Arbitration pursuant to ss 90 and 91 of the Health Services Act 1997 in respect of Visiting Medical Officers 2025 [2026] NSWIRComm 5 (17 April 2026)

Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

State Wage Case 2025 (No 3) [2025] NSWIRComm 36

Australian Medical Association (NSW) (AMA) (Applicant)

1. This is an arbitration conducted under Chapter 8 Part 2 Division 3 of the Health Services Act 1997 (NSW) (HS Act).
2. The Australian Medical Association (NSW) (AMA) seeks separate determinations under s 91(1) of the HS Act setting the terms and conditions of work, including substantial increases in remuneration and the payment of a range of additional loadings and allowances, for Visiting Medical Officers (VMOs) under sessional contracts and those under fee-for-service contracts as defined in the HS Act.
3. The Minister for Health opposes the AMA's claim and instead seeks relatively modest adjustments to the existing determinations covering both types of VMOs.

1. By Notice of Motion filed 14 April 2026 the AMA seeks leave to file a Second Further Amended Public Hospitals (Visiting Medical Officers Sessional Contracts) Determination which seeks to add a claim for payment of two lump sum amounts equivalent to:

"(a) 3% of all remuneration paid to VMOs under a sessional contract for the period 1 July 2024 to 30 June 2025; and

(b) 3% of 103% of all remuneration paid to those VMOs for the period 1 July 2025 to date."

1. The motion is supported by an affidavit of Domonique Egan, the AMA's Director of Workplace Relations, sworn on 14 April 2026, which was read and marked exhibit AMA-15. Ms Egan was not required for cross-examination.

1. This application was made for the first time on the fourth day of an arbitration hearing that commenced on 8 April 2026 and is due to be completed on 19 June 2026.
2. The nature and purpose of the arbitration pursuant to s 91(1) of the HS Act is to determine:

"(a) the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates are applicable, in respect of medical services provided by visiting medical officers under fee-for-service contracts or sessional contracts (or both), and

(b) the date or dates (not being a date or dates earlier than the date of the determination) on and from which any determination made under paragraph (a) is to have effect."

1. The genesis of the arbitration leading up to my appointment as arbitrator under s 90 of the HS Act on 23 April 2025 is recounted in Ms Egan's affidavit as follows (omitting references to the court book and annexures):

"[4] On 6 May 2024, AMA (NSW) wrote to the Minister for Industrial Relations and Minister for Work Health and Safety, the Hon Sophie Cotsis MP (Industrial Relations Minister) requesting that the Industrial Relations Minister take necessary steps for s 90 of the Health Services Act 1997 (NSW) (Health Services Act) and associated Regulations to be amended such that an arbitrator appointed to determine matters relevant to the Sessional Determination and Public Hospitals (Visiting Medical Officers Fee-for-Service Contracts) Determination (FFS Determination) be a judicial member of the Industrial Relations Commission. This was in response to the Industrial Relations Amendment Bill 2023 (NSW) which amended s 97 of the Health Services Act to reinstate the Industrial Court as the jurisdiction for matters concerning the interpretation of the Sessional Determination and FFS Determination but had not similarly amended s 90 of the Health Services Act or the associated Regulations such that the arbitrator was to be appointed from the Industrial Court. [...]

...

[6] On 19 June 2024, the Minister for Health, the Hon Ryan Park MP (Health Minister) wrote to AMA (NSW) confirming that the Ministry would consult with the Industrial Relations Minister with respect to the possibility of a judicial officer of the Industrial Court being appointed as arbitrator for the purpose of all arbitration proceedings relating to Visiting Medical Officers (VMOs). [...]

[7] On 27 June 2024, the Industrial Relations Minister wrote to AMA (NSW) confirming that the Minns Government would be actively considering the issue concerning the appointment of an arbitrator under the Health Services Act. [...]

[8] On 29 August 2024, AMA (NSW) wrote to the then Deputy Secretary, People Culture and Governance of the Ministry, Mr Phil Minns with respect to this matter. [...]

...

