BP2007/3873, Transcript of Proceedings [2007] AIRCTrans 591 (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

2.10PM, THURSDAY, 18 OCTOBER 2007

PN1

THE VICE PRESIDENT: No change of appearances?

PN2

MR F PARRY: I now appear for the applicants with MS R DOYLE.

PN3

THE VICE PRESIDENT: Mr Parry, is there anything you need to say before we get under way or do we just move to Mr White's position on whether or not there's a need to apply for an adjournment?

PN4

MR PARRY: I was only proposing to open and lead on, so we'll hear from Mr White, if that's satisfactory to your Honour.

PN5

THE VICE PRESIDENT: Yes, Mr White.

PN6

MR E WHITE: We have an application to make perhaps in the nature of an adjournment but more perhaps in the nature in the way in which we use the time. We have been provided with some material but the proposal we make is this - and I'll come to some summonses which we will seek to have issued at a later time, but subject to the time the applicants will take to produce the material we seek, what we suggest is that the applicants open their case and it may well be beneficial to everyone if they open it fully, explain the relevance of the documentary material which they propose to rely on - we've been provided with a volume of documents as well as the statements on which they propose to rely - we propose that they could then produce all of the documentary material including any witness statements upon which they wish to rely and that the proceedings then be adjourned to sometime tomorrow afternoon. Once again that would be subject to the time which the employers would need to produce the material we seek in the event that your Honour issues the summons, and I can come back to that at a later time.

PN7

Your Honour, the reason we make this proposal is this, that we understand that there is a relatively tight timeframe within which the Commission must deal with these proceedings. There are five days and I think that takes us up to the end of Sunday, I think, the five days, so we understand that there's this time imperative on the Commission and that what we're suggesting enables the case to start, enables the applicants to put in evidence that they wish to put in evidence, but reserves to us our right to respond properly to the material and to respond properly, not just by enabling me and my clients to properly instruct me in relation to the volume of material, but do so so that I can cross-examine but also to enable the ANF to properly analyse and to produce such material as they wish to rely on.

PN8

I can go on to explain in more detail the basis of the application. I haven't raised it with my learned friends and if they agree with the proposal, then I would have no need to go into greater detail for the basis of it. In some circumstances I can proceed now and fully explain or if that's satisfactory to my learned friends, then we can move onto the question of the summonses that we seek to have issued.

PN9

THE VICE PRESIDENT: Can you just indicate now what the categories of documents you're seeking are? Do you have a draft or draft schedule at any rate?

PN10

MR WHITE: We do, your Honour, and we can hand it to you. It would take some time I think to explain the relevance of all of these documents but I can provide copies of the proposed summonses to you and my learned friends.

PN11

THE VICE PRESIDENT: All these summonses are in the same terms, are they?

PN12

MR WHITE: There are two types of summonses. There are summonses directed to the CEOs who have provided a witness statement and summonses directed to the two witnesses who provided what I call overview ....., that is the manager of both the city and rural health services. As we understand there's
six statements, four of which are provided by chief executive officers of hospitals and two from departmental officials. There are two types of summonses, but of the four they're in identical terms and the two are relevantly identical.

PN13

THE VICE PRESIDENT: Correct me if I'm wrong, but the schedules to all
six summonses are identical, even though there are two categories of persons that they're directed towards? Can you just nominate the names of individuals to whom summonses are directed that are examples of the two?

PN14

MR WHITE: Can we take Jennifer Williams, chief executive officer of Bayside Health as representative of one and Lars Wallace, executive director Metropolitan Care as an example of the other.

PN15

THE VICE PRESIDENT: I see, yes.

PN16

MR WHITE: We drafted these documents with a view to understanding that the applicants won't have much time to comply with them in the event that they're issued, and we anticipate or we would assume that they would have virtually all of this material, if not at hand, then easily available.

PN17

THE VICE PRESIDENT: I take it you have instructions to challenge the substance of the evidence that's being put on by the applicants.

PN18

MR WHITE: I have instructions to challenge whether or not the circumstances required for the termination of the bargaining periods are made out.

PN19

THE VICE PRESIDENT: That's a careful answer. I don't criticise you in any way for that, I understand that the duties of counsel are such that sometimes answers have to be careful, but you've had an opportunity or those that instruct you have had an opportunity to read the witness statements that have been served. Do you have instructions at the moment to challenge the assertions as to - or the evidence as to consequences that it's proposed that those witnesses will give?

PN20

MR WHITE: I have instructions to challenge the basis upon which - the conclusions in those statements.

PN21

THE VICE PRESIDENT: You would, I take it, like a response from Mr Parry as to your proposal.

PN22

MR WHITE: If that's convenient, yes, otherwise I can then go into much more detail. If there's an agreement then we can proceed to the hearing of the matter now and the applicants' evidence and opening can proceed without hindrance and without waste of time. We would have thought that, given the time constraints and our rights, as a relevantly sensible and fair way to proceed.

PN23

THE VICE PRESIDENT: You anticipate, if your application is successful, that the hearing would recommence tomorrow afternoon and would potentially proceed to finality.

PN24

MR WHITE: We don't know if it would proceed to finality tomorrow afternoon but, your Honour, subject to the material that we produce, then if it's adjourned till tomorrow in the time that they can produce it, we would endeavour to proceed tomorrow. I don't know your Honour's availability over the weekend but if it was necessary to continue to sit on Saturday and Sunday, we're available to do that.

PN25

THE VICE PRESIDENT: Mr Parry.

PN26

MR PARRY: I'm not exactly sure what I'm responding to. There seems to have been some suggestion that we adjourn until tomorrow.

PN27

THE VICE PRESIDENT: You're responding to a proposal that you open your case, that you lead your evidence-in-chief and tender such documents as you wish to tender, that we then adjourn until tomorrow afternoon, that there be as good an answer as is practically feasible to the two classes of summonses that have been handed up and that the hearing resume tomorrow afternoon.

PN28

MR PARRY: I take it from that that there's not going to be, in that scenario, any cross-examination of the witnesses, that is, that they're going to come in - - -

PN29

THE VICE PRESIDENT: I don't think you can make that assumption.

PN30

MR PARRY: For example Ms Batten the CEO of Eastern Health is here. Obviously she has come in to give evidence today on the assumption we provided the statements you directed last night, she'd be here for cross-examination and that would be the completion of her evidence. It seems to me that the process we're now dealing with is we call her, then we come back tomorrow in the afternoon, after having argued for two hours over a ridiculously wide summons and then perhaps your Honour will order some the documents or not and then presumably Ms Batten gets back in the box and then is cross-examined. Is that the sort of broad scenario we're looking at here which will take us into next month?

PN31

THE VICE PRESIDENT: It looks like you and I have drawn the same inferences.

PN32

MR PARRY: Yes, well, I oppose that. We can argue about the subpoena at some stage but your Honour did give a direction last night. We've complied with that direction. We've provided witness statements last night and we've provided a bundle of documents today - - -

PN33

THE VICE PRESIDENT: I think I also reserved to the union the entitlement to make an adjournment application. Having received your evidence and considered it, it may be that the union took the view that it simply couldn't respond by today, now, and that it would mount such an application and that would be an application which would then be heard and determined. In any event, you oppose it. Mr White, that's opposed..

PN34

MR WHITE: We had thought it was a relatively sensible proposition to enable the case to proceed and everyone's rights to be protected.

PN35

THE VICE PRESIDENT: You're not under any obligation to make an adjournment application at this moment. You can let the applicants' case proceed and make an adjournment application at a time that seems appropriate to you and will be dealt with when you make it.

PN36

MR WHITE: Your Honour, it would be at a time when cross-examination was to occur.

PN37

THE VICE PRESIDENT: In that case perhaps you had better make it now because Mr Parry has indicated that he objects to any course that will see his witnesses give their evidence-in-chief and then come back at some other time for cross-examination. No doubt, wrapped up in that is a concern about delay.

PN38

MR WHITE: Perhaps there's a concern about delay. We actually thought our proposal would avoid delay. It would have, of course, perhaps created a little bit of inconvenience to the witnesses, but in terms of the progression of the case, made use of the time. In any event, your Honour, perhaps then I can make the application and provide full grounds for the application that I wish to make.

PN39

THE VICE PRESIDENT: Please do.

PN40

MR WHITE: It's not disputed, your Honour, and we spoke of it yesterday, that the - - -

PN41

THE VICE PRESIDENT: Your application is an application for adjournment until tomorrow afternoon.

