Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2023] QIRC 180

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2023] QIRC 180 PARTIES: Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: B/2020/84 PROCEEDING: Application for declarations DELIVERED ON: HEARING DATES: 15 June 2023 7 and 8 March 2022 DATES OF WRITTEN SUBMISSIONS: Respondent's final submissions filed on 26 April 2022 and 7 June 2022 and Applicant's written submissions filed on 24 May 2022 MEMBER: Merrell DP HEARD AT: Brisbane ORDER: The Applicant's amended application filed on 19 August 2021 is dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – application by the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees for declarations about an industrial matter – declarations sought that six Senior Medical Officers (SMOs) employed by the West Moreton Hospital and Health Service in certain Hospitals are entitled to a Stand-by Allowance as provided for in policies made by Queensland Health in respect of which compliance was required by virtue of a Health Employment -- 1 of 30 -- 2 Directive made pursuant to s 51A of the Hospital and Health Boards Act 2011 and a certified agreement approved under ch 4, pt 5 of the Industrial Relations Act 2016 – whether the conditions required for the SMOs to be entitled to the Stand-by Allowance were met – whether the requisite agreements were reached between each SMO and the West Moreton Hospital and Health Service so that each SMO was entitled to the Stand-by Allowance – whether the SMOs have an entitlement to the Stand-by Allowance, as from 23 November 2015, pursuant to Health Employment Directive No. 02/15: Senior Medical Officers: Special Remuneration arrangements – whether the SMOs have an entitlement to the Stand-by Allowance, as from 31 May 2019, pursuant to the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 – circumstances where declarations may be made by the Queensland Industrial Relations Commission about an industrial matter – whether the discretion of the Queensland Industrial Relations Commission should be exercised to make the declarations sought – West Moreton Hospital and Health Service was required to comply with the instruments imposing the Stand-by Allowance – no evidence of the requisite agreement between each SMO and the West Moreton Hospital and Health Service giving rise to the entitlement to the Stand-by Allowance – conditions to entitle the SMOs to the Stand-by Allowance were not met – application for declaratory relief dismissed LEGISLATION: Health Employment Directive No. 02/15 – Senior Medical Officers: Special remuneration arrangements, s 1, s 2, s 4, s 6 and Attachment 1, pt 4 Health Employment Directive No. 06/21: Senior Medical Officers: Special remuneration arrangements, s 1, s 2 and Attachment 1, pt 4 Hospital and Health Boards Act 2011, s 51A and s 51C Industrial Relations Act 2016, s 463 Medical Officers' (Queensland Health) Certified Agreement (No. 4) 2015, cl 4.11 -- 2 of 30 -- 3 OTHER DOCUMENTS: Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018, cl 1.10, cl 11.18 and sch 3 C23 Stand-By Arrangements for Senior Medical Officers, Human Resources Policy, cl 7 Human Resources Policy, Senior medical officers - Terms and conditions, C23 (QH-POL-235), cl 1 and cl 2 CASES: Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) [2021] QIRC 157 Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 NV Philips Gloeilampenfabrieken v Mirabella International Pty limited [1993] FCA 404; (1993) 44 FCR 239 Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061 APPEARANCES: Ms L. Gowdie with Mr J. Cosgrove of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees. Mr G. O'Gorman with Ms N. Watson and Ms R. Borger of the State of Queensland (Queensland Health). Reasons for Decision Introduction and background [1] By further amended application filed on 19 August 2021, the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('the Union') seeks, pursuant to s 463 of the Industrial Relations Act 2016 ('the Act'), certain -- 3 of 30 -- 4 declarations and other consequential relief in respect of six named Senior Medical Officers ('the six SMOs') who worked or are working in Emergency Departments in certain Hospitals within the West Moreton Hospital and Health Service ('the Health Service'). [2] It seems to be accepted between the Union and the State of Queensland, through Queensland Health ('the Department'), that at all relevant times, the six SMOs were employed by the Health Service. [3] The six SMOs are: • Dr Diana Ratcliffe; • Dr Thomas Toro; • Dr Ghazal Hatton; • Dr Robyn Cooke; • Dr Dominique Carroll; and • Dr Nadine Garraway. [4] The Hospitals where the six SMOs work or worked are the Boonah, Gatton, Esk and Laidley Hospitals ('the relevant Hospitals').1 [5] At the hearing, only the following declarations were pressed by the Union:2 6) A declaration that Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke: a. when they were and/or continue to be employed by the WMHHS3 from 23 November 2015; b. that the Directive4 applied to them; and c. when they performed on call duties and agreed to be on stand-by, within the meaning of the Senior medical officers - Terms and conditions C23 (QH-POL-235) (Stand-by Policy); they were entitled to the stand-by allowance pursuant to the Directive. 7) A declaration that Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke: b. when they were and/or continue to be employed by the WMHHS from 31 May 2019; c. that MOCA 55 applied to them; and d. when they performed on call duties and agreed to be on stand-by, within the meaning of the Stand-by Policy; they were entitled to the Stand-by Allowance pursuant to the MOCA5. 1 T 1-3, ll 38-40. 2 T 1-2, ll 17-36. 3 Which stands for the West Moreton Hospital and Health Service. 4 Which is a reference to the Health Employment Directive No. 02/15: Senior medical officers: Special remuneration arrangements. 5 Which is a reference to Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018. -- 4 of 30 -- 5 8) A declaration that the Respondent is: a. obliged by the Directive to pay Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke, the Stand-by allowance; and/or b. obliged by the MOCA 5 to pay Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke, the Stand-by allowance above. [6] The Department accepts that the application made by the Union on behalf of the six SMOs is competent.6 [7] The issue between the parties is whether, in respect of the SMOs who were rostered to be On Call between about 9.30 pm and about 7.00 am at one of the relevant Hospitals,7 the conditions were such that the SMOs had an entitlement to a Stand-by Allowance as prescribed in various policies of the Department (collectively, 'the Stand-by policies') instead of being paid an On Call Allowance as prescribed by the applicable certified agreements. [8] Each of the Stand-by policies provides that a Stand-by Allowance is payable where: • agreement is reached between a SMO and the relevant Health Service, when a SMO holds themselves available for duty; and • the time for the return to duty is within 10 minutes or other time that requires the SMO to reside away from their normal place of residence. [9] In summary, the Union's case is that: • compliance with the Stand-by policies was and is mandatory by virtue of Health Employment Directive No. 02/15 - Senior medical officers: Special remuneration arrangements ('the 2015 Directive') and then the Medical Officers' (Queensland Health) Certified Agreement (No. 5) 2018 ('MOCA 5');8 • the obligation on the part of the Health Service to pay the Stand-by Allowance arises because: - the six SMOs are rostered in the evening to hold themselves available for On Call and when they are rostered On Call, they stay at Hospital provided accommodation and hold themselves available for duty; - agreement between the six SMOs and the Health Service is constituted by the Health Service rostering the SMOs On Call in the evenings at the relevant Hospitals and those SMOs agreeing to work and then working those On Call shifts;9 6 The final submissions of the State of Queensland, through Queensland Health, filed on 26 April 2022 ('the Department's final submissions'), para.7. 7 T 1-6, l 24 to T 1-7, l 1. 8 The submissions of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees filed on 4 June 2021 ('the Union's initial submissions'), paras. 11-25. 9 The Union's initial submissions, paras. 