QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Together Queensland, Industrial Union of Employees
v State of Queensland (Department of Health) [2016]
QIRC 119
PARTIES:
Together Queensland, Industrial Union of
Employees
(Applicant)
v
State of Queensland (Department of Health)
(Respondent)
CASE NO:
D/2014/78
PROCEEDING:
Notice of Industrial Dispute
DELIVERED ON:
10 November 2016
HEARING DATES:
HEARD AT:
18 and 19 July 2016
11 August 2016 (Applicant's written submissions)
25 August 2016 (Respondent's written submissions)
1 September 2016
Brisbane
MEMBER:
Industrial Commissioner Neate
ORDERS:
Question 1: In relation to clause 4.3 Extended Span of
Ordinary Hours of Work within the Medical Officers'
(Queensland Health) Certified Agreement (No 3) 2012
("MOCA3"), what is meant by the term "extended
span of hours arrangement"?
Answer to Question 1: The term "extended span of
hours arrangement" in relation to clause 4.3 of the
Medical Officers' (Queensland Health) Certified
Agreement (No 3) 2012 means an arrangement in
accordance with which a senior medical officer works
a shift that includes Ordinary Hours (as defined in
clause 4.2) that are worked outside the normal span of
Ordinary Hours (i.e. outside the period between 0700
hours and 1800 hours Monday to Friday) and includes
some part of the period between 0700 hours and 2200
hours Monday to Sunday (or between 2200 and 0700
in exceptional circumstances).
2
Question 2: In determining the meaning behind the
term "extended span of hours arrangement," what is
the correct application of the loading mentioned in
clause 4.3.3(a) of MOCA 3, in relation to shifts DG1,
MG1, LC1 and ALE performed by Dr Spain in
accordance with the roster attached at Appendix 1?
Answer to Question 2: The correct application of the
loading mentioned in clause 4.3.3(a) of MOCA 3 in
relation to each of the specified shifts is:
DG1 (0730 - 1800): Nil
MG1 (0730 - 1800): Nil
LC1 (1230 - 2300): 7 hours at 25% of the
Ordinary rate (less
unpaid meal break
taken)
ALE (1730 - 2300): 5.5 hours at 25% of the
ordinary rate.
CATCHWORDS: INDUSTRIAL LAW - INDUSTRAL DISPUTE -
Interpretation of Certified Agreement - whether
Senior Medical Officers were entitled to be paid the
25% loading under clause 4.3.3(a) of the Medical
Officers' (Queensland Health) Certified Agreement
(No 3) 2012 for work after 1600 hours but during
ordinary hours of work - meaning of "extended span
of hours arrangement" in clause 4.3.3 - approach to
ascertaining the meaning of that expression - meaning
of clause 4.3.3(a) in context - references to clauses in
previous certified agreement that the loading in clause
4.3.3(a) "replaces" - circumstances surrounding
negotiation of certified agreement - whether the
contra proferentem rule applies to clause 4.3.3(a) or
explanatory documents provided in relation to draft
certified agreement
CASES: Industrial Relations Act 1999, ss 230, 284
Amcor Limited v Construction Forestry Mining and
Energy Union (2005) 222 CLR 241
AMP Fire & General Insurance Co Ltd v Maros
Construction Co (Qld) Pty Ltd [1968] QWN 11
Australasian Meat Industry Employees Union v
Golden Cockerel Pty Ltd [2014] FWCFB 7447
Australian Workers' Union of Employees, Queensland
v Mount Isa Mines Limited [2003] QIRComm 276;
(2003) 172 QGIG 1870
Australian Workers' Union of Employees, Queensland
v James Hardie Australia Pty Ltd [2001] 167 QGIG
280
3
Bank of Queensland Ltd v Chartis Australia Insurance
Ltd [2013] QCA 183
BP Australia Pty Limited v Nyran Pty Limited [2003]
FCA 520
Brisbane City Council AND Australian Rail, Tram and
Bus Industry Union of Employees, Queensland Branch
[2004] QIC 7
Codelfa Construction Pty Ltd v State Rail Authority of
New South Wales (1982) 149 CLR 337
Core Toughened Pty Ltd v Construction, Forestry,
Mining and Energy Union [2015] FWC 7131
FL Schuler AG v Wickman Machine Tool Sales Ltd
[1974] AC 235
Johnson v American Home Assurance Company
(1998) 192 CLR 266
Kucks v CSR Ltd (1996) 66 IR 182
Park Avenue Motor Hotel etc v Beck and Beck v Park
Avenue Motor Hotel etc [2008] QIC 66
PKIU v Davies Bros Limited (1986) 18 IR 444
Printing & Kindred Industries Union & Anor v Davies
Bros Ltd (1986) 18 IR 444
Public Transport Corporation of Victoria v Australian
Rail, Tram and Bus Industry Union and Others (Print
M2454)
Queensland Police "Union of Employees" and
Commissioner of Police (2000) 164 QGIG 16
RACV Road Service Pty Ltd v "Automotive, Food,
Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing
Workers' Union [2014] FWCFB 1629
Seamen's Union of Australia v Adelaide Steamship Co
Ltd (1976) 46 FLR 444
Short v F W Hercus Pty Ltd (1993) 40 FCR 511
State of Queensland (Department of Corrective
Services) v Together Queensland, Industrial Union of
Employees [2014] QIRC 176
The Australian Workers' Union of Employees,
Queensland AND James Hardie Australia Pty Ltd
(2001) 167 QGIG 280
The Bacon Factory's Union of Employees, Queensland
v Hans Continental Smallgoods Pty Ltd [2002]
QIRComm 18; (2002) 169 QGIG 199
United Firefighters' Union of Australia v Country Fire
Authority [2007] FCA 853
United Firefighters' Union of Australia, Union of
Employees Queensland v Department of Community
Safety - Queensland Fire and Rescue Service
(D/2013/84) - Decision <http://www.qirc.qld.gov.au>
United Voice, Industrial Union of Employees,
Queensland v State of Queensland (Department of
4
Education, Training and Employment) [2014] QIRC
107
Western Australia Bank v Royal Insurance Co (1908)
5 CLR 533
APPEARANCES: Mr M Thomas, representative of the Applicant
Mr M Uzelin, representative of the Respondent
Decision
[1] This dispute concerns whether, under the Medical Officers' (Queensland Health)
Certified Agreement (No 3) 2012 ("MOCA 3"), Senior Medical Officers on an extended
span of hours arrangement were entitled to be paid a loading of 25 per cent of the
ordinary rate for all Ordinary Hours on weekdays worked after 1600 hours but during
ordinary hours of work.
Background
[2] The Notice of Industrial Dispute was filed with the Industrial Registrar on 11 August
2014 by Together Queensland, Industrial Union of Employees ("the Applicant"). It
referred to an apparent inconsistency across Health and Hospital Services in the
application of clause 4.3.3 of MOCA 3. That clause provides for the payment of a
Senior Medical Officer ("SMO") who works an extended span of ordinary hours.
[3] During the life of MOCA 3 a dispute arose when it became clear that Queensland Health
("the Respondent") was only paying the 25 per cent loading mentioned in clause 4.3.3(a)
for ordinary hours worked between 1600 hours and 1800 hours on the shifts that
finished after 1800 hours. If a shift finished at or before 1800 hours, the loading was
not paid for those ordinary hours between 1600 hours and the end of the shift.
[4] The dispute concerns the meaning and application of the phrase "extended span of hours
arrangement" in clause 4.3 of MOCA 3 and its impact on the application of the extended
span of hours loading in clause 4.3.3 of MOCA 3. The Notice of Industrial Dispute
stated that the Applicant sought to resolve these differences to ensure the provision is
uniformly and properly applied. The Applicant sought the assistance of the Queensland
Industrial Relations Commission ("the Commission") to ensure that employees are
remunerated in accordance with MOCA 3.
[5] Conciliation conferences were convened by Commissioner Black on 8 September 2014,
18 November 2014, 20 May 2015, and 23 July 2015. There was another conference
before Deputy President O'Connor on 23 October 2015.
[6] The Application for Orders filed by the Applicant on 1 October 2015 sought the
following order:
"Doctors subject to the provisions of the Medical Officers' (Queensland Health)
Certified Agreement (No. 3) 2012 who were on an extended span of hours
arrangement were entitled to be paid a loading of 25% of the ordinary rate for all
5
ordinary hours worked between 1600 hours and 1800 hrs on any shifts undertaken
during that extended hours roster."
[7] Although the parties were unable to resolve the dispute, they agreed to a statement of
facts and the issues to be resolved in these proceedings which also:
(a) set out the relevant clauses of the Medical Officers' (Queensland Health)
Certified Agreement (No 2) 2009 (CA/2009/130) ("MOCA 2") and MOCA 3;
and
(b) contained an example roster for Dr David Spain (and others) from the Gold
Coast University Hospital.
[8] The parties agreed that, so far as is relevant for these proceedings, MOCA 3 operated
between 1 November 2012 and 4 August 2014.
[9] Oral and written evidence was given by:
(a) Daniel Henry Goldman, Acting Assistant Secretary of the Applicant;
(b) Dr David Spain, Deputy Medical Director, Gold Coast University Hospital,
Southport; and
(c) Mark Andrew Brady, previously the Senior Director, Employee Relations with
the Respondent.
What the Medical Officers' (Queensland Health) Certified Agreement No 3 provides
[10] For the purpose of these proceedings, the relevant clauses of MOCA 3 are clauses 4.2,
4.3 and 4.3.3. Those clauses provide:
"4.2 Hours of Work - Senior Medical Officers
Definitions
Accrued Day Off means a day or part of a day accrued by working in
excess of 80 hours per fortnight (pay period) where an employee has
elected to take time off in lieu of overtime payment.
Rostered Day Off means a set day in a roster cycle where an employee
is rostered off.
Ordinary Hours means:
(a) for Senior Medical Officers not working on an extended hours
roster, 80 hours per fortnight worked between 7.00am and 6.00pm
Monday to Friday;
(b) for Senior Medical Officers working on an extended hours roster,
80 hours per fortnight worked as part of the rostered ordinary hours
6
at times and on days as dictated by the employee's extended hours
roster in accordance with clause 4.3 or 4.3.4.
…
4.3 Extended Span of Ordinary Hours of Work
Subject to clause 4.3.4, an extended span of hours arrangement may
be implemented for a Senior Medical Officer between the hours of
7.00am to 10.00pm,1 Monday to Sunday. The Ordinary Hours of this
arrangement are defined in clause 4.2(b).
…
4.3.3 Payment for Work in the Extended Span of Ordinary Hours:
0700 hours to 2200 hours
A Senior Medical Officer working Ordinary Hours in an extended
span of hours arrangement between 0700 hours and 2200 hours will
be paid according to one of the following:
(a) A loading of 25% of the ordinary rate for all Ordinary Hours
worked between 1600 hours and 2200 hours on any weekday;
(b) A loading of 50% of the ordinary rate for all Ordinary Hours in a
shift worked on a Saturday; or
(c) A loading of 100% of the ordinary rate for all Ordinary Hours in
a shift worked on a Sunday.
The 25% loading referenced in 4.3.3 (a) replaces the following:
- 15% loading for working extended hours provided for in clause
6.3.8 (a)(i) and 6.3.8(ii)(A)2 of MOCA 2.
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA
2." (Emphasis added)
[11] Clauses 4.2 and 4.3 refer to clause 4.3.4 which provides for the "exceptional
circumstances" in which SMOs worked between 2200 hours and 0700 hours and for
SMOs to be paid a "loading of 25% of the ordinary rate" for all Ordinary Hours worked
after 2200 until the end of the rostered shift. The operation of clause 4.3.4 is not relevant
to resolving the specific interpretation issues raised in these proceedings.
[12] MOCA 3 also provided the method of working Ordinary Hours. Clause 4.2.1 stated:
"The Ordinary Hours may be performed on one of the following basis, most
suitable to the particular work location, after consultation with, and giving
reasonable consideration to, the circumstances of the employee concerned:
(a) By officers working 8 continuous Ordinary Hours (excluding the meal break)
each day; or
(b) By officers working less than 8 continuous Ordinary Hours (excluding the
meal break) each day on one or more days each work cycle; or
1 Although there are some references to times as am or pm, most of MOCA 3 refers to times in 24 hours terms.
For consistency, the 24 hours references are used in this decision. 2 Sic - this should read 6.3.8(a)(ii)(A).
7
(c) By officers working more than 8 continuous Ordinary Hours (excluding the
meal break). In a consultative process, individual officers may agree that their
Ordinary Hours are to exceed 8 on any one day thus enabling standard
Ordinary Hours to be completed in fewer rostered days in the work cycle:
i. Up to a maximum of 10 Ordinary Hours on weekdays;
ii. For Senior Medical Officers working on an extended hours roster only,
up to a maximum of 12 Ordinary Hours on weekdays and public
holidays;
iii. Where service delivery necessitates it and by agreement with the
officer/s, a shift length of 12 and half Ordinary Hours inclusive of a
paid meal break may be worked;
iv. The minimum engagement is four continuous Ordinary Hours."
Issues
[13] The parties agreed that the following questions are to be answered in these proceedings:
1. In relation to clause 4.3 Extended Span of Ordinary Hours of Work within the
Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012
("MOCA3"), what is meant by the term "extended span of hours
arrangement"?
2. In determining the meaning behind the term "extended span of hours
arrangement," what is the correct application of the loading mentioned in
clause 4.3.3(a) of MOCA3, in relation to shifts DG1, MG1, LC1 and ALE
performed by Dr Spain in accordance with the roster attached at Appendix 1?