PN42

MR WHITE: No, our application is that the case proceed as we have suggested and thereafter adjourned till tomorrow afternoon.

PN43

THE VICE PRESIDENT: Yes.

PN44

MR WHITE: That's the application, your Honour. The application is that you make directions that the case proceed in the way that I outlined. Perhaps then can I go to the basis for the application. As your Honour rightly observed yesterday, natural justice or procedural fairness rightly provides us or the ANF with the right to be heard properly, including a right to be able to respond to material put against us.

PN45

THE VICE PRESIDENT: The content of procedural fairness is dependent upon the circumstances, all the circumstances and it doesn't guarantee any particular manifestation of the right to be heard.

PN46

MR WHITE: I understand that.

PN47

THE VICE PRESIDENT: It's something which is adapted to the particular circumstances and one of the circumstances that the applicants have pointed to and clearly would point to again is that - - -

PN48

MR WHITE: Your Honour, I didn't hear that.

PN49

THE VICE PRESIDENT: One of the circumstances that the applicants point to is that unprotected industrial action is occurring as we speak and it is having adverse health impacts on the community as we speak and that that would feed into what's appropriate or otherwise in terms of an adjournment.

PN50

MR WHITE: I'll address that. I had that in mind when - your Honour is quite right, that the circumstances of the case dictate the content of any right to natural justice and in determining what the circumstances of the case involve, they involve the statutory context in which the proceeding is brought, they involve the urgency or otherwise of a particular situation and all other relevant circumstances.

PN51

In terms of the statutory context, this is an application under section 430 of the Act, dealing with the bargaining period. There is separate provision made in the Act for the termination of bargaining periods and separate provision made in the Act in relation to industrial action. Whilst there's an allegation that the action is continuing, the fact of the matter is this application is not in respect of industrial action or alleged industrial action. This application relates only to the bargaining period.

PN52

THE VICE PRESIDENT: I must say I read section 430(3) as being directly concerned with whether industrial action is being taken, threatened, impending or probable and that together with the consequences of the taken, threatened, impending or probable industrial action is at the very heart of what the present application is concerned with.

PN53

MR WHITE: They're the elements which you need to be satisfied of in relation to the remedy to which section 430 is directed and the remedy is the termination of a bargaining period and it is in that sense that I said this application is in respect of the bargaining period. They have not applied under any other provision which is available to them in respect of the industrial action.

PN54

The section provides that the Commission can intervene only if it's satisfied of the circumstances set out and relevantly here, the Commission can only intervene if it was satisfied there was an endangerment to life, et cetera. Relevantly, your Honour, the parliament has provided a maximum of five days even in circumstances where the subject-matter of the criteria is an endangerment to health.

PN55

Your Honour, first of all, parliament had in mind the subject-matter of the criteria when it provided for the time within which the applications had to be dealt with and obviously parliament had in mind separately separate rights for persons who alleged unprotected industrial action was being taken, but those rights have not been availed of.

PN56

When one looks to the urgency or otherwise of the situation, then your Honour, the juxtaposition of those two remedies or potential remedies is particularly relevant. The applicants, your Honour, are apparently not concerned enough about the industrial action to avail themselves of the rights that the Act provides. Not only that, but when one looks at the application - - -

PN57

THE VICE PRESIDENT: That's a bit unduly provocative, Mr White.

PN58

MR WHITE: I don't intend to be provocative but - - -

PN59

THE VICE PRESIDENT: I think one of the allegations that's been made in the media is that the government and the applicants have used the full force of Work Choices and they plainly have not. There have been no applications for
section 496 orders, there have been no applications for injunctive relief from the Federal Court, there have been no applications for pecuniary penalties and there's been no application for contempt of court orders, which would be one of the consequences that might flow down the track.

PN60

I think we all understand what's happening here in a tactical and strategic sense. The applicants and the government, clearly enough, want to see a resolution to the dispute. That's the primary focus. The nurses, clearly enough, are concerned to pursue improved wages and conditions and I think everybody understands that nurses don't take the sort of action they're taking at the moment lightly and that there needs to be some considerable grievance there that's held on the part of nurses before they would do what they're doing at the moment.

PN61

The purpose of the application was made plain by Mr Parry last night and it was to enable the parties to access a workplace determination which would allow for an arbitrated outcome and it's not clear to me whether or not the nurses are happy or unhappy with that as a potential resolution. The scheme of the Act means that even if a workplace determination is in fact available in these cases upon the termination of the bargaining periods pursuant to section 430(3), there's still a 21 day negotiation period that has to be worked through.

PN62

MR WHITE: Precisely, your Honour, and that in turn supports the position I put that there is an apparent unconcern about the emergency - - -

PN63

THE VICE PRESIDENT: You may well find or you client may well find that the government is less inhibited and the employers are less inhibited to access those other weapons, if I can put it that way, that the Work Choices legislation or the Act, subsequently Work Choices amendments, provides to them once the bargaining periods have been terminated, if the union does not move to participate in serious conciliation.

PN64

MR WHITE: Your Honour, we can't speculate as to what the applicants may or may not do.

PN65

THE VICE PRESIDENT: I'm sure that those who instruct you have been doing a lot of precisely that sort of speculation. It's what any sensible union official would do when thinking about strategy.

PN66

MR WHITE: I'm here to make - - -

PN67

THE VICE PRESIDENT: So don't treat me like an idiot, please.

PN68

MR WHITE: Your Honour, the application is the application and it is to be dealt with within the terms of the application and if what we had thought was a relatively sensible proposition is opposed on the grounds that all of this is very urgent, then the effect of my submission isn't necessarily to gainsay any of the propositions your Honour put, but to knock on the head this faux sense of urgency which the government is now using to oppose the sensible progression of the case.

PN69

The other obvious circumstance of the case is that there are a very large number of applicants and that, just from the weight of paper alone, makes things difficult and in terms of getting instructions in relation to the individual applicants makes it extremely difficult.

PN70

THE VICE PRESIDENT: Let me assist you there, without needing to hear from Mr Parry, because I can apprehend the argument that he's going to put. He will be saying, here is a body of evidence that establishes the jurisdictional conditions precedent in section 430(3) in respect of a number of major operators and one can draw an inference that if the bans that the union has announced are applied to any of the other applicants that similar consequences would flow and that one can rely upon the evidence that's been led in respect of a small number of the employers to draw inferences in respect of the totality of the employers. That will be the way the case is put.

PN71

MR WHITE: We would meet that if it was put in that way.

PN72

THE VICE PRESIDENT: Mr Parry, do you confirm that's the way the case is put?

PN73

MR PARRY: Yes your Honour.

PN74

THE VICE PRESIDENT: Thank you.

PN75

MR WHITE: Well we’ll meet that when it is so put. There are a number of matters though your Honour on which I need instructions in order to be able to cross-examine the witnesses. The matters on which I need instructions include the implementation of the alleged bans, the asserted bans. It is those instructions that are needed in the context of the ANF making public time and again, that any patient, or person requiring urgent care will be not refused urgent care by any ban. The threat relied on by the applicant’s in my submission needs to be considered in that context in order for the Commission to properly characterize the threat.

PN76

THE VICE PRESIDENT: I think the – correct me if I’m wrong, - but take the witness statement of Dr Batten as an example the witness statement identifies in a number of points the ways in which serious adverse health impacts can occur in respect of patients who are attending hospital for procedures that are not classified as urgent or serious or acute, diagnostic procedures - - -

PN77

MR WHITE: A large part of Dr Batten’s evidence your Honour is similar to other witnesses evidence, it being premised on the closure of one in four beds. Now that makes more important - - -

PN78

THE VICE PRESIDENT: Well as I read ban one, what is threatened is one operational bed in four will be closed on every ward in each public hospital including, et cetera.

PN79

MR WHITE: And if one properly characterizes the rest of the document, it’s clear that there will be no patient denied emergency urgent care because of the ANF and there’s specific matters, the subject of the resolution need to be read subject to that. Now the characterization of the threat must also be undertaken in the concept of what endangerment or imperilment to the health and safety of patient’s means. That requires in our submission an analysis of the comparative effect on patients of what happens on a daily basis in the hospitals now because of a lack of funds, finances and nurses or because of the lack of Doctors.

