C2003/6771, Transcript of Proceedings [2004] AIRCTrans 1988 (31 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS



O/N 7132
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2003/6771

HEALTH SERVICES
UNION OF AUSTRALIA

and

BROUGHTON LEA RESIDENTIAL
AGED CARE FACILITY

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged failure to
provide a safe working environment

MELBOURNE

10.18 AM, TUESDAY, 18 MAY 2004

Continued from 13.5.04

PN736

THE COMMISSIONER: Yes, Mr Rahilly.

PN737

MR RAHILLY: Thank you, Commissioner. Commissioner, yesterday I filed with the Commission by facsimile and served on the Health Services Union and a witness by Gwen Hutchinson. I would now seek to call Gwen Hutchinson to give evidence.

PN738

THE COMMISSIONER: Yes, Ms Hutchinson, you can come forward, please.

<GWENDA HUTCHINSON, SWORN [2.16pm]

<EXAMINATION-IN-CHIEF BY MR RAHILLY

PN739

MR RAHILLY: Ms Hutchinson, would you just for the record state your full name and address?---Gwenda Hutchinson, (address supplied).

PN740

Ms Hutchinson, have you assisted in the preparation of a witness statement for the purpose of these proceedings?---Yes, I have.

PN741

Do you have a copy of that in front of you?---Yes, I have.

PN742

Ms Hutchinson, are the contents of that statement true and correct?---Yes. Yes, they are.

PN743

If the Commission pleases, that is the evidence-in-chief.

EXHIBIT #R9 STATEMENT OF MS HUTCHINSON

PN744

MR RAHILLY: That is the evidence of this witness, if the Commission pleases.

PN745

THE COMMISSIONER: Mr Langmead. Mr Langmead I said, sorry.

<CROSS-EXAMINATION BY MR LANGMEAD [2.18pm]

PN746

MR LANGMEAD: Thank you, Commissioner. I thought the Commission was taking time to read the document.

PN747

THE COMMISSIONER: No, no.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN748

MR LANGMEAD: Ms Hutchinson, you have attached a curriculum vitae to your statement. Your qualifications are stated on that to be general nurse training. Can you tell the Commission when you did that?---1958. Completed in 1958.

PN749

Yes. And you have also done midwifery training?---Yes, 1962.

PN750

Over the last five years you have described yourself as a private infection control consultant. What sort of hours have you been working doing that?---They have been quite variable so I can't state so many hours a week. But at the moment I am not doing an awful lot of work. In the last month I have probably worked for three clients just doing education and audit in one facility.

PN751

And prior to that, from 1993 to 1999 you worked part time?---Yes.

PN752

And was your work prior to '99 at the Monash Medical Centre, was that full time or part time?---No, that is part time. I have worked part time in most of my careers since I have been married. Usually three to four days a week.

PN753

Ms Hutchinson, can you tell the Commission what VRE stands for?---Yes, it is a disease that is called Varcomycin Resistant Emtorococci. It is another resistant organism similar to the Golden Staph or MRSA.

PN754

And your knowledge about infection control has been gained from on the job experience, has it?---Yes, I did a post basic course in sterilisation in infection control back in 1986 and since then my work has been in infection control.

PN755

When you say the basic course what does that involve?---Post basic.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN756

Post basic, sorry?---Yes. It was a certificate of sterilisation in infection control and it was undertaken at the Mayfield Education Centre which is a centre that runs courses for health workers over a year, but part time over a year.

PN757

Your position is that standard precautions provide adequate protection for people blood borne viruses, is that right?---Yes, that is the basic premises for these precautions.

PN758

Sorry, for?---That is the premise for these precautions, yes.

PN759

And you would say that none other are needed, is that right?---There are times for particular infections where we have what we call additional precautions, depending on the way that disease is transmitted.

PN760

And you call for support for that view the Infection Control Guidelines. Do you see in paragraph 10 you have quoted from there, in paragraph 10 of your statement?---Yes.

PN761

Do you see that?---Yes.

PN762

Can I hand to you and the Commission some extracts from the Infection Control Guidelines for the prevention of transmission of infectious diseases in a health care setting. These are extracts from the same document which comprised exhibit L8, Commissioner, but they are extracts which were not in that bundle of extracts.

EXHIBIT #L9 EXTRACT FROM INFECTION CONTROL GUIDELINES

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN763

MR LANGMEAD: Ms Hutchinson, I suggest to you that you have taken that quote from page 217 about standard precautions out of context. What do you say to that?---I think we can all take sections of this document out of context and I think we - but I rely very strongly on the beginning of the document, particularly in the scope of the document where it does say:

PN764

This document is intended as a resource guide for establishments to develop their own detailed protocols to apply to their particular health setting.

PN765

Well, can I ask you to turn to page 217?---I have that.

PN766

Which is extracted there. You have got that?---Yes.

PN767

And the quote which is reproduced in your statement appears in the last sentence on that page minus the first dot point:

PN768

Standard precautions provide adequate protection for blood borne diseases and additional precautions relating to three specific routes of transmission.

PN769

And then it lists an air borne transmission, droplet transmission and contact transmission. Table 27.1 shows the three modes of transmission for which additional precautions are required. Now, that table there doesn't contain hepatitis B and if you look at 27.3 it says:

PN770

Not all diseases has been included in table 27.1.

PN771

Do you see that at the bottom of the page there?---Yes.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN772

And over the page it says:

PN773

The following viral diseases are described in further detail in section 28.

PN774

And the third dot point is:

PN775

Viral hepatitis, hepatitis A, hepatitis B.

PN776

Then at the bottom of the page you will see:

PN777

An overview of recommendation precautions for all these diseases is shown in table 27.2.

PN778

And again over the page to 20, second from the bottom is hepatitis B, do you see that?---Yes.

PN779

And under the fifth column you will see it says under immunisation and testing:

PN780

Immunise all HCWs -

PN781

Being health care workers -

PN782

particularly clinical contact laboratory staff.

PN783

?---That is right.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN784

Do you see that?---Yes.

PN785

Well, that is a clear recommendation, isn't it?---Well, it is a recommendation but they do state particularly clinical contact staff and laboratory and therefore I think they are emphasising people in health care settings where risk of contact with blood is very high.

PN786

All right. Well, you would think if the guidelines meant that they would say it, wouldn't you?---Well, I think they have said in several places that this is a broad document that applies to a wide range - they want to apply it to a wide range of health care facilities, but that it is to be a resource for particular facilities to make their own judgment that they are broad document and people are to establish their own protocols that suit their level of care and their level of risk.

