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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s70(1)(a) appeal against a decision
Minister administering the State Service Act 2000 (Appellant)
(T14386 of 2016)
and
Tasmanian Salaried Medical Practitioners Society (First Respondent)
and
The Community and Public Sector Union (State Public Services Federation Tasmania) Inc (Second Respondent)
ACTING President N M WELLSCommissioner T LEE
Commissioner N WILSON / HOBART, 9 JUNE 2016
Industrial dispute - appeal against a decision to vary an award in T14358 of 2015 of Abey P - appeal upheld – decision revoked in part – parties to draft new order, leave to apply
REASONS FOR DECISION
[1] In an application, namely T14358 of 2015, by the Tasmanian Salaried Medical Practitioners Society, made pursuant to s23 of the Industrial Relations Act 1984 (the Act), in respect of the variation of the Medical Practitioners (Public Sector) Award (the Award), President Abey determined a comprehensive review of the Award.
[2] This review of the Award was facilitated from a previous award variation decision of the President in matter T14112 of 2015, dated 23 January 2015, which arose from an unsuccessful round of enterprise bargaining in 2013 between the Appellant and the First Respondent.
[3] The decision the subject of this appeal, T14358 of 2015 dated 12 January 2016 (the Decision), is appealed by the Appellant only in one aspect, that is, the finding by President Abey that the Private Practice Scheme (PPS) and an associated Allowance be included in the Award as varied. The relevant findings of the President were contained in paragraphs [8] to [18] of the Decision as follows:
“Private Practice Arrangements and Allowance (PPS)
[8] This matter was canvassed at some length during the proceedings in T14112. This discussion and conclusion is found at paras 233 to 260 of that Decision and it is unnecessary to repeat here. The applicant seeks to have the clause determined in that matter included in the Award.
[9] The respondent is opposed to the inclusion of any PPS prescription in the Award.
[10] Mr Kleyn submits that:
“… the private practice scheme arrangements is not an industrial matter and not capable of being included in an award as they include matters which the employer is incapable of influencing or having control over in the application of the award. These matters involve other parties, such as private patients, the Commonwealth, and it also includes functions such as billing practices including the disbursement of billing revenue. These matters arise not from the award but from the private practice scheme arrangement – agreements themselves. Indeed, the parties to the private practice scheme agreements are not the parties to the award. The agreements – the private practice agreements are between the Tasmanian Health Service and individual doctors, not between the doctor and the employer, i.e. the Minister administering the State Service Act. It is our view that these matters do not pertain to the employment relationship but sit outside that relationship.”
Mr Kleyn further submitted:
· PPS agreements do not guarantee revenue;
· The proposed clause fails to make provisions for the superannuation liability to be met from PPS revenue, as contemplated in the decision; and
· The proposed clause seeks to enforce what is now an over-award payment at North West Coast hospitals without the approval or full consent of both parties to the award. Further, this is in conflict with the right of the employer to determine market allowances in accordance with the 2015 Interim Agreement.
[11] I refer to and rely upon my reasons as expressed in T14112. In light of the submissions of Mr Kleyn, I make the following additional comments.
[12] Reference to the PPS arrangements has been a feature of the relevant Industrial Agreement at least since 2009. The unchallenged evidence is that a similar position exists in most other States. This situation clearly points to an understanding by the parties that PPS arrangements are indeed ‘industrial’ in character.
[13] I wish to make it clear that the intent of my earlier decision was to enshrine in the award on an indefinite basis a payment which had been made to specialists without fail since at least since 2002.
[14] The proposed clause is drafted in a manner which facilitates payment of the allowance (and for that matter the superannuation liability) from the PPS scheme. This was in response to concerns raised by the employer during the hearing.
[15] I do however make it clear that liability to pay the allowance and the superannuation liability is not contingent on sufficient funds being available from the schemes to meet the cost. That the schemes are sufficiently robust to meet the cost is a desired outcome, and the indication from the evidence is that this is likely to be feasible, but such a scenario is not a precondition for payment.
[16] I hold the view that the pre-existing PPS arrangements had much to do with meeting marketplace considerations than anything else, and the PPS was (and remains) a convenient means of meeting the cost. The same can be said for the existing 35% “over-award” payment at the North West Coast hospitals. As such the allowance falls squarely within the purview of ‘mode, terms and conditions of employment’ and is therefore an industrial matter.
[17] In response to Mr Kleyn’s submission concerning the potential “double dip”, I point out that it is not possible under proposed sub clause (e) to be paid the 35% allowance in addition to the allowances in sub clause (d). In my view both allowances are an inherent component of the base remuneration package for specialists, are not reviewable on an individual basis at periodic intervals and are not in conflict with the Market Allowance provision.
[18] For the above reasons I propose to include the clause proposed in T14112, which reads as follows:
“Private Practice Arrangements and Allowance
(a) A specialist medical practitioner may, within a public hospital, enter into a private practice arrangement with the employer, whereby the employer agrees to allow the specialist medical practitioner to use the hospital’s facilities in order to provide medical services to private patients and, for which services, fees are charged by or on behalf of the specialist medical practitioner.
(b) The terms and conditions of such private practice arrangements are to be specified and agreed in writing between the employer and the specialist medical practitioner.
(c) The provision of such services shall not, in any way, hinder the proper performance of the duties and responsibilities of the specialist medical practitioner as an employee.