29 and 32-33. -- 5 of 30 -- 6 - for reasons outside of the Health Service's control, SMOs rostered On Call at a relevant Hospital are required to be available to return to duty within at least ten minutes because the Queensland Government has directed the Health Service (and other Hospital and Health Services) to follow the Australasian Triage Scale ('the ATS'); and - the ATS defines five categories of patients, with categories 1 and 2 being those with the most serious illnesses and injuries and, under the ATS, Category 1 patients must be seen by a medical officer immediately upon presentation to the Hospital and Category 2 patients must be seen by a medical officer within ten minutes upon presentation to the Hospital;10 and • the declarations sought by the Union should be made because since at least 23 November 2015, the six SMOs have been paid an On Call Allowance when required to hold themselves available to return to duty, notwithstanding the criteria for payment of the Stand-by Allowance has been and continues to be met.11 [10] The Department's case, in summary, is that: • the applicable Health Employment Directives state that SMOs who are rostered '… for on-call standby' will be paid using multiplier rates and as no SMO at the relevant Hospitals was rostered for on-call standby, the Union's case fails;12 • the Health Service has directed SMOs that its expectation is that when they are rostered On Call, they are only required by MOCA 5 to be available within 30 minutes;13 • there is no ambiguity in the Stand-by policies, such that, in order to be entitled to the Stand-by Allowance, there actually must be an agreement that a SMO is rostered for Stand-by, and not just On Call, and that when the SMO is directed to be On Call, they are only entitled to the On Call Allowance;14 • there is nothing in the ATS that dictates a response by a SMO in that the ATS requires treatment or a medical response which can be by nursing staff;15 • the Health Service provides accommodation for the purposes of recruitment and retention and not for the purposes of SMOs being on Stand-by;16 10 The Union's initial submissions, paras. 38-52. 11 The Union's initial submissions, paras. 9 and 53-54. 12 T 1-7, ll 15-19. 13 T 1-7, ll 21-23. 14 T 1-7, ll 28-32. 15 T 1-7, ll 36-38. 16 The submissions of the State of Queensland, through Queensland Health, filed on 7 October 2021 ('the Department's initial submissions'), para. 146. -- 6 of 30 -- 7 • the fact that a SMO in one of the relevant Hospitals can get to the facility within 10 minutes due to the close proximity of the (Hospital provided) accommodation does not entitle them to the Stand-by Allowance;17 • in relation to the alternative condition in the Stand-by policies, regarding another time that requires the SMO to reside away from the normal place of residence, there must be a requirement for the SMO to reside away from the normal place of residence and when a SMO applies for a role at one of the relevant Hospitals, there is an expectation that they are to be available for On Call rosters;18 and • there is no requirement that a SMO resides away from their normal place of residence, they can choose where they live, but their choice of residence does not entitle them to the Stand-by Allowance.19 [11] The Union led evidence from the five of the six named SMOs.20 [12] The Department led evidence from: • Ms Gail Rogers, Director of Nursing/Facility Manager of the Boonah Hospital; and • Dr Deepak Doshi, Chief Medical Officer of the Health Service. [13] Having regard to the parties' contentions as outlined above, the questions for my determination are: • was the Health Service, by virtue of the application of the 2015 Directive and MOCA 5, required to comply with the Stand-by policies that contain the Stand-by Allowance? and, if so • in respect of the six SMOs, were the necessary agreements reached between them and the Health Service as required by the Stand-by policies to entitle them to the Stand-by Allowance? and, if so • should the Commission make the declarations as sought by the Union? [14] For the reasons that follow, I decline to make the declarations sought by the Union. [15] Before I deal with the three questions referred to above, it is necessary to consider the power of the Commission to grant declaratory relief. The Commission's power to grant declaratory relief [16] The substantive relief sought by the Union is the making of declarations pursuant to s 463(1) of the Act. That section confers power on the Commission to make a declaration about an industrial matter. 17 T 1-8, ll 2-4. 18 T 1-8, ll 6-11. 19 T 1-8, ll 11-14. 20 T 2-15, ll 25-31. -- 7 of 30 -- 8 [17] In Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health)21 I relevantly stated about the power of the Commission to make declarations about an industrial matter: [14] Pursuant to s 463(1) of the Act, the Commission may, on application, make a declaration about an industrial matter. 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. [15] The applicable principles in respect of the discretionary power to grant declaratory relief were summarised by Applegarth J in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors where his Honour relevantly stated: [34] The discretionary power to grant declaratory relief is wide. However, it is “confined by the considerations which mark out the boundaries of judicial power”. A judicial determination includes a “conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy”. It involves the application of the relevant law to facts as found in the proceeding. The High Court in Bass v Permanent Trustee Co Ltd stated: “It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.” [35] Declaratory relief must not be directed to answering “abstract or hypothetical questions”. [36] Answers given to a question which leaves the facts unstated or do not identify them with any precision will not finally resolve a dispute or quell a controversy. The answers given “may be of no use at all to the parties and may even mislead them as to their rights.”22 [18] More recently, Snaden J, in Pirmax Pty Ltd v Kingspan Insulation Pty Ltd23 stated of the power of the Federal Court of Australia to grant binding declarations: 386 The court’s power to grant binding declarations of right is found in s 21 of the Federal Court of Australia Act 1976 (Cth). As with the court’s power to grant injunctive relief, the discretion there conferred is very wide. It should “…be exercised ‘sparingly,’ with ‘great care and jealousy,’ with ‘extreme caution,’ [and] with ‘the utmost caution’” and, at all events, with “…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”: Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, Guest and Upjohn LLJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (“Ainsworth”), 596 (Brennan J). 387 Declaratory relief will rarely, if ever, be appropriate unless it can be said that there is some utility to be realised by granting it: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ). 21 [2021] QIRC 157. 22 Citations omitted. 23 [2022] FCA 1340. -- 8 of 30 -- 9 [19] The Department did not submit there was not a genuine dispute between the Health Service and the Union over the payment of the Stand-by Allowance to the six SMOs. [20] In my view, there is a genuine dispute between the Health Service and the Union about whether or not the six SMOs, who are members of the Union, had and have an entitlement to the Stand-by Allowance. Clearly, the subject matter of that genuine dispute is an industrial matter. For these reasons, there is a foreseeable consequence to the Union, if the declarations sought are granted, which will have a real practical importance to the Union.24 In these circumstances, I will determine whether or not I will make the declarations sought. Was the Health Service, by virtue of the application of the 2015 Directive and MOCA 5, required to comply with the Stand-by policies that contain the Stand-by Allowance? The Stand-by policies [21] Since August 2008, the Stand-by policies have been in place which provide for the Stand-by Allowance the subject of the Union's application. The evidence before me is that the Stand-by policies were and are: • C23 Stand-by Arrangements for Senior Medical Officers, Human Resources Policy, effective August 2008, ('the 2008 Stand-by Policy'); • Human Resources Policy, Senior medical officers - Terms and conditions, C23 (QH-POL-235), effective June 2020 ('the 2020 Stand-by Policy'); and • Human Resources Policy, Senior medical officers - Terms and conditions, C23 (QH-POL-235), effective May 2021 ('the 2021 Stand-by Policy'). [22] From August 2008, the 2008 Stand-by Policy (Exhibit 13) relevantly provided: 7 POLICY The arrangements outlined in sections 7.1 to 7.4 apply to Senior Medical Officers (SMOs) who commence duty within an agreed specified time of being recalled to duty when on call. 7.1 Stand-by Allowance A Stand-by Allowance is payable where: • Agreement is reached between an SMO and district (when an SMO holds themself available for duty); and • The time for the return to duty is within 10 minutes or other time that requires the SMO to reside away from their normal place of residence. Where the time agreed for the SMO to return to work is 10 minutes or less, the payment of a Stand-by Allowance is to be made even if the SMO is able to return to their normal place of residence. 24 Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421, [38] (Heydon J, French CJ Gummow, Crennan, Kiefel and Bell JJ at [1] agreeing). -- 9 of 30 -- 10 The amount of the Stand-by Allowance is: • 10 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each 24 hour period (or part thereof) on call (Monday to Saturday inclusive). • 15 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each Sunday (or part thereof) on call. Each day does not count as a 'stand alone' period. On Call Allowance is not payable for any day when an SMO receives a Stand-by Allowance. No stand-by payment is to be made if the agreement is for the SMO to return to duty within 30 minutes and they can return to their normal place of residence. On Call Allowance is paid in those situations. [23] From June 2020, the 2020 Stand-by Policy (Exhibit 14) relevantly provided: 1 Policy statement This policy outlines the stand-by arrangements for SMOs who commence duty within an agreed specified time of being recalled to duty when on call, as well as the entitlements and conditions of a telecommunications package up to the value of $1,200 for the purpose of telecommunications equipment. 