C2003/6396, Transcript of Proceedings [2004] AIRCTrans 1253 (2 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6510
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

C2003/6396

AUSTRALIAN SALARIED MEDICAL
OFFICERS FEDERATION

and

EASTERN HEALTH (BOX HILL
HOSPITAL)

Notification pursuant to section 99 of the Act
of an industrial dispute concerning contracts

MELBOURNE

9.32 AM, TUESDAY, 23 MARCH 2004

PN1

MR R. FELMINGHAM: I appear for Australian Salaried Medical Officers Federation.

PN2

MR R. CATANZARITI: I seek leave to appear. With me, MS K. MINOGUE, from Eastern Health.

PN3

THE COMMISSIONER: Gentlemen, I just want to be clear as to the purpose of us all being here in a formal sense this morning. I think everybody is aware that Mr Felmingham, on behalf of the Australian Salaried Medical Officers Federation, following the last conference in this matter, sought to make an application pursuant to section 107 of the Workplace Relations Act for this matter to be referred to a Full Bench. The Commission as presently constituted did that and was requested by the President for the parties to be given a formal opportunity to put submissions with respect to the application for reference to a Full Bench pursuant to section 107.

PN4

So that is my understanding, gentlemen, of the purpose of this morning. I just wanted to double check that everybody else is of the same mind.

PN5

MR FELMINGHAM: Yes.

PN6

MR CATANZARITI: Yes, I am, Commissioner.

PN7

MR FELMINGHAM: Yes, I think - I am not sure that I am entirely clear, Commissioner. The way I read the listing it appeared to me that the President had referred the matter back to the Commission as presently constituted for report to the Full Bench.

PN8

THE COMMISSIONER: I don't think it is quite like that, Mr Felmingham. What the President asked me to do was at the moment the only supporting material with respect to the application is contained in your letter of 10 February. I think the President was wishing for fuller submissions on that matter and also to provide Eastern Health with the opportunity to put submissions if they wished with respect to your application.

PN9

MR FELMINGHAM: Happy to do that, Commissioner. So submissions should simply be limited to the question of whether or not this is something that would merit consideration by the Full Bench.

PN10

THE COMMISSIONER: Yes, essentially I figured that you might wish to expand on the contents of the letter. That I suppose would form the boundaries in essence, give or take, of the subject matter for today's proceeding. Do you need a couple of minutes or are you absolutely right?

PN11

MR FELMINGHAM: No, no.

PN12

THE COMMISSIONER: Mr Catanzariti, are you similarly - - -

PN13

MR CATANZARITI: Yes, I should say, Commissioner, I don't have a lot to say about this but I am just looking at the - I was aware of the purpose of the Commission, I rang your Associate and that was clarified but there is not a lot of guidance as to what matters are referrable under section 107 so I would only make a brief response I imagine to what Mr Felmingham would say so I don't imagine I would be speaking for very long.

PN14

THE COMMISSIONER: I am sure the quality will be immense, as will Mr Felmingham's, but it was more to provide the respondent with an opportunity to be heard regarding this matter.

PN15

MR CATANZARITI: Yes, thank you, Commissioner.

PN16

THE COMMISSIONER: Mr Felmingham.

PN17

MR FELMINGHAM: Thanks, Commissioner. It is an interesting question I think that we seek to have the Full Bench consider. It is also a very important one and the rubric as it were under which we believe it is appropriate for the Full Bench to give consideration to the question is the matter of public interest. Now you might recall, Madam Commissioner, where we got to in the conference in relation to this. The original dispute notification was a point where the question arose as to what jurisdiction the Commission might have to resolve the issue that ASMOF brought to the Commission and where that discussion in conference took us was to the dispute settling procedure in the Hospital Specialist and Medical Administrators Award 2002. I am presuming people have copies of the award but I am happy to provide one, Commissioner.

PN18

THE COMMISSIONER: Mr Felmingham, I think I have - I have definitely got the heads of agreement.

PN19

MR FELMINGHAM: I have a spare copy of the award.

PN20

THE COMMISSIONER: Thank you, I appreciate that.

PN21

MR FELMINGHAM: You have got one, Rick?

PN22

MR CATANZARITI: Yes, I have got one, thanks.

PN23

MR FELMINGHAM: The relevant clause is clause 9, Commissioner, and I think rather than rehearse the whole process, the particular point that we got to where it was unclear where to go next was sub-clause 9.3 that if the matter, referring back to 9.1, a dispute arising in the work place:

PN24

If the matter cannot be resolved, it may be referred to the Commission for resolution.

PN25

Now our submission would be that resolution means resolution and it would mean there is the Oxford English Dictionary says:

PN26

Answering a question, solving of a doubt or difficulty, supplying an answer. A decision or verdict -

PN27

- a settlement, a final settlement and what we would say is that what that sub-clause and what the clause itself appears to clearly provide for is that if a dispute is unable to be resolved in the work place, it may be referred to the Commission and the Commission may make a decision to resolve the matter. Now it is best I think for my friend, Mr Catanzariti, to put his own - expand on the view I suppose that he put in conference, but the difficulty that he pointed to in conference was the limitations on the power of the Commission to make awards or orders or to arbitrate in industrial disputes, the limitations that are imposed by section 89A.

