Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Director-General, New South Wales Ministry of Health [2013] NSWIRComm 21 Hearing dates: 18 - 20 February 20138 March 2013 Decision date: 22 March 2013 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. Declare that employees covered by the Public Hospital (Medical Officers) Award who provide a "clinical appraisal" over a telephone or by email, rather than via a computer, have provided a "clinical appraisal remotely" without onsite presence and are entitled to a minimum payment of one hour's pay at overtime rates pursuant to cl 12(ix) of that Award. 2. In accordance with the agreement reached between the parties, each party is to pay their own costs. Catchwords: AWARD - benefit - application for declaration of right - on-call resident medical officers and medical registrars - whether entitled to receive payment for undertaking a "clinical appraisal remotely without onsite presence" - meaning of clinical appraisal remotely in cl 12(ix) of Public Hospital (Medical Officers) Award - held - employees who provide a clinical appraisal remotely in accordance with cl 12(ix) of the Award entitled to payment - declaration made - Industrial Relations Act 1996, s 154 Legislation Cited: Evidence Act 1995 Industrial Relations Act 1996 Cases Cited: Certain Lloyd's Underwriters Subscribing to Contract No H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 Chevalley v Inspector Morrison [2012] NSWIRComm 18; (2012) 219 IR 193 Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421 at 437 - 438; (1972) ALJR 701; [1972-73] ALR 1303 Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Director-General, New South Wales Ministry of Health (Respondent) Representation: Mr J Murphy of counsel (Applicant) Mr I Taylor SC with Mr D Mahendra of counsel (Respondent) Slater & Gordon Lawyers (Applicant) New South Wales Ministry of Health (Respondent) File Number(s): IRC 390 of 2012 Judgment 1The Health Services Union NSW ("the applicant") has asked the Court to make a declaration of right under s 154 of the Industrial Relations Act 1996 ("the Act") in relation to the correct application of cl 12(ix) of the Public Hospital (Medical Officers) Award, New South Wales, Industrial Gazette, Vol 367, at 1300 ("the Award"). 2Clause 12(ix), On Call and Call Back, is in the following terms: Officers required to work overtime after leaving the employer's premises to provide a technology support resolution or clinical appraisal remotely without onsite presence, shall be paid for such work at the appropriate overtime rate, with a minimum payment of one hour at such rates. 3The controversy between the parties is "what constitutes a clinical appraisal?" The applicant contends that a "clinical appraisal" is the same as a "clinical assessment" and notes that a "clinical assessment" has been defined as: "an evaluation of a patient's physical condition and prognosis based on information gathered from physical and laboratory examinations and the patient's medical history": see Mosby's Medical Dictionary, 8th ed, Elsevier, 2009, p 394. 4The Director-General, New South Wales Ministry of Health ("the respondent") contends that the expression "clinical appraisal" means "assessing a patient to make a diagnosis or differential diagnosis and to develop a management plan". When used to describe something done by a registrar this involves the following steps: (a) taking a history from the patient and/or person responsible; (b) reviewing clinical notes: (c) a physical examination; (d) review of relevant imaging and/or pathology results; (e) discussion with the Admitting Medical Officer, and (f) recording a management plan. 5The respondent acknowledged an exception to its definition of a "clinical appraisal remotely". This relates to work performed in radiology and anatomical pathology specialties. In these specialities, the role of the Registrar is to look at medical imaging or microscopic images respectively and from them provide the clinical appraisal. An important aspect of this work is it does not require the radiology or an anatomical pathology registrar to examine a patient before providing the clinical appraisal. 6Mr I Taylor SC who appeared with Mr D Mahendra of counsel for the respondent, submitted that the declaration sought by the applicant was of no utility as in effect, it is not a declaration in relation to a state of affairs that will resolve the controversy between the parties and will not save the parties "the trouble and expense of further involvement in litigation as to the details of the controversy". 7For reasons that I will develop later in this judgment, I am of the opinion that the question or controversy between the parties is real and what is declared will have some effect on the rights and obligations of the parties to the proceedings. Although such a declaration may not resolve all the issues between the parties, I can find no authority for the proposition that if this were the case, the Court should not make a declaration. It follows that, for the reasons that follow in this judgment, I have been persuaded that I should make a Declaration of Right under s 154 of the Act. Relief claimed 8Mr J Murphy of counsel who appeared for the applicant, sought leave to file in Court an amended application. Leave was granted. 9The relief sought was a declaration in the following terms: Employees covered by the Public Hospital (Medical Officers) Award who provide a clinical appraisal over a telephone or by email, rather than via a computer, have provided a "clinical appraisal remotely without onsite presence" and are entitled a minimum payment of one hour's pay at overtime rates pursuant to subclause cl 12(ix) of that Award. Grounds and reasons 10The applicant relies on the following grounds and reasons: 1. Employees classified as Resident Medical Officers and Registrars required to work overtime remotely through the provision of clinical appraisals are not being paid in accordance with clause 12(ix) of the Public Hospital (Medical Officers) Award ("the Award"). 2. Clause 12(ix) of the Award - On Call and Call Back states: "Officers required to work overtime after leaving the employer's premises to provide a technology support resolution of clinical appraisals remotely without onsite presence, shall be paid for such work at the appropriate overtime rate, with a minimum payment of one hour at such rates." These occasions are commonly known as "remote recalls". 3. The NSW Ministry of Health contends that this clause does not apply to medical officers under the Public Hospital (Medical Officers) Award, unless they have remote technology set up at home to provide this service. The NSW Ministry of Health does not recognise that a "clinical appraisal", provided over the phone, attracts the payment provided for in clause 12 (ix) of the Award. 4. The actions of the Respondent have caused medical officers to be denied payment for the clinical appraisals they perform remotely. In addition, it has led to the interruption of rest breaks, between ordinary shifts, resulting in fatigue and safety concerns for medical officers when performing their work following such a period of being on call. 5. HSU NSW contend that Resident Medical Officers and Registrars required to work overtime remotely through the provision of clinical appraisals should be paid for such work at the appropriate rate with a minimum payment of one hour. HSU NSW seeks a declaratory order to this effect. 6. Such other grounds and reasons as the Court may allow. Section 154 of the Industrial Relations Act 1996 11Section 154 of the Act, relied upon by the applicant to support the relief sought, provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. Principles for declaratory relief 12In Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145, in referring to the principles for declaratory relief, I observed at [69] - [70] as follows: [69] Hungerford J in Ford v SAS Trustee Corporation and Another (2000) 98 IR 444 at [9] set out the principles for granting declaratory relief under s 154 as follows: [9] Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act, subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438: It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." [70] I will approach the determination of this matter in accordance with these principles. Incidentally, I note that there are a number of authorities of this Court which make plain the scope for the availability of relief pursuant to s 154 and generally speaking adopt a similar approach to Hungerford J: Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213; Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369; T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 at [13] - [15]. 13In Chevalley v Inspector Morrison [2012] NSWIRComm 18; ; (2012) 219 IR 193, the Full Bench of the Industrial Court of New South Wales stated at [49]: [49] Gray J considered, in Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, the use and effect of a declaration power under the Federal Court's legislative provision (a similar provision to s 154 of the Industrial Relations Act 1996) at [95] - [96]: [95] It is to be noted that the power given to the court by section 21 of the Federal Court Act is a power to make "binding declarations of right". As defined by one academic commentator: A declaration is an order made by a court which declares with finality the nature of the legal rights and obligations of the parties in relation to the dispute before it. and: [96] ... The point remains that a declaration of the kind contemplated by section 21 must be of such a nature, and in such a form, as to be of significance. What is declared must have some effect on the rights and obligations of the parties to the proceedings in which the declaration is pronounced. As Mason CJ, Dawson, Toohey and Gaudron J pointed out in Ainsworth v Criminal Justice Commission....A declaration will not be granted if it "will produce no foreseeable consequences for the parties"...More commonly, a declaration of right will be as to a state of affairs, such as validity or invalidity, or the meaning of a particular provision in a particular factual context, so that the parties can resolve their controversies on the basis that the state of affairs exists. In that way, the exercise of the power to make a declaration of right can be a useful exercise of the judicial power, saving the court and the parties the trouble and expense of further involvement in litigation as to the details of a controversy. History of clause 12(ix) 14On 16 December 2005, the Industrial Relations Commission of New South Wales ("the Commission") made a new award, the Public Hospital (Medical Officers) Award ("the 2005 Award") Industrial Gazette, Vol 357, at 898. Clause 11 of that Award provided for On Call and Call Back. The clause provided that medical officers who were on-call were paid an allowance for each on-call period. Where an officer was on-call-back duty, cl 11 provided for a payment for all time work at overtime rates with a minimum of four hours payment. Clause 10, Overtime, of the 2005 Award provided for overtime to be paid at the rate of "time and one-half for the first two hours, and double time thereafter" and "all overtime performed on a Sunday ... at double time". 15As a consequence of a memorandum of understanding entered into between the parties to this matter in 2008, the Commission made a new Public Hospital (Medical Officers) Award, which included cl 12(ix). The circumstances surrounding the introduction of cl 12(ix) will be dealt with as part of the evidence. 16Similarly, clauses were inserted into the Health Employees' Conditions of Employment (State) Award, which applies to employees of the NSW Health Service, including computer staff, medical radiation scientists and pharmacists. A clause in similar terms was also inserted in the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award. This Award historically applied to employees of the NSW Health Service in classifications that, prior to an agreement reached in 1997 between the then Health and Research Employees' Association (a predecessor to the applicant) and the Public Service Association of New South Wales, were traditionally covered by the Public Service Association of New South Wales. Such employees included psychologists, health professionals such as sexual assault workers, and social workers. Applicant's evidence 17Mr Murphy read affidavits of Dr Michael James Karpa, who is employed as a Registrar in the Ophthalmology Department at St George Hospital and Dr Leslie Joseph Schmalzbach, who is employed as a Senior Registrar in the Emergency Department at Royal Prince Alfred Hospital. Each was required for cross-examination. 18Mr Murphy also read affidavits of Mr Andrew Lillicrap, who is the Manager Industrial Services of the applicant. He was not required for cross-examination. 19Dr Karpa stated that he was often required to work overtime remotely and provide clinical appraisals; the types of clinical appraisals including diagnosis and emergency treatment of ocular conditions. He attends the Emergency Department for urgent vision or life-threatening emergencies and provides off-site advice over the phone for non eye-threatening emergencies. The latter are the most common reasons for being contacted by hospitals, which means that the majority of clinical appraisals were provided offsite. He was not remunerated for them. 20Dr Karpa stated that a "clinical appraisal" included eliciting the history of the presenting complaint, together with past eye and medical history; eliciting the examination findings of the examining doctor and directing further examination to be conducted as clinically required; providing a working diagnosis and initial treatment options; directing follow-up requirements and subsequently reviewing the patient based on those requirements. 