B2014/1133, Transcript of Proceedings [2015] FWCTrans 142 (23 March 2015)

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PN1

THE DEPUTY PRESIDENT: Good morning, everybody. Are there any changes to appearances?

PN2

MR D CHIN: No, your Honour. My name is Chin, initial D. I would respectfully seek permission to appear for Ms Wyborn, the applicant in one of the scope order applications. I understand your Honour has received a brief written submission on the issue of permission to appear.

PN3

THE DEPUTY PRESIDENT: Do you wish to address the grounds in 596 for me briefly?

PN4

MR CHIN: Yes, your Honour. In my submission the Commission will grant permission. This matter has inherent in it some deal of complexity both factually and at law. One of the issues with which your Honour will have to deal is the test applied under section 238 of the act and, in particular, 238(4)(b) – namely, the order for which we contend and, indeed, Mr Wilson’s application, will promote fair and efficient conduct of bargaining. As your Honour’s aware, there is some conflict in the authorities as to the content of that test, so that there is some legal complexity involved in that issue. Your Honour will have to apply a test, although our ultimate submission will be that on whatever view we should succeed. That is one aspect of the application which would justify permission, in my submission.

PN5

The other considerations would be that the respondent to both applications is represented by counsel, Ms Robinson, and there’s no disadvantage to any party. I understand Mr Wilson’s position as a solicitor representing, in effect, himself as applicant for his scope order has a neutral position as to whether permission ought be granted. We rely on the brief written outline in other respects.

PN6

THE DEPUTY PRESIDENT: Thank you, Mr Chin. Mr Wilson, do you wish to say anything?

PN7

MR WILSON: Your Honour, I respectfully leave it to you to apply section 596. The parties are who they are. The two bargaining representatives are both who they are and what they are. The respondent is the Territory and, therefore, there’s a distinction there. But I leave it to you.

PN8

THE DEPUTY PRESIDENT: Thank you. Ms Robinson, do you have any objections?

PN9

MS ROBINSON: The respondent has no view on the application, your Honour.

PN10

THE DEPUTY PRESIDENT: Thank you, Ms Robinson.

PN11

I’m going to grant permission, Mr Chin.

PN12

MR CHIN: Thank you, your Honour, I’m grateful.

PN13

THE DEPUTY PRESIDENT: I think it will be of assistance to the commission in the hearing of the matter so we’ll proceed on that basis. Clearly there are a number of witnesses. Have the parties had any conversations around the batting order for the witnesses today?

PN14

MR CHIN: Your Honour, as to that housekeeping matter, there is an issue as between Mr Wilson and I. My application would be that the proceedings commence with the witnesses concerning Ms Wyborn’s application and then to proceed to Mr Wilson’s witness. I think that is only Dr Elsaleh. We have three witnesses who are required for cross-examination: Drs Avard, Oerder and Tse. The reason I make that application is this: the scope for which I contend is broader than the scope for which Mr Wilson contends. Mr Wilson’s cohort is effectively a subset of the class of employee for which we seek should be excluded from the agreement. As a result, the issues arising in the contest between ACT Health and Ms Wyborn will apply to a significant degree to the order sought by Mr Wilson – that is, a contest involving a distinction between senior medical practitioners on one hand and junior medical officers on the other.

PN15

Mr Wilson has a further distinction to overcome – that is, a distinction between a particular craft group, so a senior medical practitioner. So the issues that arise in the course of our evidence so far as the main distinction is concerned will be relevant and ought to be dealt with first. Mr Wilson, I think, says, “Well, they filed their application first or raised the issue first.” That’s as it is, but in terms of an efficient conduct of proceedings, my application is that we wish to go first.

PN16

THE DEPUTY PRESIDENT: Mr Wilson.

PN17

MR WILSON: As Mr Chin foreshadowed, my application is the opposite of that. Yes, we were first in time, but I accept it’s not a race. Our scope is actually broader, in my conception, than Ms Wyborn’s, because we say that the scope of the agreement should be everybody – that is, every medical practitioner employed by the ACT, except for us. We say, as you would perhaps know if you’ve read my written submissions, our application should be determined first. I’m not saying today, but I’m saying in the order of your determination because if my application is successful, you’ll have to turn your mind as to whether the scope should be further reduced.

PN18

I have one witness. He has prepared two witness statements. I anticipate at least in terms of leading evidence from him it would be very short. I can’t speak for the other representatives. I think we should go first.

PN19

THE DEPUTY PRESIDENT: Ms Robinson, do you have any views?

PN20

MS ROBINSON: Your Honour, we take no view on this. We would see some truth in what Mr Wilson is saying – that the scopes being sought today are two quite different scopes. One is for a group of radiation oncologists who, to put things bluntly, those who contribute to a private practice sub-fund on one hand, and the second is a step between the junior and the senior doctors. The territory has to answer both cases. Ultimately from our perspective which of those makes their claim first is not particularly relevant to us.

PN21

THE DEPUTY PRESIDENT: Thank you. In terms of the order, we’ll go with Dr Wilson first and then we’ll go with your witnesses, Mr Chin, so we’ll proceed on that basis. I presume we’ll go straight to witness evidence? People don’t wish to make any opening remarks?

PN22

MR CHIN: I just had some brief remarks to tell your Honour a little bit about our application and to update your Honour on some recent events. May I do so, notwithstanding Mr Elsaleh will be called first?

PN23

THE DEPUTY PRESIDENT: Sure.

PN24

MR CHIN: Thank you, your Honour. Your Honour will see from the papers that Ms Wyborn, for whom I appear, is a bargaining agent appointed by, and the evidence will show, 31 senior medical practitioners. We’ve had additional appointments only yesterday and I think one this morning. An additional seven senior practitioners from Calvary hospital. The existing cohort were from Canberra Hospital. The additional employees for whom Ms Wyborn represents are in the emergency and the ICU departments at Calvary.

PN25

Can I hand up to your Honour a list of the additional doctors whom we represent. Attached to it are the copies of the written appointments.

PN26

THE DEPUTY PRESIDENT: I take it you don’t wish to tender these?

PN27

MR CHIN: It’s not necessary. As I apprehend, Ms Wyborn’s credentials as a bargaining agent are not at issue. The proposition that we have now 38, I think, appointing Ms Wyborn, if that could be accepted as uncontroversial, we don’t need to tender it.

PN28

THE DEPUTY PRESIDENT: Mr Wilson, Ms Robinson, any objections? We’ll proceed on that basis.

PN29

MR CHIN: Yes, your Honour. I’m sorry to burden your Honour with this, but to allow your Honour to better understand our case ‑ ‑ ‑

PN30

THE DEPUTY PRESIDENT: Brevity is good.

PN31

MR CHIN: Appearances can be deceiving. We’ve organised two volumes of all of our evidence, including our written submissions in the interests of brevity. That might sound paradoxical, but, nonetheless, there it is. Can I hand to your Honour, for ease of access, all of the evidence filed by Ms Wyborn.

PN32

THE DEPUTY PRESIDENT: Thank you.

PN33

MR CHIN: They are in two volumes. The first volume contains the written submissions and some statements. We have six witnesses, your Honour, four of whom have filed two statements, so an original statement and then one supplementary essentially in reply to the material filed by the ACT Health late last week. We’ve had a limited amount of time to respond, but in order to shorten the proceedings, we’ve reduced what we have to say in reply in writing and they’re contained in the folders.

PN34

Your Honour, Ms Wyborn seeks a scope order sought in relation to the proposed ACT Public Sector Medical Practitioners Enterprise Agreement. The order sought is that employees who will be covered by this proposed enterprise agreement shall comprise all employees currently proposed to be covered excluding senior medical practitioners.

PN35

In particular, I can illustrate particularly what categories of employees are sought to be excluded. Can I ask your Honour to take up volume 2 briefly. Under tab 3, the supplementary witness statement of Ms Wyborn, each page is paginated, your Honour. Annexure A to the statement contains the proposed agreement. Can I ask your Honour to turn to page 476, the number at the bottom of each page. Page 476 is part of annexure A and contains the classification of employees that are to be covered by the award. Does your Honour have that?

PN36

THE DEPUTY PRESIDENT: I do.

PN37

MR CHIN: Your Honour will see the last box in the table identifying specialists bands 1 to 5. Over the page, the first row, senior specialist. Those are the categories of employees, senior doctors, whom we say should be excluded from the agreement and only those categories. The agreement at page 502 defines “Senior medical practitioner” to include those two categories but also the category of postgraduate fellow. Your Honour will see there in the classification there’s another separate classification for post-graduate fellow. We do not include that category in the cohort for which we seek exclusion. They are like junior medical officers, largely on fixed-term contracts of 12 months; they’re not generally permanent employees like staff specialists. They have some but less supervisory duties than senior medical specialists. They’ve completed their medical training but they’re usually comprised of people on an extra year of specialist training before they become accredited under the respective professional colleges.

PN38

That is the cohort that we seek to be excluded. Your Honour, the scope orders may require an employer to exclude a class of employees from a bargaining agreement as well as include. That is what we seek by Ms Wyborn’s application. In order to shorten the proceedings, at least with respect to our application, can I tell your Honour what your Honour doesn’t have to decide. By reference to section 238, there are a number of criteria or requirements regarding effectively the standing of a bargaining agent to apply for an order. As I apprehend it, your Honour, none of those requirements are at issue, so that your Honour can leave to one side issues such as the proposition, firstly, that Ms Wyborn is a bargaining agent of employees that will be covered by the proposed enterprise agreement. There’s no issue as to that as we apprehend. Secondly, by reference to 238(1)(a), the proposition that Ms Wyborn has concerns that the bargaining is not proceedings efficiently or fairly is not disputed as I apprehend it.

PN39

ACT Health doesn’t dispute that Ms Wyborn has given the requisite notice of her relevant concerns that are referred to in 238(3). And your Honour will see from that notice – I won’t trouble your Honour with it yet – but it’s clear from Ms Wyborn’s notice that she has the concern, firstly, that there is a stalemate in bargaining between ACT Health and senior medical practitioners; secondly, the stalemate is resulting in junior medical officers being denied agreed pay rises because of intractable points of difference that are unique to senior practitioners; thirdly, that the stalemate is resulting in a lack of attention focused on resolving outstanding issues that are uniquely of concern to senior medical practitioners and of no real concern to junior medical officers.

PN40

Your Honour, that’s the key – at least an important part of our case. We say the scope order for which we contend will do two things at least: firstly, it will disentangle junior medical officers from a dispute which does not concern them and it will allow junior medical officer benefits under the enterprise agreement to proceed. That is a concern of the cohort of senior doctors represented by Ms Wyborn. The second proposition is that the scope order will provide senior practitioners with a proper and fair opportunity to pursue interests that are unique to them.

PN41

Just briefly, your Honour, as I said, the written notice is no issue 238(3)(a). Section 238(3)(b), Ms Wyborn having given relevant bargaining representatives a reasonable time to respond, there’s no issue with that, as I apprehend it. Section 238(3)(c), Ms Wyborn considers that the relevant bargaining representatives have not responded appropriately. As I apprehend it although as a matter of fact it’s not conceded by ACT Health, there’s no issue with the proposition that Ms Wyborn has that relevant subjective concern, and that’s the relevant jurisdictional fact, if you like, or at least a requirement for bringing the application.

PN42

A further issue which your Honour doesn’t have to pay much attention to is the requirement in 238(4)(a) that the applicant, Ms Wyborn, has met the good faith bargaining requirements. That’s been conceded, as I understand it, by ACT Health, so there’s no issue at least with that aspect of the discretionary grounds. I’m going from the standing requirements to the discretionary grounds. All of those issues that I’ve addressed appear, in my submission, to be a matter not at issue.

PN43

What is at issue are the three remaining discretionary grounds, your Honour. The first is the question whether the order we seek will promote fair and efficient conduct of bargaining; secondly, whether the inclusion of junior medical officers excluding senior medical practitioners is fairly chosen and senior medical practitioners are operationally and organisationally distinct from junior medical officers and vice versa. That’s the second controversial point. The third is whether the application should be granted as sought as reasonable in all the circumstances. Those matters will be the focus of you are evidence and our cross-examination. We, of course, also oppose the scope orders sought by Mr Wilson.

