Fair Work Act 2009

s.739 - Dispute resolution

Dispute about any matters arising under the enterprise agreement - clause 21.5(a) - whether work assigned was reasonable with regard to doctor's skills and abilities.

• [1] This decision involves an application brought by the Australian Medical Association (Victoria) (Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Monash Health (Respondent).

• [2] The parties are covered by the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021 (the Agreement). The Agreement was approved by the Fair Work Commission (the Commission) on 31 July 2018. I note the Agreement expired on 31 December 2021 and that the dispute was lodged in August 2021 during the life of the Agreement. The Agreement applies to the Respondent and "(a) the Health Services (referred to in Schedule A) as employers, (b) all Doctors (as defined in subclause 3.1(i)) as employees; and (c) the Australian Salaried Medical Officers' Federation".[1]

• [3] The parties jointly submitted that the question for arbitration is:

"Has Monash Health complied with clause 21.5(a) of the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021, insofar as having regard to Dr Hum's skills and abilities, in directing Dr Hum on 11 August 2021 to work 3 sessions per week in the Community Care Team clinic (noting that Dr Hum does not dispute that the type and volume of work assigned to her was reasonable with regard to her capacity and availability to perform)?"

• [4] The Applicant submits that the answer to the question as posited above is "no" and contends that it was not reasonable for Monash Health to direct Dr Hum to perform work in the Community Care Team (CCT) clinic considering her "skills and abilities". The Respondent disagrees and submits that it complied with clause 21.5(a) of the Agreement. I note for completeness that there is no contest as to the Applicant's "capacity and availability". There is no dispute that Dr Hum commenced work with Monash Health as a fractional specialist in 2007 and briefly left to work in private practice between 2019 and March 2020.

• [5] The Applicant filed an application on 16 August 2021. The matter was listed for conference on 23 August 2021.

• [6] As the dispute was unable to be resolved at conference, it was listed for arbitration. The parties provided consent directions for the filing of submissions and witness statements and the Commission subsequently listed the matter for arbitration. The hearing took place on 22 February 2022 and 10 March 2022.

• [7] The parties provided a statement of agreed facts dated 7 January 2022 that contained annexures A-F and is reproduced below:

"(a) Dr Winsome Hum was relevantly first employed as a Locum Consultant Psychiatrist on a sessional basis (four sessions per week) within the Mental Health Program of Southern Health, the predecessor of Monash Health, pursuant to a signed letter of appointment from Southern Health, expressed to take effect on and from 29 June 2007 until 24 October 2007 (the Originating Letter at Annexure A).

(b) After the expiration of the initial period of employment pursuant to the Originating Letter, Dr Hum remained an employee of Southern Health working 24.50 hours per working week. The reasons for the continuation of this employment and the manner in which the employment was continued are not agreed facts. The nature of the employment during this period is not agreed.

(c) Effective 5 October 2011 Dr Hum entered into a contract as a Visiting Medical Officer - Middle South Consultant on a fractional basis (24.50 hours per working week) pursuant to a Visiting Medical Officer Employment Agreement dated 5 October 2011, expressed to take effect from 1 October 2011 until 1 October 2016 (the 2011 Contract at Annexure B).

(d) The 2011 Contract was to be read in conjunction with the AMA Southern Health Visiting Medical Officers' Certified Agreement 2002, the July 2006 Heads of Agreement, the 2009 Heads of Agreement and the Hospital Specialists and Medical Administrators Award 2002.

(e) After the 2011 Contract had reached its maximum term on 1 October 2016 Dr Hum remained an employee of Monash Health working 24.50 hours per working week. The reasons for the continuation of this employment and the manner in which the employment was continued are not agreed facts.

(f) Dr Hum also received a document titled 'Visiting Medical Officer Employment Agreement Updates' expressed to take effect from 1 October 2011 until 1 October 2016 (at Annexure C).

(g) On 2 July 2019 Dr Hum was requested to complete a Job Plan Template. A copy of the email chain is attached as Annexure D. Dr Hum provided a Job Plan Template in accordance with this request. It is not an agreed fact that this document constitutes a variation of the contract of employment.

(h) Dr Hum was requested to update her Job Plan Template and Dr Hum did so on 21 October 2019. A copy of the updated Job Plan Template is attached as Annexure E. It is not an agreed fact that this document constitutes a variation of the contract of employment.

(i) On 4 November 2019, Dr Hum signed a Credentialing and Defining Scope of Clinical Practice document (at Annexure F).

(j) Dr Hum is currently covered by the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021."

• [8] In summary, the issue in dispute requires me to interpret clause 21.5(a) of the Agreement and determine whether the August 2021 direction to Dr Hum, that she perform 0.3 of her 0.7 fractional allocation in the CCT clinic, was reasonable having regard to her skills and abilities.

