2023 WAIRC 00721
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00721

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 26 OCTOBER 2022

DELIVERED : THURSDAY, 24 AUGUST 2023

FILE NO. : M 60 OF 2021

BETWEEN
:
AUSTRALIAN MEDICAL ASSOCIATION WESTERN AUSTRALIA
CLAIMANT
AND

WESTERN AUSTRALIA COUNTRY HEALTH SERVICE
FIRST RESPONDENT

AND

NORTH METROPOLITAN HEALTH SERVICE
SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Interpretation of industrial agreement – correct classification of medical practitioners – Consultant / Specialist – general practitioners
Legislation : Industrial Relations Act 1979 (WA)
Health Insurance Act 1973 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013
Department of Health Medical Practitioners (WA Country Health Service) AMA Industrial Agreement 2013
WA Health System – Medical Practitioners – AMA Industrial Agreement 2016
Case(s) referred
to in reasons: : Re Harrison; Ex Parte Hames [2015] WASC 247
Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd [1998] FCA 166; 80 IR 208
Kucks v CSR Limited [1996] IRCA 141; 1996 IR 182
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : MS H. MILLER (OF COUNSEL) WITH MR D. STOJANOSKI (OF COUNSEL)
RESPONDENTS : MR J. CARROLL (OF COUNSEL)

REASONS FOR DECISION
I Introduction
1 The Australian Medical Association (AMA) brings this claim on behalf of six doctors who submit that during their periods of employment with the Western Australia Country Health Service and the North Metropolitan Health Service (the respondents), they should have been classified as consultants under the following industrial instruments, which applied to them during those periods of employment:
a. Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (2013 Metro Agreement)
b. Department of Health Medical Practitioners (WA Country Health Service) AMA Industrial Agreement 2013 (2013 WACHS Agreement)
c. WA Health System – Medical Practitioners – AMA Industrial Agreement 2016 (2016 Agreement)
(Agreements).
2 One of the job classifications in the Agreements is that of “Consultant”.
3 The AMA claims that notwithstanding the various Job Description Forms (JDFs) and job titles which applied to the doctors’ roles with the respondents, and which classified the doctors variously as Senior Medical Practitioner or District Medical Officer (Procedural), they in fact always fell within the consultant classification during their employment. The AMA claims that this is clear when one considers:
a. The definition of “Consultant / Specialist” in the Agreements; and
b. The doctors’ qualifications and the functions they carried out in their roles.
4 All six doctors have been employed for longer than 6 years in the WA public health sector, meaning all have been covered by the Agreements for longer than 6 years. In addition, all six doctors have held the qualifications which (at least in part) give rise to the claim that they were consultants for at least 6 years prior to the commencement of the claim.
5 The AMA claims that due to the misclassification of the doctors:
a. The respondents have contravened the terms of the Agreements; and
b. As a result of the contraventions, all six doctors have suffered “loss and damage”.
6 The AMA claims that as the contraventions have persisted for longer than 6 years, the doctors are entitled to relief for the statutory maximum claim period of 6 years.
7 The orders sought by the AMA are set out at paragraphs 15 and 16 of its Further Amended Statement of Claim.
8 For the following reasons, the claim must be dismissed in respect of each of the six doctors.
II What are the components of the Consultant / Specialist definition?
9 The Agreements set out the classifications applicable to medical practitioners. One of those classifications is that of “Consultant”.
10 There is no clause in the Agreements which sets out a list of duties to be performed by a consultant. There is only a definition of “Consultant / Specialist”.
11 Each of the Agreements defines “Consultant / Specialist” as follows:
“Consultant / Specialist” means a medical practitioner who holds the appropriate higher qualification of a University or College, recognised by the Australian Medical Council (“the AMC”), and includes a Fellow of the Australasian Chapter of Addiction Medicine, or, in exceptional circumstances to satisfy areas of unmet need, such other specialist qualification recognised by the Director General of Health and who, unless otherwise approved by the Director General of Health, is employed and practising in the specialty for which he/she is qualified. Clause 8 of each of the Agreements.

