Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145 | Case summary

Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145 | Case summary | Zoe

21 Dr Tristan Barnes is currently employed as a medical officer at the Prince of Wales Hospital in New South Wales. Mr Murphy tendered two affidavits of Dr Barnes sworn 6 February 2010 and 29 April 2010. As at January 2009, when she commenced in the position currently in dispute, Dr Barnes had completed two years' public hospital experience. Dr Barnes' evidence was that she answered an advertisement on the respondent's website for the position of "Basic Physician Trainee - Medical Registrar". Examples of the advertisements were attached to the affidavit. The Award Classification 1 is described as "Registrar" and the Award Classification 2 is described as "Resident Medical Officer" ("RMO"). During her interview for the role, Dr Barnes said she was asked specific questions pertaining to the role of a Registrar. She was asked "How you would feel being alone on the wards at night time in a tertiary referral centre as the in charge Registrar?" 22 Dr Barnes received a letter of offer from the Northern Hospital Network dated 27 November 2008. The job title was described as "Basic Physician Trainee - Medical Registrar" and the pay level offered was "Resident Medical Officer." A copy of the letter of offer was attached to the affidavit. Dr Barnes said the position she accepted was the traditional Registrar role, that is, the most senior person on the hospital staff who sees the patient every day, makes decisions regarding their care and communicates problems or clinical concerns to the Consultant. The position also requires supervision of the junior medical staff. Dr Barnes further explained that the Registrar's role required communication skills to engage multidisciplinary teams, nursing staff and family members. It requires communication directly with Consultants and a higher degree of independent work and autonomy when compared to an RMO. Dr Barnes attached to her affidavit a photograph of her identity card issued to her by South Eastern Sydney Illawarra Area Health Service ("SESIAHS") identifying her as "Medical Registrar". 23 Dr Michael Ooi, Network Director of Physicians Training for the East Coast Medical Network, was asked during his oral evidence about Dr Barnes' role and was taken to a letter he had written specifically in relation to Dr Barnes. He gave the following evidence: Q: You say in the second paragraph that all the basic physician trainees employed by the Network occupy medical or Registrar positions. Is Dr Barnes one of those? A: Yes she is.

Q: This year does she occupy one of the 38 positions? A: Yes, she does. Q: You were given some evidence about the role of the medical registrars, you said, and the role of the resident medical officers; as you see it into which of those two categories does Dr Barnes fit? A: She is a medical registrar. Q: Does she do all the things you described when you described that role? A: Yes, she does. 24 In relation to Dr Barnes' situation, Mr Craft gave the following evidence in cross-examination: Q: What I want to suggest to you, even taking this document into account with the acceptance document that Dr Barnes was required to sign and return, logic would suggest that you would place more weight on those documents than you would on some alleged verbal offer that was made to Dr Haddad, which then seems to be contradicted by her formal letter of employment: do you agree with that proposition? A: I can't be sure because I took decisions at a point in time on the information before me. Q: It is possible, isn't it, Mr Craft, as a fair-minded person - you readily accept you are - in relation to Dr Barnes, when you first considered the representation made, you just may have got it wrong? A: Always a possibility, yes. Q: And in fairness, when you initially made that determination, you didn't have the material which is now before his Honour in these proceedings, the full extent of it? A: I accept that. 25 Mr Gotting submitted that as at January 2009, Dr Barnes had only two years' public hospital experience rather than the requisite three years' experience. He also submitted that the advertisement for the position to which Drs Barnes and Royan were appointed outlined the commitment of the network to "providing excellence and equity in Basic Physician Training", referred to the offering of a range of training opportunities, suggested the network provided "everything you require to complete Basic Physician Training" and stated that "Positions are accredited for Basic Physician Training with the Royal Australasian College of Physicians". Mr Gotting submitted that these were all consistent with the training nature of the Basic Physician Training ("BPT") position.

Dr Nathan Royan 26 Dr Nathan Royan is a medical officer at the Royal North Shore Hospital in New South Wales. Mr Murphy tendered two affidavits of Dr Royan sworn 6 February 2010 and 30 April 2010. As at January 2009, when he commenced in the position currently in dispute, Dr Royan had completed two years' public hospital experience. Dr Royan's position was similar to that of Dr Barnes. He had applied for the advertised position of BPT. In a letter of offer dated 27 November 2008, a copy was attached to Mr Craft's affidavit, the position was referred to as "Junior Medical Officer" ("JMO") with a salary rate of "Resident Medical Officer". Dr Royan accepted the position in a letter with a handwritten annotation "Please see attached email regarding conditions of acceptance". He attached an email from Karin Thompson, a Professional Officer of the applicant union, to Bob Morgan dated 3 February 2010. The email included one sent from Ms Thompson to Ian Rewell at SESIAHS dated 19 December 2008, which outlined Drs Barnes' and Royan's concerns with their employment contracts. 27 During cross-examination, Dr Royan gave evidence that after he received the letter of offer and realised he would be remunerated as a JMO rather than a Registrar, he read the relevant Award and discussed his concern with several people including Ms Thompson of the applicant union, and his peers in a similar position. He was informed by the applicant there was an issue over the definition of Registrar in the Award. The applicant's Specific Consultative Committee argued that Dr Royan's award classification should be that of Registrar. The Area Health Service's position was that he should be classified as a RMO. Dr Royan sent a letter, prepared with Dr Barnes, to the SESIAHS Human Resources Manager, Ms Georgia Deakin, dated 18 December 2008. The letter stated that it was the responsibility of the Area Health Service to make an application to the Health Administration Corporation to approve a lesser period of public hospital experience for himself and Dr Barnes. The applicant made representations on behalf of Drs Royan and Barnes that their positions be reclassified to Registrar. The applicant was unsuccessful. 28 Dr Michael Ooi acknowledged, as he did with Dr Barnes, that Dr Royan was employed by the East Coast Medical Network as a Medical Registrar for the first six months of 2009. Dr Michael Ooi is involved in the recruitment process and his evidence was that all the doctors he recruits work as Medical Registrars. He restated that all 38 positions under his establishment are Medical Registrar positions.

