The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Limited [2008] NSWIRComm 112 (16 June 2008)

Last Updated: 27 June 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Limited [2008] NSWIRComm 112



FILE NUMBER(S):
IRC 2203

HEARING DATE(S):
2 June 2008

DATE OF JUDGMENT:
16 June 2008

PARTIES:
APPELLANT:
The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service

RESPONDENT:
Australian Medical Association (NSW) Limited


CORAM:
Walton J Vice-President Schmidt J Staff J


CATCHWORDS: Appeal - leave to appeal and appeal - whether a registered organisation of employers can notify an industrial dispute concerning members in their capacity as employees to the Commission - whether there was an industrial dispute - whether respondent was entitled to notify the dispute - whether respondent was entitled to represent its members' interests in dispute proceedings, in their capacity as employees - conditions of independent contractors - whether Commission can deal with dispute on its own initiative - jurisdiction - Health Services Act 1997 - leave to appeal granted - appeal upheld in part - matter remitted


LEGAL REPRESENTATIVES
APPELLANT:
Mr JJE Fernon SC with Mr I Taylor of counsel
SOLICITORS:
Maddocks Lawyers
RESPONDENT:
Mr R Kenzie QC with Ms F Hancock of counsel


CASES CITED:
Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm 163; (2000) 100 IR 420
Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 136; (2005) 146 IR 113
Australian Medical Association (NSW) Limited v The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service [2007] NSWIRComm 289
Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484
Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264
Chamber of Manufacturers of New South Wales; Dispute re Bread Industry and Baking Trade Employees Union (Unreported, Sweeney J, 7 December 1989)
De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478
Dow Corning Australia Pty Ltd v Monk and Others [1984] 2 NSWLR 13
In re Asbestos Sheet Makers (State) & Other Awards (No. 2) (1961) 60 AR 478
In re Maritime Services Board (Dredges &c.) Conciliation Committee (1962) 61 AR 216
In re New South Wales Public Service Clerical Officers' Association (1951) 50 AR 331
In re Town, Shire and County Clerks (State) Conciliation Committee (No 2) (1966) 66 AR (NSW) 390
Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380
Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485
Perrott v XcelleNet Australia Ltd (1998) 84 IR 255
Leaves v Mercedes-Benz Pty Ltd (1986) 28 AILR 307
R v Aird; Ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654
R v Neil and Anor; Ex parte Cinema International Corporation Pty Ltd and Ors [1976] HCA 11; (1976) 134 CLR 27
R v McKenzie and Ors; Ex parte Actors and Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573
R v Portus; Ex parte Federated Clerks' Union of Australia [1949] HCA 53; (1949) 79 CLR 428
R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77
Re Building and Construction Industry Labourers on Site (State Award) (Unreported, Cahill J, 21 October 1986)
Re University Employees (State) Conciliation Committee per Beattie J, Matter Nos 532 of 1974 and 10 of 1975, 6 June 1975 at 21 (1975 AILR 538)
Reeves v FLAIEU, NSW Branch (Unreported, Maidment J, 1 February 1990)
SDA v Norman Ross Homeworks Pty Ltd (Unreported, Hungerford J, 11 December 1989)
Strathfield Group Ltd v Hall (2002) 121 IR 158

LEGISLATION CITED:
Health Services Act 1997
Industrial Arbitration Act 1940
Industrial Relations Act 1996
Industrial Relations Commission Rules


TEXTS CITED:




JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, VICE-PRESIDENT
SCHMIDT J
STAFF J

Monday 16 June 2008

Matter No IRC 2203 of 2007

THE DIRECTOR-GENERAL, NSW DEPARTMENT OF HEALTH, IN RESPECT OF THE HUNTER NEW ENGLAND AREA HEALTH SERVICE AND AUSTRALIAN MEDICAL ASSOCIATION (NSW) LIMITED

Application by The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service against a decision of Justice Boland given on 23.11.2007 in matter no. IRC 1201 of 2007

DECISION OF THE COMMISSION

[2008] NSWIRComm 112

1 The appellant seeks leave to appeal and appeals from a decision of Justice Boland, given on 23 November 2007, dismissing a motion in which it was argued that the respondent, the Australian Medical Association (NSW) Limited ('AMA'), a registered organisation of employers, could not notify an industrial dispute to the Commission, under s 130 of the Industrial Relations Act 1996, ('the Act'), in relation to AMA members, in their capacity as employees, nor could it represent such of its members in the proceedings. (Australian Medical Association (NSW) Limited v The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service [2007] NSWIRComm 289.)

2 The appellant had sought an order that the proceedings be dismissed. Boland J declined to make that order, concluding that an industrial dispute within the meaning of the Act existed; that the AMA had standing to notify the dispute (at [23]) and that the appellant had not discharged the onus of demonstrating, on the evidence, that the doctors, the subject of the dispute notification, were ineligible to belong to the AMA (at [31]). His Honour concluded that:

32 The Commission, therefore, is entitled to proceed on the basis that the doctors who are the subject of the dispute notification are properly members, or are eligible to be members, of the AMA and that the AMA is entitled to represent their interests in proceedings before the Commission to resolve the dispute.

3 His Honour further concluded that if he was wrong in these conclusions, the Commission had power to act of its own initiative under s 130(2) of the Act. As to this, his Honour concluded that:

34 If one puts aside the role of the AMA because of the controversy over its right to represent the doctors in its capacity as an industrial organisation, the Commission is presently seized of a dispute involving doctors employed at hospitals within the Hunter New England Area Health Service and their employer, the respondent. At this stage, with the exception of one of the doctors, Dr Thambar, it is not known with any precision who the individual doctors are.