PN787

Both those protocols wouldn't envisage the abandonment of recommendations, would they?---They wouldn't, no. They certainly - the whole document is based on standard precautions with additional precautions added when required.

PN788

And the whole document is predicated upon residential aged care being part of the health care setting?---Yes, I consider that is. Yes.

PN789

And it has specific recommendations or recommendations, let me put it that way, about circumstances when persons should be immunised against hepatitis B. Do you agree with that?---Yes. Yes, I do.

PN790

Now, in the bundle you have got with you, can I ask you to look at page 233, section 28.4. Do you see that, dealing with hepatitis B?---Yes.

PN791

That is the part that was referred to in the earlier part which we visited before, do you recall that?---Yes.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN792

And under the heading of hepatitis B it deals with issues, transmission modes of transmissions, management and then you will see on page 236, HCWs, under health care workers:

PN793

HCWs will often encounter chronic carriers of HBV in health care establishments and specific provision should therefore be made to protect them. All HCWs should therefore be immunised against HBV using the schedule in the immunisation handbook.

PN794

Are you saying you disagree with that?---I am saying that I have got no problem with hepatitis vaccinations, I strongly recommend it, but what I am saying is that most aged care facilities and smaller facilities recommend their staff do have hepatitis B vaccinations. There is no question about that, but it is whether - I think the point is whether they provide it and give it to them or not.

PN795

A reason they recommend it and, for example Blue Cross, you are aware of - sorry, I withdraw that. How long have you been doing work for Blue Cross?---I have only been consulted about this particular event.

PN796

When did you first get asked to do that?---Within the last couple of weeks.

[2.30pm]

PN797

Now, you conscious of there are standards in relation to these matters, are you?---Yes, I heard a lot of evidence.

PN798

Yes, of course. You were present in the Commission on the last occasion?---Yes.

PN799

And you recall that they recommend that all staff who have contact with and provide care to residents, those working in the laundry and cleaners and maintenance persons are advised to be vaccinated against hepatitis B?---Yes.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN800

And you say that a number of other residential aged care facilities that you are aware also recommend it?---Yes.

PN801

And the reason for that recommendation is because those persons are at a greater risk than the greater populace of contracting hepatitis B, isn't it?---Yes, I think I would agree with that.

PN802

And you will recall - well, perhaps can the witness be shown exhibit L8, please, Commissioner? I apologise not having a spare copy. This is another collection of extract which you heard referred to on the previous occasion. Now, there is a specific chapter in the Infection Control Guidelines headed Protection for Health Care Workers?---Yes.

PN803

And it reproduces the sorts of suggestions that I have already put to you. For example, on page 187 it says:

PN804

HCWs who have not been previously immunised should be offered the following vaccinations, hepatitis B.

PN805

Do you see that?---Yes, this is assessment and immunisation of health care workers before employment or rostering.

PN806

Yes?---I mean they also go on to talk about tuberculin skin testing on that same page and that certainly isn't in question in this setting. So that is why I am saying it is a broad document trying to cover details for all health care settings.

PN807

If this document had intended to exempt residential aged care workers you would expect it would have said so, wouldn't you?---I don't know that I would because of the beginning of the document where they make all those statements saying that it is to be intentionally a broad document that establishes national guidelines and that they are to be applied to the specific health care setting.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN808

Are you relying on the extracts you have put in your statement, are you, to make that statement?---Well, that is what I am reading from now but - - -

PN809

Well, before you close that document?---Yes.

PN810

I just remind you that at page 189, under 22.3.3, first dot point:

PN811

HBV immunisation should be offered to all non immune HCWs, particularly those with potential exposure to blood or body substances, preferably before starting employment or soon as possible afterwards.

PN812

And while we are on this document, Ms Hutchinson can I ask you to just look at paragraph 22.3.4 regarding the records that health care establish and should develop, maintain and regularly update immunisation health screening cards and/or records for all HCWs during the period of their employment. I think you at one stage quoted the last paragraph on that page:

PN813

It is recommended that HCWs maintain their own personal records of all immunisations and screenings.

PN814

You would accept that the Infection Control Guidelines expect an obligation of health care establishments to maintain similar records?---I find that in practice extremely difficult in this particular setting.

PN815

You accept that that is what it recommends though?---It does say that, yes.

PN816

Now, the Infection Control Guidelines have indeed got specific chapters referring to various health care settings?---Yes.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN817

You recall that from your familiarity with the guidelines?---Mm.

PN818

You are familiar with the guidelines, obviously?---Yes.

PN819

And one of those is long term residential aged care?---Mm.

PN820

And most of the recommendations in that chapter deal with obligations of the establishment itself. In a way it is providing various cautionary measures and doesn't deal with staff in particular. It doesn't particularly deal with staff?---No, it doesn't. Yes.

PN821

And so I suggest to you that chapter 22 is in fact the broad overriding guidelines in respect of employees of health care workers?---Yes, it is certainly a very small chapter for long term care establishments and it doesn't say anything specifically about health care workers on my quick look here.

PN822

And given that you would expect that the chapter which deals with health care workers would be comprehensive. It is not qualified in any way, is it?---Well, it hasn't qualified. No, it hasn't but - - -

PN823

Chapter 22 isn't qualified by anything else in the guidelines, is it?---Chapter 38?

PN824

No, chapter 22. Commissioner, we did have a limited extra set last time. Does the Commission have that or not?

PN825

THE COMMISSIONER: No?---Chapter 22 does make qualifications about various diseases.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN826

MR LANGMEAD: Well, it doesn't make any qualifications in respect of workers in the residential aged care in respect of hepatitis B, does it?---No, no, it doesn't. No, it doesn't.

PN827

It is an unqualified recommendation that they should be immunised and they should be offered immunisation by the employer. That is correct, isn't it?---Well, I could reading those particular sections, yes, but reading the whole, particularly the preface of the document, that is not the way that I interpret it.

PN828

Now, have you read the 2004 Infection Control Guidelines?---I actually had a notification by e-mail yesterday that that will be out in print within a month. I will get a copy of that within a month, but the only other document that I have is this one.

PN829

I can't read that from here?---Well, that is the 2002 one, the one that you have - - -

PN830

Yes, okay?---And I really don't believe that there will be any changes from this with the one that will be out in print next month.

PN831

I have in fact, and I can't say all of it, Commissioner, because it is 551 pages long, but I have compared relevant sections to the ones we have been discussing today and I can tell you that there doesn't appear to a lot of differences. I would like to hand a copy of extracts to the Commission. It did only come out on Friday, Commissioner.

PN832

THE COMMISSIONER: Well, it appears it is available electronically anyhow.