• [9] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 11. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Applicant's Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

Principles of Interpretation of Enterprise Agreements

• [10] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri),[2] drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[3] The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),[4] has further distilled the principles. The starting point is the ordinary meaning of the words, read as a whole and in context.[5] The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.[6]

• [11] I adopt and apply the principles as cited above in this decision without restating them.

(i) means a medical practitioner employed by a Health Service as a Specialist

or Executive Specialist on a full-time or fractional basis; but

(ii) with respect to Dental Health Services Victoria, means only a Doctor

(l) Fractional Doctor means a Doctor engaged on a fractional basis in accordance with subclause 16.3.

(m) Full-time Doctor means a Doctor engaged on a Full-Time basis in accordance with subclause 16.2(a).

(o) Health Service means a public hospital or health service listed in Schedule A.

(s) Institution means any hospital, health service (whether or not listed in Schedule A) or benevolent home, community health centre, Society or Association registered pursuant to the Health Services Act.

(bb) Statutory Body means the Department of Health and Human Services (Victoria) and, formerly, the Department of Health (Victoria) and the Department of Human Services (Victoria).

20.1 The provisions of this clause are to be read in conjunction with clause 21 (Workload Management).

20.2 The Health Service must not roster or arrange work hours in a way that causes an excessive or unsafe work pattern to exist.

20.3 The obligation to work safe hours applies to both the Health Service and Doctors.

20.4 The National Code of Practice - Hours of Work, Shiftwork and Rostering for Hospital Doctors is a suitable framework under which to consider safe working hours issues.

21.1 The provisions of this clause are to be read in conjunction with clause 20 (Roster Design - Safe Hours of Work).

21.2 Where a Doctor believes that a Health Service requires the Doctor to perform work in a manner that is unsafe, the Doctor may first discuss the matter with the Health Service to resolve the issues. If no resolution can be found, the Doctor may utilise the Dispute Resolution Procedure set out in clause 11 of this Agreement. 21.3 Nothing in this clause restricts the Association from assisting a Doctor during discussions with the Health Service for the purpose of this clause or utilising the Dispute Resolution Procedure set out in clause 11 of this Agreement.

21.3 Nothing in this clause restricts the Association from assisting a Doctor during discussions with the Health Service for the purpose of this clause or utilising the Dispute Resolution Procedure set out in clause 11 of this Agreement.

(a) The Health Service is obliged by the OHS Act to provide a safe workplace. This includes ensuring that workloads are not unreasonable. It is recognised that managing workload is necessary to ensure a safe work environment and to ensure that the operational requirements of the Health Service are met

(a) The Health Service will ensure that the type and volume of work assigned to the Doctor is reasonable with regard to the Doctor's skills, abilities, capacity and availability to perform.

(b) In considering the work to be assigned to the Doctor, the Health Service must identify the level and type of administrative support available to the Doctor, and must ensure that appropriate levels of administrative support are provided.

(a) The Health Service and Doctor shall consult regularly regarding the Doctor's workload.

(a) A Doctor may request a workload review at any time. The purpose of the review is to identify whether the Doctor's workload is safe and reasonable. Where a review is requested, the Health Service and Doctor shall consult and set out the Doctor's current duties and responsibilities in writing including each of the following elements where relevant:

(i) Direct Public Patient Care and Related Activities - including ward rounds, outpatient clinics, pre-operative assessment, operating time, postoperative care, unit clinical meetings, inter-unit consultations, completion of operation reports, discharge summaries, case mix information and management of waiting lists.

(ii) Management Administrative Responsibilities - including roster preparation, budget documents, Health Service reports.

(iii) Clinical Research as required by the Health Service.

(iv) Practice in a Distant Location - including time taken to travel to and from the distant location.

(v) Clinical Support Time including Clinical Support Duties as defined at subclause 18.4.

(b) The Health Service and Doctor shall calculate the hours required to perform the tasks and responsibilities set out in writing. This includes taking into account that some aspects of the routine workload occur more frequently than others.

(c) The Health Service and Doctor shall review the responsibilities and duties and any amendment to the responsibilities and duties to ensure a safe and reasonable workload shall be recorded in writing.

(a) In the event of a dispute as to whether a workload is safe, clause 11 (Dispute Resolution) shall apply. Neither party will be prejudiced by any alteration to workload to ensure a safe workload before the dispute is resolved.

• [12] The Applicant relied on a comprehensive witness statement from Dr Hum dated 22 November 2021 and a statement in-reply dated 7 February 2022. The Respondent relied on a witness statement from Dr Vaidy Swaminathan dated 7 January 2022. The Applicant made a number of assertions as to the veracity of Dr Swaminathan's evidence and urged the Commission to reject the evidence as "unreliable"[7] and stated that Dr Swaminathan's witness statement was "intended to mislead and deceive."[8] I reject the assertion and observe that Dr Swaminathan impressed me as a forthright and candid witness who gave his evidence in a direct and cogent manner consistent with his witness statement.

