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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 1, 17-21 University Ave., CANBERRA ACT 2601
GPO Box 476 Canberra 2601
Tel: (02)6249 7322 Fax: (02)6257 6099
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WILLIAMS
D2001/9
APPLICATION UNDER SECTION 188(1)(b)
FILED BY VISITING MEDICAL OFFICERS
ASSOCIATION FOR REGISTRATION AS AN
ASSOCIATION OF EMPLOYEES
OBJECTIONS THERETO
CANBERRA
10.08 AM, MONDAY, 15 SEPTEMBER 2003
Continued from 15.5.03 in Melbourne
PN590
THE SENIOR DEPUTY PRESIDENT: Good morning, could I have the appearances in the matter please?
PN591
MR J. NEIL: I appear for the ACT Visiting Medical Officers Association.
PN592
MR R. TRACEY: I appear for the Australian Capital Territory, with MR P. CLARKE.
PN593
MR J. NOLAN: I appear for ASMOF.
PN594
THE SENIOR DEPUTY PRESIDENT: Thank you. Well, insofar as leave is required, I think leave has already been given to be represented on previous occasions by counsel in the matter. And so far as it is necessary, leave is granted. Mr Neil.
PN595
MR NEIL: If your Honour pleases. The ACT Visiting Medical Officers Association is, as it is name suggests, an association of visiting medical officers working in the Australian Capital Territory. The history and structure of public health services in the territory is helpfully set out and discussed in a statement made by Edward Rayment on 17 January 2003 and filed in the interests of the Australian Capital Territory. He deals with these matters in paragraphs 3 to 11 in his statement, and with respect, I commend his treatment of that question to your Honour.
PN596
In essence, Mr Rayment makes these observations. The Australian Capital Territory, a body politic, is responsible for the provision of public health services in the territory. Those services are provided at the Canberra Hospital and Calvary Hospital, and two other establishments not presently relevant. But Canberra Hospital is operated by the territory's Health and Community Care Service. That service is a body corporate established by the Health and Community Care Services Act 1996. The Canberra Hospital was established in 1991. It is an acute care facility and a teaching hospital with 500 beds.
PN597
The Calvary Hospital is operated by the Little Company of Mary, described by Mr Rayment in his statement as a Catholic order of nuns. Mr Robert Griffin, the Director of Medical Service at Calvary has made two statements in connection with this matter. In the first made on 5 February 2003 Mr Griffin gives an account of the establishment and operations of the Calvary Hospital. The Little Company of Mary has apparently managed the hospital since 1972. It has a capacity of 182 public beds. It is funded by the territory for the provision of public health services.
PN598
The place that visiting medical officers occupy in the provision of public health services in the Australian Capital Territory is discussed by Kimberley Pierce in a statement that she has made in connection with these proceedings on 10 June 2003. Would your Honour be good enough to take up that statement for a moment?
PN599
THE SENIOR DEPUTY PRESIDENT: On whose behalf did she make that statement?
PN600
MR NEIL: I am sorry, your Honour?
PN601
THE SENIOR DEPUTY PRESIDENT: On whose behalf did she make that statement?
PN602
MR NEIL: The statement has been filed in the interests of the ACT. And the statement as I - as your Honour pleases. Might I invite your Honour to look at paragraph 4 of Ms Pierce's statement?
PN603
THE SENIOR DEPUTY PRESIDENT: Yes.
PN604
MR NEIL: There she says that there are two separate distinct but equally important components involved in providing surgical services to public patients under Australia's universal health care system. The territory on the one hand, and medical practitioners on the other. At the Canberra Hospital the overwhelming majority of surgical services are provided by visiting medical officers. The Canberra Hospital provides the facilities in which a patient can be treated. Those facilities constitute the physical infrastructure and the administrative support provided by the Canberra Hospital staff, all of whom are public servants engaged under the Public Sector Management Act 1994.
PN605
The physical infrastructure includes the operating theatres, surgical and other equipment, medical supplies and the surgical wards. It employs theatre and other nursing staff, orderlies, administrative staff who maintain rosters and provide logistical support, and other ancillary support staff. It also employs registrars and senior registrars in the major surgical disciplines including but not limited to general surgery, cardiac surgery, plastic surgery, neuro surgery and orthopaedics. The VMOs provide the skill and expertise to perform operations and procedures on the patients. Just passing over the next sentence, Ms Pierce states:
PN606
The VMOs are engaged to provide surgical services for a specified number of sessions per month as negotiated between myself on behalf of the territory and each VMO. For the majority of VMOs their attendance at the Canberra Hospital constitutes a small percentage of their average working week. The reverse is true of staff specialists; they spend most of their time at the Canberra Hospital.
PN607
And if your Honour would be good enough to turn over to paragraph 18?
PN608
THE SENIOR DEPUTY PRESIDENT: Can I just ask you a question at this stage, Mr Neil?
PN609
MR NEIL: Yes, your Honour.
PN610
THE SENIOR DEPUTY PRESIDENT: This application does not seek to go to staff specialists?
PN611
MR NEIL: That is correct.
PN612
THE SENIOR DEPUTY PRESIDENT: Or the registrars or senior registrars?
PN613
MR NEIL: That is correct.
PN614
THE SENIOR DEPUTY PRESIDENT: It goes purely to the VMOs?
PN615
MR NEIL: Yes, your Honour.
PN616
THE SENIOR DEPUTY PRESIDENT: Yes. You asked me - are you going over to another paragraph?
PN617
MR NEIL: Paragraph 18, if it please your Honour, page 6. If your Honour would be good enough to pass over the first three sentences and go to the fifth line of paragraph 18 on page 6, to which I draw your Honour's attention for the purposes of opening. There, Ms Pierce says this:
PN618
VMOs sub-specialise within their given field of expertise. As such, the need for their services is often confined to relatively few sessions per month. The nature of surgery is such that, not only are there designated specialties, such as orthopaedics, vascular surgery and cardiac surgery, but there are also recognised and very complex sub-specialties. Some VMOs have developed a very specialised practice whose service public patients utilise, on an irregular basis, at the Canberra Hospital.
PN619
Now, your Honour will have observed that Ms Pierce confines her discussion to visiting medical officers who provide surgical services. But what she has to say about the place that visiting medical officers occupy in the provision of public health services, in the Territory, applies more generally. And, with respect, might usefully be adopted by your Honour as affording some guidance in that area. Your Honour will hear more evidence in the course of the proceedings, going to those matters.
PN620
Public patients, which your Honour has seen Ms Pierce discuss, are helpfully defined for present purposes, in a statement made by Mr Griffin, on 6 June 2003. I will not ask your Honour to turn it up. In paragraph 20 of that statement, Mr Griffin has this to say:
PN621
The term "public patients", in essence, defines the means by which the patient's care is finance. Patients in electing to be public are treated under the universal health care system operating in Australia.
PN622
THE SENIOR DEPUTY PRESIDENT: Which paragraph was that?
PN623
MR NEIL: 20, if it please your Honour, the first two sentences. I have drawn your Honour's attention to those matters in opening, by way of, I hope, with respect, giving your Honour some background in the provision of public health services in the Territory, against which the present application falls to be considered.
PN624
I want now, if it please your Honour, to turn to a short account of the history and purposes of the applicant association. Before I do so, might I invite your Honour to turn up a statement made by Edward Rayment on 17 January 2003, and filed in these proceedings in the interests of the ACT. Would your Honour be good enough to turn to paragraph 18 of that statement, where your Honour will see that Mr Rayment turns to - - -
PN625
THE SENIOR DEPUTY PRESIDENT: Excuse me. Yes, go ahead.
PN626
MR NEIL: As your Honour pleases. Paragraph 18, if your Honour please on page 7.
PN627
THE SENIOR DEPUTY PRESIDENT: Yes, I have it.
PN628
MR NEIL: There, Mr Rayment turns to a discussion of the history of negotiations and representation of visiting medical officers. For present purposes, with some qualifications to which I will later come, I would, with respect, commend his treatment of that subject to your Honour. Mr Rayment observes that since the introduction of comprehensive health care in 1975, with Medibank and later with Medicare, VMOs have been involved in periodic rounds of negotiation of contracts for public hospital work.
PN629
Mr Rayment then goes on to describe the balance of paragraph 18, paragraphs 19 and 20, a process which was followed between about 1975 and 1995, whereby visiting medical officers contracts were negotiated collectively. Relevantly, with the Territory and the operators of the Calvary Hospital, on the one part; and on the other, by visiting medical officers under the auspices of a local branch of the Australian Medical Association.
PN630
In 1995, there was an important change and that process was as a consequence, abandoned. Mr Rayment describes it in paragraph 20 of his statement. He opens paragraph 20 by referring to a meeting which took place upon the expiry of three year contracts negotiated in 1995. During that meeting, which was attended not only by Mr Rayment, but by officers of the Australian Competition and Consumer Commission and the local branch of the Australian Medical Association. The AMA was, as Mr Rayment states in the fifth line of paragraph 20:
PN631
Informed of the potential breach of the Trade Practices Act of 1974, if it continued to represent independent contractors during contract negotiations with the Territory.
PN632
Mr Rayment describes the consequence of that advice in the balance of paragraph 20. Since that time, contracts have been negotiated individually. Your Honour will hear evidence, during the course of the proceedings, about the unsatisfactory consequences of that development, both so far as visiting medical officers are concerned and so, apparently, so far as the Territory is concerned.
PN633
In 1998, about the time of the developments of which Mr Rayment speaks in paragraph 20 of his statement, some of the visiting medical officers working in the Australian Capital Territory associated with a view to collectively pursuing their industrial interests. A group of visiting medical officers sharing that purpose met on 27 August 1998.
PN634
Peter Hughes has made a statement in these proceedings which has been filed in the interests of the applicant association. A statement was made on 1 April 2003. Mr Hughes has made two statements. This is the larger, if it please your Honour. Mr Hughes has annexed to his statement the minutes of the meeting that was held on 27 August 1998. Unfortunately, if it please your Honour, the pages of Mr Hughes's statement are not consecutively numbered, but annexure A appears immediately after page 10. Your Honour has that.
PN635
Your Honour will see that the minutes describe themselves as being minutes of the inaugural meeting of a VMO union. Your Honour will see that a number of apologies were received and a list given in the minutes of the persons who attended the meeting. The meeting was chaired by Mr Hughes, who announced at the meeting that there were now 52 members of what the minutes describe as the VMO industrial organisation. Your Honour will see that the first order of business was the distribution of relevant portions of the Workplace Relations Act and the discussion of that legislation.
PN636
There was some discussion of the experience in South Australia. Your Honour will hear something of that. I need not take your Honour to that for the moment. And then this resolution was adopted - it was resolved to write to the Industrial Relations section of the AMA Federal Secretariat seeking assistance in either forming a VMO union or facilitating VMOs joining an established organisation recognised under the Workplace Relations Act such as the ACT Medical Officers Association. A letter was attached to the minutes.
PN637
If your Honour would be good enough to turn the page, there your Honour will find that letter. It was sent on 28 August 1998 by Dr Hughes to the director of what is described as the Industrial Relations AMA Federal Secretariat. In the first paragraph Dr Hughes said this:
PN638
I have the honour to chair a group of 52 visiting medical officers who wish to form or join an organisation which is registrable under the Workplace Relations Act 1996. Our main purpose is to allow meetings of visiting medical officers and negotiating in groups when dealing with contracts or enterprise agreements with public hospitals.
PN639
Dr Hughes then discusses what the minutes of the meeting of 27 August had referred to as the experience in South Australia and some proceedings which had apparently taken place in Darwin in 1997. I will not read those to your Honour now, if it please your Honour, although I will turn to make some submissions about it in due course, but your Honour will see from those paragraphs that Dr Hughes was aware of one of the jurisdictional difficulties that attends an application for registration as an organisation of employees, and that is the requirement that the applicant organisation be an organisation of employees within the meaning of the Act.
PN640
It appears that Dr Hughes thought that in the case of visiting medical officers that would be a particular difficulty. In the third-last paragraph of this letter, Dr Hughes says this:
PN641
It appears to us that an organisation composed entirely of VMOs is probably not registrable under the Workplace Relations Act but that VMOs could join a registered organisation containing full-time employed medical officers such as the ACT Medical Officers Association.
PN642
He continues:
PN643
Ideally we would like to have a separate VMO union, but if that is not possible, then we would like to join the ACT Medical Officers Association. If we were to join that association, it would be on the clear understanding that we would not attempt to take over that organisation but would like to work cooperatively with the salaried medical officers to our mutual benefit as has happened in South Australia for many years.
PN644
He concludes with this observation:
PN645
We would appreciate your advice and help in this matter.
PN646
The response your Honour will find copied in annexure C of Mr Hughes' statement on the next page. It came on 4 September 1998 in the form of a letter to Dr Hughes from Mr Janssen. Mr Janssen opened his letter by referring to Dr Hughes' letter of 28 August 1998 which he described as a letter regarding the possibility of visiting medical officers in the ACT being collectively represented in contract negotiations by a registered trade union. He then offers his comments in response to that suggestion.
PN647
Under the heading "Representation of VMOs", Mr Janssen observed that sessional VMOs in most states and territories are collectively represented in contract negotiations by the AMA or in the case of South Australia by the South Australian Salaried Medical Officers Association. Such collective representation is available to these VMOs by virtue of the fact that they are regarded as employees under common law, or in the case of New South Wales where VMOs are independent contractors, state health legislation provides for such collective negotiation with the AMA. In this New South Wales legislation Mr Janssen overrides the Trade Practices Act. Collective bargaining by employees does not generally fall within the jurisdiction of the Trade Practices Act.
PN648
Mr Janssen then goes on to discuss the position in other states and territories. At the foot of the first page in particular turns to the then recent events in the Northern Territory. I pass over that and ask your Honour to turn to the top of page 2 of Mr Janssen's letter where he has this to say:
PN649
In the case of fee for service for VMOs, the AMA has traditionally represented these doctors in contract negotiations in a number of States. Fee for service VMOs -
PN650
asserts Mr Janssen -
PN651
are generally engaged as independent contractors and the recent extension of the Trade Practices Act to the professions has created some potential difficulties for AMA branches in such collective representation.
PN652
Again, New South Wales State health legislation provides for these VMOs to be collected represented by the AMA. The representation issue in relation to independent contractor VMOs outside New South Wales is most similar to the situation in the ACT, or so at least thought Mr Janssen. May I invite your Honour to pass to the foot of page 2 where, under the heading "Trade Practices Act 1974", Mr Janssen has this to say:
PN653
This office has put considerable effort into clarifying the impact of the extension of the Trade Practices Act on independent contractor visiting medical officers, and in other situations where there is a third party payout, eg -
PN654
for example - I am sorry, your Honour -
PN655
a workers compensation authority, Department of Veterans' Affairs, and so on.
PN656
Passing over the first paragraph on page 3, I take up Mr Janssen's letter at the second paragraph on that page where he says this:
PN657
We've also examined situations where the AMA and public hospitals negotiate model contract and fee provisions for independent contractor VMOs, and where these are put in place by written or implied understandings between the AMA and the hospitals, but the model contracts would be offered to all VMOs. In some cases, VMOs enter into contracts as natural persons and in other cases as practice companies. The Australian Competition and Consumer Commission has indicated it regards these arrangements as falling within the jurisdiction of the Trade Practices Act and, as a consequence, these collective negotiations may be anti-competitive or amount to price fixing. The AMA -
PN658
says Mr Janssen -
PN659
have received legal advice suggesting that in a number of States and Territories, the legislative framework that provides for the public hospital system may bring the arrangements for providing medical services to public patients in public hospitals outside the Trade Practices Act. Essentially, this advice suggests that the provision of medical services to public patients in public hospitals may not be a business for the purposes of the Trade Practices Act in those jurisdictions where these services are provided by the Crown.
PN660
However, it will appear, as your Honour will see from other material - and I cease reading there, I am sorry, your Honour - of which your Honour will have evidence, that that view has not apparently prevailed in the Australian Capital Territory. Under his heading, "Summary and Conclusion", on page 4 of Mr Janssen's letter, if I could take up the letter again, Mr Janssen makes a number of points in conclusion. He suggests that the situation could be summed up as follows:
PN661
First, the Workplace Relations Act 1996 does allow unions to have eligibility rules that provide for membership by independent contractors. Second, ASMOFs, the Australian Salaried Medical Officers' Federation's eligibility rules are restricted to employee doctors only. Third, membership of a union by independent contractors does not bring those persons outside the jurisdiction of the Trade Practices Act. Fourth, the AMA successfully negotiates contracts on a collective basis for visiting medical officers engaged as employees and, in the case of New South Wales, where specific legislation applies, for independent contractors.
PN662
And I cease reading there. On 21 October 1998, the Associated Visiting Medical Officers in the ACT resolved to seek the assistance of the Australian Salaried Medical Officers' Federation, ASMOF. In annexure D to Dr Hughes statement of 1 April, Dr Hughes has provided your Honour with a copy of a letter that he sent as Chairman of the Associated Visiting Medical Officers to the President of the ACT Branch of the Australian Salaried Medical Officers' Federation on 4 November 1998.
PN663
THE SENIOR DEPUTY PRESIDENT: Do I take it at this stage that heading "VMO Association, ACT" indicates that it was an unincorporated body?
PN664
MR NEIL: Yes, yes. At this stage in its history, the association was an unincorporated association of VMOs who had gathered together and associated themselves for particular purposes. I will come in a moment, if it please your Honour, to the steps that that association took to provide for itself a structure under which the present application was eventually brought forward. In his letter of 4 November 1998, Dr Hughes said this:
PN665
Further to your discussion yesterday, with me and Dr Terry Gavaghan, ACT visiting medical officers have formed an association, and wish to either form or either join an association, which is registered as an organisation under the Workplace Relations Act (1996). Most of our members are employees employed by their practice companies. We could form a separate industrial organisation but feel there would be mutual advantages for visiting medical officers and salaried medical officers if your membership was to allow the VMOs to join the ACT branch of ASMOF, as is already working well in South Australia. I understand that your constitution and rules say that to be eligible for membership of the ACT branch of ASMOF, a medical officer must be employed by the ACT Department of Health. If your members are willing to take us in, then you may need to change the constitution tot hat similar to the South Australian Salaried Medical Officers Association, which takes as members any medical officers who are employed as employees by any employer, or employers, in that state.
