State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees

[2023] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061

PARTIES:

State of Queensland (Department of Health)
(Applicant)

v

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees
(Respondent)

CASE NO.:

B/2019/70

PROCEEDING:

Application for declaration

DELIVERED ON:

23 February 2023

HEARING DATES:

28, 29 and 30 March 2022

MEMBERS:

Merrell DP
Pidgeon IC
Dwyer IC

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [302] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - AGREEMENTS - EMPLOYEES IN EMPLOYMENT OF STATE - APPLICATION FOR DECLARATORY RELIEF - Applicant and Respondent are parties to certified agreements entitled Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 and Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 - both certified agreements contained clauses entitled 'Emergency Department speciality allowance' which provided for an allowance of 25% of base salary to be paid to Senior Medical Officers in certain circumstances - genuine dispute between the Applicant and the Respondent over whether Senior Medical Officers, to whom the clauses in both certified agreements applied, have to work all of their hours of work in an Emergency Department to be entitled to the 25% allowance - Applicant applied for a declaration that the clauses in both certified agreements only apply to Senior Medical Officers who must be engaged to work in an Emergency Department under an extended hours roster within the meaning of the certified agreements and who must work all of their rostered hours under the extended hours roster in an Emergency Department - principles of construction of certified agreements made and approved under the Industrial Relations Act 1999 and Industrial Relations Act 2016 - whether, on the construction of the two certified agreements, a Senior Medical Officer was required to work all of their rostered hours in an Emergency Department to be entitled to the allowance of 25% of base salary - on the construction of the clauses in both certified agreements, a Senior Medical Officer did have to work all of their rostered hours in an Emergency Department to be entitled to the allowance of 25% of base salary - when discretion should be exercised by the Queensland Industrial Relations Commission to make a declaration - whether discretion to make a declaration should be exercised in the present case - whether declaration should be made in the form sought by the Applicant - declaration made to resolve a genuine dispute between the parties - declaration made in the form sought by the Applicant

LEGISLATION:

Australian Public Service, General Employment Conditions Award 1995, cl 11

Australian Public Service Redeployment and Retirement (Redundancy) Award 1987, cl 5

Fair Work Act 2009, s 182

Industrial Relations Act 1999, s 141 and s 156

Industrial Relations Act 2016, s 164, s 451, s 463 and s 464

Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015, cl 1.2, cl 2.3, cl 4.2, cl 4.3, cl 4.8 and cl 4.14

Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 1.2, cl 2.6, cl 11.3, cl 11.4, cl 11.20 and cl 11.24

CASES:

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2022] FCAFC 50; (2022) 314 IR 231

Australian Manufacturing Workers' Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285

Australian Municipal, Administrative, Clerical and Services Union v Australian Tax Office [2013] FWCFB 4752; (2013) 234 IR 366

Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225

Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 82 FCR 175

Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2020] QIRC 086

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2021] QIRC 157

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385

Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241_; (2005) 62 NSWLR 653

BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520; (2003) 198 ALR 442

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426

City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Commissioner of the Australian Federal Police v Police Federation of Australia [2022] FCA 272

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594

Dr Wayne Shipley & Ors v Metro South Hospital and Health Service [2019] QIRC 071

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138

James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566

Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182

Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633

Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223

Polan v Goulburn Valley Health [2016] FCA 440

Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202

Queensland Public Sector Union v Department of Corrective Services [2002] QIC 39; (2002) 170 QGIG 422

Ridd v James Cook University [2021] HCA 32; (2021) 310 IR 109

Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87

Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511

The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54; (2020) 4 QR 31

Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152

Watson v Foxman (1995) 49 NSWLR 315

APPEARANCES:

Mr A. Herbert of Counsel instructed by Mr M. Moy of McCullough Robertson Lawyers for the State of Queensland (Department of Health).

Ms L. Doust of Counsel instructed by Mr L. Forsyth of Hall Payne Lawyers for the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.

Reasons for Decision

Introduction

1. Part of the background to this matter is set out in paragraphs [1] to [7] of Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health).[1] Those paragraphs should be read with these reasons for decision.

   [1] [2020] QIRC 086.

2. Following the related decision in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health),[2] the parties agreed that Case No. B/2019/70, namely, the application for declaratory relief filed by the State of Queensland through the Department of Health or Queensland Health (which, for convenience, we will refer to as 'the Department') should be heard and determined by the Full Bench before the arbitration of the industrial dispute notified by the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('the Union') which is the subject of Case No. D/2019/114.

   [2] [2021] QIRC 059.

3. These reasons for decision concern the Department's application for declaratory relief. That application was made pursuant to the combined effect of s 463 and s 464 of the Industrial Relations Act 2016 ('the Act').

4. Sub-clause 4.14.3 of the Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 ('MOCA 4') and sub-cl 11.24.3 of the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 ('MOCA 5') both provide that:

   ·where a Senior Medical Officer ('SMO') works in an Emergency Department under a rostering arrangement in accordance with provisions in the certified agreements which provide for an agreement to be made extending the span of ordinary hours of the SMO to meet clinical need (cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5); and

   ·the SMO's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend; then

   an allowance of 25% of base salary ('the ED 25 allowance') is paid to the SMO in addition to other allowances paid under other relevant clauses (sub-cls 4.14.1 and 4.14.2 of MOCA 4 and sub-cls 11.24.1 and 11.24.2 of MOCA 5).

5. The Department applies for a declaration that sub-cl 4.14.3 of MOCA 4 and sub‑cl 11.24.3 of MOCA 5 apply only to a person who meets the following eligibility requirements:

   ·the person must be employed as an SMO;

   ·the person must be engaged to work in an Emergency Department under an extended hours roster within the meaning of cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5; and

   ·the person must work all of their rostered hours under the extended hours roster in that Emergency Department.

6. Both parties agree that the ED 25 allowance, as contained in sub-cl 4.14.3 of MOCA 4 and in sub-cl 11.24.3.1 of MOCA 5 ('the disputed sub-clauses'), only applies to SMOs.[3]

   [3] The Department's statement of facts and contentions filed on 6 September 2021 ('the Department's contentions'), para. 1(a) and the Union's statement of facts and contentions filed on 7 September 2021 ('the Union's contentions'), para. 3.

7. In summary, the Department's contention is that, on the construction of the disputed sub‑clauses, for an SMO to be entitled to the ED 25 allowance, two conditions must be met:

   ·first, the SMO must be engaged to work in an Emergency Department under an extended hours roster within the meaning of cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5; and

   ·secondly, the SMO must work all of their rostered hours under the extended hours roster in that Emergency Department.[4]

   [4] The Department's contentions, para. 5.

8. The Union contends that, on the construction of the disputed sub-clauses, an SMO's entitlement to the ED 25 allowance is not subject to those two conditions being met.[5]

   [5] The Union's contentions, para. 4.

9. The primary consideration, in respect of whether the declaration sought by the Department should be made, concerns the construction of the disputed sub-clauses. Having regard to the evidence led and the submissions made, the central issue is whether, on the construction of the disputed sub-clauses, an SMO has to work all of their hours in an Emergency Department to be entitled to the ED 25 allowance.

10. The questions for our determination are:

    ·what is the construction of the disputed sub-clauses? and

    ·in light of that construction:

    -        should the Commission make a declaration? and, if so

    -        should the declaration be made in the form sought by the Department in its application?

11. For the reasons that follow, we will make the declaration sought by the Department.

    The parties' contentions

12. Both parties filed and served a statement of facts and contentions.

    The Department's contentions

13. The Department contends that:

    ·the meaning of the words in sub-cl 4.14.3 of MOCA 4 are clear and unambiguous, when read in context, and when read against the historical background which was their factual genesis;[6]

    [6] The Department's contentions, para. 12.

    ·the context of sub-cl 4.14.3 of MOCA 4 is derived from:

    -        part 4 of MOCA 4 which prescribes employment conditions;

    -        the heading to cl 4.14, namely, 'Attraction and Retention Incentive Allowance - Senior Medical Officers,' and the content of that clause, which, in its preamble, refers to the parties' agreement that the retention of skills and experience of medical officers is crucial to the effective functioning of the Queensland public health system, and further that it is necessary to attract people with such skills and experience to work in Queensland's public health system and, with that aim, the ED 25 allowance will apply; and

    -        sub-clause 4.14.4 provides an acknowledgement for clarity, namely, '… that the allowances in Clause 4.14.1, 4.14.2, 4.14.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP';[7]

    [7] The Department's contentions, para. 13.

    ·the subject matter of cl 4.14 is the awarding of attraction and retention payments of particular kinds for the purposes stated in the agreement, including the ED 25 allowance;[8]

    ·the 'aim' of cl 4.14 is payment of significant benefits for the express purpose of attraction and retention of particular medical officers by, relevantly, the identification of the department of the hospital in which they work, namely, an SMO who works in an emergency department under a specified roster arrangement;[9]

    ·even without recourse to extrinsic materials, the composite expression '… works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3' can have no other meaning other than that, to be eligible, an SMO must be engaged to perform their work, as distinct from some of their work, as an SMO in an Emergency Department, and that they do so under the specified rostering arrangement;[10]

    ·if the contention by the Union was correct, namely, that an SMO who, from time to time, performs some shifts in an Emergency Department, is entitled to the ED 25 allowance:

    -        then it would not be possible to describe the payment as a 'speciality' attraction and retention payment;[11] and

    -        such an interpretation ignores the ordinary meaning of the heading to the clause 'Emergency Department speciality allowance' and further requires the introduction of words 'some of their shifts' to qualify and diminish the word 'works', thereby substantially altering the ordinary object of the meaning of the word 'works' as that word appears in the clause;[12] and

    ·it is only if the Full Bench finds that the objective meaning of the provision is ambiguous or susceptible of more than one meaning, that extrinsic evidence may be taken into consideration in the interpretation of the provisions.[13]

    [8] The Department's contentions, para. 14.