Dr Nicholas Maytom 32 Dr Nicholas Maytom is a medical officer at Wollongong Hospital in New South Wales. An affidavit of Dr Maytom sworn 6 February 2010 and letter of appointment dated 2 October 2009 was tendered in the proceedings. As at January 2010, when he commenced employment in the position currently in dispute, Dr Maytom had completed 21 months of public hospital experience. Dr Maytom applied for and was appointed to the position of "Independent Trainee (College Approved) (Ref:1455) in Anaesthetics" at SESIAHS, Wollongong Hospital. The position description, a copy of which was attached to the affidavit, makes numerous references to the position as "Anaesthetic Registrar". The letter of appointment dated 2 October 2009 describes his position as "Independent Trainee" and salary to be paid as "Resident - Year 2". Dr Maytom said that during his interview for the position he was asked questions referencing the position as Registrar. 33 Mr Gotting submitted that as at January 2010, Dr Maytom had completed less than the requisite three years' public hospital experience. He further submitted that there was no direct evidence of the duties performed by Dr Maytom. The only evidence of Dr Maytom performing the work of a Registrar was generalised and did not suggest independence or that it was necessarily performed by him. Dr Peter Stewart 34 Dr Peter Stewart is a medical officer at Gosford Hospital in New South Wales. An affidavit of Dr Stewart sworn 25 January 2010 was tendered in the proceedings. As at January 2009, Dr Stewart had completed two years' public hospital experience. Dr Stewart was allocated an accredited Surgical Trainee position by the NSW Regional Board of General Surgery branch of the Royal Australasian College of Surgeons. Dr Stewart made an application for appointment using a standard form where he ticked the relevant option as "Registrar/Advanced Trainee". He received a letter of appointment dated 3 December 2008 from Hunter New England Health ("HNE Health") advising that he had been appointed to the position of Senior Resident Medical Officer with the award classification of RMO Year 2 and seeking his acceptance. 35 In cross-examination, Dr Stewart said he did not sign the letter. He said he raised his concerns with the pay rate being RMO Year 2. Dr Stewart then received an email from Mr Damien Barrett at HNE Health dated 17 December 2008. In the email, Mr Barrett referred to the position as "Advanced Trainee (Registrar)". A copy of the email was attached to the affidavit along with a copy of the 2009 Registrar Allocation which included Dr Stewart. 36 Mr Murphy submitted that presumably in Mr Craft's opinion, this was another example of an "unfortunate" email which described the position, in part, as Registrar. This was reference to evidence given by Mr Craft when asked to explain letters forwarded to medical officers describing them as Registrars. During cross-examination, Mr Murphy referred to a letter to Dr Raiz dated 30 September 1989 from the Illawarra Area Health Service as an example of what Mr Craft's predecessor, Mr Alan Daley, had described as an "unfortunate letter of offer." The letter had referred to the position title "Anaesthetics/ICU Registrar" in the front and centre of the letter of offer. Dr Raiz was subsequently informed that he was to be remunerated as RMO Year 2. Mr Craft's evidence was that a letter of offer was considered an "unfortunate letter of offer" where a medical officer received a letter advising that he/she had been appointed to a position of Registrar and subsequently they were advised that they would be paid and classified as a RMO Year 1 or RMO Year 2. 37 During his oral evidence, Dr Stewart confirmed he had received the rate of pay of RMO Year 2 in 2009. He continued to work in the same role and on 13 August 2009 he received a letter from Emer O'Callaghan, Manager Medical Recruitment, advising him of his reappointment. The letter congratulated him on his continued employment and reappointment as "Registrar in General Surgery... for the period 18 January 2010 to 17 January 2011." Dr Stewart's evidence was that he had not made an application for re-employment as a registrar. He has been performing in 2010 a similar role to what he performed in 2009. 38 Mr Gotting submitted that as at January 2009, Dr Stewart had less than three years' public hospital experience. He also submitted that there was limited evidence that Dr Stewart performed functions of the kind typically performed by a registrar.