[14] In relation to Question 2, the times allocated to each of the specified shifts are DG1
(0730 – 1800), MG1 (0730 – 1800), LC1 (1230 – 2300), and ALE (1730 – 2300).
[15] The parties agree that any time worked after 1800 hours on any one shift by an SMO
would attract the loading of 25 per cent as per clause 4.3.3(a) of MOCA 3.
[16] In practical terms, the issue is whether the 25 per cent loading was payable on an
"extended span of hours arrangement" for work done between 1600 hours and 1800
hours on any weekday.
[17] The Applicant contends that the "extended span of hours" loading applies to all ordinary
hours worked between 1600 hours and 2200 hours on any weekday, on any and all shifts
regardless of start or finishing times.
[18] The Respondent contends that the "extended span of ordinary hours" loading under
clause 4.3.3(a) of MOCA 3 should be applied only to shifts that finish after 1800 hours,
but that ordinary hours from 1600 hours onwards on those shifts attract payment of the
loading.
Approach to resolving the issues
[19] At the request of the Commission, the parties made submissions about the legal
principles that guide the Commission in answering Questions 1 and 2.
8
[20] In United Voice, Industrial Union of Employees, Queensland v State of Queensland
(Department of Education, Training and Employment)3 ("United Voice"), the
Commission was referred to the following decisions of the Commission, the Industrial
Relations Court of Australia, and the Federal Court of Australia to inform the approach
that the Commission should take to answering the questions in that case: Kucks v CSR
Ltd,4 Short v F W Hercus Pty Ltd,5 Australian Workers' Union of Employees,
Queensland v James Hardie Australia Pty Ltd,6 and United Firefighters' Union of
Australia, Union of Employees Queensland v Department of Community Safety -
Queensland Fire and Rescue Service.7
[21] The propositions relevant to this case that emerge from those authorities are, in
summary:
(a) deciding what an existing award means is a process quite different from
deciding what might fairly be put into an award;8
(b) narrow or pedantic approaches to the interpretation of an award are
misplaced. The search is for the meaning intended by the framer(s) of the
document, bearing in mind that such framer(s) were likely to be of a
practical bent of mind: they may well have been more concerned with
expressing an intention in ways likely to have been understood in the
context of the relevant industry and industrial relations environment than
with legal niceties or jargon;9
(c) ordinary or well-understood words are in general to be accorded their
ordinary or usual meaning;10
(d) such meaning may be found in a reputable dictionary;11
(e) extrinsic materials may be used in the interpretation of a certified agreement
to resolve an ambiguity in the meaning of a clause12 or if the language is
susceptible of more than one meaning;13
3 United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education,
Training and Employment) [2014] QIRC 107. 4 Kucks v CSR Ltd (1996) 66 IR 182. 5 Short v F W Hercus Pty Ltd (1993) 40 FCR 511. 6 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG
280. 7 United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety
- Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>. 8 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 9 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 10 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 11 Kucks v CSR Limited (1996) 66 IR 182, 185 (Madgwick J), including reference to the "estimable" Macquarie
Dictionary. 12 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG
280, 281 (Hall P). 13 Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 519 (Burchett J); Codelfa Construction Pty Ltd v State Rail
Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of
Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84)
- Decision <http://www.qirc.qld.gov.au>, [42], [91]-[93] (Industrial Commissioner Thompson).
9
(f) evidence of prior negotiations to establish objective background facts which
were known to both parties and the subject matter of the agreement is
admissible;14
(g) evidence consisting of statements and actions of the parties which are
reflective of their actual intentions and expectations is not receivable.15
[22] Both parties referred to the following principles listed in the decision of a Full Bench of
the Fair Work Commission in Australasian Meat Industry Employees Union v Golden
Cockerel Pty Ltd ("Golden Cockerel"):16
1. "The AI Act17 does not apply to the construction of an enterprise agreement
made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether
an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in
determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding
circumstances will not be admitted to contradict the plain language of the
agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one
meaning then evidence of the surrounding circumstances will be admissible to
aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the
objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to
establish objective background facts known to all parties and the subject
matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common
assumption.
14 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG
280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337,
352 (Mason J); see also Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 518, 520 (Burchett J); United
Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety -
Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>, [70]-[71]
(Thompson C). 15 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG
280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337,
352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of
Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>,
[70]-[71] (Thompson C). 16 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41]. 17 Acts Interpretation Act 1901 (Cth).
10
7. The resolution of a disputed construction of an agreement will turn on the
language of the Agreement understood having regard to its context and
purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision's place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which
it operates.
9. Where the common intention of the parties is sought to be identified, regard is
not to be had to the subjective intentions or expectations of the parties. A
common intention is identified objectively, that is by reference to that which a
reasonable person would understand by the language the parties have used to
express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement
to achieve what might be regarded as a fair or just outcome. The task is always
one of interpreting the agreement produced by parties."
[23] The Respondent submits that those principles provide some useful clarification of the
principles identified by the Commission in United Voice. The Applicant submits that the
decision in the Golden Cockerel case supports the principles identified by the Commission
in United Voice.
[24] I approach the issues in these proceedings with those propositions in mind and will
consider the meaning of "extended span of hours arrangement" in clause 4.3.3:
(a) having regard to the words and phrases used in clauses 4.2 and 4.3 of
MOCA 3;
(b) by reference to the relevant clauses of MOCA 2; and
(c) in light of the negotiations that preceded clause 4.3 of MOCA 3.
Question 1: Some preliminary issues
[25] Evidentiary issues: The Respondent objected in writing to much of the affidavit
evidence of Dr David Spain. Those objections were provided on the afternoon of the
Friday before the Monday on which the hearing commenced and, for various reasons,
were not ruled on at the commencement of the hearing. Rather, the affidavit was
admitted into evidence (Exhibit 2) subject to the objections being dealt with
subsequently. It is necessary to rule on those objections in order to determine how much
of that affidavit and related evidence should be considered when deciding this matter.
[26] The Applicant submits that the evidence of Dr Spain was led:
11
(a) to negate any suggestion of an ambiguity in how clause 4.3.3(a) is to be
interpreted; and
(b) to show that there was no shared intention between the parties or common
understanding between the parties in relation to the application of that clause.
Although the purpose for leading that evidence was explained in those submissions, the
admissibility of the evidence is to be determined by reference to its nature.
[27] In essence, the Respondent objects to the admissibility of evidence:
(a) that, under MOCA 3, certain doctors had not been paid the loading for certain
hours; and
(b) of email correspondence in October 2013 (well after MOCA 3 commenced)
with two officers of Queensland Health (Benedicto Reyes and Sarah Lock),
and other communications about the interpretation of the subject clause by
Queensland Health.
The Respondent acknowledges that if its objection is upheld, the Payroll Portfolio
document "Business Requirements Specification MOCA EB3 2012 - 25% loading for
Extended Hours (Evening and Night Shifts)" attached to the affidavit of Mr Goldman
(Exhibit 1 DG9) must also be excluded from the Commission's consideration of this
matter.
[28] In support of its submission, the Respondent relies on decisions of the Commission,18
the Australian Industrial Court, the Federal Court of Australia and the Industrial Court
of Queensland.
[29] In the 1976 case of Seamen's Union of Australia v Adelaide Steamship Co Ltd, the
Australian Industrial Court considered an application for the interpretation of an
industrial award. During the hearing, the respondents sought to have admitted evidence
of the conduct of the parties subsequent to the making of the award. The Court reviewed
recent authorities and followed19 a recent decision of the House of Lords in FL Schuler
AG v Wickman Machine Tool Sales Ltd20 that in general an agreement could not be
construed in the light of the subsequent actions of the parties.
[30] In Printing & Kindred Industries Union & Anor v Davies Bros Ltd, Gray J, in the
Federal Court of Australia Industrial Division, referred to an evidentiary issue
concerning the conduct of the parties. He stated that the court "must be wary of
admitting the evidence" and referred to the decision in Seamen's Union of Australia v
Adelaide Steamship Co Ltd that stated that evidence of conduct of the parties subsequent
to the making of an award was inadmissible, even for the purpose of resolving an
ambiguity in the terms of the award.21
18 See State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of
Employees [2014] QIRC 176, [61] (Thompson C). 19 Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 445 (JB Sweeney, Evatt, St
John JJ) 20 FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. 21 Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444, 452.
12
[31] Those decisions were followed by Hall P in Brisbane City Council AND Australian
Rail, Tram and Bus Industry Union of Employees, Queensland Branch when he stated
that the "better view is that conduct of the parties subsequent to the making of an award
is not admissible even for the purpose of resolving an ambiguity in the terms of the
award."22
[32] That line of authorities was encapsulated in the following statement by Gray J in United
Firefighters' Union of Australia v Country Fire Authority:23
"Great caution must be exercised in attempting to rely upon the conduct of parties
to an award or agreement as an aid in the interpretation of that award or
agreement. Plainly, conduct subsequent to the making of an award or agreement
is inadmissible as an aid to interpretation. See Seamen's Union of Australia v
Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred
Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it
can be shown that there is a history of the use of a particular term with a particular
meaning, sufficient to demonstrate a common understanding between or among
the parties to an award or agreement that the term has that meaning, is there any
possibility that the conduct of the parties can be relied on."
His Honour noted that the evidence in that case went "nowhere near establishing such
a common understanding." The same can be said in the present application.
[33] In the light of that clear line of authority, I have concluded that paragraphs 8 to 13
(inclusive) of Dr Spain's affidavit (and consequently documents DS2 and DS3
mentioned in that affidavit), and any oral evidence in relation to the matters referred to
in those paragraphs, cannot be considered when interpreting the provisions of MOCA
3 in issue in this case. For the same reason, I have not had regard to Payroll Portfolio
document "Business Requirements Specification MOCA EB3 2012 - 25% loading for
Extended Hours (Evening and Night Shifts)."
[34] The Respondent also submitted that:
(a) paragraph 4 of Dr Spain's affidavit was inadmissible for the purpose of
interpreting MOCA 3 because it referred only to Dr Spain's understanding of the
relevant clause and was not evidence of a shared intention or understanding
between the parties;24 and
(b) paragraphs 5 to 7 (inclusive) were irrelevant as they do not relate to the loading
in question.
I agree, and have not given that evidence any weight other than to observe that it provides
some information about the circumstances in which MOCA 3 was developed and supports
a conclusion that there were different views about how clause 4.3.3(a) of MOCA 3 would
operate.
22 Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch
[2004] QIC 7. 23 United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853, [30]. 24 See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason
J); The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167
QGIG 280, 281 (Hall P).
13
[35] The Applicant's submissions in relation to aspects of Mr Brady's evidence are
considered along with that evidence later in these reasons (see [123]-[125]).
[36] Whether the contra proferentem rule applies: The Applicant also submits that, should
an ambiguity be found to exist, the contra proferentem rule applies.25 In essence,26 that is
a rule of construction applied to ambiguous clauses (usually in relation to commercial
documents such as insurance contracts with standard clauses). The rule applies against
the party putting forward the clause in issue,27 particularly if that party drafted the clause
and is the party in whose benefit it is intended to operate. It is often applied to situations
where the parties are of unequal bargaining power, but is applicable to other cases.
However, the rule has little, if any application where the document is in a standard form
prepared by representatives of each party. In other words, it does not apply when both
parties are involved in wording and the inclusion of the ambiguous clause.
[37] In a case involving the construction of insurance policies, the Queensland Court of
Appeal referred to various important principles of construction of such policies and stated
that the contra proferentem rule applies only when the ambiguity cannot be resolved by
those primary rules of construction.28 As the Court stated:29
"The contra proferentem rule has been described as secondary to the primary rule
of construing the contract for the purpose of inferring the parties’ intention, and
as generally no more than a rule of thumb.30 It also has been described as a rule
of last resort31 where other rules of construction fail.32 "
[38] The Respondent rejects the Applicant's submission, contending that it is inappropriate
to apply the rule to a certified agreement, particularly one which was negotiated at length
between its parties. It submits that a certified agreement is not a document which the
"recipient" is unable to negotiate and alter. Rather, certified agreements (certainly MOCA
3) are negotiated at length and, although one party writes the words of the document, the
other party or parties are able to negotiate changes to those words. The evidence in this
matter33 clearly shows that the Applicant sought and obtained a number of changes to
MOCA 3. Accordingly, the Respondent submits that the contra proferentem rule should
not apply in this case.
[39] In support of its submission, the Applicant relies on the decision of Hall P in The
Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty
Ltd.34 ("James Hardie") The only issue on appeal in that case was the correct construction
25 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2011] 167 QGIG
280, 281. 26 See e.g. Butterworths Australian Legal Dictionary, 1997, 263. 27 The Latin contra proferentem means "against the offeror" and the rule is also known as interpretation against
the draftsman. 28 Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [32]-[39]. 29 Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [38]. 30 Johnson v American Home Assurance Company (1998) 192 CLR 266; Carter JW, Contract Law in Australia
6th ed, LexisNexis, Chatswood, 2012 at [14-03]-[14-04]. 31 Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533, 554; Johnson v American Home Assurance
Company (1998) 192 CLR 266, 274- 275. 32 AMP Fire & General Insurance Co Ltd v Maros Construction Co (Qld) Pty Ltd [1968] QWN 11. 33 See the affidavits of Mr Goldman and Mr Brady. 34 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167
QGIG 280.
14
of a clause of a particular certified agreement. Hall P stated that the construction
contended for by the Appellant in that case conformed to "a literal meaning of the words
used." The Respondent sought to go to extrinsic materials both to create and to resolve
an ambiguity in the subject clause. A document distributed to employees who were to
vote upon the certified agreement, and which was an express attempt to explain what the
proposed certified agreement meant, was admissible as an "objective background fact."
