Fair Work Act 2009
s.604 - Appeal of decisions

AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation
v
The Royal Women's Hospital
(C2021/4894)

Appeal against decision [2021] FWC 4696 of Deputy President Young at Melbourne on 2 August 2021 in matter number C2019/4760.

Introduction

[1] On 19 August 2021, the appellants in this matter, AMA (Victoria) Ltd and the Australian Salaried Medical Officers Association, lodged a notice of appeal against a decision of Deputy President Young published on 2 August 2021. 1 The decision concerned an application made by the appellants for the Commission to deal with a dispute which concerned, among other things, the long service leave entitlements under the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021 (Agreement) of doctors employed on a fractional (part-time basis) with multiple health services covered by the Agreement. The application was brought against The Royal Women’s Hospital (the RWH). The appellants and the RWH agreed upon the following question to be determined by the Commission to resolve the long service leave issue (agreed question):

“Fractional Doctor A has been employed continuously as a Specialist by Employer X for twelve years and remains in the employment of Employer X.

Five years ago, Fractional Doctor A commenced employment as a Specialist with Employer Y and remains in the employment of Employer Y.

Fractional Doctor A has had contemporaneous, ongoing employment as a Specialist with both Employer X and Employer Y since their commencement with Employer Y.

In respect of Fractional Doctor A in the scenario above (or a Fractional Doctor in an equivalent scenario), does Fractional Doctor A have an entitlement to access a long service leave benefit described in clause 55.1 of the Agreement from:

(a) both Employer X and Employer Y; or,

(b) only Employer X?”

[2] As we understand it, the question is to be approached on the basis that Employer X and Employer Y are each covered by the Agreement.

[3] For the reasons expressed in her decision, the Deputy President declined to determine by arbitration the above question notwithstanding that there was no issue that she was authorised to do so under the dispute resolution procedure in the Agreement. However, having done so, the Deputy President nonetheless went on to state her opinion in relation to the agreed question, namely that “(b)” constituted the correct answer.

[4] In a decision issued on 10 November 2021, 2 we concluded that the Deputy President had erred in declining to arbitrate the agreed question. We granted the appellants, in respect of two of their five grounds of appeal, permission to appeal, we upheld those two grounds of appeal, and we determined to arbitrate ourselves the agreed question. To that end, we directed the filing of further written submissions and we conducted a further hearing on 9 December 2021. Written and oral submissions were made by the appellants and the RWH and, in addition, the Victorian Department of Health (Department).

Relevant provisions of the Agreement

[5] The Agreement is a single-enterprise agreement made pursuant to a single interest employer authorisation. Clause 4.1 provides that the Agreement covers doctors employed by the “health services” in Victoria listed in Schedule A. The expression “Health Service” is defined in clause 3.1(o) to mean “a public hospital or health service listed in Schedule A”. Schedule A identifies by name 37 such health services, including the RWH.

[6] The entitlement of doctors to long service leave under the Agreement is established by clause 55. Clause 55.1 provides for the base entitlement as follows:

55.1 Entitlement

(a) A Doctor is entitled to Long Service Leave with pay for Continuous Service with Institutions and Statutory Bodies, in accordance with the provisions of this clause as follows:

(i) Six (calendar) months of long service leave after 15 years of Continuous Service then two months of long service leave after each additional five years of Continuous Service.

(ii) A Doctor may take pro rata long service leave after 10 years of Continuous Service where the Health Service agrees. The Health Service will not unreasonably withhold agreement.

[7] The terms “Institution” and “Statutory Body”, which are used in clause 55.1 and elsewhere in clause 55, are defined in paragraphs (s) and (bb) of clause 3.1 as follows:

(s) Institution means any hospital, health service (whether or not listed in Schedule A) or benevolent home, community health centre, Society or Association registered pursuant to the Health Services Act.

(bb) Statutory Body means the Department of Health and Human Services (Victoria) and, formerly, the Department of Health (Victoria) and the Department of Human Services (Victoria).