35 It is apparent that there is a grievance of a collective nature. The doctors, through the conduit of the AMA, complain that the Area Health Service has unilaterally terminated an arrangement whereby doctors who are employed as staff specialists in one hospital may hold VMP contracts in another hospital within the same Area Health Service. The doctors want that position reversed. In the light of s 130(2) of the Act, it is not essential for an industrial organisation to be involved in the resolution of the dispute. See also The Jumbunna Coal Mine, No Liability and Another v The Victorian Coal Miners' Association (1908) 6 CLR 309 at 373 per Isaacs J; The Queen v Portus and Another; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537.

36 In any event, there is no barrier to the doctors in this dispute being represented by the AMA as an agent and if, for instance, the AMA wished to avoid any prospect of a challenge to its Constitution that is an option it may wish to consider in relation to these proceedings. I say this because consistent with the relevant principle in Virtue, there is nothing to prevent the respondent in the substantive proceedings renewing any challenge to jurisdiction, on whatever grounds it considers appropriate. What the AMA chooses to do is, of course, entirely a matter for it.

37 Given the conclusions I have reached it is unnecessary for me to consider the respondent's other contentions regarding the Commission's power to deal with VMPs as independent contractors. In so far as relief is concerned, if it be accepted that the doctors are employees, then subject to the issue of a certificate of attempted conciliation pursuant to s 135, there would not appear to be any obstacle in arbitration proceedings, to exercising any of the powers in s 136 of the Act. I note, in particular, s 136(2), which provides:

2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

4 The questions raised by the appeal were said to be:

1. Whether the Respondent, an organisation of employers, can notify an industrial dispute in respect of persons, namely employed doctors, in their capacity as employees.

2. Whether, insofar as any dispute was as to doctors in their capacity as independent contractors, such a dispute is capable of being an industrial dispute within the meaning of the Act.

3. Whether Part 8 of the Health Services Act 1997 (NSW) effected an implied repeal of the Act such that the Commission does not have jurisdiction to hear any dispute as to a failure to appoint or reappoint a doctor as a Visiting Medical Officer.

4. Whether Justice Boland erred by failing to determine the question of whether the relief being sought could be granted, in particular by failing to determine:

(a) whether section 136(1)(d) of the Act is an independent source of power; and

(b) whether the Commission has power to determine proceedings by issuing a direction pursuant to section 136(1)(a) of the Act.

Leave to appeal

5 How leave is to be dealt with is well settled. Leave may never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. It must be shown that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 136; (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 at [4]. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm 163; (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].)

6 Here the appeal raises questions of construction of the Act and its interaction with other legislation, which has not previously been considered by a Full Bench of the Commission, as well as a unilateral alteration to established customs or practices in relation to the employment of doctors in public hospitals, in the aftermath of a re-organisation of Area Health Services. We are satisfied that the matters raised by the appeal are such that leave to appeal should be granted, for reasons which we will explain below.

Consideration

7 The dispute notified to the Commission by the AMA was:

The question, dispute or difficulty, concerns the following Industrial matters:

1. The Hunter New England Area Health Service and New South Wales Health have unilaterally introduced a new policy whereby doctors employed as Staff Specialists in a given hospital cannot also be engaged as Visiting Medical Practitioners (VMP's/VMO's) in another hospital if those two hospitals are within the one Area Health Service.

2. This is causing difficulty to our members who are employed as Staff Specialists in one hospital and hold VMP contracts in another hospital within the one Area Health Service.

3. This is a unilateral change to the conditions on which the doctors can be engaged and affects the ability of the doctors to offer services to hospitals within the one Area Health Service.

4. The change seems to have come about as a result of the merging of a larger number of smaller Area Health Services into a smaller number of larger ones in recent times.

5. The notifier does not see why the merging of Area Health Services should allow the Area Health Service and NSW Health to unilaterally alter the conditions on which the doctors can be engaged.

6. The notifier is concerned that this change to the way the doctors can be engaged may result on a risk to the public in that medical services will not be provided to as broad a range of hospitals as they once were, due to the restrictions placed on doctors as a result of this new 'policy'.

7. The Area Health Service has further informed Dr Thambar that in order to remain providing services to Tamworth Hospital, he will be engaged as a staff specialist at Tamworth Hospital, where he previously held a VMO contract. The Area has indicated that they are able to do this in accordance with the Work Location Clause contained in the Staff Specialists' Award. The Notifier believes that the Work Location clause does not cover this situation, as the travel distance between the two hospitals (from John Hunter in Newcastle to Tamworth) is unreasonable.

8. Dr Thambar has a VMP/VMO contract that has expired. The notifier seeks that a temporary VMP contract be offered until this dispute is resolved.

9. The notifier seeks an Order from the Commission that this new policy be abandoned by the Respondent, and that the doctors continue to be able to hold Staff Specialist and VMP/VMO contracts in different hospitals within the one Area Health Service.

10. Any other orders that the Commission sees as appropriate.

Was there an industrial dispute?

8 It is immediately apparent that Boland J was correct in concluding that an 'industrial dispute', within the meaning of the Act existed. That term is defined in the Dictionary to the Act as:

industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following:

(a) a demarcation dispute,

(b) a threatened or likely industrial dispute,

(c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken.

9 'Industrial matter' is defined in s 6 of the Act:

(1) General definition

In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

(2) Examples

Examples of industrial matters are as follows:

(a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

(b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,

(c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

(d) part-time or casual employment (including part-time work agreements),

(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry,

(f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

(g) procedures for the resolution of industrial disputes,

(h) the established customs in any industry,

(i) the authorised remittance by employers of membership fees of industrial organisations of employees,

(j) the surveillance of employees in the workplace,

(k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades.

