QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees

v State of Queensland (Department of Health) [2016]

QIRC 119

PARTIES:

Together Queensland, Industrial Union of

Employees

(Applicant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

D/2014/78

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

10 November 2016

HEARING DATES:

HEARD AT:

18 and 19 July 2016

11 August 2016 (Applicant's written submissions)

25 August 2016 (Respondent's written submissions)

1 September 2016

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDERS:

Question 1: In relation to clause 4.3 Extended Span of

Ordinary Hours of Work within the Medical Officers'

(Queensland Health) Certified Agreement (No 3) 2012

("MOCA3"), what is meant by the term "extended

span of hours arrangement"?

Answer to Question 1: The term "extended span of

hours arrangement" in relation to clause 4.3 of the

Medical Officers' (Queensland Health) Certified

Agreement (No 3) 2012 means an arrangement in

accordance with which a senior medical officer works

a shift that includes Ordinary Hours (as defined in

clause 4.2) that are worked outside the normal span of

Ordinary Hours (i.e. outside the period between 0700

hours and 1800 hours Monday to Friday) and includes

some part of the period between 0700 hours and 2200

hours Monday to Sunday (or between 2200 and 0700

in exceptional circumstances).

2

Question 2: In determining the meaning behind the

term "extended span of hours arrangement," what is

the correct application of the loading mentioned in

clause 4.3.3(a) of MOCA 3, in relation to shifts DG1,

MG1, LC1 and ALE performed by Dr Spain in

accordance with the roster attached at Appendix 1?

Answer to Question 2: The correct application of the

loading mentioned in clause 4.3.3(a) of MOCA 3 in

relation to each of the specified shifts is:

DG1 (0730 - 1800): Nil

MG1 (0730 - 1800): Nil

LC1 (1230 - 2300): 7 hours at 25% of the

Ordinary rate (less

unpaid meal break

taken)

ALE (1730 - 2300): 5.5 hours at 25% of the

ordinary rate.

CATCHWORDS: INDUSTRIAL LAW - INDUSTRAL DISPUTE -

Interpretation of Certified Agreement - whether

Senior Medical Officers were entitled to be paid the

25% loading under clause 4.3.3(a) of the Medical

Officers' (Queensland Health) Certified Agreement

(No 3) 2012 for work after 1600 hours but during

ordinary hours of work - meaning of "extended span

of hours arrangement" in clause 4.3.3 - approach to

ascertaining the meaning of that expression - meaning

of clause 4.3.3(a) in context - references to clauses in

previous certified agreement that the loading in clause

4.3.3(a) "replaces" - circumstances surrounding

negotiation of certified agreement - whether the

contra proferentem rule applies to clause 4.3.3(a) or

explanatory documents provided in relation to draft

certified agreement

CASES: Industrial Relations Act 1999, ss 230, 284

Amcor Limited v Construction Forestry Mining and

Energy Union (2005) 222 CLR 241

AMP Fire & General Insurance Co Ltd v Maros

Construction Co (Qld) Pty Ltd [1968] QWN 11

Australasian Meat Industry Employees Union v

Golden Cockerel Pty Ltd [2014] FWCFB 7447

Australian Workers' Union of Employees, Queensland

v Mount Isa Mines Limited [2003] QIRComm 276;

(2003) 172 QGIG 1870

Australian Workers' Union of Employees, Queensland

v James Hardie Australia Pty Ltd [2001] 167 QGIG

280

3

Bank of Queensland Ltd v Chartis Australia Insurance

Ltd [2013] QCA 183

BP Australia Pty Limited v Nyran Pty Limited [2003]

FCA 520

Brisbane City Council AND Australian Rail, Tram and

Bus Industry Union of Employees, Queensland Branch

[2004] QIC 7

Codelfa Construction Pty Ltd v State Rail Authority of

New South Wales (1982) 149 CLR 337

Core Toughened Pty Ltd v Construction, Forestry,

Mining and Energy Union [2015] FWC 7131

FL Schuler AG v Wickman Machine Tool Sales Ltd

[1974] AC 235

Johnson v American Home Assurance Company

(1998) 192 CLR 266

Kucks v CSR Ltd (1996) 66 IR 182

Park Avenue Motor Hotel etc v Beck and Beck v Park

Avenue Motor Hotel etc [2008] QIC 66

PKIU v Davies Bros Limited (1986) 18 IR 444

Printing & Kindred Industries Union & Anor v Davies

Bros Ltd (1986) 18 IR 444

Public Transport Corporation of Victoria v Australian

Rail, Tram and Bus Industry Union and Others (Print

M2454)

Queensland Police "Union of Employees" and

Commissioner of Police (2000) 164 QGIG 16

RACV Road Service Pty Ltd v "Automotive, Food,

Metals, Engineering, Printing and Kindred Industries

Union" known as the Australian Manufacturing

Workers' Union [2014] FWCFB 1629

Seamen's Union of Australia v Adelaide Steamship Co

Ltd (1976) 46 FLR 444

Short v F W Hercus Pty Ltd (1993) 40 FCR 511

State of Queensland (Department of Corrective

Services) v Together Queensland, Industrial Union of

Employees [2014] QIRC 176

The Australian Workers' Union of Employees,

Queensland AND James Hardie Australia Pty Ltd

(2001) 167 QGIG 280

The Bacon Factory's Union of Employees, Queensland

v Hans Continental Smallgoods Pty Ltd [2002]

QIRComm 18; (2002) 169 QGIG 199

United Firefighters' Union of Australia v Country Fire

Authority [2007] FCA 853

United Firefighters' Union of Australia, Union of

Employees Queensland v Department of Community

Safety - Queensland Fire and Rescue Service

(D/2013/84) - Decision <http://www.qirc.qld.gov.au>

United Voice, Industrial Union of Employees,

Queensland v State of Queensland (Department of

4

Education, Training and Employment) [2014] QIRC

107

Western Australia Bank v Royal Insurance Co (1908)

5 CLR 533

APPEARANCES: Mr M Thomas, representative of the Applicant

Mr M Uzelin, representative of the Respondent

Decision

[1] This dispute concerns whether, under the Medical Officers' (Queensland Health)

Certified Agreement (No 3) 2012 ("MOCA 3"), Senior Medical Officers on an extended

span of hours arrangement were entitled to be paid a loading of 25 per cent of the

ordinary rate for all Ordinary Hours on weekdays worked after 1600 hours but during

ordinary hours of work.

Background

[2] The Notice of Industrial Dispute was filed with the Industrial Registrar on 11 August

2014 by Together Queensland, Industrial Union of Employees ("the Applicant"). It

referred to an apparent inconsistency across Health and Hospital Services in the

application of clause 4.3.3 of MOCA 3. That clause provides for the payment of a

Senior Medical Officer ("SMO") who works an extended span of ordinary hours.

[3] During the life of MOCA 3 a dispute arose when it became clear that Queensland Health

("the Respondent") was only paying the 25 per cent loading mentioned in clause 4.3.3(a)

for ordinary hours worked between 1600 hours and 1800 hours on the shifts that

finished after 1800 hours. If a shift finished at or before 1800 hours, the loading was

not paid for those ordinary hours between 1600 hours and the end of the shift.

[4] The dispute concerns the meaning and application of the phrase "extended span of hours

arrangement" in clause 4.3 of MOCA 3 and its impact on the application of the extended

span of hours loading in clause 4.3.3 of MOCA 3. The Notice of Industrial Dispute

stated that the Applicant sought to resolve these differences to ensure the provision is

uniformly and properly applied. The Applicant sought the assistance of the Queensland

Industrial Relations Commission ("the Commission") to ensure that employees are

remunerated in accordance with MOCA 3.

[5] Conciliation conferences were convened by Commissioner Black on 8 September 2014,

18 November 2014, 20 May 2015, and 23 July 2015. There was another conference

before Deputy President O'Connor on 23 October 2015.

[6] The Application for Orders filed by the Applicant on 1 October 2015 sought the

following order:

"Doctors subject to the provisions of the Medical Officers' (Queensland Health)

Certified Agreement (No. 3) 2012 who were on an extended span of hours

arrangement were entitled to be paid a loading of 25% of the ordinary rate for all

5

ordinary hours worked between 1600 hours and 1800 hrs on any shifts undertaken

during that extended hours roster."

[7] Although the parties were unable to resolve the dispute, they agreed to a statement of

facts and the issues to be resolved in these proceedings which also:

(a) set out the relevant clauses of the Medical Officers' (Queensland Health)

Certified Agreement (No 2) 2009 (CA/2009/130) ("MOCA 2") and MOCA 3;

and

(b) contained an example roster for Dr David Spain (and others) from the Gold

Coast University Hospital.

[8] The parties agreed that, so far as is relevant for these proceedings, MOCA 3 operated

between 1 November 2012 and 4 August 2014.

[9] Oral and written evidence was given by:

(a) Daniel Henry Goldman, Acting Assistant Secretary of the Applicant;

(b) Dr David Spain, Deputy Medical Director, Gold Coast University Hospital,

Southport; and

(c) Mark Andrew Brady, previously the Senior Director, Employee Relations with

the Respondent.

What the Medical Officers' (Queensland Health) Certified Agreement No 3 provides

[10] For the purpose of these proceedings, the relevant clauses of MOCA 3 are clauses 4.2,

4.3 and 4.3.3. Those clauses provide:

"4.2 Hours of Work - Senior Medical Officers

Definitions

Accrued Day Off means a day or part of a day accrued by working in

excess of 80 hours per fortnight (pay period) where an employee has

elected to take time off in lieu of overtime payment.

Rostered Day Off means a set day in a roster cycle where an employee

is rostered off.

Ordinary Hours means:

(a) for Senior Medical Officers not working on an extended hours

roster, 80 hours per fortnight worked between 7.00am and 6.00pm

Monday to Friday;

(b) for Senior Medical Officers working on an extended hours roster,

80 hours per fortnight worked as part of the rostered ordinary hours

6

at times and on days as dictated by the employee's extended hours

roster in accordance with clause 4.3 or 4.3.4.

…

4.3 Extended Span of Ordinary Hours of Work

Subject to clause 4.3.4, an extended span of hours arrangement may

be implemented for a Senior Medical Officer between the hours of

7.00am to 10.00pm,1 Monday to Sunday. The Ordinary Hours of this

arrangement are defined in clause 4.2(b).

…

4.3.3 Payment for Work in the Extended Span of Ordinary Hours:

0700 hours to 2200 hours

A Senior Medical Officer working Ordinary Hours in an extended

span of hours arrangement between 0700 hours and 2200 hours will

be paid according to one of the following:

(a) A loading of 25% of the ordinary rate for all Ordinary Hours

worked between 1600 hours and 2200 hours on any weekday;

(b) A loading of 50% of the ordinary rate for all Ordinary Hours in a

shift worked on a Saturday; or

(c) A loading of 100% of the ordinary rate for all Ordinary Hours in

a shift worked on a Sunday.

The 25% loading referenced in 4.3.3 (a) replaces the following:

- 15% loading for working extended hours provided for in clause

6.3.8 (a)(i) and 6.3.8(ii)(A)2 of MOCA 2.

- 10% flexibility allowance provided for in clause 6.3.1 of MOCA

2." (Emphasis added)

[11] Clauses 4.2 and 4.3 refer to clause 4.3.4 which provides for the "exceptional

circumstances" in which SMOs worked between 2200 hours and 0700 hours and for

SMOs to be paid a "loading of 25% of the ordinary rate" for all Ordinary Hours worked

after 2200 until the end of the rostered shift. The operation of clause 4.3.4 is not relevant

to resolving the specific interpretation issues raised in these proceedings.

[12] MOCA 3 also provided the method of working Ordinary Hours. Clause 4.2.1 stated:

"The Ordinary Hours may be performed on one of the following basis, most

suitable to the particular work location, after consultation with, and giving

reasonable consideration to, the circumstances of the employee concerned:

(a) By officers working 8 continuous Ordinary Hours (excluding the meal break)

each day; or

(b) By officers working less than 8 continuous Ordinary Hours (excluding the

meal break) each day on one or more days each work cycle; or

1 Although there are some references to times as am or pm, most of MOCA 3 refers to times in 24 hours terms.

For consistency, the 24 hours references are used in this decision. 2 Sic - this should read 6.3.8(a)(ii)(A).

7

(c) By officers working more than 8 continuous Ordinary Hours (excluding the

meal break). In a consultative process, individual officers may agree that their

Ordinary Hours are to exceed 8 on any one day thus enabling standard

Ordinary Hours to be completed in fewer rostered days in the work cycle:

i. Up to a maximum of 10 Ordinary Hours on weekdays;

ii. For Senior Medical Officers working on an extended hours roster only,

up to a maximum of 12 Ordinary Hours on weekdays and public

holidays;

iii. Where service delivery necessitates it and by agreement with the

officer/s, a shift length of 12 and half Ordinary Hours inclusive of a

paid meal break may be worked;

iv. The minimum engagement is four continuous Ordinary Hours."

Issues

[13] The parties agreed that the following questions are to be answered in these proceedings:

1. In relation to clause 4.3 Extended Span of Ordinary Hours of Work within the

Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012

("MOCA3"), what is meant by the term "extended span of hours

arrangement"?

2. In determining the meaning behind the term "extended span of hours

arrangement," what is the correct application of the loading mentioned in

clause 4.3.3(a) of MOCA3, in relation to shifts DG1, MG1, LC1 and ALE

performed by Dr Spain in accordance with the roster attached at Appendix 1?

[14] In relation to Question 2, the times allocated to each of the specified shifts are DG1

(0730 – 1800), MG1 (0730 – 1800), LC1 (1230 – 2300), and ALE (1730 – 2300).