[8] Clause 55.2 is concerned with pro-rata entitlements to long service leave, and clause 55.2(a) provides that pro-rata entitlements accrue on termination of employment after 10 years’ service. Clause 55.3 deals with payment for when long service leave is taken and, relevantly, clause 55.3(a) provides:

55.3 Payment for when Long Service Leave is taken

(a) The Doctor is entitled to be paid the following for Long Service Leave:

(i) for a Full-time Doctor, the remuneration for a Doctor’s normal weekly hours of work calculated, at the Doctor’s ordinary time rate of pay, at the time the leave is taken or (if the Doctor dies before the completion of leave so taken) as at the time of death;

(ii) for a Fractional Doctor, the remuneration calculated on the average of their ordinary hours of work applying over the two years of employment immediately preceding the taking of leave.

[9] Clause 55.4 deals with the taking of leave and, relevantly, provides:

55.4 Taking of Leave

(a) A Doctor must be granted long service leave within six months of the date eligibility arose under this clause. By agreement, the taking of the leave may be postponed to such a date mutually agreed.

(b) Any long service leave is inclusive of public holidays occurring during the period when the leave is taken.

(c) By agreement, the following may occur:

(i) the first six months of the Doctor’s long service leave entitlement may be taken in two or three separate periods; or

(ii) in any period of not less than one week.

(d) Flexible taking of leave: Double leave at half pay or half leave at double pay

(i) A Health Service may approve an application by a Doctor to take double the period of long service leave at half pay or half the period of long service leave at double the pay.

. . .

[10] Clause 55.5 is concerned with calculating service for an entitlement to long service leave, and clause 55.5(b) provides that service or breaks listed in clause 55.6 are counted as service and the periods listed in clause 55.7 are not counted as service but do not break continuity of service. Clause 55.6 relevantly provides:

55.6 Counted as Service:

In calculating Continuous Service, the following is counted as part of the period of service:

(a) service for which long service leave or payment in lieu has not been received in one or more Institutions including Statutory Bodies directly associated with such Institutions for the period required by subclause 55.1(a) of this Agreement;

…

(c) service with a business that was transmitted, transferred, assigned, conveyed or succeeded from one business to another;

…

(g) service as part of a specialist training program accredited by a Specialist Medical College with an employer not covered by this Agreement where:

(i) the break between period of employment is not more than two months duration or such longer period as provided in subclause 55.9(a)(ii) (Allowable period of absence for Parental Leave); and

(ii) the Doctor has not received payment for their long service leave benefit for that service.

(h) in the case of Doctors who commence employment with a Victorian public Health Service after 30 November 2008, service with an interstate government health service, provided that such interstate government health service employment was within two months of commencing employment with a Victorian public Health Service;

…

[11] Clause 55.7 relevantly provides:

55.7 Not Counted as Service but Not Breaking Continuity of Service:

In calculating Continuous Service, the following is not counted as part of the period of service but does not break continuity of service:

…

(c) any period of time from employment between engagements with a Statutory Body, any Institution and any other provider that is less than the Doctor’s allowable period of absence from employment pursuant to subclause 55.9 below;

…

[12] Clause 55.8 further addresses the concept of “Continuous Service” as follows:

55.8 Continuous Service includes entitlements pursuant to previous Victorian Industrial Awards or Agreements

(a) Continuous Service includes continuous service with Institutions and Statutory Bodies within the meaning of any industrial instrument in operation in Victoria that covered the Doctor prior to the date upon which this Agreement covers the Doctor, subject to the allowable period of absence at subclause 55.9. This includes service recognised by an industrial instrument where the Doctor was employed as part of an accredited Specialist training program by an employer not covered by that agreement. (See subclause 68.7(f) of the AMA Victoria – Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021, where relevant.) The requirements of subclause 55.13 apply.

[13] Clause 55.9 covers “allowable breaks in service”, and limits this to the greater of 5 weeks in addition to the total period of paid annual leave and/or personal leave that the doctor receives on termination or is paid in lieu, or such longer absences for the purpose of parental leave under the NES. Clause 55.10 provides for the transfer of long service leave entitlements as follows:

55.10 Transfer of Entitlement

(a) Provided in the case of a Doctor who accrues entitlement pursuant to subclause 55.1(a) of this Agreement and who intends to be re-employed by another Institution or Statutory Body:

(i) such a Doctor may in writing request payment in respect of such leave to be deferred until after the expiry of the Doctor’s allowable period of absence from employment provided in subclause 55.9 of this Agreement;

(ii) except where the Doctor gives notice in writing that the Doctor has been employed by another Institution or Statutory Body, payment will be made in respect of such leave at the expiry of the Doctor’s allowable period of absence from employment; and

(iii) where a Doctor gives notice in writing that the Doctor has been employed by another Institution or Statutory Body, the Health Service is no longer required to make payment to the Doctor in respect of such leave.