21In response to affidavit evidence given by Dr Brett Oliver, who was called by the respondent, Dr Karpa stated that it was not possible to provide "clinical advice" without first making a "clinical appraisal". He said a doctor who provided "clinical advice" without making his or her own "clinical appraisal" would be medically negligent. He stated that the reason for calling the on-call Registrar is to obtain a "clinical appraisal" of the patient as the person assessing the patient at the hospital lacks the necessary speciality experience to make his or her own "clinical appraisal" safely. His evidence was the argument in respect of clinical appraisal versus advice is not reality and holds no weight. 22Dr Karpa's evidence was that hospital doctors frequently provide him with photographs taken on smart phones of the involved eye, with and without fluorescein staining, as this is very helpful for certain ophthalmology conditions. This is using new remote imaging technology. He said hospital medical officers are almost always not confident in the diagnosis and treatment when they telephone the ophthalmology registrar, as they lack the skills and experience to make the diagnosis and formulate a treatment plan. Once called, Dr Karpa makes a "clinical appraisal" as to whether the patient requires an immediate review for sight, limb, or life-threatening problems, or whether the patient can be seen in the outpatients department the following day or otherwise. If not happy with the accuracy and history of the examination findings of the person who has called him, which can occur, he would ask for a senior doctor to also review the patient (preferably the consultant) and for he or she to call him back. If this is not possible, he would need to see the patient himself. This also occurs. 23During oral evidence, Mr Murphy tendered two photographs taken by hospital doctors on their smart phones, which involved ophthalmic disorders. Based on the images provided, Dr Karpa advised that the patient most likely had a viral conjunctivitis. In respect of the second smart phone photograph, the patient had suffered an injury to the eye caused by exposure to chemicals. Dr Karpa was unable to properly assess the patient, based on the information provided by the hospital doctor, so requested that a photograph of the eye be forwarded to his smart phone. This enabled him to determine that it was not necessary for him to attend the hospital to urgently treat the patient. 24During cross-examination, Dr Karpa said that on occasions, he would attend a hospital if he was unable to form an assessment at home, based on examination findings of the hospital doctor and descriptions given to him by the doctor. On other occasions, he is able to make assessments at home, which avoid the need for him to attend the hospital. Dr Karpa drew a distinction between observations and symptoms, stating that hospital doctors do not call him with a diagnosis. They provide him with the symptoms which are what the patient is describing. He accepted that hospital doctors are able to take a history from the patient and provide it to him. However he said frequently the history was inadequate and he would then direct the hospital doctor to ask further questions and call him back. 25Dr Karpa said that on occasions when he contacted a consultant, he always provided his examination findings on every occasion. He has never telephoned a consultant and informed him that this is his diagnosis. 26Dr Karpa gave an example where he was provided with advice by the hospital doctor and subsequently formed the view that he should attend and examine the patient at the hospital. Upon doing that, he then telephoned a consultant about the patient who thought the patient could deteriorate quickly, so the consultant also attended the hospital to examine the patient. Dr Schmalzbach 27Dr Schmalzbach has worked at Royal Prince Alfred Hospital since 1978 and in the Emergency Department since 1981. Mostly, he works from 8.00am to 6.00pm and frequently speaks on the telephone with on-call registrars and sometimes, consultants in various medical specialties. His evidence was the on-call registrars provide clinical appraisals of emergency department patients for whom he seeks advice and instruction as to their treatment, admission and disposition. He distinguished this situation from circumstances where the on-call registrar was recalled to attend the patient in person. He stated that on-call registrars provide over-the-phone "clinical appraisal" by virtue of listening to the case as presented, asking questions, seeking clarification, or requesting further investigation, synthesising the problem (possibly), in "telephone advice" upon the consultant, and then providing "advice and/or instruction". 28Dr Schmalzbach stated that there is a great variation in the number and frequency of calls to on-call registrars. In his experience, for very busy units, the person on-call will be called at least every hour (or even more often), around-the-clock. Sometimes two or more patients will be represented during the one call and they are only calls from the emergency department. Additionally there will be calls from other units, for example, obstetrics. 29Dr Schmalzbach described calls to on-call registrars as falling into the following categories: 1. Doctor or nurse: "This is the situation with patient X ..., we think you should come in now."; 2. Doctor or nurse: "This is the situation with patient X ..., could you please provide some advice."; 3. Doctor or nurse: "This is the situation with patient X ..., we wish to admit the patient under your team with the following plan ... would you please confirm your agreement to the admission and treatment plan or provide alternative instructions."; 4. Anybody making the call: "Just letting you know ... (in general something administrative, not requiring opinion or advice related directly to patient care, eg 'Theatre has been delayed by an hour')"; 5. Patient outside hospital (typically: oncology or haematology patients): "This is my current situation ..., what should I do?" 30With the exception of category 4, Dr Schmalzbach said that each required a "clinical appraisal". He observed that the information-gathering aspect was usually by others at the hospital, with the information being provided to the on-call doctor who may ask for further information, provide advice and/or agree to a course of action or treatment. 31His evidence was: "The critical element is the assessment (appraisal) of the clinical situation and the subsequent provision of advice/instruction." 32He said "In this respect, the action of the on-call doctor was completely consistent with medical board and legislative definitions about what constitutes the practice of medicine." 33He also referred to the Medical Board of Australia Guidelines dated 16 January 2012 titled "Technology-Based-Consultations" in which the Guidelines provide under the heading "Definition": Technology-based patient consultations are patient consultations that use any form of technology, including, but not restricted to videoconferencing, internet and telephone, as an alternative to face-to-face consultations. 34The Guidelines further stated under the heading "Providing technology-based patient consultations: Medical practitioners who advise or treat patients in technology-based patient consultations should: 1. Apply the usual principles for obtaining their patient's informed consent, protecting their patient's privacy and protecting their patient's rights to confidentially 2. Make a judgement about the appropriateness of a technology-based patient consultation and in particular, whether a direct physical examination is necessary 3. Make their identity known to the patient 4. Confirm to their satisfaction the identity of the patient at each consultation. Doctors should be aware that it may be difficult to ensure unequivocal verification of the identity of the patient in these circumstances 5. Provide an explanation to the patient of the particular process involved in the technology-based patient consultation 6. Assess the patient's condition, based on the history and clinical signs and appropriate examination 7. Ensure they communicate with the patient to: a. establish the patient's current medical condition and past medical history, and current or recent use of medications, including non-prescription medications b. identify the likely cause of the patient's condition c. ensure that there is sufficient clinical justification for the proposed treatment d. ensure that the proposed treatment is not contra-indicated. This particularly applies to technology-based consultations when the practitioner has no prior knowledge or understanding of the patient's condition(s) and medical history or access to their medical records 8. Accept ultimate responsibility for evaluating information used in assessment and treatment, irrespective of its source. This applies to information gathered by a third party who may have taken a history from, or examined, the patient 9. Make appropriate arrangements to follow the progress of the patient and inform the patient's general practitioner or other relevant practitioners 10. Keep an appropriate record of the consultation 11. Keep colleagues well informed when sharing the care of patients. 35Dr Schmalzbach contended that "as the on-call doctor was liable medico-legally", it could only be concluded that the on-call doctor was performing a "clinical appraisal". He accepted that there did not appear to be a dispute where an on-call doctor provided a report based on diagnostic information relayed by technological means, for example, "a radiology registrar reporting a CT scan over the internet". 36Dr Schmalzbach's opinion was that a "clinical appraisal" is "any occasion on which the on-call officer makes a diagnosis or provides "clinical advice" or gives instruction, regarding the treatment or management or disposition of a patient". 37During cross-examination, Dr Schmalzbach acknowledged that there were three categories involving patients when he would telephone a registrar or a consultant. The first category was to seek advice and the views of the registrar. The second category was to request the registrar or the consultant to attend the hospital. The third category was where the hospital doctor wished to admit a patient. He stated that under this category, it is mandatory that the admission of a patient be discussed with whoever is on-call for the particular unit into which the patient will be admitted and a consensus reached, firstly, in respect of whether the patient is admitted under the on-call registrar or the consultant and what treatment is provided to the patient. In respect of the first category, Dr Schmalzbach's evidence was that essentially he would present the case in respect of the patient. For example (in the case of a call to an orthopaedic registrar), age, gender, patient presents with a broken bone, and how the injury occurred, whether it be from a fall down stairs, motor vehicle accident, or whatever the circumstances were. 38Dr Schmalzbach agreed that before he contacted the on-call registrar or consultant that he had made a "clinical appraisal" himself. He sad that on occasions, the on-call registrar is able to dial in over the internet and view X-rays and other images that may be available on the hospital computer, for example, pathology results, or CT Scans. 39Dr Schmalzbach agreed that a "clinical appraisal" was another way of saying a clinical assessment and gave the following evidence: Q. And that a clinical appraisal involves evaluating the patient's physical condition? A. Yes, certainly it involves I think the question seems to be to the extent it has been to be done in person. Certainly from my reading of Drs King and Oliver's affidavit there seems to be a disagreement about the extent to which that needs to be done as we would say hands on in person. Q. Do I understand your last answer, you agree that a clinical appraisal requires an evaluation of a patient's physical condition but say that the person who does not actually do that themselves can still be doing a clinical appraisal? A. Yes I believe that is the case. Q. I put to you a fact scenario, one that has been provided I think by the Union and I will ask you a question about it. There is an intensive care patient who has multiple organ failure and has developed a complicated life threatening clot and is allergic to routine anticoagulants. In this example there is an intensive care specialist who decides to seek advice from the haematology registrar about alternative anticoagulants and appropriate dosage? A. Yes. I had a personal case just like this about a week and a half ago. Q. So in that phone call there is a haematology registrar at one end of the phone and they are told by the, in this example a specialist, those four things that I identified, is that right? A. Yes. Q. In this example the way this phone call would normally work is that they would be told we have a patient in intensive care who has multiple organ failure? A. Yes. Q. The way this phone call would go is that the doctor calling the haematology registrar would say this patient has developed a complicated life threatening clot and is allergic to anticoagulants. Those four facts have been clinically assessed by the doctor making the phone call, do you agree? A. Yes. Q. The haematology registrar is being asked for advice assuming those facts to be true as to what alternative in the course of treatment might be available? A. Yes. Q. The haematology registrar not themselves assessing, doing any clinical assessment of the patient, they are simply being asked for advice, do you agree? A. They are certainly being asked for advice. I guess my response would be you can't give advice until you've made some kind of assessment of the situation. In other words it is not a theoretical in other words there will never be a phone call of that nature where there is some theoretical question, what would you do here. Instead there will always be reference to an actual patient who is in a particular set of circumstances which will be communicated. In