Wyborn and Ms Sullivan. While ACT Health had made some concessions, Professor Bowden attested that it had otherwise indicated that it wished to put the proposed agreement to another vote as soon as possible. According to Professor Bowden almost all the deadlocked or intractable issues identified by Ms Wyborn in her application were matters that had been previously been dealt with in the bargaining process.

[48] In his witness statement Professor Bowden disputed aspects of Dr Avard’s and Dr Elsaleh’s witness statements. For instance, with regard to the training of JMOs, he deposed that JMOs at a more advanced stage of their training are always available to support less experienced JMOs, though he did acknowledge that in the main SMPs and CMOs provide clinical supervision of JMOs. Professor Bowden further deposed that JMOs are only in a position to be involved in negotiations around the agreement for a limited number of years before they necessarily move into the ranks of SMPs and CMOs.

[49] As to radiation oncologists, Professor Bowden acknowledged that in the ACT all radiation oncologists work for the Territory. Professor Bowden further attested that modelling undertaken by ACT Health shows that an increase in the facility fee for radiation oncologists to 30% will have no impact upon the bonuses paid to radiation oncologists and that the on-going costs associated with running radiation oncology services in the ACT are clearly not met by a 20% facility fee.

[50] In his oral evidence Professor Bowden stated, among other things, that:

(i) CMOs and SMPs essentially perform the same professional roles and any divergence in their terms and conditions of employment would create an inequity as they do the same work 28;
(ii) one of the risks associated with having two agreements is the loss of integration between JMOs and SMPs 29;
(iii) there has been an increase in the number of JMOs and SMPs since the last enterprise agreement was made;
(iv) there were three separate bargaining streams for the Agreement – the first being the core level bargaining, the second being the bargaining with ASMOF representing both junior and senior doctors and the third with the AMA and other non-union bargaining representatives 30;
(v) the AMA principally represented junior doctors while ASMOF principally represented the interests of senior doctors, with the issues canvassed in one bargaining stream also discussed in detail with the other group and all parties brought together at the end to draft the agreement 31;
(vi) around 40% of doctors who work in ACT Health received a benefit under a SEA in 2014 32;
(vii) a substantial proportion of SMPs benefit from a SEA whereas only a small proportion of JMOs do, with the benefit representing more than 50% of income for some SMPs 33;
(viii) ACT Health has in the past had a less than perfect record in conducting reviews of SEAs 34;
(ix) facility fee arrangements were to be discussed for the entire medical practitioner group 35;
(x) in response to a question from Mr Wilson regarding a document produced in accordance with an Order issued by the Commission, there was no information in the document about any expenditure in relation to infrastructure costs in the radiation oncology department as the increase in costs was a self-evident proposition given that the number of linear accelerators had increased to four 36; and
(xi) the agendas for the separate meetings with the AMA and ASMOF were identical 37.

[51] In his witness statement 38 Mr Noud set out the context within which the current bargaining round in the ACTPS was taking place, attesting that the ACT Government had endorsed an enterprise bargaining model of predominantly occupationally based streamed agreements. Mr Noud further attested that bargaining for the common core conditions of employment for the ACTPS was completed in November 2013, with those core conditions now included in 13 enterprise agreements that had been approved by the Commission. As to the system of SEAs and the replacement system of Attraction and Retention Incentives (ARIns), Mr Noud deposed that the requirement for a regular review of ARIns was to ensure that they remain appropriate, both in terms of attracting and retaining staff and at a level of remuneration comparable to external market conditions. Significantly, Mr Noud deposed that it remains the ACT Government’s policy that the ARIn framework is to be common across the ACTPS and that even if a new medical practitioner agreement(s) were to be negotiated, the ACT Government would be unlikely to agree to a change to the ARIn framework. Mr Noud was not required for cross examination.

Other submissions and evidence

[52] The AMA did not support either Mr Wilson’s or Ms Wyborn’s applications being granted at this time. While the AMA considered that the matter of scope should be considered at some stage, it submitted that it should not be considered at this time but rather in the context of bargaining for the next enterprise agreement. The AMA also submitted that there is insufficient evidence to categorically state that doctors in training are operationally distinct from the senior colleagues and that the proposed facility fee increase for radiation oncologist is an issue unique to that group.