2 Stand-by arrangements The following stand-by arrangements apply for SMOs when on call. 2.1 Stand-by Allowance A stand-by allowance is payable where: • agreement is reached between an SMO and Hospital and Health Service (HHS) (when an SMO holds themself available for duty) and • the time for the return to duty is within 10 minutes or other time that requires the SMO to reside away from their normal place of residence. Where the time agreed for the SMO to return to work is 10 minutes or less, the payment of a stand-by allowance is to be made even if the SMO is able to return to their normal place of residence. The amount of the stand-by allowance is: • 10 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each 24 hour period (or part thereof) on call (Monday to Saturday inclusive) • 15 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each Sunday (or part thereof) on call. Each day does not count as a 'stand alone' period. On call allowance is not payable for any day when an SMO receives a stand-by allowance. No stand-by payment is to be made if the agreement is for the SMO to return to duty within 30 minutes and they can return to their normal place of residence. On call allowance is paid in those situations. -- 10 of 30 -- 11 [24] From May 2021, the 2021 Stand-by Policy (Exhibit 15) contained terms concerning the Stand-by Allowance that are not materially different to those contained in the 2008 Stand-by Policy and in the 2020 Stand-by Policy. The 2015 Directive [25] Effective 23 November 2015, the chief executive of the Department, pursuant to s 51A of the Hospital and Health Boards Act 2011 ('the HHB Act'), issued the 2015 Directive. [26] Section 1 of the 2015 Directive provides that compliance with it is mandatory. [27] Section 2 of the 2015 Directive provided: 2. Purpose The purpose of this HED is to: • outline the remuneration framework for Queensland Health senior medical officers (SMOs) transitioning from employment contracts to the Medical Officers (Queensland Health) Certified Agreement (No. 4) 2015 (MOCA 4); • establish the governance requirements for annualised remuneration, on call standby and over-award payment arrangements applicable to SMOs. [28] Section 4 of the 2015 Directive provided that it applied to all SMOs employed under the HHB Act, the Department and prescribed and non-prescribed Hospital and Health Services. [29] Section 6 of the 2015 Directive relevantly provided: 6. Consistency All HHSs and the Department must: • Adhere to the Remuneration governance framework for senior medical officers (attached at Attachment 1). [30] Attachment 1 to the 2015 Directive is entitled 'Remuneration Governance Framework for Senior Medical Officers', is dated November 2015, and at pt 4 provided: 4. Standby allowance multipliers The operational details of on call standby is contained within HR Policy C23 (QH-POL-235) - Senior medical officers - Terms and conditions, which may be updated from time to time. SMOs who agree to be rostered for on call standby will be paid using the following multiplier rates: • hourly base rate x 4.52 for each 24 hour period (or part thereof) on call standby (Monday to Saturday inclusive) • hourly base rate x 6.76 for each Sunday (or part thereof) on call standby. The 2021 Directive [31] The 2015 Directive, as from 6 July 2021, was superseded by Health Employment Directive No. 06/21:Senior Medical Officers: Special remuneration arrangements ('the 2021 Directive'). -- 11 of 30 -- 12 [31] The provisions of the 2021 Directive, in relation to the Stand-by Allowance, are not materially different to those in the 2015 Directive. Section 1 of the 2021 Directive provides that compliance with it is mandatory, and s 2 provides that the purpose of the 2021 Directive is to '… establish the governance requirements for annualised remuneration, on call standby and over-award payment arrangements applicable to SMOs.' [32] Further, s 6 of the 2021 Directive provides that all Hospital and Health Services, and the Department, must adhere to the Remuneration Governance Framework For Senior Medical Officers being Attachment 1 to the 2021 Directive. That Attachment provides: 4. Standby allowance multipliers The operational details of on call standby is contained within HR Policy C23 (QH-POL-235) - Senior medical officers - Terms and conditions, which may be updated from time to time. SMOs who agree to be rostered for on call standby will be paid using the following multiplier rates: • hourly base rate x 4.52 for each 24 hour period (or part thereof) on call standby (Monday to Saturday inclusive) • hourly base rate x 6.76 for each Sunday (or part thereof) on call standby. MOCA 5 [32] On 31 May 2019, the Commission, pursuant to ch 4, pt 5 of the Industrial Relations Act 2016, certified MOCA 5. [33] Clause 1.10 of MOCA 5 provides: 1.10 HR Policy Preservation 1.10.1 The parties agree that certain matters that apply to employees covered by this Agreement will be preserved and incorporated as terms of this Agreement and contained within Schedule 3 of this Agreement. 1.10.2 The matters contained within Schedule 3, as they apply to employees covered by this Agreement, cannot be amended unless agreed by the parties. If matters are amended, the matters will be incorporated as a term of this Agreement. 1.10.3 The parties agree to work collaboratively and engage in the Human Resource Policy review process. If matters are amended, the matters will be incorporated as a term of this Agreement. [34] Schedule 3 to MOCA 5 ('Preserved Queensland Health Human Resources Policies'), at item (e), refers to 'HR policy C23', provides that the policy name is 'Senior medical officers - Terms and Conditions' and states that policy applies to 'Senior Medical Officers'. Was and is the Health Service required to comply with the applicable Stand-by policies? [35] As best as I understand it, the Union contends that, by virtue of the combined effect of cl 1.10 and sch 3, item (e) of MOCA 5, the 2008, 2020 and 2021 Stand-by Policies were -- 12 of 30 -- 13 preserved and incorporated as a term of MOCA 5.25 The Union also contends that from 23 November 2015, compliance with those policies was mandatory by virtue of the 2015 Directive.26 [36] The Department, in its opening address, accepted that the '… standby policy does remain binding on Queensland Health pursuant to the health directive, SMOs special remuneration arrangements.'27 In its final submissions, the Department submitted that there was no contention that the 2015 Directive, the 2021 Directive, the Medical Officers’ (Queensland Health) Certified Agreement (No 4) 2015 ('MOCA 4'), MOCA 5 and, as best as I understand it, the 2020 Stand-by Policy and the 2021 Stand-by Policy, applied at all relevant times to the present dispute.28 [37] In its final submissions, the Union did not expressly deal with the issue of the binding nature of the Stand-by policies. [38] I am prepared to accept that at all relevant times in relation to the six SMOs the subject of the Union's application, the 2008 Stand-by Policy, the 2020 Stand-by Policy and the 2021 Stand-by Policy were binding on the Health Service. On my assessment of the relevant instruments and the relevant statutory provisions, it seems to me that the binding nature of the Stand-by policies on the Health Service comes about by the following means. [39] First, the 2008 Stand-by Policy, which had an effective date of August 2008, was preserved and incorporated into MOCA 5 by virtue of the combined effect of cl 1.10 and sch 3, item (e) of MOCA 5. MOCA 5 had an operative date of 31 May 2019. [40] Secondly, as from June 2020, the 2008 Stand-by Policy was replaced by the 2020 Stand-by Policy. However, there was no material change to the terms of the Stand-by Allowance in the 2020 Stand-by Policy compared to the 2008 Stand-by Policy. The consequence was that, having regard to sub-cl.1.10.1 of MOCA 5, the 2020 Stand-by Policy (which met the description of 'HR policy C23' as referred to in sch 3, item (e) of MOCA 5) was preserved and incorporated into MOCA 5. [41] Similarly, as from May 2021, the 2020 Stand-by Policy was replaced by the 2021 Stand-by Policy. Again, there was no material change to the terms of the Stand-by Allowance in the 2021 Stand-by Policy compared to the 2020 Stand-by policy, such that having regard to sub-cl 1.10.1 of MOCA 5, the 2021 Stand-by Policy was preserved and incorporated into MOCA 5. In my view, the 2021 Stand-by Policy continued to meet the description of 'HR Policy 23' as contained in sch 3, item (e) of MOCA 5. 25 The Union's initial submissions, para. 2(a). 26 The Union's initial submissions, para. 2(b). 27 T 1-7, ll 13-15. 