PN44

Finally, your Honour, returning to the proposed agreement once again, just for your Honour’s edification, we have prepared a schedule of clauses in the proposed agreement that we say deal exclusively or at least primarily but largely exclusively only with the interests of senior medical practitioners so that your Honour can see a clear delineation between the regulation as it appears in the present proposed agreement between the two groups between which we seek to make an important distinction. If I can hand that schedule up. It’s really to function as an aide memoir for the Commission. I’ll take no further time in opening, your Honour. May it please the Commission.

PN45

THE DEPUTY PRESIDENT: Thank you, Mr Chin. Ms Robinson, do you wish to say anything by way of opening remarks?

PN46

MS ROBINSON: I’ve taken under advisement that brevity is good. I’ll just make a couple of quick very opening remarks. ACT Health agrees with the approach taken by Mr Chin. There are effectively three issues today. They are there three discretionary issues – that is, whether the group has been fairly chosen that will be the subject of the scope order, and we say you would need to look at both the group who is being included – the junior medical officers – and the group that is being excluded – the senior medical officers, and the result that comes from including both those groups in that case.

PN47

The second is whether the bargaining – this will promote the fair and efficient conduct of the bargaining. Your Honour is well aware of the history of this matter and, in our submission, the fact that his agreement would be in place but for an 8-hour miscalculation about the consideration period. That is but one of the reasons, however, that we say a scope order at this late stage in the process is unlikely to enhance the fair and efficient conduct of bargaining. Additionally, the third consideration is the reasonableness of the application and whether it is reasonable to effectively reopen the bargaining to the process.

PN48

Just in terms of some opening comments that I would have made given lengthy opening statements, but I think it’s important to put forward at the beginning, evidence has been provided by Mr Nought(?), and that statement will be tendered about the structure of the bargaining process. A lot of reference will probably be made to this structure, so if you just indulge me for a couple of minutes to set out how bargaining works in the ACT.

PN49

The Territory has a workforce of 22,000 people. It’s a very broad workforce, everything from general services officers who sweep the streets and collect the garbage through to the senior medical officers on several hundred thousand a year. The way the enterprise agreement bargaining process works is we have a core agreement that is negotiated through Chief Minister’s department, and Mr Nought is the lead negotiator in that process. That sets a core of terms and conditions that are then adapted throughout the different enterprise agreements.

PN50

The core is not necessarily adapted wholesale in every agreement; there might be some changes. But to the extents that provisions in that core are relevant to a particular agreement, they are adapted and incorporated into that particular agreement. Then parallel or perhaps slightly after the core negotiation process, there is a negotiation process for individual occupation streams – in this case, the medical agreement. As this matter unfolds, when I refer to the core agreement, that is the base template that has been negotiated by the Chief Minister’s department and the occupational stream, the medical agreement, is the agreement being negotiated by ACT Health. Thank you.

PN51

THE DEPUTY PRESIDENT: Thank you, Ms Robinson. Mr Wilson do you wish to make any remarks?

PN52

MR WILSON: Your Honour, I think that in relation to what’s at issue today, Mr Chin has told you, and Ms Robinson confirmed, it can be simply stated that all that is at issue is paragraphs (b), (c) and, (d) of subsection (4) of section 238. I don’t propose to provide further address on the matter given what we have lodged. I would call, with your permission, your Honour, Dr Hany Elsaleh.

PN53

THE DEPUTY PRESIDENT: I ask other witnesses that will be called later to leave the room.

PN54

UNIDENTIFIED SPEAKER: Would you state your full name and address please?

PN55

THE WITNESS: Hany Elsaleh (address supplied).

<HANY ELSALEH, SWORN [10.39 AM]

EXAMINATION-IN-CHIEF BY MR WILSON [10.39 AM]

PN56

MR WILSON: Dr Elsaleh, you have made a written statement in this matter of 27 February 2015?‑‑‑Yes.

PN57

Do you have that with you today, a copy of that with you today?‑‑‑Yes.

PN58

Thank you. Yesterday, 10 March 2015, you made a further written statement, is that correct?‑‑‑That is correct.

PN59

Do you have that in front of you today?‑‑‑Yes.

PN60

Your Honour, I seek to tender both those statements into evidence.

PN61

THE DEPUTY PRESIDENT: The first witness statement I’ll mark as exhibit W1, that is the witness statement stated 27 February comprised of 106 paragraphs and 482 pages of supporting material.

EXHIBIT #W1 WITNESS STATEMENT OF HANY ELSALEH DATED 27/02/2015

*** HANY ELSALEH XN MR WILSON

PN62

THE DEPUTY PRESIDENT: I’ll mark the supplementary witness statement, which is dated 10 March, as exhibit W2. That is comprised of 18 paragraphs.

EXHIBIT #W2 SUPPLEMENTARY WITNESS STATEMENT OF HANY ELSALEH DATED 10/03/2015

PN63

MR WILSON: For completeness, your Honour, the supporting documents which you’ll find in a folder we provided at the request of your associate contains some material that may not be referred to in Dr Elsaleh’s statements. However, we would seek to simply refer to it if necessary during examination of other witnesses or in submissions. I don’t know how you wish to deal with that.

PN64

THE DEPUTY PRESIDENT: I’ll just treat it as a bundle and to the extent it’s referred to, if we’re going to go through a process where it’s going to be referred to, while Dr Elsaleh will be here for most of the morning, so
just ‑ ‑ ‑

PN65

MR WILSON: Very well, your Honour. As the Commission pleases. Your Honour, that’s the evidence-in-chief.

PN66

THE DEPUTY PRESIDENT: Ms Robinson.

CROSS-EXAMINATION BY MS ROBINSON [10.42 AM]

PN67

MS ROBINSON: Dr Elsaleh, I want to start off by asking you some questions about the radio oncology unit and the right of private practice at the Canberra Hospital. I’m not a doctor or a medical trainee, so I’m going to have to use a lot of lay terms, but is it correct to say that, as a radio oncologist, you’re effectively treating patients who have been diagnosed with cancer and that the role of the specialist or the senior specialist in that situation is to examine the patient and develop a treatment plan for that patient that involves radiation therapy?‑‑‑That’s correct.

PN68

When a patient comes in, the patient has already been diagnosed with cancer?‑‑‑Not all the time, but most of the time.

PN69

When that patient comes in, the patient may be referred through to radiation oncology or the patient may be referred by name to a particular oncologist?‑‑‑That’s correct.

PN70

If the patient is referred simply to the Canberra Hospital, that patient comes in as a public patient, is that correct?‑‑‑That’s correct, yes.

*** HANY ELSALEH XXN MS ROBINSON

PN71

And if the patient is referred by name to a particular oncologist, for example, Dr Elsaleh, then that patient can be treated as a private patient – and we’ll get to the meaning of that – of that oncologist?‑‑‑The majority of patients are treated as private patients because they do have referrals to named specialists.

PN72

In terms of what happens when a patient is referred by name to a particular oncologist, presumably that oncologist then meets with that patient?‑‑‑Yes.

PN73

And develops the treatment plan for that patient?‑‑‑Yes.

PN74

Radiation therapy is only one of a number of treatments for cancer, is that correct?‑‑‑That’s correct.

PN75

So you’d have, perhaps, chemotherapy?‑‑‑Yes.

PN76

Surgery?‑‑‑Yes.

PN77

Let’s take a patient with breast cancer, for example. It’s possible that that patient may be referred to radiation oncology for radiation treatment and may also be referred, for example, to a surgeon for surgery?‑‑‑Yes.

PN78

And I think it might be medical oncology, but I could be wrong about that, for chemotherapy?‑‑‑Yes.

PN79

So it would take a holistic approach to the management of that cancer patient?‑‑‑Correct.

PN80

Am I correct that radiation oncology sits within a unit of three or four different divisions of the hospital with a particular focus on the provision of cancer treatment?‑‑‑They do.

PN81

You as the clinical director report to the executive director of cancer?‑‑‑I’m actually the director of radiation oncology, not just the clinical director. That was what my appointment was.

PN82

As director of radiation oncology, you report – in an administrative sense, not in a medical sense – to the executive director of cancer for the hospital?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN83

You’re part of one of four directors, medical directors, within that particular unit of the hospital?‑‑‑Actually, I’m the director, not just a medical director. My appointment was as the director, not a medical director per se.

PN84

Very well?‑‑‑Whereas the other three are medical directors, which is different.

PN85

Nonetheless, for the most part, in terms of the management of the unit, you’re part of one of four directors who oversee cancer treatment in the ACT?‑‑‑Sure.

PN86

You report to the Executive Director, Cancer, she – I think it’s Denise Lamb?‑‑‑Correct.

PN87

She has strategic management of the cancer part of the hospital?‑‑‑I think our department predominantly has the strategic managerial responsibilities for the department.

PN88

We’ve got a private patient who’s come in, has been referred to you, for example?‑‑‑Yes.

PN89

That private patient is going to be given the same kind of treatment as a public patient, is that correct?‑‑‑Correct.

PN90

The significant difference is we have a patient who’s referred to you personally, as through your previous part of your private practice, the billing for that patient is handled in a different way?‑‑‑Well, if a public patient is treated, such as an inpatient, there is no billing.

PN91

Would it be correct to say the Commonwealth effectively provides funds to treat public patients in public hospitals as general funding for hospitals?‑‑‑Correct.

PN92

Then in terms of those patients who are treated under right of private practice, the billing in relation to that particular incidence comes through Medicare?‑‑‑Correct.

PN93

So you raise a particular invoice for that particular incidence of treatment and send the advice to Medicare?‑‑‑Correct.

PN94

The funding that comes through that, that is the funding that makes its way into the radiation oncology sub-fund?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN95

With the facility fee – that currently is 20 per cent – deducted?‑‑‑Yes.

PN96

And it’s from that that radiation oncology sub-fund that, first of all, your bonuses are taken out for the staff members of radiation oncology?‑‑‑Yes.

PN97

And then the remainder is dealt with in accordance with I think you refer to it as a trust fund?‑‑‑Correct.

PN98

And that’s what goes to your research?‑‑‑And other things as well.

PN99

The right of private practice effectively involves a medical practitioner with that right of private practice with that Medicare billing number being able to treat a patient using public hospital facilities, so you consult with the patient in your rooms at radiation oncology?‑‑‑Yes.

PN100

That consultation takes place during working hours at radiation oncology?‑‑‑Yes.

PN101

The patient waits in the public waiting room with public patients?‑‑‑Correct.

PN102

The administrative staff, radiation oncology handle the administrative matters in relation to that patient in the same way they would a public patient?‑‑‑Correct.

PN103

So the only difference effectively is how we are billing that patient?‑‑‑Yes.

PN104

I should say, you’re indemnified by ACT Health for work that’s undertaken both for public patients and private patients?‑‑‑But we also have our own – most of us have our own indemnity insurance over and above the ACT Health’s indemnity insurance.

PN105

You give some evidence in your statement of yesterday. As a radiation oncologist you develop the treatment plan, as we discussed, and that treatment plan will involve incidences of radiation treatment?‑‑‑Correct.

PN106

It may be two weeks, three weeks, something along those lines?‑‑‑Yes.

*** HANY ELSALEH XXN MS ROBINSON

PN107

So a patient will come in for their radiation treatment. Who will be giving the actual treatment?‑‑‑The therapists deliver the radiation treatment, but it’s reviewed daily by the radiation oncologists because there are image verification performed. So we will review those images. If the images are not on target, basically, we will institute a change in the treatment. So there’s that element. There’s also the element that we have to also review patients on treatment while they’re actually on the machine, because the positioning might be inaccurate. On top of that, we will have to do quality assurance audits on the patients throughout pretty much their treatment as well as reviewing the patients during treatment for side effects. So we work together as a team.

PN108

Yes, that’s correct?‑‑‑But the reality is that we’re not just providing a consultative service; we actually are involved in the care of the patient throughout the entire treatment journey.

PN109

I should say, there’s no dispute that the intellectual involvement of a senior specialist is significant?‑‑‑It’s not just intellectual; there’s a lot of man hours devoted to that process, and it can be upwards of – I mean, for some patients it can be upwards of 25 to 30 hours per patient. Most of us have 20 to 30 patients on treatment at any one time. So it’s quite an enormous amount of work.

