C2007/3761, Transcript of Proceedings [2007] AIRCTrans 659 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17800-1

VICE PRESIDENT LAWLER

C2007/3761

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
Australian Nursing Federation
and
Latrobe Regional Hospital
(C2007/3761)

MELBOURNE

10.10AM, TUESDAY, 20 NOVEMBER 2007

Hearing continuing

PN1

MR P GILBERT: I appear for the Australian Nursing Federation with
MR B SORAGHAN.

PN2

MR B SULLIVAN: I appear for BHPA. Assisting with the service
MR M JARRED from Latrobe Regional Health and MR P WALLACE.

PN3

THE VICE PRESIDENT: Thank you, Mr Sullivan. Mr Gilbert, the Commission received a letter from the respondent seeking an adjournment. I took the view that adjournments will not be granted administratively in these circumstances unless you consented to it and there be a need for an application if the adjournment was to be pressed. No doubt Mr Sullivan will make that application if he wishes to. Can you just indicate briefly what the matrix and facts are, in an practical respect, to make this matter urgent?

PN4

MR GILBERT: The application relates to unauthorised deductions from salary from a large number of our members at Latrobe Regional Hospital at Gippsland. The employees have sought and not been provided evidence in support of the employer’s position that those deductions were being made on the basis of those employees were taking industrial action. The employer maintains a view that they were obliged to do that under section 507 of the Act. We say they have an equal obligation to pay wages according to a certified agreement unless they can satisfy that they were obliged under section 507 to do those things.

PN5

Our application is based wholly and solely on their obligation to pay the salaries made out in the agreement. The employer has entered into a review process without consultation with the ANF despite there being a grievance procedure on foot. That requires the maintenance of the status quo and a number of individual members have sought individual evidence from the employer as to the reasons their pay was docked and that they have gone through stages one, two and three of the grievance procedure in the agreement and at the same time the employers implemented a review process that requires, amongst other things, the employee to provide evidence in support of the fact that they were not taking industrial action which, in our submission, is entirely contrary to the grievance that is currently on foot, not in the employee’s vaguest best interests and certainly contrary to requests that we made of Latrobe Regional Hospital.

PN6

As soon as we became aware of that we sought that they immediately cease that process and put out a memorandum to staff making it clear that that process was not going to proceed and that they would comply with the dispute settlement procedure in the agreement in order that this matter may hopefully be settled at the workplace level. I have sought meetings with Latrobe Regional Hospital. I have sent three letters to them, two of which sought a meeting with the CEO. As of late yesterday I am now advised I do have a time with the CEO for 1.30 today and that would obviously form the final step in the dispute settlement procedure if it weren’t for the fact that the employer had interrupted the status quo.

PN7

So the urgentness of the application today is to ensure that the employer complies with the dispute settlement procedure as set out in the agreement and that the processes sought in the grievance are followed and that we can return back here to the Commission in the event matters remain unresolved that relate to the agreement in question.

PN8

THE VICE PRESIDENT: I infer from what you say correctly that if the meeting proceeds at 1.30 today that will be in compliance with the dispute settlement procedure and that’s all you’re after? At this stage?

PN9

MR GILBERT: What I’m after, your Honour, is for that meeting to proceed and for the employer not to proceed with a process that is outside of the process that the grievance procedure contemplates. And we wrote to Latrobe Regional Hospital saying that we would ourselves adjourn the application today if they were to give that commitment and they would not give that commitment.

PN10

THE VICE PRESIDENT: So as I understand you, there are two separate processes or groups of processes occurring. There are grievance processes under the certified agreement that have progressed through two or three stages and then there’s this quite separate review process which has been initiated by the employer?

PN11

MR GILBERT: That's correct.

PN12

THE VICE PRESIDENT: Which you object to.

PN13

MR GILBERT: I do, your Honour.

PN14

THE VICE PRESIDENT: Because you say it’s at odds with the process mandated by the certified agreement.

PN15

MR GILBERT: That's correct. Not only the process mandated by the certified agreement, but the process that’s already in train in respect to individual employee grievances over their deductions from salary. That process having been commenced by those employees, the employer setting up a separate and distinct and I might say uncooperative approach compared to the grievance procedure that’s been established is in our view contrary to the procedure.

PN16

THE VICE PRESIDENT: Yes. Now, am I right Mr Gilbert, from your perspective the ultimate issue, if I can put it that way, that will determine the outcome of the various grievances is the issue as to whether or not in the particular circumstances it’s for the employer to satisfy itself that particular employees were participating in industrial action before they’re entitled and indeed obliged to withhold pay?

PN17

MR GILBERT: That's correct, your Honour. On each of the days in which the reductions ......

PN18

THE VICE PRESIDENT: Or whether as the employer appears to be asserting, it’s for the employee to prove that they were not engaged in the industrial action.