PN80

The comparison between that and the impact of the properly characterized threatened bans. Otherwise your Honour you would be unable to properly reach a conclusion as to whether the bans themselves in fact endanger the life or otherwise of patients. That is one of the matters, or some of the matters to which the proposed summonses go. Your Honour whilst there is evidence given of potential impact and presumably that is because the application itself only talks of a threat rather than actual, one would have assumed that given the reliance on the apparent identicality of the bans imposed in 2004 that there would be actual evidence of the actual impact on patients in 2004.

PN81

That’s another ground, or another area, to which the summons are directed. So your Honour the fact of the matter is the statutory context supports the hearing of this matter within the time allocated by parliament. The urgency of the matter can be assessed in part by the conduct of the applicants. In any event we have had insufficient time for me to be properly instructed or for the ANF to collect it’s evidence and we don’t have sufficient evidence or material on which we can cross-examine or properly present the ANFs case.

PN82

THE VICE PRESIDENT: That’s a bald assertion can you take – can you give me an example of a single example by reference to the evidence of the difficulty you face?

PN83

MR WHITE: Your Honour I’ve told you thusfar we are to challenge the characterization of the threat. The evidence is directed to in large part consequences which would flow from a full imposition of all the bans.

PN84

THE VICE PRESIDENT: Yes.

PN85

MR WHITE: And your Honour if one properly characterizes the nature of the threat.

PN86

THE VICE PRESIDENT: But Mr White I’m – well I’ve taken an oath that requires me to give effect to this Act whether I think it is a good Act or a bad Act is beside the point. My duty is to give effect to the Act. The Act does not confer a discretion on the Commission if the jurisdictional facts are established. The parliament has chosen to fashion the jurisdictional facts in such a fashion that threats are sufficient to enliven the obligation of the Commission to terminate the bargaining period if there is industrial action which has been taken or threatened, so it doesn’t matter if the bans have been fully imposed or not, it’s sufficient that they have been threatened and the action that’s is threatening or would threaten to endanger the life of personal safety or health or the welfare of the population or a part of it, that’s the end of the argument.

PN87

MR WHITE: Well your Honour you’d have to in that process identify what the threat is and in our submission you can move beyond the first line of closure of one in four beds, but read it in the light of the public statements and also the internal words of the resolution, that urgent care will not be denied.

PN88

THE VICE PRESIDENT: Please don’t imagine for one second that I don’t appreciate that there is considerable care gone into the crafting of the action that’s been taken and that the nurses, as a class, place an important priority on patient care. I understand that the nurses claims are not just about improving their own personal wages and conditions, they are also directed towards maintenance and improvement of patient care through the better delivery of services.

PN89

MR WHITE: And that directs your attention again to the question of what endangerment means. Now your Honour if – these are all going to be the matters of evidence your Honour, if these bans in fact are substantially identical to those which were imposed in 2004, and if in fact there was no relevant endangerment or no evidence of relevant endangerment that’s a highly relevant consideration as to whether or not the jurisdictional fact is made out.

PN90

THE VICE PRESIDENT: You’ve made out a good case for the 2004 documents and the summonses.

PN91

MR WHITE: Yes and your Honour another jurisdictional requirement is to provide us natural justice. That affects in fact your Honour the validity of any order that you might make. If an order is made and in the absence of providing the ANF with sufficient opportunity to present it’s case, then it has no affect.

PN92

THE VICE PRESIDENT: Mr White I must admit I was expecting you to be saying something along the lines of, well we’ve read the statements that have been served on us, provisionally we think that a number of the assertions that are made in those statements are just plain wrong, and we’ve been – we’ve identified witnesses who able to give contradicting evidence and who will challenge the opinions that have been expressed by the various witnesses for the applicants and we expect that it will take us a day to get those statements finalised, we’ve got them under way.

PN93

MR WHITE: Well your Honour we do have instructions under way and we do have things under way in terms of a plan of evidence. Some of the more outlandish allegations contained in the statements are going to be the subject of challenge and cross-examination. The suggestion that somehow the withdrawal the care by nurses would lead to blindness or irremediable affects on people will be substantially and seriously challenged. There shouldn’t be any misapprehension about that.

PN94

THE VICE PRESIDENT: Is there anything further you want to say in support of the directions that you’ve sought?

PN95

MR WHITE: No your Honour.

PN96

THE VICE PRESIDENT: Mr Parry? Just before you do, Mr White do you have instructions that the union is prepared to put a hold on the unprotected industrial action - - -

PN97

MR WHITE: I don’t have those instructions.

PN98

THE VICE PRESIDENT: For any period at all even 24 hours?

PN99

MR WHITE: I don’t have those instructions.

PN100

THE VICE PRESIDENT: Sorry have you sought – I’m asking you to seek instructions now.

PN101

MR WHITE: Well if you could stand the matter down I will see some.

PN102

THE VICE PRESIDENT: I’ll adjourn for – I take it only a couple of minutes will be required?

PN103

MR WHITE: I would have thought so.

PN104

THE VICE PRESIDENT: I’ll adjourn for a couple of minutes.

<SHORT ADJOURNMENT [2.47PM]
<RESUMED [2.53PM]

PN105

THE VICE PRESIDENT: Yes, Mr White.

PN106

MR WHITE: Now your Honour I told you the position with my instructions last evening.

PN107

THE VICE PRESIDENT: They remain unchanged.

PN108

MR WHITE: Well a call was put through to the secretary, she’s unable to be reached a message was left on her phone to ring Mr Gilbert, but she wasn’t able to be reached. Your Honour in relation to that can I say this, that the court or tribunal’s view of the - - -

PN109

THE VICE PRESIDENT: Is the secretary the only person who can give instructions of that sort? I see Mr Gilbert nodding, okay, thank you. Mr Gilbert please feel free to leave your phone and take the call if it comes in.

PN110

MR WHITE: Your Honour we do say however, that that doesn’t inform your view of the, my instructions or conduct, it doesn’t inform the content of it’s rights.

PN111

THE VICE PRESIDENT: Sorry doesn’t inform the content of its rights?

PN112

MR WHITE: Of its entitlement to procedural fairness and natural justice.

PN113

THE VICE PRESIDENT: Well I take the view and I’m happy to be – hear an argument to the contrary but I take the view that that is a relevant consideration in determining what procedural fairness requires in this particular set of circumstances.

PN114

MR WHITE: Well your Honour we disagree with that proposition. The right to be properly informed to meet the case put against you has no – the tribunal accords a view of one of the conduct of one of the parties does not affect the right to have known to the party the case put against it.

PN115

THE VICE PRESIDENT: You know what the case is, it’s in the statements and documents that have been served - - -

PN116

MR WHITE: And the capacity to - - -

PN117

THE VICE PRESIDENT: You have an opportunity to be heard what you’re talking about is the extent of the opportunity that you have to prepare your response. What I’m suggesting to you is that the amount of time that you get that which is a reasonable amount of time to respond can be impacted by the decision to suspend for a very short period or otherwise the present unprotected action that is taking place.

PN118

MR WHITE: Your Honour we don’t agree with that proposition. Can I also go to the - - -

PN119

THE VICE PRESIDENT: Do you have any authorities that you’d like to rely upon?

PN120

MR WHITE: No not at the moment. Can I also put this proposition? That I – to correct a proposition that I put earlier in the day. I think I suggested that parliament have nominated the five days within which the matter must be dealt with, of course that’s wrong.

PN121

THE VICE PRESIDENT: As far as practicable.

PN122

MR WHITE: Well if it’s not dealt within five days then there are consequences and bargaining periods are suspended and the hearing continues.

PN123

THE VICE PRESIDENT: I’m conscious of that.

PN124

MR WHITE: So even the context of compressing within five days is probably incorrect.

PN125

THE VICE PRESIDENT: It’s potentially longer than five days.

PN126

MR WHITE: Indeed.

PN127

THE VICE PRESIDENT: Yes, thank you. Yes Mr Parry?

PN128

MR PARRY: Your Honour the application for an adjournment is opposed. We outlined last night that the bans had been implemented and they were having an impact. Your Honour went through the same debate last night with my learned friend about suspending the unprotected industrial action. It was refused last night. It’s refused again today. We have complied with the directions the Commission gave. We’ve provided a limited number of statements, six dealing with metropolitan, dealing with rural and dealing with three large health providers in Victoria. We have attempted to limit it so that the matters can be addressed your Honour.