The passage in that document which concerned the subject clause was itself ambiguous.
Hall P wrote:35
"I accept the submission that the ambiguity in the explanation of the then putative
Certified Agreement taints with ambiguity the Certified Agreement itself.
However, in resolving the ambiguity, in circumstances in which the authors of the
document were servants and agents of the respondent and the document was
(intentionally) drafted for and distributed to lay persons who, looking at the wage
rates were in humble circumstances, I can think of no reason why the ambiguity
should not be resolved against the respondent who now seeks to avoid an
obligation in reliance upon a particular resolution of the ambiguity: compare
Cheshire and Fifoot's Law of Contract, 7th Australian edition, 1997, Ed Seddon
and Ellinghaus at para. 10.37. The "contra proferentem" rule is a contract rule
but the Latin maxim from which it derives is applicable to all written instruments,
see Maye v Colonial Mutual Assurance Society Ltd (1924) 35 CLR 14 at 26 to 27
per Isaacs ACJ."
[40] It is clear that the decision in that case did not apply the contra proferentem rule to the
certified agreement, but only to an explanatory document prepared to assist employees
who were to vote on the certified agreement.
[41] The issue in the present case is whether the contra proferentem rule might apply to a
clause of MOCA 3 and/or to particular explanatory documents prepared in relation to
MOCA 3.
[42] The evidence summarised later in these reasons36 clearly indicates the extent to which
the parties negotiated the terms of what became MOCA 3, including clause 4.3.3(a).
There is no evidence to suggest that the subject clause was imposed unilaterally, or that
its terms were not the product of negotiation and re-drafting. Indeed, the evidence shows
the extent to which it was recast towards the end of the negotiations. There are settled
principles of construction which the Commission should proceed to apply in ascertaining
the meaning of that clause. Accordingly, I am not satisfied that the contra proferentem
rule could or should be extended to the clause of MOCA 3 in issue in this case.
[43] The possible application of the rule to particular explanatory documents prepared in
relation to MOCA 3 is considered later in these reasons (see [183]-[185].
35 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167
QGIG 280, 282. 36 See e.g. [102]-[140].
15
The meaning of "extended span of hours arrangement" in clause 4.3.3 of
MOCA 3: a textual approach
[44] The dispute between the parties has arisen because of what is said to be the lack of
clarity in the meaning of the expression "extended span of hours arrangement" in clause
4.3 of MOCA 3, particularly as the expression operates in relation to clause 4.3.3(a).
[45] Each SMO is entitled to be paid a loading only if he or she is working in an "extended
span of hours arrangement" at the material time. Otherwise they do not qualify for the
loading or loadings described in clause 4.3.3.
[46] The alternative readings of clause 4.3.3(a) are that:
(a) the loading applies to all ordinary hours worked between 1600 hours and 2200
hours on any weekday, on any and all shifts regardless of start or finishing times
(as the Applicant contends); or
(b) the loading applies only to ordinary hours worked between 1600 hours and 2200
hours on shifts that finish after 1800 hours (as the Respondent contends).
[47] The Respondent submits that the difference between the parties comes down to whether
the "arrangement" which is the trigger for the allowance means:
(a) "a shift worked into extended hours (post 1800 hours) as part of an arrangement
to do so;" or
(b) "the entire roster within which such a shift occurs."
[48] Having regard to the wording of Question 1, the starting point for the Commission is to
determine whether the phrase "extended span of hours arrangement" has a plain
meaning or whether it contains an ambiguity.
[49] Respondent's submissions: The Respondent submits that the expression "extended
span of hours arrangement" in clause 4.3:
(a) is not defined in MOCA 3;
(b) does not have a notorious meaning in industrial jurisprudence;
(c) does not have a clearly articulated meaning; and
(d) is susceptible of more than one meaning.
[50] Although the expression is not defined, the Respondent submits that some components
of it are clear. In particular:
(a) it is intended to encompass an "arrangement" which is, in context, a mutually
agreed manner in which the parties conduct themselves in relation to a particular
subject, the details of which are not themselves prescribed in the agreement;
16
(b) the subject of the "arrangement" is the "span of hours" which is the lower and
upper limits of the hours of the day within which ordinary hours of work are or
can be performed without incurring overtime; and
(c) the span of hours is described as "extended," which means that it exceeds a
boundary or standard which might otherwise apply, or which has existed in the
past. An obvious example of such a boundary is the ordinary span of hours
which apply to other similar employees who do not have such an arrangement.
The Respondent submits that, when those elements are taken together, the expression
"extended span of hours arrangement" in clause 4.3.3 means an arrangement whereby
an SMO works a shift which contains ordinary hours which are worked outside the
normal span of Ordinary Hours that would apply to a "non-extending" SMO who is not
engaged in such an arrangement.
[51] The Respondent also submits that where a term or expression (such as "extended span
of hours arrangement") is susceptible to more than one meaning, an ambiguity exists
which allows the Commission:
(a) to have regard to the context and purpose of clause;
(b) to use extrinsic evidence to aid in its interpretation;
(c) to consider evidence of prior negotiations to establish the objective background
facts which were known to both parties and the subject matter of the agreement;
(d) not to receive evidence consisting of statements and actions of the parties which
are reflective of their actual intentions and expectation; and
(e) to adopt a practical approach.
[52] As this is not a case where the expression "extended span of hours arrangement" has a
plain meaning, evidence of the surrounding circumstances will be admissible to aide the
interpretation of the agreement.37
[53] The Respondent also submits that:
(a) it is now well-established in the authorities that a generous approach to the
admission of extrinsic materials to expose an ambiguity, as well as to resolve it,
is appropriate;38
(b) in relation to establishing whether an ambiguity exists, the Commission should
generally err on the side of finding an ambiguity in circumstances where there
37 See Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41]
principles 4 and 5. 38 Queensland Police "Union of Employees" and Commissioner of Police (2000) 164 QGIG 16, 16 (Hall P);
Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] QIC 34, (2001)
167 QGIG 280, 281 (Hall P).
17
are rival contentions advanced, and arguable cases can be made out for more
than one contention.39
[54] Applicant's submissions: The Applicant submits that the passage in contention is
clause 4.3.3(a), and that the meaning of that part of the clause is clear and unambiguous.
However, the Applicant notes that the Respondent appears to contend that the meaning
of that passage is ambiguous and applies only to shifts finishing after 1800 hours.
[55] The Applicant submits that the correct approach to resolving the dispute is for the
Commission to interpret the clause under s 284 of the Industrial Relations Act 1999
("the Act"),40 starting with the actual words of the agreement. If, on the face of it, the
meaning is clear, the onus is on the Respondent to reveal an ambiguity that leads to an
alternative interpretation of that wording. In considering whether such an ambiguity
exists, the Commission may consider the objective background facts known to the
parties during the making of the agreement. Evidence of prior negotiations may be
considered to establish those objective background facts, but not for the purpose of
interpretation.
[56] As noted earlier, the Applicant also submits that, should an ambiguity be found to exist,
the contra proferentem rule applies.
[57] In the Applicant's submission, an extended span of hours arrangement is one where an
SMO works a spread of ordinary hours as set out by clause 4.2(b) and has been
implemented:
(a) by agreement, in the case of SMOs engaged prior to the date of certification of
MOCA 3; or
(b) by direction, in the case of SMOs engaged on or after the date of certification of
MOCA 3.
[58] When answering Question 1, the Commission should consider the correct application
of the loading mentioned in clause 4.3.3(a) and, on deciding that issue, decide whether
the answer to Question 1 is still applicable.
[59] The Applicant submits that, for the Respondent to succeed, it would need to be shown
that clause 4.3.3(a) cannot be interpreted on the basis of its plain meaning (i.e. the
meaning that accords with the Applicant's position). Applying the principles in the
Golden Cockerel decision (quoted at [22]), if an ambiguity does not exist, evidence of
surrounding circumstances will not be admitted to contradict the plain language of the
agreement.
39 Australian Workers' Union of Employees, Queensland v Mount Isa Mines Limited [2003] QIRComm 276;
(2003) 172 QGIG 1870 following Fisher C in The Bacon Factory's Union of Employees, Queensland v Hans
Continental Smallgoods Pty Ltd [2002] QIRComm 18; (2002) 169 QGIG 199, where Fisher C cited the decision
of a Full Bench of the Australian Industrial Relations Commission in Public Transport Corporation of Victoria
v Australian Rail, Tram and Bus Industry Union and Others (Print M2454) where the decision of Gray J in PKIU
v Davies Bros Limited (1986) 18 IR 444, dealing with applications to vary agreements for the purpose of
removing ambiguity, was applied. 40 The Act enables the Commission to give an interpretation of a certified agreement on application by an
organisation, or other person, bound by the agreement. The present case was initiated by Notice of Industrial
Dispute under s 229 of the Act, rather than an application under s 284.
18
[60] Having regard to the words used in clause 4.3.3(a), the Applicant submits that clause
4.3.3(a) can only be read in the way advanced by the Respondent if:
(a) "all" means "not all"; or
(b) "Ordinary Hours" excludes hours between 1600 hours and 1800 hours on shifts
that finish at or before 1800 hours, but includes hours between 1600 hours and
1800 hours on shifts that finish after 1800 hours.
[61] The Applicant submits that "all" cannot be ambiguous to the extent that it means its
antithesis "not all." "All" is simply not susceptible to more than one meaning in the
way required for the Respondent to succeed. Consequently, and based on Principle 4
in the Golden Cockerel case, evidence of surrounding circumstances need not be
considered as it cannot be admitted to contradict the plain language.
[62] As to "Ordinary Hours," the Applicant submits that the Respondent would have to show
that the expression is capable of meaning different things depending on the starting and
finishing times in the shift containing the "Ordinary Hours." However, "Ordinary
Hours" is defined in clause 4.2 (see [10]).
[63] The Applicant also submits that if the Respondent wishes to challenge the otherwise
plain meaning of the agreement, it would need to draw the Commission's attention to
evidence of surrounding circumstances which show an ambiguity. The Applicant infers
that, for that purpose, the Respondent relies on the following circumstances to reveal
what it claims is an ambiguity:
(a) the use of the term "evening shift" in the Frequently Asked Questions ("FAQ")
document in relation to MOCA 3 sent out by the Respondent (Exhibit 1, DG8)
and its repetition on transcript in relation to the certification of MOCA 3 which
reveals an intention that the loading would not be paid on shifts other than an
evening or night shift;
(b) the contention that the definitions of "Ordinary Hours" in clause 4.2(a) and
clause 4.2(b) are co-dependent on each other, and the use of the term "Ordinary
Hours" in clause 4.3.3(a) needs to consider the meaning of that term in both
clause 4.2(a) and clause 4.2(b);
(c) Mr Brady's statement that it was never in the contemplation of the parties that a
loading would be paid on any ordinary hours for shifts finishing at or before
1800 hours.
[64] The Applicant submits that the correct application of the loading mentioned in clause
4.3.3(a) is clear and unambiguous, and there is no evidence to which the Commission
could have regard that would demonstrate a "hidden ambiguity." If that is so, the
Applicant submits, the Respondent is asking the Commission to effectively rewrite
clause 4.3.3(a) to the following effect:
"A Senior Medical Officer working Ordinary Hours in an extended span of hours
arrangement between 0700 hours and 2200 hours will be paid according to one of
the following:
19
(a) A loading of 25% of the ordinary rate for all Ordinary Hours worked between
1600 hours and 2200 hours on any weekday, but only where the shift finishes
after 1800." (Emphasis added)
[65] In the Applicant's submission, although the Respondent might want the clause to be
read in that way, such an application of the loading would not be an interpretation of
the existing words, but would effectively rewrite the agreement contrary to Principle 10
in the Golden Cockerel case:
"The task of interpreting an agreement does not involve rewriting the agreement
to achieve what might be regarded as a fair or just outcome. The task is always
one of interpreting the agreement produced by parties."
[66] Consideration: The submissions of the parties take different approaches to the question
of what in clause 4.3 or 4.3.3(a) is or might be ambiguous. While the Respondent
addressed the possible meaning of the expression "extended span of hours arrangement"
in abstract terms, the Applicant focused on the potential operation of that expression in
clause 4.3.3(a), which is the substantive issue in this case.
[67] It is appropriate to deal first with the meaning of the expression "extended span of hours
arrangement."
[68] The Applicant sought to separate, or at least distinguish between, the two components
of the definition of "Ordinary Hours" in clause 4.2 of MOCA 3. Paragraph (a) of the
definition refers to SMOs not working on an extended hours roster, and specifies that
their 80 hours per fortnight are to be worked between 0700 hours and 1800 hours
Monday to Friday. By comparison, paragraph (b) of the definition refers to SMOs
working on an extended hours roster and does not specify the span of hours within
which the 80 hours per fortnight are to be worked. Rather, it states that the 80 hours
per fortnight are to be worked as part of the rostered ordinary hours at times and on days
as dictated by the employee's extended hours roster in accordance with clause 4.3 or
4.3.4. As noted earlier, clause 4.3.4 deals with work by SMOs between 2200 hours and
0700 hours, and is not relevant to the substantive issue in these proceedings. It is clear
that the Ordinary Hours referred to in paragraph (b) of the definition comprise the period
0700 hours to 2200 hours Monday to Sunday (and, in "exceptional circumstances",
could also include worked between 2200 hours and 0700 hours).