    [9] The Department's contentions, para. 15.

    [10] The Department's contentions, para. 16.

    [11] The Department's contentions, para. 17.

    [12] The Department's contentions, para. 18.

    [13] The Department's contentions, para. 21.

14. The Department further contends that:

    ·the evidence of both parties reveals that it was agreed by the parties to MOCA 4 that the common understanding and common assumption of all parties as to the negotiation was that MOCA 4 should maintain the status quo in relation to the terms and conditions of the predecessor certified agreement, together with the preservation of certain benefits which had been applied to particular employees by reason of individual contracts and High Income Guarantee Contracts ('HIGCs') made between 2006 and 2015 ('the Department's context contention');[14] and

    ·if such evidence is admitted, it proves that:

    -        what became the ED 25 allowance was not created for the first time upon the negotiation of MOCA 4, rather it was first provided to particular employees engaged under Option A contracts, in and from 2006, by means of an Option E addendum to that contract ('Option E contracts') and which was then carried forward in the terms of HIGCs;

    -        the Option E contracts were the genesis of the ED 25 allowance which later translated into MOCA 4; and

    -        the provisions of the Option E contract were that the ED 25 allowance was payable to SMOs working their ordinary hours in an Emergency Department;[15] and

    ·that evidence confirms the construction of the disputed sub-clauses as the Department contends.[16]

    [14] The Department's contentions, para. 24.

    [15] The Department's contentions, paras. 26-37.

    [16] The Department's contentions, para. 38.

    The Union's contentions

15. The Union contends that:

    ·the disputed sub-clauses have three elements, namely:

    -        the SMO works in an Emergency Department;

    -        that work is performed under a rostering arrangement in accordance with either cl 4.3 of MOCA 4 or cl 11.4 of MOCA 5 concerning extended hours arrangements; and

    -        the SMO's rostered hours include evening shifts during the week or anytime on the weekend;[17]

    ·nothing in the text of the disputed sub-clauses:

    -        focuses attention on the basis or purpose of the SMO's engagement, in that the clauses operate by reference to the performance of work and operate at the time work is being performed, rather than directing attention to the time at which the employee is initially employed; and

    -        imports a requirement that all of an SMO's work be performed in the Emergency Department, in that the ordinary meaning of the words '… works in' is not '… works only in' and the performance of some work is enough to satisfy the first element of the disputed sub-clauses; and

    ·it is the second and third 'limbs' of the declaration sought by the Department that operate to mean an employee working briefly in the Emergency Department will not be entitled to the allowance.[18]

    [17] The Union's contentions, para. 9.

    [18] The Union's contentions, paras. 10-11.

16. In respect of that second limb, which the Union states the Department defined by reference to the noun 'Engagement',[19] the Union contends that:

    ·neither the concept of 'engagement' simpliciter, nor the concept of engagement to work in a particular section of the hospital, derive anything in MOCA 4 or MOCA 5 or from the Medical Officers' (Queensland Health) Award – State 2015 ('the Award');[20]

    ·the Award does not:

    -        require the employer to specify, at the point of engagement, that the SMO is allocated or attached to any particular department or section of a hospital or a health service;[21] and

    -        limit the directions that may be given to an SMO by the employer as to the parts of the hospital or health service in which the SMO is required to perform their work;[22] and

    ·the forms of contract produced by the Department in its case indicate that it has employed forms of contract with SMOs in which it has reserved the right to direct the SMO to perform duties as required in the (Health) Service.[23]

    [19] The Union's contentions, para. 12.

    [20] The Union's contentions, para. 12.

    [21] The Union's contentions, para. 15.

    [22] The Union's contentions, para. 16.

    [23] The Union's contentions, para. 17.

17. In respect of the third limb, which the Union states the Department defined by reference to the phrase 'All Rostered Hours in the Emergency Department',[24] the Union contends that:

    ·the proposed condition, that an employee work all of their rostered hours in the Emergency Department, does not reflect anything in MOCA 4, MOCA 5 or the Award;[25] and

    ·MOCA 4 and MOCA 5 provide that SMOs will spend at least 10% of their time performing clinical support work (teaching, research, clinical governance, administration and other work-related activities undertaken by medical officers), which may not be based within the Emergency Department.[26]

    [24] The Union's contentions, para. 18.

    [25] The Union's contentions, para. 18.

    [26] The Union's contentions, para. 18.

1. The Union then contends that this proposed condition:

   ·would enable the defeat of the entitlement by the exercising of the rostering prerogative to allocate a worker to alternative duties for even an hour in a roster cycle and that the parties (to the agreements) would not be assumed to have intended such an absurd result;[27] and

   ·would give rise to an inequity between part-time and full-time employees with the same level of engagement within the Emergency Department in that:

   -        casual staff, resident medical staff and staff with private practice rights are excluded from the entitlement to the allowance, whereas part-time employees are not; and

   -        a part-time SMO working all of their 12 hours per week in the Emergency Department would be entitled to the allowance, but a full-time SMO working 24 of their 40 hours per week in the Emergency Department would not.[28]

   [27] The Union's contentions, para. 19.

   [28] The Union's contentions, para. 20.

2. In terms of the requirement, in sub-cl 4.14.3 of MOCA 4 and in sub-cl 11.24.3.1 of MOCA 5, that the work be performed under an extended hours roster, the Union contends:

   ·that requirement operates to condition the entitlement to the allowance on the satisfaction of a demonstrated clinical need and to ensure that the allowance operates as an attraction and retention payment;[29] and

   ·that shifts outside the span of ordinary hours for full-time SMOs under MOCA 4 and MOCA 5 - of 80 hours per fortnight worked between 7.00 am and 6.00 pm, Monday to Friday - may, pursuant to cl 4.3.3 of MOCA 4 and cl 11.4.3 of MOCA 5, only be rostered to meet a clinical need.[30]

   [29] The Union's contentions, paras. 21-22.

   [30] The Union's contentions, paras. 23-24.

3. The Union, in respect of that requirement, then contends:

   26.      Pursuant to both MOCA 4 and MOCA5, it was within the power of the employer to determine if a senior medical officer working under an extended hours arrangement would perform any work in an emergency department. The SMO's agreement to an extended hours arrangement meant they were able, during the life of that agreement, to be rostered to perform the overnight rosters necessary to operate emergency departments. The employer did not otherwise have the right to roster senior medical officers on such shifts. The Commission would infer that the employer would enter into extended roster arrangements with an employee or cohort of employees who were both willing and capable of providing Senior Medical Officer Coverage in its emergency department and having regard to its staffing needs in its emergency departments.

   27.      The allowance thus operates to attract (and retain) employees willing to make the significant commitment to performing the unsociable shifts necessary for the functioning of the emergency departments, and who are in fact so utilised.

4. Finally, the Union contends that, once proper consideration is given to the text, context and the purpose of sub-cl 4.14.3 of MOCA 4 and of sub-cl 11.24.3.1 of MOCA 5, there is no ambiguity to resolve and therefore no occasion arises for recourse to extrinsic material.[31]

   [31] The Union's contentions, para. 28.

5. In the alternative, the Union contends that:

   ·if those provisions are ambiguous, the only admissible evidence is that tending to establish objective background facts, notorious facts or common assumptions;[32] and

   ·the evidence led by the Department does not prove any of those matters.[33]

   The relevant provisions of the certified agreements

   [32] The Union's contentions, para. 29.

   [33] The Union's contentions, paras. 30-36.

   The parties to MOCA 4 and MOCA 5

6. The parties to MOCA 4 and MOCA 5 were and are:

   ·the Department;

   ·the Hospital and Health Services;

   ·the Union; and

   ·Together Queensland, Industrial Union of Employees ('TQ').[34]

   [34] Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 ('MOCA 4'), cl 1.2 and Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 ('MOCA 5'), cl 1.2.

7. TQ, although served by the Department with its application, did not take part in these proceedings.

   Clause 4.14 of MOCA 4

8. Clause 4.14 of MOCA 4 provided:

   4.14    Attraction and Retention Incentive Allowance – Senior Medical Officers

   The parties agree that retention of skills and experience of medical officers is crucial to the effective functioning of the Queensland public health system, and further that is necessary to attract people with such skills and experience to work in Queensland's public health system. With this aim, the following allowances will apply: These allowances are not 'all purpose' and therefore are not included in base salary for the purposes of the Superannuation (State Public Sector) Act 1990 (and associated Deed, Notice and Regulation.

   4.14.1General Attraction and Retention allowance

   (a)      For Specialist medical practitioners (excluding specialist general practitioners) an allowance of 50% of base salary

   (b)     For SMOs, other than those in Clause 4.14.1 (a) an allowance of 35% of base salary

   (c)      Except that the percentages in Clause 4.14.1 (a) or 4.14.1 (b) will be reduced by 25% of base salary for those who:

   (i) nominate to participate in the granted private practice revenue retention arrangement

   (ii) fail to complete the granted private practice agreement template within three months of certification of this agreement or upon commencement of employment (whichever is later); or

   (iii) have their granted private practice arrangement terminated in accordance with the termination provisions of the granted private practice agreement.

   4.14.2 Regional and Rural attraction allowance

   Amounts in Clause 4.14.1 (a) and 4.14.1 (b) will be increased by an additional:

   (a)      5% of base salary for SMOs employed in Cairns and Hinterland, Townsville (excluding Palm Island) and Darling Downs HHSs;

   (b)      10% of base salary for SMOs employed on Palm Island, or in Central West, Mackay, Central Queensland, Wide Bay, and South West HHSs; and

   (c)      15% of base salary for SMOs employed in Torres - Cape York and North West HHSs.

