AG2001/7714, Transcript of Proceedings [2002] AIRCTrans 1533 (6 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT03594
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2001/7714

HEALTH AND WELFARE SERVICES

Application under section 33 on the Commission's
own motion concerning Heads of Agreement
Monitoring Committee

MELBOURNE

10.05 AM, MONDAY, 22 APRIL 200

Continued from 6.12.01

PN95

THE SENIOR DEPUTY PRESIDENT: Yes. Where are the parties at, Mr Hicks.

PN96

MR HICKS: Your Honour, perhaps if I were to lead off. Since we were last before you, you recall you issued directions in this matter for the parties to file and serve submissions upon each other and also serve those submissions - provide copies to the Commission. I can report that that has been complied with, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes.

PN98

MR HICKS: It would be the position of the VHIA this morning that we proceed with this matter on the record before you. Our instructions, we are certainly keen to have this matter resolved one way or the other by the Commission and I think all the parties have had opportunity of reviewing each other's material. So that would certainly be the position of the VHIA.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Is there any difference from the other parties in respect - okay. Well, who leads off? Mr Hicks?

PN100

MR HICKS: Perhaps if I do, your Honour. Your Honour, you would have received last Tuesday copies of submissions filed by the Victorian Hospitals Industrial Association on behalf of Otway Health and Community Services.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, I have. Perhaps I should mark them.

EXHIBIT #VHIA1 SUBMISSIONS ON BEHALF OF OTWAY HEALTH AND COMMUNITY SERVICES

PN102

MR HICKS: Your Honour, if I could just briefly go to a number of key points of the submissions we have made. To put this whole matter in context, prior to the recommendations issued by Commissioner Blair, Otway Health and Community Services at its Apollo Bay Campus had on the am shift a division 1 nurse and a division 2 nurse rostered. On the pm shift, had a division 1 nurse and division 2 nurse rostered and similarly on the night duty shift had a division 1 nurse and a division 2 nurse rostered. The Commission would be aware that Commissioner Blair, in a decision issued in print S9958, provided for a number of nurse/patient ratios to be implemented across public health facilities in Victoria.

PN103

As a consequence of that decision, your Honour, Otway Health and Community Services at its Apollo Bay Campus initiated a staffing profile described at paragraph 2 of our submissions. In addition, your Honour, the service also has a division 1 director of nursing across the service Monday to Friday on a 9 am to 5.30 pm basis. The Commission will also be aware that last year there were further negotiations between the parties arising in the heads of agreement document being reached and it is, in essence, the context of the heads of agreement that we find ourselves before you.

PN104

The organisation's position is that in implementing the contents of the heads of agreement and a supplementary decision issued by your Honour in print PR912522 that the health service, having given consideration to those materials, has arrived at a position whereby it believes the staffing profile to for the Apollo Bay Campus is more properly reflected as outlined at paragraph 5 of our submissions, that profile being, on the am shift, two division 1 nurses rostered, the pm, two division 1 nurses rostered and similarly for the night duty shift.

PN105

Your Honour, we base that interpretation very much on the provision contained in the heads of agreement, which provided for, in a facility of two wards or one ward and a nursing home, there would be a grade 5 and a grade 3/grade 5 non-supernumerary. It is our submission, your Honour, that that clearly supports the notion of having across each of those shifts two division 1 nurses rostered. In essence, your Honour, that is the point of clarification that we are seeking; in effect, that the construction that we have placed in paragraph 5 of our submissions is, in fact, the provision that ought to apply.

PN106

We believe the heads of agreement and the occupancy data that has been provided to the Commission supports that position. Your Honour will note that in the materials provided, appended to VHIAs submissions, there was a breakdown of occupancy data on a month by month basis over the 12 months for 2001. You can see that there is clustering around between 9 and 10_ patients per month. So when one applies the relevant aged and acute ratios of the heads of agreement, clearly two nurses, division 1, registered, clearly falls within that parameter.

PN107

Your Honour, that is the extent of the submissions the Health Service would be making. Taking the situation where the service is now, in terms of the skill mix that should have application for the service, there is a significant improvement from the staffing arrangements that existed prior to the decision of the Commission in print S9958. We would commend to your Honour the position that we have put and, indeed, we note that the staffing profile that the service has interpreted out of the various obligations is, in fact, strongly supported by the Department of Human Services in that respect. If the Commission pleases.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Hicks. Mr Sullivan.

PN109

MR SULLIVAN: Your Honour, there were two elements to the outline submissions. If you might recall, there was earlier material provided to the Commission before the last conference.

PN110

THE SENIOR DEPUTY PRESIDENT: There was. Just one moment. It is here. I will find it. That was a document provided by way of facsimile?

PN111

MR SULLIVAN: Yes, it would have been. I am just seeing if I have got another copy of it, here, your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: Some 29 paragraphs?

PN113

MR SULLIVAN: Yes, that would be right. I do have an extra copy here if you would like it.

PN114

THE SENIOR DEPUTY PRESIDENT: No, I have located that.

EXHIBIT #DHS1 DOCUMENT FAXED ON 18/03/2002

EXHIBIT #DHS2 DOCUMENT DATED 16/04/2002

PN115

MR SULLIVAN: Your Honour, these materials were provided to you by way of outline submission. I would just take the opportunity at the moment to perhaps recap a little on the documents. I won't go to every detail. In essence, your Honour, DHS1 was a more general submission, I guess, in the sense of trying to set the whole debate into context and it went to draw out from materials that had been provided, I believe, to the Commission and to DHS such materials going to the issue of occupancy rates and also presentations in the emergency presentation facility there.

PN116

I guess what we would simply reiterate is that - because it does come in for attention in material that the ANF has now submitted later, where it describes at certain points that DHS were making assertions about various presentation levels and what have you. Well, we would just have to emphasise that the analysis provided in the submission in DHS1 was really an analysis drawn from material provided. It wasn't assertion. It was basically an analysis going into the pattern of the way presentations were occurring in the emergency facility.

PN117

So, to the extent that I am anticipating some rebuttal of the ANF material, I would just draw attention to the fact that those extrapolations of material in DHS1 were based upon data provided. The other point I would, I suppose, draw out of this original submission, DHS1, is our support for the approach that the service is taking in the matter and also emphasising, as Mr Hicks has just alluded to, that prior to the Blair recommendations, the staffing was one div 1, one div 2 on all shifts because it just has to be kept in mind the way this thing has progressed.

PN118

The further issue that I think I need to come back to in later submissions is the issue of the allocation of the 1250 additional nurses that resulted from the heads of agreement. It is a fact that the allocation was made throughout the health system without cognisance of these types of facilities and it is a fact that the DHS has met its requirements under the heads of agreement by allocating that funding. I guess it just begs the question of what the ANFs view is if, in fact, it proves to be that there is another demand made on EFT staffing in facilities such as these throughout Victoria, what do they say in regard to that?