12 As a matter of English language comprehension, the task of construing that definition would appear straight forward. Leaving aside the subordinate clause pertaining to exceptional circumstances, the definition seemingly requires that to be a Consultant / Specialist, a medical practitioner must:
a. hold the appropriate higher qualification of a University or College, recognised by the Australian Medical Council (the AMC); and
b. unless otherwise approved by the Director General of Health, be employed and practising in the specialty for which he/she is qualified.
13 The AMA disagrees with this construction. It contends that the phrase, “and who, unless otherwise approved by the Director General of Health, is employed and practising in the specialty for which he/she is qualified” attaches only to the subordinate clause beginning, “or, in exceptional circumstances to satisfy areas of unmet need”.
14 That construction does not make sense either as a matter of English comprehension or, more importantly, in the industrial context of the Agreements.
15 The definition sets up the first important characteristics of a Consultant / Specialist – namely:
a. A medical practitioner
b. Who holds “the appropriate higher qualification of a University or College, recognised by the Australian Medical Council”.
16 It then distinguishes the situation of “exceptional circumstances to satisfy areas of unmet need”, in which situation the Director General of Health may recognise some other specialist qualification (perhaps, for example, a specialist qualification equivalent to those recognised by the AMC but obtained overseas). It then requires that the Consultant / Specialist be employed and practising in the specialty for which he/she is qualified.
17 In support of their interpretation of the definition, the respondents point out At para 37 of their submissions.
that the first iteration of the “Consultant” definition in an industrial agreement between the AMA and the WA public health services read as follows:
“Consultant” means a medical practitioner who holds the appropriate higher qualification of a University or College, endorsed by the National Specialist Qualifications Advisory Committee, or, in exceptional circumstances to satisfy areas of unmet need, such other specialist qualification recognised by the Commissioner of Health, and who, unless otherwise approved by the Commissioner of Health, is employed and practising in the specialty for which he/she is qualified (emphasis added).
18 In that original definition, the use of the comma after the word “Health” denotes that the final phrase of the definition is intended to apply to any medical practitioner who possesses either type of specialist qualification as defined in the preceding phrases.
19 I am persuaded by the respondents’ submission that it is unlikely that the comma was deliberately left out of subsequent agreements, with the intention of changing a fundamental part of the definition.
20 I also accept the respondents’ submission that it would be “industrially absurd” for a medical practitioner with the appropriate higher qualification, but who is not employed and practising in the specialty for which he/she is qualified, to be nonetheless paid at the level of consultant.
21 The AMA dismisses that concern as a straw man (ts 16). It points to the JDFs pertaining to the doctors the subject of this claim, which require the doctors to be credentialed and to work within a defined scope of clinical practice. The AMA submits that this means the doctors must, therefore, have been employed and working within their specialty.
22 Counsel for the AMA was correct to point out that it would be problematic if a practitioner, having been credentialed for a position and having had a scope of practice defined for the role, then proceeded to work outside that scope of practice (without having sought an extension of scope). But the submission falls into error when it attempts to equate scope of practice with specialty.
23 In order to consider this issue further, given it was raised but no evidence was led at trial as to what credentialing and scope of practice are, I have informed myself to an extent on these matters. In accordance with Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005, reg. 35(4).
I have had regard to the materials directly referenced in the following paragraphs.
24 “Scope of clinical practice” is:
The extent of an individual practitioner’s approved clinical practice within a particular organisation based on an individual’s credentials, competence, performance and professional suitability and the needs and capability of the organisation to support the practitioner’s scope of clinical practice. Government of Western Australia, Department of Health, Credentialing and Defining the Scope of Clinical Practice Policy (Policy, 8 October 2019).