[14] Clauses 55.11 deals with the payment of accrued long service leave entitlements on the doctor’s death. Clause 55.12 provides:

55.12 Health Service Must Keep Records

(a) The Health Service must keep a record of long service leave for each Doctor. This record must show details of service, leave taken and payments made.

[15] Clause 55.13(a) provides that the doctor is at all times responsible for proving that they have completed sufficient service to access their long service leave entitlement, and clause 55.13(b) provides that a certificate in the form set out in Schedule D shall constitute proof, but not the only possible proof. Schedule D sets out a template certificate of service in the following form:

Certificate of Service

(Name of Institution)

(Date)

This is to certify that____________________________________________(Name of Doctor) was employed by this Institution/Society/Board (the Health Service) for the period:

From __________________ To _______________________

During the above period, the Doctor had unpaid leave or absences that impact on the accrual of Long Service Leave totalling ___________________________________(years and days)

During the above period, the Doctor utilised accrued Long Service Leave totalling __________ months

The Health Service has recognised net additional service for Long Service Leave purposes with another Health Service or Health Services for the Doctor totalling

_______________________________ (years and days) which was paid out/not paid out (strike out whichever is not applicable) by the former Health Service(s).

The Doctor had accrued personal leave totalling ______________ hours as at the date of cessation of employment with the Health Service

[16] Clause 24 of the Agreement also refers to Schedule D. It provides:

24 Certificate of Service

24.1 The Health Service will record the following particulars in respect of each Doctor:

(a) Date of commencement of employment;

(b) Date of termination of employment;

(c) Total period of service (years and months);

(d) Long Service Leave taken during the period of service, or payments made in lieu thereof; and

(e) accumulated personal/carer’s leave at termination.

24.2 On request, a copy of the record will be furnished to the Doctor.

24.3 A certificate in the form set out in Schedule D will be acceptable.

[17] Clause 63 is entitled “Service Delivery Partnership Plan”. Clause 63.1 relevantly provides:

63.1 The parties are committed to contributing to improve the productivity and efficiency of the Victorian public health by:

…

(i) collaboration between the parties over the life of the Agreement to better accommodate long service leave arrangements for Doctors employed by two or more Health Services concurrently;

…

[18] Clause 63.2 provides for a working group to facilitate the achievement of, inter alia, the matter specified in clause 63.1(i).

Submissions

Appellants

[19] The appellants contended before us, as they did at first instance, that the answer to the agreed question is “(a) both Employer X and Employer Y”. They submitted that this answer is based upon the plain meaning of clause 55 of the Agreement. Clause 55, it was submitted, applies equally to full-time doctors and fractional doctors, as is made clear by the definition of “Doctor” in clause 3.1(i) of the Agreement. The entitlement to long service leave conferred by clause 55.1 is for “Continuous Service with Institutions and Statutory Bodies” and, the appellants submitted, such continuous service is not limited to service with the current employer under the Agreement but includes service with other health services and entities as provided by clauses 55.6 and 55.8. In the case the subject of the question, Fractional Doctor A has continuous service with Employer X for the last 12 years, which gives her an entitlement to long service leave with Employer X under clause 55.1. Also, it was submitted, Fractional Doctor X has service with Employer Y for the previous five years and service with Employer X for seven years before that, meaning that Fractional Doctor A also has a total of 12 years’ continuous service with Employer Y and therefore has an entitlement to long service leave with Employer Y under clause 55.1.

[20] The appellants submitted that there is nothing in the language of clause 55.13 or in any other provision of the Agreement which supports the RWH’s contention that Fractional Doctor A’s service with Employer X prior to commencing with Employer Y could only be considered if Fractional Doctor A could show that the employment with Employer X had been terminated. The limited purpose of clause 55.13, it was submitted, is to provide assistance to Health Services and doctors covered by the Agreement by providing a mechanism to prove prior service. Schedule D to the Agreement provides a template for a certificate of service and contains a place for the start and finish dates of a doctor’s employment with an employer to be inserted. It was submitted that the mere fact that Schedule D of the Agreement provides for the possibility of a doctor having a start and finish date of employment does not and cannot be taken to mean that a start and finish date is always required, and clause 55.13(b) makes absolutely clear that the template certificate of service set out in Schedule D is only one possible means of proving service.