10 The dispute concerned restrictions introduced unilaterally by the appellant, in relation to doctors whom it employs, namely that they may not enter into a further contract, to provide services as a Visiting Medical Practitioner ('VMP'), in another hospital to that at which they are employed. It was common ground that VMPs are engaged by the appellant as independent contractors.

11 We do not accept the characterisation of the dispute by the AMA as being one concerning "doctors who hold both staff specialist and VMP appointments"

and "the interplay between those two roles". In substance, the industrial dispute concerns the refusal by the appellant to permit staff specialists in its employ to hold or accept VMP appointments in certain circumstances and, as such, concerned the appropriate regulation of the employment of persons engaged as staff specialists. In terms of the definition of 'industrial matter', such a restriction is clearly a matter or thing 'affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of' employees in an industry'.

12 The question was put beyond doubt when the appellant accepted that if the Australian Salaried Medical Officers' Federation (New South Wales) ('ASMOF'), a registered organisation of employees, with coverage of employed doctors in the appellant's employ, had notified such a dispute, there could have been no question but that it concerned an industrial matter.

Was the AMA entitled to notify the dispute?

13 The Act specifies in s 130, who may notify an industrial dispute to the Commission:

130 Notification of industrial dispute to Commission

(1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute:

(a) an industrial organisation of employees or employers,

(b) an employer who is or is likely to be affected by the dispute,

(c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute,

(d) a State peak council.

(2) The Commission may act on its own initiative to resolve an industrial dispute.

14 Neither s 130, the definition of industrial dispute, or the definition of industrial matter, is concerned with the question of who may be a party to an industrial dispute. Section 130 rather deals with notification of disputes to the Commission. In the case of employers, they may only notify a dispute if they are, or are likely to be affected by the dispute, or are, or are likely to be the subject of a secondary boycott, in connection with the dispute. There are no such limitations imposed in the case of industrial organisations, or State Peak Councils.

15 The argument advanced by the appellant requires that a limitation be read into s 130, namely, that an industrial organisation may only notify a dispute to which it is a party. This, it was argued, flowed from the scheme of the Act, which establishes a system of registration of organisations of employers and employees and does not envisage that the one organisation may represent both the interests of employers and employees (see Chapter 5 Industrial Organisations). It also envisages that the Commission may make demarcation orders, in the case of organisations representing employees, for example, demarking their respective industrial interests (ss 144 and 294), but cannot make such orders as between organisations of employers and employees.

16 Even accepting these features of the Act, the result that the seemingly clear and unambiguous words of s 130 should be read down, in the way proposed by the appellant, in our view is neither an obvious or appropriate approach to the construction of this part of the Act, particularly when other provisions of the Act are considered. The appellant's arguments seemed to us, entirely inconsistent with the purpose of s 130.

17 The provisions of s 130 may also be contrasted with the provision made in s 11 of the Act, which regulates who might make an application to the Commission for the making of an award fixing conditions of employment. That section provides:

11 When award may be made

(1) An award may be made:

(a) on application to the Commission or on the Commission’s own initiative, or

(b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

(2) An application for an award may be made only by:

(a) an employer, or

(b) an industrial organisation of employers or employees, or

(c) a State peak council.

(3) Anyone who can apply for an award may become a party to any proceedings for making an award.

(4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award.

18 It is apparent from s 11, that if an application for an award is made by an industrial organisation, either directly, or during the course of an arbitration under s 136 of the Act, following the notification of a dispute, the organisation must demonstrate that 'any one or more of its members has a sufficient interest in the proposed award'. Such a limitation is not, however, imposed in relation to the earlier notification of the dispute under s 130 of the Act. Had the legislature intended such a limitation at the time of dispute notification, undoubtedly it could have said so. That it chose to adopt another approach, is a matter which cannot be overlooked and must be given effect.

19 Such a dichotomy of approach as to who might bring proceedings in the Commission, is entirely consistent with the scheme of the Act, which on the one hand encourages and regulates the role of organisations, in representing their members' interests, but on the other, seeks to ensure that disputes are easily and quickly able to be brought to the attention of the Commission, by the wide class of persons specified in s 130.

20 Furthermore, it is entirely logical that an industrial organisation might wish to bring the existence of a dispute to the Commission, even if it is not a party to that dispute. Its members might, nevertheless, be affected by the dispute, or its potential resolution. An organisation's interests and concerns might also permit it to intervene in dispute proceedings, or might result in the Commission concluding that it is an entity which might assist in the resolution of the dispute and so should be required to participate in the conciliation conference called by the Commission. Thereby, such an organisation might become a party to the proceedings. Once, however, a party wishes to seek an award, which regulates conditions of employment of employees, the Act is concerned, in s 11, to ensure that the applicant for the award has the necessary interest in what is so sought, namely, in the case of a registered organisation, the right to represent members with a sufficient interest in the subject matter of the award.

21 Other provisions of the Act confirm our conclusion as to the proper interpretation of s 130. Section 187 specifies who might appeal a decision made in arbitral proceedings, under s 136. Just as notifiers of a dispute are not limited to parties to the dispute, appellants are also not limited to the parties to the dispute. The section provides:

187 Appeal to Full Bench from decision of Commission

The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member:

(a) a party to the proceedings in which the decision was made,

(b) an industrial organisation, or an association registered under Chapter 6, affected by the decision,

(c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision,

(d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.

22 Industrial organisations need not be parties to the proceedings in which decisions are made, in order to be permitted to appeal them. It is sufficient that they show that they are 'affected by the decision'. It cannot be overlooked that s 130 has no such limitation, reflecting the legislature's intention that disputes should be able to be notified by a wider class of persons, than those who might later be entitled to a appeal a decision which the Commission might make, in respect of such a dispute.