28 The Department's final submissions, para. 6. -- 13 of 30 -- 14 [42] Thirdly, ss 51C(1) and (1A) of the HHB Act, which commenced operation on 11 June 2015, provide: 51C Relationship between health employment directives and other instruments (1) If a health employment directive is inconsistent with an industrial instrument, the industrial instrument prevails to the extent of the inconsistency. (1A) Subsection (1) does not apply if the terms and conditions of employment provided for in the health employment directive are more favourable to the employee than the terms and conditions of employment provided for in the industrial instrument. [43] As from 23 November 2015, Attachment 1, pt 4 ('Standby allowance multipliers') of the 2015 Directive amended the multiplier rates used to calculate the Stand-by Allowance as contained in the 2008 Stand-by Policy. [44] The Department asserted that the multiplier rates used to calculate the Stand-by Allowance, contained in the 2015 Directive, were more favourable to SMOs than the multiplier rates used to calculate the Stand-by Allowance contained in the Stand-by policies.29 The Department did not provide any justification as to why the multiplier rates contained in the 2015 Directive were more favourable. The Union did not accept that assertion,30 but did not say why. [45] I assume, for present purposes, that the multiplier rates used to calculate the Stand-by Allowance contained in the 2015 Directive were more favourable to SMOs than the multiplier rates contained in the Stand-by policies. On the basis of that assumption, then as from 23 November 2015, by virtue of s 51C(1A) of the HHB Act, the multiplier rates contained in the 2015 Directive prevailed over the multiplier rates contained in the applicable versions of the Stand-by policies as preserved and incorporated into MOCA 5. [46] Fourthly, for the same reasons as expressed in the preceding paragraph, as from 6 July 2021, the Stand-by Allowance multiplier rates contained in Attachment 1, pt 4 to the 2021 Directive, prevail over the multiplier rates contained in the 2021 Stand-by Policy as preserved and incorporated into MOCA 5. [47] In coming to the above conclusions, I have not formed the view, as asserted by the Department in its opening, 31 that it was mandatory for the Health Service to comply with the Stand-by policies because of the operation of the 2015 Directive and the operation of the 2021 Directive. This is because the text of Attachment 1, pt 4 to both those Directives does not, expressly or impliedly, provide that the applicable Stand-by policies have legal effect through their incorporation into those Directives. In my view, the only legal effect or consequence of Attachment 1, pt 4 to the 2015 and 2021 Directives was to change the multiplier rates. For the reasons given earlier, my opinion is that the binding nature of the Stand-by policies on the Health Service came, and comes about, by virtue of the combined effect of cl 1.10 and sch 3, item (e) of MOCA 5. 29 The Department's initial submissions, para. 62. 30 The initial submissions in reply of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees filed on 28 October 2021, para. 16. 31 T 1-7, ll 13-15. -- 14 of 30 -- 15 [48] For these reasons, at all relevant times concerning the six SMOs: • the Stand-by Allowance, as contained in the 2008 Stand-by Policy, the 2020 Stand-by Policy and the 2021 Stand-by Policy, was binding on the Health Service by virtue of the preservation and incorporation of those policies into MOCA 5; • as from 23 November 2015, the multiplier rates to calculate the Stand-by Allowance were those contained in the 2015 Directive; and • as from 6 July 2021, the multiplier rates to calculate the Stand-by Allowance were those contained in the 2021 Directive. In respect of the six SMOs, were the necessary agreements reached between them and the Health Service as required by the Stand-by policies to entitle them to the Stand-by Allowance? The relevant terms of the Stand-by policies [49] I have set out, earlier in these reasons, the material terms of the 2008 and 2020 Stand-by Policies which provide for the conditions that must be met before the Health Service was obliged to pay the Stand-by Allowance to a SMO as opposed to paying a SMO the On Call Allowance. [50] There is no material difference in those conditions compared with the 2021 Stand-by Policy. In considering whether the requisite agreements had been reached between the six SMOs and the Health Service, such that the Health Service was compelled to pay the Stand-by Allowance to the six SMOs, it is convenient to consider the text of the 2021 Stand-by Policy. [51] The 2021 Stand-by Policy relevantly provides: 1 Policy Statement This policy outlines the stand-by arrangements for medical officers, and the entitlements and conditions of a telecommunications package for senior medical officers. 2 Stand-by arrangements The following stand-by arrangements apply for medical officers when on call. 2.1 Stand-by allowance A stand-by allowance is payable where: • agreement is reached between a medical officer and Hospital and Health Service (HHS) (when a medical officer holds themself available for duty) and • the time for the return to duty is within 10 minutes or other time that requires the medical officer to reside away from their normal place of residence. Where the time agreed for the medical officer to return to work is 10 minutes or less, the payment of a standby allowance is to be made even if the medical officer is able to return to their normal place of residence. -- 15 of 30 -- 16 The amount of the standby allowance is: • For an eligible Senior Medical Officer (SMO) - 10 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each 24 hour period (or part thereof) on call (Monday to Saturday inclusive) - 15 per cent of the MO1 - 7 (Staff Specialist) weekly rate for each Sunday (or part thereof) on call. … Each day does not count as a 'stand-alone' period. On call allowance is not payable for any day when a medical officer receives a standby allowance. No standby payment is to be made if the agreement is for the medical officer to return to duty within 30 minutes and they can return to their normal place of residence. On call allowance is paid in those situations. [52] Having regard to the competing submissions made by the parties, the issue is whether the circumstances pointed to by the Union amount to an agreement between the six SMOs and the Health Service for the purposes of meeting the conditions compelling payment of the Stand-by Allowance. The construction of the relevant terms of the Stand-by policies [53] It is important, when construing any document, to take account of the particular nature of the document in question, which may provide reasons for preferring one approach to construction over another.32 The Stand-by policies are obviously more legislative as opposed to contractual in nature. In any event, for the reasons given earlier, they were and are preserved and incorporated into MOCA 5. The primary principles of the construction of certified agreements were set out by a Full Bench of the Commission in State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.33 [54] How should the provisions of the Stand-by policies be construed? [55] First, by having regard to s 1 of the 2021 Stand-by Policy, it is clear that, relevantly, its purpose is to outline the Stand-by arrangements for medical officers. There is no dispute that this Policy, like the 2008 Stand-by Policy and the 2020 Stand-by Policy, applies to SMOs. No party contended that there was any material difference between the 2008 Stand-by Policy, the 2020 Stand-by Policy and the 2021 Stand-by Policy in respect of the conditions needed to be met to require the Health Service to make payment of the Stand-by Allowance to a SMO. [56] Secondly, by having regard to the text of the first sentence of s 2 of the 2021 Stand-by Policy, it is clear that the stand-by arrangements apply '… for medical officers when on call.' Therefore, reading s 2 as a whole, before the Stand-by Allowance may be payable, the SMO must be On Call. 32 NV Philips Gloeilampenfabrieken v Mirabella International Pty limited [1993] FCA 404; (1993) 44 FCR 239, 286 (Burchett J). 