PN28

Now I am happy if we need to, to go into some more detail on the background but I think the nub of the question is that there is an award of the Commission recently made, it was made in September of 2002, covers something of the order of 800 or 900 senior specialist medical practitioners in Victorian public hospitals, appears on its face to provide a dispute resolution procedure that says if the parties are unable to resolve this in the work place, bring it along to the Commission and the Commission will determine the matter. But, and I must say this is the first occasion on which we have brought a matter to the Commission and sought a resolution based on this clause, on the first occasion that we did so, the question arose as to whether or not in fact the Commission has jurisdiction.

PN29

Now I think from our point of view it is an interesting question. If we have the opportunity to expand on this question before the Full Bench, we are in no doubt that because of the way in which the award was made and because of the approach of the High Court in Gordonstone in particular, that the Commission is in fact given power to resolve disputes by this, and that is what we would like the Full Bench to indicate to the parties. If, however, we are wrong, it is a matter still that needs to be addressed by the Commission because we would say it is not in the public interest to have an award which on its face purports to do something that in fact it can't do.

PN30

So if a plain English reading of the clause as it stands is correct, we would like that to be confirmed. If it is not, then plainly the award needs to be varied so that it provides for something that gives certainty to those who are covered by it as to what the Commission can do if a dispute is brought to the Commission. If it please the Commission.

PN31

THE COMMISSIONER: Thank you, Mr Felmingham. Mr Catanzariti.

PN32

MR CATANZARITI: Thank you, Commissioner. Commissioner, I wanted to perhaps say at the outset that some of the comments I made in relation to jurisdiction concerned the particular orders that were being sought by Mr Felmingham at I can't recall now whether it was the first or the second of our hearings before you or conferences before you. But you may recall that two of the orders sought related to Dr Endersbee, and that was reinstatement and compensation I think it was for loss of benefits or something of that nature.

PN33

Now I directed my jurisdictional concerns if you like to those issues in particular and without wanting to go into that because that is not the purpose of today, what I was suggesting was that the Commission may not have the power to order reinstatement under a dispute settlement procedure of an individual employee, and that the Commission may not have the power to compensate the employee within these proceedings either, that is within section 99 proceedings. I am a little bit confused I must say about what this proceeding is about.

PN34

Those were two of the matters that were before the Commission at the time. That is the orders were being sought for the reinstatement of Dr Endersbee and for compensation for him. Now due to subsequent or different proceedings involving Dr Endersbee, I am not entirely clear - Mr Felmingham lodged an unfair dismissal claim on behalf of Dr Endersbee and it is a matter of record on that transcript that Mr Felmingham indicated that this section 99 dispute was not about Dr Endersbee as such but it was about the broader issue if you like of I guess the use of fixed term contracts by Eastern Health and the non-renewal of those contracts and do you remember at the conferences he referred to the heads of agreement.

PN35

Now on one level I am not entirely clear what the section 99 dispute is. If it is the general issue, then perhaps there are - some of the jurisdictional objections don't arise, and that is why, as I said, at the time that I raised these jurisdictional objections I had in mind the particular orders that were being sought in relation to Dr Endersbee. Now perhaps leaving that to one side, if this is the general issue of the use of contracts and so forth, then again I don't think I need to put my position on this particularly but I do so just for background and explanation because the purpose of this is not to outline what my jurisdictional argument is, it is about whether it is a matter that should be referred to a Full Bench.

PN36

But I do say that in my view if the Commission is exercising a power under the dispute resolution procedure in an award, in this case clause 9, that what the Commission is doing is exercising an arbitral power and that falls within I think it is section 89(a) of the Act and you remember Mr Felmingham referred to the decision in Gordonstone and I still have difficulty understanding the decision I must say but they distinguished between section 89A and B. Section 89A of the Act was the functions of the Commission being to prevent and settle industrial disputes by conciliation or as a last resort by arbitration within the limits of the Act, and they said that when you were dealing with an application under section 170LW, that didn't fall within A, it fell within part B. That is they were exercising such other function conferred by the Act. It wasn't an arbitration within the meaning of section 89A so therefore the LW power was not limited by section 89A.

PN37

But I think what I am saying is that if it is a section 89(a) power which I believe this would be, then it is so limited by section 89A and I think that certainly could be read into the decision of the High Court. There was recently a decision and I don't have a copy I don't think with me of Deputy President Hamilton. I believe it was this month, I think it was something called Fyna Foods where he refers to this in a fairly brief way, this issue of whether section 89A applies to arbitral powers etcetera and that might be of some assistance. I don't recall the decision in particular as in the print number but what I say about it is this, just by way of explanation, and then I want to turn to whether it is a matter that ought to be referred to the Full Bench.

PN38

The award in question, the Hospital Specialists and Medical Administrators Interim Award 1996, when that award is made, as for any other award made under the Workplace Relations Act, the Commission's powers are limited by section 89A. That is they can only make an award which is consistent with those allowable matters or incidental etcetera. Now I would say that it would seem odd if in dealing with the dispute under the award, if the Commission could then ignore section 89A and make an order which doesn't even have to take into account section 89A. That is the award itself is limited by section 89A in terms of its making and yet what I think Mr Felmingham is putting is that the Commission can then make any award or order as long as it is a dispute, an industrial dispute, which doesn't have to take into account section 89A.

PN39

So in other words Mr Felmingham could come to you with a dispute for example about the size of the offices at Eastern Health and say, "I have a dispute about this and I want you to make an order under the Dispute Settlement Procedure that Eastern Health increase the size of all the offices for medical specialists". Now I appreciate that it is a fairly flippant example but it is just to illustrate the point that that sort of matter would clearly not be a matter falling within section 89A.