PN119

Do they say that some of that funding that has been distributed has to be drawn back and redistributed or are they saying that there really has to be a commitment of government beyond what was in the heads of agreement? So that DHS1. I will just make those brief comments about that. Unless the Commission has some queries about some of those points made in the submission, I won't go to it any further.

PN120

The second submission, DHS2, was really dealing with an aspect of this matter that was beyond the factual situation. It was to deal with the question of interpretation, essentially, your Honour, and in that question of interpretation, in our view, it is a fairly constant position taken by the ANF that the heads of agreement is clear. I guess that is where we divert now, quite evidently, with the ANF. Unfortunately, it seems to us that there is some ambiguity now in the heads of agreement in regard to the application of it to situations such as Apollo Bay.

PN121

The context of this matter is that, of course, there were the recommendations by Commissioner Blair in August 2000, which simply said in relation to accident and emergency departments that the staffing ratios would be one division 1 nurse, a triage nurse and an in-charge nurse, so, in other words, at least a minimum of three qualified division 1 nurses, including an in-charge nurse, in accident and emergency departments. They were the terms of clause 172 of print S9958 and I think it is important to recall that because this thing progressed from there. It progressed from the original recommendation and the recommendation was clearly using the terminology "department".

PN122

So attention is drawn to that in our outline submission and also attention is drawn to the fact that the Heads of Agreement settlement yielded another 350 EFT to go into the field in terms of funding from DHS to cover off the revised ratios. Those revised ratios, as we draw out in our second submission, were about containing the effect of Commissioner Blair's original recommendations because of the difficulties that arose with implementing those recommendations within the 1300 funding cap that was determined by the Commissioner.

PN123

Under the heading in DHS2, Heads of Agreement Content and Language, at point 4 we draw attention to the actual terms of the heads of agreement where I would have to concede that the drafting may be not as brilliant as it should have been but which we, nevertheless, are able to identify and I think the Commission can identify the use of words under that heading Accident and Emergency in the heads of agreement, where in group 1, clearly, you have got certainty because you have got named hospitals. You have got specific facilities mentioned. In group 2 it starts off with the terminology "Accident and Emergency Departments not in group 1".

PN124

To our mind that sort of is a pretty clear hark back to the Blair categorisation of accident and emergency departments. It has to be conceded in group 3 that because there is no heading, it does leave open an interpretation that these ratios apply wherever there are what you might call presentations of the nature that occur at Apollo Bay but I would draw attention, as we have in our submission, to, nevertheless, still the continuation in the last sentence of group 3 of the terminology, once again, of accident and emergency departments.

PN125

Then, having run through some of the aspects of the development of the Heads of Agreement, we do take the view that the Heads of Agreement should be read in the way that we say it should but, nevertheless, if it is seen that there is at least some ambiguity, particularly in relation to the provision in the heads of agreement to do with small facilities, then it is open to the Commission to consider the question of extrinsic material. Now, what we note in our second submission, your Honour, is that we effectively adopt the ANF material in relation to interpretation of agreements. We have no problem with that.

PN126

The essence of the difference, I suppose, is that the ANF says the heads of agreement is clear. We say, at the very least, it is not clear, given that we have found ourselves in the situation we have now. It is consistent with the ANF attention to the authorities on this matter that once it is a question of some ambiguity that has come into the matter, then the documents should be read, first of all, as a whole. The whole context of the document can be taken into account and it also allows, obviously, a reference to extrinsic material.

PN127

So, summarising that as being the interpretation approach which we believe is necessary in this case, we don't in any way seek to vary from the authorities in this regard but we do draw attention as well to the fact that, obviously, this document being a heads of agreement is not a fully drawn industrial instrument, having the circumstances around it which pertained at the time, of late night discussions, late night drafting and some hurried supplementation, I guess, in the next few days whilst the ANF was addressing the questions of what it would recommend to its members.

PN128

So, your Honour, having reached the preliminary conclusion, in our view, that at least, at the very least, there has to be regarded as there being some ambiguity about the Heads of Agreement, we also draw attention to the fact that the overall approach which was being sought in those negotiations was really containment of the Blair recommendations. Moving on from there, your Honour, we note that since the last conciliation conference a search of records at DHS has, in fact, located materials that we believe are helpful in terms of determination of this matter, extrinsic materials which go to reinforce, in our view, the submissions that we have been making all along and that is that the focus was on accident and emergency departments.

PN129

The first of those materials is the fax from the ANF to various persons involved in the negotiations at the time, yourself, your Honour, and Mr Djoneff at VHIA, Mr Lees at DHS and Shane Solomon at DHS. That is the facsimile of 16 August last year and it was a proposal, I gather, well it was a proposal from the ANF in an attempt to resolve the matters that were before us at the time and I simply draw attention to attachment A of that material, again where the Accident and Emergency Department is used in the middle of the page by the ANF, and it was really a question of trying to deal with B and C hospitals, moving away from the simple across the board Blair position which was Accident Emergency Departments no matter where.

PN130

So the ANF itself was still using the Blair terminology of Accident Emergency Departments in its material sent to DHS. Then if you turn, your Honour, a few more pages to a single sheet without any attribution to it, it is just headed up, Emergency Departments with six numbered paragraphs on it. As noted in our outline of submissions, your Honour, we are not able to ascertain for certain whether this matter was - these materials were put on the table in the negotiations of 23 August '01.

PN131

We believe that they were but we couldn't be certain of it. We believe that the materials, at least some of the materials were available to ANF in terms of the second page which summarises the Accident Emergency Department activity 99/2000. But your Honour - - -

PN132

THE SENIOR DEPUTY PRESIDENT: What is the source of that document, Mr Sullivan?

PN133

MR SULLIVAN: Which one is that, your Honour?

PN134

THE SENIOR DEPUTY PRESIDENT: The six point?

PN135

MR SULLIVAN: The six point document, your Honour, was obtained by a search of Mr Shane Solomon's records in relation to the matter. Mr Solomon was representing DHS in some of the detail discussions on this matter. It was also, I would say I found that and one other piece of material in my files, that was the third page of the set of three documents, which is headed up presentations of two nurses per shift, I think, or two presentations per shift which I think was an analysis of the ANF proposal.

PN136

But I don't recall having in my materials the summary of all the Accident Emergency presentations. But in essence the three documents were obtained from Mr Solomon.

PN137

THE SENIOR DEPUTY PRESIDENT: And they were created by whom, do you know?

