AMA (Victoria) Ltd T/A AMA; Australian Salaried Medical Officers Federation v The Royal Women’s Hospital and Others [2021] FWC 4696

[2021] FWC 4696 The attached document replaces the document previously issued with the above code on 2 August 2021. The wording and numbering of paragraph 31 and 41 is amended as follows: [31] In my opinion, the answer to the Question is “(b)”. Fractional doctor ‘A’ is only entitled to take long service under clause 55 of the Agreement from Employer ‘X’. [40] Accordingly, in my opinion the answer to the Question is “(b)”. Fractional doctor ‘A’ is only entitled to take long service under clause 55 of the Agreement from Employer ‘X’. Associate to Deputy President Young 4 August 2021 -- 1 of 20 -- 1 Fair Work Act 2009 s.739—Dispute resolution AMA (Victoria) Ltd T/A AMA; Australian Salaried Medical Officers Federation v The Royal Women’s Hospital and Others (C2019/4760) DEPUTY PRESIDENT YOUNG MELBOURNE, 2 AUGUST 2021 Dispute arising under an enterprise agreement. [1] This decision concerns an application made by AMA (Victoria) Ltd T/A AMA (AMA) and Australian Salaried Medical Officers Federation (ASMOF) under section 739 of the Fair Work Act 2009 (Act) to deal with a dispute in accordance with the dispute settling procedure in clause 11 of the AMA Victoria – Victoria Public Health Sector – Medical Specialists Enterprise Agreement 2018 – 20211(Agreement). Initial matters [2] On 2 August 2019 the Applicants filed an application under section 739 of the Act. On 28 August 2019, the Applicants filed a revised application under section 739 of the Act (Compendium Dispute). The Compendium Dispute concerns eight discrete matters and names 37 separate health services (individually, Employer, collectively, Employers), including the First Respondent, The Royal Women’s Hospital. Whilst this may be administratively convenient for the Applicants it raises certain jurisdictional questions, specifically, whether the Applicants are in dispute with each of the Employers in respect of each matter in the Compendium Dispute and further, whether the dispute resolution process contained in clause 11 of the Agreement has been complied with in respect of each of the Employers in respect of each matter said to be in dispute. This was the subject of a number of conferences and mentions before me. [3] This decision is in respect of Item 1 of the Compendium Dispute. Item 1 concerns the Long Service Leave entitlements of a fractional doctor, Dr AS, who is employed by the First Respondent and who is also concurrently employed by Alfred Health. It is not contested, and I am satisfied that the matter in dispute is a matter that arises under the Agreement. Further, in relation to Item 1, it is not contested, and I am satisfied, that the dispute settlement procedure at clause 11 of the Agreement has been complied with in respect of the First Respondent. For 1 AE429332 [2021] FWC 4696 [Note: An appeal pursuant to s.604 (C2021/4894) was lodged against this decision - refer to Full Bench decision dated 10 November 2021 [[2021] FWCFB 6044].] DECISION -- 2 of 20 -- [2021] FWC 4696 2 the avoidance of doubt, this decision is therefore binding on the First Respondent only in relation to Item 1 and is not binding in respect of other Respondents. [4] In a telephone conference on 25 February 2021 with the parties in relation to the matters raised in paragraph [2] above, it was agreed that the question to be determined in resolution of Item 1 is as follows (Question): Fractional Doctor ‘A’ has been employed continuously as a Specialist by Employer ‘X’ for twelve years and remains in the employment of Employer ‘X’. Five years ago, Fractional Doctor ‘A’ commenced employment as a Specialist with Employer ‘Y’ and remains in the employment of Employer ‘Y’. Fractional Doctor ‘A’ has had contemporaneous, ongoing employment as a Specialist with both Employer ‘X’ and Employer ‘Y’ since their commencement with Employer ‘Y’. In respect of Fractional Doctor ‘A’ in the scenario above (or a Fractional Doctor in an equivalent scenario), does Fractional Doctor ‘A’ have an entitlement to access a long service leave benefit described in clause 55.1 of the Agreement from: a) both Employer ‘X’ and Employer ‘Y’; or, b) only Employer ‘X’. Department of Health [5] On 3 March 2021 the Department of Health (State of Victoria) (Department) made a formal application pursuant to section 590(1) of the Act be heard in relation to the Question and filed submissions in support of that application. [6] Having regard to the Question, the role of the Department as the funder and manager of the Victorian public health sector, the Department’s knowledge of the Victorian public health sector and the submissions filed, I was satisfied that I would be assisted and informed by hearing from the Department in relation to the Question. [7] Accordingly, On 9 April 2021 I granted the Department’s application to be heard in relation to the Question pursuant to section 590(1) of the Act. Directions [8] On 25 February 2021 I issued directions requiring the Applicants to file and serve submissions, witness statements and other documentary material upon which they intend to rely in support of their answer to the Question by 9 April 2021. Submissions were filed in the Commission on 8 April 2021. [9] The directions required the First Respondent and the Department to file and serve submissions, witness statements and other documentary material upon which they each intend to rely in