   4.14.3Emergency Department specialty allowance

   Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3, and the medical officer's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend, an allowance of 25% of base salary is paid in addition to amounts in Clause 4.14.1 and 4.14.2.

   4.14.4 The parties acknowledge for clarity that the allowances in Clause 4.14.1, 4.14.2, 4.14.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP.[35]

   4.14.5 The allowances payable under Clause 4.14.1, 4.14.2, 4.14.3 are payable for paid leave, and included as ordinary time earnings for superannuation.[36]

   [35] These acronyms stand for, respectively, 'Medical Superintendent with Private Practice' and 'Medical Officer with Private Practice', Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015, sub-cl 2.3.1.

   [36] Emphasis added.

   Clause 11.24 of MOCA 5

9. Clause 11.24 of MOCA 5 provides:

   11.24 Attraction and Retention Incentive Allowance – Senior Medical Officers

   The parties agree that retention of skills and experience of medical officers is crucial to the effective functioning of the Queensland public health system, and further that is necessary to attract people with such skills and experience to work in Queensland's public health system. With this aim, the following allowances will apply: (Please note, these allowances are not 'all purpose' and therefore are not included in base salary for the purposes of the Superannuation (State Public Sector) Act 1990 (and associated Deed, Notice and Regulation.)

   11.24.1 General Attraction and Retention allowance:

   11.24.1.1 For Specialist medical practitioners (excluding specialist general practitioners) an allowance of 50% of base salary;

   11.24.1.2 For SMOs, other than those in Clause 11.24.1.1 an allowance of 35% of base salary;

   11.24.1.3 Except that the sum of percentages in Clause 11.24.1.1 and or 11.24.1.2 will be reduced by 25% of base salary for those who:

   a.       nominate to participate in the granted private practice revenue retention arrangement

   b.       fail to complete the granted private practice agreement template within three months of certification of this Agreement or upon commencement of employment (whichever is later); or

   c.       have their granted private practice arrangement terminated in accordance with the termination provisions of the granted private practice agreement.

   11.24.2 Regional and Rural attraction allowance:

   Amounts in Clause 11.24.1.1 and 11.24.1.2 will be increased by an additional:

   (a)      5% of base salary for SMOs employed in Cairns and Hinterland, Townsville (excluding Palm Island) and Darling Downs HHSs;

   (b)      10% of base salary for SMOs employed on Palm Island, or in Central West, Mackay, Central Queensland, Wide Bay, and South West HHSs; and

   (c)      15% of base salary for SMOs employed in Torres and Cape and North West HHSs.

   11.24.3 Emergency Department specialty allowance

   11.24.3.1 Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 11.4, and the medical officer's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend, an allowance of 25% of base salary is paid in addition to amounts in Clause 11.24.1 and 11.24.2.

   11.24.3.2 The parties acknowledge for clarity that the allowances in Clause 11.24.1 and 11.24.2 and 11.24.3 are only payable to senior medical staff who meet the criteria outlined in the respective clauses, and do not apply to casual staff, resident medical staff, MSPP/MOPP.[37]

   11.24.3.3 The allowances payable under Clause 11.24.1 and 11.24.2 and 11.24.3 are payable for paid leave, and included as ordinary time earnings for superannuation.[38]

   The principles of construction of certified agreements

   [37] Again, these acronyms stand for, respectively, 'Medical Superintendent with Private Practice' and 'Medical Officer with Private Practice', Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 2.6.

   [38] Emphasis added.

   The Department's submissions

10. The Department referred the Full Bench to a number of decisions[39] in respect of which it submitted that, in the construction of the disputed sub-clauses, the context of those provisions is to be taken into account, and that context '… is, effectively, everything.'[40]

    [39] T 3-5, l 3 to T 3-6, l 28 (30 March 2022). The principal authorities cited were Australian Manufacturing Workers' Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 ('Berri'), [114], Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 ('Codelfa') 352 (Mason J) and Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 ('Mainteck'), [72]-[85] (Lemming JA, Ward JA at [1] and Emmett JA at [13] agreeing).

    [40] T 3-5, l 3 to T 3-6, l 28.

11. The Department, in particular, referred to the decision of Burchett J in Short v FW Hercus Pty Ltd ('Hercus'),[41] where his Honour stated:

    No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it."

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.[42]

[41] [1993] FCA 72; (1993) 40 FCR 511 ('Hercus').

[42] Hercus (n 41) 517-518.

1. The Department further submitted that:

   ·those passages are an apt description of the sorts of contextual considerations that can be relevant, in a case such as the present, where an industrial expression has been picked up out of another document and transplanted '… roots and all' into another place;[43] and

   ·in the present matter, there had been a translocation of a particular industrial benefit from a common law contract to an enterprise agreement with adjustments and, in those circumstances, the place from which the benefit came cannot be ignored.[44]

   [43] T 3-7, ll 27-30.

   [44] T 3-7, ll 40-44.

   The Union's submissions

2. The Union referred to paragraphs [41] and [114] of the decision in Australian Manufacturing Workers' Union v Berri Pty Ltd ('Berri'),[45] namely:

   [45] Berri (n 39).

   [41]     The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Ltd v Construction, Forestry, Mining and Energy Union, Gleeson CJ and McHugh J described the process in the following terms: “[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …”. Or, as Kirby J put it in the same case, “[i]nterpretation is always a text-based activity”.

   …

   [114]   The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction 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 disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.[46]

[46] Citations omitted. T 3-30, l 24 to T 3-31, l 30.

1. The Union, in respect of the notion of context, submitted that:

   ·context is not a means of justifying recourse to anything extrinsic to illustrate a particular construction contended in respect of a provision;

   ·where there is a disputed construction, the resolution turns on the language having regard to its context and purpose and that context and purpose is examined to inform the language used;

   ·context concerns the context of the provision in the document itself, so that the starting point with any question of interpretation is the ordinary meaning of the relevant words; and

   ·context and purpose are not examined:

   -        to give the language a meaning it does not possess; and

   -        in order to engage in some other task of trying to ascertain what was really intended by one or other of the parties to an agreement.[47]

   [47] T 3-31, ll 32-42.

   The relevant principles of the construction of certified agreements

2. MOCA 4 was made under ch 6, div 1 of the Industrial Relations Act 1999 ('the 1999 Act') and was certified by the Commission under ch 6, div 2 of the 1999 Act. The 1999 Act described a certified agreement as being a written agreement between an employer and a group of employees of the employer (whether all employees or a category of employees) who were covered by a modern award and where the agreement had been certified under s 156 of that Act.[48]

   [48] Industrial Relations Act 1999 s 141.

3. MOCA 5 was made under ch 4, pt 2 of the Act and was certified under ch 4, pt 5 of the Act. Section 164 of the Act describes a certified agreement as being a written agreement about industrial matters relating to an employer, a group of employees of the employer, whether all employees or a category of employees, and the employee organisations covered by the agreement, that has been certified under ch 4, pt 5 of the Act.

4. In Toyota Motor Corporation Australia Ltd v Marmara,[49] the Full Court of the Federal Court of Australia[50] relevantly stated of enterprise agreements made under s 182 of the Fair Work Act 2009:

   [89] In his reasons, the primary judge said that “Toyota contended and it was not disputed, that an enterprise agreement made under the FW Act is a form of delegated legislation”. It appears that that contention was made in the context of Toyota's submission based on s 46 of the AI Act to which we have referred. However, although the FW Act provides that an enterprise agreement is “made” otherwise than by the Commission, the Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.

   [90] An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act. It is enforceable under that Act, and not otherwise. There is, in the circumstances, no reason to approach the question of legislative intent with a predisposition informed by notions of freedom of contract.[51]

   [49] [2014] FCAFC 84; (2014) 222 FCR 152.

   [50] Jessup, Tracey and Perram JJ.

   [51] Emphasis added.

5. Indeed, it has been held that enterprise agreements made under the Fair Work Act 2009 are not simply one form of a commercial contract in the conventional sense.[52]

   [52] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 ('Bianco Walling'), [60] (Flick, White and Perry JJ).

1. We can see no reason why these descriptions would not apply to written agreements made and certified under the relevant provisions of ch 6 of the 1999 Act and under ch 4 of the Act. This is because the provisions of the Fair Work Act 2009, that deal with the making of enterprise agreements, their approval by the Fair Work Commission, their nature and operation, and the penalty consequences for their breach, are not materially different to the equivalent provisions in the 1999 Act and the Act.

2. When a document is properly construed there is only one correct meaning.[53]

   [53] Ibid, [66].

3. The party whose case relies upon the construction of an enterprise agreement for which it contends bears the onus of establishing that its construction is the correct construction of the clause in question.[54]

   [54] Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138, [59] (Bromberg J).

4. In James Cook University v Ridd ('Ridd'),[55] Griffiths and SC Derrington JJ provided a convenient summary of the established principles in the interpretation of an enterprise agreement made and approved under the Fair Work Act 2009. Their Honours stated:

   [55] [2020] FCAFC 123; (2020) 278 FCR 566 ('Ridd'). These principles were not called into question in the appeal of this decision to the High Court in Ridd v James Cook University [2021] HCA 32; (2021) 310 IR 109.

   [65]     The relevant principles applicable to the interpretation of an enterprise agreement may be stated 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) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [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 Ltd (1996) 66 IR 182 at 184; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [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) 153 IR 426 at [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) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 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) 40 FCR 511 at 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) 40 FCR 511 at 518).

   (vi) A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [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) 30 IR 362 at 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) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).[56]

   [56] The summary given by Griffiths and SC Derrington JJ in Ridd was cited with approval in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225, [249] (Jagot J) and in Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223, [31] (McElwaine J).