[15] The parties agree that any time worked after 1800 hours on any one shift by an SMO

would attract the loading of 25 per cent as per clause 4.3.3(a) of MOCA 3.

[16] In practical terms, the issue is whether the 25 per cent loading was payable on an

"extended span of hours arrangement" for work done between 1600 hours and 1800

hours on any weekday.

[17] The Applicant contends that the "extended span of hours" loading applies to all ordinary

hours worked between 1600 hours and 2200 hours on any weekday, on any and all shifts

regardless of start or finishing times.

[18] The Respondent contends that the "extended span of ordinary hours" loading under

clause 4.3.3(a) of MOCA 3 should be applied only to shifts that finish after 1800 hours,

but that ordinary hours from 1600 hours onwards on those shifts attract payment of the

loading.

Approach to resolving the issues

[19] At the request of the Commission, the parties made submissions about the legal

principles that guide the Commission in answering Questions 1 and 2.

8

[20] In United Voice, Industrial Union of Employees, Queensland v State of Queensland

(Department of Education, Training and Employment)3 ("United Voice"), the

Commission was referred to the following decisions of the Commission, the Industrial

Relations Court of Australia, and the Federal Court of Australia to inform the approach

that the Commission should take to answering the questions in that case: Kucks v CSR

Ltd,4 Short v F W Hercus Pty Ltd,5 Australian Workers' Union of Employees,

Queensland v James Hardie Australia Pty Ltd,6 and United Firefighters' Union of

Australia, Union of Employees Queensland v Department of Community Safety -

Queensland Fire and Rescue Service.7

[21] The propositions relevant to this case that emerge from those authorities are, in

summary:

(a) deciding what an existing award means is a process quite different from

deciding what might fairly be put into an award;8

(b) narrow or pedantic approaches to the interpretation of an award are

misplaced. The search is for the meaning intended by the framer(s) of the

document, bearing in mind that such framer(s) were likely to be of a

practical bent of mind: they may well have been more concerned with

expressing an intention in ways likely to have been understood in the

context of the relevant industry and industrial relations environment than

with legal niceties or jargon;9

(c) ordinary or well-understood words are in general to be accorded their

ordinary or usual meaning;10

(d) such meaning may be found in a reputable dictionary;11

(e) extrinsic materials may be used in the interpretation of a certified agreement

to resolve an ambiguity in the meaning of a clause12 or if the language is

susceptible of more than one meaning;13

3 United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education,

Training and Employment) [2014] QIRC 107. 4 Kucks v CSR Ltd (1996) 66 IR 182. 5 Short v F W Hercus Pty Ltd (1993) 40 FCR 511. 6 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG

280. 7 United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety

- Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>. 8 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 9 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 10 Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J). 11 Kucks v CSR Limited (1996) 66 IR 182, 185 (Madgwick J), including reference to the "estimable" Macquarie

Dictionary. 12 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG

280, 281 (Hall P). 13 Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 519 (Burchett J); Codelfa Construction Pty Ltd v State Rail

Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of

Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84)

- Decision <http://www.qirc.qld.gov.au>, [42], [91]-[93] (Industrial Commissioner Thompson).

9

(f) evidence of prior negotiations to establish objective background facts which

were known to both parties and the subject matter of the agreement is

admissible;14

(g) evidence consisting of statements and actions of the parties which are

reflective of their actual intentions and expectations is not receivable.15

[22] Both parties referred to the following principles listed in the decision of a Full Bench of

the Fair Work Commission in Australasian Meat Industry Employees Union v Golden

Cockerel Pty Ltd ("Golden Cockerel"):16

1. "The AI Act17 does not apply to the construction of an enterprise agreement

made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether

an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in

determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding

circumstances will not be admitted to contradict the plain language of the

agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one

meaning then evidence of the surrounding circumstances will be admissible to

aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the

objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to

establish objective background facts known to all parties and the subject

matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common

assumption.

14 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG

280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337,

352 (Mason J); see also Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 518, 520 (Burchett J); United

Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety -

Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>, [70]-[71]

(Thompson C). 15 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG

280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337,

352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of

Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au>,

[70]-[71] (Thompson C). 16 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41]. 17 Acts Interpretation Act 1901 (Cth).

10

7. The resolution of a disputed construction of an agreement will turn on the

language of the Agreement understood having regard to its context and

purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision's place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which

it operates.

9. Where the common intention of the parties is sought to be identified, regard is

not to be had to the subjective intentions or expectations of the parties. A

common intention is identified objectively, that is by reference to that which a

reasonable person would understand by the language the parties have used to

express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement

to achieve what might be regarded as a fair or just outcome. The task is always

one of interpreting the agreement produced by parties."

[23] The Respondent submits that those principles provide some useful clarification of the

principles identified by the Commission in United Voice. The Applicant submits that the

decision in the Golden Cockerel case supports the principles identified by the Commission

in United Voice.

[24] I approach the issues in these proceedings with those propositions in mind and will

consider the meaning of "extended span of hours arrangement" in clause 4.3.3:

(a) having regard to the words and phrases used in clauses 4.2 and 4.3 of

MOCA 3;

(b) by reference to the relevant clauses of MOCA 2; and

(c) in light of the negotiations that preceded clause 4.3 of MOCA 3.

Question 1: Some preliminary issues

[25] Evidentiary issues: The Respondent objected in writing to much of the affidavit

evidence of Dr David Spain. Those objections were provided on the afternoon of the

Friday before the Monday on which the hearing commenced and, for various reasons,

were not ruled on at the commencement of the hearing. Rather, the affidavit was

admitted into evidence (Exhibit 2) subject to the objections being dealt with

subsequently. It is necessary to rule on those objections in order to determine how much

of that affidavit and related evidence should be considered when deciding this matter.

[26] The Applicant submits that the evidence of Dr Spain was led:

11

(a) to negate any suggestion of an ambiguity in how clause 4.3.3(a) is to be

interpreted; and

(b) to show that there was no shared intention between the parties or common

understanding between the parties in relation to the application of that clause.

Although the purpose for leading that evidence was explained in those submissions, the

admissibility of the evidence is to be determined by reference to its nature.

[27] In essence, the Respondent objects to the admissibility of evidence:

(a) that, under MOCA 3, certain doctors had not been paid the loading for certain

hours; and

(b) of email correspondence in October 2013 (well after MOCA 3 commenced)

with two officers of Queensland Health (Benedicto Reyes and Sarah Lock),

and other communications about the interpretation of the subject clause by

Queensland Health.

The Respondent acknowledges that if its objection is upheld, the Payroll Portfolio

document "Business Requirements Specification MOCA EB3 2012 - 25% loading for

Extended Hours (Evening and Night Shifts)" attached to the affidavit of Mr Goldman

(Exhibit 1 DG9) must also be excluded from the Commission's consideration of this

matter.

[28] In support of its submission, the Respondent relies on decisions of the Commission,18

the Australian Industrial Court, the Federal Court of Australia and the Industrial Court

of Queensland.

[29] In the 1976 case of Seamen's Union of Australia v Adelaide Steamship Co Ltd, the

Australian Industrial Court considered an application for the interpretation of an

industrial award. During the hearing, the respondents sought to have admitted evidence

of the conduct of the parties subsequent to the making of the award. The Court reviewed

recent authorities and followed19 a recent decision of the House of Lords in FL Schuler

AG v Wickman Machine Tool Sales Ltd20 that in general an agreement could not be

construed in the light of the subsequent actions of the parties.

[30] In Printing & Kindred Industries Union & Anor v Davies Bros Ltd, Gray J, in the

Federal Court of Australia Industrial Division, referred to an evidentiary issue

concerning the conduct of the parties. He stated that the court "must be wary of

admitting the evidence" and referred to the decision in Seamen's Union of Australia v

Adelaide Steamship Co Ltd that stated that evidence of conduct of the parties subsequent

to the making of an award was inadmissible, even for the purpose of resolving an

ambiguity in the terms of the award.21

18 See State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of

Employees [2014] QIRC 176, [61] (Thompson C). 19 Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 445 (JB Sweeney, Evatt, St

John JJ) 20 FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. 21 Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444, 452.

12

[31] Those decisions were followed by Hall P in Brisbane City Council AND Australian

Rail, Tram and Bus Industry Union of Employees, Queensland Branch when he stated

that the "better view is that conduct of the parties subsequent to the making of an award

is not admissible even for the purpose of resolving an ambiguity in the terms of the

award."22

[32] That line of authorities was encapsulated in the following statement by Gray J in United

Firefighters' Union of Australia v Country Fire Authority:23

"Great caution must be exercised in attempting to rely upon the conduct of parties

to an award or agreement as an aid in the interpretation of that award or

agreement. Plainly, conduct subsequent to the making of an award or agreement

is inadmissible as an aid to interpretation. See Seamen's Union of Australia v

Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred

Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it

can be shown that there is a history of the use of a particular term with a particular

meaning, sufficient to demonstrate a common understanding between or among

the parties to an award or agreement that the term has that meaning, is there any

possibility that the conduct of the parties can be relied on."

His Honour noted that the evidence in that case went "nowhere near establishing such

a common understanding." The same can be said in the present application.

[33] In the light of that clear line of authority, I have concluded that paragraphs 8 to 13

(inclusive) of Dr Spain's affidavit (and consequently documents DS2 and DS3

mentioned in that affidavit), and any oral evidence in relation to the matters referred to

in those paragraphs, cannot be considered when interpreting the provisions of MOCA

3 in issue in this case. For the same reason, I have not had regard to Payroll Portfolio

document "Business Requirements Specification MOCA EB3 2012 - 25% loading for

Extended Hours (Evening and Night Shifts)."

[34] The Respondent also submitted that:

(a) paragraph 4 of Dr Spain's affidavit was inadmissible for the purpose of

interpreting MOCA 3 because it referred only to Dr Spain's understanding of the

relevant clause and was not evidence of a shared intention or understanding

between the parties;24 and

(b) paragraphs 5 to 7 (inclusive) were irrelevant as they do not relate to the loading

in question.

I agree, and have not given that evidence any weight other than to observe that it provides

some information about the circumstances in which MOCA 3 was developed and supports

a conclusion that there were different views about how clause 4.3.3(a) of MOCA 3 would

operate.

22 Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch

[2004] QIC 7. 23 United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853, [30]. 24 See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason

J); The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167

QGIG 280, 281 (Hall P).

13

[35] The Applicant's submissions in relation to aspects of Mr Brady's evidence are

considered along with that evidence later in these reasons (see [123]-[125]).

[36] Whether the contra proferentem rule applies: The Applicant also submits that, should

an ambiguity be found to exist, the contra proferentem rule applies.25 In essence,26 that is

a rule of construction applied to ambiguous clauses (usually in relation to commercial

documents such as insurance contracts with standard clauses). The rule applies against

the party putting forward the clause in issue,27 particularly if that party drafted the clause

and is the party in whose benefit it is intended to operate. It is often applied to situations

where the parties are of unequal bargaining power, but is applicable to other cases.

However, the rule has little, if any application where the document is in a standard form

prepared by representatives of each party. In other words, it does not apply when both

parties are involved in wording and the inclusion of the ambiguous clause.

[37] In a case involving the construction of insurance policies, the Queensland Court of

Appeal referred to various important principles of construction of such policies and stated

that the contra proferentem rule applies only when the ambiguity cannot be resolved by

those primary rules of construction.28 As the Court stated:29

"The contra proferentem rule has been described as secondary to the primary rule

of construing the contract for the purpose of inferring the parties’ intention, and

as generally no more than a rule of thumb.30 It also has been described as a rule

of last resort31 where other rules of construction fail.32 "

[38] The Respondent rejects the Applicant's submission, contending that it is inappropriate

to apply the rule to a certified agreement, particularly one which was negotiated at length

between its parties. It submits that a certified agreement is not a document which the

"recipient" is unable to negotiate and alter. Rather, certified agreements (certainly MOCA

3) are negotiated at length and, although one party writes the words of the document, the

other party or parties are able to negotiate changes to those words. The evidence in this

matter33 clearly shows that the Applicant sought and obtained a number of changes to

MOCA 3. Accordingly, the Respondent submits that the contra proferentem rule should

not apply in this case.

[39] In support of its submission, the Applicant relies on the decision of Hall P in The

Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty

Ltd.34 ("James Hardie") The only issue on appeal in that case was the correct construction

25 Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2011] 167 QGIG

280, 281. 26 See e.g. Butterworths Australian Legal Dictionary, 1997, 263. 27 The Latin contra proferentem means "against the offeror" and the rule is also known as interpretation against

the draftsman. 28 Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [32]-[39]. 29 Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [38]. 30 Johnson v American Home Assurance Company (1998) 192 CLR 266; Carter JW, Contract Law in Australia

6th ed, LexisNexis, Chatswood, 2012 at [14-03]-[14-04]. 31 Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533, 554; Johnson v American Home Assurance

Company (1998) 192 CLR 266, 274- 275. 32 AMP Fire & General Insurance Co Ltd v Maros Construction Co (Qld) Pty Ltd [1968] QWN 11. 33 See the affidavits of Mr Goldman and Mr Brady. 34 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167

QGIG 280.

14

of a clause of a particular certified agreement. Hall P stated that the construction

contended for by the Appellant in that case conformed to "a literal meaning of the words

used." The Respondent sought to go to extrinsic materials both to create and to resolve

an ambiguity in the subject clause. A document distributed to employees who were to

vote upon the certified agreement, and which was an express attempt to explain what the

proposed certified agreement meant, was admissible as an "objective background fact."

