D2001/15, Transcript of Proceedings [2002] AIRCTrans 839 (14 March 2002)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02767

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

D2001/15

APPLICATION UNDER S188(1)(b)
FILED BY THE SOCIETY OF AUSTRALIAN
SURGEONS FOR REGISTRATION AS AN
ORGANISATION OF EMPLOYEES

OBJECTIONS THERETO

MELBOURNE

10.44 AM, THURSDAY, 28 FEBRUARY 2002

Continued from 6.12.01

THIS HEARING WAS CONDUCTED VIA
VIDEO CONFERENCE

PN62

THE SENIOR DEPUTY PRESIDENT: Good morning. Because we are doing this by video conference I think I will take appearances again, starting with the applicant and proceeding it first through the persons present in here in Melbourne.

PN63

MR F. PARRY: I appear for the applicant.

PN64

MR P. CLARKE: I appear on behalf of the Australian Capital Territory and the Australian Capital Territory Health and Community Care Service.

PN65

MR G. O'KEARNEY: I appear for the Australia Medical Association Victoria Limited.

PN66

MR R. SOLOMON: I appear for the National Tertiary Education Union.

PN67

MR J. BYRNE: I appear with MR S. CHANT for the Department of Human Services Victoria.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. We don't appear to have anybody in Adelaide. In Canberra, who is present?

PN69

MR E. JANSEN: I appear for the Australian Medical Association Limited and I would also like to enter appearances for the following objectors; Tasmanian Branch of the Australian Medical Association Limited, Queensland Branch of the Australian Medical Association Limited, the Australian Medical Association Western Australia Incorporated, the Australian Medical Association Northern Territory Incorporated, the ACT Branch of the Australian Medical Association Limited and Ms L. Moore, who is also an objector in the matter.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Jansen. In Sydney.

PN71

MR A. BERENDSEN: I appear for the Health Administration Corporation of New South Wales.

PN72

MR A. THOMAS: I appear for the Australian Medical Association, New South Wales.

PN73

MR D. PERKINS: I appear for the CPSU.

PN74

MR P. SOMERVILLE: I appear for the Australian Salaries Medical Officers Federation, the Australian Salaries Medical Officers Federation New South Wales, and the Australian Salaries Medical Officers Federation Industrial Organisation of Employees Queensland.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. There are no other appearances anywhere? Yes, Mr Parry. What is the position with you.

PN76

MR PARRY: If your Honour pleases on the last occasion we were before the Commission there were directions made that there be discussions with the objectors and it was also made clear, I think by your Honour, that you expected objectors to ensure that those discussions were so upheld. Now, soon after that hearing on 6 December, a letter was sent on behalf of the applicant to all objectors, advising them of the direction and advising them that it - that the matter was to come back on this year. The letter also said that we wanted to arrange a suitable appointment time and we also welcomed any further comments with regard to our application.

PN77

Now, following that there were discussions with all objectors, most face to face but with some others, apart from one that I will come to shortly, by telephone. Now following all those discussions we would be submitting today that it is unlikely that there will be a negotiated outcome to the vast bulk of the objectors. Now, I leave aside there perhaps the objections by the NTEU and the CPSU.

PN78

We would anticipate that there could be further discussions with both those objectors and there is always a possibility in those two cases that there might be some resolution reached. I indicated earlier that there had not been discussions with one objector. Your Honour, the Victorian Hospitals Industrial Association of Victoria was advised to us an objector, although we had not actually received an objection. We wrote to the VHIA in that correspondence round that I have referred to. We have also followed that with telephone calls which have not been returned.

PN79

Yesterday, on 27 February, we actually received from the VHIA their written objection which we did not have a copy of before. Now, we - in those circumstances haven't had discussions with VHIA. We have also received other correspondence from various organisations that we have had discussions with. Now, as I submit whilst we have had those discussions and those discussions have been frank and open it is unlikely that further discussions with the various bodies I think here today, apart from the two exceptions that I have raised, will be productive. And in those circumstances, in my submission, we would seek directions that this matter be progressed and that documents be exchanged and provided by the objectors, if your Honour pleases.

PN80

THE SENIOR DEPUTY PRESIDENT: I think before we proceed any further, I think we now have someone present in Adelaide. Is that correct?

PN81

MR M. GRIME: Yes, that is correct, your Honour. My name is Michael Grimes. I am appearing on behalf of ..... . I apologise. I am afraid I became confused with the time difference between these States and misread that we were starting here at 10.30, so my apologies for the late arrival.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grimes. Does anyone wish to comment on what Mr Parry said - starting with you, Mr Clarke.

