THE LIVERPOOL HOSPITAL v HYSLOP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, HOPE and SAMUELS JJA 17 November 1987, 18 May 1988 [1988] NSWCA 86 ARBITRATION — award — meaning of — determination under Public Hospitals Act 1929, s29M — rates of remuneration for visiting medical officers — entitlement of officers to payment of "background practice costs" component whilst providing services on call-back — entitlement to on call allowance during period rostered on call even though providing services during contracted hours on which on call back — held: (allowing appeal in part from Hodgson J) (1) On a true construction of award, no sufficient ambiguities warrant reference pursuant to s34 Interpretation Act 1987 to background material tendered; (2) "Background practice costs" are payable to medical officer on call back; (3) "On call' allowance is payable during call back but not when medical officer is entitled to remuneration for contracted hours in a sessional contract requiring attendance. LAW REFORM — statutory arbitration — determination under Public Hospitals Act 1929, s29M — gaps in provisions of award — suggestions as to amendment of Act to permit reference back to arbitrator. STATUTE — construction — reference to background materials — Interpretation Act 1987, s34 — whether available in interpretation of award of arbitrator under Public Hospitals Act 1929, s29M — held — award being in the nature of an award in the individual sense is made under statute — materials available to aid construction but in circumstances the award's meaning can be Sufficiently derived from its own language. Public Hospital's Act 1929 — s29L, s29N, s29M, s290, s29P, s29QA. Interpretation Act 1987, s34. ORDER The parties within 28 days to bring in short minutes to give effect to the judgment of the Court. Kirby P I agree in the judgment of Samuels JA. It would have been a more sensible resolution of the present dispute if the issues in contention between the parties could have been taken back to the arbitrator (Macken J) to make clear, as arbitrator, what the parties considered to be unclear in his award. However, the proceedings in the Court were conducted by the parties on the basis that this was not possible, at least not without agreement which was apparently lacking. I approach the appeal on that basis. It explains the application to Hodgson J to declare what was meant in the award of Macken J and the appeal to this Court to challenge Hodgson J's conclusions. If a facility does not exist under the Public Hospitals Act 1929 for reference back and resolution of matters not made express in the award, it would be beneficial in my view, for such provision to be enacted. It is probable that Macken J did not expressly turn his mind to the issues raised in these proceedings. Hence the slow and labyrinthine process of litigation in the Supreme Court to extract from other language in the award and its general scheme the answers which the Court now offers. It should be possible to devise a better means of filling such gaps in the terms of an award, without reopening matters which have truly been concluded by express language. Normally, the best person to fill any such gaps will be the expert arbitrator appointed under the Act 2 UNREPORTED JUDGMENTS stating conclusively what he or she intends rather than judges struggling to infer that meaning where it has not been stated. I agree in the order proposed. Hope JA I agree with Samuels JA. Samuels JA Before Hodgson J the respondents (the first respondent is a registered medical practitioner who is under contract to provide medical services to patients of the first appellant) appeared as plaintiffs to seek certain declarations and orders concerning the interpretation of various clauses of a determination made under s29M of the Public Hospitals Act 1929 ("the Act") by an arbitrator (Macken J) appointed under s29L. The determination, which took effect from 1 January 1986 established the terms and conditions of work, including rates of remuneration, in respect of medical services provided by visiting medical officers ("VMOs") under sessional contracts of the kind in force between the first respondent and the first appellant, which is an incorporated hospital within s3 and the Second Schedule of the Act. PtSC of the Act deals with VMOs who are defined by s29K to mean, so far as relevant, visiting practitioners appointed to perform work as a medical practitioner under a sessional contract with an incorporated hospital It is agreed that the first respondent is a VMO. A "sessional contract" is defined by the same section to mean a contract between a medical practitioner and an incorporated hospital by which the practitioner is required to provide medical services to the patients of that hospital. The determination in CL2 contains its own definitions, but they do not raise any material conflict with those in the Act. CL9 sets out the normal hourly rates payable to a VMO under a sessional contract. CLIO provides, under the heading "background practice costs" ("BPC"): "In addition to the normal hourly rate the VMO. shall be paid the following amount per hour during which he provides services under his sessional contract:-........ " These two clauses therefore establish the rate of remuneration payable for the ordinary provision of services for the hours called "contracted hours" (see CL6), which are specified in the sessional contract. In addition, however, a VMO may be rostered to be on call for certain periods during which he or she must be available, if required, to attend patients of the first appellant or to give advice in situations of emergency which may arise in the hospital. CL2 of the determination defines "on-call" to mean "rostered to be available to attend hospital patients"; and "Call-Back" to mean "called to attend a hospital patient at a time when the VMO would not otherwise have attended the hospital." CL7 stipulates for an "on-call allowance equivalent to one-tenth of [the VMO's] normal hourly rate for each hour that he is on call." CL8 specifies the payment for call-backs (sic: "calls-back" would probably be a less ugly and more correct plural - see Fowler's Modern English Usage 2nd ed (1965) at 456 under "plural anomalies") which are payable at the VMO's normal hourly rate plus a loading whose extent depends upon the hour of the day (or night) at which the call-back commences. The duration of call-backs includes the actual travelling from home and return; and the payment for any one call-back shall be not less than one hour, or call-back time plus the actual travelling time. These are, I think, the terms of the determination in debate. The respondents, the plaintiffs below, claimed declarations that a VMO was entitled to payment of BPC whilst providing services on call-back, in addition to the payments made under CL8; and to payment of the on-call allowance during the whole of the URJ THE LIVERPOOL HOSPITAL v HYSLOP (Samuels JA) 3 period during which he or she is rostered on-call even though during that period the VMO is providing services during contracted hours or while on call-back. Hodgson J made, in substance, the declarations sought, and it is from these and consequential orders that the appeal comes. A great deal of material was tendered and admitted below as background and relevant, in that and other respects, to the construction of the determination. No doubt it is relevant, if s34 of the Interpretation Act 1987 covers an instrument of this kind. Mr H D Sperling QC for the respondents submitted that the determination was in the nature of delegated legislation and should be construed according to the principles applicable to statutory interpretation. The determination is, in fact, an award in the industrial sense designed to regulate the elements specified in s29M(1) of the Act, to be made in accordance with the procedure stipulated in s29N,s29O and s29P, and with an appeal by leave to the Industrial Commission in court session under s29QA. Accordingly, the determination must be construed as an industrial award is construed. For my own part I see no necessity to explore in any depth the nature of the principles of construction to be applied. The questions for decision are answered by giving the language of the determination its ordinary natural meaning. I see no ambiguities which require recourse to more complex doctrine. That is not to say that the answers are beyond argument. They are not; but they are to be found in the determination itself and in such inferences as may properly be drawn from its own terms and definitions. The appellants first submit that BPC are not payable to a VMO on call-back. BPC are, I infer, items of overhead expenses and standing charges inseparable from the running of a medical practice to which all professional fees earned and, in particular in the present context, fees for each hour worked under a sessional contract, are expected to contribute. CL10 prescribes, in addition to the normal hourly rate, for payment of BPC at a fixed amount "per hour during which [the VMO] provides services under his sessional contract." CL3 of the sessional contract specifies that: "The Contracting Hospital and the Visiting Medical Officer agree that the terms and conditions of work and the hourly rates of remuneration under this Agreement shall be in accordance with the Determination under s29M of the Public Hospitals Act, 1929. The determination plainly requires VMOs to answer call-backs (see CL6(c) and CL8). Hence each hour during which a VMO provides services pursuant to a call-back is an hour during which services are provided under his or her sessional contract. Since the determination does not expressly exclude hours worked on call-back from attracting the incidence of BPC it might be concluded without more that BPC were payable to VMOs on call-back. But Mr John Coombs QC, for the appellants, contended that the determination reveals implicit indications to the contrary. First, CL10 contemplates the payment of BPC "in addition to the normal hourly rate", which must be a reference to that formula in CL9 and thus to payment for contracted hours. The BPC are incremental only to payment made for work during contracted hours, and "services under his sessional contract" means exclusively services rendered during contracted hours. But the absence of any express condition (which might readily have been introduced) excluding hours worked on call-back from the provisions of CL10 is, in my view, a powerful answer to this submission. Moreover CL8 which covers payment for call-back prescribes payment at the normal hourly rate plus a loading. So a VMO on call-back is paid the normal hourly rate, together with something more; but that addition does not prevent the 4 UNREPORTED JUDGMENTS opening words of CL10 from being satisfied. Moreover, any other conclusion would produce an anomaly. The pattern of the determination is that each hour worked shall be remunerated by an hourly rate (plus a loading in the case of call-back) together with a sum designed as a contribution to the cost of maintaining the VMO's professional practice. I can see no reason why some hours worked but not others, should be relieved from