• [13] The substance of the dispute is essentially one of construction. The background facts leading to the dispute are uncontroversial and are set out in the statement of agreed facts referred to above. In essence, the Applicant submits that, it was not reasonable, given Dr Hum's skills and abilities, for Monash Health to direct Dr Hum to work in the Community Care Team clinic for three sessions per week from 11 August 2021 and that in doing so it has not complied with Clause 25.1 (a) of the Agreement. The Respondent disagrees.

• [14] For the sake of efficiency, I have distilled below the key submissions advanced by each party.

• • Monash Health has accredited Dr Hum to practice medicine in the field of adult psychiatry.[9]

• • The accreditation process did not involve any input from Dr Hum.[10]

• • The question for arbitration does not require any consideration of how and why Monash Health accredited Dr Hum.[11]

• The CCT operates very different from the Consultant Liaison field (CL).

• • CL psychiatry is a recognised speciality within psychiatry.[12]

• • Dr Hum's skills and abilities have been particularly focussed over a 15 speciality of CL psychiatry and her skills and abilities in CCT are limited.[13]

• The interpretation of clause 21.5(a) of the Agreement is to be done through the application in the Berri decision and in particular with regard to the comments of the full bench at paragraph 114.

• • "Reasonable" is also used in the Agreement to identify the notional "reasonable person"[14]

• • The word "reasonable" is not a defined term in the Agreement and would, unless otherwise indicated, be given its ordinary meaning. Clause 51.2(c)(ii) defines 'reasonable adjustments' as having the same meaning as in the Equal Opportunity Act. Clause 14.5 refers to "reasonable business grounds as described in the NES."[15]

• • Tests for reasonableness are applied by courts and tribunals in a wide variety of circumstances. Two common areas where a test of reasonableness is applied is in relation to workers compensation matters and discrimination matters. The tests developed by the case law in these areas provide a relevant guide to applying a test of reasonableness for the purposes of clause 21.5(a) of the Agreement.[16]

• • The approach to be adopted by the Commission in relation to applying a test of reasonableness as required by cause 21.5(a) of the Agreement is as follows:[17]

• the test of reasonableness is objective
• the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience
• the question is not whether the decision to require Dr Hum to work in CCT was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case
• the Commission must weigh all relevant factors
• it is at the individual employee level that the test of reasonableness is to be assessed
• the requirement for reasonableness is directed to the circumstances of an individual employee.

• • Dr Hum sought employment with Monash Health as a CL Psychiatrist and it was in this specialty that Dr Hum was employed by Monash Health and it was in this specialty that Dr Hum has worked for Monash Health for 14 years since 2007.[18]

• • The fact that Dr Hum has made her 14 year career in CL Psychiatry and the fact that 15 or more years after completing her general psychiatry training Dr Hum has retained only a theoretical knowledge of CCT Psychiatry is of very high importance when considering the reasonableness of the Direction.[19]

• • The very substantial and real differences between CL Psychiatry and CCT Psychiatry including both the setting in which each is practiced and the role of the Psychiatrist in each would of itself suggest in very strong terms that it would be rare, if ever, reasonable to direct a Psychiatrist with 14 years practice only in CL Psychiatry to work in CCT Psychiatry.[20]

• • CL Psychiatry is an internationally and nationally recognised Specialty in Psychiatry and that Dr Hum was employed as a CL Psychiatrist to fill a CL Psychiatry position and that she has worked for 14 years as a CL Psychiatrist.[21]

• • The Direction has all of the hallmarks of a power play in which Monash Health have simply given and repeated the Direction because they can. The Direction appears to be even less than a matter of convenience. The Direction is an exercise in power dressed up as reasonable management action. Seen for what it is the Direction lacks any sense of reasonableness.[22]

• • The Direction is inconsistent with Monash Health's own values to provide quality care to its patients.[23]

• • As there will be an increase in EFT for CL psychiatry, the direction is "unnecessary and futile."[24]

• • The fact that Dr Hum was permitted to observe other Psychiatrists in CCT before Dr Hum was required to exercise the full responsibilities of being a Psychiatrist in CCT cannot make Dr Hum a competently skilled Psychiatrist in CCT.[25]

• • That a requirement for Dr Hum to work in CCT is unsafe for patients in CCT.[26]

• • That Dr Swaminathan's witness statement is intended to mislead and deceive.[27]

• • That the fact that Dr Hum is credentialed by Monash Health to work in "adult psychiatry" is not supported and Dr Hum sought to have her credentialing amended to reflect her areas of work.[28]

• • The assertion that the fundamental skills and abilities of a psychiatrist "are the same in a CL, ECATT/EPS and CCT setting"[29] is refuted.