PN83

MR CLARKE: Your Honour, the ACT and the ACT Health and Community Services position is that my friend may be correct in terms that there may be some fundamental differences between the applicants and some of the objectors, but with respect to issues between the objectors is there some utility in having a further return date and a short adjournment of perhaps a month. There have been discussions between the Territory and the New South Wales government as well as with the applicants with a view to rationalising and providing a more consistent approach as to objections from the perspective government - governmental objectors.

PN84

There is - the Territory and the Service have been discussing with the - I am instructed with the New South Wales Health Authorities and some further time may be beneficial in perhaps providing a confluence of interests and a more consistent approach in the objections that may arise from the governmental perspective and further discussions should take place between ourselves and our Victorian counterparts.

PN85

So whilst there may be no ultimate resolution between the parties requiring avoiding a hearing in this matter, there certainly may be some benefit in obtaining a commonality of objection as far as the governmental institutions are concerned.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, Mr O'Kearney.

PN87

MR O'KEARNEY: Thank you, your Honour. I think, whilst I hear the sort of the dire forecast of Mr Parry in relation to discussions I do also note that there has only been basically two discussions with the AMA Victoria and I would simply say that whilst I wouldn't guarantee any outcome of further discussions, obviously that I think there would be at least some further benefit in clarifying the - certainly the position of the applicant in terms of any changes they may seek to make to their - to their application, if it pleases the Commission.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Solomon.

PN89

MR SOLOMON: Yes, your Honour. The applicant is correct. We have had discussions. I think there is a distinct possibility that perhaps one more discussion between the applicant and the NTEU will mean that our objection will be removed. So we are confident that further discussions with the NTEU will - between the applicant and NTEU will resolve the matter.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr O'Byrne.

PN91

MR O'BYRNE: Just to confirm Mr Parry's remarks, we have met with the applicant. The Victorian Government maintains its objection to the application and in respect of Mr Clarke's remarks we would welcome discussions with the Territory and New South Wales governments to see whether I think in his terms we could find some confluence in regards to our objection but at this point all we can do is confirm that those discussions have been held with the applicant and we maintain our objection, if your Honour pleases.

PN92

THE SENIOR DEPUTY PRESIDENT: Mr Grimes.

PN93

MR GRIMES: Yes, your Honour. I can confirm that ..... has had discussions with the applicant. Those discussions were full and frank and at this stage I don't think we will be able to reconcile our differences so we await the Commission's approach on this matter.

PN94

THE SENIOR DEPUTY PRESIDENT: Mr Jansen.

PN95

MR JANSEN: If I could also confirm that we have had one discussion with the applicant in relation to the objection and following that discussion we put a proposal back to the application to which we have not yet had a response. I guess in representing here today quite a number of the medical associations that are objectors, I think that would indicate that there are quite a number of common issues between these objectors which may if time will allow for those objectors to I guess meet, could be or could assist in streamlining this process before Commission.

PN96

There are also a number of issues that are particular to each State and jurisdiction and we are as a group of medical organisations meeting face to face on 12 and 13 March and it is not solely for the purpose of this particular case, but this particular matter will be the subject of considerable discussion over those two days. And I would hope that out of those discussions it is not unlike the New South Wales and Victorian Government situation and ACT Government as well, I guess, there will be a much clearer picture from all of the objectors, certainly among the medical organisation as to what their real final issues are.

PN97

Whether there is a prospect of putting a package to the SAS following those discussions is not clear at this stage, but certainly we would be in a position to clarify to the SAS the key issues that are causing us to maintain our objectives at this stage. And I think that was this, any subsequent hearing timelines were set for processing the matter in terms of exchange of documents and so on.

PN98

So I would submit that it would be appropriate - and I would support the earlier submission - to adjourn the matter for one more month to allow the objectors to confer one with the other and to put a further position to the SAS - over potential settlement to the issue or if not certainly to clarify exactly what the key objections will be.

PN99

THE SENIOR DEPUTY PRESIDENT: Mr Somerville.

PN100

MR SOMERVILLE: Thank you. Yes, I can confirm that discussions have taken place in the SAS. I met with Mr Ryan on 17 January, I think it was. I understood that Mr Ryan was going to come back to us in regard to some matters we had discussed. I have not been able to do that as yet, but I expect that will happen.

PN101

Secondly, I can also confirm that ASMOF will be part of the discussions and meetings that Mr Jansen referred to on 12 and 13 March and a significant part of that meeting, I think, will be taken up with both this matter and another matter before your Honour. And I think it would be helpful if there was a delay. Subsequent to that meeting, the ASMOF Federal Executive will also be meeting on 26 March. And I think, your Honour, it is useful to bear in mind that the executive is comprised of full time salaried doctors from around the country and so they can be a little difficult to get together, but that meeting is scheduled for 26 March.