making this contribution. Secondly, it was submitted that CL6(c) and CL6(e) distinguishes entitlements under CL8 (payment for call-back) from those authorised by CL10 (BPC). These sub-clauses do not seem to me to have this effect. They simply make clear that services rendered as a result of call-backs are to be paid in addition to payment for the contracted hours i.e. the hours specified in the sessional contract. Thirdly, it was contended that because CL8(d) provides a minimum time for payment for call-backs, which may include travelling time, BPC would be payable for time during which no medical services were provided; and that this would produce an absurdity. I quite fail to see any absurdity. CL8(d) rightly perceived that travelling time is a necessary part of the services provided under call-back. It might indeed be absurd if travelling time were excluded from the computation of BPC which, presumably, include a component for the maintenance and upkeep of a motor vehicle. In my opinion the first ground of appeal fails. The appellants then submit that the on-call allowance specified in CL7 is not payable during periods for which a VMO is entitled to remuneration for either contracted hours or call-backs. CL7, as the respondents emphasise, although it contains two specific exceptions, does not exclude payment of the allowance in addition to payments for services actually rendered during the period on call. CL2 of the determination defines "On-Call" to mean "rostered to be available to attend hospital patients"; and I repeat that a call-back means "called to attend.......at a time when the VMO would not otherwise have attended the hospital." Hence, of course, a contracted hour cannot be a call-back, because the VMO is contractually bound to attend the hospital during his or her contracted hours. The absence of any specific exclusion entails that an on-call allowance is payable, in addition to other remuneration, during any period during which the VMO is on-call; and the definitions provide the means of deciding when that situation exists. Since on-call must mean available to attend if required, the allowance represents compensation for the necessity that the VMO must remain sober, alert and in contact against the contingency that he or she may be called. Those on the on-call roster therefore may be called. But for those on the contracted hours or sessional roster (assuming that there is one) the possibility has become reality. For them the chance has already been converted into certainty. "I may go" has become "I must go." The element of uncertainty and potential disturbance of other activities or commitments, with the corollary that other commitments must be avoided, for which the allowance is paid, does not apply where the dates and times for attendance in respect of contracted hours have already been established, as presumably they are in a sessional roster. Accordingly I do not regard a VMO as on-call during the period when his or her contracted hours (in a sessional contract) require attendance. Where, however, a VMO is called-back during the period he or she is rostered on-call I consider that the payment for call-backs stipulated in CL8 applies. That the contingency has matured does not affect the fact that the VMO was required to be in readiness against the chance that happened. There is no ground for URJ THE LIVERPOOL HOSPITAL v HYSLOP (Samuels JA) 5 withdrawing the allowance in favour of the hourly rate. There is no double payment. The payments are made for different things. The allowance is paid for being available to provide services if required, and the hourly rate for providing them. An analogy may be drawn with a barrister's general retainer which provides first call on the barrister's services. If a brief is delivered pursuant to the retainer the retainer fee is not deducted from the brief fee. In my opinion the on-call allowance is payable to VMOs on call-backs. I am not clear about the actual rostering procedure which the first appellant adopts; nor, I gather, was the learned judge. I have rather assumed that the VMO's contracted hours would be exhibited in a roster which indicated, for example, the dates and times at which the first respondent would attend the hospital to discharge his or her obligation to provide medical services for the periods specified in the sessional contract. If this is so, I see no reason why the VMO should be rostered on-call during those periods when, as Mr Coombs put it during the argument..... he is there performing sessional duties, actually on the job...." I therefore see no difficulty in varying the first declaration made by Hodgson J to make it clear that a VMO is not entitled to the on-call allowance while in attendance at the hospital providing medical services during the contracted hours stipulated in a sessional contract. But in case some practical problem exists of which I know nothing, it would be better to delay making final orders until counsel have had an opportunity of considering these reasons, and of drafting short minutes to carry them into effect. I would therefore allow the appeal in part by varying the first declaration in the respects I have mentioned, and otherwise confirm the declaration and orders made below. The appellants have largely failed in the appeal. We should hear counsel on the question of costs. The only order I would make at this stage is that the parties within twenty eight (28) days bring in short minutes to give effect to the judgment of the Court. Parties within 28 days to bring in short minutes to give effect to the judgment of the Court.