100315815

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES JAG GILL

CLAIMANT

 -v-

 COMMISSIONER OF HEALTH

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM 

DATE FRIDAY, 20 DECEMBER 2002

CLAIM NO/S M 26 OF 2002

CITATION NO. 2003 WAIRC 07859

_______________________________________________________________________________

Representation

Claimant Mr R Hooker of counsel

Respondent Mr F Furey as agent

_______________________________________________________________________________

Reasons for Decision

Background

1         Dr Jag Gill was at all material times a medical practitioner employed by the Respondent in the position of either acting or substantive Director, Disease Control within the Health Department of Western Australia.  Dr Gill had worked for the Respondent in its various guises since 1976.  During the period of his employment with the Respondent, Dr Gill worked in the public health field with special emphasis and training in communicable diseases, their control, as well as tropical medicine.  He also acquired extensive training and experience in management and administration.  Dr Gill ceased to be employed by the Respondent on 29 June 2001.  His employment ceased upon his acceptance of a redundancy offer made to employees of the Respondent.

2         The terms and conditions of Dr Gill’s employment was, until 1998, governed by various oral and written agreements, the Public Service Award 1992 and the Public Sector Management Act of 1994.  In the latter part of 1998, Dr Gill agreed to be added as a party to the AMA Medical Practitioners Collective Workplace Agreement (the 1998 Workplace Agreement), which expired in 1999.  That agreement was followed by another Workplace Agreement also entitled the AMA Medical Practitioners Collective Workplace Agreement (the 1999 Workplace Agreement).

3         It is Dr Gill’s case that on or about 5 February1992, he was orally directed by the then Acting Commissioner of Health, Dr Peter Brennan:

“to remain contactable outside normal work hours and to be available, in a fit state, at such times for recall to duty.”

4         On 10 December 1993, Dr Gill received a memorandum (exhibit 6), from Andrew Penman the then General Manager, Public Health Services, concerning out of hours contact.  In his letter Mr Penman said inter alia:

“Arrangements have been made to pay you an availability allowance in accordance with the Public Service Award 1992.

The allowance recognises the requirement for you to remain contactable outside normal work hours of duty and to be available, in a fit state, at such times for recall to duty.

The period for which you are expected to be contactable will be after hours on working days, on weekends and public holidays.

The allowance will be backdated to the commencement date of your acting period in the position – 5 February 1992 but exclude any periods of annual leave taken.  …”

5         In about late January 1997, Dr Gill received a letter from the Manager, Human Resource Services of the Respondent informing him that he had been overpaid his availability allowance totalling $17,660.40 calculated from the pay period ending 12 January 1995 up to and including the pay period ending 9 January 1997.  Between June 1997 and February 1998 Dr Gill made payments to the Respondent that were accepted in full satisfaction of the debt.

6         On 17 August 1998, the then General Manager of Public Health, namely Prudence Ford, wrote a memorandum to Dr Gill (exhibit 10) in which she stated inter alia:

“As you are aware the Department’s offer to hold open the opportunity for senior medical practitioners to join the Workplace Agreement (SPA) (sic) with backdating to 23 September 1996 further discussions lapsed on 31 May 1997(sic).  However you were provided with advice, in error, in September 1997 to the effect that the offer was still open.  In the light of that and as an act of good faith, the Department has agreed to backdate the provisions of the WPA to 23 September 1996.  Recognition of your qualifications and years of experience result in your translation to Level 22 of the Agreement.

In order to access the AMA WPA, you were required to relinquish your SES position.  This has now been done and the position of Director, Disease Control (Position No HE 500457) was removed from the SES with effect from 20 May 1998.  As a consequence you are no longer entitled to a privately plated vehicle under the Executive Vehicle Scheme.  In view of the requirement to be on call and that you indicated to me that you were recalled almost every weekend, I am prepared to offer you the use of a government-plated vehicle for official business and for journeys between the office and your place of residence and home garaging.  The vehicle would not be available for private mileage.  This change could occur either by changing the plates on the vehicle you currently use or providing you with another government plated vehicle and returning your existing vehicle to the pool.  Please advice Beren Clarke (9222 4329) of your decision so that he can assist with arrangements.

We also discussed the availability allowance which you are currently receiving which recognises the requirement for you to remain contactable outside normal hours of duty and be available, in a fit state, at such times for recall to duty.  The allowance is $8,880 per annum.  The AMA WPA does not make express provision for such an allowance.  However it does provide flexibility for other arrangements to be mutually agreed.  I therefore suggest that we agree to an arrangement whereby the Department continues to pay an availability allowance of $8,880 per annum under the same conditions as currently apply.”

7         On 19 August 1998, Dr Gill responded to the General Manager, Public Health by memorandum (exhibit 11), stating inter alia:

“I am prepared to accept all the conditions that you have specified …”

8         Clause 3.7(1)(b) of the 1998 Workplace Agreement (See exhibit 14) provided inter alia:

“A medical practitioner employed at or above salary point 13 as detailed in Schedule C, rostered on call shall be paid an hourly allowance equal to $7.81. …”

9         Relevantly, clause 3.7(1)(c) of that agreement provided:

“For the purposes of this Agreement a medical practitioner is on call when the medical practitioner is directed by the Employer to remain readily contactable and available to return to work outside of the medical practitioner’s normal hours of duty.”

10     Clause 30.1.c.(ii) of the 1999 Workplace Agreement in relation to on call allowance was in the same material terms as clause 3.7(1)(b) of the 1998 Workplace Agreement save for the applicable hourly on call allowance being $8.08 from 1 July 1999 to 31 December 1999 and $8.37 on and after 1 January 2000.

11     Clause 30.1.a of the 1999 Workplace Agreement provides the definition of “on call” which in all material respects is the same as that contained in clause 3.7(1)(c) of the 1998 Workplace Agreement.  The only variation being the classification “medical practitioner” within the definition was replaced by the generic term “employee”.

12     Both the 1998 and 1999 Workplace Agreements permitted further agreement for the annualisation of “on call” payments to be paid fortnightly.  It is common ground that no such agreement was reached between the parties.