Dr Nada Hamad 39 Dr Nada Hamad is an Advanced Haematology Registrar at Royal North Shore Hospital in New South Wales. An affidavit of Dr Hamad sworn 6 February 2010 was tendered in the proceedings. As at January 2006, when she commenced employment in the position currently in dispute, Dr Hamad had two years' public hospital experience. Dr Hamad applied for an advertised position on the NSW Health JMO's website. She attached to her affidavit a copy of a document "Principles for Basic Physician Training Networks in NSW", which dealt with Medical Registrar positions and which she read before applying for the position. She said that during her interview the position was identified as a Registrar position by the interview panel. Dr Hamad received a letter of appointment dated 7 October 2005 which included a letter congratulating her on her appointment as a Registrar at Royal North Shore Hospital. However, the letter of appointment specified her salary as that of RMO Year 2. In cross-examination, Mr Craft said he attached less significance to the congratulatory letter than the letter of appointment dated 7 October 2005. 40 In her affidavit, Dr Hamad distinguished the roles of Registrar and RMO. She noted that Consultants always referred to her as their Registrar, her name tag was labelled Medical Registrar and the roster listed her name as Medical Registrar or M1 (Medical 1st on call). 41 Mr Gotting submitted that as at January 2006, Dr Hamad had less than the requisite three years of public hospital experience. He submitted that in 2005, Dr Hamad was aware of the three years' public hospital experience requirement of the Award. Dr Hamad gave the following evidence in cross-examination: Q: Dr Hamad, did you know in 2005 of the award definition of a registrar? A: Yes. Q: And you knew, I take it, that one element of the definition was that the medical officer complete three years public hospital experience or a lesser period accepted by the department? A: The answer to that is yes I know. I did know that the award did say that it required three years of public hospital experience. However, the use of the HAC term in the award was not clear to me whether that represented the hospital as agent of New South Wales Department of Health or whether it required a determination from the Department of Health itself and the reason the confusion existed for me was because I had colleagues at the time who did not have that experience were appointed as registrar and paid as a registrar. ... Q: So you knew prior to signing the letter of offer you had to make an application to the department? A: No. Q: And even though I (sic) subsequently learned that you could make an application to the department, no such application was in fact made on your behalf? A: I did request it and I was told it wasn't possible by the administrator of staff at Royal North Shore Hospital and so despite numerous attempts to do so I was told that it was something that they were not willing to pursue. I would also like to point out at the time I accepted this offer I was not able to go back and try and accept an offer from an alternative health service that was paying as a registrar although that offer was made initially. 42 Mr Gotting further submitted that Dr Hamad's first letter of appointment, for 2006, specified the position as "Basic Physician Trainee" with the base salary as "Resident Medical Officer Year 2".

Dr David Yeh 46 Dr David Yeh is a medical officer at St George Hospital in New South Wales. Two affidavits of Dr Yeh sworn 3 February 2010 and 30 April 2010 were tendered in the proceedings. He was not required for cross-examination. 47 Dr Yeh applied for the positions of "Surgical Senior Resident Medical Officer" and "Unaccredited Surgical Registrar." He attended an interview for the Unaccredited Surgical Registrar position and was offered the position. He received a letter of offer from Central Network - SESIAHS dated 5 November 2007. The letter described the position as "Senior Resident Medical Officer - General Surgery" with a salary rate of RMO 1st to 4th year. Dr Yeh raised his concerns which primarily focused on the salary rate with the Human Resources Department. The reasoning provided to him was that he did not have enough experience to be paid as a Registrar Year 1. After disputing the matter with the Human Resources Department, he was advised it was a final offer, that is, performing the work of a registrar but being paid as a RMO Year 2. His evidence was that as it was the position he wanted and that it was probably too late for him to seek an alternative. 48 He signed the contract. Dr Yeh stated that his name appears on the St George Hospital Surgical Roster for 2008 under the heading "Registrar", a copy was attached to his affidavit. 49 Mr Murphy submitted that it was clear that in 2008 Dr Yeh was undertaking the duties and responsibilities of a registrar and was entitled to be paid as such. He further submitted that the initial letter of offer advised Dr Yeh to contact the "Registrar Manager" to obtain a position description. 50 Mr Gotting submitted that as at January 2008, Dr Yeh had two years' public hospital experience. He also submitted that there was no evidence that Dr Yeh performed functions of the kind typically performed by a registrar or with the "independence" associated with a registrar. Mr Gotting used examples of registrar duties such as admitting patients, discharging patients, liaising directly with the consultant, acting as the team leader, leading hand-over meetings or teaching residents. These examples were given by Dr Michael Ooi during his evidence. Dr Andrew Clout 51 Dr Andrew Clout is a medical officer at Wollongong Hospital in New South Wales. An affidavit of Dr Clout sworn 6 February 2010 was tendered in the proceedings. As at January 2010, when he commenced employment in the position currently in dispute, Dr Clout had two years' public hospital experience. In 2009, Dr Clout applied for a position titled "Wollongong Unaccredited Trainee" on the NSW Health jobs Resident Medical Officers website. At his interview, there was no mention of any other position than that of a registrar position. Dr Clout believed the position that was advertised was for a Registrar. A copy of Dr Clout's letter of appointment and position description was attached to his affidavit. 52 Mr Murphy submitted that the job description associated with his letter of appointment lists amongst Selection Criteria "Sufficient skills, knowledge and experience to practice as a safe and competent orthopaedics registrar". His letter of appointment indicated that he would be paid as a second year RMO. 53 Mr Gotting submitted that as at January 2010, Dr Clout had less than the requisite three years' public hospital experience. He further submitted that the advertisement for the position to which Dr Clout was appointed stated that the "Doctor will receive direct supervision and support from the Department Consultant" and the "Trainee will have access to a senior supervisor at all times". Mr Gotting submitted that this indicated that the holder of the position was not to exercise the independence advocated by Dr Vincent Varjavandi, a staff specialist at the Sydney Children's Hospital in Randwick. Dr Varjavandi was called by the applicant to give evidence. Relevantly, in respect of the issue, Dr Varjavandi gave the following evidence.