[53] Dr Hallam attested on behalf of ASMOF that it had raised the question of a separate agreement for SMPs but was advised by ACT Health that this was not something that it was prepared to consider. Dr Hallam deposed that while some of the ASMOF ACT Executive believe there is some merit in having separate agreements for junior and senior doctors, this is not the unanimous opinion of the Executive. Dr Hallam further deposed that ultimately ASMOF agreed that it would not push for separate agreements in the current bargaining process but that it has put ACT Health or notice that it will be in the ASMOF log of claims for the next agreement 39.

[54] Key aspects of Dr Hallam’s oral evidence were that:

(i) the facility fee for radiation oncologists was the lowest facility fee for a proceduralist 40;
(ii) ASMOF has been firmly of the belief that one central private practice fund is the best way to move forward and fund the activities supported by the ROSF;
(iii) ASMOF expressed that view at the time the ROSF was set up;
(iv) ASMOF agrees that there has been extraordinary development of the radiation oncology department and attributes that in part to the existence of the ROSF;
(v) ASMOF was prepared to consider a review of all facility fees;
(vi) ASMOF’s preferred position was that any increase in the facility fee for radiation oncologists should be part of any review process but given ACT Health’s preferred approach of increasing the facility fee from 20% to 30% and in view of the fact that other facility fees were much higher, ASMOF could not justify holding out for the facility fee to remain at 20% pending the review 41;
(vii) ASMOF was not provided with any information to support the proposed increase in the facility fee for radiation oncologists 42;
(viii) the AMA like ASMOF sees some merit in splitting the agreement into two but neither party considers that approach appropriate at this late stage of the bargaining process 43;
(ix) ASMOF would support such an approach for a future agreement 44;
(x) SMPs were concerned about the proposed agreement’s effect on their SEAs, adding that ASMOF held a number of meetings with SMPs 45; and
(xi) ASMOF convened a meeting to which everybody was invited to discuss the Agreement’s provisions relating to SEAs – the increase in the radiation oncology facility fee, ARIns and the positive elements of the Agreement were also discussed at that meeting 46.

Relevant Statutory Framework

[55] Section 238 of the Act deals with scope orders and provides as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise agreement may apply to the FWC for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative to give notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order

(4) The FWC may make the scope order if the FWC is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5) The scope order must specify, in relation to a proposed single-enterprise agreement:

(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6) The scope order:

(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.

Orders etc. that the FWC may make

(7) If the FWC makes the scope order, the FWC may also:

(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”

Consideration

[56] With regard to the requirement set out in s.238(3)(a) that the applicant for a scope order has taken all reasonable steps to give a written notice setting out their concerns that bargaining for the agreement is not proceeding efficiently or fairly to the relevant bargaining representatives for the agreement, ACT Health did not dispute that Ms Wyborn had given notice of her concerns. While Ms Wyborn did not write to any other bargaining representative other than ACT Health, I consider ACT Health was the relevant bargaining representative for the purposes of s.238(3)(a) of the Act. Mr Wilson wrote to all other bargaining representatives on 9 December 2014 outlining his concerns that bargaining is not proceeding efficiently or fairly. This satisfies the requirement set out in s.238(3)(a).

[57] As Mr Wilson and Ms Wyborn have met the requirements of s.238(3), I am therefore satisfied that they are both able to make an application for a scope order.

[58] I turn now to consider each of the considerations will set out in s.238(4) which deals withwhen the Commission may make a scope order.

s.238(4)(a) – the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements

[59] It was not disputed by ACT Health that either Mr Wilson or Ms Wyborn had met and are meeting the good faith bargaining requirements. This consideration is therefore satisfied.

s.238(4)(b) – making the order will promote the fair and efficient conduct of bargaining

[60] Mr Wilson submitted that from the perspective of radiation oncologists the bargaining to date had been neither fair nor efficient. In respect of fairness, Mr Wilson highlighted that the proposed increase in the facility fee for radiation oncologists is adverse to their interests and those that they care for. Mr Wilson also emphasised that radiation oncologists are the only SMPs for who a facility fee increase is proposed.

[61] As to the efficiency of the bargaining process, Mr Wilson highlighted that there are now five distinct employee bargaining representatives.

[62] Further, Mr Wilson submitted that the solution proposed by Ms Wyborn, i.e. a separate agreement for SMPs, would not address the concerns of radiation oncologists.