PN666
Now, the suggestions that Dr Hughes made in his letter of 4 November 1998 on behalf of the associated visiting medical officers, will, as your Honour will in due course hear, calculated to deal with the visiting medical officers then appreciation of the difficulties in the way of an application of the present kind. It was a suggestion, as your Honour will hear, that was made in the hope that it might facilitate the participation by visiting medical officers in ASMOF and its affairs. It was predicated, as your Honour has seen in the letter of 4 November 1998, by the anticipation that those steps could only be taken if the members of ASMOF were willing to take the visiting medical officers in. As it happens, that consideration was not satisfied.
PN667
In May 1999, as your Honour will see from the letter, a copy of which is annexure E to Mr Hughes' statement, the president of the Australian Capital Territory branch of the federation, replied to Dr Hughes relevantly in these terms. And I am, with respect, directing your Honour's attention to the second paragraph of this letter.
PN668
After our discussion on this issue, I have had extensive talks on this matter with other members in the ACT, but more specifically the Federal AMA and Federal ASMOF. My overall view is that it would be difficult for VMOs to join our association for a number of reasons. Firstly, on sounding out our local membership, there is, shall I say, a lack of enthusiasm for this to occur. The reason for this is an important issue that we need to change our constitution in order to have the VMOs join us, as currently, under our constitution, only members employed by ACT Health are able to join. Without a reasonable amount of enthusiasm in our membership, we probably will not be able to carry the vote to have our constitution changed.
PN669
Now, in the third paragraph Dr Collignon goes on to discuss the particular matter that it concern the associated visiting medical officers. Might I ask your Honour to drop down to the fifth last line of the third paragraph? It is a line that begins with the words, "What I concede," if your Honour has that?
PN670
THE SENIOR DEPUTY PRESIDENT: Yes.
PN671
MR NEIL: At the end of that line I take up Dr Collignon's letter. There he says:
PN672
The only way I understand that ASMOF would be able to represent the VMOs is if it was deemed that the VMOs were in fact employees of Canberra Hospital rather than contract workers. In that latter situation there would be, I understand, no problem with ASMOF being able to appropriately represent the VMOs. My presumption is for a whole lot of both political and issues of private practice that the latter situation is not likely to occur, at least in the short-term.
PN673
Then he goes on to say that he agrees that it is a good idea that the visiting medical officers are covered by some type of union protection, that he did not see, as he puts it, any easy way out of this situation under the current industrial laws in Australia. On 21 June 1999 Dr Collignon's reply to Dr Hugh's letter having come, as your Honour will recall, in May 1999, a general meeting of the associated visiting medical officers resolved to seek registration as an organisation under the Act.
PN674
For that purpose the association adopted a written constitution at a general meeting on 4 August 1999 and elected office bearers and a governing council. The rules that were adopted at that meeting are annexure N to Dr Hugh's statement of 1 April. Your Honour, it is about another dozen of so pages further on. I am sorry - - -
PN675
THE SENIOR DEPUTY PRESIDENT: Yes, I have it.
PN676
MR NEIL: Could I for present purposes draw your Honour's attention to only a few aspects of this, as your Honour will hear, first set of rules? I am sorry, your Honour, I have made a terrible mistake, I am reminded. It is annexure I, I am sorry; if your Honour would be good enough to go back. Yes, I am sorry, your Honour. Could I draw your Honour's attention - I am sorry, does your Honour now have annexure I?
PN677
THE SENIOR DEPUTY PRESIDENT: Yes, I have that. They are attached to the agenda.
PN678
MR NEIL: Yes, if it please your Honour, of that meeting. Could I draw your Honour's attention in general terms to the objects of the association stipulated in that the August 1999 constitution? And in particular the objects stipulated in sub-paragraphs (a), (b), (c), (f), (g), (i) and (j), (k) and (l). Importantly by sub-paragraph (i) one of the objects of the association stipulated in the August 1999 constitution was to apply for and obtain registration as an organisation under the Workplace Relations Act 1996 as amended.
PN679
THE SENIOR DEPUTY PRESIDENT: You might also want to refer to (s) in that catch-all.
PN680
MR NEIL: Yes, if it please your Honour. May I draw your Honour's attention to rules 4 and 5 which set out the qualifications for membership? And I shall not trouble your Honour with the - for present purposes with the balance of the rules which deal with, amongst other matters, the governance of the association.
PN681
For some time the new association unsuccessfully sought assistance in its object of applying for and obtaining registration as an organisation under the Act from the Australian Medical Association. It did not succeed in obtaining that assistance, and on 3 November 1999 a general meeting of the association resolved in effect to go forward with an application for registration without the assistance of the AMA. That decision was confirmed at a general meeting on 29 March 2000, and new rules were adopted by the - by an annual general meeting for that purpose.
PN682
I have not passed through, if it please your Honour, every alteration of the association's rules, but instead for present purposes might I take your Honour to a notice of a special general meeting that was conducted on 8 March 2001? Your Honour will see that notice, or a copy of that notice, as annexure O to Dr Hugh's statement. The purpose of that meeting, or the business of that meeting, was to consider and if thought fit pass a resolution in these terms; that the constitution and all of the rules of the association is and are repealed, and is and are replaced by the rules set out in the annexure to this notice. That resolution was passed.
PN683
Might I - a copy of the rules, your Honour will see following the notice. May I draw your Honour's attention to some of the salient aspects of those rules? On page 6 of the rules the objects and purposes of the association are set out in clause 3. The first of those purposes was to apply for and maintain registration under the Act as an association of employees. And then may I draw your Honour's to the balance of rule 3.1 and 3.2. Rule 4, Regulated Membership of the Association. By rule 4.1(a):
PN684
The organisation consisted, in part, of those medical practitioners who, at the date of adoption of the rules, were members of the organisation being the persons whose names are set out in schedule 1.
PN685
And if your Honour turns to page 36 of the rules, your Honour will see schedule 1 begins. The eligibility - by rule 4.1(b):
PN686
Any medical practitioner who is admitted as a member under the rules was also qualified for membership. Eligibility to be admitted as a member was dealt with under rule 4.2.
PN687
And may I invite your Honour's attention to the terms of that rule. Rule 5 dealt with the powers of the - regulated the powers of the association. By rule 5.1:
PN688
Subject to the Act -
PN689
that is, the Workplace Relations Act, if it please your Honour -
PN690
in pursuing its purposes under rule 3, the association was granted the power to do anything that is lawful without limiting the generality of that grant.
PN691
Rule 5.2 stipulated a number of powers. By 5.2(m):
PN692
The organisation was given the power to do any Act, matter or thing which might appear to the committee to be in the interests of the association.
PN693
If your Honour would be good enough to turn to page 19 of the rules - or perhaps I should invite your Honour to go to page 18 first, if it please your Honour - there your Honour will see part 6 of the rules which dealt with the association's committee of management. A constitution of the committee is regulated by rule 24. The eligibility of committee members by rule 25. I can pass over rule 26, for present purposes, and invite your Honour's attention then to rule 27. By rule 27.1:
PN694
The committee was given this grant of power. Subject to these rules and to any resolution of a general meeting, the management of the organisation shall be vested in the committee which, in addition to the powers and authorities conferred on it by these rules, may exercise all such powers and do all such acts and things as may be exercised or done by the organisation that are not, under these rules or the Act, expressly directed or required to be exercised or done by the organisation at a general meeting.
PN695
Stopping there for a moment, your Honour, will see that there are no material acts and things which, under the rules, are expressly directed or required to be exercised or done by the organisation at a general meeting. The powers granted to the organisation and the acts and things as may be exercised or done by organisation, are of course, as your Honour will recall, regulated by rule 5, to which I took your Honour a little earlier. And that is set out at page 7 and following. In that regard, rule 5.1 is of particular significance.
PN696
By rule 27.2, without limiting the generality of the previous rule, the committee was given a number of specific powers on behalf of the organisation. One of them was to resolve to do anything that the organisation might do under rule 5(a). Another, by paragraph (c), was to initiate and direct the policy of the organisation in all matters affecting the interests of members. If it please your Honour, I do not need to trouble your Honour with, for present purposes, with the balance of the rules.
PN697
On 11 April 2001, the association's committee of management, resolved that the association should apply for registration as an organisation of employees under the Act. That application was taken out on 22 May 2001. It attracted many objections; most have fallen away, partly as a consequence of amendments to the association's eligibility rule, made with leave given by your Honour under paragraph 190(1)(b) of the Act on 21 August 2002. Your Honour's decision in that regard is set out in print 921598.
PN698
As a consequence of amendments made with your Honour's leave, the eligibility rule or rules regulating the association, were contracted. Relevantly, by a new rule 4.2, persons became eligible to be admitted as a member if they were or sought to be a visiting medical officer. By new rule 2, visiting medical officer was defined to be:
PN699
A medical practitioner who is employed or engaged at a health facility and is remunerated for the medical services that he or she provides during the course of such employment or engagement, according to a scale of fees for different kinds of medical services, and/or an hourly or other time-based rate or rates.
PN700
The definition of medical practitioner, in the Association's rules, was for the purposes of that definition altered to make it clear that that expression applied only to medical practitioners registered under the Medical Practitioners' Act (1930) of the Australian Capital Territory. By the same decision, your Honour granted leave for the Association to change its name. Formerly, as your Honour had seen, the association had called itself the Visiting Medical Officers' Association. As a consequence of the alteration approved by your Honour, the Association became, and is now known as the ACT Visiting Medical Officers' Association, a name that reflects its altered eligibility rule.
PN701
The remaining objections are made in essentially two interests. First there are those of the Australian Capital Territory and second, an objection made on the part of ASMOF. Now, your Honour, as is customary in matters of this kind, the considerable energy and talents of the objectors will no doubt be devoted to discovering technical irregularities in the applicants' structure and conduct as an association. But there are two - but for that distraction - two main questions thrown up by the objections which, with respect, your Honour will be called upon to determine.
PN702
The first is whether Visiting Medical Officers, members of the association and eligible for membership of the association, are employees within the meaning of the Act, for the purposes of determining an application for registration of the kind that the association now brings. Second, is ASMOF an organisation within the meaning of paragraph 189 1(j) of the Act and if so, what are the consequences of that?
PN703
Now, your Honour, that second question has come to assume a rather arid character. Might I hand up a copy of a letter that was sent by facsimile to ASMOFs solicitors by those instructing me on 12 September 2003? As I do so, may I inform your Honour that a letter in materially identical terms was sent to the solicitor for the interests of the Australian Capital Territory. I might tender it, if it please your Honour.
PN704
PN705
MR NEIL: By the letter, the objectors were informed as follows:
PN706
I am instructed to inform you that while noting that in its application for registration as an organisation under the Act in these procedures, my instructing solicitors, the ACTVMOA, contends that paragraph 189 1(j) of the Act has been and is satisfied, and without prejudice to any of the ACTVMOs contentions in that regard, the ACTVMOA, via the solicitors and counsel, will offer an undertaking in the following terms to the Commission, in connection with the ACTVMOAs application for registration.
PN707
The undertaking is introduced by these words:
PN708
The ACTVMOA will make the following undertakings on behalf of itself, its officers and employees, which undertaking will come into effect and operate on and from the date that the ACTVMOA is registered under section 189 of the Act.
PN709
May I then invite your Honour's attention to the terms of the undertaking? And your Honour will no doubt recognise that the terms of the undertaking have been adapted from an undertaking that your Honour accepted for the purposes of subsection (189)(2) in the Higher Education Industry Southern Cross University General Staff Demarcation Order case, which is referred to in the last paragraph of the letter.
PN710
THE SENIOR DEPUTY PRESIDENT: I cannot recall the particular case, Mr Neil, but that was a section 118A case, was it?
PN711
MR NEIL: It was, although it threw up questions arising under section 204, if it please your Honour, which contains, relevantly, similar provisions to those which are found in paragraphs 189 1(j) and subsection (189)(2). The undertaking - - -
PN712
THE SENIOR DEPUTY PRESIDENT: Was this the follow-on from the demarcation order being made? This was the variation to someone's rule, was it?
PN713
MR NEIL: It was.
PN714
THE SENIOR DEPUTY PRESIDENT: It arose following on a demarcation order being made.
PN715
MR NEIL: Yes, if it please your Honour.
PN716
THE SENIOR DEPUTY PRESIDENT: So that we no longer have the power to do it?
PN717
MR NEIL: Yes, your Honour. During the course of those proceedings which, as your Honour has observed, went through a number of phases, an application was made and considered under section 204 in connection with that latter application, undertakings in materially identical terms to those which are set out in exhibit ACTVMOA1, were offered by the relevant union.
PN718
In due course, by means with which I need not weary your Honour at the moment, the terms effect and significance of that undertaking was considered by a Full Bench. That Full Bench came to the view that the undertakings, prima facie, met the requirements of subsection 204(5). Your Honour, if I might remind your Honour, subsection 204(4) prohibited a designated presidential member, in that case it was your Honour:
PN719
From consenting to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there was, in the opinion of the designated presidential member, another organisation to which those persons might more conveniently belong, and that would more effectively represent those members.
PN720
Stopping there for a moment, your Honour will of course see that the provisions of subsection 204(4) relevantly reflect, indeed mirror, the provisions of paragraph 189(1)(j). And then subsection 204(5) provided that:
PN721
Subsection 4 would not apply if the designated presidential member accepted an undertaking from the organisation seeking the alteration that the designated presidential member considered appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
PN722
The Full Bench in the Southern Cross University matter formed and expressed the view that the undertakings that had been offered met the requirements of subsection 204(5), at least they did so prima facie. The matter then came back to your Honour for a number of purposes, one of which was your Honour's consideration of subsection 204(5) and in the decision, which is referred to in the last paragraph of exhibit ACTVMOA1, your Honour took up and applied the Full Bench's conclusions and held that the undertakings were appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the two organisations in question.
PN723
Now, although it is faintly suggested - I withdraw that. May I make these points. As exhibit ACTVMOA1 indicates in opening, the association contends, in these proceedings, that paragraph 189(1)(j) has been met. I need to give that a rather sharper focus if it please your Honour. I do not contend that there is no organisation to which members of the association might belong. I accept that persons who are qualified and eligible for membership of the Visiting Medical Officers Association, if I can give it that short form, are eligible for, or at least might be eligible, in some circumstances, for membership of ASMOF.
PN724
The point of difference between the Visiting Medical Officers Association and ASMOF, in that regard, is essentially that the Visiting Medical Officers Association contends, in these proceedings, that its members and Visiting Medical Officers in the Australian Capital Territory, are employees. And ASMOF, in these proceedings, denis that proposition. As I appreciate the rules of ASMOF, if the Visiting Medical Officers Association's contentions in that regard are correct, then visiting medical officers who are eligible for membership of the Visiting Medical Officers Association would also be eligible for membership of ASMOF. I am sorry to take a little time over that, your Honour, but it seemed to me to be an important proposition.
PN725
It means, for the purposes of paragraph 189(1)(j), that I do not contend that the first of the conditions stipulated in that paragraph are met. That is I do not contend that there is no organisation to which members of the Visiting Medical Officers Association might belong. That being so, attention must turn to the balance of paragraph 189(1)(j). It is accepted that there is such an organisation, then paragraph 189(1)(j) requires consideration of two further questions. First, is that other organisation and organisation to which members of the association could more conveniently, belong. And, secondly, is that other organisation one which would more effectively represent those members.
PN726
As exhibit ACTVMOA1 indicates, and as the outline that has been filed in these proceedings on behalf of the Visiting Medical Officers Association makes plain, the Visiting Medical Officers Association contends that ASMOF is not an association to which its members could more conveniently belong, or that would more effectively represent those members. Now, that is the way in which the Visiting Medical Officers Association contends that paragraph 189(1)(j) and the requirements of that provision have been satisfied.
PN727
Now, there has been a deal of material filed pursuant to your Honour's directions on the part at least of the Visiting Medical Officers Association and ASMOF which is directed to the resolution of that controversy. It is in the light of the contents of exhibit ACTVMOA1, and as I put a little while ago, an arid controversy. If your Honour comes to the view that the undertaking which the Visiting Medical Officers Association offers to the Commission is appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the Visiting Medical Officers Association and ASMOF.
PN728
Now, it may be that it will be contended, or your Honour will come to the view, that subsection 189(2) requires as a condition of its exercise a positive finding that the three matters stipulated in paragraphs (a), (b) and (c) of that provision exist, or at least to satisfaction on your Honour's part that they do. As to (a), I need say no more. Your Honour will have understood the concession, with respect, the concession that I make in that regard.
PN729
But (b) and (c) might be taken to take up and echo the controversy which is occasioned by the application to the facts of the present proceeding of paragraph 189(1)(j). And it does seem a little peculiar, in my respectful submission, that the Act would require a detailed factual inquiry into the question of whether the problem posed by paragraph 189(1)(j) exists only in order to provide the foundation for the consideration of a solution of that problem.
PN730
It is my submission that the approach which is indicated in exhibit ACTVMOA1 is one which is calculated to direct attention immediately and at an early stage of the proceedings before your Honour is troubled by much of the material which has been filed in support in particular of ASMOF's objection, and instead to go straight to the question of whether the undertakings that are offered in exhibit ACTVMOA1 meet the test stipulated by subsection 189(2).
PN731
Now, as your Honour has on a number of earlier occasions observed, the amendments that were made to the Act in 1996 effected something of a revolution to the approach which had until then traditionally been taken to what your Honour might allow me to call the conveniently belong test. Importantly, the objects of the Act, which as your Honour will recall, are set out in section 3 - at least the principal objects of the Act - were relevantly amended to provide or to stipulate that the principal object of the Act was to provide a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia by - and I now move to paragraph (f):
PN732
Ensuring freedom of association, including the rights of employees and employers, to join an organisation or association of their choice.