PN833

MR LANGMEAD: Sorry?

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN834

THE COMMISSIONER: It appears to be available on the web.

PN835

MR LANGMEAD: Yes, it is, Commissioner.

PN836

THE COMMISSIONER: Well, that is where you got it from.

PN837

MR LANGMEAD: Yes.

EXHIBIT #L10 2004 INFECTION CONTROL GUIDELINES

PN838

MR LANGMEAD: And I think Ms Hutchinson is correct in that it may not yet be available in hard print other than getting it off the net yourself.

PN839

Ms Hutchinson, there was quite a long ongoing process of updating these guidelines, wasn't there?---Yes.

PN840

Did you make submissions to the people who were doing that?---No, I didn't but I had the opportunity reading the original documents and having the ability to do that, but I didn't forward any suggestions. I have certainly discussed it with other colleagues.

PN841

You didn't suggest - I withdraw that. Are you aware of any suggestions that were made in respect of the non applicability of the guidelines to health care workers in residential aged care?---No, but in my discussions with other infection control practitioners within the aged care setting we all agreed that this document was a very good infection control guideline but it was used, as I have said now, as a broad document that we would then use to moderate some of the suggestions, moderate some of the actual recommendations there.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN842

So if it suits you, you can exempt yourself from sections of it, is that right?---I think we way look at it is that we go back to risk assessment within the area that we are dealing with. For instance, even in an acute hospital the difference in standards within an operating room and maybe a general ward would be different, much higher level of infection control in an operating room than there would be in a general ward and so it goes to a low care facility like an aged care facility.

PN843

Yes, well, on your argument the standard cautions would take of blood borne including in an operating environment, wouldn't they?---It would but they would use much more protective equipment for instance in an operating room than you would in an aged care environment.

PN844

You have said that there is no argument against the value of hepatitis B vaccinations but you seem to have a number of qualifications to that. Can I firstly clarify, you accept that it is a good thing to recommend to residential aged care workers that they are immunised against hepatitis B?---Absolutely. Anybody who is at risk of being contaminated with blood in particular but body substances for the transmission of other infections like bacterial and fungal infections.

PN845

Yes, all right. Now, you said that approximately 10 per cent of people who complete the course of vaccinations do not sero-convert. I suggest to you it is more than 90 per cent who do convert?---I wish I had kept this document, but whilst I was working at St George's Hospital I had the opportunity of being part of a survey that the department ran in relation to hepatitis B vaccination with staff and they were doing that to try and establish the criteria for sero-conversion and the response to that, though that was some years ago, was approximately 10 per cent and mainly in that older age group.

PN846

Do you know what size of each dose of immunisation was?---The actual dose?

PN847

Yes?---I would have to look that up but I would imagine that it is either point 5 or 1 mil.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN848

Yes, and there is a difference between the two depending on the person receiving it, isn't there?---The type. The two types of drug that are available?

PN849

The two measurements?---The two measurements?

PN850

Yes?---Yes. That is the measurements of the vaccine you are saying?

PN851

Yes?---Yes.

PN852

Yes. And it is case, isn't it, that children and adolescence will successfully convert with a point 5 mil dosage on three occasions?---Yes, yes.

PN853

Adults over 20 might need a 1 mil - sorry, do get a 1 mil?---Do get a 1 mil, yes. The ratios are different depending on the age.

PN854

That hasn't always been the case, has it?---In my experience when hepatitis B vaccinations first came out, for adults, because I haven't been involved in children's vaccinations, but in adults it was a course of three vaccinations and then a booster within two years. They have now found with research that that booster is not required. So it has been the three 1 mil vaccinations all the time.

PN855

And it was the 1 mil, was it?---Yes.

PN856

All right. And you say that people over the age of 40 are less likely to convert. What is the proportion do you say?---That is where I get the approximately 10 per cent of people don't sero-convert. Overall the majority of them are the older age.

PN857

Yes. And 58 per cent of personal carers are aged over 40 years. Can you tell the Commission where you get that figure from?---Yes, that was a workforce census from 2003.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN858

For?---For aged care workers.

PN859

Geographical area?---Victoria, from my understanding.

PN860

When you say your understanding, did you look the figures up yourself?---No, no.

PN861

Who gave them to you?---I got the figures from the Aged Care Association.

PN862

Did you get them for the purpose of this statement?---Yes.

PN863

Now, you see in paragraph 15 and this on page 4 of the copy that I have got and the second dot point:

PN864

The movement and rapid turnover of staff within the aged care industry make it very difficult for the employer to control the vaccination process to ensure compliance with this process.

PN865

What do you mean by that?---I suppose from my knowledge more particularly in the aged care sector there seems to be a large movement of staff and that was supported by that census figures.

PN866

You mean somebody told you that that was the case?---No, in this census figures it says that 24 per cent of care workers have been in their current job for less than one year, 22 per cent of care workers work for more than one employer and there is figures about part time workers, etcetera.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN867

All right, yes. Now, why do you say that it is difficult for the employer to control the vaccination purposes - process, sorry?---Well, if you have a facility of 40 beds, well, then the likelihood, I am guessing here, but the ratio of staff would be at least double and probably more. So it is lot of - not all of those would require hepatitis B vaccinations. It would only be the ones in contact with body substances and blood in particular. But because of the rotation and the movement of staff from one job to another that is an awful lot of administration work to get people to bring in copies of their vaccination certificates from their doctor, etcetera. It is really a logistical nightmare in small facilities.

PN868

I am still not clear, what is a logistical nightmare?---Well, keeping, for an employer to keep a copy of the vaccination status of all their employees. It is an awful lot of work I would imagine.

PN869

THE COMMISSIONER: Why?---Why? Because - - -

PN870

Why is it a logistical nightmare? They are your words and I am trying to understand why it is?---Okay.

PN871

They don't seem to have the same problem of records in respect of tax file numbers or any of those sorts of things so why would it be such a nightmare?---Well, I suppose if you had, I don't know, an employee base of, you know, 50/100 people, well, then you are relying on those people to come to you with their pieces of paper and put it in - - -

PN872

No, they are not going to get an allowance unless they do. That is the proposal?---Yes.

PN873

So you are not relying on them?---So it is a - - -

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN874

It would be a very attractive opportunity for them to get refunded the money they have expended, isn't it?---Well, if you had that - - -

PN875

And the alternative - well, you have addressed the nature of the order that is sought and the nature of the order that is sought in its general terms is either they pay on the production of proof or they provide the vaccination. Now, if the employer is providing the vaccination where is the logistical nightmare?---Well, I agree if there was - - -

PN876

And if people are - - -?--- - - - the opportunity of payment, well, I am sure the majority of them - - -

PN877

Well, you address the order in your statement?---Yes.

