AG2001/7714, Transcript of Proceedings [2003] AIRCTrans 2500 (20 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3111

~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/7714

APPLICATION UNDER SECTION 33 OF THE ACT
ON THE COMMISSION'S OWN MOTION RE HEADS
OF AGREEMENT MONITORING COMMITTEE

MELBOURNE

2.02 PM, WEDNESDAY, 4 JUNE 2003

Continued from 7.11.02

PN186

MR A. DJONEFF: I appear on behalf of Barwon Health, together with MR P. MUNCASTER.

PN187

MR T. LEE: I appear on behalf of the Department of Human Services, together with MR S. CHANT.

PN188

MR R. FELMINGHAM: I appear on behalf of AMA Victoria and for the Australian Salaried Medical Officers Federation.

PN189

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Djoneff, this matter is brought on at your request. Perhaps you might let me know what the problem is.

PN190

MR DJONEFF: Yes, thank you, your Honour. I do anticipate that we would go into conference imminently. Perhaps if I could just briefly outline what brings us here and why. Your Honour, you will recall late last year you were intimately involved in what ultimately became a heads of agreement between the parties represented here at the table for the settlement of all claims from the AMA, ASMOF, in respect of publicly employed doctors.

PN191

THE SENIOR DEPUTY PRESIDENT: I am not sure that I was intimately involved. I facilitated meetings.

PN192

MR DJONEFF: Well, let me put it another way. Your contribution to that process was highly valued, certainly by us, and I think we all expressed our appreciation to you at the end of that process.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes, we all said nice things. But as long as you are not verballing me, Mr Djoneff, don't think that I know much about what went on.

PN194

MR DJONEFF: Nothing could be further from my mind. We will leave that for conference. In essence, your Honour, our position is a very simple one. We believe that in negotiating that heads of agreement centrally in respect of all the claims that the AMA, ASMOF advanced in their enterprise bargaining claim last year. That heads of agreement would effectively dispose of all claims. Indeed, in that heads of agreement there is a no extra claims clause.

PN195

Notwithstanding the existence of that no extra claims clause and the commitment of the parties under that heads of agreement to convert the terms of the heads of agreement effectively into certified agreements, the AMA is agitating for what we regard as substantial additional benefits at Barwon Health Service. The context in which that claim arises is that there is in existence at present, and there was at the time we were here before you, an extant certified agreement in respect of visiting medical officers at Barwon Health.

PN196

And around about the time we were here, or just before, the AMA did present a further claim, because that agreement at that date had expired but, of course, was still operable in the absence of it being replaced by another agreement. Notwithstanding that, we settled here centrally on all claims, and AMA documentation clearly attests to that. And I propose to go to the detail of that in conference. At particular issue at Barwon Health is a claim for an adjustment to the out of hours on-call recall payments, and that particular provision is the subject of a clause in the existing agreement, and in effect that establishes the rate at the 1997 Commonwealth medical benefit schedule rate. The detail of that is not important of itself.

PN197

The doctors at Barwon Health represented by the AMA are seeking significant increases in that particular provision, among others, but that is the significant one, and we might as well deal with that as being, if you like, representative of this issue. And the effect of that claim, I am advised, if acceded to, would be in the order of $1_ million additional.

PN198

THE SENIOR DEPUTY PRESIDENT: At Barwon Health?

PN199

MR DJONEFF: At Barwon Health. It is also a fact, your Honour, that there are several other hospitals who are the subject of some form of additional claim, as we would characterise it, by the AMA, or in one instance by a representative of doctors who is not the AMA, what might be characterised as a competitor of the AMA. So there are several other hospitals. The Austin Hospital, Dandenong Hospital, Ballarat and Bendigo are each the subject of claims that in their character and substance we say essentially offend the notion of the no extra claims clause that was agreed centrally and that would apply in all circumstances.

PN200

So, your Honour, the debate I think we need to have, and have possibly determined if it is necessary to be determined, is, what is the efficacy and the integrity of that no extra claims clause? And if it is not held to be of substance and moment, then frankly what is the point of the no extra claims clause? So they are the matters essentially that we would like to canvass in a conference setting in a bit of detail, because depending on the outcome of this matter it will have implications around the field, and not just for Barwon Health. If the Commission pleases.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Lee, do you want to say anything on the record?