PN129

The industrial action remains in place this remains a serious matter. No doubt, the ANF want to keep the pressure on as they see it, for as long as they can. The fact is that there are bed closures today elective surgery is being cancelled. My learned friend says very carefully that there will be no patient denied emergency care, well the allegations and the evidence of Dr Batten isn’t a denial, it’s a delay. Ultimately this case can turn as easily on welfare as it can turn on health and safety and to delay emergency patients treatment and to cancel elective surgery no doubt constitutes a threat to their welfare and in those circumstances the matter remains serious.

PN130

We are not just here dealing with the immediate parties’ interests we are dealing here with the public interests. That is the interests of those that use the public health system in Victoria. So we want to progress the matter. The statements we’ve provided we don’t propose leading much further evidence. I was going to have Dr Batten explain what some of the bans meant and how they were implemented and update the Commission on the bed closures that have occurred within her area. I indicate that Dr Batten is in court also Dr Brook is in court, so we’re ready to proceed. Now does your Honour want to deal with the subpoena and the material that’s there in sort at some stage?

PN131

THE VICE PRESIDENT: Well it will be necessary to deal with it given that the application has been made with the issuing of the summonses.

PN132

MR PARRY: Your Honour, we say the first documents that is asked for are documents that are - - -

PN133

THE VICE PRESIDENT: Can you just – there are six summonses fall into two categories

PN134

MR PARRY: I’m sorry your Honour.

PN135

THE VICE PRESIDENT: We’ve had the exemplars of each categories, Jennifer Williams and Lance Wallace, summonses to said persons. Are you dealing with the summons to Williams or the summons to Wallace?

PN136

MR PARRY: I was going to deal with Dr Batten’s one initially.

PN137

THE VICE PRESIDENT: That’s the equivalent of the summons to Jennifer Williams?

PN138

MR PARRY: Yes your Honour. Now the first category of documents deals with identifying closure of beds over a year period from 16 October 2006 to
16 October 2007. There is almost certainly a very, very large documents dealing with that. They would take an extended period to clean out.

PN139

THE VICE PRESIDENT: Mr Parry it’s clear to me from a brief review of the schedule that there is no realistic prospect that you can make a full answer to this summons in 24 hours before example, to select a short period. But it may well be that there are documents that are readily available that do fall within the categories and summons that could be produced.

PN140

MR PARRY: Well it’s not part of our case with regard to category 1 that bed closures don’t occur. Your Honour would appreciate that bed closures do occur in the public hospital system on occasions for a variety of reasons. Our case is that industrial action which closes beds adds to that and that’s a self evident truth. So somehow going on a large exercise seeking out, identifying the closure of beds over a year period, doesn’t seem to add at all to the debate.

PN141

THE VICE PRESIDENT: Yes.

PN142

MR PARRY: The second category about constituting documents in presumably Eastern Health, protocols and instructions and policies dealing with priorities for bed allocations, priorities and so forth, that is on the quick instructions that I’ve got an enormously broad, potentially covers an enormously broad category of documents. Now again we don’t see where this would advance the case that we put forward. We of course accept that the system is an imperfect system on occasions, as all health systems are. There are bed closures that occur.

PN143

But industrial action that delays elective surgery and closes bed, doesn’t certainly at the very least has a negative impact on that and exacerbates it and that’s our case. The third category about reports, analyses or assessments we can make inquiries about those your Honour and we’ll make inquiries and Dr Batten can be asked about that.

PN144

THE VICE PRESIDENT: It seemed to me that that was a category of documents that Mr White made good on as it were, as a category of documents that may well be relevant, certainly would be relevant within the legitimate forensic purpose test.

PN145

MR PARRY: We’ll seek that. We will make inquiries hopefully I’ve got those in train now about those matters.

PN146

THE VICE PRESIDENT: Yes.

PN147

MR PARRY: The fourth category, well ultimately we would make submissions about the relevance of that and the – where it takes the case, but again we will see what we can find that falls within that category your Honour.

PN148

THE VICE PRESIDENT: Yes.

PN149

MR PARRY: Now as to the other category, the other group.

PN150

THE VICE PRESIDENT: You did say the arguments in relation to category 1 is the same?

PN151

MR PARRY: One and two are the same your Honour yes. Now and the same arguments apply with regard to the subpoena that’s directed at the DHS witnesses. So I don’t repeat that and we’ll make inquiries again with regard to those categories of 3 and 4. As to those witnesses that are subject to the subpoena. If your Honour pleases.

PN152

THE VICE PRESIDENT: Mr Hanks is there anything that you’d like to add to what Mr Parry has said?

PN153

MR HANKS: Your Honour, only to support Mr Parry’s submission that this is an urgent matter. Perhaps also to add that in response to our friend’s submission on procedural fairness the content of that concept is going to depend on the context, the context that is provided by sub section (3) and sub section (4) which obviously assumes a degree of urgency about this matter.

PN154

THE VICE PRESIDENT: Yes, thank you. I’m just going to adjourn for - - -

PN155

MR WHITE: Would you like to hear me in response?

PN156

THE VICE PRESIDENT: Yes, Mr White.

PN157

MR WHITE: Just on the last point first. The context of section 330 is where there is an alleged threat of endangerment and it is that subject, that section itself which provides not a maximum time, a longer time than other applications available under the Act. In terms of the documents your Honour you will note from category 1 and I’m looking at the summons directed to Dr Batten, that we haven’t asked for documents relevant or relating to the normal form of summons perhaps but documents which are merely sufficient to identify. Now one would have assumed as we have, that bed closures in hospitals are recorded and that reports are made.

PN158

THE VICE PRESIDENT: Well you’re not asking for all documents that identify or relate to the closure of beds, you’re just asking for a single document that lists the bed closures?

PN159

MR WHITE: Well sufficient to identify the closure of beds and the reasons. Now we would have thought that all of those – sorry the closure of beds in public hospitals would be a matter on which - - -

PN160

THE VICE PRESIDENT: Let’s assume that documents exist, and I don’t think Mr Parry was denying that they exist. But what’s the legitimate forensic purpose in respect of that category of documents when Mr Parry freely acknowledges that bed closures occur, it’s an ordinary part of the operation of the hospital and the complaint at the moment is that in addition to the ordinary bed closures that occur there will be more closures.

PN161

MR WHITE: We don’t know if it’s going to be in addition or not. We want to know – it may not be in addition. You have to be satisfied whether the conduct threatened endangers. If the conduct threatened in effect amounts to no more than what in practise has happened for other reasons in the past then you can’t be satisfied of endangerment.

PN162

THE VICE PRESIDENT: Say that again. If I’m satisfied that all that’s – the only result of the industrial action will be the same as what’s happened in the ordinary course then I can’t be satisfied?

PN163

MR WHITE: No you can’t.

PN164

THE VICE PRESIDENT: Yes okay I understand your submission.

PN165

MR WHITE: The objection taken to category 2 is that it doesn’t advance the case of the applicant has put forward, so be it. But your Honour the policies in relation to the treatment of patients is directly relevant to the impact of any of the threatened bans. That is if the hospitals have in place policies which would adequately deal with patients in need of care, then once again you need to take that into account in satisfying yourself of whether there is a relevant endangerment. I understand my learned friend is going to make inquiries about categories 3 and 4, but those are matters in – sorry I think – can you just bear with me. Your Honour, there’s another correction I need to make.

PN166

The summons addressed to Dr Batten in paragraph (1)(b) in the second class of summons those directed to the directors of rural and regional and the metropolitan health the Doctors, Brook and Wallace there should be a correction made to category (1)(b) by deleting all documents relating to all recording. So the introductory words of the paragraph apply that is documents sufficient to identify the reason for the bed closures. You see that your Honour?

PN167

THE VICE PRESIDENT: That’s Wallace and Brook, yes.

PN168

MR WHITE: Thank you.

PN169

THE VICE PRESIDENT: Is there anything else you wanted to say?

PN170

MR WHITE: No your Honour.

PN171

THE VICE PRESIDENT: I’ll adjourn for 10 minutes to consider the decision on the interlocutory application.

<SHORT ADJOURNMENT [3.11PM]
<RESUMED [3.23PM]

PN172

THE VICE PRESIDENT: Sorry Mr Parry, sorry Mr White. What I propose to do is to after receiving the evidence-in-chief adjourn the matter until 10 am tomorrow and I propose to issue summonses returnable at 10 am tomorrow for categories (3) and (4) of the two summonses. I’ll just give a very brief outline of reasons.