fact in the situation that you are painting the call from the intensive care consultant, that consultant themselves may not have examined the patient. That's the way I see it sometimes works. Sometimes that consultant will have and sometimes he or she may not have, they may also have taken it very much on the basis of the information provided by their registrar or other staff members. ... Q. Coming back to this example, I think you have agreed that the specialist, the intensive care specialist has certainly themselves made a clinical appraisal and they have appraised four key facts, that much is clear from the example, is that right? A. Although certainly I am certain the person answering that call would want more information. They would want to know why are they originally in hospital, how sick is the person, what is the situation and then how do we know they have got a clot, where is the clot and how do we know they're allergic to routine anticoagulants, what has been tried before, what is the evidence. On the basis of that one paragraph you wouldn't expect an expert answer or even a semi expert answer. Q. The registrar though will, as I understand your evidence, in such circumstances work on the move from the starting premise that the specialist clinical assessment of the patient that is having a multiples organ failure is something the registrar accepts as part of the process of the phone call? A. They may want to have further information rather than just accept the bald statement like that without any clarification. I mean, that will vary very much from individual to individual. It depends very much on how the matter is presented in the first place. The actual form of words used and it depends very much on what else the person on the other end of the phone wants to know before they feel they are in a position to offer advice. Q. So do you accept this is the situation, that the registrar who is at the other end of the phone accepts the information that is provided. If they think they need more information, asks for more information but in each case accepts the clinical assessment that has been made by the doctor who is given that information and then they themselves give advise based on that information? A. They may not always accept what they're told, they maybe questioning or they may indeed be disbelieving. I mean we have, you know, we have a view that the story has to make sense. And if the story doesn't make sense then you need to keep asking questions until either the story does make sense or the usual practice would be to say well if you can't make sense over the phone you really should come in yourself and do your own on site assessment. Q. And that happens, does it not, where the person receiving the call does not feel that the clinical assessment that they are being given allows them to give the advice, then where they think that is the case they will then come in? A. That's certainly what you should do. There is another situation where they might say would you mind getting somebody else to also have a look at the patient and call me back. And that would happen particularly if the Person making the call is very junior and does not sound as though they are telling a story that is plausible. You might be asked to review the patient on behalf of the more junior doctor but nevertheless get back to the person on call. 40During re-examination, Dr Schmalzbach stated that on occasions after assessing a patient, the in-house doctor would have a diagnosis in mind and also a treatment plan when a call is made to the on-call doctor. 41On other occasions, if the patient has presented with an illness or injury and is obviously very ill, the in-house doctor will require input both in terms of diagnosis and management plan. His evidence was this process involves a "clinical appraisal" by the on-call registrar. 42Dr Schmalzbach said as a result of improvements in technology, radiology results are now able to be accessed at home by the on-call registrar for "three or so years". In the case of pathology results, these have been accessible by the on-call registrar at home for approximately 15 years. His evidence was they are used by the forensic medicine, neurosurgical and orthopaedics specialties. Mr Lillicrap 43Mr Lillicrap annexed to his affidavit the Memorandum of Understanding ("MOU") between the NSW Department of Health and the Health Services Union NSW for the period 1 July 2008 to 30 June 2011. The MOU formed the foundation for the Award. Among changes to conditions for health workers and increases in salary, cl 12(ix) was included in the Award. 44Mr Lillicrap also annexed a memorandum from Ms Annie Owens, Director Workplace Relations and Management NSW Health to directors of Workforce Development dated 12 December 2008. The subject of the memo read "Remote Recalls - New Minimum One Hour Payment at Overtime Rates". Relevantly, the memo read: One of the recent changes to HSU-covered conditions awards arising from the latest Memorandum of Understanding (MOU), is a provision whereby employees required to work overtime after leaving the employer's premises to provide a technology support resolution or clinical appraisal remotely without onsite presence, are paid for such work at the appropriate overtime rate, with a minimum payment of one hour at such rates. It has come to our attention that some clarification is being requested to assist with the implementation of this provision. To assist with the interpretation and implementation, and to reflect the intent of the new provision, the following approach is suggested: Technology support resolution or clinical appraisal remotely without on-site presence' is defined as providing technology support or undertaking a clinical appraisal using remote technology which, had the remote technology not been available, would have necessitated a return to the employer's premises. For the sake of clarity, it is confirmed that this clause does not apply to the sending or receiving of telephone calls or emails, which are already remunerated by payment of the on-call allowance. ... 45The applicant by letter dated 2 January 2009, wrote to the Director-General NSW Health in response to Ms Owens' memorandum. Relevantly, the letter read: The advice and interpretation contained in the memo suggests that the intent of the new provision was to address those situations that facilitated a resolution or an appraisal to occur without a return to the workforce. However, the memo further states that the provision does not apply to sending or receiving phone calls or emails that are "already remunerated by the payment of the on-call allowance". ... This latter interpretation has resulted in a suggestion by certain Area Health Services that a clinical appraisal being provided by telephone is 'covered' by the on-call allowance, and accordingly not subject to the recall remuneration. This would appear to be at face value contrary to the purpose of the new provision. It is the understanding of the HSU that the new provision was to expressly recognise those situations where assistance is provided but does not result in a return to the workplace. The interpretation that the existing on-call allowance available to a number of employees is in part remuneration for other than solely holding oneself ready and available to respond in a timely fashion requires discussion. This is especially so as those members who have recently contacted the HSU are suggesting that this is now the reason being used to justify the refusal to pay the remote recall payment. ... 46Mr Lillicrap's evidence was that the payment for the on-call allowance which was in the 2005 Public Hospital (Medical Officers) Award, was a payment for a medical officer making himself or herself available on the possibility that her or she may be required to return to work. 47His evidence was that the insertion of cl 12(ix) was designed to cover those situations requiring a "clinical appraisal" without requiring the medical officer to return to work. It was his understanding that this clause was not meant to merely repeat the previous award provision, but to add an additional provision. 48Mr Lillicrap observed that discussions had occurred between the parties in respect of the clause, but had not resulted in any resolution. He said that a number of the applicant's members had received payment of the one hour's overtime under the same clause in their awards when required to work overtime to provide a technology support resolution or "clinical appraisal". These employees include those working in information technology and pharmacists. It was Mr Lillicrap's understanding that pharmacists employed in the Hunter New England Local Health District were paid one hour's overtime payment on top of the on-call allowance when called to provide a "clinical appraisal" under cl 9(ix) of the Health Employees' Conditions of Employment (State) Award. A similar position prevailed in respect of pharmacists employed in the South East Sydney Local Health District. Respondent's evidence 49Mr Taylor called expert evidence from Professor Denis Warwick King, who agreed with Dr Schmalzbach's evidence that there is a great variation in the number and frequency of calls to on-call registrars and that other than in circumstances arising as a result of changes to technology, the situation as described by Dr Schmalzbach in respect of on-call work, has remained unchanged in recent decades. Professor King deposed: A significant dimension is the interrelationship between clinical appraisal" and transfer of responsibility. In a pure sense a Registrar who discusses a patient by telephone and accepts the view of the person calling, without personally reviewing the patient, implicitly accepts that the person calling is competent to make the relevant observations and draw the relevant conclusions and has effectively devolved responsibility for the clinical appraisal to the person ringing. In effectively delegating that responsibility one is delegating the clinical appraisal and on that basis I do not regard a simple 'phone conversation as being a clinical appraisal in any moral or ethical sense. The reading of x-rays for example is a component of a clinical appraisal but is not in itself that appraisal. In the affidavit from Michael James Karpa, dated 3 October 2012, Dr Karpa details those circumstances under which he might attend personally. The circumstances of clinical appraisal, as outlined, would appear to be no different from the practice of recent decades, whereby a sub-specialty Registrar who is prepared to acknowledge the capacity of the examining doctor to elicit information can then form the judgement that a personal attendance is not required and therefore delegates on-site management to that person. This is no different to the practice of the last thirty years. 50During oral evidence, Professor King stated that a "clinical appraisal" involved looking at a patient with a particular clinical scenario against the background of that patient's general health and a whole range of other social and personal factors that may come into play in determining the appropriate course of outcome. Professor King stated that a registrar or consultant could devolve responsibility for the "clinical appraisal", but could not devolve or abrogate responsibility for the patient. 51In cross-examination, Professor King agreed that the senior practitioner retains responsibility for the management and outcome of the patient. He disagreed that in forming a view about a patient that he or a registrar or a consultant had clinically appraised the patient's condition. Professor King's evidence was that the consultant or registrar: ... have appraised the situation and you have taken, if you choose not to go in and if there is any doubt you should go in, if you choose not to go in you have taken at face value someone else's appraisal to inform any suggestions that you might make. 52He said this has been part of practise since he had been practising as a doctor for over 40 years. He said he did not ever regard this as having done the (clinical) appraisal himself. He regarded the on-call contact between the in-house doctor and the registrar consultant as "having taken at face value someone who has made a clinical appraisal and who has advised me of the result ". 53If Professor King was not comfortable with the experience of the medical officer, he would attend the hospital. He reaffirmed that a "clinical appraisal", at the very least, involved an examination of the patient. If this has not occurred then he said had asked or had accepted at face value, the view of someone who had undertaken the examination. In these circumstances, his evidence was that he had not made the "clinical appraisal" himself. His evidence was that in these circumstances he has effectively agreed with the findings of that clinical appraisal and the course of action. 54Professor King's evidence was that he regarded the hospital doctor as being his agent and making a clinical appraisal, conveying information to him and seeking his concurrence with the proposed course of action, assuming that he did not form the view that it was necessary to attend the hospital. In these circumstances, he would still take responsibility in agreeing to the course of action on the part of his agent. He has devolved an assessment and agreed with the findings because of his confidence in the in-house doctor. 55Professor King's evidence was that even where he had mapped out a course of action, he was relying upon the clinical assessment of the patient by the person who is actually in the hospital. This was because he did not believe that he could assess a patient without "a whole range of factors that are simply not available to anyone who is not there" (in the hospital). 