The passage in that document which concerned the subject clause was itself ambiguous.

Hall P wrote:35

"I accept the submission that the ambiguity in the explanation of the then putative

Certified Agreement taints with ambiguity the Certified Agreement itself.

However, in resolving the ambiguity, in circumstances in which the authors of the

document were servants and agents of the respondent and the document was

(intentionally) drafted for and distributed to lay persons who, looking at the wage

rates were in humble circumstances, I can think of no reason why the ambiguity

should not be resolved against the respondent who now seeks to avoid an

obligation in reliance upon a particular resolution of the ambiguity: compare

Cheshire and Fifoot's Law of Contract, 7th Australian edition, 1997, Ed Seddon

and Ellinghaus at para. 10.37. The "contra proferentem" rule is a contract rule

but the Latin maxim from which it derives is applicable to all written instruments,

see Maye v Colonial Mutual Assurance Society Ltd (1924) 35 CLR 14 at 26 to 27

per Isaacs ACJ."

[40] It is clear that the decision in that case did not apply the contra proferentem rule to the

certified agreement, but only to an explanatory document prepared to assist employees

who were to vote on the certified agreement.

[41] The issue in the present case is whether the contra proferentem rule might apply to a

clause of MOCA 3 and/or to particular explanatory documents prepared in relation to

MOCA 3.

[42] The evidence summarised later in these reasons36 clearly indicates the extent to which

the parties negotiated the terms of what became MOCA 3, including clause 4.3.3(a).

There is no evidence to suggest that the subject clause was imposed unilaterally, or that

its terms were not the product of negotiation and re-drafting. Indeed, the evidence shows

the extent to which it was recast towards the end of the negotiations. There are settled

principles of construction which the Commission should proceed to apply in ascertaining

the meaning of that clause. Accordingly, I am not satisfied that the contra proferentem

rule could or should be extended to the clause of MOCA 3 in issue in this case.

[43] The possible application of the rule to particular explanatory documents prepared in

relation to MOCA 3 is considered later in these reasons (see [183]-[185].

35 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167

QGIG 280, 282. 36 See e.g. [102]-[140].

15

The meaning of "extended span of hours arrangement" in clause 4.3.3 of

MOCA 3: a textual approach

[44] The dispute between the parties has arisen because of what is said to be the lack of

clarity in the meaning of the expression "extended span of hours arrangement" in clause

4.3 of MOCA 3, particularly as the expression operates in relation to clause 4.3.3(a).

[45] Each SMO is entitled to be paid a loading only if he or she is working in an "extended

span of hours arrangement" at the material time. Otherwise they do not qualify for the

loading or loadings described in clause 4.3.3.

[46] The alternative readings of clause 4.3.3(a) are that:

(a) the loading applies to all ordinary hours worked between 1600 hours and 2200

hours on any weekday, on any and all shifts regardless of start or finishing times

(as the Applicant contends); or

(b) the loading applies only to ordinary hours worked between 1600 hours and 2200

hours on shifts that finish after 1800 hours (as the Respondent contends).

[47] The Respondent submits that the difference between the parties comes down to whether

the "arrangement" which is the trigger for the allowance means:

(a) "a shift worked into extended hours (post 1800 hours) as part of an arrangement

to do so;" or

(b) "the entire roster within which such a shift occurs."

[48] Having regard to the wording of Question 1, the starting point for the Commission is to

determine whether the phrase "extended span of hours arrangement" has a plain

meaning or whether it contains an ambiguity.

[49] Respondent's submissions: The Respondent submits that the expression "extended

span of hours arrangement" in clause 4.3:

(a) is not defined in MOCA 3;

(b) does not have a notorious meaning in industrial jurisprudence;

(c) does not have a clearly articulated meaning; and

(d) is susceptible of more than one meaning.

[50] Although the expression is not defined, the Respondent submits that some components

of it are clear. In particular:

(a) it is intended to encompass an "arrangement" which is, in context, a mutually

agreed manner in which the parties conduct themselves in relation to a particular

subject, the details of which are not themselves prescribed in the agreement;

16

(b) the subject of the "arrangement" is the "span of hours" which is the lower and

upper limits of the hours of the day within which ordinary hours of work are or

can be performed without incurring overtime; and

(c) the span of hours is described as "extended," which means that it exceeds a

boundary or standard which might otherwise apply, or which has existed in the

past. An obvious example of such a boundary is the ordinary span of hours

which apply to other similar employees who do not have such an arrangement.

The Respondent submits that, when those elements are taken together, the expression

"extended span of hours arrangement" in clause 4.3.3 means an arrangement whereby

an SMO works a shift which contains ordinary hours which are worked outside the

normal span of Ordinary Hours that would apply to a "non-extending" SMO who is not

engaged in such an arrangement.

[51] The Respondent also submits that where a term or expression (such as "extended span

of hours arrangement") is susceptible to more than one meaning, an ambiguity exists

which allows the Commission:

(a) to have regard to the context and purpose of clause;

(b) to use extrinsic evidence to aid in its interpretation;

(c) to consider evidence of prior negotiations to establish the objective background

facts which were known to both parties and the subject matter of the agreement;

(d) not to receive evidence consisting of statements and actions of the parties which

are reflective of their actual intentions and expectation; and

(e) to adopt a practical approach.

[52] As this is not a case where the expression "extended span of hours arrangement" has a

plain meaning, evidence of the surrounding circumstances will be admissible to aide the

interpretation of the agreement.37

[53] The Respondent also submits that:

(a) it is now well-established in the authorities that a generous approach to the

admission of extrinsic materials to expose an ambiguity, as well as to resolve it,

is appropriate;38

(b) in relation to establishing whether an ambiguity exists, the Commission should

generally err on the side of finding an ambiguity in circumstances where there

37 See Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41]

principles 4 and 5. 38 Queensland Police "Union of Employees" and Commissioner of Police (2000) 164 QGIG 16, 16 (Hall P);

Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] QIC 34, (2001)

167 QGIG 280, 281 (Hall P).

17

are rival contentions advanced, and arguable cases can be made out for more

than one contention.39

[54] Applicant's submissions: The Applicant submits that the passage in contention is

clause 4.3.3(a), and that the meaning of that part of the clause is clear and unambiguous.

However, the Applicant notes that the Respondent appears to contend that the meaning

of that passage is ambiguous and applies only to shifts finishing after 1800 hours.

[55] The Applicant submits that the correct approach to resolving the dispute is for the

Commission to interpret the clause under s 284 of the Industrial Relations Act 1999

("the Act"),40 starting with the actual words of the agreement. If, on the face of it, the

meaning is clear, the onus is on the Respondent to reveal an ambiguity that leads to an

alternative interpretation of that wording. In considering whether such an ambiguity

exists, the Commission may consider the objective background facts known to the

parties during the making of the agreement. Evidence of prior negotiations may be

considered to establish those objective background facts, but not for the purpose of

interpretation.

[56] As noted earlier, the Applicant also submits that, should an ambiguity be found to exist,

the contra proferentem rule applies.

[57] In the Applicant's submission, an extended span of hours arrangement is one where an

SMO works a spread of ordinary hours as set out by clause 4.2(b) and has been

implemented:

(a) by agreement, in the case of SMOs engaged prior to the date of certification of

MOCA 3; or

(b) by direction, in the case of SMOs engaged on or after the date of certification of

MOCA 3.

[58] When answering Question 1, the Commission should consider the correct application

of the loading mentioned in clause 4.3.3(a) and, on deciding that issue, decide whether

the answer to Question 1 is still applicable.

[59] The Applicant submits that, for the Respondent to succeed, it would need to be shown

that clause 4.3.3(a) cannot be interpreted on the basis of its plain meaning (i.e. the

meaning that accords with the Applicant's position). Applying the principles in the

Golden Cockerel decision (quoted at [22]), if an ambiguity does not exist, evidence of

surrounding circumstances will not be admitted to contradict the plain language of the

agreement.

39 Australian Workers' Union of Employees, Queensland v Mount Isa Mines Limited [2003] QIRComm 276;

(2003) 172 QGIG 1870 following Fisher C in The Bacon Factory's Union of Employees, Queensland v Hans

Continental Smallgoods Pty Ltd [2002] QIRComm 18; (2002) 169 QGIG 199, where Fisher C cited the decision

of a Full Bench of the Australian Industrial Relations Commission in Public Transport Corporation of Victoria

v Australian Rail, Tram and Bus Industry Union and Others (Print M2454) where the decision of Gray J in PKIU

v Davies Bros Limited (1986) 18 IR 444, dealing with applications to vary agreements for the purpose of

removing ambiguity, was applied. 40 The Act enables the Commission to give an interpretation of a certified agreement on application by an

organisation, or other person, bound by the agreement. The present case was initiated by Notice of Industrial

Dispute under s 229 of the Act, rather than an application under s 284.

18

[60] Having regard to the words used in clause 4.3.3(a), the Applicant submits that clause

4.3.3(a) can only be read in the way advanced by the Respondent if:

(a) "all" means "not all"; or

(b) "Ordinary Hours" excludes hours between 1600 hours and 1800 hours on shifts

that finish at or before 1800 hours, but includes hours between 1600 hours and

1800 hours on shifts that finish after 1800 hours.

[61] The Applicant submits that "all" cannot be ambiguous to the extent that it means its

antithesis "not all." "All" is simply not susceptible to more than one meaning in the

way required for the Respondent to succeed. Consequently, and based on Principle 4

in the Golden Cockerel case, evidence of surrounding circumstances need not be

considered as it cannot be admitted to contradict the plain language.

[62] As to "Ordinary Hours," the Applicant submits that the Respondent would have to show

that the expression is capable of meaning different things depending on the starting and

finishing times in the shift containing the "Ordinary Hours." However, "Ordinary

Hours" is defined in clause 4.2 (see [10]).

[63] The Applicant also submits that if the Respondent wishes to challenge the otherwise

plain meaning of the agreement, it would need to draw the Commission's attention to

evidence of surrounding circumstances which show an ambiguity. The Applicant infers

that, for that purpose, the Respondent relies on the following circumstances to reveal

what it claims is an ambiguity:

(a) the use of the term "evening shift" in the Frequently Asked Questions ("FAQ")

document in relation to MOCA 3 sent out by the Respondent (Exhibit 1, DG8)

and its repetition on transcript in relation to the certification of MOCA 3 which

reveals an intention that the loading would not be paid on shifts other than an

evening or night shift;

(b) the contention that the definitions of "Ordinary Hours" in clause 4.2(a) and

clause 4.2(b) are co-dependent on each other, and the use of the term "Ordinary

Hours" in clause 4.3.3(a) needs to consider the meaning of that term in both

clause 4.2(a) and clause 4.2(b);

(c) Mr Brady's statement that it was never in the contemplation of the parties that a

loading would be paid on any ordinary hours for shifts finishing at or before

1800 hours.

[64] The Applicant submits that the correct application of the loading mentioned in clause

4.3.3(a) is clear and unambiguous, and there is no evidence to which the Commission

could have regard that would demonstrate a "hidden ambiguity." If that is so, the

Applicant submits, the Respondent is asking the Commission to effectively rewrite

clause 4.3.3(a) to the following effect:

"A Senior Medical Officer working Ordinary Hours in an extended span of hours

arrangement between 0700 hours and 2200 hours will be paid according to one of

the following:

19

(a) A loading of 25% of the ordinary rate for all Ordinary Hours worked between

1600 hours and 2200 hours on any weekday, but only where the shift finishes

after 1800." (Emphasis added)

[65] In the Applicant's submission, although the Respondent might want the clause to be

read in that way, such an application of the loading would not be an interpretation of

the existing words, but would effectively rewrite the agreement contrary to Principle 10

in the Golden Cockerel case:

"The task of interpreting an agreement does not involve rewriting the agreement

to achieve what might be regarded as a fair or just outcome. The task is always

one of interpreting the agreement produced by parties."

[66] Consideration: The submissions of the parties take different approaches to the question

of what in clause 4.3 or 4.3.3(a) is or might be ambiguous. While the Respondent

addressed the possible meaning of the expression "extended span of hours arrangement"

in abstract terms, the Applicant focused on the potential operation of that expression in

clause 4.3.3(a), which is the substantive issue in this case.

[67] It is appropriate to deal first with the meaning of the expression "extended span of hours

arrangement."

[68] The Applicant sought to separate, or at least distinguish between, the two components

of the definition of "Ordinary Hours" in clause 4.2 of MOCA 3. Paragraph (a) of the

definition refers to SMOs not working on an extended hours roster, and specifies that

their 80 hours per fortnight are to be worked between 0700 hours and 1800 hours

Monday to Friday. By comparison, paragraph (b) of the definition refers to SMOs

working on an extended hours roster and does not specify the span of hours within

which the 80 hours per fortnight are to be worked. Rather, it states that the 80 hours

per fortnight are to be worked as part of the rostered ordinary hours at times and on days

as dictated by the employee's extended hours roster in accordance with clause 4.3 or

4.3.4. As noted earlier, clause 4.3.4 deals with work by SMOs between 2200 hours and

0700 hours, and is not relevant to the substantive issue in these proceedings. It is clear

that the Ordinary Hours referred to in paragraph (b) of the definition comprise the period

0700 hours to 2200 hours Monday to Sunday (and, in "exceptional circumstances",

could also include worked between 2200 hours and 0700 hours).