[21] It was submitted that the RWH’s interpretation of clause 55 would only entitle a doctor who is employed by two Health Services concurrently to be granted long service leave by one of the Health Services whilst being refused long service leave from the other. The result of this, it was submitted, would be that once Fractional Doctor A took long service leave with Employer X, the doctor would then lose any entitlement to claim long service leave with Employer Y using any of the period of service concurrent with Employer X by virtue of the operation of clause 55.6(a). This problem would not arise, it was submitted, if the appellants’ construction of clause 55 were to be preferred.

The Royal Women’s Hospital

[22] In respect of the agreed question, the RWH submitted that there was no question that Fractional Doctor A had an entitlement to long service leave with Employer X. However, it submitted, there was no entitlement with Employer Y because Fractional Doctor A only had five years’ service and there was no transmission of business issue or other basis which might operate to extend the period of service beyond the five years actually served, and accordingly “(b) only Employer ‘X’” was the correct answer to the agreed question. Clause 55.6(a), it was submitted, does not operate to include concurrent service with another employer for the purpose of the long service leave entitlement established by clause 55.1. Its operation is limited to the scenario envisaged by clause 56.10, being the inclusion of completed service which has not been applied to actual leave or a payment in lieu on termination of employment.

[23] The RWH submitted that the appellants’ interpretation of clause 55.6(a) would lead to absurd results since it would mean that, in the case of a doctor with a 0.2 fraction with Employer X and a 0.8 fraction with Employer Y, the longer term appointment with Employer X would be magnified by a factor of four for Employer Y which had not had the benefit of that service. The appellants’ interpretation would also lead to “double dipping” if, on the example in the agreed question, Fractional Doctor A has for the first seven years also worked for a private practice in addition to Employer X on a 0.8 fractional basis. In that scenario, it was submitted, the doctor would be paid out their long service leave entitlement with the private practice upon termination at the 0.8 fraction, but would subsequently again receive the benefit of the same period of service at the 0.8 fraction with Employer Y.

[24] It was submitted, on the approach advanced by the RWH, that in the scenario envisaged by the agreed question the two periods of service with Employers X and Y remain separate and, if long service leave is taken with Employer X, the five years’ accrued service with Employer Y remains unaffected by whatever happens with Employer X. This service with Employer Y could count as service with another future employer if there was a transfer of business involving Employer Y and the new employer, of if Fractional Doctor A transferred their employment to the new employer, or if the doctor concluded employment with Employer Y and then commenced employment with another “Institution or Statutory Body” such as to make the process in clause 55.10 applicable.

The Department

[25] The Department supported the position of the RWH and contended that “(b)” was the correct answer to the agreed question. It clarified that the consequence of answer “(b)” was that:

•  Fractional Doctor A would separately accrue five years’ continuous service with both Employer X and Employer Y (subject to any intervening factor that might cause the doctor to accrue more leave with one employer than the other, such as a period of unpaid leave or events arising under clause 55.7); and

•  Fractional Doctor A’s employment with Employer Y remains separate and distinct from that of any other employer unless or until Fractional Doctor A ceases employment with Employer Y. Should Fractional Doctor A cease employment with Employer Y before they receive a long service leave benefit in respect of their service with Employer Y, that period of service may be recognised by a future employer.

[26] The Department submitted that service with each employer covered by the Agreement is separate and distinct, and that while clause 55.6(a) provides for continuity of service between successive employers, it does not provide for accumulation of an employee’s service across the entire public health sector. The purpose of clause 55.6(a), it submitted, is to prevent an employee from missing out on the benefit of long service leave as a result of ceasing employment with an employer before an entitlement to such leave arises.

[27] Answer “(a)” to the agreed question would, the Department submitted, lead to the following unintended consequences:

•  the “double dipping” mechanism in clause 55.6(a) means that any leave taken with Employer X will extinguish the equivalent entitlement with Employer Y; and

•  it will prevent each health service from administering the long service leave provisions of the Agreement autonomously because it requires each of both Employer X and Employer Y to know at any given time what Fractional Doctor A’s employment history is with the other to be able to determine what Fractional Doctor A’s period of continuous service is and what long service leave entitlements have been utilised by Fractional Doctor A, in circumstances where no such information-sharing arrangements exist.