23 It follows that we are satisfied that his Honour was correct in concluding that the Act did not preclude the AMA from notifying the existence of this dispute to the Commission, given the provisions of s 130 of the Act.

Was the AMA entitled to represent its members' interests in the proceedings, in their capacity as employees?

24 Boland J concluded that:

27 It seems to me that if the respondent contends that the AMA may not represent doctors employed as staff specialists, the respondent has to show that such doctors are ineligible for membership of the AMA. Conversely, if such doctors are eligible for membership of the AMA, I am unable to see any obstacle to that Association representing its members in dispute proceedings under the Act.

28 What the AMA may do under its Constitution, consistent with the objects of the Association, is "represent the interests of the Members before any court, tribunal, committee or other body dealing with industrial relations or other industrial matters affecting its Members..." Eligibility for ordinary membership of the Association is open to registered medical practitioners who are employers or who have the potential to be an employer. There has been no challenge by the respondent to the eligibility of the doctors to be, or to become, members of the AMA and no challenge to the validity of the AMA's Constitution. Significantly, it was not put by the respondent that the doctors who are the subject of the dispute notification did not have the potential to be an employer. It is probably the case that at least some of them are employers.

29 The AMA is, of course, registered as an organisation of employers. It may, therefore, be argued that its Constitution is to be interpreted so as to exclude the possibility that it may enrol employees as members. But I have not been asked to decide whether or not the subject doctors are, or are not, eligible for membership of the Association. For example, there is no evidence about the meaning or the intended meaning of the phrase "has the potential to be an employer" in cl 10.1(a) of the AMA's Constitution. Is it to be taken to cover only that situation of a VMP whose status is one of independent contractor who may take on employees and thus become an employer or was it envisaged at the time the rule was framed that it is to be taken as dealing with the very problem the Commission is now faced with, namely, doctors operating in a dual capacity of employee and employer? In other words, in circumstances where those who framed the eligibility rule were confronted with the problem of deciding what type of organisation they wished to have registered - employee or employer - and having decided on employer, how were they to deal with the problem of members who might be at once an employee and an employer if that was a relevant consideration at the time?

30 These are legitimate considerations. As Barwick CJ stated in The Queen v Aird; Ex parte The Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 at 659:

I now turn to consider the meaning of the eligibility clause in relation to the manufacture in the batching plants of ready-mixed concrete. This is a legal question to be solved by legal considerations. But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question.

31 The respondent's contention that an association registered as an industrial organisation of employers cannot represent employees is an attractive one because of its simple logic. But I do not consider the respondent has discharged the onus upon it to show, as it must, I believe, in order to succeed on its motion, that the doctors who are the subject of the dispute notification are ineligible to be members of the AMA. It is not open, in my view, for the respondent to implicitly accept, as it seems to do, that the doctors are eligible for membership of the AMA and that the AMA's eligibility rule is a valid rule, yet contend that the AMA cannot represent those doctors on the grounds that they are employees.

25 We do not agree with his Honour's decision in this respect. As we have observed, the Act creates a scheme for the registration of organisations of employers and employees. The AMA is registered as an organisation of employers. It was common ground that some of its members are doctors who are also employed by the appellant. Properly, the appellant did not suggest that such employment made them ineligible to belong to the AMA, if they otherwise fell within its membership rule.

26 Nevertheless, in our view, consistently with its registration as an organisation of employers, the proper construction of the AMA's rules does not permit it to represent its members' interests, in their capacity as employees, that is to represent the employed staff specialists, the subject of the industrial dispute.

27 Rule 10, 'Eligibility', provides as follows:

10. Eligibility

10.1. Subject to this Constitution, the following individuals and companies are eligible to become an Ordinary Member of the Association:

(a) Any individual resident within the Area of the Association who is a Registered Medical Practitioner and who in his or her capacity as a Registered Medical Practitioner, is an employer or has the potential to be an employer.

(b) Any Medical Practice Company which satisfies all the following conditions:

(i) The Medical Practice Company complies with By-Law 19.4;

(ii) Each shareholder and director of the Medical Practice Company who is a Registered Medical Practitioner, is resident within the Area of the Association and is either an Ordinary Member of the Association or is to become a Nominated Representative pursuant to Clause 11 if the Medical Practice Company is elected an Ordinary Member; and

(iii) The Medical Practice Company is an employer or has the potential to be an employer in its capacity as a Medical Practice Company.

10.2 Subject to this Constitution, every individual and company eligible to be an Ordinary Member shall, unless that individual or anyone or more of the directors or shareholders of that company are of generally bad character, be entitled to be admitted as an Ordinary Member of the Association, subject to payment of the relevant membership subscription and shall be entitled to remain an Ordinary Member so long as that individual or company remains eligible to be an Ordinary Member and complies with the constitution and By-Laws of the Association.

10.3. Subject to Clause 10.4, and individual or company is not entitled to remain an Ordinary Member of the Association if that individual or company ceases to be eligible to be an Ordinary Member of the Association and the Constitution and By-Laws do not otherwise permit that individual or company to remain an Ordinary Member.

10.4. If a director or shareholder of an Ordinary Member which is a company, other than the Nominated Representative of that Ordinary Member, ceases to be an Ordinary Member of the Association as required by clause 10.1(b)(ii), then that Ordinary Member shall not for that reason alone cease to be entitled to remain an Ordinary Member of the Association, but if by the date the next annual subscriptions are due and payable, the Ordinary Member does not comply with Clause 10.1(b)(ii) then that Ordinary Member shall cease to be entitled to remain an Ordinary Member of the Association.