PN733
Now, subsection (2), it will be my submission in due course, plays an important - which was inserted at the same time as the objects of the Act were so amended - was inserted to provide the practical means by which the purpose of the traditional conveniently belong test could be reconciled to the new approach. Employees were to be permitted to join the association of their choice even if there was another already registered organisation to which the members of the aspirant association could more conveniently belong, or that would more effectively represent those members. If the Commission was satisfied by reason of undertakings offered by the aspirant association that any demarcation disputes that might arise from an overlap between the eligibility rules of the two organisations might be avoided.
PN734
The test is, of course, a relatively - if your Honour will allow me to say, I submit with respect - the test is posed at a level well short of absolute strictness. Subsection (2) does not require, for example, satisfaction on the part of the Commission that by reason of the undertakings demarcation disputes will be avoided. All that is required is satisfaction on the part of the Commission that the undertaking is appropriate to avoid demarcation disputes, that is, it is directed to the avoidance of such demarcation disputes as might arise. Now, of course, in these proceedings, as your Honour will in due course come to learn, when the evidence is lead the evidence will be that demarcation disputes between the Visiting Medical Officers Association and ASMOF are a purely theoretical proposition.
PN735
No one has been able to suggest any demarcation dispute that might actually arise or any adverse consequence that might attend upon any such demarcation dispute. It will be the Visiting Medical Officers Association's submission in due course if it comes to it that the only consequence of its registration is and would be a healthy competition between it and ASMOF in the very limited area in which their eligibility rules overlap. Competition of that kind is not a consequence that has ever or indeed in my submission could ever be considered to be one which did not further the objects of the Act or which were not consonant with those objects. In making that submission I have in mind the provisions of paragraph 189(1)(h).
PN736
Now, I am sorry, your Honour, to have taken up a good deal of time in opening in dealing with these matters, but I wanted to take the opportunity and an early opportunity to put before your Honour the undertaking which is set out in exhibit ACTVMOA1 and raise with your Honour the implications that that undertaking might have for the conduct and disposition of the present proceedings. It is not my submission that your Honour would need to be satisfied as a fact or facts of the matters stipulated in paragraphs (a), (b) and (c) of subsection (2).
PN737
But having made that submission, unless there was anything more that your Honour might wish of me by way of assistance in relation to that point, I would not wish to make any further submissions. I must concede that the contrary view is at least open.
PN738
THE SENIOR DEPUTY PRESIDENT: The difference between registration proceedings and 204 proceedings in relation to this giving your undertakings seems to be, does it not, that in 204, to use the brief term, conveniently belong provisions do not apply if the Commission were to accept an undertaking. So, one can accept the undertaking and not even consider whether or not conveniently belong was a factor.
PN739
MR NEIL: Yes. There is a slightly different formulation - - -
PN740
THE SENIOR DEPUTY PRESIDENT: And the other one in registration proceedings is that the requirements of the conveniently belong provision are taken to have been met if one accepts the undertaking.
PN741
MR NEIL: Yes.
PN742
THE SENIOR DEPUTY PRESIDENT: Does that not suggest that the findings of fact need to be made before the undertaking is accepted? It may be peculiar, and I am not sure at this stage - I have not given any consideration to the reason behind it but - - -
PN743
MR NEIL: I must concede, your Honour, that that is a view which is open, although I hesitate to, with respect, adopt it or embrace it because of the obvious inconvenience that that poses and the aridity of the exercise that would then be required. As I submitted earlier, your Honour, but perhaps not as elegantly as I ought, it does seem, with respect to the drafters of the legislation absurd to require that the Commission and the parties to an application of this kind should devote their time and energy to establishing that a problem exists only in order to provide the jurisdictional foundation for what must then be the real inquiry as to whether that problem can be solved.
PN744
THE SENIOR DEPUTY PRESIDENT: In one sense the standard would be different for existing players than it would be for a matter that was between an existing player and someone who wanted to come on to the field.
PN745
MR NEIL: It may be, your Honour, but that difference, in my submission, would be in favour of the aspirant for registration because in the case of an aspirant for registration, unless there was some particular evidentiary circumstance which does not on the material that is available to me in any event, which does not arise in this case, would suggest the real and present risk of actual demarcation disputes attended by actual adverse consequences where one has two existing, already registered organisations, there will be a history from which inferences might - which either demonstrates the present risk of such disputes and the present risk of adverse consequences arising from them or at least may demonstrate matters which give rise to inferences in that regard.
PN746
In a case of this kind, where one has an aspirant for registration and no history of any kind which suggests that there is any likelihood of real demarcation disputes and real adverse consequences, then the possibility of demarcation disputes to which subsection (189)(2) is directed must remain, with respect, wholly theoretical in the realm of speculation. And indeed the conclusion to which I will in due course invite your Honour to come is that they are not likely ever to arise. So the standard, in my submission, would be lower in a case at least of the present kind.
PN747
I hope your Honour, with respect, will have appreciated the reasons why I have raised this matter now. It raises the prospect that one might leap over at least a detailed inquiry into the questions posed by paragraph 189(1)(j) to the what I might, with respect, call the more significant questions posed by subsection 189(2).
PN748
Now, your Honour, may I say this - that I have not raised this with any of my learned friends and I do not put this as a developed or final position, but may I suggest that if your Honour were to come to the view that some sort of finding was required in terms of paragraphs (a), (b) and (c) of subsection 189(2), then it might be possible to make those findings on a provisional basis sufficient to provide the jurisdictional foundation for a consideration of the substantive questions raised by subsection (2).
PN749
THE SENIOR DEPUTY PRESIDENT: What would then be the situation if I were not to be satisfied with the undertakings or perhaps in this case? Would we need to then embark upon - we would then have to go back to your primary position that paragraph (j) has been satisfied.
PN750
MR NEIL: That is so, subject to one possibility. It may be that your Honour will be persuaded by some aspect of the evidence or some submission made to your Honour that there is one or perhaps a number of respects in which the suggested undertaking is deficient for the purposes of subsection 189(2), that is, it falls short in one or perhaps a number of respects, but it that it is otherwise appropriate to avoid demarcation disputes.
PN751
It may be, for example, your Honour, that the wit of the drafters of the undertaking that your Honour considered and the Full Bench considered in the Southern Cross University case and the wit of those who in these proceedings have grasped their coat tails has not been sufficient to anticipate every question and every demarcation that might be thought possible and every means of avoiding it.
PN752
As your Honour will have seen from the objects of the Visiting Medical Officers Association, this undertaking is consistent with the policy of that association. The Visiting Medical Officers Association is not interested in demarcation disputes with ASMOF or anyone else, and it is certainly not, as paragraph 4 of the suggested undertaking indicates, it is certainly not interested in taking industrial action in support of any demarcation dispute.
PN753
Now, however, that being said, your Honour, we may have failed to anticipate one or a number of devices which your Honour might think appropriate to avoid demarcation disputes. That is an intermediate possibility, if it please your Honour, between the two that your Honour has raised with me. In that event the subsection 189(2) door would not be closed either at all or for ever and it would be possible to revisit the undertakings and address any concerns that your Honour might have about the undertakings. So, that is the intermediate position.
PN754
Let me say bluntly, your Honour, that, but by way of a suggestion, rather than a developed or considered position that might forever bind me, that if the position were to be that the Commission were to come to the view that the undertakings that the Visiting Medical Officers Association have offered to the Commission, did meet the test posed by subsection 189(2) and were appropriate to avoid demarcation disputes of the relevant kind, then the effect would be that the requirements of paragraph 189(1)(j) would be taken to have been met, as your Honour has observed, and I would not conceive any interest on the part of my clients in entering into that field of controversy.
PN755
Any findings that your Honour might make, provisionally or otherwise, in relation to paragraph 189(1)(j), would have no practical operation, other than to provide such jurisdiction as might be required for the application of subsection 189(2). I have no wish to take up the Commission's time, that of my learned friend's, the Visiting Medical Officers Association, or any of the objectors themselves in fighting a battle that I do not need to win.
PN756
THE SENIOR DEPUTY PRESIDENT: If you are prepared to have me deal with it provisionally, I am making an assumption that a, b and c in subsection (2) are satisfied?
PN757
MR NEIL: Yes. If, and I hope I am putting my position as frankly as your Honour desires and needs, by way of assistance in resolving this question, but provided that by capacity to contend that paragraph 189(1)(j) was satisfied in the sense that I indicated earlier, was preserved in the event that there were an adverse decision, by the Commission, however constituted under subsection 189(2), provided I could come back to those questions with prejudice to them, to any position that the association might take in relation to that, then I would be prepared to argue the matter on that basis.
PN758
THE SENIOR DEPUTY PRESIDENT: You mean that I would make a preliminary decision on both the employee question and on the acceptance of an undertaking on an assumption that a, b and c of subsection (2) had been met, if I came to the conclusion that, in your favour on the employee question, and in your favour on the undertakings - sorry, not in your favour of the undertakings, we would have a further hearing on the question of conveniently belong, and/or on the question of while other undertakings that might be given?
PN759
MR NEIL: Subject to some practical considerations,and I should need to take instructions about this, your Honour - - -
PN760
THE SENIOR DEPUTY PRESIDENT: I am just looking at timing of things.
PN761
MR NEIL: Yes, I understand very much your Honour's - the import of your Honour's question. Subject to some practical considerations and to a need to take some instructions on it, then the approach that your Honour suggests certainly has some attraction.
PN762
THE SENIOR DEPUTY PRESIDENT: You see, the alternative is, after hearing from the others, come a conclusion on your argument, I will make a ruling on your argument that I do not need to make the findings of fact referred to in a, b and c of subsection (2)?
PN763
MR NEIL: Yes. That is another approach.
PN764
THE SENIOR DEPUTY PRESIDENT: Yes.
PN765
MR NEIL: And as to that, I have the submissions that I would wish to make.
PN766
THE SENIOR DEPUTY PRESIDENT: Yes.
PN767
MR NEIL: But your Honour, of course, has not heard from any of the objectors in this regard. I have spent some time on this matter for the purpose of disclosing my hand, if I can put it in that way, your Honour, and raising with your Honour and my learned friends the questions which seemed to me to arise.
PN768
THE SENIOR DEPUTY PRESIDENT: Yes. Is there anything else you want to say?
PN769
MR NEIL: Your Honour, that is all that I would wish to say in opening, unless your Honour has anything more of me, could I deal with one matter. There are two summonses which have been issued at the request of the Visiting Medical Officers Association; one to, in effect, the Australian Capital Territory interests, and one to ASMOF. They are returnable this morning, my learned friends have discussed each of those summonses with me. My learned friend, Mr Tracey's client, or clients, have provided copies of some material to me this morning and he has told me that searches are being undertaken and other material may be provided in due course. In the light of that advice, might I formally call upon that summons but ask your Honour to adjourn it to a time to be fixed.
PN770
THE SENIOR DEPUTY PRESIDENT: Any objection to that proposal, Mr Tracey?
PN771
MR TRACEY: No, your Honour.
PN772
THE SENIOR DEPUTY PRESIDENT: We will deal with that summons in that way.
PN773
MR NEIL: And I have been told that, and a request has been made, that I postpone calling on the summons addressed to ASMOF under later today and I am happy to do so.
PN774
THE SENIOR DEPUTY PRESIDENT: Any objections, Mr Nolan?
PN775
MR NOLAN: No, your Honour.
PN776
THE SENIOR DEPUTY PRESIDENT: I will deal with that summons on that basis for the moment.
PN777
MR NEIL: As your Honour pleases. Those are the only matters that I wish to deal with in opening. Now, I should say, your Honour, perhaps before I resume my seat, that I had understood that in these proceedings your Honour would be following the course that your Honour has adopted as a matter of practice, as to the conduct of the proceedings. In the light of that I rest on my application and the material filed in support of that. And, as I understand your Honour's practice, it now lies on the objectors to take up the grounds of their objection.
PN778
THE SENIOR DEPUTY PRESIDENT: It certainly is the practice I will follow.
PN779
MR NEIL: I should not ask your Honour to follow any other practice but that. So that I do not propose, consistent with that, to tender any evidence is, as it were, my case, at this stage. If your Honour pleases, that is all I would wish to deal with.
PN780
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tracey, can you deal with, as a matter of procedure, the matters that have been raised by Mr Neil?
PN781
MR TRACEY: Can I say immediately, your Honour, that everything I have to say is under cover of the observation that having only received the document last Friday and late, the opportunity has not existed for us to obtain instructions about the adequacy or otherwise of those undertakings. So it, I imagine, is a matter principally for the ASMOF interest in this proceeding. But it is also a matter of some relevance to our clients, potentially at least, because the existence of demarcation disputation plainly has the capacity to impact on the delivery of health services in the Territory.
PN782
So I am happy to make some observations on what my friend has said, but your Honour will understand that in the absence of instructions, I have to reserve the right to say something further, if need be, about them.
PN783
THE SENIOR DEPUTY PRESIDENT: More, I am, I guess, concerned about what your submissions would be on the interpretation of 189(2).
PN784
MR TRACEY: Yes. Well, inevitably, I think, your Honour, there is going to have to be some evidence going to at least paragraph (a). Because the evidence relating to the employee question potentially will have a bearing on the question of whether or not the VMOs might belong to ASMOF. So to that extent, I think the problem is not totally soluble by following the course that our friend has suggested.
PN785
Nonetheless, your Honour, we would I think at this stage, not oppose the matter proceeding on the basis that all the criteria in subsection (2) are satisfied, subject to the matter that I have just adverted to, as has been suggested by Mr Neil. But the consequences he has accepted, as we understand it, is that once all the evidence has fallen out and your Honour has ruled particularly on the employee/independent contractor issue, may well necessitate a further hearing in the light of your Honour's ruling. It is not easy to be more specific than that without knowing how that evidence is going to fall out, much less what impact it is going to have upon your Honour.
PN786
THE SENIOR DEPUTY PRESIDENT: I have had to conclude, however, that the members of Mr Neil's client could not be members of ASMOF because they are not employees in the matter.
PN787
MR TRACEY: Well, we - - -
PN788
THE SENIOR DEPUTY PRESIDENT: It is dealt with under another heading, is it not?
PN789
MR TRACEY: Well, then, your Honour, the question of the undertaking simply would not arise because the membership would not be satisfied. Now, it may be that in that event, he would nonetheless satisfy (j) on the basis that there is an organisation to which members of his association might be a member, but nonetheless fail, because the requirements of (d) have not been satisfied.
PN790
THE SENIOR DEPUTY PRESIDENT: Of (d)?
PN791
MR TRACEY: Yes. The requirement of 50 members who are employees.
PN792
THE SENIOR DEPUTY PRESIDENT: Alternatively, it might be satisfied under section 188. Because it is an association, it can apply for registration.
PN793
MR TRACEY: Well, I cannot gainsay that, your Honour, but as we understand it, that is not the way the case has been agitated thus far, nor do I understand our friends to put their case in the alternative on that basis.
PN794
THE SENIOR DEPUTY PRESIDENT: Mr Nolan, what is your position on this particular aspect of the matter? Well, I do not need you to address the - whether the undertaking itself should be accepted. It is more the question of the manner in which the matter should be dealt with.
PN795
MR NOLAN: Yes. Well, we face the difficulty that Mr Tracey faces and that is that we were only given a copy of the undertaking late on Friday and so the issues, insofar as they involve the undertaking being factored into the mix, have not been fully explored or even begun to be thought about. It seemed to us appropriate, however, as a practical matter, subject to perhaps having some discussions ourselves about the way forward, your Honour, really to deal with this issue of "employee" as a preliminary matter.
PN796
That seems to us to be the - rather suggest itself as a threshold matter to be determined, because if that is determined in a manner adverse to the applicants, well then, the rest of the issues that might otherwise arise become entirely moot and theoretical. So as a practical course, we would think that that course would suggest itself and so your Honour would not really need to be troubled by other aspects of the application. I must say, I am - just as an initial reaction to what has been said - one hesitates to agree to a course of action that would involve some hearings now and then the possibility of further hearings in the future, given that people have armed themselves to come along to have the matter heard to conclusion this week, but - - -
PN797
THE SENIOR DEPUTY PRESIDENT: One might say it has been hard enough to get everyone available at the same time.
PN798
MR NOLAN: Well, that is right. But if it is to be a matter where the issues can usefully be dissected out, as I suggest, the one of whether or not these busy medical officers are employees in the first place - and as a result, even can get past the starting blocks so far as registration is concerned, would seem to be the logical question to be answered first.
PN799
And as the material suggests, it is not an idle question to be considered by your Honour, and your Honour has all the material, it seems to us, to make that decision. And it would be appropriate perhaps to do that as a threshold matter, and then if we were - if we did decide that the organisation was appropriate for registration, then those other matters could be considered. And if your Honour decided that way, that might have some impact upon my clients' consideration of an undertaking.
PN800
Because the way this undertaking has been offered - late Friday afternoon - even if we were disposed to contemplate an undertaking as being a possible solution to the issue, we are hardly in a position to react in a sensible way with so little time to respond in a considered way to the whole idea of the undertaking.
PN801
The applicants had months, if not years, to proffer this as a possible solution to my clients' objection and it has come, as I suggested, at the eleventh hour. So, as a practical matter, it seems to us that the appropriate course, if your Honour is going to dissect out the case, is to, as I suggested, look at this issue of "employee" as distinct from "independent contractors" as a preliminary matter.
PN802
THE SENIOR DEPUTY PRESIDENT: Mr Neil?
PN803
MR NEIL: Again, subject to some practical considerations and an opportunity for me to take instructions, Mr Nolan's suggestion - my learned friend Mr Nolan's suggestion, would appear to offer a way forward, at least in the short term. I have accepted, your Honour, that I must confront the employment issue. That was the first of the two substantial questions that I drew to your Honour's attention in opening. And I accept that I must confront that question quite independently of any questions posed by paragraph 189 1(j) or subsection (189)(2).
PN804
THE SENIOR DEPUTY PRESIDENT: The difficulty is - and I appreciate the point that has been put by Mr Nolan - is that assuming we proceeded along the basis of determining whether or not the VMOs are employees, the evidence that is called would be limited to that. And if I were to come to a conclusion that they were not, then that may well bring an end to the matter.
PN805
MR TRACEY: Yes.
PN806
THE SENIOR DEPUTY PRESIDENT: If I were to come to a conclusion they were, then witnesses would need to be recalled.