[69] Although the two components of the definition of "Ordinary Hours" deal with separate

circumstances, and the content of paragraph (b) is determined by reference to a roster

prepared in accordance with clause 4.3 or clause 4.3.4, it is appropriate to ascertain part

of the meaning of paragraph (b) by reference to the definition in paragraph (a). The

hours of work for SMOs to whom paragraph (a) applied were limited to a specified span

of hours. It is reasonable to infer that, whatever hours were included in an "extended

hours" roster for SMOs covered by paragraph (b) of the definition, those hours went

beyond the span of hours referred to in paragraph (a), i.e. after 1800 hours.

[70] Having considered the expression "extended span of hours arrangement" in its context

in MOCA 3, I have concluded that:

(a) the expression "extended span of hours arrangement" in clause 4.3 and 4.3.3(a)

of MOCA 3 refers to an arrangement concerning the hours of work to be

20

undertaken by a particular SMO on a particular day (or days) from Monday to

Sunday;

(b) each arrangement would be entered into under MOCA 3 and, although the terms

of the arrangement are not prescribed by MOCA 3, the hours during which each

arrangement could operate were limited by MOCA 3;

(a) the span of hours for each arrangement would extend beyond the Ordinary

Hours applicable to SMOs who were not working on an extended hours roster

(i.e., the period 0700 hours and 1800 hours Monday to Friday) and would

include some part of the period between 0700 hours and 2200 hours Monday to

Sunday.

In summary, the expression "extended span of hours arrangement" in clause 4.3 means

an arrangement in accordance with which an SMO works a shift that includes

Ordinary Hours that are worked outside the normal span of Ordinary Hours (i.e.

outside the period between 0700 hours and 1800 hours Monday to Friday).

[71] That conclusion provides the basis for resolving the substantive issue in this case,

namely whether an SMO who was on an extended span of hours arrangement that

included work between 1600 hours and 1800 hours on a particular week day was entitled

to be paid the 25 per cent loading.

[72] However, in light of the submissions of the parties, I consider that there is not just a

disagreement between them but that the disagreement arises from the meaning and

application (at least to clause 4.3.3(a)) of the undefined expression "extended span of

hours arrangement" used in clause 4.3.3.

[73] Accordingly, I am satisfied that clause 4.3.3(a) is ambiguous or susceptible to more than

one meaning. In light of the principles set out above it is both permissible and

appropriate to ascertain the meaning of clause 4.3.3(a) having regard to the context and

purpose of the clause, to use extrinsic evidence in aid of its interpretation, and to

consider evidence of prior negotiations to establish the objective background facts

which were known to both parties and the subject matter of the agreement.

The meaning of "extended span of hours arrangement" in clause 4.3.3 of

MOCA 3 in light of relevant clauses in MOCA 2: a comparative approach

[74] The Statement of Agreed Facts recites that clause 4.3.3 "combined and replaced" the

payment arrangements for extended hours contained in the previous agreement, MOCA

2, which relevantly provided as follows:

"6.3 Extended Hours of Work - Senior Medical Officers

6.3.1 Extended Hours of Work

Extended hours of work arrangements may be implemented for senior medical

officers between the hours of 7.00am to 10.00pm, Monday to Sunday.

In recognition of the fact that senior medical officers have traditionally worked

ordinary hours between 8.00am and 6.00pm Monday to Friday, senior medical

21

officers who enter into extended hours arrangements will be entitled to the

payment of a flexibility allowance of 10% for any ordinary time worked

between Monday and Friday where the major portion of the day is worked

between the hours of 4.00pm and 7.00am. (Emphasis added)

….

6.3.8 Payment for Working Extended Hours

(a) Arrangements implemented following certification of this agreement

(i) A senior medical officer will receive 15% loading for ordinary

time worked between Monday and Friday where the major

portion of their rostered hours on that day is worked between

the hours 4.00pm and 10.00pm. The 15% loading is in addition

to the flexibility allowance provided for in clause 6.3.1 and

neither of these are payable in addition to overtime;

(ii) (A) Where a senior medical officer ceases their ordinary hours

of duty after 6.00pm, that employee must be paid an

allowance of 15% per hour for all time worked after

6.00pm;

(B) Clause 6.3.8 (a)(ii)(A) does not apply to an employee

entitled to the payment under clause 6.3.8(a)(i), or to

weekend penalty rates;

(C) In calculating the allowance prescribed in this clause

payment must be made to the nearest quarter of an hour.

(iii) Where the majority of ordinary work is performed on Saturday

all related continuous ordinary hours of work will be paid at

time and a half;

(iv) Where the majority of ordinary work is performed on Sunday

all related continuous ordinary hours of work will be paid at

double time;

(v) All ordinary work performed on Good Friday, the 25th day of

April (Anzac Day), Christmas Day, New Years Day, the 26th

day of January (Australia Day), Easter Monday, the Birthday

of the Sovereign and Boxing Day will be paid at time and a

half;

(vi) All ordinary work performed on Labour Day, Show Day and

Easter Saturday will be paid at double time and a half;

(vii) No entitlement exists for the payment of a Flexibility

Allowance as provided in clause 5.8.6 of the District Health

Services - Senior Medical Officers' and Resident Medical

Officers' Award - State 2003;

22

(viii) At least half an hour meal break to be taken during the

afternoon or evening where the major portion of ordinary hours

are worked between the hours of 4.00pm and 10.00pm (or

4.00pm to 8.00am in relation to clauses 6.3.6 or 6.3.8 (b)),

which can be taken as a crib break and counted as work time in

those cases where the employee remains on duty on site during

the meal break period or attends official meetings during such

period."

[75] The references in those clauses to "ordinary hours of work" must be read by reference

to clause 6.2, the relevant parts of which provided:

"6.2 40 hour week - Senior Medical Officers

6.2.1. The ordinary hours of work for senior medical officers are 40 hours a

week within the span of 7am to 6pm, Monday to Friday. The ordinary hours of

work may be performed on one of the following bases, most suitable to the

particular work location, after consultation with, and giving reasonable

consideration to the wishes of the employee concerned:

(a) By officers working 8 continuous ordinary hours (excluding the meal

break) each day; or

(b) By officers working less than 8 continuous ordinary hours (excluding

the meal break) each day on one or more days each work cycle; or

(c) By officers working more than 8 continuous ordinary hours (excluding

the meal break) and rostering employees off on various days of the week

during a particular work cycle, so that each employee has additional days

off during the cycle.

6.2.2. Subject to the provisions of the hours of duty clause, officers may agree

that the ordinary hours of work are to exceed 8 ordinary hours on any

one day up to a maximum of 10 hours (as prescribed in the hours of duty

clause), or up to 12 ordinary hours on weekends or public holidays, thus

enabling standard ordinary hours of duty to be completed in fewer days

within the work cycle."

[76] It is clear from those clauses that are relevant to the present case that SMOs who entered

into "extended hours arrangements" between 0700 hours and 2200 hours Monday to

Sunday (as compared with the ordinary hours of work between 0700 hours and 1800

hours Monday to Friday) were entitled to receive:

(a) a 15 per cent loading where the major portion of the rostered hours of ordinary

time worked on a day between Monday and Friday was worked between 1600

hours and 2200 hours;

(b) an allowance of 15 per cent per hour for all time worked after 1800 hours where

the SMO ceased their ordinary hours of duty after 1800 hours but the major

portion of their rostered hours on that day was not worked between 1600 hours

and 2200 hours;

23

(c) a flexibility allowance of 10 per cent for any ordinary time worked where the

major portion of the ordinary time worked on a day between Monday and Friday

was worked between 1600 hours and 0700 hours. (Emphasis added)

The 15 per cent loading payable under (a) would be in addition to the flexibility

allowance payable under (c).

[77] On that basis, an SMO who entered into extended hours arrangements between 0700

hours and 2200 hours and who worked eight continuous ordinary hours on a day

between Monday and Friday would be entitled to receive:

(d) a 15 per cent loading where the major portion of the rostered eight hours was

worked between 1600 hours and 2200 hours; and

(e) a flexibility allowance of 10 per cent for any ordinary time worked where the

major portion of the eight hours was worked between 1600 hours and 0700

hours; or

(f) an allowance of 15 per cent per hour for all time worked after 1800 hours where

the SMO ceased their ordinary hours of duty after 1800 hours but the major

portion of their rostered eight hours on that day was not worked between 1600

hours and 2200 hours.

[78] Respondent's submissions: In making this part of its submission, the Respondent

quotes Principle 7 listed in the Golden Cockerel decision:

"The resolution of a disputed construction of an agreement will turn on the

language of the agreement understood having regard to its context and purpose."

[79] The Respondent also quotes from the reasons for decision of Kirby J in Amcor Limited

v Construction Forestry Mining and Energy Union41where his Honour (who was in the

majority) wrote:

"The nature of a document, the manner of its expression, the context in which it

operated and the industrial purpose it served combined to suggest that the

construction to be given to cl 55.1.1 should not be a strict one but one that

contributes to a sensible industrial outcome such as should be attributed to the

parties who negotiated and executed the agreement. Approaching the

interpretation of the clause in that way accords with the proper way, adopted by

this Court, or interpreting industrial instruments and especially certified

agreements."

[80] Kirby J agreed with the following passage in the reasons of Madgwick J in Kucks v CSR

Limited (portions of which are referred to at [21](b)):

"Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are

misplaced. The search is for the meaning intended by the framer(s) of the

document, bearing in mind that such framer(s) were likely of a practical bent of

41 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96].

24

mind: they may well have been more concerned with expressing an intention in

ways likely to have been understood in the context of the relevant industry and

industrial relations environment than with legal niceties or jargon. Thus, for

example, it is justifiable to read the award to give effect to its evident purposes,

having regard to such context, despite mere inconsistencies or infelicities of

expression which might tend to some other reading. And meanings which avoid

inconvenience or injustice may reasonably be strained for. For reasons such as

these, expressions which have been held in the case of other instruments to have

been used to mean particular things may sensibly and properly be held to mean

something else in the document at hand."42

[81] In the Respondent's submission, the Commission has the advantage of a clearly

prescribed industrial context and purpose behind the use of the phrase "extended span

of hours arrangement" in the drafting of clause 4.3.3. This is, it submits, a textbook

example of circumstances where this context and purpose must inform the

Commission's interpretation of the clause.

[82] Specifically, as expressly set out in clause 4.3.3 of MOCA 3, the purpose of the loading

in clause 4.3.3(a) was to replace:

(a) the 10 per cent flexibility allowance for any ordinary time worked between

Monday and Friday where the major portion of the day is worked between 1600

hours and 0700 hours (clause 6.3.1 of MOCA 2); and

(b) a 15 per cent loading for ordinary time worked between Monday and Friday

where the major portion of their rostered hours on that day is worked between

1600 hours and 2200 hours (clause 6.3.8(a)(i) and (a)(ii)(A) of MOCA 2).

[83] The "replaced" allowances/loadings in MOCA 2:

(a) totalled 25 per cent, which is the same as the replacement figure in MOCA 3;

(b) applied only to the hours and work on the particular shift which met the criteria

for payment;

(c) did not apply to the entire roster worked by an "extending" SMO such that if

one shift met the conditions for the payment of the loading/allowance, then the

loading/allowance also applied to all shifts on that roster; and

(d) only ever applied to shifts that finished after 1800.

[84] The Respondent submits that the statement in clause 4.3.3 that the loading in MOCA 3

"replaced" two nominated allowances and a nominated loading in MOCA 2 is a clear

indication that those replaced payments were continued in substance into MOCA 3 in

compensation for the same matters for which the replaced provisions in MOCA 2 were

agreed. There is no other explanation for such a "replacement" declaration, which is

reinforced by the inferred logic that the purpose of clause 4.3.3 was to simplify

processes and payment arrangements for the shifts and assist the Respondent's payroll

42 Kucks v CSR Limited (1996) 66 IR 182, 184

25

system by rolling up two allowances paid to employees for evening and night shifts as

provided for in MOCA 2.

[85] In the Respondent's submission, it would be a radical and illogical departure from the

"replacement" declaration to incidentally, and without any explanation or comment to

that effect, expand the types of shifts to which the loading would apply such that it could

apply to shifts to which those allowances did not apply under MOCA 2 (e.g. those that

finished in unextended Ordinary Hours such as shifts that finished at or before 1800).

The Respondent points to the uncontested evidence of Mr Brady that none of the union

parties to MOCA 3 ever suggested to him that the loading should apply to shifts

finishing at or before 1800.

[86] Nor (the Respondent submits) has the Applicant attempted to put any evidence to the

Commission that the Applicant ever suggested, requested or put in a claim that the

application of the loading should change from one that applied to individual shifts that

finished in extended hours, to one that applied to entire rosters including shifts that

finished in ordinary hours. Such evidence would have contradicted the express

"replacement" declaration and would have provided for a "wholesale expansion of the

fundamental basis" upon which the two MOCA 2 allowances were agreed and would

permit the payment to be made on Ordinary time shift in which there was no extension

at all. Such a change would not be a "replacement" but a repeal and significant recasting

of the basis for the entitlement. The payment under MOCA 2 was on account of an

extension arrangement which was described in such a way as being confined to working

"extended" ordinary hours beyond the "traditional" finish time of 1800 hours (see

MOCA 2 clause 6.3.1). The Respondent submits that to agree to consolidate the two

payments into one "identical 'replacement' payment" was to agree that, unless expressly

provided, the original "extension" concept for the payment on a shift-by-shift basis was

also intended to be retained.

[87] In support of its submission, the Respondent notes that Dr Spain:

(a) expressed his understanding of the purpose behind clause 4.3.3(a) of MOCA 3

as being to "simplify payment arrangements" for what he termed "evening

shifts;" and

(b) stated that a shift between 0730 hours and 1800 hours would not be an "evening

shift."