support of their respective answers to the Question by 21 May 2021. Submissions were filed in the Commission by the First Respondent and the Department on 21 May 2021. -- 3 of 20 -- [2021] FWC 4696 3 [10] The directions required the Applicants to file and serve any reply material by 4 June 2021. On 3 June 2021 the Applicant requested an extension of time to file and serve reply submissions. The Commission issued amended directions granting the Applicants until 7 June 2021 to file reply submissions. Reply submissions were filed in the Commission on 7 June 2021. [11] No witness evidence was filed by any party. [12] On 11 June 2021 I sought the views of the parties as to whether they wished to be heard or were content for the matter to be determined on the papers. In the absence of any party seeking to be heard, I have determined to deal with Issue 1 on the papers without the need for a hearing. Background [13] The First Respondent is a public health service established under the Health Service Act 1988 (Vic). The First Respondent is covered by the Agreement. The Agreement is a single- enterprise agreement as defined in section 172(2) of the Act. The Agreement covers each of the Employers and medical practitioners employed by an Employer as a Specialist or Executive Specialist on a full-time or fractional basis.2 A fractional doctor is one employed by a health service to work 35 hours per week of less.3 [14] The Applicants contend that the answer to the Question is (a), fractional doctor ‘A’ has a long service leave entitlement from both Employer ‘X’ and Employer ‘Y’. The First Respondent and the Department contend that the answer to the Question is (b), fractional doctor ‘A’ has a long service leave entitlement from Employer ‘X’ only. Relevant Agreement Provisions [15] I set out below, the most presently relevant provisions of the Agreement. Clause 11 – Dispute Resolution [16] As set out above, the dispute resolution clause is set out in clause 11 of the Agreement. Clause 11.7 is headed “Arbitration” and at clause 11.7(a) provides as follows: “11.7 Arbitration (a) If, when conciliation is complete, the dispute is not settled, either party may request the FWC proceed to determine the dispute by arbitration.” [17] The full text of clause 11 is set out in Annexure A to this decision. Clause 55 – Long Service Leave 2 AMA Victoria – Victoria Public Health Sector – Medical Specialists Enterprise Agreement 2018 – 2021 AE429332 (Agreement) clause 3.1(i), (k), (y), (o), 4 3 Ibid clause 3.1, 16.3 -- 4 of 20 -- [2021] FWC 4696 4 [18] Long service leave is dealt with in clause 55 of the Agreement. The entitlement to long service leave is set out in clause 55.1 and provides as follows: “55.1 Entitlements (a) A Doctor is entitled to Long Service Leave with pay for Continuous Service with Institutions and Statutory Bodies, in accordance with the provisions of this clause as follows: (i) Six (calendar) months of long service leave after 15 years of Continuous Service then two months of long service leave after each additional five years of Continuous Service. (ii) A Doctor may take pro rata long service leave after 10 years of Continuous Service where the Health Service agrees. The Health Service will not unreasonably withhold agreement.”4 [19] Clause 55.6 deals with service to be counted for the purposes of Continuous Service and, relevantly, provides as follows: “55.6 Counted as Service: In calculating Continuous Service, the following is counted as part of the period of service: (a) Service for which long service leave or payment in lieu has not been received in one or more Institutions including Statutory Bodies directly associated with such Institutions for the period required by clause 55.1(a) of this Agreement;…” [20] Clause 55.8 sets out an inclusive statement of Continuous Service as follows: “55.8 Continuous Service includes entitlements pursuant to previous Victorian Industrial Awards or Agreements (a) Continuous Service includes continuous service with Institutions and Statutory Bodies within the meaning of any industrial instrument in operation in Victoria that covered the Doctor prior to the date upon which this Agreement covers the Doctor, subject to the allowable period of absence at subclause 55.9. This includes service recognised by an industrial instrument where the Doctor was employed as part of an accredited Specialist training program by an employer not covered by that agreement. (See subclause 68.7(f) of the AMA Victoria – Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021, where relevant.) The requirements of subclause 55.13 apply.” [21] Clause 55.13 is headed “Doctor Responsible for Proof of Service” and provides as follows: 4 See AMA Victoria – Victoria Public Health Sector – Medical Specialists Enterprise Agreement 2018 – 2021 AE429332 clause 3.1(s) and (bb) for the definition of Institution and Statutory Body respectively -- 5 of 20 -- [2021] FWC 4696 5 “55.13 Doctor Responsible for Proof of Service (a) The Doctor is at all times responsible for proving that he or she has completed sufficient service to access the long service leave entitlement. (b) A certificate in the form set out in Schedule D shall constitute proof, but not the only possible proof.” [22] The full text of clause 55 is set out in Annexure B to this decision. [23] Clause 63 is headed “Service Delivery Partnership Plan” and relevantly provides as follows: “63 Service Delivery Partnership Plan 63.1 The parties are committed to