Issues

13     The Claimant contends that from 23 September 1998 until 30 April 2001 he, pursuant to the requirements of the Respondent which had been operative since 5 February 1992, remained contactable outside normal hours of duty and was available, in a fit state, for recall to duties.  In consequence, the Claimant claims that he was on call 130.5 hours each week during the material period for which he was not paid in breach of the said Workplace Agreements.  The Claimant accordingly seeks to recover $108,099.58 comprised as follows:

• Amount payable 23 September 1998 to 30 June 1999 @ $7.81          $39,749.00

Less paid (39 weeks)                                                                                6,660.00

Less 3 weeks pro-rata annual leave                                                          3,057.62

Arrears                                                                                                  $30,031.38

• Amount payable 1 July 1999 to 31 December 1999@ $8.08             $27,415.44

Less paid (26 weeks)                                                                              4,440.00

Less 2 weeks annual leave                                                                     2,108.88

Arrears                                                                                                $20,866.56

• Amount payable 1 November 2000 to 30 April 2001 @ $8.37         $74,275.38

Less paid (68 weeks)                                                                            11,612.31

Less 5 weeks pro-rata annual leave                                                        5,461.43

Arrears                                                                                                $57,201.64

• Total                                                                                                 $108,099.58

14     The Respondent does not admit Dr Gill’s contention that he was contactable and available, in a fit state, for recall to duty for 130.5 hours each week and puts him to the proof in that regard.

15     The Respondent also argues that this Court lacks jurisdiction to deal with that part of

      Dr Gill’s claim that pre-dates 2 November 1998 because the Respondent takes the view that the  

1998 Workplace Agreement did not commence to have effect until 2 November 1998.  Further, the Respondent contends that the 1999 Workplace Agreement only became effective on 9 September 1999 when the Commissioner for Health signed that agreement.

16     Another basis for the denial of the claim rests upon the fact that Dr Gill was paid, on account of his after-hours responsibilities, a salary in excess of that which would normally be paid to a practitioner of Dr Gill’s standing.  The greater salary was only paid in recognition of Dr Gill’s after-hours responsibilities, a fact on the Respondent’s view, well known to Dr Gill.  The Respondent contends that Dr Gill had a good understanding of the Workplace Agreements and that he therefore knew that there was no provision for the payment of an availability allowance.  The Respondent consequently argues that in the event of the Claimant being successful, any order for payment against the Respondent ought to be “offset” by the additional salary, in fact, paid to Dr Gill.

17     In bringing this claim, Dr Gill asserts that he has complied with the provisions of clause 49 of the 1999 Workplace Agreement but has been unsuccessful in his attempts to resolve the issues in dispute.  He has accordingly certified his compliance with section 54 of the Workplace Agreements Act 1993 (the Act).  The Respondent, on the other hand, argues that the Claimant has failed to comply with the provisions of section 49(3) of the 1999 Workplace Agreement in that he has failed, inter alia, to have his claim arbitrated.  Consequently he has not properly given the certificate, which results in this Court being devoid of the ability to make orders pursuant to section 57 of the Act.

Evidence

18     The Claimant’s case is founded upon his own testimony and that of his wife, namely Faye Gill.  The Respondent called one witness, namely Dr Anthony John Watson.

19     I will briefly review the evidence given by each of the witnesses.

Dr Jag Gill

20     Dr Gill obtained his qualifications in medicine in Singapore in 1964 and subsequently worked in Malaysia prior to moving to Western Australia in 1976.  Between 1964 and 1974 Dr Gill obtained several postgraduate qualifications.  Following his arrival in Australia he has worked for the Respondent in various guises.  His initial appointment was that of regional medical officer for the Pilbara region based in Port Hedland.  In 1980 Dr Gill transferred to Perth and was promoted to varying positions.  In 1988 Dr Gill became responsible for communicable disease control in Western Australia and was designated Co-ordinator, Communicable Disease Control that was subsequently titled Principal Medical Officer, Disease Control.  He became Acting Director of Disease Control on 3 February 1992 until 20 October 1994 when he became substantive Director.  He held that position until November 1998 at which time he became Director, Communicable Disease Branch, a position that he held until June of 2001.

21     From about 1985 onward, Dr Gill assumed statewide control of tuberculosis and other communicable diseases.  In 1990 he became responsible for the development and co-ordination of communicable disease control programs and outbreaks of diseases including policy formulation, surveillance, consultancy and evaluation.  He was responsible for the administration of the Perth Chest Clinic and Central Immunisation Clinic.  He also provided consultant clinical services in leprosy at Queen Elizabeth II Medical Centre.  In 1992, Dr Gill became responsible for the management, policy development, planning co-ordination, implementation and evaluation of statewide disease control programs.  From 1998 onward, Dr Gill assumed additional responsibilities including co-ordination, contact management, and supply of vaccines and evaluation of programs.  He also carried out functions as the Chief Quarantine Officer and was a member of State and National expert committees.

22     During the period of his employment with the respondent Dr Gill gained further qualifications.  In 1983 Dr Gill became a Fellow of the Royal Australian College of Medical Administrators (FRACMA) and in 1990 he became a Fellow of the Australasian Faculty of Public Health Medicine (FAFPHM).

23     By virtue of the responsibilities he had in various areas of quarantine and disease control, Dr Gill was expected to be in a position to deal urgently with any issue that might arise either during normal or indeed after-hours.  Dr Gill testified that in 1992, Dr Peter Brennan, the then Commissioner of Health, expressly affirmed that to him.  Dr Gill’s statement was made in the context of HIV Aids outbreaks then being of major community concern.  However his instruction did not just relate to HIV Aids, but also to all other outbreaks of communicable diseases such as influenza.  Indeed on 10 February 1993, Andrew Penman, the then General Manager of Health Services, re-affirmed in writing (exhibit 6) the requirement that Dr Gill had been given by Dr Brennan that he be contactable out of hours and that he be available, in a fit state, for recall to duty.

24     Dr Gill testified that in consequence of the direction given he thereafter always remained contactable and in a fit state for recall to duty.  He was contactable either via his home phone, by mobile phone or by pager.  That necessitated him not travelling too far from Perth.  Further his personal and family life was subject to disruption on account of his obligation to remain contactable and in a fit state.  He regarded himself as contactable 24 hours per day, 7 days per week except for when he was on holidays or was attending a conference.  However, even then he remained contactable and was in fact often contacted for advice or direction even whilst absent from the State.  In that regard Dr Gill testified that up until mid 1998 he regularly attended conferences or meetings outside Western Australia.  The frequency of the same was about twice a month and was in each instance usually completed within a day.  The frequency of Dr Gill’s attendances at such conferences reduced to about one per month by about mid 1998.  However, he continued to attend other quarterly meetings.  Dr Gill also testified that he remained contactable and indeed was contacted whilst on sick leave.