[28] The Department submitted that each employer covered by the Agreement is a separate legal entity operating independently, and this is recognised in the Agreement which provides for each health service to separately administer the Agreement in respect of their individual workforces. Under answer “(b)”, it was submitted, Fractional Doctor A is aligned to their employment with each individual employer, and is not contingent on either Employer X or Employer Y having any ongoing knowledge of Fractional Doctor A’s employment with the other employer nor their leave history. However, answer “(a)” would prejudice the capacity for each health service to administer the long service leave provisions of the Agreement autonomously. It was also submitted that answer “(a)” does not necessarily allow for the taking of long service leave to be co-ordinated across different fractional employers, since the Agreement does require approval to be given for the leave to be taken by the employee at the same time for both employers.

Consideration

[29] In order to answer the agreed question, it is necessary to properly construe clause 55 of the Agreement in respect of its application to concurrently-employed fractional doctors. The principles applicable to the interpretation of an enterprise agreement were stated by the Federal Court Full Court majority in James Cook University v Ridd 3 to be as follows (with citations removed and some paraphrasing):

(1) The starting point is the ordinary meaning of the words, read as a whole and in context.

(2) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.

(3) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.

(4) Context may include ideas that gave rise to an expression in a document from which it has been taken.

(5) Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.

(6) A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.

(7) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.

[30] Before turning directly to the text of the relevant parts of clause 55, there is one important matter of context which we consider guides the interpretation of the clause. The employers covered by the Agreement, as earlier explained, are the 37 health services identified in Schedule A. Each such employer is either a public hospital listed in Schedule 1 to the Health Services Act 1988 (Vic) (HS Act), a denominational hospital listed in Schedule 2 of the HS Act, a public health service listed in Schedule 5 to the HS Act or, in the case of the Victorian Institute of Forensic Mental Health (Institute), a body continued in operation under s 328(1) of the Mental Health Act 2014 (Vic) (MH Act). The RWH is a public health service listed in Schedule 5 of the HS Act. Each public hospital and public health service, and the Institute, is a separate statutory body corporate (ss 31(e) and 65P of the HS Act, s 328(2) of the MH Act respectively). Public hospitals and public health services do not represent and are not to be taken as part of the Crown (ss 31A and 65Q of the HS Act respectively). The denominational hospitals listed in Schedule A to the Agreement are all corporations. Therefore, all of the health services bound by the Agreement are separate incorporated entities which employ persons (including doctors) in their own right. Subject to any overriding statutory provision or industrial instrument, each such person employed (including doctors) will be the subject of a separate contract of employment.

[31] It is therefore clear that a doctor who is employed on a fractional basis by (say) two health services listed in Schedule A to the Agreement (as is the case with Fractional Doctor A the subject of the agreed question) will be engaged by two separate employers subject to two separate employment contracts. In that circumstance, the starting-point presumption would be that leave entitlements would accrue, and be taken, separately with each employer. In order to establish a situation by which the contrary applies, so that leave accrues and may be taken concurrently with respect to two different employment relationships, it would obviously be necessary for there to be an express scheme of provisions setting out the mechanism by which this would occur. This is consistent with the general history of long service leave entitlements whereby service is only recognised with directly-related employer entities in the absence of express arrangements such as an industry portability scheme. In the scenario posited by the agreed question, this would necessitate an express provision (in clause 55 or elsewhere) requiring Employer Y to afford long service leave to Fractional Doctor A in respect of the doctor’s fractional employment despite the doctor only having served for 5 years.

[32] Two overall observations may be made about clause 55 of the Agreement. First, the clause establishes an entitlement to long service leave for fractional as well as for full-time doctors. This is made specifically clear by clause 55.3(a), which provides for the method by which the payment for long service leave for fractional doctors is to be calculated, as well as the generality of the application of the clause to “a Doctor”, which term is defined in clause 3.1(i) to include a fractional doctor.