PN138

MR SULLIVAN: They were created by Mr Solomon. In fact the first page of the document was obtained by reference to his computer records and was dated on the day of 23 August. And I think it was at a time of about 4 o'clock in the afternoon or something it registered as being created. So that can be confirmed if necessary, your Honour. So without taking it any further than what we do in our submission, we say that by virtue of that material it makes it pretty clear that certainly DHS was looking at recognised Accident Emergency Departments with a list attached.

PN139

And then at point 4, that we accept the principle for the small hospitals was less than 5000 presentations with no dedicated staff for accident emergency local ..... cover would continue to be made. So with that extrinsic material supporting, in our submission, the general approach being taken by DHS in this matter, we conclude that an interpretation has to really come to the conclusion that first of all at the very least there must be, seen to be some ambiguity about the Heads of Agreement.

PN140

Secondly, the arguments that we put are that consistently there was discussion of this matter not just from DHSs point of view but from the Blair perspective and from other perspectives of it being Accident Emergency Departments per se. Your Honour, just turning - so that is really touching upon the DHS outline submissions. Turning to the VHIA material, which I don't seek in any way to criticise, but drawing attention to the fact that they have spelt out in their submission the state of staffing at paragraph 2 of VHIA1 that occurred after the Blair decision.

PN141

And I would also note that at various times the ANF has supported that staffing level, it applied and still applies at the moment. Your Honour, there is some real inconsistency in this when you delve into it. Because if the ANF are really saying that this is an accident emergency facility contemplated in the Heads of Agreement in accordance with - following on from Blair, then it can be seen quite readily that certainly after the Blair decision recommendations of August 2000, Apollo Bay never tried to meet Blair in terms of its accident emergency capacity.

PN142

Blair, if it was to be applied across facilities such as these, would have required in addition to the staffing indicated at 2 of VHIA, obviously three further division 1 nurses for the accident emergency operation. It would have required a division 1, a triage and an in charge. Now, at no point really, and realistically, has the ANF pushed that because we would submit it is an obviously unsustainable outcome. But it also, I guess, makes the point that there has been flexibility to say the least in regard to the approach of the ANF in this matter, that at times it has asserted most strongly that this is an Accident Emergency Department covered by the Heads of Agreement.

PN143

But at other times when the Blair recommendations were clear cut it made no real press for the department to be treated as an Accident Emergency Department. And I think that is a point that shouldn't be lost, because when you get later also to the current position of the ANF, which is in effect that the matter can be solved by selective application of the Heads of Agreement, that is for night duty for example that there is no need for a floater. Again I don't believe it be taken as a really consistent view on behalf of the ANF in this matter.

PN144

Their current position is one which in fact makes a concession in relation to what they say the Heads of Agreement means. But the problem that we would see in this sort of an approach is that if you are going to have written into a certified agreement the provision that sits in the Heads of Agreement at the moment, in reality Apollo Bay would be in breach of the certified agreement if it didn't have a floater at night. So the matter needs to be seen from the perspective I think that common sense is dictating to the ANF at times that well, we can't follow that path because it is a pretty silly outcome.

PN145

But it is really now a matter not of a grace and favour application by the ANF into the future, we really have to have certainty about this matter, such that there is not a technical breach of an agreement by virtue of simply a local agreement to not press a certain shift. Your Honour, I would just like to turn briefly now to the ANFs outline of submission and make some selective comments. Putting aside the general approach and reiteration, I guess, of what was before Blair earlier, it is contained within the earlier pages of the ANFs submission up to page 7.

PN146

Turning to page 7 onwards where the ANF deals with DHS1, outline submission, I just have some points of commentary to make in regard to the ANF response.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes.

PN148

MR SULLIVAN: At page 7 of the ANF material, nature of facility, there is emphasis on the fact that Apollo Bay is a facility that has quite a few activities beyond the ward. And there is no argument with that, in fact it is a facility that is quite deliberately and under a policy heading, regarded as multi function service. And multi function services are intended to be established, and are established, in relatively remote placed to allow flexibility of delivery of various health services.

PN149

And the thing that we would draw, I guess, from even the ANF response, is that this is clearly reflective of the fact that this is a multi function service and has staffing - there is staffing clearly beyond that involved in this particular matter in the wards. The next point that I refer to, your Honour, is under the next page, page 8, the ANFs response to the DHS position, the position that we pointed out that the Otway Health and Community Service provides for attendance of persons at Apollo Bay seeking assistance, and basically reflecting the fact that it is an extension of GP operations.

PN150

In the third line of the ANF response, and it refers to the 2001 statistics of 1862 presentations, not including patients present to A and E who are referred to a GP. I can only assume that what is meant there is that that is for the people who turn up to the facility and are directed elsewhere to a GP service during the operating times.

[10.35am]

PN151

The next point of the ANF's submission that I would touch on, your Honour, is on page 10 under number 8 of the DHS position outline, and there is reference made that in the second paragraph of that ANF response, which starts off by saying:

PN152

The pre-existing staffing levels are largely irrelevant. Their decision August 2000 and subsequent decision of Watson ...(reads)... and ultimately led to Commissioner Blair's decision.

PN153

Well, the problem is that, on my advice, there was in fact no evidence before Blair C in relation to this type of facility, with regard to acts of emergency. And secondly, it is quite self-evident that there were deficiencies in those recommendations that the parties had to accommodate to in the August 2001 Heads of Agreement. On the next page, your Honour, at number 10 DHS Position Staff, where we noted that a staffing complement of three nurses produces a nurse to patient ratio of 1 to 3.3 4 on average on all shifts, the grade 5 nurse, not being supernumerary. Then the ANF's response is:

PN154

That the ANF does not accept the occupancy rates put forward by DHS and at Apollo Bay, the grade 5, is not supernumerary.

PN155

In relation to the occupancy rates put forward by DHS, well, they are not actually the occupancy rates that were put forward by DHS. These calculations were based upon Apollo Bay's occupancy rates, your Honour, and I just need to make sure that is clear. On page 12, of the ANF's submission, your Honour, DHS position 14. This goes somewhat to what I had noted earlier, that there is stated by the ANF in its response, that DHS is making unsupported assertions.

PN156

Well, in fact the - all of the material and all of the submissions made by DHS have been based upon data that has been provided by the Service and which I didn't think there was any argument about. Your Honour, at page 14, DHS position 19, the ANF response simply confirms, I guess, what I was alluding to before, that the ANF in this case is now saying, well, they don't need a third nurse at night.

PN157

Well, it is either required or it's not required, in our submission. And it is an inconsistency for the ANF to be making that formal position - taking that formal position, because, in essence, they are saying, well, there's the heads of agreement, we said what it requires, but - oh, yeah but we'll make this concession. We don't believe that is a satisfactory way to go forward in relation to this matter, or any other matter that might arise.

PN158

In relation to further down on the page, DHS position 21, where we had stated that:

PN159

Since this has never been a funded emergency attendance service, it's future seems to be at a critical point, even providing resources to supplement the peak demand period takes DHS beyond its Heads of Agreement commitments.

