South Australian Salaried Medical Officers Association & Anor v Chief Executive, Department for Health and Wellbeing, Chief Executive, Attorney General's Department [2025] SAET 58

1. The applicant submitted that the Tribunal has "wide powers to adjudicate upon and to resolve disputes concerning matters which might reasonably be regarded as affecting the employer and employee relationship or which might be the source of disharmony in that relationship."[1]
2. However, the applicant conceded that the Tribunal should "exercise caution" before making an order resolving a dispute where that order "would amount to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted."[2]
3. It is the contention of the applicant that the Tribunal should interfere so as to direct that the IDU outpatients not be required to relocate to 21 North Terrace on the basis that such a relocation will compromise the clinical care provided to patients, the safety of patients, the safety of staff and will substantially add to staff workload.
4. In support of those contentions, the applicant relied upon a number of affidavits and additional oral evidence from a number of the deponents.
5. Generally, it is unnecessary for me to go through each of the witnesses' evidence individually in detail, as they were called to support a number of common contentions which were fairly and accurately summarised in closing submissions. I will deal with each of those contentions in turn.

1. The applicant submitted that the evidence established the IDU has a high proportion of vulnerable patients; a higher proportion than other outpatient units.
2. Further, with such a cohort, the greater the barriers to care, the more likely they would be to disengage from the service. The applicant submitted the respondent has focused its consideration on clinical needs rather than barriers to care.
3. The evidence established that there were a number of aspects of the move which presented barriers to care. These included the lack of an adequate safe space; no longer providing a "one-stop shop" (my words); the perceived stigma associated with being removed from the hospital proper; being a smaller, less aesthetically pleasing area; difficulties associated with prompt pathology testing and reporting; difficulties with accessing prompt pharmaceutical needs; access difficulties to the premises themselves.
4. Not only would patients disengaging from the service adversely impact on the well-being of the patients themselves, but given the nature of the conditions for which they were undergoing treatment, there would be an adverse impact on the community generally. Moreover, seeing patients disengage would have an adverse effect on the staff themselves.

1. This specifically related to pathology services, pharmacy needs and patients requiring to see other clinics.

1. Witnesses spoke of the present difficulties in arranging ad hoc assessments of IDU outpatients by other specialists. It has proved difficult to find consultants or registrars from other units willing to attend at IDU outpatients to provide multidisciplinary input. If the IDU outpatients was relocated out of the main hospital precinct, it could be expected that arranging such multidisciplinary input would be well-nigh impossible.

1. The IDU presently has three nurse specialists on its staff who are responsible both for inpatient and outpatient work. If the outpatient unit is physically removed from the hospital premises, then considerable extra time will be involved in travelling between the outpatient unit and inpatient wards. The relevant inpatient wards are not only the IDU ward but all other wards where a significant number of inpatients require input from the IDU team.
2. Any reallocation of services amongst the three nurses so as to provide separate coverage for inpatients and outpatients would involve a degrading of their individual specialities. A proposal by the respondent to provide an additional .8 FTE nursing service does not ameliorate these concerns, when there is no clear plan as to where or how these additional nursing services will be utilised.

1. This concerns registrars and resident medical officers. With the IDU inpatient unit and their workspace being situated within the hospital proper, if the outpatient unit is situated externally, additional travel and logistical difficulties in conferring with their consultants and outpatients would increase the workloads, which are already extreme.

1. If the outpatient unit is situated external to the hospital, the unit would no longer have the coverage of the internal security service and would need to rely upon a police response to any security needs.
2. Similarly, in relation to medical emergencies, should they arise at the relocated outpatient unit, then the patient would need to travel back to the hospital or have ambulance services called to take them there.

1. The applicant was critical of the fact that should this challenge to the relocation decision fail, the relocation is not yet ready to occur. Additional equipment needs to be installed. Additional building works are required. Recruitment of a proposed WHA 5 staff member and job guidelines need to be undertaken. The additional nurse resources need to be arranged and changes to the nursing workflow need to be determined. Arrangements for other specialist consultations and the provision of space for the same needs to be undertaken. In the circumstances, even if the proposal for relocation is not set aside, an order should be made that relocation is not to occur until these matters have been satisfactorily addressed.

1. Whilst the respondent accepted that there is a significant cohort of vulnerable patients associated with the IDU, it emphasises the fact that there are a significant number of vulnerable patients across the hospital system. The emphasis of the hospital must be to provide for the clinical needs of all of its patients to the best of its ability within its financial limitations.
2. Moreover, the previous move from the old hospital site to 1 Port Road was managed. There is no reason to believe this move will not be managed as well.