(d) Specialists entering into such an agreement shall be paid an allowance of not less than 35% of the relevant base salary plus applicable on call allowance. The allowance shall be paid on a regular basis of at least monthly frequency.
(e) Specialists employed in the North West coast hospitals who do not participate in the PPS, shall be paid an allowance in lieu of PPS of not less than 35% of the relevant base salary.
(f) The allowances specified in (d) and (e) above are included in salary for the purpose of calculating superannuation entitlements and are payable during periods of paid leave.
(g) The allowances do not apply for any other purposes of the award or agreement.
(h) Leave is reserved to the parties to revisit this clause, with recourse to the Commission, in the event that the integrity of the PPS arrangements is at risk as a consequence of the National Health Reform Agenda and/or a material change in billing patterns.”
[4] At the conclusion of the Decision at paragraph [27], the President advised that the order reflecting his decision was to follow. The Decision was appealed prior to the parties and the President finalising that order.
[5] At a hearing before this Full Bench on 5 February 2016, the Appellant advised that they were content to allow an order to issue from the Decision, for the variation of the Award as it related to the non-contentious findings within the Decision. Further, it sought a suspension pursuant to s71(4) of the Act as it relates to the impugned PPS clause. At this hearing the Second Respondent sought, and was granted, leave to intervene in this matter on the basis they were a party to the Award and had not been provided with advice of the application to vary the Award in T14358 of 2015 and had been removed as a party to the Award by the President’s decision.
[6] Subsequent to the hearing of 5 February 2016, both the Appellant and the First Respondent advised that the removal of the Second Respondent from the Award had been an oversight and that any future order arising from T14358 of 2015 should provide for the Second Respondent to be a party to the Award.
[7] On 11 February 2016 the President issued an order by consent whereby the Award was varied in accordance with the Decision excepting the clause concerning the PPS. This order also included the Second Respondent as a party to the Award. Accordingly, the Second Respondent did not enter a further appearance.
Appeal Grounds
[8] The Notice of Appeal filed by the Appellant on 1 February 2016 provided three Grounds of Appeal. They are set out below.
Appeal Ground 1:
The learned Commissioner, in reaching the decision, erred in law in that he included in the Award (as varied) a clause in the terms set out in Annexure A to these Grounds of Appeal, the matter of “Private Practice Arrangements and Allowance” not being an industrial matter within the meaning of the Act and therefore not capable of being the subject of an award made under the Act.
Appeal Ground 2:
The learned Commissioner, in reaching the decision, insofar as he included in the Award (as varied) the clause referred to in ground (1) herein, gave weight to an irrelevant matter or matters; namely:-
i. that reference to the PPS arrangements has been a feature of the relevant Industrial Agreement at least since 2009;
ii. that a similar position exists in other States; and
iii. that these matters suggest an understanding by the parties that PPS arrangements are indeed “industrial” in character.
Appeal Ground 3:
The learned Commissioner’s decision, insofar as he included in the Award (as varied) the clause referred to in ground (1) herein, was plainly unreasonable or unjust.
[9] Section 70 of the Industrial Relations Act 1984 provides:
(1A) A Full Bench is not to uphold an appeal under subsection (1) unless in its opinion –
(a) the Commissioner against whose decision the appeal is made, in reaching that decision –
(i) made a legal error; or
(ii) acted on a wrong principle; or
(iii) gave weight to an irrelevant matter; or
(iv) gave insufficient weight to a relevant matter; or
(v) made a mistake as to the facts; or
(b) the decision was plainly unreasonable or unjust.
[10] As can be ascertained from the Appeal Grounds, the only point in this appeal is whether the President erred in including in the Award, as varied, the clause concerning the PPS, the matter of ‘Private Practice Arrangements and Allowance’ not being an industrial matter within the meaning of the Act and therefore not capable of being the subject of an award made under the Act.
[11] The Appellant argued Appeal Grounds 1 and 3 collectively and Appeal Ground 2 was argued separately.
The case
[12] The PPS is a voluntary scheme available only to specialist medical practitioners (SMPs) who are employees of the State Service in public hospitals. The scheme allows an SMP to continue to practice privately whilst also working in the State Service. The Salaried Medical Practitioners (AMA Tasmania/DHHS) Agreement 2009 (2009 Agreement), an industrial agreement approved and registered under s55 of the Act, contains the following clause relating to the PPS:
“48. PRIVATE PRACTICE ARRANGEMENTS
(a) A Salaried Medical Practitioner [SMP] may, within the public hospital setting in which they are employed, enter into a private practice arrangement with the employer, whereby the employer agrees to allow the SMP to use the hospital’s facilities in order to provide medical services to private patients and, for which services, fees are charged by or on behalf of the SMP.
(b) The terms and conditions of such private practice arrangements are to be specified and agreed in writing between the employer and the SMP, subject to the requirement that the provisions of such services shall not, in any way, hinder the proper performance of the duties and responsibilities of the SMP as an employee.”
[13] It can be seen from this clause that the SMP establishes a contractual arrangement, in writing, with the employer to service private patients and use hospital facilities to undertake that practice. The private patient is then billed by the employer on behalf of the SMP.
[14] At paragraph [18] of the Decision, which is restated here for ease of reference, President Abey held that the following clause should be inserted into the Award:
[18] For the above reasons I propose to include the clause proposed in T14112, which reads as follows:
“Private Practice Arrangements and Allowance