PN40

There is no reference to the size of offices for example in section 89A, and so an award could never be made, I would submit, regulating the size of offices at Eastern Health and yet what Mr Felmingham seems to be putting is if a dispute is brought under the Dispute Settlement Procedure which is medical specialists having a dispute with Eastern Health about the size of their offices, then under the Dispute Settlement Procedure, you could settle that award by making an order to increase the size of the offices even though the award itself could never have done that. And that is all I am putting in relation to that.

PN41

So to that extent, as a general rule I would say that section 89A does limit the Commission's powers in dealing with disputes under the Dispute Settlement Procedure of the award. I say that in a general way because much of it depends on the sort of order that is being sought by Mr Felmingham. It could be that he seeks an order about the type of employment and that falls within section 89A in paragraph (r), so some of it depends to a certain extent on what orders he would seek and as I said I think the orders are a little bit different as I understand now, or the orders that he might press in these proceedings.

PN42

But in terms of the general question of whether such a matter should be referred to a Full Bench, the issue is if the Commission is exercising its powers to resolve a dispute under the dispute settlement power of the award, is that limited by section 89A or not? That is the question that Mr Felmingham wants referred to the Full Bench. Now what I say about that is that it is very difficult to know what sort of matters are referred to the Full Bench under section 107. There is not a lot of guidance from the cases, no principles are established other than the section itself which refers to the requirement, and obviously it is a matter that Mr Felmingham has to establish, but what has to be established is that it has to be the President that is satisfied and it has to be a sufficient special case if you like that the subject matter of the proceeding is of such importance that in the public interest the proceeding ought to be dealt with by the Full Bench, and that is in Part VI, 107 Part VI, Commissioner.

PN43

So it is a question of whether something is of sufficient public importance or sufficient importance in the public interest. Now what do I say about that. Well I reviewed the cases that have been referred under section 107 and there has been many, Commissioner. Most of them, I would say the overwhelming majority, are cases involving where the Commission sets down a statement of principles about certain matters or test case standards, for example TCR, superannuation test case, those sort of matters. Otherwise what normally happens is there is a referral under section 107 if a party seeks to raise a matter which falls outside the Commission's test case standards or outside its statement of principles.

PN44

Now I don't understand that that is what this application today is about. Mr Felmingham is not seeking a referral of a matter that falls outside the Commission test case standards or outside its statement of principles. It is not that sort of issue, and they really seem to be the bulk of the cases referred under section 107. There are others where they raise otherwise perhaps what I might call miscellaneous matters of public importance and in that regard all I can say about the matter is this, that the question Mr Felmingham seeks to refer to the Full Bench is a legal point.

PN45

Whether he is right or I am right is of no consequence. The point is the issue is one that involves a legal position being adopted by the Commission. Now I say that that is a matter which the Commission deals with often, perhaps sometimes every day, that you are asked to interpret the Act, you are asked to consider the application of it, you are asked to consider the limits of your powers etcetera and this is no different to one of those matters.

PN46

In my submission this is not a case that is elevated beyond a mere legal point that the Commission needs to consider in quite a number of cases and beyond that I don't think I can take the matter further. It is a matter for the President to decide whether this issue is of sufficient importance. Eastern Health would submit it is not, that it is a matter that is quite capable of being determined by a single Commissioner and if the matter is not referred under section 107, Mr Felmingham doesn't lose his rights to take up the point in the Commission. So that is all I wanted to say about that, Commissioner.

PN47

THE COMMISSIONER: Thank you. Mr Felmingham, would you be able to, apart from anything else you might want to say, perhaps clarify the issue in dispute and what orders are being sought.

PN48

MR FELMINGHAM: Yes, Madam Commissioner. I don't know that we provided this in written form but in the conference there were, as my friend says, a number of orders that were sought. In particular, the concern that we have - the dispute that we have with Eastern Health is that we are party to two industry wide agreements. The first, the 1999 heads of agreement, made certain provisions in relation to the non-renewal of contracts not being harsh, unjust or unreasonable. That provision was picked up in the 2002 heads of agreement and it is clear from the contracts that Eastern Health provides its senior medical practitioners that these conditions are not expressed in the contract and it is clear from our recent experience that Eastern Health's practice is not to comply - we would say not to comply with their obligations under the two heads of agreement. Neither of those heads of agreement are certified agreements but nevertheless they are there.

PN49

So in part - we were seeking orders specifically in relation to Dr Endersbee but as Mr Catanzariti says, for a number of reasons his particular matter has been taken elsewhere, but we still have the issue of having these very significant agreements between the parties, the 2002 one came at a cost of something in the order of $129 million for the government so these are not pieces of - you know, they are not back of the envelope agreements. We put great store in what they provide but we have a health service that we say is not complying and the orders that we would seek or at least the resolution that we would seek I suppose is that Eastern Health comply with those aspects of the heads of agreement.

PN50

Now I think that answers your question but I think Mr Catanzariti's point then is a very fair one. Under section 89A is the Commission able to make that sort of a decision. I think - - -

PN51

THE COMMISSIONER: With respect to the issue regarding use of fixed term contracts?

PN52

MR FELMINGHAM: Yes, regarding not only the use of fixed term contracts but you see essentially what the - the provision that is in the agreements also deals with variations of fractions for fractional appointees but relevantly it says:

PN53

Non renewal of contracts shall not be harsh, unjust or unreasonable.