PN878

So you were aware that that was what was being sought, so in that context where is the logistical nightmare?---Yes, well, I suppose I was thinking of the work entailed in small facilities where they don't have a lot of administrative to do this rather than looking at the other - - -

PN879

Isn't it just a matter of recording that a person has had an hepatitis vaccination number 1, number 2, number 3 and they have had a blood test and the money has been paid?---Well, I suppose it is, yes, but it would take a fair amount of time from somebody in that small organisation.

PN880

But it is short of a nightmare?---Mm.

PN881

MR LANGMEAD: Ms Hutchinson, have you ever worked in administration in residential aged care?---Not in residential aged care, no. In acute care.

PN882

Or management in residential aged care?---No.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN883

And I think you agreed much earlier that the ICG state that the employer should keep such records?---Yes. It is certainly in the guide.

PN884

Now, you have addressed order but I suggest to you - well, I withdraw that. What do you think the order sought by the union does? Well, perhaps I will ask you some specific questions, Ms Hutchinson?---Yes, yes.

PN885

You have said the qualified vaccinators must give vaccinations and you put this forward as a reason why the proposed order would be impractical. Can you explain why you have that view?---I suppose my original thought was that the employer themselves were to give the vaccinations and I was just pointing out that that is no longer acceptable, that the employee would have to go to a doctor or a local community centre for their vaccinations.

PN886

Why did you think it would be other than that?---Because in the past that has been the practice, many years ago, so that is why I was clarifying that.

PN887

Have you seen the draft order that is the subject of these proceedings?---No, I haven't.

PN888

So when you have said you question the practicability of the proposal what are you talking about?---Well, I understood that the order was that the employer was responsible to provide the hepatitis B vaccination but maybe I am wrong.

PN889

Well, if you knew that that wasn't the case then that would remove that objection, would it?---The part of actually getting it, yes.

PN890

See, the order seeks, as the Commission just previously indicated, that if an employee who has been vaccinated - I will ask the Commission's associate to pass a copy of exhibit L5 to the witness. So the substance of the order is contained in paragraph 3. Now, there is nothing impractical about that order, is there?---Yes, I suppose it is my interpretation with providing it, but in fact - that is what I considered to be impracticable and now against guidelines.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN891

And indeed if an employee in a - well, I withdraw that. You know that Blue Cross are not offering to provide vaccination, don't you?---Yes.

PN892

In those circumstances if the employee takes responsibility themselves for getting vaccinated they would go to their own doctor, wouldn't they?---Yes, either that or the - - -

PN893

And there is nothing in - well, in fact that is consistent with what you would expect of them?---That is right.

PN894

That if their employer doesn't provide them with vaccination they would be very wise to go and obtain vaccination themselves?---To have.

PN895

And the only objection you have is that you think it is unfair for the employer to pay, do you?---I suppose my basic thought is the financial one. If the employer had to pay for the vaccinations this would be a large amount that would be ongoing and is not today budgeted for.

PN896

If that was a problem you would expect the employer to say that, wouldn't you?---I suppose so. Yes, I imagine that - - -

[3.00pm]

PN897

And it is certainly not a clinical issue that you can comment on, is it?---No, it is not.

PN898

And you don't know whether this employer has any ability to pay this amount or not?---No, I don't.

PN899

Now, the resident in question, you have said a number of things about the level of risk of staff being infected from this particular resident being extremely low and you provide a number of reasons. The dot point:

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN900

She does not require medication via injection.

PN901

That could change, couldn't it?---It could. Any of those things really could change.

PN902

Yes. And in respect of the care plan that was tendered to the Commission on the previous occasion, that was I think admitted to be a care plan which was prepared for the purposes of this proceeding?---I understood that it came - - -

PN903

MR RAHILLY: With respect, no. Before you answer. That wasn't the case, Commissioner. That was the care plan.

PN904

THE COMMISSIONER: No, I don't think that was the case.

PN905

MR LANGMEAD: I thought that was the evidence of the witness, Commissioner.

PN906

MR RAHILLY: No, it wasn't.

PN907

THE COMMISSIONER: That is not my recollection and I don't have the transcript.

PN908

MR LANGMEAD: Yes, I don't have - - -

PN909

THE COMMISSIONER: Because my recollection is that it was done on 26 April as a standard part of the cycle.

PN910

MR LANGMEAD: No, that was another document, Commissioner, with respect.

**** GWENDA HUTCHINSON XXN MR LANGMEAD

PN911

THE COMMISSIONER: Well, it was done on 26 April. My memory is right about that bit.

PN912

MR LANGMEAD: I think it was R4 was that done a continuing basis.

PN913

THE COMMISSIONER: Yes, that is the resident care plan.

PN914

MR LANGMEAD: I apologise. I have identified it wrongly. It is the risk assessment control overview.

PN915

THE COMMISSIONER: Yes.

PN916

MR LANGMEAD: I apologise for that.

PN917

THE COMMISSIONER: So my memory is not bad, but perhaps you could put the question to the witness again.

PN918

MR LANGMEAD: Yes. I hadn't intended to mislead you, Ms Hutchinson.

PN919

THE COMMISSIONER: But I am not sure that she has referred to it in her statement, has she? I mean you are quite at liberty to put it to her but I think the relevance mightn't be what you thought it was.

PN920

MR LANGMEAD: Yes. No, it was my error, Commissioner. Thank you, Commissioner.

PN921

THE COMMISSIONER: Re-examination?

<RE-EXAMINATION BY MR RAHILLY [3.03pm]

**** GWENDA HUTCHINSON RXN MR RAHILLY

PN922

MR RAHILLY: Thank you, Commissioner.

PN923

Just one matter, Ms Hutchinson. Could you have a look at exhibit L9 which is the further extracts that were provided, of the Infection Control Guidelines and could I just take you again to table 27.2 on page 220. You were directed to the box, if I can describe it, of hepatitis B?---Yes.

PN924

What are the recommended precautions in that table?---Standard precautions.

PN925

Yes, thank you. I have no further questions of this witness.

PN926

THE COMMISSIONER: Yes, thank you, Ms Hutchinson for your assistance. You are free to remain if you wish or you can go. It is a matter for you.

<THE WITNESS WITHDREW [3.04pm]

PN927

MR RAHILLY: If the Commission pleases. This matter involves by way of a dispute notification pursuant to section 99 of the Act a request for the Commission to make an order known as the Broughton Lea Residential Aged Care health and allied employees vaccination allowance order 2004. The case which is put in support of the order is that there are certain guidelines or codes of practice that existing in relation to infection control in the community which suggest that it is reasonable that the Commission make an order requiring my client to pay in circumstances where an employee to whom the order applies, proceeds to have a vaccination.