PN202

MR LEE: I would endorse the submissions that have been made by my friend, Mr Djoneff on this matter. The Department was involved in the negotiations and eventual agreement, the heads of agreement in this matter. I would echo his comments that from the Government's perspective we understood that that was a final outcome, that extra claims to the extent that they - well, to the extent that claims were being pursued, that they had been concluded and been dealt with in terms of reaching that final agreement, and in large measure we relied on the keenly debated wording of the no extra claims clause that was eventually inserted in the agreement, which was very clear in its terms and, as Mr Djoneff said, has been further elaborated on in the AMAs own promulgations to the field, and we will go to that in conference.

PN203

So from the Government's point of view, we are extremely concerned at any developments in the field that threaten the integrity of the agreement that we reached. The Government funded and has fully funded the outcome of the heads of agreement, and would be concerned to see hospitals put under financial pressure as a result of agitation for claims outside of that which was agreed after the extensive negotiations of last year. We would certainly be also extremely concerned if there was industrial action taking place, something we would quite reasonably expect would not occur at least for the period of the heads of agreement, which is for a few years. If the Commission pleases.

PN204

MR DJONEFF: Your Honour, before you turn to Mr Felmingham, could I just add one note, and that is, as I pointed out in my letter to the Commission, industrial action of a certain kind commenced as at last Sunday. At this stage the nature of the industrial action does not impinge on patient care. The nature of the action has a direct effect, however, on the revenue flow to the hospital and the accounting of funding and revenue issue, and the cumulative effect of that is a very serious one for the hospital.

PN205

The utterance of the AMA is that if that level of industrial action didn't produce a more acceptable result, then clear consideration would be given to placing bans on out of hours recall on-call arrangements, which in turn would have a direct and immediate effect on the operational effectiveness of the hospital and the flow of patients through it. If it please.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, Mr Felmingham, what do you want to say on the record?

PN207

MR FELMINGHAM: Probably not a great deal, your Honour. I have no opposition to Mr Djoneff's suggestion that we go into conference. I think that is probably a good way to proceed with the matter. Possibly all I would put on the record before we do that, and I suppose as much as anything to give your Honour an idea of how far we might be apart on one or two of the points that Mr Djoneff and Mr Lee made. We would say that, in fact, the employer parties had no right to hold the belief that they mentioned, that in signing off the heads of agreement it meant that there would be no issues that might arise in individual workplaces for the next three years, and that is as I understand the proposition that is being put.

PN208

In fact, that is not what is said anywhere in the agreement. To go behind what is said in the agreement, there was a very lengthy discussion, a very detailed discussion, I recall, one Monday evening, from my notes, in conference in the Commission on what the no extra claims proposition was, and we would say that there is, in fact, no substantive, no extra claims provision at all in the heads of agreement. However, specifically in relation to the issue at Barwon Health, we would say even if there was a no extra claims provision, which we don't believe there is, sure there isn't, the variations that are sought in the proposed new agreement to on-call recall for out of hours remuneration for visiting medical officers, only represent a substantial extra benefit because a number of agreements have not been properly applied in the past, centrally negotiated agreements.

PN209

We would not concede that it is an extra claim, both for the reason that it was a claim that was well on foot before the finalisation of the heads of agreement. It is a claim that substantially reflects what would have been the outcome if previously negotiated and finalised central funding agreements had have been properly applied, and it was one of those - in fact, Barwon Health VMO Agreement was one of those issues, one of those cases that were raised by us in conference in the Commission as being one of the reasons why we could not give a no extra claims commitment on a blanket basis.

PN210

The only other thing I might mention, your Honour, in terms of other hospitals that Mr Djoneff said this was an issue that had arisen or might arise - I am not sure from his submission - in other hospitals. The letter that I received, a copy of Mr Djoneff's letter to your Honour seeking that this matter be brought on, only referred to Barwon Health, and when I inquired of your Honour's associate I was told that the matter was in relation to Barwon Health. I have had no notice of the issue arising in other hospitals, and I haven't prepared to discuss any other hospitals today.

PN211

MR DJONEFF: That is not my intention, your Honour, to discuss those individual matters.

PN212

MR FELMINGHAM: If your Honour pleases.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, we will adjourn into conference, I think. Thank you.

NO FURTHER PROCEEDINGS RECORDED