BP2007/3873, Transcript of Proceedings [2007] AIRCTrans 587 (31 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17665-1

VICE PRESIDENT LAWLER

Alexandra District Hospital (BP2007/3873) and others

146 applications in total

s.430 - Appl'n for order to suspend or terminate a bargaining period

MELBOURNE

10.00 AM, FRIDAY, 19 OCTOBER 2007

Continued from 18/10/2007

Reserved for Decision

PN386

THE VICE PRESIDENT: I think we're with you, Mr Parry.

PN387

MR PARRY: If your Honour pleases, there were directions about producing documents. I have some documents and I understand the directions were to produce them for ......

PN388

THE VICE PRESIDENT: Yes.

PN389

MR PARRY: I have some documents produced in respect of the direction as it related to Dr Tracey Batten and I hand up those to the Commission.

PN390

THE VICE PRESIDENT: Is there a copy for Mr White?

PN391

MR PARRY: He's been provided with these documents, your Honour.

PN392

THE VICE PRESIDENT: Thank you.

PN393

MR PARRY: From Jennifer Williams, I hand up the documents in respect of Jennifer Williams and also Brendan Murphy. There is a small yellow tag on the front of each, your Honour, that identifies them. There are more to come from Brendan Murphy. I indicate, your Honour, some of the documents that have been looked at have patient names on them and doctor names and we've been taking those off for obvious reasons, so those are the documents we have produced to date. There are others obviously to come.

PN394

THE VICE PRESIDENT: Thank you, but I take it from your instructions, the recipients of the summonses or the recipients of the notional summonses contained with the direction have used their best endeavours to produce such documents as can be located within the time that you've had available.

PN395

MR PARRY: Yes, your Honour, and consistent with the obligations in respect of subpoenas, those are ongoing efforts as well.

PN396

THE VICE PRESIDENT: Yes. Thank you. Now I think we move to cross-examination.

PN397

MR PARRY: Of Dr Batten, yes, and I would ask that - I am going to ask some more updating questions as for the current situation with your leave, your Honour.

PN398

THE VICE PRESIDENT: Yes. Mr White, was there some application you were wanting to make?

PN399

MR WHITE: Not at the moment, your Honour, but obviously when we say we were provided with the documents, we were I think two minutes ago. Obviously, I haven't looked at them at all.

PN400

MS M RICHARDS: Your Honour, before Dr Batten is recalled, I should just announce a change of appearance for the state for this morning. I am appearing in Mr Hanks' stead, until he's able to rejoin us later in the day.

PN401

THE VICE PRESIDENT: Thank you, Ms Richards. Mr Parry, I was just wondering if before the cross-examination of Dr Batten starts, is it perhaps convenient just to formally tender the balance of the statements?

PN402

MR PARRY: I am happy to do that, yes, your Honour. I so tender.

PN403

THE VICE PRESIDENT: Thank you. Mr White, on the same basis?

PN404

MR WHITE: All of the statements.

PN405

THE VICE PRESIDENT: I understand you've been served with statements of Batten, Brook, Murphy, Park, Wallace, Williams. Those are the statements you're relying upon, Mr Parry?

PN406

MR PARRY: Yes, your Honour.

PN407

THE VICE PRESIDENT: Thank you.

EXHIBIT #6 WITNESS STATEMENT OF CHRISTOPHER BROOK
EXHIBIT #7 WITNESS STATEMENT OF BRENDAN MURPHY
EXHIBIT #8 WITNESS STATEMENT OF SHELLEY PARK
EXHIBIT #9 WITNESS STATEMENT OF LANCE WALLACE
EXHIBIT #10 WITNESS STATEMENT OF JENNIFER WILLIAMS

PN408

THE VICE PRESIDENT: Yes, Mr Parry.

PN409

MR PARRY: If your Honour pleases, immediately before calling Dr Batten back to the witness box, I have a bundle of documents produced in respect of the direction as it relates to Shelley Park. Again, it's got a small yellow tag on it.

PN410

THE VICE PRESIDENT: Thank you.

PN411

MR PARRY: If your Honour pleases, I call Dr Tracey Batten.

<TRACEY LEE BATTEN, ON FORMER OATH [10.09AM]
<EXAMINATION-IN-CHIEF BY MR PARRY, CONTINUING

PN412

THE VICE PRESIDENT: Doctor, you remain on your former oath?---Yes.

PN413

Thank you.

PN414

MR PARRY: If your Honour pleases.

PN415

Dr Batten, yesterday you gave evidence about the situation at Box Hill Hospital. Are you able to update the Commission on more current figures?---Yes, I am. I have the figures applicable to Box Hill Hospital as at this morning that I can update the Commission with. As at this morning, nine elective surgical patients were cancelled at Box Hill Hospital. As an example of some of those patients that were cancelled, we have one middle aged lady who was coming in to theatre to have her haemorrhoids repaired. That lady has had to undergo bowel preparation for that particular procedure and unfortunately she's been sent home, having had that bowel preparation, so she will need to re-go through that again. We have another lady who was scheduled as a category 1 patient, a middle aged lady, similar to a case I discussed yesterday. She was coming in for a hysteroscopy. That is a procedure to look inside a patient's womb, generally to see the cause of bleeding. In a middle-aged lady, you would be concerned that that may be related with some sort of cancerous growth, so nine patients cancelled. I would like to just clarify a statement I made yesterday about how these patients are being cancelled. What I said yesterday was that the patients were all being rung prior to getting into hospital. I understand that that is correct for afternoon patients. However, for morning patients, those patients are being required to present to the hospital and are then being told at that time that they are being cancelled and then they are required to go home. In our emergency department this morning at Box Hill Hospital we had 13 patients waiting for beds. Some examples of those sorts of patients, we had a 76-year-old man with acute polycystitis who's been waiting in our emergency department for 53 hours. We have an 89-year-old lady with pneumonia who's been waiting in our emergency department for 38 hours for a bed and we have 22 beds that have been closed due to industrial action on our wards at the moment, so there are certainly beds available in the hospital, but those patients are unable to be admitted to those beds, as they have been closed due to bans.

PN416

Thank you, Dr Batten. If your Honour pleases.

**** TRACEY LEE BATTEN XN MR PARRY
PN417

THE VICE PRESIDENT: Thank you. Yes, Mr White.

<CROSS-EXAMINATION BY MR WHITE [10.12AM]

PN418

MR WHITE: Dr Batten, you gave some evidence yesterday that on 16 October, the day of the meeting with the ANF members, there were a number of patients admitted for surgery cancelled. Do you remember that?---That's correct.

PN419

On or about 8 October, eight days before the meeting on the 16th, you had been advised that an ANF members' meeting at the Box Hill Hospital had been held, hadn't you?---On 8 October?

PN420

Yes?---I'm not sure of the date.

PN421

You were advised, were you not, that there was a members' meeting on 8 October and that that meeting resolved to advise management that some ANF members would be attending the meeting on 16 October. That's true, isn't it?---We were certainly aware that there may be some nursing staff attending the stop work meeting on 16 October, that's correct.

PN422

It's more than that, isn't it? You were actually advised of the resolution passed at the meeting to the effect that the management was to be advised that eight days hence staff would be attending a meeting?---We were not aware until the day of the 16th which staff would be attending the stop work meeting.

PN423

That's not the question I asked, though, was it?---Well, without knowing which staff were going to be attending, it's very difficult to know what contingencies to put in place.

PN424

Once again that's not the question I asked, though, was it? You were advised eight days before the meeting on the 16th that there would be members attending the meeting on the 16th and, further, requesting the hospital to put in place measures that would accommodate the reduction in nursing numbers?---We were not advised how many nursing staff would be attending the stop work meeting, nor from which areas of the hospital they would be attending.

PN425

Yes, that's not the question I asked, though, is it?---Well, to put in place effective contingencies, you need to know where to put those contingencies in place.

PN426

Yes, but that's not the question I asked, is it?---Well, I am sorry, I am trying to answer the question as effectively as I can.

**** TRACEY LEE BATTEN XXN MR WHITE
PN427

You can say yes or no?---Without knowing where those nursing - - -

PN428

THE VICE PRESIDENT: No, doctor, you're free to answer the question as you think is appropriate?---Thank you.

PN429

You're not confined to a yes or no answer?---Thank you.

PN430

MR WHITE: Perhaps the doctor can be shown this document.

PN431

THE VICE PRESIDENT: That doesn't mean - sorry, doctor, Mr White is entitled to press you to give a responsive answer to a question that he's asked and if he wishes to continue pursuing the question that he's asked, he's free to do that, but he's not free to confine you to a yes or no answer. If the answer calls for something that's more than yes or no, then you're free to give an answer that goes beyond yes or no?---Thank you.

PN432

MR WHITE: I wonder if the doctor could be shown that document?

PN433

THE VICE PRESIDENT: Yes.

PN434

MR WHITE: Just looking at the first page of that document, doctor, have you seen that before?---I haven't seen this particular document, no.

PN435

Can you look at the second page? That's a letter, isn't it, from the ANF to Ms Denise Patterson, the director of nursing at Box Hill Hospital?---That's correct.

PN436

Have you seen that letter before?---I have not.

PN437

Are you saying your director of nursing didn't bring to your attention that there would be nurses at a meeting on the 16th?---I'm not saying that. I was aware that there would be a stop work meeting on the 16th. I was well aware of that. What I have been trying to explain to you is that without knowing which nurses are attending that meeting, it's very difficult to know what contingencies to put in place.

PN438

You would know, would you not, that if nurses who worked in the theatres attended the meeting, that would have a possible impact on the surgery which was to be performed on the 16th?---Yes, you would know that.

**** TRACEY LEE BATTEN XXN MR WHITE
PN439

In terms of elective surgery, can I suggest to you that there were a number of measures available to you to take to ameliorate the impact of the nurses' absence on the 16th?---If we had been advised by those nursing staff which were going to be attending the meeting on the day, we would have been able to cancel those patients earlier.

PN440

Over the eight-day period leading up to the 16th, there could have been more surgery scheduled, couldn't there?---Well, we have a limited number of operating theatres at Box Hill, so those were limited by capacity there to undertake theatre, yes.

PN441

Could those theatres have operated for a longer time?---That would depend on the availability of beds and the availability of the staff to staff those theatres.

PN442

Did you make those inquiries?---Well, certainly during that period of time at Box Hill, I know it has been a very busy time, so we have not generally had extra beds available.

PN443

Yes, but did you make those inquiries?---Nor extra theatre capacity available.

PN444

Did you make those inquiries?---I have not specifically made such inquiries.

PN445

The other option that might have been available to you is to seek staff through an agency. Did you do that?---Certainly when staff are unavailable, we do try and seek replacement staff through an agency. Sometimes they are available, sometimes they are not available.

PN446

Did you do that in respect of the notified absence of staff on the 16th?---Well, it was too late at that stage to get staff to fill those sessions.

PN447

When you say it's too late, the document that I've just shown you is a letter enclosing a resolution, a letter dated the 9th to the director of nursing, so do you say that as from 8 or 9 October, it was too late to seek agency staff to work on the 16th?---I think I have explained to you that without knowing which staff are going to be attending the meeting and which staff are not going to be attending the meeting, it is very difficult to replace those staff until you're aware that they're not going to be there and we were not aware which staff would not be there on 8 or 9 October relating to these documents given to me.

**** TRACEY LEE BATTEN XXN MR WHITE
PN448

Do I take it, then, that prior to the 16th, you made no inquiries from nurse agencies for replacement staff? Is that your answer?---We didn't know what staff, if any, we would need to be replacing.

PN449

One of the other options that could have been taken was that surgery could have started earlier on the morning of the 16th, because nurses were only absent in the afternoon, weren't they?---Nurses were absent in the afternoon, that's correct.

PN450

Did you investigate the possibility of surgery starting earlier on the 16th?---I do not believe we did.

PN451

It was the hospital who took the steps to cancel those elective patients on that day, wasn't it?---The hospital was required to cancel those patients since there were no staff there to fulfil the theatre sessions.

PN452

Can I just ask you what you mean by cancelled? Does cancelled mean cancelled only once patients have been put on the surgery list, or does cancelled also include the concept of patients not being put onto the surgery list?---I'm not sure that I understand your question.

PN453

How far in advance are surgery lists drawn up?---It varies from site to site.

PN454

At the Box Hill Hospital?---There is no standard procedure, but normally the lists are drawn up the day before. Sometimes they are drawn up earlier than that, so on a Friday they will tend to be drawn up for a Monday. On a Monday, they will tend to be drawn up for a Tuesday.

PN455

And the lists for the 16th, when were they drawn up?---The 16th I believe was a Tuesday, so it would tended to have been drawn up on the Monday.

PN456

When you say tended to, do you know or do you say that's just the normal practice?---That would be the normal practice.

PN457

So you don't actually know as a matter of fact whether or not that occurred?---No, I'm talking about what would be normal practice.

PN458

Having notice of the nurses' absence would have an effect on your normal practice, wouldn't it?---Well, as I have mentioned, until the day of the 16th, we did not know which nurses would be attending the stop work meeting and therefore which cases would need to be cancelled.

**** TRACEY LEE BATTEN XXN MR WHITE
PN459

How many patients were on the surgery list on the 16th?---I don't have those numbers in front of me.

PN460

On a normal day at Box Hill Hospital, how many patients on the surgery list?
---On a normal day we have six theatres at Box Hill and each theatre session tends to have on average three patients within it, so that would be 18 patients in the morning.

PN461

Eighteen patients in a morning?---And 18 patients in the afternoon.

PN462

So 36 patients altogether?---Approximately.

PN463

All right, so 36 patients are booked in for surgery. Now, the fact of the matter is it's not uncommon, is it, at Box Hill Hospital that patients on the list for elective surgery are cancelled?---Patients do get cancelled from elective surgery lists, that is correct.

PN464

Sometimes patients are cancelled from the elective surgery list because operating theatres become unavailable because of emergency surgery needs?---That could be correct, yes.

PN465

It happens not irregularly, doesn't it?---Yes, it does happen.

PN466

And sometimes patients on the elective surgery list are cancelled because more urgent elective patients may need to be admitted?---That is correct.

PN467

And that's not unusual, is it?---Cancellations of elective surgery do happen. If you look at the cancellation rate across our hospitals, at Box Hill the cancellation rate certainly does not equate to a one in four cancellation rate.

PN468

Sometimes cancellation of elective surgery can occur because a surgeon is unavailable?---There are a range of reasons why cancellations may occur.

PN469

Yes, and one of those reasons might be that there are insufficient nurses?---As I say, there are a range of reasons and these are all reasons that a theatre may be cancelled.

PN470

If there are insufficient nurses because of insufficient funds provided to your hospital to employ those nurses, do you say that the government which is responsible for supplying those funds would be putting the patients who are removed from the elective surgery list in endangerment?---I'm not aware that we have insufficient nurses from insufficient funds at our hospital.

**** TRACEY LEE BATTEN XXN MR WHITE
PN471

Do you say that there has been no elective surgeries cancelled at your hospital because of nursing shortages?---I think you're asking two different questions. Certainly there are cancellations if there are nursing shortages. That means that nurses are unavailable to be employed within the workforce, but it's a separate question from whether or not we have sufficient funds to pay those nursing staff.

PN472

Sometimes elective surgery is cancelled because an intensive care bed may be required post surgery and intensive care beds may all be occupied?---That is correct.

PN473

Sometimes elective surgery is cancelled because the hospital is fully occupied?
---That is correct. There are a range of reasons why elective surgery may be cancelled. I think the difference I would draw between the cancellations I've talked about such as the cancellations this morning is that we really try, if we do need to cancel elective surgery, to give patients as much notice as possible prior to that cancellation.

PN474

Sorry, the difference is the period of notice you're talking about?---Yes.

PN475

That's the key difference?---And the numbers of patients being cancelled at the moment, they are the two key differences and the categorisation of the patients, I would have to say, being cancelled, if we do need to cancel elective surgery, we would certainly try and cancel the least urgent of those cases, not the category 1 patients.

PN476

Do you say that when a patient's elective surgery is cancelled that that patient's health is endangered?---Certainly when any patient is scheduled for elective surgery, the optimal time to perform that surgery is within the defined waiting times as specified, so for a category 1 patient, that would generally be within 30 days, category 2 within 90 days and category 3 within 365 days. What we do with health services is try and ensure as much as possible that we can achieve those waiting times. That is not always possible, but that is what we strive to do.

PN477

If a patient, given the benchmarks that you talk about - sorry, just go back a bit. Those benchmarks, where do they derive from? Where do those times derive from?---Where do they derive from?

PN478

Yes?---Well, certainly they are state benchmarks and I believe that they have been discussed in consultation with the College of Surgeons, but you would need to clarify that.

**** TRACEY LEE BATTEN XXN MR WHITE
PN479

Is your position, then, I assume, correct me if I'm wrong, that if a category 1 patient is dealt with within the state benchmark, that their health would not be endangered?---I don't think you can make a broad generalisation like that. Each patient is different and each patient, you need to look at the individual circumstances of each particular patient. Those are benchmarks, those are averages, so you could not categorically say that for every patient what you have asserted would be correct.

PN480

That's right, isn't it, so the effect of that answer is - can I rephrase that? It is this. It is not necessarily the case that if a patient - if elective surgery for a patient is cancelled, that that patient's health is endangered?---I think what you can categorically say is that any patient that is cancelled, that causes a significant amount of distress and concern to that patient and to that patient's family and carers.

PN481

THE VICE PRESIDENT: And the cancellation of some procedures for category 1 patients would endanger their health?---It would depend how long it was being cancelled for.

PN482

It would depend on the circumstances of each case, but you could say as a generalisation - - -?---As a generalisation, I think the example I gave of the patient requiring a hysteroscopy was a really good example. That's a category 1 case. A hysteroscopy is something that looks inside a lady's womb and it's looking inside the womb to see if there is any cause for the bleeding and in a middle-aged lady with bleeding like that, you'd be concerned that there may be an underlying cancer. Now, the longer you delay that investigative procedure, the more likely it is that that cancer will progress, so you want to catch it as early as you possibly can to start definitive treatment as early as you possibly can, so a number of these procedures that we undertake in hospitals are to actually investigate the underlying cause. Sometimes the underlying cause will be benign. In those cases, the delay will not have an impact on the clinical outcome, but if it's not benign cause, if it is a malignant cause, then a delay may actually impact on the outcome of that patient, so that is what I'm trying to distinguish between. It is not a one size fits all.

PN483

MR WHITE: So is your evidence that in order to determine whether or not a patient's health is endangered, individual consideration needs to be given to each individual patient?---That is generally the case, yes.

**** TRACEY LEE BATTEN XXN MR WHITE
PN484

Yes, and that as a general proposition, the mere fact that some patients have their elective surgery postponed does not of itself mean that those patients' health is endangered?---I cannot make a broad generalisation like that.

PN485

Well, the second proposition flows from the first, doesn't it?---I cannot tell you that if an elective surgery is cancelled that there will be no poor clinical outcome for that patient. I cannot say that without knowing the clinical circumstances of the case.

PN486

Yes, doctor, I understand that and the first proposition I put to you was that in order to determine whether or not a patient's health is endangered, one needs to know about the individual circumstances of that patient?---That's right.

PN487

And it follows from that, doesn't it, that the mere fact that there are cancellations on surgery does not of itself mean that the patients whose surgery has been cancelled has had their health endangered?---Given the volume of patients we're talking about that have been cancelled, I think it would be most likely that there would be a poorer clinical outcome for some of those patients that have been cancelled.

PN488

Now can you answer the question please?---Sorry, I am trying to answer the questions as best I can, but on occasions you're putting a proposition that is not I believe a correct proposition.

PN489

Do you then disagree with the proposition that I put to you? Do you make the assertion that the mere fact that patients have elective surgery cancelled puts patients generally at risk? Is that the proposition you put?---I think I have stated quite clearly that it will depend on the individual case, but certainly cancelling elective surgery, getting a patient to come into the hospital in the morning, having had bowel preparation, to be told that they are going home and their surgery has been cancelled and they will need to come in again for that surgery and undergo that bowel preparation again, I'm not sure if you've ever had bowel preparation, thankfully I haven't, it's not a pleasant procedure, it puts a patient through significant discomfort and that patient will need to have that procedure all over again. The clinical outcome for the haemorrhoids that that particular patient has is unlikely to be much different from the cancellation of the surgery, but that patient has gone through significant distress, significant discomfort and will need to go through that again. That patient is likely to have made options available to manage their children, their family and they will need to go through that again. They will have cancelled work and they will need to go through that again.

**** TRACEY LEE BATTEN XXN MR WHITE
PN490

That's the case for every patient who has elective surgery cancelled, isn't it?
---That is the case for patients who have their surgery cancelled and in this instance we have a one in four cancellation by these bans.

PN491

You see, the benchmark to be strived for in public hospitals in Victoria is no higher than 8 per cent of elective surgery for patients to be cancelled, isn't it?
---And these bans are three times that benchmark.

PN492

Well, your Honour, could you please note that the doctor on a number of occasions now has not responded directly to the question?

PN493

THE VICE PRESIDENT: Yes.

PN494

MR WHITE: I ask the question again, doctor.

PN495

THE VICE PRESIDENT: The doctor is exhibiting the characteristic that is common in intelligent witnesses, that they read where the question is going and give an answer that comprehends the question that's been asked, but also comprehends the response to the argument applied in the question. Doctor, it will be quicker if you focus on the question and answer the question. Mr Parry there has an opportunity to ask you questions in re-examination and if anything has been left hanging without you being given an opportunity to respond or explain, you can be rest assured that Mr Parry will give you that opportunity in re-examination?---Thank you very much.

PN496

But I think specifically the doctor's answer to the last question you asked carried with it an implicit acceptance that 8 per cent was the target level of the maximum cancellation rate for elective surgery.

PN497

MR WHITE: Do you say, doctor, given the problems and discomforts you've described or the inconveniences apply to all patients who have elective surgery cancelled that - sorry, we'll just go back a step. What is the percentage of elective surgery cancellations normally at Box Hill Hospital?---At Box Hill Hospital over the last financial year, the rate was between 9 and 10 per cent.

PN498

So you haven't met the state's benchmark?---We did not meet it last year, no. We met it in two quarters and not in two of the other quarters.

PN499

Do you say in respect to 10 per cent, that's one in 10 patients who have had their elective surgery cancelled, that their health has been endangered?---As I think I have explained on a number of occasions now, it is always our position that we would strive not to cancel elective surgery if at all possible, but if there are situations where we have no option, if there is no bed available, if there is no surgeon available, we would need to cancel a patient. We would look at the list then in cancelling that patient and pick the patients who were likely to have the least impact from a cancellation.

**** TRACEY LEE BATTEN XXN MR WHITE
PN500

Yes, I understand that?---That would typically not be a category 1 patient. It would typically be a category 3 or 2 patient.

PN501

THE VICE PRESIDENT: It may well be that occasionally there are health risks associated with the cancellations. You'd do your best to minimise them?
---Absolutely.

PN502

But you can only do what you can do within the resources you've got?---You can only do what you can do with the beds you have available and theatre sessions you have available.

PN503

Mr White, we've had the best part of half an hour of this now. I'm just wondering whether I should intervene to say this, that I think you may be pushing against an open door. I don't apprehend Mr Parry's case to be that there are no cancellations of beds in the absence of industrial action by nurses. He accepts that cancellations occur, would no doubt accept that those cancellations are undesirable and may have attendant health risks attaching to them. The issue here is whether or not there's a differential impact on account of the bans such that the risk to the health or welfare of the population or part of it is materially increased as a result of the industrial action that's occurring.

PN504

MR WHITE: That's one of the issues.

PN505

THE VICE PRESIDENT: Mr Parry, did I verbal you in some inappropriate fashion then?

PN506

MR PARRY: No, your Honour. That's a fair summary.

PN507

THE VICE PRESIDENT: Thank you.

PN508

MR WHITE: That's not the only point we're seeking to establish.

PN509

THE VICE PRESIDENT: Given that Mr Parry has agreed with that, you don't need to cross-examine to establish that there are some adverse health consequences that flow from the system in the absence of industrial action.

PN510

MR WHITE: Well, if you wish to verbal Mr Parry a little further and to get the applicants to accept that mere cancellation of elective surgery does not of itself endanger patients, then, your Honour, it might be shortened.

**** TRACEY LEE BATTEN XXN MR WHITE
PN511

THE VICE PRESIDENT: Mr Parry, I think that is - - -

PN512

MR PARRY: We will end up in some sort of - I am not going to agree with that. We have a witness here that knows, she's answered this question comprehensively in the last 15 minutes and I think her evidence is crystal clear on that.

PN513

THE VICE PRESIDENT: And perhaps three or four times as well.

PN514

MR PARRY: Yes. I am not going to try to articulate what Dr Batten says.

PN515

THE VICE PRESIDENT: For my part, I understand the doctor's evidence to have carried within it an acceptance that there may well be cases where a cancellation of elective surgery has no adverse health consequence other than the minimal consequence associated with the distress involved in delaying a procedure, but the doctor is unable to give any particular assessment in the absence of details of particular cases.

PN516

MR WHITE: There's a few other things I want to go - I will try not to spend too long on it.

PN517

Doctor, the benchmarks for the performance of elective surgery I think you described as 30, 60, 90 days for categories 1, 2 and 3 respectively?---Thirty, 90, 365.

PN518

Sorry, 30, 90, 365 and I think you describe them as the optimal periods within which the elective surgery is to be performed?---Yes, they are the benchmarks that have been set by the state.

PN519

Yes, and it follows, does it not, that if the surgery, as a general proposition, if the surgery is performed within the optimal benchmark which is set by the state and accepted by your hospital presumably that those patients are receiving the appropriate optimal care?---That would be a fair assessment.

PN520

Thank you.

PN521

THE VICE PRESIDENT: Can I just take issue with your acceptance of the word optimal? Optimal adds a certain quality to the notion of a benchmark. Clearly it would be desirable for there to be no delays whatever in respect of any elective surgery and in a perfect world with unlimited resources, you might be able to deliver that?---Exactly right, so if you look at an example - - -

**** TRACEY LEE BATTEN XXN MR WHITE
PN522

So it's not optimal in the sense that in a perfect world with unlimited
resources - - -?---In a perfect world, if you could do every procedure that day, that would be ideal, so if you take an example of a category 2 patient who's waiting for a hip procedure, they are generally classified as a category 2, sometimes a category 3. When you need a hip operation, ideally you wouldn't wait 90 days or 365 days for that operation.

PN523

So that when you agree with the word optimal, you're agreeing in the context of limited resources and a real world where you can't do everything you would want?---Recognising that we live in a real world, that's exactly right.

PN524

Yes, Mr White.

PN525

MR WHITE: The actual benchmark, doctor, in the Victorian public health services' performance and accountability framework business rules 2007/2008 actually say in respect of category 2 patients that it's desirable that they be admitted within 90 days. That's so, isn't it?---That's correct.

PN526

In the event that those patients are admitted within 90 days, they obviously fall within the state benchmark?---That's correct.

PN527

In that sense, given that they fall within the benchmark established by the state, it's not your position, is it, that patients who are treated within that period have their health endangered?---As I think I said previously, I would not like to make a broad generalisation on every patient, but as a general rule, a patient is categorised into either a category 1, 2 or 3. If that patient's condition deteriorates during that period of time, you will find that patients may be reclassified into a higher category if their condition has deteriorated, but as a general rule, treating patients within that period is considered good clinical practice.

PN528

There was an unsourced document presented to the Commission yesterday in this form. Have you seen that document?---It's a little bit far away for me to be actually sure if I have.

PN529

Do you see at the top left-hand side 6 pm snapshot for Wednesday, 17 October? Do you see that?---Yes, I do.

PN530

At Box Hill Hospital, what is the normal finishing time for surgery?---It would vary. Around about 5.30.

**** TRACEY LEE BATTEN XXN MR WHITE
PN531

So by 6 o'clock, essentially other than for urgent or emergency surgery, the surgery for the day at Box Hill Hospital has been completed?---That's right.

PN532

We haven't had explained to us the provenance of this document, doctor?---The what, sorry?