25     It is quite apparent from Dr Gill’s testimony that contact made with him out of hours related solely to matters falling within his responsibilities.  By way of example, he was contacted in cases of meningococcal manifestation.  In such cases immediate steps were required to be taken to ascertain who had come into contact with the infected person.  That included obtaining and administering appropriate antibiotics for prophylaxis and advising those exposed as to what they should do.  Often that required Dr Gill physically attending households to achieve that end.  He would also necessarily liaise with the medical practitioners of those persons affected.  Other instances requiring his involvement included reports of the possible manifestation of viral haemorrhagic fever.  In such circumstances he would co-ordinate the response of emergency doctors, clinical pathologists, virologists and all other necessary medical professionals.  He was also responsible for opening the quarantine ward at Sir Charles Gairdner Hospital and ensuring that the same was appropriately staffed and functioning.

26     Dr Gill was also contacted after-hours for the purpose of giving advice to quarantine officers at Perth International Airport on issues concerning medical difficulties encountered with incoming or transit passengers.  Further, up and until 1993 he was solely responsible for dealing with and answering out of hour’s media enquiries with respect to infectious diseases and immunization.

27     The examples cited above are a few of those given by Dr Gill within his testimony relating to the nature of his duties and after-hours obligations.

28     Dr Gill also explained the history of his relationship with the Respondent and, in particular, his move from award based conditions of employment to those governed by Workplace Agreements.  In doing so he referred to various documents that were exhibited.   Those documents speak for themselves and I do not, at this stage, intend to recite them except to say that it is readily apparent from the 1998 Workplace Agreement that the same bound the parties upon completion of the transfer agreement on 2 November 1998 (see exhibit 12).  Indeed it is quite apparent from Prudence Ford’s letter that the same concluded the negotiations between the parties, which had been ongoing during the course of August 1998.

29     Dr Gill testified that in about late 1998 or early 1999 he first became aware that the 1998 and 1999 Workplace Agreement dealt with the issue of on call allowance.  That occurred as a result of his attempt to have other medical officers assist him so that he could have respite from the after-hours contacts.  When he raised the issue of assistance with the medical officers concerned within his section he found that they were only willing to assist if they were paid an “on call” allowance as per the Workplace Agreement.  In reply Dr Gill told them that they were mistaken in their view as to the availability of an “on call allowance”.  One of the officers then took him specifically to the relevant provision in relation thereto.  It was only then that Dr Gill came to the realisation of his entitlements in that regard.

30     Dr Gill testified that the whole issue of “on call” was subsequently raised on numerous occasions with Rowan Davidson, the then Acting General Manager, and later with his successor Paul Stephenson.  He said that the issue of being available after-hours became more pressing following the findings made at a coronial inquiry relating to the death of a person from meningococcal disease.

31     In May 2001 agreement was reached that the medical officers in Dr Gill’s section, including Dr Gill, would be rostered to attend after-hours duties and would be paid in accordance with the Workplace Agreement.

32     Relatively soon thereafter, Dr Gill decided to accept a voluntary redundancy with effect on 29 June 2001.  At that time Dr Gill made it known to Mr Boylan, who executed the Deed of Severance on behalf of the Respondent, that he intended to pursue his claim concerning on call allowance.  The Deed of Severance (exhibit 5) did not purport to extinguish Dr Gill’s rights with respect to the underpayment of wages, salaries or other entitlements.  In fact, the Deed expressly preserved those rights.

33     In furtherance of his claim, Dr Gill, on 2 July 2001, wrote to Professor Bryant Stokes, the then Acting Commissioner of Health (see exhibit 18).  He asked Professor Stokes to approve the payment of arrears owing with respect to the non-payment of “on call” allowance.  Professor Bryant Stokes endorsed Dr Gill’s letter by writing the word “approved” and dating the same 4 July 2001.  Notwithstanding that, Professor Stokes’ approval was never communicated to Dr Gill.  It appears that departmental intervention resulted in Dr Stokes’ approval not being implemented.  On 7 September 2001, Dr Gill again wrote to Professor Stokes concerning the issue (exhibit 19).  He informed Professor Stokes that if the matter could not be resolved to Dr Gill’s satisfaction, action would be taken for the recovery of the arrears of on call allowance.  It suffices to say that the parties did not reach agreement on the issue and Dr Gill subsequently issued proceedings.

34     Dr Gill was cross-examined on several issues including whether he was available during travel to and from national conferences or meetings and whilst attending the same.  In that regard Dr Gill maintained that he always remained contactable at all times other than when on flights.  When contacted in those circumstances he would direct what was to be done and delegate responsibilities.  If necessary he would communicate directly with doctors.  Accordingly, even whilst interstate he continued to remain contactable and was able, with the assistance of officers in Perth, to attend to his obligations.  Dr Gill was asked about his attendances at overseas conferences.  He conceded in that regard that during the course of 1998 and 2000 he in fact did attend overseas conferences in which case his on call obligations were delegated to the senior medical officer within his section.  That did not prove to be entirely successful because upon return he discovered some of the arrangements and expectations concerning after-hours contact had not been strictly adhered to.

35     Dr Gill was challenged concerning his testimony as to the rather onerous functions, such as community contact and the arrangement and delivery of prophylaxis said to have been carried out by him.  In that regard it was put to him that those functions were, in many instances, not in fact carried out by him but rather carried out by his subordinates.  Dr Gill rejected that contention.

36     Dr Gill was also questioned about the reasons as to why he had failed to make a claim for “on call” payments during the currency of his employment.  In response he said that he was not confident that if he made a claim that he would get a fair hearing within the department particularly given the conflict between himself and Mr John Kirwan, one of the senior managers.

37     When questioned about the frequency of after-hours contact, Dr Gill told the Court that he had received about 70 calls during the year 2000.  He conceded also that the reporting of possible viral haemorrhagic fever was infrequent, occurring about once a year.  He went on to say, however, that other acute conditions such as meningococcal disease, measles, and whooping cough together with reports of food poisoning took up the bulk of his time after hours.  Dr Gill explained that in some instances his involvement with the particular reports was inevitably lengthy and involved.  By way of example, Dr Gill cited his handling of the report of a suspected Ebola virus sufferer on an incoming Qantas international flight.  That example highlighted the importance and extent of Dr Gill’s involvement.

38     Dr Gill was questioned as to why his salary was paid pursuant to “Arrangement A” within the Workplace Agreement.  “Arrangement A” provided a higher level of income compared to those doctors who were subject to “Arrangement B”.  Doctors paid under “Arrangement A” were entitled to practice privately but any income derived from the same was payable to the Commissioner for Health.  Those on “Arrangement B” could work privately and retain the proceeds of such private work.  It was put to Dr Gill that, given that he did not conduct a private practice, the only reason why he was paid a higher rate on “Arrangement A” was in recognition of his after-hours responsibilities.  Dr Gill rejected that contention.  He said that there were numerous matters considered by the Commissioner of Health that caused the Commissioner to agree to him being paid in accordance with “Arrangement A”.  Dr Gill agreed that in negotiating with the Respondent he made the point that he was unable to earn private practice income because of the fact that he was contactable after hours and such was an impost on his capacity to earn a supplementary income.