5. Recourse may be had to extrinsic material in the construction of a certified agreement where there is ambiguity. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning.[57] The matter of whether there is ambiguity must be considered objectively.[58]

   [57] Berri (n 39), [114], item 7 (Justice Ross, President, Deputy President Gooley and Commissioner Hunt) and Bianco Walling (n 52), [67].

   [58] Bianco Walling (n 52), [70].

6. In terms of recourse to extrinsic material in such circumstances, both parties referred to the decision of Berri[59] where a Full Bench of the Fair Work Commission relevantly stated:

   [59] Berri (n 39).

   [61]     Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa):

   … evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.

   [62]     The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

   … when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting.

   [63]     As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

[64]     As to category (i), evidence of prior negotiations will be admissible - but only for a defined purpose. As Mason J observed in Codelfa:

Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

[65]     Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Ltd:

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.[60]

[60] Footnotes omitted.

1. Some of the 15 principles of construction of enterprise agreements, which were later stated by the Full Bench of the Fair Work Commission in Berri,[61] were cited with (apparent) approval by Flick, White and Perry JJ in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[62] and by Katzmann J in Commissioner of the Australian Federal Police v Police Federation of Australia.[63]

   [61] Berri (n 39), [114].

   [62] Bianco Walling (n 52), [59]. The Court stated, at [60], that the appeal in that case did not provide the occasion for a review of the principles concerning the construction of enterprise agreements stated in Berri.

   [63] [2022] FCA 272, [67].

2. Again, for the reason given in paragraph [36], we can see no reason why the abovementioned principles, referred to in paragraphs [39]-[41] of these reasons, would not apply to the construction of certified agreements made and approved under the 1999 Act and under the Act.

3. Indeed, the submissions made by both parties seemed to accept that the authorities to which they referred, concerning the construction of enterprise agreements made and approved under the Fair Work Act 2009, had applicability to the construction of certified agreements made under the 1999 Act and under the Act.

   What is the construction of the disputed sub-clauses?

   Overview of the parties' submissions

4. The Department's basic submission is that:

   ·the words used in the disputed sub-clauses were translated from express contracts entered into between the Department and SMOs who worked in Emergency Departments and provided for payment of an additional 25% of the SMO's salary;

   ·the additional 25% payment, in the express contracts, was to attract and retain SMOs who worked in Emergency Departments and those contracts made it plain that, to attract that payment, the SMO had to work all of their ordinary hours in an Emergency Department; and

   ·having regard to that context, and on the very similar words used in the disputed sub-clauses, the construction of the disputed sub-clauses is that the SMO has to work all of their hours in an Emergency Department, under the rostering arrangements as specified, to be entitled to the ED 25 allowance.[64]

   [64] T 3-11, l 11 to T 3-13, l 25.

5. The Union submitted, by way of overview, that:

   ·the Department bears the burden as to the interpretation of sub-cl 4.14.3 of MOCA 4 and of sub-cl 11.24.3.1 of MOCA 5, and the Department must demonstrate that it is appropriate in the circumstances for the Commission to exercise its discretion to make a declaration in the terms that the Department seeks;[65] and

   ·of the limbs to the declaration sought by the Department:

   -        as to the first limb, there is no controversy between the parties, namely, that the person must be employed as an SMO;

   -        as to the second limb, namely, that the person must be 'engaged' to work in an Emergency Department under an extended hours roster within the meaning of cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5, the disputed sub‑clauses do not import a requirement that there be a specific engagement, and all that is necessary is that there is an extended hours roster in place; and

   -        as to the third limb, there was no requirement that the person must work all of their rostered hours under the extended hours roster in the Emergency Department.[66]

   [65] T 3-28, ll 35-39.

   [66] T 3-29, l 42 to T 3-30, l 15.

   Objections to material tendered

6. There were 19 affidavits tendered. The Court Book consisted of four lever arch volumes and contained 1782 pages. The Union's Tender bundle[67] consisted of seven lever arch volumes and contained 2703 pages.

   [67] Exhibit 10.

7. Each party filed and served extensive tables of objections to the other party's affidavit material. Both parties also filed extensive submissions about the objections. The Commission indicated that it would not rule on those objections, but that it would hear the evidence and then hear submissions from the parties about what evidence was relevant and irrelevant about the issue of construction.[68]

   [68] T 2-10, l 34 to T 2-11, l 24 (19 August 2021).

8. In their final submissions, both parties maintained their objections to the other party's tendered material.[69]

   [69] T 2-3, ll 22-27 and T 3-2, ll 7-19.

9. In the reasons which follow, where we take into consideration tendered material in respect of which there was an objection, we will give our reasons for determining that the material was admissible and for dismissing the objection.

   The context of the disputed sub-clauses

10. Given the evidence led and submissions made by both parties about the provision of an allowance of 25% of the base salary for SMOs who worked in Emergency Departments, by administrative and contractual means prior to the disputed sub-clauses being agreed, we are of the view that it is convenient to first deal with that evidence and the relevant submissions.

11. We accept, as the Union submits, that the context of a provision in a certified agreement, where its construction is disputed, may be discerned from the text of the agreement read as a whole.[70] The Union also submitted, in respect of the notion of 'context', that it is not a means of justifying recourse to anything extrinsic to illustrate a particular construction contended in respect of a provision. We cannot accept that submission because, having regard to the authorities, it is not entirely accurate.

    [70] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, [53] (French J).

12. The summary of the principles of construction of enterprise agreements, given by Griffiths and SC Derrington JJ in Ridd, referred to earlier in these reasons, cited Hercus[71] as authority for the propositions that:

    ·in considering the context of a provision in a certified agreement, context may extend to other documents of which there is association;[72] and

    ·context may also include ideas that give rise to an expression in a document from which it has been taken.[73]

    [71] Hercus (n 41).

    [72] Ibid, 518.

    [73] Ibid.

13. The passage in the decision of Burchett J in Hercus, from which these principles derive, is set out earlier in these reasons at paragraph [28]. This passage in Hercus was referred to with approval by Marshall J in Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia ('AMACSU')[74] following which his Honour stated:

    As is evident from my judgment in Barlow v Qantas Airways Ltd (1997) 75 IR 100 at 113‑114, where I was sitting as a member of a Full Court of IRCA, I prefer Burchett J's approach to award interpretation. There is no sound reason why recourse to probative extrinsic material by the Court should be conditional on identification of an ambiguity. Further, there is no sound reason why use of the extrinsic material should be limited to identifying the mischief sought to be addressed by the award, as distinct from construing the meaning of the award itself. But the debate is rather academic. I regard myself bound by the approach of Burchett J in Short v Hercus, Drummond J having agreed with his Honour's approach on the issue of award interpretation and the use of extrinsic material.[75]

    [74] [1998] FCA 249; (1998) 82 FCR 175 ('AMACSU').

    [75] Ibid, 178.

14. The facts in AMACSU have some resonance with the Department's context contention.

15. In AMACSU, the disputed phrase was '… different locality' in cl 11.1.1(c) of the Australian Public Service, General Employment Conditions Awards 1995 ('the GEC award'). That paragraph provided that where the duties performed by the employee were to be performed at a 'different locality,' and certain other conditions were met, then the employee was an 'excess employee' to whom the redeployment and redundancy provisions of the GEC award applied.

16. The Applicant contended that the phrase '… different locality' included transfers within metropolitan areas. The Respondent contended that the phrase was directed to an intercity move, such that the employee would be compelled to move house.[76] In giving an interpretation of the disputed phrase, Marshall J had regard to the predecessor award to the GEC award, namely, the Australian Public Service, Redeployment and Retirement (Redundancy) Award 1987 ('the RRR award').

    [76] Ibid, 179-180.

17. Clause 11.1.1(c) of the GEC award was not materially different to the equivalent provision, cl 5(e)(iii), in the RRR award. In addition, when the RRR award was made, a circular was issued by the Public Service Board, under the Public Service Act 1922 (Cth), concerning excess staff entitled 'Excess Staff Circular' ('the circular'). Both the RRR award and the circular had a common operation date. The (unchallenged) evidence was that the circular was issued for application in conjunction with the RRR award and that they were an agreed package by the Commonwealth and all union parties.[77]

    [77] AMACSU (n 74), 181-182.

18. The circular provided that a material relocation, which may give rise to a potential redundancy, contemplated a geographic relocation.[78]

    [78] Ibid, 183.

19. Marshall J also had regard to what was known as the Personnel Management Manual ('PMM') which was cross-referenced in the circular. His Honour found that subs 9/S of the PMM made it apparent that, in the ordinary case, only intercity transfers were contemplated as giving rise to a redundancy situation.[79]

    [79] Ibid, 183-185.

20. In making a declaration that cl 11.1.1(c) of the GEC award did not contemplate compulsory transfers within the same metropolitan area of a city,[80] Marshall J relevantly held:

    This survey of the subs 9/S of the PMM makes it apparent that it was contemplated that in the ordinary case only inter-city transfers were contemplated as giving rise to a redundancy situation. When subs 9/S of the PMM is considered together with the relevant terms of the Excess Staff Circular - they point to a scheme whereby the notion of "at a different locality" in the RRR Award was intended encompass a move the magnitude of which was inter-city, or of a similar scale, such that the employee would be required to move house to maintain her or his employment. In my view, the Excess Staff Circular and the PMM constitute part of the "context" in which cl 5(e)(iii) of the RRR Award should be considered: see Short v Hercus at 518. This is apparent from the implementation of the RRR Award and the Excess Staff Circular as an agreed package and with the common operational date in respect of both instruments. So, when cl 5(e)(iii) of the RRR Award was transplanted to cl 11.1.1(c) of the GEC Award, to quote Burchett J in Short v Hercus, it "... brought with it some of the soil in which it once grew".[81]

    [80] Ibid, 185.

    [81] Ibid, 185.