contributing to improve the productivity and efficiency of the Victorian public health by: … (i) Collaboration between the parties over the life of the Agreement to better accommodate long service leave arrangements for Doctors employed by two or more Health Services concurrently; … 63.2 To facilitate the achievement of the above initiatives the parties agree to establish a Service Delivery Partnership Plan Working Group (SDPPWG) within six months of the Agreement being approved by the FWC. The role of the SDPPWG will be to discuss, implement and monitor progress towards achieving the initiatives outlined in this clause.” Threshold question [24] Pursuant to section 739 of the Act, the Commission may deal with disputes arising under an agreement by way of arbitration. It is well established that in so doing, the Commission has only the power given to it by the parties under the relevant dispute resolution term. [25] As set out above, the Agreement’s dispute resolution term is set out in clause 11. Clause 11.7(a) of the Agreement provides that following the completion of conciliation either party may request the Commission to proceed to determine the dispute by arbitration. It is to be noted that the clause speaks of a request to the Commission to determine the dispute by arbitration, rather than a requirement that the Commission do so or a referral to the Commission for arbitration following the conclusion of conciliation. I do not consider that clause 11.7(a) is expressed in mandatory language. Accordingly, I do not consider that clause 11.7(a) requires the Commission to arbitrate the dispute; rather it provides that it may be requested to do so. Notwithstanding that, I consider that in the ordinary course, following such a request, the Commission would proceed to arbitrate the dispute. However, for the following reasons, I do not consider it appropriate that I arbitrate the present dispute and I decline to do so. -- 6 of 20 -- [2021] FWC 4696 6 [26] Clause 63 of the Agreement is set out above and provides, relevantly, that over the life of the Agreement the parties will collaborate to better accommodate long service leave arrangements for doctors employed by two or more health services concurrently. Clause 63.2 establishes a Service Delivery Partnership Plan Working Group (Working Group) for this purpose (amongst others). The First Respondent submits that clause 63 is an express recognition that the very issue raised in Item 1 of the Compendium Dispute was effectively “parked” by the parties and is to be addressed by the Working Group.5 In that context it says that the Commission ought not arbitrate on a matter that the parties have agreed will be dealt with through the Working Group.6 I accept those submissions. Firstly, it does not appear contested that multiple fractional appointments are common within the Victorian public health service.7 Accordingly, the subject matter of the dispute is not novel, nor is it one which has just arisen in the case of Dr AS. Secondly, it is clear that clause 55 does not expressly recognise or refer to concurrent employment of a fractional doctor by two or more Employers. The Applicants concede this.8 Notably, this to be contrasted with the language of clause 63.1(i), which expressly references “concurrent” employment. Thirdly, the Applicants also agree that clause 55 does not expressly consider the impact of concurrent service on the taking of long service leave9 nor does it have the detailed machinery provisions to deal with the issues arising with concurrent employment.10 Fourthly, it is uncontested that “given the way in which long service leave was dealt with in the negotiations for the Agreement there is no common understanding, and never was a common understanding, as to the meaning of clause 55”.11 Accordingly, the Commission is being asked by the Applicants to find that an entitlement exists in relation to long service leave, in circumstances where it is agreed between the parties that at the time the Agreement was made there was no mutual intention to create such an entitlement. In light of those matters, I consider that the parties intended, as submitted by the First Respondent, that matters to do with long service leave and concurrent employment were to be determined and progressed through the Working Group and that no agreed position as to those matters had been reached between the parties. In that sense, I accept the submission that the parties effectively “parked” these issues until a later date. [27] The Applicants submit that clause 63.1 is directed to means to improve productivity and efficiency. It submits that on a plain reading, clause 63.1 is to enable discussion to occur to address the administrative matters which arise in relation to long service leave entitlements for fractional doctors. It says that clause 55 provides the entitlement to long service leave for fractional doctors and that clause 63 does not increase or lessen that entitlement.12 I consider those submissions to be misconceived. I accept that clause 63.1(i) refers to “arrangements” for long service leave. However, in the context of clause 63, and the Agreement as a whole, I do not consider that clause 63 is directed purely to administrative matters which arise in relation to long service leave entitlements and concurrent employment. Firstly, clause 63 deals with a number of matters to be progressed by the Working Group which are not, in my view, directed strictly to means to improve