PN110

I’ll come back to the work load. Again, there’s no suggestion that anyone’s not pulling their weight in radio oncology. I just want to get an idea of how this private billing works. It’s correct that every incidence of treatment attracts a different fee from Medicare, or a separate fee from Medicare, is that correct?‑‑‑Most do, yes.

PN111

When a patient comes in for their radiation treatment, for example, an invoice will be raised for each of those treatments. Is it a radiation oncologist or by a nurse, I’m not sure?‑‑‑No, it’s by a radiation oncologist, because the therapists and the nurses don’t have provider numbers, so they can’t bill. All the billing is done under the provider numbers of the radiation oncologists.

PN112

Sorry, I’ll rephrase that question. The way I should look at it is that each of those incidences of treatment, the actual provision of the radiation therapy, obviously it’s done under the supervision of a senior specialist, but it’s actually done by a radiation therapist engaged within radiation oncology?‑‑‑Correct.

PN113

Unfortunately, I don’t have a copy of this document. It was provided to me this morning, but I’d like to show you, Dr Elsaleh.

PN114

THE DEPUTY PRESIDENT: Do you wish to tender the document?

*** HANY ELSALEH XXN MS ROBINSON

PN115

MS ROBINSON: Yes.

PN116

THE DEPUTY PRESIDENT: I’ll mark this as exhibit R1.

EXHIBIT #R1 DOCUMENT

PN117

MS ROBINSON: Thank you?‑‑‑This basically describes the therapeutic aspects of the treatment as well as the planning aspects. The initial entry is the CT that’s performed on the patient as part of formulating the plan. The radiation oncologist and the therapists will in most instances be in attendance at that point. Then the next entry on the first sheet dated the 17th of the 4th shows that’s a 3D formal plan that is performed. That, again, as I’ve said in my witness statement, can involve a considerable amount of time for the radiation oncologist in determining what crucial structures we’re going to be avoiding, what structures we will be treating. Then we will go through a number of scenarios to determine whether the treatment is actually a safe treatment and a viable treatment. Then the patient will undergo a generally daily treatments and they will have verification images which will be viewed on a daily basis by the radiation oncologists as well as seeing the patients on setup during the course of treatment. You haven’t – as you can see in here, there are non-billable items, such as patient reviews by the doctors during treatment, and they don’t attract a facility fee. That’s essentially what this document describes. It also shows the number of fields that perhaps a patient will have on a daily basis and the item number that that attracts.

PN118

Each of those x-ray therapy sessions, that would be conducted by therapists, obviously under supervision by a senior specialist?‑‑‑Sure, yes.

PN119

And the “Add all fields”?‑‑‑With that, there’s usually a higher item number for the first field and then subsequent fields don’t attract as high an item or higher rebate. There are maximums in terms of how many fields you can bill for per patient.

PN120

When it says “Radio oncologist treatment verification”, are each of those verifications conducted by a specialist or a senior specialist?‑‑‑Yes.

PN121

So you wasn’t have senior registrars, for example, undertaking verifications?‑‑‑No. All of our verification images are done by specialists with provider numbers. So your registrars don’t have access to login and actually verify those images. We don’t do that. Maybe some other centres do, but we don’t.

PN122

In your statement of yesterday you state that you regularly work in excess of 60 hours a week?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN123

And that you know that many of your colleagues work in excess of 60 hours a week?‑‑‑Correct.

PN124

I want to preface this question with - I want to make it clear that we’re not suggesting that anyone’s not pulling their weight or doing an appropriate amount of work, but allegations have been made in relation to working hours and the performance plans, and we need to explore that?‑‑‑Sure.

PN125

How many radiation oncologists work full time?‑‑‑I think five, counting myself, but my clinical FTE is 0.5. But in terms of full-time subspecialists, at the moment there’s an allocation of – actually I think the allocation for full-time staff specialists is six, and two are allocated 0.6.

PN126

Of those specialists who work full time, how many work five days a week?‑‑‑Well, as it stands, three would be working five days a week.

PN127

How many of those specialists work five days a week at the Canberra Hospital?‑‑‑Sorry?

PN128

How many are working five days a week at the Canberra Hospital?‑‑‑Are you saying today? Because we’ve got staff that are on maternity leave that were working five days a week, but they’re on maternity leave now. So they won’t come up in your figures, but when they come back, they might be working part time because they’ve got parental obligations.

PN129

Set aside the maternity leave position. How many doctors?‑‑‑Of the full-timers?

PN130

Work five days a week at the Canberra Hospital?‑‑‑Three or four.

PN131

Dr Elsaleh, I suggest that only Dr Sunderland works five days a week at the Canberra Hospital?‑‑‑Actually, that’s incorrect. He doesn’t. He works four days a week.

PN132

He works four days a week?‑‑‑Yes.

PN133

As I understand it, you and Dr Nguyen work four days a week?‑‑‑No, Dr Nguyen actually has been up till just very recently working five days a week.

PN134

And Dr Austin does private practice one day a week, is that correct?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN135

But otherwise works four days a week?‑‑‑Correct.

PN136

I understand that your working hours are flexible?‑‑‑Correct.

PN137

And an arrangement has been made where you work different hours every second week?‑‑‑Correct.

PN138

So the first week we’re talking about Monday, 9 till 7; Tuesday, 8 till 7; Wednesday, 8 till 7; and Thursday 7 till 3, to allow you time to get to the airport and take a plane back to Melbourne?‑‑‑That actually hasn’t happened yet. I still work five days one week, three to four days the other week, and I also work on Fridays from home. I’ve got an accurate log of my hours over the last year, and the average hours are 65 hours a week. I know that Dr Nguyen will work with me, because at times I will be dropping him home. We will be leaving the department at 8 or sometimes 9 o’clock at night. That’s not because we’re workaholics or we’re hungry for anything; we’re just trying to make sure we complete our planning duties and our work in the department.

PN139

Dr Elsaleh, isn’t it the case that your executive director, Denise Lamb, has asked you on numerous occasions to provide a log of your working hours and evidence of those works hours and that you haven’t done so?‑‑‑No, I have actually. I’ve got a three-month log that I provided to herself, and also Frank Bowden in January of 2014. It was in an Excel spreadsheet. It clearly listed the hours that I was working over a three-month period. I don’t know what more – there hasn’t been really too much discussion beyond that time.

PN140

Perhaps this is the log of hours that you provided?‑‑‑That look like it. Is it an Excel spreadsheet?

PN141

It is an Excel spreadsheet?‑‑‑So I did provide the hours to Denise Lamb.

PN142

That is from January?‑‑‑Correct.

PN143

My understanding is that Denise Lamb has asked you on several occasions since this year to provide a log of working hours?‑‑‑No, absolutely not correct. I’d like to know when that was made, because this is the only time I’ve been asked to provide hours.

*** HANY ELSALEH XXN MS ROBINSON

PN144

THE DEPUTY PRESIDENT: Can I ask, Ms Robinson, where does this go in terms of the issues that I need to determine?

PN145

MS ROBINSON: An assertion has been made, your Honour, that various aspects of the package that has been offered to radiation oncologists has been could compensate them for excessive hours worked. Now, our submission is that there are no excessive hours. That’s not to suggest, as I say, that they’re not working hard; everyone agrees that they’re working hard. But allegations like a 60-hour week working time is just we say not justified and no evidence has been provided for that.

PN146

THE DEPUTY PRESIDENT: Try and get to the point that you’re making – bear with me, Mr Wilson, I’ll give you a chance in a moment – but in terms of scope, the issues of hours of work and some other issues that are canvassed in Dr Elsaleh’s initial statement go more to what might be the content of an agreement. Issues of bargaining as opposed to matters related to scope. It’s not disputed from the Bar table in terms of the three issues that the Commission needs to determine being around those matters set out at section 238(4)(b), (c) and (d). I understand the point you’re making, but it really strikes me as being something more related to what might be the subject matter of an agreement as opposed to the issue of the scope itself, which is what these applications are about.

PN147

MS ROBINSON: Thank you. I’ve made my point, anyway.

PN148

THE DEPUTY PRESIDENT: Thank you. Mr Wilson?

PN149

MR WILSON: No, thank you.

PN150

MS ROBINSON: Dr Elsaleh, coming back to the radiation oncology sub-fund, as we established before, the moneys in that fund come from the Commonwealth through the private practice business?‑‑‑Correct.

PN151

So the moneys are moneys that effectively flow through to ACT Health. No doubt they’re put in that sub-fund, but they are moneys that you’ve earned – moneys that have been billed from your employment from patients you’ve seen in the course of your employment for ACT Health?‑‑‑From our activity, yes.

PN152

That’s right. When you’re talking about rights of private practice, it’s not a right whereby you are seeing a patient in an entirely private capacity. You’re not seeing that patient in your private rooms, for example?‑‑‑Yes, it’s a universal application to encourage staff specialists – or to encourage specialists to generate revenue within the context of a public hospital system. It applies not just to us; it applies to pretty much most staff specialists in Australia.

*** HANY ELSALEH XXN MS ROBINSON

PN153

That’s correct. The method varies from state to state, but there is a mechanism in place to effectively bill private patients?‑‑‑Correct.

PN154

And bring additional source of revenue into the
hospital?‑‑‑Correct.

PN155

THE DEPUTY PRESIDENT: With a number of specialists that might treat private patients in hospital, is there capacity for the treating specialist to charge above the Medicare ‑ ‑ ‑?‑‑‑Absolutely.

PN156

In terms of those funds, do they go into the radiation oncology fund or they go directly to the specialist?‑‑‑It depends on the relationship that the specialist has with the hospital. They might be a visiting medical officer, so there’s different arrangements that are made.

PN157

Let’s put it in the context of ‑ ‑ ‑?‑‑‑But they can bill beyond.

PN158

In the context of the matters that are before the Commission and the issue of senior medical practitioners and radiation oncologists, if you charged above the Medicare scheduled fee, what I’ve taken from the evidence thus far is that reimbursement from Medicare goes directly into the fund. That premium, if I describe it that way, is that something that goes directly to the specialist or, in this case, does it go into the fund as well?‑‑‑Not in our instance. We don’t charge above the Medicare fee. Our billings are processed by ACT Health and are distributed as they’re described in my witness statement.

PN159

MS ROBINSON: Dr Elsaleh, in the context of the fund as set up, or the private practice rights as set up by ACT Health, it’s correct that you can’t charge a premium in relation to private patients?‑‑‑Correct, yes. It was set up in consultation, so it was a collaborative arrangement made between ACT Health and the radiation oncologists in the drawing up and the terms and conditions of the fund.

PN160

You were approached, I think it says in your statement, to become the director of radiation oncology when you are a resident in the United States?‑‑‑Yes, I was on faculty at UCLA.

PN161

Some extensive negotiations ensued after that?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN162

Those negotiations included a reduction of the facility fee from 50 per cent?‑‑‑Forty per cent.

PN163

Down to 20 per cent?‑‑‑Correct.

PN164

Would you agree that the purpose of that reduction was to give you, at your request, greater administrative control over the radiation oncology unit?‑‑‑I felt that the facility fee was too high. It didn’t reflect what was being charged in other jurisdictions, so I felt that it should be 20 per cent, and it was agreed that it was going to be 20 per cent.

PN165

But that agreement was not an arbitrary decision by Health to simply reduce the facility fee. A catch to that was a recognition that there would be a greater degree of administrative control of the radiation oncology that could use that additional moneys, the radiation oncology sub-fund, to do training, for example, in radiation oncology?‑‑‑That’s what I hoped to achieve, but that wasn’t specifically discussed as you say.

PN166

Another arrangement, another part of the agreement to reduce the facility fee was a consequence of those negotiations between Mark Cormat(?) and Robin Stewart‑Howse(?) and yourself?‑‑‑That’s correct. As a condition of me accepting employment.

PN167

So what we’re really talking about in terms of the radiation oncology sub-fund is who has control of the public moneys that are making their way into the radiation oncology sub-fund by virtue of private billings?‑‑‑It seems a little bit conflicted in what you’ve said. You’ve said public moneys from private billings. That doesn’t make sense to me. Do you want to explain that?

PN168

Let me rephrase that. The term “private practice” is a right to effectively bill a patient that you see in the course of your employment or working at the public hospital, that patient that’s been referred directly to you?‑‑‑Correct.