PN54

I suppose essentially that is the relevant pith of it.

[10.00am]

PN55

THE COMMISSIONER: Right, Mr Felmingham, this is the 2002 heads of agreement?

PN56

MR FELMINGHAM: It was actually in - I don't know if you have got a copy of the 1999 heads of agreement, Commissioner, but it was one of the continuing provisions that was sort of picked up in the appendix to the 2002 heads of agreement. Now we say that if you analyse what that means, there is in fact a presumption that contracts will be renewed. Contracts may not be renewed but they may only not be renewed if they are not renewed on a basis that - double up on the negatives a bit - that isn't, harsh, unjust or unreasonable. There is a presumption that term contracts will continue to be renewed, and that particular issue which as I say in our experience - or at least in my personal experience - has only arisen as an issue at Eastern Health.

PN57

THE COMMISSIONER: Can I ask a couple of questions of clarification, Mr Felmingham. If I understand you to be saying that the matter is - how can I put it - more global, it is not particularised in the form of Dr Endersbee any more, it is the issue with respect to the way that Eastern Health approach variation of fractions and non-renewal of contracts?

PN58

MR FELMINGHAM: Yes.

PN59

THE COMMISSIONER: I notice that the 2002 heads of agreement provides for issues to be dealt with pursuant to 170LW but would I be correct in assuming that given that as I recall from the last conference the heads of agreement hasn't actually been transformed by Eastern Health and ASMOF into an agreement and hence your submissions regarding the dispute settling procedure in the award?

PN60

MR FELMINGHAM: That is correct, Commissioner, yes. I think if we had a certified agreement in terms that the 2002 heads of agreement provides, then well frankly we wouldn't be here.

PN61

THE COMMISSIONER: Yes, that was what had occurred to me. Given that we are now talking about a more general issue about the issue of renewal of contracts and the variation of them. Perhaps if I could ask Eastern Health as to why the requirements of the heads of agreement 2002 have not been enacted from your perspective.

PN62

MR CATANZARITI: I think, Commissioner, I should say first of all Eastern Health is not the only network that has not implemented the heads of agreement.

PN63

THE COMMISSIONER: I wasn't suggesting that, but you are the only one I have before me.

PN64

MR CATANZARITI: Yes. Look I don't understand - I don't really know the reason, I am not involved in that aspect of it. Certainly I understand that Eastern Health has a view that it would like to negotiate a certified agreement but not in precisely those words and it would like to negotiate a certified agreement under the Act as provided for in the Act that allows it to negotiate the terms and conditions that apply at its work place, subject obviously to the heads of agreement issues. But I should also say that this heads of agreement is a matter that is being negotiated currently between ASMOF and a number of hospitals. That is my understand is that none of the public hospitals have just accepted the terms of the heads of agreement in the current form and just said, "Right, well we will sign it up".

PN65

Now Mr Felmingham may say something different, I don't know, but my understanding is that there is negotiations between other hospitals and ASMOF in relation to the precise terms of those certified agreements that will flow from that heads of agreement but I can't tell the Commissioner why Eastern Health hasn't signed it. I can only say that it hasn't signed one and it has its reasons for perhaps not wanting to sign that particular agreement. But beyond that I can't be of any assistance in this matter, Commissioner.

PN66

THE COMMISSIONER: Because it is clear, clause 3 is really clear about what the parties agreed that they were going to do.

PN67

MR CATANZARITI: That is true but there is also an equivalent obligation, is there not, Commissioner, on ASMOF. There are two parties and a certified agreement is not - is something that each party can do. Now I know Mr Felmingham said in the past that Eastern Health rejected overtures but there are provisions in the Act for those sorts of matters anyway. A certified agreement is an agreement between two parties and if Mr Felmingham or ASMOF believe that they weren't getting the agreement that they wanted signed, then I suppose they have their avenues under the Act.

PN68

THE COMMISSIONER: Because it just seems to me that it is an agreement that both parties, and I did say both parties at the beginning, but I happen to be - you happen to be on your feet so you got asked the question first. Both parties have agreed - have signed off on the heads of agreement and the heads of - - -

PN69

MR CATANZARITI: Well I don't think it is - Eastern Health hasn't signed off on it but it has been signed off on its behalf.

PN70

THE COMMISSIONER: As represented by VH - - -

PN71

MR CATANZARITI: Yes.

PN72

THE COMMISSIONER: Yes, the same difference.

PN73

MR CATANZARITI: I don't take that as a technical point, I just mean that it wasn't an agreement between Eastern Health and ASMOF as such.

PN74

THE COMMISSIONER: I know but - - -

PN75

MR CATANZARITI: It was a global agreement.

PN76

THE COMMISSIONER: Yes, I understand that but unless the Victorian Hospitals Industrial Association is no longer representing Eastern Health - - -

PN77

MR CATANZARITI: Oh no, I am not putting that, Commissioner. I am just saying that it wasn't - - -

PN78

THE COMMISSIONER: I am sorry, I should be - - -

PN79

MR CATANZARITI: It wasn't a single enterprise agreement.

PN80

THE COMMISSIONER: No, no, I know that. It was - I mean DHS were involved as well.

PN81

MR CATANZARITI: As I understand, yes.