PN160

Which it does. Then the ANF's response is that, the DHS seems to be implying that it may close the Service. Well, we are not threatening anything, your Honour, it just is recorded that it is going to be a difficult situation if the staffing requirement the ANF asserts is to be met at Apollo Bay and perhaps at a number of other places. The way in which the service might be provided in future is an open question, if the staff requirement is as the ANF asserts.

PN161

In relation to the potential flow areas, your Honour, I won't go to any particular responses from the ANF but we did note in our submission that we had an attempt to summarise the places where potentially there could be a flow on effect from a decision that required a floater in these small facilities. Unfortunately, despite a lot of effort, we were not able to go beyond providing the ANF with two lists, one of which was of hospitals which perhaps run these types of facilities, that are recorded as being under 5000 presentations, and those that are just at large.

PN162

It would depend heavily upon the nature of the facility and its other staffing as to whether it falls into the category such as Apollo Bay. And we just haven't had time to do that analysis. We have undertaken with the ANF to look further at the matter and, depending upon the way the Commission ultimately views this matter, to sort out what would be applicable in other places.

PN163

Your Honour, that really summarises - or it adds to our summary submissions in this matter. We see it as a matter which clearly in relation to the heads of agreement, it has been unfortunate that there has been the scope for this kind of an argument to develop out of the heads of agreement. We can do nothing other than confirm our view that we have tried to draw from the Heads of Agreement what we understood to be its requirements that the Hospital has acted, in our view, in good faith, in trying to meet what its requirements were under the original Blair C decision, which was really going to the question of having higher graded nurses in the facility, rather than covering the Accident and Emergency Department.

PN164

We certainly would like to have the matter resolved one way or another, and in the end, whichever way the matter goes, we will continue to try to work with the Hospital and with the ANF to come to satisfactory arrangements, both here and in other places. If the Commission pleases.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Sullivan. Mr Burrows, your material is exhibit ANF1.

EXHIBIT #ANF1 DOCUMENT DATED 16/04/2002

PN166

MR BURROWS: Thank you, your Honour. We only intend to briefly comment on VHIA and DHS submissions, and as you are aware, the submissions that have been put in writing by the ANF who, in our view, deal with most of the matters that have been raised with you by the DHS and VHIA. So we won't be going through every item of the employers' submissions, but there are a couple of items in relation to VHIA, we wish to raise, and there a few more items in relation to the DHS.

PN167

Basically, in relation to the VHIA written submissions, in our view there are two main areas that we wish to raise. The first is that the occupancy data submitted by VHIA refers to average occupancy. And as the Commission is aware and the parties are aware, Commissioner Blair on 27 March 2001, in a decision print 902692, found that average occupancy was in fact not the appropriate measure and the appropriate measure was usually occupied beds in relation to wards. And I don't think that's in dispute with either of the employer parties.

PN168

But more importantly, in our view, the VHIA submission doesn't really address one of the main issues before you, and that is whether or not the group 3 A&E provisions of the Heads of Agreement refers to all A&E services, with 5000 or less presentations or not. There are a number of submissions from the DHS and us in relation to that, but in relation to the VHIA, they seem to be silent on that issue.

PN169

In relation to the - perhaps I could interpose that the same comment I make in relation to the DHS submissions in relation to the conversation and discussions that took place between all the parties over a number of months, in relation to this whole dispute, the commonly used terms were, Accident and Emergency Department. There were discussions also about funded and unfunded departments, but Accident and Emergency Department, as such, was never, in our view, used by any of the parties to imply that that only meant funded or official, or some other designation. It was, if you like, a generic or term that was used throughout discussions. And we will address that in more detail later in the submissions.

PN170

I will take you to DHS1, I think, in general terms is dealt with in our written submissions. Apart from - perhaps just in relation to a number of matters that Mr Sullivan had raised, where for once the ANF seems to be being criticised for its flexibility rather than its inflexibility. There have been, since August 2000, since Commissioner Blair's original decision, a number of occasions, and I am not referring to A&E,but a number of occasions where health agencies, through their representative, the VHIA, and with the knowledge of the Department and the Commission, both agencies have approached us in relation to seeking some tweaking of the appropriate ratios that apply.

PN171

And in each of those occasions we have met with the agencies and entered into what can be described as the local agreements. If that is to be implied that in some way the ANF is walking away from the general recommendation, that seems fairly astonishing, when what we have been doing is trying to take into account particular requirements of particular agencies. And that is in fact what we did at Apollo Bay.

PN172

And Mr Sullivan referred to our comments in response to DHS1, but I would also like to draw your Honour's attention to ANF1 at page 17 which is headed, Additional Matters submitted by ANF.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes.

PN174

MR BURROWS: And in particular paragraphs 5, 6 and 7 where at paragraph 5 the ANF sets out what the heads of agreement contained at page 3, which we say should apply to small health agencies. And then in paragraph 6 and 7, we re-affirm that that is the position we are seeking and that is the position we wish your Honour to come to the conclusion that that is the appropriate staffing regime.

PN175

And we explain paragraph 7 that for local reasons, and I think it goes back to late last year, the staff at Apollo Bay were happy and proposed that the staffing arrangements contained - overleaf at page 18, were suitable to them. Now if, as I say, if we are to be criticised for trying to address a particular circumstance at a particular agency, that to us is quite astonishing. But we do not resile from the staffing regime as set out in the heads of agreement, and we would seek that the Commission - to make that finding. And if it means that in the future we can't enter into agreements to suit local health agencies, if that is the Department's position, we will take that on board.

PN176

Now, if I could go back to the DHS written submissions, and take your Honour to - the pages are unnumbered, but it is paragraph 3 under, Context, which effectively is the first page after the cover sheet, which the DHS makes the point that:

PN177

... ratios refer to Accident and Emergency Departments ...

PN178

And we don't resile from that. Commissioner Blair used the expression, Accident and Emergency Department. I think it is equally correct to say that nowhere in Commissioner Blair's decision does he state that this means either funded, official or recognised A&E departments. And in fact we believe that - and I think it has been confirmed by Mr sullivan's submissions today, that the original recommendation for the 31 August 2000, in fact applies to all A&E departments, irrespective of the size.

PN179

And that caused some concern to the employer parties, and they wanted to seek different staffing arrangements for smaller A&E departments. And the ANF accepted this approach, entered into negotiations, and that led to different arrangements for group 2 and 3 A&Es. So in effect negotiations did contain, in our view, Commissioner Blair's original decision in relation to those ratios. They didn't extend them, because we were starting from a point where the ratios in paragraph 172, on their face, applied to anywhere that had an Accident and Emergency department.