[69] Although the two components of the definition of "Ordinary Hours" deal with separate
circumstances, and the content of paragraph (b) is determined by reference to a roster
prepared in accordance with clause 4.3 or clause 4.3.4, it is appropriate to ascertain part
of the meaning of paragraph (b) by reference to the definition in paragraph (a). The
hours of work for SMOs to whom paragraph (a) applied were limited to a specified span
of hours. It is reasonable to infer that, whatever hours were included in an "extended
hours" roster for SMOs covered by paragraph (b) of the definition, those hours went
beyond the span of hours referred to in paragraph (a), i.e. after 1800 hours.
[70] Having considered the expression "extended span of hours arrangement" in its context
in MOCA 3, I have concluded that:
(a) the expression "extended span of hours arrangement" in clause 4.3 and 4.3.3(a)
of MOCA 3 refers to an arrangement concerning the hours of work to be
20
undertaken by a particular SMO on a particular day (or days) from Monday to
Sunday;
(b) each arrangement would be entered into under MOCA 3 and, although the terms
of the arrangement are not prescribed by MOCA 3, the hours during which each
arrangement could operate were limited by MOCA 3;
(a) the span of hours for each arrangement would extend beyond the Ordinary
Hours applicable to SMOs who were not working on an extended hours roster
(i.e., the period 0700 hours and 1800 hours Monday to Friday) and would
include some part of the period between 0700 hours and 2200 hours Monday to
Sunday.
In summary, the expression "extended span of hours arrangement" in clause 4.3 means
an arrangement in accordance with which an SMO works a shift that includes
Ordinary Hours that are worked outside the normal span of Ordinary Hours (i.e.
outside the period between 0700 hours and 1800 hours Monday to Friday).
[71] That conclusion provides the basis for resolving the substantive issue in this case,
namely whether an SMO who was on an extended span of hours arrangement that
included work between 1600 hours and 1800 hours on a particular week day was entitled
to be paid the 25 per cent loading.
[72] However, in light of the submissions of the parties, I consider that there is not just a
disagreement between them but that the disagreement arises from the meaning and
application (at least to clause 4.3.3(a)) of the undefined expression "extended span of
hours arrangement" used in clause 4.3.3.
[73] Accordingly, I am satisfied that clause 4.3.3(a) is ambiguous or susceptible to more than
one meaning. In light of the principles set out above it is both permissible and
appropriate to ascertain the meaning of clause 4.3.3(a) having regard to the context and
purpose of the clause, to use extrinsic evidence in aid of its interpretation, and to
consider evidence of prior negotiations to establish the objective background facts
which were known to both parties and the subject matter of the agreement.
The meaning of "extended span of hours arrangement" in clause 4.3.3 of
MOCA 3 in light of relevant clauses in MOCA 2: a comparative approach
[74] The Statement of Agreed Facts recites that clause 4.3.3 "combined and replaced" the
payment arrangements for extended hours contained in the previous agreement, MOCA
2, which relevantly provided as follows:
"6.3 Extended Hours of Work - Senior Medical Officers
6.3.1 Extended Hours of Work
Extended hours of work arrangements may be implemented for senior medical
officers between the hours of 7.00am to 10.00pm, Monday to Sunday.
In recognition of the fact that senior medical officers have traditionally worked
ordinary hours between 8.00am and 6.00pm Monday to Friday, senior medical
21
officers who enter into extended hours arrangements will be entitled to the
payment of a flexibility allowance of 10% for any ordinary time worked
between Monday and Friday where the major portion of the day is worked
between the hours of 4.00pm and 7.00am. (Emphasis added)
….
6.3.8 Payment for Working Extended Hours
(a) Arrangements implemented following certification of this agreement
(i) A senior medical officer will receive 15% loading for ordinary
time worked between Monday and Friday where the major
portion of their rostered hours on that day is worked between
the hours 4.00pm and 10.00pm. The 15% loading is in addition
to the flexibility allowance provided for in clause 6.3.1 and
neither of these are payable in addition to overtime;
(ii) (A) Where a senior medical officer ceases their ordinary hours
of duty after 6.00pm, that employee must be paid an
allowance of 15% per hour for all time worked after
6.00pm;
(B) Clause 6.3.8 (a)(ii)(A) does not apply to an employee
entitled to the payment under clause 6.3.8(a)(i), or to
weekend penalty rates;
(C) In calculating the allowance prescribed in this clause
payment must be made to the nearest quarter of an hour.
(iii) Where the majority of ordinary work is performed on Saturday
all related continuous ordinary hours of work will be paid at
time and a half;
(iv) Where the majority of ordinary work is performed on Sunday
all related continuous ordinary hours of work will be paid at
double time;
(v) All ordinary work performed on Good Friday, the 25th day of
April (Anzac Day), Christmas Day, New Years Day, the 26th
day of January (Australia Day), Easter Monday, the Birthday
of the Sovereign and Boxing Day will be paid at time and a
half;
(vi) All ordinary work performed on Labour Day, Show Day and
Easter Saturday will be paid at double time and a half;
(vii) No entitlement exists for the payment of a Flexibility
Allowance as provided in clause 5.8.6 of the District Health
Services - Senior Medical Officers' and Resident Medical
Officers' Award - State 2003;
22
(viii) At least half an hour meal break to be taken during the
afternoon or evening where the major portion of ordinary hours
are worked between the hours of 4.00pm and 10.00pm (or
4.00pm to 8.00am in relation to clauses 6.3.6 or 6.3.8 (b)),
which can be taken as a crib break and counted as work time in
those cases where the employee remains on duty on site during
the meal break period or attends official meetings during such
period."
[75] The references in those clauses to "ordinary hours of work" must be read by reference
to clause 6.2, the relevant parts of which provided:
"6.2 40 hour week - Senior Medical Officers
6.2.1. The ordinary hours of work for senior medical officers are 40 hours a
week within the span of 7am to 6pm, Monday to Friday. The ordinary hours of
work may be performed on one of the following bases, most suitable to the
particular work location, after consultation with, and giving reasonable
consideration to the wishes of the employee concerned:
(a) By officers working 8 continuous ordinary hours (excluding the meal
break) each day; or
(b) By officers working less than 8 continuous ordinary hours (excluding
the meal break) each day on one or more days each work cycle; or
(c) By officers working more than 8 continuous ordinary hours (excluding
the meal break) and rostering employees off on various days of the week
during a particular work cycle, so that each employee has additional days
off during the cycle.
6.2.2. Subject to the provisions of the hours of duty clause, officers may agree
that the ordinary hours of work are to exceed 8 ordinary hours on any
one day up to a maximum of 10 hours (as prescribed in the hours of duty
clause), or up to 12 ordinary hours on weekends or public holidays, thus
enabling standard ordinary hours of duty to be completed in fewer days
within the work cycle."
[76] It is clear from those clauses that are relevant to the present case that SMOs who entered
into "extended hours arrangements" between 0700 hours and 2200 hours Monday to
Sunday (as compared with the ordinary hours of work between 0700 hours and 1800
hours Monday to Friday) were entitled to receive:
(a) a 15 per cent loading where the major portion of the rostered hours of ordinary
time worked on a day between Monday and Friday was worked between 1600
hours and 2200 hours;
(b) an allowance of 15 per cent per hour for all time worked after 1800 hours where
the SMO ceased their ordinary hours of duty after 1800 hours but the major
portion of their rostered hours on that day was not worked between 1600 hours
and 2200 hours;
23
(c) a flexibility allowance of 10 per cent for any ordinary time worked where the
major portion of the ordinary time worked on a day between Monday and Friday
was worked between 1600 hours and 0700 hours. (Emphasis added)
The 15 per cent loading payable under (a) would be in addition to the flexibility
allowance payable under (c).
[77] On that basis, an SMO who entered into extended hours arrangements between 0700
hours and 2200 hours and who worked eight continuous ordinary hours on a day
between Monday and Friday would be entitled to receive:
(d) a 15 per cent loading where the major portion of the rostered eight hours was
worked between 1600 hours and 2200 hours; and
(e) a flexibility allowance of 10 per cent for any ordinary time worked where the
major portion of the eight hours was worked between 1600 hours and 0700
hours; or
(f) an allowance of 15 per cent per hour for all time worked after 1800 hours where
the SMO ceased their ordinary hours of duty after 1800 hours but the major
portion of their rostered eight hours on that day was not worked between 1600
hours and 2200 hours.
[78] Respondent's submissions: In making this part of its submission, the Respondent
quotes Principle 7 listed in the Golden Cockerel decision:
"The resolution of a disputed construction of an agreement will turn on the
language of the agreement understood having regard to its context and purpose."
[79] The Respondent also quotes from the reasons for decision of Kirby J in Amcor Limited
v Construction Forestry Mining and Energy Union41where his Honour (who was in the
majority) wrote:
"The nature of a document, the manner of its expression, the context in which it
operated and the industrial purpose it served combined to suggest that the
construction to be given to cl 55.1.1 should not be a strict one but one that
contributes to a sensible industrial outcome such as should be attributed to the
parties who negotiated and executed the agreement. Approaching the
interpretation of the clause in that way accords with the proper way, adopted by
this Court, or interpreting industrial instruments and especially certified
agreements."
[80] Kirby J agreed with the following passage in the reasons of Madgwick J in Kucks v CSR
Limited (portions of which are referred to at [21](b)):
"Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are
misplaced. The search is for the meaning intended by the framer(s) of the
document, bearing in mind that such framer(s) were likely of a practical bent of
41 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96].
24
mind: they may well have been more concerned with expressing an intention in
ways likely to have been understood in the context of the relevant industry and
industrial relations environment than with legal niceties or jargon. Thus, for
example, it is justifiable to read the award to give effect to its evident purposes,
having regard to such context, despite mere inconsistencies or infelicities of
expression which might tend to some other reading. And meanings which avoid
inconvenience or injustice may reasonably be strained for. For reasons such as
these, expressions which have been held in the case of other instruments to have
been used to mean particular things may sensibly and properly be held to mean
something else in the document at hand."42
[81] In the Respondent's submission, the Commission has the advantage of a clearly
prescribed industrial context and purpose behind the use of the phrase "extended span
of hours arrangement" in the drafting of clause 4.3.3. This is, it submits, a textbook
example of circumstances where this context and purpose must inform the
Commission's interpretation of the clause.
[82] Specifically, as expressly set out in clause 4.3.3 of MOCA 3, the purpose of the loading
in clause 4.3.3(a) was to replace:
(a) the 10 per cent flexibility allowance for any ordinary time worked between
Monday and Friday where the major portion of the day is worked between 1600
hours and 0700 hours (clause 6.3.1 of MOCA 2); and
(b) a 15 per cent loading for ordinary time worked between Monday and Friday
where the major portion of their rostered hours on that day is worked between
1600 hours and 2200 hours (clause 6.3.8(a)(i) and (a)(ii)(A) of MOCA 2).
[83] The "replaced" allowances/loadings in MOCA 2:
(a) totalled 25 per cent, which is the same as the replacement figure in MOCA 3;
(b) applied only to the hours and work on the particular shift which met the criteria
for payment;
(c) did not apply to the entire roster worked by an "extending" SMO such that if
one shift met the conditions for the payment of the loading/allowance, then the
loading/allowance also applied to all shifts on that roster; and
(d) only ever applied to shifts that finished after 1800.
[84] The Respondent submits that the statement in clause 4.3.3 that the loading in MOCA 3
"replaced" two nominated allowances and a nominated loading in MOCA 2 is a clear
indication that those replaced payments were continued in substance into MOCA 3 in
compensation for the same matters for which the replaced provisions in MOCA 2 were
agreed. There is no other explanation for such a "replacement" declaration, which is
reinforced by the inferred logic that the purpose of clause 4.3.3 was to simplify
processes and payment arrangements for the shifts and assist the Respondent's payroll
42 Kucks v CSR Limited (1996) 66 IR 182, 184
25
system by rolling up two allowances paid to employees for evening and night shifts as
provided for in MOCA 2.
[85] In the Respondent's submission, it would be a radical and illogical departure from the
"replacement" declaration to incidentally, and without any explanation or comment to
that effect, expand the types of shifts to which the loading would apply such that it could
apply to shifts to which those allowances did not apply under MOCA 2 (e.g. those that
finished in unextended Ordinary Hours such as shifts that finished at or before 1800).
The Respondent points to the uncontested evidence of Mr Brady that none of the union
parties to MOCA 3 ever suggested to him that the loading should apply to shifts
finishing at or before 1800.
[86] Nor (the Respondent submits) has the Applicant attempted to put any evidence to the
Commission that the Applicant ever suggested, requested or put in a claim that the
application of the loading should change from one that applied to individual shifts that
finished in extended hours, to one that applied to entire rosters including shifts that
finished in ordinary hours. Such evidence would have contradicted the express
"replacement" declaration and would have provided for a "wholesale expansion of the
fundamental basis" upon which the two MOCA 2 allowances were agreed and would
permit the payment to be made on Ordinary time shift in which there was no extension
at all. Such a change would not be a "replacement" but a repeal and significant recasting
of the basis for the entitlement. The payment under MOCA 2 was on account of an
extension arrangement which was described in such a way as being confined to working
"extended" ordinary hours beyond the "traditional" finish time of 1800 hours (see
MOCA 2 clause 6.3.1). The Respondent submits that to agree to consolidate the two
payments into one "identical 'replacement' payment" was to agree that, unless expressly
provided, the original "extension" concept for the payment on a shift-by-shift basis was
also intended to be retained.
[87] In support of its submission, the Respondent notes that Dr Spain:
(a) expressed his understanding of the purpose behind clause 4.3.3(a) of MOCA 3
as being to "simplify payment arrangements" for what he termed "evening
shifts;" and
(b) stated that a shift between 0730 hours and 1800 hours would not be an "evening
shift."