33 [2023] QIRC 061, [39] (Deputy President Merrell, Industrial Commissioner Pidgeon and Industrial Commissioner Dywer). -- 16 of 30 -- 17 [57] Clause 4.11 of MOCA 4, which operated from 22 November 2015, relevantly provided: 4.11 On Call 4.11.1 On call allowance rates recognise the disadvantages of holding oneself available on call and the clinical need to provide telephone advice whilst on call. Where a medical officer has had an inadequate sleep opportunity the fatigue provisions as per Clause 5.2 apply. However, for fatigue under this clause there is no requirement for a minimum of two hours to be worked. … 4.11.3 On Call – Senior Medical Officers Where a SMO is instructed to be available on call outside ordinary or rostered working hours, the SMO will be paid a rate equivalent to 12% of their hourly base pay rate level for each hour on call. [58] Clause 11.8 of MOCA 5 provides for the payment of the On Call Allowance to SMOs and relevantly provides: 11.18 On Call and Recall 11.18.1 On Call Allowance: On call allowance rates recognise the disadvantages of holding oneself available on call and the clinical need to provide telephone advice whilst on call. Where a medical officer has had an inadequate sleep opportunity the fatigue provisions as per Clause 5.4 and Clause 5.5 apply. However, for fatigue under this clause there is no requirement for a minimum of two hours to be worked. … 11.18.3 On Call Senior Medical Officers: Where a SMO is instructed to be available on call outside ordinary or rostered working hours, the SMO will be paid a rate equivalent to 12% of their hourly base pay rate level for each hour on call. [59] Having regard to these provisions, for a SMO to be entitled to receive the On Call Allowance, the SMO must be instructed to be available On Call outside their ordinary or rostered working hours. [60] Thirdly, regard must be had to the text of s 2.1 of the 2021 Stand-by Policy. [61] It is fair to say that the first paragraph of this section is clumsily drafted. Having regard to the equivalent provisions of the 2008 Stand-by Policy and the 2020 Stand-by Policy, it seems that the text of this part of s 2.1 has been translated from those earlier policies. It is clumsily drafted because it is not clear from the text as to whether the two dot points contained in s 2.1 of the 2021 Stand-by Policy indicate that the SMO and the Health Service are to reach agreement on one or two subject matters for the SMO to be entitled to the Stand-by Allowance. That is, does s 2.1 of the 2021 Stand-by Policy require that agreement be reached between the SMO and the Health Service that the SMO hold him or herself out as available for duty, and that agreement must also be reached that the time for the return to duty is within 10 minutes or other agreed time? On the other hand, does -- 17 of 30 -- 18 s 2.1 of the 2021 Stand-by Policy merely require the SMO and the Health Service to agree that the SMO will return to duty within 10 minutes or other agreed time? [62] The final submissions of the Union seem to suggest that there are two subject matters upon which agreement must be reached between a SMO and the Health Service, namely, an agreement for the SMO to hold themselves '… available for on call'34 and a further agreement that the SMO can return to duty within 10 minutes.35 [63] The Department, in its final submissions, seems to contend that the relevant agreement between a SMO and the Health Service concerns one subject matter, namely, an agreement by the SMO to be on Stand-by (as opposed to an agreement to be On Call) where the SMO agrees with the Health Service to return to duty within 10 minutes.36 [64] All the Stand-by policies provide that the Stand-by arrangements contained in them '… apply for medical officers when on call.' Thus, it seems there is no agreement required for a SMO to hold him or herself available for duty because they must already be instructed to be available to be On Call. It seems to me that the 2021 Stand-by Policy contemplates an agreement between a SMO and the relevant Health Service where the SMO agrees to return to duty within 10 minutes or other agreed time. That is to say, by the SMO agreeing to return to duty within 10 minutes or other agreed time, the SMO (who is already instructed to be On Call) is agreeing to be on Stand-by. In those circumstances, the Stand-by allowance is payable to the SMO by the relevant Health Service. [65] Support for the view I have expressed above comes from the next sentence in the 2021 Stand-by Policy, namely: Where the time agreed for the medical officer to return to work is 10 minutes or less, the payment of a standby allowance is to be made even if the medical officer is able to return to their normal place of residence. [66] The part of this sentence before the comma clearly contemplates that the time for the SMO to return to work, either 10 minutes or less, is the agreement between the SMO and the Health Service that results in the SMO agreeing to be on Stand-by. This construction of s 2.1 of the 2021 Stand-by Policy is fortified when regard is had to the last sentence of that section which states: No standby payment is to be made if the agreement is for the medical officer to return to duty within 30 minutes and they can return to their normal place of residence. On call allowance is paid in those situations. [67] The 2021 Stand-by Policy then provides that an On Call Allowance is not payable for any day when a medical officer receives a Stand-by Allowance. [68] Having regard to the On Call provisions of MOCA 4 and MOCA 5, and to the relevant provisions of the Stand-by policies, my view is that while a SMO may be instructed to be On Call, for a SMO to be eligible to receive the Stand-by Allowance, the SMO must 34 The submissions of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees filed on 24 May 2022 ('the Union's final submissions'), paras. 28-29. 35 The Union's final submissions, para. 31. 36 The Department's final submissions, paras. 22-23. -- 18 of 30 -- 19 agree with the Health Service to return to work within 10 minutes or other agreed time. In doing so, the SMO is agreeing to be on Stand-by and, in those circumstances, is entitled to the Stand-by Allowance subject to the conditions contained in the Stand-by Policies. By reference to the text and context of the Stand-by policies, the agreement contemplated between a SMO and the relevant Health Service can only be an express, voluntary agreement. [69] The difference between a SMO being On Call compared to being on Stand-by, is that in respect of the latter, it comes about by an express, voluntary agreement between the SMO and the Health Service, whereas in respect of the former, the SMO is instructed to be available On Call. The parties' submissions [70] The Department referred to the Union's contention that the requisite agreement between SMOs and the Health Service - for the purposes of meeting the first condition for the payment of the Stand-by Allowance - was constituted by the Health Service rostering SMOs On Call in the evenings at the relevant Hospitals and those SMOs agreeing to work, and then working, those On Call shifts.37 [71] The Department then submitted that: • no such requisite agreement was reached because the agreement, as characterised by the Union, was an agreement to be On Call and was not an agreement to be on Stand-by; and • because no agreement has been reached between the six SMOs and the Health Service for the SMOs to be required to return to duty within 10 minutes, the SMOs were not entitled to the Stand-by Allowance.38 [72] The Union, in its final written submissions submitted: Agreement reached 27. The Applicant submits that when considering all of the factors outlined above - that is, the system of work and the way in which the doctors are rostered; and the clinical requirements that are in operation in their workplace (the Respondent's hospitals) - that there is an agreement between the WMHHS and the SMOs. 28. SMOs at the WMHHS Rural Hospitals were rostered, by WMHSS, in the evening to hold themselves available for on call. When they were rostered on call, they stay at Hospital provided accommodation and hold themselves available for duty . 29. Agreement between SMOs and WMHHS is constituted by WMHHS rostering SMOs on call in the evenings at the WMHHS Health Rural Hospitals and those SMOs agreeing to work and then working those on call shifts. 30. Furthermore, the SMOs respond to patient presentations overnight, as directed to by the employer's representatives (the nursing staff) and required by the acuity of the patients. 37 The Department's final submissions, para. 21. 38 The Department's final submissions, paras. 22-23. -- 19 of 30 -- 20 31. The clear requirement and expectation of the WMHSS was that, when on call overnight, the six SMOs hold themselves available to respond to Category 1 and 2 patients immediately/within 10 minutes, and that the SMOs stay in hospital accommodation to facilitate these response timeframes. The return to work would be triggered by communication from the employer's representatives, the nursing staff. The SMOs stayed in the hospital accommodation and presented to Category 1 and 2 patients overnight, within the clinical timeframes. There is clear agreement between the WMHHS and the SMOs.39 Did each of the six SMOs make the necessary agreement so as to be entitled to the Stand-by Allowance? Dr Ratcliffe [73] Dr Ratcliffe's evidence in chief was that she is employed by the Health Service, she lives in Brisbane and travels to Gatton and other Hospitals within the Health Service for work.40 [74] Since February 2016, Dr Ratcliffe has predominantly worked at the Gatton Hospital which, like the Laidley, Boonah and Esk Hospitals, has a 24-hour day, seven-day week, coverage for emergency and inpatient reviews.41 Dr Ratcliffe's predominant duty and responsibility, as an SMO working at the Gatton Hospital, is to review and provide a high standard of care to all patients who present at the Gatton Hospital seeking care.42 [75] Doctor Ratcliffe's evidence was that there is a considerable On Call component of her role which '… requires the relevant SMO to remain on site when not rostered or at accommodation provided by the Hospital.' Dr Ratcliffe's evidence was that this was because, as far as she was aware, '… no SMO who works at these facilities lives close enough to them to be able to return to duty upon presentation at hospital of a patient who requires the immediate attention of an SMO (or attention within ten or even thirty minutes).'43 [76] Dr Ratcliffe stated that: • when working full-time at the Gatton Hospital, she was rostered to work 40 hours per week which comprised of either eight or 10 hour shifts between the hours of 7.00 am and 9.30 pm, Monday to Sunday; • typically there would be two SMOs rostered on during the day, one on a morning shift and one on an afternoon shift; • the SMO who was rostered on the afternoon shift would '… then usually be rostered On Call until the commencement of the next day's morning shift; and • when she was on after hours coverage work staying on site at the Gatton Hospital, she was paid the On Call Allowance as provided by MOCA 4 and MOCA 5.44 39 Footnotes omitted. 