39     Dr Gill was cross-examined also concerning his contention that he remained on call whilst on sick leave.  He testified that whilst technically he might not be considered to be “on call” whilst on sick leave, the fact of the matter was that he continued to remain “on call”.  He said that most of the sick leave taken by him related to a chronic back problem. In those circumstances his mind remained active and therefore had the capacity to respond to calls made to him.  He went on to explain that notwithstanding being on sick leave he would often be in at his office attending to the large volume of work that he had to handle.  It was suggested to Dr Gill that on occasions when he was absent by reason of sick leave or other reasons this workload was transferred to his subordinates.  That contention was rejected.

40     Dr Gill was unshaken during the course of cross-examination.

Mrs Faye Gill

41     The Claimant’s wife, Faye Gill testified in these proceedings.  She corroborated her husband’s evidence concerning the amount of after-hours contact he had and the impact of that and the requirement that he be on call had upon him and their family.  She gave specific examples of after-hours circumstances and the nature of duties carried out by her husband at those times. 

42     Mrs Gill was not cross-examined and accordingly her evidence remains unchallenged.

Dr Anthony John Watson

43     The Respondent called Dr Anthony John Watson.  Dr Watson graduated from the University of Western Australia in medicine in 1983.  Dr Watson initially worked as an intern and resident at Sir Charles Gairdner Hospital.  He subsequently worked as a locum and general practitioner.  He left Western Australia in 1990 to gain a Master of Applied Epidemiology.  He worked with the Tasmanian Public Health Branch until 1995 at which time he returned to Western Australia to take up a position as Senior Medical Officer with the Immunisation Clinic, which is part of the Communicable Disease Control Branch of the Health Department.  In 1997 he moved into a Medical Officer’s position as co-ordinator with the Communicable Disease Control Branch.  He has been in that position ever since.  Dr Gill has been Dr Watson’s supervisor.

44     Dr Watson testified that from about May 2001 until Dr Gill’s retirement he was involved in a three-person rotating roster, which involved Dr Gill, Dr Gary Dowse and himself.  Dr Dowse and Dr Watson have shared the roster following Dr Gill’s departure.

45     Dr Watson testified that whilst “on call” he is expected to be available 24 hours per day.

46     The after-hours notifications usually involve suspected cases of meningococcal disease.  In such cases the on call duty officer, if he considers it appropriate, will page the doctor.  The doctor will then return the call.  At that stage the doctor is given preliminary information concerning the matter.  He is also usually given contact details of the treating doctor so that the matter can be discussed.  In such circumstances it may be necessary to respond to media enquiries relating to the case.  That usually occurs where the case involves meningococcal disease.  Further it may be necessary to respond to members of the public who have been exposed to meningococcal disease.

47     Dr Watson estimated that he would receive on average about four calls per week.  The notifications usually do not require immediate follow up.  Any follow up actions can usually be delegated to other staff members such as community nurses.  Dr Watson conceded, however, that calls received between Friday night and Sunday morning required a lot more time and work.  They usually involved communicating with doctors, visits to the hospital and contacting households in order to arrange for antibiotic prophylaxis for high risk contacts.

48     He testified that he would very occasionally receive quarantine queries from airport staff concerning a sick traveller.  Most queries related to passengers from Africa who displayed symptoms consistent with viral haemorrhagic fever.

49     Dr Watson told the Court that the amount of times he was woken from his sleep to answer queries was infrequent.  He estimated that such circumstance occurred less than five times a year.

50     He testified that prior to the roster being introduced, Dr Gill would, on weekends, contact either Dr Dowse or himself in order to delegate duties which included following up contacts and arranging antibiotic prophylaxis in cases of meningococcal disease notifications.  Dr Watson took the view that such imposts on his time were part of the job akin to the expectation to attend after-hours meetings and further education courses.

51     Dr Watson also commented on the impact that being on call had upon his out of hour’s time.  He said that he had to necessarily restrict his travel so that he remained within the metropolitan area.  He also had to restrict his consumption of alcohol.  His pager had to be close at hand twenty-four hours a day.

52     He went on to describe the necessary functions he had to undertake when notified of a meningococcal disease case.  He also described the nature of his duties when dealing with the notification of a probable case of viral haemorrhagic fever such as Ebola.  The evidence he gave in that regard corroborated that of Dr Gill.

53     Dr Watson testified that he was surprised to discover that Dr Gill was paid an allowance for his after-hours work.  It was only when that was discovered that he took a differing attitude about his own availability and accessibility after hours.

54     When cross-examined, Dr Watson confirmed that leading up to the establishment of the rostering arrangement which came into effect in about mid May 2001 Dr Gill was always the first port of call after hours.

55     Dr Watson conceded under cross-examination that, other than the requirement to comply with the rostering arrangements, he had not received any directive from management that he was to remain contactable and available to return to work outside of normal working hours.  He said that upon the introduction of the roster he concluded, by implication, that during that period of the roster that he was on call, and was to remain contactable and available to return to work in the same way as Dr Gill had been.

Submissions

56     I will deal with the Respondent’s submissions followed by the Claimant’s submissions.

The Respondent

57     The Respondent accepts that a certificate has been given in accordance with section 54 of the Act but says that the certificate has not been correctly given.  It is submitted therefore that this Court lacks the jurisdiction to make an order under section 57 of that Act.

58     The Respondent argues that this matter is and has always been capable of resolution in accordance with the dispute settling procedures set out in clause 49 of the 1999 Workplace Agreement and says that the Claimant did not, prior to instituting these proceedings, exhaust all of the processes available under that clause including the relevant private arbitration provision found in clause 49(3) of the agreement.  Further, the Respondent argues that given that the agreement is a collective Workplace Agreement the Respondent should be allowed to involve the Australian Medical Association as a third party to the agreement particularly in view of the potential impact of his claim on other employees.  It is argued that private arbitration could appropriately consider issues such as set-off and the delay in prosecution

59     Moving to the “on call” provisions within the agreement, the Respondent submits that when considering the same, it is not appropriate to simply determine whether or not the Claimant was contactable and available to return to work.  The Respondent argues that the essential elements to be proved are:

1. The Claimant had to be rostered;
2. That the rostering had to be in accordance with medical need; and
3. That he had to be rostered by the Medical Superintendent or appointed Senior Medical Practitioner in consultation with the Head of Department or where there is no Head of Department with the Chairman of the Medical Advisory Committee (see clause 3.7(1)(a) of the 1998 Workplace Agreement).