10.5 Subject to its Constitution and By-Laws, every Ordinary Member of the Australian Medical Association whose address as registered for the time being in the books of the Australian Medical Association is at a place situated within the area of the Association shall be an Ordinary Member of the Association.

28 The Rule relevantly provides in Rule 4, Objects:

(i) To act as an association of employers and to represent the interests of the Members before any court, tribunal, committee or other body dealing with industrial relations or other industrial matters affecting its Members and to obtain registration under any Commonwealth Act or State Act, or under any law in force in a Territory being part of Australia relating to the settlement of industrial disputes.

29 That Rule accords with the provision made in s 218 of the Act:

218 Criteria for registration

(1) The Industrial Registrar is to grant the application for registration if, and only if:

(a) the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and

(b) the organisation is an organisation for furthering or protecting the interests of its members, and

(c) the organisation is capable of representing its members in connection with industrial matters, and

(d) in the case of an organisation of employees—the organisation has, at the time of registration, at least 50 members who are employees, and

(e) in the case of an organisation of employers—the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and

(f) the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and

(g) in the case of an organisation consisting of the members of a branch of an organisation—the branch is of sufficient importance to be registered separately, and

(h) the organisation does not have the same name as that of an organisation registered under this Chapter and does not have a name that is so similar to such a name as to be likely to cause confusion, and

(i) the name of the association is not, in the opinion of the Industrial Registrar, unsuitable to be the name of a registered organisation, and

(j) in the case of a State organisation—a majority of the members present at a general meeting of the organisation or an absolute majority of the committee of management of the organisation has passed, under the rules of the organisation, a resolution in favour of registration of the organisation, and

(k) in the case of a federal organisation—the rules of the organisation (including any parent body) confer on the organisation applying for registration a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales, and

(l) in the case of a federal organisation of employees—the application for registration of the organisation is made with the consent of each registered State organisation whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation, and

(m) in the case of an organisation of employees—there is no other industrial organisation of employees to which the members of the organisation might conveniently belong.

(2) An organisation may be registered even if its members include:

(a) officers of the organisation, or

(b) in the case of an organisation of employers—persons other than employees who carry on business but who do not have any employees, or

(c) in the case of an organisation of employers—persons admitted to membership who have ceased to be employers, or

(d) in the case of an organisation of employees—independent contractors who would be eligible for membership if their work were done as an employee.

However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires.

30 The Act envisages that organisations of employers will represent their members' interests in that capacity and not others. To represent its members' interests, in their capacity as employees, if they happened also to be employed, would plainly be inconsistent with the rule that the AMA act as 'an association of employers'. The balance of that part of the rule, must be read in light of those introductory words.

31 The eligibility rules of the AMA permit it to enrol the persons affected by the present dispute because those persons fall within the class described in Rule 10.1. Hence, the organisation may enrol VMPs to the extent that persons, who are Registered Medical Practitioners, may be an employer or have the potential to be an employer.

32 Those rules do not permit the organisation to represent staff specialists who are engaged as employees.

33 The industrial dispute concerns the rights and entitlements of staff specialists as employees, not in some dual capacity in that role and as a VMP. It follows that, even if the doctors, the subject of this dispute, are legitimately enrolled as Members of the AMA, the organisation may not represent them in these dispute proceedings so as to prosecute for an award or order in resolution of the issues therein.

34 In our view, the Commission's power to make an award or order under s 136(1)(b) is coextensive with its powers under Ch 2 Part 1, so that an industrial organisation may only apply for an award or order in dispute proceedings where the organisation has the constitutional capacity to represent those persons (together with a sufficient interest - see s 11(4)).

35 The confinement of an organisation to act within its constitutional capacity has been long established in decisions of the predecessor of the Commission in various statutory contexts (but still relevant in the present context.) (See In re New South Wales Public Service Clerical Officers' Association (1951) 50 AR 331 at 363; In re Asbestos Sheet Makers (State) & Other Awards (No. 2) (1961) 60 AR 478 at 486 and In re Maritime Services Board (Dredges &c.) Conciliation Committee (1962) 61 AR 216 at 218 and, by analogy, numerous decisions in the federal arena as to the capacity of federal organisations generating a valid industrial dispute: R v Portus; Ex parte Federated Clerks' Union of Australia [1949] HCA 53; (1949) 79 CLR 428 at 432-433, 436; R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77; R v Aird; Ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654; R v Neil and Anor; Ex parte Cinema International Corporation Pty Ltd and Ors [1976] HCA 11; (1976) 134 CLR 27 at 30; R v McKenzie and Ors; Ex parte Actors and Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573 at 574, 575.

36 We are also satisfied, however, that does not mean that it would not be an appropriate exercise of discretion at first instance to permit the AMA to participate in the proceedings; a matter to which we will now turn.

Can the AMA otherwise participate in the proceedings?

37 Under the 1996 Act, if a dispute is notified to the Commission, or if it acts on its own initiative, in relation to any industrial dispute, in the first instance the Commission must conduct conciliation proceedings, in accordance with the provisions of s 132 of the Act:

132 Compulsory conference

(1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute.

(2) A compulsory conference is to be presided over by a member of the Commission.

(3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference.

38 Who such persons might be, is a matter in every case, for the member of the Commission to whom the proceedings are allocated, in this instance, the President, to determine.