40 Exhibit 1, para. 2. 41 Exhibit 1, paras. 1 and 14. 42 Exhibit 1, para. 10a). 43 Exhibit 1, para. 14. 44 Exhibit 1, paras. 12 and 16. -- 20 of 30 -- 21 [77] Dr Ratcliffe's further evidence was that: • when she is On Call at the Gatton Hospital, patients will present with life-threatening illnesses and, or in the alternative, injuries which require her immediate return to the Hospital; • in many of those cases, it is clinically unacceptable, unethical and negligent for her not to return to duty within a 10 minute window when called in after hours by nursing staff and that, in situations that are very urgent, when so contacted by the nursing staff, she is not given any handover information from the nursing staff because of the urgency of the situation; • as a Medical Officer with the Australian Health Practitioner Regulation Agency ('AHPRA'), she is expected to conduct herself in accordance with the ATS;45 and • Gatton Hospital regularly manages high acuity cases, namely ATS category 1 and 2, and the frequency of those presentations has increased over the past number of years such that it is now usual for a SMO to be called out every night at Gatton Hospital and her estimation is that at least one in two of those presentations would be or is a high acuity presentation such as chest pain.46 [78] The relevant provisions of the ATS were included in the first affidavit of Dr Carroll.47 Relevantly to the Union's claim, the ATS provides: • in respect of Category 1 (Red), described as 'Life Threatening Conditions', the patient must be seen immediately;48 and • in respect of Category 2 (Orange), described as 'Imminently life-threatening, time sensitive treatment needed, or Severe pain', the patient must be seen within 10 minutes.49 [79] Dr Carroll's evidence was that not only was she expected to comply with the ATS, she understood that '… Health Services have been directed to follow according to Health Service Directive #QD-HSD-025:2015-Patient Access to Emergency Care.'50 That Health Service Directive, also exhibited to Dr Carroll's affidavit, relevantly provides that in respect of patient access to emergency care, all Hospital and Health Services were to 45 Exhibit 1, para. 19. 46 Exhibit 1, para. 27. 47 Exhibit 9, exhibit 'DR-8'. 48 Of which the clinical indicators are: cardiac/respiratory arrest, immediate risk of airway, respiratory rate < 30/min, extreme respiratory distress, blood pressure less than 80 in an adult, severe shock in a child/infant, GCS less than 9, prolonged seizure, intravenous overdose and severe behavioural disorder. 49 Of which the clinical indicators are: airway risk (stridor), circulatory compromise (heart rate less than 50 or greater than 150, hypertension, severe blood loss, poor perfusion), chest pain likely cardiac related, suspected sepsis, febrile neutropenia, fever with lethargy, acute stroke, GCS less than 13, suspected testicular torsion and high risk history (toxic ingestion, venomous bite, pain suggesting PE, AAA, ectopic pregnancy. 50 Exhibit 9, para. 24a). -- 21 of 30 -- 22 ensure that patients are seen in a timely manner according to the clinical urgency, based on the ATS.51 [80] In cross-examination, Dr Ratcliffe stated that when she was On Call, she stayed in accommodation provided by the Gatton Hospital.52 [81] While Dr Ratcliffe gave evidence that she was rostered to be On Call, she gave no evidence that was voluntary, namely, that she volunteered to be On Call after completing an afternoon shift. [82] In any event, Dr Ratcliffe gave no evidence, either in her evidence in chief or in cross-examination, which tended to prove that she voluntarily reached agreement with the Health Service to be able to return to duty within 10 minutes or another agreed period of time. There was no evidence of Dr Ratcliffe and the Health Service expressly agreeing that Dr Ratcliffe would be on Stand-by as opposed to being instructed to be On Call. Dr Toro [83] Dr Toro worked at the Gatton Hospital as a SMO between January 2014 and January 2016 and then between January 2018 and 3 February 2020 when he resigned from the Health Service because '… I learnt they were not paying the overnight Standby rates correctly and because they refused to acknowledge this.' Dr Toro then stated he took up a position with the Darling Downs Hospital and Health Service which has '… paid Standby Allowance without question since I began there in April 2020.'53 [84] Dr Toro's evidence was that: • during his employment at the Gatton Hospital he believed he spent over 300 nights as the only medical officer on call, and that on every one of those nights it was essential that he reside away from his normal place of residence in Brisbane or Ipswich so that he would be able to attend emergency cases within the timeframe specified by the ATS and other relevant standards;54 and • it was his understanding that he was required to attend the Gatton Hospital within 10 minutes whenever he was On Call, and he always made sure that was the case over hundreds of nights of having to do so.55 [85] Dr Toro's evidence then was that: 5. The WMH policy document titled Rural Doctor Duties & Expectations-West Moreton Health, which I understand is also annexed to Dr Carroll's affidavit, states under the heading for on-call arrangements: "On call means you must be available to review ward or ED patients within the required timeframes. You are required to attend any patient requiring admission from ED on Q-Adds score and review requirements, Triage requirements or clinical concerns of the nursing staff." the on call doctor must make themselves available within the timeframes stipulated by Q-Adds, or the Australian Triage Scale, or the concerns 51 Exhibit 9, exhibit DR-9, page 1 of 5. 52 T 1-12, ll 36-37. 53 Exhibit 3, para. 2. 54 Exhibit 3, para. 3. 55 Exhibit 3, para. 4. -- 22 of 30 -- 23 of the nursing staff. There would be several cases each and every month where an overnight patient has a Triage or Q-Adds score that would require a medical officer to attend within 10 minutes or less. That is according to the WMH policy, as well as according to the National Safety and Quality Health Service Standards. [86] In cross-examination, Dr Toro's evidence was that when he was On Call at the Gatton Hospital, he was provided accommodation in the nursing quarters.56 [87] Again however, Dr Toro, like that of Dr Ratcliffe, gave no evidence which tended to prove that he voluntarily reached agreement with the Health Service to be able to return to duty within 10 minutes. There is no evidence of any express agreement between Dr Toro and the Health Service by which Dr Toro agreed to be on Stand-by as distinct to being instructed to be On Call. Indeed, the effect of Dr Toro's evidence in re-examination was that the reason he was On Call was because he had been rostered On Call.57 Dr Hatton [88] Dr Hatton was employed by the Health Service on a part-time basis between 4 February 2019 and 24 May 2020 and during that period she worked predominantly at the Esk Hospital, but she also worked at the Gatton, Laidley and Boonah Hospitals. During that time, Dr Hatton lived in Brisbane and travelled to those Hospitals for her shifts.58 [89] Dr Hatton's evidence was that at the commencement of her employment by the Health Service, it was stressed to her by Dr Danielle Allan, Acting Clinical Director of Rural Medical Services for the Health Service ('Dr Allan'), that she had to see patients within 10 minutes or sooner '… when recalled while On Call.'59 [90] Dr Hatton's further evidence was that it became obvious to her that the reason she was required to see patients within 10 minutes was because the nature of the patients which presented at the Hospitals could vary from patients with simple coughs and colds, or cuts and rashes, to more severe presentations including, for example, acute myocardial infarctions, septic shock, injuries caused by motor vehicle collisions and possible stroke patients, with the patients with the more severe presentations categorised as Category 1 or 2 under the ATS. Dr Hatton further stated that it would have been negligent for her not to have seen the Category 1 or 2 patients within at least 10 minutes, but '… Nevertheless, I was not paid a stand-by allowance for these on-call shifts.'60 [91] In her further affidavit, Dr Hatton stated that during her employment by the Health Service, Dr Allan gave her the direction that when she was On Call, she had to stay on hospital grounds and if a patient required medical review or intervention, that she (Dr Hatton) had to present within 10 minutes and that she was provided with hospital accommodation in the nursing quarters for that purpose.61 56 T 1-30, ll 4-10. 