60     In regard to the third element the Respondent contends that neither Prudence Ford, who directed Dr Gill to be available (see exhibit 12) nor Andrew Penman, who had given the direction on 10 December 1993, fall within the class of persons who pursuant to clause 3.7(1)(a) of the 1998 Workplace Agreement were able to make the requirement that he be on call roster.

61     With respect to the second element the Respondent argues that for on call entitlements to arise under the 1998 or 1999 Workplace Agreements the officer concerned must be rostered in accordance with clinical need and in any event by the Medical Superintendent or appointed Senior Medical Practitioner in consultation with the head of department or, where there is no head of department, with the Chairman of the Medical Advisory Committee.  It is submitted therefore that given that neither Prudence Ford nor Andrew Penman were medical practitioners they were incapable of rostering Dr Gill.  Accordingly, the Respondent maintains that Dr Gill was not rostered.

62     The central submission is that Dr Gill was not rostered to be on call until May 2001.  The Respondent maintains that the written and verbal directions relied upon by Dr Gill in his claim were not rosters, nor could it be said that such directions given come within the operative terms of both Workplace Agreements.  In any event, the instructions were given prior to the 1998 Workplace Agreement coming into effect.

63     Further, the Respondent contends that the dates of operation of the Workplace Agreements are not as alleged by the Claimant but rather operate between 2 November 1998 and 8 September 1999 and between 9 September 1999 and 29 June 2001 respectively.

64     Another ground raised by the Respondent is that of “set-off”, sometimes referred to as “offset” by Mr Furey for the Respondent.  The Respondent argues that Dr Gill was paid a higher than normal salary to take into account his out of hours work.  Accordingly if it is found that he has an entitlement to “on call allowances” then the additional salary paid to him should offset such entitlements.  Dr Gill cannot have it both ways.  The Respondent suggests that the Claimant’s conduct in achieving a higher income on account of his on call responsibilities does not sit with the claim on foot.  As I understand it, the Respondent argues that Dr Gill has orchestrated events so as to cause detriment to the Respondent.

65     On the issue of whether or not Dr Gill was in fact contactable and in a fit state to return to work, the Respondent points out that the evidence dictates that Dr Gill was entirely non-contactable whilst on flights interstate or overseas.  Further, it is submitted, that there was no way he could ever return to duties whilst interstate or overseas.  In those circumstances other doctors addressed the out of hour’s needs of the Respondent.

66     Additionally and finally, the Respondent contends that the Claimant has not, on the strength of his evidence and that of his wife, been able to establish on the balance of probabilities that he was contactable and available to return to duty during the period of the claim.  The Respondent contends that the blanket assertions made by the Dr Gill that he was contactable and available for return to duty at all times during the period of claim is insufficient.  The Respondent contends that Dr Gill should have provided details of his location, travel, personal expenditure (including bank statements), and fitness for duty (including the consumption of alcohol or any other substance or medication which may have impaired fitness) for each week within the period claimed.  The Respondent suggests that the evidence of Dr Gill was tested in cross-examination and found wanting and further that the evidence of Mrs Gill ought to be given little weight.

67     In conclusion the Respondent submits that this is not a claim of an employee who has been deceived or shortchanged by his employer but rather it “is a claim supported by self serving evidence and convenient inattention to detail by a very senior medical practitioner who otherwise prides himself on his professionalism”.  The Respondent says that there is an absence of any evidence that Dr Gill was on call for 6200 hours a year.  Further Dr Gill was substantially compensated for his out of hours contact by the continuing payment of an availability allowance and in particular the sixteen percent salary premium achieved in negotiations.

The Claimant

68     The Claimant submits that its claim is a simple one.  The elements of the claim are:

(a)   The existence of an applicable direction given to Dr Gill on his former employer’s behalf;

(b)   Such a direction satisfied clauses 3.7 and 30 of the 1998 and 1999 Workplace Agreements respectively; and

(c)   Dr Gill complied with those conditions.

69     The Claimant contends that the matters raised by the Respondent consist of “false issues, irrelevancies and red herrings” that depart from the text of the applicable provisions of the Workplace Agreements.  The Claimant also points out that the Respondent asserts the jurisdiction of this Court in dealing with a set-off when in fact no such jurisdiction exists.

70     As to the jurisdictional issue of whether or not the section 54 certificate was properly given, Dr Gill says that there is ample evidence to support a finding that he attempted, so far as was possible, to resolve the dispute.  It is said that section 54(2) of the Act is not intended to impose any kind of unrealistic, technical or inordinately time consuming requirement on a party who seeks relief.  That is all that is required for proper compliance with clause 49 and accordingly the legitimate certification under section 54.  The Claimant says that the Court should not go behind the certificate and analyse the machinations of any attempted compliance with the dispute resolution procedure.  The Court ought to be satisfied with the certificate given.

71     Dr Gill argues that the applicable provisions of each of the Workplace Agreements are clear in their terms and do not admit ambiguity.  The relevant provisions in each instance are effective in accordance with their respective terms.  Further, section 6(2) of the Act makes it clear that no award provisions can be implied into or in any way read as part of a Workplace Agreement.

72     It is submitted that since late 1993 Dr Gill was under a requirement to remain contactable outside of normal work hours of duty and to be available in a fit state at such times for recall to duty.  The memorandum to him by Mr Penman dated 10 December 1993 evidences that such was the case (see exhibit 6).  The fact that the requirement was viewed against an availability allowance does not derogate from the fact that such a requirement, synonymous with a direction, was in fact made.

73     In dealing with the issue of whether the direction satisfied the definitions in the applicable provisions, it is submitted on Dr Gill’s behalf that it is self evident that until May 2001 there was a single unwritten roster and that Dr Gill was the sole person on the roster.  It is said that the Respondent’s arguments concerning the need for a written roster is misconceived because:

(a)   It requires the concept of “roster” in those provisions to be constructed with the implied qualification “written roster”;

(b)   It sits at odds with the overwhelming weight of evidence which establishes that until May 2001 Dr Gill was the only medical employee of the Respondent subject to a direction to remain contactable outside orthodox working hours; and

(c)   It side steps the obvious intent of the provisions to compensate those who have, in meeting the need of the employer, received an applicable direction and complied with it.

74     With respect to the Respondent’s submission relating to clause 3.7(1)(a) of the 1998 Workplace Agreement it is submitted that the same simply facilitates rostering.  It cannot be construed as a necessary element of a claim for or entitlement to an “on call” allowance.  In that regard the Claimant says:

(a) The apparent primary purpose and policy of the relevant clauses is to create an entitlement for medical practitioners who make themselves available pursuant to a direction.  It is merely peripheral to provide specific clauses going to the way in which the employer may go about rostering people who are on call.