56Mr Murphy raised with Professor King a situation where he was provided with all the information that the doctor in the hospital was aware of, Professor King subsequently making a decision as to what course of action should be followed and conveying that to the doctor in the hospital, relying upon his experience, training and knowledge. Professor King's evidence was that he retained responsibility for that decision and stated that in his view, this did not constitute a "clinical appraisal" but was the giving of advice. 57Professor King provided the following scenario: I am a specialist colorectal surgeon a bowel surgeon. I am reasonably frequently rung by colleagues who have a difficult decision to make. A person of this age with this sort of cancer, what are the options, what is the appropriate treatment. In that circumstance I will offer the same advice over the phone that I might offer in the setting that you are talking about. But it is advice. In that circumstance I am not in the hierarchy, therefore I don't take responsibility. I never regard it as anything other than advice and I think that that sort of scenario is actually quite common. 58Professor King clarified that what he was doing was devolving the function of the "clinical appraisal" to the hospital doctor, not devolving the responsibility, because the "clinical appraisal" in his opinion, requires whoever is doing it to perform the hands-on physical examination. 59He accepted that based on his opinion, therefore, there could never be a "clinical appraisal" performed remotely. 60Mr Murphy took Professor King to cl 12(ix) and asked him, in light of his evidence, whether officers required to work overtime after leaving the employer's premises to provide a technical support resolution or a "clinical appraisal remotely", without onsite presence, could occur. Professor King's evidence was that he disagreed with the definition. He confirmed that a "clinical appraisal" could not happen without an on-site presence because of his belief that it was necessary to physically to examine the patient. He further agreed that a "clinical appraisal remotely" without on-site presence was an oxymoron or a non-sequitur. 61Professor King's evidence was regardless of the time that a call may take whether it be 10 or 15 minutes or 30 seconds, the on-call registrar or the consultant was only providing advice. 62In assessing whether he or she believed the person making the call was competent to make a judgment, he said in reaching this decision, he was drawing upon his own experience, skill and knowledge as a senior practitioner to assess the competency skills of the person making the call. 63Professor King's further evidence was that the interpretation of a radiological image did not constitute a "clinical appraisal". His view was that such interpretation of a radiological image was a support measure that was usually an adjunct to a "clinical appraisal". 64Mr Murphy asked Professor King whether a radiology registrar sitting at home reviewing an image of a fractured tibia which resulted in advice being provided that it should be put in a splint and the patient given pain relief constituted a "clinical appraisal". Professor King's opinion was that it did not, because the image may not necessarily tell the on-call doctor whether or not there was a breach of the skin, in which case, the patient would require more urgent treatment. Alternatively, the image would not inform the on-call doctor whether there was an associated vascular injury which if there was, would require further urgent attention. His evidence was viewing the image did not give the on-call doctor necessarily any indication of the clinical urgency because that depends on looking on the effect of the fracture on the remaining tissue. A clinical appraisal could only be made when a doctor actually sees what happens to the limb in such circumstances. 65Mr Murphy took Professor King to the Medical Board of Australia Guidelines and specifically to the Technology-based Patient Consultations Guidelines. Professor King agreed that there was a difference between a "clinical appraisal" and a consultation. He accepted that patient consultations could occur remotely, but not a "clinical appraisal". He also accepted the definition of "technology-based patient consultations" which I have set out earlier in this decision. His evidence was: ... This obviously applies to a wide range of you know technological solutions which does include telemetrics and I suspect to a degree that might be what this document was developed for. But on number 3 [a reference to Guideline 3] alone make their identity known to the patient. I have never actually been asked over the phone to talk to the patient to make my identity known when I have been running these scenario. So I suspect what this is broadly looking at is where you can actually see the patient at the other end of the television screen and say here I am Professor King and you are Mrs Jones. But that doesn't happen in the sorts of scenarios you have been proposing. Q. The sort of scenarios I have been discussing is with the use of the telephone as opposed to the use of a computer? A. My interpretation which I think you asked for was on this, number 3, tends to indicate that this is a set of guidelines that probably applies when there can be some sort of interpersonal contact which is not the scenario when one is a radiology registrar or, I have to be honest, a consultant surgeon or a surgical registrar. 66Professor King's evidence was that in respect of the number of circumstances that had been proposed to him, there was no "face to face or direct consultation with the patient". It was a doctor in a hospital calling an on-call registrar or consultant with a set of information upon which they make a recommendation to on-call registrar or consultant. 67In re-examination, Professor King explained that what the radiologist registrar is now doing at home, which did not occur previously when they were required to come into the hospital, was reading the X-ray which had been forwarded to them at home. This is part of the overall assessment of the patient and it avoids the need for the radiology registrar to attend the hospital. The contrast is that now technical staff can also obtain the X-ray and email the film to the registrar or consultant and the radiology registrar is not required to "get out of bed". Dr Brett Oliver 68Dr Oliver presently occupies the position of Director Medical Services South West Sydney Local Health District. Dr Oliver's experience included being involved in the Resident Medical Officers ("RMOs") Working Party in 2010 in relation to proposed changes to the Award. They included having worked as a registrar and being on-call. He stated that, in his experience, it was common for the relevant on-call medical officer to be called about a patient who, in the opinion of the on-site practitioner, may require urgent treatment. In many such circumstances, it is appropriate for the on-call officer to return to the workplace and undertake a "clinical appraisal". Such a recall is compensated at overtime rates for a minimum of four hours pursuant to cl 12(ix) of the Award. 69Dr Oliver stated that he had read the affidavits of Dr Schmalzbach, particularly in respect of what Dr Schmalzbach contended the words "clinical appraisal" meant in respect of cl 12 (ix) of the Award. 70Dr Oliver stated that from his training and experience, the expression "clinical appraisal" meant assessing a patient to make a diagnosis or differential diagnosis and to develop a management plan. When used to describe anything done by a registrar, this involves the following steps with one exception: (i) taking a history from the patient or person responsible; (ii) reviewing clinical notes; (iii) a physical examination; (iv) review of relevant imaging and/or pathology results; (v) discussion with the admitting medical officers, and (vi) recording a management plan. 71Dr Oliver stated that the examples used in the affidavit of Dr Schmalzbach did not reflect all of these elements. He said they were examples of an on-call registrar providing "clinical advice" and not a "clinical appraisal". Dr Schmalzbach's examples did not involve the on-call registrar appraising the patient. Rather, Dr Oliver said that the "clinical appraisal" was undertaken by on-site hospital staff. 72The exception to Dr Oliver's definition of a "clinical appraisal" relates to work performed in radiology and anatomical pathology specialities. In these specialties, the role of the registrar is to look at medical imaging or microscopic images respectively and provide a clinical appraisal. An important aspect of this work is it does not require the radiology or anatomical pathology registrar to see a patient. 73Technology enables the on-call registrars to look at, for example, CT Scans and imaging on their home computers and then telephoning in their report or type in their report and forward back to the hospital. This was the reason, in his view, for the design of cl 12(ix). 74Dr Oliver's evidence was that over the last 10 years, technology has developed which enables a registrar to review medical imaging results remotely, and as such, provide a remote technology "clinical appraisal" (however described). Where the work is performed remotely by on-call registrars using a computer, the work they are doing is the same as they would do if they were on site and at work. 75Dr Oliver said that he was involved in negotiations co-ordinated by the Ministry of Health to review the Award in 2006-2007 and 2010-2011. As part of the review of the Award in the period leading up to 2008, it was considered that the Award could be amended so that a payment could be provided where an on-call registrar performed a "clinical appraisal remotely" using new technology to view medical imaging records. He said the Working Party considered that the payment of one hour at overtime rates was fair compensation for such a remote call using a technology support resolution. 76Dr Oliver analysed each of the examples provided by Dr Schmalzbach in his affidavit and concluded that in respect of each example, the on-call registrar was providing medical advice and not a "clinical appraisal" for the reasons that he had earlier outlined that are required in order for a "clinical appraisal" to occur. He observed that Dr Schmalzbach's evidence that whether or not a doctor personally attended/examined the patient, that a doctor is liable medico-legally, that doctors are responsible for both advice and appraisals. 77His evidence was issues of legal liability do not alter the substance of that advice, which can only be a clinical appraisal where the circumstances outlined earlier exist. 78Dr Oliver's evidence was that Dr Schmalzbach's definition of "clinical appraisal" was too broad and encompassed advice provided by the on-call registrar which has traditionally been compensated by the payment of the on-call allowance. 79Dr Oliver stated that he had also read the affidavits of Dr Karpa and that he disagreed that the provision of "telephone advice" off-site for non-urgent eye cases, constituted a "clinical appraisal". He stated that in the period prior to 2008, the work that registrars were required to perform when on-call, included providing "telephone advice" and responding to faxed information or emails. In the period from 2008 to present, he said the nature of the work performed by on-call registrars continues to include providing "telephone advice" and responding to faxed information or emails. He said that the only difference prior and post 2008, is that the work that is now performed remotely by radiology and anatomical pathology specialists. 80Dr Oliver stated that if the applicant was successful in redefining "telephone advice" as being a "remote clinical appraisal", there would be a significant increase in costs. Inevitably, public health organisations would seek to significantly reduce telephone calls to on-call registrars for advice, which would impact on patient care. Hospitals will also seek to reduce the number of trainee on-call rosters, which would affect training. 81During oral evidence, Mr Taylor asked Dr Oliver about the practice of images being forwarded to Dr Karpa via mobile phone. Dr Oliver's evidence was that he would be "very surprised if that [practice] complied with New South Wales Health policy on clinical information and privacy". 82His view was that it is in the interests of both the on-call registrars and hospitals that instead of a four hour call-back, there is a one-hour payment for work which might take a registrar 15 minutes to view on his or her home computer. 83Dr Oliver said that he was aware of one other specialty that used imaging, that being, neurosurgical registrars. This work could not be performed by a telephone call as it involves interpreting images, so the images must be sent to a computer so that they may be viewed. 84During cross-examination, Dr Oliver agreed that the viewing of an image by a radiology registrar on-call at his or her home and reporting on it, whether it be an X-ray or a CT Scan, was not a "clinical appraisal". His evidence was that it could be argued that pathologists and radiologists never do a "clinical appraisal". They make a diagnosis in respect of a particular act, which is the nature of their specialty. Dr Oliver disagreed that the purpose of the on-call allowance prior to the 2008 Award was to compensate the employee for the obligation to remain available on-call. He stated it was always accepted that a registrar who was on an on-call roster, would take telephone calls and respond to those telephone calls, and in respect of each telephone call, would decide whether a return to the hospital to deal with the patient was necessary. 