WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00325

DELIVERED : WEDNESDAY 22 APRIL 2015

FILE NO. : m 125 OF 2012

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Service Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

Respondent

FILE NO. : M 126 OF 2012

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Service Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

Respondent

FILE NO. : M 127 OF 2012

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Service Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

Respondent

FILE NO. : M 128 OF 2012

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Service Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

Respondent

Catchwords : Construction of Clause 32 of the Child and Adolescent Health Service, North Metropolitan Area Health Service, South Metropolitan Area Health Service Orthopaedic Trauma Surgery Roster Agreement (2011)

Legislation : Industrial Relations Act 1979

  Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

Case(s) referred to

in Reasons : Director General, Department of Education v United Voice WA [2013] WASCA 287

  Currie v Dempsey (1967) 69 SR(NSW) 116

  Miller v Minister of Pensions (1947) 2AER 372

Instruments :     Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2011

Sir Charles Gairdner Hospital Orthopaedic Consultant Interim Agreement 2008

Child and Adolescent Health Service, North Metropolitan Area Health Service, South Metropolitan Area Health Service Orthopaedic Trauma Surgery Roster Agreement (2011)

Child and Adolescent Health Service, North Metropolitan Area Health Service, South Metropolitan Area Health Service Plastic Surgery Roster Agreement (2011)

Result : Claims proven in part.

Representation:

Claimants : Mr S Ellis (Counsel) appeared for the Claimants as instructed by their agent, the Australian Medical Association (WA) Incorporated

Respondent : Mr M Aulfrey (Counsel) appeared for the Respondent

REASONS FOR DECISION

Background

1          Emergency Departments (EDs) within major Western Australian public hospitals run continuously.  Medical and other staff are needed at all times to service patients who present to EDs. Some patients at EDs require specialist and/or surgical treatment.

2          The greatest proportion of patients presenting at public hospital EDs are those who have suffered some form of trauma. Plastic and Orthopaedic Surgeons are most involved in their treatment.

3          Plastic and Orthopaedic trauma surgery at public hospitals is provided (at least in part) by private practitioners employed on a part time or sessional basis.

4          The need to treat trauma patients presenting to EDs after hours is met by an after-hours “on-call” roster. Private Plastic and Orthopaedic Surgeons participate in the roster arrangements and are typically paid an allowance for being on-call and are also paid extra for attending the hospital on “call-back”.

5          The claimants are Orthopaedic Surgeons on the after-hours on-call rosters.  They allege that they have not been paid their correct entitlements when they were called back to hospital.

Industrial Arrangements – After-Hours

6          There are a number of separate roster agreements that govern the remuneration of specialists who are on-call and who are called back to hospital.

7          The agreements tend to be discipline specific.  By way of example there exist the Cardio-Thoracic On-Call and Call-Back Roster (Agreement) 2012; the Pathologists Agreement 2011; the Metropolitan Inter-Hospital Vascular Services After Hours On-Call Roster Agreement 2011; the Breast Screen Agreement 2011 and the Clinical Academics Industrial Agreement 2011. There is also a General Surgeons Agreement setting out the call-back arrangements for general surgeons throughout the public hospital system.

8          As at 30 June 2011, the on-call and call-back arrangements of Plastic and Orthopaedic surgeons were governed by:

(a)          The Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2011 (MHS Agreement); and

(b)          The Sir Charles Gairdner Hospital Orthopaedic Consultant Interim Agreement 2008 (SCG Agreement).

9          The SCG Agreement was negotiated directly by Orthopaedic Surgeons at Sir Charles Gairdner Hospital. It resulted from the need to ensure that there were a sufficient number of private Orthopaedic Surgeons available and willing to provide after-hours services at Sir Charles Gairdner Hospital. 

10       Prior to the creation of the SCG Agreement, the number of private Orthopaedic Surgeons on the Sir Charles Gairdner Hospital after-hours roster was critically low. A reason for the lack of participation in the roster was the inadequate remuneration paid to private Orthopaedic Surgeons called back to hospital. The new agreement provided a much higher level of remuneration aimed at encouraging participation in the roster.

11       The far superior level of call-back remuneration paid to Orthopaedic Surgeons under the SCG Agreement caused controversy because it created disparity in what Orthopaedic Surgeons working at Sir Charles Gairdner Hospital received in comparison to Orthopaedic Surgeons working at other public hospitals.