productivity and efficiency. In this regard, I note clause 63.1(j), which deals with review of pay rates, clause 63.1(l), which deals with facilitating flexible 5 First Respondent’s submissions at [25-26] 6 First Respondent’s submissions at [29-30] 7 First Respondent’s submissions at [20]; Applicants’ submissions at [106] 8 Applicants’ submissions at [16] 9 Department submissions at [24]; Applicants’ reply submissions at p.6 10 First Respondent’s submissions at [23]; Applicants’ reply submissions at p.6 11 Applicants’ submissions at [103]; First Respondent’s submissions at [28] 12 Applicants’ reply submissions at p.6 -- 7 of 20 -- [2021] FWC 4696 7 working arrangements, and clause 63.1(m), which deals with continued support for private practice arrangements. As such, I consider a more expansive reading of clause 63.1 applies than that contended for by the Applicants. Secondly, at issue is precisely what the entitlement of fractional doctors to long service leave under clause 55 is, in circumstances where the employee is employed by more than one health service concurrently and whether or not those periods of employment are separate and distinct from one another. The Applicant concedes that clause 55 does not expressly consider the impact of concurrent service on the taking of long service leave. The Applicant also concedes that clause 55 does not contain detailed machinery provisions to deal with issues arising with concurrent employment. Thirdly, on the basis of the Applicants own submission there was never any agreement between the parties as to the meaning of clause 55 and, additionally, “the same issues were present in the 2013 Agreement and were unresolved during the life of the 2013 Agreement.”13 Accordingly, I consider that the provisions of clause 63 do the work contended for by the First Respondent. [28] Accordingly, I consider that clause 63 is recognition that the very issue raised in Item 1 of the Compendium Dispute was effectively “parked” by the parties during negotiations and is to be addressed by the Working Group. In those circumstances, when not required to do so I do not consider that the Commission ought arbitrate on a matter that the parties have not reached a common understanding in respect of and which they have agreed will be dealt with through the Working Group [29] In light of my conclusion above, it is not necessary that I consider the First Respondent’s submission that the dispute constitutes an extra claim in breach of clause 8 of the Agreement14 or its submission as to other available mechanisms.15 Opinion [30] Although I have declined to arbitrate Item 1 of the Compendium Dispute, should it assist the parties, I set out below my opinion as to the matter in dispute.16 Further, should I be wrong and I am required to arbitrate the dispute pursuant to clause 11 of the Agreement, I would have determined the matter in accordance with my opinion below. [31] In my opinion, the answer to the Question is “(b)”. Fractional doctor ‘A’ is only entitled to take long service under clause 55 of the Agreement from Employer ‘X’. Legal principles [32] The principles applicable to the interpretation of enterprise agreements are well settled. These principles, known as the Berri Principles, were established in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited17 (Berri). The Berri Principles are 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 13 Applicants’ reply submissions at p.6 14 First Respondent’s submissions at [31-34] 15 First Respondent’s submissions at [35-38] 16 See Fair Work Act 2009 s 595(2) 17 [2017] FWCFB 3005 (Berri) -- 8 of 20 -- [2021] FWC 4696 8 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. 2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. 3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations. 5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement. 6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement. 7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. -- 9 of 20 -- [2021] FWC 4696 9 10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide (sic) the interpretation of the agreement. 11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. 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. 12. Evidence of objective background 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. 13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 14. 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. 15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” Consideration Applicants’ submissions [33] The Applicants submit, in summary, that: -- 10 of 20 -- [2021] FWC 4696 10 (a) the language of clause 55.1 is both simple and clear and does not give rise to any ambiguity. The plain meaning of clause 55 “clearly” supports the contention that Doctor ‘A’ has an entitlement to take long service leave from both Employer ‘X’ and Employer ‘Y’ at the same time;18 (b) the continuous service of a doctor is not limited to service with a single health service;19 (c) for the purposes of clause 55 there is no requirement for service with one Employer to be terminated before it can be considered as part of continuous service with a current Employer;20 (d) other enterprise agreements with the same Employers contain express provisions which deal with concurrent employment and long service leave and provide that service with each Employer is separate and distinct. The absence of such provisions in the Agreement supports the Applicants’ construction of clause 