PN19

MR GILBERT: That’s correct. And one step further from that, that if having done that the employer remains of the view that they have done the right thing the employee can seek a review by putting in writing their concerns to the workplace ombudsman. It is our preference that the grievance procedure as the agreement contemplates that if a matter is unresolved to the employer’s satisfaction then it comes to the Industrial Relations Commission or the workplace ombudsman.

PN20

THE VICE PRESIDENT: Mr Sullivan?

PN21

MR SULLIVAN: Your Honour, the employer sought adjournment in this matter essentially because of the seriousness of it in terms of what they are trying to manage locally. They sought adjournment of the matter because - - -

PN22

THE VICE PRESIDENT: You seek an adjournment?

PN23

MR SULLIVAN: Yes we seek the adjournment, but having said that we’ll reserve the reasons for that adjournment for now if I could because I would give the Commission at least the understanding if I am allowed.

PN24

THE VICE PRESIDENT: Yes, please do.

PN25

MR SULLIVAN: Of what the circumstances are from the employer’s point of view.

PN26

THE VICE PRESIDENT: Please do.

PN27

MR SULLIVAN: As I say, the reason for the application for the adjournment is that the matter will be strongly contested as a jurisdictional issue if it is pressed further, but the broad context of the matter is this, your Honour. Welcome back to the parallel unit that is Nursing Victoria. The obligations under section 507 of the Act in our view are obligations that stand in their own right under the jurisdiction of the Act under the surround of the aegis of the Act and those obligations carry with them a certain form of prosecution which is in the end under the purview of the workplace ombudsman.

PN28

THE VICE PRESIDENT: And that’s the civil penalty?

PN29

MR SULLIVAN: Yes, that’s right.

PN30

THE VICE PRESIDENT: That are imposed for contravention of the obligation to withhold the four hours pay.

PN31

MR SULLIVAN: That’s all to claim. So basically, your Honour, just to sketch what has occurred during these recent events, and I would have to emphasise in doing that this was unlawful industrial action. This was not lawful. It was unlawful industrial action. Orders were issued by the - - -

PN32

THE VICE PRESIDENT: It didn’t seem to have fussed the federal minister much.

PN33

MR SULLIVAN: No, didn’t seem to be at the time, but I think the federal minister was just advised - I’d perhaps say no more about that - by the workplace ombudsman. We were in contact with the workplace ombudsman shortly after those statements. So essential, your Honour - - -

PN34

THE VICE PRESIDENT: You did have remedies available to you. You could have gone to court for an injunction against the union and in particular employees.

PN35

MR SULLIVAN: Yes. Well, I mean there was a matter finally not determined in relation to the orders issued to the private Commission about the industrial action. You’re probably aware of the status that reached in the end.

PN36

THE VICE PRESIDENT: Yes.

PN37

MR SULLIVAN: And we did go to the Court of Appeal.

PN38

THE VICE PRESIDENT: Okay. So you point to section 507 - - -

PN39

MR SULLIVAN: So basically 507 in the context of this unlawful industrial action, that’s not just that’s not academic in the sense that the unlawful action, there was no notice given.

PN40

THE VICE PRESIDENT: But 507 isn’t .....?

PN41

MR SULLIVAN: No, it’s not. That’s not an issue, that’s not an issue. I’m trying to draw the distinction however for you that if it was lawful action the employer would have had some notice for a start and in the context of this situation even having a notice was an important thing for the employer to deal with the matter.

PN42

THE VICE PRESIDENT: Yes.

PN43

MR SULLIVAN: So the basic underlying premise is that it was unlawful action and the usual actions did not apply, that is the notice didn’t apply. What occurred at the time was that the employers were made well aware by various sources of their obligations under section 507 of the Act. VHIA in terms of - - -

PN44

THE VICE PRESIDENT: Employers made aware or employees?

PN45

MR SULLIVAN: Employers were made aware.

PN46

THE VICE PRESIDENT: Employees?

PN47

MR SULLIVAN: Employees were actually not told, in our submission, at all. In fact they were almost told the opposite in some instances, that they would not have their pay docked. Now, this is material that I can provide if you need it.

PN48

THE VICE PRESIDENT: Did the employers tell the employees that their pay will be docked?

PN49

MR SULLIVAN: Yes, repeatedly. In this case we just concentrated on Latrobe Regional Health Service, but really we’re dealing with 140 other services here too ...... But basically the employees were told very clearly that they would be docked in their pay. VHIA was in communication with the workplace ombudsman.

PN50

THE VICE PRESIDENT: They were told they’d have their pay docked if they participated in the bans that were being proposed?

PN51

MR SULLIVAN: Yes.

PN52

THE VICE PRESIDENT: And did the employer take steps in this case to ascertain from employees whether or not they were participating - - -

PN53

MR SULLIVAN: Very clear cut steps. Very clear cut steps.