PN807
MR NEIL: That would be so in relation to certainly some, but not all, of the - certainly of the objectors' witnesses. My learned friend Mr Tracey was good enough this morning to give me what I think in fairness to him could be called a provisional order of the witnesses that he proposed to call. I understood that it was subject of course to Your Honour's requirements. It was understood as between my learned friends Mr Tracey and Mr Nolan that the former would go first, and I have no objection to that course. Mr Tracey told me that he proposed to call Mr Griffin, then Ms Pearce, then Ms Holt, and then Mr Rayment - the latter on Thursday because of some difficulties that Mr Rayment has.
PN808
My own witnesses, I can tell your Honour, have their own difficulties, and I will be as accommodating as I possibly can to any difficulties that other parties' witnesses might have. So, I have no objection to postponing Mr Rayment until Thursday. I draw this to your Honour's attention because it seems to me that the evidence of Mr Griffin, Ms Pearce and Ms Holt goes entirely to the employment question. There might be some passing - might be some material of passing significance to the other question - - -
PN809
THE SENIOR DEPUTY PRESIDENT: Well, whether it did or did not, one would have to at least give Mr Tracey the right - or allow him to reserve his right to call them if - or recall them if that were the case.
PN810
MR NEIL: Yes, of course, your Honour, yes.
PN811
THE SENIOR DEPUTY PRESIDENT: But you agree that if we were to follow Mr Nolan's suggestion, I would not hear evidence at this stage, on our "conveniently belong" type argument.
PN812
MR NEIL: That would be so.
PN813
THE SENIOR DEPUTY PRESIDENT: It would be purely on the basis of employer/employee relationship type argument.
PN814
MR NEIL: That would be - I accept that that would be the necessary consequence of accepting his suggestion. And the observations that I have made, your Honour - I have not put it very well, I am sorry your Honour, were really directed to this question. But it seemed to me, at least from my appreciation of the evidence of the witnesses who would first be called, that that would be an entirely convenient approach.
PN815
THE SENIOR DEPUTY PRESIDENT: Well, I am happy to follow that approach. It would - I would have to make it quite clear to the parties that I would not anticipate the decision on the spot.
PN816
MR NEIL: No, no. On the employment question - - -
PN817
THE SENIOR DEPUTY PRESIDENT: But having reserved on that question, having come to a conclusion that was favourable to the applicant, would require the setting of further dates. But that would be a matter for the future.
PN818
MR NEIL: I am grateful for your Honour giving that advice.
PN819
THE SENIOR DEPUTY PRESIDENT: It may finish the matter, or it may not.
PN820
MR NEIL: Yes.
PN821
THE SENIOR DEPUTY PRESIDENT: And that is all I could say.
PN822
MR NEIL: But I appreciate your Honour's observation. That is something that I - that the association will need to take into account. But I would certainly not have expected your Honour to resolve the employment question with an extempore judgment.
PN823
THE SENIOR DEPUTY PRESIDENT: I am glad you have the same opinion of myself as I have, Mr Neil.
PN824
MR NEIL: It is - I will not - - -
PN825
THE SENIOR DEPUTY PRESIDENT: I do not mean that nastily. I am quite serious. I am glad that people do not expect too much.
PN826
MR NEIL: Well, your Honour, might I have a short opportunity to take some instructions?
PN827
THE SENIOR DEPUTY PRESIDENT: Before we do - I am happy for that to happen. Could I just ask Mr Nolan this. Mr Nolan, is any of your evidence directed to the employer/employee question?
PN828
MR NOLAN: Well, no, it is not. No, we are in some senses interested bystanders in that matter.
PN829
THE SENIOR DEPUTY PRESIDENT: Yes. So, if we were to proceed, we would be hearing effectively from all - or not all, most of the witnesses other than Mr Summerville.
PN830
MR NOLAN: I believe so.
PN831
THE SENIOR DEPUTY PRESIDENT: Which might mean that I might never have the opportunity to hear from Mr Summerville.
PN832
MR NOLAN: Your Honour will have to reconcile yourself to that case.
PN833
THE SENIOR DEPUTY PRESIDENT: For the benefit of the other parties, the recent case I was involved in was resolved before Mr Summerville had the opportunity to give his evidence.
PN834
MR NOLAN: There will be other cases.
PN835
THE SENIOR DEPUTY PRESIDENT: The Society of Surgeons case that I was reviewing. Well, how much time would you need, Mr Neil?
PN836
MR NEIL: Well, a little time. It may be - I do not know if your - - -
PN837
THE SENIOR DEPUTY PRESIDENT: Do you want to adjourn now for luncheon and resume - - -
PN838
MR NEIL: Well, would you want to take an early lunch?
PN839
THE SENIOR DEPUTY PRESIDENT: Yes, I would be happy to do that, if that suits - - -
PN840
MR TRACEY: Yes, subject to - - -
PN841
THE SENIOR DEPUTY PRESIDENT: You have got a - - -
PN842
MR TRACEY: A minor logistic problem. We were planning to start our first witness - - -
PN843
THE SENIOR DEPUTY PRESIDENT: Mr Griffin?
PN844
MR TRACEY: Dr Griffin, and then at 2 o'clock interpose Ms Pearce. It may be that the proper course now is not to try and start him and then leave him part heard. But it will be a question of whether we can get Ms Pearce here any earlier than the quarter to two we have asked her to be here. But, subject to that, I think that is an appropriate course.
PN845
THE SENIOR DEPUTY PRESIDENT: Well, if I adjourn tentatively till 1.30, and then you can let my associate know, if there is any - - -
PN846
MR TRACEY: Yes, we will let her know if there is any problem.
PN847
THE SENIOR DEPUTY PRESIDENT: Yes. That is okay with you, Mr Neil?
PN848
MR NEIL: Of course, your Honour.
PN849
THE SENIOR DEPUTY PRESIDENT: Mr Nolan?
PN850
MR NOLAN: Yes, your Honour.
PN851
THE SENIOR DEPUTY PRESIDENT: All right. We will adjourn until 1.30 and then - unless I am advised otherwise that that is a problem.
LUNCHEON ADJOURNMENT [12.01pm]
RESUMED [1.34pm]
PN852
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Neil.
PN853
MR NEIL: Your Honour, I think it falls to me now to respond to the suggestion that my learned friend, Mr Nolan, made before the adjournment, which was as I understood it, that in these proceedings the question of whether visiting medical officers in the Australian Capital Territory are employees within the meaning of the Act for the purposes of the registration of organisations should be dealt with first and to the exclusion of any other question that arises in these proceedings on the objections that are still before the Commission.
PN854
I accede to that proposal, and I do so understanding that it may have two consequences of significance to the conduct of the proceedings. The first is that in the event that that question is determined in favour of the Visiting Medical Officers Association's contention, which is of course that visiting medical officers in the Australian Capital Territory are employees within the meaning of the Act for all purposes relevant to this application, but if that contention is accepted and the balance of the application goes forward, then it may be necessary that some or even all of the witnesses who have already - will by then have already given evidence will need to be recalled, and that all rights both of the applicant association and the objectors in that regard should be preserved. I accept that.
PN855
The second consequence that your Honour was good enough to raise with me before the adjournment was that in any event it will be necessary, when all the evidence is in on what I might call the employment question, it will be necessary for your Honour to reserve on that question. That will mean that if anything remains of the time that has been set aside for the hearing this week then it must be lost, and I accept that. Does that, your Honour, deal with all of the matters that your Honour raised with me?
PN856
THE SENIOR DEPUTY PRESIDENT: I believe so. That leaves the other position that you are proposing initially is put to one side.
PN857
MR NEIL: That can be put to one side. Yes, your Honour, I accept that.
PN858
THE SENIOR DEPUTY PRESIDENT: So, we will proceed with the - hearing the evidence from the objectors in relation to the question of whether or not the VMOs are employees for the purposes of the Act.
PN859
MR NEIL: If your Honour pleases.
PN860
THE SENIOR DEPUTY PRESIDENT: Then I will hear your evidence, and then I will hear your submissions on that issue and I will no doubt feel obliged to reserve at that stage, but we will see what happens.
PN861
MR NEIL: If it please your Honour.
PN862
THE SENIOR DEPUTY PRESIDENT: Mr Tracey.
PN863
MR TRACEY: If the Commission pleases, can I start by tidying up a minor matter of detail? Your Honour will have noted that there are two respondents identified in the documents. One is the ACT, the other is a body called the Australian Capital Territory Health and Community Care Service. Since the proceeding was commenced that latter body no longer exists as a result of the repeal of the Health and Community Care Services Act 1996. There is a transitional provision, and I can give your Honour the chapter and verse about this but I do not think it is contentious.
PN864
There is a transitional provision which is section 42 of the Health Act 1993 of the territory under which in any proceeding begun before the commencement of the new part of the Health Act that the territory is substituted as a party. So, the result of it is that you only have one objecting entity within the territory before you and that is the territory itself.
PN865
THE SENIOR DEPUTY PRESIDENT: Is that accepted?
PN866
MR NEIL: It is.
PN867
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tracey.
PN868
MR TRACEY: Now, as far as the evidence is concerned, sir, the witnesses who we have provided statements for and who our friend has indicated a desire to cross-examine are Dr Griffin, Ms Pierce, Ms Holt and Mr Rayment, and we propose to present Ms Pierce first, and then will follow Dr Griffin, Ms Holt, and as Mr Neil told you earlier, Mr Rayment, who is resident in Tasmania has been booked to fly up on Wednesday night and will be presented on Thursday morning. We will in the same spirit of co-operation do whatever we can do to accommodate any problems that our friend's witnesses may have in being available in the course of the week.
PN869
I think it is fair for him to have said that the first of three witnesses, their evidence goes to the employer independent contractor issue and really does not stray into any other territory, and they will be presented on that basis. And we note our friend's acceptance that depending upon the outcome of the first stage of the hearing it is possible but at this stage we cannot judge whether necessary that all or any of them may need to be recalled.
PN870
PN871
MR TRACEY: Ms Pierce, your full name is Kimberley Pierce?---Yes.
PN872
You are the Executive Director Surgical Services at the Canberra Hospital?---Yes.
PN873
And your business address is care of that hospital?---That's right.
PN874
You have caused to be prepared for the purpose of this hearing a witness statement dated 10 June 2003?---Yes.
PN875
Would you have a look at that statement, please. Is that a copy of the statement you caused to be prepared for the purpose of the hearing?---Yes, it is.
PN876
Yes. Let me answer it for you.
PN877
THE SENIOR DEPUTY PRESIDENT: I heard the answer.
PN878
MR TRACEY: I was fearful that the machine may not have, sir. And you have had occasion to read it recently?---Yes.
PN879
And there is a small correction you want to make in paragraph 19, is that right?---Yes, that's right. Where it says "these are not common occurrences, but they have occurred and TCH plays a peripheral role in the exercise", I normally draw up the locum contracts for the VMO in that situation and they have to have my agreement that the locum that they have decided on is the one that we both want.
PN880
And subject to that correction, is the statement true and correct in every particular?---Yes.
**** KIMBERLEY PIERCE XN MR TRACEY
PN881
Yes. I tender the statement, if the Commission pleases.
PN882
PN883
MR NEIL: If your Honour pleases, may I deal with some short objections to the statement?
PN884
THE SENIOR DEPUTY PRESIDENT: Yes.
PN885
MR NEIL: Paragraph 18, the first sentence. The first sentence embodies two conclusions; the first is that the VMOs are engaged as contractors, and the second is a conclusion as to their motive. The first of those conclusions is the very question that your Honour has to determine and is, of course, a mixed question of fact and law. The witness is not, in my submission, with respect to her, qualified to draw that conclusion. And, in any event, it is of no weight. The second conclusion is a speculation about the motives of other people.
PN886
THE SENIOR DEPUTY PRESIDENT: Do you want to deal with these objections individually?
PN887
MR NEIL: I am in your Honour's hands.
PN888
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Tracey, what do you say?
**** KIMBERLEY PIERCE XN MR TRACEY
PN889
MR TRACEY: As to the means of dealing with them, sir, or as a particular objection?
PN890
THE SENIOR DEPUTY PRESIDENT: I will deal with them separately.
PN891
MR TRACEY: Yes.
PN892
THE SENIOR DEPUTY PRESIDENT: We might then not get lost, or I might not, anyway.
PN893
MR TRACEY: Well, it is convenient for us to deal with them seriatim too, your Honour. It does not express a contentious legal conclusion. One can be a contractor and an employee. It is not - the word "independent" is not there.
PN894
MR NEIL: If it is tendered on that basis, I do not object to that.
PN895
MR TRACEY: And as to the latter, the opinion, that is equally capable of being understood, as we understand it, as a statement of the reason why the hospital chooses to engage these VMOs in the way that they do. It is not seeking to get into the minds of the VMOs, they will speak for themselves.
PN896
MR NEIL: If it is tendered on that basis, I withdraw the objection.
PN897
THE SENIOR DEPUTY PRESIDENT: On the basis that that is the way it is being put, Mr Tracey, we will leave that in there. I might just say that I do not use this in any way detracting from witnesses, but where a witness is expressing something that may be a contention of law and that witness is not qualified to do so, then you can take it that I understand it is a matter for me to decide and not a matter for the witness to assist me on, on that respect. And, secondly, where opinions are expressed then generally I will allow those opinions to be expressed, but of course it is up to whoever is seeking to rely on them to establish the factual basis, at least for the opinions.
**** KIMBERLEY PIERCE XN MR TRACEY
PN898
MR NEIL: Thank you, your Honour. May I take it then that your Honour will adopt that approach whether I object to a particular aspect of the evidence which has those features or not?
PN899
THE SENIOR DEPUTY PRESIDENT: Well, it might be of some assistance to everyone if you do indicate your objections, but bear in mind that is the approach I will adopt.
PN900
MR NEIL: If your Honour pleases.
PN901
THE SENIOR DEPUTY PRESIDENT: You may just wish to indicate the objections rather than having them determined each time.
PN902
MR NEIL: I am very grateful to your Honour. Paragraph 26, the first sentence. If the first sentence is being tendered as evidence only of the hospital's appreciation of the VMOs motivation then I should not object.
PN903
MR TRACEY: That is all it is put for.
PN904
MR NEIL: Paragraph 29, the - no, I am sorry, your Honour. I withdraw that. Perhaps I should formally object to the first sentence in paragraph 29, but I understand your Honour will not need to rule on it in the light of your Honour's observation.
PN905
THE SENIOR DEPUTY PRESIDENT: On the basis of obligations under contracts?
PN906
MR NEIL: Yes, it is a sort of wrapped up proposition of - - -
**** KIMBERLEY PIERCE XN MR TRACEY
PN907
THE SENIOR DEPUTY PRESIDENT: Yes, I understand.
PN908
MR NEIL: - - - fact and law.
PN909
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.
PN910
MR TRACEY: Thank you. Ms Pierce, could you go please to paragraph 16 on page 6 of your statement, and you there commence to deal with the contract negotiations that you have engaged in with VMOs over the last two years when you have been in your present position. Approximately how many contracts have you negotiated on behalf of the hospital with VMOs during that period?---Approximately 15.
PN911
And what is the shortest period of time that it has taken you to negotiate any one of those contracts?---Two months.
PN912
Could I ask you to turn your attention, please, to paragraph 33. You're there dealing with - or there commenced to deal with the issue of the differences in the arrangements that various VMOs have with the hospital, and when one goes over the page, one finds that in paragraph 34 you identify one of those differences as the arrangements for payment of the VMOs. You mentioned when you were clarifying one of the matters you raised in paragraph 19 at the outset of your evidence that there is an arrangement under which some VMOs are engaged on a locum basis. Is that right?---Yes.
PN913
And could I ask you to look at this locum contract?---Thanks.
PN914
Is that a locum sessional contract between the hospital and a Dr Brendan Klar, an orthopaedic surgeon?---Yes, it is.
**** KIMBERLEY PIERCE XN MR TRACEY
PN915
Yes. And why was it necessary - well, perhaps before I move that, the period of the engagement as appears in the schedule which is on the penultimate page of the bundle is for two months, from 3 January to 2 March this year. Is that right?---That's correct.
PN916
Why was it necessary to engage a locum orthopaedic surgeon for that period?---One of our orthopaedic surgeons, Dr Kevin Woods, had an injury and was off sick.
PN917
And if you stay with that schedule, you will see that the arrangement under which Dr Klar was to be paid was through an agreement with Dr Woods. Is that right?---That's correct.
PN918
Yes. And were you consulted at any stage about the nature of that arrangement?---The payment arrangement?
PN919
Yes. Were you told what arrangement Dr Woods and Dr Klar had come to for payment?---The only - it was a very informal verbal arrangement and Dr Kevin Woods said that he would remunerate him at the same amount that I would normally remunerate Kevin Woods. That was all it was. Nothing in writing.
PN920
And as a result of Dr Klar entering into this contract, did the hospital pay him any money directly for his services?---No.
PN921
I tender that locum contract, if the Commission pleases.
PN922
MR NEIL: No objection.
**** KIMBERLEY PIERCE XN MR TRACEY
PN923
PN924
MR TRACEY: And, Ms Pierce, are you aware of - I withdraw that. In the two-year period during which you have been responsible for negotiating contracts with the VMOs, approximately how many locum sessional contracts have you organised to cover doctors who were away?---Of this nature?
PN925
Yes?---There's only two others of this nature. The other locum contracts are specifically drawn up as normal sessional contracts.
PN926
Thank you. If you would stay there, please.
PN927
THE SENIOR DEPUTY PRESIDENT: Any questions, Mr Nolan?
PN928
MR NOLAN: No questions to ask.
PN929
PN930
MR NEIL: Ms Pierce, can I just ask you to stay for a moment, with it Dr Klar or Dr Young's locum sessional contract?---Dr Klar.
PN931
Dr Klar. Exhibit ACT2, for a moment please. You told his Honour that you have negotiated only two locum sessional contracts of the nature shown in exhibit ACT2. Have you negotiated other locum contracts?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN932
How many?---About five or six, maybe more.