(b) The language of clause 3.7(1)(a) of the 1998 Workplace Agreement and, to a lesser extent, clause 30.1.b of the 1999 Workplace Agreement simply facilitates the internal management of the Respondent.

(c) The Workplace Agreements themselves are generally concerned with aspects of the work duties and remuneration of medical practitioners.  They provide for the terms and conditions of employment.

(d) In the circumstances it would be patently unfair for a doctor, in any given situation, who has complied with a direction to be on call, to be denied his or her lawful entitlements because an “i” was not dotted or a “t” crossed in the consultative process.

75     The Claimant says that the Respondent’s contention that having regard for the fact that the direction given to Dr Gill was given prior to the Workplace Agreements coming into force renders the same inoperative is without foundation.  It is submitted that the requirement was operative at the commencement of the 1998 Workplace Agreement and remained operative, both legally and functionally.

76     Moving to the question of whether Dr Gill complied with the direction, it is argued that the evidence of Dr Gill and the unchallenged corroborative evidence of Mrs Gill establish the fact of compliance.

77     It is contended on behalf of Dr Gill that if the Court were to find, by reason of absence, an incapacity to comply with the direction, then it remains the evidentiary burden of the Respondent to demonstrate, with clarity, the extent of any absences or incapacity which caused Dr Gill to be in a state of non-compliance with the direction or, alternatively, the Court should adopt a discounting factor to achieve a sensible result in the light of the evidence.  Such discount, on the Claimant’s view, should be a single figure percentage.

78     Further, it is submitted that the engagement of Dr Gill under “Arrangement A” is a false issue and of no significance as to the satisfaction of the applicable definition and compliance required.

79     The Claimant maintains also that Dr Gill’s levels of knowledge and understanding do not bear on the elements of the causes of action.  That satisfaction gives rise to a liability in the nature of a debt irrespective of Dr Gill’s mental state and/or degree of diligence in pursuing his entitlements.  There is no residual discretion in the Court, unlike the Western Australian Industrial Relations Commission which, pursuant to section 26(1)(a) of the Industrial Relations Act 1979 is required to:

“… act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms;”

80     With respect to the issue of certification pursuant to section 54(2) of the Workplace Agreements Act 1993 the Claimant submits that the same is not intended to impose any kind of unrealistic, technical or inordinately time consuming requirement on a party who seeks relief.  Once the certificate is given the Court should not go behind it.

Evaluation of Witnesses

81     The Respondent, in submissions, asks that I not accept the testimony of Dr Gill.  It is said that he was found wanting when subjected to cross-examination.  Further, it is submitted that his evidence concerning being contactable and available to return to duty during the relevant period is insufficient for the purposes of establishing his case.  I reject those submissions.  I found Dr Gill to be an extremely impressive witness upon whose testimony I could rely.  I have had no hesitation in accepting his evidence.  His credibility was not impugned in any way.  I did not form the view that he was found wanting when subjected to cross-examination.  In any event, his evidence remains generally unchallenged.  It was suggested by the Respondent that it is inconceivable that a person of Dr Gill’s professionalism, who is meticulous in his conduct would remain unaware of the relevant provisions in the Workplace Agreements as he suggested.  There can be no doubt that Dr Gill is an intelligent and articulate person who acts with precision and meticulousness.  Having said that, however, even the best-credentialed people do not always appreciate the effect of legal documents.  Often it is only when the meaning of a particular provision is pointed out by a legal professional, or some other person, that the proper meaning of the provision is understood.  I accept that Dr Gill did not appreciate the legal effect of the relevant provisions until very late in his employment.  By the time that he realised he had an entitlement his relationship with the Department was so poor that he decided not to pursue his claim until after his termination on the grounds of redundancy.  It is inferred that Dr Gill was fearful of repercussions that might flow if he pressed the issue.

82     I have no hesitation in finding that he remained on call at all times.  It was not necessary for him to provide full details of his location, travel, personal expenditure and fitness for duty for each week within the pay period as the Respondent suggests.  In my view, that approach would create a very difficult, if not impossible, evidentiary burden.  That extremely onerous process is unwarranted.  The evidence given by Dr Gill in the form it was given satisfies the evidentiary burden that he carried.  It suffices to say that Dr Gill’s evidence enables me to find that he remained contactable and in a fit state to return to work at all times except when outside of Western Australia.  His wife, Faye Gill, corroborated his evidence in that regard in every material particular.  Mrs Gill’s evidence remained unchallenged.  There is absolutely no reason why I should give Mrs Gill’s evidence little weight, as is suggested by the Respondent.  Mrs Gill also impressed as a witness and I have no difficulty in accepting her evidence.

83     Dr Watson’s evidence also supports the evidence of Dr Gill and his wife to some extent.  Although I appreciate that Dr Watson could not, and did not, testify as to whether or not Dr Gill was, in fact, available on call, it is nevertheless the case that his evidence relating to the types of duties and obligations described by him as being those required to be undertaken whilst on call was entirely consistent with that given by Dr Gill and his wife.  I found Dr Watson’s evidence to be generally corroborative of Dr Gill’s evidence going to the issues of that nature.  Indeed there was little or no effective contest between the evidence of Dr Watson on the one hand and the evidence of Dr Gill on the other.

Conclusions

Operative Dates of the Workplace Agreements

84     The Respondent at all material times employed Dr Gill as Director of Disease Control.  His terms and conditions of employment from 1976 to 1998 had been governed by various oral and written agreements, the Public Service Award 1997 and the Public Sector Management Act 1994.  I find that commencing on 2 November 1998 Dr Gill’s employment became subject to two successive Workplace Agreements registered pursuant to the provisions of the Workplace Agreements Act 1993.  I find from the documentary evidence before me that the first Workplace Agreement came into force on 2 November 1998.  A perusal of exhibits 10, 11 and 12 clearly establishes that.  Indeed Dr Gill’s contention that the first Workplace Agreement came into force on 23 September 1998 is unsupported by the evidence.  I find that the 1998 Workplace Agreement came into force only when Ms Ford, on behalf of the Respondent, wrote to Dr Gill accepting the terms of Dr Gill’s proposals.  It was her letter that concluded the negotiations and constituted the agreement between the parties.  As to the 1999 Workplace Agreement, I find that the same came into effect on 9 September 1999 when Mr Rowan Davidson, on behalf of the Respondent, agreed that Dr Gill was to be added as a party.  Exhibit 26 clearly demonstrates that to be so.  The 1999 Workplace Agreement thereafter continued to govern Dr Gill’s employment until he ceased work on 29 June 2001.  I reject Dr Gill’s contention that the 1999 Workplace Agreement was operative from 1 July 1999.