12       Two new agreements were negotiated in order to standardise the on-call and call-back remuneration payable to Plastic and Orthopaedic Surgeons working in public hospitals. The agreements were facilitated by clauses 7 and 33(7) of the MHS Agreement.

13       The two new agreements were:

(a)   The Child and Adolescent Health Service, North Metropolitan Area Health Service, South Metropolitan Area Health Service Orthopaedic Trauma Surgery Roster Agreement (Orthopaedic Surgery Agreement) concluded on 30 September 2011; and

(b)   The Child and Adolescent Health Service, North Metropolitan Area Health Service, South Metropolitan Area Health Service Plastic Surgery Roster Agreement  made on 6 October 2011.

Claims

14       The Claimants, Mr Toby Leys, Mr Matthew Scaddan, Mr Li-On Lam and Professor Richard Carey Smith are Orthopaedic Surgeons in private practice. They were on the after-hours on-call roster at public hospitals.  Mr Li-On Lam worked at Fremantle Hospital whereas the other Claimants worked at Sir Charles Gairdner Hospital.

15       It is not in issue that, at all material times, the Claimants and the Respondent were bound by the Orthopaedic Surgery Agreement.

Mr Lam

16       In the period 9 February 2012 to 12 August 2012, both dates inclusive, Mr Lam was rostered as Duty Surgeon and “on-call” at Fremantle Hospital.  Whilst on-call he was called back to hospital. 

17       Mr Lam claims that he was not correctly paid for working as Duty Surgeon, for being on-call and for his called back duties.  He asserts that he should have been paid $39,315.00 in call-back payments but only received $21,828.00.  He also alleges that the Respondent has breached Clauses 50 and 51 of the MHS Agreement by failing to respond to letters from his agent concerning his underpayment.

18       The Respondent says that Mr Lam was paid his correct entitlements and that what he claims is in excess of entitlements accruing under Clause 32 of the Orthopaedic Surgery Agreement.

Mr Scaddan

19       Mr Scaddan’s claim relates to the period 9 January 2012 to 25 September 2012. In that period he was rostered to work and worked as Duty Surgeon at Sir Charles Gairdner Hospital.  During that period he was called back to the hospital whilst on-call.

20       He alleges that despite being on-call he was not paid his on-call allowance for 9, 23, 27, 28 and 29 January 2012. He also asserts that he was not paid his correct Duty Surgeon shift entitlement (Clause 26 of the Orthopaedic Surgery Agreement) and call-back entitlements (Clause 32 of the Orthopaedic Surgery Agreement). 

21       He says that he is owed $4,886.00 in unpaid on-call allowance; $19,111.00 in Duty Surgeon shift allowance and $42,382.00 in call-back entitlements.

22       Mr Scaddan also alleges that, in failing to respond to letters about the alleged underpayment, the Respondent has breached Clauses 50 and 51 of the MHS Agreement.

23       The Respondent denies that the Duty Surgeon shift allowance is outstanding and says that it was paid and received by Mr Scaddan in “pay period 470”.

24       The Respondent submits that in respect of the period 9 to 29 January 2012, Mr Scaddan was paid pursuant to a more generous arrangement for work undertaken by him and that the Orthopaedic Surgery Agreement did not apply to his work at that time.

25       The Respondent says that Mr Scaddan has been correctly paid all of his entitlements.

Mr Leys

26       Mr Leys’ claim relates to the period 13 February 2012 to 11 September 2012.

27       During that period he was called back to Sir Charles Gairdner Hospital whilst rostered on-call. In that same period he was also rostered to work and did work as Duty Surgeon.

28       He alleges that despite being on call he was not paid his on-call allowance for 16 July 2012.  Further, he claims to be owed $25,334.00 in call-back entitlements.

29       Mr Leys contends also that the Respondent has breached Clauses 50 and 51 of the MHS Agreement in not responding to his agent’s letters concerning his underpayment.

30       The Respondent does not admit the non-payment of the on-call allowance on 16 July 2012 and otherwise denies Mr Leys’ claim.

Professor Carey Smith

31       Professor Carey Smith’s claim is with respect to the period 1 February 2012 to 27 September 2012.

32       During that period, he was called back to hospital whilst rostered on-call and also worked as Duty Surgeon whilst rostered to do so.