PN102

And so they would be helpful in that regard. I must say that I had also had it in my mind after I heard what would be further discussions with Mr Ryan, was that if the proposal that we had discussed, we had fleshed that out, that it was not entirely satisfactory, but we might move towards some form of mediation to try and at the very least limit some of the areas of the contention between the parties, but hopefully move towards a resolution of the matter.

PN103

I had not put that to Mr Ryan previously because there were other matters out there, but my preference would be that prior, certainly, to the matter obviously now being litigated, or being heard, that there could be a process of mediation. But I certainly support a delay of at least a month bearing in mind 26 March Federal Executive date for Federal ASMOF.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Perkins.

PN105

MR PERKINS: Thank you, your Honour. It is correct, as reported by the applicant, that the CPSU has met with Mr Ryan. We met on 16 January. In the course of that meeting, the CPSU put a proposal to the applicant that in our view, would settle our objection. We also flagged an alternative that could be looked at. Now, as of today we have not had a response. So I note with interest the suggestion that there is a possibility that we might be able to settle our objection.

PN106

However, from our point of view, we would prefer not, obviously, to be put to the expense and effort of preparing intentions and witness statements needlessly, and it is our view that a more reasonable time for an adjournment would be in the order of six weeks rather than four on the proviso that at the end of six weeks the date would be set for programming if matters could be agreed beforehand. If it please the Commission.

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Thomas.

PN108

MR THOMAS: Thank you, your Honour. I can confirm also that I have met with Mr Ryan and we went into detailed discussion about what AMA New South Wales considers to be the unique position of certain doctors in New South Wales with respect to this application. I was hoping that we would have a response to that position. That has not occurred as yet.

PN109

We also will be part of the group of medical organisations that will be meeting on 17 and 18 March and, hopefully, following that conference there may be further representations that could be made to Mr Ryan and the association seeking registration, but until that occurs I am not in a position to indicate that there has been any forward movement in our discussions and as a result I am obliged to support the submissions of the other parties thus far for a reasonable adjournment to allow more detailed discussions to take place amongst some objectors. Thank you, your Honour.

PN110

THE SENIOR DEPUTY PRESIDENT: Mr Berendsen.

PN111

MR BERENDSEN: Yes, your Honour. I, too, can confirm that there have been discussions with the applicant and we maintain our objection. I am also able to confirm that there have been discussions with the ACT health authorities about the prospect of cooperating in our approach to this matter and that further discussions are envisaged. From our point of view, we would be happy to see the matter further adjourned as a number of parties appear to be proposing. If your Honour pleases.

PN112

THE SENIOR DEPUTY PRESIDENT: I think that is all the objectors. Mr Parry.

PN113

MR PARRY: If your Honour pleases. This was an application that was filed on 14 August 2001. It was gazetted in accordance with the requirements of the regulations on 12 September. There was a directions hearing before your Honour on 6 December and your Honour made certain directions and, in my submission, from what you have heard this morning you can be satisfied that those directions have been complied with.

PN114

It appears to be the position put that a delay is sought and, essentially, the delay seems to be sought for the purpose not of resolving the applications, but rather of preparing the objections against the application. In my submission, there is no good reason been shown this morning why the matter should not be progressed by the making of directions.

PN115

I would indicate that the directions we would seek would not be in such a timeframe that would involve preparation of material perhaps before the end of March. So even within the timeframes that have been suggested, these parties can resolve their position at their March meetings, and if they want to come back to us with something, they can so do. If your Honour pleases. So what we would be seeking is four to six weeks for their material.

PN116

THE SENIOR DEPUTY PRESIDENT: Well, in relation to say about the history of the matter, I think it was apparent on the last occasion it was before me that your client had not complied with the original direction given, which was to confer with the objectors, and indeed, you acknowledged that on transcript, as I apprehend, on the last occasion. On this occasion there appear to be several of the objectors who say that they are awaiting on a response from your client. Have you got any comment on that?

PN117

MR PARRY: Yes, I do, your Honour. The suggestion about putting a proposal, I think if Mr Jansen is referring to the proposal that has been put, that is a proposal that we have further discussions. Now, to describe that as a proposal is rather overstating the position. Certain principles are set out, which are inconsistent with the application. Then it is suggested there be further discussions. Now, the other responses are in the same vein. A general position is put to us, a philosophical position opposed to the application, and then it said, we're happy to have further discussions about this. Now, that cannot be, in my submission, described as a proposal.

PN118

THE SENIOR DEPUTY PRESIDENT: But has your client gone back to these people and say, well, you know, we don't accept that, we're going to be going ahead at the next directions hearing and seeking - - -

PN119

MR PARRY: Well, your Honour, the dates - - -

PN120

THE SENIOR DEPUTY PRESIDENT: - - - programming.

PN121

MR PARRY: Well - - -

PN122

THE SENIOR DEPUTY PRESIDENT: I am just asking that as a question. I am not being accusatory.