55;21 (e) the Agreement is a single-enterprise agreement made pursuant to a single interest employer authorisation and it is therefore consistent that service with any Employer within the single enterprise is to be counted as part of continuous service with any other Employer in the single enterprise;22 (f) it is consistent with the purpose of long service leave for Doctor ‘A’ to be able to take to service leave concurrently from both Employer ‘X’ and Employer ‘Y’.23 What is the ordinary meaning of clause 55? [34] I accept the submission, which is uncontested, that clause 55 is clear and unambiguous. However, for the following reasons I do not consider that the ordinary meaning of clause 55 gives rise to the construction advanced by the Applicants. Firstly, it is clear that clause 55 does not at any point expressly recognise or refer to concurrent employment of a doctor by two or more Employers. Secondly, it is also clear that clause 55 does not expressly deal with the taking of long service leave in concurrent employment nor does it have machinery provisions to deal with the issues arising with concurrent employment. Had it been intended that a doctor was entitled to long service leave concurrently from two or more Employers and that service with each Employer was not separate and distinct, I consider this would have been expressly provided for in clause 55. It is not. Further, I consider this conclusion is supported by the inclusion of the reference to concurrent employment in clause 63.1(i) of the Agreement. Thirdly, the entitlement to long service leave is set out in clause 55.1. Clause 55.1 provides that the entitlement to long service is in respect of “Continuous Service with Institutions and Statutory Bodies”.24 Continuous Service is dealt with in clause 55.8 but does not provide a comprehensive definition of that term. Rather, clause 55.8 is limited to providing that Continuous Service is inclusive of service under which prior instruments applied. Notwithstanding that, I consider it uncontentious that continuous service is not synonymous with concurrent service. The terms are not interchangeable and do not mean the same thing. 18 Applicants’ submissions at [13], [19], [100-102] 19 Applicants’ submissions at [13], [16], [22-23] 20 Applicants’ submissions at [13], [76-81] 21 Applicants’ submissions at [13], [26-35] 22 Applicants’ submissions at [13], [36-44] 23 Applicants’ submissions at [13], [45-56] 24 Agreement clause 55.1(a) -- 11 of 20 -- [2021] FWC 4696 11 Fourthly, subject to any applicable definition, continuous service is an established concept in industrial law, with a well-established ordinary meaning. I find nothing in the language of clause 55 to suggest that it ought not be given its ordinary meaning. Fifthly, clause 55.1(a)(ii) provides that a doctor may take pro rata long service leave after 10 years service “where the Health Service agrees”. Accordingly, the entitlement to long service leave is expressed in respect of a single Employer and is not referrable to concurrent employment with more than one Employer. Further, I consider the phrase’s position in clause 55.1, which sets out an employee’s entitlement to long service leave, to be of relevance. Sixthly, I also consider it clear that clause 55.6(a) provides for service with other Employers to be included in the calculation of continuous service for the purposes of clause 55. Indeed, I consider this to be axiomatic in the concept of continuous service. However, in calculating continuous service for the purposes of clause 55, clause 55.6(a) refers to “service for which long service leave or payment in lieu has not been received in one or more Institutions.” I consider the use of the past tense indicates that the relevant service is past service, and not ongoing concurrent service. Seventhly, clause 55.10 provides machinery for dealing with continuous service for transferring employees. This is to be contrasted with the absence of such machinery provisions dealing with concurrent employment. Eighthly, whilst accepting that the certificate provided in Schedule D25 is not the only form of proof of service, I consider its form is consistent with, and lends support for, a construction that service with each Employer is separate and distinct. Finally, it is to be noted that concurrent employment is expressly referenced in clause 63.1(i) (referred to above) in the context of long service leave but is not so in clause 55. [35] Accordingly, I consider on a plain reading clause 55 provides for an entitlement to long service leave specific to service with each Employer and that periods of concurrent employment are to be treated as separate and distinct periods of service. Other matters [36] As to the contention that for the purposes of clause 55 there is no requirement for service with one Employer to be terminated before it can be considered as part of continuous service with a current Employer, I disagree. Clause 55.10 expressly sets out the circumstances in which service with one Employer is transferred and recognised by another Employer. I consider it clear that that provision is specific to termination of employment. [37] I also reject the contention that because the Agreement is a single-enterprise agreement made pursuant to a single interest employer authorisation that service with one Employer is to be counted as part of continuous service with any other Employer in the single enterprise. The Applicants’ appear to suggest that by virtue