33       He alleges that he was underpaid his duty surgeon shift allowances (Clause 26 of the Orthopaedic Surgery Agreement) in the sum of $10,528.00 and his on-call entitlements (Clause 32 of the Orthopaedic Surgery Agreement) in the sum of $24,858.00.  He also claims not to have been paid his on-call allowance for the afternoon of 27 May 2012.

34       Professor Carey Smith also alleges that the Respondent has failed to comply with Clauses 50 and 51 of the MHS Agreement by not responding to letters from his agent concerning his underpayment.

35       The Respondent denies that it has failed to pay Professor Carey Smith his correct Duty Surgeon staff allowance entitlements and contends that he was paid his correct on-call allowance for 27 May 2012. The breach of Clauses 50 and 51 of the MHS Agreement is also denied.

36       The Respondent contends that all call-back payments made to him were correct.  The Respondent suggests that what Professor Carey Smith seeks is in excess of that required by Clause 32 of the Orthopaedic Surgery Agreement.

Determination

37       The parties agree that only liability be determined at this stage. If required, quantum is to be decided later.

Burden of Proof and Standard of Proof

38       Each Claimant carries the legal burden of proof with respect to his Claim.

39       The general rule is that the burden of proving a fact or issue is upon the party who asserts that fact or issue and not upon the party who denies it.  Where there are allegations and counter allegations in the claim the onus of proof shifts between the parties according to which party is the proponent of the fact or issue.  The onus is on the respondent if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an avoidance of the claim which prima facie the Claimant has (Currie v Dempsey (1967) 69 SR(NSW) 116 per Walsh JA at 125.

40       The standard of proof required to discharge the burden of proof is on the balance of probability. This standard was explained by Lord Denning in Miller v Minister of Pensions (1947) 2AER 372.  He said at 374

“That degree is well settled.  It must carry a reasonable degree of probability but not so high as is required in a criminal case.  If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged but, if the probabilities are equal it is not.”

41       In these reasons if I say that “I am satisfied” it means that I am satisfied on the balance of probabilities as to a fact or matter.  If I say “I am not satisfied” then I am not satisfied on the balance of probabilities as to a fact or matter.

Issues to be determined

42       The main issue to be determined with respect to these claims is whether the Claimants are correct in their contentions that they have not been paid their correct call-back entitlements.

43       A determination of factual issues that remain in dispute on the pleadings is also required. The parties have identified those issues to be:

1. Under which industrial arrangement was Mr Scaddan engaged during the period 9 January 2012 to 29 January 2012?
2. Was Mr Scaddan paid the amounts specified in Column 8 of Table B in pay period 470?
3. Was Mr Leys rostered on-call on 16 July 2012, and if so, what was the period of time worked by him on that occasion?
4. What amount was Mr Leys entitled to be paid by way of Duty Surgeon shift payment under Clause 26 of the Orthopaedic Surgery Agreement?
5. Was Professor Carey Smith paid the amounts identified in Column 6 of Table D, and if so, when?
6. Was  Professor Carey Smith paid the amount of $735.00 in respect of work done in the afternoon of 27 May 2012?
7. Did each of the Claimants make claims for payments in respect of the call-back periods worked within the pay period within which the entitlement to payment arose, or in the following pay period?
8. Did the Respondent fail to respond to correspondence from the Australian Medical Association (WA) Incorporated (AMA), sent on behalf of the Claimants, and dated 26 October 2012?

Were the Claimants Paid their Correct Call-Back Entitlements?

44       The parties attribute different meanings to Clause 32 of the Orthopaedic Surgery Agreement which provides the payment regime for Orthopaedic Surgeons who are on-call, and who are called back to hospital.

45       Clause 32 of the Orthopaedic Surgery Agreement provides (underlining added):

“32.  An On-Call Surgeon: rostered On-Call, who is called back to the hospital is paid (in addition to the prescribed Flat Rate On-Call payment) the prescribed flat rate allowance for each attendance. If one attendance at the hospital is for a continuous period of more than 4 hours then an additional flat rate allowance is paid for each additional period or part period worked by adding each of the rates for each subsequent 4 hour period or part period of attendance as illustrated below

                                                                                                                                         ”

Competing Construction

46       The Claimants construe Clause 32 of the Orthopaedic Surgery Agreement to mean that the monetary figures specified in the boxes of each column of the table accumulate.  The Respondent on the other hand, contends that the figure in each box is a stand-alone figure which represents the total amount payable for the period set out in the column entitled Continuous Period of Attendance.