PN169

You treat that patient no differently than any patient who would have been admitted as a private patient?‑‑‑Certainly.

PN170

Once that patient has been seen, initially by yourself or another radiation oncologist, that patient will be treated on the same facilities as any other public patient?‑‑‑Correct.

PN171

The patient will be given treatment by radiation therapists engaged by ACT Health?‑‑‑Correct.

*** HANY ELSALEH XXN MS ROBINSON

PN172

Using ACT Health facilities?‑‑‑Correct, but the facilities that were provided predominantly with – well, the actual equipment was provided with Commonwealth money raised from HPG funding, which is attached to the billings of radiation oncologists.

PN173

I’ll get to that. When the patient has been seen, an invoice is raised and the Commonwealth pays that bill?‑‑‑Correct.

PN174

Those moneys are then deposited in the radiation oncology sub-fund?‑‑‑After the distributions have been made, yes.

PN175

So, it is the remaining moneys in that radiation oncology sub-fund that are in issue today?‑‑‑Yes. I think what you’re describing is what happens throughout the entire hospital for the main fund as well.

PN176

Yes, that’s how the private practice main fund works?‑‑‑Yes.

PN177

But, it’s correct that the main fund are the billings, for lack of a better word, of the other medical practitioners?‑‑‑Sure.

PN178

So what we’re talking about today is who has effectively management control over those residual funds in the radiation oncology sub-fund?‑‑‑Correct.

PN179

Thank you. Additionally, you mentioned the HPG funding, the Commonwealth funding. That goes towards the MIMAT(?) issue?‑‑‑That’s specifically to be used for the purchase of radio therapy equipment.

PN180

That payment is made to the Canberra Hospital of the Australian Capital Territory, isn’t it?‑‑‑That’s correct.

PN181

It’s not made to radiation oncology?‑‑‑No, but I have delegation over that fund.

PN182

The amount of funding that is given for these machines – as I understand it, the purpose of the funding is to replace ageing machines?‑‑‑Correct.

PN183

So they reviewed a framing against the billings sent to the Commonwealth?‑‑‑Yes.

*** HANY ELSALEH XXN MS ROBINSON

PN184

And presumably because the billings represent some objective measure of the use of the machines?‑‑‑Sure.

PN185

So if the billings were increased – for example, you had a lot more patients come through – then the Commonwealth would reassess that funding?‑‑‑What would happen is the HPG accrual would be greater, but the more patients you put through a machine, the greater the wear and tear on the machine, the shorter the life expectancy of the machine. So it’s kind of a neat way of tagging activity and life expectancy of a machine to ensure that the machines can be replaced. But the funds come from the Commonwealth; they don’t come from the state.

PN186

In your evidence you state that one of the reasons that you’re in a different situation to other specialists is because of that funding, for example, that is provided and the cost of these MIMAT machines, you say it’s not possible for a medical specialist to set up a private
radiation ‑ ‑ ‑?‑‑‑It would be difficult, but also the Commonwealth geographically restricts the allocation of licences. Those licences enable MBS billing, or Medicare billing, plus also HPG accrual. So that is also a clever way of preventing an oversupply of machines, but also for radio oncologists in Canberra it restricts us to just one site.

PN187

Have you ever made inquiries as to whether it would be possible, for example, to set up a private radiation oncology unit?‑‑‑I think at a time when we are dealing with growth and we had capacity to deal with growth, which we still do, then, no, I haven’t. I don’t see any sort of requirement at this stage. But if we did go forward, we would have significant capital investment. Usually that would be in partnership with government, because the arrangements that generally do transpire require participation of both public and private partnerships.

PN188

Has ACT Health ever indicated to you that it would be adverse to a public-private partnership?‑‑‑Not necessarily, no.

PN189

I have no further questions.

PN190

THE DEPUTY PRESIDENT: Mr Chin.

CROSS-EXAMINATION BY MR CHIN [11.16 AM]

PN191

MR CHIN: Dr Elsaleh, in your first witness statement you outline some features of the radiation oncology sub-fund and the private practice trust fund. Can I ask you some questions about that?‑‑‑Yes.

*** HANY ELSALEH XXN MR CHIN

PN192

The purpose of the radio oncology sub-fund is to fund radiation oncology research and educational activities, correct?‑‑‑As well as technical development within the department.

PN193

Yes?‑‑‑The technical development and research are basically joined at the hip because we can’t participate in modern-day radio therapy trials without access to sophisticated technology. The only way that we can basically develop – we basically have to develop the technology first before we can then participate in the clinical trials that investigate that technology. So it’s not just research education; it’s also technical development and, to a certain extent, credentialing of the service to enable more sophisticated treatments to take place.

PN194

Thank you. My question was that the purpose of the fund was to fund research and educational activities. Certainly research and educational activities are one of the primary purposes of the fund?‑‑‑I think research, medical research, from non-radio oncologists, I think people have difficulties in interpreting what exactly research is.

PN195

Can you just confine yourself. I’m just asking yourself about the radiation oncologists sub-fund?‑‑‑Yes.

PN196

Radiation oncologists have training and educational needs. They need to keep up to date with developments. They go to conferences and so forth?‑‑‑Sure.

PN197

The trust fund is used, the sub-fund is used, in part at least to fund those activities?‑‑‑Correct.

PN198

Certainly those research and educational activities conducted by radiation oncologists are funded by the sub-fund, correct?‑‑‑Correct.

PN199

You mention funding of technical developments in your statement. You refer to technical developments for allied health workers such as radiation therapists?‑‑‑Correct.

PN200

So that you’re saying the sub-fund funds technical training and other matters not just for radiation oncologists but other allied health works, is that right?‑‑‑Absolutely right.

*** HANY ELSALEH XXN MR CHIN

PN201

You would accept, would you not, that the private practice trust fund, the purpose of which is also to fund research and educational activities of other senior medical practitioners, correct?‑‑‑Sure.

PN202

So the purpose of the radiation oncologists sub-fund and the private practice trust fund, to the extent that it funds research and activities undertaken by senior medical practitioners, they have a common purpose?‑‑‑Not entirely, no. I think that the main fund would be challenged by the level of activity that we endorse.

PN203

I think you’re missing my point; I’m not asking you ‑ ‑ ‑?‑‑‑I think philosophically I agree with you ‑ ‑ ‑

PN204

Let me ask my question and then if you could answer the question, that would probably be a bit more efficient?‑‑‑Sure.

PN205

You agree with me philosophically. You were about to say something about the capacity of the private practice trust fund to fulfil its purpose. What I’m asking you about is its purpose, okay? There is a shared purpose, you would accept, would you not, between both funds to the extent that the purpose is to fund educational training activities of senior medical practitioners? Leaving aside the efficacy of each fund?‑‑‑Philosophically speaking, yes. Practically speaking, no.

PN206

In practice, the private practice trust fund, in fact, funds research and education activities of senior medical practitioners, does it not?‑‑‑Are you talking about the main fund?

PN207

Yes?‑‑‑Yes.

PN208

So it’s not just a matter of philosophy. It’s a matter of practice that that’s what it does, correct?‑‑‑Correct.

PN209

And the sub-fund, your sub-fund, funds actually, in practice, educational and training activities of radiation oncologists?‑‑‑There’s no dispute about that.

PN210

There’s no dispute about those two propositions?‑‑‑No.

PN211

To that extent, they share a similar purpose, you’d accept that?‑‑‑Correct.

*** HANY ELSALEH XXN MR CHIN

PN212

Yes. You say that out of the private practice trust fund, funding for technical development in other departments is not provided for under the private practice trust fund. You’ve used that as a point of distinction between that fund and your sub-fund, because your sub-fund also pays for training for allied workers. You make that point of distinction. Would you accept that, in fact, the private practice trust fund does fund educational training requirements of some other allied health workers, such as, for instance, nurses?‑‑‑I’m not privy to the minutes of the private practice trust fund of the main fund. I’ve never been privy to them. Any interaction from a radiation oncology perspective, my only dealings with the main fund have been that when we hadn’t established our fund and we subsequently had put in applications to the main fund, they used to come back in yellow envelopes with post-its on them basically saying no. So I don’t really know what the main fund does.

PN213

So your answer to my question is you don’t know essentially?‑‑‑I don’t know.

PN214

You wouldn’t dispute the proposition if I put to you that, for instance, nurses in ICU have received funding from the private practice trust fund for their aspects of their training?‑‑‑Great.

PN215

You agree or you just can’t say?‑‑‑I can’t say.

PN216

So to the extent that you seek to make that point of distinction where you purport to say funding for technical development in other – I withdraw that and start again. To the extent that you make that point of distinction – that is, the sub-fund funds allied health workers, the private practice fund does not – that’s not something you can state for certain, can you?‑‑‑As I said, the level of funding that the radiation oncology sub-fund provides for the technical development of our department, the main fund would find challenging.

PN217

That’s a different point to the point you were trying to make that I was addressing.

PN218

THE DEPUTY PRESIDENT: I think I’ve listened to the question very carefully, and respond to the question. Do you want to put the question again, Mr Chin?

PN219

MR CHIN: Yes. The point of distinction between the funds to the extent that you’ve suggested the sub-fund funds training activities of allied health workers, you’re not able to say that that is, in fact, a point of distinction with the private practice fund, are you?‑‑‑Actually, I’ll clarify that. When allied health workers from our department have applied to the main fund, they have been declined. So, from my experience, they haven’t been providing funds for allied health works because they ‑ ‑ ‑

PN220

THE DEPUTY PRESIDENT: That is not the question that Mr Chin asked. Would you mind repeating the question again and try to answer the question.

*** HANY ELSALEH XXN MR CHIN

PN221

MR CHIN: I’ll put it simply: you don’t know whether the private practice trust fund, the main fund, funds training of other applied workers, do you?‑‑‑I’m not sure.

PN222

You don’t know. And I wanted to suggest to you that, in fact, it does. You wouldn’t dispute that proposition?‑‑‑Well, I won’t dispute that, if you say.

PN223

The source of the funds, the source of the revenue, you address that in your statement. Contributions from radiation oncologist private practice revenue fund the sub-fund. Contributions from other medical and surgical specialties private practice revenue other than radio oncologists fund the private practice fund, that’s right?‑‑‑Yes.

PN224

The way in which – the methodology by which that revenue is derived is influenced by what private practice revenue scheme a particular specialist is on – that is, within the enterprise agreement scheme A, B or C, is that right?‑‑‑As well as whether the individual craft groups have separate SEAs as well.

PN225

I see. Leaving aside the SEAs, is it the case that in the enterprise agreement the payments scheme A, B and C is a matter of choice or election by the senior staff member?‑‑‑Correct.

PN226

If you’ve got a large private practice element, then scheme C is the one to?‑‑‑Correct.

PN227

If you’ve got a small one or a negligible one, then the scheme A is the one to pick, is that correct?‑‑‑Correct.

PN228

Radiation oncologists contribute to the fund via the third scheme, scheme C?‑‑‑Yes.

PN229

Exclusively?‑‑‑Yes. Correct.

PN230

Can I suggest to you that’s also the case for senior medical practitioners in other craft groups, some other craft groups?‑‑‑Some other craft groups, correct.

PN231

So the contribution to the scheme, to the fund, via scheme C is not something that’s exclusive to radiation oncologists, correct?‑‑‑Correct.

*** HANY ELSALEH XXN MR CHIN

PN232

So that, for instance, gastroenterologists and cardiologists contribute via scheme C?‑‑‑I don’t think so, but I’m not aware. I’m not entirely sure, but the gastroenterologists that I know are not on scheme C.

PN233

I see, but you can’t say, for instance, whether cardiologists are?‑‑‑No.

PN234

Accordingly, you’d accept that the method of contribution to the respective funds by particular specialists in radiation oncology is not peculiar only to radiation oncologists?‑‑‑No.

PN235

In your statement you make a point, Dr Elsaleh, about the geographical remoteness of your department in paragraph 16, do you see that? I’m talking about your first statement?‑‑‑Sure.

PN236

I think the point you’re making, when you say “geographical remoteness” you mean that your radiation oncology service is the only such service available to patients within a very large geographical area, is that correct?‑‑‑Yes, correct.