PN173

Determining what the requirements of procedural fairness are in this case is a matter of balancing a number of factors. It seems to me that this is a matter of urgency. I’m not persuaded that the fact that a five day target time period for the finalisation of applications in sub section (4) provides any support for the view that there should be a more leisurely approach to the resolution of these particular applications. The ground in sub section (3) of section 430 has a number of disjunctives in it including significant damage to the Australian economy an important of it and then further disjunctives within the endangerment to life and welfare and one could imagine a variety of circumstances that may give rise to applications under sub section (3) some of which would require ordinarily a longer period for the determination of the application than others.

PN174

It seems to me that in this case there is prima facie evidence of immediate risk to the health or welfare of the population or a part of it in Victoria. That of course is nothing more than prima facie evidence at this stage, but it is sufficient for me to think that there is a need for greater rather than lesser expedition. On the other hand, the evidence that’s been filed by the applicants is detailed and technical. I can well understand that there are significant difficulties confronted by the respondent in dealing with that evidence. But then on the other hand again, the lack of preparedness on the part of the union to suspend it’s unprotected action, means that such an adjournment should be granted in order to allow the applicant to respond to the evidence, needs to be significantly curtailed.

PN175

Balancing those factors up it seems to me that the appropriate course is to hear the evidence-in-chief of the applicants and to adjourn the matter until 10 o’clock tomorrow. In relation to the summonses I adopt the arguments advanced by Mr Parry in relation to the relevance of the documents in categories (1) and (2) it seems to me that plainly enough the bans that are threatened would involve if the threat were carried to finality, a substantially greater closure of beds than would occur in the ordinary course and it is that differential which is the focus of the application as Mr Parry has articulated the case that the applicants rely upon. So I’m more than happy to proceed upon an assumption that there is a closure of beds for a variety of reasons than occurs in the ordinary course and it’s the differential closure of beds that is the critical issue in this application. Mr Parry?

PN176

MR WHITE: Excuse me your Honour the documents in categories (3) and (4) in the draft summonses were to be produced by 10 am tomorrow, if this matter is proceeding for hearing at 10 am tomorrow that obviously wouldn’t leave us any time at all to consider the documents. So your Honour can either those documents be produced earlier or the hearing be delayed later?

PN177

THE VICE PRESIDENT: You have the assistance in Mr Gilbert of somebody who knows what he is doing and it will be a case of divided efforts Mr White. To the extent that there is a need for a brief adjournment for you to be apprised of the significant matters emerging from the documents, Mr Gilbert will no doubt identify very quickly then that will be a matter that I will consider at the appropriate time.

PN178

MR WHITE: Well your Honour it’s perhaps a matter of formality that I record an objection to that process.

PN179

THE VICE PRESIDENT: You are at perfectly liberty to file an appeal if you wish.

PN180

MR WHITE: I beg your pardon your Honour.

PN181

THE VICE PRESIDENT: You are at perfect liberty to file an appeal if you wish.

PN182

MR WHITE: Yes, whether appeals exist on an interlocutory decision such as that your Honour, are a different question.

PN183

THE VICE PRESIDENT: Well that’s my decision Mr White. Yes Mr Parry.

PN184

MR PARRY: Your Honour pleases, the way that - - -

PN185

THE VICE PRESIDENT: Mr Parry is it necessary to proceed with the formalities of issuing the summonses or are you content with the direction that you produce documents in accordance with paragraphs 3 and 4 of the two schedules?

PN186

MR PARRY: We will comply with that direction so that should be sufficient.

PN187

THE VICE PRESIDENT: It will just save the formalities of issuing the summonses and the formalities of service, but if you wish to have them issued formally and served formally, then that can occur.

PN188

MR PARRY: I don’t think that that’s necessary thank you your Honour.

PN189

THE VICE PRESIDENT: Thank you. Fine well I make that direction formally then.

PN190

MR PARRY: Your Honour pleases. Just on that there’s a couple of
re-numberings, there’s two categories (3) in for example Mr Wallace’s. I’m assuming from your Honour’s reasons that you dealt with the last (3) and (4) not the first three?

PN191

THE VICE PRESIDENT: Yes.

PN192

MR PARRY: Yes.

PN193

THE VICE PRESIDENT: Yes I think we’re not at cross purposes here. There are essentially four categories of documents that are sought in each of the two class of summons. Sorry there are four numbered paragraphs in each of the two categories of summons.

PN194

MR PARRY: That’s the way I originally read it your Honour but there’s a doubling up on the three.

PN195

THE VICE PRESIDENT: Okay well let’s sort that out because I certainly understand, in relation to the summons to Dr Batten it is paragraphs 3 and 4 that have been allowed?

PN196

MR PARRY: Yes your Honour.

PN197

THE VICE PRESIDENT: In relation to the summons to Lance Wallace it is the second occurring paragraph 3 and paragraph 4.

PN198

MR PARRY: Yes your Honour that’s the way we understand your direction.

PN199

THE VICE PRESIDENT: And obviously the summons to the other individuals follow the same pattern.

PN200

MR PARRY: We will treat them that correction you’ve made in respect of each of the witnesses.

PN201

THE VICE PRESIDENT: Thank you.

PN202

MR PARRY: What we had proposed doing, was handing up some documents and hopefully medium quickly taking your Honour through those documents just to explain them and hopefully that won’t take an extended period and then calling Dr Batten and asking her about some of the bans and updating the state of bed closures and the state of elective surgery within Eastern Health. Now that will probably take an extra half an hour say. As I understand your Honour’s direction we then bring Dr Batten back tomorrow morning as I understand it.

PN203

THE VICE PRESIDENT: Yes.

PN204

MR PARRY: Yes.

PN205

THE VICE PRESIDENT: I’m sorry that Dr Batten will be inconvenienced and the other witnesses in that fashion but the nature of the beast unfortunately.

PN206

MR PARRY: Well your Honour with regard to the other witness the further evidence is going to be only as to the state of bed closures at that particular time, so there’s not going to be much further evidence called. Indeed, in that circumstances, given that it will be very short, we would propose that that can simply be done tomorrow without having the witnesses come in tonight and then come back for very short evidence, come back tomorrow.

PN207

THE VICE PRESIDENT: I’m more than happy to accommodate that, that’s fine.

PN208

MR PARRY: Yes your Honour so we’ll if we could proceed on that basis.

PN209

THE VICE PRESIDENT: So you’ll call some evidence-in-chief from Dr Batten this evening?

PN210

MR PARRY: Yes.

PN211

THE VICE PRESIDENT: Unfortunately Dr Batten will need to return tomorrow for cross-examination.

PN212

MR PARRY: Yes and she’s re-organizing rather important conferences at the moment, but that’s understandable your Honour, we understand the litigation process.

PN213

THE VICE PRESIDENT: Yes. I’m more than happy to accommodate her at any time tomorrow including late if necessary.

PN214

MR PARRY: I just told her she couldn’t be accommodated so you are being much more sympathetic than I was.

PN215

THE VICE PRESIDENT: Well if you want your instructing solicitor to let her have an opportunity to alter the re-arrangements that she is making please do so.

PN216

MR PARRY: I think we’ll leave it the way it is your Honour. I’ll have to deal with that.

PN217

THE VICE PRESIDENT: Now you can wear the blame Mr Parry.

PN218

MR PARRY: Your Honour we have a copy of the Health Services Act that I would hand up.

PN219

THE VICE PRESIDENT: Yes. Can I emphasise again it’s probably unnecessary but the Commission is eager – it won’t be me – but the Commission is eager to provide assistance to the parties with conciliation because that the end of the day the dispute has to be resolved and clearly the termination of these bargaining periods if it occurs is not going to resolve the dispute and I ask the parties to bear in mind to the extent that there are concerns about that if you - the President has a choice of member policy and if you can agree can agree upon a member to conciliate that will be accommodated. Yes now Mr Parry I’ve got the Health Services Act 1988 Victoria and there are four volumes of documents on which the applicants rely.

PN220

MR PARRY: Your Honour the only reason for handing up the Health Services Act is obviously these applications concern the public health system in Victoria and the institutions for whom I act are constituted and their responsibilities are dealt within this Act they are incorporated under section 31.

PN221

THE VICE PRESIDENT: Do you act for all of the applicants in all 146 applications?

PN222

MR PARRY: I do your Honour.

PN223

THE VICE PRESIDENT: They are not all public sector employers are they?