85Mr Murphy took Dr Oliver to his definition of "clinical appraisal" and asked him if taking a history from a patient or person responsible (a guardian), was required, then that aspect of the definition would mean that a "clinical appraisal" could never be performed by a doctor off-site. He stated: A. Well, I could say there's one particular case where the federal government pays a rebate for the doctor on remote tele health might not actually see the patient and ask the patient questions. But usually, no. I would expect a doctor to come in and question the patient or the patient's relative or person responsible to take part in that appraisal. Q. With that one exception, putting that to one side, your evidence is that taking a history from a patient requires on site presence, face to face discussion with the patient or guardian? A. With current technology and current privacy laws, yes. Q. Reviewing clinical notes, do you accept that that can be done off site? A. If a doctor can access securely access the computer system of the clinical records, yes. Q That's one way of doing it via their home computer? A. As long as it's a secure link and can meet that privacy policy and our obligations to our patients to meet privacy requirements. Q. Or it could be done by adding the content of those notes read to them over the phone; do you accept that? A. Some old notes are so large I don't think it would be practical to read them over the phone. It's technically possible. Q. Or emailed to them via the medical officer at the hospital? A. Provided it was a secure link. Again, we come back to the privacy issues Q. You would agree that (ii) at least sets out that there are some examples where that could be done at home by a registrar? A. Provided it was set up and I emphasise yet again the privacy issues and confidentiality. Q. The next aspect (iii) is a physical examination. I take it that is not something that could ever be done off site? A. No. Q. The person would have to be there and the doctor would have to be there to do that? A. Correct. Q. A review of the relevant imaging and/or pathology results, I think you said that that can be done off site in certain situations? A. Yes. Q. Discussions with the existing medical officer, that can be done over the phone off site? A. Usually does. Yes, telephone conversations. Yep. Q. Recording of a management plan, putting aside the actual recording of the plan, the development of the plan is something that could be done with a discussion between the on site medical officer and the off site registrar over the phone? A. Certainly could give advice on what to do over the phone. Q. That advice could include or could result in the development of a management plan, couldn't it? A. If you weren't actually on site going back to some of the earlier points where you haven't examined the patient or taken a history, you would be relying on the doctor on site clinical appraisal and giving advice on what they should or shouldn't do. 86Mr Murphy subsequently took Dr Oliver to the terms of cl 12(ix). Dr Oliver confirmed his evidence that a "clinical appraisal remotely" without on-site presence could not be done by a registrar on-call from home. 87Dr Oliver said that he had never heard of the term "technology clinical appraisal". However, he interpreted this term "to mean things like radiology. Radiology is more and more reporting remotely". 88Accepting that radiologists never do anything clinical, he agreed that reporting on an X-ray or CT Scan would not constitute a "clinical appraisal" because radiology is a diagnostic discipline, and radiologists do not usually do physical examinations. 89Dr Oliver therefore agreed with Mr Murphy that radiologists and pathologists could not perform items (i) and (iii) in his definition of the elements that defined a "clinical appraisal". However, he said that they did not carry out these elements during their normal daily duties either. With these caveats, in respect to the differences between the different specialities, he accepted Mr Murphy's proposition in respect of the applicant's definition of "clinical appraisal" which Dr Oliver pointed out was an exception to his definition of "clinical appraisal" as discussed earlier in his evidence. 90Mr Murphy further pursued Dr Oliver's definition of "clinical appraisal" and asked: Q. Going back to your definition of clinical appraisal in para 10, if the on site medical officer gave an extremely detailed history of the patient's condition, pharmacological regime, if there was one, vital signs, symptoms, and all of that, if that was conveyed in great detail over the phone to the registrar at home, the clinical notes were conveyed either by email or orally over the phone, there was a discussion (v), discussion between the two medical officers, and the registrar at home based on all of that information then formulated a management plan, conveyed that to the on site doctor and decided that is what would happen, assuming that all of that happened and the conference went for half an hour, that still does not constitute providing a clinical appraisal on the part of the registrar at home, does it? A. No. Q. So the level of complexity, the degree of the history, the complexity of the condition, the number of enquiries the registrar at home requires to be made, the number of phone calls back and forward doesn't matter, it is still not a clinical appraisal by the registrar at home? A. No, because you are still reliant on somebody else history and somebody else physical examination and eliciting the appropriate physical signs. Q. Whereas the radiology registrar that takes 30 seconds to look at an image on a computer screen and conveys his or her advice back to the hospital, constitutes your exception to the provision of clinical appraisal? A. With 256 CT scans it would take more than 30 seconds to look at a CT scan after hours, it would take at least 15 minutes. Q. Say it is not CT scan, say it is a common garden variety xray of a broken tibia? A. There is no need to send those down the wire, the emergency staff would do it. The only things that need looking at after hours are those that are essential to patient management and routine xrays would usually wait for a formal report the next day. Q. According to your definition, if an xray of a broken tibia was sent to the registrar at home and the registrar reported the film, that would constitute an exception to your definition of providing a clinical appraisal, would it? A. It would be equivalent to what the radiology registrar does at work. It would be crazy for the Health Services to be arranging to transfer simply images like that after hours. Q. Even with the complex images that you referred to might take 15 minutes to look at, come to a view as to what you are looking at and conveyed that view to the on site officer, that constitutes an exception to the concept of providing a clinical appraisal that you have described? A. Yes. The point I made before it obviates the need for the registrar to come in. 91Dr Oliver agreed that he was not aware if any study had been undertaken to quantify the costs of on-call payments versus payments made pursuant to cl 12(ix) and payments made in respect of four-hour call-backs to the hospital. Trevor Craft 92Mr Craft, who currently occupies the position of Deputy-Director Workplace Relations for the respondent, has occupied senior executive service positions with the respondent dealing with Industrial Relations/Employee Relations, since November 2000. He set out the history of the 2005 Award and details of the negotiations which led to the 2008 MOU and the making of the 2008 Award. He was directly involved in the negotiations for the 2008 MOU. 93On 23 September 2008, the Department entered into an agreement with the applicant and signed an MOU. On the same day the Department, the applicant and the Australian Salaried Medical Officers' Federation (NSW), entered into a separate MOU for employees covered by the Public Hospital Career Medical Officers (State) Award. Subsequently, the 2008 Award was made by McLeay C on 12 November 2008. 94On 11 June 2008, the Department of Health (as it was then known) provided a wages offer for all public health system workers covered by the applicant (excluding the Ambulance Service) in anticipation of the expiry of the 2004 MOU. He said the wages offer was for an increase of 3.9 per cent for one year from 1 July 2008 to 30 June 2009, dependent and conditional upon the applicant's agreement to award and policy changes, together with a commitment by the applicant to work co-operatively and positively with the Department to facilitate implementation of identified key reforms within the public health system. The offer was subsequently increased to a three year term. He said the 'total package' of key reforms, together with the award and policy changes, was held to enable employee related cost savings valued at 1.4 per cent per annum that, when added to the centrally funded 2.5 per cent amount, permitted the 3.9 per cent increase. 95Mr Craft said the focus was very much on generating savings to enable an increase over and above the 2.5 per cent centrally funded amount to be afforded; proposals that would lead to an increase in employee related costs without providing at the very least a commensurate increase in savings were diametrically at odds with this focus. 96One of the award and policy changes contained in the offer was a proposal to change on-call and call-back clauses to provide that subsequent call-backs within the current four-hour period would not attract additional payment. This initiative responded to feedback from the public health system of instances where employees would be recalled to duty, undertake activity occasioned by the recall; cease duty; and then be recalled to duty within the four-hour period and thereby attract a further additional penalty payment. 97Another of the award and policy changes contained in the offer was to "Reduce the minimum overtime payment from 4 hours to 1 hour where a technology support resolution or clinical appraisal can be provided remotely." 98Advances in technology meant that activities that had previously required a physical return to work could now be actioned remotely and was seen as likely to occur in the future. The disruption to the employee would be significantly reduced, as well as in many instances the actual time taken to deal with the emergent issue. There was also a concern that the applicant's awards at that time did not reflect or make suitable provision for dealing with responses of this nature. Having the awards continuing to be silent provided a potential exposure to claims that the "correct" quantum of payment for a response entailing a technology support resolution or clinical appraisal by such means entailed a four hour penalty payment. Explicitly setting the quantum of the minimum overtime payment of one hour was viewed by the employer as fair in all the circumstances; served to formalise local ad-hoc arrangements that had arisen in some local Area Health Services such as South Western Sydney; and provided a clear entitlement to be set out in the relevant industrial instrument. 99Mr Craft's evidence was that the costings of the remote recall provisions from the time derived achieved savings by being able to pay one hour's overtime for a technology "support resolution" to be performed by an IT worker or a "clinical appraisal" provided remotely by a clinical classification. There was no intention to provide a payment benefit for activities and practices that continued on as before. By utilising the "new" technology to deal with the matter remotely the resolution obviated the requirement to physically return to the work site, with a one hour payment ensuing rather than a four hour payment that could otherwise be occasioned. 100Contrary to the applicant's case, it was not envisaged that the remote recall provision would apply more broadly to all telephone advice provided by registrars in any number of specialities. If this were the case, it would have been at odds with its inclusion as part of a package of savings designed to contribute to employee related cost savings of 1.4 per cent per annum. 101Mr Craft observed that while the offer made by the Department was made at large to all public health system employees covered by the applicant (excluding the Ambulance Service), cl 12(ix) was seen to have more relevance or application to certain of the applicant's classifications and awards over others. For example, Mr Craft observed that the reforms would have minimum if any relevance to classifications under the Public Hospital Library Staff (State) Award. 102It was believed that the proposal to change to on-call and call-back clauses to provide that subsequent call-backs within the current four hour period not attract additional payment would be directly relevant to classifications under the Public Hospital (Medical Officers) Award, but that application of the one hour minimum overtime provision under this Award would, in practice, be confined to radiology registrars. 103Mr Craft's evidence was that the provisions of the 2008 MOU regarding remote recall, and the introduction of cl 12(ix) in the 2008 Award were made in response to the introduction of new technology that enabled different practices to be utilised than had previously been in place. His evidence was that part of cl 12(ix) which included the phrase "clinical appraisal remotely without on site presence" was intended, inter alia, to pick up the issue raised by South Eastern Sydney Illawarra Area Health Service in relation to the introduction of new Picture Archiving and Communication Systems ("PACS"). The PACS technology enabled images to be transmitted electronically to a remote location from which the image may be examined and a report generated by a registrar or radiologist which could avoid the need for the registrar or radiologist to return to work. The Area Health Service had noted that 2005 Award did not provide a method of remuneration for a "remote clinical appraisal" using a PACS. 104Mr Craft's evidence was at no time before the 2008 Award was made, to his knowledge, was the changes to the remote recall designed to compensate for any telephone advice provided by an on-call registrar. The only reason for the change was by utilising the "new technology to deal with the matter remotely there would no longer be a requirement to return physically to the worksite". The intended outcome was to ensure that there would be a one hour payment rather than a four hour payment that would otherwise be incurred, to remove the possible ambiguity about payment under the various Awards in situations where new technology was being utilised, and to assist in generating employee-related costs savings to contribute to the "general" salary increases over and above the centrally funded 2.5 per cent. 105Mr Craft referred to the MOU dated 23 September 2008 to which reference has already been made in dealing with the evidence of Mr Lillicrap. He stated that following the advice provided in the December 2008 MOU regarding the operation of remote recalls was not brought to the notice of the Workplace Relations Branch of the Department in any concerted manner during 2009 and 2010. 