1. We can see no reason why the principle espoused in Hercus and AMACSU - that in determining the context of a provision in an award, regard may be had to relevant extrinsic material - would be inapplicable to the construction of a certified agreement. There are three reasons for this.

2. First, many of the accepted principles of construction of enterprise agreements, made and approved under the Fair Work Act 2009, are principles first espoused in the construction of awards.[82] In Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd,[83] Besanko, Bromberg and Wheelahan JJ relevantly stated:

   [28]   The Full Court of this Court observed in Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 (TWU v Coles) that, although the observations in Kucks were made in dealing with the construction of awards, they apply equally to industrial agreements subject to one additional observation. Enterprise agreements are agreements in name only and their construction should not proceed on the premise that they are a form of bargain between agreeing parties (TWU v Coles at [40]; Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152; 244 IR 335 at [88]-[89]). In other words, because of the circumstances in which they are made and the consequences of contravention (i.e., penal consequences for contravention: s 50 of the FW Act), enterprise agreements have a legislative character.

   [29]     The main guides to construction are text, context and purpose and there is utility in bearing in mind the facts as they are known at the time the instrument is drafted (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [2] per Gleeson CJ and McHugh J; at [30] per Gummow, Hayne and Heydon JJ; at [64] and [96] per Kirby J; at [129]-[131] per Callinan J; TWU v Coles at [46]; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [16.160] et seq).

   [82] The authorities cited for the seven relevant principles applicable to the interpretation of an enterprise agreement, referred to by Griffiths and SC Derrington JJ in Ridd (n 55) at [65], included authorities concerned with the construction of awards, namely, City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53], Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 ('Kucks') at 184 and Hercus (n 41) at 518.

   [83] [2022] FCAFC 50; (2022) 314 IR 231.

3. Secondly, while the decision of Marshall J in AMACSU concerned the determination of the context of a provision in an award, Griffiths and SC Derrington JJ in Ridd cited AMACSU as authority for the proposition that in construing an enterprise agreement made under the Fair Work Act 2009, context may extend to the entire document of which it is a part, or to other documents with which there is an association.

4. Thirdly, as referred to above, there is no reason why the principles of construction of enterprise agreements made under the Fair Work Act 2009 should not apply to certified agreements made and approved under the 1999 Act and under the Act.

5. For these reasons, we now turn to the context argument made by the Department and the Union's response to that argument.

   The Department's submissions

   The history of the disputed sub-clauses

6. The Department submitted that:

   ·the subject matter of sub-cl 4.14.3 of MOCA 4 was that it contained three types of payments, expressly described as being attraction and incentive payments, one of which was the ED 25 allowance;[84] and

   ·the context of the sub-cl 4.14.3 of MOCA 4 was understood by reference to the evidence of Dr Coralie Endean,[85] the Senior Medical Officer at the Stanthorpe Hospital, and that the reason for the 2006 unilateral introduction by the Department of an allowance, that became the ED 25 allowance in MOCA 4, was that as set out in a 2006 Departmental circular, numbered 'ER 24/06', to SMOs ('the 2006 circular').[86]

   [84] T 3-8, l 29 to T 3-9, l 6.

   [85] Dr Endean gave evidence on behalf of the Union.

   [86] T 3-9, l 27 to T 3-10, l 34.

7. The Department then:

   ·referred[87] to the evidence of Mr Travis Hodgson,[88] and Dr Peter Bristow[89] which was to the effect that the additional 25% added to the Option A allowance for Specialists and SMOs employed in emergency departments, referred to in the 2006 circular, was provided by way of what became known as the Option E contracts, which were introduced in 2006 for emergency specialists (which, for clarity, we will refer to as 'the Option E 25% allowance'); and

   ·referred[90] to the further evidence of Dr Bristow, in his third affidavit, that:

   -        the Option E 25% allowance was preserved for existing persons and was made available for new starters by way of individual employment contracts known as HIGCs, in respect of which remuneration was provided through a number of tiers, which relevantly included 'Tier 4C', which was a specialty recruitment incentive, and which included the Option E 25% allowance;[91] and

   -        during the negotiations for MOCA 4, it was agreed by the Department and the relevant unions that the Option E 25% allowance would be translated into the MOCA 4 attraction and retention allowances as the ED 25 allowance;[92] and

   ·referred to the evidence of Dr Suzanne Royle, Senior Staff Specialist General Paediatrician, Metro North Hospital and Health Service, both in her evidence‑in‑chief and in cross-examination,[93] that there was an exercise to bring the Option E 25% allowance benefit into the '… enterprise bargaining fold.'[94]

   [87] T 3-10, l 36 to T 3-11, l 2.

   [88] Exhibit 8, para. 4 and exhibit 'TH-1', pages 271 and 279-287 of the Court Book.

   [89] Exhibit 6, para. 6, page 516 of the Court Book.

   [90] T 3-11, ll 14-20.

   [91] Exhibit 16, para. 4, pages 596-597 of the Court Book.

   [92] Exhibit 16, para. 10, page 599 of the Court Book.

   [93] Exhibit 19, paras. 51-52, page 1241 of the Court Book and T 2-51, ll 1-28.

   [94] T 3-11, ll 24-28.

   How sub-cl 4.14.3 of MOCA 4 came into existence

8. The submissions of the Department, after reciting that history, were that:

   ·the Option E 25% allowance was translated to be the ED 25 allowance in MOCA 4;[95]

   ·the ED 25 allowance in MOCA 4 was not a new benefit that was thought up when negotiating MOCA 4;[96]

   ·it was the case, according to all the witnesses in this proceeding that had any involvement in it, that the purpose was to put the Option E 25% allowance into MOCA 4, with no gains and no losses,[97] and once that was understood, then on the authorities such as Hercus[98] dealing with context, that context cannot be ignored in the construction of sub-cl 4.14.3 of MOCA 4;[99]

   ·the evidence of Dr Royle[100] and Dr Bristow[101] was that the mutually understood common intention was to preserve the Option E 25% allowance and that it was to be translated to be the ED 25 allowance in MOCA 4;[102] and

   ·on the authority of the decision of R. D. Nicholson J in BP Australia Pty Ltd v Nyran Pty Ltd,[103] that kind of mutual intention is admissible in order to understand the meaning of an agreement like this because that is what the parties agreed should happen, which is a different thing from the subjective intentions of what somebody hoped to achieve out of the process.[104]

   [95] T 3-11, ll 31-33.

   [96] T 3-11, ll 34-35.

   [97] T 3-11, ll 36-40.

   [98] Hercus (n 41).

   [99] T 3-12, ll 1-20.

   [100] Who gave evidence on behalf of the Union.

   [101] Who gave evidence on behalf of the Department.

   [102] T 3-12, ll 22-30.

   [103] [2003] FCA 520; (2003) 198 ALR 442, [34].

   [104] T 3-12, ll 33-42.

9. An unexecuted template copy of the Option E contract was exhibited to the second affidavit of Ms Rachel Borger, Director of Industrial Relations of the Department.

10. The Department referred to paragraph C under the heading of 'Background' to the Option E contract and emphasised that it referred to the Emergency Department Extended Hours Benefit on the terms set out in the (Option E) contract being paid '… in consideration for the SMO working their ordinary hours of work through an Extended Hours arrangement in an emergency department'.[105] The Department also referred to the evidence given by Dr Royle in cross-examination about that provision in the Option E contract.[106] The Department submitted in respect of that part of the Option E contract:

    Now, it's as clear as crystal that that is the qualifying circumstance for which you become entitled to the benefit. That - the contract recites what the agreement is that has been reached and what it - and that that is the consideration for the payment of the benefit. Absolutely clear as crystal. The - there are a set of definitions, a senior medical officer - which is the person who is the party to this agreement - means senior medical officer as classified under the award working in an emergency department, not walking into an emergency department from time to time. Not visiting an emergency department, not waving at it out the window, but working in an emergency department.

    Now, in ordinary industrial parlance, working in an emergency department means that's where you work, not that's where you don't work and you work somewhere else, but you go here from time to time. That's not working in an emergency department. That is working in whatever other department you're working in and coming to the emergency department from time to time and working there in conjunction of other things. No mention of having - of not working in the emergency department. And then the actual benefit is - which is not set out in the background of paragraph (c) that I referred to - the actual benefit is prescribed because paragraph (c) says the benefit you get in consideration of working in that way is as set out in this agreement.[107]

    [105] T 3-12, l 44 to T 3-13, l 34.

    [106] T 2-35, l 18 to T 2-48, l 36.

    [107] T 3-13, l 42 to T 3-14, l 14.

11. The Department then drew its 'context' argument together by submitting that:

    ·Dr Royle, when pressed in cross-examination, accepted that she was working all of her ordinary hours in the Emergency Department of The Prince Charles Hospital ('TPCH') because of the way in which the ward (in which she was working) was associated with the Emergency Department;[108]

    ·the initial evidence of Dr Royle, that she was not required to work all of her hours in the Emergency Department to receive the Option E 25% allowance,[109] was reversed in cross-examination, such that there is no example the Union could point to of someone, who did not work all of their hours in an Emergency Department, who was provided with an Option E contract;[110]

    ·Dr Royle's earlier evidence, that she was anecdotally aware of applications of the Option E 25% allowance being paid in circumstances where the SMO was merely required to participate in the extended hours roster, and work shifts in an Emergency Department,[111] needed to be contrasted with the evidence of Mr Hodgson[112] - who attended multiple meetings in relation to the enterprise bargaining process for MOCA 4, including one or two meetings where the ED 25 allowance was discussed[113] - that he (Mr Hodgson) was not aware of any SMOs that received the ED 25 allowance that did not work full‑time in an Emergency Department;[114] and

    ·Dr Royle's further evidence in cross-examination,[115] in respect of the time she was involved, on behalf of the Union, in the negotiations for the introduction of the Option E 25% allowance or the equivalent Tier 4C entitlement as part of the HIGCs into MOCA 4, was that:

    -        there was no intention to have any diminution of previous entitlements; and

    -        there was a rejected Union claim to expand who would get the entitlement when the Option E 25% allowance was replicated in MOCA 4.[116]

    [108] T 3-15, l 45 to T 3-16, l 2.