55 Dr Michael Ooi stated that every year he has appointed a certain number of registrars who commenced work in their 3rd post graduate year. Dr Vincent Varjavandi's 56 The applicant called Dr Vincent Varjavandi, a staff specialist in paediatrics surgery at the Sydney Children's Hospital in Randwick, to give evidence about the role of Registrar in contrast with the role of RMO. He gave the following evidence in examination-in-chief: Q: Are you able to describe to the Court, as you see it, the role of the Registrar in contrast with the role of the Resident Medical Officer? A: In the surgical field, this is throughout all specialities, it's a quantum leap in the transition from Resident to Registrar, they act completely different in terms of what they are expected to do. If we start with the Resident... ... It's very much a bookkeeping thing. So they're writing notes and they look at the patients on the ward, so it's basically writing charts and sorting out medications. The job of a Registrar, as I say, it's a real step in seniority. So their main role - the biggest difference is they deal with the patients who present to the Emergency Department, and this is across all things, so they will deal for [sic] the abdominal pains, and this is surgery, to the multiple traumas section. Their prime job is to decide who is sick, who needs to be admitted to hospital for an operation and who is not sick. It's an incredible responsibility. That's a life or death front line job and that's the Registrar's job...They also do operations after hours and that is often independently. ... Q: When you say "a Registrar operating independently", independently from whom? A: From a consultant. There is always a consultant on-call. When they decide this patient needs to go to theatre, they call the consultant who's on-call who says "I agree", the consultant will say, "are you happy to do that?" If it's a simple procedure they will do that in the operating room independently. It's a huge responsibility. ... Q: Are you able to identify any other differences between the role of the Resident and the Registrar? A: The main difference is who they liaise with, who they report to, if you like. Residents, their job is to report to the Registrars. So they will deal with problems on the ward, if they have something they can't handle, they speak to the Registrar. The job of the Registrar is they very much are in direct liaison to the consultant, they continue being in contact with the consultant discussing patient management. Respondent's evidence 57 Mr Trevor Craft is the Deputy Director, Workplace Relations and Management in the NSW Department of Health. He is responsible for managing the development, implementation and evaluation of industrial relations policy and workplace reforms affecting employees and other participants in the New South Wales public health system. Mr Craft has occupied Senior Executive Service positions in the NSW Department of Health dealing with industrial relations, employee relations and workplace relations since November 2000. 58 Mr Gotting read a statement of Dr Craft dated 14 April 2010. Relevantly, Mr Craft stated that, "I understand and am of the view that it is possible to perform the duties of Registrar but not have the title (or be appointed to the position) of Registrar." In his statement, Mr Craft outlined the history of the relevant Award, the definition of Registrar and the application of the Award definition of Registrar. He then dealt with each of the doctors involved in these proceedings. He determined that there were no exceptional circumstances relating to the appointments of each of the nine doctors to justify a reclassification of their positions as Registrar. 59 Mr Craft was cross-examined by Mr Murphy on the way in which he determined applications made by doctors seeking to be re-classified as Registrars. Mr Murphy submitted that it was accepted by Mr Craft that the respondent has no policy which deals with the determination of whether or not a period of less than three years experience is acceptable. Relevantly, Mr Craft gave the following evidence: Q: Is there any issue [with] the Department of Health policy dealing with the determination of whether or not a period of less than three years is acceptable to the department for persons reclassified as a Registrar? A: I don't believe there is a policy on that point. Q: So when you're conducting the determination we are talking about, the acceptability of the lesser period, you do not have an issue the Department of Health policy to consistent [sic] you in that determination, is that the case? A: I do have the Department of Health policy in respect of Resident Medical Officers, that forms part of the suite [sic] of assistance and policies behind that determining or deciding the power. Q: You don't have an issue with the Department of Health policy on the responsibility and duties of a Registrar, do you? A: No I don't. 60 Mr Murphy further submitted that there are no guidelines to assist in the consideration of whether or not a lesser period is deemed appropriate. In cross-examination, Mr Craft gave the following evidence: Q: In your researches, or those you directed occur, were you able to find whether or not at or after this time there were any guidelines promulgated which would assist someone to consider whether or not a lesser period was deemed appropriate? A: My understanding is there are no guidelines of the nature you have postulated. 61 Mr Murphy submitted that it was accepted by Mr Craft that the doctors in these proceedings would have discharged the functions and activities of a Registrar as described by Justice Kelleher in 1974, and that a delegate making a decision may only give consideration to matters that are relevant. 62 In terms of the consideration of day to day duties and responsibilities of the doctors in determining their applications, Mr Craft gave the following evidence: Q: When you make a determination whether a lesser period than three years is acceptable to the Department, one of the things you give serious consideration to is the role - I mean the actual day to day duties performed by, and the responsibilities on and accepted by these individuals, you examine what they do? A: That is one of the considerations yes it is. Q: It is an important consideration is it not? A: It is an important consideration. ... Q: When the person who has the task of deeming whether the lesser period is appropriate is performing that task, you would accept it would only be properly performed by taking into account matters that were relevant to the role of a Registrar? A: That would be a consideration yes. 63 Mr Craft included in his statement a list of comparative cases where applications had been made to the respondent concerning the appropriate classification of medical officers, and in particular seeking re-classification of medical officers to Registrar positions. Mr Craft provided details of approximately 30 cases where approval had been granted. However, an analysis of the circumstances of the successful applications shows that approval was granted in circumstances where the doctor was the sole applicant for the Registrar role, where the doctor was close to the requisite three years' experience such as Dr McNamara who had two years and seven months of public hospital experience, and circumstances where there was a shortage of Registrars in a particular department. The applications that were refused were refused on the basis that there were no exceptional circumstances warranting dispensation from the Award requirement for Registrars of three years' experience. When dealing with the circumstances of the doctors involved in these proceedings, Mr Craft concluded that there were no exceptional circumstances in each of the cases. Relevantly, in cross-examination, Mr Craft gave the following evidence: Q: The provision simply provides for three years experience or any lesser period accepted to the Department of Health? A: Yes it does. Q: So a lesser period, the less than three years, has to be acceptable to the Department of Health that's the qualification? A: Correct. Q: There is no additional gloss in the nature of "and you will only be approved in exceptional circumstances". That does not appear, does it? A: Not in those words, no.