PN180

Paragraph 4 on the same page, DHS says that, that from the beginning, the terminology used, etcetera, etcetera. As I earlier said, it is the ANF's submissions that the term, A&E department, was used as a generic title or descriptor. The words, funded, recognised, official or any similar words, do not appear in Commissioner Blair's decision of 31 August 2000, nor any of his subsequent decisions. The words do not appear in the heads of agreement, nor in the decision of your Honour on 13 August 2001, in print 912522. In addition, submissions form the DHS and VHIA that preceded that decision of the 13th - sorry, 13 August, I think it is 13 December, your Honour.

PN181

THE SENIOR DEPUTY PRESIDENT: Mm.

PN182

MR BURROWS: The submissions in fact, and I have them here, and I won't go through them, they form part of the Commission file, but in neither the submissions of the DHS or VHIA, are any similar terms used. So it is only really in very recent times that this matter - the whole matter of the Nurses' public sector dispute - has been on foot for two years. So it is a recent event that all of sudden Accident and Emergency Department means funded, recognised or some similar terminology.

PN183

Also in paragraph 4, DHS used the words:

PN184

... identified operational unit...

PN185

Again, they are words that haven't been used in any other documentation, but in any event, in our view, the words, identified operational unit, can apply whether an Accident and Emergency Department is so-called recognised funded or whatever. In fact, on the point of recognition, if your Honour was to go to any of the small A&E services that operate in the country, we would find most of them are advertised. They have notices on boards, or hoardings or something, referring to their Accident and Emergency department or service.

PN186

And in our view, whether it is funded or not, is irrelevant, except for the level of staffing applied. But it was clearly, from the ANF, and I believe all other parties, in the discussions, the attempt was to get a regime of staffing that was appropriate to smaller services, to modify, if you like, Commissioner Blair's original recommendation.

PN187

Just in relation to DHS talking about, from the beginning, perhaps - and I know these documents have been provided before, but if I could hand up the log of claims that formed - this was the log of claims that was endorsed by the members.

EXHIBIT #ANF2 ENDORSED LOG OF CLAIMS

PN188

MR BURROWS: And as I say, the document has been before the Commission before. You will note at point 3, Staffing and Recruitment, it layes out a general claim in relation to nurse/patient ratio in wards, on AM, PM and night-shift. And in the second dot point, the second column of the cover, it talks about:

PN189

In other areas the nurse to patient ratio would be relative to the nurse/patient ratios as outlined above.

PN190

And what the ANF is clearly seeking to do is to get appropriate staffing levels wherever ANF had nurses and members employed. So right from the start there was no - not only no mention of A&E, of the funded or unfunded. But A&E as such, wasn't particularly listed, and I only make that point, if you like, in response to the words, from the beginning. Now, from the beginning, in our view, it talks about when these discussions over the public sector claim commenced, and from the beginning what was in front of the parties was a claim to seek adequate staffing levels in order to resolve extreme workload problems that had been identified, and agreed to, by the parties, and subsequently identified in the Bennett report.

PN191

Just for completeness, if I could give you another document, your Honour, which is also what the parties have.

EXHIBIT #ANF3 2000 PUBLIC SECTOR CLAIM

PN192

MR BURROWS: This is - because the glossy claim, if you like, that is now ANF2, was largely unnumbered, we developed this document, which is really the same - in essence, the same document. And we had each point and sub-point numbered so that during negotiations it was an easier exercise for us to deal with them and I only put that in to show that in this document that was used between the parties at 3 and 3.1.3 the same words are used and, as I say, in essence, what the ANF were seeking were appropriate staffing levels throughout the public hospitals irrespective of - or throughout the public sector irrespective of the nature of the facility or the type of units.

PN193

And perhaps I can interpose that, as you are aware, funding has long since moved away from the funding of positions and so on, and it is now funding through case mix and other programs so that really hospitals enter into agreements to provide certain services. And I am instructed, although I haven't got a copy of the health services agreement at clause (a) but that agreement, we say, does touch upon these services and that the department are aware that the services they provide even though it may not be in the now position of the DHS, it may not be an official A and E department.

PN194

Paragraph, or point 5 of the DHS document, the only comment I make is that DHS make the point that the renewed dispute was moving towards a section 170MX arbitration. We just note, and I know the Commission is aware that the ANF had appeals on foot also in relation to Commissioner Blair's decision. So just for completeness, we don't believe that necessarily it was heading towards a 170MX arbitration.

PN195

At paragraph 6 the DHS talk about a key issue facing the parties. I think it was more a key issue facing the department as most of the department's input into these negotiations and, indeed, the arbitration were in relation to cost. I just make the point, and Mr Sullivan addressed it later that, in fact, the 1300 became 1650 and currently in press releases and statements from the Minister, we are talking about the attraction of 3000 nurses. And all this is against the background - and I know this has been brought to your attention before - that any of these numbers are, in effect, best estimates and comments have been made by Commissioner Blair in his decision and by other parties in conferences before you about the lack of data and, indeed, it is accepted by the department that there has been a paucity of data. And at this stage we haven't been provided with any acceptable data that, in fact, identifies how many people have been employed.

PN196

At the bottom of the first page the heading becomes: Heads of agreement content and language, and that continues in a variety of paragraphs on the next page where at paragraph 2 the DHS says that:

PN197

Annexure A stipulates a series of new ratios under a number of headings ...(reads)... hospitals, wards, units or areas.

PN198

Again, I make the point that identifiable doesn't equate with being recognised by the Department of Human Services. Annexure A, and I will come to it in a moment, but annexure A uses a couple of approaches in relation to identifying appropriate staffing and appropriate health agencies.

PN199

Paragraph 3, in our view, sort of lumps together some designated areas that appear in annexure A and with some generic areas, and then in paragraph 4 and 5 the DHS attempts to draw a conclusion that because of the way the annexure is structured, that A and E departments means only recognised A and E departments. In our view, annexure A to the heads of agreement has a couple of different approaches which, in fact, we would say supports our submission. Has, your Honour got a copy of the heads of agreement?

PN200

THE SENIOR DEPUTY PRESIDENT: I do, yes.

PN201

MR BURROWS: You will see, your Honour, on page 2 of the annexure hospitals are listed by category: level 1, level 2, level 3 and level 3A and then are named - numbers of hospitals with the name of them beneath - within each of those categories, and then that is referred back to page 1 where these levels of categories actually on page 1 have appropriate - there is posted ratios, lists for general medical surgical wards, and post-natal wards, etcetera.

PN202

On the other hand, if you go to page 4 of the annexure, the only paragraph on page 4, paragraph c, supernumerary grade 5s talks about small health facilities. It doesn't name them or list them. It identifies them by reference to whether they are one ward, two wards or three wards. And, in our view, that is the same approach as the parties took in relation to A and Es and it is a similar approach to try and identify across the field in small facilities for grade 5 based on numbers of wards in the same way to approach the smaller A and E by using the number of accreditations.