PN123

MR PARRY: No. Your Honour, well, the answer is no, the document from the AMA was received on 22 February. The document from AMA Victoria was received on 27 February. Liza Moore provided a fax on 27 February from AMA Queensland. AMA Queensland sent another letter dated 22 February. In my submission, those sort of - to send a letter within the last week and then be standing up today saying we have not responded is really a little bit rich.

PN124

In my submission, these are not real proposals. They are just proposals to have furthers discussions. We will respond to them, but in my submission, given the timeframe that they have put to us and their content, they cannot be seen as any genuine attempt to resolve this matter.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Does anyone else wish to make any comment, further comment at this stage?

PN126

MR PERKINS: Your Honour, David Perkins in Sydney.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Perkins.

PN128

MR PERKINS: I should point out that the CPSU put a further proposal at the meeting on the 16th. We also floated an alternative, but I won't go too far into that, and it is not correct that we came on - we have been waiting for a response since the 16th of the 1st, and it is not correct that, you know, we have delayed to the last minute. If the Commission pleases.

PN129

MR SOLOMON: Your Honour, the NTEU is the same position. We put a firm proposal to the applicant some time ago and we are waiting on responses of the last, what, five or six weeks as well from the applicant.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Solomon.

PN131

MR PARRY: We don't dispute that. I mean, that is consistent with what I said, your Honour.

PN132

THE SENIOR DEPUTY PRESIDENT: Any other comments?

PN133

MR THOMAS: Alan Thomas from the AMA New South Wales, your Honour. There were certainly proposals that AMA New South Wales put to Mr Ryan, but I note from my file note that it was indicated that he may or may not prior to the report today, but the fact is that there has been no further advice from Mr Ryan following the date of the meeting that I had with him in January. Thank you, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Any other comments?

PN135

MR SOMERVILLE: Somerville, your Honour. Certainly the discussions I had with Mr Ryan, I had indicated that there may be - and I'm not going to say I had given or ASMOF ..... the proposal, but we did float some ideas to Mr Ryan in regard to the structures of ASMOF. ASMOF currently has the majority of coverage and it would be helpful, I think, and it may simply be a matter of time and other matters, I know the applicant has had a busy schedule, but certainly I would have hoped that there might have been some indication in regard to the generality of the matters that we had discussed. And there has been no formal correspondence between ASMOF and the applicant, but nevertheless I think that is often the case in these matters.

PN136

THE SENIOR DEPUTY PRESIDENT: Any other comment?

PN137

MR JANSEN: Yes, your Honour, it is Eric Jansen of the AMA Limited. The discussions with Mr Ryan for the SAS involving ourselves did not occur until 11 February. He has been very busy, I guess, being with many other objectors, and in that respect we then did take the outcome of those discussions to our executive and responded fairly promptly on 22 February with a framework that we felt may be one that could give rise to some accommodation between the objector and the applicant.

PN138

So in that circumstance, I don't think it is totally appropriate to indicate that we left these responses to the last minute, given our discussions that took place in the last couple of weeks. Thank you, your Honour.

PN139

THE SENIOR DEPUTY PRESIDENT: Are there any further comments from anybody? If not, what I propose to do in relation to this matter is to make some directions, but they will encompass, I hope, the opportunity for the parties to have further discussions as they see fit in order to bring about either the narrowing of issues, and/or the settlement of any objections. What I propose, and formal directions will be issued to this effect, will be a requirement on objectors to file the relevant material by Friday, 26 April, which I think gives everybody some eight weeks in which to either discuss and settle, discuss and narrow outstanding matters, and/or prepare their material and file and serve it.

PN140

The applicant will then have until 24 May to file its material. The matter will be listed again in Melbourne, and by way of video conferencing at 10.30 on 4 June, at which time I would anticipate I will fix dates for hearing, and if necessary, make any further directions that are necessary. For example, in relation to the filing of any material in reply by the objectors.

PN141

Also, on that occasion of course, if there are settlements that had been reached, the opportunity will be available to record those settlements. Could I also, without directing, but request the applicant that if, in the meantime, settlements are reached, particularly settlements that might involve the applicant in seeking to amend its proposed eligibility rule, for example, that the then outstanding objectors are advised, at least of any changes that will be sought to the proposed eligibility rules.

PN142

Finally, if there is an outbreak of rampant consensus, and total agreement is reached in the interim period, then no doubt the applicant will seek to have the matter brought back on at an earlier stage, at least for mention. Is there anything else for the record at this stage? Otherwise, formal directions will be issued and forwarded to the parties. The matter is adjourned to 4 June this year, on the basis that I have outlined. And the Commission itself is adjourned.

ADJOURNED UNTIL TUESDAY, 4 JUNE 2002 [11.13am]