[33] Second, the employer obligations imposed by clause 55 are all expressed by reference to “the” health service or “a” health service – that is, in the singular. There is no express reference to any employer obligation having to be discharged jointly or concurrently by two or more employers, and there is nothing in the text of any part of the clause which would infer that references to “the” health service or “a” health service should in some or all cases be read as encompassing the plural such as to give rise to joint or concurrent employer obligations. No submission to contrary effect was advanced by the appellants.

[34] The base entitlement to long service leave conferred by clause 55.1 operates upon the doctor having served the requisite amount of “Continuous Service” with “Institutions and Statutory Bodies”. The definitions of the terms “Institutions and Statutory Bodies” in clause 3.1 make it clear that the entitlement to long service leave conferred by clause 55.1 is not confined in its operation to service with the immediate employer, but may encompass service with other health services in Schedule A and indeed health institutions registered under the HS Act and specified Victorian Government departments.

[35] The concept of “Continuous Service” is elucidated in clauses 55.5, 55.6, 55.7 and 55.8. The appellants rely on clause 55.6(a), which counts as service for the purpose of the entitlement in clause 55.1 any period of service with “Institutions” (including “Statutory Bodies directly associated with them) for which long service leave or payment in lieu has not been received. It may be accepted that, on a strictly literal reading of clause 55.6(a), it would for the purpose of the agreed question mean that the first seven years of Fractional Doctor A’s service with Employer X would count as part of the doctor’s service with Employer Y, because this is a period of service with an “Institution” as defined for which long service leave has not been taken or a payment made in lieu. However, we consider for the reasons which follow that clause 55.6(a), read in the context of clause 55 as a whole, is not to be construed as operating in this way. Rather, we consider, clause 55.6(a) is to be read as part of a scheme by which accrued service for long service leave purposes is portable as between sequential periods of employment with Institutions, with clause 55.6(a) being confined in its operation to the “carry over” of service accrued during a prior employment with an Institution which has terminated.

[36] The principal indicator of this is clause 55.10. It applies in respect of a doctor who has accrued the period of service necessary to give rise to a long service leave entitlement under clause 55.1 (that is, at least ten years) and who “intends to be re-employed” by another Institution or Statutory Body. Although not pellucidly clear, it is apparent enough that “intends to be re-employed” is to be read as referring to an intention to leave the employment of one Institution or Statutory Body and become employed by another Institution or Statutory Body. Clause 55.10 provides a mechanism by which a doctor in that position, rather than being paid out their accrued leave in accordance with clause 55.2, can have their service carried over to their new employer by giving notice in accordance with clause 55.10(a)(iii). Although the operation of clause 55.10 is not coterminous with clause 55.6(a) (because the latter provision does not require ten years’ service with another Institution or Statutory Body in order to count as part of Continuous Service), it nonetheless is strongly indicative of the circumstance in which the portability of service for long service leave purposes is to apply.

[37] A further indicator is provided by clause 55.13 and Schedule D. Clause 55.13 places the burden on the doctor to prove the service necessary for an entitlement under clause 55.1. This is obviously intended to address the situation where the doctor’s Continuous Service includes service with another Institution or Statutory Body about which their current employer may not be aware. Clause 55.13(b) makes clear that a certificate in the form of Schedule D will constitute the necessary proof, although it is not the only form of proof that the doctor may use. Clause 24.3 makes it clear that Schedule D may be used as a record of all the matters set out in clause 24.1. These comprise the dates of commencement and, importantly, termination of employment, the total period of service, long service leave that is taken or paid out, and accumulated personal/carer’s leave at termination. The text of the template certificate for which Schedule D provides refers to the start and end dates of employment at a particular Institution/Statutory Body and, in respect of personal leave, refers to the number of hours of accrued leave “as at the date of cessation of employment with the Health Service”. It is clear therefore that clause 24 and Schedule D are concerned with proof of service during an employment with another Institution or Statutory Body which has terminated. It does not contemplate any necessity to prove service during employment with another Institution or Statutory Body which remains on foot. Although, as stated, clause 55.13(b) allows for other modes of proof, we consider the provision is to be read on the basis that Schedule D will always be one available method of proof. Thus, clause 24 and Schedule D indicate that the service which the doctor is required to prove under clause 55.13(a) is service accrued during a previous period of employment that has terminated. This constitutes a contextual limitation upon the scope of clause 55.6(a).