PN533

Where this document came from. Do you recall yesterday that you gave evidence that in relation to acute beds, there had been 21 closed across the Eastern Health facilities?---For acute beds, that's correct, and seven for sub-acute.

PN534

I beg your pardon?---21 acute and seven sub-acute for Wednesday, 17 October, yes.

PN535

So where this document that you've just been shown says 32 acute beds closed, that would be incorrect?---I think some of what you'll see is a tiny difference between various hospitals and the numbers, so this is as I understand the origin of this document, this document is being collated centrally by DHS and each morning at 9 am we need to submit figures to the Department of Human Services for the status of bed cancellations - bed closures and theatre cancellations, so there may be some timing differences between the numbers I've given and the numbers you have on this 6 pm snapshot, so my figures will have been a morning figure and this may be a figure later on, collected later on in the afternoon, as it says, 6 pm.

PN536

So your figure was a morning figure? There was no qualification yesterday, was there, in your evidence?---I may not have in my evidence. It was a morning figure, so it was a 10 am morning figure.

PN537

Yesterday was Thursday?---Yes.

PN538

And by Thursday, you would have been in full - you would have been aware fully of the bed closures for the previous day, wouldn't you?---I would have, but we
are - - -

PN539

THE VICE PRESIDENT: Doctor, I am confused at the moment. I thought the evidence you gave yesterday was about, well, it was about a number of places, but specifically you started with Box Hill. You've given evidence and been asked questions about Box Hill today?---Yes.

**** TRACEY LEE BATTEN XXN MR WHITE
PN540

But this table deals with Eastern Health as a whole?---It does.

PN541

MR WHITE: I take it yesterday's figures were across Eastern Health?---Yes.

PN542

THE VICE PRESIDENT: Just remind me, what were they for Eastern Health yesterday?

PN543

MR WHITE: For acute, the evidence yesterday was 21?---And for sub-acute was seven, so I think what you're seeing here is a timing difference.

PN544

It's not a small difference. It's 11 different, isn't it?---Yes, it is.

PN545

Yes, and there's a difference in the sub-acute beds figure. Yesterday you said there were seven, this document shows eight?---Yes, it does.

PN546

So in total there's a 12-bed difference between your evidence yesterday, given on Thursday with no qualification yesterday about what had happened on Wednesday, there's a 12-bed difference. You accept that, don't you?---Yes. The Wednesday figures I gave were an am figure and the Thursday figures I have were also an am figure.

PN547

I beg your pardon?---The Wednesday figures I gave were a Wednesday am figure and the Thursday figures I gave were an am figure.

PN548

Doctor, yesterday you made no qualification about the beds closed on the Wednesday and you gave that evidence the day after the beds allegedly had been closed. That's right, isn't it?---I'm happy to clarify that. It was a 10 am figure that I gave for the Wednesday figures. If I had given a pm figure, quite clear it would have been worse.

PN549

The difficulty you say referred to in paragraph 19 of your statement that the hospital places by reason of the bans is an impact on Eastern Health's ability to provide the quality and timeliness of clinical services expected by the community. Do you see that?---Yes.

PN550

You accept that the reaching of benchmarks, government established benchmarks by hospitals, is that what the community expects?---I would expect that the community is looking for health services to do their best to try and achieve those benchmarks, yes, but I can't speak on behalf of the community, but that would be my expectation.

**** TRACEY LEE BATTEN XXN MR WHITE
PN551

You talk about the occupancy rate in paragraph 21 of your statement. The paragraph asserts that during the winter months, the occupancy rate rises to between 95 and 100 per cent. The corollary of that is, is it not, that during summery months, the warmer months, the occupancy rate of the hospital decreases?---As you can see in the top part of that paragraph 21, I say that at other times of the year, it tends to run between 90 to 95 per cent.

PN552

In paragraph 40 and following you set out a number of impacts you say which follow from cancellation of elective surgery. Now, I take it, doctor, that the impacts that you describe in those paragraphs are impacts which are felt by patients whether or not their elective surgery is cancelled by reason of bans or any other reasons that we've talked about?---Certainly any time elective surgery is cancelled, the less notice that you can give to the patient and to their family, the more anxiety and distress it does cause.

PN553

Do you have physiotherapists in your hospitals?---Yes, we do.

PN554

Do those physiotherapists care for patients who have knee or hip or joint operations after their surgery?---Yes, they do.

PN555

And whether or not those patients are in the hospital or elsewhere, they would be receiving physiotherapy care, wouldn't they?---At what stage?

PN556

Post-operatively?---Post-operatively?

PN557

Yes?---They would for a period of time generally, yes.

PN558

There are sufficient physiotherapists and occupational therapists and the like to provide care for those patients - sorry, to provide care for the number of patients for whom you have beds?---In our health service?

PN559

Yes?---Well, we are, as are most health services, always looking to recruit clinicians. I think it's quite well known that on a state level, national level and international level, there are shortages of particular clinicians. At this stage I could not tell you how many vacancies we have for physiotherapists across our health service. I don't believe we have a great deal.

PN560

You talk about the impact of lying on mattresses in the emergency department. The fact of the matter is there are special mattresses which can be brought down for people lying on Barutas or trolleys?---I'm not sure that they would fit the trolleys we have in the emergency department.

**** TRACEY LEE BATTEN XXN MR WHITE
PN561

Paragraph 44 is commenced with the words:

PN562

Thirdly, the bans are cancelling one in four elective procedures.

PN563

That's just wrong, isn't it?---That is certainly what your bans say, that they will cancel one in four elective procedures.

PN564

I will ask the question again. That's wrong, isn't it? As a matter of fact, your paragraph there is wrong?

PN565

THE VICE PRESIDENT: Which paragraph is this?

PN566

MR WHITE: Paragraph 44?---Certainly what the bans say on my reading of them is that nursing staff will cancel one in four elective procedures. To date that has not happened in our health service, but I have every expectation that it will continue to happen.

PN567

Doctor, where elective surgery is cancelled and the surgery is conducted within the benchmark figures set by the state, that's within the parameters of good care, is it not, subject to individual circumstances?---I think I've answered this question many times now. Would you like me to re-answer that question again?

PN568

If you choose not to answer the question, doctor, so be it. Now, doctor, in paragraph 51 you talk about the impact of the threatened bans in relation to residential aged care facilities and you talked yesterday about transitional beds. Remember that?---I do.

PN569

Are the transitional beds of which you spoke low care beds?---Our transition care beds are defined as low care beds, so in interpreting that particular ban, it's not crystal clear, but I would interpret that ban as meaning that if we have a patient sitting in one of our health services that requires high level care, then we would be unable to discharge that patient to a transition care bed and we would need to wait for a nursing home high level bed to become available. As I say and I believe I said yesterday, the wording of that particular ban is not crystal clear to me.

PN570

Well, the wording suggests that the nurses won't facilitate patients who have been independently assessed as requiring high care to facilities which are only low care. You understand that, don't you?---Well, I understand the care that is provided in transition care beds and I am perfectly satisfied with the standard of the care provided in transition care beds. They are beds that are well staffed and they are an appropriate facility for those sorts of nursing home type patients to be awaiting care. It is a much more home-like environment than a patient requiring a nursing home bed to be sitting in an acute hospital, so, yes, a much more appropriate environment where the appropriate care is provided to those patients.

**** TRACEY LEE BATTEN XXN MR WHITE
PN571

Can you please describe to the Commission what clinical audits are conducted in respect of patients who for example have had elective surgery?---Well, there are a range of clinical audits that are conducted across health services. Those clinical audits - a clinical audit is where the outcomes of the care are assessed to look at what could be done better in the future, what went well and where we could continue to make improvements in our care, so it is a continuous review process that all health services will have in place, to look at the quality of the care they're providing and look at how they can continue to improve the quality of that care, so in relation to elective surgery, you would find typically in most hospitals that there would be a clinical audit conducted by each of the clinical specialty units such as the vascular unit or a general surgical unit and also with elective surgery, the anaesthetic area would also look at the clinical outcomes of the care they're providing, so there would be an anaesthetic clinical audit.

PN572

So the clinical audits, just to get this clear, are not only in respect of elective surgery, but across all endeavours within the Eastern Health system?---Yes, that's right.

PN573

And that includes emergency departments?---Yes, all of our clinical areas undertake a clinical audit or a clinical review of their patients.

PN574

Yes, and how are those clinical audits recorded?---They are recorded differently by different units, so I could not give a general answer, but it would be - - -

PN575

All right, we'll go through each of the units?---I couldn't give you the specifics of each unit, but what would be looked at in terms of a clinical audit typically is that the case histories would be reviewed by a group of clinicians sitting around the table, looking at the outcomes of the clinical care of those patients.

PN576

Yes, and is there any recording of what those clinicians discuss and find and conclude?---There will be a range of recording of those different clinical audits, yes.

PN577

For example, in the emergency department, what type of recording is made of the clinical audits?---What type of recording?

PN578

Is it written in a central clinical audit book?---There is not a central clinical audit book, no.

**** TRACEY LEE BATTEN XXN MR WHITE
PN579

Is it recorded at all?---Yes, it is recorded.

PN580

Where is it recorded?---On pieces of paper.

PN581

Where are those pieces of paper kept? Are they kept?---Yes, they are kept.

PN582

Where are they kept?---They're kept in different places for different audits.

PN583

So for the emergency department, where are those audits kept?---I suspect you would find them in an emergency department, but I don't actually know.

PN584

For elective surgery audits or surgery audits, where are those - - -?---They would be kept by the individual units.

PN585

At the hospital?---At the hospital, yes.

PN586

Not only do clinicians as you say sit around the table and talk about individual cases, but clinical audits also encompass the idea of a review being done of trends, for example?---Yes.

PN587

Where are those clinical audits kept?---At the hospital, within the clinical units.

PN588

For how long has the hospital kept clinical audits?---Well, I can't speak prior to my attendance at Eastern Health, but I understand the clinical audits have been underway at Eastern Health for as long as I've been there and I suspect for many years prior to me being at Eastern Health.

PN589

You've been there since 12 January 2004?---Yes.

PN590

And I take it, then, that the clinical audits of which you've given evidence were kept during the bans which were imposed by the ANF in April/May 2004?---I would believe so, yes.

PN591

To the extent, doctor, that there were obvious and adverse health outcomes to patients who were affected by those bans, those would be recorded, would they not, in the audits which the hospital undertakes?---Well, it would be very difficult to draw a one to one correlation in those audits, I would have thought.

PN592

Doctor, you've given evidence about the potential impact of bans in this occasion and I would have assumed, a fair assumption, is it not, that where nearly identical bans have been imposed earlier, that if the adverse outcomes of which you speak had occurred, they would have been recorded?---Well, it would be impossible to record it because you would need to have a controlled trial underway. We didn't have a controlled trial underway during that period of time, so it would be impossible for a clinician to state categorically and let's take the case of the hysteroscopy that we talked about earlier, so a cancer of a womb, of a uterus, when that clinical audit is being undertaken on that patient and the grade of that tumour is being assessed, it would be impossible for the clinician to say that it would have been a lower grade or less advanced if the procedure was done a day before, two days before, three days before, so the likelihood of that being recorded in a clinical audit I would say would be very remote.

**** TRACEY LEE BATTEN XXN MR WHITE
PN593

So the effect of your evidence is, is it, that it's impossible to tell whether or not a delay in elective surgery within state benchmarks has an effect or not? That's not what you're saying?---No, that's not what I'm saying. What I'm saying is without having a controlled trial, so one patient who didn't have their procedure delayed and one patient who did have their procedure delayed and having exactly the same grade of procedure during that period of time, without having those two cases, it would be impossible for the clinician at the other end to say, well, that delay of three months that was created by those nurses' bans meant that that woman had to have a more radical procedure to cure her cancer, because that doctor would not have been able to do a controlled trial on that patient, but what can be stated is that the longer a particular condition like a cancer is left untreated, it does tend to advance and that is a well understood fact about the way cancers progress, so the mere fact of a delay will mean that that case is likely to have progressed, but to be able to record that in a clinical audit and say categorically that catching this a week, two weeks earlier would have made a difference would be very difficult for a clinician to tell at the other end without having a controlled trial there.

PN594

The fact of the matter is the clinical audits are done in respect of each patient?
---Yes.

PN595

They're not done comparatively between patients, are they?---No, and they're done to look for trends.

PN596

So when you say there's no control, there is no control in any event because the clinicians look at each patient during the course of the audit?---That's correct, and they look for trends.

PN597

And they are able to look at each patient and they do look at each patient every time they do a clinical audit in the absence of controls?---Yes.

PN598

Can I go back, then, that if there was, doctor, obvious evidence of endangerment to health because of the stoppages and bans, the 2004 bans, they would be recorded in the clinical audit, would they not?---I believe I've answered in relation to that question that it would be impossible for the clinician at that time and the clinician may not even know that this patient had been cancelled, it would be impossible for the clinician to say if that patient had been treated earlier, what the outcome would have been. What the clinician will be looking at is the treatment that that patient received, is there something that we could have done differently, is there a trend that's appearing in these sorts of cases that we have in the hospital, that we need to be looking and reviewing our clinical practice.

**** TRACEY LEE BATTEN XXN MR WHITE
PN599

The clinical audits I think you gave evidence before look at not only individual cases, but cases over a period of time. Was there any clinical audit done in respect of the period of the 2004 bans?---I don't believe so.

PN600

What steps is Eastern health taking to minimise impact on service delivery arising out of absence of nurses or some limitation of work?---Generally or in relation to the bans?

PN601

Assume there are bans. What steps are you taking to minimise the impact on service delivery?---We are working very closely with our nursing staff and in many cases on a one on one basis with the nursing staff to put to them, for example with a closed bed, to put to that nurse will she or he open that bed or will he or she not open that bed, so we're working actively with each of the nurses on our wards to work through the issue of the bans in an attempt to ensure that the environment within the hospital stays as calm as possible and to ensure that if we can open a bed and let an elective patient into that bed or let an emergency patient into that bed, then that bed will be opened, so we are working closely with our nursing staff.

PN602

Eastern Health put out a media release. Are you aware of that? Adjunct Professor Penny Newsome, the chief nursing officer put out the media release in relation to the efforts being made to minimise impact on service delivery. Are you aware of that?---I'm not aware of a media release, no, I don't think so.

PN603

Doctor, it's your evidence, is it not, that the steps which Eastern Health is taking to minimise impact on service delivery is to talk to individual nurses in respect of whether or not individual nurses will close or not close a bed?---Mm.

PN604

Any other steps?---Doing very similar things with elective surgery, so again working with individual nurses up in the theatre complex to work through which patients they're proposing to cancel and to try and minimise the impact on the patients as best we can, so we have obviously been spending a lot of time with the patients who are cancelled, explaining to them why they have been cancelled and that we would make our best effort to get them rescheduled as soon as we possibly can.

PN605

Can I just ask the doctor to have a look at this document? I've highlighted a bit and I've covered a bit as well. Doctor, can you please not remove the yellow tag I've got on there? Do you recognise that document?---Yes, I do.

**** TRACEY LEE BATTEN XXN MR WHITE
PN606

It's a publication from Eastern Health?---It's not a media release, as I understand it.

PN607

Can you read the top of it there?---I can. What this is, it's switch community relations general inquiry as media, as in media inquiries, so this is some information we've given to some of our staff who are taking calls from the public or from the media or switchboard operators, people ringing up concerned about the bans. It's not something we've put out to the media.

PN608

It's recorded in there what you want those people to tell people who make inquiries is that Eastern Health - I can't remember the exact wording?---The highlighted:

PN609

All efforts being made to minimise impact on service delivery.

PN610

And the only evidence that you've given evidence of so far is that you ask nurses not to close beds, is that right?---Absolutely, ask the nurses not to close beds and not to cancel elective surgery.

PN611

Can I have that document back, please?---Certainly.

PN612

MR PARRY: The witness has been handed a document. She's looked at it. I think we're entitled to see what she's been handed.

PN613

THE VICE PRESIDENT: Yes. Mr White, Mr Parry should be able to see that document.

PN614

Mr Parry should be able to see the document, so he can make an assessment as to whether or not any re-examination is necessary, whether or not it should be tendered.

PN615

MR WHITE: Subject to any of the - I don't know what Mr Gilbert has been working through in terms of the material provided - - -

PN616

THE VICE PRESIDENT: Why don't we take a morning tea adjournment and you can consult with Mr Gilbert and see whether there's anything else you want to ask Dr Batten about. Otherwise, that's the cross-examination, is it?

PN617

MR WHITE: Yes, your Honour.

**** TRACEY LEE BATTEN XXN MR WHITE
PN618

THE VICE PRESIDENT: Are you going to seek to call any affirmative evidence that there's no differential adverse impact arising from the threatened bans?

PN619

MR WHITE: The final decision on evidence to be called will be made at a later time.

PN620

THE VICE PRESIDENT: So at this stage, it's a possibility, but you don't have instructions at the moment to call affirmative evidence that there is no adverse impact differentially from the threatened industrial action?

PN621

MR WHITE: The decision about evidence being called will be made at a later time.

PN622

THE VICE PRESIDENT: Fine. Thank you. I will adjourn until 11.30.

<SHORT ADJOURNMENT [11.12AM]
<RESUMED [11.32AM]

PN623

THE VICE PRESIDENT: Is there further cross-examination required, Mr White?

PN624

MR WHITE: Just in relation to the documents, a few short questions.

PN625

I should say, your Honour, that I haven't had an opportunity to go through go through these documents.

PN626

THE VICE PRESIDENT: I understand that, Mr White.

PN627

MR WHITE: But we understand your earlier ruling.

PN628

THE VICE PRESIDENT: If at any time the union is minded to suspend its campaign of unprotected industrial action in order to facilitate a hearing that will be more protracted, I'm more than happy to revisit the issue of the timetabling.

PN629

MR WHITE: Yes, we understand the ruling and I've made submissions about the relevance of that approach yesterday, your Honour.

PN630

Doctor, you were provided yesterday with a form of a summons to produce documents, were you not?---I was.

**** TRACEY LEE BATTEN XXN MR WHITE
PN631

And the documents you produced this morning were in response to the draft summons. I will call it a draft summons, because it wasn't formally issued?
---That's correct.

PN632

Have you taken all reasonable steps to locate the class of documents referred to in paragraphs 3 and 4 of the document you were given?---I believe it's paragraphs 1 and 2. I don't think we had a 3 and 4 in the document. I think it was re-cut, so it's just a 1 and a 2, but I may be wrong there.

PN633

THE VICE PRESIDENT: You were given a document that had a certain description of a class of documents on it and you've done what you can to locate those documents?---I have. Your Honour would recognise that we had a very short space of time to pull those documents together.

PN634

Yes?---So we have done as best as we can in the time available to us.

PN635

MR WHITE: Are you making any further inquiries or have you caused further inquiries to be made about whether or not there exists other documents?---I have certainly asked who I believe to be all the relevant people in the health service about their knowledge of existence of those type of documents, so I believe we have identified all those documents.

PN636

So to the best of your knowledge, there is no further material and when I say your knowledge, that's your own knowledge and advice you had from officers within Eastern Health that there are no further documents in the categories of the documents requested?---That is correct.

PN637

Could I ask you to categorise, well, I've categorised the documents you have produced and correct me if I'm wrong?---Yes.

PN638

They're documents, are they not, which were produced during the stoppages or bans in 2004 which were sent into a central office or central point?---That's correct, so the first class of documents were documents that we collated on a daily basis as to the impact of the bans in 2004 and it was a template type of document as you will see and we sent that in on a daily basis to the Department of Human Services.

PN639

Is it true to say that the only documents that you have produced are the daily reports during the currency of the 2004 bans?---That's correct, for the first request in that draft summons, that's correct.

**** TRACEY LEE BATTEN XXN MR WHITE
PN640

Well, they're the only documents you've produced, are they, the daily reports?
---No. I've produced some documents for the second class of documents.

PN641

Just to make it clear, then, doctor, can I suggest that you've produced no documents which constitute a management instruction directed to minimising the effect of the industrial action, the subject of the application?---In relation to the second class of documents?

PN642

Yes. Well, I've just read out the first sub-paragraph of the second class of documents?---Sorry. I don't have it in front of me.

PN643

I can show the doctor one directed to another of the witnesses which as your Honour has observed are in identical form. Dr Batten, can you turn over to the second page of that document and at paragraph numbered 3, they're the daily reports that you just talked of, is that right?---That's correct.

PN644

And they're the only documents that you produce in respect to paragraph 3?
---That's correct.

PN645

And to the best of your knowledge and those whom you've asked, there are no further documents?---That's correct.

PN646

In relation to paragraph 4, can I suggest that you have produced no documents that fit the category of 4A?---It was quite late at night when we pulled together the documents, so I don't have a copy of all of those in front of me. What we pulled together for this particular class of document is any instructions that we had sent out to our senior nursing staff group and I believe the document you showed me before the recess about how staff should deal with inquiries, those sorts of things, they are our documents in an attempt to minimise the impact of the industrial action, so I'm not sure which one you put it into, A or B.

PN647

Doctor, the documents that you produce in respect to paragraph 4, they total three pages, do they not?---No, it's more than three pages.

PN648

I think we've been given three pages, your Honour.

PN649

THE VICE PRESIDENT: I can show you the bundle of documents that's been handed to the Commission. Yes, Mr Parry.

**** TRACEY LEE BATTEN XXN MR WHITE
PN650

MR PARRY: As I am instructed, there were other documents that were given to my instructing solicitor that were assessed not to come within the terms of category 4, so the documents that come within category 4 are the ones that - there's three documents that have been produced in response to that direction. I think that's the only thing. The witness is speaking of seven documents. The other four my instructing solicitor assessed as not coming within the terms of the direction.

PN651

MR WHITE: Thank you, so, doctor, the first document is the one that I showed you earlier which is, if you like, a cheat sheet or words which people who are rung can use to explain to people what's happening?---Yes, it's words that our staff can use to help explain the situation to patients.

PN652

And there's a form of words which staff are given to use in the emergency department?---I don't have the documents in front of me. It would be quite helpful - - -

PN653

Once again could I pass to the doctor the three numbered documents? Doctor, could you please describe the documents you've just been given?---Yes. The first page is the same as the one we discussed previously addressed to switchboard staff, community relations staff, general inquiries, middie inquiries. The second one is for emergency department staff and the third one is for booking office staff, booking office staff being those that work in the elective surgery operating suite area.

PN654

Do you have those documents, your Honour?

PN655

THE VICE PRESIDENT: I do.

PN656

MR WHITE: I tender those.

PN657

THE VICE PRESIDENT: Any objection, Mr Parry. The three documents identified by the witness will be exhibit 11.

EXHIBIT #11 INSTRUCTIONS DOCUMENTS, THREE PAGES

PN658

MR WHITE: I wonder if I can have them back?

PN659

THE VICE PRESIDENT: Yes.

**** TRACEY LEE BATTEN XXN MR WHITE
PN660

MR WHITE: And, doctor, exempting your legal advice that the other documents that you provided to them were not within the coverage of paragraph 4, they're the only documents which in your view, putting those others aside, constitute the documents sought?---Is this being classed as one document or three documents?

PN661

Well, the three documents?---I'm afraid I'm not clear.

PN662

One or three documents, the documents that you've just had a look at are the only ones. We understand you've given your solicitor some, but apart from those, they're the only ones?---If these are the ones that have been handed across to you, yes, they are the only ones.

PN663

Thank you, your Honour. No further questions for the doctor.

PN664

THE VICE PRESIDENT: Re-examination.

PN665

MR PARRY: If your Honour pleases.

<RE-EXAMINATION BY MR PARRY [11.43AM]

PN666

MR PARRY: Doctor, you were asked some questions about clinical audits and about documents that had been kept and you were asked those questions in the context of health outcomes and as I understood your evidence, it was to the effect that the clinical audits recorded health outcomes in respect of elective procedures and other procedures undertaken?---That's correct.

PN667

Your evidence in your statement when referring to elective procedures and their cancellation referred to stress and disruption for the patients and their families and a continuing experiencing of pain prior to the time of the deferred surgery?
---That's correct.

PN668

Would those clinical audits record that sort of detail?---No, they wouldn't. The clinical audits are designed to look at the clinical outcomes of the patients, so it would not pick up things like stress and discomfort during the patient having that sort of an illness. What it looks at is the clinical outcome and as a result of that clinical outcome, if there's something we can learn about how we should undertake those procedures going forward, so, no, it would not record that sort of information.

PN669

If your Honour pleases, I have nothing further of the doctor.

**** TRACEY LEE BATTEN RXN MR PARRY
PN670

THE VICE PRESIDENT: Ms Richards, I didn't ask you, but - - -

PN671

MS RICHARDS: I have no questions.

PN672

THE VICE PRESIDENT: Thank you. I think in any event that since you're in the same interest as Mr Parry, it wouldn't be appropriate to hear a general cross-examination, anyway, but if the issue arises in relation to other witnesses, if you could just indicate if you want to be asking questions.

PN673

MS RICHARDS: I will do that, your Honour.

PN674

THE VICE PRESIDENT: Is there any reason why the doctor should not be excused, Mr White?

PN675

MR WHITE: We have no reason.

PN676

THE VICE PRESIDENT: You're free to go. Thank you very much.

<THE WITNESS WITHDREW [11.44AM]

PN677

THE VICE PRESIDENT: Mr Parry, it may have been a little bit impetuous of me to get you to tender the other statements because you may well have made a forensic judgment yourself that it was unnecessary to call the witnesses depending upon the outcome of the cross-examination and if you wish to withdraw any of the statements, please say so.

PN678

MR PARRY: I understood, your Honour, that you had marked those on the basis that I put them forward on the basis that they will be sworn to in due course.

PN679

THE VICE PRESIDENT: Yes.

PN680

MR PARRY: And if they're not sworn to, then I wouldn't be relying on those statements.

PN681

THE VICE PRESIDENT: Yes, okay.

PN682

MR PARRY: The next witness is Jennifer June Williams, your Honour.

<JENNIFER JUNE WILLIAMS, AFFIRMED [11.46AM]
<EXAMINATION-IN-CHIEF BY MR PARRY

PN683

MR PARRY: If your Honour pleases. Your full name is Jennifer June Williams?---Correct.

PN684

You are the chief executive officer of Bayside Health?---That's correct.

PN685

You have prepared a statement for these proceedings, Ms Williams?---I have.

PN686

You have a copy of that before you?---I do.

PN687

Are the contents of that true and correct?---They are.

PN688

Your Honour has marked it, but I tender it formally.

PN689

THE VICE PRESIDENT: It's in evidence unless you withdraw it.

PN690

MR PARRY: As your Honour pleases.

PN691

THE VICE PRESIDENT: Thank you.

PN692

MR PARRY: Ms Williams, your statement describes Bayside Health and its operations and what you describe in paragraph 18 as the threatened bans by nurses. Have in fact bans been imposed on the hospitals within Bayside Health?
---Yes, they have.

PN693

When did those bans commence?---They commenced soon after 7 am when they were officially to commence.

PN694

The first ban is described in your statement of closure of one in four beds. That's a ban that's been implemented, has it?---That's a ban that's been implemented across all three hospitals, yes.

PN695

At the Alfred, what has been the impact of the imposition of that ban up to date?
---Up to date, I can give you information as of 10 o'clock this morning to describe the impact which updates my witness statement. Is that what you'd like me to do?

**** JENNIFER JUNE WILLIAMS XN MR PARRY
PN696

Yes, if you could provide that information to his Honour?---The situation at the Alfred Hospital is that we've currently got 14 beds closed because of the industrial action and seven elective surgery cases have been cancelled because no bed is available if we were to operate on those patients and there are 22 elective cases that will proceed today. We have 28 patients that are awaiting transfer from the Alfred to the Caulfield Hospital, but because Caulfield Hospital has 27 beds closed, those patients are unable to be transferred, so they are occupying or blocking beds at the Alfred for patients that have come into the emergency department subsequently. We've had three occasions of ambulance bypass in the last 24 hours which is a significant increase on Alfred's normal level of ambulance bypass and at 10 o'clock this morning we had 15 patients in the emergency department that had been waiting greater than 24 hours which is a key indicator for admission to the ward. One of those patients has been waiting 53 hours. This patient had a fall and needs surgery. We have another patient at 45 hours, another that's been waiting 43, another at 38 hours, et cetera, making a total of 15 patients currently waiting more than 24 hours and progressively the beds are being blocked for new patients, so on a typical day we would discharge at the Alfred 60 patients and yesterday we only discharged 38, so the beds are progressively reducing in terms of the availability to admit new patients.