[88] The Respondent submits that:

(a) the only evidence of the purpose of clause 4.3.3(a) shows that the only rationale

for inserting the 25 per cent extended span of hours loading was to simplify

payment arrangements for the shifts to which the predecessors of that clause

applied (shifts that finished after 1800 hours); and

(b) there is no evidence before the Commission that the purpose of clause 4.3.3(a)

was to expand the types or numbers of shifts to which the loading applied so as

to include non-extended shifts.

[89] Furthermore, Mr Brady explained that the payment of the loading was brought forward

from 1800 hours to 1600 hours to overcome a potentially significant reduction in the

26

amount of the loading. The focus on the 1600 hours commencement of the loading (for

late shifts only) led to the removal of any reference to 1800 hours from the clause.

According to his evidence, the after 1800 hours qualifier was not necessary in that

clause because there was never any contemplation, or discussion, of a penalty payment

for an ordinary hours shift.

[90] The Respondent submits that it is not surprising that Mr Brady had not encountered

such a concept. The payment of a type of overtime penalty expressly introduced to deal

with ordinary hours being worked outside the ordinary span of hours is not novel, and

was done in MOCA 2. However, the payment of the same penalty to SMOs when they

were working ordinary hours within the ordinary span of hours is extraordinary, and so

unlikely as to be well outside Mr Brady's extensive experience.

[91] The Respondent submits that, consistent with a history of clause 4.3.3(a) of MOCA 3

from MOCA 2, a fundamental element of the "extended span of hours arrangement" is

that an SMO is only paid the loading in clause 4.3.3 for shifts worked outside ordinary

hours as provided for by the arrangement. In other words, an SMO:

(a) is only entitled to the loading for working a shift which contains ordinary hours

which are worked outside the normal span of Ordinary Hours that would apply

to a "non-extending" SMO;

(b) is not entitled to the loading for shifts which do not contain ordinary hours which

are worked outside the normal span of Ordinary Hours that would apply to a

"non-extending" SMO.

That meaning is consistent with the history of the provision based in MOCA 2 and in

the supplementary affidavit evidence of Mr Brady.

[92] Applicant's submissions: The Applicant takes issue with the Respondent's submission

that:

(a) the changes made from MOCA 2 to MOCA 3 were not a "repeal and significant

recasting of the basis for the entitlement itself" but were merely a simplification

of the processes and payroll arrangements by rolling up two allowances; and

(b) it would be a radical and illogical departure from the "replacement" declaration

to incidentally, and without any explanation or comment to that effect, expand the

types of shifts to which the loading would apply such that it could apply to shifts

to which those allowances did not apply under MOCA 2.

[93] Rather, the Applicant submits, that is exactly what happened. Under MOCA 2,

compensation for working an extended hours arrangement was based on allowances

being paid for the whole of the shift where the majority of hours (i.e. the "major

portion") within that shift fell after 1600. It did not provide for compensation for every

shift that finished after 1800 or only "evening" shifts. Indeed, many shifts that finished

after 1800 would not have attracted any allowance. For example, it would be possible

to work a 10 hour shift that finished at 2030 and attracted no loading.

27

[94] MOCA 3 introduced a different arrangement for compensation for extended hours and

there were many shifts that would not attract the allowance under MOCA 2 which

attracted the allowance under MOCA 3.

[95] The Applicant submits that under MOCA 3:

(a) the quantum of the allowance remained constant; but

(b) the trigger for the application of the allowance and the hours to which it was

applied were changed significantly.

[96] Consideration: Clause 4.3.3(a) of MOCA 3 was developed by reference to provisions

in clause 6.3 of MOCA 2. That context is expressly and precisely described at the end

of clause 4.3.3 as follows:

"The 25% loading referenced in 4.3.3(a) replaces the following:

- 15% loading for working extended hours provided for in clause 6.3.8(a)(i)

and 6.3.8(ii)(A)43 of MOCA 2

- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."

(Emphasis added)

[97] The use of the word "replaces" does not resolve the substantive issue in this case. There

is no reason to think that "replaces" bears anything other than its usual English meaning.

"Replace" is defined in standard dictionaries to mean:

(a) "1. to fill or take the place of, substitute for (a person or thing): electricity has

replaced gas as a means of illumination.2. To provide a substitute or

equivalent in the place of: to replace a broken vase;"44

(b) "take place of, succeed, be substituted for."45

[98] It is clear from:

(a) a comparison between the relevant clauses in MOCA 2 (clause 6.3.1,

6.3.8(a)(i) and 6.3.8(a)(ii)(A)) and the replacement statement at the end of

clause 4.3.3 of MOCA 3; and

(b) the evidence before the Commission in these proceedings,

that the 25 per cent loading referred to in clause 4.3.3(a) is not identical to, and hence

does not replicate, what was provided for in the relevant clauses of MOCA 2. Rather,

that loading "replaces" the previous loading and allowances in the sense that it takes

the place of, and was included in substitution for, the previous 15 per cent

loading/allowance and 10 per cent flexibility allowance. Nonetheless it is relevant to

observe that payments were made under the replaced MOCA 2 provisions only when

strict "major portion" conditions were met and, in practice, only when SMOs worked

until after 1800 hours.

43 Sic - this should read "6.3.8(a)(ii)(A)." 44 Macquarie Dictionary, Fifth edition, 2009, 1403. 45 The Australian Concise Oxford Dictionary, 1991, 937.

28

[99] In the agreed statement of facts and issues, the parties state that clause 4.3.3 "combined

and replaced the payment arrangements for extended hours contained in" MOCA 2.

The phrase "combined and replaced" indicates in broad terms the overall (and

presumably intended) effect of clause 4.3.3. However, for the reasons just stated, that

clause did not merely combine and replicate the previous arrangements.

[100] Consequently, the replacement clause contains a reference to one of the surrounding

circumstances in which clause 4.3 of MOCA 3 was developed but, because it does not

replicate the full effect of the identified provisions of MOCA 2, does not itself determine

the meaning to be given to clause 4.3.3(a) of MOCA 3.

The negotiations that preceded clause 4.3.3 of MOCA 3

[101] Evidence: The authorities cited earlier provide that (within some constraints) evidence

of prior negotiations is admissible for the purpose of ascertaining the meaning of

MOCA 3. Each witness gave evidence about aspects of the negotiations and

information sessions that preceded MOCA 3 being certified and commencing to operate

from 1 November 2012.

[102] Mr Goldman's evidence: In July 2012, Mr Goldman took over responsibility from

another advocate as the lead negotiator for the Applicant in the negotiations for an

agreement to replace MOCA 2. He gave evidence that, at that stage, the clauses

regarding extended hours had not been finalised. On 16 July 2012, Mr Brady sent an

email to Mr Goldman and attached a draft proposal for extended hours. That document

included the following:

"Payment for Working Extended Hours

(i) Where a senior medical officer ceases their ordinary hours of duty after

6.00pm, that employee must be paid a shift allowance of 25% per hour for all time

worked after 6.00pm;

The 25% shift allowance replaces the following:-

- 15% loading for working extended hours provided for in clause 6.3.8(a)(i) of

MOCA 2

- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Exhibit

1, DG1)

[103] Mr Goldman gave evidence that he distributed that proposal to the Applicant's delegates

involved in the negotiations. They rejected the proposal as it reduced current

entitlements (Exhibit 1 paragraph 5).

[104] On 23 July 2012, Mr Brady forwarded a revised version of the extended hours clause.

It provided:

"Payment for Work in the Extended Span of Ordinary Hours of Work:

7.00am to 10.00pm, Monday to Sunday

29

A senior medical officer working ordinary hours in an extended span of hours will

be paid according to one of the following:

(a) A 25% shift loading for all time worked after 6.00pm where an officer ceases

ordinary hours of work after 6.00pm, in which case the loading must be paid

to the nearest quarter of an hour; OR

(b) A 50% shift loading for ordinary hours worked on Saturday where the major

portion of such is worked between midnight Friday and midnight Saturday;

OR

(c) A 100% shift loading for ordinary hours worked on Sunday where the major

portion of such is worked between midnight Saturday and midnight on

Sunday.

NB The 25% shift loading replaces the following:

- 15% loading for working extended hours provided for in clause 6.3.8 (a)(i)

and 6.3.8 (ii)(A) of MOCA 2.

- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."

(Exhibit 1, DG2)

[105] Mr Goldman gave evidence that the revised version was also rejected by delegates.

Excerpts from emails provided as an exhibit to his affidavit show that, as at 24 July

2012, one delegate wrote that "the 25% loading just for hours worked on the shift is

pathetic/paltry compensation for such a major deterioration in working conditions,

esp compared to the compensation rate that ED SMOs get (i.e. an extra 25% option

A, -PLUS- a loading on after hours as I understand it." Another wrote that he agreed

entirely with that statement, and others in the delegate's email. Dr Mark Coghlan wrote

that he agreed with everything that delegate said and wrote (among other things) that it

was "bizarre to offer only 25% loading for hours worked after 1800 - it is only 37.5%

of what was previously available on the same shift." (Exhibit 1 paragraph 7, and DG3,

emphasis in original)

[106] On 9 August 2012, Mr Brady sent to Mr Goldman an email to which he attached Mr

Brady's "effort to draft an agreement to reflect the outcome" (presumably of the

negotiations to that date). The draft for consultation version of the proposed certified

agreement had extensive tracked changed. For the purposes of the present proceedings,

the relevant clause provided:

"4.3.3 Payment for Work in the Extended Span of Ordinary Hours: 0700

hours to 2200 hours

A Senior Medical Officer working Ordinary Hours in an extended span of hours

arrangement between 0700 hours and 2200 hours will be paid according to one of

the following:

(a) A loading of 25% of the ordinary rate for all Ordinary Hours worked between

1600 hours and 2200 hours on any weekday;

(b) A loading of 50% of the ordinary rate for all Ordinary Hours in a shift worked

on a Saturday; or

30

(c) A loading of 100% of the ordinary rate for all Ordinary Hours in a shift worked

on a Sunday.

The 25% loading replaces the following:

- 15% loading for working extended hours provided for in clause 6.3.8

(a)(i) and 6.3.8 (ii)(A) of MOCA 2.

- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2."

(Exhibit 1, DG4, emphasis added)

[107] That wording is almost identical to the extended hours clause in the final agreement.

Mr Goldman noted that clause 4.3.3 of MOCA 3 contains no qualifier or requirement

for doctors on extended hours arrangements to work past 1800 hours on particular shifts

before the loading was payable on ordinary hours worked between 1600 hours and 2200

hours on that shift. (Exhibit 1 paragraph 9)

[108] Mr Goldman gave evidence that:

(a) he did not recall Mr Brady, or any other negotiator from the Respondent,

advising that the Respondent's position on the final wording of the clause

meant anything other than what was apparent on the face of the wording;

(b) he did not believe anyone from the Respondent informed the Applicant that

they believed a qualifier or requirement for doctors on extended hours

arrangements to work past 1800 hours on particular shifts had been retained

as part of the final clause;

(c) given that the Applicant's delegates had vigorously opposed such a qualifier,

he was certain that if the Respondent's representatives had raised that they

believed such a qualifier still applied, he would have noticed and objected.

(Exhibit 1 paragraphs 10, 11)

[109] The Respondent sent a "Summary of the Proposed Agreement" to its employees. The

document was in the form of a table. The introductory words noted that the table

"summarises some of the main features of the proposed" MOCA 3, and continued:

"Please note this is not an exhaustive list and reference should be made to the full copy

of the proposed agreement." (Exhibit 1, DG6)

[110] That document stated in relation to clause 4.3 Extended Span of Ordinary Hours of

Work:

"Where there is a service need, arrangements for the working of extended hours

by SMOs:

0700 - 2200 Monday to Sunday.

Paid one of the following loadings:

o 25% of the ordinary rate for all Ordinary Hours worked between 1600

hours and 2200 hours on any weekday;

o 50% of the ordinary rate for all Ordinary Hours in a shift worked on a

Saturday; or

o 100% of the ordinary rate for all Ordinary Hours in a shift worked on a

Sunday.

31

It is voluntary for current SMOs but new appointees may be directed to participate

in an extended hours roster.

In exceptional circumstances work may be rostered 2200 - 0700." (Exhibit 1

DG6, Emphasis added)

[111] Mr Goldman gave evidence that the wording of that document reflects the wording in

MOCA 3 and contains no mention of a qualifier or requirement for doctors on extended

hours arrangements to work past 1800 hours on particular shifts before the loading was

payable. (Exhibit 1 paragraph 13)

[112] He provided a copy of the PowerPoint Presentation and notes pages that the Respondent

used to explain the agreement. PowerPoint slide 16 contains the following text under

the heading "Employment conditions:"

"25% shift allowance for work performed after 4pm for extended hours."

The notes to that slide, and Slide 17, include a statement that a shift allowance or loading

of 25% will replace the 10% flexibility allowance and the 15% evening shift allowance

(Exhibit 1, DG7).

[113] Mr Goldman gave evidence that that material does not contain any mention of a qualifier

or requirement for doctors on extended hours arrangements to work past 1800 hours on

particular shifts before the loading was payable. (Exhibit 1 paragraph 15)

[114] The FAQ document sent out by the Respondent includes among the summary list of

"key features" of MOCA 3:

"A 25% shift loading for evening and night shifts as part of an extended hours

roster which will assist to reduce overtime costs." (Exhibit 1, DG8; Exhibit 4, B)

[115] People were directed to various places where the proposed MOCA was displayed or

could be accessed and they were advised that they could find out more information

about MOCA 3 at various locations and forums including information sessions being

held within the Hospital and Health Service.

