Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) v The Secretary of Health [2020] NSWIRComm 1052

Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Salaried Medical Officers' Federation (New South Wales) (No 2) v The Secretary of Health [2020] NSWIRComm 1052 Hearing dates: 4, 9 and 10 July 2018 and 22 August 2018 Date of orders: 12 August 2020 Decision date: 12 August 2020 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Small claim dismissed Catchwords: AWARD INTERPRETATION – principles - medical officers on call – whether telephone discussions with on call officer constitute remote clinical appraisals – distinction between remote clinical appraisal and clinical advice or discussion – entitlement to payment for remote clinical appraisal depends upon meeting all of the criteria specified in the award Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1024 Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 Health Services Union NSW v Director General NSW Ministry of Health [2013] NSWIRComm 21 Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 Category: Principal judgment Parties: Australian Salaried Medical Officers' Federation (New South Wales) (Notifier) The Secretary of Health (Respondent) Representation: Counsel: Mr O Fagir (Notifier) Mr T J Dixon (Respondent) File Number(s): 2017/00328830

Decision 1. This dispute was originally notified in October 2017 by the Australian Salaried Medical Officers' Federation (New South Wales) ("ASMOF" or "notifier"), specifically on behalf of its member Dr Avalon Moonen, then a junior medical officer. The notification identified five claims made by Dr Moonen under cl 12 of the Public Hospitals Medical Officers' Award ("the Award"). Each claim had been declined, or not approved, by the respondent. 2. The matter was originally allocated to Commissioner Newall. Despite a number of conferences between the parties they were unable to resolve the issues dividing them. The Commissioner then made directions to prepare the matter for arbitration in April 2018. ASMOF filed an amended notification in March 2018 adding a further eight claims. Included in the amended notification was a small claim made pursuant to s 380 of the Industrial Relations Act 1996 (NSW) ("the Act"). Shortly prior to the scheduled hearing date the Commissioner resigned and the matter was reallocated to Commissioner Murphy. 3. A Notice of motion filed by the respondent sought that Commissioner Murphy recuse himself and the Commissioner determined that he should do so [1] . The matter was then reallocated to me. The hearing was completed in August 2018 with an indication that it would be some time before the Commission would be able to publish a decision. The delay (which is greater than anticipated) is due to a number of factors. It is unnecessary to list those factors. Suffice to say the delay is regretted. 4. During the hearing it was made clear that Dr Moonen's claims were advanced as a representative sample, not only of her claims but of the claims of other medical officers covered by the Award. It was contended the claims provided a range of factual scenarios which would enable the elucidation of the proper meaning and application of the clause.