[88] The Respondent submits that:
(a) the only evidence of the purpose of clause 4.3.3(a) shows that the only rationale
for inserting the 25 per cent extended span of hours loading was to simplify
payment arrangements for the shifts to which the predecessors of that clause
applied (shifts that finished after 1800 hours); and
(b) there is no evidence before the Commission that the purpose of clause 4.3.3(a)
was to expand the types or numbers of shifts to which the loading applied so as
to include non-extended shifts.
[89] Furthermore, Mr Brady explained that the payment of the loading was brought forward
from 1800 hours to 1600 hours to overcome a potentially significant reduction in the
26
amount of the loading. The focus on the 1600 hours commencement of the loading (for
late shifts only) led to the removal of any reference to 1800 hours from the clause.
According to his evidence, the after 1800 hours qualifier was not necessary in that
clause because there was never any contemplation, or discussion, of a penalty payment
for an ordinary hours shift.
[90] The Respondent submits that it is not surprising that Mr Brady had not encountered
such a concept. The payment of a type of overtime penalty expressly introduced to deal
with ordinary hours being worked outside the ordinary span of hours is not novel, and
was done in MOCA 2. However, the payment of the same penalty to SMOs when they
were working ordinary hours within the ordinary span of hours is extraordinary, and so
unlikely as to be well outside Mr Brady's extensive experience.
[91] The Respondent submits that, consistent with a history of clause 4.3.3(a) of MOCA 3
from MOCA 2, a fundamental element of the "extended span of hours arrangement" is
that an SMO is only paid the loading in clause 4.3.3 for shifts worked outside ordinary
hours as provided for by the arrangement. In other words, an SMO:
(a) is only entitled to the loading for working a shift which contains ordinary hours
which are worked outside the normal span of Ordinary Hours that would apply
to a "non-extending" SMO;
(b) is not entitled to the loading for shifts which do not contain ordinary hours which
are worked outside the normal span of Ordinary Hours that would apply to a
"non-extending" SMO.
That meaning is consistent with the history of the provision based in MOCA 2 and in
the supplementary affidavit evidence of Mr Brady.
[92] Applicant's submissions: The Applicant takes issue with the Respondent's submission
that:
(a) the changes made from MOCA 2 to MOCA 3 were not a "repeal and significant
recasting of the basis for the entitlement itself" but were merely a simplification
of the processes and payroll arrangements by rolling up two allowances; and
(b) it would be a radical and illogical departure from the "replacement" declaration
to incidentally, and without any explanation or comment to that effect, expand the
types of shifts to which the loading would apply such that it could apply to shifts
to which those allowances did not apply under MOCA 2.
[93] Rather, the Applicant submits, that is exactly what happened. Under MOCA 2,
compensation for working an extended hours arrangement was based on allowances
being paid for the whole of the shift where the majority of hours (i.e. the "major
portion") within that shift fell after 1600. It did not provide for compensation for every
shift that finished after 1800 or only "evening" shifts. Indeed, many shifts that finished
after 1800 would not have attracted any allowance. For example, it would be possible
to work a 10 hour shift that finished at 2030 and attracted no loading.
27
[94] MOCA 3 introduced a different arrangement for compensation for extended hours and
there were many shifts that would not attract the allowance under MOCA 2 which
attracted the allowance under MOCA 3.
[95] The Applicant submits that under MOCA 3:
(a) the quantum of the allowance remained constant; but
(b) the trigger for the application of the allowance and the hours to which it was
applied were changed significantly.
[96] Consideration: Clause 4.3.3(a) of MOCA 3 was developed by reference to provisions
in clause 6.3 of MOCA 2. That context is expressly and precisely described at the end
of clause 4.3.3 as follows:
"The 25% loading referenced in 4.3.3(a) replaces the following:
- 15% loading for working extended hours provided for in clause 6.3.8(a)(i)
and 6.3.8(ii)(A)43 of MOCA 2
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."
(Emphasis added)
[97] The use of the word "replaces" does not resolve the substantive issue in this case. There
is no reason to think that "replaces" bears anything other than its usual English meaning.
"Replace" is defined in standard dictionaries to mean:
(a) "1. to fill or take the place of, substitute for (a person or thing): electricity has
replaced gas as a means of illumination.2. To provide a substitute or
equivalent in the place of: to replace a broken vase;"44
(b) "take place of, succeed, be substituted for."45
[98] It is clear from:
(a) a comparison between the relevant clauses in MOCA 2 (clause 6.3.1,
6.3.8(a)(i) and 6.3.8(a)(ii)(A)) and the replacement statement at the end of
clause 4.3.3 of MOCA 3; and
(b) the evidence before the Commission in these proceedings,
that the 25 per cent loading referred to in clause 4.3.3(a) is not identical to, and hence
does not replicate, what was provided for in the relevant clauses of MOCA 2. Rather,
that loading "replaces" the previous loading and allowances in the sense that it takes
the place of, and was included in substitution for, the previous 15 per cent
loading/allowance and 10 per cent flexibility allowance. Nonetheless it is relevant to
observe that payments were made under the replaced MOCA 2 provisions only when
strict "major portion" conditions were met and, in practice, only when SMOs worked
until after 1800 hours.
43 Sic - this should read "6.3.8(a)(ii)(A)." 44 Macquarie Dictionary, Fifth edition, 2009, 1403. 45 The Australian Concise Oxford Dictionary, 1991, 937.
28
[99] In the agreed statement of facts and issues, the parties state that clause 4.3.3 "combined
and replaced the payment arrangements for extended hours contained in" MOCA 2.
The phrase "combined and replaced" indicates in broad terms the overall (and
presumably intended) effect of clause 4.3.3. However, for the reasons just stated, that
clause did not merely combine and replicate the previous arrangements.
[100] Consequently, the replacement clause contains a reference to one of the surrounding
circumstances in which clause 4.3 of MOCA 3 was developed but, because it does not
replicate the full effect of the identified provisions of MOCA 2, does not itself determine
the meaning to be given to clause 4.3.3(a) of MOCA 3.
The negotiations that preceded clause 4.3.3 of MOCA 3
[101] Evidence: The authorities cited earlier provide that (within some constraints) evidence
of prior negotiations is admissible for the purpose of ascertaining the meaning of
MOCA 3. Each witness gave evidence about aspects of the negotiations and
information sessions that preceded MOCA 3 being certified and commencing to operate
from 1 November 2012.
[102] Mr Goldman's evidence: In July 2012, Mr Goldman took over responsibility from
another advocate as the lead negotiator for the Applicant in the negotiations for an
agreement to replace MOCA 2. He gave evidence that, at that stage, the clauses
regarding extended hours had not been finalised. On 16 July 2012, Mr Brady sent an
email to Mr Goldman and attached a draft proposal for extended hours. That document
included the following:
"Payment for Working Extended Hours
(i) Where a senior medical officer ceases their ordinary hours of duty after
6.00pm, that employee must be paid a shift allowance of 25% per hour for all time
worked after 6.00pm;
The 25% shift allowance replaces the following:-
- 15% loading for working extended hours provided for in clause 6.3.8(a)(i) of
MOCA 2
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Exhibit
1, DG1)
[103] Mr Goldman gave evidence that he distributed that proposal to the Applicant's delegates
involved in the negotiations. They rejected the proposal as it reduced current
entitlements (Exhibit 1 paragraph 5).
[104] On 23 July 2012, Mr Brady forwarded a revised version of the extended hours clause.
It provided:
"Payment for Work in the Extended Span of Ordinary Hours of Work:
7.00am to 10.00pm, Monday to Sunday
29
A senior medical officer working ordinary hours in an extended span of hours will
be paid according to one of the following:
(a) A 25% shift loading for all time worked after 6.00pm where an officer ceases
ordinary hours of work after 6.00pm, in which case the loading must be paid
to the nearest quarter of an hour; OR
(b) A 50% shift loading for ordinary hours worked on Saturday where the major
portion of such is worked between midnight Friday and midnight Saturday;
OR
(c) A 100% shift loading for ordinary hours worked on Sunday where the major
portion of such is worked between midnight Saturday and midnight on
Sunday.
NB The 25% shift loading replaces the following:
- 15% loading for working extended hours provided for in clause 6.3.8 (a)(i)
and 6.3.8 (ii)(A) of MOCA 2.
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."
(Exhibit 1, DG2)
[105] Mr Goldman gave evidence that the revised version was also rejected by delegates.
Excerpts from emails provided as an exhibit to his affidavit show that, as at 24 July
2012, one delegate wrote that "the 25% loading just for hours worked on the shift is
pathetic/paltry compensation for such a major deterioration in working conditions,
esp compared to the compensation rate that ED SMOs get (i.e. an extra 25% option
A, -PLUS- a loading on after hours as I understand it." Another wrote that he agreed
entirely with that statement, and others in the delegate's email. Dr Mark Coghlan wrote
that he agreed with everything that delegate said and wrote (among other things) that it
was "bizarre to offer only 25% loading for hours worked after 1800 - it is only 37.5%
of what was previously available on the same shift." (Exhibit 1 paragraph 7, and DG3,
emphasis in original)
[106] On 9 August 2012, Mr Brady sent to Mr Goldman an email to which he attached Mr
Brady's "effort to draft an agreement to reflect the outcome" (presumably of the
negotiations to that date). The draft for consultation version of the proposed certified
agreement had extensive tracked changed. For the purposes of the present proceedings,
the relevant clause provided:
"4.3.3 Payment for Work in the Extended Span of Ordinary Hours: 0700
hours to 2200 hours
A Senior Medical Officer working Ordinary Hours in an extended span of hours
arrangement between 0700 hours and 2200 hours will be paid according to one of
the following:
(a) A loading of 25% of the ordinary rate for all Ordinary Hours worked between
1600 hours and 2200 hours on any weekday;
(b) A loading of 50% of the ordinary rate for all Ordinary Hours in a shift worked
on a Saturday; or
30
(c) A loading of 100% of the ordinary rate for all Ordinary Hours in a shift worked
on a Sunday.
The 25% loading replaces the following:
- 15% loading for working extended hours provided for in clause 6.3.8
(a)(i) and 6.3.8 (ii)(A) of MOCA 2.
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."
(Exhibit 1, DG4, emphasis added)
[107] That wording is almost identical to the extended hours clause in the final agreement.
Mr Goldman noted that clause 4.3.3 of MOCA 3 contains no qualifier or requirement
for doctors on extended hours arrangements to work past 1800 hours on particular shifts
before the loading was payable on ordinary hours worked between 1600 hours and 2200
hours on that shift. (Exhibit 1 paragraph 9)
[108] Mr Goldman gave evidence that:
(a) he did not recall Mr Brady, or any other negotiator from the Respondent,
advising that the Respondent's position on the final wording of the clause
meant anything other than what was apparent on the face of the wording;
(b) he did not believe anyone from the Respondent informed the Applicant that
they believed a qualifier or requirement for doctors on extended hours
arrangements to work past 1800 hours on particular shifts had been retained
as part of the final clause;
(c) given that the Applicant's delegates had vigorously opposed such a qualifier,
he was certain that if the Respondent's representatives had raised that they
believed such a qualifier still applied, he would have noticed and objected.
(Exhibit 1 paragraphs 10, 11)
[109] The Respondent sent a "Summary of the Proposed Agreement" to its employees. The
document was in the form of a table. The introductory words noted that the table
"summarises some of the main features of the proposed" MOCA 3, and continued:
"Please note this is not an exhaustive list and reference should be made to the full copy
of the proposed agreement." (Exhibit 1, DG6)
[110] That document stated in relation to clause 4.3 Extended Span of Ordinary Hours of
Work:
"Where there is a service need, arrangements for the working of extended hours
by SMOs:
0700 - 2200 Monday to Sunday.
Paid one of the following loadings:
o 25% of the ordinary rate for all Ordinary Hours worked between 1600
hours and 2200 hours on any weekday;
o 50% of the ordinary rate for all Ordinary Hours in a shift worked on a
Saturday; or
o 100% of the ordinary rate for all Ordinary Hours in a shift worked on a
Sunday.
31
It is voluntary for current SMOs but new appointees may be directed to participate
in an extended hours roster.
In exceptional circumstances work may be rostered 2200 - 0700." (Exhibit 1
DG6, Emphasis added)
[111] Mr Goldman gave evidence that the wording of that document reflects the wording in
MOCA 3 and contains no mention of a qualifier or requirement for doctors on extended
hours arrangements to work past 1800 hours on particular shifts before the loading was
payable. (Exhibit 1 paragraph 13)
[112] He provided a copy of the PowerPoint Presentation and notes pages that the Respondent
used to explain the agreement. PowerPoint slide 16 contains the following text under
the heading "Employment conditions:"
"25% shift allowance for work performed after 4pm for extended hours."
The notes to that slide, and Slide 17, include a statement that a shift allowance or loading
of 25% will replace the 10% flexibility allowance and the 15% evening shift allowance
(Exhibit 1, DG7).
[113] Mr Goldman gave evidence that that material does not contain any mention of a qualifier
or requirement for doctors on extended hours arrangements to work past 1800 hours on
particular shifts before the loading was payable. (Exhibit 1 paragraph 15)
[114] The FAQ document sent out by the Respondent includes among the summary list of
"key features" of MOCA 3:
"A 25% shift loading for evening and night shifts as part of an extended hours
roster which will assist to reduce overtime costs." (Exhibit 1, DG8; Exhibit 4, B)
[115] People were directed to various places where the proposed MOCA was displayed or
could be accessed and they were advised that they could find out more information
about MOCA 3 at various locations and forums including information sessions being
held within the Hospital and Health Service.