25 The determination of a practitioner’s scope of clinical practice depends upon a consideration of all factors in Appendix 6 of the WA Health Department’s Credentialing and Defining Scope of Clinical Practice for Medical Practitioners Standard. Government of Western Australia, Clinical Governance, Safety and Quality Policy Framework; Credentialing and Defining the Scope of Clinical Practice MP 0084/18; Credentialing and Defining Scope of Clinical Practice for Medical Practitioners Standard 2018 (Policy Framework, 2018).
Those factors include the roles and responsibilities of the position, the skill mix of the health care facility, and the Hospital or Health Service’s role delineation, as defined by the current WA Health Clinical Services Framework. Ibid., Appendix 6.

26 The Royal Australasian College of Surgeons dedicates a page on its website to the credentialing and scope of practice for surgeons. Under the heading “Specific issues – Community need”, the College notes:
Surgeons are trained within nine specialities. Their scope of practice will usually be restricted within that specialty. However there are many examples where practice within another surgical specialty is an appropriate response to community need (An example would be a rural general surgeon performing surgery on a child, where there is no paediatric surgical presence).
Sub-specialisation is an increasing trend. However the scope of practice of a well-trained generalist should not be unduly constrained as a consequence.
The scope of practice may differ for emergency as opposed to elective care. Emergency care will generally require a wider scope than elective care. (emphasis added). Royal Australasian College of Surgeons, Credentialing and Scope of Practice for Surgeons (2014) (Web Page, 30 June 2023) <https://www.surgeons.org/en/about-racs/position-papers/credentialing-and-scope-of-practice-for-surgeons-2014>

27 I appreciate that in the case of a consultant general surgeon who has a scope of practice allowing him or her to perform surgery on children in response to community need, it is unlikely that that extended scope of practice would alter the general surgery scope of practice so much as to deprive that practitioner of consultant status, because he or she would still be predominantly employed and practising in the specialty of general surgery.
28 However, the point to be gleaned from the materials I have considered is that:
a. working within a scope of clinical practice does not necessarily equate to working within one’s specialty; and
b. as unlikely as it may be, it is possible for a medical practitioner who holds an “appropriate higher qualification” to carry out an approved scope of clinical practice that fits within his or her broader experience and skills, and which fulfils the needs of a particular health service, but which does not specifically pertain to his or her specialty.
29 In that case, as the respondents point out, if the practitioner were classified as a consultant, the employer would be paying for expertise, but not having – or not predominantly having – the benefit of it.
30 Taking into account the historical “Consultant” definition which predated the “Consultant / Specialist” definition, the usual rules of English comprehension and the industrial context, I accept the respondent’s submission that the possession of the “appropriate higher qualification” alone is not sufficient for a medical practitioner to be classified as a consultant under the Agreements. He or she must also be employed and practising in the specialty for which he/she is qualified.
III Is fellowship of the Royal Australian College of General Practice or the Australian College of Rural and Remote Medicine an “appropriate higher qualification”?
31 The definition of “Consultant / Specialist” in the Agreements requires that a medical practitioner hold “the appropriate higher qualification of a University or College, recognised by the Australian Medical Council (“the AMC”)”.
32 The AMC published a List of Australian Recognised Medical Specialties in October 2012 (AMC document). Australian Medical Council Limited, ‘List of Australian Recognised Medical Specialties’ (2012).

33 It appears that since that time, the responsibility for publishing the list has passed to the Medical Board of Australia (MBA). On 1 June 2018, the MBA published a List of Specialties, Fields of Specialty Practice and Related Specialist Titles (MBA document). The respondents tendered the MBA document at trial without a witness. Exhibit 10.