PN54

THE VICE PRESIDENT: Which the nurses on the nursing stations were each asked by their manager individually are you participating in the bans or aren’t you?

PN55

MR SULLIVAN: Yes. It even went beyond that, your Honour, and accommodation was reached with the ANF locally as to how that would occur. So just in the context of there were every step taken, every reasonable step taking to ascertain the right process to be applied and their service did apply that right process. For this service the right process was advised to be visitations to the wards, questions of the nurses as to whether they were participating or not participating in the industrial action, recording of those responses and that was done at least on a shift by shift basis. The situation is that that process, as in many places, caused a great deal of anxiety and a great deal of stress on the relationships in the workplace, as I understand the reasons.

PN56

Now, at Latrobe Regional Hospital, Latrobe Regional Health, the service was approached by the ANF representative on the basis that this was a disturbing process for the nurses. The service understood what the ANF was saying about that and entered an arrangement which involved the ..... concerning the further gathering of evidence about the industrial action. That arrangement was floated past VHIA, myself actually, at the time and given the context of the situation we felt that since the offer was there from the ANF to assist in the difficulties of dealing with the situation then without following through every last forensic nicety about the gathering of the evidence we felt that that was a reasonable arrangement and would help to deal with the matter, at least at that health service. That wasn’t - - -

PN57

THE VICE PRESIDENT: And the arrangement was?

PN58

MR SULLIVAN: And the arrangement was that which is spelt out in an email from Sharni Bennett on behalf of the ANF job reps and the ANF of 17 October and I'll give the Commission a copy of that. So the situation, your Honour, perhaps you might have a moment to read that.

PN59

THE VICE PRESIDENT: Yes.

PN60

MR SULLIVAN: Now, it happens to be that that email went out even slightly before the email from the health services I’m told. It basically was an equivalent communication by the health service to all nurses as well. Now, the situation is that that arrangement was entered into and the evidence so gained and recorded is still there and is being acted upon. The situation is that - - -

PN61

THE VICE PRESIDENT: The evidence was then gathered?

PN62

MR SULLIVAN: Yes in accordance - - -

PN63

THE VICE PRESIDENT: Pursuant to this arrangement?

PN64

MR SULLIVAN: In accordance with this arrangement. So there was initially evidence gathered by the means, the more traditional means of inquiring with every nurse as to whether they acted or not, then this accommodation was reached and effectively the evidence from thereon was evidence in the form that was agreed. Now, the service had been challenged and it made the pay of deductions as required under the Act. Then the issue of this proper recording and proper evidence, it was agitated by the ANF at a very high level politically in Victoria and there was concern to make sure that throughout the health system there was an appropriate opportunity for people if they felt that they’d been wrongly docked they would have the opportunity to indicate why that would be.

PN65

So that general communication was conveyed to the field, but in addition to that the workplace ombudsman became involved. And the workplace ombudsman has been progressively visiting health services.

PN66

THE VICE PRESIDENT: To ensure that the employer is not making strike ......

PN67

MR SULLIVAN: Well yes, that's right. To ensure compliance with 507.

PN68

THE VICE PRESIDENT: Payments for the industrial action ......

PN69

MR SULLIVAN: And so the workplace ombudsman has been doing that. In fact the workplace ombudsman - well put it this way, the Victorian director of the workplace ombudsman’s office, ....., met with the service mid last week
14 November and effectively the whole approach of the service and the form of evidence that was gathered was canvassed with the workplace ombudsman. The workplace ombudsman was satisfied it was fair and reasonable in the circumstances. That that approach certainly yielded if nothing else prima facie evidence that there was participation in the industrial action and as a result of that nevertheless that meeting with the workplace ombudsman an issue was pointed out as to the way in which the natural justice should be applied in relation to anyone who had objection and the approach was that the service would canvass via a certain form, any nurse who wanted to actually register they believed that they’d been incorrectly docked.

PN70

I'll give you a bundle of material, Vice President, and part of that material does include the ..... I’ll just find it ..... here it is. This tends to complete the picture a bit in terms of the hospital’s perspective or the health service’s perspective. And briefly speaking the initial memorandum from the chief executive to all nursing staff of 14 November basically outlined that there had been a meeting with the workplace ombudsman, that the meeting had confirmed the service’s confidence in the processes that were put in place to gather data to identify staff participating and basically in the view of natural justice they initiated a process for people to request a review of the particular circumstances of their case.

PN71

Then it outlined the review process and the review process was very particular and in fact it ended with the opportunity for employees who remained dissatisfied to seek a review with the workplace ombudsman’s office. So I’d have to say in any normal circumstances you would have thought this was a pretty reasonable process. Then attached to that was the relevant form that was developed following the discussions with the workplace ombudsman. So essentially, your Honour, what has been occurring is that the service has acted entirely appropriately, in our submission, that it acted really by force of section 507 of the Act, not in relation to any matter relating to the workplace agreement.