PN697

The delays you speak of for people waiting, how much are they attributable to the bans?---Significantly to the bans, so in terms of 24-hour waits at the Alfred in the last six months, we would have had less than five in a whole month and the fact on one day we've got 15 waiting more than 24 hours shows you that there's a significant increase in the delay for these patients to be admitted.

PN698

The three bypasses at the Alfred you refer to, is that yesterday or today?---In the 24-hour period ending 10 o'clock this morning.

PN699

And Caulfield?---Caulfield has 27 beds closed and has got an increased waiting list of patients needing admission and is at full occupancy so can't admit more patients.

PN700

MR WHITE: Your Honour, obviously these things appear to be written down and the doctor is speaking quickly and I can't hear, anyway.

PN701

THE VICE PRESIDENT: Doctor, can you just slow down a little so Mr White can make notes, so you were saying 27 beds have been closed, there's full occupancy, so no new patients can be admitted?---Correct, until we discharge another patient.

**** JENNIFER JUNE WILLIAMS XN MR PARRY
PN702

MR PARRY: Does your Honour need any of that repeated for my learned friend?

PN703

THE VICE PRESIDENT: Mr White, if the witness is getting ahead of you, just call out.

PN704

MR PARRY: You also give evidence in your statement of the impact on elective surgery and I know you covered that quickly, but at the Alfred, if you could just remind the Commission what has been the impact on the elective surgery admissions and cancellations?---The elective surgery admissions have been reduced because of the lack of bed availability at both the Alfred Hospital and at Sandringham, both of which do elective surgery. The Caulfield Hospital doesn't do elective surgery.

PN705

Have there been cancellations of elective surgery at the Alfred?---There have been. Today there are seven cases that have been cancelled because we don't have a bed to admit those patients into if we were to operate on them.

PN706

What sort of cases are we referring to here, what sort of categories of cases?---I don't have with me the examples of the specific cases.

PN707

At Sandringham?---At Sandringham there are eight beds closed and today we have 12 elective surgery cases planned to go ahead and they were currently reviewing that to determine which ones would need to be cancelled because of the bed impact. I can tell you that yesterday there were 18 elective surgical cases scheduled at Sandringham and of the 18 that were scheduled, eight were cancelled because there was no bed to admit those patients into.

PN708

You give evidence in your statement of the ban in paragraph 43 about the refusal by nurses to be redeployed. One of the exemptions in effect to that ban is to allow redeployment to the emergency department. How effective is that exemption, allowing nurses from outside the emergency department to be redeployed to the emergency department?---To my knowledge so far, this has been of limited use to the hospital. We had one nurse yesterday that was able to be redeployed from the ward to the emergency department and that occurred, but she is not a nurse that's trained in emergency medicine and is not able to be fully utilised in the emergency department and needs supervision by the nurses, so the emergency department have advised me that this is of limited use to them and there's only been one staff that's been possible to be redeployed at this point.

**** JENNIFER JUNE WILLIAMS XN MR PARRY
PN709

If your Honour pleases, that's the evidence in chief.

PN710

THE VICE PRESIDENT: Thank you.

PN711

MR WHITE: Thank you, your Honour.

PN712

THE VICE PRESIDENT: Just before you start, Mr White, let me see if I can extract in a really efficient and summary form the concession that is effectively extracted from - - -

PN713

MR WHITE: Your Honour, I am really having difficulty hearing. I am sorry.

PN714

THE VICE PRESIDENT: Just give me a moment. Doctor, in the absence of industrial action there are bed closures in the ordinary course for a whole variety of reasons?---You're asking me a question?

PN715

Yes. I am putting a proposition to you to accept or reject or comment upon. Bed closures do occur in the absence of industrial action?---Correct.

PN716

There are a variety of causes for bed closures?---Correct.

PN717

The effect of the industrial action that is threatened or occurring and certainly if what is threatened is fully implemented will result in a much greater degree of bed closure than would ordinarily be the case in the absence of industrial action?
---That's correct, with my health service, yes.

PN718

In a perfect world, you'd like to have more resources and to have no waiting time whatever for elective surgery, for example, but you have to work within - I think you nodded there that you agree with that proposition?---Yes, I agree.

PN719

You have to work within the constraints of the resources that are available to you and that means that there are waiting times for elective surgery even in the absence of industrial action?---That's correct, yes.

PN720

Sometimes those delays result in adverse impacts on patients. That's regrettable, but that's just the nature of the system and you do your best to minimise the delays?---Yes, I agree with that.

PN721

Thank you. Now, I was endeavouring to try and extract efficiently concessions equivalent to those that have been made by Dr Batten, but if you need to add to that, then please feel free, Mr White.

**** JENNIFER JUNE WILLIAMS XN MR PARRY
PN722

MR WHITE: You've missed a couple, your Honour.

<CROSS-EXAMINATION BY MR WHITE [11.55AM]

PN723

MR WHITE: Doctor, the mere fact that a patient has elective surgery cancelled of itself does not amount to an endangerment to that patient's health, does it?
---Not necessarily. Correct.

PN724

It depends on each individual circumstance?---I agree, yes.

PN725

Doctor - - -?---Could I just correct I am not medically qualified?

PN726

You're not?---No, so if I could just make that clear.

PN727

Just to finish off the area that his Honour asked you about, the key performance indicator for cancellation of elective surgery state-wide is 8 per cent, is that right?
---I'm sorry, I'm not familiar with the figure you're using.

PN728

The benchmark?---Eight per cent of what?

PN729

If there's no more than 8 per cent cancellations of elective surgery, then you would meet the state benchmark?---You're talking about hospital initiated postponements, I think.

PN730

Yes?---That is the target for hospital initiated postponements, yes.

PN731

What figures did the Alfred get last year? A hospital initiated postponement is what we've been calling cancellation of elective surgery, the effect of it is the cancellation of elective surgery?---It's a subset of the patients that are cancelled. It's the subset that the hospital is responsible for, so the number of patients that are cancelled is much higher than the hospital initiated postponements, so it is a component of the total number.

PN732

Is the number higher because sometimes patients have a sausage roll in the morning rather than fasting before their surgery?---No, no, that does not influence the hospital initiated postponement numbers.

PN733

So they would fall within the hospital initiated postponements?---No, they would not, because the hospital didn't initiate that postponement, the patient did, because the patient ate, so that figure is not relevant, no.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN734

That's what I was trying to get at. I think we're in furious agreement here?
---All right.

PN735

The hospital initiated postponements, can you go through the reasons why they occur?---They will occur because no theatre is available, the surgeon is unavailable, they would be the two primary reasons that the hospital would postpone.

PN736

Nurses not available?---Not in my experience, that would not occur.

PN737

And the non-hospital initiated postponements?---Would be that the patient is unwell for surgery, was well, but became unwell, the patient ate would be the two primary reasons that the hospital cannot control, but would lead to a cancellation.

PN738

All right, so the benchmark of hospital initiated postponements was 8 per cent, what was the Alfred's figure?---The Alfred figure is a little but above that. Sandringham met that indicator.

PN739

In your capacity as the Chief Executor Officer of Bayside Health, did you participate in the formulation of a general strategy concerning how the employers would respond to the current bout of enterprise bargaining?---I'm sorry, can you clarify that? I'm not quite sure what you're asking me.

PN740

Have you had any role in this round of enterprise bargaining in your capacity as Chief Executive Officer of Bayside Health?---As Chief Executive I sit on a steering committee that the Department has. I'm still a little bit unclear about what I'm meant to be responding to.

PN741

Well tell me about the steering committee then. What is that?---There is a steering committee that's been meeting around the enterprise agreement for the last couple of months so I have a role on that along with another 15 people with directors of nursing and chief executives and department personnel.

PN742

When was the steering committee established?---I can't give you that exact date. It's been meeting for less than six months but I'm sorry I don't have that in immediately recall.

PN743

So in the order of six months?---In the order of.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN744

Yes all right, do you ever recall attending a VHIA forum where the upcoming enterprise negotiation - agreement negotiations was discussed?---I can't remember myself attending one, no.

PN745

The working group that you describe - as one of their functions - or one of its functions been to develop a strategy that the employers or the Department would adopt in responding to any ANF claim?---Yes.

PN746

Not only that more positively as far as the employers were concerned, the working group was concerned to formulate what it or the Government wanted as an outcome in the enterprise agreement bargaining round?---Yes.

PN747

The strategy that was adopted was it not - sorry the strategy adopted involved the following matters and I put them to you one by one and I'll ask you to agree or disagree. One of the strategies was that the Government and the employers wanted to abolish nurse./patient ratios as they currently exist? That's right, isn't it?---As they currently exist - that's correct and replace them with a different form of ratio, so not to abolish ratios but to have ratios based on acuity rather than fixed ratios.

PN748

That's rations judged - - -

PN749

THE VICE PRESIDENT: That's more correctly described as a goal rather than a strategy I take it?---A goal would be correct, yes.

PN750

MR WHITE: Yes I take Your Honour's point?---So a modification of ratios.

PN751

A modification of ratios and that would be within each individual employer's authority to make the individual assessment of what was an appropriate ratio of staff on any one particular occasion, on any particular ward?---It would not be enterprise wide, it would be done by the nurses in charge of the ward in each hospital.

PN752

Yes so there's no ratio at all that exists any more, but rather the power to determine the staffing level of any ward would be devolved to individual managers?---The ratios for each shift would be determined by the nurses in charge of that ward.

PN753

Well that constitutes does it not the abolition of nurse/patient ratios as commonly understood?

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN754

MR PARRY: Your Honour I do object to this line of questioning. This is a case where we've made an application based on the existence of industrial action. We're not back dealing with these - - -

PN755

THE VICE PRESIDENT: Mr White, what's the relevance in this? Well it may well - I understand - let's assume at the moment that one of the goals of the employers in this particular dispute is to achieve an abolition or a modification of staff to do with the issues in this case?

PN756

MR WHITE: Well can I explain perhaps in the absence of this witness?

PN757

THE VICE PRESIDENT: Ms Williams, would you mind just waiting outside for the moment? Thank you.

<THE WITNESS WITHDREW [12.05PM]

PN758

MR WHITE: I assume there are no other witnesses sitting in the body of the court.

PN759

THE VICE PRESIDENT: Are there any other witnesses in the body of the court? No? Yes Mr White.

PN760

MR WHITE: You see Your Honour, it will be put that the strategy that was adopted to achieve this aim of the govern was to essentially agree to nothing and to force the position whereby the bargaining periods were terminated and to utilise then the processes of this Commission to achieve their aim and that is relevant Your Honour when one comes to consider the question of endangerment and one can assume and there an argument be put, that the - - -

PN761

THE VICE PRESIDENT: So you say that - if I could put it a different way - your case is going to be that the Department - the Government and the health services - have deliberately increased the endangerment of patients by adopting a particular strategy in relation to the Industrial Relations Act?

PN762

MR WHITE: We don't say there is an endangerment and this - we don't say there is an endangerment - a relevant endangerment and this evidence would support that finding.

PN763

THE VICE PRESIDENT: I do not see how logically the having of a goal can have an impact upon the jurisdictional question that section 430 poses unless in the pursuit of that goal particular things are done or not done.

PN764

MR WHITE: If they were serious about endangerment Your Honour they would have taken steps which are available to them under the Act already. That's not their concern. Their concern is to force the position whereby this Commission, with the complete absence of powers in relation to substantial matters in dispute, would determine the dispute. Now Your Honour that is relevant to the perception of whether or not there is relevant endangerment to health and safety.

PN765

THE VICE PRESIDENT: But let me see if I understand - - -

PN766

MR WHITE: It might also be relevant Your Honour, in the terms of - - -

PN767

THE VICE PRESIDENT: - - - the argument? You're saying because they could have got a 496 order and sought injunctive relief in the Federal Court but have chosen not to do that, that that fact is relevant to the question of endangerment because your union would have complied with a 496 order. Your client would have complied with a 496 - - -

PN768

MR WHITE: No, it's relevant to their perception of the effects of what bans there are in existence and whether or not they in fact endanger the health and safety of patients.

PN769

THE VICE PRESIDENT: I don't understand it.

PN770

MR WHITE: Well Your Honour the applicant's perception - they have to establish there's a relevant endangerment. If in fact you can draw an inference that they don't believe there's an endangerment at all, then that's relevant to you finding whether or not there is an endangerment to health and safety and this evidence is directly relevant to that.

PN771

THE VICE PRESIDENT: It's an objective issue, it's not one of perception. There either there is or there isn't and that's a finding of fact that has to be made to the best of the ability of the Commission on the basis of the evidence in front of it.

PN772

MR WHITE: Well this is - part of this is relevant.

PN773

THE VICE PRESIDENT: That there's a goal to achieve a modification of - or an abolition of staff/patient ratios.

PN774

MR WHITE: There is a strategy which has been adopted Your Honour. That strategy involves the Commission finding there's a relevant endangerment within the meaning of section 330. In determining whether or not there is a relevant endangerment.

PN775

THE VICE PRESIDENT: Are you going to put that witnesses are giving false evidence or evidence that is less than fully frank pursuant to some strategy?

PN776

MR WHITE: No.

PN777

THE VICE PRESIDENT: If you are then it's relevant, but if you're not I'm still struggling to see how it could possibly be relevant. Even if you accept the premise that it's part of the strategy to try and force a work place determination.

PN778

MR WHITE: You've ultimately got to figure out and decide what endangerment means and there are a range of considerations that you have to take in to account in making that decision. That includes bed closures and the impact on cancellation. For example of elective surgery. Assume the evidence establishes that there is elective surgery being cancelled. You still have to decide after that whether that relevantly - the fact of cancellation - endangers health and safety of the population or part of it. In finding that question - in finding out the answer to that question Your Honour the perception and the understanding of the applicants who run the health services is directly relevant and this evidence is directly relevant to that.

PN779

THE VICE PRESIDENT: I reject the question. Can somebody ask the witness to come back? I'm not satisfied the question is relevant.

<JENNIFER JUNE WILLIAMS, RECALLED [12.12PM]
<CROSS-EXAMINATION BY MR WHITE, CONTINUING

PN780

MR WHITE: Ms Williams you are aware aren't you that under the Workplace Relations Act, there are a variety of options and steps available to employers when industrial action is taken aren't you?---Broadly, yes.

PN781

Yes, you're aware that employers can apply to the Commission for orders that industrial action stop?---Yes.

PN782

You've chosen not to do that haven't you?---We've chosen to follow the direction that we've been given by VHIA and the Department, which is that if industrial action is taken that payment for nurses is to be docked, if that's the question?

PN783

No it wasn't - you've chosen not to apply to the Commission for orders that industrial action stop, haven't you?---?

PN784

THE VICE PRESIDENT: Mr White, I reject the question. It's got no relevance and it comes within the ambit of the objection that's just been argued and ruled upon.

PN785

MR WHITE: Now Ms Williams Alfred Hospital has 41 intensive care beds and you say in paragraph 10 it's funded 28. What does that mean? I'm not sure what that means?---I'm sorry, what paragraph was that?

PN786

Paragraph 10?---What that refers to is that in the intensive care unit there are 41 physical cubicles and the funding is for 28 patients.

PN787

Does that mean 41 - sorry - 28 patients can fit in to the 41 cubicles?---Yes but we can have 41 patients in there because some of the patients are not intensive care but they're downgraded to high dependency so there is a mix of patients in intensive care that are either fully intensive care which is nursing ratios of one on one or high dependency patients where the nursing ratio is two patients to the one nurse, so we always have a greater number of cubicles than we do funded ICU beds.

PN788

Does the occupancy of the Alfred Hospital rise during winter months?---The occupancy is about the same year round but we have an increase of beds that we staff over the winter months.

PN789

So if the number of beds in the various facilities varies?---During the year as you're saying.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN790

THE VICE PRESIDENT: So when you say the occupancy is around the same, the occupancy rate has a proportion of the beds available?---Correct. Of total beds available, yes.

PN791

MR WHITE: The state benchmark for the treatment of category 1 patients I think is 30 days?---Correct.

PN792

Currently across Alfred and Sandringham which the surgery sites in Southern Health, the figure reached is 19 days for the treatment of category 1 patients. I think you say that in paragraph 33, sorry that's in - Alfred is 19. Are there similar figures in Sandringham?---I don't have recall of that I'm sorry. We certainly meet the target though if that helps.

PN793

Yes you would meet the target - still meet the target if a further 11 days was added on to the current 19 which is - - -?---Yes, because it's an average we have some patients that are treated at day 29 and we have some patients treated at day 2 so by definition and average it means there's a significant variation around the average.

PN794

Yes you don't meet the benchmarks in category 2 though at the Alfred?---No, not currently, no.

PN795

The benchmark is 90 and 103 days is the average for category 2. just in relation to your previous answer, does that mean there are a number of category 2 patients who wait significantly longer than 103 days?---There would be patients both done under that and over that, yes.

PN796

You don't suggest do you that category 2 patients who wait longer than 90 days have had their health put at risk by the Alfred Hospital not meeting the state benchmarks do you?---No I don't.

PN797

Similarly with category 3 patients, the current average rate is 222 and to meet the benchmark obviously there is a significant number of spare days that you'd - you have to say yes or - - -?---Yes.

PN798

That's for the purpose of recording. Can I say this? Make this general observation for example. Paragraph 39 you describe the impact of a ban you say on its face the ban would have a particular impact. That's on the assumption is it not that the resolution passed by the general meeting of the ANF members is implemented in full?---Correct.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN799

Ms Williams you're also aware aren't you that in the current circumstances if a patient presents with an urgent matter they will be treated won't they?---Yes but there is delay in the treatment of urgent patients because of the blockage of beds.

PN800

THE VICE PRESIDENT: You'd agree though that the bans are structured in such a way as to ensure that patients who's urgency is critical are not going to be neglected?---Yes I agree with that.

PN801

Now Your Honour there is some evidence about impact or the bans which was given earlier and Mr Gilbert was in the court and that evidence was given and was making inquiries about that and also Mr Gilbert I think has had some documents presented to him by Ms Williams pursuant to the draft summons and I need to speak to him about it.

PN802

THE VICE PRESIDENT: So you've otherwise finished the cross-examination of this witness?

PN803

MR WHITE: Yes.

PN804

THE VICE PRESIDENT: I will adjourn for a short time. Would 15 minutes
be - - -

PN805

MR WHITE: Sorry?

PN806

THE VICE PRESIDENT: In the first instance 15 minutes?

PN807

MR WHITE: Yes Your Honour.

PN808

THE VICE PRESIDENT: Just in terms of planning, at this stage are you proposing to call evidence yourself?

PN809

MR WHITE: Well Your Honour that decision will be made at a later time.

PN810

THE VICE PRESIDENT: You don't have even a provisional view yet?

PN811

MR WHITE: I'll get those instructions at a later time Your Honour.

PN812

THE VICE PRESIDENT: Do you have instructions to challenge beyond that which has already occurred in cross-examination the evidence that's been given by the two witnesses thus far?

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN813

MR WHITE: Is Your Honour asking the same question a different way around?

PN814

THE VICE PRESIDENT: That's slightly different.

PN815

MR WHITE: Well it's the same question Your Honour and those - I'll obtain those instructions at a later time.

PN816

THE VICE PRESIDENT: Fine. We will adjourn for 15 minutes

<SHORT ADJOURNMENT [12.22PM]

PN817

THE VICE PRESIDENT: Yes Mr White.

PN818

MR WHITE: Thank you. Ms Williams, prior to your position with Bayside Health you were the Chief Executive Officer for Austin Health?---That's correct.

PN819

That covered the Austin Hospital, the Heidelberg Repat and some other facilities?---Royal Talbot Centre, yes.

PN820

You were Chief Executive Officer of Austin Health at a time during the 2004 bans imposed by ANF members?---I was, yes.

PN821

All right, now can I ask you this question? At the Austin Health and in Bayside Health I take it there are clinical audits done in relation to the treatment of patients?---There are clinical audits, yes.

PN822

Thos clinical audits look at both the history of the patient, the progression of the treatment of the patient and patient outcomes. Is that right?---Correct.

PN823

If there are any adverse events which occur affecting patient health while that patient is in the care of the health provider, they are obviously noted and data is collected in relation to that and stored somewhere?---Yes.

PN824

During 2004 stoppages by ANF members at the Austin clinical audits would have been done at that time in relation to patient treatment and outcomes?---The normal audit process would have continued. There wasn't any special audit done to my memory. It was just the normal weekly and yearly audit.

PN825

Yes and to the best of your knowledge - I know you weren't at Bayside Health in April/May 2004 - was that the same thing that happened at Bayside Health?---To the best of my knowledge that would be correct, yes.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN826

To the extent that the stoppages and bans would produce adverse outcomes to patients one would expect that they would be recorded in the clinical audits. That's correct isn't it?---Those clinical audits would have only recorded an adverse outcome if it had been a major sentinel event. It wouldn't have - the audits don't pick up delays to treatment and increased length of stay because of exit block
- those sorts of things - so some of the material would be - if there was anything, it would have been picked up by a clinical audit but not the entirety of the impact.

PN827

Yes, what do you mean by sentinel events?---A major adverse outcome, so wrong limb surgery or a patient death or a very significant adverse outcome to a patient.

PN828

An adverse outcome?---Adverse outcome.

PN829

All right, now the documents that you were asked to produce, have you - what steps have you taken to collect those documents?---I was asked to get these documents late yesterday afternoon and to have them by 8 o'clock last night and so I asked my director of nursing to search as far as she could the files within Bayside to provide the material that was relevant to the four areas that was requested so we had a fairly short period to do that search but we did so and we've provided a small number of documents.

PN830

Is that search to the best of your knowledge continuing?---No I haven't asked for it to continue, no.

PN831

All right, Ms Williams we've been provided with one document. Can I show you this document? Is that one of the documents that you produced in answer to the request that was made of you to search and produce documents?---I believe it is but I've not sighted the documents. The documents were sent in my absence last night because of the short duration for them to be filed so I've not actually sighted them.

PN832

If I could have that document back please Your Honour? So Ms Williams accepting - for the time being accepting from me that this is the only document that my instructors have been given said to constitute the documents which fitted within the category of documents you were asked to produce, it stands to reason then that there is no report or analysis or assessment of the impact upon health services - upon health service patients of the action taken by nurses in 2004?---My organisation was unable to find and identify documents in the time that we had to produce the documents.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN833

If you had more time could you identify them?---We would look thoroughly and we may or may not identify more documents.

PN834

So you're saying the - I understand the limitations of time Ms Williams and I'm not being critical about not being able to perform tasks within short periods of time but you don't understand that this document only asked you to look until
8 o'clock this morning and thereafter to cease looking do you?---Sorry, I don't understand that.

PN835

I'll go back a bit?---Sorry. I was asked to do the search and provide the documents so they could be submitted by 8 o'clock last night so we did that but I didn't understand I was to continue to search for documents after that. I thought we were to search for the documents and provide what we could identify in the time period that we were given to submit the documents. If I've interpreted that differently I'll give different instructions to my organisation.

PN836

Yes, well you didn't give instructions that the documents you produced - is there any reason why the documents you produced to the best of your knowledge, were only given to my instructor this morning?---No I don't know. I don't know that. We provided the documents as I understand it late yesterday evening and I was not involved in any process subsequent to my organisation sending them off.

PN837

Now, is the effect of your evidence that if you had more time that you could find more documents?---I can't confirm that I could find more documents. I can confirm that we would look further and that we may find more documents.

PN838

Given your evidence about the function of clinical audits and the recording of any sentinel events or the recording of any adverse outcomes for patients - if there were any during the period of the nurses' action in 2004, you would expect them to be recorded in the clinical audits conducted at that time?---Yes I would.

PN839

Are you able to - do you know where the clinical audits conducted at around about that time are kept?---I personally don't know. There are about 120 different departments in the Alfred Hospital alone and each department has their own audit process.

PN840

Is there a head of each department?---There is a head of each department, there is.

PN841

One would assume then that the head of each department would understand or know where the clinical audits for that department are kept?---Correct.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN842

If you gave an instruction to the head of each department, they would be able to locate those documents within a relatively short period of time. One would assume?---I would certainly hope so, yes.

PN843

Your Honour I apply for an adjournment so that that task can be undertaken by Ms Williams or those acting on her instructions and ask for those documents to be produced. I make absolutely no criticism of Ms Williams at all and anything I say is in no way designed to be critical of her but it is apparent that there have been inadequate endeavours made to comply with this request.

PN844

THE VICE PRESIDENT: Mr Parry?

PN845

MR PARRY: Your Honour the subpoena in its draft form asks for documents constituting or relating to any report, analysis or assessment, the impact of the industrial action in 2004. The witness has been asked questions about clinical audits which don't fall within that category. They are not assessments of impacts of the industrial action. They're just patient - they're obviously records of outcomes as Ms Williams described them. They don't come within that category of documents. Now to follow that course would be an enormous logistic exercise. The witness has said she's not aware of - she's conducted the inquiries that were required to be made. She can make further inquiries if that be necessary but to suggest that inadequate endeavours have been made is simply not fair.

PN846

To follow this exercise of contacted 120 different heads of departments. To what end? What are we going to get out of that? I'm not sure what Your Honour's asking me to do except - - -

PN847

THE VICE PRESIDENT: I'm asking you to respond to an adjournment application.

PN848

MR PARRY: Well I object to that. That's an unnecessary adjournment application. We should proceed with the case. Questions can be asked of the witnesses. Submissions can be made but to adjourn the case on that basis is unnecessary.

PN849

THE VICE PRESIDENT: Mr White hasn't put it this way but I infer that the position the union would adopt is that it's very careful in the way that it crafts its bans. The bans presently in place are similar to or identical to the bans that were utilised in 2004. The union believes that those bans do not in fact have serious, adverse health impacts in terms of adverse outcomes to patients and one way of demonstrating that is to scrutinise the clinical audit documents to see whether or not adverse outcomes attributable to the industrial action can be identified from the clinical audits. Now that's as I understand the way the union would be putting its case. was that sort of roughly right Mr White?

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN850

MR WHITE: Yes indeed. In fact when I address Your Honour on the terms of the subpoena or the summons, that's precisely how we put it and for my learned friend now to say that it wasn't understood to encompass that sort of material, we find is - - -

PN851

THE VICE PRESIDENT: Let's not go down that path.

PN852

MR PARRY: I object to that. Your Honour I oppose the adjournment.

PN853

THE VICE PRESIDENT: Yes, well - I thought you'd actually articulated a basis of objection already.

PN854

MR PARRY: Well I don't add further then Your Honour.

PN855

THE VICE PRESIDENT: Mr White, why isn't Mr Parry correct in saying that the clinical audits do not reasonably fall within the description in category 3 in the draft summons?

PN856

MR WHITE: Your Honour clinical audits are an ongoing exercise undertaken in hospitals. I think Ms Williams has described them as weekly and yearly. The previous witness Dr Batten described them as an ongoing thing, not only in respect of individual patients on a regular basis but also they were to be used and can be used - and are used - to look at trends or to look at long term changes or affects. Now Your Honour - - -

PN857

THE VICE PRESIDENT: Why don't you attend to the question as you invite the witnesses to do so often, ,and explain how those clinical audits could properly be described as documents constituting or relating to any report analysis or assessment of the impact upon health service patients of the industrial action taken by nurses in the period 21 April 2004 to 2 May 2004.

PN858

MR WHITE: If there was an impact on the health service of patients of the industrial action in that period, then that would have shown up in the clinical audits.

PN859

THE VICE PRESIDENT: Yes, well my view is that Mr Parry is correct when he says that that description of a category of documents does not extend to the clinical audits to the extent that they have been described thus far in the evidence. That I don't think disposes of your application fully in fairness because you say these documents in fact are relevant and you're actually seeking an adjournment for the purposes of being able to obtain them - - -

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN860

MR WHITE: Yes.