34 For the purposes of these proceedings, I accept that the MBA document accurately reflects the current list of recognised specialties.
35 However, given the way the definition of Consultant / Specialist is worded in the Agreements, with its specific references to “the appropriate higher qualification of a University or College, recognised by the Australian Medical Council”, and bearing in mind the dates of the Agreements (2013 and 2016), it seems plain that the drafters of the Agreements had in mind the AMC document when formulating that definition.
36 Both the AMC document and the MBA document identify general practice as a specialty. Further:
a. The MBA document denotes that a medical practitioner who specialises in general practice is entitled to be known as a Specialist general practitioner;
b. The AMC document identifies the Royal Australian College of General Practice (RACGP) and the Australian College of Rural and Remote Medicine (ACRRM) as the two colleges providing specialty training in general practice;
c. The AMC document identifies the qualifications that lead to recognition as a specialist in general practice – i.e., Fellowship of the Royal Australian College of General Practitioners (FRACGP) and Fellowship of the Australian College of Rural and Remote Medicine (FACRRM).
37 The AMC document is therefore useful, in that it explicitly lists the organisations that deliver the specialist qualifications and cites those qualifications (for all specialties, not just that of general practice), neatly aligning with the definition of Consultant / Specialist in the Agreements. The MBA document, on the other hand, simply lists specialties, fields of specialty practice, and the corresponding specialty titles in those fields.

38 During their periods of employment, the six doctors all held FRACGP, FACRRM, or both. Agreed Facts, [12], [17], [22], [27], [33], [38].

39 The AMC document specifically refers to the RACGP and the ACRRM, and the fellowships of those colleges, as the qualifications leading to the specialty of general practice.
40 In my opinion, the word “appropriate” in the phrase “appropriate higher qualification of a University or College” pertains to the qualification recognised by the AMC that leads to specialty in a particular field of medical practice. In the case of general practice, that is either the FRACGP or the FACRRM.
41 On that basis, I find that FRACGP and FACRRM are the appropriate higher qualifications of the RACGP and ACRRM respectively, recognised by the AMC; thus fulfilling one of the requirements of the Consultant / Specialist definition.
IV Seeing the Consultant / Specialist definition in context
42 Before considering whether the six doctors fulfil the other key component of the Consultant / Specialist definition – namely, the requirement that they were employed and practising in the speciality for which they were qualified – it is necessary to consider the definition in the context of the Agreements as a whole.
(i) The principles
43 In Re Harrison; Ex Parte Hames [2015] WASC 247, Re Harrison; Ex Parte Hames [2015] WASC 247, [50]-[51].
Beech J summarised the principles of construction applicable to instruments (generally) relevantly as follows:
The general principles relevant to the proper construction of instruments are well-known. In summary:
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
…
(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.
These general principles apply in the construction of an industrial agreement. The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed.
(ii) Other relevant definitions
44 In oral submissions that seemingly ignored the need to construe the Agreements as a whole, counsel for the AMA eschewed the relevance of certain definitions in the Agreements, describing them variously as ‘confusing and anachronistic’ (ts 18) and ‘arguably redundant and in any case sufficiently opaque as to their effect and meaning that they … should not form the basis for reasonable inference to exclude doctors who otherwise meet the definition of consultant … from the entitlement to consultant classification’ (ts 19).
45 In furtherance of that submission, counsel described it as ‘strange’ that “general practitioner” should be a defined term, but not a classification (ts 19).
46 It is not strange at all. The definition of “general practitioner” is required for an understanding of other definitions – and indeed, classifications – which hinge upon that definition. For example, the definition of Health Service Medical Practitioner, which is also a classification, “includes a general practitioner (not vocationally registered).”
47 In the case of the Agreements under consideration in this case, it is insufficient to look at the Consultant / Specialist definition in isolation.
48 As the six doctors on whose behalf the claim is brought were all general practitioners, it is necessary to have regard to definitions and classifications that refer directly or indirectly to general practice. These are:
a. General Practitioner (all Agreements)
“General Practitioner” means a medical practitioner engaged in the provision of primary, continuing whole-patient care to individuals, families and their community not being a vocationally registered general practitioner.
b. Health Service Medical Practitioner (all Agreements)
“Health Service Medical Practitioner” means a non-specialist medical practitioner who is not in a recognised training program and who is authorised to perform duties without requiring clinical supervision by a consultant / specialist or senior medical practitioner. The classification includes a general practitioner (not vocationally registered).
c. Vocationally Registered General Practitioner (all Agreements)
“Vocationally Registered General Practitioner” means a medical practitioner registered under section 3F of the Health Insurance Act 1973.
d. District Medical Officer (2013 WACHS Agreement & 2016 Agreement)
“District Medical Officer” means a medical practitioner who does not have a recognised specialist qualification but practices without clinical supervision either in general practice or in a specialist area(s) recognised by the AMC or such other area(s) recognised by the employer as being a specialist area; and/or who clinically supervises other senior practitioners.
e. District Medical Officer (Procedural) (2013 WACHS Agreement & 2016 Agreement)
“District Medical Officer (Procedural)” means a District Medical Officer who also undertakes on a regular and continuing basis anaesthetics, procedural surgery, obstetrics or undertakes duties in such other procedural areas as are recognised by the Employer.
f. Senior Medical Practitioner (all Agreements)
“Senior Medical Practitioner” means a medical practitioner who does not have a recognised specialist qualification but practices without clinical supervision exclusively in a specialist area recognised by the AMC or such other area recognised by the Director General of Health as being a specialist area; and/or who clinically supervises other practitioners; and/or who has significant medical administration duties (50% as guide). Promotion to the position of Senior Medical Practitioner shall be by appointment only.
49 The latter two definitions do not refer directly to “general practice”. However:
a. The definition of “District Medical Officer (Procedural)” is relevant because the “District Medical Officer (Procedural)” classification is a subset of the “District Medical Officer” classification (which does refer to general practice).
b. The definition of “Senior Medical Practitioner” is relevant by virtue of cl 26(4)(b) of each of the Agreements, which states:
A Vocationally Registered General Practitioner who ceases to maintain Vocationally Registered Status under the Health Insurance Act 1973 shall thereafter be classified as a Health Service Medical Practitioner or Senior Medical Practitioner as appropriate.
50 “District Medical Officer” and “District Medical Officer (Procedural)” are classifications within the WA Country Health Service for locations north of the 26˚ South Latitude. 2013 WACHS Agreement, Schedule 2; 2016 Agreement, Schedule 3.

