T12723
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 DECISION UNDER APPEAL Dr Stephen Bennett and Minister Administering the State Service Act 2000
Industrial dispute - alleged breach of The Salaried Medical Practitioners Industrial Agreement 2003 - application dismissed REASONS FOR DECISION [1] On 10 July 2006, Dr Stephen Bennett (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000, (Department of Health and Human Services) (the Minister) arising out of an alleged breach of a registered agreement - The Salaried Medical Practitioners Industrial Agreement 2003. [2] The matter was listed for hearing on 15 August 2006 (Conciliation Conference) and 26 September 2006 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] The applicant has been employed as a medical practitioner with Clarence Community Health Centre (CCHC) since 1988. From 1988 until 1991 he was employed on a full time basis. For some 13 years, from 1991 until 2004, he was employed on a part-time basis for a contracted 36 hours per fortnight; from some time in 2004 onwards he was contracted for 62 hours per fortnight, his current substantive contract hours. [4] In January 2005 he was appointed, on a temporary basis, as Senior Medical Officer (SMO) for two consecutive contracts that ended when he took leave in May 2005. During the period he was on leave the role of SMO was given to a Dr Crechez on a three-month contract. The applicant was expected to revert to his substantive part-time position on returning from leave in August 2005. [5] The applicant stated that over and above the contracted hours there had been two types of extra duties doctors in the practice were expected to participate in. Firstly, there was "rostered" extra duties carried out during early mornings and at lunch times where doctors were allocated specific sessions. Secondly, "casual" extra duties that were conducted after 6 pm, as the need arose. He also claimed that the extra duties were remunerated by "time off in lieu" (TOIL) rather than by additional wages. [6] The applicant sought to have, what he claimed as, regular "rostered" extra duties added to his contracted hours to make up a full-time load. The reason behind this, he explained, was to access a very favourable remuneration package recently offered to those doctors who were employed on full-time contracts. [7] An office Memorandum from Ms Siobhan Harpur, State Manager ARCH, on 31 October 2005, informed the medical practitioners at the CCHC that overtime had to be pre-approved to facilitate payment. Subsequently, the applicant applied retrospectively for approval of "rostered extra duties" he claimed to have worked. [8] On 28 February 2006, Dr Crechez wrote to the applicant refusing to approve retrospective overtime and instructed him to maintain his contracted hours of 62 hours per fortnight. The instant dispute arose from this directive. [9] The applicant alleged a breach of The Salaried Medical Practitioners Industrial Agreement 2003 (the agreement) in that the Minister did not adhere to the disputes resolution process outlined in Clause 14 - Grievance and Dispute Settlement Procedure of the agreement. [10] The applicant also sought the following:
[11] The Commission made it clear to the applicant that matters of appointments and promotions do not fall within the jurisdiction of this Commission, therefore items 4, 5, 6 and 7 will not be addressed. BACKGROUND [12] In January 2005 the applicant was appointed on a fixed-term contract as SMO; this was subsequently extended until May 2005, at which time he went on leave. Both the original and the subsequent contracts of service1 give a definite end date to the appointment, but carried the proviso "or earlier depending on the permanent filling of the position". During the time the applicant was on leave, Dr Crechez was appointed to the position of SMO for an initial three-month period. [13] On his return from leave the applicant objected to Dr Crechez's appointment and sought redress through the State Service Commissioner. The applicant argued his appointment as SMO was "until the SMO position was filled on a permanent basis". This was a quotation from a general Memorandum issued by Gary Armstrong, District Manager in January 2005.2 The position was re-advertised. Dr Crechez and Dr Kearon were appointed jointly to the position of SMO. Although he applied for the position, the applicant was not interviewed. [14] On 31 October 2005 a Memorandum was circulated to the medical practitioners at the CCHC which directed that all overtime, more commonly referred to as extra duties, had to be pre-approved as a prerequisite for payment. [15] The applicant stated that the new administration did not understand the different types of extra duties and were confused. He stated that he understood the Memorandum of the 31st to only apply to "casual" extra duties. He did not provide a basis for this assumption. [16] The applicant claimed:
[17] Mr P Baker, for the Minister, denied this was the case. [18] The applicant produced samples of rosters4 for "rostered extra duties" for months in 2003. He produced one roster sheet which had the date "August 2005" written in ink on the photocopy. The copy had not been approved. There were seven doctors named on the sheet, but only the applicant and Dr Dunbar had any time against their names. The validity of the document was not established. [19] The applicant did not seek pre-approval for the time he allegedly worked "rostered" extra duties when he returned from leave in 2005. On two further occasions, 9 November 2005 and 28 February 2006, he was reminded, by letter that pre-approval for extra hours was mandatory. Despite these reminders there was no evidence to suggest he ever sought pre-approval for extra duties during the time in question. [20] From his own statement the applicant saw himself as "the last man standing" who took it upon himself to work "rostered extra duties". He gave no reason as to why only he was required to participate in "rostered extra duties". [21] In February 2006 Dr Crechez directed the applicant to do no more than his contracted hours without prior approval and sought to meet with him to discuss the issue. The applicant refused to meet him. The applicant insisted on meeting with his industrial advisor before he would meet with the SMO. On a number of occasions Dr Crechez sought to meet with the applicant. The applicant steadfastly disregarded the attempts of Dr Crechez and the Department to create a way forward. [22] Mr Baker confirmed that the applicant may well have been on the premises at times other than when he was rostered on, and he may well have attended to patients. However, he argued that this was not required of the applicant, nor was it approved and, as such, there was no obligation to recognise the hours claimed. [23] The applicant argued that the custom and practice was, that the doctors worked regular rostered extra duties and as such these hours should accumulate, in his case to equate to a full-time workload. [24] In her