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[50]
[2022] FWCFB 82
General information, not legal advice.
Fair Work Commission (Full Bench)
2022-05-26
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2022] FWC 684 of Commissioner Cirkovic at Melbourne on 28 March 2022 in matter number C2021/4795
[1] AMA (Victoria) Ltd (the AMA) has appealed a decision made by Commissioner Cirkovic on 28 March 2022[1] in resolution of a dispute arising under the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021[2] (Agreement). The dispute concerned whether Monash Health, a public health service in Victoria, acted in compliance with clause 21.5(a) of the Agreement when, on 11 August 2021, it directed Dr Winsome Hum, a psychiatrist employed by Monash Health, to perform 0.3 of her 0.7 fractional employment in the Community Care Team (CCT) clinic.
[2] Clause 21.5 of the Agreement provides:
(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.
[3] Dr Hum regards herself as a specialist in Consultant Liaison (CL) psychiatry. Prior to the 11 August 2021 direction, her duties with Monash Health were in CL psychiatry and/or what is now known as the Emergency Psychiatric Service (EPS). In the proceedings below, although it was not in contest that Dr Hum had the capacity and availability to perform CCT psychiatry, the AMA contended on her behalf that she did not have the skills or abilities to do so and, as a consequence, that the direction for her to perform work in the CCT clinic was not reasonable and in contravention of clause 21.5(a).
[4] The Commissioner's determination was that Monash Health had complied with clause 21.5(a) insofar as the direction for Dr Hum to perform CCT clinic work was concerned. The AMA, on Dr Hum's behalf, seeks to appeal that determination on ten grounds specified in its notice of appeal.
[5] The Commissioner's decision set out the agreed question for determination, which was:
"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)?"
[6] The decision then set out the background to the matter, including the text of an agreed statement of facts, and summarised the principles concerning the interpretation of enterprise agreements in a non-controversial way. The Commissioner referred to the evidence given by Dr Hum and by Dr Vaidy Swaminathan on behalf of Monash Health and, in relation to the latter, rejected a submission made by the AMA concerning his credit and said 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".[3] The Commissioner then characterised the dispute as being "essentially one of construction" and said that the background facts leading to the dispute were uncontroversial and as set out in the statement of agreed facts.[4]
[7] After summarising the parties' submissions, the Commissioner turned to the consideration of the agreed question and said that the dispute between the parties was of narrow compass.[5] The Commissioner noted that neither party sought to suggest that the words of clause 21.5(a) were ambiguous and that it was not in contest that the words "skills and abilities" in the provision took their ordinary meaning, and quoted a dictionary definition of these words.[6]
"[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'. 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' 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'."
[9] The Commissioner next dealt with the evidence, including the evidence given by Dr Hum and Dr Swaminathan and the documentary evidence, and made the following findings:
(1) 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.[9]
(2) The written terms of Dr Hum's engagement support a conclusion that Dr Hum was engaged by Monash Health to provide clinical management and treatment to all patients of its mental health program as determined by Monash Health, and this was accepted by Dr Hum.[10]
(3) Dr Hum is registered with the Australian Health Practitioner Regulation Agency (AHPRA), is a fellow of the Royal Australian and New Zealand College of Psychiatry, and her position/title is described as a consultant psychiatrist.[11]
(4) Dr Hum accepted that the practise of CL psychiatry does not require additional qualifications and she has the qualifications to dispense medicine in both CL and CCT settings.[12]
(5) All the psychiatrists in Monash Health's adult psychiatry programme do work across and are expected to work across Monash Health's mental health programme which would include CL and CCT. (This finding was based on the evidence of Dr Swaminathan, which the Commissioner said that she preferred.)[13]
(6) In all three roles (CL, 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). (This finding was again based on the Commissioner's acceptance of Dr Swaminathan's evidence.)[14]
(7) Dr Swaminathan had confidence that Dr Hum could "actually do the job" in CCT, which is why he assigned it to her in the first place.[15]
(8) There was no contest that Dr Hum has met the entry level requirements for the role of consultant psychiatrist, and she had conceded that the basic skills of interviewing, assessment, diagnosis and formulation of a management plan apply across all areas of psychiatric work, and that she has the "theoretical knowledge" to perform in CCT.[16]
(9) The basic psychiatric skills in the practice of CL and CCT are the same and apply interchangeably across Monash Health's areas of practice, including the areas of CL and CCT. (This finding was based on a preference for the evidence of Dr Swaminathan over that of Dr Hum in relation to the differences in the practice of CL and CCT).[17]
(10) It was not in 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 interacting with patients and their families before performing work on her own.[18]
[10] The Commissioner said at the conclusion of her findings:
"[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."