PN861

THE VICE PRESIDENT: - - - whether they're encompassed by the category description or not.

PN862

MR WHITE: Yes.

PN863

THE VICE PRESIDENT: My difficulty with that is, on the basis of the evidence that Dr Batten gave and in respect of which she was not challenged, it just is not clear that the clinical audits are reliable documents in terms of being able to identify or in fact identifying whether there were adverse or were not adverse outcomes as a result of industrial action.

PN864

MR WHITE: This witness's evidence is that clinical audits record sentinel events.

PN865

THE VICE PRESIDENT: Yes.

PN866

MR WHITE: The evidence - and I won't take you to it globally - filed by the applicants, suggests that there are sentinel events - they don't use those words
- which will occur because of the bans and - - -

PN867

THE VICE PRESIDENT: I don't understand that any witness has said there will be sentinel events because of the bans.

PN868

MR WHITE: Your Honour, well if the applicants get up now and assert to you that they do not assert that adverse health outcomes will result - - -

PN869

THE VICE PRESIDENT: No, that's a very different proposition. The sentinel events as described by this witness are major events, patient deaths. They don't happen on a regular basis because of some stuff up in the system.

PN870

MR WHITE: If it was sentinel events - sentinel events or adverse outcomes was this witness's - significant adverse outcomes as my learned friend has - - -

PN871

THE VICE PRESIDENT: Mr White - - -

PN872

MR WHITE: This is obviously relevant to the question of endangerment.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN873

THE VICE PRESIDENT: Ms Williams you're aware generally of the instructions and procedures that apply in relation to the undertaking of clinical audits?---Generally, yes.

PN874

To your knowledge, have any of those instructions or procedures ever expressly identified adverse impacts caused by industrial action to be something which is to be noted?---I cannot imagine that would be the case. I think there would be no - virtually no prospect of that being covered in a clinical audit. It's just not part of what they would do and most of these clinical audit meetings won't be documented. They're weekly meetings where cases are presented and staff discuss the cases so there won't be documentation of these clinical audits. The annual audit process there tends to be a document that is tabled - a PowerPoint presentation on a yearly group of patients but it won't show what happened during a particular week, but every audit - every department - vascular surgery will have a different audit process than cardiac surgery than general medical to respiratory -
each unit does it very differently but I would be surprised if I was able to find much written documentation about the weekly audits and certainly the weekly audits doesn't attribute anything - it just looks at the patient outcomes and sentinel events are rare. There are a handful of those in a place like the Alfred a year. Like between two and five sentinel events - - -

PN875

Can I put to you an example that Dr Batten gave some evidence about of elective surgery for a hysteroscopy to investigate vaginal bleeding in a mature aged woman. The document indicated that that is indicative potentially of there being a cancer in the uterus and that if such elective surgery were delayed, that may result in a delay in the detection of a malignant cancer which would mean that there'd been further opportunity for the growth of the cancer and therefore a potentially adverse impact on the health outcome of the woman involved. Hypothesising a clinical audit in respect of a patient who was subjected to a hysteroscopy, albeit delayed, that produced a - or discovered a malignant tumour in the uterus, could you imagine any circumstances where the clinical audit in respect of such a case would note or comment upon the fact of delay been caused by industrial action?
---I can't imagine that that would be recorded or discussion - the subject of discussion at a clinical audit meeting, no.

PN876

Mr White before you press your application for an adjournment, do you wish to cross-examine the witness in relation to any of the evidence she's just given?

PN877

MR WHITE: Regardless of whether or not it would be delay by reason of industrial activity would be recalled, it is the case is it not, that in the clinical audits the history of the patient is recorded and in the event that there was a delay in the treatment of that patient, that would be recorded? That's so isn't it?---I don't think so. To be frank with you, I don't think so but I'm not intimately familiar that the meetings of so many different clinical audits but I - my understand is that that would not be recorded in a clinical audit.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN878

Well is the evidence that you don't know and that the practice about what is included varies from department to department?---It's both of those. It varies department to department. In my understanding of the clinical audit, I think it is very unlikely that that would be recorded in clinical audit meetings and I say most of these clinical audit meetings are not recorded to my knowledge, because they are verbal meetings around X-rays and discussions on particular cases.

PN879

Isn’t there an obligation on the health services to keep statistics about the adequacy of the treatment that they provide to the patients?---The adequacy, the patient record contains all the details of that, so yes we have an obligation to do that and that’s kept in the patient record.

PN880

Is one of the purposes of the clinical audits to enable the hospital to be able to detect any unusual or growing trend of some difficulty or problem?---It’s to identify any problems with the treatment to rectify it for future treatment. Sometimes it can be used to detect trends, but it’s more usually about identifying a particular case that might have shown a problem so that a protocol or a guideline in relation to clinical treatment would be modified as a result of a finding from a clinical audit case.

PN881

If there was an audit of a particular person which showed that there was a difficulty of a result of delay in treatment, would that be recorded anywhere?---It might be I can’t tell you – there isn’t a guideline that it must be it might be.

PN882

If it was relevant to the patient’s care and outcome more likely than not it would be, that’s so isn’t it?---I tend to disagree with you but you would have to speak to someone like a Professor of Surgery or someone that’s actually involved in the clinical audit and it would vary tremendously department to department, so I really can’t do better than what I’m able to tell you.

PN883

In terms of detecting trends it is impossible to do so in the event that the clinical audits aren’t recorded?---The trend data is certainly done on an annual basis but on a weekly basis you can understand that trend data is not relevant to a weekly case review, so the weekly clinical audits look at individual cases. Then on an annual basis at the Alfred each surgical unit and most of the medical units do an annual review. But it doesn’t identify any periods during the year, it talks about 250 cardiac surgery patients, what the outcomes were for different groups but it would not bear on an analysis of what might have occurred for example in your case over a period when there would have been industrial action.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN884

But it stands to reason though that in order to be able to do an annual audit, an annual report, that the data must be recorded somewhere?---Certain data is recorded and that is variable by different clinical units. Some units have got more sophisticated computer systems that would record case details. Other clinical units don’t have as sophisticated information systems to record their data.

PN885

So depending on the sophistication of the department or its record keeping facilities or protocols, there may exist data which shows or would show the effect if any, or delay if any, of a patients treatment at any given time?---I will repeat I think it is unlikely that that data would be found in a clinical audit.

PN886

Well your Honour Ms Williams obviously is doing her best, but obviously her evidence is clear that there is no uniform practice and that that varies from department to department and further, it’s clear that there is some recording, and further it is clear that what is recorded is used to look at trends if any. So the information is there and I press for its production.

PN887

THE VICE PRESIDENT: You press the adjournment an application for an adjournment in order to facilitate the production of the documents?

PN888

MR WHITE: Yes, your Honour.

PN889

THE VICE PRESIDENT: Yes, I reject the application for an adjournment, sorry, I take it the position of the union hasn’t changed and it’s not prepared to temporarily suspend the unprotected action in order to reduce any harm that may be occurring presently in order to facilitate a more orderly hearing of the matter?

PN890

MR WHITE: I don’t have those instructions.

PN891

THE VICE PRESIDENT: Yes I reject the application balancing those factors, particularly in the light of the position that the union has adopted about not being prepared to suspend its industrial action in order to facilitate a more orderly conduct of this hearing. I’m not persuaded that the documents in question which I’m satisfied do not come within the description in paragraph 3 of the draft summons will materially assist the resolution of the issues in this case, sufficient to justify an adjournment in circumstances where there is ongoing unprotected action which on the evidence thus far and without making any final finding, appears to present a risk of adverse health affects for patients albeit it’s not likely that there will be critical adverse health impacts because of the selective nature of the bans that have been imposed.

**** JENNIFER JUNE WILLIAMS XXN MR WHITE
PN892

The reason for my conclusion that the documents are unlikely to assist in the resolution of the case is that the way the documents are prepared in terms of the evidence that has been given about them, there is no basis to suppose that even if industrial action in fact contributed to an adverse outcome, there is no probability that that fact will have been recorded in a clinical audit. So the documents are not helpful to prove the negative proposition that the 2004 bans did not have adverse health outcomes. In all the circumstances I’m not satisfied the interests of justice require an adjournment. Yes, Mr White.

PN893

MR WHITE: We have no further questions.

PN894

THE VICE PRESIDENT: Any re-examination Mr Parry?

<RE-EXAMINATION BY MR PARRY [1.07PM]

PN895

MR PARRY: Ms Williams you’ve been asked about these clinical audit processes and you’ve given evidence about what’s recorded and what’s discussed, in your statement in paragraphs 35 and 36 you refer to the effects of cancellation of elective surgery, including stress and anxiety and impacts on patients family, friends or carers and would those factors be recorded in the audits at all?---No that wouldn’t be recorded in the audits, no.

PN896

I have nothing further your Honour.

PN897

MR WHITE: Can I have leave to ask a further question?

PN898

THE VICE PRESIDENT: Yes Mr White.

<FURTHER CROSS-EXAMINATION BY MR WHITE [1.08PM]

PN899

MR WHITE: Would complications surrounding surgery be recorded in the clinical audits?---It typically would be yes.

PN900

Thank you.

PN901

THE VICE PRESIDENT: Ms Richards?

PN902

MS RICHARDS: No nothing further your Honour.

PN903

THE VICE PRESIDENT: Ms Williams just before you go, just one question you’ve been working in the public health system of Victoria for how long
now?---I have been a hospital chief executive for 10 years.

**** JENNIFER JUNE WILLIAMS FXXN MR WHITE
PN904

Before that were you working in the public health system?---Before that for four years I worked in the health department, department of human services and before that I worked in treasury.

PN905

In your capacity as chief executive officer of Eastern Health and – sorry Bayside Health and before that Austin Health, I take it you regularly have conversations with your equivalents in other health services?---I do yes.

PN906

You attend conferences?---I do yes.

PN907

And the like and you speak to the administrators of all the different types of hospitals of that operated in Victoria in the public health system?---I do yes.

PN908

On the basis of your experience and knowledge are the sorts of effects that you’ve given evidence about indicative of the sorts of effects that would be occurring in any public sector hospital in Victoria?---Yes they are the effects on the emergency patients, on elective surgery patients, the bed closures are very similar across each of the health services.

PN909

Obviously there are differential impacts depending upon the type of hospital you are talking about, an aged care facility will have different impacts to a tertiary teaching hospital?---Yes hospitals with an emergency departments without emergency departments, acute hospitals suffer acute different impact depending on the mix of patients that that hospital has and the service that that hospital provides.

PN910

Within the two health service areas that you’ve been responsible for you have that full mix of hospital types as it were in those two areas that you’ve
administered?---Yes I do yes.

PN911

Mr White is there anything arising from that?

PN912

MR WHITE: Of course there is.

PN913

THE VICE PRESIDENT: Well please fire away.

PN914

MR WHITE: You’ve said you’ve had discussions with other chief executives is that right?---I have.

**** JENNIFER JUNE WILLIAMS FXXN MR WHITE
PN915

Yes the evidence in answer to his Honour’s questions arises from the discussions you’ve had with chief executives?---Sorry the evidence in my statement?

PN916

THE VICE PRESIDENT: I don’t think that’s a fair summary of the witness’s evidence Mr White.

PN917

MR WHITE: In part the answers to his Honour’s questions depended upon the conversations you’ve had with the other chief executives of the other hospitals, that’s right isn’t it?---My witness statement is only about the impact on Bayside Health, the comments I made a moment ago referred to a period of 10 years and my understanding of my knowledge of the health system and my discussions with those chief executives generally about whether the impact of this sort of action is similar across different hospitals and I answered that it was very similar across hospitals in different hospital types.

PN918

What chief executives have you discussed that material with?---What material?

PN919

The impact of industrial action?---I have discussed it in the last several days with several chief executives.

PN920

Yes?---And over a 10 year period when there ahs been other industrial action obviously there have been discussions with other chief executives during industrial action in 2000 and 2004.

PN921

Your Honour, if my learned friend wants to close his case and submit that inferences can be drawn from the evidence so be it, but if it is sought to rely on hearsay evidence from unknown conversations, then that’s not appropriate and to that extent I would need an adjournment to think about the approach to take in respect of that.

PN922

THE VICE PRESIDENT: I’m not proposing to grant any adjournment at the moment Mr White, you can make whatever applications you think are appropriate. This is a matter that it seems to me has some urgency attaching to it. The – I mean I understand I think fairly well the broader matrix of circumstances into which this application fits. The granting of these applications will not bring the present industrial action to an end. There will not necessarily be a workplace determination. The Commission has no compulsory powers to force the parties to conciliate. The outcome of this application has nothing whatever to do with the merits of the nurse’s claims.

**** JENNIFER JUNE WILLIAMS FXXN MR WHITE
PN923

The granting of this application would be entirely consistent with the nurses claims having very substantial merit. But the application has been made. There is prima facie evidence that the present industrial action let alone, when it’s fully implemented in accordance with what is threatened is having adverse health impacts. You refuse to indicate whether or not you’re proposing to call any substantive evidence to contradict the evidence which has been proffered on behalf of the applicants. Your client steadfastly refuses to give you instructions that it will suspend its protected action in order to allow for a more orderly timetable and that presents me with particular constellation of problems to deal with and matters to weigh and I’m endeavouring to do my best in accordance with the discharge of my duty to apply the Act.

PN924

MR WHITE: Your Honour all of that which you have just said indicates no urgency. Your Honour acknowledges properly - - -

PN925

THE VICE PRESIDENT: No that Mr White - - -

PN926

MR WHITE: This application is in - - -

PN927

THE VICE PRESIDENT: No, with respect - - -

PN928

MR WHITE: In respect of a bargaining period only and not in respect of the industrial action. Where is the urgency in respect of whether or not these bargaining periods are terminated?

PN929

THE VICE PRESIDENT: There is certainly urgency attaching to the resolution of the dispute. At the moment the only route that has been pursued by the employer parties is a route that would ultimately result in workplace determination. I have to say that at the time this application started, first mentioned, my provisional view was that there could be no workplace determination in relation to the public sector employers. It appears that a different view is taken by the State of Victoria and Mr Parry’s clients and it may well be that you agree with it or disagree with it I don’t know. But the present application is the only route that may lead to a more expeditious rather than less expeditious resolution of this dispute in terms of the processes that the Commission has any control over.

PN930

MR WHITE: Of course your Honour on the very first day of these hearings, your Honour offered the services of Commissioner Smith for conciliation purposes and you will recall that on behalf of the ANF we accepted that offer. Now three days later there has been no response from the state or the employers. It is not true to say that there is only one way of resolving this dispute.

**** JENNIFER JUNE WILLIAMS FXXN MR WHITE
PN931

THE VICE PRESIDENT: No, it’s the only way that this dispute might be resolved in terms of processes over which the Commission has any control. The Commission has very limited powers as a result of the - - -

PN932

MR WHITE: It is not what the state government is putting out your Honour.

PN933

THE VICE PRESIDENT: Work Choices Amendment. Look Mr White there are all sorts of weird parallel universe experiences that have been occurring frequently in relation to this matter, not the least is the federal minister’s response to it all.

PN934

MR WHITE: Anyway we understand your ruling, we have no further questions of Ms Williams and now is probably an appropriate time for lunch.

PN935

THE VICE PRESIDENT: Thank you There is no reason why Ms Williams shouldn’t be excused?

PN936

MR WHITE: No.

PN937

THE VICE PRESIDENT: Thank you. Now Mr Parry are you proposing to proceed with the – Mr White notwithstanding what I’ve just said, are you in a position now to indicate whether the union is proposing to call any substantive evidence to contradict the evidence that’s been put by - - -

<THE WITNESS WITHDREW [1.18PM]

PN938

MR WHITE: I would like the matter to be stood down for a few minutes, so my instructor can talk to me.

PN939

THE VICE PRESIDENT: I have a personal difficulty tomorrow, it’s my eldest daughter’s 21st birthday and I propose to be back in Sydney for my eldest daughter’s 21st birthday. What I’m proposing to do is to sit for as late as is necessary today to get this matter finished and if that means finishing at 10 o’clock tonight or midnight tonight, that’s when I will be sitting to and if it’s necessary because we simply physically can’t finish it even within those parameters to come back it will be resumed on Sunday. At the moment I’m going to adjourn for half an hour and resume.

PN940

So Mr Parry – Mr White you’re going to indicate whether or not the union is proposing to call – I direct the ANF to indicate at quarter to two, whether it proposes to call any substantive evidence in response to the evidence of the applicants. Depending upon the answer to that question Mr Parry will adopt a position in relation to whether or not he proposes to call further witnesses and we will then take it from there. But I give you that formal – I give that formal direction to the ANF to adopt the position in relation to whether evidence is going to be called substantively to contradict the evidence that’s been led by the applicants and to give that indication at quarter to two I adjourn until then.

<SHORT ADJOURNMENT [1.19PM]
<RESUMED [1.50PM]

PN941

THE VICE PRESIDENT: Welcome back Mr Hanks.

PN942

MR HANKS: Thank you, your Honour.

PN943

THE VICE PRESIDENT: Mr White?

PN944

MR WHITE: Now pursuant to your direction to advise you whether we intend to call evidence directly contradicting the witness statements, the answer is no.

PN945

THE VICE PRESIDENT: Thank you.

PN946

MR WHITE: Now there is another matter which you need to be apprised.

PN947

THE VICE PRESIDENT: Yes.

PN948

MR WHITE: That is that the bargaining period the ANF bargaining periods have been withdrawn.

PN949

THE VICE PRESIDENT: Has that been effected as we speak?

PN950

MR WHITE: It has been effected by written notice given to the applicants solicitors and I also think it is being effected by notice directly to the applicants, 428 is the relevant section and we have told the other negotiating parties in writing by notice to their solicitor, their representatives and I think they are now in the process - - -

PN951

THE VICE PRESIDENT: Mr Parry do you accept that there has been effective termination withdrawal of the bargaining period?

PN952

MR PARRY: We are aware that there has been notice given to my instructing solicitors and the VHIA. As to the others I haven’t got instructions on that your Honour but - - -

PN953

THE VICE PRESIDENT: It would seem to me that that’s a sufficient compliance with section 428(b) given that those persons you’ve identified are the representatives of the negotiating parties, the other negotiating parties.

PN954

MR PARRY: That would appear to be the case.

PN955

THE VICE PRESIDENT: Which means that these proceedings are now moot.

PN956

MR PARRY: Incorrect, if your Honour thinks that, your Honour is very much mistaken.

PN957

THE VICE PRESIDENT: Well I’m no doubt about to be enlightened.

PN958

MR PARRY: I’m sorry your Honour.

PN959

THE VICE PRESIDENT: I’m about to be enlightened.

PN960

MR PARRY: Yes there are employer bargaining periods in place that we seek to terminate.

PN961

THE VICE PRESIDENT: Of course.

PN962

MR PARRY: So that makes absolutely no difference to the application your Honour.

PN963

THE VICE PRESIDENT: Mr Parry the Work Choices legislation has taken away from the Commission as you well know most of it’s almost all of it’s compulsory powers and in particular the Commission has no statutory basis to require or compel parties to attend a conciliation, its dispute resolution services are provided strictly on a voluntary basis. Nevertheless as I think I’ve indicated the Commission stands willing indeed I think eager would be a better description to assist in the resolution of this dispute through assistance in conciliation. Commissioner Smith is in a position to provide that assistance if the parties seek it.

PN964

I would strongly recommend that the employer parties embrace that offer, but obviously it can’t be compelled. Do you have any instructions in that regard? I take it you don’t?

PN965

MR PARRY: Not yet your Honour no. Your Honour I’ll get those instructions.

PN966

THE VICE PRESIDENT: Can we just - - -

PN967

MR PARRY: We assume that we’ll cooperate in a process of conciliation. We would still want this matter heard and determined because if there’s any perception of view here by the other end of the bar table or on the bench that the withdrawal of the employee bargaining period has any effect on this application that’s dreadfully wrong.

PN968

THE VICE PRESIDENT: No I understand your point I’m sorry I’d completely overlooked the fact that there were employer bargaining period notices that were operative.

PN969

MR PARRY: It’s not uncommon for and indeed, it’s occurred on a number of occasions that people have sought to terminate their own bargaining periods on this basis. So this is not unusual at all.

PN970

THE VICE PRESIDENT: The real politic here is or the practical circumstance behind the particular legal manoeuvring in these matters is that the government wishes to force a workplace determination.

PN971

MR PARRY: Well the position is that we will, if your Honour were to determine the bargaining periods, we would go through the process in division (a) and if we were not successful then the Commission would be – following that process, end up making that determination but there are a number of stages to go through before that stage.

PN972

THE VICE PRESIDENT: Yes. Well I hope that those who instruct you have noted my strong recommendation but they obviously can’t be compelled, but that they avail themselves of the opportunity to have Commissioner Smith involved, because it seems to me that and it wouldn’t be lost on your or those who instruct you that significant unhappiness can occur between now and 21 days after any termination of the employer bargaining periods.

PN973

MR PARRY: Yes I think they’re well familiar with that.

PN974

THE VICE PRESIDENT: Okay, very good. Mr White, do you accept that the fact that there are still employer bargaining periods on foot and it means that these applications need to continue?

PN975

MR WHITE: We accept your Honour that these bargaining periods are
still on foot, we don’t accept that they can be terminated in all the circumstances and we repeat your Honour and I won’t go into that argument now, but we repeat, we repeat our submission your Honour that the application in respect of the bargaining periods and not the industrial action alleged creates no urgency. The urgency as your Honour rightly pointed out before lunch is to get a resolution to this difficult situation. There is no actual urgency - - -

PN976

THE VICE PRESIDENT: Mr White - - -

PN977

MR WHITE: There is no actual urgency about the bargaining periods themselves and can I reiterate - - -

PN978

THE VICE PRESIDENT: Mr White I’ve heard your submissions and I think I’ve already indicated the position, and it just can’t change. Whether I like this legislation or not my duty is to perform a function of applying it and under the regime that the federal parliament has seen fit to put in place the only lawful mechanism which could see an end to this dispute within the four corners of this Act is via the route that is presently being pursued by the employer applicants.

PN979

MR WHITE: No your Honour that’s quite wrong, one of the fundamental objects of the Act is for the parties to make their own agreements.

PN980

THE VICE PRESIDENT: That’s right and there’s going to be a negotiating period of 21 days if these bargaining periods are terminated within - - -

PN981

MR WHITE: It can be now, it can be within five minutes. So this process is not the only thing. This is the – you see your Honour can I make these submissions now?

PN982

THE VICE PRESIDENT: Look Mr White you’ve already made those submissions I’ve already adopted the position and I don’t propose to re-enter upon it. I’m not a complete idiot I do understand the statutory structure and I understand the argument you put, the point you’re making and I may be wrong about but I have a very considered view and I disagree with it. So we need to proceed, is there some argument you wish to advance that the applications are now moot or should not proceed by – because of or by virtue of the fact that the union bargaining periods have now been withdrawn?

PN983

MR WHITE: Well your Honour there’s still evidence to be led according to my learned friend and evidence to be tested and we’ll deal with that.

PN984

THE VICE PRESIDENT: Okay thank you. Yes Mr Parry.

PN985

MR PARRY: Your Honour with regard to the conciliation we want the proceedings to continue as I think your Honour has indicated that they will and we will cooperate at any conciliation process as organized by the Commission.

PN986

THE VICE PRESIDENT: Well can I indicate that Commissioner Smith is available to commence a conciliation process tomorrow and if you’re indication of your preparedness extends to that then that’s something that should be organized forthwith.

PN987

MR PARRY: Mine doesn’t but perhaps those instructing me are more enthusiastic about it though. If your Honour will excuse me for a moment. We’ll cooperate in that process your Honour.

PN988

THE VICE PRESIDENT: Thank you.

PN989

MR WHITE: I’m sorry I thought you raised an eyebrow in my general direction.

PN990

THE VICE PRESIDENT: I did actually and I was just contemplating whether I’d open my mouth and say anything I was just reflecting on it.

PN991

MR PARRY: Your Honour the direction of the Commission required documents I have another bundle to hand up. One produced by Dr Murphy and that has a yellow tag on it and another produced by Mr Wallace in accordance with the direction of the Commission.

PN992

THE VICE PRESIDENT: Copies have been provided to the respondents to the application?

PN993

MR PARRY: Yes your Honour and the next witness is Dr Murphy and
Ms Doyle will take that witness.

PN994

THE VICE PRESIDENT: At this stage you’re proposing to call each of the witnesses who’s statements have been tendered?

PN995

MR WHITE: I didn’t hear that your Honour.

PN996

THE VICE PRESIDENT: I asked Mr Parry whether at this stage he was proposing to call each of the witnesses who’s statements had been tendered.

PN997

MR PARRY: I had proposed following that course and that’s my current intent, I’m just – I note some of your Honour’s comments and I’m reflecting on those but the present intention is to proceed.

<BRENDAN FRANCIS MURPHY, SWORN [2.04PM]
<EXAMINATION-IN-CHIEF BY MS DOYLE

PN998

MS DOYLE: Thank you Dr Murphy, your full name is Dr Brendan Francis Murphy?---Yes.

PN999

You’re the chief executive officer of Austin Health?---That’s correct.

PN1000

You are a qualified Doctor holding a Bachelor of Medicine?---That’s correct.

PN1001

Have you got a copy of your witness statement with you or shall I have one provided to you?---I haven’t brought it in with me.

PN1002

I’ll just have one provided to you. While that’s making it’s way up to you can I just have you explain a couple of matters arising out of your statement and the position you hold? As chief executive officer of Austin Health you’re responsibilities including the Austin Hospital, the Heidelberg Repatriation Hospital and the Royal Talbot Rehabilitation Centre is that right?---That’s correct.

PN1003

Do you have now have a copy of that statement in front of you?---Yes I do.

PN1004

Are the contents of that statement to the best of your knowledge true and
correct?---They are.

PN1005

Your Honour I believe that the statement was marked earlier but should now be tendered subject to any objections as exhibit 7.

PN1006

THE VICE PRESIDENT: Yes, it’s marked as exhibit 7 subject to objection.

EXHIBIT #7 WITNESS STATEMENT OF DR BRENDAN MURPHY

PN1007

MS DOYLE: Of the three hospitals I just mentioned is it only the Austin which has an emergency department?---That’s correct.

PN1008

You give a break down of the beds and the type of care provided in each hospital so I won’t repeat that. You give some material there about the expected effect of the bans you’ve been advised of prior to providing your statement, do you have any figures with you relating to the events at the hospital over the last couple of days since the bans were implemented?---I do.

PN1009

Can I ask you further about bed closure, now the figures you have available are they current as at what time yesterday or this morning?---6 pm yesterday is the most accurate figures I have.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1010

All right and the figures that you have available do they cover those three hospitals that fall under the auspices of Austin Health?---They do.

PN1011

As at 6 pm yesterday how many acute beds were closed at Austin Health?---29.

PN1012

How many sub-acute beds?---25.

PN1013

Can you tell us the bans exempt ICU, is that correct?---That’s correct.

PN1014

Do any of those bed closures fall within ICU?---They don’t.

PN1015

Have the hospitals that fall under the auspices of Austin Health had bed closures for other reasons?---Not at present no.

PN1016

In the past have you had bed closures for other reasons?---We have had occasional episodes of gastroenteritis particularly in the last few years that have closed small numbers of beds.

PN1017

Any other reasons why beds have been closed, at least in your time as chief executive officer?---Occasionally to do partial renovations to a ward area, like a full bed section, but in general not because of staffing shortages.

PN1018

The bed numbers you just gave me, 29 acute and 25 sub acute, is there closure wholly referrable to the industrial action?---I believe it is yes.