106Mr Craft stated that in December 2011 following concerns expressed by Local Health Districts and evidence that the then HSUeast had commenced an industrial campaign, the Ministry of Health wrote to Chief Executives of Local Health Districts and Networks to reiterate that remote recalls applied to a limited range of activities involving technological support to provide clinical appraisals which, had the remote technology not been available, would have necessitated a return to the employer's premises. Relevantly, the letter forwarded by the Deputy Director-General Governance Workforce and Corporate Services to Chief Executives stated after referring to cl 12(ix): Remote recalls apply to a limited range of activities involving technology support to provide a clinical appraisal, such as providing technology support or undertaking a clinical appraisal using remote technology which, had the remote technology not been available, would have necessitated a return to the employer's premises. The HSUeast has been advising its members that this clause applies more broadly than the Ministry has advised to the system, with the HSUeast asserting that the Ministry has "re-interpreted" the meaning of the Award clause. Directors of Workforce Development were advised on 12 December 2008 that, "this clause does not apply to the sending or receiving of telephone calls or emails, which are already remunerated by payment of the on-call allowance". The Memo is attached for your information. This position has not altered. ... 107Mr Craft stated that in March 2012 the Workplace Relations Branch of the respondent undertook an exercise to estimate the cost exposure in relation to the applicant's claim. His evidence was that in December 2011 there were 3,075 FTE registrars (registrar first year to senior registrar inclusive), and a further 432 FTE career medical officers, giving a total of 3,507 FTEs. 108Mr Craft postulated that if the applicant's claim as it appears to be intended was successful, and each registrar and career medical officer received one additional remote recall payment per week of one hour at the rate of time and one half on the relevant remuneration rate applying to the classification and grade of the employee (i.e. relevant hourly rate x 1.5 x 47/52 [to account for five weeks annual leave]), this would lead to an additional cost of $13.410M per annum. As the Registrar and Career Medical Officer rates have increased by a further 2.5 per cent from 1 July 2012, it is appropriate, according to Mr Craft's evidence to inflate this figure by 2.5 per cent to give an amended amount of $13.745M per annum on a financial year 2012/13 basis. 109Mr Craft acknowledged that the above estimate was based on an assumption of one additional remote recall payment of one such instance per Registrar and Career Medical Officer per week on duty. He stated the actual incidence was likely to be concentrated in some specialties/activities compared to others and therefore in practice there would be a degree of variability amongst employees, but for the purpose of undertaking the costing exercise, this assumption was seen to be reasonable and conservative. 110He stated the increase in costs represented 0.3 of an increase on the total employee related expenses for health workers excluding ambulance officers. 111Mr Craft contended that while the increase may not appear to be "terribly large", it would result in an overall increase in salaries for health workers from 3.9 per cent per annum (being the amount agreed in the MOU) to 4.2 per cent for one of the three years of the term of the agreement. 112In addition, he stated that having a net outcome of increased employee related expenses was the antithesis of the focus in the 2008 bargaining to identify savings and efficiencies to enable salary and related expenses increases over and above 2.5 per cent. 113Furthermore, Mr Craft stated that there was no provision in the forward estimates of the respondent to accommodate increased payment in the manner that appears to be contemplated by the applicant. Any additional financial liability would need to be met by relocating those financial resources from other activities in the NSW public health system. 114Mr Craft was extensively cross-examined. However, in light of the principal issue that arises for determination in this matter, it is, in my view, unnecessary to refer to the cross-examination in great detail. 115Mr Murphy referred Mr Craft to a letter from the South Eastern Sydney Illawarra Health Service dated 27 April 2006 in which the Director of Clinical Operations raised the issue of the introduction of PACS which enabled images to be transmitted electronically to a remote location from which the image may be examined and a report generated by a registrar or radiologist. The Area Health Service observed that it appeared that both the Award and Determination did not contemplate this mode of undertaking what previously necessitated a call-back to the hospital premises and sought advice on the correct mode of remuneration. In such circumstances, by letter dated 29 May 2006, the Director of Employee Relations Legal and Legislation, advised that "under the present provisions, the payment of appropriate on-call allowance should be regarded as covering the reporting of images from a doctor's place of residence". 116Mr Craft agreed that now, in certain specific situations, compensation was paid to radiology registrars who examine images transmitted to them at their home, pursuant to cl 12(ix) of the Award. 117Mr Craft confirmed that he was heavily involved in the negotiations that resulted in the 2008 MOU and the agreement reached between the parties. Mr Craft's evidence was that the term "clinical appraisal" meant a an appraisal by an appropriate qualified clinician. He was unfamiliar with the term "technology clinical appraisal". He accepted that the word "technology" did not qualify the words "clinical appraisal". 118Mr Craft accepted that a physical return to the hospital was not required to discharge a "clinical appraisal" related to the instance that came forward in 2008 which was a radiologist which, he said, was the basis for the subclause. 119Mr Craft's evidence was that the intention of the clause was to provide a "clinical appraisal remotely" without onsite presence by way of a technological process, which obviated the return to the hospital. He accepted there was no reference to technological process in the subclause. His evidence was that the parties knew what they were talking about and at the time there was no need, therefore, for the additional words to be inserted. 120His evidence was the reference to what he had in mind in respect of the reference "clinical appraisal" can be undertaken remotely, was the radiology example given by the South East Area Illawarra Health Service in 2008 and perhaps also pathologists. He accepted that the subclause could have been confined to these two groups. He said there was a common understanding as to what the words meant. However, he agreed that there was nothing in the clause to confine it to these specialties. Mr Craft agreed that employees covered by the Public Hospital (Professional and Associated Staff) Conditions of Employment Award (e.g. social workers, occupational speech pathologists, therapists - the allied health professionals) although a similar clause to cl 12(ix) appeared in that Award, he could not think of any employee that would be called upon provide a "technical support resolution" remotely or a "clinical appraisal remotely". 121He accepted that it was bad practice to include in a conditions award, a provision that was seen to have no application to the classification or salary. 122Mr Craft agreed that the intention behind the initiative was designed to reduce the incidence of call-backs which resulted in a payment of four hours at overtime rates. 123Mr Murphy referred to the example of the ophthalmic registrar (Dr Karpa) being on-call and receiving images via his mobile phone of an eye. Mr Craft agreed that this would amount to a clinical appraisal as contemplated by cl 12(ix) through the use of technology which removed the need for the doctor to attend the hospital. His evidence was that it was envisaged that from 2008, other medical specialities could be captured by the provision because of technological advances. He stated that the industrial parties were "interested in what constituted a clinical appraisal but without unpacking it". He said: We were seeking to put in place a provision that could potentially have wider application but we didn't have any certainty, we didn't know whether things being contemplated would come to bear. But we wanted a system that in all the circumstances in reverting back to industrial terminology and frame of reference was fair at the end of the day. 124Mr Craft explained that: So, by utilising available technology they were able to do "the fix" remotely and it was in the subject area of information technology. In relation to the medical professions, as you have taken me through, it was utilising the technology to assist or to enable the appraisal in a clinical setting. 125Mr Murphy during cross-examination put various scenarios which involved a large number of factual assumptions in respect of on-call registrars, consultants and the in-hospital doctors at the conclusion of which Mr Murphy suggested to Mr Craft that a clinical appraisal had occurred which would give rise to a payment pursuant to the clause. One involved an example of a hypothetical haematology registrar. Mr Craft's response was that but for certain mechanisms the registrar would have otherwise had to return to the hospital, then in his opinion, it would amount to a clinical appraisal. Mr Craft explained that but for the technological support and the infrastructure associated with it, there would have been a requirement to return to the hospital. He said he was seeking to differentiate from communication between the medical officers on duty and the registrar that would be in the nature ordinarily and appropriately comprehended by the on-call provisions in the Medical Officers Award. His understanding was that a consultant had an integral and critical role to play, but this understanding was in the abstract. 126Mr Craft agreed that in respect of radiographers working country areas under circumstances prior to 2008, they may have been entitled to four or five call-back payments of four hours overtime for each case while they were on call, the new subclause significantly reduced the number of call-backs to potentially one. This would achieve savings. Mr Craft expressed that there were limitations in his knowledge as to what was a clinical appraisal and Mr Murphy took Mr Craft through various scenarios as to what a clinical appraisal may contain. 127Mr Craft's evidence was that the additional provision from the Department's perspective required a test to be met that had the remote technology been available, the on-call registrar would have returned to the hospital. If that test was not met then the pre-existing arrangements in respect of receiving the on-call allowance prior to the introduction of cl 12(ix) would have continued to apply. 128Mr Craft was asked about his costings of the impact of cl 12(ix) if the applicant was successful. He agreed that the total figure of 3507 FTE registrars included, for example, dermatology registrars that would be unlikely to be required to be on-call and that the costings had been based on each registrar being on-call and performing one remote recall per week. He agreed that the calculation was based on various assumptions and not empirical data. 129In re-examination, Mr Craft's evidence was that the intention of cl 12(ix) was that where the remote technology, had it not been available, it would have necessitated a return to the hospital by the on-call registrar, he said: A. From my personal perspective, it was always the case that that was a critical component as to it was almost a precondition to access that payment. That in the absence of that precondition, for medical officers, we reverted back to the preexisting provisions and it was the remote technology being available was how we moved into a different way of providing clinical services. In the absence of that technology, it ceased to be any change from what we presently had. And given the challenges of trying to find efficiencies to will on the 2.5 percent, just as the HSU told us that some things were just not going to fly, I and other officers in the department wouldn't have put it up because, as I have said in my affidavit, it was already sufficiently challenging. We didn't want to have a bigger hole to try and fill. 130Mr Craft stated that he believed that it would have been of assistance if the form of words that were included in Ms Owens' memorandum of December 2008 had been incorporated in the generic Award changes. He recognised that the memorandum was forwarded a month after the Awards were varied, but regarded it as almost a contemporaneous document. He said: "The perspective remained fresh and Ms Owens was also involved with me in the 2008 negotiations." 