of the Agreement being a single-enterprise agreement the employees covered by the Agreement and to whom it applies are employed by the public health service as a whole, rather than by the individual Employers listed in Schedule A to the Agreement.26 I find no foundation for this contention. Section 247(1) of the Act provides that “two or more employers” may apply to the Minister for a single interest employer declaration. Section 247(3) provides that if an application is made under section 247(1), the Minister may declare that the “relevant employers” may bargain together for an agreement. Section 249(3) provides that the requirements of that subsection are met if the Commission is satisfied that “all of the employers” are specified in the Minister’s declaration. Further, section 249(4)(b) provides that the single interest employer authorisation ceases to operate on the day 25 See Agreement clause 55.13 26 From F10 at [2] -- 12 of 20 -- [2021] FWC 4696 12 on which the enterprise agreement to which it relates is made (or 12 months after the day on which the authorisation is made, unless extended), whichever occurs first. Accordingly, the effect of a single interest employer authorisation being made is to allow two or more individual employers to bargain together. It does not have the effect of treating the individual employers subject to the authorisation as a single employer for other purposes nor does it, in any way, alter the parties to the employment relationship. [38] The Applicant submits that other Victorian public health sector agreements with the same employers (Other Agreements) contain express provisions which deal with concurrent employment and long service leave and provide that service with each employer is separate and distinct. They submit that the absence of such provisions in the Agreement supports the Applicants’ construction of clause 55. I reject that submission. Firstly, properly considered, I do not consider this to be a “contextual matter.”27 Rather, I consider it to be reliance by the Applicants’ upon extrinsic material. Secondly, whilst under the Berri Principles admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement, 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. In the present circumstances, the Agreement does not contain the same provisions as the Other Agreements and is silent as to any reference to concurrent employment in clause 55. In my view to conclude, therefore, based on the absence of such provisions, that concurrent employment is not separate and distinct employment until an employee terminates employment, is to disregard the plain language of the provision and to seek to rewrite it. [39] Finally, the Applicants’ submit that it is consistent with the purpose of long service leave for Doctor ‘A’ to be able to take long service leave concurrently from both Employer ‘X’ and Employer ‘Y’. In this context, the Applicants’ seek to rely upon the principles applicable to the concept of “beneficial legislation.”28 Whilst I accept that the Berri Principles provide that modes of textual analysis developed in the general law may assist in the interpretation of an enterprise agreement, I consider reliance upon the principle of beneficial legislation in the present circumstances to be misconceived. Further, whilst I accept the submission that the purpose of long service leave is to provide an employee with an extended period of leave after long service,29 I find nothing inconsistent with that purpose with an interpretation of clause 55 which requires a fractional doctor to have completed the requisite period of “long service” with the Employer from whom that entitlement is sought to be accessed. The concept of long service leave is generally confined to service with a single employer, including a successor employer.30 I also reject the submission that this conclusion “undermines the overall purpose of long service leave.”31 I accept that there is some complexity in accessing long service leave in circumstances of concurrent employment, however I reject the submission that this would require a fractional doctor to remain working with one Employer during a period that the doctor was taking paid long service leave with another Employer. There are clearly other alternatives and I find nothing in the Agreement which would preclude a fractional doctor from accessing another form of leave (such as annual leave) from another Employer for all or part of the period of their long service leave. 27 Applicants’ submissions at [26] 28 Applicants’ submissions at [46-51] 29 Applicants’ submissions at [50] 30 See for example Long Service Leave Act 2018 (Vic) ss 6, 11 31 Applicants’ submissions at [56] -- 13 of 20 -- [2021] FWC 4696 13 [40] Accordingly, in my opinion the answer to the Question is “(b)”. Fractional doctor ‘A’ is only entitled to take long service under clause 55 of the Agreement from Employer ‘X’. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR732396> -- 14 of 20 -- [2021] FWC 4696 14 Annexure A 11 Dispute Resolution 11.1 Resolution of disputes and grievances (a) For the purpose of this clause 11, a dispute includes a grievance. (b) This dispute resolution procedure will apply to any dispute arising in relation to: (i) this Agreement; (ii) the NES; (iii)a request for flexible working arrangements; (iv) a request for an additional 12 months parental leave; or (v) matters purported to be saved due to the operation of the Savings provision. (c) A party to the dispute may choose to be represented at any stage by a representative including the Association or employer organisation. A representative, including the Association or employer organisation on behalf of a Health Service, may initiate a dispute. -- 15 of 20 -- [2021] FWC 4696 15 Annexure B 55 Long Service Leave 55.1 Entitlement (a) A Doctor is entitled to Long Service Leave with pay for Continuous Service with Institutions and Statutory Bodies, in accordance with the provisions of this clause as follows: (i) Six (calendar) months of long service leave after 15 years of Continuous Service then two months of long service leave after each additional five years of Continuous Service. (ii) A Doctor may take pro rata long service leave after 10 years of Continuous Service where the Health Service agrees. The Health Service will not unreasonably withhold agreement. 55.2 Pro-rata Entitlement (a) Pro-rata entitlements accrue on termination of employment after 10 years of service. (b) Pro-rata entitlements are calculated as 1/30th of the period of Continuous Service since beginning employment, or since the last normal long service leave entitlement became due, whichever is later. 55.3 Payment for when Long Service Leave is taken (a) The Doctor is entitled to be paid the following for Long Service Leave: (i) for a Full-time Doctor, the remuneration for a Doctor’s normal weekly hours of work calculated, at the Doctor’s ordinary time rate of pay, at the time the leave is taken or (if the Doctor dies before the completion of leave so taken) as at the time of death; (ii) for a Fractional Doctor, the remuneration calculated on the average of their ordinary hours of work applying over the two years of employment immediately preceding the taking of leave. (b) Payment of a Doctor’s long service leave entitlement must be made by one of the following methods: (i) in full and in advance of the Doctor commencing leave; (ii) at the same time as the Doctor would normally be paid when on duty; or (iii)in any other way agreed between the Doctor and the Health Service. (c) Where an increase occurs in the ordinary time rate of pay during any period of long service leave taken by the Doctor, the Doctor will be entitled to receive payment of the -- 16 of 20 -- [2021] FWC 4696 16 amount of any increase in pay at the completion of such leave. Where a deduction is made for the rental, such amount will be deducted from the pay for the period of leave. 55.4 Taking of Leave (a) A Doctor must be granted long service leave within six months of the date eligibility arose under this clause. By agreement, the taking of the leave may be postponed to such a date mutually agreed. (b) Any long service leave is inclusive of public holidays occurring during the period when the leave is taken. (c) By agreement, the following may occur: (i) the first six months of the Doctor’s long service leave entitlement may be taken in two or three separate periods; or (ii) in any period of not less than one week. (d) Flexible taking of leave: Double leave at half pay or half leave at double pay (i) A Health Service may approve an application by a Doctor to take double the period of long service leave at half pay or half the period of long service leave at double the pay. (ii) Doctors should seek independent advice regarding the taxation and superannuation implications of seeking payment under this subclause 55.4(d). The Health Service will not be held responsible in any way for the cost or outcome of any such advice. (iii)The Health Service, if requested by the Doctor, will provide information as to the amount of tax the Health Service intends to deduct where payment of long service leave is sought under subclause 55.4(d)(i). (iv) If granting the request under this subclause would result in an additional cost to the Health Service, then it is not practical to grant a Doctor’s request. (v) Flexible taking of long service leave does not affect a Doctor’s period of Continuous Service recognised. For example, a Doctor taking 12 months at half pay will, for the purpose of calculating Continuous Service, have six months of Continuous Service recognised. A Doctor taking three months at double pay will have 6 months of Continuous Service recognised. In either case service will not be broken. 55.5 Calculating Service for Entitlements to Leave (a) To determine a period of service of a Doctor, the Health Service must include the service or breaks set out in subclause 55.6. (b) To calculate an entitlement, service or breaks listed in subclause 55.6 are counted as service, while the periods listed in subclause 55.7 are not counted as service but do not break continuity of service. -- 17 of 20 -- [2021] FWC 4696 17 Example: If a Doctor was engaged nine years ago and has within that time taken 12 months of unpaid Parental Leave, he or she must wait 11 years from the date of engagement before being eligible for pro rata Long Service Leave. 