    [109] Exhibit 20, para. 5, page 1444 of the Court Book.

    [110] T 3-16, ll 32-36.

    [111] Exhibit 19, para. 50, page 1241 of the Court Book.

    [112] T 1-78, ll 31-33.

    [113] T 1-75, ll 27-30.

    [114] T 3-17, ll 15-18.

    [115] T 2-52, ll 29-36.

    [116] T 3-17, l 37 to T 3-18, l 10.

    The Union's submissions

12. The Union referred to the Department's contention that the common understanding and common assumption of all parties was that MOCA 4 should maintain the status quo, including the benefits which had been applied to particular employees by reason of the Option A and E contracts and the HIGCs between 2006 and 2015.[117] The Union submitted:

    There was no common understanding, assumption, or intention, that there be some preservation of the status quo, and it's important here to distinguish between what was necessarily the translation of a whole bunch of different components of remuneration, from one form of instrument across to a new form of instrument - so going from individual contracts which applied across a range of individuals, into an enterprise agreement. So one shouldn't mistake what was inevitably a translation into a preservation of the status quo.[118]

    [117] The Department's contentions, para. 24.

    [118] T 3-42, ll 4-11.

13. In making that submission, the Union referred to a number of documents in its tender bundle (Exhibit 10).

14. In light of that evidence, the Union submitted that:

    ·the Commission needed to be careful to distinguish between the process of translating a number of categories of entitlement from an old system across to a new system, which was not the same as there being a common assumption or a common intention of the parties, and referred to the decision of McLelland CJ in Watson v Foxman[119] ('Watson') to the effect that with the passage of time, people tend to put the gloss of their subsequent experience on to what happened before and tell their histories in the way that they would like them to have played out, rather than in exactly the way that they played out;[120] and

    ·there was no common assumption about the benefits which were available under the Option E contract and referred to the evidence of Dr Royle who did not consider that the ED 25 allowance was conditional upon a doctor working all of their hours in the Emergency Department.[121]

    [119] (1995) 49 NSWLR 315, 318-319 ('Watson').

    [120] T 3-45, ll 1-12.

    [121] T 3-45, ll 14-20.

15. The Union further submitted[122] that the Department's context contention was not proven by reference to specific documentary evidence which (it submitted) contradicted the idea that the ED 25 allowance was only ever going to be paid to SMOs who worked all of their hours in the Emergency Department. In respect of this evidence, the Union submitted that:

    ·if the Department wanted to establish as an objective background fact, that it had always been understood by the parties that the ED 25 allowance was only paid to those working all of their hours in the Emergency Department, then the Department's own documents are contrary to such an understanding;[123]

    ·on all the evidence, it could not be seriously contended that there was a common assumption as to how (sub-cl 4.14.3 of) MOCA 4 should be drafted or even to whom the ED 25 allowance was paid or should be paid;[124] and

    ·there is no occasion to go behind the plain words of the relevant clauses in that there is no objective background fact which has been demonstrated, or demonstrated to the level the Commission would need to have before it, if the Commission were to conclude that there was the common assumption as asserted by the Department.[125]

    [122] T 3-46, l 1 to T 3-51, l 20.

    [123] T 3-51, ll 6-9.

    [124] T 3-51, ll 14-16.

    [125] T 3-51, l 45 to T 3-53, l 2.

16. We address these documents and these submissions below.

    The Department's submissions in reply

17. In respect of the Union's submissions about context, the Department submitted that:

    ·on the authority of Mainteck Services Pty Ltd v Stein Heurtey SA,[126] the context of a document is relevant to its construction and context may be discerned from documents outside of the document;[127]

    ·the Option E contracts disclose the context of the relevant clauses in MOCA 4 and MOCA 5 because the evidence of Dr Bristow and Dr Royle was that the objective of the parties (to MOCA 4) was to maintain the status quo, including the Option E 25% allowance, and no other contract was in evidence which demonstrated that the Option E 25% allowance was provided to anyone else other than SMOs who executed Option E contracts;[128] and

    ·the disputed sub-clauses refer to where an SMO '… works in an Emergency Department' and:

    -        the mutual intention of what that means is objectively derived from the contracts which originally conferred the benefit; and

    -        that phrase has a special meaning, namely, an SMO who works all of their ordinary hours in the Emergency Department[129] which was consistent with Mr Hodgson's unchallenged evidence that the Option E 25% allowance was only ever provided to an SMO who works all of their ordinary hours in the Emergency Department.[130]

    [126] Mainteck (n 39), [75]-[81] (Lemming JA).

    [127] T 3-64, ll 19-36.

    [128] T 3-65, l 23 to T 3-66, l 27.

    [129] T 3-67, l 45 to T 3-68, l 10.

    [130] T 3-68, ll 20-22, T 3-69, ll 45-46 and T 3-70, ll 9-10.

18. By way of conclusion, the Department submitted that the context of the disputed sub‑clauses was disclosed from the mutual intention of the parties, namely, to uplift the benefit of the Option E contracts into MOCA 4, which was proven mostly by the evidence of Dr Royle.[131] That is, by a consideration of its contextual argument, the Department submitted that the construction of the disputed sub-clauses was that, to be eligible for the ED 25 allowance, the SMO had to work all of their rostered hours in the Emergency Department ('the Department's construction').[132]

    Is the history leading to, and content of, the Option E 25% allowance a cue to disclosing the context of the disputed sub-clauses?

    [131] T 3-72, ll 1-24.

    [132] T 3-71, ll 18-22.

19. For the reasons given above in paragraphs [52]-[65] above, we may, in the absence of a determination that the disputed sub-clauses are ambiguous, have regard to extrinsic material if it tends to determine the context of the disputed sub-clauses, including their scope. In addition, as stated in Ridd, where the circumstances allow a conclusion that a clause is a product of history out of which it grew to be adopted in its present form, recourse may be had to that history.

    The history leading to the Option E 25% allowance and its maintenance in the HIGCs

20. In 2005 and 2006, Ms Susan Le Boutillier was the Manager of Industrial Relations in the Department.

21. Ms Le Boutillier's evidence was that:

    ·in or around 2005, the Queensland Government made a decision that medical officers employed in the Department would be covered by their own industrial instrument, which became the Medical Officers' (Queensland Health) Certified Agreement (No. 1) 2005 ('MOCA 1');

    ·she was directly involved in the negotiations for MOCA 1 and her role was as a member of the Medical Interest Based Bargaining Group ('MIBB Group') which involved a number of management representatives from the Department, medical officers, the Union and the (then) Queensland Public Sector Union ('QPSU'), now TQ;

    ·her specific role as a member of the MIBB Group was as the lead negotiator on behalf of the Department; and

    ·the negotiations took an interest-based approach to bargaining, and the negotiated package of MOCA 1 was significant with the then Queensland Government providing nearly $700,000,000 in additional funding for senior and junior medical officers across the State, which was later increased to over $1,000,000,000.[133]

    [133] Exhibit 7, paras. 5-9, page 39 of the Court Book.

22. MOCA 1 was certified in December 2005.[134]

    [134] Exhibit 7, para. 24, page 41 of the Court Book.

23. Ms Le Boutillier's further evidence was that:

    ·in 2005, there was a crisis in emergency medicine in Queensland, brought about by a shortage of SMOs who specialised in emergency medicine; and

    ·this was because such SMOs were leaving the Department or that speciality, and very few junior medical officers were choosing to pursue a career in emergency medicine.[135]

    [135] Exhibit 7, para. 25, page 42 of the Court Book.

[247]What legitimately may be drawn from a consideration of the sub-headings about the construction of the disputed sub-clauses?

[248]The ordinary meaning of the noun 'speciality', as used in the obvious context of the disputed sub-clauses - namely, establishing and setting the conditions for the ED 25 allowance to particular SMOs - is '… Med. a particular field of medicine, practitioners of which require advanced qualifications'.[311] The particular field of medicine, identified in the sub-headings of the disputed sub-clauses, refers to, on the words used, those SMOs whose particular field of medicine is to work in an Emergency Department. Sub‑clauses 4.14.3 and 11.24.3 have the dual function of describing the content of the sub-clauses and stating their scope or the reason for the allowances.

[311] Macquarie Dictionary (7^th ed, 2017), 'specialty' (def 4).

[249]The sub-headings are relevant to determining the scope of the disputed sub-clauses. They clearly point to the ED 25 allowance being paid to SMOs whose specialty or particular field of medicine is working in an Emergency Department.

[250]For this reason, our view is that the sub-headings are a textual indicator against the notion of the allowance being payable to an SMO who only works some of their shifts in an Emergency Department.

The other words used in the disputed sub-clauses

[251]We are of the view that there are two elements which need to be considered in the construction of the disputed sub-clauses.

[252]Leaving aside parts of the disputed sub-clauses which provide for the payment, there are two elements that need to be met.

[253]The first is contained in the phrase: '… Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3,' (of MOCA 4) or '… Clause 11.4,' (of MOCA 5). This is because it covers one subject matter up to the comma in the provision which is found immediately before the word '… and' is used for the first time.

[254]The second is the requirement that the medical officer's rostered hours include working evening shifts Monday to Friday, and, or in the alternative, shifts anytime on the weekend.

Where an SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3 of MOCA 4 and Clause 11.4 of MOCA 5

[255]We share the Union's submission that there is no ambiguity in the disputed sub-clauses but not for the reasons given by the Union.