[38] It may also be noted that, insofar as other paragraphs of clause 55.6 include employment with other entities as part of the concept of Continuous Service, they do so with respect to sequential and not concurrent or overlapping periods of employment. Thus clause 55.6(c) applies to previous service prior to a transmission of business, clause 55.6(g) applies to service as part of a specialist accredited medical program with an employer not covered by the Agreement during a break in employment not exceeding the prescribed duration, and clause 55.6(h) applies to prior service with an interstate government health service, subject to that employment being within two months prior to the doctor commencing employment with a Victorian health service. This confirms the nature of the portability of service scheme for which clause 55 provides.

[39] The appellants’ submission that answer “a” is necessary to give concurrently-employed fractional doctors an effective capacity to take long service (by being able to take leave with all their employers simultaneously) must be rejected because, on any view, clause 55 makes no effective provision for this to occur even when the doctor has separately accrued over ten years’ service with each employer. Clause 55.4(a) provides, in respect of the taking of leave, only that the employer must provide the leave within six months of the eligibility for such leave arising. The doctor has no entitlement to take accrued leave at particular dates during that period, nor is the employer required to liaise with any concurrent employer of the doctor to ensure that the dates of leave align. Further, insofar as clause 55.4(c) and (d) provide for flexible options as to the taking of leave, this requires the agreement of the employer, and there is no requirement for concurrent employers to reach a common position about such a matter. In short, clause 55 provides no mechanism to facilitate the taking of long service leave with multiple employers. This is no doubt the reason why clause 63 provides for the establishment of a working group “to better accommodate long service leave arrangements for Doctors employed by two or more Health Services concurrently”.

[40] The Agreement’s historical context, although not of huge assistance, does not favour the position advanced by the appellants. Having regard to the drafting and structure of clause 55, it is clear that it has its origins in clause 23, Long Service Leave of the Hospital Specialists and Medical Administrators Award 2002, a pre-modernisation award which applied to identified health services in Victoria (including the RWH). Clause 23.2.1 of this award was to the same effect as the current clause 55.6(a), with one critical difference: the provision, and the award as a whole, only applied to “practitioners”, defined in clause 6.9 to be, relevantly, limited to full-time employees. This historical context suggests that clause 55.6(a) was not drafted with the position of concurrently-employed fractional doctors in mind.

[41] In summary, we consider that the “service” to which clause 55.6(a) refers is service during a previous completed period of employment with another Institution or Statutory Body, and not service during current and ongoing employment with another Institution or Statutory Body. This is consistent with the overall structure of clause 55 which, as earlier stated, imposes obligations on employers separately rather than jointly or concurrently and does nothing to facilitate the simultaneous taking of long service leave with multiple employers. That leads to the conclusion that “(b)” is the correct answer to the agreed question, because Fractional Doctor A has not accrued sufficient Continuous Service with Employer Y to have an entitlement to long service leave with that employer under clause 55.1.

[42] All parties were able to point in their submissions to unusual or apparently absurd consequences which would follow if their preferred position was not adopted. We explored a range of theoretical scenarios with the parties at the hearing to test their respective cases. It is not necessary to detail these except to say that neither answer to the agreed question avoids these types of consequences. In relation to answer “(b)”, it must be accepted that if Fractional Doctor A has an entitlement to and takes long service leave with Employer X but does not have an entitlement with Employer Y, the doctor’s service with Employer Y for long service leave purposes will continue to accrue and may carry over to a future employer after the employment with Employer Y ends. That is a result of “service” in clause 55.6(a) being read as inapplicable to current and ongoing employment with another Institution or Statutory Body. That result may be said to be somewhat unusual, particularly if the future employment is full-time in nature. However, that does not dissuade us from preferring the answer “(b)” to the agreed question based on the textual and contextual analysis above.

Conclusion

[43] The answer to the agreed question is: “(b) only Employer X”.

VICE PRESIDENT

Appearances:

J Ryan on behalf of the appellants.

R Millar of counsel on behalf of the respondent.

S Silvapulle on behalf of the Victorian Department of Health.

Hearing details:

2021.

Sydney and Adelaide (via video-link):

9 December.

Final written submissions:

24 November 2021

Printed by authority of the Commonwealth Government Printer

<PR737917>

 1   [2021] FWC 4696

 2   [2021] FWCFB 6044

 3   [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]