[63] Ms Wyborn submitted that granting the scope order which she sought would facilitate efficient bargaining by reducing the number of bargaining representatives at the table and allowing proper engagement around specific productivity initiatives, as well as consideration of strategies that may be employed to ensure long-term stability in relation to staffing at the hospitals in Canberra. Further, Ms Wyborn expressed concern that proceeding with the proposed agreement will lead to unfairness on the basis that SMPs will be significantly outnumbered by JMOs in any vote regarding the proposed agreement and that the changes of concern to SMPs do not affect JMOs. Ms Wyborn opposed Mr Wilson’s application.

[64] ACT Health contended that neither the scope proposed by Mr Wilson or Ms Wyborn would result in a fairer or more efficient bargaining process than that currently underway. To the contrary, ACT Health submitted that the scope orders sought were likely to result in a more complicated bargaining process involving further delay and possible unfairness to other employees.

[65] The test in respect of this consideration was set out by the Full Bench in United Firefighters where it stated that:

“The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made.” 47 (Underlining added)

[66] The decision in United Firefighters was recently affirmed by a Full Bench in BRB Modular Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 48.

[67] Based on the submissions of Mr Wilson and Ms Wyborn it appears that the underpinning concerns about the fairness of the bargaining process largely reflect the dissatisfaction of those that they represent with the outcomes of the bargaining process. Mr Wilson’s submission regarding the impact of the increased facility fee for radiation oncologists illustrates this point. As to Mr Wilson’s submission that radiation oncologists are the only SMPs for who a facility increase is proposed, that submission overlooks Dr Hallam’s uncontested evidence that radiation oncologists had the lowest facility fee for any proceduralist. It also overlooks Professor Bowden’s evidence that facility fee arrangements were to be discussed for the entire medical practitioner group.

[68] As to Ms Wyborn’s contention that SMPs will be significantly outnumbered by JMOs in any vote regarding the proposed agreement, the weight that should be attached to that was considered by Commissioner Roe in National Union of Workers v Linfox Australia Pty Ltd (Linfox) 49where heobserved that:

“[59] It is commonplace that a particular minority group of employees within the scope of a proposed agreement may feel that they are in danger of being swamped by the interests of the majority … However, the weight that this should be given in determining whether or not a scope order will improve the efficiency and fairness of the bargaining and whether or not it will be reasonable to grant the order will depend upon the circumstances. The extent of the special interests and potential disadvantage, the impact on the interests of the other bargaining parties, the history of conduct in bargaining, and the stage of the bargaining are all relevant matters which I have considered.

[60] In the circumstances of this case … There is some disadvantage to the interests of the other bargaining parties if the scope order was to be granted and this disadvantage is greater because of the late stage of bargaining.”

[69] In this case both Mr Wilson and Ms Wyborn represent a minority of SMPs, with the bulk of SMPs represented by ASMOF. More specifically, as at 1 January 2015 there were 299 SMPs. Ms Wyborn represents 48 SMPs out of the total of 299, i.e. around 16% of SMPs. Mr Wilson represents seven radiation oncologists, which is an even smaller subset of SMPs and equates to around 2% of all SMPs.

[70] Further, the concerns raised by Mr Wilson and Ms Wyborn have been raised very late in the bargaining process. The bargaining process commenced in April 2013 yet Mr Wilson raised his concerns only after the Agreement was made in October 2014. The raising of concerns by Mr Wilson and Ms Wyborn at such a late stage of the bargaining process has the potential to disadvantage some SMPs who would be covered by the proposed agreement, particularly as ASMOF which supports the proposed agreement represents the bulk of SMPs. Again drawing on the decision in Linfox, the stage of the bargaining process is a relevant consideration in terms of when a minority of employees raises concerns about the bargaining process and/or a proposed agreement.

[71] Taken together, these considerations do not support a finding that granting the scope orders sought would make the bargaining process fairer.

[72] As to the issue of whether or not granting the scope orders would make the bargaining process more efficient, the ACT Government’s requirement of separate bargaining streams for union and non-union bargaining representatives would magnify the implications of having to negotiate separate agreements for JMOs and SMPs (as proposed by Ms Wyborn) or medical practitioners and radiation oncologists (as proposed by Mr Wilson). More specifically, were the scope order sought by Ms Wyborn granted it would mean two streams of bargaining for both JMOs and SMPs. This would clearly be less efficient than bargaining for one agreement covering all medical practitioners. Further, I am not convinced that the scope order sought by Ms Wyborn would, as she contended, result in a reduction of the number of bargaining representatives at the table – particularly in respect of SMPs.