[116] Mr Goldman gave evidence that the FAQ document does not contain any mention of a

qualifier or requirement for doctors on extended hours arrangements to work past 1800

hours on particular shifts before the loading was payable (Exhibit 1 paragraph 16).

[117] Dr Spain's evidence: In his affidavit, Dr Spain stated that the "new agreement" (that is,

MOCA 3) included "clause 4.3.3(a) that, to the best of my recollection, was explained

as intending to simplify payment arrangements for evening shifts." He stated that

previous arrangements contained wording regarding loadings when the majority of the

shift was after 1600 hours. By his account, all hours of such shifts were paid with

loading. However some evening shifts had majority hours before 1600 hours and no

loading was paid on any hours (Exhibit 2 paragraph 3).

[118] In the course of his oral evidence, Dr Spain stated that he understood that the loading

was payable for shifts completed after 1600 hours, including where a shift was

32

completed at or before 1800 hours, even though, for example, he did not consider a shift

from 0730 hours to 1800 hours to be an "evening shift" but described it as one of the

"ordinary hour shifts".

[119] He described what he understood as a "complete change of the previous arrangements"

under which a person who worked in the afternoon shift would receive a penalty for the

whole of the shift assuming that the work was for more than 50 per cent of the period

after 1600 hours.46 The new arrangements were meant to "simplify matters" and

"clearly said after 4 pm that would be paid." Under the previous arrangement, SMOs

were paid penalties before 1600 hours (in certain circumstances) and under the new

arrangements they were paid penalties only after 1600 hours. Dr Spain recalled that

this was "very clearly looked at" by emergency physicians throughout the state because

it was a significant change.

[120] It was, however, cost neutral for those SMOs working one evening shift each week and

one weekend in four. Others who worked more evening shifts each week and on more

weekends each month would be worse off financially.

[121] Dr Spain gave evidence that he attended a meeting at which slides were shown, FAQ

documents were made available, and the proposed MOCA 3 was shown to participants.

He recalled that the part of the Summary of the Proposed Agreement document which

described clause 4.3.3 was "explored in great detail" because of what he described as

the significant "change to our conditions" which had "pros and cons." According to Dr

Spain, there were discussions during and after the meeting. It seems, however, that no

representative of the Respondent was present. Although Department of Health

materials were considered, people from the union who had been involved in the

negotiations had clarified and explained what was proposed.

[122] Dr Spain also gave written and oral evidence to the effect that:

(a) to the best of his recollection, at no point during the negotiations for MOCA 3 or in

the information put out by the Respondent before the vote on MOCA 3 did he see

or hear any material that indicated the entitlement to the loading was other than that

which is set out in the words of the agreement, i.e. that SMOs would be paid "a

loading of 25% of the ordinary rate for all Ordinary Hours worked between 1600

hours and 2200 hours on any weekday;" and

(b) had such material or explanation been provided by the Respondent as part of the

ballot process he would have noticed that, given that it would have a direct impact

on him (Exhibit 2, paragraphs 14, 15)

[123] Mr Brady's evidence: Mr Brady was the lead member of the Respondent's management

team responsible for negotiating MOCA 3. His role extended to drafting the agreement

in consultation with the union parties to that agreement. He provided two affidavits

(Exhibits 3 and 4) and gave oral evidence at the hearing.

[124] The Applicant:

46 So, for example, Dr Spain said that a person who previously worked from 9.30 am until 8.00 pm would not

be paid for an evening shift.

33

(a) objected to the admissibility of some of Mr Brady's evidence, in particular hearsay

evidence in relation to a discussion between him, Mark Coghlan and Mr Goldman

about the draft version of clause 4.3.3(a), and his statements recording the intention

and shared understanding of the negotiators about the types of shifts to which the

amended version of clause 4.3.3(a) would apply (as contrast with what Mr Brady

intended or understood); and

(b) made submissions to the effect that little or no weight should be given to those and

other parts of his evidence about the negotiations, and the inferences he drew from

them; and

(c) took issue with the content and logic of other aspects of Mr Brady's evidence.

[125] In my opinion, many of the objections and submissions were well made. Their impact

will be apparent in the following discussion of Mr Brady's evidence.

[126] Mr Brady's first affidavit records his understanding that:

"the other parties were of the understanding that an extended span of ordinary

hours arrangement would be one where an employee was rostered to work their

ordinary hours of duty beyond 6.00pm Monday to Friday and would receive a

loading of 25% on those ordinary hours worked after 4.00pm. That is, no loading

was payable unless the employee finished their rostered ordinary hours of work

after 6.00pm." (Exhibit 3, paragraph 8)

The Applicant submits that Mr Brady gave no rationale as to why he believed that

understanding existed.

[127] In support of his conclusion, Mr Brady relied on his statement to the Commission

(constituted on that occasion by Deputy President Bloomfield) on 1 November 2012 in

the course of certification proceedings in relation to MOCA 3. Mr Brady advised

Deputy President Bloomfield about the process surrounding the ballot to determine

whether a valid majority of employees supported the agreement. He referred to affidavit

evidence about the steps taken to ensure compliance with sections 143 and 144 of the

Act. Mr Brady then suggested that "it may be worthwhile to outline a couple of the

features of the agreement." With the agreement of Deputy President Bloomfield, Mr

Brady continued:

"There is an operative date of first of July 2012. It provides for annual wage

increase of 2.5 per cent from first of July 2012, 13, and 14 and also an increase of

2.5 per cent to all-purpose allowances. It also increases the vocational training

subsidy from $1500 per annum to $2,000 per annum. Also to assist with the

delivery of services it is a simplified process for the hospital and health services to

introduce extended hours, rosters for senior medical officers, which includes 25

per cent shift loading for evening and night shift, which is a result of rolling up two

previous allowances which also assists the Queensland Health payroll system."

(Emphasis added)

Mr Brady then outlined other features of the agreement which are not relevant to these

proceedings.

34

[128] During the hearing of the present application there was some focus on Mr Brady's

reference to the 25 per cent shift loading "for evening and night shift." In his affidavit,

Mr Brady suggests that the transcript record of the certification proceedings shows that

the parties were of the "common understanding" that the 25 per cent loading for working

extended hours "was intended to 'roll up' (combine) two allowances paid to employees

who worked evening and night shift. That is, worked an extended hours arrangement."

The two allowances to which he referred were prescribed in clause 6.3.1 (flexibility

allowance) and clause 6.3.8 (payment for working in extended hours arrangement), in

MOCA 2. (Those clauses are considered at [74] to [77] in these reasons for decision.)

[129] Although he was cross-examined at length, Mr Brady's oral evidence can be

summarised relatively briefly as follows:

(a) the ordinary span of hours for senior medical officers over the years had been

from 0700 hours until 1800 hours;

(b) he understood that an "evening shift" was a shift that would finish after 1800

hours;

(c) he understood that an "extended span of hours arrangement" is for work

performed outside ordinary hours (i.e. 0700 hours to 1800 hours) usually on a

regular to semi-regular basis, which is specified in clause 4.3 to be between the

hours of 0700 hours and 2200 hours;

(d) the parties always intended to apply the shift penalty after ordinary hours;

(e) there had never been any contemplation to pay a shift penalty for hours that are

within ordinary hours, indeed it was unheard of;

(f) the extension of payment for an ordinary time shift was never discussed;

(g) after 12 months of discussions about arrangements for extended hours it was

agreed, in light of concerns raised towards the end of the negotiations, to make

a payment from 1600 hours so that, if an SMO had a shift from 1000 hours to

2000 hours the shift penalty would be paid for the last four hours rather than

overtime;

(h) the concept of an extended hours shift was something that had to be worked

outside of ordinary hours, otherwise doctors who worked from 0800 hours to

1800 hours every day could start claiming an extended hours or shift allowance

from 1600 hours to 1800 hours every day;

(i) the concept of ordinary hours being from 0700 hours to 1800 hours applies to

both clause 4.2(a) and clause 4.2(b), and work outside of that is undertaken in

extended hours;

(j) it was not necessary to include the words "only where the shift finishes after

1800" because the concept of ordinary hours being between 0700 hours and

1800 hours was not displaced by the Certified Agreement and there was a mutual

35

intention and understanding between the parties that the loading would only

apply to shifts finishing after 1800 hours;

(k) nowhere else do people get paid penalty rates for ordinary hours.

[130] Mr Brady provided affidavit and oral evidence about a meeting at which, he said, a Dr

Mark Coghlan vociferously raised concerns that if the extended hours were going to

start from 1800 hours there would be a huge disadvantage. Mr Brady said that he

redrafted clause in a way that he thought could address the concern so that payment

could be made from 1600 hours. Mr Brady did not recall the date or form of the meeting

or who attended. He had no notes or minutes of the meeting, or any emails in relation

to it. Mr Goldman was not asked any questions about the meeting. The Applicant

objected to Mr Brady's evidence. I agree. There is no documentation before the

Commission or other corroborating evidence in relation to that alleged meeting.

However, the thrust of what Dr Coghlan is alleged to have said is consistent with his

contribution to the email correspondence in July 2012 (see [105]). I gave no weight to

that evidence, but simply note that Mr Brady redrafted the clause in response to

negotiations.

[131] By comparison with MOCA 3, Mr Brady noted that MOCA 2 provided, in clause 6.3.1,

that:

(a) SMOs had traditionally worked ordinary hours between 0800 hours and 1800

hours Monday to Friday;

(b) the shift payment would be paid after the traditional times that are not subject to

overtime payment;

(c) if the majority of the shift worked by an SMO was after 1600 hours, they were

paid the allowance for the entirety of that shift (e.g. for a shift from 1200 hours

until 2100 hours.

[132] According to Mr Brady, the Respondent wanted to rationalise the amount of allowances

that were paid and saw the shift penalty of 15 per cent and flexibility allowance of 10

per cent as "something that lends itself being combined" with the outcome being 25 per

cent in the way he described. He described this "different arrangement" as combining

the previous penalty and allowance and applying the arrangement in a way that "the

parties agree was a fair compromise … for extended hours," that is, work outside the

normal span of hours. A doctor who wanted to know whether they were entitled to the

allowance would seek advice from HR, payroll or the union, rather than try to interpret

the clauses of MOCA 3.

[133] Mr Brady gave evidence that the FAQ document was prepared as part of the

Respondent's compliance with the legislative requirements for the making of an

agreement. It was one of the key documents that went out to explain the agreement. It

listed as one of the key features of MOCA 3:

"A 25% cent shift loading for evening and night shifts as part of an extended hours

roster which will assist to reduce overtime costs." (Exhibit 1, DG8; Exhibit 4, B)

36

[134] Mr Brady did not recall Together Queensland or the ASMOFQ47 making a claim during

the negotiations that the extended hours 25 per cent payment be paid for hours worked

after 1600 hours regardless of the shift finishing at or before 1800 hours (Exhibit 4

paragraph 4).

[135] The Respondent also prepared a table summarising some of the main features of the

proposed MOCA 3. The statement in relation to clause 4.3 Extended Span of Ordinary

Hours of Work is quoted at [110]. As noted earlier, the summary table effectively

recited the words that became clause 4.3.3(a) of MOCA 3. Its opening words referred

to the working of "extended hours" by SMOs.

[136] Mr Brady agreed that neither the part of the Summary of the Proposed Agreement

dealing with clause 4.3 nor the extract from the PowerPoint slide presentation included

the words "but only when a shift finishes after 1800."

[137] The term "evening shift" was not defined in MOCA 3 or the relevant Award. Mr Brady

referred to the term as a "layman's description about when it would apply" which he

said "is in the evening, not in ordinary day work." He said that it was a descriptor of a

shift that goes into the evening which, to him, would have to go outside ordinary hours.

In his experience, an evening shift has never taken place between 0800 hours and 1800

hours.

[138] He noted that Mr Goldman, the lead negotiator for the Applicant, had given evidence

that he did not agree that the qualifier was not needed because everyone knew of it and

that Mr Goldman said that there was nothing to his knowledge that justified interpreting

clause 4.3.3 in any way other than what was apparent from the wording of the clause.

Nonetheless, Mr Brady said that his clear recollection was that the concept was agreed.

Indeed he said he redrafted the clause to address some concerns that were raised. The

idea of the ordinary hours was not displaced by the extended hours, and it was not

thought necessary to specify that a full shift worked inside ordinary hours would attract

a shift penalty.

[139] Mr Brady's statement to the Commission at the hearing for the certification of MOCA3

before Deputy President Bloomfield on 1 November 2012 is quoted earlier at [127]. On

that occasion, Mr Brady also referred to some amendments that had been made after the

agreement was posted for consultation. He gave, as examples, changing a date to reflect

that the parent award was updated during the consultation process, a simplified

classification structure, the correction of a section number referring to the parent award,

and the insertion of a clause that was inadvertently omitted from the final version of the

agreement.

[140] Mr Goldman appeared for the Applicant. After Mr Brady made his statement, Mr

Goldman stated:

"I echo and support the comments made by my colleague in relation to those

amendments that have been discussed."

47 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.