55.6 Counted as Service: In calculating Continuous Service, the following is counted as part of the period of service: (a) service for which long service leave or payment in lieu has not been received in one or more Institutions including Statutory Bodies directly associated with such Institutions for the period required by subclause 55.1(a) of this Agreement; (b) service with Her Majesty’s armed forces; (c) service with a business that was transmitted, transferred, assigned, conveyed or succeeded from one business to another; (d) any paid leave taken; (e) leave of absence where the absence is authorised in advance in writing by the Health Service to be counted as service; (f) any absence from work of not more than fourteen days in any year on account of illness or injury or if applicable such longer period as provided in clause 49 - Personal/Carers' Leave; (g) service as part of a specialist training program accredited by a Specialist Medical College with an employer not covered by this Agreement where: (i) the break between period of employment is not more than two months duration or such longer period as provided in subclause 55.9(a)(ii) (Allowable period of absence for Parental Leave); and (ii) the Doctor has not received payment for their long service leave benefit for that service. (h) in the case of Doctors who commence employment with a Victorian public Health Service after 30 November 2008, service with an interstate government health service, provided that such interstate government health service employment was within two months of commencing employment with a Victorian public Health Service; (i) absence on account of injury arising out of or in the course of his or her employment of the Doctor for a period during which payment is made under clause 49 - Personal/Carers' Leave; (j) any interruption or ending of the employment by the Health Service if such interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave. -- 18 of 20 -- [2021] FWC 4696 18 55.7 Not Counted as Service but Not Breaking Continuity of Service: In calculating Continuous Service, the following is not counted as part of the period of service but does not break continuity of service: (a) absence on unpaid parental leave or an equivalent period for parental leave purposes (up to 24 months between engagements) under subclause 55.9(a)(ii); (b) absence arising directly or indirectly from an industrial dispute; (c) any period of time from employment between engagements with a Statutory Body, any Institution and any other provider that is less than the Doctor’s allowable period of absence from employment pursuant to subclause 55.9 below; (d) the dismissal of a Doctor by a Health Service if re-employed within two months of the dismissal; (e) any leave of absence authorised by the Health Service which has not been authorised in advance in writing by the Health Service to be counted as service; (f) any other absence of a Doctor by leave of the Health Service, or on account of injury arising out of or in the course of employment not covered by subclause 55.6(i) above. 55.8 Continuous Service includes entitlements pursuant to previous Victorian Industrial Awards or Agreements (a) Continuous Service includes continuous service with Institutions and Statutory Bodies within the meaning of any industrial instrument in operation in Victoria that covered the Doctor prior to the date upon which this Agreement covers the Doctor, subject to the allowable period of absence at subclause 55.9. This includes service recognised by an industrial instrument where the Doctor was employed as part of an accredited Specialist training program by an employer not covered by that agreement. (See subclause 68.7(f) of the AMA Victoria – Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021, where relevant.) The requirements of subclause 55.13 apply. 55.9 Allowable Break in Service (a) A Doctor’s allowable period of absence from employment will be the greater of: (i) five weeks in addition to the total period of paid annual leave and/or personal leave that the Doctor actually receives on termination, or for which he or she is paid in lieu; or (ii) such longer period of absence equivalent to and for the purpose of parental leave under the NES. 55.10 Transfer of Entitlement -- 19 of 20 -- [2021] FWC 4696 19 (a) Provided in the case of a Doctor who accrues entitlement pursuant to subclause 55.1(a) of this Agreement and who intends to be re-employed by another Institution or Statutory Body: (i) such a Doctor may in writing request payment in respect of such leave to be deferred until after the expiry of the Doctor’s allowable period of absence from employment provided in subclause 55.9 of this Agreement; (ii) except where the Doctor gives notice in writing that the Doctor has been employed by another Institution or Statutory Body, payment will be made in respect of such leave at the expiry of the Doctor’s allowable period of absence from employment; and (iii)where a Doctor gives notice in writing that the Doctor has been employed by another Institution or Statutory Body, the Health Service is no longer required to make payment to the Doctor in respect of such leave. 55.11 What Happens on a Doctor’s death? (a) For a Doctor who has completed at least ten years’ service and who has died, the Health Service must pay the Doctor’s authorised representative an amount equal to 1/30th of the Doctor’s Continuous Service in respect of which leave has not been allowed or payment made immediately prior to the death of the Doctor. 55.12 Health Service Must Keep Records (a) The Health Service must keep a record of long service leave for each Doctor. This record must show details of service, leave taken and payments made. 55.13 Doctor Responsible for Proof of Service (a) The Doctor is at all times responsible for proving that he or she has completed sufficient service to access the long service leave entitlement. (b) A certificate in the form set out in Schedule D shall constitute proof, but not the only possible proof. -- 20 of 20 --