PN933
Well, what was the essential difference between the locum sessional contracts of the kind that you see before you now in exhibit ACT2 and the other locum contracts that you have negotiated?---The orthopaedic surgeons have annualised contracts, so this method makes it a lot easier for us when we do locums orthopaedic surgery, in that some of the specialities they have sessional contracts, therefore if they are to take sick leave or annual leave, then we just don't pay them for that period of time. We draw up just a straight forward and locum contract that then we pay them directly.
PN934
I see. The arrangement that you entered into with Dr Woods and Dr Klar was one that suited the hospital because of the arrangements that the hospital had with Dr Woods, for the payment of an annual fee, is that right?---That's right.
PN935
Correct?---Yes.
PN936
Thank you. Now, did Dr Woods introduce Dr Klar to the hospital?---Dr Klar was on our traineeship scheme, he was accredited registrar at the hospital.
PN937
I see. Who suggested that Dr Klar might stand in for Dr Woods, as his locum - - -?---Kevin.
PN938
- - - on the occasion of this contract?---Dr Woods.
PN939
And he did so in the context of seeking the hospital's approval for the delegation of his responsibilities to Dr Klar?---Yes.
PN940
The hospital retained the right to refuse - - -
**** KIMBERLEY PIERCE XXN MR NEIL
PN941
THE SENIOR DEPUTY PRESIDENT: I think the answer to that question was "Yes"?---Yes.
PN942
I appreciate your problem, but we cannot record a nod?---Okay, sorry.
PN943
MR NEIL: The hospital retained the right not to approve Dr Klar, is that correct?---Yes.
PN944
Just as it retains the right whenever a visiting medical officer offers up a locum for the hospital's approval not to approve that locum, is that correct?---Yes.
PN945
And that right, on the part of the hospital is absolute, is it not?---Yes.
PN946
That is, the right not to approve a person that a visiting medical officer puts forward as a locum, in the event of that visiting medical officer's absence, is that correct?---Yes.
PN947
Now, may I hand - or ask the court officer to hand to you, a copy of Dr McNicol's statement. It's in a folder, the folder contains other statements. I have a copy for the witness, if it please, your Honour.
PN948
THE SENIOR DEPUTY PRESIDENT: Yes.
PN949
MR NEIL: Your Honour may find it convenient to follow the cross-examination by reference to this material.
PN950
Now, Dr McNicol's circumstances are among those that you have addressed in your statement, is that correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN951
I want to ask you about some aspects of Dr McNicol's contract with the hospital. You will find a copy of that contract in annexure A to Dr McNicol's statement and that immediately follows the page numbered 5 at the end of his statement. If you look at the bottom right hand corner of the pages of the statement proper, and turn to page 5 and then turn over one more page and hopefully you'll find annexure A. All right. And you recognise that as a copy of Dr McNicol's annualised contract, is that correct?---Yes.
PN952
I want to ask you about some features of this contract if you please. Would you be good enough to turn to page 3 of the contract and you'll see the page numbers in the bottom left hand corner. Do you have that?---Yes.
PN953
Recitals A and B, are they - are those recitals in terms that are common to the annualised contracts that the hospital enters into with other visiting medical officers?---Yes.
PN954
Would you turn to page 4, please and have a look at clause 2.1. Is clause 2.1 common to the contracts that the hospital has with other visiting medical officers, at least those that are annualised contracts?---Yes.
PN955
2.2, please. May I ask the same question. Is that provision common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN956
Now, just stay with 2.2 for a moment, please. The hospital, as you have said in your statement, employs salaried medical practitioners, is that correct?---Yes.
PN957
Both as staff specialists and otherwise, is that correct?---Just staff specialists or VMOs.
PN958
Thank you. Now, as to staff specialists then, are they employed by the hospital to provide professional services to patients at the hospital?---Yes, they are.
**** KIMBERLEY PIERCE XXN MR NEIL
PN959
And are they employed, that is, are staff specialists employed, to provide those professional services at the request and direction of the hospital?---Yes, they are.
PN960
Are those salaried and staff specialists responsible for the medical care and treatment that they administer in respect of patients admitted under their care?---Yes.
PN961
Clause 2.4, please, top of page 5, if you have that. Is clause 2.4 common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN962
Clause 2.5 - is that a common provision?---I believe so.
PN963
Yes. Is it in a standard form that the hospital has employed for the purposes of other contracts?---I don't know the - don't know.
PN964
You don't know?---No.
PN965
Sorry. Thank you. Clause 2.6 - is that common provision that is common to other annualised contracts that the hospital has with other visiting medical officers?---Yes, it is.
PN966
Right. Clause 3.1 I want you to assume is one of a number of provisions in this contract which have the effect that the contract is for a fixed term subject to early termination on notice and for cause. Would you make that assumption?---Yes.
PN967
Does that assumption accord with your understanding of the contract?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN968
Does that understanding of the contract inform your understanding of other contracts that the hospital has with other visiting medical officers?---That we can terminate?
PN969
That is, that the hospital has contracts with other visiting medical officers which are for a fixed term, subject to early termination on notice and for cause?---Yes.
PN970
Clause 4.1, please. Is that common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN971
And clause 4.3?---Yes.
PN972
Clause 5.1, please. Clause 5.1 is the first you will see of a number of provisions that deals with hospital documents and clinical records. Do you see that?---Yes.
PN973
Right. Clause 5.1 - do you see that the - that Dr McNicol in this case is required to maintain on the relevant hospital documents a record of all services provided by him to each patient, being a record appropriate to the circumstances and which conforms to the standards of the Australian Council of Health Care Standards? Do you see that?---Yes.
PN974
And then there are some further more detailed requirements stipulated in the balance of clause 5.1, a clause which is numbered 5.10 - in 5.3?---Yes.
PN975
Do you see that?---Yes.
PN976
All right. Now, do salaried medical practitioners employed at the hospital have an obligation to maintain on the relevant hospital documents a record of all services that they provide to each patient?---No, they don't.
**** KIMBERLEY PIERCE XXN MR NEIL
PN977
All right. Who has that responsibility in the case of salaried medical practitioners?---With the VMOs, they have to make a record of all the patients that they come in to see, etcetera. Salaried staff specialists don't have to do that.
PN978
Yes. If a salaried staff specialist makes an observation of a patient relevant in the judgment of that medical practitioner to the care and treatment of the patient, must that fact be recorded?---Yes.
PN979
Yes. And either by them or by a delegate for whose record the salaried staff specialist has the ultimate responsibility. Is that correct?---Yes.
PN980
And if a salaried staff specialist makes a diagnosis based on such an observation, must they similarly make a record in the hospital documents?---Yes.
PN981
Either themselves or by a delegate for whose record the medical - the salaried staff specialist - I'm sorry - bears the ultimate responsibility?---That's correct.
PN982
Yes. And if they prescribe treatment for a patient, does the same position apply?---Yes.
PN983
And in that respect they have the same obligations in relation to records that visiting medical officers have?---Yes.
PN984
Thank you. Clause 5.6, please, page 7, under the heading "Meetings". Do you have that?---Yes.
PN985
And is that a provision which is common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN986
Clause 5.8 (b), please, under the heading "Registration and insurance". Now, that position, as I think you have made it clear in your statement, no longer applies. Is that correct?---That's correct.
PN987
The hospital maintains a current professional indemnity policy in relation to visiting medical officers in their treatment of public patients at the hospital. Is that correct?---Yes.
PN988
That is, in relation to the work that they perform as visiting medical officers in accordance with contracts like the one you have before you. Is that correct?---Yes.
PN989
Clause 5.10, please, under the heading "Attendance". Is that a provision which is common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN990
Now, is it the position that you seek to make in your statement that the hospital does not always insist on the right which is conferred by clause 5.10, for example?---I'm not sure what you're saying.
PN991
I'll come back to it in another way. I'll withdraw the question and we'll return to it a little later. Now, 5.11, is that a provision which is common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN992
Does the same position obtain in relation to clause 5.12?---Yes.
PN993
Clause 5.13?---Yes.
PN994
Clause 5.14?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN995
Clause 5.15?---Yes.
PN996
5.18 please, does the same position obtain in relation to 5.18?---Yes.
PN997
5.22?---Yes.
PN998
Do salaried staff specialists employed by the hospital have an obligation to comply with the hospital's policies and procedures in relation to the matters stipulated in clause 5.22?---Yes.
PN999
Do salaried staff specialists or any of them that are employed by the hospital have obligations similar to those which are described in clause 5.18?---Yes.
PN1000
Would you be good enough to turn to page 10 please? Is clause 6.1 a clause which is common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN1001
Does the same position obtain in relation to clause 6.2?---Yes.
PN1002
Does the same position obtain in relation to clause 7.1?---Yes.
PN1003
And that's one of the provisions that I asked you about a little earlier, namely a provision which enables the hospital, as you understand it, to terminate the contract of a visiting medical officer prior to the expiration of the fixed term, in this case on three months notice?---Yes.
PN1004
THE SENIOR DEPUTY PRESIDENT: Are you talking about clause 7.1?
**** KIMBERLEY PIERCE XXN MR NEIL
PN1005
MR NEIL: 7.1, your Honour.
PN1006
THE SENIOR DEPUTY PRESIDENT: Well, that is the practitioner may terminate.
PN1007
MR NEIL: I am sorry, if your Honour pleases.
PN1008
7.2 is the clause I admit to. Now, 7.2, is that a provision - you may need to turn the page - and the three months notice is referred to with a little (p) that your Honour has rightly reminded me about. Is 7.2 common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN1009
And is the same position obtained in relation to clause 7.3?---Yes.
PN1010
And if you turn the page please, clause 8, suspension, it goes over to page 13. Is that common to other annualised contracts that the hospital has with other visiting medical officers?---Yes.
PN1011
Turn the page please, a number of pages, to page 15 of the contract, and would you be good enough to look at clause 10.6 please? Is that common to other annualised contracts that the hospital has with other visiting medical officers?---It's only common in the more recent contracts.
PN1012
I see. The hospital sees nothing inconsistent with Dr McNicol's relation with the hospital to require - to stipulate that he is eligible for appointment to managerial positions. That's correct, isn't it?---Yes.
PN1013
And the same would obtain, would it not, in relation to any other visiting medical officer whose contract with the hospital included a provision in the form that you have before you in clause 10.6, is that correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1014
The SMTL that is referred to in the first sentence of clause 10.6, is that the Branch Head Service Management Team Leader of the Canberra Hospital?---That's my position.
PN1015
Yes?---Yes.
PN1016
You hold that position on an appointment by the hospital's Chief Executive Officer, is that correct?---Yes.
PN1017
And if you turn to the schedule please, which begins at page 18, that's a schedule, is it not, which is referred to in clause 4.1 of the contract on page 5?---That's correct.
PN1018
Thank you. And if you have a look at clause - or the first numbered clause 1 in the schedule, could you tell me please whether that provision is an instance of the annualised fee that you mentioned a little while ago?---That's correct.
PN1019
And is the way it works, that the annual fee is a minimum fee which is paid in 12 equal monthly instalments, correct?---Yes.
PN1020
For services provided during the year which in Dr McNicol's case include 11 sessions at a frequency of one elective afternoon operating session each four week period and participation in a on-call roster at the stipulated frequency, is that correct?---That's correct.
PN1021
And then there are provisions in the balance of the schedule for adjusting the minimum fee, having regard to work that Dr McNicol actually performs, is that right?---That's correct.
PN1022
Or rather attendances that he actually makes, is that correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1023
If Dr McNicol were to attend the hospital pursuant to this contract, and during that attendance were not to be - no patient presented for his care or treatment, he would nevertheless still be entitled to be paid, is that correct? For that attendance?---Yes, that's correct.
PN1024
Yes. Would you be good enough to turn to page 19, please? Clause number 3 on page 19, is that a provision which is common to other annualised contracts that the hospital has with other visiting medical officers?---The duration of the leave isn't.
PN1025
Yes. But apart from that?---It's standard.
PN1026
Standard. Thank you very much. You can put Dr McNicol's contract to one side for the moment, but perhaps leave the volume open at that point, lest you need to refer to it for the purpose of answering any questions that I will now ask you about your statement. Do you have a copy of your statement with you? I want to ask you about paragraph 9, please. In particular, about your statement that patients are assigned to an admitting VMO from the date when the Canberra Hospital receives an admission form. All right, do you understand?---No.
PN1027
I want to ask - do you have paragraph 9 of your statement open?---You refer to an admitting VMO.
PN1028
No. Let me just see, we may be at crossed purposes. You have your statement with you?---Yes.
PN1029
Paragraph 9 of that statement?---Yes.
PN1030
Have a look at the third sentence, please. It is on the fourth line of the statement. Do you see that?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1031
Does that sentence require any amendment?---No.
PN1032
All right. I want to ask you about that sentence, please. Do you understand?---Yes.
PN1033
All right. Now, visiting medical officers can first come to see a patient at the hospital if they are called to the hospital's casualty department, is that correct?---Yes.
PN1034
They can also first come to see a patient at the hospital if that patient is admitted by another doctor and who later calls the visiting medical officer to see his or her patient, is that correct?---As a referral.
PN1035
Yes?---Yes.
PN1036
Is there any other circumstance, but for the two that I have just put to you, in which a visiting medical officer would first come to see a public patient at the hospital?---Not that I can think of.
PN1037
In some cases do visiting medical officers first come to see patients not at the hospital, but in their own rooms outside the hospital?---Yes.
PN1038
You are aware, are you not, that some patients that visiting medical officers see in that circumstance are private patients, correct?---Yes.
PN1039
But some are public patients, correct?---Yes.
PN1040
And in those circumstances a visiting medical officer may make the judgment that the patient, whether private or public, requires admission to the Canberra Hospital, correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1041
The practice of the Canberra Hospital is to require the completion of an admission form in respect of every patient who is admitted to the hospital, is that not correct?---Yes.
PN1042
Visiting medical officers can complete admission forms, can they not?---Yes.
PN1043
They may complete an admission form if they first come to see a patient in the hospital's casualty department, is that correct?---No.
PN1044
Who would complete the admission form in that case?---The admitting officer in the emergency department.
PN1045
If the first time that a visiting medical officer sees a public patient is on the referral of another doctor, that patient already having been admitted to the hospital by the referring doctor, it is not necessary for the visiting medical officer to complete another admission form, is that correct?---That's correct.
PN1046
Now, does it follow from the last two questions that I have asked you, and your answers to those questions, that the only occasion on which a visiting medical officer will be called upon to complete an admission form in relation to a public patient is if the visiting medical officer first sees that patient in his or her rooms?---That's correct.
PN1047
Now, when the visiting medical officer comes to consider the question of whether a public patient should be admitted to the hospital, you understand, do you not, that the judgment they are they exercising is a professional judgment?---Yes.
PN1048
You understand, do you not, that in making such a professional judgment, the visiting medical officer is called upon to determine whether in the opinion of the visiting medical officer the public patient requires admission to the hospital? Correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1049
If they make that judgment in the exercise of their professional capacity, are they called upon to categorise the patient according to their - the urgency or otherwise of their requirement for admission?---You're referring to surgical VMOs? Surgeons?
PN1050
I wasn't in particular. Let's for the moment though stay with surgical VMOs. If a surgical VMO comes to the view that a public patient requires admission to the hospital, is the surgical VMO then called upon to exercise a judgment about whether the patient falls into any particular category for the purpose of admission?---For clinical urgency, yes.
PN1051
Yes. There are four categories of admission, are there not, the last one of which requires urgent and immediate admission, and they then fall from that to degrees of - ascending degrees of urgency? Is that right?---There's three main categories - category 1, 2 and 3 - category 1 being the most urgent. Category 4 is a "Not ready for care".
PN1052
A visiting medical officer who's engaged in the - I withdraw that. Having formed the judgments that I've asked you about, the visiting medical officer then completes the admission form. Is that correct?---Yes.
PN1053
And that form is in effect a record of the visiting medical officer's professional judgment that the patient requires admission and their professional judgment as to the category of admission into which they fall. Is that correct?---Yes.
PN1054
Now, if you open dr McNicol's statement again, you will find in annexure E, and if you go to the end of Dr McNicol's contract that I asked you about, to the very end of it, page 19 - or 20 of his annualised contract, if you have that, and you then turn the page - 1, 2, 3 - 4 pages, you'll come hopefully to annexure E, a document which is headed, "Canberra Hospital request for admission". Do you have that?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1055
All right. Now, is that an admission for - at least the form of an admission form?---Yes.
PN1056
All right. Now, the hospital receives the admission form, does it not, and makes a decision about whether and how it will act on that form? Is that correct?---Yes.
PN1057
And that is so, whether the admission form is completed by a visiting medical officer in the circumstances that you have identified or by some other admitting officer. Is that correct?---Yes.
PN1058
The hospital makes a judgment about whether to admit the person who is the subject of the admission form. Is that correct?---We do not make a decision about whether to admit them.
PN1059
Yes?---We - and I - it depends on how you're referring the question. But when we get the request for admission form, if it's from a surgeon, it will then go on to the waiting list, dependent on the category, and then it will depend on where that patient comes up on the waiting list as to when they get admitted. That decision is the decision of the hospital.
PN1060
Thank you. That was the point I wanted to make - or wanted to explore with you. Now, the position is, is it not, that once a public patient has been admitted to the hospital as a public patient, the hospital is not able to assure that patient that the procedure for which they have been admitted will be performed by any particular practitioner? That's correct, isn't it?---That's correct.
PN1061
And the form that each patient completes for the purpose of giving consent to any surgical operation, procedure or medical treatment, so records that fact, does it not?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1062
And you'll see that - if you turn the page, you'll see there a copy of a consent form. Is that correct?---Yes.
PN1063
And that's the standard form that the hospital employs for the purpose that we are discussing, is it not?---Yes.
PN1064
And if one looks at the seventh box on the first page, one sees the stipulation that I have been asking you about, does one not?---That's correct.
PN1065
Now, it follows, does it not, that in relation to the public patients treated by visiting medical officers in their capacity as visiting medical officers, cannot be assured that the visiting medical officer who admits them will be the medical practitioner who undertakes the procedure for which they have been admitted?---That's correct.
PN1066
The same position does not obtain, does it, in relation to private patients admitted under the care of a medical practitioner? That's right, isn't it?---It is expected that the VMO will operate on the private patient. However, that isn't - that doesn't always happen.