• • That the management plans in CCT are very different from the management plans in CL/EPS and having the ability to complete a management plan does not equate to having the skills and abilities to perform all aspects of the role of a CCT Psychiatrist.[30]

• • That the fact that Dr Hum worked as a registrar in continuing care does not mean she has the kills and abilities to work in CCT.[31] In addition, the fact that she worked in private practice, which the Respondent indicates is similar to practicing in CCT, does not mean Dr Hum has the required skills and abilities.[32]

• • That allowing Dr Hum to observe a CCT psychiatrist before working in the CCT is not enough to for Dr Hum to provide care to CCT patients safely considering her professional obligations.[33]

• • That the Respondent's reliance on "core skills, or fundamental skills, or theoretical knowledge or even past work some 15 years ago" to determine whether Dr Hum has the requisite "skills and abilities" is insufficient and that the question can only be answered by an objective assessment of Dr Hum's current actual skills and abilities.[34]

• [16] The Respondent contends that the question to be arbitrated should be answered "yes" and in support of this position advances the following arguments:

• • That the principles laid out in Skene and Berri are to be used when interpreting cl 21.5(a) of the Agreement.[35]

• That when assessing whether a direction is reasonable:

(a) An analysis of the merits of the direction or whether it was the most appropriate or preferable course of action is not required.

(b) reasonableness is a question of fact and balance, and may require

consideration of a range of relevant circumstances, including:

• • The terms "skills" and "abilities" are undefined in the Agreement and therefore take their ordinary meaning.[37]

• Skill' means 'an ability to do an activity or job well, especially because you have practised it'. 'Ability' means 'the physical or mental power or skill needed to do something'.

• • That an employee's particular interest or expertise in one field of work is not necessarily relevant to the question of whether they have the skills and ability to perform work competently in another field of work.[38]

• • That an employee has a particular interest or desire to work in a certain other field of work is also immaterial.[39]

• • That where Dr Hum feels she is best deployed is not the question to be determined, rather that the direction was reasonable - not optimal - having regard to those skills and abilities.[40]

• • That clause 21.5(a) of the Agreement must be read in conjunction with clause 20 (regarding Roster design - safe hours of work) and clause 21.5(b) (regarding administrative support) of the Agreement such that clause 21.5(a) should be interpreted as the employer must ensure that the work the employee is assigned to perform is safe with regard to their workload, as opposed to some form of qualitative requirement that restricts an employer's general discretion to direct employees to perform work which they are suitably qualified to perform.[41]

• A CCT psychiatrist's role consists of the following three main components:

"(a) The consultant psychiatrist attends on and reviews patients;

(b) The consultant psychiatrist is a member of a multi-disciplinary team that meets to discuss the case management of patients and, at these meetings, the consultant psychiatrist is responsible for the overall care of the patient and signs off on the management plan and any decision to discharge the patient from care in consultation with the multi-disciplinary team; and

(c) The consultant psychiatrist supervises a junior medical officer on a weekly basis, including discussing cases with them."[42]

• Dr Hum has the skills and abilities to perform duties in the CCT clinic because:

"(a) First, Dr Hum is a fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP). She has the theoretical and practical knowledge to perform the duties of a CCT consultant psychiatrist. There is no additional qualification or specialisation other than fellowship of RANZCP that is required to perform work in a CCT clinic.

(b) Second, Dr Hum's Credentialing and Defining Scope of Clinical Practice form, which is annexed to Dr Swaminathan's witness statement, describes her areas of work/specialties as including adult psychiatry. Working in CCT is work as an adult psychiatrist. Accordingly, CCT falls within her scope of practice.

(c) Third, the fundamental elements of a CCT consultant psychiatrist's role are to assess the patient, conduct an interview, diagnose the patient, plan treatment and execute treatment (often by prescribing medication and other treatments). These fundamental skills and abilities are the same in a CL, ECATT/EPS and CCT setting. That Dr Hum can perform the role of a consultant psychiatrist in both CL and ECATT/EPS indicates that she also has the skills and ability to perform these functions in a CCT setting.

(d) Fourth, the evidence in Dr Swaminathan's witness statement suggests that a distinguishing feature of a consultant psychiatrist's role in a CCT clinic is that the management plan for CCT patients can sometimes be more detailed, because the consultant will manage the patient over a longer period of time. However, it is submitted that the consultant psychiatrist applies the same or similar skills and abilities to complete such a management plan as they apply in CL and ECATT.

(e) Fifth, Dr Hum's contract of employment, which is annexed to the Statement of Agreed Facts, states that her services include 'be[ing] responsible for the provision of clinical management and treatment to all patients of the Mental Health Program as determined by Southern Health [now known as Monash Health]'. Monash Health submits that this clearly includes all consultant psychiatry services within the Mental Health Program, including those delivered in a CCT setting.