57 T 1-37, ll 2-11. 58 Exhibit 6, paras. 4-6. 59 Exhibit 6, para. 10. 60 Exhibit 6, paras. 11-13. 61 Exhibit 7, para. 5. -- 23 of 30 -- 24 [92] In cross-examination, Dr Hatton stated that she stayed in hospital accommodation '… to be able to provide the standby on-call that I was requested to.'62 [93] Dr Hatton also gave evidence that during the time she was employed by the Darling Downs Hospital and Health Service and worked at the Murgon and Cherbourg Hospitals (which she stated operated similarly to the relevant Hospitals) as the '… doctor on call', she was paid the Stand-by Allowance.63 [94] Dr Hatton gave no evidence which tended to prove that she voluntarily reached agreement with the Health Service to return to duty within 10 minutes. Therefore, Dr Hatton gave no evidence of an express agreement between her and the Health Service where she agreed to be on Stand-by as opposed to being instructed to be On Call. Dr Cooke [95] Dr Cooke lives in Brisbane, has been employed by the Health Service since 1 June 2019, and has worked at the Esk, Boonah, Laidley and Gatton Hospitals. Dr Cooke's evidence was that at these Hospitals, she typically works a ten and a half hour shift, being either 8.00 am to 6.30 pm or 12.00 noon to 10.30 pm, and that when working the afternoon shift, she is On Call until handover at 8.00 am the next morning.64 Dr Cooke's duties include managing and attending to patients presenting to the Emergency Department at each of these Hospitals.65 [96] In her affidavit, Dr Cooke stated: 10. I am required to see patients within ten minutes when recalled from the WMH Rural Hospitals was [sic] because it is a requirement as per agreed hospital policy for: a) ATS agreed triage system (which I understand is attached to Dominque Carrol's [sic] affidavit); and b) inpatient emergency response as required as part of hospital policy. 11. It would have been neglectful for me not to have seen these category 1 and 2 patients within at least ten minutes so I always responded within ten minutes were appropriate. Nevertheless, I was not paid a standby allowance for these on-call shifts. In recognition of this requirement SMOs are required to be within 10 minutes of a hospital including when they are on call. [97] Like Dr Hatton, Dr Cooke gave evidence that when she was employed by the Darling Downs Hospital and Health Service and worked at the Murgon and Cherbourg Hospitals as the doctor On Call, she was paid the Stand-by Allowance.66 [98] Dr Cooke's evidence in cross-examination was that she would stay in Hospital provided accommodation when she was doing an On Call shift.67 [99] Dr Cooke gave no evidence which tended to prove that she voluntarily reached agreement with the Health Service to return to duty within 10 minutes. As a consequence, Dr Cooke 62 T 1-41, ll 13-14. 63 Exhibit 6, paras. 15-16. 64 Exhibit 8, paras. 5, 6 and 8. 65 Exhibit 8, para. 7a). 66 Exhibit 8, paras. 12-13. 67 T 2-3, ll 27-28. -- 24 of 30 -- 25 gave no evidence of any express agreement between her and the Health Service where she agreed to be on Stand-by as opposed to being instructed to be On Call. Dr Carroll [100] Dr Carroll was employed as a SMO by the Health Service between November 2017 and 30 November 2020. During that period of time, Dr Carroll was based primarily at the Gatton Hospital, but she also worked at the Laidley and Boonah Hospitals.68 [101] Dr Carroll's evidence then was: 10. Upon my commencement at WMHHS, I received orientation during which I was directed [sic] Deb O'Brien - Director of Nursing of the facility and senior nursing staff that I would be required to stay on site when rostered overnight and hold myself available to return to duty in the event there was an emergency attendance at the Hospital. The requirement for attendance immediately or within 10 minutes as set out by the Australian [sic] Triage Scale requirements was later emailed to all SMO's at WMHHSHS [sic] by Danielle Allan in an email titled "Expectations of SMOs" (This is attached and referred to below). 11. During my employment I was rostered "On Call" approximately 1:2. That is that shifts were rostered 0730-1800 and 1100-2130. After 2130 the doctor was required to continue in the Emergency Department (ED) until all presenting patients had been seen and then remain on site to be available for all emergency presentations until 07:30am the following morning. There was a requirement that we attend immediately for all Cat 1 (resuscitation in progress) and Cat 2 (imminent life threatening emergency) presentations. On occasion the Queensland Ambulance Service (QAS) would phone ahead with emergencies and we were "pre-called" to be available on site to meet the ambulance with an emergency. Such cases have included respiratory arrest, heart attack, life threatening cardiac arrhythmias, ongoing seizures, hanging, or imminent births with women in labour. [102] Dr Carroll's further evidence is that: • during her employment with the Health Service, when she was rostered On Call, she was paid an On Call Allowance as provided for in MOCA 4 and MOCA 5;69 • at no time during her employment with the Health Service was she ever paid a Stand-by Allowance as provided for by the Stand-by policies;70 • during her employment with the Health Service, she lived in Brisbane;71 • as a medical practitioner registered with AHPRA, she was expected to comply with, amongst other applicable standards, the ATS;72 and • as far as she could recall, it has always been the case that where there has been a SMO On Call at one of the relevant Hospitals, where no other medical officer was rostered, the SMO needed to be available within 10 minutes to attend the Hospital.73 68 Exhibit 9, paras. 3 and 7. 69 Exhibit 9, para. 13. 70 Exhibit 9, para. 16. 71 Exhibit 9, para. 23. 72 Exhibit 9, para. 24a). 73 Exhibit 9, para. 63. -- 25 of 30 -- 26 [103] Dr Carroll gave no evidence that she reached a voluntary agreement with the Health Service to return to duty within 10 minutes, at any of the Hospitals operated by the Health Service, in which she worked. [104] Dr Carroll gave no evidence of any express agreement between her and the Health Service where she agreed to be on Stand-by. Dr Garraway [105] Dr Garraway did not give any evidence. Ms Rogers [105] Ms Rogers gave evidence about the rostering principles applicable in respect of nursing staff at the relevant Hospitals.74 Ms Rogers then stated that one SMO is rostered to be on call overnight and that it is a requirement that they attend the Hospital within 30 minutes if they were requested to attend.75 Ms Rogers' further evidence was that the timeframes specified in the ATS were not specific to treatment being provided by a SMO, but rather concerned treatment being provided by Hospital staff including nursing staff;76 and that in relation to ATS Category 1 and 2 patients who presented at a Hospital, such as one of the relevant Hospitals, once assessed by nursing staff, if necessary, the On Call SMO would be contacted for telephone advice or be requested to conduct an in-person review of the patient.77 [106] However, in cross-examination, the following exchange occurred: MS GOWDIE: And so those nurses escalating to the medical officers - - -?---Yep. - - - the usual practice in this overnight period - - -?---Yes. - - - is that they would phone the medical officers?---Yes. That’s correct. And generally, based on what you’ve said about what the accommodation is used for at the hospital - - -?---Yep. - - - those doctors are nearby?---Yes. If they are onsite, yes. When they receive that call?---Yep. And that those doctors then return, say for a cat 1 and 2, they then return to the hospital?---Yes. And in your – I guess you can’t really speak to your experience because you’re not doing those overnight shifts so much, but in those ones that you have done - - -?---Yeah. - - - do the doctors return within the ATS timeframes?---That’s stretching my memory because - - - Okay?--- - - - it’s been a little while. That’s okay. At times, they do. It depends whether they’re onsite or whether they’re, you know, in their own accommodation. So as for the ones that - the six doctors that we’re talking about, I guess they would return in that timeframe.78 74 Exhibit 11, paras. 4-7. 75 Exhibit 11, para. 8. 76 Exhibit 11, para. 12. 77 Exhibit 11, para. 13. 