39 Section 133 requires the Commission to conciliate and s 134 directs that the 'parties to the dispute', be assisted in the conciliation. Who the parties to the dispute are, is a matter of fact, to be determined by the Commission in any particular case, on the material it receives in the proceedings. On appeal, the appellant argued that there is a union of employees, ASMOF, which has the right to represent doctors employed by the appellant, who are affected by the subject matter of this dispute. It was also not in dispute that the Staff Specialists (State) Award applies to certain doctors employed in hospitals, who are affected by this dispute. It would appear on this material, that even though not thus far identified as a party to the dispute, that ASMOF should be given the opportunity to participate in the dispute proceedings which concern its members.

40 Sections 135 and 136 deal with the arbitration which might result, if the dispute is not resolved in conciliation. They provide:

135 Arbitration after attempted conciliation

(1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation.

(2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation).

(3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President.

(4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute.

(5) A certificate of attempted conciliation may be issued on the Commission’s own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

(6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation.

(7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers.

(8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation.

(9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(c) make a dispute order under Part 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis).

(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

41 These provisions highlight three features important to any consideration of the operation of this aspect of the statutory scheme. Firstly, the emphasis placed on the public interest (s 135(4)). Secondly, that the proceedings may involve persons who are 'authorised to notify the Commission of the industrial dispute' (ss 135(4) and 136(2)), as well as other 'parties to the proceedings' (s 135(8) and 'parties to the industrial dispute' (s 136(1)(a)). Thirdly, that in arbitral proceedings, the Commission may also take action 'of its own initiative' (s 136(2)).

42 That the legislature has deliberately used all three phrases, those 'authorised to notify the Commission of the industrial dispute'; 'parties to the proceedings' and 'parties to the industrial dispute', in the pivotal provisions of the Act, which deal with arbitral proceedings, may not to be overlooked, when construing this Act. Their use was plainly deliberate. They are not terms which can comfortably be construed in such a way, that they are to be treated as if they are merely interchangeable. The Act clearly envisages that while a broad class of person may notify a dispute under s 130 of the Act, arbitral proceedings may involve other parties, including parties who are not themselves parties to the dispute.

43 This construction is confirmed by the appeal provisions made in s 187, which provide that an appeal may be bought from a decision made by the Commission in arbitral proceedings, by both parties to the proceedings and industrial organisations affected by the decision, even if not parties to the proceedings below.

44 Rule 24 of the Commission's Rules, further confirms our view of the legislation. The Rule provides:

24 Notification of dispute

(1) Notification of an industrial dispute under section 130 or 332 must state the parties affected by the dispute, the applicable industrial instrument, if any, and give relevant particulars of the dispute.

45 It follows that if Boland J takes the view that the AMA's participation 'would help in the resolution of the dispute', it may be required to participate in the proceedings and be given such right of appearance as may be appropriate in all the circumstances.

46 That Boland J might reach such a conclusion, does not seem surprising, on the material before us on appeal. The AMA is registered as an industrial organisation of employers under the Act. There is no dispute that it is entitled to represent doctors engaged by the respondent as independent contractors - VMPs, in relation to their interests as employers.

47 As we have observed, it seems to us unarguable, that under this statutory scheme, the AMA has no right to seek an order or award on behalf of a member, regulating the terms and conditions upon which that member may be employed by the appellant, if the member happens to be an employee.

48 That does not dispose of the question of whether the AMA may otherwise be able to be involved in dispute proceedings before the Commission, given other of its objects. As we have noted, in accordance with s 132 of the Act, if the Commission takes the view that the AMA's presence 'would help in the resolution of the dispute', it can be required to attend any compulsory conference convened by the Commission, in relation to the dispute.

49 While the appellant argued that the Act did not envisage disputes between employers being dealt with by the Commission, it is not unusual in dispute proceedings, for more than one employer, or organisation of employers, as well as various organisations of employees to appear, either as a party or an intervener, they each being concerned with the matters in dispute. Nor is it uncommon for such parties, even employers, to have quite differing views, often strongly held, as to the subject matter of the dispute.

50 While we take the view that Boland J erred in concluding that the AMA was entitled to represent its members in these proceedings, in their capacity as employees, that Boland J should take the view that the AMA should have a role to play in this dispute, would plainly be open to him, in the circumstances before him, given the provisions of s 132 of the Act and the AMA's rules.

51 In this respect, considering the AMA's rules, attention has to be paid both to its membership rules and its objects. They include the matters earlier set out and additionally:

(e) To advance the general and social interests of the medical profession

(n) To consider any subject connected with appointments of medical persons to public institutions positions and services.

(m) To consider any question of medical policy ...

52 There is no argument that a number of doctors who are employed by the appellant, as well as being engaged as VMPs, are members of the AMA. They have a dispute with the appellant as to the unilateral change in their right to seek appointment as a VMP, given their employment by the appellant. The eligibility of those persons to belong to the AMA was not put into question, before Boland J. Further, as the appellant accepted in its written submissions, the AMA's objects and rules concern the AMA in more than merely representing particular members in proceedings before the Commission, in their capacity as employers.

53 The dispute concerns the conditions under which employed doctors are to be permitted to work for the appellant. Those conditions undoubtedly have an impact upon the AMA's members' ability to become, or continue to be, employers; they affect the interests of the medical profession; they are a subject connected with appointment to hospitals and they concern questions of medical policy.

Is Boland J entitled to deal with the dispute, acting of the Commission's own initiative?

54 There can be no question that his Honour's conclusion that the Commission has power to deal with this dispute under s 130(2) of the Act, once the dispute had come to the attention of the Commission, was correct. Thereby the Commission is empowered to 'act on its own initiative to resolve' such a dispute. His Honour did not expressly state in his judgment that, as a matter of discretion, the Commission would so act, but that was plainly implicit in his observations.