(f) Sixth, Dr Hum has previously worked in 'Continuing Care' as a Psychiatry Registrar at Waverley Community Mental Health Services, Eastern Health in 2005, as well as in Continuing Care at Southern Community Mental Health Services, Moorabbin (among other work) in 1999 to 2004. 'Continuing Care' is a form of CCT.

(g) Seventh, Dr Hum performed work in a private practice in the past where she would have received and treated patients in a setting more akin to the CCT clinic."[43]

• • The fact that Dr Hum previously worked in CL psychiatry indicates that she has the "experience, and an interest or desire in working in CL, but it has no bearing on whether she has the skills and abilities to perform work in a CCT clinic."[44]

• Dr Hum's theoretical knowledge of CCT is supplemented by her practical skills and abilities from working in CL and ECATT/EPS, which are largely transferrable to work in a CCT clinic.

• • Monash Health offered Dr Hum a "graduated plan" where she can observe other psychiatrists working in the CCT clinic.[45]

• • While type of work can vary, the core skills and abilities of a consultant psychiatrist in CCT, CL and ECATT are the same.[46]

• • Dr Hum's alleged proficiency in CL psychiatry would likely ensure that she was competent to perform the fundamental aspects of CCT psychiatry. At worst, this factor is immaterial to Dr Hum's skill and ability to perform CCT psychiatry.[47]

• • The reason Monash Health directed Dr Hum to work in CCT is because Dr Hum has a medical condition that makes her especially vulnerable to COVID-19 and the nature of ECATT/EPS and CL work means it cannot be performed efficiently from home. By contrast, CCT work can be efficiently and effectively performed using telehealth services.[48]

• • Whether CL psychiatry was understaffed at the time of the direction is immaterial to whether Dr Hum contains the skills and abilities to perform work in CCT. In any event, the fact that Dr Hum cannot work on-site "compromises" the efficiency" of the team.[49]

• • Monash Health rejects the Applicant's assertion that the Direction to perform work in the CCT is a 'power play'[50]

• • The test is not whether the direction was the "best or optimal" direction rather the proper test is whether the Direction was reasonable with regard to the skills and abilities of Dr Hum.[51]

• [17] In accordance with the principles earlier stated, the construction of the agreement begins with a consideration of the "ordinary meaning of the words, read as a whole and in context."[52] Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of clause 21.5 in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context. The interpretative task also requires a consideration of the "language of the particular agreement, understood in the light of its industrial context and purpose." [53] It is also accepted that "a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."[54] There is no real contest between the parties as to the approach to the interpretation of the terms of an enterprise agreement.

• [18] Given the agreed question for arbitration, the dispute between the parties is of narrow compass. Clause 21.5 of the Agreement is headed "Assignment of work" and is contained within clause 21 titled "Workload management and review". It requires the Respondent to ensure that the type and volume of work assigned to a doctor is "reasonable" with regard to the doctor's "skills and abilities' as well as a doctor's "capacity and availability", noting that there is no dispute as to Dr Hum's capacity and availability in this matter. Clause 21.1 provides that the clause is be read in conjunction with clause 20 titled "Roster design/safe hours of work" and clause 21.5(b) that deals with administrative support. It is uncontroversial to observe that clause 21.5 deals broadly with workload management and safe workload.

• [19] For the reasons set out below, I agree with the Respondent, that it complied with Clause 21.5(a). There is no contest between the parties that the direction the subject of the dispute was given to Dr Hum in or about 11 August 2021 (the 2021 direction) requiring her to be "redeployed from her 3 EPS sessions to 3 CCT sessions per week."[55] In effect, Dr Hum's 0.7 Equivalent Full Time (EFT) fractional work allocation would be distributed with 0.4 being performed in CL (unchanged by the 2021 direction) and 0.3 being performed in CCT. It is worth noting at this juncture that neither party sought to suggest that the words of clause 21.5(a) are ambiguous. It is not in contest that the words "skills and abilities" are not defined in the Agreement and take their ordinary meaning. For completeness, I note the Macquarie Dictionary meaning for the words "skill" and "ability" below:

1. the ability that comes from knowledge, practice, aptitude, etc., to do something well.

2. competent excellence in performance; expertness; dexterity.

1. the power or capacity that is in a living thing which makes it possible for them to do something.

2. competence in any occupation or field of action, from the possession of capacity, skill, means, or other qualification.

3. (plural) talents; mental gifts or endowments."