1. The respondent relied upon its statistical information indicating that an average of 1.9 IDU outpatients collected their medication on the day of their outpatient appointment. New patients, or existing patients accessing a new prescription, averaged one per day.
2. It was contended by the respondent that a newly created WHA 5 position could cope with that volume of pickup and delivery, and that any necessary medication discussions required to be with the pharmacist could be addressed via Teams on-line if the patient did not wish to attend across the road to the pharmacy itself.
3. In terms of pathology services, with a more frequent collection service from the outpatient clinic and priority given to all pathology services coming from the clinic, coupled with the ability of the WHA 5 to attend to more urgent pickups, the respondent submitted pathology needs would be met.

1. Where multi-disciplinary input was required, Teams could again be utilised in most cases. If a face-to-face consultation was required, arrangements could be put in place for a consulting room to be made available at 1 Port Road.

1. While specialisation amongst the nursing staff is to be encouraged and supported, the nursing staff should nevertheless remain multi-skilled so as to avoid a single point of failure in circumstances where a staff member may be otherwise engaged, away on leave or the like. The addition of an extra .8 FTE nurse can be employed wherever may be most useful to the IDU outpatients, to accommodate any additional workload created by cross-road travel.

1. There should not need to be repetitive travel across North Terrace. Many contacts with the consultants can be managed via Teams.

1. There are already a number of outpatient services successfully operating outside of the RAH internal security umbrella. If there is an identified cause for concern in relation to a particular booked outpatient visit by a patient, specific security arrangements can be put in place. Staff are trained in de-escalation techniques and there is a second wait area that can be utilised.
2. In terms of emergency callouts, one of the reasons why the IDU outpatients was selected for relocation was the lack of such calls compared to other outpatient services currently located at 1 Port Road.

1. In terms of fit out and equipment, the outstanding matters can be attended to promptly.
2. Insofar as staffing work practices are concerned, the additional resources are available, and the systems will be adjusted on an as needs basis.

1. As the applicant concedes, it is only with caution that I should interfere with management decisions made by the respondent. However, it submits that does not require that I should find the decision was unreasonable before I should intervene. Reliance was placed on CFMMEU v Mt Arthur Coal Pty Ltd.[3]
2. Mt Arthur Coal concerned a challenge to the validity of an employer's directive that all workers required a COVID-19 vaccination in order to be permitted entry to the mine site.
3. The Full Bench of the Fair Work Commission considered the directive was not reasonable. In so deciding, the Full Bench held that the test of reasonableness was not whether a reasonable employer, in the position of the actual employer, and acting reasonably, could have issued the directive. It declined to follow the decision in Woolworths Ltd v Brown.[4] Its reasoning for not following the decision was that such a formulation shed no light on the issue to be determined.[5] Further, it did not consider such a formulation of the test sat comfortably with the plurality of the High Court in Minister for Immigration and Citizenship v Li which held:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it ...[6]

1. Rather, test of reasonableness is an objective assessment having regard to all of the circumstances.[7] That assessment will include, but not be determined by, whether there is a logical and reasonable basis for the challenged direction.[8] However, to prove reasonableness, it was not necessary to establish the directive was the most appropriate course of action or accorded with "best practice" or in the best interests of the parties. There may be a range of options within the parameters of reasonableness.[9] The Full Bench cited the respondent's submission with approval that:

In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer's power of direction there is an area of 'decisional freedom' within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called 'managerial prerogative'. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.[10]

1. The respondent goes so far as to submit I should only do so if satisfied that no reasonable person in the respondent's position could have made the challenged decision. The respondent relies upon the decision of the Full Bench of the Tribunal in Chief Executive, Attorney General's Department (Department of Treasury and Finance) v SASMOA where it was held:

The exercise of the managerial prerogative will not be found to be unreasonable if a reasonable person in the position of the employer [could have] made the decision.[11]

1. The applicant submits I should interfere if I am of the view that patient or staff care or safety would be adversely affected to an unacceptable degree. In part, this is based upon an exchange between counsel and me when the terms of my role in the oversight of the consultation process were discussed.[12] The respondent submits that discussion was limited to the consultation process and did not impact upon my role in any subsequent arbitration. Moreover, in any event, the parties cannot simply grant to me additional arbitral powers.
2. It is my belief that the exchange to which the applicant refers was made in the context of the consultation process and who should have oversight of it. Speaking for myself, I did not mean anything I said to be directed to the subsequent arbitration, should the consultation be unsuccessful in resolving the dispute.
3. In terms of how I should approach a cautious interference in management decisions, recent Full Bench authority in this Tribunal has used, as a yardstick, the reasonableness of the decision sought to be impugned.
4. The different formulations of the relevant standard in most cases will be a matter of semantics. Essentially, cautious interference requires that I am satisfied that the decision impugned should not be allowed to stand. To be so satisfied, I must view the decision as unreasonable. I am content to approach my task on the basis that I should only be prepared to interfere with the management decision if satisfied that the impugned decision is not within the bounds of reasonableness.

