27 It seems to me that if the respondent contends that the AMA may not represent doctors employed as staff specialists, the respondent has to show that such doctors are ineligible for membership of the AMA. Conversely, if such doctors are eligible for membership of the AMA, I am unable to see any obstacle to that Association representing its members in dispute proceedings under the Act.
28 What the AMA may do under its Constitution, consistent with the objects of the Association, is "represent the interests of the Members before any court, tribunal, committee or other body dealing with industrial relations or other industrial matters affecting its Members…" Eligibility for ordinary membership of the Association is open to registered medical practitioners who are employers or who have the potential to be an employer. There has been no challenge by the respondent to the eligibility of the doctors to be, or to become, members of the AMA and no challenge to the validity of the AMA's Constitution. Significantly, it was not put by the respondent that the doctors who are the subject of the dispute notification did not have the potential to be an employer. It is probably the case that at least some of them are employers.
29 The AMA is, of course, registered as an organisation of employers. It may, therefore, be argued that its Constitution is to be interpreted so as to exclude the possibility that it may enrol employees as members. But I have not been asked to decide whether or not the subject doctors are, or are not, eligible for membership of the Association. For example, there is no evidence about the meaning or the intended meaning of the phrase "has the potential to be an employer" in cl 10.1(a) of the AMA's Constitution. Is it to be taken to cover only that situation of a VMP whose status is one of independent contractor who may take on employees and thus become an employer or was it envisaged at the time the rule was framed that it is to be taken as dealing with the very problem the Commission is now faced with, namely, doctors operating in a dual capacity of employee and employer? In other words, in circumstances where those who framed the eligibility rule were confronted with the problem of deciding what type of organisation they wished to have registered - employee or employer - and having decided on employer, how were they to deal with the problem of members who might be at once an employee and an employer if that was a relevant consideration at the time?
30 These are legitimate considerations. As Barwick CJ stated in The Queen v Aird; Ex parte The Australian Workers' Union (1973) 129 CLR 654 at 659:
I now turn to consider the meaning of the eligibility clause in relation to the manufacture in the batching plants of ready-mixed concrete. This is a legal question to be solved by legal considerations. But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question.
31 The respondent's contention that an association registered as an industrial organisation of employers cannot represent employees is an attractive one because of its simple logic. But I do not consider the respondent has discharged the onus upon it to show, as it must, I believe, in order to succeed on its motion, that the doctors who are the subject of the dispute notification are ineligible to be members of the AMA. It is not open, in my view, for the respondent to implicitly accept, as it seems to do, that the doctors are eligible for membership of the AMA and that the AMA's eligibility rule is a valid rule, yet contend that the AMA cannot represent those doctors on the grounds that they are employees.
32 The Commission, therefore, is entitled to proceed on the basis that the doctors who are the subject of the dispute notification are properly members, or are eligible to be members, of the AMA and that the AMA is entitled to represent their interests in proceedings before the Commission to resolve the dispute.
33 If I am wrong about this and the AMA does not have standing, as an industrial organisation, to represent the doctors at the centre of this dispute, I note the provisions of s 130(2) of the Act:
(2) The Commission may act on its own initiative to resolve an industrial dispute.
34 If one puts aside the role of the AMA because of the controversy over its right to represent the doctors in its capacity as an industrial organisation, the Commission is presently seized of a dispute involving doctors employed at hospitals within the Hunter New England Area Health Service and their employer, the respondent. At this stage, with the exception of one of the doctors, Dr Thambar, it is not known with any precision who the individual doctors are.
35 It is apparent that there is a grievance of a collective nature. The doctors, through the conduit of the AMA, complain that the Area Health Service has unilaterally terminated an arrangement whereby doctors who are employed as staff specialists in one hospital may hold VMP contracts in another hospital within the same Area Health Service. The doctors want that position reversed. In the light of s 130(2) of the Act, it is not essential for an industrial organisation to be involved in the resolution of the dispute. See also The Jumbunna Coal Mine, No Liability and Another v The Victorian Coal Miners' Association (1908) 6 CLR 309 at 373 per Isaacs J; The Queen v Portus and Another; Ex parte McNeil (1961) 105 CLR 537.
36 In any event, there is no barrier to the doctors in this dispute being represented by the AMA as an agent and if, for instance, the AMA wished to avoid any prospect of a challenge to its Constitution that is an option it may wish to consider in relation to these proceedings. I say this because consistent with the relevant principle in Virtue, there is nothing to prevent the respondent in the substantive proceedings renewing any challenge to jurisdiction, on whatever grounds it considers appropriate. What the AMA chooses to do is, of course, entirely a matter for it.
37 Given the conclusions I have reached it is unnecessary for me to consider the respondent's other contentions regarding the Commission's power to deal with VMPs as independent contractors. In so far as relief is concerned, if it be accepted that the doctors are employees, then subject to the issue of a certificate of attempted conciliation pursuant to s 135, there would not appear to be any obstacle in arbitration proceedings, to exercising any of the powers in s 136 of the Act. I note, in particular, s 136(2), which provides:
2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.
Orders