PN1019

Now those closures have they had – what impact have they had on patients and what impact have they had on the functioning of the hospitals?---They’ve had a very severe impact on emergency demand, on access block we’ve had seven episodes of ambulance bypass since the bans totalling 16 hours, that’s more than I’ve ever seen in my two and a half years at Austin Health. We’ve had nine - - -

PN1020

Can I just stop you there. How do the bed closures in wards affect the emergency department, if you can just explain that link?---Because the nurses in the wards will not take automatically patients in the emergency department, they don’t see them all as emergency patients even though they have presented for emergency care in the emergency department. It has taken them very long periods of time to get any patients up to the wards including nine patients have now waited 24 hours in the emergency department on a trolley for an inpatient bed. That’s the first time in 12 months that we have had any patient waiting 24 hours for access to a bed and I think that’s a pretty ordinary statistic.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1021

Do you have any data on how many patients are waiting in the emergency department or were waiting as at 6 o’clock last night for admission?---I have an update for this morning. There were 21 patients waiting at 9 am, which was my last update at that time we were on ambulance bypass and there was a patient who was receiving active treatment on the ambulance trolley in a corridor waiting to be processed into a cubical.

PN1022

How does that number of people waiting and period of time how does that compare with a period where there is not industrial action in place?---Well as I’ve said we haven’t had a 24 hour wait for 12 months and we’ve had nine since the period of industrial action . Clearly there are other times when ambulance bypass occurs and when bed block occurs, but generally once you go on bypass the whole hospital staff work very quickly to clear people from the emergency department and that simply just doesn’t happen in the industrial ban climate because there’s a complex and long period of negotiation that can sometimes take several hours before patients will be moved to the ward. We’ve even had to bring an inpatient style bed down for one patient who’d been waiting 34 hours in the emergency department this morning so that he could be kept comfortable.

PN1023

Now you mentioned bypass, those are periods on each occasion of two hours during which the ambulance service does not bring emergency cases to the hospital?---Except for code 1 the highly acute, the resus level patients they don’t bring them, yes.

PN1024

Can you just explain or clarify how many periods of by pass has the Austin Health service had and if you need to break it down into the hospitals but had since the bans commenced?---We’ve had seven episodes totalling 16 hours.

PN1025

How does that compare with periods during which there’s no industrial action?---I have never seen that frequency of bypass over essentially a two and a half day period in my nearly three years at Austin Health. There have certainly been periods in the past where we might have had up to four hours in a day, or in a two day period but never 16 hours in three day period.

PN1026

Are you in your position as CEO are you given information either by the ambulance service or in other ways about whether other nearby hospitals are on bypass?---Yes we receive from the department of human services every morning an update on the ambulance bypass across the sector and I was concerned yesterday morning to learn that on the Wednesday night, the first night of the bans, eight hospitals had been on bypass for periods of two to five hours. Some of them simultaneously every major tertiary teaching hospital had been on bypass during that period, including Austin health and three other smaller metropolitan hospitals so there were eight hospitals during that night that had been on bypass and that’s a situation that I don’t believe I’ve ever seen before.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1027

You just referred to teaching hospitals, are they hospitals such as the Alfred, St Vincent’s?---The Royal Melbourne.

PN1028

The Royal Melbourne, Austin and Monash?---Monash correct.

PN1029

Are those the hospitals that you include in your list of those on bypass?---They were all on bypass on Wednesday night yes.

PN1030

Now in relation to bed closures are you able to provide current information to the Commission about bed closures at Austin Health?---Well as I – I think all I’ve got is list night’s figures I haven’t got - - -

PN1031

Sorry I didn’t mean to move to the next topic, surgery, cancellation of
surgery?---Elective surgery cancellations yesterday were 19 patients. I should point out that we have a fairly low volume of overnight elective surgery at the moment because our health service has been busy with emergency demand for some months. But 19 were cancelled yesterday, three category 1, 10 category 2 and 6 category 3.

PN1032

Do you have any information about in relation to the category 1 surgeries, you said three were cancelled?---Yes.

PN1033

Do you have any information about what types of operation was intended?---They were suspected bladder cancers to have investigation of hematuria.

PN1034

Do you know how those cancellations were affected in the sense that were those patients given warning, or did they attend and get sent home?---Most of the cancellations yesterday did attend and were sent home. We’re now trying to contact people before when we know that there’s no possibility of them being accepted, so some of today’s cancellations were notified yesterday. But most of yesterday’s actually attended and were sent home.

PN1035

Will Austin Health, do you know when Austin Health will be able to reschedule the category 1’s that you’ve cancelled for example?---We will try to get them in next week because category 1 is really, you know there is an urgency about them and we will try and persuade the nursing staff to reschedule them as quickly as possible so they will be done hopefully within the next week or so.

PN1036

Right and in order to do that sort of rescheduling will there be any flow on effects to reschedule?---Well obviously it will push other people back, all of the rescheduling that we have to do we try and give priority to those people who have been cancelled and that will push out we have a very complex planned elective surgery programs for other people that might be scheduled to be done at a later stage, might be pushed further out, so it has a long, significant effect on a number people.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1037

There’s discussion in your witness statement about the effect of at that stage, the proposed ban by nurses, or the refusal by nurses to be redeployed by management. Has there been any impact in relation that part of the bans?---At the moment we haven’t actively attempted to redeploy nurses because our emergency department has been pretty well staffed so, and because we’ve had relatively small number of beds closed despite the significant impact that it’s had, on the health service, we haven’t yet had a significant impact of failure to redeploy.

PN1038

I have no further questions in chief of Dr Murphy.

PN1039

THE VICE PRESIDENT: Thanks Ms Doyle. Mr White do you need a short adjournment to have a look at Mr Murphy’s documents?

PN1040

MR WHITE: I will need that I don’t see – I haven’t spoken to Mr Gilbert about them, hopefully Mr Gilbert – I don’t know if Mr Gilbert is here at the moment either, so we’ll find him, but I will need that time.

PN1041

THE VICE PRESIDENT: Well do you want to take that time now?

PN1042

MR WHITE: Yes, your Honour that would be convenient.

PN1043

THE VICE PRESIDENT: I’ll send my associate down in 10 minutes, just looking through them briefly it doesn’t look like they’ll take terribly long, because they don’t appear to be narrative documents at all they are typed in the state of forms.

PN1044

MR WHITE: I don’t know your Honour there is some further material about the alleged impact of bans and bed closures I’m unsure why we couldn’t have been provided with that information before, but so be it.

PN1045

THE VICE PRESIDENT: I’m sure those who are instructing Mr Parry have been Herculean in their efforts to produce documents. I mean we see small bundles getting handed up but behind those four bundles represents scores of hours of work for a large group of people I’m sure.

PN1046

MR WHITE: Well the figures that were given in evidence just then could have been easily handed as the previous witness. But so be it that’s how the applicant wishes to run it’s case, but we do need an adjournment.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1047

THE VICE PRESIDENT: I’ll send my associate down in 20 minutes and if you need further time at that point, can you just indicate that to him.

PN1048

MR WHITE: Thank you your Honour.

PN1049

THE VICE PRESIDENT: Yes Mr Parry?

PN1050

MR PARRY: Nothing your Honour.

PN1051

THE VICE PRESIDENT: Thanks I’ll adjourn for 20 minutes.

<SHORT ADJOURNMENT [2.16PM]
<RESUMED [2.38PM]

PN1052

THE VICE PRESIDENT: Yes Mr White.

PN1053

MR WHITE: Thank you your Honour before we get to Dr Murphy your Honour the welcome albeit belated acceptance of the Commission’s assistance for conciliation by the government has prompted us to make another application for an adjournment and I bear your Honour to listen to this. We understand the statutory obligation and we don’t want to put anything inconsistent with you performing that obligation. Your obligation includes that if the matter has been able to heard and determined within five days to make an order suspending the bargaining period. That’s what happens.

PN1054

Your Honour whether it has any regard or makes any difference given observations your Honour has made about the state’s apparent, pursued or even the submissions the state has made about the purpose of this application, the matter, the bargaining periods of the employer’s could be suspended now, we consent to that. Now your Honour we reiterate we are severely prejudiced in the capacity to meet this case. In the event that your Honour was to grant a very short adjournment what is the prejudice that the government has or is likely to suffer and this is the relative impact of the government now accepting a conciliation under the auspices of the Commission. The only possible prejudice to the government is that the 21 day conciliation period which will follow in the event that your Honour terminates the bargaining periods, is deferred by a couple of days, during which time they have already agreed to conciliate.

PN1055

The conciliation which follows in the event that you are to terminate the bargaining periods, starts two days later if it’s adjourned to Monday during which time, all parties have agreed to commence conciliation under the auspices of the Commission. In our submission we are prejudiced and the government has no prejudice at all if the matter is now adjourned to Monday during which time you can be confident that our part the conciliation will be undertaken in complete good faith with all the resources necessary to achieve an outcome.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1056

THE VICE PRESIDENT: Commencing tomorrow.

PN1057

MR WHITE: We can commence today, but it will certainly - - -

PN1058

THE VICE PRESIDENT: Commencing tomorrow or commence today?

PN1059

MR WHITE: We are ready to commence, let me rightly point out, we approach this in a very serious fashion and any resources which currently occupy in running this case including senior officer of the union and senior industrial officer can be dedicated to what is in fact the most important thing that is the resolution of these problems. So your Honour I renew my application for an adjournment if your Honour was minded to suspend the employer bargaining periods we would consent to that. We undertake to fully participate in a conciliation process and we remind your Honour of our earlier submission about the way in which we say we are significantly prejudiced in the capacity to run our case.

PN1060

THE VICE PRESIDENT: Mr Parry is it perhaps desirable to get some instructions. I know you’ve got general instructions, but specifically because there’s been a degree of movement hasn’t there and a change of circumstance and it may be desirable to – Mr White makes a sensible point when he says that the parties are both agreed to enter into conciliation immediately, the attention and time of key individuals can be focused on that. He’s correct when he observes and I think I’ve observed myself earlier on, even if the application is successful there’s still going to be a 21 day period before any hearing can start.

PN1061

The applicants clearly will be free to seek 496 orders to make application to the Federal Court. To do that well in advance of the expiry of the 21 day period in the event that industrial action continues. I just think it would be desirable for the applicants to consider whether in a practical sense given that ultimately there needs to be some resolution one way or the other it isn’t desirable to embrace this option.

PN1062

MR PARRY: Well your Honour I’ll get those instructions as you ask. I do indicate that we only have one more witness today.

PN1063

THE VICE PRESIDENT: One of the options is to finish hearing the evidence and for me to simply refrain from making a decision until after the weekend.

PN1064

MR PARRY: Well your Honour we would want – we said when we spoke earlier about conciliation, we saw ourselves participating in that on the basis that this case ran to completion and that was what I said about conciliation five minutes ago your Honour. We as I indicate, I have one more witness after this. We would see it as highly desirable that the evidence be complete and submissions made and when your Honour decides to make a decision, that’s a matter for your Honour. But we would want the case completed as soon as possible.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1065

Now that’s not to prevent the conciliation going ahead tomorrow. That can go ahead. But it’s not the prejudice to the government that’s at issue here, it’s the fact that there is as your Honour has observed on a number of occasions dealing with a fifth such application for an adjournment, that this is a method of resolving the real dispute. The prejudice that’s being suffered out there at the moment is to the users of the public health system and we should try and keep that in mind that this is a public interest part of the Act. So your Honour if posing an adjournment our submission is that the matter should proceed, we should complete the evidence.

PN1066

THE VICE PRESIDENT: I’m just hoping you’re not too actually get to the point of adopting a position until you’d spoken to those who instruct you from the department. The basis that the taking a practical approach and taking account of human dynamics it may assist rather than detract from the ultimate goal which is the speediest possible resolution to move straight to a conciliation phase and to resume the hearing where it will be completed to finality if there is no serious progress that occurs over the weekend.

PN1067

MR PARRY: Well I can only make the observations I’ve made, that is that we oppose a course. Your Honour has ruled on this on about four occasions, all we’ve done is stand up five minutes ago and say all right we’ll cooperate in a conciliation process and all of a sudden what’s changed, I’m not sure that that’s anything that should change - - -

PN1068

MR WHITE: That’s the - - -

PN1069

MR PARRY: Well it’s nonsense, it’s a nonsense argument to say simply because we’re cooperating in conciliation this process that everyone accepts is important should somehow be put off, so my position is and the position of my clients is we want this matter to proceed and to be heard to completion today.

PN1070

THE VICE PRESIDENT: I think Ms Doyle is about tell you - - -

PN1071

MR PARRY: Of course if they lifted the bans we’d get – that would probably change the situation.

PN1072

THE VICE PRESIDENT: I can see Mr Hanks nodding as well.

PN1073

MR HANKS: Your Honour my client’s position is precisely the same that this proceeding, that this application should be determined as quickly as possible and should not be adjourned. We don’t doubt that conciliation can proceed in parallel if that’s necessary but it should not interrupt this application.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1074

THE VICE PRESIDENT: The reality is that the resources on the union’s side are limited and the key people can’t be doing two things at once - - -

PN1075

MR HANKS: My understanding from what has been said conciliation is scheduled for tomorrow.

PN1076

THE VICE PRESIDENT: Yes.

PN1077

MR HANKS: From what we also apprehend the evidence will conclude today in this application there will be no necessity for any split in resources on that basis.

PN1078

THE VICE PRESIDENT: I’m not sure that’s exactly right Mr Hanks in a practical real world sense, because the sort of conciliation we are talking about is one that both sides would want to think about the precise way they approach it, some strategy and tactics and negotiating positions and whilst this hearing is proceeding, Ms Fitzpatrick and Mr Gilbert are not able to devote their whole attention. But that’s rather beside the point.

PN1079

MR HANKS: I’ve stated my client’s position.

PN1080

THE VICE PRESIDENT: Thank you Mr Hanks.

PN1081

MR WHITE: Your Honour I’ll just respond very, very quickly.

PN1082

THE VICE PRESIDENT: Yes, Mr White.

PN1083

MR WHITE: The interesting omission from both my learned friends submission is that apart from proceeding was the complete absence of any prejudice on the course - - -

PN1084

MR PARRY: Apart from the people that are out there.

PN1085

THE VICE PRESIDENT: Mr White the issue of prejudice works like this. Within the ambit of the Act the only mechanism by which this dispute has any prospect of resolution is through a workplace determination. I appreciate that one of the possibilities is that your client may decide that they are not going to participate in that process and the Commission can do what it likes but having set our shoulder to the plough of good old time religion industrial action, we are going to see it through. That’s a high stakes of the game for both sides. But my obligation I think is to work within the ambit of what the Act contemplates and in terms of what the Act contemplates the process of resolution is going to be delayed by however long it takes to complete this application because it may not resolve in negotiation.

**** BRENDAN FRANCIS MURPHY XN MS DOYLE
PN1086

I can well understand that the nurses are angry and have a deep sense of grievance and that therefore a resolution and also the government has particular constraints on it, which may make resolution difficult. So it may mean that it does come down to a workplace determination. I simply proceed upon an assumption that the union may come to the view that it’s not going to participate and press on with the unprotected route and therefore any delay in this process is a delay in the ultimate resolution in accordance with the Act and in circumstances where there’s prima facie evidence that the public are suffering, I feel constrained and compelled to adopt a similar position.

PN1087

MR WHITE: Well your Honour as I said before the primary position of the Act is for a grievance to be made that’s the primary position of the resolution of disputes and that is exactly what is now going to be put in place over the weekend. So your Honour with all due respect there is not only one way under the Act for the resolution of this dispute.

PN1088

THE VICE PRESIDENT: What you say is correct, but it is painfully and practically apparent – Mr White with a heavy heart I feel obliged to reject the application on the face of the opposition that’s coming from the applicants and the government for basically the reasons I’ve already outlined.

PN1089

MR WHITE: Would your Honour then consider an amended application and finish the evidence today but quite frankly your Honour the speed with which this has gone has meant that I’m not in the best position I would like to be in, in terms of making the submissions. I’m quite happy to sit if the government wishes to make all its submissions at the conclusion of the evidence.

PN1090

THE VICE PRESIDENT: Let’s finish the evidence first. I don’t think there’s any utility in spending more time on that debate at the moment.

<CROSS-EXAMINATION BY MR WHITE [2.55PM]

PN1091

MR WHITE: Dr Murphy you were - - -

PN1092

THE VICE PRESIDENT: Just before you do Mr White I’d like to adjourn for a few minutes and see counsel just outside the hearing room.

<SHORT ADJOURNMENT [2.55PM]
<RESUMED [3.10PM]

PN1093

THE VICE PRESIDENT: Thank you we proceeding?

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1094

MR WHITE: I haven’t been told anything your Honour.

PN1095

THE VICE PRESIDENT: Your position hasn’t changed Mr Parry?

PN1096

MR PARRY: No your Honour.

PN1097

THE VICE PRESIDENT: Doctor, thank you.

PN1098

MR WHITE: Doctor it is the truth isn’t it that patients have their elective surgery postponed or cancelled regularly at the Austin Hospital?---Small numbers of patients do have elective surgery cancelled or not booked generally. I mean generally we’re in a period of very busy emergency demand as we have been in the last few months, we would not book the full compliment of elective surgery, so we don’t at least put the patients at the inconvenience of having them cancelled at the last minute.

PN1099

It’s the fact isn’t it that patients at the Austin regularly have their elective surgery cancelled?---Small numbers of patients do have their elective surgery cancelled yes as in any major tertiary hospital, yes.

PN1100

The assessment of whether or not those patients by having their elective surgery cancelled have had their health endangered depends upon the individual circumstance of each patient doesn’t it?---Yes, that’s correct.

PN1101

You agree with the general proposition then, it stands to reason, it follows from what I’ve just put to you and what you’ve agreed that the mere fact that elective surgery is cancelled does not of itself mean that patients health is imperilled or endangered?---Except for category 1 patients which we almost never cancel and which we’ve had to cancel on the last two days, people who might have cancers that are undiagnosed, such as the three patients cancelled yesterday, that is generally true.

PN1102

Doctor what is the state bench – you say paragraph 38, the state bench mark, the category 1 that is there today you’re not suggesting that category 1 patients who might wait until the end of that 30 day period have had their health endangered are you?---If you have only enough surgical capacity to just meet that 30 day target for category 1 patients and you have a significant disruption it’s quite possible that some might exceed that 30 day bench mark.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1103

Yes, but the mere fact that they have exceeded it Doctor, does not amount to their health having been endangered?---Well we never exceed the category 1 bench because it is considered to be a high risk. We always treat category 1 patients within 30 days, always.

PN1104

Category 1 patients as with category 2 and 3 patients whether or not their health has been imperilled would depend upon the individual circumstances of each individual patient?---That’s correct with a higher risk for category 1’s.

PN1105

The occupancy at the Austin does that vary during the winter and summer months?---Yes, it does we would probably have a higher percentage occupancy in a busy winter as we’ve recently had.

PN1106

Yes so in paragraph 16 where you say the typical occupancy rate is 96 per cent, is that an average over the year or is that the figure throughout the year?---That’s an average over the year, it can get higher than that.

PN1107

All right in paragraph 22 of your statement you say that –just as an observation you’re not suggesting that any category 1s have been cancelled today are
you?---I’m not informed that any have been cancelled today, no. I don’t – I’ve been at the Commission since 9 am so I’m not – I haven’t had an update since then.

PN1108

You have phones haven’t you?---Yes, but - - -

PN1109

You happened to phone home?---I have a phone to be advised that there are 13 elective patients cancelled this morning but I don’t know what status they are I haven’t got that information with me.

PN1110

You didn’t think it important enough to ask if any category 1s were included in that 13?---When I was given that information that was all the information that was available to me at the time.

PN1111

As a matter of fact – well I’ll ask you this. You’ve been at the Austin since 2005 did during the course of your tenure at the hospital, or – all right I withdraw that we might come back to that Doctor – Doctor can I ask you this, what makes a hospital busy, is it the number of patients, the acuity of patients or the types of procedures.?---All of those things. All of those will impact on demand and the busyness of the hospital.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1112

In paragraph 22 you say:

PN1113

The hospital was 30 per cent busier than it was five years ago.

PN1114

?---30 per cent more ambulance attendances and emergency department attendances since then, yes.

PN1115

So that’s 30 per cent more patients?---30 per cent more yes, yes.

PN1116

Yes can I also suggest to you that over the last five years not only are there the more patients as you’ve described but increasingly in public hospitals and at the Austin particularly the patients who are there, have greater acuity?---I think in general that’s a true comment yes.

PN1117

Over the last five years have the number of nurses you’ve employed at the Austin, increased by 30 per cent?---I don’t have that information, but I would be surprised if it’s not close to that. I haven’t got that information I’m not sure that that’s relevant to this discussion at the moment is it? I don’t know that information off the top of my head.

PN1118

You don’t know?---I’ve only been there two and a half years.

PN1119

What’s been the increase in the number of nurses employed over the last two and a half years?---I haven’t got that information to hand.

PN1120

Just as in determining whether or not patients who have had elective surgery cancelled, they’ve had their health imperilled requires an individual assessment of each patient, so also does an individual assessment have to be made of all patients, whose care is affected by bans to determine whether their health has been imperilled, do you agree with that?---To an extent I think prima facie you can say spending 34 hours on an emergency trolley particularly with people with serious conditions, is potentially a risky situation, but you would need to perhaps assess the individual patients clinically. But prima facie it’s pretty hard to imagine it’s not a bad thing for someone to – for nine people to spend a day on an emergency trolley.

PN1121

All right just a couple of other things. Your category 2 figures, if we can just go back a step. The optimal time for the category 2 patients is 90 days, isn’t
it?---Yes.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1122

Your category 2 figures this is an average is 145 days?---Mm.

PN1123

That is significantly over the state bench mark isn’t it?---That’s correct.

PN1124

Horrendously over the state bench mark?---It is significantly over yes.

PN1125

Do you say that the category 2 patients who were treated at the Austin Hospital between days 91 and 145 had their health endangered?---I think you’ve got to look at category 2 patients are an extraordinarily varied group. Some category 2 patients have much more urgent conditions, potentially cancers and are treated in a much more prompt time. That it’s not a homogenous group at all and there are some category 2 patients, even a short postponement could endanger their health, there are others who could wait possibly a year without significantly endangering their health. So I don’t think that’s an appropriate assessment to look at them as a homogenous group.

PN1126

Once again go back to the answer earlier, that it depends on the individual circumstances of each individual patient?---It does, yes. Yes.

PN1127

All right. Can I ask you what steps you've taken at the Austin to ameliorate what bans have been imposed?---Yes. We've approached the nursing staff in every ward where the bans have been imposed asking them to accept patients, particularly those from the emergency department where our greatest concern of clinical risk has been in the last 24 hours, and we've had very significant discussions with many nurses in many wards and we have, in fact, on a couple of occasions even - my director of nursing has actually contacted union representatives to express her concern about the clinical risk and to ask for their help to make the nurses relax bans.

PN1128

THE VICE PRESIDENT: I take it your ordinarily get a favourable response to those sorts of representations?---We have, yes, we do have, but the delay can be four to five hours between asking the ward nurses before any resolution happened, as happened yesterday afternoon when we were very concerned mid afternoon and we didn't get any sort of meaningful resolution until well into the evening. So it is a very slow process and I believe that there's clinical risk during that period of delay.

PN1129

MR WHITE: So your expectation of the effect of the bans as at 17 October - or I'll ask you this question. Your view of the bans proposed by the resolution of the meeting I think of the 16th, has that view changed over the last few days?---Yes. I think the impact has been much more severe more quickly than I had thought, and the impact on emergency demand, ambulance bypass and admission block seems to have been more severe than I'd anticipated because of what seems to be a more rigid approach to closing beds even in the face of emergency patients waiting for admission, so we have felt - we were very concerned already by Wednesday night, and usually it takes three or four days at least for the impact of bans to cause a concern of that level.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1130

The view you had of the bans on Wednesday the 17th was that they would create some inconvenience and frustration isn't it?---Yes, as well as other impacts, yes.

PN1131

Well, the inconvenience and frustration is the only one you spoke of to your staff about isn't it?---I think talking to staff it is not appropriate to create concerns about clinical risk. That memo to staff was more about urging staff to behave with respect to one another in situations where it can get very tense. Quite often you'll find medical staff getting very angry when they think their patient who needs treatment is being refused admission, and that memo was about telling staff to live through this, be nice to each other, because it will eventually come to an end.

PN1132

Doctor, the fact of the matter is - we've just been handed some instructions - there has been no emergency admission denied at the Austin, that's true isn't it?
---Denied is not the same as delayed.

PN1133

Just answer my question?---Well, as of this morning there were still some being denied. They may have been accepted this morning, but one person this morning had been waiting 35 hours for an emergency admission.

PN1134

You were asked to produce some documents weren't you?---I was.

PN1135

And you produced a bundle of documents relating to the 2004 action?---Yes.

PN1136

And apart from those documents you produced some Austin Health nurse enterprise bargaining agreement status update from 2004?---Yes.

PN1137

So apart from the statistics about the bans - - -?---Yes.

PN1138

- - - and reports that were made at the time to a central location in the department there are no other documents that you have produced, that's right isn't it?---That's correct.

PN1139

You were asked to produce documents constituting or relating to any report, analysis, assessment of the impact upon the health service patients of the action, industrial action taken in 2004?---Yes.

PN1140

By the fact that you have failed to produce any such documents mean that the Austin holds no documents which constitute or relate to a report or an analysis or an assessment of the impact of the 2004 conduct?---I would dispute that. I
think - - -

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1141

MS DOYLE: Your Honour, if I could just make it clear that a large bundle of documents were produced by Dr Murphy in response to the summons, and that meeting the description Mr White has just given, but also a bundle of documents that cover the category that he's now traversing. So I'm not sure why the suggestion is being made that nothing has been produced under that category.

PN1142

MR WHITE: Well, I thought I'd made it clear, that I characterised what we thought had been produced, which were the reports to the central point in the department throughout the 2004 action, and I made it clear that that's what those are?---They're also an analysis of the elective surgery patient cancelled, a list of those, and that I would content has an impact on the well being of patients.

PN1143

All right. Just limiting yourself to the documents now. The documents produced, there were some memos?---Mm.

PN1144

And then the other documents are copies of reports which were made on a daily basis to an office in the department?---Mm.

PN1145

Apart from those documents, that is the daily reports and the four or five memos, you've produced no other documents?---I have produced lists of elective surgery patients that I think counsel may be de-identifying the patients names on those, but I - but other than lists of patients cancelled and lists of beds closed, yes, that's all the information that we have at the moment.

PN1146

All right. So in terms of the analysis of the 2004 bans on any individual patient outcome, the fact that you've produced no such documents means does it not that the Austin doesn't have any such documents?---Can I ask for clarification on what you actually mean by that? What sort of documents are you seeking?

PN1147

Well, you were asked to present documents for example constituting an analysis of the impact upon health service patients of the industrial action of 2004?---Well, doesn't lists of elective surgery patients cancelled, lists of ambulance bypass, don't they - - -

PN1148

I'm not suggesting that they don't constitute or fit within the category of documents which you were required to produce. I'm just making sure and asking you to confirm that apart from the daily reports there are no other such documents?---We've provided all the documents that we have, yes.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1149

Thank you. And similarly within category 4 of the documents requested you have, apart from the general memo, nurses industrial action 17 October 2007, in which we talked about create some inconvenience or frustration, you agree with me that you've produced no documents constituting a management instruction directed to minimising the effect of the industrial action?---That's correct, there are no such documents.

PN1150

Yes. And there are no documents relating to administrative action proposed or undertaken at the Austin to ameliorate the industrial action?---Correct, there are no documents.

PN1151

And I assume that if there were steps to be taken that they would constitute, or they would be conveyed by memoranda or instruction to staff?---Well, we have conveyed to nursing staff of our legal obligation to deduct pay for industrial action in another memo that was sent out yesterday, but that's all. Other actions have been taken during management meetings. There were no written instructions to staff on those matters.

PN1152

Well, did the management meetings record the administrative action proposed which might be taken to ameliorate the industrial action?---No. The management meetings are really a discussion of what has happened in each care area and how effective the attempts of the managers have been to get the nurses to release bans and admit patients. So it's essentially a report back.

PN1153

Management meetings are no doubt minuted?---Not these ones, no. These are simply a daily update meeting, and the only record is our bed status update which I have in front of me here.