PN1067
Now, in the case of surgeons like Dr McNicol, who by his contract has agreed to make himself available for operating sessions at regular intervals, it's the case in relation to visiting medical officers of that kind that subject to their professional judgments they must operate on every public patient who is presented to them during the operating sessions that they have contracted to perform?---No, they can assign it to their accredited registrar.
PN1068
Yes. And they make amongst other things a professional judgment about whether they will do that?---Yes.
PN1069
Yes. And that's what I meant, I'm sorry, when I said, subject to their - put to you the qualification that the proposition was subject to their professional judgments, do you understand?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1070
All right. But subject to that they must operate on every patient who is presented to them during the operating sessions that they have contracted to perform?---Yes.
PN1071
Absent professional judgments based on medical considerations, they don't have the right to refuse to operate on a public patient who is presented to them during a contracted operating session, correct?---Correct.
PN1072
If a surgical visiting medical officer at the Canberra Hospital - I withdraw that. Operating sessions are scheduled in advance, are they not?---Yes.
PN1073
A time for the commencement of the operating session is fixed and a time for its completion, is that correct?---Yes.
PN1074
And a list is drawn up of the public patients who will be operated on during that session by the surgical visiting medical officer who's contracted to perform that session, correct?---Yes.
PN1075
If the surgical visiting medical officer undertaking a contracted operating session wants to continue that session beyond the scheduled completion time, is it the case that the visiting medical officer must seek and obtain the hospital's approval to do so?---Yes.
PN1076
Dr McNicol is an orthopaedic surgeon, is he not?---Yes.
PN1077
From time to time orthopaedic surgeons who perform work at the Canberra Hospital are called upon to make judgments about whether public patients require prosthetic or other devices for their treatment, is that not right?---Yes.
PN1078
If a surgical visiting medical officer makes a judgment that a public patient requires a particularly expensive device for the purpose of their treatment, is it the case that they must get your approval or that of one of your delegates for that purpose?---No, they don't.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1079
Are they required to do so?---No, they're not. They're not, but what would happen is the accredited registrar will order the implant and it will be the theatre manager who will bring it to my attention.
PN1080
And why is it brought to your attention?---If it's a particularly expensive implant.
PN1081
Yes. For what purpose is it brought to your attention?---To say whether we can afford it or not.
PN1082
And if you decide that you can't afford it, what happens?---I have to go back to the VMO and re-negotiate.
PN1083
And if as a consequence of that re-negotiation you determine that the hospital can't afford it, what happens then?---The implant isn't purchased.
PN1084
Is not purchased? When a surgical VMO like Dr McNicol is rostered on the on-call roster they are required, are they not, to answer call backs to see public patients for the time that they're on the roster, is that correct?---Yes.
PN1085
Can a surgical VMO, who is on an on-call roster, refuse to treat a public patient who they are called upon to see, when they are on the roster?---No.
PN1086
The whole purpose of the on-call roster, is it not, is that surgical VMOs, when on the roster, are rostered by the hospital to be available to attend public patients?---That's correct.
PN1087
As required by the hospital?---That's correct.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1088
Correct. In paragraph 10 - I withdraw that. Let me just go back to one aspect of paragraph 9, particularly the sentence about which I have been asking you, that's the third sentence in paragraph 9. It's the case, is it not, that the admitting visiting medical officer does not have a contractual right to the continued care and treatment of a patient that is admitted on that visiting medical officer's judgment?---It is the responsibility of the VMO to care for the patient that they've admitted. Now, the non-accredited registrar will assume that would be his delegate, but the VMO, it's their responsibility.
PN1089
And the patient doesn't have a right to insist on being treated by the visiting medical officer who has admitted that patient?---No.
PN1090
In paragraph 10, you discuss the pre-admission clinics that precede operations or procedures, do you see that?---Yes.
PN1091
The purpose of a pre-admission clinic, of the kind that you discuss in paragraph 10, is it not, is partly to obtain a history relevant to the operational procedure that is to be conducted?---Yes.
PN1092
And partly to enable an assessment of that patient to be made by a representative of the anaesthetic department?---Yes, for fitness for surgery.
PN1093
Yes. And those two purposes are, in effect, the purpose of the - together, the purpose of the pre-admission clinic, is that correct?---Yes.
PN1094
If a patient does not attend a pre-admission clinic, they simply don't qualify for surgery, that's the case, isn't it?---Yes.
PN1095
Because they haven't undergone the necessary preliminary step?---That's right.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1096
That is a preliminary step required by the hospital?---To ensure their fitness for surgery, that's correct.
PN1097
Yes, thank you. In paragraph 12, you deal with the way in which surgical operating lists are compiled and settled, do you see that?---yes.
PN1098
Now, that's something that is done by the hospital in consultation with the visiting medical officer, who will undertake the surgery, to which the list - the session to which the list pertains?---Yes.
PN1099
Is that correct?---Yes.
PN1100
The visiting medical officer cannot insist, over the hospital's objection, on adding a patient to that list. That's correct, isn't it?---That's correct.
PN1101
The position is, is it not, that the hospital engages in consultation with surgical VMOs about the content of operating lists, at a professional level?---Yes.
PN1102
Because the hospital wants their professional judgments?---That's correct.
PN1103
That's correct. But the hospital has the final say about who is on each VMOs operating list, correct?---Yes.
PN1104
Can you turn to paragraph 21 of your statement, please? The position is, is it not, that some at least, of the surgical VMOs who perform work at the Canberra Hospital, have the capacity to give direction to staff employed by the hospital in relation to the provision of medical treatment?---Yes.
PN1105
That is, the provision of medical treatment to public patients seen by visiting medical officers, in their capacity as visiting medical officers, correct?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1106
The nature of the control that visiting medical officers exercise over the treatment of their patients is one which is dictated by the visiting medical officers professional judgment about the care and treatment that the patient requires, is that not correct?---Can you repeat the question?
PN1107
Sorry. Let me withdraw the question and invite you to turn to paragraph 23 of your statement, please? In paragraph 23 you talk about VMOs exercising control over the treatment of their patients. What I wanted to explore with you is this. Is it the case that, as you appreciate it, the control that visiting medical officers exercise over the treatment of their patients, is one that is governed by the visiting medical officers professional judgments about the care and treatment that the patients require?---Yes.
PN1108
When you talk about patients in connection with the work of VMOs, may we take it - may his Honour take it, that what you're talking about are public patients, seen by visiting medical officers, in their capacity as visiting medical officers?---Yes.
PN1109
Is that right?---Yes.
PN1110
And your references to patients throughout your statement, should be understood in that context, is that right?---That's correct.
PN1111
Now, you would expect, would you not, that in their treatment of patients, the hospital's salaried staff specialists would be governed by professional judgments about what the treatment - the care and treatment of patients requirements?---Yes.
PN1112
That's correct isn't it?---Yes.
PN1113
In paragraph 24 of your statement, you talk about the supervision that VMOs exercise in their work with registrars employed by the hospital. Do you see that?---Yes.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1114
The supervision, by VMOs, of employed registrars, is not seen by the hospital as being inconsistent with their capacity as visiting medical officers, do you agree with that?---Yes.
PN1115
Paragraph 25, please. In paragraph 25 you say, do you not, that the hospital has not directed Dr McNicol to teach or otherwise involve himself in the training and managing of interns, residents or registrars and that the hospital does not penalise visiting medical officers for failing to engage in teaching. That is effectively what you say - - -?---Yes.
PN1116
- - - in paragraph 24, is it not?---That's correct.
PN1117
Of course the hospital, as we have seen in looking at Dr McNicol's contract, has a contractual obligation to carry out teaching as a normal component of the performance of his clinical practice under the contract. That's right, isn't it?---Yes. Yes.
PN1118
And clause 5.18 is the relevant provision in Dr McNicol's contract, and that is a provision which you told his Honour was common to other annualised contracts that the hospital has with other visiting medical officers?---That's correct.
PN1119
Correct? Right. Now, the position is, is it not, that although the hospital has the contractual right conferred by clause 5.18, it does not, in practice, insist on that right?---That's correct.
PN1120
Yes. The same would be true, would it not, in relation to other aspects of your statement - I withdraw that. Paragraph 28, please. In paragraph 28 you deal with one aspect of Dr Chandran's statement, do you not, relating to his work as the head of the hospital's neurology department?---Neuro-surgical department.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1121
Neuro-surgical department, I am sorry?---Sorry.
PN1122
Now, as you told his Honour at little earlier, it is not your view, or that of the Canberra Hospital, that it is inconsistent with the capacity - I withdraw that. You told his Honour a little earlier, did you not, that the Canberra Hospital does not consider that the exercise of managerial responsibilities is inconsistent with a visiting medical officer's position as a visiting medical officer. That's correct, isn't it?---I'm not sure what you're trying to say.
PN1123
There is nothing about exercising the responsibilities that Dr Chandran has as a departmental head which, in the view of the Canberra Hospital, is inconsistent with his position as a visiting medical officer? The two can sit comfortably together, can't they?---That's correct.
PN1124
Yes. Dr Chandran, for example, is responsible for drawing up rosters pertaining to the work of his department. That's right, isn't it?---Yes.
PN1125
And for carrying out other administrative work of that nature. Correct?---Yes.
PN1126
There are a number of departments in the hospital, are there not, comprised entirely of visiting medical officers. Is that right?---Yes.
PN1127
And those departments are headed by visiting medical officers?---Yes.
PN1128
Would you look at paragraph 29, please. In particular, the first sentence in paragraph 29. Having done so, would you tell me, please, whether your position is essentially this; that you consider that the contract between the hospital and a visiting medical officer controls the rights and duties that each have to the other?---Repeat the question, please.
**** KIMBERLEY PIERCE XXN MR NEIL
PN1129
Do you consider that the contract between the hospital and a visiting medical officer is the instrument that controls the rights and duties that each have to the other?---Yes.
PN1130
It's the governing instrument. Is that not right?---Yes.
PN1131
The hospital has a contractual right to insist upon those duties stipulated in the contract. Correct?---Yes.
PN1132
It has no contractual right to insist upon duties which are not within the scope of the contract. Correct?---Correct.
PN1133
Paragraph 31, please. When you have had a chance to read it, let me know. Now, the hospital has taken the view, has it, that the Public Sector Management Act of 1993 does not apply to visiting medical officers?---That's correct.
PN1134
And it has taken the view, has it not, that for that reason what you described as the disciplinary proceedings under the Public Sector Management Act are not available in the case of visiting medical officers. Correct?---Yes.
PN1135
Thank you very much.
PN1136
PN1137
MR TRACEY: Why is it, Ms Pierce, that the hospital has taken that view as to whether or not VMOs are subject to the Public Sector Management Act?---They're not employees of the hospital, they're contractors.
**** KIMBERLEY PIERCE RXN MR TRACEY
PN1138
MR NEIL: Would your Honour note my objection to that answer? But I shall not ask your Honour to rule - - -
PN1139
THE SENIOR DEPUTY PRESIDENT: No, I understand.
PN1140
MR NEIL: - - - or take it further.
PN1141
MR TRACEY: And is that a view that you have expressed to any VMO?---That they're not employees? No.
PN1142
Has any VMO ever expressed the view to you that he or she should be treated as if he or she were subject to the Public Sector Management Act?---No.
PN1143
You were asked some questions about the circumstances in which the hospital ceased to insist on paragraph 5.8(b) of the type of contract which Mr McNicol has with the hospital. That's the provision that requires a practitioner to supply written proof to the hospital of amongst other things that he or she is the holder of a current professional indemnity policy. Would you tell his Honour please the circumstances in which the hospital came not to insist on that provision?---With the current indemnity crisis in Australia it was - a lot of the VMOs were going to withdraw their practice from the hospital to provide a service to public patients because of the indemnity issue unless the government covered them. That's basically it in a nutshell. So, the government agreed that we would professionally indemnify the VMO group the same way as we do staff specialists to ensure that we continue to get service.
PN1144
And in order for a VMO presently to be indemnified by the ACT for work done in treating public patients, what procedural steps are necessary?---They have to provide current registration with the Medical Board, they have to have clinical privileges, and then they apply to ACT Health for cover of liability.
**** KIMBERLEY PIERCE RXN MR TRACEY
PN1145
Is there any formal documentation that a VMO now enters into in order to get coverage that is provided effectively through the ACT?---My understanding is they apply directly to the Department of Health and they have to sign a cover of liability form.
PN1146
Now, you were also asked some questions about a statement you made at paragraph 9 of your statement, the third sentence, which deals with the question of a patient remaining assigned to the VMO responsible for the admission form of the patient, and that led to some questions about operating sessions, and you were asked whether a VMO could be required to operate on somebody who was a public patient but in respect of whom that VMO had not been responsible for an admission form. As a matter of practice is it a frequent occurrence that a name would appear on an operating list that was to be dealt with by a particular VMO that was not a person who that VMO had as a patient assigned within the hospital?---Are you - - -
PN1147
It's a long question?---Yes.
PN1148
I should have - I'll break it down to make it clearer. As I understand your evidence, and please correct me if I'm wrong, it is that at an early stage of the association with the hospital a public patient who is likely to be the subject of surgery is seen by a VMO?---Yes.
PN1149
And unless that is a patient requiring very urgent surgery that patient goes on a waiting list?---Yes.
PN1150
At some stage that patient's name will have gone up the waiting list sufficiently far to be able to be put on an operating list?---Yes.
PN1151
And that task I think I said was performed by a clerk with appropriate training?---That's correct.
**** KIMBERLEY PIERCE RXN MR TRACEY
PN1152
To make up those lists?---Yes.
PN1153
And when the clerk is making up those lists the clerk will know that a particular VMO has been assigned to a particular operating session?---Yes.
PN1154
And so the clerk has to then sit by and choose which patients are going to be put on that list for that operating session to be performed by a particular VMO?---Yes.
PN1155
What, if any, protocols or instructions guide the clerk to decide which patients go on that operating list?---The rule of thumb is it's - on the waiting list, it's the next patient that's due to - that's on the top of the waiting list for that particular category. We always schedule category 1 patients first, and then it will fall if there's any gaps that we'll schedule a category 2 for that VMO.
PN1156
And does it often happen that - in the non-urgent category - that a patient would be assigned to an operating list to be performed by a surgeon other than the VMO who has had responsibility for that patient up to that time?---No. It goes under the VMO who has responsibility for that patient.
PN1157
Thank you. I have no further questions. Unless you do, sir, may the witness be excused?
PN1158
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you very much for your assistance, Ms Pierce. You are excused from further attendance. Before you leave, could you hand exhibit A2, if you still have it, to my associate - I am sorry - ACT2. Thank you.
<THE WITNESS WITHDREW [3.01pm]
PN1159
MR TRACEY: Dr Griffin, your full name is Robert Charles Griffin?---Yes.
PN1160
And you are the director of medical services at the Calvary Hospital?---Yes.
PN1161
And that is your business address?---Yes, it is.
PN1162
And you have cause to be prepared two witness statements for the purpose of this proceeding, the first of those dated 5 February 2003 and the more recent one 6 June?---That is correct.
PN1163
And have you had occasion to read those statements recently?---Yes, I have.
PN1164
Yes. And insofar as the second statement is concerned - that is the June statement - there are two matters you would seek to correct, the first appearing in paragraph 11. Is that right?---Yes, it is.
PN1165
And would you tell his Honour what change you wish to make to paragraph 11?---Yes. In paragraph 11 I refer to two points referred to by roman numerals (i) and (ii) when in fact it should be "2" and "3".
PN1166
Yes. I'm sorry, I didn't intend to put you through a memory test. I thought you had a copy of your statement with you. I correct that. The change you want to make is at the top of page 4, the first line, where it says, "categories (i) and (ii)", that should read, "categories 2 and 3"?---2 and 3, yes.
PN1167
Yes?---That is correct.
PN1168
THE SENIOR DEPUTY PRESIDENT: And roman numerals, or is that - - -?---Sorry - as - whatever they are?
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1169
Not roman numerals?---Not roman numerals.
PN1170
Which means on page - the first - page 11, it should refer to as category 1 as an arabic 1, is it?---Yes.
PN1171
Thank you.
PN1172
MR TRACEY: And the other change that you wanted to make is in paragraph 31 where there's a typographical error, the first word on the fourth line, instead of "compromise" it's "comprises"?---I would prefer that change to be noted, thank you.
PN1173
Subject to those changes, doctor, are the statements true and correct in every particular?---Yes, it is.
PN1174
Yes. I tender them, if the Commission pleases.
PN1175
MR NEIL: Can I deal with a number of objections?
PN1176
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1177
MR NEIL: I think your Honour will be able to dispose of in the same one as before? The first statement - the statement of 5 February - paragraph 18, your Honour will see that paragraph 18 includes an extract from clause 3.2 of variations to standard contracts between Calvary and VMOs. It is to the next two sentences immediately after that extract that I object. To the first of those sentences, it is impossible for the witness to say - to make the statement made in that sentence except from his direct knowledge. So that if that sentence were to be tendered on that basis, that is, it is confined to the witness's own knowledge, then I should not have any objection to it.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1178
MR TRACEY: Well, it has to be put on the basis of his knowledge.
PN1179
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Tracey.
PN1180
MR NEIL: And the next sentence I assume is tendered on the same basis.
PN1181
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1182
MR NEIL: And your Honour will take it as an expression of opinion as to the reaction and motivations of other people. If it is admitted on that basis, then I should not have any objection. If that is the position, then could I move to paragraph 24? The objection will need to be teased out of the first sentence, your Honour. I object to the word "both" and the words "and VMOs" immediately before and immediately after the word "Calvary".
PN1183
It does not seem to me to fall under the category that my learned friend discussed in connection with Ms Pierce's statement or the basis upon which he tendered evidence to a similar effect given by her. Your Honour will recall that evidence about this matter was tendered on the basis that - Ms Pierce's statement - on the basis that it related only to the view of the hospital, but it does not seem to me that one can read this sentence so confined.