Q: So that is something you have read into the provision, is it? A: What I have read into the provision is the provisions in totality and also in coming to a decision as the delegate of the Director-General taking into account all the information that is placed before me. Q: But ultimately your task is to determine whether or not a lesser period, say for example two years - you would accept that of the nine doctors who are involved in these proceedings, the situation has generally been that they have been appointed into the position in dispute after two years rather than three years. That is your understanding of the position, isn't it? A: Yes, they have been appointed to positions which they assert should be classified and remunerated at the Registrar rate, yes. Q: And they have been appointed at the end of their second year to begin work in those positions at the beginning of their third year. That has been the general situation? A: I accept that, yes. Q. So, in their case, the consideration is whether two years experience in public hospitals as opposed to the three years specified in the award provision - whether the lesser period of two years is acceptable to the Department of Health - that is the task that you are required to perform when considering these applications? A. And having - yes, having regard to the material that is placed before me. Q. And you are telling his Honour that when you have regard to that material in coming to a decision as to whether or not two years experience is acceptable, you look for exceptional circumstances? A. I do look for exceptional circumstances that except the norm, which is the three years. Q. Are they exceptional circumstances if they except the norm? A. They may be. Q. It is your formula "exceptional circumstances", I didn't make it up? A. Correct. Q. It is coming from your own letters where you embrace that term? A. Yes. Q. So that is what you looked for in determining whether to accept two years in lieu of three? A. Correct. I also have regard to what has occurred before. I have regard to my understanding of developments such as the basic position training scheme, the surgical education training schemes. I have regard to any offers that may have been made to the employees in question the terms of those offers and in particular formal letters of offer and appointment and also the expectation or suppositions underpinning the award itself in terms of what the classifications are meant to do. Q. I think you agreed, you have looked at these exceptional circumstances even though there is no express reference to such a requirement in the award provision itself, is that so? A. Yes, I looked for exceptional circumstances because the representations are seeking an exception to the norm.

(iii) is occupying a position of registrar in an established position as approved by the employer. Principles for declaratory relief 67 Before turning to the submissions of the parties in respect of the merits of the application, it is important to note the submission of the respondent that the application does not involve a "review" of a decision of the respondent in rejecting applications by medical officers for classification as a registrar. The respondent submitted that the application is not a "review" of the kind conferred by s 181E of the Police Act 1990 (NSW), which involves the Commission considering the "merits" of the removal of a police officer by the Commissioner of Police and making a fresh and independent decision. Similarly, it was submitted that the application is not a "review" of the kind conferred by s 63 of the Administrative Decisions Tribunal Act 1997 (NSW), which involves the Tribunal considering whether the administrator made the "correct and preferable decision". It was further submitted that the application does not involve "judicial review" of a decision of the respondent. The application is not a review involving a consideration of the "legality" of a decision (such as the respondent taking into account irrelevant factors in the making of a decision to reject a lesser period of public hospital experience). 68 Section 154(1) of the Act provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. 69 Hungerford J in Ford v SAS Trustee Corporation and Another (2000) 98 IR 444 at [9] set out the principles for granting declaratory relief under s 154 as follows: [9] Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act, subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438:

It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." 70 I will approach the determination of this matter in accordance with these principles. Incidentally, I note that there are a number of authorities of this Court which make plain the scope for the availability of relief pursuant to s 154 and generally speaking adopt a similar approach to Hungerford J: Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213; Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369; T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 at [13] - [15]. Applicant's submissions 71 The applicant's written submissions, after setting out the definition of "Registrar", helpfully detailed the essential elements of its approach in this way: ... 2. Taking these three elements in reverse order, with respect to (iii), it is clear from the evidence of Trevor Craft that the concept of "established position" has largely been displaced by the concept of "funded position" (T18, L1-8). However, Dr Sze Yuan (Michael) Ooi, Network Director of Physicians Training East Coast Medical Network, still spoke in terms of his establishment of Registrar positions being 37 in 2009 and 38 in 2010 (T41-45).