PN1154

You don't consider it somewhat surprising, Doctor, when action you allege as having purportedly serious consequences, that there is no administrative action taken - - -?---There is a lot of administrative - - -

PN1155

- - - to ameliorate which is recorded in a formal sense?---No. There's lots of action taken. Our managers are occupied almost all day or all day in trying to ameliorate the industrial action, but sending a memorandum or an administrative instruction doesn't improve their performance in doing the task that they're well qualified to do.

PN1156

All right. So the Austin in large part has arrived at the paper free society has it?
---In this particular instance there seemed there was no purpose in creating documents to be seen to manage action that we really wish to try and stop.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1157

You see, these documents aren't just in relation to managing the action, Doctor. They're directed to ameliorating the effects that you say flow from them?---Yes.

PN1158

So it's not just managing it is it?

PN1159

THE VICE PRESIDENT: While Mr White is seeking some instructions, Mr Parry and Mr Hanks, could I ask you to turn your mind to an issue that's been troubling me for the last 10 minutes? And that is, I'm having difficulty seeing how in circumstances where the nurses bargaining notices have been withdraw and therefore are not relatively in existence for the purposes of this application any more, how the industrial action that's occurring, even if you assume it's adversely affected or would adversely affect the health or safety or welfare of the population or a part of it, how could it be said that it's industrial action to support or advance claims in respect of the proposed agreement, proposed collective agreement? I'll just ask you to turn your mind to it, given that the bargaining periods in respect of the applications are now made of bargaining periods initiated by the employers the proposed collective agreements or individual employer collective agreements under section 423 is it of the Act, under section 328, and if anything is clear the industrial action that's being taken at the moment is not to support or advance claims in respect of such proposed collective agreements, it's being taken to support or advance claims in respect of a pattern bargain sector agreement.

PN1160

MR PARRY: Well, with all due respect, your Honour, if your Honour's jumping to conclusions like that you are very wrong.

PN1161

THE VICE PRESIDENT: No. I just - - -

PN1162

MR PARRY: And we would want to make submissions about that.

PN1163

THE VICE PRESIDENT: Mr Parry, I took the opportunity of a brief break to flag with you to give you maximum opportunity to think about something which is troubling me.

PN1164

MR PARRY: Well, it shouldn't trouble you, and we'll be addressing that very question, your Honour.

PN1165

THE VICE PRESIDENT: I can see Mr Hanks nodding as well. Okay, thank you, Mr White.

**** BRENDAN FRANCIS MURPHY XXN MR WHITE
PN1166

MR WHITE: Sir, I have no further questions.

PN1167

THE VICE PRESIDENT: Any re-examination?

PN1168

MS DOYLE: Just one matter by way of re-examination.

<RE-EXAMINATION BY MS DOYLE [3.34PM]

PN1169

MS DOYLE: Dr Murphy, you were asked some questions about cancellation of surgery for category two patients, and you said in answer they're not a homogenous group, and you were being asked questions about delays in category two surgery. First of all, what are examples of category two surgery?---Joint replacement surgery, gall bladder surgery, ENT operations, resection of prostate gland, those sort of things.

PN1170

And are there cases in those types of operations you've described, are there cases where a delay of that operation can have an adverse clinical outcome?---Potentially, but there more importantly is an adverse effect on, for example, for a joint replacement often elderly people, the whole family plans this and we book them weeks ahead, and to have it cancelled at the last minute can be really quite devastating for someone who has waited many, many months for a joint surgery. We try not to ever cancel those because it's a long wait procedure. It's possible that a prostate, for example, operation could have a cancer that's not diagnosed, and if it's delayed for several weeks that could progress. But it's hard to say without individual case examples.

PN1171

THE VICE PRESIDENT: Some of them I take it involve pretty severe levels of pain for patients?---Well, certainly the joint replacement surgery definitely is. People are often unable to work waiting for a knee or hip joint replacement.

PN1172

Gall bladders as well?---Excuse me?

PN1173

Gall bladders as well?---Gall bladders, yes, certainly. Some people with recurrent colo-cystitis can have recurrent abdominal pain and require - you know, that can be quite distressing too.

PN1174

MS DOYLE: I have no further questions by way of re-examination.

PN1175

THE VICE PRESIDENT: Anything arising out of what I asked, Mr White?

**** BRENDAN FRANCIS MURPHY RXN MS DOYLE
PN1176

MR WHITE: Yes, gall bladders, your Honour perhaps a little more generally than gall bladders.

<FURTHER CROSS-EXAMINATION BY MR WHITE [3.36PM]

PN1177

MR WHITE: Doctor, the types of things you were just giving evidence about are all taken into account in determining which patients might have their surgery cancelled, that's so isn't it?---I believe that the severity of the condition is certainly one of the factors, yes, absolutely.

PN1178

THE VICE PRESIDENT: Can Dr Murphy be excused?

PN1179

MR WHITE: Yes, your Honour.

PN1180

THE VICE PRESIDENT: Thank you, Dr Murphy.

<THE WITNESS WITHDREW [3.36PM]

PN1181

THE VICE PRESIDENT: Ms Doyle, do you still have the reins?

PN1182

MS DOYLE: Mr Parry is calling the next witness.

PN1183

THE VICE PRESIDENT: Mr Parry, are you in a position to give me a thumbnail sketch of how it is you say the condition in paragraph (a) is met just so I can think about it?

PN1184

MR PARRY: Yes. I was going to hand up some written submissions after this witness and deal with it.

PN1185

THE VICE PRESIDENT: This is the last witness is it?

PN1186

MR PARRY: Yes, this will be the last witness.

PN1187

THE VICE PRESIDENT: Okay. Well, let's deal with the witness.

PN1188

MR PARRY: If your Honour pleases. This is Mr Lance Wallace, your Honour.

<LANCE WALLACE, SWORN [3.37PM]
<EXAMINATION-IN-CHIEF BY MR PARRY

PN1189

MR PARRY: Yesterday, your Honour, I handed a document to the Commission which was a summary of the industrial impact.

PN1190

THE VICE PRESIDENT: Yes.

PN1191

MR PARRY: If I could hand a copy to the witness about that?

PN1192

THE VICE PRESIDENT: Can you tell me how it was prepared?

PN1193

MR PARRY: I'm sorry?

PN1194

THE VICE PRESIDENT: How was this prepared, the document?

PN1195

MR PARRY: That's what I was going to ask of Mr Wallace, your Honour.

PN1196

Mr Wallace, your full name is Lance Wallace?---That's correct.

PN1197

And you're with the Department of Human Services where you are the Executive Director, Metropolitan Health and Aged Care?---That's correct.

PN1198

And you have prepared a statement for these proceedings?---Yes, that's correct.

PN1199

Are the contents of that true and correct?---They are.

PN1200

I tender that statement, your Honour.

PN1201

THE VICE PRESIDENT: It's already been tendered and it's been - - -

PN1202

MR PARRY: Exhibit 9 as I understand, your Honour.

PN1203

Mr Wallace, I've handed you that piece of paper. Have you seen that document before or a document like that?---Yes, I have.

PN1204

What is it?---It's a collation of impact of industrial action taken, and I can tell you the way that is compiled is the department issued a template to health services for them to complete about the impact of industrial action being undertaken, and the department has collated all the returns from the relevant health services into this document.

**** LANCE WALLACE XN MR PARRY
PN1205

And that document is up until 6 pm on Wednesday 17 October I think?---That's correct.

PN1206

I'm sorry, what does it say up on the - - -?---That's correct.

PN1207

That's correct, yes. I tender that document, your Honour.

PN1208

MR WHITE: It's inherently hearsay I suppose, but we understand it's a matter of weight.

PN1209

THE VICE PRESIDENT: It's a matter of weight.

PN1210

MR WHITE: The other matter of weight I suppose is the one health service we do have figures for.

PN1211

THE VICE PRESIDENT: I still think that's a matter of weight.

PN1212

MR WHITE: Yes.

EXHIBIT #12 IMPACT OF INDUSTRIAL ACTION DOCUMENT

PN1213

MR PARRY: If I can hand to Mr Wallace another bundle of documents. Now, the bundle I've handed you, Mr Wallace, on mine I have as a front sheet summary report all health services nurse EBA industrial action impact 2007 impact, on the right hand side, impact on 18 October 2007, 6 pm. Do you have that? How was that prepared, the same way?---That's correct, that was prepared for the next day.

PN1214

Right. And the following document in the bundle I have is summary report of impact of industrial action by date, history of impact as at, I think that's 19.10.07, 11.22 am?---That's correct.

PN1215

And how was that prepared?---That was prepared in a similar way, the collation of cumulative information.

PN1216

And the final document, that's prepared the same way?---That's correct.

PN1217

I tender that bundle of documents, your Honour.

PN1218

THE VICE PRESIDENT: Mr White?

**** LANCE WALLACE XN MR PARRY
PN1219

MR WHITE: I make the same observations.

EXHIBIT #13 BUNDLE OF DOCUMENTS RE IMPACT OF INDUSTRIAL ACTION

PN1220

THE VICE PRESIDENT: Sir, can I just ask you to look at the second document. There's a cumulative total column. There could well be a degree of double counting couldn't there on that total, in the sense that if people are waiting for more than eight hours on 17 October may have continued waiting into 18 October and therefore been counted on that day as well?---That's correct, they could be counted in both columns.

PN1221

MR PARRY: I have nothing further of Mr Wallace, your Honour.

PN1222

THE VICE PRESIDENT: Mr White?

<CROSS-EXAMINATION BY MR WHITE [3.43PM]

PN1223

MR WHITE: Mr Wallace, the way these documents are collected is that you'd have staff at a central point, yes?---That's correct.

PN1224

And well before this action was started you had set up your communication lines, if you like, to enable the easy collection of data?---That's correct.

PN1225

And I take it that communication you set up would enable you to prepare these charts almost as soon as the material was given to you?---Well, there's a short time, but that's correct, they're prepared as is indicated there, the second exhibit is prepared, you know, at 11 am of the morning after for 6 pm at night the previous day.

PN1226

Yes. Was there any reason why the documents which were prepared before now haven't been or couldn't have been provided to the ANFs solicitors before now?
---Well, the document that was just tendered, you know, was prepared as you see it, 11.22 am this morning, so that was the time of preparation.

PN1227

Yes. Was there any reason it couldn't have been given to those instructing me and the ANFs solicitors shortly after 11.22?---There would be no reason it couldn't.

PN1228

No. Was it your decision not to provide that material earlier at an appropriate time?---No, it wasn't.

**** LANCE WALLACE XXN MR WHITE
PN1229

The figures on the first page as at 6 pm on 18 October for example, were collated shortly after 6 pm I assume?---The data has been collated by - we've got the information in by 10 am of the following day. At some stages we have had a ring around of information, but our protocols are that people are to respond to us by 10 am the day following, the close of business, and that's when the data has been collected.

PN1230

I take it then that charts such as these have been prepared for all of the days since Tuesday the 16th?---Yes, for two days.

PN1231

Is there any reason why those haven't been provided to the solicitors for the ANF?---Well, only the reason the time limits of preparation.

PN1232

That's precisely what I'm talking about, Mr Wallace, timeliness of preparation?
---Well, they're prepared - - -

PN1233

MR PARRY: Well, I understand that this material was handed to the other side at 12.30. It was prepared at 11.30-ish. I don't know why this is being put to this witness. He doesn't know, and anyway it starts from a false premise.

PN1234

THE VICE PRESIDENT: Well, I don't understand the ultimate utility, but I've already taken enough objections myself.

PN1235

MR WHITE: Yes, I have no further questions of Mr Wallace.

PN1236

THE VICE PRESIDENT: Do you have any re-examination?

PN1237

MR WHITE: Sorry, before - sorry, your Honour, I have no questions.

PN1238

THE VICE PRESIDENT: Any re-examination, Mr Parry?

PN1239

MR PARRY: No re-examination, your Honour.

PN1240

THE VICE PRESIDENT: Thank you, Mr Wallace, you're free to go.

<THE WITNESS WITHDREW [3.47PM]

PN1241

THE VICE PRESIDENT: Sorry, Mr Hanks, I had a discussion with Ms Richards earlier on, and the basis of the position was that if you wanted to ask questions you were going to pop up. Is there anything you wanted to ask?

PN1242

MR HANKS: No, thank you.

PN1243

THE VICE PRESIDENT: Is that the end of the applicant's evidence?

PN1244

MR PARRY: Yes, your Honour, that's the evidence upon which we rely.

PN1245

THE VICE PRESIDENT: Mr Hanks, I take it the intervener doesn't seek to call on evidence of its own?

PN1246

MR HANKS: As we foreshadowed we would only be calling evidence if we saw any need to supplement that which has been called, and we do not.

PN1247

THE VICE PRESIDENT: Thank you. Mr White, evidence?

PN1248

MR WHITE: We propose to call one witness, but I'd ask for a five minute break before I do that.

PN1249

THE VICE PRESIDENT: Would it be convenient for Commissioner Smith to speak with representatives of the parties to arrange for the logistical matters in respect of conciliation? I appreciate you can't do that in five minutes. I mean, we've been sitting for a long time with only a brief adjournment at lunchtime and we'll be sitting for some time yet. I could adjourn for a longer period and hopefully you could organise your thoughts, and assuming the other parties are content for it to occur, Commissioner Smith could have a discussion with the parties about the logistical arrangements.

PN1250

MR WHITE: We're content with that.

PN1251

THE VICE PRESIDENT: Mr Parry?

PN1252

MR PARRY: Sorry, your Honour?

PN1253

THE VICE PRESIDENT: I was hoping that you might be prepared to agree to having in the short adjournment having Commissioner Smith attend to discuss the practical logistics for conciliation over the weekend.

PN1254

MR PARRY: I don't oppose that, your Honour.

PN1255

THE VICE PRESIDENT: Mr Hanks?

PN1256

MR HANKS: No opposition from me.

PN1257

THE VICE PRESIDENT: So if I adjourn for 20 minutes and Commissioner Smith will turn up shortly. And you've only got the one witness, Mr White?

PN1258

MR WHITE: Yes, your Honour.

PN1259

THE VICE PRESIDENT: And who will that be?

PN1260

MR WHITE: Mr Gilbert.

PN1261

THE VICE PRESIDENT: Mr Gilbert. Mr Parry, just before I take the adjournment, just to help me get my head around what the argument is, how do you say section 423(a) can be construed as being satisfied?

PN1262

MR PARRY: Well, it doesn't have to be construed at all. Indeed, there is - - -

PN1263

THE VICE PRESIDENT: I'm a bit slow.

PN1264

MR PARRY: Your Honour, there is an employer bargaining period. The proposition of a proposed collective agreement deals with a variety of matters that are raised within that. Matters that are the subject, reasons for the industrial action here are wages manifestly and ratios. And the positions of the unions are that there be increases in wages, that there be movements with regard to ratios, and also to reject the government's position, employer's position, that is, that there be more flexibility introduced. So when you're dealing with the concept of claims you don't have to read that narrowly, it's a position taken in respect of something.

PN1265

When you speak of in respect you're speaking of pretty broad words. And a proposed collective agreement has the meaning that the various cases give it, that is, it's the sort of desired end product of the process.

PN1266

THE VICE PRESIDENT: Well, that's precisely the point. I think it's Country Fire Authority. I may be wrong about that. It may be - - -

PN1267

MR PARRY: A decision of this Commission?

PN1268

THE VICE PRESIDENT: Yes, a Full Bench of the Commission as held in relation to other provisions in this part in relation to the secret ballots, that a reference to the proposed agreement is a reference to an agreement made in accordance with the Act, therefore, for example, a claim for prohibited content is incompatible with genuinely trying to reach an agreement under the Act. I'm concerned if you adopt the same approach, the proposed collective agreement must mean the proposed collective agreement as proposed in the bargaining notice, which is an agreement under section 328. And if anything is clear, the industrial action in this case is not taken to support or advance claims in respect of such an agreement.

PN1269

MR PARRY: Well, your Honour shouldn't jump in and say things quite like that without listening to the submissions and going through the evidence.

PN1270

THE VICE PRESIDENT: This is a Socratic exchange, Mr Parry, I'm looking for your assistance.

PN1271

MR PARRY: Yes, all right.

PN1272

THE VICE PRESIDENT: And I've been corrected on a number of occasions already in this case, and I'm no doubt happy to be corrected again, but I just wanted to flag that I have a genuine concern that doing my duty and construing this legislation in accordance with the intention of the parliament, in accordance with the authorities may lead to that particular outcome.

PN1273

MR PARRY: As your Honour pleases.

PN1274

THE VICE PRESIDENT: I understand the way you were putting it and I'll think about that during the adjournment. So I'll be back in 20 minutes.

PN1275

MR PARRY: If your Honour pleases.

PN1276

THE VICE PRESIDENT: Commissioner Smith will attend shortly.

<SHORT ADJOURNMENT [3.53PM]
<RESUMED [4.16PM]

PN1277

THE VICE PRESIDENT: Mr White?

PN1278

MR WHITE: We call Mr Gilbert.

<PAUL GILBERT, SWORN [4.17PM]
<EXAMINATION-IN-CHIEF BY MR WHITE

PN1279

MR WHITE: Mr Gilbert, could you state your name and address for the record please?---Paul Gilbert (address supplied).

PN1280

And are you employed in the Australian Nursing Federation Victorian Branch?
---That's correct, as senior industrial officer.

PN1281

Mr Gilbert, you've been sitting in and out of the courtroom over the last few days and looking at the documents that have been produced by the applicants, and I take it you accept that industrial action is being taken?---Yes.

PN1282

Can I ask you this? What agreement if any is the action being taken in support?
---It's being taken in support of a multi-employer - - -

PN1283

MR PARRY: He can't give that evidence. He can't just assert something like that. What's the action he's talking about.

PN1284

THE VICE PRESIDENT: The industrial action he's just conceded is occurring.

PN1285

MR PARRY: Who by, the employees? He can't say why the employees are taking industrial action.

PN1286

THE VICE PRESIDENT: Mr Gilbert, as the industrial officer of the union what agreement has the union in taking industrial action in pursuit of, or in support of?
---A multi-employer agreement for nurses outside of mental health in the public sector and another multi-employer agreement for nurses in mental health in the public sector.

PN1287

And I think that was a concession to that effect that formed the basis for the rejection of 166-odd secret ballot applications?---On 4 October, yes.

PN1288

That the union had filed on 4 October?---It was heard on 4 October.

PN1289

MR WHITE: Yes, that's PR979298 that records the decision of the Commission.

PN1290

Mr Gilbert, the notices of initiation of bargaining period served by the ANF referred to the ANF seeking agreements with particular individual employers, do you agree with that?---Yes.

**** PAUL GILBERT XN MR WHITE
PN1291

You've given evidence now that the ANF is pursuing a multi-business agreement. When did that position change?---We had a state-wide meeting of members that I attended on 1 October, and the matter was discussed at that meeting and agreed to at that meeting.

PN1292

And you notified the Commission I think you said earlier as the representative of the ANF appearing on 4 October of that change?---That's right.

PN1293

Now, Mr Gilbert, there was a meeting of members of the ANF on 16 October?
---That's correct.

PN1294

A resolution was passed at that meeting?---That's correct.

PN1295

Have you seen copies of that resolution attached to the applications to terminate the bargaining periods?---I have.

PN1296

The resolution proceeds where they say these words:

PN1297

Having heard a report back from the state secretary the members then passed the resolution.

PN1298

Did the state secretary report on the progression of negotiations for an agreement in that report?---Yes, she did, particularly in regard to what had occurred between 1 October and 16 October.

PN1299

What was the report that formed the subject of the secretary's report?---In - I mean, it addressed a lot of matters. In short it was - - -

PN1300

Sorry, was an agreement referred to in the secretary's report?---Yes. There was a background discussion around the lack of movement and those kind of things, and it was reiterated arising from discussion during the meeting concerns about inequitable outcomes between country and city, and these kind of things, and it was strongly pressed in a number of discussions in the meeting, and subsequently it was agreed that we would pursue only a multi-employer agreement approach.

PN1301

Now, your Honour didn't rule on the objection by my learned friend. I take it
that - - -

PN1302

THE VICE PRESIDENT: No, I think that ship's moved on.

**** PAUL GILBERT XN MR WHITE
PN1303

MR WHITE: Very well, yes. Thank you, I've got no further questions of Mr Gilbert.

<CROSS-EXAMINATION BY MR PARRY [4.22PM]

PN1304

MR PARRY: Do you have a copy of the resolution passed at the meeting on 1 October, Mr Gilbert? Perhaps if I could hand you a copy of the resolution that was passed. It's in tab 6 of the folder exhibit 1. Now, was that the resolution that was passed at the meeting on 1 October?

PN1305

THE VICE PRESIDENT: Mr Parry - - -

PN1306

MR PARRY: Sorry, your Honour?

PN1307

THE VICE PRESIDENT: You're at a slight disadvantage at the moment because you weren't appearing for the employers in the secret ballot applications, Mr Wall was appearing, but this is ground that we've already traversed. It's ground that's already been traversed and there are issue estoppel issues that arise, so I just flag that for your benefit. I don't necessarily accept that it's appropriate for the Commission to be acting upon some factual determination between these same privies that's different from the factual determination that led to the outcome on the secret ballot applications.

PN1308

MR PARRY: Well, your Honour, I'm not actually sure what you're saying at all. As I understand the - - -

PN1309

THE VICE PRESIDENT: I'm sorry, I'm being rather obscure. The 1 October resolution does not refer to any multi-employer agreement. That was an issue that was canvassed in proceedings between these same parties on 4 October, and evidence was given about it, there was a chance for the parties to contest it, and then factual findings were made based upon that evidence. And there's an issue about whether or not we can re-enter upon a different fact finding exercise.

PN1310

MR PARRY: Your Honour, as I understand that decision, your Honour was not satisfied of any evidentiary foundation, and that was about it. I would be astounded if your Honour was to preclude me asking questions on an estoppel.

PN1311

THE VICE PRESIDENT: No. I just wanted to flag it with you so that you weren't operating without the benefit of appreciating that that issue was floating around. Please proceed.

**** PAUL GILBERT XXN MR PARRY
PN1312

MR PARRY: All right, your Honour.

PN1313

MR WHITE: Well, your Honour - - -

PN1314

THE VICE PRESIDENT: Mr White, let Mr Parry ask a question, and then you can take an objection.

PN1315

MR PARRY: Do you have that document in front of you?---I have a document that looks like the 1 October resolution. I've got no way of knowing, but it looks like it.

PN1316

Are you seriously suggesting that's not the resolution?---I'm saying to you, you've handed me a document that you say is a resolution.

PN1317

Well, is it or isn't it?---I said it looks like it.

PN1318

Well, read through it carefully and tell me which parts of it probably aren't. Okay? It's in front of you?---Well, you've just handed it to me, I haven't had an opportunity to read it.

PN1319

Read it.

PN1320

MR WHITE: Well, your Honour, my learned friend should be very careful in his tone and manner in which he addresses witnesses. And I understand that they've been seeking urgent hearing. If he wants to twaddle around with this waste of time.

PN1321

THE VICE PRESIDENT: Mr White, pots and kettles?---Thank you, Mr Parry, it looks very much like it would be.

PN1322

MR PARRY: All right. Now, this was voted on by the nurses at that meeting?
---That's correct.

PN1323

And the first motion refers to reiterating the full support for the ANF claim served on employers of nurses in the public sector. What's that referring to, which claim?---It's an expression I guess intended to say that all of the things we've asked for we're still wanting.

PN1324

Well, it seems that the people that were voting on it presumably understood it to mean that it was something that had already been put by the ANF to the employers in a claim form, wasn't it?---We had already put all the things we were asking for in writing the claim, that's right.

**** PAUL GILBERT XXN MR PARRY
PN1325

Right. And at that stage you'd put everything to them within the context of the bargaining periods that you'd initiated hadn't you?---We put everything to - in terms of the claim it was attached to the bargaining period notice, that's right.

PN1326

And that remains the position of the union, for the full support for the ANF claims? Obviously that's the only choice?---No. I mean, it depends on whether you're joining those two things together. All I'm saying is the claim was the attachment to the document, I think it was called attachment A or something to the bargaining period was the claim. The bargaining period notice wasn't the claim.

PN1327

The bargaining period notice wasn't the claim, right. The second item there, rejecting the government employer public service proposals, can I take it that that still remains the position of the union?---Keeping in mind we rejected some proposals on 14 August and this effectively were the remainder that had been discussed in the interim, and that's still our position, yes.

PN1328

Right. And it's still the position of the union to reject the employer wage offer isn't it?---That's right.

PN1329

And it's still the position of the union to reject the employer position on making ratios more flexible isn't it?---That's right.

PN1330

And they are serious parts of the union's position aren't they?---No, they're serious parts of the employer's position.

PN1331

Yes, and with serious opposition from the union isn't there?---That's right.

PN1332

Right. Now, this bit about wanting a multi-employer agreement, you see, you accept that there wasn't a resolution passed by the members about this on
1 October?---No, I don't accept that. What I accept is it isn't in - - -

PN1333

Well, was there or wasn't there?---Yes, there was.

PN1334

A resolution passed?---Yes.

PN1335

Right. It doesn't appear in this one. There's a separate document is there?---It's not in a document. It was by affirmation during the course of the meeting.

PN1336

Do you normally have resolutions passed at a union meeting which you don't record anywhere?---It's not unheard of.

**** PAUL GILBERT XXN MR PARRY
PN1337

A resolution that no record has been kept of?---Look, I think it was on public record immediately after the meeting.

PN1338

Where was it on public record?---Well, sorry, when I say public record I mean out in the public knowledge in terms of what the ANF secretary was saying immediately after the meeting to the media.

PN1339

Right. Now, the next meeting on 16 October, that was a meeting to determine whether or not to accept the government's offer to nurses wasn't it?---Are you saying that - sorry, the meeting was arranged thinking that there might be an offer from government to put to nurses, so to that extent you're right, yes.

PN1340

Yes, indeed. It's in tab 7 of exhibit 1, if I could hand that to the witness. Now, do you see that was the notice that was put out by the union?---Correct.

PN1341

And the purpose of the meeting was expressly to either accept the government's offer to nurses or determine what other action to take, correct?---That's the theoretical idea of the meeting, yes.

PN1342

Thank you?---I mean, I'm only answering like that because on the day of the meeting there was no offer, so I don't want to be misleading in my answer. I'm trying to say that we organised the meeting to either accept an offer or take action, and on the day of the meeting there was no offer.

PN1343

Well, there had been correspondence from the VHIA the day before the meeting wasn't there, saying the current indicative offer was 16.25 per cent, that that was negotiable, and subject to satisfactory agreements being concluded, you're conscious of that aren't you?---The exact day I'm not conscious of, but I'm aware of the letter.

PN1344

Right. So there was a government position that was taken at that meeting wasn't there?---No.

PN1345

You didn't - right, I see?---Well, we responded to that correspondence.

PN1346

You said that wasn't good enough, you rejected that?---It was not consistent with what we were asking for.

PN1347

Now, just on this multi-employer agreement you're referring to, let's deal with this hypothetical. That the government/employers decided to give you everything you wanted with regard to wage increases and everything you wanted with regard to ratios, and everything else you wanted, would it matter to the union whether it was in a multi-employer agreement or the same document was in 150 other agreements?---Yes.

**** PAUL GILBERT XXN MR PARRY
PN1348

It would matter?---Yes.

PN1349

I see. I suggest that's just an absurd position for a union to take isn't it, Mr Gilbert?---Only in the context of having incompetent employers from time to time.

PN1350

I see?---Well, we did this in 1997, Mr Parry - sorry, your Honour, we did this in 1997 and it was a complete debacle, it took forever. In fact the agreements had almost expired and we still hadn't got them all certified. The timeframes involved were unspeakably administratively impossible to achieve in an industry that doesn't enjoy great HR support across the board.

PN1351

I have nothing further, your Honour.

PN1352

THE VICE PRESIDENT: Mr Hanks?

PN1353

MR HANKS: No, I have no questions.

PN1354

THE VICE PRESIDENT: Mr White, any re-examination?