PN72

We don’t believe that this is an issue of dispute concerning the application of the workplace agreement properly characterised.

PN73

THE VICE PRESIDENT: Why doesn’t it arise this way, that the workplace agreement imposes an obligation to pay salary and therefore there were two relevant obligations, the obligation under section 507 and the obligation under the certified agreement to pay salary including the 507 obligation trumps the certified agreement where the jurisdictional prerequisites of section 507 are made out. And this can be characterised as a section 507 matter, but it can also be characterised as a certified agreement matter precisely because you can have debate under the certified agreement dispute resolution process about whether or not the obligation to pay in accordance with the agreement has been discharged.

PN74

MR SULLIVAN: And that is essentially the argument of the ANF, but it puts priority obviously on the grievance process under the certified agreement. Our submission, and this is where in fact we would be seeking to engage counsel to argue this point, is that in fact the 507 obligation effectively - - -

PN75

THE VICE PRESIDENT: If I might say so Mr Sullivan, you have done an excellent job thus far.

PN76

MR SULLIVAN: Well, there’s a lot at stake, your Honour, and I don’t want to leave any stone unturned on this matter because in fact this is a representative situation of what’s going on - - -

PN77

THE VICE PRESIDENT: No, I understand. This is in the nature of a test case.

PN78

MR SULLIVAN: Yes. So essentially we would say that there is supervening application of the 507 provision which in the end really has sway of any particular obligations generated under the powers of the Commission to certify agreements as it has done in this case.

PN79

THE VICE PRESIDENT: Well, I don’t know that it necessarily - I mean a certified agreement once it’s certified has effect with statutory force.

PN80

MR SULLIVAN: Yes it does, it does yes.

PN81

THE VICE PRESIDENT: Now, I appreciate that section 507 is a clear cut obligation that has to be complied with, but the two obligations are not inconsistent. There’s an obligation to pay a salary - - -

PN82

MR SULLIVAN: No, I accept that.

PN83

THE VICE PRESIDENT: And there is no obligation to pay salary - there’s a general obligation to pay salary, but no obligation to pay salary whilst employees participating in industrial action and indeed the four hour minimum applies, I just don’t know that there’s necessarily - - -

PN84

MR SULLIVAN: Taking that line of thought, you know, basically then even if we accept that position, which we think in fact there’s a hierarchy but we leave that alone for now, in effect we say that there has been a process implemented with additional input from the workplace ombudsman which is effectively equivalent to the grievance process anyway. Effectively the opportunity has been given to the employee to raise the grievance. That opportunity has been given in a certain way, but that certain way is - - -

PN85

THE VICE PRESIDENT: Would you accept that employees could choose as an alternative to the review process set out in the memorandum of 14 November, an employee could choose to raise a grievance under the dispute resolution procedure in the certified agreement?

PN86

MR SULLIVAN: No we don’t necessarily accept that this is a relevant contemplated situation that the grievance provision is pitched towards.

PN87

THE VICE PRESIDENT: Okay. Which ties back to your overriding jurisdictional objection I take it?

PN88

MR SULLIVAN: Yes it does.

PN89

THE VICE PRESIDENT: Okay, I see.

PN90

MR SULLIVAN: So that’s the broad contest, your Honour.

PN91

THE VICE PRESIDENT: Are you happy for the meeting to proceed today?

PN92

MR SULLIVAN: Yes, the meeting may proceed today. I’m advised that it was simply a request by the ANF to meet with the CEO. No particular subject matter was specified in that meeting, but the meeting has been agreed to. And from what Mr Gilbert says we’re now pretty clear about what the subject matter will be. Effectively we think that this has been a very difficult situation to manage, your Honour, and there is another ingredient in this which Mr Gilbert has alluded to and which I haven’t got copies of the material in relation to. I think it’s relevant for the Commission to look at what is said in that email from that staff, the ANF representative to staff at the bottom of the second paragraph. It says:

PN93

At this stage the ANF is confident those nurses who support the bans will be paid appropriate as they are still attending the workplace and performing their normal duties.

PN94

Now, we say that represents the general picture that was being conveyed to nurses throughout the state at the time and we believe that it was in fact misleading of the ANF to be creating that impression at the time. It in fact paved the way for further disputation such as which is now before you. We believe that in fact based on the materials the ANF has produced in terms of the way it wants to conduct the process, that is pro forma letters provided to nurses to actually send to management reversing the onus - - -

PN95

THE VICE PRESIDENT: And they’re documents that you would wish to gain access to through summons?

PN96

MR SULLIVAN: Not really, your Honour. I’ve got copies of them. I’m just, I suppose, indicating in a general sense without supporting any evidentiary material at the moment, that in fact we believe that this is a subsidiary campaign now by the ANF to actually ensure that in fact the normal consequences of taking industrial action under the Act are not affected or are muddied. We say that’s a campaign because these particular pro forma letters are turning up all over the state.