PN82

THE COMMISSIONER: Yes. The question I am asking basically, or that I am just sort of thinking about verbally, is that given that as of today the issue is a wider issue, it is not focussed on Dr Endersbee, and there is a heads of agreement which provides what should be done with it, and the heads of agreement also contains very clearly what the dispute resolution mechanisms are, I am just musing out loud, thinking out loud as to whether that is a better route for the parties. But anyway given that the issue has moved on since the parties were last before me, that is all.

PN83

MR CATANZARITI: I don't know if you wanted a response to that, Commissioner. I don't know that I can give you one as to whether it is more appropriate.

PN84

THE COMMISSIONER: I am assuming that there wouldn't be jurisdictional issues with respect to the dispute settlement procedure as contained in the heads of agreement being in the future certified - assuming it is in the future certified agreement.

PN85

MR CATANZARITI: I think - I don't want to pre-empt what might happen but I understand that if this was a certified agreement and then it would have the force of section - the course available would be section 170LW as I think the agreement refers to. There is no doubt about that. So I am not aware of anyone that has challenged the validity of that yet but - so, yes, I think that is right, if it was contained in a certified agreement, I think that would change the dynamics of the events I imagine because I wouldn't be raising section 89A first of all.

PN86

THE COMMISSIONER: No, you definitely wouldn't.

PN87

MR CATANZARITI: That is all I could say in response to that, thanks, Commissioner.

PN88

THE COMMISSIONER: Thank you, I appreciate that, thank you. Mr Felmingham.

PN89

MR FELMINGHAM: A couple of things on foot.

PN90

THE COMMISSIONER: Yes, sorry.

PN91

MR FELMINGHAM: One is the discussion we have just had and the other is the issue of the section 107 reference.

PN92

THE COMMISSIONER: Yes.

PN93

MR FELMINGHAM: Yes, the difficulty with the dispute settling procedure that is in the heads of agreement is of course it is not a dispute settling procedure for the heads of agreement, it is what the heads of agreement provides is that that is the dispute settling procedure which will be inserted in subsequent agreements. Now I think I in fact am involved and have been involved with the discussions with all of the hospitals regarding certified agreements covering senior medical staff and in fact it is the case that elsewhere we have not encountered an obstacle. A number of them were - certainly the hospitals that were a priority from ASMOF's point of view in terms of implementing the heads of agreement were those that hadn't previously had certified agreements.

PN94

Now they included Peninsula where the ballot closed last Friday successfully, the paperwork will be filed shortly. The Visiting Medical Officers at the Alfred Hospital hadn't had a certified agreement, the ballot is now closed at the Alfred and that was well supported and that will be filed shortly. One that hadn't previously had a certified agreement but is now not far away was Peter MacCallum Cancer Institute and the progressing of that agreement and it involved, as I presume Eastern Health would, turning a whole number of individual contracts into a certified agreement, has simply been disrupted by some administrative events. The Chief Executive Officer who I was negotiating with resigned to become Chief Executive Officer at the College of Surgeons and the group that were providing human resources services - but really there is not a problem elsewhere.

PN95

The others, we have got agreements. Ballarat I am about to file the papers today, we have not had a certified agreement there before. In theory there should really be nothing to negotiate. The negotiations were done and completed in November of 2002. What the certified agreements, as the heads of agreement says, will consist of is current conditions plus the heads of agreement terms. So that is easy. It has taken an inordinately long time in some hospitals because it has been an interesting exercise to establish exactly what the current conditions are and that is one issue, and it is an issue that is occupying on the Peter Mac.

PN96

The other aspect of course is that where we are renewing agreements, at Women's and Children's for example where the ballot also closed last Friday, they are into their third certified agreement. The one that we are replacing has terms and conditions of employment that were effectively three years old and a lot happens in a work place in three years. So there are changes that have taken place outside of the heads of agreement. But elsewhere it is not an issue and I really can't see how it can be much of an issue at Eastern Health. If there are matters that they want to negotiate that are different to current conditions as they were in November 2002, plus the heads of agreement, then they will get their turn in 2006 when the heads of agreement expires. That is when those matters should be brought up.

PN97

THE COMMISSIONER: What is the current state of discussions between the parties on this? Are the parties in discussions? Have you - - -

PN98

MR FELMINGHAM: Between ourselves and Eastern Health?

PN99

THE COMMISSIONER: Yes, have you sought - - -

PN100

MR FELMINGHAM: Subsequent to the last conference I wrote again for the fourth time to the Chief Executive Officer, I don't remember when that letter was, I haven't got it with me. I still haven't got a response. Our next step under the heads of agreement is to approach the Minister and say, "You have given this hospital a large amount of money to implement the heads of agreement, they haven't implemented it. We think you should take your money back".

PN101

THE COMMISSIONER: Right.

PN102

MR FELMINGHAM: But we haven't done that yet. Now in terms of the public interest, I think there is a couple of issues that go beyond and I know Mr Catanzariti was using just a trivial example when he was talking about office size. But there are a couple of issues that go beyond this being a trivial dispute with one employer. One is that the dispute settling procedure in the Hospital Specialists and Medical Administrators Award is not a rare animal. There are many awards that provide for dispute settling procedures that at the end of the day provide for the Commission to determine the matter and two - I won't bore you or the other side, Commissioner, with the exhibit, but just to make reference to a couple.