PN928

The order talks about an employee who has been vaccinated against hepatitis B whilst in the employ of Blue Cross, or immediately prior to commencing employment with Blue Cross and in anticipation of so commencing employment being entitled to what is said to be an allowance equal to the amount of any expense incurred on production of receipted accounts, or other evidence acceptable to Blue Cross. Then there is an alternative, namely, that if Blue Cross offered to provide the vaccination at its expense then such a payment would not apply.

PN929

The Infection Control Guidelines and the National Occupational Health and Safety Code of Practice are not laws requiring an employer to do any of the things which the order requires. What the Commission is then being asked to do is to impose a legal obligation on my client to do something which it is not legally bound to do at this point in time.

PN930

THE COMMISSIONER: That is pretty standard for the Commission though, isn't it? Isn't that what we do all the time?

PN931

MR RAHILLY: Well, it maybe, Commissioner, but it is done on the basis that it is reasonable because those guidelines suggest or recommend that employees be vaccinated against hepatitis B. The issue then becomes is it reasonable in the circumstances of this particular matter, which as the Commission is aware, is based upon the particular circumstances of one resident in one aged care facility who is a carrier of hepatitis B, that the employees or those to whom the order will apply, be vaccinated.

PN932

It is submitted with respect that that is not reasonable. It is submitted with respect that the clear evidence before the Commission in relation to that resident is that vaccination is not necessary, nor is it reasonable in the care to be delivered to that resident. The risk assessment makes that clear. The evidence of both Ms Lindsay and Ms Hutchinson make it clear that standard precautions are sufficient within this facility to cater adequately and protect adequately those employees from the risk of infection.

PN933

Now, with respect, that says that this order or this matter should not be entertained by the Commission, that the Commission should reject the application if that is what it is. The National Occupational Health and Safety Code of Practice clearly spells out a process for infection control. It is a standard process which every health care setting would undertake. That is, that a risk assessment be undertaken when the risk has been identified and that the risk controls that are necessary in order to prevent the risk from becoming substantial or unacceptable are put in place. My client has done that in relation to this resident.

PN934

There is ample evidence for the conclusion that in relation to this particular resident the risk of infection is low or minimal and there is evidence of that before the Commission. All of that suggests, with respect, that the basis upon which the order is sought simply does not exist. It is further submitted, with respect, that not all of the staff within Broughton Lea are those who will come into contact with blood or bodily fluids of this resident and, with respect, it is submitted further that is more likely - or less likely rather, that employees who in terms of paragraph 2 of the proposed order are persons eligible for membership of the Health Services of Australia.

PN935

The Commission has heard that in relation to contaminated materials, be they continence aids or bed linen, things of those sort, that they are disposed of or transported in a safe non infectious fashion. So that the likelihood of contamination of such employees is minimal to zero. One then wonders how far this order would in the practical sense extend. It is submitted, with respect, that when one considers what this order seeks to do it is clearly to require the employer to pay or to reimburse an employee for the cost of that employee being vaccinated for hepatitis B.

PN936

It does not impose any obligation on an employee to have a vaccination. It simply imposes an obligation on the employer to reimburse an employee who chooses to have a vaccination. With respect, it is submitted that in that sense the provisions of clause 3 of the draft order could not be characterised as an allowance. It is not something which is payable when an employee is required by an employer to do something which is not contemplated within the wage rate of that employee.

PN937

For example, I draw the Commission's attention to a vehicle allowance which is contained within the award. That is an allowance which is payable to an employee when the employee is required by the employer to use their own vehicle for the purposes of the employer in the performance of their work. I draw attention also to an allowance or a travel allowance, which is a reimbursement allowance, which requires an employer to pay the costs incurred by an employee whilst travelling for the purposes of performing their duty for that employer.

PN938

In every case these allowances or reimbursements require an obligation on the employee by the employer to do something. Clearly in this circumstance no such obligation by the employer exists. No such obligation on the employee exists in any event under this proposal. If that is so, with respect, then that is what is being proposed cannot be characterised as an allowance and it therefore cannot meet the requirements of section 89A of the Act. If I am right about that then the Commission has no power to make the order which is being sought.

PN939

I would say, with respect, Commissioner, that the matter is properly characterised as an occupational health and safety issue. The Commissioner has already heard that my client is presently subject to an improvement notice issued by Worksafe Victoria requiring my client to do effectively what this order requires it to do. That is, to offer immunisation to its employees at its cost. Now, that is something which falls fairly and squarely within the provisions of the Occupational Health and Safety Act 1985 of Victoria and that is where it should lie.

PN940

The Commission would be aware of the provisions of section 97 of the Act which require the Commission to have regard to State laws in relation to safety, health and welfare and it is my submission, with respect, that in the circumstances before the Commission in this matter, having regard to the State laws in relation to safety, health and welfare mean that the Commission ought not entertain this particular draft or proposed order because to do so is to not have regard for the safety, health and welfare legislation in the State of Victoria.

PN941

Commissioner, the order proposed has a number of practical defects, it is submitted. The Commission has heard evidence about the transient nature of employees in aged care.

PN942

THE COMMISSIONER: Well, 24 per cent have been there for less than 12 months. It hardly adds up to transient, if that is what you mean by transient. That is the only evidence I have got.

PN943

MR RAHILLY: That is correct and I submit, with respect, that that does constitute a fairly transient nature of employment. I mean it is a period of less than 12 months, the evidence was.

PN944

THE COMMISSIONER: Yes, but it is less than a quarter of the workforce too.

PN945

MR RAHILLY: It is less than a quarter of the workforce.

PN946

THE COMMISSIONER: Yes, there is nothing. What do I compare it with, McDonald's?

PN947

MR RAHILLY: With respect, there is no evidence about McDonald's.

PN948

THE COMMISSIONER: I mean it is a relative concept.

PN949

MR RAHILLY: Yes, I understand that. But, Commissioner, when you take that together with the evidence that the vaccination program takes a period of seven months, then there is every likelihood that some or all of the employees who choose to be vaccinated in the circumstances considered by the order, may not complete the vaccination program.

PN950

THE COMMISSIONER: But we are not - I mean your best place to tell me about what the situation is as Broughton Lea in terms of the workforce turnover.