PN97

THE VICE PRESIDENT: Mr Sullivan, first of all is it not, though, that notwithstanding the arrangement that was reached between VHIA and the ANF in relation to the evidence gathering process - - -

PN98

MR SULLIVAN: It was particularly between the ANF and the service, not us.

PN99

THE VICE PRESIDENT: Yes, sorry. The ANF and the service, that that was an arrangement that was not necessarily agreed to but the concurrence of every member of the ANF who was working as a nurse at one of the hospitals?

PN100

MR SULLIVAN: Well, certainly not even with the occurrence of every nurse because not every nurse is a member of the ANF.

PN101

THE VICE PRESIDENT: No, exactly. Exactly. So that it would be, if one can hypothesise, nurse X working in a particular ward wanting to say well look, hang on a minute, I in fact wasn’t involved in the industrial action, that I shouldn’t have the onus cast upon me to prove that. This is their contention.

PN102

MR SULLIVAN: Yes.

PN103

THE VICE PRESIDENT: I’m not saying it’s necessarily correct. And that I should have an opportunity to raise a dispute about the requirement that’s being imposed upon me to prove, as it were, my entitlement to be paid which entitlement I have under the certified agreement (because I wasn’t in fact supporting or participating in industrial action). I’m just not sure how one gets around that entitlement of the hypothetical individual. Presumably Mr Gilbert’s half dozen members who have raised grievances of people who want to put themselves into that category, or some of them may want to put themselves in that category. It’s hard to see how they can be shut out from at least raising the argument.

PN104

MR SULLIVAN: And your Honour, to answer that, that was one of the purposes of the meeting that was held with the workplace ombudsman, to understand from that other perspective and the perspective of an objective observer whether it would seem to be fair and reasonable in the circumstances to have taken the approach. Now, the service was advised.

PN105

THE VICE PRESIDENT: There’s no provision in any statute, is there, that bonds employees to arrangements given the inframata of the workplace ombudsman?

PN106

MR SULLIVAN: No. I’m not contending that, your Honour. I’m just depicting how the service has acted reasonable.

PN107

THE VICE PRESIDENT: You’re giving a ..... that you have done everything bona fide and according to hoil and trying to do you level best to protect the interests of the service, to comply with its obligations under section 507 and you are outraged that you be dragged here.

PN108

MR SULLIVAN: Well, in a sense, your Honour, it’s just about the last straw. I mean, this was a difficult enough situation for the whole field. It was unlawful action.

PN109

THE VICE PRESIDENT: Well Mr Sullivan, I think isn’t the, to put it really crudely in the strict English sense of the word, isn’t it like sort of tough, get over it?

PN110

MR SULLIVAN: Yes.

PN111

THE VICE PRESIDENT: The union’s got an entitlement to make an application, you’ve got an entitlement to raise a jurisdictional objection, the union is going to have an opportunity to raise its case.

PN112

MR SULLIVAN: Yes. I guess to finish on the earlier question of yours to do with whether an individual nurse could reasonably feel that they’ve been given the right opportunity, well I mean this opportunity has now been given to them in a form which is on advice the correct form.

PN113

THE VICE PRESIDENT: Not advice that the ANF necessarily accepts as being sound or wise.

PN114

MR SULLIVAN: No.

PN115

THE VICE PRESIDENT: Or appropriate.

PN116

MR SULLIVAN: No.

PN117

THE VICE PRESIDENT: Okay. Is the respondent content that if the meeting proceeds today at 1.30 that the steps in the grievance procedure that would allow the grievances to proceed to the Commission will have been followed? There won’t be some technical point taken about a failure to follow procedure?

PN118

MR SULLIVAN: No, no. I mean, basically there were before even that email, sorry, that form of application was sent to the nurses a week or so ago, or a few days ago, there were already some objections or grievances lodged. In fact they would, as far as the service is concerned, be bundled with anything that comes out of this process and I’d have to say I’m advised this morning that there have been others lodged. So basically - - -

PN119

THE VICE PRESIDENT: I expect there were going to be many lodged.

PN120

MR SULLIVAN: Sorry?

PN121

THE VICE PRESIDENT: I expect there will be many lodged.

PN122

MR SULLIVAN: There will be, I’m sure, many lodged. So basically I think that the situation is that as the second limb, I suppose, putting aside the jurisdictional issue we don’t see that there is not in fact an appropriate form of grievance process already under way.

PN123

THE VICE PRESIDENT: Yes.

PN124

MR SULLIVAN: And the next step in that, typical grievance process, it’s the first line, supervisor et cetera, but in fact given the context of this matter ultimately it would have to be the decision of the CEO as to what was done in any grievance process and as far as we’re concerned, if that meeting today is treated along those lines, as the final step in the grievance process, we’ve got no problems with that.