PN103

The Health and Allied Services Public Sector Victorian Consolidated Award 1996 to which Eastern Health is also a respondent has a very similar dispute procedure at clause 9 also of that award. Where the Hospital Specialists and Medical Administrators allows the matter to be referred to the Commission for resolution, the Health and Allied Services award provides that the matter shall be referred to the Australian Industrial Relations Commission for decision. Similarly, the Nurses Victorian Health Services Award 1992 at clause 28:

PN104

The matter shall be referred to the Australian Industrial Relations Commission for decision.

PN105

So there are a number of awards around that on their face clearly provide for disputes in work places to be referred off to the Commission and the Commission will decide. Now if there is a problem with section 89A, then it is an important problem because it means that there is a lot of awards of the Commission out there that cover a lot of people that say something that possibly they shouldn't be saying at all. However, the other aspect to - I don't know and can't speak in relation to those two awards that I have just mentioned but an aspect of clause 9 in the Hospital Specialists and Medical Administrators Award is that it was inserted in the award by consent of the parties.

PN106

So it is a very fair point that Mr Catanzariti makes that the Commission is limited by section 89A as to what it can arbitrate on. One of the matters that it can arbitrate upon is dispute settling procedures, but it would be odd if the Commission were, through arbitrating a dispute settling procedure, through that act was to be able to give itself more power than the Act would otherwise give it, and it is the old "the stream cannot rise higher than the source" situation. That is not the case though with the Hospital Specialists and Medical Administrators Award. That dispute resolution procedure was not arbitrated, it was inserted by consent of the parties and our submission would be that that puts an entirely different complexion on the matter.

PN107

It effectively brings it within the Gordonstone decision. There was another string that the High Court had to its bow in Gordonstone and that was of course the question that section 89A deals with industrial disputes, disputes in the Act are defined as interstate disputes and a dispute at a particular work place can't by definition be an interstate dispute and therefore 89A probably doesn't apply. I don't think that - it certainly wasn't the only string to the High Court's bow in Gordonstone and we would - I think what they say about proceedings akin to private arbitration is what we would rely upon and the reason the question of the definition of dispute of course wouldn't be relevant in this circumstance because I think it is section 493 of the Act extends the definition of industrial dispute to a dispute between employers and employees in Victoria in any event so it is arguable that it would fall within the definition.

PN108

But we say there is the issue of is it a good thing to have awards that seem to say one thing and mean another. Secondly, that in fact the Hospital Specialists and Medical Administrators Award isn't alone. There are many awards that in their dispute settlement procedures provide for the Commission to determine, decide, resolve, whatever, and is it significant - we say it is - that in fact this was not an arbitrated clause but a clause inserted in the award by consent of the parties. If it please the Commission.

[10.22am]

PN109

THE COMMISSIONER: Thank you, Mr Felmingham. Mr Felmingham, it has just occurred to me to ask this question. In the conferences with respect to this matter that have occurred prior to today, they were specifically about Dr Endersbee, and in great detail the particular circumstances that related to him. As I understand it from both parties the dispute between yourselves on behalf of Dr Endersbee and Eastern Health is now travelling another route and is being progressed that way. So therefore, as I understand it, from the union's perspective the matter is now a more general issue about the way that contracts are used, varied, and that sort of thing with respect to Eastern Health.

PN110

Now, my memory and it could quite well be faulty, is that that general issue and I assume you would be seeking some understandings or some principles or some criteria that would surround that happening by Eastern Health. I don't think that that has actually been a matter before me that the Commission has actually tried to assist the parties with respect to conciliation about. I could be wrong. I don't know.

PN111

MR CATANZARITI: I think, Commissioner, certainly the discussions at the two conferences related to attempting to resolve the matter with Dr Endersbee and I think when we adjourned it from before Christmas to after Christmas my recollection was that I was to get instructions specific to that matter. So you may - I think your memory is accurate in that regard, Commissioner. I don't know to what extent there has been an attempt to resolve that issue before you.

PN112

THE COMMISSIONER: Do you think that my memory regarding the history of this matter is accurate, Mr Felmingham?

PN113

MR FELMINGHAM: Oh yes, I think it is, Commissioner. I mean certainly from the first conference we had both the general and the particular issues. Inevitably though when we have got a senior person who has been sacked, that becomes an acute issue and I suppose we focused on that and certainly the dispute that we had with Eastern Health and that we notified to the Commission was a dispute not between Dr Endersbee and the hospital, Box Hill, but between ASMOF and Eastern Health in relation to contracts of employment.

PN114

THE COMMISSIONER: But I don't think that that - - -

PN115

MR FELMINGHAM: But it has not been - no, it hasn't been discussed at all before the Commission as presently constituted to my recollection.

PN116

THE COMMISSIONER: Given that situation, is that maybe the first step given that what was the focus of our collective attentions over the previous conferences is being resolved in another way, and so therefore there is an ability to return to the general, should there be consideration by ASMOF of exploring conciliation with respect to that, and then reviewing the situation with respect to the section 107 reference? That is an open question, Mr Felmingham. I am not presuming an answer.

PN117

MR FELMINGHAM: I think we would be happy to go down that path, Commissioner. I think it is still - - -

PN118

THE COMMISSIONER: Sorry, which path was that?