47       If one considers an ordinary call-back situation for an Orthopaedic Surgeon called back to hospital for 15 hours in the period 1 July 2011 to 31 December 2011, on the Claimants’ interpretation, an amount of $6,711.00 is payable.  That amount is comprised of $671.00 for the first four hours, and then $1,342.00 for the next four hours, then $2,013.00 for the following four hours and $2,685.00 for the balance of hours worked.  On the Respondent’s interpretation, an amount of $2,685.00 is payable, which is comprised of an entitlement of $671.00 for each four hour period or part thereof, plus $1.00 (4 x $671 + $1).

Construction of Clause 32

48       The parties agree that the meaning of Clause 32 is borne out by its plain reading in the context of the rest of the Orthopaedic Surgery Agreement. Each say that the provisions read in context is not ambiguous and that resort to extrinsic materials for the purpose of interpretation will not be necessary.

49       Despite contending that the terms of the clause are clear and unambiguous, they nevertheless construe it quite differently.

50       In Director General, Department of Education v United Voice WA [2013] WASCA 287, Pullin J said at [18] and [19] that an agreement has to be construed to determine what the intention of the parties was at the time it was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the clause to mean, taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction. Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning.

Respondent’s Submissions

51       The Respondent argues the following:

52       Clause 32 is clear. 

53       The use of the phrase ‘flat rate’ is significant. ‘Flat rate’ as used in Clause 32 is also used in Clauses 30 and 31 of the Orthopaedic Surgery Agreement. It refers to a non-variable sum. The flat rate allowance is prescribed and defined by the figures on the first line of Clause 32’s table. The figures on the last line simply denote the tariff payable to a practitioner who is called back to hospital, regardless of the time period for which he is called back.

54       It would be fallacious to suggest that the word ‘prescribed’ preceding ‘flat rate’ is referring to figures denoted at the second and succeeding lines of the table. The clause sets out that “the prescribed flat rate allowance” is payable for the act of attendance, irrespective of its duration. Further the use of the word “the” constrains any change in the rate.

55       Clause 32 specifies that payments increase in an arithmetic progression. A single additional four hour period affects a single additional iteration of the “flat rate allowance”. The table within the clause is consistent with that. The arithmetic progression present in the table, and the consistent use of the word “additional” in reference to both “flat rate allowance” and “period or part period” militates against the construction that “an additional flat rate allowance” contemplates a variable amount.

56       The reference to “the rates” does not refer to the rates specified in the table. That would be inconsistent with the use of the words “as illustrated” in the clause. The provisions could have easily specified “the rates set out in the table below” if that was the intent. The rates simply refer to successive iterations of the flat rate payable on successive four hour periods, which is consistent with the arithmetic progression applied in the table.

57       The use of the words “as illustrated below” is also significant in analysing the clause. The word “illustrated” does not have the same meaning as “defined”.  To “illustrate” means “to make clear or intelligible as by examples” (Macquarie Dictionary 5th Edition). The table illustrates an arithmetic progression in remuneration for the call-back attendees of increasing duration.

58       The table simply provides a matrix of payments applying to any given attendance. The first column is headed “Continuous Period of Attendance” and the remaining columns are headed “Call Back Payment”, differing only as to the occasion of the attendance. The phrase “Call Back Payment” refers to a single figure payable. That is inconsistent with cumulative sums for increasing lengths of attendances. Were the intent to render the various sums cumulative, the phrases “Call Back Payments” or “Call Back Allowances” would have been used.

Meaning of Clause 32

59       The contentious issue to be determined is what is meant by the second sentence of Clause 32 which provides:

“…If one attendance at the hospital is for a continuous period of more than 4 hours then an additional flat rate allowance is paid for each additional period or part period worked by adding each of the rates for each subsequent 4 hour period or part period of attendance as illustrated below” (my emphasis).

60       It provides for additional remuneration in the event of continuous attendance in excess of four hours. That is to be contrasted with the first sentence of the clause which deals with discrete attendances of four hours or less.