• [20] As to the meaning of the word "reasonable", the parties agree that the term is not defined in the Agreement and that it should be given its ordinary meaning.[56]

• [21] The parties made submissions and relied on a number of authorities as to the relevant test for determining the meaning of the word "reasonable" and I have considered these when applying the relevant principles. In CFMEU v Glencore Mt Owen Pty Ltd,[57] Deputy President Saunders helpfully set out the principles as to the test of reasonableness as follows:

[8] The test of whether a direction is lawful and reasonable was stated by Dixon J in R v Darling Island Stevedoring and Lighthouse Ltd; Ex parte Halliday and Sullivan[58] in these terms:

"But the award could not safely, or, at all events, fairly impose upon the employees an obligation to obey all instructions given by employers...Some qualification or restriction was necessary. Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable...But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case the award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."

[9] In Woolworth Ltd v Brown[59] a Full Bench of the Commission observed as follows:

"In the modern era employers face an often-bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer's compliance with its obligations and duties. (at [24])

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT case, albeit in a somewhat different context, it is not the role of the Commission 'to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.'" (at [35])

[10] In Briggs v AWH[60] the Full Bench relevantly said (at [8]):

"The determination of whether an employer's direction was a reasonable one ... does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with "best practice", or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan."

[11] Whether a direction is reasonable is essentially a question of fact and balance."[61]

• [22] I have applied the principles set out above when coming to my decision in this matter. For completeness I note that the Applicant states that the test for reasonableness applied in the above cases "is wrong in the present matter ... [and] is trying to lead the Commission away from a focus on the terms of the enterprise agreement".[62] During the course of the final day of hearing, the Applicant further stated that any difference in the position of the parties as to the test for reasonableness focuses on the onus that each party bears in proving the direction was reasonable but that ultimately, both parties are required to prove their respective cases in order for the Commission to objectively determine the reasonableness of the August 2021 direction. The Respondent submits that it is appropriate to apply the test of reasonableness considered in cases dealing with "an employer's common law right to issue lawful and reasonable directions to employees"[63] as opposed to the authorities cited by the Applicant that focus on discrimination and workers' compensation matters. I agree with the Respondent that "the statutory context and purpose of the relevant provisions of such laws is different, and the meaning and application of the concept of 'reasonableness' in the context of those laws may be influenced by their particular beneficial and remedial purpose."[64]

• [23] Evidence was led by the parties as to Dr Hum's skills and abilities by reference to both her qualifications and experience, both during her time with the Respondent and the preceding period. I note that Dr Hum is an eminently qualified and experienced professional who was employed as a consultant psychiatrist in accordance with a contract of employment as a Visiting Medical Officer.[65]

• [24] As stated above, there is no contest that Dr Hum commenced employment with the Respondent in 2007. The letter of appointment, tendered in evidence, states that she was to be engaged as a sessional "consultant physiatrist" commencing 29 June 2007.[66] Also in evidence is an Employment Agreement (the 2011 employment agreement) entered into by Dr Hum and Southern Health (as the Respondent was then known) in October 2011, said to be for a period of 5 years describing Dr Hum as a Visiting Medical Officer providing services "as directed by Southern Health and as described in Schedule 1 of this agreement."[67] Relevantly, Schedule 1 states that the duties of Dr Hum will include the provision of "clinical management and treatment to all patients of the Mental Health Department (defined at schedule 1 as the hospital/department/program; Southern Health Mental health) as determined by Southern Health." Schedule 4 of the 2011 Employment Agreement states that the scope of clinical practice is defined in accordance with the "the usual practice of the Officer as determined by the Executive Director Medical Services in consultation with the Medical Executive Credentialing/ Scope of Practice Sub-Committee."

• [25] Also in evidence, is a document titled Visiting Medical Officer Employment Agreement Updates which is expressed to take effect from 1 October 2011 until 1 October 2016. (The updated 2011 Employment Agreement)[68]. At the hearing, it was confirmed that the updated 2011 Employment Agreement is the most recent document setting out the terms of Dr Hum's engagement with the Respondent.[69] Relevantly clause 2.2 of the updated 2011 Employment Agreement states that Dr Hum "will provide the Services by undertaking the duties/responsibilities and exercise the powers assigned to you as directed by Southern Health and as described in Schedule 1 of this Agreement."[70] Schedule 1 is headed "services" and describes the hospital/department/hospital as "Southern Health - Mental Health Program" and states that Dr Hum's duties will include being "responsible for the provision of clinical management and treatment to all patients of the Mental Health Program as determined by Southern Health" and "provide care to non-inpatients attending unit outpatient clinics as required."

• [26] I agree with the Respondent that the written terms of Dr Hum's engagement as set out above, support a conclusion that Dr Hum was engaged by the Respondent to provide clinical management and treatment to all patients of the Respondent's mental health program as determined by the Respondent. I note that although Dr Hum described her role as "consultation liaison psychiatry and emergency psychiatric services", during cross examination Dr Hum accepted that her "employment is to provide clinical management and treatment to all patients of the mental health program as determined by Southern Health".[71]

• [27] Dr Hum does not seriously dispute the assertion but rather, points to her extensive and current practical experience in CL and her lack of current practical experience in CCT as the basis of her assertion that the answer to the question posed for arbitration is "no".