(e) the classification for an industrial award (such as the Award or the 2005 Award). 76 The respondent acknowledged that whilst there was some evidence (in isolation and ignoring other evidence) of the use of the word "Registrar" in relation to the nine medical officers, the use in that evidence, properly understood, was in the sense of (b) and (d) and possibly (c) in some cases, but significantly not (e). 77 Accordingly, it was submitted that none of the nine medical officers occupied (or occupies) an established position of Registrar (given that they were not appointed to the position of Registrar) and not all of the nine medical officers performed the full range of duties of a registrar. For example, there was no evidence that Dr Yeh performed functions of the kind typically performed by a registrar such as admitting patients, discharging patients, liaising directly with the consultant, acting as the team leader, leading handover meetings or teaching residents, or with the independence associated with the role of a registrar). There was no evidence of the duties performed by Dr Ooi, or direct evidence of the duties performed by Dr Maytom and limited evidence that Dr Stewart performed functions of the kind typically performed by a registrar. Dr Chau worked in a disputed position at Concord and Nepean Hospitals for the majority of 2008 and 2009 under the supervision of an advanced trainee, thereby not liaising directly with the consultant, a feature of the work as a registrar. 78 None of the nine medical officers had completed three years' public hospital experience at the time of their appointment to the disputed positions, nor had they been "accepted" by the respondent for a lesser period of public hospital experience. 79 Accordingly, the respondent submitted that the Court should dismiss the application as none of the nine medical officers satisfied all elements of the definition of "Registrar" in the Award, or the 2005 Award. 80 The respondent also submitted that the application did not involve the Court determining for itself the acceptability of the period of public hospital experienced of the nine medical officers, nor does it involve judicial review of the decision of the respondent to not accept a lesser period of public hospital experience. 81 The respondent proceeded to detail the factual background of the definition of "Registrar" as found in the Award and analysed the evidence in respect of each of the nine medical officers, concluding that none of them met the elements of the definition of "Registrar" in the Award. 82 The respondent acknowledged that relevant specialist colleges, for example the Royal Australasian College of Surgeons, have altered their training pre-requisites, including, relevantly, the reduction of the requisite public hospital experience from three years to two years. It contended that this reduction by the relevant specialist colleges did not mean that the respondent was bound to accept a period of two years' public hospital experience and was precluded from insisting on three years' public hospital experience for the purpose of the Award. Advertisements which referred to two years' public hospital experience merely reflected the reduction in public hospital experience required by a specialist college. 83 In answer to the applicant's submission that the respondent had accepted a lesser period of public hospital experience in respect of the nine medical officers, the respondent submitted that if this was the case, there would have been no need for the relevant Area Health Services to make applications in respect of any of the medical officers and for the respondent to make a determination adverse to them. The respondent regards it as necessary for the Area Health Services to make applications for an exemption from the three years' public hospital experience requirement. The respondent rejected that any of the Area Health Services had ostensible authority to agree to a lesser period of public hospital experience without the specific approval by the respondent which was not forthcoming. 84 The respondent rejected the applicant's contention that Circular 89/160 issued by the respondent on 3 November 1989, amounted to a delegation to the Area Health Service of the acceptance of a lesser period of public hospital experience. This Circular had provided: CREATION AND GRADING OF POSITIONS IN AREA HEALTH SERVICES/PUBLIC HOSPITALS 1. Circular 83/15 issued on 21 January 1983 granted authority for the first time to hospitals enabling them to determine their own staff establishment requirements, within budgetary constraints. This authority did not extend to regrading positions already established - the procedures to be followed in that respect were set out in Circular 87/1 issued on 7 January 1987. 2. Now, following consultation with Area Health Service and regional personnel it has been decided to extend the existing authority to include regradings and reclassifications within certain parameters. 3. Accordingly, two lists of Awards/Agreements/Determinations having application in the public hospital sector are attached. In respect of the first list, Areas/Regions are now free to determine all applications for regrading/reclassification in addition to creating and deleting positions. 4. The second list includes awards/agreements/determinations which contain Grading Committee or credential committee clauses under which gradings are determined following recommendations made by joint employer/employees committees. At this point it is proposed to continue the centralised process which has operated historically in relation to these, subject to further review and consultation with the unions involved. At this stage therefore, authority in respect to the groups in list two is to be retained centrally. 85 The respondent submitted that irrespective of the apparent non-rescinding of this Circular, the respondent had continued to act on the basis that it alone determined applications to accept a lesser period of public hospital experience and continued to remind the Area Health Services that it alone determined the applications. It noted that Area Health Services had continued to make applications after Circular 89/160 to approve lesser periods of public hospital experience. 86 The respondent set out eight factors that were taken into account in dealing with applications. It was submitted that the effect of these factors was that there was no absence of consistency in the approach of the respondent. This led the respondent to submit that the approach of the applicant in reality, was that the results of the applications by the nine medical officers to have a lesser period of public hospital experience accepted was unfair and that the Court should therefore intervene to rectify the unfairness. This, it was submitted, the Court was unable to do in this case. Principles to be applied in interpreting the Award 87 The relevant principles of construction in respect of an award and the approach which should be adopted to the interpretation of provisions in an award were recently stated by the Full Bench in Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union (2008) 180 IR 170. Definition of "Registrar" in the Award 88 It is necessary to consider the submissions as to the meaning to be given to the word "Registrar" as found in the Award and the 2005 Award. As a matter of proper construction of the Award, the appropriate approach is to ascertain the meaning of the words used in the Award in their context, and to give effect to that meaning, as opposed to applying a generalised notion of a fair and reasonable outcome. One of the principles of construction in interpreting a word, or words, in an award, is to avoid an interpretation that produces absurdity, repugnancy, or inconsistency: Kucks v CSR Ltd (1996) 66 IR 182 at 184; ALHMWU v Manilla RSL and Ex-Servicemens' Club Ltd [2000] NSWIRComm 122. 89 In order to fall within the definition of "Registrar" in the Award, it is necessary to satisfy three components of the definition. Firstly, the completion of three years of public hospital experience. Secondly, the appointment to a position of "Registrar" and thirdly, the position to which the medical officer is appointed is an established position of "Registrar". In the event that a medical officer has not completed three years' public hospital experience at the time of their commencement in a position classified as "Registrar", the respondent is conferred with a discretion to accept or reject a lesser period of public hospital experience. 90 The history of the Award and the 2005 Award reveals that the parties to the industrial instrument agreed that a medical officer with less than three years' public hospital experience was not to be classified as "Registrar" simply because the medical officer was performing the traditional duties of a registrar, but needed to satisfy additional requirements including obtaining a favourable exercise of the discretion by the respondent. The parties to the Award have clearly accepted that the respondent is the appropriate body to make the assessment of the acceptance or rejection of a lesser period of public hospital experience in circumstances where the Award operates throughout New South Wales. 91 The primary aspect of the definition is the completion of three years' public hospital experience, with the secondary aspect of the element being the acceptance of a lesser period of experience in respect of each of the nine medical officers. There is no qualification on the discretion of the respondent to accept or reject a lesser period of public hospital experience. In such circumstances, the respondent is free to formulate a policy or practice concerning its acceptance or rejection of a lesser period of public hospital experience.