61       The prescribed “flat rate allowance” is that which applies to the first period of up to four hours of continuous attendance. The reference to “flat rate allowance” conveys that the amount payable is the same, however many hours are worked during the four hour period. The provision for the payment of “an additional flat rate allowance” does not constrain the rate to be the same as the prescribed “flat rate allowance”, payable for a discrete attendance of four hours or less.

62       The second sentence of the clause requires “an additional flat rate allowance” to be paid for each additional four hour period or part period worked, by adding “each of the rates” for each subsequent period (my emphasis added). The use of the word “rates” as opposed to “rate” is critical. Its plurality denoted different rates not the same rate. Further, the second sentence instructs that there must be an “adding of each of the rates for each subsequent 4 hour period or part period of attendance as illustrated below”.

63       The rates illustrated are the rates payable for each specified four hour period. Each rate is discrete for that period. The clause requires the “adding” of each of the rates for subsequent four hour periods or part thereof.

64       The Respondent’s textual construction must be rejected because:

1. there is no addition of “rates”. The Respondent’s construction would not have required the specification of different rates but could have been simply achieved by providing for a fixed payment for each four hour period or part thereof;
2. it would render the words preceding the table otiose as the amount payable  would be entirely determinable by the illustrative table; and
3. there is not a strict arithmetic progression in each instance. As previously indicated the amounts do not always add up.

65       I accept that on its plain reading, Clause 32 should be construed as suggested by the Claimants.

66       Although the parties agreed that the meaning of Clause 32 could be ascertained on plain reading in the context of the rest of the Orthopaedic Surgery Agreement, they nonetheless have addressed me in detail about alternate methods of construing Clause 32.  It is therefore appropriate that I say something about those matters despite it now being unnecessary. I stress that what I say below about these further matters did not affect my conclusion concerning the construction Clause 32 on its plain meaning.

67       If the meaning of Clause 32 had not been apparent on its plain reading I would have preferred the Claimants’ construction in any event, because that is more consistent with the objective purpose and industrial context of the Orthopaedic Surgeons Agreement.

68       The purpose of the Orthopaedic Surgeons Agreement was to:

1. equalise pay rates of Orthopaedic Surgeons providing “on-call” services across all public hospitals;
2. provide a level of remuneration which encouraged Consultant Orthopaedic Surgeons to participate in the after-hours roster;
3. retain the services of Consultant Orthopaedic Surgeons at public hospitals; and
4. encourage Orthopaedic Surgeons who return to hospital on-call to remain at the hospital rather than having them come and go.

69       Such objectives are clearly discernible from the evidence given by Peter Lynne Jennings (Affidavit sworn 17 February 2014 –paragraphs 6 and 11) (Jennings Affidavit), the evidence of Marshall Warner (Affidavit sworn 24 June 2014 –paragraph 6) (Warner Affidavit) which I accept, and from the Orthopaedic Surgeons Agreement itself (see clause 37(iii), 37(iv) and 37(v)).

70       If required I would have found the following to be the relevant factual and industrial context in which the Orthopaedic Surgeons Agreement was created,:

1. in 2008 the number of Consultant Orthopaedic Surgeons prepared to be rostered on-call at Sir Charles Gairdner Hospital was so critically low that the SCG Agreement was needed to entice surgeons onto the roster and to retain those already on it. The SCG Agreement was an interim arrangement which principally dealt with remuneration. It provided a significant increase in the rate payable for on-call work (viva voce evidence of Professor Gerard Hardisty);
2. the SCG Agreement produced a much higher level of remuneration to Consultant Orthopaedic Surgeons working at Sir Charles Gairdner Hospital as compared to their counterparts working at other public hospitals (Affidavit of Matthew Scaddan sworn 19 February 2014 - paragraph 11)(Scaddan Affidavit);
3. such disparity in the pay rates for being on-call caused significant dissatisfaction (Jennings Affidavit - paragraphs 4 and 6; Affidavit of Toby Leys (sworn 21 February 2014)- paragraph 11 (Leys Affidavit); Scaddan Affidavit at paragraphs 10 and 11 and Warner Affidavit at paragraph 6);
4. Orthopaedic Surgeons regarded the requirements to be on-call as disruptive (Jennings Affidavit at paragraph 4; Leys Affidavit at paragraphs 14 to 17; Affidavit of Li-On Lam (sworn 19 February 2014) at paragraphs 12 and 13 (Lam Affidavit); Affidavit of Richard Carey Smith (sworn 28 February 2014) at paragraph 11 and Warner Affidavit at paragraph 3);
5. Consultant Orthopaedic Surgeons were paid a much higher amount for less stressful and demanding work both in private practice and in the public system (Leys Affidavit at paragraph 12, Scaddan Affidavit at paragraph 12, Jennings Affidavit at paragraph 6, Lam Affidavit at paragraph 15 and Mr Scaddan viva voce evidence in re-examination); and
6. the amounts payable for being on-call under the SCG Agreement exceed that payable under the Orthopaedic Surgery Agreement (viva voce evidence of Mr Leys).