[116] Mr Goldman gave evidence that the FAQ document does not contain any mention of a
qualifier or requirement for doctors on extended hours arrangements to work past 1800
hours on particular shifts before the loading was payable (Exhibit 1 paragraph 16).
[117] Dr Spain's evidence: In his affidavit, Dr Spain stated that the "new agreement" (that is,
MOCA 3) included "clause 4.3.3(a) that, to the best of my recollection, was explained
as intending to simplify payment arrangements for evening shifts." He stated that
previous arrangements contained wording regarding loadings when the majority of the
shift was after 1600 hours. By his account, all hours of such shifts were paid with
loading. However some evening shifts had majority hours before 1600 hours and no
loading was paid on any hours (Exhibit 2 paragraph 3).
[118] In the course of his oral evidence, Dr Spain stated that he understood that the loading
was payable for shifts completed after 1600 hours, including where a shift was
32
completed at or before 1800 hours, even though, for example, he did not consider a shift
from 0730 hours to 1800 hours to be an "evening shift" but described it as one of the
"ordinary hour shifts".
[119] He described what he understood as a "complete change of the previous arrangements"
under which a person who worked in the afternoon shift would receive a penalty for the
whole of the shift assuming that the work was for more than 50 per cent of the period
after 1600 hours.46 The new arrangements were meant to "simplify matters" and
"clearly said after 4 pm that would be paid." Under the previous arrangement, SMOs
were paid penalties before 1600 hours (in certain circumstances) and under the new
arrangements they were paid penalties only after 1600 hours. Dr Spain recalled that
this was "very clearly looked at" by emergency physicians throughout the state because
it was a significant change.
[120] It was, however, cost neutral for those SMOs working one evening shift each week and
one weekend in four. Others who worked more evening shifts each week and on more
weekends each month would be worse off financially.
[121] Dr Spain gave evidence that he attended a meeting at which slides were shown, FAQ
documents were made available, and the proposed MOCA 3 was shown to participants.
He recalled that the part of the Summary of the Proposed Agreement document which
described clause 4.3.3 was "explored in great detail" because of what he described as
the significant "change to our conditions" which had "pros and cons." According to Dr
Spain, there were discussions during and after the meeting. It seems, however, that no
representative of the Respondent was present. Although Department of Health
materials were considered, people from the union who had been involved in the
negotiations had clarified and explained what was proposed.
[122] Dr Spain also gave written and oral evidence to the effect that:
(a) to the best of his recollection, at no point during the negotiations for MOCA 3 or in
the information put out by the Respondent before the vote on MOCA 3 did he see
or hear any material that indicated the entitlement to the loading was other than that
which is set out in the words of the agreement, i.e. that SMOs would be paid "a
loading of 25% of the ordinary rate for all Ordinary Hours worked between 1600
hours and 2200 hours on any weekday;" and
(b) had such material or explanation been provided by the Respondent as part of the
ballot process he would have noticed that, given that it would have a direct impact
on him (Exhibit 2, paragraphs 14, 15)
[123] Mr Brady's evidence: Mr Brady was the lead member of the Respondent's management
team responsible for negotiating MOCA 3. His role extended to drafting the agreement
in consultation with the union parties to that agreement. He provided two affidavits
(Exhibits 3 and 4) and gave oral evidence at the hearing.
[124] The Applicant:
46 So, for example, Dr Spain said that a person who previously worked from 9.30 am until 8.00 pm would not
be paid for an evening shift.
33
(a) objected to the admissibility of some of Mr Brady's evidence, in particular hearsay
evidence in relation to a discussion between him, Mark Coghlan and Mr Goldman
about the draft version of clause 4.3.3(a), and his statements recording the intention
and shared understanding of the negotiators about the types of shifts to which the
amended version of clause 4.3.3(a) would apply (as contrast with what Mr Brady
intended or understood); and
(b) made submissions to the effect that little or no weight should be given to those and
other parts of his evidence about the negotiations, and the inferences he drew from
them; and
(c) took issue with the content and logic of other aspects of Mr Brady's evidence.
[125] In my opinion, many of the objections and submissions were well made. Their impact
will be apparent in the following discussion of Mr Brady's evidence.
[126] Mr Brady's first affidavit records his understanding that:
"the other parties were of the understanding that an extended span of ordinary
hours arrangement would be one where an employee was rostered to work their
ordinary hours of duty beyond 6.00pm Monday to Friday and would receive a
loading of 25% on those ordinary hours worked after 4.00pm. That is, no loading
was payable unless the employee finished their rostered ordinary hours of work
after 6.00pm." (Exhibit 3, paragraph 8)
The Applicant submits that Mr Brady gave no rationale as to why he believed that
understanding existed.
[127] In support of his conclusion, Mr Brady relied on his statement to the Commission
(constituted on that occasion by Deputy President Bloomfield) on 1 November 2012 in
the course of certification proceedings in relation to MOCA 3. Mr Brady advised
Deputy President Bloomfield about the process surrounding the ballot to determine
whether a valid majority of employees supported the agreement. He referred to affidavit
evidence about the steps taken to ensure compliance with sections 143 and 144 of the
Act. Mr Brady then suggested that "it may be worthwhile to outline a couple of the
features of the agreement." With the agreement of Deputy President Bloomfield, Mr
Brady continued:
"There is an operative date of first of July 2012. It provides for annual wage
increase of 2.5 per cent from first of July 2012, 13, and 14 and also an increase of
2.5 per cent to all-purpose allowances. It also increases the vocational training
subsidy from $1500 per annum to $2,000 per annum. Also to assist with the
delivery of services it is a simplified process for the hospital and health services to
introduce extended hours, rosters for senior medical officers, which includes 25
per cent shift loading for evening and night shift, which is a result of rolling up two
previous allowances which also assists the Queensland Health payroll system."
(Emphasis added)
Mr Brady then outlined other features of the agreement which are not relevant to these
proceedings.
34
[128] During the hearing of the present application there was some focus on Mr Brady's
reference to the 25 per cent shift loading "for evening and night shift." In his affidavit,
Mr Brady suggests that the transcript record of the certification proceedings shows that
the parties were of the "common understanding" that the 25 per cent loading for working
extended hours "was intended to 'roll up' (combine) two allowances paid to employees
who worked evening and night shift. That is, worked an extended hours arrangement."
The two allowances to which he referred were prescribed in clause 6.3.1 (flexibility
allowance) and clause 6.3.8 (payment for working in extended hours arrangement), in
MOCA 2. (Those clauses are considered at [74] to [77] in these reasons for decision.)
[129] Although he was cross-examined at length, Mr Brady's oral evidence can be
summarised relatively briefly as follows:
(a) the ordinary span of hours for senior medical officers over the years had been
from 0700 hours until 1800 hours;
(b) he understood that an "evening shift" was a shift that would finish after 1800
hours;
(c) he understood that an "extended span of hours arrangement" is for work
performed outside ordinary hours (i.e. 0700 hours to 1800 hours) usually on a
regular to semi-regular basis, which is specified in clause 4.3 to be between the
hours of 0700 hours and 2200 hours;
(d) the parties always intended to apply the shift penalty after ordinary hours;
(e) there had never been any contemplation to pay a shift penalty for hours that are
within ordinary hours, indeed it was unheard of;
(f) the extension of payment for an ordinary time shift was never discussed;
(g) after 12 months of discussions about arrangements for extended hours it was
agreed, in light of concerns raised towards the end of the negotiations, to make
a payment from 1600 hours so that, if an SMO had a shift from 1000 hours to
2000 hours the shift penalty would be paid for the last four hours rather than
overtime;
(h) the concept of an extended hours shift was something that had to be worked
outside of ordinary hours, otherwise doctors who worked from 0800 hours to
1800 hours every day could start claiming an extended hours or shift allowance
from 1600 hours to 1800 hours every day;
(i) the concept of ordinary hours being from 0700 hours to 1800 hours applies to
both clause 4.2(a) and clause 4.2(b), and work outside of that is undertaken in
extended hours;
(j) it was not necessary to include the words "only where the shift finishes after
1800" because the concept of ordinary hours being between 0700 hours and
1800 hours was not displaced by the Certified Agreement and there was a mutual
35
intention and understanding between the parties that the loading would only
apply to shifts finishing after 1800 hours;
(k) nowhere else do people get paid penalty rates for ordinary hours.
[130] Mr Brady provided affidavit and oral evidence about a meeting at which, he said, a Dr
Mark Coghlan vociferously raised concerns that if the extended hours were going to
start from 1800 hours there would be a huge disadvantage. Mr Brady said that he
redrafted clause in a way that he thought could address the concern so that payment
could be made from 1600 hours. Mr Brady did not recall the date or form of the meeting
or who attended. He had no notes or minutes of the meeting, or any emails in relation
to it. Mr Goldman was not asked any questions about the meeting. The Applicant
objected to Mr Brady's evidence. I agree. There is no documentation before the
Commission or other corroborating evidence in relation to that alleged meeting.
However, the thrust of what Dr Coghlan is alleged to have said is consistent with his
contribution to the email correspondence in July 2012 (see [105]). I gave no weight to
that evidence, but simply note that Mr Brady redrafted the clause in response to
negotiations.
[131] By comparison with MOCA 3, Mr Brady noted that MOCA 2 provided, in clause 6.3.1,
that:
(a) SMOs had traditionally worked ordinary hours between 0800 hours and 1800
hours Monday to Friday;
(b) the shift payment would be paid after the traditional times that are not subject to
overtime payment;
(c) if the majority of the shift worked by an SMO was after 1600 hours, they were
paid the allowance for the entirety of that shift (e.g. for a shift from 1200 hours
until 2100 hours.
[132] According to Mr Brady, the Respondent wanted to rationalise the amount of allowances
that were paid and saw the shift penalty of 15 per cent and flexibility allowance of 10
per cent as "something that lends itself being combined" with the outcome being 25 per
cent in the way he described. He described this "different arrangement" as combining
the previous penalty and allowance and applying the arrangement in a way that "the
parties agree was a fair compromise … for extended hours," that is, work outside the
normal span of hours. A doctor who wanted to know whether they were entitled to the
allowance would seek advice from HR, payroll or the union, rather than try to interpret
the clauses of MOCA 3.
[133] Mr Brady gave evidence that the FAQ document was prepared as part of the
Respondent's compliance with the legislative requirements for the making of an
agreement. It was one of the key documents that went out to explain the agreement. It
listed as one of the key features of MOCA 3:
"A 25% cent shift loading for evening and night shifts as part of an extended hours
roster which will assist to reduce overtime costs." (Exhibit 1, DG8; Exhibit 4, B)
36
[134] Mr Brady did not recall Together Queensland or the ASMOFQ47 making a claim during
the negotiations that the extended hours 25 per cent payment be paid for hours worked
after 1600 hours regardless of the shift finishing at or before 1800 hours (Exhibit 4
paragraph 4).
[135] The Respondent also prepared a table summarising some of the main features of the
proposed MOCA 3. The statement in relation to clause 4.3 Extended Span of Ordinary
Hours of Work is quoted at [110]. As noted earlier, the summary table effectively
recited the words that became clause 4.3.3(a) of MOCA 3. Its opening words referred
to the working of "extended hours" by SMOs.
[136] Mr Brady agreed that neither the part of the Summary of the Proposed Agreement
dealing with clause 4.3 nor the extract from the PowerPoint slide presentation included
the words "but only when a shift finishes after 1800."
[137] The term "evening shift" was not defined in MOCA 3 or the relevant Award. Mr Brady
referred to the term as a "layman's description about when it would apply" which he
said "is in the evening, not in ordinary day work." He said that it was a descriptor of a
shift that goes into the evening which, to him, would have to go outside ordinary hours.
In his experience, an evening shift has never taken place between 0800 hours and 1800
hours.
[138] He noted that Mr Goldman, the lead negotiator for the Applicant, had given evidence
that he did not agree that the qualifier was not needed because everyone knew of it and
that Mr Goldman said that there was nothing to his knowledge that justified interpreting
clause 4.3.3 in any way other than what was apparent from the wording of the clause.
Nonetheless, Mr Brady said that his clear recollection was that the concept was agreed.
Indeed he said he redrafted the clause to address some concerns that were raised. The
idea of the ordinary hours was not displaced by the extended hours, and it was not
thought necessary to specify that a full shift worked inside ordinary hours would attract
a shift penalty.
[139] Mr Brady's statement to the Commission at the hearing for the certification of MOCA3
before Deputy President Bloomfield on 1 November 2012 is quoted earlier at [127]. On
that occasion, Mr Brady also referred to some amendments that had been made after the
agreement was posted for consultation. He gave, as examples, changing a date to reflect
that the parent award was updated during the consultation process, a simplified
classification structure, the correction of a section number referring to the parent award,
and the insertion of a clause that was inadvertently omitted from the final version of the
agreement.
[140] Mr Goldman appeared for the Applicant. After Mr Brady made his statement, Mr
Goldman stated:
"I echo and support the comments made by my colleague in relation to those
amendments that have been discussed."
47 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.