PN125

THE VICE PRESIDENT: Okay. So just trying to be practical and efficient about the disposition of these matters, or this matter at the moment, you want an opportunity to raise a jurisdictional argument based upon the non interdependence of the certified agreement obligation to pay in section 507. You want to say there’s no jurisdiction in respect of the grievance process that’s going to be completed at the meeting at 1.30 today and you say there’s no jurisdiction, even though the procedural steps have been taken. And I take it you want an opportunity to call some evidence about the factual matters that you’ve outlined today because they’re, or some of them at least, go to that jurisdictional issue you would say?

PN126

MR SULLIVAN: Yes.

PN127

THE VICE PRESIDENT: Okay. I believe the service is willing to engage constructively in the meeting today between the union and the CEO and there may be some means by which issues are resolved at that meeting in which case maybe the cause of the application falls away.

PN128

THE VICE PRESIDENT: I’m just trying to tease out in my own mind what are the ultimate issues between the parties, what are the issues that ultimately need to be determined subject to, of course, the initial jurisdictional objection. But assuming that went in the union’s direction - I don’t say that it does, I’m just thinking about the practicalities and planning for contingencies - the key issue I suppose is whether or not individual nurses are to be treated as “bound” by the arrangements that the ANF made with the service for the collection of evidence to be varied. Do you disagree with that, Mr Gilbert?

PN129

MR GILBERT: At this stage we don’t have an agreement on that and I think the Commission was provided with - - -

PN130

THE VICE PRESIDENT: No, I’m not talking about agreement. I’m talking about whether or not you agree that that’s the issue. Obviously there’s disagreement between the parties about the issue, but is that the ultimate issue?

PN131

MR GILBERT: The issue from our point of view is ensuring that natural justice applies, ensuring that employees aren’t expected to provide or give evidence against themselves and to ensure that there is a clear process through the Commission for finalisation of those disputes.

PN132

THE VICE PRESIDENT: Well, can I urge you to grapple with those issues as well at the meeting today? I presume you were going to do that anyway, but it would make sense to see if you can’t come to - - -

PN133

MR GILBERT: We foreshadowed in a letter to Mr Pintado, the CEO, yesterday the kind of information that we need in order - it was put in a complex way, if you like, but I mean as a simplest we need the evidence on which the hospital formed the conclusion that they were obliged by section 507 not to pay a particular employee for work performed on a particular day. That’s what we have to do. There’s no other way for us to progress it to satisfy that there was a statutory obligation not to pay. I mean, prima facie we don’t have to prove that at all. We’ve got a statutory obligation to pay.

PN134

It’s up to the employer to provide reasonable evidence, at a level that could be tested in court if necessary, as to their statutory obligation to then deduct that pay. And at some point or other the employer will have to come to grips with that. To say that they’ve adopted a process that provides for natural justice, that they will not provide the evidence I support of their decision, those two things just can’t be put safely in the same sentence.

PN135

THE VICE PRESIDENT: Well Mr Gilbert, do you agree that given the way the matter has unfolded today in terms of an articulation of issues including in particular by Mr Sullivan that there’s no practical prospect of trying to deal with the matter to finality today?

PN136

MR GILBERT: I would agree with that prospect, your Honour.

PN137

THE VICE PRESIDENT: Okay. So is there some utility in setting a time table now?

PN138

MR GILBERT: I think that would be - - -

PN139

THE VICE PRESIDENT: Or should that await the outcome of the meeting today?

PN140

MR GILBERT: That would be something we would support and we’d be the first to alert the Commission in the event that the meeting today resolves it in a process that didn’t at this point require the Commission’s assistant.

PN141

THE VICE PRESIDENT: Okay. Mr Sullivan, do you have any difficulties with time table that would at any event get us to the point of dealing with your jurisdictional objection?

PN142

MR SULLIVAN: Yes, your Honour. Basically the reason we sought the adjournment today is effectively ..... working day, that being yesterday. And so effectively as soon as we’re able to properly examine the brief of the matter we will be prepared to be back.

PN143

THE VICE PRESIDENT: Okay. Mr Gilbert, do you have any suggestions? You’re the applicant. Really, I suppose Mr Sullivan, you want to have this jurisdictional objection dealt with first. Rather than as part of the entire hearing, as it were, you want to have it dealt with first separately?

PN144

MR SULLIVAN: Yes.

PN145

THE VICE PRESIDENT: As a separate question?

PN146

MR SULLIVAN: Yes, we’d like that as a threshold issue.

PN147

THE VICE PRESIDENT: Mr Gilbert, do you have any objection to that course?

PN148

MR GILBERT: Our aim is to progress this matter in an expeditious and
co-operative - - -

PN149

THE VICE PRESIDENT: You should go into politics, Mr Gilbert. A yes or no would - - -

PN150

MR GILBERT: Last time I agreed, your Honour, to a jurisdictional matter being dealt with as a threshold matter before the substantive application, the threshold matter has been dealt with three or four weeks ago and the threshold application is still sitting there in limbo. I don’t want to create a situation that creates further delay.