[73] As to the scope order sought by Mr Wilson, this would again entail two separate bargaining streams for medical practitioners and radiation oncologists given that ASMOF is likely to have an interest in any agreement for radiation oncologists. Again, this would be less efficient than bargaining for one agreement covering all medical practitioners employed by the Respondents.

[74] Drawing on the above analysis, I am not satisfied that granting the scope orders sought would promote the fair and efficient conduct of bargaining.

s.238(4)(c) – the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen

[75] As previously noted, Mr Wilson submitted that there were clear differences in the operation and organisation of radiation oncologists and the radiation oncology department at TCH and all other medical practitioners employed by the Respondents, with the existence of the ROSF cited as a key difference.

[76] ACT Health submitted that radiation oncologists are not organisationally distinct. ACT Health further submitted that it appears the primary differences between radiation oncology and other craft groups are, firstly, the existence of the ROSF and, secondly, differences in funding arrangements for some aspects of the practice. ACT Health highlighted that the general obligations and duties of the medical practitioners engaged within the radiation oncology department are the same as those in any other craft group notwithstanding the existence of the ROSF.

[77] As previously mentioned, radiation oncologists are one craft group within the broader SMP group. While radiation oncologists contribute to the ROSF, other specialists also contribute to private practice funds albeit that differing levels of facility fees apply. In short, the existence of the ROSF is not of itself a distinguishing characteristic between radiation oncologists and other senior specialists. Further, I am not convinced that the general obligations and duties of radiation oncologists differ in any material away from those of other SMPs. In short, I am not satisfied that radiation oncologists are geographically, operationally or organisationally distinct as per s.238(4A) of the Act.

[78] For all these reasons, I am not satisfied that the group of employees specified in the scope order sought by Mr Wilson have been fairly chosen.

[79] Ms Wyborn submitted that while there is no key geographical distinction in respect of those that she represents, there are operational and organisational distinctions which are significant and create a compelling argument as to why the Commission should be satisfied that the group is fairly chosen (see paragraph [22] above).

[80] ACT Health submitted among other things in respect of Ms Wyborn’s application that junior and senior doctors are operationally and organisationally integrated.

[81] The Full Bench in United Firefighters stated that:

“The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.” 50

[82] Dr Avard’s evidence highlighted the importance of JMOs and SMPs working together to deliver services to patients and that there are differences in the level of responsibility borne by JMOs and SMPs. Dr Tse’s evidence was that JMOs have enormous responsibility. To the extent that there are operational and organisational distinctions they are modest as opposed to significant as submitted by Ms Wyborn. Further, those differences appear to be generally based on seniority and experience. The fact that JMOs and SMPs have operated under a single enterprise agreement for more than a decade indicates that the differences are not so great that they are not capable of being accommodated in a single agreement. In this regard, I note that it is the nature of hierarchical classification structures that differing levels of responsibility and more complex tasks invariably attach to higher classification levels. To that end, JMOs and SMPs being covered by the one enterprise agreement is not unique, though I acknowledge that it is not unheard of that more senior staff are covered by a separate enterprise agreement.

[83] The Full Bench’s observation in United Firefighters that “it may be that a number of groupings might be fair” supports a view that more than one approach on scope might be fair and appropriate in some circumstances. At one level it could be argued that Ms Wyborn’s proposed scope order is as fairly chosen as the Territory’s preferred scope. The views of ASMOF and the AMA are that the proposition of a separate agreement for SMPs should be considered in the context of bargaining for the next agreement. I consider that some weight should be attached to the views of ASMOF and the AMA given that they together represent the bulk of medical practitioners.

[84] Drawing on the above analysis and with particular regard to s.238(4A) of the Act, I am not satisfied that the group reflected in Ms Wyborn’s application is geographically, operationally or organisationally distinct. Accordingly, I am not satisfied that the group proposed by Ms Wyborn is fairly chosen.

s.238(4)(d) – it is reasonable in all the circumstances to make the order

[85] As noted above, Ms Wyborn represents around 16% of SMPs. In short, Ms Wyborn represents a minority of SMPs while Mr Wilson represents an even smaller subset of SMPs. Conversely, both ASMOF and the AMA, who represent the bulk of medical practitioners, both support the proposed agreement. Significant weight should be attached to the position of ASMOF and the AMA.