71       Given the contextual circumstances existing at the time that the Orthopaedic Surgery Agreement was negotiated, a construction in accordance with the Claimants’ submission is in keeping with the objective of providing a sufficiently attractive level of remuneration to induce Orthopaedic Surgeons, including those at Sir Charles Gairdner Hospital, to participate in the after-hours roster.

72       Although the quantum of remuneration may not be the sole determinative factor for participation in the on-call roster, it clearly looms large.  Indeed, the SCG Agreement was aimed at setting a level of remuneration sufficiently attractive so as to encourage Orthopaedic Surgeons to participate in the on-call roster. An adequate level of remuneration was of particular relevance in concluding the Orthopaedic Surgery Agreement.

73       The rates payable on the Claimants’ construction of Clause 32 is more in keeping with payments received by Orthopaedic Surgeons at Sir Charles Gairdner Hospital under the SCG Agreement. The Respondent’s construction provides for a much lower remuneration. Absent any other obvious benefit arising from the Orthopaedic Surgery Agreement, there is no reason for the provision of much inferior remuneration.

Factual Issues in Dispute on the Pleadings

Under Which Industrial Arrangement was Mr Scaddan Engaged in the Period 9 to 29 January 2012?

74       Mr Scaddan argues that he should have been remunerated in accordance with the SCG Agreement during the period 9 to 29 January 2012.  The Respondent says that the Orthopaedic Surgery Agreement applied to him on and from 30 September 2011.

75       There is no dispute that the Orthopaedic Surgery Agreement applied to Mr Scaddan on and from 30 September 2011.  In the circumstances I cannot understand how it can be that the SCG Agreement would have continued to apply to his remuneration in the period 9 to 29 January 2012.

76       The fact that he may have been mistakenly paid under the SCG Agreement after the inception of the Orthopaedic Surgery Agreement is of no import.  In the period 9 to 29 January 2012 his remuneration was governed by the Orthopaedic Surgery Agreement and he should have been paid in accordance with its terms.

Was Mr Scaddan Paid the Amounts Specified at Colum 8 of Table B in Pay Period 470?

77       Mr Scaddan claims he has not been paid his correct Duty Surgeon shift payments pursuant to Clause 26 of the Orthopaedic Surgery Agreement. He says he is owed $19,111.00 in that regard.

78       There can be no doubt that Mr Scaddan was initially not paid his Duty Surgeon shift allowance entitlements in the sum of $19,111.00.  However, on 17 January 2013 he received that sum.

79       At paragraph 21(b) of his Affidavit, Mr Scaddan says that given there was no breakdown of what that payment related to, he is unable to confirm payment. When cross-examined about the issue, Mr Scaddan conceded that he was eventually remunerated correctly in that regard.

80       The amount of $19,111.00 paid to him corresponds exactly to the amount said to be outstanding as set out in Column 8 of Table B of his claim.  I am satisfied that he was paid that amount on 17 January 2013.

81       The only reference that I could find relating to pay period 470 is found in Column 14 of Table D of Professor Carey Smith’s claim. That suggests that the date of pay period 470 was 21 June 2012.  If that is correct, it follows that Mr Scaddan was not paid in pay period 470.

82       Irrespective of when it was received, I am satisfied that payment of $19,111.00 was made to Mr Scaddan.

Was Mr Leys Rostered On-Call on 16 July 2012, and if so, what was the Period of Time Worked by Him on that Occasion?

83       This issue is no longer in dispute. Mr Leys conceded in his viva voce evidence that he was correctly remunerated for 16 July 2012.