131Mr Craft stated that the Department, in his opinion, has complied consistently with the intention of the provision while recognising that the words in the Award most certainly could have been improved. His recollection there was also some turnover of HSU officers at that time. Issue in dispute - Submissions of the parties 132Mr Murphy and Mr Taylor, helpfully provided written outlines of their respective submissions and supplemented them orally. 133It is convenient to review what counsel described as the issues in dispute. The critical issue as submitted by Mr Murphy was the meaning to be attributed to the words "to provide a technology support resolution or clinical appraisal remotely without onsite presence", ... as those words appear in cl 12(ix) of the Award. Counsel emphasised the words italicised. 134Mr Taylor submitted that the first issue was whether the declaratory relief sought should be granted as a matter of discretion. This required a consideration of whether there was: (a) justiciable dispute between the parties; (b) what was the nature of that dispute; (c) whether the declaration sought would resolve such a dispute, and (d) if no declaration was made, whether the court should express any (non binding) views intended to assist the parties to develop a practical method to resolve the dispute. 135The second issue, Mr Taylor submitted, related to the interpretation of cl 12(ix) of the Award which included, so it was submitted, "did the clause extend to requiring a payment in addition to the on-call allowance for clinical work of a type that prior to the introduction of the Award clause, was done from home without accessing remote technology (i.e. providing clinical advice and instructions)? 136In essence, Mr Taylor submitted that although there was a dispute between the parties as to the intent and effect of the clause, the court would not make the declaration sought since it would not resolve that dispute. Indeed, the declaration now sought would, it was submitted, if anything, increase the level of uncertainty as to the true effect of the clause. 137Mr Taylor acknowledged that there was a controversy between the parties, that being, the applicant asserted that the clause should apply whenever a doctor provided advice or gave an instruction as to clinical matters over the telephone, whereas the respondent asserted that the clause only applied to those situations where a doctor by accessing images remotely, provided an assessment from home that, but for access to those images at home, would have required the doctor to return to work. Consideration 138This court is vested with jurisdiction to make binding declarations of right. As Gibbs J observed in Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421 at 437 - 438; (1972) ALJR 701; [1972-73] ALR 1303: It is neither possible nor desirable to fetter the broad discretion given by ... laying down rules as to the manner of its exercise. ... 139It is clear, in my view, that the primary dispute between the parties is what do the words "clinical appraisal remotely" relevantly mean in cl 12(ix)? This issue is real and not theoretical. The applicant has a real interest in raising it. 140Expert evidence was led by the respondent as to the meaning of the expression "clinical appraisal remotely". Conflicting evidence was given by the applicant's witnesses. 141The fact that once an image (e.g. CT Scan, X-ray) has been reviewed and the resulting clinical appraisal can be communicated by phone or email, is actually not in dispute. Mr Taylor acknowledged that a radiologist, who views images remotely from home, so obviating the need to return to the hospital, could provide their subsequent clinical appraisal over the phone or by email and the allowance provided for in the clause would be payable. The method of communicating the clinical appraisal was not the matter that was in dispute. 142Mr Taylor submitted that the declaration as sought has the potential to increase the dispute, since it does not make clear that the allowance is not payable in respect of work that falls short of a "clinical appraisal", such as advice provided over the phone of a clinical nature. 143The authorities that I have set out earlier in this judgment provide that, as a matter of discretion, a declaration will not be granted if it "will produce no foreseeable consequences for the parties". 144Mr Murphy submitted that it was not unusual for award provisions to be cast in terms which are not so closely defined so as to exclude any differences of opinion as to their application to any given actual circumstance. Counsel gave the following examples. A post mortem examination performed on a partly decomposed or vermin-infested body (cl 12(ii)(d) of the Health Employees Conditions of Employment (State) Award); employees working in places the dimensions or the nature of which necessitate working in a stooped or cramped position or without sufficient ventilation (cl 12(viii)(b)); dirty work - work which a supervisor and employees agree is of a dirty or offensive nature by comparison with work normally encountered in the classification concerned (cl 12(viii)(c)); an employee called upon to work knee deep in mud or water (cl 12(viii)(i). 145The court has been called upon to make a declaration of right and not resolve a dispute in the arbitral sense. I disagree with Mr Taylor's submission that it is unnecessary for the court, in order to resolve the current controversy, to have before it a detailed prescription of what does and what does not constitute a "clinical appraisal". The Court has received evidence of what is a "clinical appraisal". The words are capable of being given meaning. 146Furthermore, I do not accept Mr Taylor's submissions that if I grant the applicant's declaration that it will not resolve the controversy between the parties. In truth, what the declaration seeks is what constitutes a "clinical appraisal remotely" without presence on site for the purposes of cl 12(ix) of the Award. It may be that any declaration will provide an incomplete resolution of what the parties seek. However, it will provide guidance to the parties in the future. I was not provided with any authority, nor can I find such, that precludes me from making a declaration in these circumstances. Indeed, in my view, attention to strictures which may exist in granting relief under s 154 would unnecessarily fetter the ordinary jurisdiction of the court as exercised under s 154. The power to make a declaration by the Industrial Court should not be approached in a strict legal manner. Declarations in this Court are usually sought against a background of Industrial proceedings and therefore call for a practical outcome in resolving an issue or controversy between parties. 147The relevant principles of construction in respect of an award and the approach which should be applied to the interpretation of provisions in an award by which I propose to be guided, were stated by the Full Bench in Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [38] - [47] as follows: [38] The Interpretation Act 1987 (NSW) applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503. [39] There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts. [40] First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. [41] The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; 61 IR 32 at 67-68. [42] This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] Aust Torts Reports 81-951 at [14] and [16] 14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) ... 16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported); Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].) [43] Secondly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated: ... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board (NSW) v Australian Workers Union (2004) 135 IR 56 at [44]. [44] Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113: Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is "reasonably open". Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. [45] This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments... [46] Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. [47] Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 148The Macquarie Dictionary, 5th ed, Macquarie Dictionary Publishers Pty Ltd, 2009, p 75, defines "appraisal" as: "1. The act of assessing the worth, quality or condition of anything. 2. An assessment or statement of work, quality or condition ...." 149Stedman's Medical Dictionary, 28th ed, Lippincott Williams & Wilkins, 2000, p 353, defines "clinical" as "relating to the bedside of a patient or to the course of his disease denoting the symptoms and course of a disease, as distinguished from the laboratory findings of anatomical changes". It also defines "clinician" as "a health professional engaged in the care of patients, as distinguished from one working in other areas". 150It is permissible, consistent with award interpretation principles, for the court to take into account extrinsic evidence as to matters known to the parties at the time the industrial instrument was made to determine its purpose and so determine its true effect. 151The 2005 Award provided that pursuant to cl 10(i) "all time worked by officers in excess of the ordinary hours were paid at overtime rates, being time and half for the first two hours and double time thereafter with all overtime performed on a Sunday paid at double time". Clause 11(iv) provided that a medical officer called back for duty when on-call would be paid for "all time worked at the appropriate overtime rate with a minimum of four hours at such rates". That represented seven hours ordinary pay. The expression "time worked" was defined by cl 8 to mean "work done whilst in attendance at the hospital". 152Clause 11(iii) of the 2005 Award provided for an on-call allowance to be paid when a doctor was on call. Clause 12(iii) of the current Award provides an on-call allowance per on-call period which coincides with the day rostered on duty of $13.70 and an on-call allowance per on-call period which coincides with a rostered day off of $27.60. Per week on-call attracts an allowance of $95.40. 153Mr Taylor submitted that because on-call registrars had, in the past, provided clinical advice over the telephone, cl 12(ix) could have no application to that work. Furthermore, it was submitted that the on-call allowance of $13.70 per day compensated the employee for performing this work. 154Mr Murphy submitted that there was no evidence as to the nature or frequency of calls made to on-call registrars before or after the provision was inserted into the Award in 2008. 155Furthermore, counsel submitted that the "costings" provided by Mr Craft were entirely baseless, as no account was made of the savings that such calls generate by avoiding the need for the registrar to return to the hospital and incur a minimum payment of four hours at overtime rates. 156Mr Murphy also submitted there was absolutely no basis for the claim that the on-call allowance contained any element of compensation for providing clinical advice/assessment/appraisal over the telephone. So much, counsel submitted, was acknowledged by the Hunter New England Local Health Network. I agree with these submissions. 157The evidence discloses that from on or around 2005, technology emerged in respect of radiology registrars which permitted them to do from home that which, before then, they had to return to the hospital to do. Such work attracted no additional payment apart from the on-call allowance. 158Arising out of the 2008 Award negotiations and the MOU, was an agreement for a salary increase of 3.9 per cent with 2.5 per cent being centrally funded and the balance requiring costs savings. 159One of the savings was to reduce the minimum overtime payment from four hours to one hour, where a "technology support resolution or clinical appraisal remotely (i.e. without onsite presence) occurred." 160Mr Craft's evidence in respect of this saving was: Advances in technology meant activities that had previously required a physical return to work could now be actioned remotely and were seen as likely to occur in the future. The disruption to the employee would be significantly reduced, as well as in many instances, the actual time taken to deal with the emergent issue ... It is my understanding that costings of the remote recall provisions from the time derived achieved savings by being able to pay 1 hour's overtime for a technology "support resolution" to be performed by an IT worker or a "clinical appraisal" provided remotely by a clinical classification. The calculated savings were in direct consequence of paying for 1 hour at overtime rates in lieu of 4 hours for work of this nature. There was no intention to provide a payment benefit for activities and practices that continued on as before. By utilising the 'new' technology to deal with the matter remotely, the resolution obviated the requirement to physically return to the work site, with a 1 hour payment ensuing, rather than a 4 hour payment that could otherwise be occasioned. 161Mr Craft further stated: Contrary to the Applicant's case, it was not envisaged that the remote recall provision would apply more broadly to all telephone advice provided by Registrars in any number of specialties. If this were the case, it would have been at odds with its inclusion as part of a package of savings designed to contribute to the employee related cost savings of 1.4% per annum. 162Although Mr Craft was cross-examined as to the reasonings behind the relevant words that ultimately became cl 12(ix), Mr Craft's understanding of the intention of the words are of no relevance to the interpretation of the clause. The High Court (French CJ and Hayne J; Kiefel J agreeing in a separate judgment: Crennan and Bell JJ dissenting on the outcome of the appeal) considered in Certain Lloyd's Underwriters Subscribing to Contract No H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 the principles and general approach to interpretation of statutes. At [25] - [26], French CJ and Hayne J stated: [25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure[34]. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others[35], to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have"[36] (emphasis added). And as the plurality went on to say[37] in Project Blue Sky: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction[38] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." To similar effect, the majority in Lacey v Attorney-General (Qld)[39] said: "Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts." (footnote omitted) The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention. [26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions[40]. As Spigelman CJ, writing extra-curially, correctly said[41]: "Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case." And as the plurality said in Australian Education Union v Department of Education and Children's Services[42]: "In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose." (footnote omitted) 163Although French CJ and Hayne J were considering the general approach to the interpretation of statutes, in my view, the observations in respect of what those who promoted the clause may have had in mind, are equally applicable to the interpretation of the relevant words in the Award under consideration here. 164Similarly, the events that occurred immediately after the Award was made cannot be relied upon to interpret the clause, since they postdate the making of the Award. 165Clearly, the addition of cl 12(ix) was intended to reduce overtime payments from seven hours ordinary pay when a medical officer returned to the hospital to one and a half hours ordinary pay when the medical officer undertook work remotely. The critical question is: was or was not the work a "clinical appraisal" as opposed to the provision of a "resolution" or "advice"? The respondent submitted that the latter concepts are separate and distinct to a "clinical appraisal" as did the applicant. 166Mr Taylor contended that the Court would "be concerned that in this case, the applicant is effectively seeking to expand the effect of cl 12(ix) to apply to situations where "a resolution" or "advice" is granted in a manner that attempts to sidestep the established principles of legislative provisions that govern variations to Awards, particularly those that improve conditions". 167I do not agree with this submission. In my view, there is nothing that precludes me from determining that a "clinical appraisal remotely" without on site presence at a hospital undertaken by an on-call registrar incorporates various concepts and requirements. It is necessary to consider the evidence and meaning of the terms to determine what constitutes a "clinical appraisal remotely". 168Based on the respondent's expert evidence, cl 12(ix) would be rendered meaningless because a "clinical appraisal could never be performed "remotely without onsite presence". 169Professor King's evidence was that a "clinical appraisal" required whoever was doing it to perform the hands on physical examination of the patient. Professor King gave the following evidence: Q. So we understand this, do you say a clinical appraisal cannot happen without an on site presence? A. I believe it cannot. Q. Because you have to physically examine the patient? A. Yes. Q. You can't do that unless you are there on site? A. Yes. Q. In your view, is that clinical appraisal remotely without on site presence a non sequitur, it just does not follow? A. An oxymoron, you are right, a non sequitur. Q. It is a nonsense perhaps. 170Dr Oliver was also of the opinion that, to perform a "clinical appraisal", a medical officer needed to have direct contact with the patient. 171Dr Oliver then gave the following evidence: Q. You have some knowledge, do you, of the terms of subclause 12 (ix) of the Public Hospital Medical Officers Award? A. Yes, that's the clause involving technology resolution or remote clinical appraisal. Q. Yes. Do you have it handy? Perhaps provide you with a copy extract of the Award itself, exhibit 1 (handed up). The particular provision about which you have given evidence in para 7 of your affidavit appears on p 6 of the extract. Subclause (ix), do you have that? A. I think the numbering is different on that version, but if it is clause 12(ix) it is at page 8. Q. Page 8, subclause 12 (ix) can you just read that to yourself? A. Yes. Q. Putting aside for the moment the words "provided technology resolution" and focus on these words "or clinical appraisal remotely without on site presence" do you see that? A. Yes. Q. Can his Honour take from the evidence you have just given that a registrar on call at home could never ever do that? A. That's my view. 172The evidence of Professor King and Dr Oliver is antithetical to the clause. Their evidence of the requirements for a clinical appraisal would make the term "clinical appraisal remotely without onsite presence" redundant. 173It is unlikely that the parties intended to insert into an award a provision requiring payment for work performed, which could never be activated because the work could never be performed in the manner required by the terms of the provision. The principles of construction require the court to give meaning to the term "clinical appraisal remotely" and to strive to find the meaning of the provision so that it has some work to do. 174Mr Taylor objected to the applicant reading the affidavits of Dr Schmalzbach and Dr Karpa called by the applicant on the following grounds: (i) the Uniform Civil Procedure Rule ("UCPR") 31.23 requires an expert witness to comply with the code of conduct set out in Sch 7 unless the court otherwise orders; (ii) Section 76 of the Evidence Act 1995 creates a general exclusionary rule for opinion evidence. 175I admitted the evidence of Dr Schmalzbach and Dr Karpa pursuant to s 79 of the Evidence Act 1995 ruling: ... that evidence is based wholly or substantially on specialised knowledge which is based on the witness' respective training and experience. Not to include the evidence of their special experience in respect of the issues in this matter would, in my view, keep valuable evidence from the Court. In my view this evidence may be adduced from an experienced employee in a particular trade or industry where it is sufficiently extensive to qualify the person to give such evidence not being called as an expert witness as defined in the UCPR and, as is contemplated by s 79, ... 176The essential elements of a "clinical appraisal" according to the evidence of Dr Karpa included "eliciting the history of the presenting complaint, together with past eye and medical history; eliciting the examination findings of the examining doctor and directing further examination to be conducted as clinically required; providing a working diagnosis and initial treatment options; directing follow-up requirements and subsequently reviewing the patient based on those requirements". 177Dr Karpa's further evidence was that hospital medical officers are almost always not confident in the diagnosis and treatment when they call the ophthalmology registrar as they lack the skills and experience to make the diagnosis and formulate a treatment plan. This is why they call the ophthalmology registrar. Dr Karpa said he makes a clinical appraisal as to whether the patient requires an immediate review for sight, limb, or life-threatening problems, or whether the patient is to be seen in the outpatients department the following day or otherwise. If he was not happy with the accuracy of the history and examination findings of the person who had called him, which happens from time to time, he would ask for a senior doctor to review the patient (preferably a consultant) and for them to call him back. If this is not possible, it would be necessary for him to attend the hospital and see the patient. 178Dr Karpa also stated that he was frequently provided with photos taken by smart phones of the eye, with or without fluorescein staining. He said he subsequently performed a "clinical appraisal" by being able to diagnose the patient based on the images. He does not receive any payment for undertaking this work as to date it has been held to not be subject to cl 12(ix). 179I have earlier set out the evidence of Dr Schmalzbach in respect of what he says constitutes a "clinical appraisal" at [27] - [32]. 180Dr Schmalzbach's evidence was that a "clinical appraisal" equated to a "clinical assessment". It did not necessitate that the on-call registrar had "to be there in person taking a history and examining the patient". His evidence was that the Medical Board was of the view that a remote consultation could occur without physically laying hands on the patient. It followed, according to his evidence, that a "clinical appraisal" could similarly occur. Dr Schmalzbach believed that a "clinical appraisal" required an evaluation of a patient's physical condition, but that an on-call registrar who does not actually do that evaluation, he or she can still be performing a "clinical appraisal". 181Dr Schmalzbach's evidence was that an intensive care consultant may not have examined the patient himself or herself, but proceeded on the basis of information provided to his or her registrar or other staff members, and then sought an assessment from an on-call registrar. 182Dr Oliver and Professor King both agreed that radiologists and pathologists, although viewing X-rays or films, were not providing a "clinical appraisal remotely". Dr Oliver accepted that the six elements that he had set out as defining a "clinical appraisal" did not apply for radiology and pathology registrars. His evidence was that they were providing a diagnosis in respect of their discipline. There was clearly a tension in Dr Oliver's evidence in respect of whether radiology and pathology registrars who report via examining an image were undertaking a "clinical appraisal". The effect of his evidence, which required a physical examination meant that a "clinical appraisal" could never occur offsite. However, Mr Craft conceded that the examining of images attracted the provisions of cl 12(ix). 183The difference between radiology and pathology and other disciplines is that the nature of these disciplines do not require an examination of a patient. The evidence was that some after-hour radiology services for country hospitals are based in Melbourne and even in the United Kingdom. In light of the concession made by Mr Taylor in respect of radiology and pathology registrars it must follow that any resident medical officers or registrars who use technology to view images of a patient (or a bodily aspect of a patient) offsite and directly referable to the patient's current clinical condition, that had the technology not been utilised, would have required a return to the hospital, are entitled to be paid in accordance with cl 12(ix) of the Award when they provide a "clinical appraisal remotely". 184I would observe that in respect of the use of technology to view images of a patient, it is a matter for the public health organisation and/or hospital to ensure that appropriate protocols and procedures are followed to ensure patient privacy and confidentiality. 185I turn to consider having examined the evidence and in accordance with the principles and authorities to which I have earlier referred, the meaning of the word "clinical appraisal remotely". 186The definition of "clinical" includes, [relating to] "the course of a patient's disease and noting the symptoms and course of that disease". In my view, and I find, that the words "clinical appraisal remotely" should be read as meaning "assessing [by an on-call resident medical officer or registrar] a patient's physical condition to make a diagnosis or a differential diagnosis away from a hospital that incorporates the following: 1. The taking of a telephone call or receiving an email from a medical practitioner on duty in a hospital. 2. Receiving the history of the patient so that the patient's current medical condition and any relevant past medical history including use of medications, if known, is provided. 3. Discussing with the medical practitioner on duty the patient's current medical condition and asking questions in respect of the condition as necessary such that the information provided enables an evaluation of the patients' physical condition. 4. Directing further examination to be conducted as clinically required. 5. Identifying the likely cause of the patient's condition and providing a prognosis based on the information provided. 6. Ensuring that there is a sufficient clinical justification for the proposed treatment including, if relevant, admission to hospital. 7. Instructing the hospital medical officer what course of treatment should be followed including ensuring the proposed treatment is not contra-indicated. This would include developing an interim management plan. 8. Directing follow-up requirements and subsequently reviewing the patient, if appropriate, based on those requirements. 9. Keeping an appropriate record of the discussion with the medical practitioner who is on duty. 187I accept that the findings reached and the decision that I have made may result in an incomplete resolution of what the parties have sought in this matter. However, it provides, in my view, guidance for the future in respect of the interpretation of the words "clinical appraisal remotely" as found in cl 12(ix) and whether an entitlement to payment arises under that clause. Orders 188I make the following Orders: 1. Declare that employees covered by the Public Hospital (Medical Officers) Award who provide a "clinical appraisal" over a telephone or by email, rather than via a computer, have provided a "clinical appraisal remotely" without onsite presence and are entitled to a minimum payment of one hour's pay at overtime rates pursuant to cl 12(ix) of that Award. 2. In accordance with the agreement reached between the parties, each party is to pay their own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2013