[11] The Commissioner concluded, on the basis of her findings, that the answer to the agreed question was "yes" in that Monash Health had complied with clause 21.5(a) of the Agreement insofar as the 11 August 2021 direction was reasonable with regard to Dr Hum's skills and abilities. The Commissioner also offered the further assistance of the Commission in relation to the matters adverted to in paragraph [38] of the decision.
[12] As earlier stated, the AMA advanced ten appeal grounds. Those grounds, and the submissions advanced in support of them, are summarised (in the order presented in the AMA's written submissions).
[13] The AMA contends by this appeal ground that the Commissioner erred by stating in paragraph [4] of the decision that it was an undisputed fact that Dr Hum "briefly left to work in private practice between 2019 and March 2020." The AMA submitted that this was not an agreed fact, nor was there any evidence to support the proposition. It further submitted that the error raises genuine and serious concerns as to whether the Commissioner made her findings on the basis of a proper understanding of the evidence and that to allow the decision to stand "would be an endorsement by a Full Bench of a decision making process where a member of the Commission can make things up as they go along."
[14] The AMA contends that the following statement made in paragraph [33] of the decision was, in part, in error:
"I note Dr Swaminathan's observations that Dr Hum has an 'interest in CL psychiatry' 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." (footnotes omitted, underlining added)
[15] The AMA submitted that the citation given in the decision for the underlined part of the above passage, which referred to a portion of Dr Swaminathan's oral evidence, did not support the proposition. It submitted that the cited evidence of Dr Swaminathan was confined to an expectation that psychiatrists would be on call in the emergency department and in the general hospital, and the error of the Commissioner in misconstruing the evidence showed that she failed to properly understand the evidence before her.
[16] The AMA contends that the Commissioner erred, by reference to the decision in CFMEU v Glencore Mt Owen Pty Ltd,[19] in applying a test of reasonableness based on an employer's common law rights to issue lawful and reasonable directions to an employee and by not applying a test of reasonableness which had regard to the fact that the concept of reasonableness in the context of the terms of an enterprise agreement would be influenced by the terms of the enterprise agreement. In support of this contention, the AMA submitted that:
the test of reasonableness had to be considered in light of the specific language of clause 21.5(a) of the Agreement, where the context of "reasonableness" may be influenced by the particular beneficial or remedial purpose of the term of the Agreement;
the Commissioner had elsewhere set out the correct approach to the interpretation of a term of the Agreement, and the approach adopted in paragraph [22] of the decision moved away from the correct approach; and
at no point did the Commissioner determine what was meant by the concept of "reasonableness" within the context of the whole of clause 21.5(a) or determine the clause's purpose.
[17] The AMA contends that the Commissioner erred by failing to apply the dictionary definitions of "skill" and "ability" to the evidence before her. In this respect, the AMA noted that the Commissioner preferred the evidence of Dr Swaminathan over that of Dr Hum, but submitted that the evidence of the former was insufficient to satisfy the meaning of "skill" and "ability". The definition of "skill" makes it clear that Dr Hum would have to do CCT psychiatry well, or have "competent excellence" in the performance of CCT psychiatry, and this was not demonstrated in the evidence of Dr Swaminathan. The definition of "ability" also required that Dr Hum would need to have competence in CCT psychiatry, which was not supported by the evidence of Dr Swaminathan, which never went any higher than stating that he and Monash Health had confidence in Dr Hum's abilities to do CCT psychiatry.