PN1184
MR TRACEY: Well, this cannot be confined to the view of the hospitals, but I think it can be confined within the general principle on the basis that it is this witness' understanding of why VMOs with whom he, on behalf of the hospital contracts, operate or rather opt to include in the contract that they sign, a provision that expressly adopts the principal/contractor relationship. They are, ultimately, the question of law will be whether that mutually agreed terminology is accurate in reflecting the true legal nature of the relationship, but one cannot gainsay the proposition that they have opted expressly for that relationship.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1185
THE SENIOR DEPUTY PRESIDENT: Then goes on to say though, why they opted, does it not?
PN1186
MR TRACEY: Yes.
PN1187
THE SENIOR DEPUTY PRESIDENT: Well, if you say that this is this witness' understanding, then, insofar as this is relevant, the weight to be given to it would depend on you establishing the basis of the understanding.
PN1188
MR TRACEY: Indeed, and it will be a matter that will be teased out with the witness in his evidence-in-chief.
PN1189
THE SENIOR DEPUTY PRESIDENT: Mr Neil, can we leave it in on that basis, that it is this witness' - it is put on the basis that it is this witness' understanding, the weight to be given to it will depend on me being satisfied that the understanding is one that I should accept?
PN1190
MR NEIL: Could I leave it on the basis, your Honour, that I cannot make the least concession, as to that last proposition, or indeed the relevance of the witness' understanding on that point. But I do not wish to be heard any further.
PN1191
THE SENIOR DEPUTY PRESIDENT: Yes. I did indicate that, insofar as when I told Mr Tracey that insofar as it is relevant, he needs to establish the basis of the understanding. Yes.
PN1192
MR NEIL: Paragraph 26. The first sentence in paragraph 26, is the expression of the witness' opinion, on one aspect of the ultimate fact that - - -
PN1193
THE SENIOR DEPUTY PRESIDENT: And would be treated as such by me.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1194
MR NEIL: As your Honour pleases.
PN1195
THE SENIOR DEPUTY PRESIDENT: As indicated to you.
PN1196
MR NEIL: I do not wish to take - - -
PN1197
THE SENIOR DEPUTY PRESIDENT: I do not take it as being evidence, but they are public servants, it is this witness' view.
PN1198
MR NEIL: And the second sentence - - -
PN1199
THE SENIOR DEPUTY PRESIDENT: I am sorry, they are or are not public servants.
PN1200
MR NEIL: Yes, of course, your Honour. I simply wanted to note it.
PN1201
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1202
MR NEIL: And I am content to move on, on that basis. The second sentence, your Honour, suffers from the same vice as earlier. It is a speculation on the part of this witness about the actions of others, in a sort of wrapped-up form.
PN1203
THE SENIOR DEPUTY PRESIDENT: Yes. Well, again, it is something that the - it is an expression of opinion, more than anything, it is an eye view of this witness and should be treated as such, Mr Tracey. Mr Tracey?
PN1204
MR TRACEY: Yes. I intend to ask him some questions about that.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1205
MR NEIL: Nothing further in that statement, if it please, your Honour.
PN1206
THE SENIOR DEPUTY PRESIDENT: What about the other statement?
PN1207
MR NEIL: Yes. That is the statement of 6 June 2003, paragraph 22.
PN1208
THE SENIOR DEPUTY PRESIDENT: 22?
PN1209
MR NEIL: 22, if it please, your Honour, page 6. I do not object to the first two sentences but I do to the next two, indeed the balance of the paragraph, that begin with the word "However" on the fourth line. This is pure argument, if it please, your Honour. Then, it does have embedded within it the expression of an opinion and I take it that your Honour would receive it in that way, but it really goes beyond that, into the realm of argument pure and simple.
PN1210
THE SENIOR DEPUTY PRESIDENT: Mr Tracey?
PN1211
MR TRACEY: I am not sure that I understand the point that is being made, your Honour. This witness is expressing a view as to a matter of fact, the degree of control exercised by the hospital, over VMOs and vice versa. He is stating the position as it is on the ground in Calvary Hospital. I would have thought that is not objectionable. He can be cross-examined about it if my friend takes the view that it does not accurately reflect the factual position.
PN1212
MR NEIL: With respect to my learned friend, your Honour, these two sentences do not bear that construction. What the witness does in the first two sentences of paragraph 22, is to identify that the hospital has a degree of control over the process of treating a hospital patient and that that impacts upon the VMO. Then he does two things in the last two sentences. The first is that, having identified that matter of fact, he goes on to argue that it is not indicative of control of the VMO by the hospital, or control of the hospital by the VMO. And that is purely argumentative. It says it has no factual content at all. The factual content is borne by the first two sentences.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1213
In the fourth sentence, the witness goes on, again in a purely argumentative way, to give a particular characterisation to the relationship, a wrapped-up opinion and argument, when he talks about a joint exercise. The same point will apply to the first two sentences of the next paragraph, to which I also object, where the witness descends to the use of the expression "partnership or joint venture". Now, that does not equip your Honour with any fact. It simply equips your Honour with an argumentative characterisation by the witness, of facts, which he may or may not have set out earlier in his statement.
PN1214
THE SENIOR DEPUTY PRESIDENT: Mr Tracey?
PN1215
MR TRACEY: Your Honour, with respect, it is a matter of fact. If it is a partnership or joint venture between the specialist and the hospital, a relationship between the hospital and the VMO, it is not a subservient relationship. That is a question of fact as to how the relationship operates on the ground. Again, it is a matter that can be properly subject to cross-examination. VMOs are fiercely independent, question of fact, and if our friend wants to test it, then he can do that, but it is not objectionable as it stands.
PN1216
THE SENIOR DEPUTY PRESIDENT: But is it not assertions by this witness of his view, his opinion of what is the factual situation?
PN1217
MR TRACEY: Well, it is his understanding of what the factual position is, but they are nonetheless facts. I mean, any witness' perception of the facts will vary from time to time from what other witnesses may perceive to be the facts. But it does not render them any less factual for the purposes of objection. He says VMOs are fiercely independent. He may well have seen instances where that independence has been fiercely asserted. That is a fact.
PN1218
THE SENIOR DEPUTY PRESIDENT: Well, it might be a fact that if VMOs on occasion have asserted fierce independence, does that necessarily mean, though, that you can draw a conclusion that VMOs are fiercely independent? I think that is the distinction that is being made? And it is a conclusion drawn from what may well be circumstances this witness can give evidence about?
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1219
MR TRACEY: Yes. Well, it is certainly a judgement no doubt based on experience, and no doubt the validity of that judgement can be tested. The proposition can be developed in evidence-in-chief and challenged in cross-examination, and perhaps that is the best way of handling it, your Honour.
PN1220
THE SENIOR DEPUTY PRESIDENT: Yes. I would agree with you on that. I think that is the appropriate way to deal with it. I am prepared to lead them in - I can indicate to the representatives of the parties that they are matters which may require substantiation before they can accept them as assertions of fact.
PN1221
MR NEIL: I do not wish to be heard any further in relation to that, of course, your Honour. Would your Honour be good enough to note informally that I have objected on the bases discussed, not only to the last two sentences of paragraph 22 but the first three sentences in paragraph 23. And I take those first three sentences in paragraph 23 to be encompassed by - embraced by your Honour's ruling.
PN1222
THE SENIOR DEPUTY PRESIDENT: They are indeed.
PN1223
MR NEIL: And I rather suspect that your Honour will rule in the same way, in relation to the first sentence in paragraph 39, and I do not wish to be heard any further in relation to that. Would your Honour note the objection?
PN1224
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1225
MR NEIL: If your Honour pleases. There are no further objections to Dr Griffin's second statement.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1226
PN1227
MR NEIL: Sorry, I did not quite - did your Honour mark Ms Pearce's statement, I am sorry?
PN1228
THE SENIOR DEPUTY PRESIDENT: Yes. It is ACT1.
PN1229
MR NEIL: Thank you.
PN1230
MR TRACEY: Dr Griffin, have you got your first statement with you as well as your second?---No, I have not.
PN1231
Could I provide you with a copy?---Thank you.
PN1232
Could I invite you to turn over to paragraph 24, which you will have heard is the subject of some discussion a few minutes ago. In that paragraph, you say that both Calvary and VMOs offer a principal contractor relationship, and you assign certain reasons for that view. Would you tell his Honour why it is that - well, perhaps first I will go back a step. The basis of the understanding that is reflected in that paragraph - you see, you say both Calvary and VMOs opt for that relationship for a reason. What I would like you to tell his Honour is upon what foundation you have reached that view?---Your Honour, I have reached that view on the basis that from the hospital's point of view - from Calvary's point of view, dealing with our Visiting Medical Officers as contractors allows
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
us the degree of flexibility as to how much of their resources we require and we can change that amount of requirement. Our contracts do have a specified period of time to them but even within that period of time, we can adjust either up or down the amount of time or services we ask them to provide to the hospital for our public patients. At the same time, the contractors, the - sorry, the Visiting Medical Officers, may also wish to vary the amount of time or resources they offer to the hospital, for their own reasons. They may wish to increase it or to decrease it. So that mutual flexibility is open to both sides and often suitable to both sides.
PN1233
Well now, you have mentioned the advantages to VMOs of flexibility and that they may wish to change from time to time the arrangements they have with the hospital. You are the officer of the hospital who enters into negotiations with VMOs, is that right?---That is correct.
PN1234
And from time to time, have you had experience of VMOs coming to you and asking to vary the amount of time they spend working at the hospital?---Yes, I have.
PN1235
Yes. And is that something that happens on an infrequent basis, a regular basis?---It is certainly not uncommon that the Visiting Medical Officer for various reasons may wish to change the amount of time he makes available to the hospital.
PN1236
Now, without breaching any confidences in relation to particular doctors, can you tell his Honour the sorts of reasons that a VMO might assign for wanting to increase, or decrease time spent working at the hospital?---Yes, your Honour, that could be broken into two groups, I suspect. One would be because of professional activities that are changing within that VMOs practice. For example, when health insurance went through some significant changes about two or three years ago, and a higher percentage of the population was insured, some VMOs sought to decrease the amount of time they had available in the public hospitals so that they could meet the demand being placed upon
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
them in private hospitals. Another example would be Visiting Medical Officers who for various reasons - it might be their newness to the city, or in fact that they are reaching or approaching retiring age, may wish to increase the amount of public time, time in the public sector, and reduce the amount of time they have in the private sector, for their own purposes and reasons.
PN1237
And, where possible, do you accommodate such requests?---Yes, I do.
PN1238
And later in that sentence, that first sentence of paragraph 24, you draw a distinction between VMOs carrying out their practice autonomously and without control or interference on the one hand, and on the other, the different situation which would obtain if they were directly employed by Calvary. Would you tell his Honour what variations exist as between VMOs and direct employees of Calvary?---Yes, your Honour, at a clinical level a staff specialist and a visiting medical officer would have the same degrees of professional freedom as to how they treated an individual patient. For a patient with, say, community acquired pneumonia, I would not specify to the visiting medical officer which antibiotic he was to use. Nor would I tell a staff specialist that issue. That's their professional judgment. That's what we have them providing services to do. However, with a staff specialist who is, to my mind, clearly an employee of the hospital, his duties are laid down in the statement of duties, the location he may be asked to work in the hospital is prescribed, he requests leave of me, which I may or may not grant at my discretion, and other issues that are applicable to employees. With the visiting medical officers it is much more of a negotiated arrangement, that they will usually write to me to say, "I'm going off on leave and I will be away from 1 November to the middle of December." And that's deemed to be part of their arrangements. The visiting medical officer does not have set hours of duty. He is not clocked on at 8 in the morning and off at 6 pm, as one might do with an employee. It is left to his discretion as to what time of the day he attends the hospital, within reasonable bounds. If he or she started to do their routine ward rounds at 3 am, obviously, that would be a matter of discussion. But if he chooses to come at 8 am, that's fine. If he chooses to come at 9 am, that's at his or her discretion. Whereas, obviously, with employed medical officers they have set hours.
PN1239
THE SENIOR DEPUTY PRESIDENT: When you refer to "employed medical officers" are you including staff specialists?---Yes, sir.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1240
Or don't you have staff specialists?---Yes, I do. I have a range of staff specialists in select areas, your Honour.
PN1241
And they would have specified hours, would they? Or have they got some flexibility because of seniority?---They do have some flexibility due to their seniority. They tend to work, in my particular hospital, your Honour, in areas where there is a necessity for fairly intense rostering, such as the emergency department and intensive care, areas of a hospital that tend to work on roster patterns rather than a Monday to Friday culture.
PN1242
MR NEIL: I am sorry, your Honour, may I just interrupt for a moment? The witness, in the last answer, used the word "they", and I think because I was not able to hear your Honour's question as clearly as I might - - -
PN1243
THE SENIOR DEPUTY PRESIDENT: I was asking about staff specialists.
PN1244
MR NEIL: Staff specialists. Thank you, your Honour.
PN1245
MR TRACEY: Could I take you forward to paragraph 26 of your first statement. You there say VMOs are not public servants. I take it you are talking about VMOs engaged at Calvary?---Yes, I am.
PN1246
Yes. Are staff specialists engaged at Calvary public servants?---Yes, they are.
PN1247
And how is it that staff specialists engaged at a private hospital can be treated as public servants?---Calvary is a combination of hospitals. It is a public hospital that is administered by Calvary Health Care under a contract, or a series of contracts, between Calvary and ACT Government, and that contract is to run a public hospital. Also on the campus is a private hospital run by Calvary and other facilities, and we also have a contract to run for ACT Government the ACT Hospice on the shores of Lake Burley Griffin. Under
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
those contractual arrangements between Calvary Health Care and the ACT the staff we employ in the public facilities are public servants, they are employed under the Public Service Action Regulations and enjoy the same benefits and conditions as the public service elsewhere in the ACT.
PN1248
Has any of your VMOs ever suggested to you that they should be treated as being subject to the Public Sector Management Act?---No, they have not.
PN1249
Later in that paragraph you say that in your experience VMOs strongly distinguish themselves as public servants. I take it, in the context that you're referring to the distinction between VMOs and staff specialists. Is that right? Or is it a broader distinction you are drawing?---I think my view would be that it is a little bit of both, your Honour, that VMOs in my professional experience have always been very much, "I am a visitor. I am not an employee of your facility." And that certainly puts them in distinction from staff specialists, who are clearly employees of the facility - of the hospital. It is my experience that a lot of visiting medical officers would also feel that they are not public servants, they are independent persons. And that would be slightly broader than just the hospital concept.
PN1250
MR NEIL: Would your Honour note my objection to that evidence? I assume your Honour will deal with it in the same way as before.
PN1251
MR TRACEY: It leads to this question, doctor, and it's this. Can you give his Honour some examples of the substance of the type of comment that VMOs have made to you that has led you to make the statement that VMOs strongly distinguish themselves from public servants?---Your Honour, I mean, this - this is based on conversations over many years. Where they express that they are professional people running a small business, their practice. Most of them actually have rooms, professional rooms, in which they have to employ staff, and all that is outside of the hospital. They then will have arrangements with usually more than one hospital, particularly here in the ACT, where they may have arrangements with one or more public hospitals for the admission of their patients and involvement in the provision of services to that hospital, and they may have arrangements with one or more private hospitals for the provision of medical services. And they see themselves being able to adjust and move
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
between those facilities and the entities with which they have an arrangement. That is the practice that they run. Whereas if one of my staff specialists sought to hold a second job he needs my permission to do that under the Public Service Act.
PN1252
Just to take another example that's already arisen in evidence today. From time to time have any of the VMOs who work at Calvary sought to have a locum perform some or all of their contracted duties?---Yes, that situation does arise.
PN1253
Is it something that happens occasionally, regularly?---It's something that is reasonably frequent.
PN1254
And in such a situation who is it that proposes the name of the locum?---The visiting medical officer.
PN1255
And does it require the hospital's approval before that locum can stand in for the VMO?---In regard to duties at the hospital, yes, the hospital must approve that nomination.
PN1256
And if the hospital does approve it, are arrangements made as to who it is that then becomes responsible for paying the locum to perform the service at the hospital?---Yes, such arrangements are made and specified.
PN1257
Yes. And what is the normal arrangement?---The normal arrangement is for the hospital to pay - to continue to pay the principal; that is, the visiting medical officer. The reason for that is that the locum may also have other arrangements with the principal that are not my - well, not Calvary's concern, nor of our knowledge, so we continue to pay the principal under those circumstances.
PN1258
Can I take you forward to paragraph 22 of your second statement? And I just invite you to re-read that paragraph, if you would?---Yes.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1259
You refer to the hospital having a degree of control over the process of treating a hospital patient. What sort of - I'll withdraw that. What aspect of patient treatment does the hospital exercise control over as distinct from VMOs?---Your Honour, one of the aspects would be that of the provision of resources such as the availability of operating rooms or radiology services or pathology services that the VMO is requesting for that individual patient. It may also reflect which particular ward of the hospital the patient is housed in. Those sorts of issues where the VMO does not have specific control over those matters, the hospital does.
PN1260
And just by way of example, how would the exercise of control by the hospital over the sorts of matters you've just mentioned impact upon the way a VMO performed his or her duties?---It can have impacts on the VMO in regard to the degree of access, and the time frame in which services are provided.
PN1261
Well, now, on the other side of the ledger you say the VMO has a degree of control over patient care. What sort of control does the VMO exercise that the hospital doesn't?---Yes, the VMO often is the principal decider of the need to admit the patient to the hospital, when it is appropriate to discharge the patient from the hospital, and indicates during that hospitalisation what resources the hospital should provide, what medications, are theatres required, what additional resources we might provide to the patient in regard to physiotherapy or social work services, or the other resources available to the VMO. He is the person - he or she is the person who decides what resources an individual patient requires while in my hospital.
PN1262
And it is in that context, I take it, that you say that some of those decisions will have an impact on the hospital?---Very much so. For example, if the VMO is of the opinion that a particular patient needs to go to the operating suite at 3 am this morning, that has a major impact on my hospital.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1263
Well, now, you go on to qualify what you've said in the first two sentences by saying, "However, this is not indicative of control of the VMO by the hospital, nor of control of the hospital by the VMO". Could you tell his Honour what distinction you are seeking to draw there?---Your Honour, I am trying to explain that I really do see this arrangement of a partnership that both the hospital and the visiting medical officer, they're doing their best for an individual patient. And we have to be aware of each other's availability and accessibility. And it's often a matching together of both opinions. The VMO might be saying, for example, "I think this patient should go to theatre as soon as possible" and the hospital is saying, "We've got a theatre running, how about half an hour?" And people coming to decisions, agreements, negotiating those issues, rather than one saying, "Well, I'm in control, you must do it now". And the sort of distinction I'm making, it's not an issue of control, it's an issue of agreement and negotiation.