[256]The starting point in the construction of the certified agreement is the ordinary meaning of the words, read as a whole and in context.

[257]In our view, the ordinary meaning of the words '… Where a SMO works in an Emergency Department under a rostering arrangement in accordance with Clause 4.3' (of MOCA 4) or '… Clause 11.4' (of MOCA 5), refer to a situation where the SMO is working all of their rostered hours in the Emergency Department in accordance with such a rostering arrangement.

[258]If those words contained in that part of the disputed sub-clauses should be taken to also mean any work in an Emergency Department, as submitted by the Union, then the parties would have used clear words such as: '… Where a SMO [performs any work] in an Emergency Department under a rostering arrangement in accordance with Clause 4.3' (of MOCA 4) or '… Clause 11.4' (of MOCA 5). The parties did not use such words.

[259]This may be seen to be harsh, particularly, as pointed out by the Union, where an SMO works in other Departments or elsewhere, but works up to 39 ordinary hours per week in an Emergency Department.[312] However, the matter has been fought on the basis of the construction of the disputed sub-clauses. In this respect, the Commission's function is not to '… give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into'[313] MOCA 4 and MOCA 5. As a step on the way to considering whether or not we will make a declaration, the relevant function of the Commission is not to arbitrate what is fair, but to construe the disputed sub-clauses.

[312] T 3-53, l 33 to T 3-54, l 5.

[313] Kucks (n 82), 184.

[260]The context of a provision can also be derived from the words of the instrument surrounding the expression to be construed. We are of the view that by considering the words surrounding the disputed sub-clauses, the context of the disputed sub-clauses supports the construction that, to be eligible for the ED 25 allowance, the SMO has to work all of their rostered hours in an Emergency Department.

[261]The first internal contextual consideration to note, as set out earlier in these reasons, is that all of the allowances for SMOs in the clauses that contain the disputed sub-clauses, come under the heading of 'Attraction and Retention Incentive Allowance.' The disputed sub-clauses are contained within a clause which also provides for a 'General Attraction and Retention Allowance' and a 'Regional and Rural Attraction Allowance.' In this respect, it seems clear that the context or purpose of the ED 25 allowance is to attract and retain SMOs who work in Emergency Departments. This consideration is against a conclusion that an entitlement to the ED 25 allowance arises where an SMO works some, but not all, of their rostered hours in the Emergency Department.

[262]The second internal contextual consideration to note is that the disputed sub-clauses refer to the circumstance where an SMO works in an Emergency Department under the rostering arrangements where the parties can agree to an extended span of ordinary hours to meet clinical need. Clause 4.3 of MOCA 4 and cl 11.4 of MOCA 5, provide for agreement to be reached between the SMO and the Department, for rosters to be worked outside the span of ordinary hours, to meet the clinical need of the patients.

[263]The Union's argument about this part of the disputed sub-clauses, when read with the remaining part of the disputed sub-clauses is, as we understand it, as follows:

·by the Department entering in to such an agreement for such a rostering arrangement (including the SMO working evening shifts Monday to Friday and shifts anytime on weekends to meet a clinical need, and it knowing the financial burden imposed on it by the ED 25 allowance for an SMO working during those hours) it is not likely the Department would have made such an agreement unless the SMO was working all or '… the vast majority'[314] of their rostered hours in the Emergency Department; and

[314] T 3-36, ll 21-41.

·considered in that context, the ED 25 allowance is an entitlement to an SMO who does not work all of their rostered hours in the Emergency Department.

[264]We cannot accept this submission. There are two reasons for this.

1. First, when read together, cls 4.2 and 4.3 of MOCA 4 and cls 11.3 and 11.4 of MOCA 5 concern the agreements about when the ordinary hours of an SMO will be worked. Further, those clauses in each certified agreement, when read together, do not concern agreements about the ordinary rostered hours of an SMO being worked across different rosters in different Departments or work locations. In this regard, sub-cl 4.2.1 of MOCA 4 and sub-cl 11.3.6 of MOCA 5 provide that the ordinary hours of work '… may be performed on one of the following bases, most suitable to the particular work location, after consultation with, and giving reasonable consideration to, the circumstances of the employee concerned.' The agreements reached under cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5 are about shifts rostered outside the ordinary hours as prescribed in cl 4.2 of MOCA 4 and cl 11.3 of MOCA 5.

[266]Secondly, there is an artificiality to this submission in that, what is being pressed is not the derivation of the context of the sub-clauses from the words of MOCA 4 and MOCA 5 read as a whole or from the provisions surrounding the disputed sub-clauses, but from a presumed intention of the Department.

[267]In our view, for the reason given in paragraph [265], the context disclosed by the combined effect of cls 4.3 and 4.14.3 of MOCA 4 and cls 11.4 and 11.24.3 of MOCA 5 is that extended span of hours agreements, to meet clinical need, concerns all of an SMO's rostered hours in the one work location, namely, and relevantly to the present circumstances, an Emergency Department.

The '… medical officer's rostered hours include working evening shifts Monday to Friday, and/or shifts anytime on the weekend'

[268]The parties had no issue with this element.

The construction contended for by the Department is correct

[269]Having regard to the textual construction of the disputed sub-clauses and their context taken from reading the certified agreements as a whole and from the surrounding provisions, our opinion is that the construction of the disputed sub-clauses is that for an SMO to be eligible to receive the ED 25 allowance, they must work all of their rostered hours in an Emergency Department.

The construction of the disputed sub-clauses

[270]For the reasons we have given, the context and the text of sub-cl 4.14.3 of MOCA 4 and of sub-cl 11.24.3.1 of MOCA 5 is that those sub-clauses mean that to be eligible for the ED 25 allowance:

·the SMO had and has to work all of their rostered hours in the Emergency Department under a rostering arrangement in accordance with cl 4.3 of MOCA 4 and cl 11.4 of MOCA 5 respectively; and

·the SMOs rostered hours include working evening shifts Monday to Friday, and, or in the alternative, shifts anytime on the weekend.

Should the Commission make a declaration?

[271]In light of our conclusion about the construction of sub-cl 4.14.3 of MOCA 4 and sub‑cl 11.24.3.1 of MOCA 5, the question remains whether the Commission should, in the circumstances, exercise the discretion to make a declaration.

The Department's submissions

[272]The Department submitted that having regard to the decision in Shipley (and the industrial dispute notified by the Union the subject of Matter No. D/2019/114), the vehicle of declaratory relief was chosen to avoid the need for a large number of claims for the ED 25 allowance.[315]

[315] T 3-72, l 38 to T 3-73, l 41.

The Union's submissions

[273]The Union submitted[316] that the relevant principles, concerning the exercise of discretion to grant a declaration, were:

[316] T 3-52, l 9 to T 3-53, l 31.

·the power to make a declaration should not be exercised lightly because once a declaration is made it binds not just the parties but all the employees;[317] and

[317] Citing Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202 ('QNMU'), [47] (Martin J, President).

·in reliance on the decision of Applegarth J in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors ('Australian Institute for Progress'):[318]

[318] [2020] QSC 54; (2020) 4 QR 31 ('Australian Institute for Progress').

-        declaratory relief is directed towards resolving a dispute or quelling a controversy based on a concrete and established or agreed situation;

-        the onus is on an applicant to establish the ambit of the rights to be declared and prove all facts necessary; and

-        the precise terms of the declaration assume particular significance and that the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought.

[274]In light of those principles, the Union submitted that while there was a genuine dispute between it and the Department over which SMOs are and are not entitled to the ED 25 allowance, the declaration as sought by the Department should not be granted because:

·a term of the declaration, as sought by the Department, is too strict, namely, that the SMO must work all of their rostered hours in the Emergency Department to be entitled to the ED 25 allowance, because it does not take into account circumstances where the SMO, for a short period of time, works outside the Emergency Department or is called away to work at another location because of a public health emergency;[319]

[319] T 3-53, l 33 to T 3-54, l 47.

·on the Department's case, it was picking up the provisions in the Option E contracts and putting them into MOCA 4:

-        where the parties to the contracts and the parties to the certified agreements were different; and

-        in circumstances where there is no evidence about the identity of the SMOs who would be affected by the declaration and the resultant effects on their rights;[320] and

[320] T 3-55, l 37 to T 3-56, l 4.

·on the evidence, the Department offered Option E contracts to SMOs who never worked all of their hours in an Emergency Department and, therefore, a declaration should not be made on the basis that it was the Department's subjective intention that those contracts only ever be offered to SMOs who worked all of their hours in an emergency Department.[321]

[321] T 3-56, ll 24-32.

A declaration should be made

[275]The Commission has discretion, on application, to make a declaration about an industrial matter.[322] The primary matter in dispute between the parties, namely, the construction of sub-cl 4.14.3 of MOCA 4 and of sub-cl 11.24.3.1 of MOCA 5 and the circumstances of when an SMO is entitled to the ED 25 allowance under those provisions is, undeniably, an industrial matter.

[322] Industrial Relations Act 2016 s 463(1).

[276]There is no reason, in principle, why the Commission should approach the exercise of its discretion to make a declaration about an industrial matter in a way that is different to that of a court which has discretionary power to grant declaratory relief.[323]

[323] Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2021] QIRC 157, [14] (Deputy President Merrell).

[277]A summary of the applicable principles in respect of the discretionary power to grant declaratory relief was given by Applegarth J in Australian Institute for Progress,[324] namely:

[324] Australian Institute for Progress (n 318).

·the discretionary power to grant declaratory relief is wide;

·a judicial determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy and involves the application of the relevant law to facts as found in the proceeding;

·declaratory relief must not be directed to answering abstract or hypothetical questions; and

·answers given to a question which leaves the facts unstated or does not identify them with any precision will not finally resolve a dispute or quell a controversy as the answers given may be of no use at all to the parties and may even mislead them as to their rights.[325]

[325] Ibid, [34]-[36].