PN951

MR RAHILLY: My instructions are it is similar to that which has been given in evidence. But what that suggests, with respect, goes back to the question about what this matter is really all about. It is about the vaccination of employees. It is not about the payment of an allowance. The underlying question here is will employees be vaccinated. They are not being required to be vaccinated. The Commission can't require them to do that.

PN952

The Commission can only provide for, or seek to provide for a payment in the event that they choose to do it. Now, my view I expressed is that in that sense it is not an allowable matter.

PN953

THE COMMISSIONER: No, I understand that submission.

PN954

MR RAHILLY: But it submitted with respect - - -

PN955

THE COMMISSIONER: I thought you were addressing the practical defects with the proposed order.

PN956

MR RAHILLY: Yes, I was. I was, and it is a practical defect it is submitted that the order does not seek to require any employee to do anything. It simply provides for a payment to be made to an employee if they choose to do something. Commissioner, the other aspect of this is that notwithstanding that my learned friend in his opening submissions put to the Commission that this is an application limited to Broughton Lea Aged Care Facility, the Commission would consider that the evidence which has been brought in these proceedings is of a far more general nature and very little focus has been put by the HSUA on the particular circumstances that brought about the union seeking this particular order.

PN957

Namely, that it relates to one resident who is a hepatitis B at Broughton Lea Aged Care Facility. It is submitted, with respect, that there is significant potential for flow on should the Commission grant this order and that being the case it is submitted that the method by which the HSUA has sought this order, that is, by way of a section 99 dispute, the settlement of which is a proposed order, is a wholly inappropriate method by which the Commission should deal with this issue.

PN958

With respect, the appropriate course is that given the potential for flow on, the appropriate course would be that if the union is committed to the principle which it has put through its evidence in a far more general way than that which it seeks to achieve by the order, then it should be required to make a general application in relation to the award and thereby giving the vast number of respondents to whom such an application would apply, the opportunity to be heard. In other words, what is being done, it is submitted, is the thin end of the wedge and the Commission should not have a part in that.

PN959

Commissioner, if you are against me on those arguments it is submitted that because, as I have just said, the order seeks to be specific to one facility in relation to one set of circumstances, that the order should be limited in its operation to the continued existence of that set of circumstances. What I mean by that, with respect, is that the whole case is predicated on the existence of the resident, the resident hepatitis B carrier. Should that resident depart the facility for some reason then the whole basis upon which this case is predicated disappears and the order should disappear with it. If the Commission pleases, they are the submissions for the respondent.

PN960

THE COMMISSIONER: Yes, thank you, Mr Rahilly.

PN961

MR LANGMEAD: Commissioner, I don't think I actually got to put my case but I think it is fairly apparent from - - -

PN962

THE COMMISSIONER: Well, you can do it all in reply, can't you?

PN963

MR LANGMEAD: Well, I can. The matters which I took the Commission to in introducing the documentary material, plus the evidence of Dr Sutcliffe, it is quite apparent what our case is about and my friend has not mistaken what we have been on about. Commissioner, you did ask me on the previous occasion to see if I could identify passages in the Infection Control Guidelines.

PN964

THE COMMISSIONER: Yes. Well, no, it wasn't. It was the - - -

PN965

MR LANGMEAD: It was a question of whether it covered residential aged care.

PN966

THE COMMISSIONER: Covered the particular place. Yes, that is right.

PN967

MR LANGMEAD: If I can take the Commission to L9, these are the additional references.

PN968

THE COMMISSIONER: Yes.

PN969

MR LANGMEAD: Page (iv), under a heading Part V Infection Control in Specific Health Care Settings:

PN970

This section identifies the major health risks and the management procedures in the specialised health care settings. These include operating rooms...

PN971

etcetera and at the conclusion of that paragraph, residential aged care. At page (xiii) within the preface, the second sentence:

PN972

The scope of ICG is broad and applies to a wide range of health care establishments, including ...(reads)... care establishments.

PN973

Page 4, under the heading of Infection Control Strategy:

PN974

These health care associated infections could occur in any health care setting, eg, hospitals, general practice...

PN975

etcetera, including residential aged care. Page 4, under the heading 1.1.1, Scope:

PN976

Health care establishments refers to any facility that delivers health care services. They could be hospitals...

PN977

and a number of examples, residential aged care. The final papers in that bundle, sir, are page 37, 40 and 41 being extracts of the glossary where one would hope that it would make it crystal clear but unfortunately it goes back to a circular definition. Under health care establishment it is:

PN978

The institution or organisation responsible for health care delivery.

PN979

And over the page, health care establishments. The closest you get to it is domiciliary, nursing services. But it is our submission that having regard to the words that I have taken the Commission to it is quite clear that residential aged care is the type of facility that is included as a health care establishment. The Commission will also recall in the previous discussion about L8 that the context of a number of the comments there demonstrated that it was dealing with aged care and the Commission will recall the reference to the Commonwealth Legislation requirements of aged care facilities.

PN980

Commissioner, exhibit L10, just for completeness, repeats many of these references and at page (iv), under the same heading, Part V Infection Control For Specific Health Care Settings, refers to residential aged care.

[3.30pm]

PN981

Again in the preface, the first paragraph, long term residential care establishments. Infection control strategy on page - well, it is headed 1.1 but I am not sure that that is the page number. Indeed it doesn't seem to have page numbers on the print-out, but the second dot point:

PN982

Health care association infections could occur in any health care setting including - - -

PN983

THE COMMISSIONER: It is just a reprint of what we have seen already before.

PN984

MR LANGMEAD: I think it is almost identical wording if not identical, sir.

PN985

THE COMMISSIONER: It is just the layout is different by the look of it.

PN986

MR LANGMEAD: And while we are on that document, Commissioner, it is 22.1, protection for health care workers, introduction, this is the second sentence of the first paragraph:

PN987

HCWs in this context include all HCWs have the potential for occupational exposure to infectious ...(reads).... immunisation.

PN988

Immunisation is dealt with at 22.3. There is a table under 22.4 which is table 22.1 and it is in similar form to, if not identical, to the form we have already seen. Immunisation:

PN989

HCWs who have not been previously ...(reads)... hepatitis B.

PN990

Again under 22.3.3, immunisation, which is the following page:

PN991

HCWs should therefore be offered the following immunisations.

PN992

The second dot point:

PN993

Hepatitis B immunisation is recommended for all staff directly involved in patient care, or the handling of human blood or tissue.

PN994

And the heading at the top of the page is 28.9. It is actually under 24.4.3 and it is the second last page of the exhibit, with the heading Health Care Workers:

PN995

HCWs will often encounter chronic carriers of HBV in health care establishments and specific provision ....(reads)... handbook.