37

[141] The parties to the present proceedings sought to draw different inferences from that

statement. Mr Goldman's evidence in the present proceedings, given more than three

and a half years after the hearing before Deputy President Bloomfield, was:

"Certainly at the time I don't appear to have had any objection to the wording that

Mr Brady has used, but, as I said before, what I have relied upon in relation to the

provisions of this agreement are the provisions of the agreement. So I wasn't

aware that Mr Brady's statements in transcript in conciliation were attempting in

some way to rewrite the words of the agreement. …

I mean that my comments there are quite - quite specific to the amendments that

have been discussed and I don't believe there were any amendments that were

made to the draft agreement at certification. There were a range of amendments

made on certification to the agreement for a number of reasons and I have agreed

with Mr Brady in relation to those amendments. Those amendments had been

discussed between the parties and also with the Deputy President is being required

to and agreed to it being made to the agreement. I don't believe my comments

here referred anything other than those amendments that had actually been put to

the Commission." (T1: 19-20)

I accept that Mr Goldman's references to the amendments were to those amendments

specified by Mr Brady and did not refer to clause 4.3.3 of MOCA 3.

[142] Mr Goldman also said that on that occasion he did not

"place any particular weighting … on the use of his word evening in his

submission and I didn't see anything controversial in relation to his submissions,

but they were his submissions and I made submissions in relation to those things

that I sought to make submissions in relation to and I didn't make any submissions

in relation to the 25 per cent loading or the terms of that." (T1: 20)

[143] Respondent's submissions: According to the Respondent, the evidence is that there

were no suggestions from the Applicant during negotiations that clause 4.3.3(a) would

ever extend the type of shifts to which the loading applied so that it also applied to shifts

on which the disability was not incurred.

[144] The Respondent submits that the purpose of the 25 per cent loading in clause 4.3.3(a)

of MOCA 3 is clear. By reference to the words they used, and the terms and concepts

in MOCA 2 which the parties said in MOCA 3 they were merely replacing, it can be

deduced that the parties intended to roll up two allowances provided for in MOCA 2

into one identical payment, for essentially the same disability. That disability was an

arrangement whereby the employee worked ordinary hours outside the normal or

traditional span, which concluded at 1800, and was incurred on a shift by shift basis.

[145] FAQ document: The Respondent refers to the FAQ document which it prepared and

used in presentations to SMOs to explain the proposed agreement which became

MOCA 3. As already noted, the FAQ document listed as one of the key features of

MOCA 3:

"A 25% shift loading for evening and night shifts as part of an extended hours

roster which will assist to reduce overtime costs." (Exhibit 1 DG8; Exhibit 4, B)

38

[146] The Respondent submits that it is apparent from that document that the 25 per cent

loading was only intended to apply to "evening" and "night" shifts that form part of an

extended hours roster, not to all shifts within the roster, and certainly not to "day" or

"ordinary hours" shifts finishing at or before 1800 hours. By carving out the loading as

only applying to evening and night shifts, the FAQ document confirms that the meaning

of the "extended span of hours arrangement" is "a shift that contains hours that fall

outside what would otherwise be ordinary hours."

[147] The Respondent submits that the Commission should consider the FAQ document to

assist in interpreting the phrase in dispute between the parties. In support of that

submission, the Respondent refers to a decision in which the Commission accepted that,

when interpreting a certified agreement, regard should be had to documents distributed

to employees who were to vote on an agreement to explain a certified agreement.48

[148] According to the Respondent (relying on affidavit evidence from Mr Brady) the

Applicant never expressed any disagreement with the content of the FAQ document.

[149] The Respondent submits that any interpretation by the Applicant that an evening shift

includes one that finishes at or before 1800 hours is absurd and should not be accepted

by the Commission. The Respondent refers to the evidence of Dr Spain that such a shift

is an "ordinary hours shift" that is expressly not an evening shift. Clearly a shift that

finishes at or before 1800 hours is not a night shift.

[150] In support of that submission, the Respondent refers to the statement of Madgwick J in

Kucks v CSR Limited (quoted earlier) that:

"it is justifiable to read the award to give effect to its evident purposes, having

regard to such context, despite mere inconsistencies or infelicities of expression

which might tend to some other reading. And meanings which avoid

inconvenience or injustice may reasonably be strained for."49

[151] The Respondent also submits that the decision in the James Hardie50 case was confined

to the circumstances in which an extrinsic FAQ document was said to have "tainted"

the agreement with ambiguity. That document was prepared by one party to inform

employees who work in "humble circumstances." The Respondent submits that none

of those considerations apply here. SMOs and their union were not in analogous

"humble circumstances" and were perfectly capable of challenging the document at the

time.

[152] PowerPoint presentation: The Respondent also refers to the presentations that were

delivered to SMOs to explain the terms and conditions of the proposed agreement that

became MOCA 3. Slide 16 of the PowerPoint presentation included the following

reference to the extended span of hours loading:

48 See United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community

safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <http://www.qirc.qld.gov.au> [71]

(Thompson C). 49 Kucks v CSR Limited (1996) 66 IR 182, 184. 50 The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167

QGIG 280.

39

"25% shift allowance for work performed after 4pm for extended hours."

(Exhibit 1, DG7)

[153] The Respondent submits that it could not have been thought other than that extended

hours were required to be worked to qualify for such payment. That was a familiar

concept, as it had applied in MOCA 2 for some years.

[154] Statement of certification: The Respondent submits that, at the hearing for the

certification of MOCA 3, Mr Goldman either specifically supported the application of

the loading put forward by Mr Brady or remained silent in response to Mr Brady's clear

submissions about the application of the 25 per cent extended hours shift loading. The

Respondent submits that Mr Goldman would not be alarmed by this statement, as it was

the current MOCA 2 position.

[155] Applicant's submissions: The Applicant refutes the Respondent's suggestion that it

was the parties' intention that the loading was only ever intended to apply to shifts that

finished after 1800 hours. In particular, the Applicant submits that, although there is

evidence that that might have been Mr Brady's "fervent intention," there is no evidence

that the intention was mutual or shared.

[156] In support of its submission, the Applicant relies on the principles set out by the High

Court of Australia in Codelfa Construction Pty Ltd v State Rail Authority of New South

Wales51 relating to "shared mutual intention" as considered in the judgement of RD

Nicholson J in BP Australia Pty Limited v Nyran Pty Limited.52 His Honour noted that

if the language of a contract is "ambiguous or susceptible to more than one meaning"

evidence of "surrounding circumstances" is admissible to assist in the interpretation of

the contract.53 He continued:

"The concept of ‘surrounding circumstances’ is to be understood to be a reference

to ‘the objective framework of facts’. It will include evidence of prior

negotiations so far as they tend to establish objective background facts known to

both parties and the subject matter of the contract. It will also include facts so

notorious that knowledge of them is to be presumed. Additionally it will include

evidence of a matter in common contemplation and constituting a common

assumption. From the evidence of that setting the parties’ presumed intention

may be taken into account in determining which of two or more possible meanings

is to be given to a contractual provision. What cannot be taken into account is

evidence of statements and actions of the parties which are reflective of their

actual intentions and expectations. Objective background facts can include

statements and actions of the parties which reflect their mutual actual intentions.

That is, evidence of the mutual subjective intention of the parties to a contract

may be part of the objective framework of facts within which the contract came

into existence. It is the mutuality which makes the evidence admissible."

(Emphasis added)54

[157] The Applicant reiterates that there is no such evidence of mutuality in this case.

51 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 52 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520. 53 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520, [33]. 54 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520, [34].

40

[158] As to the Respondent's suggestion that none of the union parties to MOCA 3 ever

suggested to Mr Brady that the loading should apply to shifts finishing at or before 1800

hours, the Applicant points to Mr Brady's evidence that he understood the union's

position with respect to the loading to be that everyone who works extended hours

would receive a blanket 25 per cent allowance across the board, whether they work

extended hours or not just to commit to work extended hours. The Applicant also points

to the evidence of Dr Spain and the evidence of Mr Goldman. Consequently, the

Applicant submits there was no "common assumption" among the SMOs affected that

the loading would only apply to shifts finishing after 1800 hours. (Final submissions

paragraphs 19-22) Rather, the only basis for the Respondent's belief in mutual intention

was the absence of contradictory statements.

[159] In relation to mutual subjective intent, the Applicant refers to the following passage

from the decision of a Full Bench of the Fair Work Commission in RACV Road Service

Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union" known as the Australian Manufacturing Workers' Union:55

"… We agree with the Appellant that the Commissioner erred in relying on

evidence of past conduct of the Appellant in construing the meaning of cl.13.6(b)

of the Agreement. The evidence relied upon fell well short of establishing a

common understanding of the meaning of the provision or the common intention

of the parties to the Agreement. In this context the Commissioner’s reliance on

the obligations of the Appellant to explain the terms of the Agreement during the

approval process is also misplaced. The Commissioner said:

“Where as in the present case, no specific explanation was given by the

RACV to employees as to the term or the effect of the term of clause

13.6(b) of the current Agreement then objectively the intent and meaning

of clause 13.6(b) given by both the RACV and employees and the AMWU

must be the same as it had prior to the current Agreement.”

It will be rare that a common understanding or objectively ascertained common

intention will be shown by the absence of words. This might show a common

inadvertence, however that is not the same thing. Even less so, when combined

with the clear and unambiguous language of cl.13.6(b). The question whether the

Appellant adequately explained the terms of the agreement to employees during

the approval process does not result in a common understanding or common

intention in relation to the application of cl.13.6(b) of the Agreement. Moreover,

the fact that the Respondent made limited use, or no use at all, of the provision in

the past, is not a basis for reading down the operation of cl.13.6(b)."

[160] The Applicant submits that if evidence of mutual subjective intention is admissible,

evidence negating such a claim should be equally admissible for that purpose and only

that purpose. It further submits that even if there were evidence of such intention, that

would only assist in revealing and resolving an ambiguity. It would not allow the plain

meaning of the agreement to be supplanted. Indeed, the Applicant submits, if there

were overwhelming evidence that the parties intended something other than what is

55 RACV Road Service Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union" known as the Australian Manufacturing Workers' Union [2014] FWCFB 1629, [33], [34].

41

written (which is not conceded), the parties would be bound by the agreement if the

meaning of what was written is clear.56

[161] However in this case, the Applicant submits, the Respondent cannot point to any

evidence of a common intention that can be identified in line with Principle 9 of the

Golden Cockerel decision:

"A common intention is identified objectively, that is by reference to that which

a reasonable person would understand by the language the parties have used to

express their agreement."

[162] FAQ document: The Applicant submits that the contra proforentum rule should be

applied to the FAQ document prepared by the Respondent for the reason that, at best, the

document was ambiguous. Although it states that the loading applies to evening and night

shifts, it does not say that the loading does not apply elsewhere. The FAQ document did

not provide the clarity that the Respondent suggests and, in particular, did not "carve" out

the loading as applying only to "evening" and "night" shifts. Given that the FAQ

document is ambiguous and does not preclude the interpretation that the Applicant

presses, the resolution of the ambiguity in that document should be in the Applicant's

favour, allowing the loading to apply to certain hours in other shifts.

[163] PowerPoint presentation: The Applicant submits that the contra proforentum rule

should be applied to the PowerPoint presentation prepared by the Respondent for the

reason that the PowerPoint presentation does not provide the sort of clarity claimed by

the Respondent. Indeed the Respondent seeks to "cherry pick" phrases from it and

ignores the greater detail found in that presentation and the "Summary of the Proposed

Agreement."

Practical approach

[164] Respondent's submissions: The Respondent also urges the Commission to take a

practical approach when answering Question 1. In support of that submission it refers

to the statement by Madgwick J in Kucks v CSR Limited,57 quoted with approval by the

High Court58 and the Industrial Court of Queensland,59 that the search is for the meaning

intended by the framers of the document, bearing in mind that they were likely to be of

a practical bent of mind, and may well have been more concerned with expressing an

intention in ways likely to have been understood in the context of the relevant industry

and industrial relations environment than with legal niceties or jargon.

[165] In particular, the Respondent submits that, even if the Commission were to find that the

meaning of "extended span of hours arrangement" means "extended span of hours

roster," the Commission should find in the Respondent's favour that the 25 per cent

loading referred to in clause 4.3.3(a) should only apply to shifts that finish after 1800

hours. Although those words were not included in the clause, the Commission is

obliged to effectively read them in by interpreting the clause having regard to its context

and purpose and the evidence (including evidence of the predecessor clause which it

was replacing) that the loading should only apply to shifts that finish after 1800 hours.

56 See Core Toughened Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWC 7131. 57 Kucks v CSR Limited (1996) 66 IR 182, 184. 58 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96] (Kirby J). 59 Park Avenue Motor Hotel etc v Beck and Beck v Park Avenue Motor Hotel etc [2008] QIC 66 (Hall P).

42

[166] The Respondent submits that the Commission should not be hindered by infelicities of

expression, but should find the meaning that was intended by the parties. Considering

the context of MOCA 2, the purpose of the clause and the extrinsic material, and

evidence in these proceedings, the intended meaning of the clause is clear. The loading

was only ever intended to apply to shifts that finish after 1800 hours. It was not intended

to apply in any circumstances to ordinary hours shifts.

[167] Applicant's submissions: The Applicant characterises the Respondent's submission as

inviting the Commission to effectively rewrite clause 4.3.3(a) to insert the qualifier that

the loading should only apply to shifts that finish after 1800 hours. The rationale for

this is not that clause 4.3.3(a) is susceptible to being read that way, but rather that the

fact that it says something quite different is a "mere inconsistency or infelicity of

expression."

[168] The Applicant submits that the Respondent's submission takes the decision in Kucks v

CSR Limited60too far, and is asking the Commission to make an error of law and breach

Principle 10 from the Golden Cockerel decision, namely:

"The task of interpreting an agreement does not involve rewriting the agreement

to achieve what might be regarded as a fair or just outcome. The task is always

one of interpreting the agreement produced by parties."

[169] By asking the Commission to "read in" that the loading should only apply to shifts that

finish after 1800, the Respondent is asking the Commission to rewrite clause 4.3.3(a)

rather than interpret that clause.