• [28] The Respondent also points to the Credentialing and Defining Scope of Clinical Practice document (the 2019 credentialing document) dated November 2019, to support its argument that Dr Hum has the skills and abilities to perform the role of an adult psychiatrist. Dr Hum refutes the reliance on the document on the basis that she understood the document "to just pertain to the areas that I've been working in since 2007, that is, the consultation liaison psychiatry and emergency psychiatric services" and that she "asked for it to be amended, in my annual performance review which was cancelled last year."[72] I have no reason to doubt Dr Hum's evidence as to the credentialing document in so far as it relates to her understanding that the document pertained to her areas of practice since 2007. There is insufficient material before me to make any meaningful findings as to any requests made by her to have the document amended. That said, I observe that it is apparent from the face of the document that Dr Hum is AHPRA registered, a fellow of the Royal Australian and New Zealand College of Psychiatry (RANZP) and her position/title is described as a consultant psychiatrist. I have also had regard to the communications between the parties leading up to the filing of the application before me and the various documents in evidence relating to the terms of Dr Hum's engagement which in my view sit comfortably with my overall finding in this this matter.

• [29] The parties also led evidence as to the differences both as to qualification and scope of practise between CL and CCT. Implicit in the Applicant's case is the assertion that the areas of practice are different as to the skills and abilities required to perform the roles and that Dr Hum does not have the current practical skills and abilities to perform in CCT. Despite this, the Applicant concedes that the practise of CL does not require additional qualifications and as to the issue of dispensing medicines, Dr Hum states that she has "the qualifications to dispense medication in both CL and CCT settings."[73]

• [30] Further Dr Hum stated that the "settings" are very different, that "the patients that present in consultation liaison psychiatry are quite different from the ones that present to the continuing care team"[74] and patients in CCT are "often treatment resistant", "don't often respond to just one medication" and whose treatment involves "complex regimes" not required in the CL setting.[75] Dr Hum also points to the formulation of appropriate management plans for patient care and states that she "would not be able to formulate an appropriate and safe management plan for that profile of patients presenting to the continuing care team."[76]

• [31] Dr Hum gives her assessment on the role of a psychiatrist in CL and CCT and the differences between CL and CCT as follows:

"50. The presentations of the patients referred ... by medical/surgical specialists in the medical setting of a general hospital are not generally the presentations referred to or managed in a general psychiatry outpatient clinic such as a continuing care team (CCT).

51. The role and work of a CL/EPS Psychiatrist is distinct from the role and work as a psychiatrist working in a general psychiatry clinic. The CL Psychiatrist requires maintenance of general medicine knowledge to adequately communicate with medical colleagues, to review investigations and results of tests and recommend any additional investigations/procedures to exclude any organic causes for the patient's presentation. Involvement of the CL/EPS psychiatrist can be a one off assessment or for a short period of time as opposed to the long-term care of case managed chronic psychiatric patients (some who are treatment resistant/and or on complex psychotropic regimes) and many who require treatment as involuntary patients under the Mental Health Act) managed in a CCT setting mostly referred by a psychiatric triage service, acute inpatient psychiatric units, crisis and treatment teams (CATT), following a presentation to ED after a psychiatric assessment or GP's in the community.

53. The general medical context of CL Psychiatry and aspects of Emergency Psychiatry practice means that psychiatric presentations in these settings differs from that of general psychiatry practice within a CCT setting."[77]

• [32] As to the significance of the differences between CL and CCT, I prefer the evidence of Dr Swaminathan, who states in unequivocal terms that all the psychiatrists in the adult psychiatry programme do work across and are expected to work across the Respondent's mental health programme which would include CL and CCT. Further Dr Swaminathan gave evidence, that I have accepted, that:

"In all three roles (CL, ECATT/EPS and CCT), the fundamental elements of the consultant psychiatrist's role are the same: they conduct an interview, assess the patient, diagnose the patient, plan treatment and execute treatment (often by prescribing medication and/or recommending psychological and social occupational therapies)."[78]

• [33] Dr Swaminathan also gave evidence as to his view of Dr Hum's skills and abilities and expressed confidence that "that she can actually do the job. That's why I assigned her the job in the first place"[79]. I note Dr Swaminathan's observations that Dr Hum has an "interest in CL psychiatry"[80] and that the Respondent supported psychiatrists developing and extending their interests in a sub-speciality, but nonetheless expects all psychiatrists to be on call to deal with patients in any setting and age group.[81]

• [34] It is worth noting at this juncture that there was some contest between the parties during the course of the hearing as to whether it was appropriate to characterise Dr Hum as an "adult" psychiatrist. The Applicant does not dispute that she was "a trained consultant in psychiatry"[82] and whether she was an adult psychiatrist, does not, in my view, seriously advance either party's position.