On Call

85     It is uncontroverted that Dr Gill was given a directive that he was to remain contactable outside of normal work hours and to be available in a fit state, at such times, for recall to duty.  I accept that Dr Peter Brennan, the then Acting Commissioner of Health, on or about 5 February 1992 gave him such an oral directive.  Mr Andrew Penman, the General Manager of Public Health, by memorandum dated 10 December 1993 reaffirmed that directive.

86     I find that the direction given to Dr Gill by Dr Brennan and Mr Penman constituted a direction that Dr Gill was to remain “on call”.  The “on call” directive remained binding and operational until varied by the formulation of the written roster in May of 2001.  The fact that Dr Gill was required to remain contactable outside of normal hours of duty and be available, in a fit state at such times, for recall to duty was well known to officers of the Respondent.  A perusal of exhibit 10 reflects that.  Indeed the Respondent sought because of that to compensate Dr Gill by the payment of $8,800.00 per annum as a supplementary payment outside the terms of the Workplace Agreements.

87     It is self evident from what I have said earlier that I find that Dr Gill complied with the directive given to him and that he remained “on call” for the entire period of his employment, save for periods that he was absent from the State or unable to do so because of medical unfitness.  The fact that Dr Gill was contactable outside of normal hours of duty and was available, in a fit state, for recall to duty is simply undeniable given the state of the evidence.  I accept that Dr Gill was on call 130.5 hours per week.  I accept Dr Gill’s evidence concerning the nature of after-hour’s contacts and duties carried out.

Is Dr Gill Entitled to “On Call” Allowance?

88     The pivotal issue to be decided in this matter is whether the directions given by the Respondent to Dr Gill satisfied clauses 3.7 and 30 of the 1998 and 1999 Workplace Agreements respectively.

89     The Respondent contends that the directions given to Dr Gill were not ones that satisfied the relevant clauses of the Workplace Agreements.  The Respondent says that because Dr Gill was not rostered by the relevant authorised officer in accordance with clinical need, he cannot fall within the relevant provisions.  On the Respondent’s view, rostering in accordance with the provisions of the 1998 Workplace Agreement is a necessary and fundamental pre-requisite to any entitlement.

90     I reject the Respondent’s argument in that regard.  The terms and provisions of the relevant clauses of the Workplace Agreements are clear and do not admit ambiguity.  Clauses 3.7(1)(b) of the 1998 Workplace Agreement and 30.1.c(ii) of the 1999 Workplace Agreement apply so long as the medical practitioner fulfils the definitions found in clauses 3.7(1)(c) and 30.1.a respectively.  It is obvious that Dr Gill fulfilled those definitions.  Those provisions are not in any way subject to the rostering provisions.

91     The Respondent’s argument centres on the contention that the rostering of Dr Gill was a necessary and fundamental pre-requisite to any entitlement.  Given that he was not rostered until May 2001, he has no entitlement.  Further, it is said that the written and verbal directions upon which the claim relies were not rosters and were not given within the operative terms of the Workplace Agreements.

92     In my view the Respondent’s argument contains a number of fundamental difficulties.  The first is that the Respondent’s contention necessarily requires the implication that the roster must be written.  It is self-evident that clause 3.7(1)(a) of the 1998 Workplace Agreement does not expressly require a written roster and, nor for that matter, does clause 30.1.b of the 1999 Workplace Agreement.  Further, it sits at odds with the obvious intent of the applicable provision to compensate those who have, in meeting the needs of the employer, received an applicable direction and complied with it.

93     It is inconceivable that an instrument, intended to provide a framework for the rights and entitlements of employees to be paid for work done, could be construed so narrowly that it would have the effect of denying an entitlement, which, on the evidence, is clearly available.

94     It is obvious that reference to rostering in clauses 3.7 and 30 respectively do not import the necessary requirement of a written roster.  Furthermore, it is evident that clauses 3.7(1)(a) and 30.1.b merely facilitate the arrangements for rostering.  They do not make rostering in accordance with their terms a pre-requisite to entitlements.

95     In this case there was a single unwritten roster and Dr Gill was the sole person on that roster until the rostering changed in May 2001.  In any event, irrespective of whether there were one or more persons on the roster, the Respondent’s liability was the same.  It had to pay for “on call” services provided whether it be by one or more persons.  In this case Dr Gill alone provided the service.  His services were provided in accordance with the instructions given to him, which remained operative during the terms of the Workplace Agreements.  Having complied with the direction and thereby having met the relevant definitions within those agreements, he became entitled to the “on call” allowance provided by those Workplace Agreements.  In so far as the Respondent represented to the Claimant that there was no provision in the Workplace Agreements covering his “on call” responsibilities, the Respondent mislead him and caused him to acquiesce to the receipt of payments made outside the terms of the Workplace Agreements.

96     The evidence establishes that the Respondent gave Dr Gill a direction and that such direction satisfied clauses 3.7 and 30 of the 1998 and 1999 Workplace Agreements respectively.  Dr Gill, to the extent that he complied with the direction, is entitled to recover pursuant to the terms of the Workplace Agreements.

Reduction Due to Absence and Non Contactability

97     The Respondent submits that the Claimant was totally uncontactable whilst interstate and overseas.  In those circumstances it is axiomatic that he was not able to return to his duties.  It follows, therefore, that the Claimant cannot be entitled when he was unavailable for such reasons.  It is also the case that he was not available when on leave for various reasons, including medical unfitness to attend work.  Accordingly, he cannot be paid for such times that he was unavailable.  I accept the Respondent’s submissions in that regard.  As to medical unfitness Dr Gill cannot have it both ways.  If he was unable to carry out his duties during normal hours of work because of medical incapacity it is most unlikely that he would have been fit to carry out such duties after hours during such incapacity.  Obviously he would not have been in a fit state to return to duty.  Having said that I am in no doubt that from time to time Dr Gill was called upon, even though medically unfit to respond to after-hours enquiries.

98     The documentary evidence in exhibits 24 and 30 has been extremely helpful in calculating Dr Gill’s absences for various reasons.  Using the available documentary evidence in form of exhibit 30 it is possible to discern, for example, that Dr Gill was absent at interstate conferences for a total of 29 days in the 15 months between April 2000 and June 2001, constituting an average of about 2 days absence per month.

99     A consideration of exhibit 24 reveals that Dr Gill was absent on leave other than annual leave for a total period of 58 days during the material period of the claim, being between 2 November 1998 and 30 April 2001.  Annual leave is not taken into account, given that it is accounted for in the Claimant’s claim.  Deductions ought to be made to reflect those absences.