51 The definition of “District Medical Officer” has an equivalence to the definition of “Senior Medical Practitioner” in the metropolitan context because:
a. It is in almost identical wording; and
b. It falls within the ambit of “Senior Practitioner” in the relevant schedules, where “Senior Practitioner” means “a practitioner other than an Intern, Resident or Registrar”, 2013 WACHS Agreement, Schedule 2; 2016 Agreement, Schedule 3.
and “practitioner” means “a medical practitioner employed under this Agreement”. Clause 8, 2013 WACHS Agreement & 2016 Agreement.

52 For those reasons, I find that “District Medical Officer” is equivalent to “Senior Medical Practitioner” for locations north of the 26˚ South Latitude.
(iii) How do the definitions inform correct classification of the doctors?
53 During their periods of employment, the six doctors:
a. were not vocationally registered general practitioners (VRGP); but
b. (without, at this juncture, determining the issue) all prima facie practised in a specialty recognised by the AMC – namely, the specialty of general practice.
54 For obvious reasons, the VRGP classification was not the correct classification for the doctors.
55 Although the Health Services Medical Practitioner (HSMP) classification “includes a general practitioner (not vocationally registered)”, it was not the correct classification for the doctors because whereas a HSMP is a “non-specialist medical practitioner”, the doctors were indeed specialists.
56 The doctors were classified by the respondents variously as Senior Medical Practitioner and District Medical Officer (Procedural). Agreed Facts, [14], [19], [24], [30], [35], [40].