PN996

And whilst that hasn't been reproduced, it contains the same recommendation. Commissioner, the clear unqualified position arising from the ICG guidelines, Infection Control Guidelines, is that all health care workers, including those working in residential aged care, should be immunised against HBV. The last paragraph I referred the Commission to makes it even clearer that that is the case where they are in contact with carriers of HBV.

PN997

In fact the guidelines proceed on a basis that because you maybe exposed to HBV you should be immunised and you should be immunised by the employer, or on offer from the employer. We don't ask for that and I have said that before, that what we seek is the ability in circumstances where the employer says it is not going to offer immunisation, that any employee who takes it upon themselves to go and get themselves immunised and incurs expenses for doing that can seek reimbursement by way of an allowance for that expense.

PN998

Mr Rahilly had a number of objections to our case. First of all he said that the standard precautions were sufficient. Now, in my submission the evidence of all three witnesses undermine that proposition. All three - I withdraw that. Dr Sutcliffe's position was quite clear. She said that all of these workers should be immunised and that to not do so, she went so far as to say, I think the words are negligent and foolhardy. That is exhibit L6. The other two witnesses called for the employer conceded that it is certainly recommended and it is desirable that workers of this sort are exposed to a higher risk than those persons who are not working in a health care setting and it is my submission that ultimately it is a necessary corollary of their evidence that if they work with a carrier HBV then that entails a greater risk of itself.

PN999

This case was brought about by the presence of this resident at Broughton Lea. The case arose as a dispute between the employer and employees through their union because of the discovery that there was an HBV positive , if that is the description, that is a carrier of HBV as a resident. It was also of course because the employer refused to offer vaccination itself. The application doesn't go beyond that and nothing we have said suggests that that would be the case.

PN1000

Mr Rahilly said that there were flow on implications. Well, to the extent that there might be flow on implications from any decision of the Commission, I suppose that is so, but inevitably one must be able to point to circumstances which are the same or similar in a particular case which apply to all other cases. It would obviously be fairly easy to distinguish the circumstances in this case, namely, that it is about a specific known case where a resident is an HBV carrier.

PN1001

He suggested that an appropriate course if we seek more should be to make a general application. Well, we don't seek more and we didn't make a general application. We made a very confined application to deal with a specific dispute at a specific facility operated by Blue Cross. Not across Blue Cross. It didn't go anywhere near the industry. Specific to one location and for the reason that there is a resident there.

PN1002

Now, if there were to be flow on implications Mr Rahilly's client told the Commission that there was going to be some sort of industrial association was going to come along and make submissions that it would seek intervention. I think there was even a threat contained in L1 to the effect a Full Bench reference might be sought. All of that could have been done if others felt that there were flow on implications. If the industry was worried, as it has apparently said it was - or as it did say it was, it said and this is the Aged Care Association, that it will take steps to ensure that any application is dealt with by the Commission on an industry wide basis.

PN1003

They don't seem to be here, Commissioner. Nor have they been here since they sent that letter and I don't know whether they were ever here. I think not. Mr Rahilly says if the resident departs the order should disappear. Well, he can make that application to set aside any order that might be made if the circumstances changed. The Act specifically envisages that. He also invited the Commission to find that there was no jurisdiction because it wasn't an allowance.

PN1004

The Commission will recall that I referred to the statement of principles which is an attachment to one of the 2003 national wage cases. It was PR002003, the extract of the attachment, and the allowance clause that I had examined was paragraph 5(f) which dealt with the adjustment of allowances and service increments being new allowances to compensate for the reimbursement of expenses incurred maybe be awarded where appropriate having regard to such expenses.

PN1005

Commissioner, it is quite clear that this is an allowance to compensate for the reimbursement of expenses incurred. It is not different to the sort of allowances which the Commission regularly provides for in its awards. For example, in respect of protective clothing, or perhaps in this industry and I don't know whether such a provision particularly exists, but for soiled garments, that you either are provided with garments which are cleaned and washed by the employer or you can get a laundry allowance.

PN1006

I am reminded that there is a tool allowance which if the employee isn't provided with tools and provides his or her own then they receive an allowance in respect of that. Protective clothing, boots, hard hats, if you provide your own at your own expense the Commission has and no doubt will continue to provide reimbursements.

PN1007

THE COMMISSIONER: I think his point was a bit more subtle than that. It was that in those cases the employer requires - it is as a result of the employer's requirements that the particular expense is incurred, whereas here there is no employer requirement. That is as I understood his submission.

PN1008

MR LANGMEAD: All right. Well, I will come to an argument as to what really is required because in my submission the employer's own document suggests that it is required. But as a definition of an allowable matter, we are talking about jurisdiction here, the allowance has indicated in the national wage guide principles is to compensate for the reimbursement of expenses where appropriate having regard to such expenses. Now, it is not qualified by it being expenses that have been incurred because you have to incur them.

PN1009

It seems that the President didn't have such concerns when he said that the Commission should continue to hear the matter. It wasn't a matter of course debated at that level and it hadn't been raised with the President, but nevertheless, it is my submission on the face of it is quite apparently an allowance within the compass of the statement of principles and within the compass of section 89A. Now, if one looks at the standards document in document R7, the employer requires at 4.7(21):

PN1010

It is recommended that staff who either have direct or indirect contact with residents ...(reads)... hepatitis B.

PN1011

Under the heading of Prevention:

PN1012

All staff must comply with standard and additional precautions which provide a ...(reads)... staff immunisation.

PN1013

THE COMMISSIONER: Sorry, this is - where is the reference to this?

PN1014

MR LANGMEAD: 4.7(21) in R7.

PN1015

THE COMMISSIONER: 4.7(21). Yes, and what page were you reading from?

PN1016

MR LANGMEAD: It is page 2 of 5, Commissioner.

PN1017

THE COMMISSIONER: Two of three, three of three, 4.7(21)?

PN1018

MR LANGMEAD: Yes, and the only page that I have in that - - -

PN1019

THE COMMISSIONER: I have got one, two and three of three.

PN1020

MR LANGMEAD: Well, you have got more than me, sir. I have got page 2 of 5.

PN1021

MR RAHILLY: I think I can help, Commissioner. I think the standard is in fact standard 4.7(20) and there is a typo on the second page which says 4.7(21).

PN1022

THE COMMISSIONER: Yes.

PN1023

MR LANGMEAD: Yes, I see.

PN1024

THE COMMISSIONER: And what were the words you were referring to?

PN1025

MR LANGMEAD: Well, at the bottom, Commissioner, Prevention:

PN1026

All staff must comply with standard and additional precautions which provide a barrier to infection acquisition and transmission and staff should be immunised.