PN119

MR FELMINGHAM: Well the path of seeking the assistance of the Commission to conciliate the particular dispute that was notified to the Commission in relation to Eastern Health. I still have a niggle about the award saying one thing and possibly meaning something else but that is not the - - -

PN120

THE COMMISSIONER: I would be reserving your rights about that obviously, very very clearly. But I am just wondering whether given that today we are dealing with - we are going back to your original notification which was overtaken at the time by the acute matter with respect to Dr Endersbee, as all of the parties - I think we are furiously in agreement that we haven't actually - there hasn't been ventilation of the generality of the matter which is now the dispute that is being asked to be referred to the President for Full Bench. I am just wondering whether as a precursor now the matter has not changed, but we are now dealing with the general, not the specific, whether that might be prudent - - -

PN121

MR FELMINGHAM: From ASMOF's point of view, Commissioner, we would be very pleased to have the assistance of the Commission to try to conciliate the dispute.

PN122

THE COMMISSIONER: Thank you. Mr Catanzariti.

PN123

MR CATANZARITI: Well in a sense, Commissioner, that has probably been a forgotten issue, hasn't it, in these proceedings? We have all, as Mr Felmingham said, focused on Dr Endersbee and I wonder if it has been forgotten a bit. I certainly, you know, in the course of trying to resolve that or attempt to resolve it, I certainly hadn't turned my mind to that issue in great detail, certainly by the second conference, and then other events overtook it including this matter. So it may be something that is worth re-visiting.

PN124

Whether we reach agreement at conciliation, I don't hold out high hopes but much of it depends on what is being sought I suppose and perhaps that is a matter for conciliation but I am still not clear, and I am not asking Mr Felmingham to say so because it is his right not to, but I am still not clear what he would be seeking from the Commission. Assuming he overcomes what I believe might be a problem with section 89A or may not be, depending - - -

PN125

THE COMMISSIONER: Are you talking with respect - what Mr Felmingham is seeking with respect to the 107 reference?

PN126

MR CATANZARITI: No, no. Assuming that the Full Bench determines it and says, "Yes, the Commission is not constrained by section 89A", then presumably Mr Felmingham can come back here before you and then say, "Right, now I would like to pursue my dispute". What I am unclear about is exactly what the outcome of that might be. Now I am not asking him to tell me but in terms of conciliation, depending on what he is seeking it might be resolvable quite easily or it might not be. But I certainly don't think that conciliation is out of the question. Certainly it might be worth a conference to explore it. We really didn't discuss that broader issue.

PN127

THE COMMISSIONER: Okay. Mr Felmingham?

PN128

MR FELMINGHAM: Well I think - I am not sure whether Mr Catanzariti was actually suggesting we have a conference or acquiescing to the possibility that there might be one but - - -

PN129

MR CATANZARITI: Do you need my consent, Commissioner?

PN130

THE COMMISSIONER: I was about to say, Mr Catanzariti I think was indicating that - if I can put it this way and you could please correct me if I misread between the lines - but that if the outcome of today was a situation whereby ASMOF's rights with respect to the section 107 reference are reserved, but that matter is put to one side at this point in time, and that there is then a further conference of the Commission convened whereby the parties can discuss actually what is in the notification which is the general issues, the generality about - I think that is what may well be - what is developing.

PN131

MR CATANZARITI: I think that is right. If the Commission thinks that a conference would be helpful, then I certainly wouldn't disagree with that.

PN132

THE COMMISSIONER: Mr Catanzariti, that is lovely. Is that clear, Mr Felmingham?

PN133

MR FELMINGHAM: You will gather from my earlier comments, Commissioner, that neither would I.

PN134

THE COMMISSIONER: Excellent, okay. There is just maybe one question that I should ask the parties. Is it worthwhile the parties actually getting together following this morning's proceeding and actually having a discussion yourselves whereby ASMOF can actually explain in clear living colour as to what their concerns are regarding Eastern Health's approach to contracts and the methods by which they are renewed, and the parties might need to have a second discussion then so that Eastern Health can respond to the concerns. Is it worthwhile the parties actually having those sorts of conversations prior to it coming to the Commission? Would it be more efficient for you or easier?

PN135

MR CATANZARITI: Look I think it is a matter for Mr Felmingham. I am reasonably clear what the concerns are but - - -

PN136

THE COMMISSIONER: But in terms of what Eastern Health is being asked to do, I am not sure whether that has been articulated. I am not clear about that for example but I thought it might be better if Eastern Health - if it was explained to Eastern Health in the first instance as to what it is that ASMOF are asking Eastern Health to do to remedy their concerns.

PN137

MR CATANZARITI: I would certainly be assisted by that. I mean I think it puts the issues beyond doubt then so that we know what I am dealing with. Really it is for Mr Felmingham. He may decide no, he wants to be in the Commission quickly but I am happy to have that occur first as long as - I mean I don't want this to take too long. We either will resolve it or we won't so provided it is done reasonably expeditiously I have no problem with that as long as Mr Felmingham is happy with that outcome or that course.

PN138

THE COMMISSIONER: Mr Felmingham, do you have a preference?

PN139

MR FELMINGHAM: Look I think I am very happy to talk to Mr Catanzariti any time. I think in terms of what it is that we want, as I say I have written four times to the Chief Executive Officer of Eastern Health telling him or now her precisely what it is that we want. I am happy to pass on a copy of my last letter to Mr Catanzariti so it is clear to him.

PN140

MR CATANZARITI: I have a copy of that.

PN141

THE COMMISSIONER: Well wasn't that with respect to negotiating a certified agreement?

PN142

MR FELMINGHAM: Correct.

PN143

THE COMMISSIONER: Yes. The matter that is before me is the dispute that has been notified.