[10] On 29 October 2024, AMA (NSW) wrote again to the Industrial Relations Minister with respect to the amendments to the Health Services Act. [...]

[11] On 13 December 2024, the Health Services Amendment (Visiting Medical Officers) Regulation 2024 (NSW) (Amendment Regulation) was enacted. The Amendment Regulation amended cl 34 of the Health Services Regulation 2018 (NSW) such that for the purposes of s 90 of the Health Services Act the relevant Minister may appoint a person to be an arbitrator if the person is a judicial member of the Industrial Relations Commission. [...]

[12] On 13 December 2024, HWL Ebsworth Lawyers (HWLE Lawyers) caused a letter to be sent to the Industrial Relations Minister to formally indicate that the AMA (NSW) applied for the appointment of an arbitrator to determine matters relating to both the Sessional Determination and FFS Determination pursuant to s 89 of the Health Services Act. [...]

[13] On 24 February 2025, AMA (NSW) wrote to both the Health Minister and the Industrial Relations Minister with respect to the fact that an arbitrator was still yet to be appointed. [...]

[14] On 18 March 2025, HWLE Lawyers received a letter from the Industrial Relations Minister confirming that a request for nomination of a judicial member of the Industrial Relations Commission for appointment as an arbitrator had been made. [...]

...

[16] On 23 April 2025, HWLE Lawyers received a letter from the Industrial Relations Minister confirming that the Hon Justice David Chin had been appointed as arbitrator."

(Emphasis in original.)

1. Following my appointment as arbitrator, and after an initial directions hearing conducted before me on 11 June 2025, the AMA filed its log of claims, together with proposed determinations including for VMOs under sessional contracts, on 1 July 2025.
2. After an extensive process of conciliation involving conferences held over 6 days during the period from 12 August to 16 September 2025, the AMA filed updated proposed determinations on 9 October 2025.
3. The AMA filed further updated proposed determinations on 30 March 2026.
4. Throughout this process, the AMA's monetary claims concerning VMOs on sessional contracts was for increases in their hourly rates and a range of additional loadings and allowances to take effect prospectively from the date on and from which any determination is made.
5. Senior Counsel for the AMA, Mr Neil, confirmed that the claim proposed in the AMA's motion was not foreshadowed until the day before the arbitration commenced. He further conceded the absence of any explanation for the delay in making this application, and that this factor counts against the AMA's application.
6. The lateness of this application, and the AMA's failure to proffer any explanation for the delay is regrettable and to be deprecated.
7. However, despite this, and for the following reasons, I propose to grant the leave sought by the AMA by its motion. I do so on condition that the Minister for Health has leave to file any additional evidence in response to the new claim.