evidence Dr S Dunbar stated that, in the past there had been a system whereby time worked in the early morning or at lunchtime was remunerated by TOIL. She confirmed that she had converted these payments into cash remuneration. The roster drawn up of a doctor's times on duty showed she regularly started early. No evidence was educed to indicate that she increased her contract hours by converting TOIL to cash payment. She also confirmed that on a few occasions she applied for and was granted overtime without fuss. [25] In March 2006 the applicant was suspended from duty as a result of another matter not before this Commission. FINDINGS [26] It was made very clear by the applicant, particularly in his written communications, that he did not accept Dr Cerchez's authority as the SMO, to the point where he ignored legitimate management directives. This being the case, resolution of any issue was going to be onerous. [27] In the applicant's rejection of Dr Crechez's authority in October 2005, he argued with the administration that he should continue on as SMO until a permanent appointment was made, citing the Memorandum from Mr Armstrong. However, both contracts of service for the temporary SMO position, which he signed, clearly show he had no claim beyond the end of the nominated period. [28] The applicant, on returning from leave in August 2005, should have resumed his substantive role but persisted in retrospectively claiming for "rostered" extra duties, despite being directed against this on three occasions. He did not provide any credible evidence to support his claim that he was required to perform "rostered" extra duties on his return from leave. [29] The inference that administration was confused about "rostered" and "casual" extra duties, and that only he understood the imbroglio, in my view, was an attempt by the applicant to justify his continued claims for extra hours without the required prior approval. Indeed, he admitted that he thought he was the only doctor still participating in "rostered" extra duties. [30] There had obviously been a system in place at some stage that had called on doctors to participate in regular overtime. Although, from Dr Dunbar's evidence, this system had been in decline for some time as new doctors took up positions in the practice. From the documentation, it is evident the hours of work for the complement of doctors were staggered throughout the day presumably to cover demand. It is clear from October 2005 the administration sought to put some management control over working hours. In my view, the administration quite legitimately chose to utilize its resources as it saw fit. [31] I do not accept the applicant's assertion that he considered the directive of 31 October 2005 as only applying to "casual extra duties". The intent of the Memorandum is quite clear. It was reiterated to him on two further occasions. It is my view he chose to interpret the directive in a manner that suited his purposes and would allow him to manipulate the situation to create sufficient hours to be eligible for the lucrative full-time remuneration package. [32] The applicant ignored legitimate directions with regard to seeking pre-approval for overtime. The Minister's refusal to recompense the applicant for unapproved "rostered" extra duties from November 2005 to April 2006 is a management prerogative. I find the Minister acted in accordance with the guidelines as outlined in the Memorandum of 31 October 2005. [33] The applicant evoked custom and practice since 1981 for being required to work "rostered" extra duties, but could not substantiate this claim other than for a period in 2003. He claimed he was required to work through all the available "rostered" extra duty sessions.5 It is incongruous that a practice, which has several doctors in attendance would only roster one of them, the applicant, to conduct all available "rostered" extra duties. [34] I now turn to the alleged breach of agreement. In Clause 14 - Grievance and Dispute Settlement Procedure, the opening paragraph lays out the atmosphere in which the process is intended to function, "based on consultation, cooperation and discussion". The applicant blocked all attempts to consult, cooperate and discuss the issue. It was quite clear from the evidence, the applicant frustrated all attempts to reach a resolution by his captious stance. [35] The intent of subclause 14(a), in my view, is to provide a means to resolve a dispute at the local level in the first instance. The applicant's refusal to even meet with Dr Cerchez without his "industrial advocate", as he described this person,6 and his claim of having such an onerous workload was a ploy to further frustrate the process of resolution, knowing he was going on leave imminently which would drag out the matter even longer. [36] The Agreement proposes, at subclause 14(a), that "local employee organization representative(s)" may be present at initial meetings. This is a deliberate inclusion in most awards and agreements to prevent the needless escalation of volatile situations. It is reasonable to read "local employee organization representative(s)" as a fellow employee from within the work unit or locality who would appreciate the work environment. The applicant's refusal to meet the SMO, even for preliminary discussions until his `industrial advocate', the Chief Executive of the AMA in Tasmania was available, was not in the spirit of the agreement. [37] The applicant made no attempt to cooperate in resolving the situation, continually bypassing Dr Crechez with communications or obtusely responding to Dr Crechez when he chose to reply directly. [38] Mr Baker argued that different tactics had been tried to resolve the matter even to the point where the Office of the State Service Commissioner had arranged mediation. He asserted the applicant declined to participate. This assertion was not refuted by the applicant. [39] In my view, the Minister acted in a manner consistent with the intent of Clause 14 of the agreement. I find no breach of the agreement. [40] The applicant also cited subclause 14(f) of the agreement, which directs that until resolution through the process outlined from clauses (a) to (e) "work shall continue normally in accordance with custom and practice existing before the grievance or dispute arose ...". [41] The applicant stated:
[42] I find that the applicant deliberately manufactured the opportunity to participate in "rostered" extra duties for his own purposes. Other than his substantive position of the contracted 62 hours per fortnight, the applicant failed to demonstrate that he was legitimately required to work beyond those hours. It follows that his contracted employment of 62 hours per fortnight was the custom and practice up to March 2006. It also follows that his claim for loss of wages back dated to 3 March 2006 is rejected. [43] The application is dismissed, and I so order.
James P McAlpine Appearances: Date and Place of Hearing: 1 Exhibit A3
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