Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland

The Applicant also seeks that the Commission make orders pursuant to section 451 of the IR Act that West Moreton Health back pay employees affected by the declaration and any other orders which the Commission consideres [sic] appropriate.

In support of this amended application the Applicant relies on an affidavit affirmed by Mr John Cosgrove - Chief Industrial Officer, ASMOFQ, on 18 March 2021.

• [9] The attachment to the Union's submissions filed on 4 June 2021 provides:

1. By reason of those matters outlined above, the Applicant seeks Declarations in the following terms (the Declarations):

1. A declaration that from 23 November 2015 the "Health Employment Directive No. 02/15: Senior medical officers: Special remuneration arrangements" (Directive) was, and continues to be, binding on West Moreton Health Hospital and Health Service (WMHH) and the State of Queensland.

2. A declaration that from 31 May 2019, the Medical Officers' (Queensland Health) Certified Agreement (No.5) 2018 (MOCA5) was, and continues to be, binding on WMHHS and State of Queensland.

3. A declaration that the class of workers represented by ASMOFQ who:

1. were and/or continue to be employed by WMHHS from 23 November 2015;
2. to whom the Directive applies; and

1. who performed on call duties and agreed to be on stand-by, within the meaning of the Senior medical officers - Terms and conditionsC23 [sic] (QH‑POL‑235) (Stand-by Policy);

were entitled to the stand-by allowance pursuant to the Directive.

4. A declaration that the class of workers Represented by ASMOFQ who:

1. when they were and/or continue to be employed by the WMHHS from 31 May 2019;
2. to whom MOCA5 applies; and
3. who performed on call duties and agreed to be on stand-by, within the meaning of the Stand-by Policy;[2]

were, and continue to be, entitled to the stand-by allowance pursuant to the MOCA5.

1. obliged by the Directive to pay the class of workers outlined in paragraph 3, the Stand‑by allowance; and/ or
2. obliged by the MOCA5 to pay the class of workers outlined in paragraph 4, the Stand‑by allowance above.

6. A declaration that Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke:

1. when they were and/or continue to be employed by the WMHHS from 23 November 2015;
2. that the Directive applied to them; and

1. when they performed on call duties and agreed to be on stand-by, within the meaning of the Senior medical officers - Terms and conditions C23 (QH‑POL‑235) (Stand-by Policy);

they were entitled to the stand-by allowance pursuant to the Directive.

7. A declaration that Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke:

1. when they were and/or continue to be employed by the WMHHS from 31 May 2019

1. when they performed on call duties and agreed to be on stand-by, within the meaning of the Stand-by Policy;[3]

they were entitled to the stand-by allowance pursuant to the MOCA5.

1. obliged by the Directive to pay Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke, the Stand‑by allowance; and/ or
2. obliged by the MOCA5 to pay Drs Dominque Carroll, Diana Ratcliffe, Ghazal Hatton, Thomas Toro, Nadine Garraway and Robyn Cooke, the Stand‑by allowance above.

9. Such further or consequential declarations and/or orders as the Commission may deem necessary to give full effect to the opinion of the Commission in relation to the declarations sought herein.

• [10] On any plain reading of the relief sought in the Amended Application compared to the relief sought as set out in the attachment to the Union's submissions, there is a significant difference in that the relief sought in the latter is far more extensive. They are not, as the Union contended in Mr Alexander Morison's letter dated 16 June 2021 to the Department, being attachment 'AM-1' to the affidavit of Mr Morison of the Union filed on 26 July 2021, '... substantially the same'.

The grounds of the Department's objection upon which it seeks the relief in its counter claim

• [11] There are 10 grounds raised by the Department for the relief sought in its counter claim.