55 That was not a surprising exercise of the Commission's discretion, given the circumstances which confronted his Honour, namely a dispute about the work which doctors employed by the appellant, might be permitted to perform in the public hospital system.

56 After all, the Commission cannot help but be aware of the current ongoing public controversy as to doctor shortages and workload and working hour issues for doctors employed in the public hospital system, which has generated a public enquiry, which is ongoing, at present. These are matters which undoubtedly closely concern the public interest. Indeed, on the material before his Honour, that dispute concerned doctors employed by other Area Health Services, in addition to that first mentioned in the original dispute notification.

57 Nevertheless, the appellant argued that the scheme of the Act required that for the Commission to exercise its own initiative powers, there had to be an industrial dispute in existence, being a dispute between identified parties, who are given the right to notify the existence of the dispute to the Commission, under s 130. In this case, because the AMA did not have the right to represent the interests of its members as employees, in relation to the matters in dispute, the Commission could not act of its own initiative, and if that view were incorrect, that it would not so act, as a matter of its discretion. Those are arguments which we do not accept.

58 Such a narrow construction of the Act, imposing requirements on the Commission, in exercising its powers on its own initiative, not apparent on the face of the sections in question, appears to be directly contrary to the purpose of the Act. Such an approach would require the provisions of ss 130(2), 136(2) and 162 to be read down, in ways inconsistent with the intent of the plain words there used, namely that the Commission is not limited as to the circumstances in which it may exercise its functions, acting of its own initiative. That is a matter left entirely to the Commission's own discretion, in clear and unambiguous terms and permits no such narrow construction, consistently with the purposes of the Act.

59 Sections 130 and 136 have been earlier set out. In construing this statutory scheme, attention must be paid to its objects, which appear in s 3:

3 Objects

The objects of this Act are as follows:

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

60 These objects underpin the approach adopted by the legislature in empowering the Commission to deal with industrial disputes which come to its attention, even in circumstances where there has been no notification of the dispute to the Commission, by those who are expressly given the right to make such notifications. Section 162 of the Act provides further confirmation of this power, if more were needed. It provides:

162 Procedure generally

(1) The Commission may, subject to this Act, determine its own procedure.

(2) The Commission:

(a) is to act as quickly as is practicable, and

(b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and

(c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(e) may sit at any place, and

(f) may require a document to be served outside the State, and

(g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and

(i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and

(j) may, on its own initiative, inquire into any industrial matter.

61 It should be observed, that even when disputes are first notified to the Commission, it is not infrequently the case, that all of the parties to the dispute are not identified in the dispute notification and are not readily apparent. Under this legislative scheme, that those who have the right to notify the dispute to the Commission have not acted, cannot be an impediment to the Commission acting to deal with a dispute, if necessary, of its own motion, as a matter of its discretion. Such a discretion is one which predecessors to this Commission were long granted, a matter to which we will return below.

62 In acting on its own initiative, the Commission has obligations imposed upon it by s 146:

2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to:

(a) the objects of this Act, and

(b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.

63 To construe the Act in a way that had the result that the Commission was constrained from dealing with an industrial dispute of which it became aware, which was, for example, adversely affecting the public interest, or the economy of the State, because the parties to the dispute were not already known, they having failed to take the step available to them, of notifying the dispute to the Commission, would simply be to subvert the purpose for which s 130(2) was enacted. That is, to enable the Commission itself to act in relation to a dispute, even when the parties to the dispute have failed to do so.

64 That approach to the construction of the legislation is consistent, we would observe, with the approach taken by the former Industrial Commission of New South Wales in Court Session to the construction of the Industrial Arbitration Act 1940 ('the 1940 Act'), in Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485. (See also the judgment of the Court of Appeal in Dow Corning Australia Pty Ltd v Monk and Others ([1984] 2 NSWLR 13). There s 31 of the 1940 Act was considered. That section provided:

Powers of Commission

31. The commission shall have power -

(a) to confer with any person or industrial union as to anything affecting the settlement of an industrial matter or with any person or association of principal contractors, or association of contract drivers or contract carriers, as to anything affecting the settlement of a matter arising under a contract to which Part VIIIA applies;

(b) at any time on its own initiative or on application made to it -

(i) to make an award or to vary or rescind any award made by it, a committee or a conciliation commissioner;

(ii) to prohibit any proceeding before a committee, tribunal or a conciliation commissioner; or

(iii) to make a contract determination or vary or rescind any contract determination made by it, a tribunal or a conciliation commissioner;

(c) to summon any person before the commission for the purpose of conference or of giving evidence. Such summons shall be signed as prescribed."

65 The approach of the former Commission in Monk, was followed in many later cases, despite the later amendment to s 31(b), to remove the right of individuals to make application to the former Commission. It was, nevertheless, accepted that it was open to persons not entitled to notify disputes to the Commission, to draw its attention to a state of affairs which the Commission might regard as appropriate for the exercise of its own initiative powers, albeit such powers would be used carefully by the Commission. (See for instance Leaves v Mercedes-Benz Pty Ltd (1986) 28 AILR 307; Re Building and Construction Industry Labourers on Site (State Award) (Unreported, Cahill J, 21 October 1986); SDA v Norman Ross Homeworks Pty Ltd (Unreported, Hungerford J, 11 December 1989); Reeves v FLAIEU, NSW Branch (Unreported, Maidment J, 1 February 1990); Chamber of Manufacturers of New South Wales; Dispute re Bread Industry and Baking Trade Employees Union (Unreported, Sweeney J, 7 December 1989)).