57 For present purposes, the relevant part of the Senior Medical Practitioner (SMP) definition is:
[A] medical practitioner who does not have a recognised specialist qualification but practices without clinical supervision exclusively in a specialist area recognised by the AMC.
58 And the relevant part of the District Medical Officer (DMO) definition (which informs the DMO (Procedural) definition) is:
[A] medical practitioner who does not have a recognised specialist qualification but practices without clinical supervision either in general practice or in a specialist area(s) recognised by the AMC.
59 Both classifications are for medical practitioners who do not have a “recognised specialist qualification”, but who practise without clinical supervision:
a. exclusively in a specialist area recognised by the AMC (SMP); or
b. either in general practice or in a specialist area(s) recognised by the AMC (DMO).
60 The requirement to practise without clinical supervision, the presence of the SMP and DMO classifications in the Senior Doctor classifications in the Agreements and the fact that promotion to SMP “shall be by appointment only” indicate that both classifications are intended for very experienced practitioners who are highly skilled and largely autonomous in their practice.
(iv) “Appropriate higher qualification” vs “recognised specialist qualification”
61 I have already found that the FRACGP and FACRRM are “appropriate higher qualifications” for the purpose of the Consultant / Specialist definition.
62 If those qualifications are also “recognised specialist qualifications” for the purposes of the SMP and DMO classifications, then one might wonder how the doctors could have been properly classified as SMP or DMO – since those classifications are for practitioners who do not have “a recognised specialist qualification”.
63 The use of “appropriate higher qualification” in one definition and “recognised specialist qualification” might at first blush be an instance of infelicitous language; an accidental use of two different terms that mean the same thing.
64 But the definition of VRGP is instructive in this regard, because it refers to the Health Insurance Act 1973 (Cth) (HIA), thus:
“Vocationally Registered General Practitioner” means a medical practitioner registered under section 3F of the Health Insurance Act 1973.
65 The HIA is a very significant piece of legislation for medical practitioners, since it sets out the legal basis upon which Medicare benefits are payable to them. It stands to reason that the drafters of the Agreements had in mind the HIA, given its industrial significance to medical practice.
66 That is not to say that the Agreements simply adopted wholesale the same definitions as appear in the HIA (they did not); but certain terms that appear in the Agreements may well be understood in the same way they are understood in the HIA.
(v) The vocational register
67 The vocational register for general practitioners (VR) was introduced in 1989. Inclusion on the register meant that general practitioners (GPs) qualified for higher Medicare rebates on the basis that they had a certain level of experience as a GP. Until 1995, GPs required 5 years’ experience in general practice to qualify for inclusion on the register. From 1995 onwards, they required fellowship of the RACGP or ACRRM. They could maintain general registration with the MBA, but if they had fellowship, they qualified for the VR and had access to the higher Medicare rebates. GPs who were already on the register were permitted to stay on it; and those who had not applied for inclusion had a transition period in which they could apply, based on years of experience gained prior to 1995. Minister for Community Services and Health (Cth), ‘Better Qualified GP’s to Provide Improved Patient Care’ (Media Release, 2 March 1989); see also Woodhouse F, ‘Medicare, Mayhem and the Vocational Register – 1989 to 1996’ The History of General Practice <https://www.racgp.org.au/FSDEDEV/media/documents/RACGP/History/Medicare-Mayhem-and-the-Vocational-Register.pdf>