PN203

And, similarly, if you go through to the next page of the annexure delivery suites are identified by reference to levels where NIKOUs (?) are named: group 1 A and Es are named, group 2 and 3A A and Es are identified by reference to presentations, coronary care units are designated with an understanding as to what that means. HDUs, in fact, are named. Page 8 where, for example, about halfway down the page reference to high dependency units whenever a full health facility - health facilities are named and there is a parenthesis note that Hamilton Wodonga are to be reviewed; and that, in fact, took place.

PN204

Elsewhere in the annexure there is ratios for palliative care, but the agencies are not named. The ratios for rehabilitation: there is a division into category 1 or 2 rehab. Operating theatres contain ratios but agencies are not named, and packaged similar - the agencies are not named. So I think it would be reasonable in our view, unlike in paragraph 5 of the DHS document where they say it is reasonable to infer that ratios applying under the heading A and E are ratios to apply in recognised A and E departments. We don't agree with that inference. We say, in fact, it would be reasonable to infer that if the DHS had wanted to categories accident and emergencies to exclude so called unfunded A and Es, that the DHS would have and could have listed the A and Es that it believed comprised the group 2 and/or group 3 A and Es and we would say that is the reasonable inference to be drawn.

[11.06am]

PN205

At paragraph 6 we make the same comment in relation to the DHS submissions we made to the VHIA submission. They have taken a part of the heads of agreement which relates to small facilities but they haven't taken into account the other parts of the heads of agreement which talks about group 3, accident and emergencies. Now, there may well be - in Victoria there may well be small health agencies that don't have an A&E service and if that was the case well, then, what is set out in the VHIA submission, in paragraph 6, of the DHS submission may well be correct.

PN206

But as Mr sullivan said the agreement should be read in total. So if you are trying to find out the staffing that applies at Apollo Bay, fine, you look at the part of the heads of agreement which is at page 3 headed, Other Hospitals Not Referred to in Page 2, and it sets out ratios for acute and aged care. But in our view you also have to look at the provision of the A&E ratios at page 6 of the annexure in relation to group 3. As indeed you have to look - and I think the department would disagree with this - at page 4 which we have drawn your attention to earlier - the provisions of supernumerary grade 5s. That is an overall provision.

PN207

So if you are trying to look at what happens at Apollo Bay you can't just look at the provisions of the small health agencies you have to look at the other relevant parts of the heads of agreement which we say are, at least the section that relates to supernumerary grade 5s and the section which relates to small A&Es. That is the way the document is structured. There are various parts of it that can apply to various health agencies. We haven't had a document where we have listed every health agency whether it be the Royal Melbourne or Apollo Bay and then go through and say this is what will apply at those agencies.

PN208

It was a mixed approach adopted in the heads of agreement and it was the understanding of the parties that was the way it was to be done. It was possible to take an overall approach with some ratios and it was possible and desirable in some areas to list them and that option was certainly available to the employer parties. So, as I say, in respect of paragraph 6 of the DHS submission it totally ignores the provisions for a floater which is referred to in the agreement.

PN209

Under Preliminary Conclusions in the DHS document the DHS submit about the ANF view requires that rather than achieving containment with the original Blair recommendations, that they were extended to numerous further settings. As we said, your Honour, it is our view, and I think - I believe it was the view of all the parties that rightly or wrongly the initial decision of Commissioner Blair in relation to A&E imposed a regime on all A&Es and in fact what the ANF was doing along with the other parties during the negotiations was seeking to contain that and it was containing it by delineating between the size and scope of A&E services that was delivered at various agencies.

PN210

In relation to the part of the DHS submissions on the next page headed, Documents From 2001 Negotiations. Paragraph 1 commences:

PN211

Since the most recent conciliation proceedings...

PN212

that is the "most recent conciliation proceedings":

PN213

...the DHS has located documents which support its contention.

PN214

Now, I know that Mr Sullivan is careful in using the word "located" and he has attempted to explain it to you but we would say that that document should be given no weight by your Honour for a number of reasons. It is conceded - well, first of all, it is unheaded, it is undated. It is conceded by the DHS that it may not have even been tabled during discussions. They believe it was but they can't, with any certainty, say that.

PN215

For our part, and I will come to the document in more detail later, but I have gone through our files and cannot find a copy of it and certainly the unheaded part, I think five or six points which is the first part of the bundle of documents, I don't believe that I have ever seen it. It is very difficult to say when a document is given to you that you have never seen it given the amount of documentation that went between the parties during now over two years of discussions but I don't believe that the ANF have sighted that page. In any event, as I say, it is certainly not put forward on the basis that it was discussed and I don't think - the primary position would be should not be given any weight at all.

PN216

If your Honour is of a different view, at the very best light it could be seen in, is that it was a negotiating document in the same way that the other document in the DHS submission, which is our document, is a negotiating document. Rightly or wrongly the parties in these discussions over the years have tended not to head documents "Confidential", "Without Prejudice" and so on. Perhaps that is also something we could take on board for the next round of negotiations.

PN217

But, clearly, if you look at the ANF document which we do head and date and identify, it contains a number of propositions in relation to ratios which we never achieved. There are better ratios in that document in a number of areas. And it would be like me producing a document from my computer saying - an unheaded document saying: ANF Delivery Suites should have a one to one ratio. I mean, it is no more than that.

PN218

The DHS make a point of the fact that the ANF document in their bundle refers to A&E departments. We don't resile from that, your Honour, because we always referred to them as A&E departments. We never refer to them as ANF - sorry, as A&E funded official departments. It was a term used to identify the provision of A&E services where they occurred at health agencies.

PN219

The DHS, in their documents, have also included a copy of an e-mail that was sent from Mr Sullivan to the ANF a relatively short time ago and the e-mail cover sheet of a message from the department describes the documents as - or the attachments - the first page, being facilities below 5000 presentations, and the second page facilities without recorded presentations, which may be under 5000. And in each - and on that page makes the point that the DHS are saying that these are not recognised A&Es. Again, that is the first time in written form that that matter has been put to the ANF and we believe it is a re-visiting of history and it is a position that has been come to of recent times, not one that was held during the negotiations.

PN220

Perhaps if I could just briefly go back to the unsourced document that is in the bundle, and it is page - the fax numbering is page 10 in the bundle. It is the one headed, Emergency Departments. And as I say our primary submission is the document shouldn't be given any weight but it is interesting that in paragraph 4 the department talks about accepting the principle it is a small hospital of less than 5000 presentations, blah, blah, blah. So the department in its documentation is talking about presentations to a hospital, not necessarily presentations to a recognised A&E.