1. The proper approach to be taken in this matter is ultimately governed by the nature of my statutory functions and duties as arbitrator. In essence, my task is to determine the appropriate terms and conditions of work performed by VMOs in the provision of medical services within the NSW public health system.
2. In doing so, I am required to "have regard to" the established principles of the Industrial Relations Commission of NSW in connection with the determination of remuneration and terms and conditions of work under awards made under the Industrial Relations Act 1996 (NSW) (IR Act): s 92(2)(a) of the HS Act. It is common ground that those principles include the Commission's 2025-2026 Award Making Principles annexed to State Wage Case 2025 (No 3) [2025] NSWIRComm 36. These principles guide the Commission's discretion in making awards setting "fair and reasonable" conditions of employment: s 10 of the IR Act. I am also required to have regard to the public interest referable to some of the objects of the IR Act, the state of the economy of NSW and the fiscal position and outlook of the government: s 92(2)(b) of the HS Act.
3. The statutory requirement to have regard to these principles means that they are fundamental elements in making the determinations and weight must be given to them, although they are not necessarily decisive or determinative of the process of decision making: see Australian Medical Association (NSW) Limited v Minister for Health (2007) 169 IR 261; [2007] NSWIRComm 263 at [20] (the "2007 Arbitration Decision").
4. It is thus part of my statutory function and duty to consider and give weight to whether the determinations for VMOs meet the requirements of s 10 of the IR Act, adjusting for the present arbitral context which involves VMOs who are independent contractors and not employees: see the 2007 Arbitration Decision at [29].
5. In having regard to those matters, I am required to "act judicially and be governed by equity and good conscience, without regard to technicalities or legal forms": s 92(1)(b) of the HS Act.
6. The result is that I must consider whether the determinations for VMOs provide fair and reasonable conditions and reflect the appropriate industrial principles of equity and good conscience: the 2007 Arbitration Decision at [29].
7. Senior Counsel for the Minister, Mr Tracey, submitted that I should approach the AMA's motion on a footing analogous to the approach taken by the courts to the summary dismissal of proceedings and would therefore dismiss the motion on the basis that there is no real or reasonable prospect of the claim succeeding (for reasons that I will come to below): citing Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28.
8. Although the AMA eschewed the strict application of the established approach to determining late amendments to pleadings in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, it drew attention - again by way of analogous assistance - to the provisions of s 64(2) of the Civil Procedure Act 2005 (NSW) (CP Act) which permit "all necessary amendments" to be made for the purpose of determining the real questions raised by the proceedings, or at least such amendments raising claims that are not otherwise doomed to fail.
9. In accordance with my duty to act judicially, I consider that appropriate guidance is found in the principles for determining applications to amend pleadings as established by the High Court in Aon, adjusted for the statutory context which governs this arbitration the main features of which I have outlined above. Accordingly, I will have regard to the following propositions:

(1) A party has a right to bring proceedings in whatever form/with whatever content they wish, as far as their applications comply with law, but limits are placed on their ability to effect changes to the applications, particularly if the arbitration is advanced: Aon at [112].

(2) A party does not have an unfettered prima facie right to amend their applications, even if the amendment raises an arguable issue.[1] I must consider and weigh all relevant factors and exercise my discretion accordingly: Aon at [96].

(3) Considerations that are relevant to my discretion include the following matters:

(a) the nature and importance of the amendment to the party applying;

(b) whether it would be "too late" for further amendment, such that allowing an amendment would occasion unfair or undue prejudice to the other party: Aon at [114];[2]

(c) the explanation for any delay in applying for the amendment;

(d) my statutory duty to consider whether the determinations for VMOs provide fair and reasonable conditions and reflect the appropriate industrial principles of equity and good conscience; and

(e) the paramount purpose of the "just" resolution of the arbitration understood in light of the relevant statutory context: Aon at [98].