(a) the Union has not complied with r 72 of the Rules, which provides that an application for declaration must be in the approved form and the Union is seeking to further amend the declarations it seeks; therefore, the Union must file the relevant form and because it has not filed an amended application, '... the amended declaration wording as proposed by the Applicant should be disallowed' ('the formalities ground');

(b) the Union has filed various forms of the declaratory relief it seeks, it is unreasonable for the Union to continue to file material seeking to change the wording of the declarations sought, the consequence of which is that the Union should be estopped from filing any further proposed declarations, including those proposed in the attachment to the Union's submissions ('the estoppel ground');

(c) there is uncertainty as to any controversy relevant to the declarations sought in the declarations numbered 1) and 2) in the attachment to the Union's submissions ('the declarations 1 and 2 ground');

(d) in respect of declarations 3) to 5), there is uncertainty as to:

(i) the identity of the employees sought to be the subject of declarations 3) to 5) because the Union refers to '... the class of workers represented by ASMOFQ';

(ii) whether or not the Union has the consent of that class of workers to seek the declarations sought; and

(iii) whether the on-call allowance is sought to be paid in lieu of the stand‑by allowance ('the declarations 3 to 5 ground');

(e) there is uncertainty as to whether the Union is seeking declarations 3) to 5) or 6) to 8) ('the alternative declarations ground');

(f) declarations 3) to 7) refer to the class of workers represented by ASMOFQ agreeing to be on stand-by when in fact there is no such agreement and SMOs rostered at the West Moreton Hospital and Health Service ('the Health Service') are only rostered to be on call ('the stand-by agreement ground');

(g) declarations 3) to 7), unlike the declarations sought in the Amended Application, which referred to SMO's employed by the Health Service working at hospitals at Gatton, Laidley, Boonah and, or in the alternative Esk, refer to those ' ... employed by WMHHS' which has the potential to include all facilities within the Health Service, such that the Union should be estopped by its previous conduct and the expansion of the declaration should be disallowed ('the first facilities expansion ground');

(h) the Amended Application included reference to '... where no other Senior Medical Officer is rostered at the facility', that reference has been removed from the declarations sought in the attachment to the Union's submissions, which '... expands the declaration to include all facilities and scenarios, irrespective of whether there is already a SMO rostered at the facility' such that the Union should be estopped by its previous conduct and the expansion of the declaration should be disallowed ('the second facilities expansion ground');

(i) in respect of declarations 6) to 8), the Union seeks to cover six SMOs, but only five live in Brisbane and only one lives in close proximity to the relevant facility, which is a fundamental circumstance and the declarations must be reworded to address that situation ('the residence proximity ground'); and

(j) the consequential relief sought in declaration 9) must be stated as required by r 72(d) of the Rules ('the declaration 9 ground').

• [13] The Department further submits that all of the Union's submissions should be disallowed because they are not in support of, and do not refer to, the Amended Application.

• [14] In its submissions today, the Department principally relied on the contentions contained in the Notice of Objection attached to its counter claim.

• [15] In addition, Mr O'Gorman, on behalf of the Department submitted that:

(a) since the Union's principal application was filed in November 2020, the Union has made several attempts to change the wording of the declarations sought;

(b) Mr Morison's letter dated 16 June 2021, referred to earlier in these reasons, did not address the objections raised by the Department;

(c) some of the declarations contained in the attachment to the Union's submissions filed on 4 June 2021 have potential state-wide implications; and

(d) the orders made in the 12 May decision directed the Union to file and serve submissions and any further affidavit material in respect of the Amended Application filed on 18 March 2021.

• it was unsure why the objections had been made by the Department because the declarations sought in the attachment to the Union's submissions filed on 4 June 2021 were a particularisation of the relief claimed in the Amended Application; and

• there could be no prejudice to the Department in responding to the relief the Union now wants to pursue because no material had been filed by the Department.

• [17] When asked by me if the Union's case was now that as sought in declarations 1) to 8) in the attachment to the Union's submissions filed on 4 June 2021, and that it had filed its submissions and material in support of that case, Mr Morison, on behalf of the Union, answered in the affirmative.

• [18] In my view, the resolution of the Department's counter claim cannot and does not involve any consideration of estoppel.

• [19] The determination of whether or not I should grant the relief sought in the Department's counter claim requires a consideration of two sets of relevant principles.

• [20] They are the principles to be applied in determining whether or not to allow an applicant to amend an application; and the general principles considered in determining whether or not declaratory relief should be ordered.