37
[141] The parties to the present proceedings sought to draw different inferences from that
statement. Mr Goldman's evidence in the present proceedings, given more than three
and a half years after the hearing before Deputy President Bloomfield, was:
"Certainly at the time I don't appear to have had any objection to the wording that
Mr Brady has used, but, as I said before, what I have relied upon in relation to the
provisions of this agreement are the provisions of the agreement. So I wasn't
aware that Mr Brady's statements in transcript in conciliation were attempting in
some way to rewrite the words of the agreement. …
I mean that my comments there are quite - quite specific to the amendments that
have been discussed and I don't believe there were any amendments that were
made to the draft agreement at certification. There were a range of amendments
made on certification to the agreement for a number of reasons and I have agreed
with Mr Brady in relation to those amendments. Those amendments had been
discussed between the parties and also with the Deputy President is being required
to and agreed to it being made to the agreement. I don't believe my comments
here referred anything other than those amendments that had actually been put to
the Commission." (T1: 19-20)
I accept that Mr Goldman's references to the amendments were to those amendments
specified by Mr Brady and did not refer to clause 4.3.3 of MOCA 3.
[142] Mr Goldman also said that on that occasion he did not
"place any particular weighting … on the use of his word evening in his
submission and I didn't see anything controversial in relation to his submissions,
but they were his submissions and I made submissions in relation to those things
that I sought to make submissions in relation to and I didn't make any submissions
in relation to the 25 per cent loading or the terms of that." (T1: 20)
[143] Respondent's submissions: According to the Respondent, the evidence is that there
were no suggestions from the Applicant during negotiations that clause 4.3.3(a) would
ever extend the type of shifts to which the loading applied so that it also applied to shifts
on which the disability was not incurred.
[144] The Respondent submits that the purpose of the 25 per cent loading in clause 4.3.3(a)
of MOCA 3 is clear. By reference to the words they used, and the terms and concepts
in MOCA 2 which the parties said in MOCA 3 they were merely replacing, it can be
deduced that the parties intended to roll up two allowances provided for in MOCA 2
into one identical payment, for essentially the same disability. That disability was an
arrangement whereby the employee worked ordinary hours outside the normal or
traditional span, which concluded at 1800, and was incurred on a shift by shift basis.
[145] FAQ document: The Respondent refers to the FAQ document which it prepared and
used in presentations to SMOs to explain the proposed agreement which became
MOCA 3. As already noted, the FAQ document listed as one of the key features of
MOCA 3:
"A 25% shift loading for evening and night shifts as part of an extended hours
roster which will assist to reduce overtime costs." (Exhibit 1 DG8; Exhibit 4, B)
38
[146] The Respondent submits that it is apparent from that document that the 25 per cent
loading was only intended to apply to "evening" and "night" shifts that form part of an
extended hours roster, not to all shifts within the roster, and certainly not to "day" or
"ordinary hours" shifts finishing at or before 1800 hours. By carving out the loading as
only applying to evening and night shifts, the FAQ document confirms that the meaning
of the "extended span of hours arrangement" is "a shift that contains hours that fall
outside what would otherwise be ordinary hours."
[147] The Respondent submits that the Commission should consider the FAQ document to
assist in interpreting the phrase in dispute between the parties. In support of that
submission, the Respondent refers to a decision in which the Commission accepted that,
when interpreting a certified agreement, regard should be had to documents distributed
to employees who were to vote on an agreement to explain a certified agreement.48
[148] According to the Respondent (relying on affidavit evidence from Mr Brady) the
Applicant never expressed any disagreement with the content of the FAQ document.
[149] The Respondent submits that any interpretation by the Applicant that an evening shift
includes one that finishes at or before 1800 hours is absurd and should not be accepted
by the Commission. The Respondent refers to the evidence of Dr Spain that such a shift
is an "ordinary hours shift" that is expressly not an evening shift. Clearly a shift that
finishes at or before 1800 hours is not a night shift.
[150] In support of that submission, the Respondent refers to the statement of Madgwick J in
Kucks v CSR Limited (quoted earlier) that:
"it is justifiable to read the award to give effect to its evident purposes, having
regard to such context, despite mere inconsistencies or infelicities of expression
which might tend to some other reading. And meanings which avoid
inconvenience or injustice may reasonably be strained for."49
[151] The Respondent also submits that the decision in the James Hardie50 case was confined
to the circumstances in which an extrinsic FAQ document was said to have "tainted"
the agreement with ambiguity. That document was prepared by one party to inform
employees who work in "humble circumstances." The Respondent submits that none
of those considerations apply here. SMOs and their union were not in analogous
"humble circumstances" and were perfectly capable of challenging the document at the
time.
[152] PowerPoint presentation: The Respondent also refers to the presentations that were
delivered to SMOs to explain the terms and conditions of the proposed agreement that
became MOCA 3. Slide 16 of the PowerPoint presentation included the following
reference to the extended span of hours loading:
48 See United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community
safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au> [71]
(Thompson C). 49 Kucks v CSR Limited (1996) 66 IR 182, 184. 50 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167
QGIG 280.
39
"25% shift allowance for work performed after 4pm for extended hours."
(Exhibit 1, DG7)
[153] The Respondent submits that it could not have been thought other than that extended
hours were required to be worked to qualify for such payment. That was a familiar
concept, as it had applied in MOCA 2 for some years.
[154] Statement of certification: The Respondent submits that, at the hearing for the
certification of MOCA 3, Mr Goldman either specifically supported the application of
the loading put forward by Mr Brady or remained silent in response to Mr Brady's clear
submissions about the application of the 25 per cent extended hours shift loading. The
Respondent submits that Mr Goldman would not be alarmed by this statement, as it was
the current MOCA 2 position.
[155] Applicant's submissions: The Applicant refutes the Respondent's suggestion that it
was the parties' intention that the loading was only ever intended to apply to shifts that
finished after 1800 hours. In particular, the Applicant submits that, although there is
evidence that that might have been Mr Brady's "fervent intention," there is no evidence
that the intention was mutual or shared.
[156] In support of its submission, the Applicant relies on the principles set out by the High
Court of Australia in Codelfa Construction Pty Ltd v State Rail Authority of New South
Wales51 relating to "shared mutual intention" as considered in the judgement of RD
Nicholson J in BP Australia Pty Limited v Nyran Pty Limited.52 His Honour noted that
if the language of a contract is "ambiguous or susceptible to more than one meaning"
evidence of "surrounding circumstances" is admissible to assist in the interpretation of
the contract.53 He continued:
"The concept of ‘surrounding circumstances’ is to be understood to be a reference
to ‘the objective framework of facts’. It will include evidence of prior
negotiations so far as they tend to establish objective background facts known to
both parties and the subject matter of the contract. It will also include facts so
notorious that knowledge of them is to be presumed. Additionally it will include
evidence of a matter in common contemplation and constituting a common
assumption. From the evidence of that setting the parties’ presumed intention
may be taken into account in determining which of two or more possible meanings
is to be given to a contractual provision. What cannot be taken into account is
evidence of statements and actions of the parties which are reflective of their
actual intentions and expectations. Objective background facts can include
statements and actions of the parties which reflect their mutual actual intentions.
That is, evidence of the mutual subjective intention of the parties to a contract
may be part of the objective framework of facts within which the contract came
into existence. It is the mutuality which makes the evidence admissible."
(Emphasis added)54
[157] The Applicant reiterates that there is no such evidence of mutuality in this case.
51 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 52 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520. 53 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520, [33]. 54 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520, [34].
40
[158] As to the Respondent's suggestion that none of the union parties to MOCA 3 ever
suggested to Mr Brady that the loading should apply to shifts finishing at or before 1800
hours, the Applicant points to Mr Brady's evidence that he understood the union's
position with respect to the loading to be that everyone who works extended hours
would receive a blanket 25 per cent allowance across the board, whether they work
extended hours or not just to commit to work extended hours. The Applicant also points
to the evidence of Dr Spain and the evidence of Mr Goldman. Consequently, the
Applicant submits there was no "common assumption" among the SMOs affected that
the loading would only apply to shifts finishing after 1800 hours. (Final submissions
paragraphs 19-22) Rather, the only basis for the Respondent's belief in mutual intention
was the absence of contradictory statements.
[159] In relation to mutual subjective intent, the Applicant refers to the following passage
from the decision of a Full Bench of the Fair Work Commission in RACV Road Service
Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing Workers' Union:55
"… We agree with the Appellant that the Commissioner erred in relying on
evidence of past conduct of the Appellant in construing the meaning of cl.13.6(b)
of the Agreement. The evidence relied upon fell well short of establishing a
common understanding of the meaning of the provision or the common intention
of the parties to the Agreement. In this context the Commissioner’s reliance on
the obligations of the Appellant to explain the terms of the Agreement during the
approval process is also misplaced. The Commissioner said:
“Where as in the present case, no specific explanation was given by the
RACV to employees as to the term or the effect of the term of clause
13.6(b) of the current Agreement then objectively the intent and meaning
of clause 13.6(b) given by both the RACV and employees and the AMWU
must be the same as it had prior to the current Agreement.”
It will be rare that a common understanding or objectively ascertained common
intention will be shown by the absence of words. This might show a common
inadvertence, however that is not the same thing. Even less so, when combined
with the clear and unambiguous language of cl.13.6(b). The question whether the
Appellant adequately explained the terms of the agreement to employees during
the approval process does not result in a common understanding or common
intention in relation to the application of cl.13.6(b) of the Agreement. Moreover,
the fact that the Respondent made limited use, or no use at all, of the provision in
the past, is not a basis for reading down the operation of cl.13.6(b)."
[160] The Applicant submits that if evidence of mutual subjective intention is admissible,
evidence negating such a claim should be equally admissible for that purpose and only
that purpose. It further submits that even if there were evidence of such intention, that
would only assist in revealing and resolving an ambiguity. It would not allow the plain
meaning of the agreement to be supplanted. Indeed, the Applicant submits, if there
were overwhelming evidence that the parties intended something other than what is
55 RACV Road Service Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing Workers' Union [2014] FWCFB 1629, [33], [34].
41
written (which is not conceded), the parties would be bound by the agreement if the
meaning of what was written is clear.56
[161] However in this case, the Applicant submits, the Respondent cannot point to any
evidence of a common intention that can be identified in line with Principle 9 of the
Golden Cockerel decision:
"A common intention is identified objectively, that is by reference to that which
a reasonable person would understand by the language the parties have used to
express their agreement."
[162] FAQ document: The Applicant submits that the contra proforentum rule should be
applied to the FAQ document prepared by the Respondent for the reason that, at best, the
document was ambiguous. Although it states that the loading applies to evening and night
shifts, it does not say that the loading does not apply elsewhere. The FAQ document did
not provide the clarity that the Respondent suggests and, in particular, did not "carve" out
the loading as applying only to "evening" and "night" shifts. Given that the FAQ
document is ambiguous and does not preclude the interpretation that the Applicant
presses, the resolution of the ambiguity in that document should be in the Applicant's
favour, allowing the loading to apply to certain hours in other shifts.
[163] PowerPoint presentation: The Applicant submits that the contra proforentum rule
should be applied to the PowerPoint presentation prepared by the Respondent for the
reason that the PowerPoint presentation does not provide the sort of clarity claimed by
the Respondent. Indeed the Respondent seeks to "cherry pick" phrases from it and
ignores the greater detail found in that presentation and the "Summary of the Proposed
Agreement."
Practical approach
[164] Respondent's submissions: The Respondent also urges the Commission to take a
practical approach when answering Question 1. In support of that submission it refers
to the statement by Madgwick J in Kucks v CSR Limited,57 quoted with approval by the
High Court58 and the Industrial Court of Queensland,59 that the search is for the meaning
intended by the framers of the document, bearing in mind that they were likely to be of
a practical bent of mind, and may well have been more concerned with expressing an
intention in ways likely to have been understood in the context of the relevant industry
and industrial relations environment than with legal niceties or jargon.
[165] In particular, the Respondent submits that, even if the Commission were to find that the
meaning of "extended span of hours arrangement" means "extended span of hours
roster," the Commission should find in the Respondent's favour that the 25 per cent
loading referred to in clause 4.3.3(a) should only apply to shifts that finish after 1800
hours. Although those words were not included in the clause, the Commission is
obliged to effectively read them in by interpreting the clause having regard to its context
and purpose and the evidence (including evidence of the predecessor clause which it
was replacing) that the loading should only apply to shifts that finish after 1800 hours.
56 See Core Toughened Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWC 7131. 57 Kucks v CSR Limited (1996) 66 IR 182, 184. 58 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96] (Kirby J). 59 Park Avenue Motor Hotel etc v Beck and Beck v Park Avenue Motor Hotel etc [2008] QIC 66 (Hall P).
42
[166] The Respondent submits that the Commission should not be hindered by infelicities of
expression, but should find the meaning that was intended by the parties. Considering
the context of MOCA 2, the purpose of the clause and the extrinsic material, and
evidence in these proceedings, the intended meaning of the clause is clear. The loading
was only ever intended to apply to shifts that finish after 1800 hours. It was not intended
to apply in any circumstances to ordinary hours shifts.
[167] Applicant's submissions: The Applicant characterises the Respondent's submission as
inviting the Commission to effectively rewrite clause 4.3.3(a) to insert the qualifier that
the loading should only apply to shifts that finish after 1800 hours. The rationale for
this is not that clause 4.3.3(a) is susceptible to being read that way, but rather that the
fact that it says something quite different is a "mere inconsistency or infelicity of
expression."
[168] The Applicant submits that the Respondent's submission takes the decision in Kucks v
CSR Limited60too far, and is asking the Commission to make an error of law and breach
Principle 10 from the Golden Cockerel decision, namely:
"The task of interpreting an agreement does not involve rewriting the agreement
to achieve what might be regarded as a fair or just outcome. The task is always
one of interpreting the agreement produced by parties."
[169] By asking the Commission to "read in" that the loading should only apply to shifts that
finish after 1800, the Respondent is asking the Commission to rewrite clause 4.3.3(a)
rather than interpret that clause.