• [35] There is no contest that Dr Hum, has met the entry level requirements for the role of consultant psychiatrist. Further, Dr Hum concedes that "the basic skills of interviewing, assessment, diagnosis and formulation of a management plan apply across all areas of psychiatric work" [83] and that she has the "theoretical knowledge"[84] to perform in CCT.

• [36] The Applicant states that although she has the theoretical skills, she lacks the "current practical" skills to perform CCT. The crux of this argument appears to rest in large part on Dr Hum's assertion that the differences between the practice of CL and CCT are significant such that her extensive experience in CL and little, if any current experience in CCT, render her "current" skills and abilities in CCT nugatory. I have noted Dr Hum's evidence as to the differences between CL and CCT as they relate to the "setting", the patient profile, the medication requirements and the preparation and conduct of management care plans amongst others. Although Dr Hum and the Applicant sought to amplify the differences in the practice of CL and CCT, as stated above I prefer the view of Dr Swaminathan that the basic psychiatric skills are the same and apply interchangeably across the Respondent's areas of practice, including the areas of CL and CCT.[85]

• [37] There is no dispute that Dr Hum was offered a "refresher plan" and additional support to perform in CCT, including allowing Dr Hum to observe the clinical lead psychiatrist in CCT interact with patients and their families,[86] where Dr Hum "could first observe other consultant psychiatrists interacting with patients before performing work on [her] own."[87] Given the above, it is difficult to accept Dr Hum's assertion that these measures "would not adequately equip [her] to work safely, efficiently, providing care in CCT"[88] as the efficacy of these measures has not been tested.

• [38] I have considered the matters raised by Dr Hum and acknowledge her concerns about the level of her current practical skills in CCT. Given my findings as to the question posed for arbitration, I observe that there may be some utility in the Applicant exploring with the Respondent any additional measures available, such as training to support Dr Hum's transition to CCT.

• [39] For the reasons above, in my view, the answer to the question posed is "yes", Monash Health has complied with Clause 21.5(a) of the Agreement insofar as the August 2021 direction was reasonable with regard to Dr Hum's skills and abilities. Given my comments at paragraph 38 above, if the parties require the assistance of the Commission they should contact my Chambers at their convenience.

10:00am, 22 February 2022, Melbourne, by Microsoft Teams.

10:00am, 10 March 2022, Melbourne, by Microsoft Teams.

[1] AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021, clause 4.1.

[2] [2017] FWCFB 3005, [114].

[3] Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [19] - [40].

[4] [2018] FCAFC 131, [197].

[5] Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] HCA 34; [2017] 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.

[6] Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41].

[7] Applicant's Reply Submissions, 7 February 2022, [23].

[9] Applicant's outline of submissions, 22 November 2021, [8].

[25] Applicant's Reply Submissions, 7 February 2022, [14].

[35] Respondent's Outline of Submissions, 7 January 2022, [9].

[52] WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].

[53] WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J).

[54] WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J).

[55] Annexure VS 9, Witness Statement of Dr Swaminathan, 7 January 2022.

[56] Applicant's outline of submissions, 22 November 2021, [28].

[57] [2015] FWC 7752, [8] - [11].

[58] [1938] HCA 44; (1938) 60 CLR 601 at 621-622.

[59] (2005) 145 IR 285.

[60] (2013) IR 231 159.

[61] McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 30C.

[62] Applicant Submissions in-reply, 7 February 2022 [1-5].

[63] Respondent's Outline of Submissions, 7 January 2022, [11].

[65] Annexure B - Agreed Statement of Facts, Visiting Medical Officer Employment Agreement, 5 October 2011.

[66] Annexure A - Agreed Statement of Facts, Letter from Southern Health to Dr Hum 29 June 2007.

[67] Annexure B - Agreed Statement of Facts, Visiting Medical Officer Employment Agreement, 5 October 2011.

[68] Annexure C - Agreed Statement of Facts, Visiting Medical Officer Employment Agreement Updates, January 2013.

[69] Transcript of proceedings, 22 February 2022, PN 204.

[70] Annexure C - Agreed Statement of Facts, Visiting Medical Officer Employment Agreement Updates, January 2013.

[77] Witness statement Dr Hum, 22 November 2021, [50 - 53].

[78] Witness Statement of Dr Swaminathan, 7 January 2022, [60.3].

[82] Applicant's Final Submissions, 8 March 2022, [8].

[84] Witness statement Dr Hum, 22 November 2021, [52] & Applicant Submissions in-reply, 7 February 2022 [32].

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