PN237

You say that one consequence of that is that there’s no capacity for you to send overflow patients to other treatment centres within the ACT, correct?‑‑‑That’s correct.

PN238

And the nearest other radiation oncology services are at Wagga Wagga or Liverpool?‑‑‑Correct.

PN239

Can I suggest to you that that circumstance is not unique to radiation oncologists at Canberra Hospital, do you accept that?‑‑‑I can’t comment on that.

PN240

You wouldn’t know?‑‑‑Wouldn’t know.

PN241

Can I suggest to you, for instance, that the ICU at Canberra Hospital is the only ICU within a very large geographical region, the closest other one being in Liverpool?‑‑‑The services that intensivists can provide are a little different to the services that a radiation oncologist can provide. So they can act in a different capacity in a different location, whereas a radiation oncologist has to act as a radiation oncologist.

PN242

Yes. Can you answer my question: the ICU located at Canberra Hospital is the only one to your knowledge within ACT?‑‑‑Yes.

*** HANY ELSALEH XXN MR CHIN

PN243

You accept that?‑‑‑Yes.

PN244

Like your department, the nearest equivalent is in Liverpool?‑‑‑Sure.

PN245

You accept that?‑‑‑Yes.

PN246

And you accept that ICU have patients referred from a large geographical area?
‑‑‑Correct.

PN247

And that there’s no capacity to send overflow patients for some services provided by the ICU in Canberra, you accept that?‑‑‑Yes.

PN248

So the ICU, for instance, services like cardiac catheterisation, that’s not something they can send to Calvary Hospital, or anywhere else in the ACT?‑‑‑Okay.

PN249

You accept that?‑‑‑Yes.

PN250

Can I suggest to you that, accordingly, that geographical remoteness is not something that is entirely unique to radiation oncologists, you accept that?‑‑‑Yes.

PN251

Yes. Thank you. No further questions.

PN252

THE DEPUTY PRESIDENT: Mr Wilson.

RE-EXAMINATION BY MR WILSON [11.32 AM]

PN253

MR WILSON: Picking up on that point, Dr Elsaleh, you something in relation to ICU specialists, that they have the capacity to engage in other activities. What did you want to say about that?‑‑‑Well, there are ‑ ‑ ‑

*** HANY ELSALEH RXN MR WILSON

PN254

From the Canberra Hospital?‑‑‑There are services that they could provide immediately post-operatively in other centres. They have options. They can also provide consultative services, which are much more generously remunerated than through billings. So radiation oncologists basically have very low rates of remuneration for consultations, lower than general practitioners. So it’s very difficult for us to – when you consider private indemnity insurance – run a viable consultative service beyond the boundaries of the department at the Canberra Hospital, whereas physicians are able to generate quite lucrative – I wouldn’t say “lucrative”, but much more generous remuneration’s from consultations, consultative services, and also locum positions are available within the Territory at different EDs and hospitals. So there’s more options available for those specialties than are for radiation oncologists.

PN255

You were asked a number of questions about the increase in facility fee by Ms Robinson. If it’s increased to 30 per cent, what, if anything, do you think will be the practical effect or effects on radiation oncologists?‑‑‑I think if SEA is changed, then it will have an effect on – firstly, it will have an effect on the revenue going into the sub-fund. It will also have an effect potentially on staff that are on long leave, maternity leave, staff just starting employment. It will ultimately affect their incomes because - depending on the time they start within the year. It can actually have a dramatic impact on their overall income. For the established radiation oncologists, it might not have an immediate effect, but it could ultimately have a long-term effect, particularly if we were working normal hours.

PN256

Talking about income there, is there any other effect or effects that it might have in terms of the other things that you’ve described in your statement and you were asked questions about this morning – that is, training, provision for technical expertise?‑‑‑Again, it’s a chicken before the egg argument, because you need to develop the technology to be able to perform more complicated treatments which are reimbursed to a higher level. So if we don’t have the funds available to develop technology, then, ultimately, we won’t be able to provide quality treatments to patients, but also the revenue will be affected or impacted as well.

PN257

No further questions, your Honour.

PN258

THE DEPUTY PRESIDENT: Thank you, Mr Wilson. Thank you, Dr Elsaleh. You are dismissed.

<THE WITNESS WITHDREW [11.36 AM]

PN259

THE DEPUTY PRESIDENT: Mr Chin, do you wish to call your first witness, or do you wish to deal with those witness statements where witnesses are not required for cross-examination?

PN260

MR CHIN: Yes, your Honour, that would be convenient. I don’t know whether your Honour’s practice is to have a short morning adjournment, but could I make an application just for a short adjournment after we do this before Dr Avard is called?

PN261

THE DEPUTY PRESIDENT: Can I suggest that we adjourn until 11.45 am?

PN262

MR CHIN: Yes, thank you.

SHORT ADJOURNMENT [11.37 AM]

RESUMED [11.50 AM]

PN263

MR CHIN: Your Honour, before I call Dr Avard, can I tender by reference to the two volumes of statements the witness statements of those who are not required for cross-examination: first are two statements from Jennifer Wyborn in volume 1 under tabs 2 and 3 respectively, a statement dated 20 February 2015, firstly, under tab 2.

PN264

THE DEPUTY PRESIDENT: Can I just check with the other parties if there are any objections to any of the statements of Ms Wyborn?

PN265

MR WILSON: No.

PN266

MR CHIN: No.

PN267

THE DEPUTY PRESIDENT: Thank you. I’ll mark the witness statement of Ms Jennifer Wyborn, which is dated 20 February and comprises 15 paragraphs together with nine attachments as exhibit C1.

EXHIBIT #C1 WITNESS STATEMENT OF JENNIFER WYBORN DATED 20/02/2015

PN268

MR CHIN: The second statement of Ms Wyborn is dated 6 March 2015 and behind tab 3. It has one annexure.

PN269

THE DEPUTY PRESIDENT: I’ll mark that exhibit C2.

EXHIBIT #C2 WITNESS STATEMENT OF JENNIFER WYBORN DATED 06/03/2015

PN270

MR CHIN: The next statement is in volume 2 behind tab 8, if it please the Commission. It is a witness statement of Dr Burt – B-u-r-t – dated 20 February 2015.

PN271

THE DEPUTY PRESIDENT: I’ll mark that exhibit C3.

EXHIBIT #C3 WITNESS STATEMENT OF DR BURT DATED 20/02/2015

PN272

MR CHIN: The next one is behind tab 9, statement of Dr Robertson dated 20 February 2015. It has three annexures.

PN273

THE DEPUTY PRESIDENT: I’ll mark that exhibit C4.

EXHIBIT #C4 WITNESS STATEMENT OF DR ROBERTSON DATED 20/02/2015

PN274

MR CHIN: Finally, a supplementary statement of Dr Robertson dated 6 March 2015 behind tab 10.

PN275

THE DEPUTY PRESIDENT: I’ll mark exhibit C5.

EXHIBIT #C5 SUPPLEMENTARY WITNESS STATEMENT OF DR ROBERTSON DATED 06/03/2015

PN276

MR CHIN: That deals with the statements of witnesses not required, your Honour. I now call Dr Avard.

PN277

UNIDENTIFIED SPEAKER: Please state your full name and address?

PN278

THE WITNESS: My name is Bronwyn Jane Avard (address supplied).

<BRONWYN JANE AVARD, SWORN [11.52 AM]

EXAMINATION-IN-CHIEF BY MR CHIN [11.52 AM]

PN279

MR CHIN: Dr Avard, can I give this volume to you? It contains your two statements. I’ve opened it up at your first statement?‑‑‑Sure.

PN280

Dr Avard, you’ve provided the Commission with two witness statements for the purpose of these proceedings, have you not?‑‑‑That is correct.

PN281

The first one behind tab 4 of the volume I’ve given you is a statement of yours dated 20 February 2015?‑‑‑That is correct.

PN282

It has four annexures to it?‑‑‑Yes.

*** BRONWYN JANE AVARD XN MR CHIN

PN283

It’s dated 20 February 2015?‑‑‑Yes.

PN284

Do you say that the contents of the statement are true and correct to the best of your knowledge, information and belief?‑‑‑Yes.

PN285

I tender that statement, your Honour.

PN286

THE DEPUTY PRESIDENT: I’ll mark that exhibit C6.

EXHIBIT #C6 WITNESS STATEMENT OF BRONWYN AVARD DATED 20/02/2015

PN287

MR CHIN: You provided a second statement. Was that statement prepared after you had read Professor Bowden’s statement filed for ACT Health?‑‑‑Yes.

PN288

And it’s in response to Professor Bowden’s statement largely, correct?‑‑‑Yes, that’s correct.

PN289

It’s dated 9 March 2015. It’s behind tab 5 of the volume, and it has two annexures?‑‑‑Yes.

PN290

Do you say the contents of that statement are true and correct to the best of your knowledge, information and belief?‑‑‑Yes, that’s correct.

PN291

I tender that statement, your Honour.

PN292

THE DEPUTY PRESIDENT: I’ll mark that exhibit C7.

EXHIBIT #C7 SUPPLEMENTARY WITNESS STATEMENT OF BRONWYN AVARD DATED 09/03/2015

PN293

MR CHIN: If I may, your Honour, I have two brief questions, additional questions, for Dr Avard. Dr Avard, you’re a senior staff specialist in the ICU department of Canberra Hospital, correct?‑‑‑That is correct.

PN294

You’re familiar with the private practice trust fund operated by the department of health and Canberra Hospital?‑‑‑Yes.

*** BRONWYN JANE AVARD XN MR CHIN

PN295

You’re aware of the use and purpose of that fund?‑‑‑Yes, I am.

PN296

Insofar as it relates to ICU, what is the use and purpose of that fund?‑‑‑So there is applications made by the specialists employed in the intensive care unit for education and research purposes, which may or may not be granted by the private practice trust fund. In addition, our nursing staff and other staff may apply for private practice support for education and research purposes.

PN297

When you say the first cohort you were referring to, senior medical practitioners such as yourself?‑‑‑Yes.

PN298

To fund your training and educational needs?‑‑‑Yes.

PN299

Attending conferences and the like?‑‑‑And research.

PN300

Is your evidence that that fund is also open to application by some allied health workers like nurses?‑‑‑Yes.

PN301

Has that been used for that purpose, has it?‑‑‑Yes.

PN302

To your knowledge?‑‑‑Within my unit, I have had nurses supported by the private practice trust fund to attend conferences.

PN303

Secondly, I want to ask you about the ICU in which you work. There’s a distinction between tertiary and secondary ICU units, correct?‑‑‑Yes, that’s correct.

PN304

Can you explain to his Honour that distinction?‑‑‑Yes. A tertiary intensive care unit and secondary, the difference is around the level of support that can be provided for patients. As a tertiary intensive care unit, we’re the only one in the ACT and the nearest tertiary intensive care unit to the ACT is Liverpool Hospital. There is a secondary intensive care unit in the ACT, which is not able to offer the same level of organ support for patients.

PN305

What do you say, in consequence of your evidence in that regard, what do you say about the capacity of your ICU unit – I withdraw that. From what geographical area do you receive patients into your unit?‑‑‑Not only residents from the ACT but also a large proportion of New South Wales, especially south-western and south-eastern New South Wales.

*** BRONWYN JANE AVARD XN MR CHIN

PN306

What do you say about the capacity of your unit to send overflow patients to other hospitals in the ACT for some procedures or some treat services?‑‑‑Extremely limited capacity because of the level of services that we offer. For the level of services that we actually provide patients, the nearest place to transfer people is a head unit in the Sydney area, and usually patients are unable to travel that far when they are this sick. So it is extremely challenging if we do reach capacity.

PN307

No further questions in chief.

PN308

THE DEPUTY PRESIDENT: Thank you, Mr Chin. Ms Robinson.

PN309

MR CHIN: I’m sorry, your Honour – in paragraph 12, annexure A of Dr Avard’s first statement, there’s annexed to it a signed petition, your Honour. It’s redacted. I understand there’s been a prior arrangement to provide your Honour exclusively with the unredacted version. Can I now do that and hand that to your Honour.

PN310

THE DEPUTY PRESIDENT: Thank you.

PN311

MR CHIN: Thank you, your Honour.