Consideration and conclusions

[170] Background to MOCA 3: The evidence summarised earlier shows that the extended

working hours issue was still being considered late in the negotiations. The emails show

that there were also other issues about which the doctors' negotiator (and delegates) had

some concerns. But the negotiations were almost concluded. The doctors'

representatives were considering the overall effect of the proposed MOCA 3, and the

provision for the payment of the 25 per cent loading was only one of the issues in the

overall scheme of the proposed agreement.

[171] To the extent that the evidence of the negotiations indicates the understanding or

subjective intention or expectation of a negotiator (as much of it does) that evidence

cannot be used to ascertain the meaning of an ambiguous expression or clause in MOCA

3. However, that evidence is useful in charting some of the course of the negotiations

and establishing that the parties' minds were engaged in fashioning what became clause

4.3.3(a).

[172] The final steps of the negotiations and any correspondence in relation to them are not

in evidence. At the hearing before Deputy President Bloomfield on 1 November 2012,

the representatives of the parties stated that the relevant processes had been followed

and agreement had been reached. They applied for the agreement to be certified.

MOCA 3 was certified and took effect from 1 November 2012.

60 Kucks v CSR Limited (1996) 66 IR 182, 184.

43

[173] I proceed on the basis that, by the time of certification, there was no dispute as to the

wording of clause 4.3.3 of MOCA 3. At some stage after MOCA 3 commenced to

operate, questions were raised as to the meaning and implementation of clause 4.3.3(a).

That is the dispute before the Commission.

[174] Evidence of the preceding negotiations establishes the following surrounding

circumstances and background facts:

(a) the negotiations took place in light of, and by reference to, the provisions and

operation of MOCA 2;

(b) MOCA 2 provided that the ordinary hours of work for an SMO were within the

span of 0700 hours to 1800 hours Monday to Friday (clause 6.2.1), and that

extended hours of work arrangements may be implemented for SMOs between

0700 hours and 2200 hours Monday to Sunday (clause 6.3.1), and those spans

of hours were replicated in MOCA 3;

(c) under clauses 6.3.1, 6.3.8(a)(i) and 6.3.8(a)(ii)(A) of MOCA 2, an SMO who

entered into extended hours arrangements between 0700 hours and 2200 hours

Monday to Sunday was entitled to receive:

a. a 15 per cent loading where the major portion of the rostered hours of

ordinary time worked on a daily between Monday and Friday was

worked between 1600 hours and 2200 hours;

b. an allowance of 15 per cent per hour for all time worked after 1800 hours

where the SMO ceased their ordinary hours of duty after 1800 hours but

the major portion of their rostered hours on that day was not worked

between 1600 hours and 2200 hours;

c. a flexibility allowance of 10 per cent for any ordinary time worked where

the major portion of the ordinary time worked on a daily between

Monday and Friday was worked between 1600 hours and 0700 hours;

d. the 15 per cent loading payable under a. in addition to the flexibility

allowance payable under c;

(d) the negotiating parties agreed that the new certified agreement should provide

for a 25 per cent loading to combine and replace the payment arrangements for

extended hours contained in clauses 6.3.1 and 6.3.8 of MOCA 2;

(e) in the second half of July 2012 and into August 2012, the negotiating parties

were finalising their negotiations about how and when the 25 per cent loading

should be paid and how the entitlement to the loading should be expressed in

the new certified agreement;

(f) revised drafts of what became clause 4.3.3 of MOCA 3 were prepared by the

Respondent's negotiator, Mr Brady, and provided to the doctors' negotiator in

an attempt to close the gap between the parties;

44

(g) draft clause 4.3.3 provided by Mr Brady to Mr Goldman on 9 August 2012 was

part of a draft agreement that Mr Brady stated was his "effort to draft an

agreement to reflect the outcome;"

(h) that draft clause 4.3.3 differed from previous drafts by providing for a 25 per

cent loading to be paid for "all Ordinary Hours worked between 1600 hours and

2200 hours on any weekday" rather than for all time worked after 1800 hours;

(i) draft clause 4.3.3 applied to an SMO working Ordinary Hours in an extended

span of hours arrangement between 0700 hours and 2200 hours;

(j) draft clause 4.3.3 was in almost identical terms form to what became clause 4.3.3

of MOCA 3;

(k) although the wording used in clause 4.3.3(a) contains no reference to evening or

night shifts, the exposure material prepared and provided by the Respondent for

the information of people voting on what became MOCA 3 referred to:

a. "A 25% shift loading for evening and night shifts as part of an extended

hours roster which will assist to reduce overtime costs" (the FAQ

document);

b. "25% shift allowance for work performed after 4pm for extended hours"

(the PowerPoint); and

c. "the working of extended hours by SMOs" (Summary of the Proposed

Agreement). (Emphasis added)

Those statements were consistent with the reference in the opening words of clause

4.3.3 that the clause applied to an SMO working Ordinary Hours in an extended span

of hours arrangement.

[175] Text of MOCA 3: Although the background to MOCA 3 is relevant, the questions in

this case can be answered primarily by reference to the language of MOCA 3, and its

context, including the clauses of MOCA 2 that clause 4.3.3(a) of MOCA 3 replaced.

[176] The main factor in support of the Applicant's submissions concerning the meaning of

clause 4.3.3(a) is the wording of that clause when read in isolation from the words that

precede it. As noted earlier, it provides that the 25 per cent loading is to be paid "for all

Ordinary Hours worked between 1600 hours and 2200 hours on any weekday." On

their own, those words support the payment of the loading for any hours worked on any

weekday after 1600 hours, including between 1600 hours and 1800 hours. That reading

is reinforced by the use of "all" before "Ordinary Hours".

[177] However, those words in clause 4.3.3(a) must be read in the context of clause 4.2, clause

4.3, and the replacement declaration in 4.3.3, as well as the history of negotiations

outlined earlier in these reasons.

[178] As noted earlier, the definition of Ordinary Hours in clause 4.2 of MOCA 3 (read with

clause 4.3 or 4.4) was:

45

(a) for SMOs not working on an extended hours roster, between 0700 hours and

1800 hours Monday to Friday; and

(b) for SMOs working on an extended hours roster, between 0700 hours and 2200

hours Monday to Sunday (subject to any work between 2200 hours and 0700

hours in "exceptional circumstances"). (Emphasis added)

[179] Clause 4.3.3(a) provides, in full, that an SMO working Ordinary Hours in an extended

span of hours arrangement between 0700 hours and 2200 hours will be paid a loading

of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200 hours on

any weekday. In other words, clause 4.3.3(a) applies only to an SMO working in an

extended span of hours arrangement.

[180] It is clear that the purpose of this scheme was to pay the loading to SMOs who were

working extended shifts outside ordinary hours of 0700 hours and 1800 hours Monday

to Friday.

[181] Earlier I concluded that the "extended span of hours arrangement" referred to in clause

4.3 and clause 4.3.3 means an arrangement in accordance with which an SMO works a

shift that includes Ordinary Hours that are worked outside the normal span of Ordinary

Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday.

That conclusion lends support to clause 4.3.3(a) being read so that the 25 per cent

loading was payable for work undertaken after 1600 hours only when the shift extended

beyond 1800 hours (and potentially to 2200 hours).

[182] As noted earlier, although clause 4.3.3(a) "replaces" specified clauses in MOCA 2 it did

not replace those earlier in clauses with identical provisions. Rather, clause 4.3.3(a)

was included in MOCA 3 in place of those previous provisions and combined (in an

arithmetic sense) the 10 per cent flexibility allowance and the 15 per cent

loading/allowance in one 25 per cent loading. Under MOCA 2, payments were made

when (depending on the allowance or loading) the "major portion" of the day or the

rostered hours was worked between 1600 hours and 0700 hours, 1600 hours and 2200

hours, or after 1800 hours. That requirement could not have been met by anyone

working until 1800 hours, and would not have been paid for a period 1600 hours to

1800 hours. Although MOCA 3 did not replicate the "major portion" requirement, it

combined into one loading the amounts payable previously when the "major portion"

requirement operated.

[183] Explanatory materials: The reference in the FAQ document to "A 25% shift loading

for evening and night shifts as part of an extended hours roster which will assist to

reduce overtime costs" articulates the Respondent's understanding of the effect of the

proposed clause 4.3.3. It supports, but does not determine, the outcome in this case.

The word "evening" is not used or defined in MOCA 3, and the limited evidence in this

case about its meaning was imprecise. The most that can be said about the use of

"evening" is that it is consistent with an interpretation of clause 4.3.3(a) that favours

payments for work done by an SMO after 1800 hours. In any case, its sense is evident

from the reference to an extended hours roster.

[184] In a similar vein, I note that the reference in the PowerPoint slide to a "25% shift

allowance for work performed after 4pm for extended hours" was consistent with an

46

interpretation of clause 4.3.3(a) that favours payment for work done by an SMO after

1800 hours.

[185] For completeness, I conclude that:

(a) the statement in the FAQ document referring to evening and night shifts "as

part of an extended hours roster" was not ambiguous in the way contended by

the Applicant but was a clear statement about when the loading would be paid,

and hence was not a statement to which the contra proferentem rule applied (in

the way found in the James Hardie case); and

(b) for the same reason, the contra proferentem rule does not apply to a slide or

slides in the PowerPoint presentation prepared by the Respondent.

[186] Conclusion: In summary, the result of the foregoing conclusions is that clause 4.3.3(a)

of MOCA 3 is to be read as providing that an SMO working Ordinary Hours in an

extended span of hours arrangement between 0700 hours and 2200 hours would be paid

a loading of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200

hours on any weekday only when the particular shift was completed after 1800 hours.

[187] In my opinion, that conclusion comprises an interpretation of clause 4.3.3(a) based on

the clear words of an agreement produced by the parties, which interpretation is

supported by surrounding circumstances. It does not involve rewriting the agreement

to achieve what might be regarded as a fair or just outcome. Consequently, that

conclusion is consistent with (rather than contrary to) Principle 10 in the Golden

Cockerel case.

Question 2

[188] It remains to decide what is the correct application of the loading mentioned in clause

4.3.3(a) of MOCA 3 in relation to shifts DG1, MG1, LC1 and ALE performed by Dr

Spain in accordance with the roster attached at Appendix 1.61

[189] Applicant's submissions: The Applicant submits that the loading mentioned in clause

4.3.3(a) is payable on all Ordinary Hours worked between 1600 hours and 2200 hours

on any weekday, including all hours between 1600 hours and 2200 hours worked on

shifts DG1, MG1, LC1 and ALE on the roster attached at Appendix 1. That submission

was made on an interpretation of clause 4.3.3(a) that I have rejected.

[190] Respondent's submissions: In the Respondent submission, the loading payable under

clause 4.3.3(a) for the shifts listed in Appendix 1 that were worked on Monday to Friday

are:

(a) DG1 - nil

(b) MG1 - nil

(c) LC1 - 7 hours at 25% (less unpaid meal break taken)

(d) ALE - 5.5 hours at 25%.

61 Given that the answer to Question 2 depends on the answer to Question 1, I proceed on the basis that Question

2 should commence "Having determined the meaning of the term 'extended span of hours arrangement,'…"

47

The Respondent notes that extended span of ordinary hours shifts worked on a Saturday

or Sunday do not attract the loading prescribed clause 4.3.3(a).

[191] Consideration and conclusion: Given the conclusion that clause 4.3.3(a) of MOCA 3

is to be read as providing that the loading of 25 per cent would be paid for all Ordinary

Hours worked between 1600 hours and 2200 hours on any weekday only when the

particular shift was completed after 1800 hours, it follows that:

(a) no loading payment would be made in relation to shifts DG1 (0730 - 1800) and

MG1 (0730 - 1800) as they were completed at 1800 hours;

(b) a loading would be paid in respect of so much of shift LC1 (1230 - 2300) as was

worked after 1600 hours, i.e. 7 hours (less unpaid meal break taken); and

(c) a loading would be paid in respect of all of shift ALE (1730 - 2300) as the shift

commenced after 1600 hours, i.e. 5.5 hours (noting that the loading for that part

of the shift between 2200 and 2300 was payable under clause 4.3.4).

Answers to Questions 1 and 2

[192] Questions 1 and 2 can now be answered in light of the reasons given above.

[193] Question 1: In relation to clause 4.3 Extended Span of Ordinary Hours of Work within

the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012

("MOCA3"), what is meant by the term "extended span of hours arrangement"?

[194] Answer to Question 1: The term "extended span of hours arrangement" in relation to

clause 4.3 of the Medical Officers' (Queensland Health) Certified Agreement (No 3)

2012 means an arrangement in accordance with which a senior medical officer works a

shift that includes Ordinary Hours (as defined in clause 4.2) that are worked outside the

normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800

hours Monday to Friday) and includes some part of the period between 0700 hours and

2200 hours Monday to Sunday (or between 2200 and 0700 in exceptional

circumstances).

[195] Question 2: In determining the meaning behind the term "extended span of hours

arrangement," what is the correct application of the loading mentioned in clause 4.3.3(a)

of MOCA 3, in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in

accordance with the roster attached at Appendix 1?

[196] Answer to Question 2: The correct application of the loading mentioned in clause

4.3.3(a) of MOCA 3 in relation to each of the specified shifts is:

DG1 (0730 - 1800): Nil

MG1 (0730 - 1800): Nil

LC1 (1230 - 2300): 7 hours at 25% of the ordinary rate (less unpaid meal

break taken)

ALE (1730 - 2300): 5.5 hours at 25% of the ordinary rate.

[197] Order accordingly.