[278]The onus is on an applicant to establish the ambit of the rights to be declared and prove all the facts necessary to enable the declaration to be made.[326]

[326] Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 ('Blanch'), [6] (Young CJ).

[279]A declaration made by the Commission, of the kind sought by the Department, will affect SMOs who do any work in an Emergency Department. It is also the case that there is no evidence about the identity of the SMOs who would be so affected by the declaration and the effect of it on them. However, that is not a persuasive reason not to make the declaration.

[280]On 16 September 2019, the Union notified the Commission of an industrial dispute about its claim that the decision in Shipley should be applied to, at least, the Proserpine Hospital. The Department opposes the extension of the outcome of Shipley to any other workplaces on the basis that Shipley was not correctly decided. In addition, on the evidence before us, there is a genuine industrial dispute between the Department and the Union about the construction of the disputed sub-clauses and the circumstances which must exist for an SMO to be eligible to receive the ED 25 allowance.

[281]The power conferred on the Commission is to make a declaration about an '… industrial matter.' Schedule 1 to the Act defines 'industrial matter' to relevantly include the interpretation of an industrial instrument unless the Act otherwise provides. The construction of the disputed sub-clauses was at the centre of the Department's application for declaratory relief. While a declaration, once made, binds not just the parties but all the employees,[327] the purpose of the Commission making a declaration is to resolve genuine disputes about an industrial matter. It may well be that in making a declaration of the kind sought by the Department, there will be a number of SMOs (now and in the future, at least while MOCA 5 is on foot) affected by it.[328] However, that is not a sound reason to decline the making of a declaration which will resolve the genuine dispute between the parties.

[327] QNMU (n 317), [47] (Martin J, President).

[328] Any declaration made by the Commission, of course, excludes the SMOs who were successful in Shipley (n 244). This is a consequence of the undertaking made by the Department about those SMOs: see paragraphs 11‑12 of the Department's submissions filed on 20 December 2019 and T 1-87, l 15 to T 1-88, l 12 (10 September 2020).

[282]The Department submitted that the reason it seeks a declaration to resolve the dispute is to avoid a multiplicity of proceedings.[329] Having regard to the Union's notification of an industrial dispute about the Proserpine Hospital, we think that further disputes about the ED 25 allowance may well be likely. Making a declaration has merit for those reasons.

[329] T 3-73, ll 33-40.

[283]Otherwise, we do not accept the Union's submissions. We are of the view the Department has discharged the onus on it. The Department has proven that its construction of the disputed sub-clauses, referred to in paragraph [79], is correct. To be entitled to the ED 25 allowance, an SMO had and has to work all of their rostered hours in the Emergency Department.

[284]In addition, the Union's submission that the Department offered Option E contracts to SMOs who never worked all of their hours in an Emergency Department, is, on the evidence and conclusions we have referred to above, wrong.

[285]In our view:

·there is a genuine dispute between the Department and the Union over the construction of sub‑cl 4.14.3 of MOCA 4 and of sub-cl 11.24.3.1 of MOCA 5; and

·the making of a declaration by the Commission will resolve the disputation between the parties about which SMOs are entitled to the ED 25 allowance in MOCA 4 and MOCA 5.

Should the declaration be made in the form sought by the Department in its application?

[286]A party seeking a declaration must formulate it specifically and a declaration must be clear and self-contained so that it is readily intelligible by the parties and third parties.[330]

[330] Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87, [29] (Young JA, Beazley JA at [1] and Basten JA at [2] agreeing.

The Department's submissions

[287]In relation to the form of the declaration it seeks, the Department submitted that by seeking a declaration that the person '… must be engaged' to work in an Emergency Department under an extended hours roster within the meaning of cl 11.4 of MOCA 5 (and cl 4.3 of MOCA 4), that:

·disposes of the arguments that an SMO only working two hours a week in an emergency department qualifies for a 25% increase of base salary; and

·means that an SMO who is not physically in an Emergency Department all the time, such as when performing administrative or non-clinical duties, but is engaged in the Emergency Department, qualifies for the ED 25 allowance.[331]

[331] T 3-63, l 14 to T 3-64, l 17.

[288]The Department submitted that, by virtue of s 451(2)(b) of the Act,[332] if the Commission considered that words for the declaration, other than those as sought in its application more accurately describe the Commission's interpretation, then the Commission could make the order it thought appropriate. However, in making that submission, the Department did not resile from the relief that it sought in its application.[333]

[332] Which provides that the Commission may make a decision it considers appropriate, irrespective of the relief sought by a party.

[333] T 3-3, ll 10-16.

The Union's submissions

[289]The Union submitted that the form of the declaration as sought by the Department should not be made because:

·it is uncertain in that it does not account for a circumstance where a hospital and Service may temporarily transfer an SMO from an emergency department to another Department or location to meet an immediate crisis such as a pandemic, a natural disaster or difficulties in other locations, such that on the Department's formula, an SMO who even worked between one and 39 hours in an Emergency Department, in such a circumstance, would not be entitled to the ED 25 allowance;[334] and

[334] T 3-53, l 33 to T 3-54, l 5.

·there is no evidence before the Commission to demonstrate the current work patterns of SMOs performing work in the Emergency Departments of the Department or of those who are currently in receipt of the ED 25 allowance.[335]

[335] T 3-54, ll 7-13.

[290]We do not accept these submissions. The fact that a hospital or health service may temporarily transfer an SMO from an Emergency Department to another Department or location to meet an immediate crisis, such as a natural disaster, could reasonably be considered an atypical circumstance. The case that has been fought out between the parties was not on the basis of such atypical circumstances, but on the basis of ordinary circumstances. The case for the Union was that, on the construction of the disputed sub‑clauses, an SMO who is ordinarily rostered to work part of their rostered hours in an emergency department is entitled to the ED 25 allowance. The fact that there may be emergent situations in respect of which an SMO may be temporarily transferred from an Emergency Department is not a reason not to make the declaration in the form sought by the Department.

[291]In addition, the fact that there is no evidence before the Commission to demonstrate the current work patterns of SMOs performing work in the Emergency Departments is, in our view, irrelevant. The central question in the industrial matter before us was the construction of the disputed sub-clauses. Subject to one qualification, the current work patterns of SMOs performing work in the Emergency Departments are irrelevant to that question.

[292]The qualification is that there is some evidence that, due to local arrangements, some SMOs have been in receipt of the ED 25 allowance in circumstances where they were not performing all of their ordinary hours in an Emergency Department. However, there is no evidence that such local arrangements were as a result of a common understanding between the Department and the Union. As such, that evidence is irrelevant to the construction of the disputed sub-clauses.[336]

[336] Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377, [61] (Wheelahan J).

[293]Furthermore, the declaration sought by the Department is based upon, in our view, the correct construction of the disputed sub-clauses. Having confirmed that construction, the form of the declaration should be to ensure the resolution of the genuine industrial dispute between the parties.

[294]In respect of the second limb of the declaration it seeks, the Department submitted that:

·the use of the word 'engaged' means that if an SMO has to spend some time doing education, or some non-clinical work or training, the SMO is still subject to the provision '… because they're engaged to work' which means it does not matter if the SMO is '… not physically in the door at any particular time'; and

·the use of the phrase '… must be engaged to work' was deliberate in respect of arguments that a person who steps outside to perform their Emergency Department duties, in the sense of their non-clinical, administrative type duties, is still covered '… because they're still engaged to do work in the department even when they're not there.'[337]

[337] T 3-63, l 27 to T 3-64, l 11.

[295]These issues were agitated in the hearing as set out in paragraphs [191]-[196] of these reasons. For the reasons we have given, on the construction of the disputed sub-clauses, the performance by an SMO of administrative, teaching or research duties connected with the Emergency Department would not disentitle the SMO to the allowance if they otherwise performed all of their rostered hours in the Emergency Department and where the other conditions of the disputed sub-clauses were met.

[296]As a consequence, and to ensure that any declaration made by us finally resolves the dispute or quells the controversy between the parties, we are of the view that the form of the second limb of the declaration sought by the Department will achieve that objective.

[297]As to the third limb of the declaration sought, that accords with the construction of the disputed sub-clauses.

[298]For these reasons, it is appropriate to make the declaration in the form sought by the Department.

[299]However, despite the undertaking given by the Department, so as to avoid any doubt, the declaration should make plain that it does not apply to the SMOs who were successful in Shipley and who were the subject of the declarations made by Vice‑President O'Connor in that case.

Conclusion

[300]The onus was on the Department to prove that its construction of the disputed sub-clauses was correct and that, if it was, that a declaration should be made and that it should be made in the form the Department seeks.

[301]For the reasons given:

·the construction of the disputed sub-clauses, as contended by the Department, is correct;

·this is a case where the Commission should make a declaration to resolve the controversy between the Department and the Union; and

·the declaration should be made in the form sought by the Department, subject to the clarification about the declarations made in Shipley.

Orders

[302]The Commission makes the following orders:

1. Pursuant to s 463(1) of the Industrial Relations Act 2016, the Commission declares that sub-cl 11.24.3 of the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 and sub-cl 4.14.3 of the Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015 apply only to persons who meet the following eligibility requirements:

(a)the person must be employed as a Senior Medical Officer;

(b)the person must be engaged to work in an Emergency Department under an extended hours roster within the meaning of clause 11.4 of the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 and clause 4.3 of the Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015; and

(c)the person must work all of their rostered hours under the extended hours roster in that Emergency Department.

2.       The declaration made in paragraph 1 of these orders applies to the exclusion of the declarations made by Vice President O'Connor in Case No. D/2018/6 by order dated 28 June 2019.