CROSS-EXAMINATION BY MS ROBINSON [11.59 AM]

PN312

MS ROBINSON: In your supplementary witness statement of 9 March, you say at paragraph 3 that you’re aware that the agreement had been negotiated from June 2013?‑‑‑That is correct.

PN313

Were you contacted as well and raised some concerns about the process?‑‑‑I contacted the ex-president of ASMOF at that time.

PN314

Having raised those concerns, you’ve heard nothing back from ASMOF about them?‑‑‑Not to address those specific concerns.

PN315

You say that prior to writing the proposed agreement in 2014 you received some correspondence or information from ASMA, and it was then in September 2014 that you had a look at the draft agreement?‑‑‑That was the first time it was provided.

PN316

You didn’t make any other inquiries between that time you spoke to ASMA, which would have been late 2013?‑‑‑June 2013.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN317

And September 2014?‑‑‑I had lots of conversations with Peter Collignon, who was the then head of ASMA in the ACT, and they were verbal communications around how things were going.

PN318

You were then saying you were a bit surprised when you had a look at the agreement in September 2014?‑‑‑Yes.

PN319

Is it fair to say that other than talking to Dr Collignon you had no active role in the bargaining process?‑‑‑ASMOF were my bargaining representative, I understood.

PN320

So you left it with ASMOF?‑‑‑ASMOF were acting on my behalf, yes.

PN321

Would I be correct to say that your concern is the outcome that was reached by ASMOF on your behalf?‑‑‑No. I believe the AMA is also representing us. So I think my concern was with the end product.

PN322

The end product of the negotiations?‑‑‑My concern is with the enterprise agreement.

PN323

Not with the process, because you had no part in the process?‑‑‑I did have a part as being a member of ASMOF, is my understanding.

PN324

You’re an intensivist, is that the term that’s used?‑‑‑Intensive care specialist.

PN325

You used the term in your statement, but ICU are at the pointy end of medical provision. So the patients you’re dealing with in ICU are in a pretty bad way?‑‑‑Their organs have failed.

PN326

Would it be true to say that their condition could get worse unexpectedly?‑‑‑Yes.

PN327

So ICU involves monitoring patients very much moment to moment to ensure that their condition doesn’t deteriorate and if it does something can be done quite quickly about it?‑‑‑Yes.

PN328

Senior specialists in ICU are not rostered on 24 hours a day, seven days a week, are they?‑‑‑They are not rostered on. They’re rostered on call at night time.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN329

But they’re not present in the hospital after about 10 pm?‑‑‑They can be.

PN330

“On call” presumably means if something happens the medical practitioners who are there can call the senior specialist and say, “What do I do? Can you come in”?‑‑‑And come in. And the part of intensive care is that frequently the senior medical practitioner is required to come in.

PN331

You say in your statement that JMOs provide moment-to-moment care?‑‑‑Yes.

PN332

But you’ve also just given evidence that moment-to-moment care in ICU can actually see quite a significant deterioration in the condition of a patient. So it would be true to say, would it not, that the JMOs in ICU have quite a high level of responsibility?‑‑‑It’s variable, depending on their level of training.

PN333

PGY3 – so that’s a third year – that would be the lowest level of training that would be in ICU, is that correct?‑‑‑No. As I stated in my supplementary state, PGY1 have been in the intensive care as well since the middle of last year.

PN334

But your preference and probably the most use of those JMOs who are a little bit further progressed in their training?‑‑‑I’d like to clarify the statement of “much use”.

PN335

I misspoke. The ones who would be of the greatest utility to ICU would be those who’ve got a high degree of training, is that correct?‑‑‑Again, you need to be quite clear about what a high level of training is and the post-graduate year from medicine does not equate to level of training looking after these patients.

PN336

But those who are advanced in their training – I use that term not necessarily in terms of time, but those who have had higher exposure to ICU and the greater degree of responsibility – will be looking after patients in a critical condition without direct supervision?‑‑‑They may be; it depends on whether they’ve been assessed by the senior medical practitioner as being competent to do so. So the structure of the intensive care unit is to use your example of the PGY3, they are never left on their own looking after these patients, even directly.

PN337

You say at paragraph 6 of your first statement ‑ ‑ ‑?‑‑‑Sorry, the first statement?

PN338

The statement of 20 February?‑‑‑Yes.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN339

I have to apologise, I might have been wrong with the section number. But you say in your statement that JMOs have no ultimate responsibility for their actions, is that correct?‑‑‑Yes.

PN340

I just want to explore what you mean by “responsibility” in this context. You’ve said that JMOs have moment-to moment-care of patients and that in the ICU a patient’s condition can deteriorate very quickly, moment to moment. By saying that JMOs have no ultimate responsibility, are you saying that they don’t carry, for example, any administrative responsibility for their actions?‑‑‑The comment you have made about moment to moment doesn’t quite follow up to the question that you’ve asked. What exactly are you asking with that question?

PN341

You’ve said that JMOs have no ultimate responsibility for their actions?‑‑‑Yes.

PN342

You’ve also said a patient’s condition can deteriorate very quickly, moment to moment?‑‑‑So your words are “moment to moment”. The monitoring of patients is moment to moment. A patient themselves rarely just suddenly deteriorates one moment from the other. There is a clear signal, and what JMOs are there to do is to identify that there’s a signal that the patient is starting to deteriorate, and that is when they call for additional and more senior help. So that’s to the first point. Were you asking a second point?

PN343

The JMOs have the responsibility to monitor a patient and identify when additional assistance is needed?‑‑‑That is correct.

PN344

Would that be correct?‑‑‑Yes, that is correct.

PN345

When you say they never carry the ultimate responsibility for their actions, if a JMO in performing those duties, those monitoring duties, was to make a mistake, are you suggesting that they JMO would not bear the ultimate responsibility for that mistake?‑‑‑Yes. The ultimate responsibility lies with the senior medical practitioner who has determined that that junior doctor is competent to be in that position. If, in fact, that determination was incorrect, which is implied by the fact that they may have missed that, the needs to be reassessed again. It is ultimately the responsibility of the senior medical practitioner.

PN346

Are you suggesting that the JMO does not carry any responsibility?‑‑‑I feel every doctor carries some responsibility for individual actions. However, that depends on their training and their supervision. It’s incredibly tied into that. As senior medical practitioners, it is our responsibility to determine what level of training they require in order to be able to complete their job.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN347

But you would agree, wouldn’t you, that that junior medical officer, were they to make a mistake, and presumably in ICU a mistake could have quite catastrophic consequences, that that JMO would have breached administrative responsibility, they could, for example, be disciplined or performance managed, is that correct?

PN348

MR CHIN: I object. Sorry, the question seems to envelope a number of different propositions about the effect of mistakes and responsibilities. Perhaps if it could be split up so the witness can better know what she is or is not accepting.

PN349

MS ROBINSON: I’ll break it down. If a JMO makes a mistake, would you accept that that JMO would have, for example, administrative responsibility?‑‑‑Can you define what you mean by “administrative responsibility”?

PN350

The JMO will be liable to, for example, be performance managed?‑‑‑What do you mean by “performance management”?

PN351

It is likely to have ramifications for at least – and I’m talking at a low level – it is likely to have ramifications for their career path?‑‑‑No.

PN352

For example, they’re likely to be subject to more supervision?‑‑‑That doesn’t affect their career path. It is a natural aspect of training in an area like this.

PN353

It is a form of responsibility, though, that there would be some ramification for them if they made a mistake, administrative ramification?‑‑‑I disagree with the term “administrative ramification”. If somebody was to make an error, then the senior practitioner would have to go back and see why that error may have been made. In my extensive experience in dealing with junior doctors, it is usually around their training, so the training measures are implemented to correct that for the future. I would not define that as either performance administration or performance planning, performance management or administration.

PN354

If the JMO made a mistake, would you agree that they could be subject to a legal responsibility or a legal implication?‑‑‑I don’t feel I’m best placed to answer that question.

PN355

Would you agree that that JMO could be summonsed to attend a coronial, for example, or to give evidence at a coronial inquiry?‑‑‑You’re asking a very complex question in a very simple way.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN356

I’m asking, theoretically, if the JMO is involved in an incident that ends up before the coroner, that JMO could end up giving evidence before the coroner?‑‑‑Yes, they could. But not in relation to error per se; they usually just give a witness statement.

PN357

Isn’t it correct that at least one registrar in the ICU, their actions have been subject to a coronial inquiry?‑‑‑I actually don’t have enough knowledge on that to know that.

PN358

Would you also agree that JMOs have professional registration with AHPRA, in terms, I understand, of conditional registration, is that correct?‑‑‑That is my understanding, yes.

PN359

And resident medical officers and registrars have to have full registration?‑‑‑There are different levels of registration, depending on whether you are a specialist or a specialist in training, a junior medical officer. So there are different levels, not just limited.

PN360

But, nonetheless, registrars and resident medical officers need to obtain full registration with AHPRA?‑‑‑I would not define it as “full”. I think the terms that they are registered as part of a training program or registered as a specialist. There’s quite distinct categories under AFHRA.

PN361

If that registrar – let’s take a senior registrar, for example – were to make a serious error in the manner in which they practice, that registrar could be subject to professional discipline by AHPRA, is that correct?‑‑‑That very much depends on the context. So it depends. I think you need to break that down a lot more. That’s a very complex question, because many mistakes don’t get reported to AHPRA.

PN362

No doubt many mistakes do not get reported to AHPRA ‑ ‑ ‑
?‑‑‑As in they’re not required.

PN363

AHPRA does not investigate many of the things that are reported to AHPRA. But, theoretically, if a registrar was involved in a serious event and it was reported to AHPRA, that registrar could end up being investigated by AHPRA?‑‑‑My understanding – and this is only my understanding of things – is that you report a concern about an individual practitioner to AHPRA, and that does not necessarily correlate to errors that occur within the hospital system.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN364

That doesn’t quite answer my question. A complaint could be made about the actions of an individual JMO to AHPRA, is that correct?‑‑‑At any time, an individual doctor of any level can have a report made to AHPRA by any person.

PN365

Thank you. You also give some evidence that training of JMOs is predominantly conducted by senior medical officers?‑‑‑I don’t know that I use the word “predominantly", do I? I’m not sure. Can you point out the section that it refers to?

PN366

I will work on getting the exact words for you?‑‑‑Okay.

PN367

But, in any case, the evidence that you give is to the effect that the primary obligation for training lies with the senior medical officers, the specialists and the senior specialists?‑‑‑The ultimate responsibility for training lies with the specialists, the senior medical practitioners.

PN368

But much of the day-to-day training would lie with other junior medical officers?‑‑‑It depends on the area you’re talking about. In the intensive care unit, that’s not true.

PN369

Could I show you a document.

PN370

THE DEPUTY PRESIDENT: Do you wish to tender this document, Ms Robinson?

PN371

MS ROBINSON: Yes, thank you. Dr Avard, can I ask you: what is the header of the document that you have?‑‑‑I have “Duty statement – ACT Government Health – position numbers TBA – Classification, Senior Registrar”. Do I have the correct document?

PN372

You do have the correct document. Dr Avard, can you describe what this document is?‑‑‑This is the duty statement for senior registrars that is produced every year to recruit staff to the intensive care unit.

PN373

Could you confirm who had contact officer is for that position?‑‑‑Myself and another intensive care specialist, Samit Rye(?).

PN374

This is a duty statement for a senior registrar?‑‑‑That’s correct.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN375

I believe it’s described as a transitional role between that of registrar and consultant?‑‑‑Yes.

PN376

By “consultant”, do you mean “specialist”?‑‑‑Yes.

PN377

The position description says the position is allowing for increased autonomy, is that correct?‑‑‑That’s exactly right.

PN378

Could you explain what you mean by “increased autonomy”?‑‑‑This is in line with our College of Intensive Care Medicine training program and their use of these words, ”transitional” and “autonomy”. If means that if they have been determined by the senior medical practitioners as having the appropriate level of competence and training, they may be making more decisions or at least starting to make more decisions on their own in preparation, as part of the training process to be a specialist.

PN379

Would you agree at point 2 ‑ ‑ ‑?‑‑‑Of the?

PN380

Of the responsibility statement on page 2?‑‑‑Yes.