PN144

MR FELMINGHAM: In terms of what we want in respect of contracts of employment, that is set out in that agreement amongst other items, and it is nothing - - -

PN145

THE COMMISSIONER: It is set out in the agreement?

PN146

MR FELMINGHAM: Yes, in the proposed agreement, the draft agreement and I don't believe though that it is really even necessary to refer to that. I mean essentially what we want is what is in the heads of agreement.

PN147

THE COMMISSIONER: The '99 one?

PN148

MR FELMINGHAM: Yes, because it is the '99 provision in relation to contracts that is then picked up and preserved as it were in the 2002 one.

PN149

THE COMMISSIONER: Okay, but I assume that you would need to be clear with Eastern Health as to how you quantify the variation of fractions and non-renewal of contracts so that it is not - they are not harsh, unjust or unreasonable. It is all a bit in the eye of the beholder.

PN150

MR FELMINGHAM: And of course the other thing that needs - and this is why - I mean I don't really know at the end of the day how you get away from some form of certified agreement because it is all right to sign up to a - for Eastern Health if they were minded to and I hope they are - to sign up to a proposition that non-renewal of contracts shall not be harsh, unjust or unreasonable, but then what if they are? And again the doctors at any other hospital have access to the dispute settlement procedure through a certified agreement to resolve that. At Eastern Health they don't. So there is a whole number of ancillary things that flow from it.

PN151

THE COMMISSIONER: Yes, I hear that - - -

PN152

MR CATANZARITI: I understand what he is seeking, Commissioner. I am left in no doubt that obviously he is concerned about renewal of contracts and the use of fixed term contracts but ultimately what would settle the dispute is if Eastern Health enters into a certified agreement with ASMOF on agreed terms. I think that is probably it in a nutshell if I might put it that way.

PN153

MR FELMINGHAM: Yes.

PN154

THE COMMISSIONER: And there is no objection to having discussions with ASMOF regarding that?

PN155

MR CATANZARITI: No.

PN156

THE COMMISSIONER: Excellent, okay. Mr Felmingham, may I with respect to the section 107 reference indicate formally to the President that at this point in time, given the changed - if I characterise it by saying change in the nature of the dispute, that probably to an outsider means something different to what we all understand it, but if I advise the President in a proper manner about the generality of contract issues being the subject that you are seeking 107 reference with respect to, but that the parties are going to proceed into discussions assisted by the Commission, and that you reserve your rights with respect to activating the 107 reference at a later date but not at this particular point in time.

PN157

MR FELMINGHAM: We would be very happy with that, with respect, Commissioner, yes.

PN158

THE COMMISSIONER: Thank you, Mr Felmingham. That is fine with you for the present, Mr Catanzariti?

PN159

MR CATANZARITI: Yes, just the matter of a date I suppose if you want to issue one or if you want to give us a listing later.

PN160

THE COMMISSIONER: Well, do the parties wish to have a discussion first?

PN161

MR CATANZARITI: Look I don't know that it is that worthwhile, Commissioner. I am just thinking that I understand Mr Felmingham's position. I don't know that there is much to be gained from that. He can tell me again but I will still have to go back and do what I need to do and I suppose he could have a discussion with me straight after this for five minutes and that would deal with that aspect.

PN162

THE COMMISSIONER: Mr Catanzariti, what I am trying to do is be efficient, honestly, and I think before it comes before the Commission for conciliation, Eastern Health needs to be clear as to what ASMOF is about and I think you also - my preference would be that you have had the opportunity to respond to ASMOF.

PN163

MR CATANZARITI: Yes, all right.

PN164

THE COMMISSIONER: Okay, because if you come in here without having done that, you are going to be in a position of having to go away. Now that is fine by me, I am quite happy to do that but I heard you say that it needed to be shortly rather than longly, if you will excuse the grammar.

PN165

MR CATANZARITI: Yes, I think so.

PN166

THE COMMISSIONER: And if you come in here and Mr Felmingham says "X", and you say, "Thank you for telling me "X", I need to go away", you actually haven't moved forward from today. So that is why I am suggesting before you come to the Commission that Mr Felmingham explains it to you clearly or if you are clear now, that is fine, but then you have the opportunity before you come in here to actually formulate a response because then the Commission can actually deal with both of you equally. Otherwise I can't.

PN167

MR CATANZARITI: Well I think perhaps, unless Mr Felmingham wants to, he doesn't need to tell me what he wants.

PN168

THE COMMISSIONER: Okay.

PN169

MR CATANZARITI: And I can respond to him.

PN170

THE COMMISSIONER: Right, before you come back?

PN171

MR CATANZARITI: Yes, before we come back, yes.

PN172

MR FELMINGHAM: I am glad I have made myself clear.

PN173

THE COMMISSIONER: I failed my mind reading course, Mr Felmingham. You can both tell me where you both are I think at the next conference.

PN174

MR CATANZARITI: Are you going to set a date for that or not?

PN175

THE COMMISSIONER: Yes, I am happy to do that.

PN176

MR CATANZARITI: Okay.

PN177

THE COMMISSIONER: May I suggest I adjourn the matter and then we set the date?

PN178

MR CATANZARITI: Yes.

PN179

THE COMMISSIONER: Would that be convenient to both parties? On the basis that I have indicated earlier, this matter will be adjourned subject to ASMOF being able - seeking to re-open this and to pursue the section 107 reference at a later date. The Commission stands adjourned.

ADJOURNED ACCORDINGLY [10.40am]