What Amount was Mr Leys Entitled to be Paid by Way of Duty Surgeon Shift Payment Under Clause 26 of the Orthopaedic Surgery Agreement?

84       The issue is not about liability, but rather quantum. There is in the circumstances no need for a determination to be made at this stage.  I observe in any event that Mr Leys may have been slightly overpaid in that regard.

Was Professor Carey Smith Paid the Amounts Identified in Column 6 of Table D of his Claim, and if so, when?

85       It is asserted on Professor Carey Smith’s behalf that the Respondent has not produced evidence of the full payment of his Duty Surgeon’s shift entitlement. The Respondent pleads that Professor Carey Smith has received his full entitlement in that regard.

86       Professor Carey Smith said at paragraphs 18 and 19 of his Affidavit that he received lump sum payments on 21 June 2012, 22 November 2012 and 17 January 2013. He says that the payslips accompanying those payments for previously unpaid on-call and periods of call-back were unintelligible and it is impossible for him to know what the payments were for.

87       In Column 9 of Table D to his claim, it shows that a payment of the Duty Surgeon shift entitlement was made on 17 January 2013, however, it is alleged that that payment was only a part-payment of such entitlements. Column 13 of Table D shows however, that on the same day (17 January 2013) Professor Carey Smith received other payments which have been allocated to his call-back claim. Why that allocation occurred is unclear.

88       Professor Carey Smith’s evidence is not that he has not been paid but rather that he cannot tell whether he has been paid or not, or if he has been paid, the amount he has actually received for a specific purpose.

89       The Respondent asserts that Professor Carey Smith has been paid the amount claimed.  It follows that the onus rests with the Respondent to prove on the balance of probabilities that Professor Carey Smith has been paid his correct entitlements. The Respondent is required to establish what payments were made to satisfy Professor Carey Smith’s Duty Surgeon’s entitlements.  On the available evidence, I cannot be satisfied that he was paid his full Duty Surgeon shift entitlements on 17 January 2013.

90       The evidence as it stands does not enable a determination of what payment was made and when.

Was Professor Carey Smith Paid the Amount of $735.00 in Respect to Work Done in the Afternoon of 27 May 2012?

91       Professor Carey Smith submits that there is no evidence that payment was made to him for work done on the afternoon of 27 May 2012. The Respondent asserts that the Claimant has been paid his full entitlement.

92       At Column 14 of Table D of his claim, Professor Carey Smith acknowledges having received $698.00 on 21 June 2012. The dispute which remains with respect to this issue is whether $37.00 is outstanding.

93       The Respondent carries the burden of proving that the payment has been made. He has not discharged that onus. There is no evidence of the payment of the outstanding $37.00.

Did Each of the Claimants Make Claims for Payment in Respect of the Call-Back Periods Worked Within the Pay Period Within Which the Entitlement to Payment Arose or the Following Pay Period?

94       Clause 50(1)(a) of the MHS Agreement provides:

“Practitioners shall submit claims for payment of overtime, call backs or other entitlements for which they have not been formally rostered in the pay period within which the entitlement arose or in the following period.”

95       The evidence of Mr Leys (Leys Affidavit – paragraph 15) establishes that he claimed payment for on-call and call-back work once a fortnight in accordance with Clause 50(1)(a) of the MHS Agreement. Mr Lam, Mr Scaddan and Professor Carey Smith did likewise (see Lam Affidavit at paragraphs 16, 17 and 18; Scaddan Affidavit at paragraph 18; Carey Smith Affidavit at paragraphs 13 and 14).

96       I find that each of the Claimants complied with Clause 50(1)(a) of the MHS Agreement.

97       In any event, the Respondent has indicated in written submissions that he will not be relying on any alleged breach of Clause 50(1)(a).

Did the Respondent Fail to Respond to Correspondence From the AMA Dated 26 October 2012 on Behalf of the Claimants?

98       On 26 October 2012, Mr Gary Bucknall, Executive Officer – Industrial of the AMA wrote separate letters on behalf of each Claimant to Dr David Russell-Weisz, Acting Director General of the Department of Health, advising that each Claimant had not received his correct Duty Surgeon shift allowance, on-call and call-back entitlement under Clauses 26, 30, 31 and 32 of the Orthopaedic Surgery Agreement. A schedule outlining the underpayment was attached to each letter.