92 The real complaint of the applicant in respect of the fairness and consistency of decisions by the respondent are directed to the exercise of the discretion, rather than differences in construction of the definition of "Registrar". 93 The evidence called by the applicant suggested that the respondent should accept an application for a lesser period of public hospital experience if the medical officer was the holder of a senior position, or performed the duties of a position traditionally understood as being performed by a registrar. However, I conclude that it is only if a medical officer satisfies the three elements of the definition in the Award that he or she is entitled to be paid as a registrar. Consideration 94 The respondent placed significant importance upon its discretion to accept or reject a lesser period of public hospital experience in respect of each of the nine medical officers. The Award, in my opinion, does not fetter the discretion of the respondent in any way at all, leaving it free to formulate a policy or practice concerning its acceptance or rejection of a lesser period of public hospital experience, including the formulation of a requirement that the circumstances be "exceptional" before a lesser period is acceptable. 95 Applying the terms of the definition, as I have determined, I am not persuaded that there has been acceptance by the respondent of a lesser period of public hospital experience. Furthermore, the evidence discloses that each of the nine medical officers were not appointed to the position of "Registrar", but rather to "Basic Physician Trainee" positions, which are trainee positions accredited with the Royal Australasian College of Physicians and involved the holder participating in an annual rotation program, or a "Surgical Education and Training" position ("SET program"). A "SET program" position is a training position accredited with, and appointed by, the Royal Australasian College of Surgeons and involves the holder participating in a training program across nine specialties. A "SET trainee" must also have completed the first and second years of post graduate experience as a medical officer. A BPT position, a "SET program" position and any other trainee position is separate to and distinct from a position of "Registrar". 96 Each of the nine medical officers, other than Dr Yeh, were appointed to a training position (such as a BPT position), "SET program" position or another trainee position in circumstances where the majority of medical officers wish to obtain medical specialisation through a specialised college by appointment to a position accredited by the specialised college. 97 It emerged during the proceedings that relevant specialist colleges (the Royal Australasian College of Surgeons and the Royal Australasian College of Physicians) have altered their training prerequisites, including relevantly, the reduction in public hospital experience from three years to two years. Advertisements were placed by the Colleges which refer to two years' public hospital experience. Such advertisements emphasised appointment to a BPT position, or a trainee position. 98 Unsurprisingly, the applicant claimed that: (i) by the very act of advertising the positions of "Registrar";