78 T 2-27, l 47 to T 2-28, l 25. -- 26 of 30 -- 27 [107] The evidence of Ms Rogers did not cause me to doubt the evidence given by Dr Ratcliffe, Dr Toro, Dr Hatton, Dr Cooke and Dr Carroll about their experiences when they were recalled to duty when rostered On Call at any of the relevant Hospitals. Dr Doshi [108] Dr Doshi's evidence was to the effect that, at the relevant Hospitals, where a SMO is On Call overnight, the understanding and expectation is that the SMO will, if required, attend the facility within 30 minutes at any point throughout the night.79 Dr Doshi's further evidence was that in respect of the relevant Hospitals, SMOs are not required to attend all ATS Category 1 or 2 patients that present overnight, within 30 minutes, in that they can prescribe medication over the telephone, provide instruction to the nursing team for medical treatment or provide tele-health style support to the treating nursing team.80 Dr Doshi also stated that should the SMO consider it clinically appropriate to attend the facility, '… it is widely expected that nursing staff present will provide care and necessary treatment to ensure patient safety for the full 30 minute period until the SMO arrives at the facility.81 [109] Dr Doshi, in cross examination, stated that he had never performed a clinical shift at any of the relevant Hospitals,82 however, he reaffirmed what he stated in his affidavit, namely, that SMOs working overnight at one of the relevant Hospitals were not required to attend Category 1 and 2 patients within 30 minutes having regard to the role that nursing and other professional staff may play in those circumstances.83 [110] The evidence of Dr Doshi, which, to be fair to him, seems to me to be based upon a theoretical approach to clinical practice at the relevant Hospitals, does not cause me to doubt the evidence given by Dr Ratcliffe, Dr Toro, Dr Hatton, Dr Cooke and Dr Carroll about their experiences being rostered On Call at any of the relevant Hospitals. Should the Commission make the declarations as sought by the Union? [111] I have set out, above, the evidence of Dr Ratcliffe, Dr Toro, Dr Hatton, Dr Cooke and Dr Carroll. I accept their evidence about the circumstances of them being rostered to be available On Call, the provision to them of overnight accommodation at the relevant Hospitals when rostered to be available On Call, and the circumstances in which they returned to duty, upon being contacted by the relevant nursing staff, to attend to Category 1 and 2 patients in the timeframes prescribed by the ATS. [112] The vital role played by these doctors in providing emergency treatment to patients, who attended the relevant Hospitals in the above circumstances, cannot be underestimated. [113] However, I have set out the construction of the Stand-by policies, as preserved and incorporated into MOCA 5, that provide for the conditions which compel the Health Service to pay the Stand-by Allowance to a SMO. In short, the Stand-by policies apply 79 Exhibit 12, para. 11. 80 Exhibit 12, para. 12 and see T 2-34, l 39 to T 2-35, l 2. 81 Exhibit 12, para. 13. 82 T 2-40, ll 35-44. 83 T 2-52, l 46 to T 2-58, l 14. -- 27 of 30 -- 28 where a SMO is rostered to be available On Call, but they then agree with the Health Service to be on Stand-by by agreeing that the time for return to duty is 10 minutes or other agreed time. There is no evidence before me which satisfies me that each of the six SMOs made the requisite voluntary agreement with the Health Service to be on Stand-by when they were instructed to be On Call between the end of the afternoon shift and the beginning of the next day shift. [114] The case of the Union proceeds on the basis that the necessary agreement between the relevant SMO and the Health Service, so that the Health Service is required to pay the SMO the Stand-by allowance pursuant to the applicable Stand-by policy, arises because of the rostering of the SMO to be available On Call such that, together with the provision of accommodation at the Hospital, those factors constitute the SMO's (implied) agreement by the SMO to be On Call and an (implied) agreement to be recalled to duty when required.84 [115] The Union further contends that the agreement that the SMO returns to duty within 10 minutes comes about because the SMOs are directed by the nursing staff to respond to patient presentations and that the time taken to so respond comes about because of the requirement and expectation that the SMOs will respond to patients within the timeframes prescribed by the ATS, namely, in respect of ATS Category 1 patients, to respond immediately, and in respect of ATS Category 2 patients, to respond within 10 minutes.85 [116] However, the practicality is that the SMOs are instructed by the Health Service to be On Call following the conclusion of the afternoon shift. While the SMO is holding him or herself out as available for duty, that is because they are instructed to do so. No voluntary agreement is involved between the SMO and the Health Service. [117] More importantly, having regard to the construction of the Stand-by policies, and on the evidence before me, there is no express agreement between the SMO to return to duty within 10 minutes. Rather, the fact that the SMOs, in the circumstances brought up by the facts of this case, returned to duty within 10 minutes was because of their personal commitment to the welfare of the patients who presented at the Hospitals, their professional obligation to comply with the timeframes contained in the ATS, and the provision of accommodation for them at the Hospital. No agreement of the kind required to compel the Health Service to pay an SMO the Stand-by allowance was made. Certainly, there is no evidence before me of such a voluntary agreement between any SMO and the Health Service. [118] In the circumstances, I am not satisfied that any of the six SMOs, at any relevant time, had an entitlement to the Stand-by Allowance. [119] There was some evidence that SMOs who performed work in the same circumstances in other rural hospitals in another Health Service were provided the Stand-by Allowance. There is not much that I can take from that evidence. This is because I do not know if the Stand-by Allowance, paid in those circumstances, was due to the strict application of the Stand-by policies or otherwise. 84 The Union's final submissions, paras. 28-29. 85 The Union's final submissions, paras. 30-31. -- 28 of 30 -- 29 [120] For these reasons, I decline to make the declarations sought by the Union. Conclusion [121] During the hearing, the Union, on a number of occasions, indicated that the case was specifically about the Health Service and the six SMOs.86 For the reasons I have given, it is the case that, on the evidence before me, there was no obligation on the part of the Health Service to pay the Stand-by Allowance to the SMOs who gave evidence. This is because there was no agreement between them and the Health Service to return to duty within 10 minutes. [122] Having said that, it does seem to me that despite the absence of such agreement, the SMOs who gave evidence were otherwise performing duties in the same way as if they had agreed with the relevant Health Service to be on Stand-by. [123] As best as I understand the evidence, this was because of a combination of factors including the location, size and nature of the relevant Hospitals, that there was no SMO rostered between 9.30 pm and 7.00 am at the relevant Hospitals and that SMOs were professionally obliged to urgently see high acuity patients who presented at those Hospitals, between the hours of 9.30 pm and 7.00 am, namely, to see ATS Category 1 patients immediately and to see ATS Category 2 patients within 10 minutes. Added to these factors was the personal commitment of each of the six SMOs to urgently treat the patients that presented at the Hospitals in those circumstances. [124] Other relevant factors were where the SMOs privately resided and the availability of overnight accommodation at the relevant Hospitals. That is to say, these combination of factors meant that, of the SMOs who gave evidence, while they were instructed to be On Call, they were working as if they were subject to an agreed Stand-by arrangement. [125] Whilst the circumstances did not give rise to an obligation on the part of the Health Service to pay the Stand-by Allowance, the circumstances were not, in my opinion, fair to the SMOs who gave evidence. [126] My role in this proceeding was not to arbitrate what was an industrially fair outcome in relation to the industrial matter before me. My role was to determine whether or not I should exercise my discretion to make the declarations sought by the Union in relation to the industrial matter before me. For the reasons I have given, I am not prepared to exercise discretion to make those declarations in the circumstances where the SMOs who gave evidence do not have a legal entitlement to the Stand-by Allowance. [127] On the evidence before me, Dr Ratcliffe and Dr Cooke are still employed by the Health Service. I am uncertain if the circumstances that have given rise to the complaints made by the six SMOs are current and still affect these two doctors or other SMOs who work in the same circumstances as the five SMOs who gave evidence. If they do, then those circumstances should be promptly addressed by the Department to ensure that a fairer outcome is provided to any affected SMO. 86 See for example T 1-18, ll 1-9 and T 1-35, ll 7-10. -- 29 of 30 -- 30 [128] However, despite what I have said above, for the reasons I have given, I decline to make the declarations sought by the Union. Order [129] I make the following order: The Applicant's amended application filed on 19 August 2021 is dismissed. -- 30 of 30 --