PN151

THE VICE PRESIDENT: I understand that. I understand that, but I can assure you that you won’t find yourself with a significant delay if the jurisdictional question is dealt with separately. But just on what Mr Sullivan has said, whether one agrees or not with the totality of the legal analysis, or the analysis of the legal significance, the facts that he said, the facts that he’s outlined rather suggest to me that it would be sensible to try and deal with the jurisdictional objection first up.

PN152

MR GILBERT: Yes. I only make the comment in the contest of the fact that we would like it dealt with expeditiously.

PN153

THE VICE PRESIDENT: Yes, okay. Well Mr Sullivan, on the jurisdictional objection you’ve really got the carriage of the matter so it would make sense for you to put on your evidence first. And I think an outline of submission would make sense, not for written submissions, something that’s in bullet point form would be fine. Perhaps a page or a page and a half that just identifies the key issue or issues that ground the jurisdictional objection that you raise. Mr Gilbert, I think it would probably make sense - well no, I withdraw that. Are you content for Mr Sullivan to proceed on the basis that your characterisation of the dispute can be simply left to be divined from the application that’s filed, or do you want an opportunity to reformulate the characterisation of the dispute?

PN154

MR GILBERT: It would be our preference to reserve that and address that in the response to the employer’s outline.

PN155

THE VICE PRESIDENT: Okay.

PN156

MR SULLIVAN: Sorry, your Honour. That I understand what Mr Gilbert is saying, but I mean that really does put it us at a disadvantage as there’s a substantial re-characterisation of the dispute after we put in our submissions. So long as we have that opportunity if there is a substantial re-characterisation that we would then have a further opportunity - - -

PN157

THE VICE PRESIDENT: Well I think look, Mr Sullivan, strictly you’re right, but as a result of what’s passed between the bar table and the bench here today it’s reasonably clear, isn’t it, what the characterisation that the union contends for is, namely that this is a dispute over the obligation of the employer to pay salary in accordance with the certified agreement which draws into consideration the entitlement or otherwise of the employer to rely upon the prohibition in section 507 in the case of a given employee who is progressing a grievance under the grievance procedure.

PN158

MR SULLIVAN: Yes, that’s the fundamental characterisation.

PN159

THE VICE PRESIDENT: Yes, okay.

PN160

MR SULLIVAN: That doesn’t change.

PN161

THE VICE PRESIDENT: Yes. That, Mr Gilbert, you’re happy with my summary of it?

PN162

MR GILBERT: Yes.

PN163

THE VICE PRESIDENT: Okay. Mr Sullivan, how long?

PN164

MR SULLIVAN: Time line?

PN165

THE VICE PRESIDENT: Yes.

PN166

MR SULLIVAN: We haven’t even been in contact with counsel yet so we’d have to arrange yet. I would think it will take at least the rest of this week to sort that out and provide - we’re up to Tuesday. So hopeful we’ll provide our outline of submissions by the close of business Friday, but we may actually have to leave it until Monday to do that.

PN167

THE VICE PRESIDENT: Okay. I think Monday would be the more sensible course. That’s the 26th. Mr Gilbert, the Thursday sufficient for you or do you want more time than that?

PN168

MR GILBERT: No, we’re hopeful for people being paid by Christmas, your Honour, so we’ll be as quick as we have to be.

PN169

THE VICE PRESIDENT: Okay. Just bear with me a moment please. My associate tells me that I personally have difficulties physically making myself available to hear a matter before Monday, 10 December. I think the better course is to simply just adjourn now without issuing any directions and for me to be able to study the calendar and see if I can move things, or alternatively at least get back in touch with the parties to work out whether or not a hearing before another member at a time that’s more approximate to the time table we’ve been talking about. I suppose the ideal would be Friday the 30th.

PN170

MR SULLIVAN: Yes, your Honour.

PN171

THE VICE PRESIDENT: You’re happy with that course, Mr Gilbert?

PN172

MR GILBERT: Okay, fine.

PN173

THE VICE PRESIDENT: Mr Sullivan, anything further from you?

PN174

MR SULLIVAN: I understand the suggestion - - -

PN175

THE VICE PRESIDENT: At the moment we have you filing evidence and an outline of submissions on Monday the 26th, Mr Gilbert filing evidence and the outline of submissions on Thursday the 29th and a hearing on the 30th. That would almost certainly be conducted by somebody else. Or alternatively at least we’ll be in touch with you if I’m having difficulties finding somebody to do that. I had in mind seeing if Commissioner Smith could do it. And that will then dispose of the jurisdictional question and I suspect that in disposing of the jurisdictional question a lot of the balance of the issues between the parties will, if not be resolved, there will be much greater degree of clarity about the ambit of the scope of the dispute. Okay, anything further from you Mr Gilbert?