PN224

MR PARRY: They are all public sector employers yes. Well when I say public sector employers, the Act designates that each public hospital is a body corporate and then there’s a schedule of the public hospitals. So there are then a list of public hospitals but there are also other institutions called public health services that are set out in schedule 5 such as Eastern Health, such as Bayside Health, which cover a number of other – for example Dr Batten works for Eastern Health which employs employees in a range of institutions.

PN225

THE VICE PRESIDENT: Yes.

PN226

MR PARRY: Now your Honour there are the institutions for whom I act employ around 36,000 nurses and that is around 25,000 EFTs, so they’re the number of nurses that are covered by the bargaining notices that are relevant here, approximately we say your Honour. Now the folder that I’ve handed up being volume 1 of 4 - just to run through that quickly your Honour. It has a index but your Honour will see an index has as number one the most recent and it commences perhaps where I would start broadly in the document is tab 28.

PN227

THE VICE PRESIDENT: Yes Mr Parry.

PN228

MR PARRY: Tab 28 is the existing agreement I don’t need to take your Honour to that. Tab 27 is an example of the bargaining periods that employers – I’m sorry that the ANF initiated. Now I appreciate you have other folders that contain all this but tab 27 - - -

PN229

THE VICE PRESIDENT: Just before I forget that section Mr Parry, sub section 10 imposes an obligation on the Commission to determine which bargaining periods the application relates to when you have invoked an application to terminate any bargaining periods that may apply. Can I proceed upon the basis that the bargaining periods identified are the only bargaining periods in existence there are no other bargaining periods?

PN230

MR PARRY: With the negotiating parties and the ANF and the employer.

PN231

THE VICE PRESIDENT: Yes, that’s your submission?

PN232

MR PARRY: That’s my submission.

PN233

THE VICE PRESIDENT: Mr White do you seek to challenge that submission or do you?

PN234

MR WHITE: I don’t think there are any others.

PN235

THE VICE PRESIDENT: To the best of your knowledge the ones that have been expressly specified in the 146 applications are al the bargaining periods that apply between or are current between the parties?

PN236

MR WHITE: To the extent – well I’m not aware of any other bargaining periods other than the batch which were initiated by the ANF and the return batch if you like - - -

PN237

THE VICE PRESIDENT: From the employer.

PN238

MR WHITE: Initiated by the applicants.

PN239

THE VICE PRESIDENT: Yes thank you, I just want to make sure that I’ve discharged the statutory obligation and I regard that as sufficient. So Mr Parry you are at tab 27 which is the bargaining period notices?

PN240

MR PARRY: Yes that goes back to March, 30 March. The union there referred to making collective agreements under the Act and then the next two tabs - - -

PN241

THE VICE PRESIDENT: I have to say tab 27 has only a single notice initiating a bargaining period and then it has a document of 137 pages headed, Nurses Victorian Public Health Sector Agreement 2007 to 2010 which I take it is the – some proposed agreement?

PN242

MR PARRY: Yes your Honour the – yes if you go to the bargaining notice it says:

PN243

What are the matters to be dealt with?

PN244

It says:

PN245

The matters contained in attachment A of the draft agreement.

PN246

THE VICE PRESIDENT: Okay and that is a sample notice?

PN247

MR PARRY: That is a sample notice.

PN248

THE VICE PRESIDENT: Your submission is no doubt that they’re all identical?

PN249

MR PARRY: Yes your Honour.

PN250

THE VICE PRESIDENT: Relevantly identical?

PN251

MR PARRY: Yes. Now then there was an exchange of correspondence your Honour which I don’t need to take your Honour to. There is then tab 24 because negotiations commenced, I don’t’ think that’s in dispute and they continued through June. Then in June the ANF issued that notice which referred to and your Honour will particularly note paragraph 1, wage increases to 3.25 per cent wage increase, which was the state government’s offer and also your Honour will note at paragraph 8 the nurse patient ratios. Again another issue that raised by the ANF and that document there your Honour will see on the - - -

PN252

THE VICE PRESIDENT: Commissioner Blair gets a run.

PN253

MR PARRY: I’m sorry your Honour.

PN254

THE VICE PRESIDENT: Commissioner Blair gets a run.

PN255

MR PARRY: Yes, he does.

PN256

THE VICE PRESIDENT: Just a piece of history.

PN257

MR PARRY: On the side your Honour will see that this was authorised by the secretary of the ANF Victorian Branch in July 2007. Then your Honour the next tab, paragraph tab 23, there was a state wide meeting on 14 August 2007.

PN258

THE VICE PRESIDENT: I notice you didn’t emphasise the part of item (1) that the proposed wage increases would leave Victorian nurses between three and 21 per cent behind their New South Wales and Queensland counterparts.

PN259

MR PARRY: Well, I don't know whether that's right or wrong. At this stage I'm only saying that there were negotiations and these are the sort of issues that were raised. The government and the hospitals were putting a position and the nurses were putting a position back and then there were meetings and the next tab, 23, deals with state wide meetings to discuss, as your Honour will note halfway down that page, to discuss the 2007 Victorian Government's EBA claim against nurses. Your Honour will note next in tab 22 a resolution from 14 August 2007 which in paragraph 1 supports the ANF claim and in paragraph 4 in summary rejects the position of the employers and the Victorian Government.

PN260

Now then, your Honour, there was, and this is in tab 19, a notice to initiate a bargaining period and that was filed and served by the employers for whom I act.

PN261

THE VICE PRESIDENT: Yes.

PN262

MR PARRY: And again your Honour will see that with regard to the required particulars, paragraph (c):

PN263

The matters that the initiating party proposes should be dealt with by the proposed collective are referred to in attachment (a), Nursing for a better state of health.

PN264

And your Honour, that goes to tab 30. Tab 30 has that document and that document deals with wage increases, it deals with ratios and their variations and so forth.

PN265

THE VICE PRESIDENT: Yes.

PN266

MR PARRY: And your Honour will also the note bargaining notice refers to attachment B, further claims, and that is the further claims are in tabs 20 and 21 and they deal with individual issues raised by individual of the employers. Now, tabs 15 to 18 I don't take your Honour to. What they are is correspondence with the individual hospitals about issues.

PN267

THE VICE PRESIDENT: Yes.

PN268

MR PARRY: And I don't need to burden your Honour with that. Also tab 8 through to tab 14 falls into the same category again, correspondence between the ANF and the individual hospitals. Now, that leads up to a meeting on - there was a public sector meeting on 1 October and that led to a resolution which is in tab 6, your Honour.

PN269

THE VICE PRESIDENT: Yes.

PN270

MR PARRY: So in tab 6 you have a resolution from a meeting on 1 October again supporting the claim in paragraph 1 and in paragraph 2 rejecting the government and employer positions about ratios and so forth. Then there was a stop work meeting on the 16th, Tuesday this week and a notice for that is paragraph 7 - I'm sorry, tab 7, and your Honour will note that there the union put out a notice authorised by the secretary describing the purpose of the meeting. It's halfway down the page:

PN271

To either accept the government's offer to nurses or determine what action to take.

PN272

I should indicate coming immediately before this meeting was an exchange of correspondence which is in tabs 2 and 3 between those whom I represent about further discussions and the ANF response on the 2nd. Finally, your Honour, we have the stop work resolutions in tab 1. So that's that document going to industrial action, the lead up and the claims that were made and I tender that document, your Honour.

PN273

THE VICE PRESIDENT: Mr White, I'll mark it as an exhibit subject to your objection and you can revisit that issue of objections tomorrow.

EXHIBIT #1 VOLUME 1 OF 4, SUBJECT TO OBJECTION

PN274

MR PARRY: And your Honour, there is - is your Honour going to mark the Act?

PN275

THE VICE PRESIDENT: I don't think that's necessary.

PN276

MR PARRY: It's unnecessary, if your Honour pleases. There is also material that has been obtained off the website of the ANF.

PN277

THE VICE PRESIDENT: Yes.

PN278

MR PARRY: Volume 2 of 4 and again, your Honour, I won't take you through that.

EXHIBIT #2 VOLUME 2 OF 4, SUBJECT TO OBJECTION

PN279

MR PARRY: Yes, I indicate it's material that's been printed off the ANF website and indeed the ANF had a particular website dedicated to this campaign.

PN280

THE VICE PRESIDENT: Is there anything of particular significance that you'll be relying upon in due course in these documents?

PN281

MR PARRY: Only that they indicate that the ANF has organised the meetings, it's facilitated them and they've also articulated the claims and in particular, your Honour, the claims as we see them are in respect of wages and in respect of ratios. Those are the two essential claims and both the government and the unions have positions on those and so they accept one and reject the other. So I tender that.
Now, your Honour, there were two other folders which I don't have copies which are one volume, volume 3 of the ANF, all of the ANF bargaining notices.