• [21] Rule 18(1) of the Rules provides that an application may be amended, before the hearing of the application, by the applicant filing an amended application that incorporates the amendments. Rule 19 deals with the formalities of such an amended application. Rule 22(1) provides that a party served with an amended application may object to the amendment. Rule 23 provides that if a party objects to all or part of an amended application, the Commission may, after hearing the objecting party, allow or disallow the proposed amendment and may make the decision on the terms the Commission considers appropriate.

• [22] Of course, as provided for in r 6 of the Rules, all of the previously mentioned rules have the purpose of providing for the just and expeditious business of the Commission at a minimum of expense.

• [23] There are provisions of the Act which are also relevant. Pursuant to s 447(2) of the Act, the Commission must perform its functions in a way that is consistent with the objects of the Act and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act. Furthermore, pursuant to s 539(k) of the Act, except as otherwise provided for by the Act or the Rules, the Commission may waive compliance with the Rules.

• [24] In the present case, the Union, in respect of the relief it seeks as set out in the attachment to its submissions filed on 4 June 2021, has not filed and served a further amended application. Despite this, the Department has taken the attachment to the Union's submissions to be an application to further amend its application.

• [25] In terms of considering whether or not to allow a party to amend an application, there are authoritative considerations. Relevantly to the further amendment sought to the Union's application, they include:

(a) the object is to do justice between the parties according to law;[4]

(b) having regard to r 6 of the Rules, important considerations are the effect of the delay and costs;[5]

(c) the point the litigation has reached;[6]

(d) the nature and importance of the amendment to the applying party;[7]

(e) whether the amendment is brought in good faith;[8] and

(f) the explanation given by the party seeking the amendment weighed against the effects of any delay and the objectives of the Rules.[9]

• [26] As I stated in the 12 May decision, there is no reason, in principle, why the Commission should approach the exercise of its discretion to make a declaration about an industrial matter in a way that is different to that of a court which has discretionary power to grant declaratory relief.[10]

• [27] In the 12 May decision I also referred to the summary of the applicable principles in respect of the discretionary power to grant declaratory relief given by Applegarth J in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors.[11] Those principles include that:

(a) the discretionary power to grant declaratory relief is wide;

(b) a judicial determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy and involves the application of the relevant law to facts as found in the proceeding;

(c) declaratory relief must not be directed to answering abstract or hypothetical questions; and

(d) answers given to a question which leaves the facts unstated or does not identify them with any precision will not finally resolve a dispute or quell a controversy as the answers given may be of no use at all to the parties and may even mislead them as to their rights.[12]

• [28] The onus is on an applicant to establish the ambit of the rights to be declared and prove all the facts necessary to enable the declaration to be made.[13]

(a) a party who seeks relief has the burden of satisfying the court of facts which (in the absence of proof of other facts) would justify the grant of that relief;

(ii) the operation of any relevant presumptions; and

(c) in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought.[14]

• [30] It is in consideration of these principles that I will now determine, by having regard to the ten grounds of objection referred to by the Department, whether or not I should grant the counter claim the Department seeks.

• [31] The resolution of the Department's counter claim principally involves the question of whether the discretion should be exercised, as provided by the Rules, to allow the Union to further amend its application.

• [32] It seems to me that allowing the Union to further amend its application to reflect declarations 1) to 8) inclusive, as set out in the attachment to its submissions filed on 4 June 2021, would be consistent with r 6 of the Rules. There are a number of reasons for this.

• [33] First, the further amendments sought set out the precise terms of the declaratory relief now sought in respect of declarations 1) to 8) inclusive, as contained in the attachment to the Union's submissions filed on 4 June 2021. Further, it is clear that the declaratory relief sought by the Union, through the further amendments it seeks, are important to it and its members who may be affected by the declarations now sought. There is no suggestion that the amendments now sought were not made in good faith.

• [34] Secondly, in my opinion, having regard to the point at which the matter being litigated has reached, the Department would not be prejudiced by allowing the Union to amend its application in accordance with declarations 1) to 8) inclusive contained in the attachment to its submissions filed on 4 June 2021.