68 Due to recent amendments to the HIA, including the repeal of s 3F, GPs must now have specialist registration with the MBA in order to access the higher Medicare rebates.
69 The VR still exists, which is why it continues to be referenced, even in the most recent AMA / WA Health industrial agreement. WA Health System - Medical Practitioners - AMA Industrial Agreement 2022, [2022] WAIRC 00646
But nobody can now join it, and specialty in general practice is recognised by specialist registration with the MBA. This requires FRACGP or FACRRM.
70 At the point in time when the Agreements were drafted, it was a requirement for inclusion on the VR that a GP possess FRACGP or FACRRM, and this had been a requirement for almost two decades.
71 As noted above, cl 26(4)(b) of each Agreement provides that:
A Vocationally Registered General Practitioner who ceases to maintain Vocationally Registered Status under the Health Insurance Act 1973 shall thereafter be classified as a Health Service Medical Practitioner or Senior Medical Practitioner as appropriate.
72 As a HSMP is, by definition, a “non-specialist medical practitioner”, I infer that a VRGP who possesses fellowship, but ceases to maintain vocationally registered status, would be required, by virtue of the word “shall” in cl 26(4)(b) in the applicable Agreement, to be classified as SMP.
73 Given the link between cl 26(4)(b) and the SMP classification, in my view it is more probable than not that the use of the phrase “recognised specialist qualification” in the SMP definition echoes the way in which that term is understood in the HIA.
74 At all relevant times for the purposes of this case, the provisions of the HIA pertaining to recognition of a medical practitioner as a specialist specifically excluded general practice as a recognised speciality – see HIA s 3D and s 3DB.
75 I am mindful that in the HIA, the specialty of general practice is excluded for the purposes of the HIA, and I must be cautious about importing a meaning from a separate instrument into the Agreements.
76 However, in my view the term “recognised specialist qualification” in the definitions of SMP and DMO in the Agreements is informed by what that constitutes in the HIA. I say this because:
a. The HIA is a key piece of legislation in the industrial context of medical practice;
b. The phrases “appropriate higher qualification” in the Consultant / Specialist definition on the one hand, and “recognised specialist qualification” in the SMP and DMO definitions on the other, are so distinctly different that in my opinion they are not intended to be used interchangeably; but rather, have distinct meanings;
c. A VRGP who ceases to be on the VR shall be classified as HSMP or SMP – where a VRGP since 1995 has required FRACGP and FACRRM, and yet the definition of SMP is specifically for practitioners who do not possess a “recognised specialist qualification”. See also Respondents’ Outline of Submissions, [41]-[43].

77 Those factors together satisfy me that that definition of SMP and DMO imports the meaning of “recognised specialist qualification” from the HIA, in which instrument the qualifications of FRACGP and FACRRM are not so recognised.
78 The six doctors on whose behalf this claim is brought possess exactly the same qualifications as anybody who sought inclusion on the VR from 1995 onwards. They also, therefore, do not possess a “recognised specialist qualification”. However, they do practice without clinical supervision exclusively in a specialist area recognised by the AMC – that of general practice. Those characteristics fulfil the criteria for classification as SMP and/or DMO.
79 In my opinion, the doctors have been classified in a way precisely provided for and allowed by the Agreements.
80 There has been no contravention of the Agreements.
81 I need not, therefore, go on to consider whether or not the doctors were in fact employed and practising in the specialty for which they were qualified.
V Is there scope under the Agreements for fellows of the RACGP and/or the ACRRM to be classified as consultant?
82 I have found that the six doctors do hold the “appropriate higher qualification” as that expression is used in the definition of Consultant / Specialist.
83 Consequently, in my view if they are also employed and practising in general practice – particularly in remote or rural roles that require procedural qualifications in fields such as obstetrics, surgery or anaesthetics – they may potentially make a case with the respondent employers for classification as consultants. That would be a matter of negotiation in each individual case.
VI Concluding observations
84 It is evident that general practitioners have been agitating for some time for better recognition of the enormous value they bring to the community, and especially remote communities, where they are called upon to perform tasks beyond the scope of urban practitioners. That recognition is gradually improving, with the inclusion of general practice as an AMC-approved specialty, and initiatives such as the Commonwealth rural generalist program.
85 With that recognition, it is understandable that there may be an expectation that GPs in particular roles ought to be classified as consultants.
86 But whether that is possible will always come down to what the applicable industrial agreement provides. Pertinently, Madgwick J said in Kucks v CSR Limited [1996] IRCA 141; 1996 IR 182: Kucks v CSR Limited (1996) 1996 IR 182, cited with approval by Northrop J in Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208.

“… A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award.”
87 For the reasons outlined, I have found that the Agreements under consideration allowed for the doctors to be classified as consultants, but did not require it.
VII Order
88 The claim is dismissed.


E. O’DONNELL
INDUSTRIAL MAGISTRATE