PN381

That there’s a requirement to participate in supervision, training and professional development of ICU medical staff and undergraduate medical students?‑‑‑Absolutely, yes.

PN382

That’s requirement number 2 of the responsibility statement?‑‑‑Yes.

PN383

So presumably that’s a fairly significant part of that senior registrar’s role?‑‑‑It is.

PN384

Additionally at point 7 there is a requirement to contribute to clinical audit and participate in changes that improve the quality and safety of patient care?‑‑‑Yes, another requirement of any medical practitioner at any level.

PN385

There’s also reference to a well-established helicopter retrieval service. That’s the rescue ‑ ‑ ‑?‑‑‑Sorry, where are you talking about?

PN386

Sorry, on page 1?‑‑‑Yes.

PN387

The big paragraph in the middle of the page?‑‑‑Yes.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN388

The final sentence or two sentences, a well-established helicopter retrieval service is associated with the campus?‑‑‑Yes.

PN389

That is presumably the rescue helicopter?‑‑‑The Canberra Region Retrieval Service, CRRS.

PN390

Would the senior registrar who is participating in that be the only medical practitioner ‑ ‑ ‑?‑‑‑I am unable to speak to CRRS. I have no responsibility for CRRS, and none of my employees – so none of the people in the intensive care unit – work with CRRS unless they’re separately appointed by CRRS. It’s a completely different department to mine.

PN391

Presumably people are going to – if practitioners are going to be sent on a helicopter retrieval service, they would need to be able to display a reasonable degree of independence and ability to make decisions?‑‑‑As I just stated ‑ ‑ ‑

PN392

MR CHIN: I object. The witness has just said she has no knowledge of that very separate unit. The presumption that the witness is being asked to make is, on the evidence, outside her knowledge. It’s not of assistance to the Commission.

PN393

MS ROBINSON: Your Honour, the witness is the contact officer on the job description. Presumably you read the job description prior to advertising it?‑‑‑This particular job description, no, I did not. My senior medical practitioner, who is responsible for recruitment, had put this job description together. I am the contact person.

PN394

THE DEPUTY PRESIDENT: So if someone rings up and asks a question about the helicopter retrieval service, what could you say? I mean, if I was a potential job applicant, I’d be saying, “Can you tell me anything about that”?‑‑‑Are you asking me that question?

PN395

Yes?‑‑‑I would refer them to the director of the CRR service, who was the person who put this document together. It does say “may have the opportunity”, and I would put them through to him.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN396

Can I just ask a question going back to the evidence you said a moment ago that you didn’t review this duty statement before it was submitted and that there isn’t a connection with the CRRS, if I put that correctly. I think I just heard you say that this duty statement was developed by the CRRS. Doesn’t that contradict what you said a moment ago about ‑ ‑ ‑?‑‑‑I’m sorry, I didn’t make that clear. The director of the CRRS is 0.5 appointed into my unit as an intensive care specialist. It’s not unusual for the retrieval doctors to have two appointments, and so my visibility of what happens in the retrieval service is zero. He works in my unit, and when he is in my unit, he does the job of intensive care specialist. So I can’t speak to their training or supervision at all.

PN397

MS ROBINSON: Do you sit on the selection panel for this particular role?‑‑‑I did in this particular year, yes, I did.

PN398

Having regard to the duty statement and the reference to participation in the retrieval helicopter service, did you have regard to whether the applicant would be capable of performing that role?‑‑‑No.

PN399

You also give some evidence about the administrative duties that you have as a senior practitioner?‑‑‑Yes.

PN400

I think you made mention of the 20 per cent that’s assigned in the proposed agreement and that you think that’s not sufficient. It forms part of your claim, does it not, that you don’t have adequate monthly time to deal with these administrative duties?‑‑‑No, that doesn’t form part of my claim.

PN401

You’re the clinical director of the unit?‑‑‑I am the acting director, yes.

PN402

Would you agree that many of the administrative duties to which you make reference are duties that are associated with your role as the clinical director?‑‑‑Some are; not many.

PN403

Would you agree that you get paid an allowance, a management allowance, to perform those duties?‑‑‑As I said, some of the duties I perform yes; not all.

PN404

But not every specialist gets that allowance, is that correct?‑‑‑If they do not have a management role, then they do not receive a management allowance.

PN405

At paragraph 22 of your statement?‑‑‑My first statement?

PN406

Your first statement, my apologies?‑‑‑Paragraph 22, did you say?

PN407

Yes. You say it is the role of the senior medical practitioner to implement training in accordance with relevant college requirements and of performance management or disciplinary processes as set out in the enterprise agreement?‑‑‑Yes.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN408

You then say section N of the proposed agreement sets out the performance management process?‑‑‑Section N.

PN409

That process is the same for any other manager within the ACT government, is it not?‑‑‑I actually don’t know. I don’t know what you’re asking.

PN410

Section N, performance management and discipline process, is the same for you as a clinical manager of ICU as it would be for any other manager in the ACT government, is that the correct?‑‑‑The process? Any other manager in ACT government? That’s something I do not have visibility on. I only know within the hospital.

PN411

There is nothing unique in relation to medical practitioners about the proposed section N, the discipline or performance management processes, in the enterprise agreement?‑‑‑As I just said, that’s something I cannot speak to. I do not know what performance management is required in other areas of government.

PN412

Doctor Avard, as the clinical director, do you have management responsibilities for the nursing staff?‑‑‑As the acting director?

PN413

As the acting director, do you have management responsibility for the nursing staff?‑‑‑It is a more complex question than it seems. No, not directly at this stage. So the management, day-to-day performance management, is done by the assistant director of nursing in the intensive care unit.

PN414

Are you aware that the nurses are covered by a separate agreement?‑‑‑They are covered by a separate agreement, yes.

PN415

Have you looked at that agreement?‑‑‑No, because I don’t directly manage them. I do not performance manage nurses.

PN416

At paragraph 19 of your second statement you set out a table that shows an increase in JMOs within the ICU since 2009. It forms part of your claim that the increased training of these JMOs has increased the burden on staff in ICU, is that correct?‑‑‑I have said, yes, that it does increase the amount of training required in the intensive care unit.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN417

Is it correct that ICU has requested the increase in junior medical officers?‑‑‑Yes. Otherwise there wouldn’t be an increase. And that is related to patient care – increased patient numbers.

PN418

Would you agree that the JMOs are the front-line of that patient care, even in ICU?‑‑‑No.

PN419

But the JMOs, you’d have to agree, form a crucial component of that care?‑‑‑They perform a crucial component, yes.

PN420

The work that they perform goes hand in hand, or hand in glove, with the work that the senior medical officers perform?‑‑‑We all work together and they are under direct supervision of the senior medical practitioners.

PN421

That’s correct, yes. There are more junior medical officers than there are senior medical officers?‑‑‑Yes, that’s right. We supervise multiple at once.

PN422

The junior medical officers perform most of the routine interventions of incidences within the hospital, is that correct?‑‑‑No. No. You’d have to define what “routine” is.

PN423

Well, you’ve already given evidence that a senior medical officer is not present 24 hours a day, 7 days a week?‑‑‑That is correct.

PN424

Junior medical officers presumably are present 24 hours a day, 7 days a week?‑‑‑Yes, they are.

PN425

So a significant amount of trust and responsibility has to be placed in the hands of those junior medical officers?‑‑‑There is some trust put once they have been assessed as competent and trained appropriately, and it’s not routine care that happens during the night.

PN426

It would be true to say that arrangements for patient care rely on the cooperation of junior medical officers and senior medical officers?‑‑‑I’m not sure what you mean by “cooperation”. We need to communicate.

PN427

You need to communicate, and it is complementary care; the JMOs perform a certain role, the senior medical practitioners perform a certain role, that’s correct, and they both need each other to provide that care under the current model?‑‑‑The junior medical practitioners do the things that they’re instructed to do by the senior medical practitioners, including night care that they’re instructed before the senior medical practitioner leaves.

*** BRONWYN JANE AVARD XXN MS ROBINSON

PN428

Junior medical practitioners and senior medical practitioners, together, provide integrated client patient care that keeps the ICU running?‑‑‑In theory, if there were enough senior medical practitioners, so enough people to look after these people, there would be no need for junior medical practitioners.

PN429

THE DEPUTY PRESIDENT: And arguably, you wouldn’t have any senior medical practitioners if you didn’t have junior medical practitioners?‑‑‑That you train.

PN430

I’ll just take you back to a comment or a response you provided before, in a sense that - and I’m paraphrasing here, is that particularly at those times where senior medical officers are not on a premises, that junior medical officers are, my words, eyes and ears in terms of making observations and to the extent that there might be the observations that there is a deterioration in a particular indicator, that is something that a senior medical practitioners would anticipate the JMO bringing to their attention?‑‑‑Yes.

PN431

So I think if I can just try and just paraphrase what Ms Robinson is getting at, is that it’s a two-way communication in the sense that whilst your point is that JMOs undertake what they’re directed by senior medical officers as well, the reverse of that is that junior medical officers quite often will observe particular conditions, if I can put it that way, and will raise those with the senior medical officer and there’ll be a conversation as to what, if any, action should be taken as a result of that?‑‑‑That is correct.

PN432

Yes. So in essence, and I’m paraphrasing again, the importance of JMOs and SMOs working hand in glove, if I can put it that way, is an important part of the dynamics of ICU?‑‑‑Currently, yes.

PN433

MS ROBINSON: No further questions.

PN434

THE DEPUTY PRESIDENT: Mr Wilson?

PN435

MR WILSON: Thank you, your Honour. May I just examine the witness from where I am, please?

PN436

THE DEPUTY PRESIDENT: Okay.

CROSS-EXAMINATION BY MR WILSON [12.34 PM]

*** BRONWYN JANE AVARD XXN MR WILSON

PN437

MR WILSON: Dr Avard, did you recall that a proposed enterprise agreement was put out for a vote, as it were, in October - for medical practitioners, was put out for a vote in October last year?‑‑‑I can’t give the exact dates, but I do recall ‑ ‑ ‑

PN438

You do recall?‑‑‑It was around that time, yes.

PN439

Did you exercise your right to vote on it?‑‑‑Yes, I did.

PN440

Now, you recall in the proposed agreement that it made provision for various schemes in relation to rights of private practice?‑‑‑I do recall that.

PN441

What scheme are you currently on?‑‑‑Scheme A.

PN442

So that’s the scheme that provides that earnings up to an equivalent of 10 per cent of pay incur 100 per cent facility fee?‑‑‑That is correct.

PN443

Earnings greater than 10 per cent and up to 30 per cent of pay are to be split into 50 per cent facility fee and 50 per cent bonus?‑‑‑That is correct.

PN444

And earnings greater than 30 per cent incur 100 per cent facility fee?‑‑‑That is correct.

PN445

How would you describe the extent of your ability or otherwise to privately bill patients?‑‑‑Almost never. We very rarely privately bill.

PN446

You are the director of the intensive care - you said “acting” ‑ ‑ ‑ ?‑‑‑Acting.

PN447

‑ ‑ ‑ I thought. That doesn’t appear in your statement?‑‑‑Yes, acting.

PN448

Now, if you’ve not got a high degree of private billings, you don’t contribute much into the general hospital fund, do you?‑‑‑No, we do not. Not into the private practice fund.

PN449

No. You commenced at the Canberra Hospital in 2004?‑‑‑That’s correct, yes.

PN450

At that stage, there was simply one fund, wasn’t there?‑‑‑I cannot speak to that. I was first appointed as a trainee, so I wasn’t aware of all of this until much later.

*** BRONWYN JANE AVARD XXN MR WILSON

PN451

Sure, but you’re aware that since 2006, the radiation oncologists have had their own fund, aren’t you?‑‑‑I personally haven’t been aware since 2006, but I’ve been aware of that since 2008 when I came on as a specialist.

PN452

Now, let’s just talk about how you operate from the perspective of obtaining funding for training?‑‑‑Yes.

PN453

You identify a particular need for training, speaking generally?‑‑‑Yes. Yes.

PN454

You then make application for the funding of that training to the general hospital fund, correct?‑‑‑Can I just clarify? Are you talking about the senior medical practitioners here, or who are you talking about?

PN455

I’m talking about - well, let’s divide ‑ ‑ ‑ ?‑‑‑Or me personally?