66 Section 31 of the 1940 Act was not by any means in identical terms to s 130 of the 1996 Act. Indeed, as we have earlier noted, in the current legislative scheme, various other sections arise for consideration, when the question of the Commission's power to act of its own initiative in relation to an industrial dispute, is considered. Nevertheless, it cannot be overlooked that both legislative schemes made clear provision for the Commission to act of its own initiative, in resolving industrial disputes, no matter how it is that such a dispute has come to its attention.

67 Ultimately, the determination by the Commission to Act on its own motion is an administrative one. If it is moved to act it may do so and will not regard itself as confined, even to an issue that may be adverted to in a notification, application or advice. (Re University Employees (State) Conciliation Committee per Beattie J, Matter Nos 532 of 1974 and 10 of 1975, 6 June 1975 at 21 (1975 AILR 538).) However, the Commission is bound to hear the parties on the issues raised in the proceedings created by its motion, and is confined by the jurisdiction conferred on it under the Act. (In re Town, Shire and County Clerks (State) Conciliation Committee (No 2) (1966) 66 AR (NSW) 390 at 391.) Naturally, the starting point of such a process would be to advise the parties that the Commission was acting on its own motion.

Conditions of independent contractors

68 The appellant has also argued that the Commission has no jurisdiction to deal with disputes over whether doctors should be offered VMP contracts, given that such contracts involve the relationship of independent contractors, not employment.

69 In our view, this argument can ground no impediment to the dispute, the subject of these proceedings, being dealt with by the Commission. The doctors here in question are employees of the appellant. It has introduced a new policy, that its employed doctors may not be engaged as VMPs, while remaining in employment. We have accepted the contention that such a unilateral policy decision falls within the definition of 'industrial matter', because it concerns 'the privileges, rights, duties or obligations' of these doctors as employees, namely, the removal or restriction of the right to seek a VMP position, while remaining an employee of the appellant.

70 Seemingly, it is now a condition of such employment, that employed doctors do not seek and are not appointed to such positions. The only basis upon which that requirement can be so imposed on these doctors by the appellant, is the fact of their employment status.

71 That view is further confirmed by the provision made in clause 15, Outside Practice and Other Business Activities of the Staff Specialists Award. This provision already regulates, in part, how the appellant may seek to control certain employed doctors' activities, outside their ordinary working hours, under their contracts of employment.

72 The issue, so described and as we will discuss below, would seem to fall within the jurisdiction of the Commission to make orders or awards with respect to the subject dispute.

The Health Service Act 1997

73 The appellant also argued that the Commission had no jurisdiction to deal with this dispute, given the provisions of Chapter 8 Part 2 of the Health Service Act 1997, which permits an applicant to seek arbitration as to the terms and conditions of work of VMPs. Sections 105 and 106 also give rights of appeal to VMPs whose contracts are not renewed. It was the appellant's case that if the Act permitted some form of relief in relation to conditions of independent contractors, then there was an implied repeal of the Act, by the later enactment of the Health Services Act.

74 We are unable to accept that submission. There was no question as to the Commission's power to make awards for doctors employed by the appellant, which set 'fair and reasonable conditions of employment for employees', in accordance with s 10 of the Act. There is a dispute about a unilateral change to such employees' right to seek appointment as a VMP. As we have found, that concerns an industrial matter, a matter already dealt with, in part, by the Staff Specialists Award.

75 The dispute does not concern the terms and conditions of work of any doctor appointed as a VMP, or any appeal against a failure to appoint a particular doctor to a particular VMP position, matters dealt with by the Health Services Act.

Would any orders made by the Commission be beyond jurisdiction?

76 Whether or not any particular order or award might be made under s 136 of the Act, as to the matters the subject of the dispute, in any arbitration before the Commission, will depend on the evidence led and the submissions advanced by the parties to those proceedings. On the material presently before the Commission, it could not be concluded that an order might not be made within jurisdiction as to the subject matter of the dispute we have earlier described. Indeed, it was conceded by the appellant that an order or award that an employed doctor have the right to seek appointment as a VMP, would not be beyond the Commission's jurisdiction under the Act.

77 The Commission's award making power appears in s 10:

10 Commission may make awards

The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

78 Conditions of employment is defined in the Dictionary to the Act as 'conditions of employment' includes any provisions about an industrial matter' and award is defined as 'award' means an award made, or taken to be made, by the Commission under this Act, and includes any order of the Commission under this Act that sets conditions of employment'.

79 As we have already observed, the definition of 'industrial matter', includes the 'privileges, rights and duties' of employees. The appellant argued that the Commission would not, as a matter of discretion, make the orders sought. We are satisfied that it is entirely too soon in these proceedings, to come to any views as to that matter, which can only be determined, in the light of any evidence led. Upon any remittal of this matter, it is a matter for Boland J to determine how any hearing should proceed, or whether further endeavours at conciliation should first be attempted. In this respect we note that no certificate of attempted conciliation has as yet been issued and accordingly, it appears that the conciliation phase of these proceedings, is potentially not yet at an end. It is always useful during the conciliation phase of any proceedings, for the parties to give serious thought to the orders which might be pursued in an arbitration. In that way, many settlements have been arrived at.

80 In all of these circumstances, we are well satisfied that while leave to appeal must be granted and the appeal upheld, in relation to the question of the AMA's right to represent its members' interests, in their capacity as employees, given Boland J's intention to act in relation to the dispute of the Commission's own initiative, the matter must be returned to his Honour, so that the matter may proceed, on that basis.

81 For the reasons given, we order that leave to appeal be granted, and the appeal upheld, in part.

Orders

82 We make the following orders:

1. Leave to appeal is granted;

2 The appeal is upheld, in part;

3. The matter is remitted to Boland J, President for further proceedings in accordance with this decision.

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LAST UPDATED:
16 June 2008