• [35] Today, the Union has indicated that declarations 1) to 8) inclusive, contained in the attachment to its submissions filed on 4 June 2021, is the claim it wants to pursue and that it has filed the affidavit material to prove its case, as well as having filed its principal submissions in support of that case.

• [36] At the present time, no affidavit material and submissions have been filed and served on behalf of the Department. Further, no trial dates have been set.

• [37] That is to say, despite the history of the litigation to the present point in time, it is still at a stage where allowing the further amendments sought by the Union will not prejudice the Department.

• [38] Finally, the above considerations indicate to me that by allowing the Union to make the further amendments to its application so that its claim will now be declarations 1) to 8) inclusive as contained in the attachment to its submissions filed on 4 June 2021, I would be doing justice as between the parties in that:

(a) the Union will be able to pursue the case it wants to pursue; and

(b) the Department will have a reasonable opportunity to respond to that case and to mount a defence.

• [39] An explanation has been provided by the Union in respect of the further amendments it seeks. That explanation is that contained in Mr Morison's letter to the Department dated 16 June 2021 referred to earlier in these reasons, namely, the declarations now sought are substantially the same as those contained in the Amended Application. The explanation, in my view, is not an adequate explanation. However, in endeavouring to do justice between the parties, that consideration is outweighed by the other considerations I have referred to above.

• [40] It is also the case that some of the declarations contained in the attachment to the Union's submissions filed on 4 June 2021 may have potential state-wide implications. That is a matter that may be relevant as to whether any declaratory relief is ordered.

• [41] The Union is deserving of criticism. The Rules are there for the purpose stated in r 6 and cannot be ignored by parties unless waived by the Commission.

• [42] In my view, a further amended application, which complied with the Rules, should have been filed and served prior to the Union filing and serving its submissions on 4 June 2021. That was not done and disadvantages the Department. The Department was and is entitled to be served with a further amended application clearly articulating the case it has to come to meet. The Department should then be given time to consider the further amended declarations now sought by the Union and to file and serve an appropriate response.

• [43] Such a further amended application also sets out for the Commission the case it has to determine and further sets out, with any response filed by the Department, the material facts that are in dispute which, in turn, will assist the parties and the Commission in determining what evidence is relevant and not relevant. As such, the filing and serving of a further amended application by the Union is more than a mere formality.

• [44] For these reasons, and having regard to the purpose of the Rules, a further amended application must be filed and served. The further amended application must set out the matters required in r 72 of the Rules, namely:

• the declaration or declarations sought, which must be in the precise terms contained in paragraphs 1) to 8) in the attachment to the Union's submissions filed on 4 June 2021;

• the industrial matter about which the declarations are sought;

• the material facts relied upon by the Union in support of the declarations it seeks; and

• a statement of the consequential relief claimed if the declarations are made.

• [45] Presently, the Commission and the Department do not have such a further amended application. In strict terms, the attachment to the submissions filed by the Union on 4 June 2021 claim more substantial declaratory relief compared to that articulated in the Amended Application. The Department is entitled to be served with such a further amended application so that it clearly understands the case it has to meet and can then file and serve a response.

• [46] I understand the Department's submissions about the constantly changing nature of the Union's case.

• [47] The Department has not filed any affidavit material, no trial dates have been set, no evidence has been heard and for those reasons, I am not persuaded that requiring the Union to file and serve a further amended application that conforms with the precise relief sought in paragraphs 1) to 8) in the attachment to its submissions filed on 4 June 2021, would cause any irreparable prejudice to the Department.

• [48] In terms of the further amended application to be filed and served by the Union, I waive

the requirement of the Union to comply with r 19(1) of the Rules. That is to say, the further amendments do not need to be distinguished from the original text by underlining added text or crossing out deleted text. A complete replacement will suffice.

• [49] However, the further amended application must be in the approved form as required by r 19(2) and must comply with all the elements referred to in r 72 of the Rules.