PN221

On the next page where a number of hospitals are listed, and then in the first column under, Total, there are a number of, I assume, total presentations for 1999/2000 and they vary from 52,000 and similar numbers. You would note, your Honour, that if this is indeed a list of what the department regarded as the only accident emergency services or departments that were to attract ratios, there are only two in that list that are under 5000, that is, Mt Alexander with 4519 and Hamilton with 3010.

PN222

So if this was a document which was tabled, if it was a document that formed part of the negotiations and if the department wanted surety in relation to what they believed came within the group 3 accident emergency services, it was simply a matter of listing Mt Alexander and Hamilton. In the same way that in annexure A which we have referred to there are a number of incidences of two or three or four hospitals being listed where they were the only hospitals that were to be the subject of particular ratios.

PN223

Perhaps on that point if I could tender a letter which was sent to the department on the 17 April. The employer parties have copies - I have provided them.

EXHIBIT #ANF4 LETTER DATED 17 APRIL FROM ANF TO DHS

PN224

MR BURROWS: This was sent to the department after receiving the e-mail from Mr Sullivan which is contained in DHS documentation and perhaps if I can just read it into transcript, your Honour? Addressed to Mr Brian Sullivan, Principal Industrial Consultant, Re Accident and Emergency Department:

PN225

Thank you for your e-mail of 5 April 2002 which contains two lists of health facilities ...(reads)... that you believe are encompassed by the group 3 position of the heads of agreement.

PN226

At this stage I have had a phone call from Mr Sullivan but we haven't had a written response to the letter. And just to conclude, the second last and the last paragraph:

PN227

As you are also aware the ANF positions is that no distinction was raised or existed ...(reads)... that apply to group 3 facilities, accident and emergency services.

PN228

We tender that, your Honour, as it encapsulates the ANF position in relation to this issue. Another matter we draw to your attention, although DHS plays an important part in negotiations for public sector agreements to nursing staff, as you are aware, in Victoria the department is not the employer. The employer is the various health agencies which, overwhelmingly if not totally, are represented by the VHIA. So when the ANF is formulating a claim or negotiating we believe that we are entitled to - entitled, in fact, what we did was attempt to improve the terms and conditions of nurses employed by nursing services.

PN229

Whether parts of that service are recognised, unrecognised or a mixture of the two, the nurses employed in small A&Es, whether it be at Apollo Bay or at other health agencies, are public sector employees, they are nursing staff, they are covered by the ANF, they are covered by the terms of the award and they are covered by terms of certified agreements which we have negotiated in the past. In relation to the Apollo Bay, Otway Health and Community Services, if we could tender a document which is - - -

PN230

THE SENIOR DEPUTY PRESIDENT: ANF5, that appears to be an extract from the home page of PSMPC, which is what, Mr Burrows?

EXHIBIT #ANF5 EXTRACT FROM THE HOME PAGE OF PSMPC

PN231

MR BURROWS: It is from a - I don't know what PSMPC stands for, but it is a document that was obtained off the Internet to do with Otway Health and Community Services, Staff Induction and Orientation Program. And it is tendered to draw the attention of the Commission to the profile of organisation which is under the heading about half-way down the first page. It reads:

PN232

The Otway Health and Community Services is a multi-purpose service operating in partnership ...(reads)... child care and a wide range of community services.

PN233

So it is put forward on that basis that the health service provides an accident emergency service and, as I say, nurses employed in that service are members of ours and we believe are entitled to seek a nurse/patient ratio in the same way as any other person that is potentially covered by the agreement. That is what we did. And also, just to draw the Commission's attention, the word "department" isn't used - not only isn't used after "accident and emergency", it isn't used anywhere.

PN234

I mean, this is a normal way, and this is from a health service, this is a normal use of the words. We talk about accident emergencies, we talk about a whole range of what may be department in a hospital but they are not necessarily referred to in that way. And this is just further evidence, if you like, of the fact that there was an accident emergency service provided. If you went to Apollo Bay you would see a printed notice on the hospital to that effect and that is referred to in ANF1 as one of the attachments - - -

PN235

THE SENIOR DEPUTY PRESIDENT: Attachment D, page 3?

PN236

MR BURROWS: Yes, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: And that refers to the Accident and Emergency department.

PN238

MR BURROWS: Yes.

PN239

THE SENIOR DEPUTY PRESIDENT: With a small "d".

PN240

MR BURROWS: Yes. I mean, that is the way that people in the field refer to the services. The last exhibit is an extract of - - -

EXHIBIT #ANF6 MARCH 1997 MEDICAL DISPLAN VICTORIA DOCUMENT HEADED VICTORIA, STATE MEDICAL EMERGENCY RESPONSE PLAN

PN241

MR BURROWS: The exhibit is an extract. I have the whole document here but it was quite substantial - - -

PN242

THE SENIOR DEPUTY PRESIDENT: Well, you give me what you want me to look at.

PN243

MR BURROWS: Yes, your Honour, but it is here if any of the parties wish to look at it. In fact it was, again, it was down-loaded from the Department of Human Services website, although at the bottom it has got March 1997 it was down-loaded in the last week and as far as I am aware it is the current documentation. It is put forward only on this basis that if you look at the page headed, Introduction, which is the first page after the introduction or contents page, it does identify the document, that it is a revision of the Department of Human Services, Victoria, State Medical Emergency Response Plan.

PN244

And then on the next page, under the heading of, Authority, it comes under the authority of the Emergency Management Act, the last sentence:

PN245

The Emergency Response Plan has been prepared by the Department of Human Services as a sub-plan to support the State Emergency Response Plan.

PN246

So it is clearly, not only a departmental document, it appears to be a whole Government document in the sense that it is a State plan. And then the next page is ..... then after that there are lists of rural public hospitals and they are listed - other rural public hospitals, which is about a third of the way down the page. They are listed by region, address, town and then there is a heading, Emergency Department. And then under that heading there is an "N" or a "Y" indicating whether the service has an emergency department.

PN247

And you will see under Barwon, South-Western Region, the Otway Health and Community Services is listed with McLachlan Street, Apollo Bay, with a "Y" which shows that, at least for some purposes, the department and the Government recognises the services at Apollo Bay as an accident and emergency department. And, as I said earlier, we are advised, and I haven't got a copy of the document and I don't know whether the employer parties are in a position to provide it, but the current service agreement or service plan which would be entered into between the Otway Health Service and the department and probably because it is - the nature of the service there would be some involvement of the Commonwealth.

PN248

But it does in fact, in that document and in their health service plan which is normally attached to the Health Services Agreement, it in fact talks about these services that are provided. They are not something that just happened, they are a part of the service, again, whether the department seeks to call them unofficial or unrecognised, they are part of a service which is provided throughout rural Victoria, a number of services, and the negotiations were entered into on that basis by all parties, in our view, your Honour.