[18] By these appeal grounds, the AMA contends that the Commissioner erred by considering and placing undue weight on Dr Hum's qualifications, the terms of her contract of employment and the terms of the scope of her clinical practice. The AMA submitted that, while these three factors might provide a context in which the application of clause 21.5(a) had to be considered, the weight given to these factors had the consequence that the Commissioner failed to give appropriate weight to Dr Hum's current skills and abilities.
[19] The AMA contends that the Commissioner erred in giving weight to the sameness of the fundamental elements of the roles of CL, EPS and CCT psychiatrist. It submitted that the sameness of these fundamental elements does not assist in answering the question or in the proper application of clause 21.5(a) of the Agreement. The proper application of cause 21.5(a) required the Commissioner to determine the question on the basis of the skills and abilities of Dr Hum and not on the basis of any sameness in the fundamental elements of a psychiatrist's role in those three areas.
[20] The AMA contends that the Commissioner erred by giving insufficient weight to Dr Hum's actual skills and abilities and undue weight to the evidence of Dr Swaminathan that the basic psychiatric skills are the same and apply interchangeably across the Respondent's areas of practice. It was submitted that the question could not be answered in the affirmative merely because of the commonality and interchangeability of skills, and the question required greater weight to be given to Dr Hum's actual and current skills in relation to CCT psychiatry. The observation made by the Commissioner at paragraph [38] of the decision, the AMA submitted, reinforced this point.
[21] The AMA contends that the Commissioner erred by having regard and giving weight to a "refresher plan" offered to Dr Hum, because the test of whether she had the skills and abilities to work in CCT was to be determined on Dr Hum's current skills and abilities and not what may or may not occur in the future. The evidence concerning the refresher plan, it was submitted, should have required the Commissioner to find that Dr Hum's current and actual skills and abilities were insufficient for Dr Hum to carry out the work of a CCT psychiatrist.
Permission to appeal and disposition of the appeal
[22] The AMA submitted that the appeal raises matters which would satisfy the Full Bench that the grant of permission to appeal would be in the public interest and, in any event, the decision is tainted with sufficient error and is sufficiently unsound that that permission should be granted (whether the appeal grounds are considered separately or cumulatively). The AMA seeks that the decision be quashed and that the Full Bench make a new decision in relation to the dispute.
[23] We are not satisfied that it is in the public interest to grant permission to appeal such as to require the grant of such permission under s 604(2) of the Fair Work Act 2009, nor do we consider that permission should be granted on discretionary grounds. We have reached this conclusion for three reasons.
[24] First, the appeal is fact-specific to the circumstances of Dr Hum and does not raise any broader question of law or policy. Even in respect of the proper interpretation of clause 21.5(a) of the Agreement, these is no real contest between the parties because, as the Commissioner noted in her decision, there was no dispute that the key terms in the clause had to be interpreted in accordance with their ordinary meaning.
[25] Second, the AMA's submissions do not disclose any proper basis to substitute the alternate answer "no" for the answer given by the Commissioner. The determination of whether a party has complied with, or contravened, a provision of an enterprise agreement does not involve the exercise of a discretion. In this case, although the question of compliance with clause 21.5(a) requires an evaluative judgment to be made by reason of the clause being concerned with the reasonableness of the assignment of work, it nonetheless demands a "unique outcome". The correctness standard therefore applies to this appeal.[20] It is not sufficient in an appeal to which the correctness standard applies for the appellant merely to point to alleged errors in the reasoning process or findings of subsidiary fact in the decision under appeal, as the AMA has done here. Rather, the appellant must advance a positive case as to why a different answer to the question posed for determination is the legally correct answer. The AMA has simply failed to do this.