Consideration and conclusions
[170] Background to MOCA 3: The evidence summarised earlier shows that the extended
working hours issue was still being considered late in the negotiations. The emails show
that there were also other issues about which the doctors' negotiator (and delegates) had
some concerns. But the negotiations were almost concluded. The doctors'
representatives were considering the overall effect of the proposed MOCA 3, and the
provision for the payment of the 25 per cent loading was only one of the issues in the
overall scheme of the proposed agreement.
[171] To the extent that the evidence of the negotiations indicates the understanding or
subjective intention or expectation of a negotiator (as much of it does) that evidence
cannot be used to ascertain the meaning of an ambiguous expression or clause in MOCA
3. However, that evidence is useful in charting some of the course of the negotiations
and establishing that the parties' minds were engaged in fashioning what became clause
4.3.3(a).
[172] The final steps of the negotiations and any correspondence in relation to them are not
in evidence. At the hearing before Deputy President Bloomfield on 1 November 2012,
the representatives of the parties stated that the relevant processes had been followed
and agreement had been reached. They applied for the agreement to be certified.
MOCA 3 was certified and took effect from 1 November 2012.
60 Kucks v CSR Limited (1996) 66 IR 182, 184.
43
[173] I proceed on the basis that, by the time of certification, there was no dispute as to the
wording of clause 4.3.3 of MOCA 3. At some stage after MOCA 3 commenced to
operate, questions were raised as to the meaning and implementation of clause 4.3.3(a).
That is the dispute before the Commission.
[174] Evidence of the preceding negotiations establishes the following surrounding
circumstances and background facts:
(a) the negotiations took place in light of, and by reference to, the provisions and
operation of MOCA 2;
(b) MOCA 2 provided that the ordinary hours of work for an SMO were within the
span of 0700 hours to 1800 hours Monday to Friday (clause 6.2.1), and that
extended hours of work arrangements may be implemented for SMOs between
0700 hours and 2200 hours Monday to Sunday (clause 6.3.1), and those spans
of hours were replicated in MOCA 3;
(c) under clauses 6.3.1, 6.3.8(a)(i) and 6.3.8(a)(ii)(A) of MOCA 2, an SMO who
entered into extended hours arrangements between 0700 hours and 2200 hours
Monday to Sunday was entitled to receive:
a. a 15 per cent loading where the major portion of the rostered hours of
ordinary time worked on a daily between Monday and Friday was
worked between 1600 hours and 2200 hours;
b. an allowance of 15 per cent per hour for all time worked after 1800 hours
where the SMO ceased their ordinary hours of duty after 1800 hours but
the major portion of their rostered hours on that day was not worked
between 1600 hours and 2200 hours;
c. a flexibility allowance of 10 per cent for any ordinary time worked where
the major portion of the ordinary time worked on a daily between
Monday and Friday was worked between 1600 hours and 0700 hours;
d. the 15 per cent loading payable under a. in addition to the flexibility
allowance payable under c;
(d) the negotiating parties agreed that the new certified agreement should provide
for a 25 per cent loading to combine and replace the payment arrangements for
extended hours contained in clauses 6.3.1 and 6.3.8 of MOCA 2;
(e) in the second half of July 2012 and into August 2012, the negotiating parties
were finalising their negotiations about how and when the 25 per cent loading
should be paid and how the entitlement to the loading should be expressed in
the new certified agreement;
(f) revised drafts of what became clause 4.3.3 of MOCA 3 were prepared by the
Respondent's negotiator, Mr Brady, and provided to the doctors' negotiator in
an attempt to close the gap between the parties;
44
(g) draft clause 4.3.3 provided by Mr Brady to Mr Goldman on 9 August 2012 was
part of a draft agreement that Mr Brady stated was his "effort to draft an
agreement to reflect the outcome;"
(h) that draft clause 4.3.3 differed from previous drafts by providing for a 25 per
cent loading to be paid for "all Ordinary Hours worked between 1600 hours and
2200 hours on any weekday" rather than for all time worked after 1800 hours;
(i) draft clause 4.3.3 applied to an SMO working Ordinary Hours in an extended
span of hours arrangement between 0700 hours and 2200 hours;
(j) draft clause 4.3.3 was in almost identical terms form to what became clause 4.3.3
of MOCA 3;
(k) although the wording used in clause 4.3.3(a) contains no reference to evening or
night shifts, the exposure material prepared and provided by the Respondent for
the information of people voting on what became MOCA 3 referred to:
a. "A 25% shift loading for evening and night shifts as part of an extended
hours roster which will assist to reduce overtime costs" (the FAQ
document);
b. "25% shift allowance for work performed after 4pm for extended hours"
(the PowerPoint); and
c. "the working of extended hours by SMOs" (Summary of the Proposed
Agreement). (Emphasis added)
Those statements were consistent with the reference in the opening words of clause
4.3.3 that the clause applied to an SMO working Ordinary Hours in an extended span
of hours arrangement.
[175] Text of MOCA 3: Although the background to MOCA 3 is relevant, the questions in
this case can be answered primarily by reference to the language of MOCA 3, and its
context, including the clauses of MOCA 2 that clause 4.3.3(a) of MOCA 3 replaced.
[176] The main factor in support of the Applicant's submissions concerning the meaning of
clause 4.3.3(a) is the wording of that clause when read in isolation from the words that
precede it. As noted earlier, it provides that the 25 per cent loading is to be paid "for all
Ordinary Hours worked between 1600 hours and 2200 hours on any weekday." On
their own, those words support the payment of the loading for any hours worked on any
weekday after 1600 hours, including between 1600 hours and 1800 hours. That reading
is reinforced by the use of "all" before "Ordinary Hours".
[177] However, those words in clause 4.3.3(a) must be read in the context of clause 4.2, clause
4.3, and the replacement declaration in 4.3.3, as well as the history of negotiations
outlined earlier in these reasons.
[178] As noted earlier, the definition of Ordinary Hours in clause 4.2 of MOCA 3 (read with
clause 4.3 or 4.4) was:
45
(a) for SMOs not working on an extended hours roster, between 0700 hours and
1800 hours Monday to Friday; and
(b) for SMOs working on an extended hours roster, between 0700 hours and 2200
hours Monday to Sunday (subject to any work between 2200 hours and 0700
hours in "exceptional circumstances"). (Emphasis added)
[179] Clause 4.3.3(a) provides, in full, that an SMO working Ordinary Hours in an extended
span of hours arrangement between 0700 hours and 2200 hours will be paid a loading
of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200 hours on
any weekday. In other words, clause 4.3.3(a) applies only to an SMO working in an
extended span of hours arrangement.
[180] It is clear that the purpose of this scheme was to pay the loading to SMOs who were
working extended shifts outside ordinary hours of 0700 hours and 1800 hours Monday
to Friday.
[181] Earlier I concluded that the "extended span of hours arrangement" referred to in clause
4.3 and clause 4.3.3 means an arrangement in accordance with which an SMO works a
shift that includes Ordinary Hours that are worked outside the normal span of Ordinary
Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday.
That conclusion lends support to clause 4.3.3(a) being read so that the 25 per cent
loading was payable for work undertaken after 1600 hours only when the shift extended
beyond 1800 hours (and potentially to 2200 hours).
[182] As noted earlier, although clause 4.3.3(a) "replaces" specified clauses in MOCA 2 it did
not replace those earlier in clauses with identical provisions. Rather, clause 4.3.3(a)
was included in MOCA 3 in place of those previous provisions and combined (in an
arithmetic sense) the 10 per cent flexibility allowance and the 15 per cent
loading/allowance in one 25 per cent loading. Under MOCA 2, payments were made
when (depending on the allowance or loading) the "major portion" of the day or the
rostered hours was worked between 1600 hours and 0700 hours, 1600 hours and 2200
hours, or after 1800 hours. That requirement could not have been met by anyone
working until 1800 hours, and would not have been paid for a period 1600 hours to
1800 hours. Although MOCA 3 did not replicate the "major portion" requirement, it
combined into one loading the amounts payable previously when the "major portion"
requirement operated.
[183] Explanatory materials: The reference in the FAQ document to "A 25% shift loading
for evening and night shifts as part of an extended hours roster which will assist to
reduce overtime costs" articulates the Respondent's understanding of the effect of the
proposed clause 4.3.3. It supports, but does not determine, the outcome in this case.
The word "evening" is not used or defined in MOCA 3, and the limited evidence in this
case about its meaning was imprecise. The most that can be said about the use of
"evening" is that it is consistent with an interpretation of clause 4.3.3(a) that favours
payments for work done by an SMO after 1800 hours. In any case, its sense is evident
from the reference to an extended hours roster.
[184] In a similar vein, I note that the reference in the PowerPoint slide to a "25% shift
allowance for work performed after 4pm for extended hours" was consistent with an
46
interpretation of clause 4.3.3(a) that favours payment for work done by an SMO after
1800 hours.
[185] For completeness, I conclude that:
(a) the statement in the FAQ document referring to evening and night shifts "as
part of an extended hours roster" was not ambiguous in the way contended by
the Applicant but was a clear statement about when the loading would be paid,
and hence was not a statement to which the contra proferentem rule applied (in
the way found in the James Hardie case); and
(b) for the same reason, the contra proferentem rule does not apply to a slide or
slides in the PowerPoint presentation prepared by the Respondent.
[186] Conclusion: In summary, the result of the foregoing conclusions is that clause 4.3.3(a)
of MOCA 3 is to be read as providing that an SMO working Ordinary Hours in an
extended span of hours arrangement between 0700 hours and 2200 hours would be paid
a loading of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200
hours on any weekday only when the particular shift was completed after 1800 hours.
[187] In my opinion, that conclusion comprises an interpretation of clause 4.3.3(a) based on
the clear words of an agreement produced by the parties, which interpretation is
supported by surrounding circumstances. It does not involve rewriting the agreement
to achieve what might be regarded as a fair or just outcome. Consequently, that
conclusion is consistent with (rather than contrary to) Principle 10 in the Golden
Cockerel case.
Question 2
[188] It remains to decide what is the correct application of the loading mentioned in clause
4.3.3(a) of MOCA 3 in relation to shifts DG1, MG1, LC1 and ALE performed by Dr
Spain in accordance with the roster attached at Appendix 1.61
[189] Applicant's submissions: The Applicant submits that the loading mentioned in clause
4.3.3(a) is payable on all Ordinary Hours worked between 1600 hours and 2200 hours
on any weekday, including all hours between 1600 hours and 2200 hours worked on
shifts DG1, MG1, LC1 and ALE on the roster attached at Appendix 1. That submission
was made on an interpretation of clause 4.3.3(a) that I have rejected.
[190] Respondent's submissions: In the Respondent submission, the loading payable under
clause 4.3.3(a) for the shifts listed in Appendix 1 that were worked on Monday to Friday
are:
(a) DG1 - nil
(b) MG1 - nil
(c) LC1 - 7 hours at 25% (less unpaid meal break taken)
(d) ALE - 5.5 hours at 25%.
61 Given that the answer to Question 2 depends on the answer to Question 1, I proceed on the basis that Question
2 should commence "Having determined the meaning of the term 'extended span of hours arrangement,'…"
47
The Respondent notes that extended span of ordinary hours shifts worked on a Saturday
or Sunday do not attract the loading prescribed clause 4.3.3(a).
[191] Consideration and conclusion: Given the conclusion that clause 4.3.3(a) of MOCA 3
is to be read as providing that the loading of 25 per cent would be paid for all Ordinary
Hours worked between 1600 hours and 2200 hours on any weekday only when the
particular shift was completed after 1800 hours, it follows that:
(a) no loading payment would be made in relation to shifts DG1 (0730 - 1800) and
MG1 (0730 - 1800) as they were completed at 1800 hours;
(b) a loading would be paid in respect of so much of shift LC1 (1230 - 2300) as was
worked after 1600 hours, i.e. 7 hours (less unpaid meal break taken); and
(c) a loading would be paid in respect of all of shift ALE (1730 - 2300) as the shift
commenced after 1600 hours, i.e. 5.5 hours (noting that the loading for that part
of the shift between 2200 and 2300 was payable under clause 4.3.4).
Answers to Questions 1 and 2
[192] Questions 1 and 2 can now be answered in light of the reasons given above.
[193] Question 1: In relation to clause 4.3 Extended Span of Ordinary Hours of Work within
the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012
("MOCA3"), what is meant by the term "extended span of hours arrangement"?
[194] Answer to Question 1: The term "extended span of hours arrangement" in relation to
clause 4.3 of the Medical Officers' (Queensland Health) Certified Agreement (No 3)
2012 means an arrangement in accordance with which a senior medical officer works a
shift that includes Ordinary Hours (as defined in clause 4.2) that are worked outside the
normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800
hours Monday to Friday) and includes some part of the period between 0700 hours and
2200 hours Monday to Sunday (or between 2200 and 0700 in exceptional
circumstances).
[195] Question 2: In determining the meaning behind the term "extended span of hours
arrangement," what is the correct application of the loading mentioned in clause 4.3.3(a)
of MOCA 3, in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in
accordance with the roster attached at Appendix 1?
[196] Answer to Question 2: The correct application of the loading mentioned in clause
4.3.3(a) of MOCA 3 in relation to each of the specified shifts is:
DG1 (0730 - 1800): Nil
MG1 (0730 - 1800): Nil
LC1 (1230 - 2300): 7 hours at 25% of the ordinary rate (less unpaid meal
break taken)
ALE (1730 - 2300): 5.5 hours at 25% of the ordinary rate.
[197] Order accordingly.
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