• [50] Given the submissions made to me today by the Union, I make it very clear that the further amended application the Union is to file and serve, in respect of the relief sought, must be in the precise terms as set out in declarations 1) to 8) in the attachment to the submissions filed by the Union on 4 June 2021.

• [51] The principal application was filed by the Union on 30 November 2020. It is now 29 July 2021. Given the amendments made by the Union to its application since 30 November 2020, there would have to be very compelling grounds for me to favourably consider any further application by the Union to amend its application.

• [52] I will deal with the relief sought in declaration 9 in the attachment to the Union's submissions filed on 4 June 2021 shortly.

• [53] I will very briefly deal with the other objections made by the Department.

• [54] The matters referred to in this ground go to whether or not, on their merits, the further amended declaratory relief sought by the Union should be granted. There may be some agreement about the substance of the issues concerning those declarations as sought.

• [55] Despite these matters, this ground is not a proper basis to disallow the further amended declaratory relief now sought by the Union.

• [56] Similarly, the matters referred to in this ground go to whether or not the Commission's discretion should be exercised to grant the further amended declaratory relief sought by the Union.

• [57] On a plain reading of the attachment to the Union's submissions filed on 4 June 2021, namely, the heading which states 'Alternative declarations to 3 - 5', declarations 6) to 8) are sought as alternatives to the declarations 3) to 5).

• [58] This is a matter that goes to whether or not, as a matter of discretion, the declaratory relief sought by the Union should be granted.

The first and second facilities expansion grounds

• [59] The issues raised by the Department in respect of these grounds go to the merits of whether I would exercise discretion and make any of the relevant declarations as sought.

• [60] Again, this is a matter going to the merits of whether or not the declaratory relief the Union seeks should be granted.

• [61] I accept the criticism made by the Department that, pursuant to r 72(d) of the Rules, the Union should precisely state any consequential relief it claims if any declaration is made. Presently, the Union has not done so.

• [62] For the reasons given above, the general objection made to the Union's submissions is rejected.

• [63] For the reasons given above, I make the following orders:

1. Pursuant to r 23(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the amendments to the relief sought by the applicant as contained in paragraphs 1) to 8) in the attachment to the applicant's submissions filed on 4 June 2021 are allowed.

2. Pursuant to r 23(2) of the Rules, the applicant, by 4.00pm on Thursday, 19 August 2021, must file in the Industrial Registry and serve on the respondent, a further amended application which:

(a) precisely states the relief sought by the applicant as contained in paragraphs 1) to 8) in the attachment to the applicant's submissions filed on 4 June 2021; and

(b) in respect of paragraph 9) in the attachment to the applicant's submissions filed on 4 June 2021, complies with r 72(d) of the Rules and states any consequential relief claimed if the declaration is made; and

(c) complies with r 19(2) of the Rules, but in respect of which compliance with r 19(1) of the Rules is waived ('the further amended application').

3. That the respondent, by 4.00pm on Thursday, 9 September 2021, file in the Industrial Registry and serve on the applicant a response to the further amended application.

4. That the respondent file in the Industrial Registry and serve on the applicant, its outline of submissions (of no more than 15 pages, type‑written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages) and any affidavits upon which the respondent intends to rely in opposition to the further amended application, by 4.00pm on Thursday, 7 October 2021.

5. That the applicant file in the Industrial Registry and serve on the respondent, its outline of submissions in reply (of no more than 5 pages, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages) and any affidavits in reply, by 4.00pm on Thursday, 28 October 2021.

6. That the matter is listed for further mention at 9.00am on Friday, 5 November 2021.

[1] [2021] QIRC 157 ('the 12 May decision').

[2] These are the alpha paragraphs used in the original.

[3] These are the alpha paragraphs used in the original.

[4] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ('Aon'), [30] (French CJ).

[5] Ibid [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[8] Aon (n 4) [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[10] The 12 May decision (n 1), [13]

[11] [2020] QSC 54; (2020) 4 QR 31.

[12] Ibid [34]-[36] (Applegarth J).

[13] Blanch t/as Hicksons v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 ('Blanch'), [6] (Young CJ).