PN1355

MR WHITE: No re-examination, your Honour. I ask that Mr Gilbert be - - -

PN1356

THE VICE PRESIDENT: Mr Gilbert, just so I understand it clearly, your evidence is that a verbal resolution was put at the meeting of 1 October that a single sector agreement be pursued for general nursing and a single sector agreement for psychiatric nursing, and that resolution was carried. That position was disclosed to the media immediately after the meeting by the secretary, Ms Fitzpatrick, and the union has been pursuing that outcome ever since?---That's correct. My only hesitation in saying that, it wasn't a resolution in the sense of a formal move, a seconder, because our resolutions don't work in that - have never worked in that way in those type of meetings. Sorry, I don't want to be - - -

PN1357

MR PARRY: Well, that's - - -

PN1358

THE VICE PRESIDENT: Mr Parry, I've asked the question. You can cross-examine further on it.

PN1359

Yes, Mr Gilbert?---It was like all resolutions that we have had at any meetings that I've ever attended in the matters that we've had, in the campaigns that we've had since 1995 that resolutions get dealt with in that way. The only mysterious part of this, if you like, is that it wasn't in the written document, which is easily explained because the written document was prepared earlier.

**** PAUL GILBERT XXN MR PARRY
PN1360

So if it wasn't a resolution that was put in that formal fashion, what was it then?
---No, it was put in the same fashion as any other resolution we put at those meetings, that is that people - there was no debate, there was no one speaking against it, it was immediately affirmed by uproarious support would be the best way to describe it. It was a position adopted in the meeting that hadn't been necessarily pre-planned and hence a resolution that you see never actually - the physical resolution didn't happen.

PN1361

That 1 October document was the document that was prepared before the meeting in anticipation that it would be passed?---Yes.

PN1362

Yes. Now, before you go, Mr White, Mr Parry apparently wants to cross-examine further.

PN1363

MR PARRY: So there was no mover, no seconder, that's the case isn't it?---No, that's not quite what I said. I said it wasn't moved and seconded in the normal way.

PN1364

Within the rules of the union?---No. The rules of the union give the council the right to make those kind of decisions, and the council were present at the meeting. It was a properly organised meeting, and the resolution came from, you know, effectively came during the course of the meeting and was endorsed by the meeting without opposition.

PN1365

In answer to my question, there was no mover and no seconder, correct?---No, I can't - I'm only - I don't - I'm not saying there wasn't. I have no particular recollection of who the mover and seconder was, I can't picture them, I can't picture that moment in the meeting.

PN1366

You can't picture this moment in the meeting, and you've been giving evidence about it for 10 minutes?---Yes. I can't picture the moment in the meeting.

PN1367

You can't remember this at all?---I can't picture the moment in the meeting where there was a mover and seconder, that's all I'm saying.

PN1368

You can't even tell us the wording of the resolution because no record exists?
---Mm.

**** PAUL GILBERT XXN MR PARRY
PN1369

You don't know the precise wording do you?---I know the wording was to pursue a multi-employer agreement in mental health and a multi-employer agreement for the rest.

PN1370

Did it say if possible or if consistent with the Act?---No.

PN1371

You don't remember that?---No. There was discussion about how such a proposition might not fit comfortably with the structure in the Act.

PN1372

Did anyone tell the members that were present that you couldn't take protected action in pursuit of a multi-employer agreement, did anyone tell them that?

PN1373

MR WHITE: Well, your Honour, I object on the grounds of relevance.

PN1374

THE VICE PRESIDENT: No, I'll allow it. Yes, Mr Gilbert?---There was forthright discussion about the whole concept.

PN1375

Is this the bit you remember or the bit you're making up?---I'm not making any bit up.

PN1376

MR WHITE: Your Honour, I invite my learned friend to withdraw that insult. I don't call it a question. And if he doesn't, I object to it.

PN1377

THE VICE PRESIDENT: It wasn't a question and there's nothing to rule upon in that sense. Mr Gilbert, you didn't really grapple with the question that was asked. Do you have a recollection of anybody drawing attention to the meeting, to the fact that seeking a multi-employer agreement may involve pursuing a course that was not within those that the Act makes available, or something to that effect?---It was certainly openly discussed. My nervousness is more related to - - -

PN1378

Potential prosecution?---Correct.

PN1379

And self incrimination?---Correct. It was discussed candidly, you know, there was no doubt in our minds about why it was of a proper approach, and there were some doubts about, you know, the potential for a secret ballot, and that was tested.

PN1380

MR PARRY: But you passed a resolution didn't you directing the secretary to take steps to initiate secret ballots of ANF members?

**** PAUL GILBERT XXN MR PARRY
PN1381

THE VICE PRESIDENT: Mr Parry, do you have any difficulties with - I perhaps could ask Mr Hanks. Mr Hanks or Mr Parry, do you agree that the Evidence Act says certification procedure would be available in this context? I see Mr Hanks is nodding.

PN1382

MR PARRY: I understand I think what your Honour is referring to. I don't put the witness at risk, if that's what your Honour is concerned about.

PN1383

THE VICE PRESIDENT: I don't have the Evidence Act in front of me, but there is a procedure available which will allow a certificate to be issued, and I'm not sure if it applies in the Commission. I think it does. I haven't checked recently, I haven't checked at all in fact. But if a certificate can be issued it means that candid answers can be given without self incrimination.

PN1384

MR PARRY: I'm not familiar with that procedure, your Honour, unfortunately, and I don't have a copy of the Evidence Act.

PN1385

THE VICE PRESIDENT: Look, perhaps, Mr Gilbert, can you just be forthright. If you feel that to answer a particular question you're asked by Mr Parry is going to be self incriminating can you just indicate that you invoke a privilege in respect of the question, and we'll come back to it if it becomes a problem because Mr Parry I think is going to try and ask questions in such a way that he won't be asking you to directly incriminate yourself even if that was something that could occur.

PN1386

MR PARRY: You say there was forthright discussion - - -

PN1387

MR WHITE: Your Honour, it's not appropriate that - Mr Gilbert shouldn't put his position now and make a legal judgment about incrimination and the like.

PN1388

THE VICE PRESIDENT: It happens every day of the week. In fact, what actually happens is that their counsel makes the judgment and objects on the witness's behalf if the witness is having any difficulty. And I've seen it happen. Usually the witnesses are pretty astute and able to fend for themselves because they've been advised.

PN1389

MR PARRY: Now, do you remember or not this forthright discussion? Do you have any particular recollection of it?---The secretary addressed the meeting and the secretary made it clear in the meeting that in our understanding of the legislation it wasn't possible to take protected industrial action in pursuit of a multi-employer agreement.

**** PAUL GILBERT XXN MR PARRY
PN1390

Why did you then get the members to vote on a resolution initiating secret ballots in respect of that?---Well, because it was untested, and which is why the resolution - the resolution specifically said if possible or where possible, or something to that effect, because, you know, there was substantial doubt.

PN1391

Now, why didn't you update? You often update resolutions that are put on your website, why didn't you update it with something further in respect of this other resolution?---Well, with some hindsight it was - if we'd known it was going to become such an issue I suppose we could have. But there's nothing to be - from my mind there's nothing to be read into that, it's just the resolution that was handed out in draft form at the meeting if you like was the one that was ultimately voted on at the end of the meeting.

PN1392

This one, the one that's before you?---Yes.

PN1393

That's the one that was voted on?---It was voted - that was voted on at the end of the meeting. There was another parcel of the meeting that dealt with the multi-employer agreement approach.

PN1394

All right. But is there any documents within the union, anybody sitting there with a biro that might have written down the sort of - what the secretary said about this multi-employer agreement?---Anybody like me?

PN1395

Yes, anybody like you?---Well, I didn't. I didn't write down anything in the course of the meeting.

PN1396

All right. So you don't remember the exact terms of it?---Well, I couldn't remember the exact terms of it.

PN1397

No. It might have had if possible in it as well mightn't it?---No. No, there is no doubt that that's not the case.

PN1398

I have nothing further.

PN1399

THE VICE PRESIDENT: Mr Hanks?

PN1400

MR HANKS: Nothing arising out of this, your Honour.

PN1401

THE VICE PRESIDENT: Mr White, any re-examination?

**** PAUL GILBERT XXN MR PARRY
PN1402

MR WHITE: No.

PN1403

THE VICE PRESIDENT: Thank you, Mr Gilbert.

<THE WITNESS WITHDREW [4.45PM]

PN1404

THE VICE PRESIDENT: Is that your evidence, Mr White?

PN1405

MR WHITE: Yes, your Honour.

PN1406

THE VICE PRESIDENT: Given that it is quarter to five, let me tell you what my provisional thinking is so that the party that has the burden of persuasion can focus on that rather than spending time on things that they do not need to - that in reply at the moment. On my provisional view the evidence is overwhelming that there is a risk that health or welfare in a relevant sense, notwithstanding that the bans have been conditioned in a way to exempt critical risks, nevertheless I think there's overwhelming evidence that the - from Dr Batten and the other witnesses from the applicants, that there are adverse effects to the health and welfare of the population to a part of it in Victoria arising from the bans particularly as threatened.

PN1407

Put aside the issue of the actual threat, but equally my provisional view is that the in the proper construction of the Act it's not industrial action being taken to support or advance claims in respect of the proposed collective agreement. The proposed collective agreement is the agreement that is proposed in the bargaining notice, it seems to me that's an agreement in each case under section 328 and not as a matter of recent invention because at the time this application - as at the time of the secret ballot application before this application had been made the union had already fessed up to acting outside of the system, if I could put it that way and yes, that's my provisional view.

PN1408

MR PARRY: Well does Your Honour want to hear argument on that now?

PN1409

THE VICE PRESIDENT: I absolutely would like to hear argument on it. The issue was whether or not we should hear argument on it now or whether, in light of the way things have developed, the argument what you want to put it in writing and - - -

PN1410

MR PARRY: I've largely put it in writing and I would hand that up now.

PN1411

THE VICE PRESIDENT: I don't need to hear you about the risk and I don't need to hear Mr White at the moment in relation to the construction of the 433(A) but obviously I want to hear from both of you in reply and you Mr Hanks fit in with I imagine Mr Parry.

PN1412

MR PARRY: What process do you propose following Your Honour I'm prepared to advance argument now on that particular issue.

PN1413

THE VICE PRESIDENT: Then my all means do that.

PN1414

MR PARRY: Then what does Your Honour propose doing after that?

PN1415

THE VICE PRESIDENT: Mr Parry I just haven't made my mind up at the moment. It rather depends upon the course of the argument because I'm hoping to be persuaded one way or the other. If I'm fully persuaded by you then I would be proposing to issue an ex tempera decision and to issue the orders forthwith. If I'm not persuaded - if I'm not fully persuaded I propose to reserve for a very short time and think about it, and come to a conclusion - be able to announce a decision. You can set Sunday morning as a decision time.

PN1416

MR PARRY: As Your Honour pleases.

PN1417

THE VICE PRESIDENT: It wouldn't be necessary for anyone to attend for that but we can finish the argument today.

PN1418

MR PARRY: Well the only thing is if Your Honour ruled against the application there are other applications we would want to be urgently making, or considering making at the very least so I just indicate that - - -

PN1419

THE VICE PRESIDENT: The tactical nature of the employer's position is becoming patently clear.

PN1420

MR PARRY: We'll I'm - - -

PN1421

THE VICE PRESIDENT: Sorry, there's no criticism in that because that's the nature of the beast and it's perfectly okay (indistinct).

PN1422

MR PARRY: If Your Honour pleases. Your Honour - - -

PN1423

THE VICE PRESIDENT: If that application (indistinct) and proceed on the assumption that it be heard forthwith and - has anyone got a phone on? Still there? Look I think Mr White, the Commission has no discretion in relation to a 496 order. There would be nothing the union could say in opposition to such an order. They could hardly claim that it's the actions within the safety exception - to the definition of section 420.

PN1424

MR WHITE: Well Your Honour I'd want to - whether or not the union can make its un factual submissions I don't know but - - -

PN1425

THE VICE PRESIDENT: I can tell you, you can't. That isn't pre judging the matter, it's just the plain, simple structure of the section. There is no discretion. If there's industrial action, threatened, probable or occurring then the Commission acts as a vending machine.

PN1426

MR WHITE: That may be something on which you'd want some submissions.

PN1427

THE VICE PRESIDENT: After hearing all of this?

PN1428

MR WHITE: That depends on which category under - - -

PN1429

THE VICE PRESIDENT: After hearing all of this evidence? I mean, if you want to waste the time and resources of everybody I suppose you're strictly entitled to do so on the fields of costs order, you'd have an exercise against you in the circumstances.

PN1430

MR WHITE: No, Your Honour I think you've misunderstood what I have said.

PN1431

THE VICE PRESIDENT: All I was trying to say was Mr Parry was foreshadowing in an oblique fashion further applications in the event that you're successful in resisting these present applications. It seems to me that if the employees are minded to have a 496 the sensible course for rational people would be to accept that those orders should be able to be issued out of chambers without the need to spend more money, time and effort on a hearing because they will have to issue on the basis of the evidence that's been led.

PN1432

MR WHITE: I haven't got my head around that. I will speak to my instructor before I respond - - -

PN1433

THE VICE PRESIDENT: As you please.

PN1434

MR WHITE: - - - appropriately.

PN1435

THE VICE PRESIDENT: Mr Parry?

PN1436

MR PARRY: If Your Honour pleases I will hand up an outline prepared on the assumption that the union would withdraw their bargaining periods at some stage and accordingly accommodates that. Now Your Honour I'm not - where I will commence is on page 3, that's focussing on the one issue and firstly if we could start with section 430(3)(a). Now those words in (3)(a) really link up with section 435. They're parts of the same Act of course but parts of the same scheme, so this is during a bargaining period, in 432(2), a person, a union or members or employees are entitled for the purpose of supporting or advancing claims made in respect of - - -

PN1437

THE VICE PRESIDENT: Mr Parry, I'm very sorry to have to interrupt you but I just have a note that means I need to attend outside for a couple of minutes. I'm terribly sorry.

PN1438

MR PARRY: As Your Honour pleases.

PN1439

THE VICE PRESIDENT: I will adjourn for a few minutes.

<SHORT ADJOURNMENT [4.54PM]
<RESUMED [4.59PM]

PN1440

THE VICE PRESIDENT: Mr Parry.

PN1441

MR PARRY: If your Honour pleases. Just dealing with section 435 which deals with protected action and, of course, this is unprotected but I'll deal with that in some more detail shortly. Your Honour will see that once there's a bargaining period, the union, an organisation of employees or members are entitled, for the purpose of, and I indicate that the words "for the purpose of" don't fall within section 430(3) but supporting or advancing claims made in respect of the proposed collective agreement.

PN1442

It is clear, your Honour, that a union or employees can take protected action in support of claims made in respect of a bargaining period initiated by the employer. There is no requirement in the Act that you can only take protected action - - -

PN1443

THE VICE PRESIDENT: I accept that.

PN1444

MR PARRY: Curiously, your Honour, the lockout provisions are different. They have to be claims advanced by the employer in section 435(3) so once we accept that a party can take industrial action in support of a position proposed - in respect of a collective agreement proposed by the other negotiating party, you then turn to section 430(3) which uses similar words.

PN1445

Industrial action there referred to can be taken in respect of the proposed collective agreement contemplated by the employer in each case. The words - and this is in paragraph 23 of our outline, these are the words that appear there, "claims" no reason to read that narrowly. There's no indication in the legislation we should be giving some narrow meaning to that. If one goes to a dictionary definition it means a demand or an assertion of a position. Assert a position. A claim can be the rejection of a demand. It's a position taken with regard to a demand, for example.

PN1446

The next words that appear "in respect of". It doesn't say claims in support of a proposed collective agreement, it says claims in respect of. It's manifest that they're words of wide import that require no more than a relationship with a direct or indirect between one subject matter and another. So there are claims or demands of a position that have a relationship with the employer proposed collective agreement.

PN1447

The proposed collective agreement referred to is simply the desired end point from the bargaining process, and that's what the employers want. Your Honour, just a posit situation where this could apply, an employer wants to change conditions, employees say leave them the same, the employer initiates a bargaining period. Under section 435 you ask can employees take action in support of their demand to reject the changes? You would say yes. So therefore, if you look at the right to take protected action you would say of course those employees have a right within the context of that bargaining period to reject the changes and take a stand.

PN1448

Now we turn to those concepts in section 430 where almost identical words appear and we ask does this section capture the industrial action of those employees that have rejected the position of an employer that has initiated a bargaining period and one would say manifestly so. It captures that industrial action. As a matter of fact and law, this section can apply to a position where there are claims/positions taken in respect of an employer bargaining period and an employer proposed collective agreement.

PN1449

What is this industrial action intended to achieve? I put that as neutrally as I can. To work out what it's intended to achieve, we look at four items. We look at the original withdrawn ANF bargaining notices and those notices claimed various changes in terms and conditions. We look at the employer bargaining notices which are included within exhibit 1, and they claim, and your Honour will have noted, they claim as attachments the very last document in the folder of exhibit 1. What they claim is a wage increase of a particular amount, 16.25 per cent over the life of the agreement and they also claim - the second deals with matching nurses' workloads with patient needs ratios, changes to the ratios making them more flexible. That's what the employers wanted.

PN1450

The relevant sort of period we're looking at here is the period that goes, say from the beginning of October, the meeting of 1 October up until the present day, today, and we ask to what end is this industrial action? Firstly, we have - I handed up a document being the ANF website material, and that's exhibit 2.

PN1451

THE VICE PRESIDENT: I just note at this point while you're finding the documents, Mr White, I'm making the assumption that unless I hear from you as to a specific objection, that all of the documents that have been admitted subject to objection will be .....

PN1452

MR WHITE: Yes, two witnesses weren't called.

PN1453

THE VICE PRESIDENT: Sorry, Mr Parry, you don't have any difficulty with the withdrawal of the two witness statements of witnesses who haven't been called?

PN1454

MR PARRY: No, I accept that.

PN1455

THE VICE PRESIDENT: So I'll remove those two witness statements from the exhibit list. Yes, Mr Parry.

PN1456

MR PARRY: If we look back at 1 October and we have a resolution that was passed on that day and a meeting of groups of nurses. In that folder of ANF website material, I think it's the fifth document from the back, your Honour.

PN1457

THE VICE PRESIDENT: Entitled?

PN1458

MR PARRY: It has Funding Nursing Properly on the top for a Better State of Health.

PN1459

THE VICE PRESIDENT: The bottom right-hand corner, 16 October 2007?

PN1460

MR PARRY: Yes, your Honour. I think that's a printout date.

PN1461

THE VICE PRESIDENT: Take Action by Lisa Fitzpatrick.

PN1462

MR PARRY: The heading is Funding Nursing Properly Campaign Launch. Does that accord with what your Honour has?

PN1463

THE VICE PRESIDENT: Yes. I think the third-last document in the folder, viewing documents that are clipped as a single document.

PN1464

MR PARRY: It's the third-last document, yes, they're clipped. Back at 1 October this is what the union is putting on their website and this is under a heading Funding Nursing Properly Campaign:

PN1465

Welcome to the Funding Nursing Properly Campaign website.

PN1466

And this is important:

PN1467

Today marks the start of an important campaign for all nurses in Australia. This campaign will address ...(reads)... concern about the dire consequence of the proposed changes to conditions.

PN1468

That's the public position at the start of this campaign and that's their biggest concern that they raise. Thereafter, for example, consistent with that - I think it's the next document along, your Honour, moving towards the front of the folder, it's dated 5 October. Perhaps I'm getting ahead, your Honour. Perhaps I should just deal with 1 October. The resolution on 1 October, this is in tab 6 of volume 1.
Your Honour, this was a resolution passed at the meeting, we know that. It says it was a resolution and I make clear in our submissions we don't care about the other resolution that was passed about the multi-employer agreement. We really say that is bye-the-bye that if it happened it happened.

PN1469

Let's deal with what the resolution is that was put to the members, number 1:

PN1470

Reiterate our full support for the ANF claim served on employers.

PN1471

So we take that as a claim. Number 2:

PN1472

Reject the government employer public sector proposals in relation to the flexible application of nurse to patient ratios revised classifications in (b) and (c).

PN1473

They're the first two resolutions. They're the first two positions put, number 1, we want our claim to proceed; number 2 we want to reject the government and employer position.

PN1474

The next thing that happens is, there's more announcements made on the website, 5 October I had in volume 2, your Honour. Here the state secretary is talking about the stop work meeting on 16 October and they speak of there taking steps to apply for protected industrial action, blah, blah, but at the bottom it says, and this is the last two paragraphs on the page:

PN1475

ANF is trying to secure a suitable outcome for our members by holding the meeting on 16 October. Important nurses attend -

PN1476

I paraphrase. Final paragraph:

PN1477

Public sector nurses are still hopeful that the Brumby government will make an appropriate offer before our next meeting ...(reads)... and must commit to maintaining and improving those ratios.

PN1478

This is the reason for the meeting on the 16th. If we go to the very first document in this volume, your Honour, the website stuff, this is what the union is saying this meeting is about and I quote:

PN1479

All public sector acute aged care and mental health nurses are encouraged to attend this stop work meeting on Tuesday, 16 October to either accept the Brumby government's offer to nurses or determine what action to take.

PN1480

That's what the members are turning up to this meeting to consider. Do we accept the government's offer or do we take action. You might remember I asked
Mr Gilbert about resolutions 1 and 2 that were taken on 1 October rejecting the government's position:

PN1481

Is that still the position of the union? Yes, it is so it's still the position -

PN1482

as he tells us.

PN1483

By that time the meeting occurred on the 16th, there had been correspondence from the VHIA. Really that appears in tab 3 and it was reaffirming the offer of the 16.25 per cent and so forth but, your Honour, let's look at the flyer that goes out for this meeting and that's in tab 7 of volume 1. It's consistent with the website. The flyer says:

PN1484

State wide public sector stop work meeting, Dallas Brooks Hall.

PN1485

So what's the big heading there, to either accept the government's offer to nurses of determine what action to take and that's authorised by the state secretary.

PN1486

What we do know happened on 16 October is there was a resolution passed and that resolution is in tab 1 and it sets out the industrial action. That's the only resolution we know that was taken. We had Mr Gilbert here, he could have expanded on that if it had been of help to the union, but he didn't so let's assume that from that we can take it that this industrial action that's currently being taken is being taken to at least support or advance the following claims, that is, we want a wage increase, we want to reject the employer's wages offer because that's what the meeting was doing, considering the government's offer. We can also assume that the industrial action is being taken to reject the increase in flexibility or changes to the nurse/patient ratios.

PN1487

They are claims because they are assertions of the position. That is, we would say, clear. Once you assert a position such as that, you are making a claim and that was the position of the union, it's what they turned up to consider and it's presumably what they voted on. The fact that the union might have other claims, they might want a multi-employer agreement. That might be what the union want. Employees might have been told that. They might have that claim as well. It's beside the point that there are other claims out there. It doesn't matter that some of these employees might be saying, "Well, why am I taking this industrial action? Well, I'm taking it in part because I want a multi-employer agreement." Really, I'm not sure they would be thinking that but that seems to be the argument that's put on the other side.

PN1488

Aren't they also saying to themselves, "I'm taking this because I'm rejecting the government's wages offer and I'm rejecting the government's proposal on patient/nurse ratios. In my submission it's crystal clear that that's why the industrial action is being taken and once you accept, as we say you should, that that's the reason for the industrial action, then the first claim, "We want a
multi-employer agreement, might exist, might not, we don't care." It doesn't have to be the only claim. Indeed, it might be that there are other claims out there in another hypothetical situation for prohibited content. There might be a whole range of claims that are unacceptable for any number of reasons.

PN1489

In this particular piece of the Act, it's beside the point. They just have to say, "Is this action being taken to support claims?" and the positions taken with regard to wages, rejection of the government positions and rejection of the patient/nurse ratio - - -

PN1490

THE VICE PRESIDENT: You might be pushing against an open door to this extent. I accept that if there is a single claim or claims which it can be said are claims in respect of the proposed collective agreement, an action is taken in support of them, then you're fine.

PN1491

MR PARRY: Yes well - - -

PN1492

THE VICE PRESIDENT: It's the, in respect of the claims part that I had the difficulty with, but I understand - I see how you're putting your case and I'm going to need to think about it quite frankly.

PN1493

MR PARRY: We say that when me being a nurse, when I'm taking a position rejecting the employer's wages offer, when I'm taking a position rejecting an increase in flexibility of the patient ratios, they are matters that are in the proposed employer collective agreement.

PN1494

THE VICE PRESIDENT: But can you take industrial action in support of or to advance a rejection? I mean you either reject or you don't. When you make a claim you can take action which has not been accepted, you can take action in support of it can't you?

PN1495

MR PARRY: Well it goes back to the original example I gave Your Honour of a group of employers saying, "We reject any changes. We don't want any changes to that. We oppose that". I'd say of course you can - - -

PN1496

THE VICE PRESIDENT: So I see, yes that you can always redefine a rejection as a claim.

PN1497

MR PARRY: That's so because it's an assertion of a position and that's - I'm not stretching the language here. That's, what dictionaries tell us claims are, "An assertion of a position". Me saying, "I'm not going to accept a wage cut", is a claim. Me saying, "I'm not going to accept a reduction in my ratios or the patient nurse ratios" is a claim. Me saying, "I am not going to accept a government wage increase of 16.25 per cent over 65 years" is a claim. Now once that position is reached we only need to look at the evidence and the evidence in my submission, the position of the union, the resolutions reached are all consistent with a major part of this being about the rejection of the government position. There were resolutions passed, the meeting was called on that basis. So we say that there is industrial action being taken that's manifest. As to the - what it's in support of or to advance, I've described. Now that's the way we put it Your Honour. I can't add much more to that, but we say that it is very clearly the position that the industrial action is to support or advance the claims, positions, assertions and whatever - - -

PN1498

THE VICE PRESIDENT: Do you happen to have a copy of West Farmers there?

PN1499

MR PARRY: I do. I can hand up a copy of West Farmers. In West Farmers Your Honour I advanced an argument to Justice French that the requirements for a collective agreement needed a fair bit of formality and it had to be in a certifiable form because that was some of the dicta out of the Electrolux decision. His Honour was not so convinced on that particular point. In substance in those paragraphs and thereabouts said it was a less formal, it just needed to be something that you were seeking out there and I think it's paragraph 59 I've taken Your Honour to.

PN1500

THE VICE PRESIDENT: Yes.

PN1501

MR PARRY: And that's why Your Honour I've taken in respect of what is the employer proposed agreement, that's why I took Your Honour to the documents that were attached to the bargaining notice to say that that's what the employer proposed agreement is. Those are the arguments with regard to that point Your Honour.

PN1502

THE VICE PRESIDENT: Thank you Mr Parry.

PN1503

MR PARRY: Your Honour pleases.

PN1504

MR HANKS: Yes Your Honour. We adopt what our friend has said about the construction of paragraph A(3). Just a couple of factual matters that we push to draw to Your Honour's attention. In exhibit 1 and this may be pushing at a very open door, I want to take Your Honour back to tab 24. Your Honour can see that this is a brochure or a pamphlet authorised by Ms Fitzpatrick and it's addressing the question of how the state governments will often affect Victorian nurses and there are 15 matters that are listed there including and perhaps we can focus on this as an example, number 8, nurse patient ratios and below that, this is a summary provided by the ANF on 15 May to propose a sort by the state government, just - I mean below that:

PN1505

To stop this from happening, support your claim. Attend ANF meetings and join the ANF now.

PN1506

There's a long - in the history of this matter, a relatively long standing opposition on the part of the ANF to the proposals that were being advanced by the employers. The position was being taken to agitate against those proposals and that's followed through consistently to take the next document, which is another brochure advertising a meeting of the ANF on 14 August, the purpose of which is to discuss the 2007 Victorian Government's EBA claim against nurses. Perhaps hand - 23, yes that's right it's a sort of a bureaucratic chronology. And that, if we then go to tab 22, a series of resolutions cast on 14 August.