[26] Third, the AMA's grounds of appeal in any event lack sufficient merit to justify the grant of permission to appeal. Without undertaking detailed consideration of each appeal ground, our brief reasons for this conclusion are as follows (again, dealing with the appeal grounds in the order they are addressed in the AMA's written submissions:
(1) Appeal ground 9: The finding which is challenged in this ground concerns a background factual matter which is utterly irrelevant to the question posed for determination. In any event, the contention that the finding was not supported by any evidence is grossly overstated. The relevant finding was that Dr Hum "briefly left [Monash Health] to work in private practice between 2019 and March 2020".[21] Dr Hum said in her own witness statement that she was in private practice from 2019 until March 2020 as a CL psychiatrist at Holmesglen Private Hospital.[22] The only aspect of the finding that is not supported by the evidence is that Dr Hum apparently did not leave Monash Health when she briefly engaged in private practice - a matter which we consider to be entirely trivial.
(2) Appeal ground 10: The sentence in the decision that the AMA challenges as being, in part, unsupported by the evidence, does not form part of any finding of fact made by the Commission; rather the Commissioner simply "note[s]" certain evidence given by Dr Swaminathan. In any event, again, the contention is simply wrong. The Commissioner said that Dr Swaminathan had given evidence that all psychiatrists are expected to be on call to deal with patients in any setting and any age group.[23] The AMA says that his evidence about this was confined to the emergency department and the general hospital and did not extend to CCT work. However, Dr Swaminathan said the following in his oral evidence:
"Most of the psychiatrists work across - are expected, in fact, all the psychiatrists in the adult psychiatry program are expected to work across the program, across the emergency department, across CLF(?), requiring across inpatient units, across CCTs."[24] (underlining added)
(3) Appeal ground 1: As the Commissioner found, it was not in contest below that the word "reasonable" bore its ordinary meaning. In a case which concerned the application of the provision to a specific employer direction to Dr Hum to perform CCT work, we consider it was appropriate for the Commissioner to have regard to the legal principles concerning lawful and reasonable employer directions in determining the connotation which the term bore in this case. In any event, the AMA has not made any submission clearly identifying any alternative meaning which should have been assigned to the word "reasonable" or demonstrating that the approach taken by the Commissioner had any relevant effect on the outcome.
(4) Appeal ground 2: We consider that the evidence of Dr Swaminathan, which dealt with Dr Hum's qualifications, experience, contract of employment and scope of clinical practice in the context of Monash Health's operations and the profession of psychiatry was relevant to and demonstrative of Dr Hum's skill and ability in respect of CCT work.
(5) Appeal grounds 3,4 and 5: Dr Hum's qualifications, contract of employment and scope of clinical practice were clearly of significant relevance to her skill and ability with respect to CCT work.
(6) Appeal grounds 6 and 7: That CL, EPS and CCT psychiatry require the same fundamental professional skills was plainly of significant relevance to the question of whether Dr Hum, an "eminently qualified and experienced professional",[25] had the skill and ability to perform CCT work.
(7) Appeal ground 8: The provision of refresher training for CCT work to Dr Hum was in our view relevant to whether it was reasonable to assign her CCT work having regard to her skills and abilities.
[27] Fourth, the AMA's appeal grounds do not challenge the correctness of any of the Commissioner's findings of fact as set out in paragraph [9] above. Those findings, in our view, lead ineluctably to the conclusion that Monash Health's direction of 11 August 2021 complied with clause 21.5(a) of the Agreement.
[20] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [46]- [49] per Gageler J; Rail Commissioner v Rogers [2021] FWCFB 371 at [61]
[22] Witness statement of Dr Hum dated 22 November 2021, paragraph [29]
[24] Transcript, 22 February 2022, PN821
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AMA (Victoria) Ltd
Monash Health [2022] FWCFB 82