[86] Further, based on the material before the Commission it is clear that the concerns of those that Mr Wilson and Ms Wyborn represent go more to the outcomes of the bargaining process and their dissatisfaction with those outcomes as opposed to the conduct of the bargaining process. Dr Oerder’s evidence that the only reason he appointed Ms Wyborn as his bargaining representative was that he was dissatisfied with the outcome of the bargaining process is the strongest indication of this. That evidence is reinforced by the evidence of Dr Avard which highlighted her general lack of engagement in the bargaining process until after the Agreement was made.

[87] Finally, it is significant that neither ASMOF nor the AMA support a separate agreement for either radiation oncologists or, at this time, for SMPs. Dr Hallam’s evidence was that while ASMOF raised the issue of separate agreements for junior and senior medical practitioners with ACT Health in the context of bargaining it did not press the issue and in those circumstances does not consider it appropriate to pursue the issue at this stage of the bargaining process. Nevertheless, ASMOF has foreshadowed that it proposes to raise the issue in the context of negotiations for the next agreement.

[88] Against that background, I am not satisfied that it is reasonable in all the circumstances to make the orders sought by Mr Wilson and/or Ms Wyborn.

Conclusion

[89] Commissioner Cambridge observed in APT Gas that:

“[71] It should be noted that each of the paragraphs (a) to (d) of sub-section 238 (4) of the Act are separated by the word "and". Therefore, these constituent elements are cumulative requirements for the making of any scope order. Consequently, even if I was to consider that some factor might establish that the scope order would be reasonable in all the circumstances, the order could not be made unless all the other factors were satisfied.”

[90] Drawing on the above analysis, it is clear that neither Mr Wilson’s nor Ms Wyborn’s applications have met all of the considerations set out in s.238(4) of the Act. Against that background, and consistent with Commissioner Cambridge approach in APT Gas, both applications must therefore fail. Accordingly, I decline to make the orders sought and dismiss the applications.

Appearances:

J. Wilson on his own behalf.

D. Chin of Counsel for J Wyborn.

H. Robinson of Counsel for Australian Capital Territory as represented by ACT Health.

Hearing details:

2015.

Canberra:

March 11 and 30.

 1   [2014] FWC 8644

 2   Exhibit W1

 3   Exhibit W2

 4   Scheme C is one of three private practice arrangements operating for SMPs under the enterprise agreement. The schemes enable specialists to earn bonuses based on their private practice earnings. The maximum level of bonus varies depending on the scheme the SMP elects to join.

 5 (2010) 193 IR 293

 6   [2015] FWC 699

 7   Exhibits C1 and C2

 8   Exhibit C6

 9   Exhibit C7

 10   Exhibit C8

 11   Exhibit C3

 12   Exhibit C4

 13   Exhibits C9 and C5 respectively

 14   Transcript at PN549-553

 15   Ibid at PN555

 16   Ibid at PN557

 17   Ibid at PN558-559

 18   Ibid at PN566

 19   Ibid at PN569-574

 20   Ibid at PN576

 21   Ibid at PN596

 22   Ibid at PN622

 23   Exhibit C10

 24   Transcript at PN643-646

 25   Ibid at PN672-673

 26   Ibid at PN677

 27   Exhibit R2

 28   Transcript at PN922

 29   Ibid at PN926

 30   Ibid at PN955

 31   Ibid at PN964-966

 32   Ibid at PN973

 33   Ibid at PN999-1000

 34   Ibid at PN1031

 35   Ibid at PN1209

 36   Ibid at PN1235-1244

 37   Ibid at PN1287

 38   Exhibit R4

 39   Exhibit ASMOF 1

 40   Transcript at PN737

 41   Ibid at PN774

 42   Ibid at PN 813-815

 43   Ibid at PN 843-848

 44   Ibid at PN853

 45   Ibid at PN871

 46   Ibid at PN882

 47 (2010) 193 IR 293 at paragraph [55]

 48   [2015] FWCFB 1440

 49   [2013] FWC 9851

 50   [2010] FWAFB at paragraph [55]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573949>