PN1507

The first of those is to express full support for the ANF claim. But resolution 4 includes at the end a direction, to the secretary to ensure that negotiations do not reduce quality of nursing care to the Victorian community and to this end reject employer proposals to letter D, effectively abolish ratios. And that's a consistent theme that runs through these documents and it runs up to - take some specific examples dealing with particular employers within the public sector. Your Honour behind tab 13 a resolution of ANF members and one would infer that is ANF members employed at the Monash Medical Centre, Clayton and Moorabbin. That's a resolution to reject certain proposals by Southern Health (indistinct) to implement changes to the staffing model in residential aged care and then further down to reject the proposal by Southern Health to introduce short shift arrangements other than in the context of additional staffing to the new improved nurse patient ratios.

PN1508

But there are other specific resolutions or should I say resolutions passed in the context of specific workplaces, there's one in relation to Peninsula Health behind tab 12 and again it's very clear that the ANF is taking apposition in opposition to the proposed collective agreement advanced by the individual employers. This is a consistent theme and it's for that reason we would say that you can properly find that the industrial action which was endorsed on 16 October which is now being implemented is industrial action to support or advance the claims that are made by the ANF in respect of the collective agreement proposed by the employers. That is they are claims of resistance to the changes.

PN1509

THE VICE PRESIDENT: Your joint arguments depend on the proposition that a rejection of a claim is itself a form of claim.

PN1510

MR HANKS: The position that is taken by the ANF is that there should be no change. I'll simply this, that - - -

PN1511

THE VICE PRESIDENT: No the position of the ANF is that there should be significant changes, increases in wages - - -

PN1512

MR HANKS: No, the change to the ratios proposed by the employers should not take place, should not be accepted. That is plainly the position which they have articulated in public.

PN1513

THE VICE PRESIDENT: I think they have their own claims in relation to ratios as well.

PN1514

MR HANKS: Indeed they do.

PN1515

THE VICE PRESIDENT: But am I correct in saying that the premise of the argument is that a rejection of a claim is in this case is properly characterised itself as a claim?

PN1516

MR HANKS: It is, particularly when that - - -

PN1517

THE VICE PRESIDENT: And once you - once a rejection of an employer claim is characterised as a claim then the in respect of the proposed collective agreement looks after itself.

PN1518

MR HANKS: That is so. This is in a context where of course the previous collective agreements have expired, at which their expiry date and how employers and employees are seeking to establish a new relationship by agreement, a new consensual agreement going forward. The employers have put forward particular proposals. The union has put forward different proposals but as part of the unions activity, they are resisting the employer's proposals.

PN1519

THE VICE PRESIDENT: Thank you Mr Hanks.

PN1520

MR HANKS: I think you understand the argument.

PN1521

THE VICE PRESIDENT: Thank you.

PN1522

MR HANKS: Your Honour.

PN1523

THE VICE PRESIDENT: Yes Mr White. May I suggest to you that the efficient order is to deal first with that argument that has been advanced by Mr Parry and Mr Hanks and then to deal with the other aspect that they haven't submitted on.

PN1524

MR WHITE: Yes.

PN1525

THE VICE PRESIDENT: That threat to health part.

PN1526

MR WHITE: I beg your pardon Your Honour?

PN1527

THE VICE PRESIDENT: The threat to health part is second.

PN1528

MR WHITE: Yes. To a very large extent the submissions of Mr Parry and
Mr Hanks conflate the concepts of claim and those collective agreements. The fact that there are an issue between the parties in any industrial disputation or industrial negotiation, conditions of employment like wages for example doesn't add or detract or indeed impact on the interpretation of the section at all. What the section is directed to is that to advance claims but in respect of the proposed agreement and the effect of the employer argument I think is the somehow we are supporting claims in respect of the employer agreement and just stated like that Your Honour the apparent industrial silliness of that proposition is apparent. At section 400 and just as a matter of - section 419 defines proposed collective agreement, possibly unhelpfully says it has the meaning given by section 423.

PN1529

And one goes to section 423 there is provision there for, in this case the union or an employer or anyone who wants a collective agreement who initiate a bargaining period. In this case both of the industrial parties or all of the industrial parties have initiated a bargaining period. The bargaining period initiated by the ANF contains a number of claims. They are claims which cover to some extent the same subject matter of the claims of the employer, but in respect of the ANF it posits a number of claims that it wants in its proposed collective agreement. There is the capacity thereafter provided in part 9 for the industrial parties to take action in support of or to advance their claims in respect of the proposed certified agreement. And that's as a matter of evidence what Mr Gilbert says the ANF has done, the ANF and its members have done.

PN1530

Your Honour the section doesn't talk of advancing or supporting a rejection. A rejection, once rejected that's it. There's nothing further to be done. It's rejected. We can't support or advance a rejection. There's no further position for a rejection to be taken to. In our submission the proper interpretation relates back to in this instance the conduct of the ANF or its members and its members in respect of the collective agreement which is the agreement which was sought by them in the bargaining periods. Now as a matter of fact let's assume that the ANF still wants individual employer agreements contrary to the evidence and the findings of the commission, but in any event the argument is easy to see and that is that they support the claim, they make the claim and take action in respect of the claim.

PN1531

As a matter of fact at the moment now the industrial action is however not in respect of the proposed agreement at all. That is the proposed agreement, proposed collective agreement is subject to the initiation of bargaining periods, in fact in respect of it multi-employer agreement which makes subsection 3 - 430(3) even more remote.

PN1532

The clear evidence of Mr Gilbert is that the ANF and its members now want a multi-employer agreement. That was the subject of the report of Ms Fitzpatrick to the meeting on 16 October and it was the outcome that the meeting on 1 October.

PN1533

MR PARRY: There was no meeting on 16 October.

PN1534

MR WHITE: I beg your pardon?

PN1535

MR PARRY: Well I understood you to say 16 October.

PN1536

THE VICE PRESIDENT: Well Ms Fitzpatrick is certainly on 5 October is writing to her members telling them that that's what's being pursued.

PN1537

MR PARRY: Yes, but there was no evidence about 16 October given by
Mr Gilbert. I don't recall, I'm just - - -

PN1538

THE VICE PRESIDENT: I think that's right Mr White.

PN1539

MR WHITE: They've got evidence.

PN1540

THE VICE PRESIDENT: The union's already on the record by that stage
5 October - - -

PN1541

MR WHITE: But 16 October resolution says having heard the report of the secretary and Mr Gilbert said, "The report of the secretary was in respect of the multi-employer agreement:

PN1542

THE VICE PRESIDENT: In any event, yes. In any event I understand that that's what you assert the facts to be.

PN1543

MR WHITE: We do assert them. There was specific evidence given that the purpose of the action and the purpose of the bans is to support - - -

PN1544

THE VICE PRESIDENT: Mr Parry's contesting that my recollection is not crystal clear. I'll listen to the sound file.

PN1545

MR WHITE: I'm sorry?

PN1546

THE VICE PRESIDENT: You're asserting one thing as to what the evidence was. Mr Parry is disputing it. My recollection is unclear on that precise point as to whether the report in respect of 16 October meeting was something Mr Gilbert said extended to the multi-business agreement, but I'll check it.

PN1547

MR WHITE: Yes.

PN1548

THE VICE PRESIDENT: Yes.

PN1549

MR WHITE: Assuming Your Honour that the evidence was given and assuming as the commission has found in previous cases that what the ANF and its members seek is a multi employer agreement, then the most obvious inference to be drawn particularly in view - not inference, but direct conclusion to be drawn is that the industrial action is being taken to advance that claim. To use the language to advance a rejection is in fact to make a nonsensical interpretation. In an industrial sense particularly it is nonsensical and so (a) There's a conflation between claim and the proposed certified agreement, which has run through all of my friends' submissions. Secondly properly construed one can't advance or support a rejection. It would be industrially silly and particularly as a matter of fact in these circumstances it is not in fact what has happened. They hadn't taken action to advance a rejection. The evidence is clear they have taken action to advance their proposed agreement.

PN1550

Now Your Honour the definition of certified agreement or the nature of a certified agreement referred to in West Farmers, I don't think is apposite in these circumstances, proposed agreement is defined in section 423 and that's where you go to get the meaning of it. West Farmers, the court was merely saying, because a union is seeking a certified agreement, sorry a union doesn't have to have gone through the complete formalities in order to be seeking an agreement. The end point in that case was relevant, but in this case Your Honour we're stuck with the definition of 430(3) and that goes back to that proposed.

PN1551

One other point is this, the characterisation of the employers and the government put on this section means that it has unbridled application. A rejection of a claim is not a claim - sorry. The assertion has been made that a rejection of a claim is in fact a claim. Once again that's a nonsensical proposition if the rejection is a consequence of having your own claim and that's what this section's directed to. Now it's a short point and perhaps I should move on to the other aspects of the section Your Honour.

PN1552

Before I do that I'll just - I suppose the last point I'll make in respect of that point is this. If all the section talked about - sorry. If the section is interpreted as broadly as my learned friends would have, then one wonders why parliament went to such complicated structure of the section when it could easily have said much more simply, where parties are negotiating matters between them and industrial action is taken which is having the prescribed effect, then the commission can terminate a bargaining period. But they've been much more specific than that and the reason they're being specific is that they've gone to limit the operation of the section which is addressed to the proposed claim of the initiating party who has taken the action.

PN1553

Yes and one last matter, just in relation to the conflation of the concepts between claim and certified agreement, the focus of section 430 is the proposed agreement. The fact that there are common issues which have to be resolved like in this case wages and ratios, is not to the point. The distinction can be clearly seen - - -

PN1554

THE VICE PRESIDENT: Just one second please. Yes so the fact of common issues?

PN1555

MR WHITE: That is - the fact that there are common issues is irrelevant to the question to be determined. Where there are common issues and where that becomes relevant is for example in what can be arbitrated on in a workplace determination. In that case the commission can make a determination subject to no doubt a range of arguments about the limitations, about the issues which were in dispute. So when one goes to section 501 there's a definition of matters in issue. Section 430 doesn't talk about matters in issue, it talks about the proposed collective agreement and continued conflation of that would be the section have almost no meaning.

PN1556

Can I now move on to endangerment and the other parts of section 430? First question is whether or not there's relevant endangerment and I don't have copies of the cases Your Honour but can I firstly direct your attention to the definition of endangerment in the Macquarie Dictionary, I do have copies of that. And it's defined in the Macquarie:

PN1557

To expose to danger, in peril.

PN1558

Now in Coal and Allied in the High Court reference to that is [2000] HCA 47; (2000) 203 CLR 194, the High Court - - -

PN1559

THE VICE PRESIDENT: Paragraph number?

PN1560

MR WHITE: The paragraph number Your Honour - I think Your Honour I've got the wrong Coal and Allied. The Coal and Allied case in the Full Bench and that's reported in (1998) ADI Industrial Reports 14, paragraph - well they didn't have numbered paragraphs but it's part 6.5 of the majority judgment and that's at page 32.

PN1561

THE VICE PRESIDENT: Sorry, the reference again?

PN1562

MR WHITE: (1998) ADIR 14 commencing at page 32 under the heading the Welfare of the Population or Part of It.

PN1563

THE VICE PRESIDENT: Yes, I'm familiar with that.

PN1564

MR WHITE: The President there talks about the nature of the threatening to endanger and he talks there of importing a requirement - this is at the top of page 33, importing a requirement for there to be a danger or peril to welfare. Not only does it have to be a danger or a peril, but there must be implicit in the concept of endangerment an increase in the risk to the health and safety that exists, absent the industrial action. Currently, all persons requiring urgent care receive the urgent care, subject of course to available resources.

PN1565

After the bans have been in place, the evidence before you, as has been accepted by an employer witness, is that all persons requiring urgent care will receive it, so in respect of patients requiring urgent care you are able to find that there is no relevant endangerment. Currently - well, when I say currently, before the bans were in place - - -

PN1566

THE VICE PRESIDENT: What about the 85 year old with pneumonia had been the emergency area for, was it 19 hours? What about the woman with the bleeding vagina that need a hysteroscopy who got sent home from elective surgery, that wasn't urgent? Discerning the possible existence of a malignant tumour is not an urgent matter?

PN1567

MR WHITE: Not according to the state government classifications and benchmarks, and I can take you to - - -

PN1568

THE VICE PRESIDENT: Forget about what the state government thinks about it, are you telling me that you say that's not an urgent matter?

PN1569

MR WHITE: Your Honour, to determine - - -

PN1570

THE VICE PRESIDENT: We have uncontested, unchallenged evidence from witnesses as examples of what's occurring and I'm asking you to tell me, when you say that I should accept that where there's an urgency, they'll be dealt with by the nurses? Do I just reject that evidence or do you say that that wasn't urgent?

PN1571

MR WHITE: To determine whether or not it is urgent, you then look at what the benchmarks are within this state and the benchmarks are categories 1, 2 and 3. That's the benchmarks and that's the background and the context within which, in my submission, you have to determine whether or not particular circumstances are urgent or otherwise.

PN1572

THE VICE PRESIDENT: That's right, and the unchallenged evidence is that the time periods that people in categories 1, 2 and 3 are facing at the moment, are longer than they would otherwise face on account of the industrial action and outside the benchmarks.

PN1573

MR WHITE: No, not outside the benchmarks. That's not the evidence. There's no evidence of that at all.

PN1574

THE VICE PRESIDENT: Actually, there is evidence. In the case of, is it Dr Murphy's hospital?

PN1575

MR WHITE: The Austin.

PN1576

THE VICE PRESIDENT: They weren't meeting the benchmarks in cases anyway.

PN1577

MR WHITE: That was last year and they're not only - yes, but you can't be - - -

PN1578

THE VICE PRESIDENT: In fact it's incorrect to say there's no evidence of benchmarks not being met, but even in the absence of industrial action they weren't being met.

PN1579

MR WHITE: Yes, because of the industrial action I'm saying. The benchmarks, and this is in a number of the witnesses' statements and I also discussed it with them on a number of occasions, are described as the optimal or periods within which patients are to receive treatment. Not only are the benchmarks there to determine the urgency, but your Honour - I can't remember the witness I put this to, but there are achievement goals to reach the benchmarks.

PN1580

THE VICE PRESIDENT: Mr White, this case has been full of parallel universe experiences for me. I just find it bizarre when the test is not actually occurring but threatened, when what's threatened is one quarter of the beds in the hospital system will be shut down and you stand there with a straight face and say that there isn't at least a threat of an adverse effect on health and welfare. It just leaves me gob smacked. It just doesn't compute.

PN1581

MR WHITE: Well, think about it.

PN1582

THE VICE PRESIDENT: You're going to close down one quarter of the beds in the public hospital system in Victoria and there's going to be no adverse impact on health or welfare, notwithstanding people who've got potential cancers, they're going to have their elective surgery delayed and therefore a chance for the cancer to progress, notwithstanding that people with hip replacements who are suffering pain are going to have their surgery delayed and therefore have to suffer more pain, notwithstanding families who have arranged to deal with them and look after them in relation to that period will have to be seriously inconvenienced and notwithstanding all the other specific examples? I mean, really.

PN1583

Don't get me wrong. I understand that the nurses, who are damned if they do and damned if they don't, if they don't take any action that has any impact, then the employer is not going to listen to them. If they do take action that has an impact, then all of a sudden, you know, the public is being harmed. That's why that workplace determination mechanism is there in theory, but I understand the nurses are trying to make sure that people don't die as a result of industrial action, that for critical emergencies they make sure that people get treated but the test is not critical threats to health, it's broader than that, it's treats to health and welfare.

PN1584

MR WHITE: It's an endangerment, an imperilment to health and welfare and in my submission none of the evidence goes so far as to support the proposition that patients are going to be treated outside the state government benchmarks by reason of the action. There are a number of hospitals, your Honour, and - - -

PN1585

THE VICE PRESIDENT: It's actually threaten to endanger.

PN1586

MR WHITE: There are a number of hospitals which have a great deal of slack, if you like, within the benchmark treatment period.

PN1587

THE VICE PRESIDENT: Yes, so the fact that we're starting with an imperfect system doesn't mean that if industrial action adds to the imperfection that you can disregard it.

PN1588

MR WHITE: No, your Honour, the proposition I was putting there was this, that, for example at the Austin, I think, category 1 at the Austin was five days against the state benchmark of 30. There was obviously capacity at the Austin Hospital, for example, to still treat people within the state government benchmarks.

PN1589

Your Honour, if the interpretation which we're discussing propounded by you or discussed by you - raised for discussion by you is correct, the necessary corollary of that is that no health care worker or no human services worker in Australia can take action which would affect the performance of their duties vis-à-vis prospective patients or actual patients.

PN1590

THE VICE PRESIDENT: I don't think that follows but the range of action that they might be able to take would be extremely limited and indeed, every emergency worker would be in that category, police, fire officers, ambulance drivers, paramedics and that's why the workplace determination mechanism is there.

PN1591

MR WHITE: No, your Honour, if the Act was going to say that it could have said that, what it does is provide for a test and the endangerment or imperilment must be gauged against, in this case, the objective standards of the state.

PN1592

THE VICE PRESIDENT: The threat of imperilment must be gauged against.

PN1593

MR WHITE: The benchmarks in this case of the state. You see, your Honour, the benchmarks of the state are aspirational to some extent. It is common, and a number of witnesses from the hospitals gave evidence that their hospitals don't reach those benchmarks, but on specific questioning those witnesses said that those patients who were outside the benchmarks, their health had not been in peril.

PN1594

THE VICE PRESIDENT: Who said that?

PN1595

MR WHITE: I think the director at the Alfred.

PN1596

THE VICE PRESIDENT: I think there was a concession that on occasions there was no imperilment to health in a delay in elective surgery for some patients but that did not - that in some cases there is no imperilment to health did not translate into in all cases or in the majority of cases there was no imperilment to health. On the contrary, you had witness after witness objecting to the propositions you were putting to them and asserting that there was an imperilment to health. A specific example I give you, and tell me that it wasn't given by the witnesses, please, if you have the inclination to do so, was the delay in operations where cancer was suspected, where if the cancer was in fact there, there would be a period of further progression of the cancer which did involve an imperilment to health. Do you tell me that that was not an example given repeatedly by the witnesses?

PN1597

MR WHITE: Your Honour, I can't tell you that. You can read the statements and you can listen to what the witnesses said.

PN1598

THE VICE PRESIDENT: Do you accept that example was given several times by the witnesses?

PN1599

MR WHITE: Yes, I accept that.

PN1600

THE VICE PRESIDENT: Do you accept that that's an imperilment to health?

PN1601

MR WHITE: Your Honour, I accept that it may be an imperilment to health but I do not accept that it's by reason of the industrial action. The fact of the matter is that the benchmarks of the government itself enable patients with those types of requirements to be dealt with within specified periods of time. Can I make this further submission. Each of the witnesses did accept this proposition. Each of the witnesses accepted the proposition that the mere fact of cancellation of elective surgery of itself did not equate or amount to imperilment or endangerment to the health and safety of the patient whose surgery was cancelled. Your Honour, each of the witnesses accepted the proposition - - -

PN1602

THE VICE PRESIDENT: Mr White, you've got 20 minutes left on this topic and after that you can put in some written submissions as long as you like because I won't be making a decision today.

PN1603

MR WHITE: Each of the witnesses also accepted the proposition that in order to determine whether or not a particular patient's health had been imperilled required a specific analysis of a particular patient.

PN1604

The requirement of the section is that there not only be imperilment or endangerment to the health and safety, but that it also be in respect of the population or part of the population and that's used in distinct contra-distinction to particular people or individuals.

PN1605

The President in the Coal and Allied decision I referred you to 80 IR, once again at page 32, talks about the population or part of it. He says:

PN1606

The ordinary meaning of the expression "the welfare of the population" is a general invocation of the considerations ...(reads)... "threatening to endanger" imports the requirement of the imperilment.

PN1607

That's what I have already taken you to.

PN1608

Your Honour, it can't be said that if a part of the population is defined as including a number of unidentified individuals, then there is no distinction drawn in the section between individuals and the population or part of it. There must be, in my submission, a distinction always borne in mind between the collective and the individual. In this circumstance, the question of whether or not an individual's health is imperilled is a question of judgment from time to time and can only be limited to individuals and cannot be approached in relation to some collective whole.

PN1609

Your Honour, that is why, when we made the submission before that the
2004 bans would provide some guidance to the Commission. If there was in 2004 imperilment or endangerment to particular individuals by reason of the bans - - -

PN1610

THE VICE PRESIDENT: I can just foresee in the hypothetical circumstance that if there was a workplace determination in this case, when the arguments were being advanced in relation to reasons why particular levels of staffing should be maintained, somebody in your position for the Nurses Federation arguing furiously safety bases for higher patient levels, not by reference to particular individuals, but by references to generalities and classes, perhaps in a hypothetical circumstance somebody will hark back to the argument the union has been putting through you now and say, "Well, those arguments have got no validity."

PN1611

MR WHITE: Well, your Honour, apples and pears. We're talking about the population or part of it within the meaning of a section and that section has been given meaning by the President in the Coal and Allied and it was a meaning and expression which was referred to in the High Court and the High Court upheld his Honour - - -

PN1612

THE VICE PRESIDENT: I've made a note and I'll have a look at it carefully and that's a valid point that needs to be considered.

PN1613

MR WHITE: I think the High Court is 199[2000] HCA 47; , 203 CLR 194 at 199 where they refer to Giudice J's reflection. Your Honour, it is apples and pears. You have to construe the section and we construe it in a collective sense in contra-distinction to individuals.

PN1614

The characterisation of the population or part of it that the employers propose, that is all patients or potential patients of public hospitals, renders the section meaningless. What that means is it covers everyone in Victoria. I'm not prepared to stand here and say I'm not a potential patient of the public hospital system in Victoria. There has to be given some proper interpretation and a global approach like that ignores the context of the section and ignores what's been talked about as the collective sense.

PN1615

Your Honour, there's a conflation on the first part of their argument in relation to claims versus the proposed agreement. There's in our view and in our submission an industrial absurdity that attaches to the interpretation of the government and the employers. In relation to the criteria under section 430(3), in particular (c) your Honour, the submissions I've made you've just heard and I don't repeat those. To that extent we submit they haven't made out the grounds, even if the proposed certified agreement we were meant to be supporting or advancing was a rejection, which is industrially absurd. The other criteria haven't been made out.

PN1616

THE VICE PRESIDENT: Mr Parry, I don't need to hear from you in relation to the threatened health part.

PN1617

MR PARRY: Your Honour, the claims do not have to be in the proposed collective agreement. They have to be in respect of it. It is clear the Act contemplates the taking of industrial action in the context of a bargaining period initiated by another negotiating party. The claim does not have to be a positive claim. It does not have to be in the proposed collective agreement. Is the rejection of a claim a claim? We say it is, if one looks at the objects of the Act, always a great place to go, but object 3(1) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect public interest.

PN1618

We're not just here guided in our interpretations of this by some narrow reading of the word "claim", we've got a context and that is public interest broadly. If your Honour was minded to go along with the view that the rejection of a claim was not a claim, that would have consequences for section 435, for example, because there it says:

PN1619

Protected action can be taken in support of supporting or advancing claims made in respect of a proposed collective agreement.

PN1620

To go back to the example I gave earlier, your Honour, an employer wants to reduce wages. He serves a bargaining notice. The employees reject that claim. They say, "We don't want our wages reduced."

PN1621

THE VICE PRESIDENT: Mr Parry, if you would confine yourself to reply rather than reiterating the arguments already made. I've understood them, I've made notes about them and I'm sufficiently persuaded that I'm going to have to reserve and think about it.

PN1622

MR PARRY: I understand, your Honour. My learned friend said the bargaining period contains a number of claims. It doesn't. Their document contain the word "claims" at all. It's not required to under section 423. Bargaining periods don't contain claims, they contain matters and his document or the document of the ANF simply says that.

PN1623

Your Honour, even if claims were confined to positive proposals we would submit there is sufficient connection between the ANF's claims for wage increases and amendments to ratios and the collective agreements proposed by the employers to make those claims in respect of those proposed collective agreements. If your Honour pleases.

PN1624

THE VICE PRESIDENT: Mr Hanks.

PN1625

MR HANKS: Nothing to add.

PN1626

THE VICE PRESIDENT: Could you give contact numbers to my associate so that the decision can be communicated as soon as it's made and I'll endeavour to have it by tomorrow morning but it may Sunday morning. I hope it will be tomorrow morning. Also, I'll get my associate to give you my other associate, Alicia's mobile phone number so that if any urgent applications are to be made in consequence upon a decision going one way or the other, you can contact her to arrange an application to be made over the weekend. I'm just reluctant to hand out Commissioner Cribb's mobile telephone number at the moment, but if you have Alicia's number she'll be able to contact Commissioner Cribb who'll be the likely member to hear any application over the weekend, in the event that the matter is decided against the employers. Yes, Mr White.

PN1627

MR WHITE: Just so your Honour doesn't get carried away with the idea of a costs ordering event, section 496 application is made, can I draw your attention to this fact. Section 496 deals with two types of employees taking action.

PN1628

THE VICE PRESIDENT: I won't be hearing it and there are no costs orders in respect of section 496 applications.

PN1629

MR WHITE: I understand that, your Honour, but I won't develop what I was going to say in relation to any potential application.

PN1630

THE VICE PRESIDENT: What you're saying is you want to be heard and I'm happy just to concede .....

PN1631

MR WHITE: Yes.

PN1632

THE VICE PRESIDENT: I reserve my decision.

<ADJOURNED INDEFINITELY [6.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #6 WITNESS STATEMENT OF CHRISTOPHER BROOK PN407
EXHIBIT #7 WITNESS STATEMENT OF BRENDAN MURPHY PN407
EXHIBIT #8 WITNESS STATEMENT OF SHELLEY PARK PN407
EXHIBIT #9 WITNESS STATEMENT OF LANCE WALLACE PN407
EXHIBIT #10 WITNESS STATEMENT OF JENNIFER WILLIAMS PN407
TRACEY BATTEN, ON FORMER OATH PN411
EXAMINATION-IN-CHIEF BY MR PARRY PN411
CROSS-EXAMINATION BY MR WHITE PN417
EXHIBIT #11 INSTRUCTIONS DOCUMENTS, THREE PAGES PN657
RE-EXAMINATION BY MR PARRY PN665
THE WITNESS WITHDREW PN676
JENNIFER JUNE WILLIAMS, AFFIRMED PN682
EXAMINATION-IN-CHIEF BY MR PARRY PN682
CROSS-EXAMINATION BY MR WHITE PN722
THE WITNESS WITHDREW PN757
WILLIAMS, RECALLED PN779
THE WITNESS WITHDREW PN816
WILLIAMS, RECALLED PN817
RE-EXAMINATION BY MR PARRY PN892
FURTHER CROSS-EXAMINATION BY MR WHITE PN896
FURTHER CROSS-EXAMINATION BY MR WHITE PN911
THE WITNESS WITHDREW PN935
DR BRENDAN FRANCIS MURPHY, SWORN PN995
EXAMINATION-IN-CHIEF BY MS DOYLE PN995
EXHIBIT #7 WITNESS STATEMENT OF DR BRENDAN MURPHY PN1004
CROSS-EXAMINATION BY MR WHITE PN1088
FURTHER CROSS-EXAMINATION BY MS DOYLE PN1166
FURTHER RE-EXAMINATION BY MR WHITE PN1174
THE WITNESS WITHDREW PN1178
LANCE WALLACE, SWORN PN1186
EXAMINATION-IN-CHIEF BY MR PARRY PN1186
EXHIBIT #12 IMPACT OF INDUSTRIAL ACTION DOCUMENT PN1210
EXHIBIT #13 BUNDLE OF DOCUMENTS RE IMPACT OF INDUSTRIAL ACTION PN1217
CROSS-EXAMINATION BY MR WHITE PN1220
THE WITNESS WITHDREW PN1238
PAUL GILBERT, SWORN PN1276
EXAMINATION-IN-CHIEF BY MR WHITE PN1276
CROSS-EXAMINATION BY MR PARRY PN1301
FURTHER CROSS-EXAMINATION BY MR PARRY PN1360
THE WITNESS WITHDREW PN1401