100  I find that Dr Gill was absent on leave, other than annual leave, for 43 days during the first period from 2 November 1998 to 8 September 1999.  He was absent on such leave for 4 days during the second period from 9 September 1999 to 31 December 1999 and he was absent on similar leave for 11 days during the third relevant period from 1 January 2000 to 30 April 2001.

101  In calculating the deductions I have proceeded on the basis that the leave other than annual leave and conference commitments almost invariably occurred during the course of a normal workday in each instance.  Each workday for Dr Gill comprised 7.5 hours of normal hours with the remainder (16.5 hours) being “on call” after hours.

102  The calculations are as follows:

• First Period:  2 November 1998 to 8 September 1999

22 days for conference attendances and 43 days for leave.

Total of 65 days × 16.5 hours per day × $7.81 = $8,376.23

• Second Period:  9 September 1999 to 31 December 1999

8 days for conference attendances and 4 days for leave.

Total of 12 days × 16.5 hours per day × $8.08 = $1,599.84

• Third Period:  1 January 2002 to 30 April 2001

32 days for conference attendance and 11 days for leave.

Total of 43 days × 16.5 hours per day × $8.37 = $5,938.52

103  The total deduction to be made on account of absences is $15,914.59.

104  In my view the aforementioned process is the appropriate method of dealing with Dr Gill’s unavailability.  The process is reasonably precise.  The discounting method suggested by Mr Hooker, for the Claimant, has no application in this situation.

Recalculation

105  The calculation made by the Claimant as found in his Statement of Claim needs to be adjusted in view of my findings relating to the commencement dates of the relevant Workplace Agreements and the applicable deductions.

106  I accordingly set out such recalculation:

Period 1:  2 November 1998 to 8 September 1999

44 weeks × 130.5 hours per week × $7.81                         $44,845.02

Less paid 44 weeks at $169.23 per week

($8800.00 per annum ÷ 52)                                                   7,446.12

Less 3 weeks annual leave (3 × 130.5 × $7.81)                     3,057.62

Less deduction for not being on call                                      8,376.23

Total deductions                                                                  $18,879.97

Balance                                                                                $25,965.05

Period 2:  9 September 1999 to 31 December 1999

16.43 weeks × 130.5 hours per week × $8.08                     $17,324.45

Less paid 16.43 weeks at $169.23 per week

($8800.00 per annum ÷ 52)                                                     2,780.45

Less 2 weeks annual leave (2 × 130.5 × $8.08)                      2,108.88

Less deduction for not being on call                                       1,599.84

Total deductions                                                                    $6,489.17

Balance                                                                                $10,835.28

Period 3:  1 January 2002 to 30 April 2001

69.14 weeks × 130.5 hours per week × $8.37                     $75,520.58

Less paid 69.14 weeks at $169.23 per week

($8800.00 per annum ÷ 52)                                                   11,700.56

Less 5 weeks annual leave (2 × 130.5 × $8.37)                      5,461.43

Less deduction for not being on call                                       5,938.52

Total deductions                                                                   $23,100.51

Balance                                                                                 $52,420.07

Total Payable

Period 1:        $25,965.05

Period 2:        $10,835.28

Period 3:        $52,420.07

  $89,220.40

Set-Off

107  The Respondent argues that any entitlement that Dr Gill has ought to be “off set” by the additional salary paid.  The Respondent suggests in submissions that,

“…there can be no doubt that Dr Gill would not have received both a salary of $144,988.00 (rather than $124,990.00) and an on call payment”.

108  The submission made, however, lacks evidentiary foundation.  There is no evidence on the issue.  In any event I agree with Mr Hooker that there is no jurisdictional foundation found in the Workplace Agreements Act 1993 for set-off to apply.  Further, I accept Mr Hooker’s submissions that Dr Gill’s level of knowledge and understanding do not bear upon the satisfaction of the elements of the cause of action.  That satisfaction gives rise to a liability in the nature of a debt, irrespective of the Claimant’s mental state and/or degree of diligence in pursuing those claims.  This Court cannot, unlike the Western Australian Industrial Relations Commission,

“act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms”(see s 26(1)(a) of the Industrial Relations Act 1979).

Compliance with Section 54 of the Act

109  The Respondent argues that although a certificate has been given in accordance with section 54 of the Act, it has not been properly given and accordingly this Court lacks jurisdiction to make an order pursuant to section 57 of the Act.  The Respondent’s pivotal argument is that Dr Gill did not exhaust the processes available under clause 49, and in particular clause 49(3), of the 1999 Workplace Agreement.

110  The Claimant says that he has unsuccessfully attempted to resolve the dispute by virtue of discussions and correspondence passing between himself and the Department.  His failed attempts at resolving the matter took place between July and November 2001.  Notwithstanding the fact that the Acting Commissioner of Health considered his claim at the highest level, the matter was incapable of resolution.  In those circumstances he did all that he could in order to comply with clause 49.2 of the 1999 Workplace Agreement.

111  The Respondent contends that there has not been strict compliance with clause 49.2 in that there was no opportunity given to the Australian Medical Association to become involved in the process.  It is obvious that the Australian Medical Association has had no part to play in this dispute.  It seems that Dr Gill did not seek its involvement in the resolution of quite a discreet issue between the parties.  Clearly the dispute arises from the particular circumstance, which related to Dr Gill alone.  It is obvious that the resolution of the matter had no wide ranging implications for other employees.  In those circumstances it appears that the involvement of the Australian Medical Association was both unnecessary and unwarranted.

112  Having exhausted all his avenues in respect to the dispute, Dr Gill has legitimately made his claim within this jurisdiction.  He has done so without availing himself of the arbitration process available by virtue of clause 49.3 of the 1999 Workplace Agreement.  That of itself causes no difficulty because it is quite apparent that the arbitration process is an entirely discretionary one.  There was no obligation upon Dr Gill to engage in arbitration.

113  It could be argued, in any event, that the dispute resolution procedure may not necessarily apply in circumstances where the employment relationship has ended.

114  Accordingly, I find that the Claimant has in this matter, so far as is practical, complied with the dispute resolution processes provided for by the 1999 Workplace Agreement.  It follows, therefore, that there is no jurisdictional impediment to this Court making orders pursuant to section 57 of the Act.

Result

115  I find that the Respondent has failed to comply with each of the Workplace Agreements in that it underpaid Dr Gill the amounts properly due to him by way of “on call allowance”.  The total amount underpaid to him was the sum of $89,220.40.

116  I will now hear the parties as to the orders to be made.

G Cicchini

Industrial Magistrate