PN282

THE VICE PRESIDENT: Yes.

PN283

MR PARRY: And the other one is all of the employer bargaining notices and I tender those.

EXHIBIT #3 VOLUME 3 OF 4, SUBJECT TO OBJECTION
EXHIBIT #4 VOLUME 4 OF 4, SUBJECT TO OBJECTION

PN284

THE VICE PRESIDENT: Yes. Now, I take it it's the witness statement
Dr Batten?

PN285

MR PARRY: I'm sorry, your Honour?

PN286

THE VICE PRESIDENT: The witness statement of Dr Batten I take it is the
next - - -

PN287

MR PARRY: I was proposing to call Dr Batten now if that's satisfactory to your Honour.

PN288

THE VICE PRESIDENT: Yes, thank you.

<TRACEY LEE BATTEN, AFFIRMED [3.50PM]
<EXAMINATION-IN-CHIEF BY MR PARRY

PN289

THE VICE PRESIDENT: Thank you, Doctor, take a seat, please.

PN290

MR PARRY: Doctor, your name is Tracey Lee Batten?---That's correct.

PN291

And you're a doctor of medicine?---I am.

PN292

You're employed as Chief Executive Officer of Eastern Health?---That's correct.

PN293

And you've held that position for some two and a quarter years?---About three and a half years.

PN294

Three and a half. Now, have you prepared a statement for these proceedings,
Dr Batten?---I have.

PN295

And I understand that there's one typographical error in paragraph 52, in the third bottom line I think?---That's correct. The word "critical" should be clinical.

PN296

Now, subject to that amendment, is that statement true and correct?---It is.

PN297

I tender that statement, your Honour.

PN298

THE VICE PRESIDENT: Mr White?

PN299

MR WHITE: We're not in a respond to this. Can I reserve the position in respect of any objection?

PN300

THE VICE PRESIDENT: Yes, until tomorrow. Until the time that the doctor returns for cross-examination.

PN301

MR WHITE: I beg your pardon, your Honour?

PN302

THE VICE PRESIDENT: Until the time the doctor returns for cross-examination.

PN303

MR WHITE: Yes.

PN304

THE VICE PRESIDENT: Yes.

EXHIBIT #5 STATEMENT OF DR BATTEN, SUBJECT TO OBJECTION

**** TRACEY LEE BATTEN XN MR PARRY
PN305

MR PARRY: Now, Dr Batten, you refer in paragraph 20 of your statement to closure of one in four beds and I take it from that that you're referring to a ban imposed by - - -

PN306

THE VICE PRESIDENT: You must be looking at a different version. Paragraph 20 doesn't deal with that.

PN307

MR PARRY: There is a heading, Closure of One in Four Beds.

PN308

THE VICE PRESIDENT: I'm sorry, yes.

PN309

MR PARRY: Do you see that heading, Doctor?---I do, thank you.

PN310

And I take it that refers to the ANF announcement about putting a ban on to that effect?---That's correct.

PN311

Could you describe to your understanding of how that ban is implemented, what mechanically happens in the hospital?---What happens when those sorts of bans are implemented is that obviously the nurses need to wait for the bed to be empty. They can't close the bed while the patient is physically in the bed. When a patient is discharged from a bed and when a ban like this is in operation the nurses looking after that bed at the time will make the decision whether to close the bed at that time or not.

PN312

And so when you say they make the decision, who makes the decision not to open the bed?---In the general wards in a hospital there are a nurses that are responsible for a group of four beds typically and it would be the nurse responsible for those four beds that could make the decision to close that bed. That would mean that that bed would not be open for an admission for either an emergency patient from the emergency department or an elective patient coming in for elective surgery.

PN313

Now, in paragraph 23 the heading there is Expected Bed Closures and your statement deals with an expectation of the impact of the ban. The ban was implemented yesterday morning, what was the experience at Box Hill Hospital?
---Yesterday at Box Hill Hospital we did not have any beds closed. Today at Box Hill Hospital we have five beds closed due to the industrial action.

**** TRACEY LEE BATTEN XN MR PARRY
PN314

When do you say due to the industrial action, aren't there other reasons for closing of beds?---There are other reasons for closing beds and in fact we have a couple of other beds at Box Hill Hospital closed at the moment due to some staffing issues. Some of our staff are unwell. The beds however that are closed due to industrial action have nursing staff available to staff those beds. Those nursing staff have advised us when we've asked to transfer a patient into those beds that those beds are closed.

PN315

Now, Maroondah Hospital, again you deal with expected bed closures. What was the experience at Maroondah Hospital yesterday?---Maroondah Hospital had nine beds closed yesterday and today Maroondah has 19 beds closed. Those beds are closed to the industrial action.

PN316

And the impact of that closure?---At the moment in the Maroondah Hospital emergency department we have 24 patients waiting. This is at 10 am this morning. We had 24 patients waiting for a hospital bed to be admitted and we had 19 beds available in the hospital but those beds were closed due to the industrial action. So we were unable to admit the patients from the emergency department into those beds in the hospital.

PN317

So what happens to the patients in the emergency department in that circumstance?---Those patients are then required to wait on a trolley in the emergency department and obviously that is not ideal or optimal for their care. Those patients have been waiting anywhere between eight and 24 hours at present to await for a bed to become available in the hospital.

PN318

Now, the Angliss Hospital, has there been any impact there?---At the Angliss Hospital yesterday we had eight beds closed and as at 10 am today we have 19 beds closed at the Angliss Hospital.

PN319

And which of those are due to the industrial action?---Those 19 beds are closed due to the industrial action.

PN320

And Healesville and District Hospital?---Healesville and District Hospital yesterday had four beds closed, today has no beds closed.

PN321

And the four beds that were closed, what was that due to?---I believe that was due to a lack of demand for the beds.

**** TRACEY LEE BATTEN XN MR PARRY
PN322

And Peter James Centre?---Peter James Centre yesterday had seven beds closed yesterday and as at 10 am today had 18 beds closed due to the industrial action. So in total across Eastern Health today we have 61 beds closed from industrial action.

PN323

What is Peter James Centre?---Peter James Centres is sub acute facility so it typically deals with people requiring rehabilitation services.

PN324

Now, you deal in paragraph 42 with elective procedures, is there a ban on elective procedures?---I believe that one of the identified bans from the ANF includes a ban on one in four elective procedures.

PN325

And how is a ban like that implemented?---Typically what would happen with that sort of a ban is that patients would rung and advised that their surgery had been cancelled.

PN326

THE VICE PRESIDENT: Rung by whom?---They would be rung by the nursing staff to be advised that their surgery is cancelled.

PN327

MR PARRY: And when one uses the term elective procedures, what's that used in contradistinction to?---The hospital patients are either classified as elective patients or emergency patients. Really there's not a huge distinction between those groups of patients. Emergency patients come through the emergency department. Elective patients are people on our waiting list who come in for a procedure. Those elective patients are categorised into three different categories. Category 1 is a patient requiring urgent surgery within 30 days. Category 2, the optimal clinical period for a patient to receive care is 90 days and category 3, the optimal clinical period is within 365 days to receive care.

PN328

Now, what was the experience with elective surgery during the stop work meeting on Tuesday this week?---So during the stop work meeting on Tuesday Eastern Health had 27 cases cancelled. That was six cases at the Angliss Hospital, 18 cases at Box Hill Hospital and three cases at Maroondah Hospital. Those cancellations were all related to the stop work meeting. Of those cancellations five were for category 1 patients. Those category 1 patients had a variety of conditions. One of the category 1 patients was a middle aged lady who had vaginal bleeding and she was having a procedure called hysteroscopy which is something that looks within the womb to see what the cause of the bleeding is. One would be suspicious in a middle aged woman that there is some underlying pathology, some underlying cancer within the womb that is causing that bleeding and that is why the procedure is undertaken. You can imagine that such a patient would be quite stressed and quite anxious to find out the cause of the bleeding so to have that sort of a procedure cancelled causes increased distress for that patient and for that patient's family and carers as well. Of the other category 1 patients there were two elderly gentlemen both having procedures for prostate removal and prostate removal typically is for an enlarged prostate. A prostate may be enlarged for a couple of reasons, either a benign tumour or a malignant tumour. Again those patients would typically be very anxious about why they have an enlarged prostate and whether that is a cancerous enlargement or not. Those patients were cancelled because of the stop work meeting.