99       Each letter sought rectification of the underpayment within seven days, plus the payment of interest. Those demands were made in accordance with Clause 51 of the MHS Agreement. Mr Bucknall demanded (pursuant to Clause 50(1)(b) of the MHS Agreement) that if the claims were rejected, that written reasons be given for that decision.

100    Relevantly, Clause 51(1) of the MHS Agreement provides:

“51. RECOVERY OF UNDERPAYMENTS AND OVERPAYMENTS

(1)               Underpayments

(a)   Where a practitioner is underpaid in any manner:

(i)        the employer will, once the employer is aware of the underpayment, rectify the error as soon as practicable;

(ii)        where possible the underpayment shall be rectified no later than in the pay period immediately following the date on which the employer is aware that an underpayment has occurred; and

(iii)        where a practitioner can demonstrate that an underpayment has created a serious financial hardship, the practitioner shall be paid by way of a special payment as soon as practicable.

(b)   An employer shall compensate a practitioner for costs resulting directly from an underpayment, where it is proven that the costs resulted directly from the underpayment. This includes compensation for overdraft fees, dishonoured cheque costs, and dishonour fees related to routine deductions from the bank account into which a practitioner’s salary is paid.

(c)   Nothing in this clause shall be taken as precluding the practitioner’s legal right to pursue recovery of underpayments.”

101    The Claimants contend that there was no response to the AMA’s letters of 26 October 2012, other than belated payments as identified in the schedule annexed to each claim.

102    The Respondent says that a written response was not required.  He says in any event that subsequent to the receipt of those letters, a number of meetings were held between the AMA representing the Claimants and representatives of the Respondent. Any response required was constituted by those meetings.

103    Clause 51(1) of the MHS Agreement requires that any underpayment be rectified as soon as practicable after the error in payment has become known. It also requires the payment of compensation in some circumstances.  The only response in fact required is rectification of any error causing underpayment.

104    To the extent that an error was made, as accepted by the Respondent, he rectified it by making payments to the Claimants on 17 January 2013. Those payments were for Duty Surgeons shift entitlements under Clause 26 of the Orthopaedic Surgery Agreement, and for call-backs under Clause 32 of the same Agreement.

105    Given the very large work force employed by the Respondent, the various workplaces it controls and the complexity of its workplace arrangements, the investigation and review of each claim will have inevitably taken some considerable time.  I accept the evidence of Steve Gregory (Affidavit of Steve Gregory (sworn 29 June 2014) at paragraphs 5, 6 and 7) that the resolution of the claims within a short time frame was not logistically possible.

106    Whilst I accept that there was a considerable delay between the date of notification of an error and the subsequent rectification (to the extent the error was acknowledged) there is nothing to indicate that the error was not rectified as soon as practicable. 

107    The onus is on the Claimants to establish, on the balance of probabilities, that the errors were not rectified as soon as practicable. That, they have failed to do.

108    The Respondent has otherwise informed the Claimants in writing as to why it disputes aspects of their Claims. Clause 50(1)(b) of the MHS Agreement which requires written reasons to be given for the non-acceptance of claims for payments of entitlements has been complied with.

109    The alleged breaches of Clauses 50 and 51 of the MHS Agreement have not been proven.

Objection to Evidence

110    Prior to the Trial commencing, the parties came to agreement about the exclusion of evidence.  Large portions of Affidavit evidence have, by consent, been excluded from my consideration.  There is some Affidavit evidence remaining to which objection has been taken by either one party or the other, however it will be unnecessary to determine whether such evidence ought to be admitted.

111    Regulation 35(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (the Regulations) provides:

“Except as provided in these regulations, a Court hearing a trial is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.”

112    It is clear that evidentiary material that would not otherwise be admissible can be received by this Court at Trial. 

113    Objection is taken to some evidence which would not otherwise be admissible. Such evidence consists of hearsay, evidence of personal circumstances not relevant to my considerations and includes evidence of individual desires, hopes and expectations.

114    The process of going through each of the remaining objections concerning otherwise inadmissible evidence is of little utility.  Pursuant to regulation 35(4) of the Regulations, such evidence can be received.  What is required is to ensure that there is procedural fairness and that such evidence, if taken into account, is treated with caution.

G CICCHINI

INDUSTRIAL MAGISTRATE