PN249

And, basically, to conclude what we believe, and it is covered in our written submissions, that in effect the employer parties now realise they are unhappy with part of the agreement and they are seeking, effectively, to reopen and re-hear the agreement. We also have a number of members who are unhappy with parts of the agreement. We have had letters from numerous midwives that are particularly unhappy with the staffing ratios and delivery suites. We have had letters from people working in group 2 A&Es who are unhappy with the provisions that pertain to group 2 A&Es.

PN250

And the ANF view, and what we have told our members in respect of those complaints, is that an agreement is an agreement. We got out of it what we could. If any party wishes to change the agreement they should not be permitted to do that and at the next round of enterprise negotiations either party is free to seek additions or changes that they wish.

PN251

THE SENIOR DEPUTY PRESIDENT: The next round of negotiations commences when?

PN252

MR BURROWS: I beg your pardon, your Honour?

PN253

THE SENIOR DEPUTY PRESIDENT: The next round of negotiation commences when?

PN254

MR BURROWS: Very soon. I can't, honestly - it is sometimes prior to - the agreement expires in 2004 and, from memory, there is a provision, either three or six months, but I can't honestly recall.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes.

PN256

MR BURROWS: No later than. We do also hope to have this agreement certified before then.

PN257

THE SENIOR DEPUTY PRESIDENT: Before it expires.

PN258

MR BURROWS: That is another story which I also may have to come back to, your Honour.

PN259

THE SENIOR DEPUTY PRESIDENT: Yes.

PN260

MR BURROWS: In summary, the, your Honour, our primary position is that the employer parties are in fact seeking to reopen or re-hear the original matter which will be countenanced. We believe the agreement is clear and capable of - really, only capable of the interpretation that we have put in our written submissions. The fact that whether or not the agreement may have been able to be drafted in a different way or a different order is always possible with any agreement no matter how much time is taken over it, but we would say if you examine all the submissions of the parties the proper course would be to come down on the side of the ANF submissions. There is nothing further to add at this stage, your Honour.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything else from the other parties? Mr Hicks?

PN262

MR HICKS: Just perhaps, very briefly, your Honour. It is certainly not the intention of the employers to seek to reopen the heads of agreement that I think has been characterised. Merely what we are seeking, your Honour, is a confirmation that the interpretation of the heads of agreement contained in VHI1 is in fact the proper interpretation and application of the heads of agreement. It is not an intention to renegotiate. If the Commission pleases.

[11.36am]

PN263

THE SENIOR DEPUTY PRESIDENT: Mr Sullivan.

PN264

MR SULLIVAN: I will be brief, your Honour, just a couple of things Mr Burrows alluded to that I think need to be corrected. He referred to the document which we provided with our submission headed up emergency departments as an unsourced document. Well, it is not really unsourced. We describe where it came from, your Honour, and I don't think it can be properly described as unsourced. In relation to the Web site material that has been put before you from the ANF, we believe it is actually Commonwealth Department of Health. It is nothing to do with DHS Victoria.

PN265

It has no official standing in relation to DHS materials. The Displan material, your Honour, quite obviously is produced for another purpose and does not reflect in terms of any recognition of emergency departments. In fact, the official categorisation of emergency departments is contained within the DHS funding and policy guidelines at page 65. I have only got one copy of it here, but it certainly doesn't go to the organisations that have a Y against them in that document prepared for Displan's purposes.

PN266

THE SENIOR DEPUTY PRESIDENT: But there does seem to be varying use of the term department. There does seem to be varying use of the word department.

PN267

MR SULLIVAN: Well, it has to be conceded that it certainly appears there as emergency department, but in terms of - - -

PN268

THE SENIOR DEPUTY PRESIDENT: And, indeed, the notice itself of the hospital refers to department.

PN269

MR SULLIVAN: Yes, that is true, yes, it has been used that way. It obviously is used more loosely than what we would say was in our mind when we came to deal with the matter, but there is - as I say, there are recognised categorisations of emergency departments in DHS and the document that was attached to our submission reflected a regime of recognition which applies and usually goes along with funding. Mr Burrows went again to this question of re-opening the agreement. Well, it is only a re-opening of an agreement if he is right and we are trying to do what he says we are trying to do, but I would raise in relation to that question of re-opening agreements the question of the 1650.

PN270

I mean, 1650, despite what people say as not having been fully documented as having been funded, we can provide sufficient materials for the Commission, I am sure, to illustrate the funding that has flowed to support at least 1650 additional nurses for the purpose of this agreement, well, it just does beg the question with regard to what the ANF is pressing. If it means more EFT required, more cessation of operations like those at Otway, well, it is devil and deep blue sea stuff. It has either got to be funded or they can't continue in the form they are at the moment. In relation to that question, I could allude to certain correspondences that are received from time to time from organisations such as Alpine Health where the ANF certainly presses for things that are beyond the agreement.

PN271

It quite starkly says so in its official communications to the organisation, where it says despite ratios, we want this. I don't think it is the case that we are pressing in this case for a re-opening of the agreement. I think at the end it possibly is just a genuine mistake in the sense of a contractual mistake that might have occurred in the negotiations and it is a mistake that at this stage has serious consequences if it is determining in relation to the ANF view of the matter, I would have to say that we would undertake, if it is determined in relation to the way the service and DHS sees the matter that we will nevertheless undertake to try to deal with Apollo Bay in terms of staffing requirements for high incidence, high demand there at times and any other centre we will look at as well, such as Rosebud that has been looked at already in matters determined on that. If the Commission pleases.

PN272

THE SENIOR DEPUTY PRESIDENT: Very well, I will reserve my decision in this matter. I now adjourn.

ADJOURNED INDEFINITELY [11.41am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VHIA1 SUBMISSIONS ON BEHALF OF OTWAY HEALTH AND COMMUNITY SERVICES PN102
EXHIBIT #DHS1 DOCUMENT FAXED ON 18/03/2002 PN115
EXHIBIT #DHS2 DOCUMENT DATED 16/04/2002 PN115
EXHIBIT #ANF1 DOCUMENT DATED 16/04/2002 PN166
EXHIBIT #ANF2 ENDORSED LOG OF CLAIMS PN188
EXHIBIT #ANF3 2000 PUBLIC SECTOR CLAIM PN192
EXHIBIT #ANF4 LETTER DATED 17 APRIL FROM ANF TO DHS PN224
EXHIBIT #ANF5 EXTRACT FROM THE HOME PAGE OF PSMPC PN231
EXHIBIT #ANF6 MARCH 1997 MEDICAL DISPLAN VICTORIA DOCUMENT HEADED VICTORIA, STATE MEDICAL EMERGENCY RESPONSE PLAN PN241