PN1264
And is that the process that you would normally expect to be adopted within your hospital?---Yes, it is.
PN1265
Now, in the following paragraph you say that, "VMOs are fiercely independent in the provision of their services to the hospital". What do you mean by that?---If I perhaps could give some examples. If I, as the Director of Medical Services, your Honour, told one of my surgeons what operation to perform, I think he would react in a negative way. If the hospital does not provide medications that the visiting medical officer believes is the most appropriate, then he will voice that opinion and say to me, "Why am I limiting his practice? He is a professional person, it is his decision that X medication is the best, it should be provided". That, "I cannot control his professional practice".
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1266
Would you ever seek to do so?---Yes. There are obviously - sorry, there are circumstances that do arise in a hospital, as I am sure do arise elsewhere, that require directorship of medical services for the orderly running of a hospital. Obviously we have to run it to certain scheduling issues, with operating rooms, delivery suites, those sorts of things. But also for an individual visiting medical officer, if per chance he/she appeared to be working beyond their skill level, I would interfere. If a visiting medical officer appeared to be working without their full faculties, I would interfere.
PN1267
THE SENIOR DEPUTY PRESIDENT: When you say you would interfere, have either of those situations actually arisen?---Yes, they have, your Honour.
PN1268
Where you have exercised - - - ?---Yes.
PN1269
What you say would be interference?---Yes, I have.
PN1270
Thanks, go ahead?---So there are circumstances that do arise where, if your Honour wishes, I would describe it as almost a policeman role at times.
PN1271
MR TRACEY: If I could take you over to paragraph 39 where you say that, "For most VMOs their activities as VMOs are an extension or at least an adjunct to their private practices". Do all of the VMOs engaged by Calvary maintain a private practice, to your knowledge?---Your Honour, the answer to that is basically yes. There is an issue in regard to visiting anaesthetists, that they do usually not have rooms or a consulting suite of their own. So their private practice is very much based inside of a hospital facility, usually.
PN1272
THE SENIOR DEPUTY PRESIDENT: What, are you saying that their private practice in the private hospitals?---Yes.
PN1273
In the sense that you have used it there?---Yes.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1274
MR TRACEY: And I take it they wouldn't be seeing patients in their private rooms the way a surgeon or a physician might?---Usually not. They tend to see their patients in a pre-operative manner, either in a hospital or in a similar facility, yes.
PN1275
But even though they may not maintain rooms, do they maintain a private practice address separate from the hospital?---Yes, they do.
PN1276
And if they send out accounts to private patients, it wouldn't be over the hospital's address?---No, it would not be over the hospital's address.
PN1277
When you say that the activities of a specialist, as a VMO, is an extension or an adjunct of private practices, what precisely do you mean?---What I mean there, your Honour, is if I am a specialist physician or surgeon or obstetrician and I have my private rooms and my practice with patients attending, there is quite a considerable chance some of those patients will require admission to hospital. It is obviously preferable for my practice that when the patient is admitted to hospital they are admitted under my care, that the patient gains from the continuity, the patient expects that and I am not losing them from my practice while they are in a hospital setting, whether it be public or private. So for many specialists, to have a hospital appointment is part of the viability of their practice.
PN1278
And you go on to say that there are indirect benefits of that arrangement for the VMO. What sort of benefits do you have in mind?---One is - your Honour, there is a range of benefits that include the on-going linkage to that individual patient so that while the patient is in hospital I am able to attend them, when they're released from hospital that the patient will most likely still attend my practice rather than some other specialist. Also by being linked to a hospital I may be referred patients from that hospital, which is good for my practice. There is a degree of prestige associated with gaining an appointment to a hospital. The patients tend to know, and thus that's an advantage for my practice if I hold hospital appointments compared to if I did not hold appointments. Again, the patients would know that if I didn't hold
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
appointments to hospitals what will happen to me if I need to go to hospital. Perhaps I should go to another doctor. So, all those are advantages doctors I think by our very nature like to teach, can only teach in hospitals. So, there's a strong incentive to join one, to be associated with a hospital, so I get that professional pleasure. Also by being a member of a hospital medical service I get to meet my colleagues, and thus that gives me the chance to discuss difficult cases, go to tutorials, seminars, and stay in touch with the rest of my profession. So, they're all the advantages I would see of being on the staff of a hospital.
PN1279
THE SENIOR DEPUTY PRESIDENT: Is access to theatre facilities contingent upon the specialist holding an appointment?---Yes, it is, your Honour.
PN1280
Does it mean therefore that if a person wished to practice as a specialist without a theatre appointment they would - without a hospital appointment they would have difficulty in performing surgery?---For a surgeon that would be very much the case, that he - he or she could not perform operative surgery unless they hold a hospital appointment. There is one exception to that, your Honour, these days where there are facilities now called day only centres, or the like, where you can gain operative facilities for day only patients, patients who do not stay overnight, without being appointed to a major hospital.
PN1281
MR TRACEY: Could I take you on to paragraph 52 of your statement where you are dealing with the particular practice of Dr Burt who is the Director of Anaesthesia at your hospital? And you towards the end of that paragraph say that Dr Burt has established a system which in your observation is not mirrored by other VMOs. What particular system has Dr Burt established for the purpose of his work as a VMO that's not mirrored with other VMOs?---Your Honour, where Dr Burt differs is - although Dr Burt is an excellent anaesthetist and intensivist like the other specialists in that field, he also has agreed to undertake administrative duties on my behalf in the hospital to run the anaesthetic service. Of the anaesthetic profession he would be the exception to the rule in having a desire to do that. It's not a job most people would feel brought great joy, but Dr Burt has agreed to do that, and does it extremely well.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1282
And just precisely what does he do administratively as distinct from administer anaesthetics?---Sorry, yes. Yes, your Honour, what I ask him to do is to co-ordinate a group of anaesthetists. There is about 20 or more anaesthetists with appointments at the Calvary Hospital, so Dr Burt's duty is to help organise the spread of those anaesthetists among the operating rooms, to assist in arranging the out of hours cover for the hospital with anaesthetists, to help maintain our pre-admission services, and also our acute pain services. So, he's an organiser and arranger of the other visiting officers. He also has within his duties the overall supervision of our anaesthetic registrars, the trainee specialists.
PN1283
And is he remunerated for those administrative and oversight services differently from the way he's remunerated for performing his VMO work in the operating theatre?---Yes, he is, your Honour, inasmuch as Dr Burt and I sat down and estimated how much time in hours he would require for those administrative duties. That was agreed, as was the rate of pay, and then Dr Burt carried out those duties. That is somewhat different from his anaesthetic duties which are flexible, that this week he may only have two or three lists to perform in the hospital, next week it might be four or five, the week after he may be on our out-of-hours intensive care roster. So, that's a much more irregular pattern of work, whereas his administrative duties are fairly clearly laid down.
PN1284
Now, looking across the range of VMOs engaged at Calvary, are there any other VMOs who exercise a similar degree of administrative responsibility in respect of their specialities as Dr Burt does in respect of anaesthesia?---Generally, no, that a lot of those administrative duties in other fields are either carried out by my own officers in the medical administration of the hospital, or to a limited extent only by some of our visiting medical officers.
PN1285
And does it follow that you don't employ as staff specialists any fully qualified anaesthetists?---That is correct, we do not have any specialist anaesthetists who are staff specialists.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1286
And, again, looking across the range of your VMOs and looking at the amount of time they would spend in a given week doing work at the hospital, what would be the range between the VMO who attended the least amount of time and the VMO who attended the most?---Your Honour, there can be a considerable range there. For example, in the surgical side of the hospital our operating rooms are scheduled on a four week cycle. So in week one of the cycle I could have two operating lists. In week two of the cycle, I may have none. So that factor alone can start to influence the amount of time an individual VMO would spend in the hospital. If it happens to be their week on call for the hospital, as, say, our specialist physician, they could spend most of the weekend in the hospital. If they are a specialist physician who is not on call for this weekend they might only spend one hour in the hospital on that weekend. So there's enormous range from specialty to specialty and there is also a range within the specialty, depending on what is happening within that specialty.
PN1287
Is it possible in any given week for a particular VMO simply not to attend at all?---That is possible so long as he or she did not have any patients admitted to the hospital during that week. Yes.
PN1288
And are there some disciplines that are such that they do not attract a lot of patients to the hospital?---Yes indeed. I mean, some of our specialist services are infrequently required, but it is important for us to have available for when we do require them.
PN1289
Could you give an example of such a specialty?---For example, at Calvary, dermatology would be such an example where I do have visiting dermatologists but the incidence or frequency of them actually having a patient in the hospital under their care would be perhaps once a year, something such as that.
PN1290
Yes. Thank you, doctor, very much.
**** ROBERT CHARLES GRIFFIN XN MR TRACEY
PN1291
PN1292
MR NEIL: 4.15. Now, doctor, I wonder if you could help with a question of categorisation?---Yes.
PN1293
In your statement of 6 June 2003, which is now exhibit ACT4, you provide a definition of public patients in paragraph 20. By that definition, public patients are patients who are treated under the universal care system operating in Australia. And under that system, their treatment is funded either by - is funded by that system and administered by a funding body or the treating facility. Correct?---Yes, that's correct.
PN1294
Now, with that definition in mind, could I invite you to turn, also in exhibit ACT4, back to 2, paragraph 10, on page 3. In paragraph 10, you divide hospital patients into a group called three broad categories. All right? Do you have that?---I do.
PN1295
Now, the category that you have identified with the Roman numeral i, are private patients in a private hospital?---Correct.
PN1296
Now, travel down to paragraph 11?---Yes.
PN1297
In the first sentence in paragraph 11, you have said, have you not, that a specialist in private practice who does not have a VMO appointment in a public hospital will treat private patients in a private hospital. That's the effect of what you have said when you look at paragraph 10 and the first sentence of paragraph 11 together?---Yes. There is an assumption in there that the - your Honour, that the doctor has an appointment in the private hospital.
**** ROBERT CHARLES GRIFFIN XXN MR NEIL
PN1298
That qualification - is that the way in which his Honour should understand paragraph 10 and the first sentence of paragraph 11 when read together?---Yes.
PN1299
All right. Now, travelling over to the - to the second sentence in paragraph 11, which begins at the foot of page 3 and travels over to the top of page 4, you have referred to the second and third of your paragraph 10 categories. Is that right?---Yes, I have.
PN1300
All right. Now, I just want to ask you please to tease out for me the elements of what you say in the second sentence in paragraph 11 by reference to your paragraph 10 categories. Paragraph 10, your second category, identified at the Roman numeral ii, you have described as being private patients in a public hospital. Correct?---Correct.
PN1301
That is, patients treated in a public hospital whose care and treatment is not funded by the universal health care system. Correct?---Your Honour, I'm not trying to be difficult here, but that one is a little bit hard to answer inasmuch as the funding arrangements really are very complex. Certainly for a private patient in a public hospital, the private practitioner can certainly bill that patient. So part of the funding is coming from health insurance.
PN1302
I see. You have in mind the notion that there are various subsidies afforded by the public purse - - - ?---For such patients.
PN1303
Even for the treatment of private patients. Correct?---That's what I would support, yes.
PN1304
Yes. All right. But private patients then, for the purposes of your categorisation, are patients who are themselves responsible at least in part for the cost of their care and treatment, albeit in many cases that responsibility is borne by insurers?---That is correct, yes.
**** ROBERT CHARLES GRIFFIN XXN MR NEIL
PN1305
Correct?---Correct.
PN1306
And those insurers are insurers whose cover - the private patient is taken out at his or her own expense?---Yes, that is usually the case. There is another category that fits into here, or a subset of categories, called DVA patients - patients of Veterans' Affairs, where DVA in a way is the insurer. There is another series of patient groups called Third Particle Workers' Compensation, where again the insurer is not as clear-cut as a health insurance organisation. But apart from those riders, yes, I agree with your point.
PN1307
And so perhaps your paragraph 20 definition of public patients might usefully be - qualify as to a point of detail by suggesting that public patients are those patients who have no private responsibility for the funding of their care and treatment?---Yes, I would agree with that, your Honour, inasmuch as those patients either do not have the ability to cover their - any private facilities or have chosen not to.
PN1308
Now, with those definitions in mind, can we come back again, please, to the second sentence in paragraph 2 - paragraph 11, I'm sorry. That sentence deals with specialists in private practice with a VMO appointment to a public hospital. Correct?---Correct.
PN1309
Right. Now, specialists in private practice with a VMO appointment treat your category 3 patients, that is, public patients in a public hospital. Correct?---Yes, that is correct.
PN1310
And they treat those patients, public patients in a private hospital, by virtue of the office they hold as visiting medical officer in the public hospital. Correct?---Could you just do that one again for me, please?
PN1311
Okay. I'll withdraw the question.
**** ROBERT CHARLES GRIFFIN XXN MR NEIL
PN1312
THE SENIOR DEPUTY PRESIDENT: I think you referred to public patients in a private hospital.
PN1313
Yes, I'm sorry. That was my mistake. Let me withdraw the question and start again. Specialists in private practice with a VMO appointment treat your category 3 patients, that is, public patients in a public hospital, by virtue of their appointment as visiting medical officer. Correct?---Correct.
PN1314
Specialists in private practice with a VMO appointment to a public hospital treat your category 2 patients, that is, private patients in a public hospital, by virtue of whatever rights they may have at that hospital in their private capacity, not in their capacity as a visiting medical officer. Is that correct?---No, I do not think that is correct, your Honour. If I may explain why I'm saying that is the issue of private and public patients only exists at the level of a hospital. It really doesn't exist at the level of a doctor's rooms. The entity that is determining whether a patient is public or private is the hospital. And the patient signs a declaration at the time of admission with the hospital as to which they wish to be. And under the Medicare legislation for Commonwealth, the hospital must grant the freedom of choice to the individual patient. Now, under that freedom of choice an individual patient may elect to be a private patient in the public hospital. So the hospital is obliged to provide the visiting medical officers to attend those patients. So a VMO appointment to a public hospital to my understanding carries an obligation to attend private and public patients, as well as public patients.
PN1315
We might come in due course to the form of contract that your hospital employs in order to explore that dichotomy a littler further. Could you help me please with one other matter, before coming in detail to your statement. To your first statement - or travelling with your first statement, that is, your statement of 5 February 2003, now ACT3, are a bundle of documents which are described as appendices. The first of them begins after page 10. Do you see that? Do you have it?---Yes.
PN1316
Appendix A is a document which sets out your qualifications and experience, correct?---Correct.
**** ROBERT CHARLES GRIFFIN XXN MR NEIL
PN1317
In appendix B you have described in paragraph 17 of exhibit ACT3, as a sample copy of the contracts between a VMO and Calvary. Do you see that?---Yes, I do.
PN1318
Now, is this the case? In appendix B to exhibit ACT 3, you have attached a sample of various forms of contract that are employed by Calvary from time to time?---Yes, that is correct.
PN1319
So that as one travels through, one can see a number of different versions of the form of contract that Calvary Hospital employs. Is that right?---That is correct.
PN1320
Is there any means by which, looking at the various versions that you have included in appendix B, one can distinguish the purposes and circumstances with which and in which each of these different versions is used?---Your Honour, the reason for the number of contracts is to allow for differing circumstances that individual VMOs may be seeking with the hospital. For example, some seek a contract in their own personal name. Others seek it - a contract as a VMO proprietary limited. And the proprietary limited type contracts are much longer, complex than a standard individual contract, so - - -
PN1321
I wonder if you would be good enough overnight to work through the various versions of the contract that you have included in appendix B, so that tomorrow morning you would be in a position to indicate to me the circumstances in which each of those versions is employed? Do you understand?---Yes, I do.
PN1322
Thank you. Is that a task that would be possible to undertake?---I believe so, yes.
PN1323
Thank you.
PN1324
THE SENIOR DEPUTY PRESIDENT: Would that be an appropriate time?
**** ROBERT CHARLES GRIFFIN XXN MR NEIL
PN1325
MR NEIL: Yes, your Honour.
PN1326
THE SENIOR DEPUTY PRESIDENT: My associate reminds me I have a 4.15 matter.
PN1327
MR NEIL: If your Honour pleases.
PN1328
MR NOLAN: Your Honour, might I just have - seek your Honour's indulgence, it may well be - although personally, of course, I know I find no more stimulating place to be in than your Honour's court - it might be that on reflection, my client might seek for me to excuse myself from further attendance for this portion of the hearing. We do that - - -
PN1329
THE SENIOR DEPUTY PRESIDENT: If you're not here tomorrow, Mr Nolan, I'll take it that it's appropriate to excuse you.
PN1330
MR NOLAN: Thank you, your Honour.
PN1331
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ACTVMOA1 LETTER TO ASMOF SOLICITORS DATED 12/09/2003 PN705
KIMBERLEY PIERCE, SWORN PN871
EXAMINATION-IN-CHIEF BY MR TRACEY PN871
EXHIBIT #ACT1 WITNESS STATEMENT OF K. PIERCE DATED 10/06/2003 PN883
EXHIBIT #ACT2 LOCUM CONTRACT PN924
CROSS-EXAMINATION BY MR NEIL PN930
RE-EXAMINATION BY MR TRACEY PN1137
WITNESS WITHDREW PN1159
ROBERT CHARLES GRIFFIN, SWORN PN1159
EXAMINATION-IN-CHIEF BY MR TRACEY PN1159
EXHIBIT #ACT3 STATEMENT BY R.C. GRIFFIN OF 5/02/2003 PN1227
EXHIBIT #ACT4 STATEMENT BY R.C. GRIFFIN OF 6/02/2003 PN1227
CROSS-EXAMINATION BY MR NEIL PN1292
WITNESS WITHDREW PN1331
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