PN176

MR GILBERT: I’m wondering, your Honour, whether contemporaneously with that approach whether the employer would be prepared to consent to releasing the information on which the grievance is put progressing the interim?

PN177

THE VICE PRESIDENT: That is the information - - -

PN178

MR GILBERT: At the ..... level without the - - -

PN179

THE VICE PRESIDENT: The information upon which the employees relied in the deductions in respect of those specific individuals?

PN180

MR GILBERT: And such other individuals as have a grievance with the employer on the same issue who are members of the ANF from our point.

PN181

MR SULLIVAN: Your Honour, it depends. The information is clearly relevant to dealing with any particular issue that’s raised by a nurse. There’s no objection in principle to try and establish that evidence or that form of evidence in a way which can be conveyed to nurses once there’s an application been made.

PN182

THE VICE PRESIDENT: Yes. I would have thought at the end of the day that when you apply the legitimate forensic purpose test, assuming you don’t win the jurisdictional objection, it’s hard to see how that test would not be satisfied in respect of that category of documents.

PN183

MR SULLIVAN: No, that’s correct. And effectively that form that has been issued is one which attempts to concentrate the basis of the objection, that is the nurses being asked to say basically why was it wrong. So there’s a prima facie request basically to indicate well, narrow down why they think it’s wrong.

PN184

THE VICE PRESIDENT: I take it that although you don’t want to commit yourself at the moment you would say in answer to Mr Gilbert’s question about what were the documents or what are the documents, that you’ve already indicated in the factual summary you’ve given today what the documents are, there were records that were being kept as a result of interrogations, using that word in the sense - - -

PN185

MR SULLIVAN: Initial interrogation, yes.

PN186

THE VICE PRESIDENT: By managers of ward staff and the like on a shift.

PN187

MR SULLIVAN: Yes.

PN188

THE VICE PRESIDENT: And then that stopped?

PN189

MR SULLIVAN: Yes.

PN190

THE VICE PRESIDENT: And so the class of documents then extends to include the documents relating to the arrangement reached with the ANF?

PN191

MR SULLIVAN: Yes.

PN192

THE VICE PRESIDENT: And then such documents are were generated in the course of giving effect to that arrangement.

PN193

MR SULLIVAN: Yes, I understand that your Honour. Yes, that’s correct. So that’s the basic form of material that was .....

PN194

THE VICE PRESIDENT: Yes. Mr Gilbert, I take it you followed all of that?

PN195

MR GILBERT: I did, your Honour, except in Latrobe’s own documentation for its proposed internal process which I would ask that they not proceed with pending this outcome because it does tend to reverse the onus and confuse the situation all the more. It does refer to other forms of evidence that LRH claim to have and documents or information that fall into the categories that they themselves have identified that haven’t been mentioned today would be information that we would also seek. For example, it refers to:

PN196

Termination and details of which areas were participating in industrial action through communication with nurse unit managers and details contained in patient management systems and care.

PN197

I don’t know what information that could possibly be and what it could possibly say and how it could possibly assist the employer, but if they are proposing to rely on that then we need to know what it is so that we can - the lasts thing we want to do obviously is to be out there making claims on behalf of people for paying through industrial action. So if there’s evidence there that people were taking industrial action then obviously that stymies us pursuing that further in respect to that employee.

PN198

THE VICE PRESIDENT: Well, you flagged your position. Clearly there’s no scope for me today to be making any orders or giving you directions about that. Not until the jurisdictional issue has been sorted out in any event.

PN199

MR GILBERT: The co-operative approach I’m just saying that I don’t want now what the employer - if there’s anything that the employer wants to rely on - - -

PN200

THE VICE PRESIDENT: You’re inviting the service to put its own separate review processes outlined in the memorandum of appointment in November into suspended animation for the short period that’s going to be involved in determining this issue. The service with either embrace that suggestion/request or it won’t. If it does, fine. If it doesn’t, then the ball is back in the court of individual employees to determine whether or not they are going to decline to participate in the process on the basis that they are entitled to and have elected to pursue a grievance process under the certified agreement and whether or not they are prepared to take the risks that are involved in that.

PN201

MR GILBERT: It’s only, all I’m trying to say, your Honour, is that whilst we are attempting to deal with the matter co-operatively that I don’t want to be seen here today to be saying they’re the only category of things we’re interested in if there are other categories of things that the employer is relying upon.

PN202

THE VICE PRESIDENT: Of course, of course. Okay. Some directions will then issue along the lines indicated either later on today on tomorrow and my associate will probably be in touch with you. Thank you. There’s nothing further from you, Mr Sullivan?

PN203

MR SULLIVAN: No.

PN204

THE VICE PRESIDENT: That’s fine. The Commission is adjourned.

<ADJOURNED UNTIL FRIDAY 30 NOVEMBER 2007 [11.00AM]