1. The Minister opposes the motion for three reasons. I accept the first submission advanced by the Minister which is that the AMA has failed to provide any reason for its delay in seeking to bring this claim for payment referrable to the provision of medical services that would pre-date the making of any new determinations under the HS Act. This is uncontroversial. It counts against the AMA.
2. The AMA's invocation of s 64 of the CP Act rather emphasises this consideration in favour of the Minister on this point. The mandate to allow "necessary" amendments to determine the "real" issues is generally confined to relevant disputes or controversies that exist at the time of the application. This may be apparent either implicitly in the formally raised issues or may be apparent from the conduct of the proceedings such as by the evidence that has been served or adduced. It does not extend to amendments raising entirely new issues: Aon at [71].
3. There is no suggestion that the claim which is the subject of the AMA's motion existed at the time of the commencement of the arbitration; or that it became apparent in any way at any time prior to the day before the hearing commenced. The lack of any explanation for seeking to introduce this claim for the first time after the hearing commenced emphasises the fact that it raises a genuinely new issue which the Minister could not reasonably have anticipated.
4. Secondly, the Minister contends that the new claim has no reasonable prospect of success. This is because it is contended that ss 89(1)(b) and 91(1)(b) of the HS Act limit the arbitrator's power to set "'the date or dates ... on and from which any determination may have effect' to a date or dates 'not being a date or dates earlier than the date of the determination'". Thus, it would be beyond the arbitrator's power (so it is argued) to make a determination providing for a 3 per cent increase to a sessional VMO's hourly rate to take effect on and from 1 July 2024; and another 3 per cent increase to take effect on and from 1 July 2025.
5. The Minister contends that the AMA's new claim is in substance just such a claim, albeit in different form. To grant such a claim would, it is argued, offend the general principle of law that 'it is not permissible to do indirectly what is prohibited directly': Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516; [1990] HCA 53 at 522-23.
6. Although the AMA contends that ss 89(1)(b) and 91(1)(b) are not limited to setting conditions 'in respect of medical services provided' after the date of the determination, it characterised the lump sum payment sought by its new claim as an amount of remuneration that is necessarily tied to medical services provided by VMOs in the period from 1 July 2024 to the date of the determination to be made.
7. Characterised in this way, I consider that there is some force to the Minister's contention that any determination providing for such a lump sum payment would subvert the statutory policy as to the prospective operation of the arbitrator's determination and would be ultra vires.
8. However, at this stage I do not consider the AMA's claim in this regard to be inarguable, or to lack any reasonable or real prospect of success. The prospect that s 91(1)(a) may extend to the past provision of medical services by VMOs, and that s 91(1)(b) may be construed to permit a determination to provide for a present obligation albeit referable to such past services appear to be substantive and available.
9. Accordingly, I consider that the AMA's arguable claim must be weighed against the other relevant factors identified, including the absence of any explanation for the delay and any prejudice to the Minister which is effectively taken up by the Minister's third and final ground.
10. In this regard, the Minister contends that in order to respond to the claim he will need to lead, at least, evidence about the cost of that claim which will require the Minister's costing witness, Mr Ridge, to undertake work to adapt his costing methodology to quantify that claim, which he has not previously done.
11. The Minister would also need to consider whether to put on further evidence from its two Treasury witnesses about any fiscal and/or economic implications of the claim, and evidence about any administrative burden involved in implementing the claim, for example any modifications required to the VMoney system.
12. I accept that the AMA's motion, if granted, is likely to require the Minister to at least prepare and provide this kind of additional evidence. There is, thus, some degree of prejudice to the Minister in the form of additional cost and resources to be expended in this endeavour. This prejudice is not to be discounted. I take it into account.
13. However, Mr Tracey frankly and properly put his case no higher than that the claim would give rise to a potential for delay in the arbitration proceedings. He did so while also expressly disavowing any present requirement to seek an adjournment of the proceedings; and while accepting that the potential delay may not materialise and that the Minister may be able to obtain the additional evidence during the course of the hearing as presently listed. Mr Tracey also declined an opportunity for a short adjournment to further investigate and assess the likelihood of any delay that might be associated with the task of obtaining the additional evidence.
14. The Minister did not otherwise place before me any evidence of likely prejudice.
15. In addition, Mr Neil made it clear that the AMA does not propose to call any additional evidence in support of the new claim, for which it relies solely on the contents of the affidavit of Ms Egan that was read in support of the AMA's motion.
16. In these circumstances, it does not appear to be "too late" for further amendment, such that allowing an amendment would occasion undue prejudice to the Minister, accepting that there is likely to be some cost to the Minister.
17. I consider that my overriding statutory duty to consider whether the determinations for VMOs provide fair and reasonable conditions consistently with principles of equity and good conscience favours the granting of leave to the AMA to amend its claim. It is in the interests of the just resolution of this arbitration that I have before me all substantive issues in dispute between the parties. This can be permitted with minimal disruption to the arbitration hearing as presently listed, and by providing the Minister with a fair opportunity to respond to the new claim.

(1) Leave is granted to the AMA in the terms sought in proposed Order 1 set out in its notice of motion filed on 14 April 2026.

(2) The AMA is to file and serve the Second Further Amended Public Hospitals (Visiting Medical Officers Sessional Contracts) Determination, a copy of which is annexure A to the motion referred to in Order 1, by 4pm on 17 April 2026.

(3) Leave is granted to the Minister for Health to file and serve any evidence in response to the amendments to clause 20 of the determination referred to in Order 2 by 4pm on 22 May 2026.

[1] Aon at [96], [98], [111]-[112].

[2] See also Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20 at [31].