PN1027

The level of obligation caused by such guidelines or such standards are such that it is sufficiently analogous to an obligation, if not an obligation. If, for example, an employee was told, well, you have got to wear sensible footwear and you should wear sensible footwear, it is not difficult to imagine an employer saying, well, you can go home and put some sensible shoes on, you are not coming in in your thongs, and that would be considered to be a lawful direction.

PN1028

Now, Mr Rahilly said that this was a matter which arose under the Occupational Health and Safety Legislation. Now, apart from telling you that there was an Act he didn't tell you what the contents of it were. He didn't tell you why that was the case. All we know about it is that an improvement notice has been issued by Worksafe Victoria to Blue Cross and he said that the effect of that improvement notice was to only do what the order does. Now, I don't know what the improvement notice says but I would be most surprised if it provided for an allowance in respect of expenses incurred by way of vaccination that employees themselves had had done.

PN1029

Commissioner, this is a qualitatively different right that we seek. Who knows what might happen with productivity improvement notices? Who knows what the Magistrates Court might do with any appeal, what standards of evidence that they would apply and that the matter of - I should say standard of onus which might apply in respect of that. Indeed also how the evidentiary material might need to be made out in respect of such an appeal. These are all matters which we know nothing. What we do know is from our inquiries that that appeal won't be heard for some six months from at least when it was lodged, which gives it still some months to run.

PN1030

This is a different sort of application, if granted, creating a different right and it doesn't conflict with the Occupational Health and Safety Legislation even though, Commissioner, you have not been told why it should or could. It was said that it was a transient nature that the staff should count against us. The evidence about that, with respect, is limited and limited to one class of employees in terms of those that stayed less than one year.

PN1031

It was information which had been obtained by the witness from external sources who in turn apparently got it from documents but we didn't have the prime source materials there and it was noticeable that the employer itself failed to call any evidence about its circumstances and we invite the Commission to make the usual inference from that.

PN1032

THE COMMISSIONER: That it wouldn't have assisted its case?

PN1033

MR LANGMEAD: Yes, Commissioner, yes.

PN1034

THE COMMISSIONER: Sometimes want to get a bigger inference than that and I just wanted to be sure that that is what you were saying.

PN1035

MR LANGMEAD: I would love to get a bigger inference, Commissioner.

PN1036

THE COMMISSIONER: Yes, I know that.

PN1037

MR LANGMEAD: He said that there was a limited number of staff likely to come into contact with the particular resident. Both those instructing me and myself don't recall any evidence to that effect. There was also a query raised about the scope of the order going to the eligibility of persons - sorry, going to persons eligible for membership of the HSUA, but I must say that I don't see the point of that comment and don't see how it can be suggested that the scope of the order is too wide for that reason.

PN1038

It will still apply to employees of Blue Cross employed at Broughton Lea Aged Care facilities, so whether it is meant to suggest that there is external cleaners or something like that employed by contractors it obviously can't have any bearing on that. And the comment that there is evidence of safe transportation of contaminated material is not really to the point. Blue Cross itself acknowledges in its standards that it is persons who are working in the laundry and cleaners and maintenance persons who are in the same category as those who have contact with and provide care to residents they should be vaccinated.

PN1039

Commissioner, finally in relation to the evidence about the risk, we had three persons who purported to give expert evidence about this. We had Dr Sutcliffe who gave evidence that it was clearly a greater risk, that that risk warranted the granting of the allowance, or indeed she was unequivocal that all workers should be vaccinated. Ms Lindsay gave evidence which ultimately conceded the standards demonstrated that it was desirable, it was recommended that persons who had that additional risk because they were working in those occupations should be vaccinated and Ms Hutchinson also accepted that, together with the documentary material, particularly the Infection Control Guidelines.

PN1040

It is my submission that it is a compelling argument for the granting of an allowance to enable these workers to go out and take responsibility themselves in circumstances where the employer won't, to be reimbursed for engaging in that self protection activity. If the Commission pleases.

PN1041

THE COMMISSIONER: Yes, thanks, Mr Langmead.

PN1042

MR RAHILLY: Commissioner, I appreciate that was my friend's reply, however I was possibly a bit eager to make submissions before my friend had made submissions about the evidence.

PN1043

THE COMMISSIONER: And he sat down and let you.

PN1044

MR RAHILLY: He did. Could I just make two observations arising out of what my friend has put to you. The first goes to exhibit R7 which is the reference to standard 4.7 which talks about at the bottom of page 2, staff should be immunised. I submit, with respect, that that does not involve any requirement by my client that staff be immunised. No such requirement is able to be made to any person that they be immunised. That is why the order only goes as far as it does go in respect of people who choose.

PN1045

All of the material before the Commission makes it clear that such a requirement cannot be made. It is a recommendation by the employer to staff that they be immunised if they are likely to come into contact with blood or bodily fluids and it is a different set of circumstances entirely from a requirement by an employer that a staff member wear sensible footwear, because that is something that an employer can require of a member of staff and it may well be an occupational health and safety requirement that they do require that.

PN1046

So my friend put it to you that it is a requirement because it is a recommendation. Equally, under the Infection Control Guidelines recommendations are not requirements. There is a distinction to be drawn between what is a requirement and what is a recommendation. And just briefly in relation to my friend's comments about the safety net principles not containing any, this is awkward, but requirement that reimbursement be for something which the employer requires the employee to do.

PN1047

If that is right then it would be open to any union to come to the Commission to seek an order that an employer reimburse an employee for the cost of going to the movies because they choose to do so. Now, that submission clearly is nonsensical. If the Commission pleases.

PN1048

THE COMMISSIONER: Yes, thank you. Did you want to respond to any of that?

PN1049

MR LANGMEAD: No, Commissioner.

PN1050

THE COMMISSIONER: I propose to reserve my decision in this matter. I will do my best to give a speedy decision but you will understand I require transcript. The proceedings are adjourned to a date to be fixed. Thank you.

ADJOURNED INDEFINITELY [4.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

GWENDA HUTCHINSON, SWORN PN739
EXAMINATION-IN-CHIEF BY MR RAHILLY PN739
EXHIBIT #R9 STATEMENT OF MS HUTCHINSON PN744
CROSS-EXAMINATION BY MR LANGMEAD PN746
EXHIBIT #L9 EXTRACT FROM INFECTION CONTROL GUIDELINES PN763
EXHIBIT #L10 2004 INFECTION CONTROL GUIDELINES PN838
RE-EXAMINATION BY MR RAHILLY PN922
WITNESS WITHDREW PN927