1. The next preliminary issue I need to consider is the decision of the respondent not to renew the sublease of the 3D space.
2. The applicant submits I should ignore that decision. Whilst it accepts that I cannot directly require the respondent to renew the sublease, that may be the practical effect of an order preventing the proposed relocation of the IDU outpatients. However, it submits, I should not concern myself with that.
3. I cannot accept that. The fact is this whole situation has come about by virtue of a commercial decision not to renew the sublease so as to effect a significant saving of funds which can then be used to improve patient services across the RAH.
4. I do not understand that there is any suggestion by the respondent that the relocation of the IDU outpatients will provide a standard of care to its patients better than at present. In any event I find that as a matter of fact it would not. Rather, it submits that the level of care will still be of a satisfactory standard whilst freeing up much needed funds for the RAH. The task I have is to determine whether the IDU outpatient relocation decision to free up funds will still allow care of a sufficient standard, whilst not necessarily "best practice", to enable me to say the decision falls within the bounds of reasonableness.

1. A common thread running through the cases for each party was their individual views on the appropriate model of care.
2. A linchpin of many of the applicant's witness statements and submissions was how the relocation would adversely impact the continuity of care to the patients - for the same practitioner consistently to be the point of contact for an individual patient. It is submitted the current arrangement substantially supports this model; the second proposal would not.
3. In contrast, the model the respondent accepts as being required to be used in practice is a team-based model - that there will always be a team member available to provide the service, but it may not always be the same individual practitioner. The second proposal should achieve that. Whilst an individual continuity of care model may be preferable, it is not financially practicable across the entire hospital.

1. The applicant criticises the respondent for the fact that many details of what is proposed are yet to be determined - for example, the job description and role of the WHA 5 and the additional nursing services.
2. For its part, the respondent cites the unwillingness of the IDU staff to engage constructively in the process - the ongoing list of difficulties, without constructive suggestions.
3. Certainly, it is clear that the majority of witnesses upon whose evidence the applicant relies are totally opposed to the relocation at all. Hence they have not approached the proposal on the basis of what changes can be made to the proposal to make the relocation acceptable. In contrast, the respondent is suggesting a change in the way in which the services are to be provided going forward, with a number of specific proposals reactive to problems identified and solutions proposed on the basis of try it and see, without any assurances they will be successful.
4. I have viewed the premises at 21 North Terrace, as well as the present IDU outpatients rooms at 1 Port Road. I consider the proposed premises are not as aesthetically pleasing as the present outpatient unit. They are significantly smaller. Nevertheless, I do consider they are adequate in size and do provide all of the required facilities. The waiting room is adequate. The reception desk provides for 2 ICU staff. There is a consulting room adjacent to it available for private conversations.
5. There is facility for breakout conversations - in the consulting room and the secondary waiting area as well as outside the area itself.
6. Although a number of vulnerable patients will be unhappy with the relocation and adversely affected by the move, many will continue to have ongoing involvement with other services at 1 Port Road, so as not to feel excluded. Other concerns I consider will be adequately met, as they will be continuing to attend the same staff in premises adequate for the purpose.
7. Security concerns in the main are theoretical; most issues can be anticipated and addressed with temporary security or specific arrangements for them to attend 1 Port Road. Otherwise, appropriate de-escalation techniques and use of available space should be sufficient.
8. I accept the statistical information relied upon by the respondent. While a number of the applicant's witnesses expressed doubt on the data based upon their personal impressions, there is no empirical evidence to challenge the data obtained.
9. In those circumstances, I am satisfied the proposed arrangements for pharmacy and pathology services seem to address satisfactorily the needs of the unit.
10. Multi-disciplinary input is clearly an issue at present and is likely to remain so. I am satisfied the respondent will continue to work on a solution to this issue. The lack of a ready solution to an ongoing problem does not qualify as a major impediment to the second proposal proceeding.
11. In terms of staff workload, I accept the proposal will involve additional work for the nursing staff. However, I am satisfied the provision of additional nursing resources as and where required, together with some changes to existing work practices as proposed by the respondent, will alleviate this issue.
12. In relation to doctors' workloads, it does seem to me that changes to existing work practices suggested by the respondent will avoid any significant impact on workloads.

1. Although the second proposal is not ideal, I cannot say that it is not within the bounds of reasonableness to the extent that I should interfere with the decision of the respondent to implement it.
2. The application is dismissed.

[1] R v Industrial Commission of South Australia; ex parte Master Builders Association of South Australia Inc (1981) 26 SASR 535, 537-8.

[2] Re Cram; ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117, 137.

[3] [2021] FWCFB 6059; (2021) 310 IR 399.

[4] (2005) 145 IR 285, [35].

[6] [2012] HCA 61; (2013) 249 CLR 332, [68] per Hayne, Kiefel and Bell JJ.

[11] [2025] SAET 16, [56], citing as authority CFMEU v HWE Mining Pty Limited [2011] FWA 8288; (2011) 214 IR 194, [12] per Lawler VP.