**** TRACEY LEE BATTEN XN MR PARRY
PN329

When you cancelled, for what period of time?---Well, they are cancelled until they are rescheduled and given there are one in four cancellations threatened at the moment it is unclear when those patients will be able to rescheduled.

PN330

And that was with regard to the stop work meeting?---That is correct.

PN331

What about on Wednesday and today with regard to elective procedures?---On Wednesday we had - - -

PN332

MR WHITE: Excuse me, can I say the doctor appears to be reading from a piece of paper and reading quite quickly. If we could have a copy at a later time?

PN333

THE VICE PRESIDENT: You call for the document?

PN334

MR WHITE: Well, I don't want to be formal about it.

PN335

THE VICE PRESIDENT: Doctor, I take it you don't carry these facts and figures around in your head?---I do not.

PN336

You've made some inquiries and you've noted them down and you've got some notes that do that?---That's correct.

PN337

Is there any difficulty with providing the documents?---I will have to make sure that there is no identifying patient information and then I would be happy to provide the document.

PN338

MR PARRY: Well, firstly I think perhaps we'll do it a little slowly, I think that's our primary concern?---Yes, I'm happy to do it slowly.

PN339

MR WHITE: It was the primary. I don't want to formally call for the document. I just want to get the information.

PN340

MR PARRY: No, that's fine. Well, I'm happy to go back?---Yes, I'm happy to go back.

PN341

And I'm sure Dr Batten is happy to go back and I think - how far book?

PN342

MR WHITE: Look, let's just get the document and it will be easier. If no patients are identified that makes it easier and then everyone has got the same material.

**** TRACEY LEE BATTEN XN MR PARRY
PN343

MR PARRY: Elective surgery?---So elective surgery yesterday there was one patient cancelled at Maroondah Hospital. That patient was a category 1 patient, a category 1 patient being the sort of patient that needs treatment within 30 days. That procedure was for a broken wrist, so when someone has a broken wrist they need to have the bones reset. This particular procedure was an open operation to reset the bones. That case was cancelled. Not surprisingly when you've got a broken wrist it is quite painful, so having that sort of a procedure cancelled obviously causes pain and distress for the patient and the patient's family involved. Today in terms of elective surgery there have been five cancellations. Those cancellations were at Box Hill Hospital and none of those were for category 1 patients.

PN344

All right. Now, your statement also refers to ban on outpatient appointments in paragraph 45. Do you have paragraph 45?---I do, yes.

PN345

How is that ban implemented in practice?---In practice what would tend to happen is patients have an outpatient appointment. They will be rung by the nursing staff instituting the bans to advise that patient that their appointment has been cancelled.

PN346

And paragraph 46, cancelling radiology appointments, that's in respect of a ban that's been implemented?---That's right.

PN347

How is that ban implemented in fact?---The ban is implemented very similarly to the ban on outpatient appointments so patients will be booked in for an X-ray of some sort and they again will be rung by the staff involved with the ban to say that that appointment has been cancelled.

PN348

In paragraph 47, cancellation of cardiac catheter laboratory appointments, how is a ban on those appointments implemented?---Again it is the same as the outpatient appointment and radiology appointment. Those patients will have booked appointments and the nursing staff involved in the ban would ring the patient to advise that the procedure has been cancelled.

PN349

And paragraph 49 speaks of an impact of a ban on the transfer of discharge of patients. In what context does that ban operate?---Within the ANF bans there is one ban identified that talks about preventing patients requiring high level residential care from being discharged to any facility other than a high level residential care facility. The way I have interpreted this ban is that that would mean that when we have a patient awaiting a high level residential care facility, so awaiting a bed in a nursing home is what that means, what we typically do with that group of patients is discharge them to a facility called a transition care facility. It is a facility that is a more home like environment and a much more suitable environment to care for a patient who is requiring nursing home care. My interpretation of that particular ban is that we would be unable to access those transition care beds.

**** TRACEY LEE BATTEN XN MR PARRY
PN350

Thank you, Dr Batten. That was the evidence that I proposed leading from
Dr Batten, your Honour.

PN351

THE VICE PRESIDENT: Subject to the other witnesses for whom you have filed and served witness statements, in respect of whom you have filed and served witness statements is that the evidence of the applicants? Sorry, when we add the other witness statements in is that the totality of the evidence for the applicants?

PN352

MR PARRY: Each of the other witnesses will give evidence as to the imposition of the bans and what has actually occurred of a similar nature.

PN353

THE VICE PRESIDENT: Yes.

PN354

MR PARRY: Yes, your Honour.

PN355

THE VICE PRESIDENT: Well, that will then be the end of the evidence for the applicants?

PN356

MR PARRY: That's so.

PN357

THE VICE PRESIDENT: Yes, thank you. Mr White, I take it you don't wish to start cross-examining now?

PN358

MR WHITE: No, your Honour.

PN359

THE VICE PRESIDENT: Is there any reason why shouldn't adjourn until
10 o'clock then?

PN360

MR PARRY: Might Dr Batten be able to stand down, your Honour?

PN361

THE VICE PRESIDENT: Of course. Thank you, Doctor. Unfortunately, Doctor, it's going to be necessary to drag you back for cross-examination tomorrow.

<THE WITNESS WITHDREW [4.08PM]

PN362

MR PARRY: Your Honour, there was one document that had been prepared giving a snapshot of the position across various sectors and I had proposed using that in opening. I omitted it. I did propose handing it up to your Honour and - - -

PN363

THE VICE PRESIDENT: Does that summarise the evidence that's just been given?

PN364

MR PARRY: In part, but it also deals with other health - across the - - -

PN365

THE VICE PRESIDENT: I suggest you hand it up now and we can deal with the tender of it tomorrow morning.

PN366

MR PARRY: If your Honour pleases.

PN367

THE VICE PRESIDENT: To give Mr White an opportunity to consider it before it's formally tendered.

PN368

MR PARRY: Your Honour, the document is what is described as a 6 pm snapshot from Wednesday, 17 October. To run down the left side, acute beds are medical surgical beds and sub acute are rehabilitation beds and it then runs through categories of beds closed due to the industrial action and it gives a summary in the right hand side for metropolitan health services and rural health services. With metropolitan health services your Honour will see on the right hand side beds closed due to industrial action of both acute and sub acute and also residential aged care. OR is operating sessions and elective patients are clearly as it says, and then there's also similar material prepared for rural health services.

PN369

THE VICE PRESIDENT: Yes, thank you.

PN370

MR PARRY: So an overview, your Honour. Does your Honour propose marking that?

PN371

THE VICE PRESIDENT: I propose that you formally tender it tomorrow morning.

PN372

MR PARRY: As your Honour pleases.

PN373

THE VICE PRESIDENT: And Mr White can respond to making any objection at that point.

PN374

MR PARRY: As your Honour pleases.

PN375

THE VICE PRESIDENT: I mean at the end of the day this summarises evidence that's been given.

PN376

MR PARRY: In part.

PN377

THE VICE PRESIDENT: In part.

PN378

MR PARRY: Yes.

PN379

THE VICE PRESIDENT: So it has some independent evidentiary status that you wish to have conferred upon it?

PN380

MR PARRY: Yes, your Honour.

PN381

THE VICE PRESIDENT: Yes, okay. Anything further?

PN382

MR PARRY: Nothing further, your Honour.

PN383

THE VICE PRESIDENT: Mr Hanks, nothing further from you today?

PN384

MR HANKS: No, your Honour.

PN385

THE VICE PRESIDENT: Thank you. Mr White, no? I will adjourn until
10 o'clock.

<ADJOURNED UNTIL FRIDAY 19 OCTOBER 2007 [4.11PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 VOLUME 1 OF 4, SUBJECT TO OBJECTION PN273
EXHIBIT #2 VOLUME 2 OF 4, SUBJECT TO OBJECTION PN278
EXHIBIT #3 VOLUME 3 OF 4, SUBJECT TO OBJECTION PN283
EXHIBIT #4 VOLUME 4 OF 4, SUBJECT TO OBJECTION PN283
TRACEY LEE BATTEN, AFFIRMED PN288
EXAMINATION-IN-CHIEF BY MR PARRY PN288
EXHIBIT #5 STATEMENT OF DR BATTEN, SUBJECT TO OBJECTION PN304
THE WITNESS WITHDREW PN361