meant that the lesser period of public hospital experience must have been accepted by the respondent. This led the applicant to submit that the respondent and the Area Health Services had therefore accepted, in relation to each of the nine medical officers, a lesser period of public hospital experience. 99 However, there was no evidence that the respondent had accepted a lesser period of public hospital experience for the nine medical officers. The evidence was that the respondent had expressly rejected the applications to accept lesser periods of public hospital experience for Drs Barnes and Royan. There was no evidence that the respondent had received an application to accept a lesser period of public hospital experience for Drs Chau, Clout, Hamad, Maytom, Ooi, Stewart and Yeh. There was evidence that the respondent required Area Health Services to seek from it approval of a lesser period of service, which was relevant to the positions obtained by Drs Clout, Maytom and Ooi. There is evidence of Area Health Services rejecting proposals that Drs Clout, Hamad, Yeh and Ooi be paid as registrars, therefore rejecting the possibility of accepting a lesser period of public hospital experience. The SESIAHS regarded itself as being unable to approve a lesser period of public hospital experience in respect of Drs Barnes and Royan. It advised these doctors that it would be seeking approval from the respondent that they be graded as "Registrar". 100 Although the applicant endeavoured to rely on the principle of "agency" to establish that the respondent accepted a lesser period of public hospital experience in relation to the nine medical officers, there was no evidence which supported the existence of either express or implied agency. In this regard, the applicant sought to rely upon Circular 89/160, which it contended amounted to a delegation by the respondent to the Area Health Services to determine acceptance of a lesser period of public hospital experience. 101 Although it was common ground that Circular 89/160 had not been rescinded, it is clear from the evidence that the respondent had continued to act on the basis that it alone determines applications to accept a lesser period of public hospital experience. It has continued to remind Area Health Services that it determines the applications, the last advice to Area Health Services being a memorandum dated 11 August 2009. Area Health Services have continued to make applications despite Circular 89/160, for approval of a lesser period of public hospital experience. 102 In tracing the history of those medical officers whose applications to be classified as Registrar were approved, in my opinion, even if it could be established that the respondent had acted inconsistently in accepting or rejecting applications for lesser periods of public hospital experience (a suggestion which was denied by the respondent), the Court cannot intervene. The applicant has only invoked a jurisdiction to grant declarations of right. There is no right of the applicant or the nine medical officers to be treated consistently in a consideration of an application to approve, or reject, a lesser period of public hospital experience pursuant to s 154 of the Act. 103 The applicant has not invoked the jurisdiction where the principles of consistency, or fairness, is relevant. Indeed, counsel for the applicant submitted that the applicant was not seeking to appeal the decisions of the respondent in respect of the nine medical officers in asking the Court to determine questions of fairness. Counsel emphasised that this case required an interpretation of an industrial instrument and that the authorities cautioned against an interpretation which results in a bizarre outcome. It was accepted that it was not some attempt at a judicial review of the respondent's decisions. 104 In my view, the court is not vested with jurisdiction pursuant to s 154 to undertake a merit review of each of the applications and despite the applicant rejecting this contention, act as a review or appellate tribunal in respect of decisions made by the respondent. In my opinion, the Court cannot sit in the position of the respondent for the purpose of determining whether a lesser period of public hospital experience should be accepted for the definition of "Registrar" for the purposes of the Award or the 2005 Award. 105 The Court is neither conducting a hearing de novo of the decision of the respondent, nor an appeal against a decision of the respondent. The evidence discloses that six of the medical officers, other than Drs Barnes, Royan and Clout, accepted their letters of offer that specified expressly the rate of pay as that of "Resident Medical Officer". Both Drs Barnes and Royan recognised and appreciated the difference between the pay rate they assumed they would receive for the position and the pay rates specified in their letters of offer. They accepted the offers on the condition that the respondent might approve a lesser period of public hospital experience which may have led to their classification as "Registrar" for the purposes of the Award but appreciated that the respondent might reject a lesser period of service which would result in their continuing classification as an RMO. Dr Yeh appreciated that his letter of offer specified the rate of pay as that for RMO and raised the issue of the pay rate with the SESIAHS. He was informed that he would not be paid at the rate for a registrar and accepted the position without dispute or qualification. 106 To my mind, the critical question is the distinction between whether the medical officers are registrars as opposed to whether they should be registrars. The answer to the latter question requires findings of fact to be made which is not appropriate in respect of proceedings brought under s 154 of the Act. I therefore, in the exercise of my discretion, reject the application. 107 However, in my opinion, it is appropriate for me to observe that the situation that has emerged during the course of the proceedings has highlighted the need for the parties to address the definition of "Registrar", particularly in circumstances where the specialist colleges have altered their training prerequisites and reduced the requisite public hospital experience from three years to two years. Although the reduction does not mean that the respondent is bound to accept a period of two years' public hospital experience, its reluctance to do so in an appropriate case would be unfortunate and could give rise to an industrial injustice. 108 Furthermore, the current system that sees medical officers respond to advertisements for positions described as "Registrar" and accept positions advertised as such by the Area Health Services and which then requires the Area Health Services to apply to the respondent for medical officers with less than three years' experience to be recognised as "Registrar", has the clear potential to result in an injustice. The application for exemption occurs at the end of the process and after it has run its course. In addition, the evidence disclosed advertisements have been placed for appointments to positions that are not found within the classification structure of the Award. The consequence of this is that a medical officer appointed to such a position may be carrying out the duties and responsibilities of a "Registrar" but only being paid as a "Resident Medical Officer." Such a situation is clearly unfair and should be addressed. The evidence that referred to "unfortunate letters of offer" (see [36]) only served to highlight the inadequacy of the present system. 109 Finally, I would encourage the Director-General and the applicant to give consideration to the establishment of an appeal system for unsuccessful applicants who have applied to be classified as registrar pursuant to the Award. Part 7 of the Act establishes an appeals mechanism for public sector promotion and disciplinary appeals for employees who wish to challenge a decision made by a department. Enabling medical officers who have had their application rejected to seek a review of an unfavourable decision would provide for an independent assessment of the decision to be undertaken. With this in mind, and in light of the evidence, I would invite the Director-General or his delegate, to review all of the decisions made in respect of the nine medical officers the subject of this application and in particular the applications of Drs Barnes and Royan. ORDERS 110 The Court makes the following orders: 1. The application is dismissed. 2. The question of costs is reserved. The question of costs has been reserved because the proceedings involved a dispute between a trade union and an employer of a number of its members concerning whether some of its members had the right to be classified as a "Registrar". This decision may assist the parties and it may therefore be appropriate that there be no order as to costs. However, I grant liberty to apply in respect of the question of costs. Such liberty should be exercised within 21 days of the date of this judgment.

Health Services Union v Director-General NSW Department of Health

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (10)

Cited By (2)