PN456

Thank you for asking me to clarify the question. Let’s talk about for the senior medical practitioners in the intensive care unit. What do you do?‑‑‑So, sorry. Because I interrupted, I didn’t hear the first question. Can you rephrase? I apologise.

PN457

I just want you to describe to me if you identify a need for training for a specialist in intensive care?‑‑‑If it’s a training that’s required at an external location, for example, I’ll give the example of a conference because that’s probably the most common, then that senior medical practitioner will write an application ‑ ‑ ‑

PN458

To you?‑‑‑To the private practice fund and I will sign a - as the acting director, I will support that application, so I write a letter to support.

PN459

So that’s how you operate?‑‑‑Yes.

PN460

Then it goes up to the administrators of the general fund?‑‑‑Yes.

PN461

And they consider it?‑‑‑Yes.

PN462

Sometimes it’s approved and sometimes it’s not?‑‑‑That is correct, although I personally am not aware of the private practice fund rejecting an application from one of my doctors for training purposes.

*** BRONWYN JANE AVARD XXN MR WILSON

PN463

Very well. What about others in your department? It’s the same sort of process?‑‑‑That are not senior medical practitioners?

PN464

Correct?‑‑‑I am aware of cases where it has been rejected by a private practice fund.

PN465

Does that breed resentment?‑‑‑Among who?

PN466

Well, amongst those that you supervise?‑‑‑Not when they understand what the private practice fund is actually generated from.

PN467

What is that understanding?‑‑‑That’s it generated from the private practice billings.

PN468

THE DEPUTY PRESIDENT: Can I just ask a question. How does that understanding dissipate any resentment that might arise, to use the language of Mr Wilson has used?‑‑‑That is a good question. When I have personally spoken to somebody who has been rejected, I say this is - they often why senior medical practitioners are approved and others may not be. I say that is because the private practice fund is generated through the specialists generating billings, so it ultimately is from their private billings.

PN469

So an inference you can draw from that is, unless you put in, you won’t get out?‑‑‑Perhaps, yes.

PN470

Is that the way that the fund operates in practice?‑‑‑I am not aware of that because I’ve never been on the administration of private practice. I can only see what has happened in our unit.

PN471

MR WILSON: Thank you, your Honour.

PN472

Just picking up what you’ve just said, Dr Avard, are there any persons who work in intensive care who are on the administration board, or whatever it is, of the general hospital fund?‑‑‑No.

PN473

Now, what are your qualifications?‑‑‑I think I have written them ‑ ‑ ‑

PN474

Are they written in your statement?‑‑‑Had I written them in the statement?

*** BRONWYN JANE AVARD XXN MR WILSON

PN475

I don’t know?‑‑‑I thought I had. So I am a Bachelor of Medicine, which is medical school. I have a Fellowship with the College of the Intensive Care Medicine. I have a post-graduate certificate in clinical ultrasound and I have a Masters in Leadership and Management in Education.

PN476

That sounds very impressive to me, Dr Avard. Are there any consultation services that you can provide with those qualifications outside of the Canberra Hospital, in the ACT?‑‑‑My intensive care qualifications, that’s my only specialist qualification, that enables me to practice theoretically intensive care in any unit that would like to employ me. Is that what you would like to ask?

PN477

Yes?‑‑‑The level of service I provide at Canberra Hospital can’t be translated to any intensive care in the ACT because there is no such service, but I can look after patients who are not as sick as the patients in Canberra Hospital.

PN478

Outside of the Canberra Hospital?‑‑‑In other intensive care units, so ‑ ‑ ‑

PN479

In the ACT?‑‑‑Yes. There has to be an intensive care unit.

PN480

You could work as a locum with your qualifications outside of ACT?‑‑‑In an intensive care unit, yes.

PN481

You’re aware that the radiation oncologists have a separate trust fund from the general fund, aren’t you?‑‑‑I am aware.

PN482

So far as you’re aware, they organise their own training and development of their department outside of the general fund, correct?‑‑‑You’re asking me to talk on something I have no visibility or expertise on, so I don’t - I cannot state that as a fact.

PN483

Very well. You’ve heard it, though, haven’t you?‑‑‑I have heard people say that, yes, but I can’t state it as a fact of my own knowledge. Does that - I don’t know whether it’s the right words.

PN484

You say you voted on the agreement and at the time your bargaining representative was ASMOF, was it?‑‑‑Yes.

PN485

Did you go along to meetings of theirs?‑‑‑Of ASMOF meeting, no. I was not aware of meetings that were occurring with ASMOF.

*** BRONWYN JANE AVARD XXN MR WILSON

PN486

No further questions.

PN487

THE DEPUTY PRESIDENT: Thank you, Mr Wilson. Mr Chin?

PN488

MR CHIN: Thank you, your Honour.

RE-EXAMINATION BY MR CHIN [12.44 PM]

PN489

MR CHIN: Just on the topic of the bargaining process that you were asked about by Mr Wilson and also Ms Robinson, I think you said you first got the draft agreement in September 2014?‑‑‑Like I said, I can’t speak to the exact date, but the time that it was sent out by ACT Health, yes, I saw it then.

PN490

I think your evidence was that you then became surprised by some elements of it, is that right?‑‑‑Certainly none of the issues that I had brought up with ASMOF were in any way reflected in the agreement.

PN491

And what were those issues?‑‑‑The biggest ones probably related to the arrangement for private practice days. The further, I would have to read back to the email that I sent to Peter Collignon at the time.

PN492

THE DEPUTY PRESIDENT: Can I just ask a question there, sorry, Mr Chin.

PN493

MR CHIN: Yes, sir.

PN494

THE DEPUTY PRESIDENT: What’s the issue around private practice days given I think what you said before that there’s limited scope for yourself to conduct private practice?‑‑‑Yes. So private practice days, as they work within ACT Health, are days that while we’re full-time employed within ACT Health, we can flex our hours so that we can have four days of extended hours and one day where we can go and do practice elsewhere. So in theory, people could actually practice in another intensive care unit elsewhere. Our particular area of expertise, though, intensive care, can’t be practised in single day units. We need continuity of care and multiple days in a row, so the private practice arrangements that are referred to under the enterprise agreement cannot be exercised by the staff in my unit, and that is a concern to me.

PN495

So basically, if I hear what you’re saying, you want the opportunity for private practice days to be banked, so that in essence there might be an opportunity to take up an opportunity to work elsewhere?‑‑‑For a week, rather than - yes. Yes.

*** BRONWYN JANE AVARD RXN MR CHIN

PN496

MR CHIN: One of the issues of concern to you and others who appointed Ms Wyborn as your bargaining agent is the existence of an automatic expiry of your special employment arrangements, SEAs, within 15 months in the proposed agreement, correct?‑‑‑Yes.

PN497

Is that something that - when did that first come to your attention?‑‑‑When we actually appointed or started to speak to Jennifer Wyborn.

PN498

I see. To what extent were you consulted about that provision as ASMOF?‑‑‑I had no visibility of that at all. I didn’t understand at that point the difference in the wording around the SEAs versus the ARINs.

PN499

So that was never brought to your attention?‑‑‑No. No.

PN500

What significance are SEAs to people in your position, senior medical practitioners?‑‑‑People within the intensive care unit, especially, incredibly significant.

PN501

Why?‑‑‑It can make up a large proportion of their income and often the reason they moved to the ACT from other jobs.

PN502

I think it was put to you by Ms Robinson that you had a problem with the end product, the agreement that was being put, but not with the process by which it got there?‑‑‑I was worried by the process once I saw the end product. So I had not had enough visibility, I didn’t understand what the process had been and I don’t feel ASMOF communicated that well enough to me over the time.

PN503

THE DEPUTY PRESIDENT: Is that an issue with the process or is that an issue with the bargaining representative that you chose?‑‑‑Is that question for me?

PN504

Yes?‑‑‑Sorry. Prior to this process that I’ve undertaken now, I didn’t actually even understand that I could sit there as a bargaining representative at that table. I didn’t think that I was allowed, so I had no understanding until these proceedings right now.

PN505

So you would have received the notice of employee representational rights at the beginning of the bargaining process?‑‑‑Which I clearly didn’t understand. I do now, but I didn’t understand then.

*** BRONWYN JANE AVARD RXN MR CHIN

PN506

You spoke to ASMOF, did you not? I think your evidence was before that you spoke to ASMOF?‑‑‑So ‑ ‑ ‑

PN507

And at different stages you had contact with ASMOF?‑‑‑Yes.

PN508

Did you raise concerns about process at that stage? Did you raise concerns about lack of feedback?‑‑‑No, I ‑ ‑ ‑

PN509

Did you discuss the progress of the negotiations?‑‑‑I raised concern about lack of feedback, but I didn’t understand the process and said I didn’t really understand what was going on to the person who I met in the corridor, Peter Collignon, but I again never received any further invitations or feedback or come along to a meeting. I would have been quite happy to do so.

PN510

When you received the briefing material in terms of the draft agreement that was circulated, did you raise any questions at that stage, given that I presume that would have been an information pack explaining the agreement?‑‑‑There was a one-page summary of the changes from the perspective of ACT Health, and then there was just a link to the agreement on an external website and I looked at both of those and I spoke with Peter Collignon at the time, and he said he was no longer in charge. I didn’t even know that that had happened, and that he would get somebody to contact me, and nothing ever happened.

PN511

MR CHIN: In that one-page agreement and the link to the enterprise agreement, was, for instance, the existence for the first time of a provision which said your SEA will expire, of itself, within 15 months, was that ever specifically brought to your attention?‑‑‑No.

PN512

What would have been your expectation of your representative had such a provision been included in the proposed agreement?‑‑‑My - I was shocked when I found that out and I would have wanted to know that, along the process, that that was an issue. Was that what you asked?

PN513

Yes. What was your expectation if such a provision had arisen in the agreement?‑‑‑That I would be contacted. I am an ASMOF member and they were sitting there and bargaining on my behalf, I would have expected to be told that. That is a significant effect for me and my staff.

*** BRONWYN JANE AVARD RXN MR CHIN

PN514

If you had have read the agreement word for word, you might have been alerted to it; that’s correct, I suppose?‑‑‑If I had had legal training, I think I would have. The way these things are written, they’re very challenging for a layperson to actually understand.

PN515

Yes. Thank you. Secondly, you were asked about a duty statement for senior registrars and you were asked about the extent to which they performed training duties, that that was part of their role, of less senior or less experienced junior medical officers?‑‑‑Yes.

PN516

Can I ask you to look at paragraph 26 of your second statement?‑‑‑26, did you say?

PN517

I’m sorry ‑ ‑ ‑ ?‑‑‑That starts, “In relation to” ‑ ‑ ‑

PN518

No, no. I’m sorry, I’ve taken you to the wrong portion. Just bear with me. No, that’s the right provision, I was looking at the wrong statement. So the second statement, paragraph 26?‑‑‑26, yes.

PN519

THE DEPUTY PRESIDENT: I think we’re all going to have document management issues.

PN520

MR CHIN: Indeed, yes. Page 566, perhaps that’s a better reference point. You talk there about - I’m sorry, I withdraw that?‑‑‑Are you on the wrong one? I’ve got page 543.

PN521

THE DEPUTY PRESIDENT: I was going to ask the same question, thank you, Dr Avard.

PN522

MR CHIN: Yes, yes. Page 543. Paragraph 26 on page 543?‑‑‑Yes.

PN523

You talk there about the extent to which junior medical officers undertake training themselves, of others, and you see the last sentence there?‑‑‑Yes.

PN524

I want to ask you this; to the extent that, say, for instance, senior registrars or registrars do train of others, how do they learn how to train?‑‑‑By actually being taught by senior medical practitioners. So it’s an important function of learning how to be a senior medical practitioners is to learn how to train and learn how to determine competence.

PN525

Finally, you were asked some questions by his Honour about working in a coordinated fashion with junior medical officers who are present, who then consult you if some deterioration happens and there needs to be an exchange of information; you remember those questions?‑‑‑I do, yes.

*** BRONWYN JANE AVARD RXN MR CHIN

PN526

If remedial action is required, who is responsible for deciding what remedial action is to be taken?‑‑‑senior medical practitioner.

PN527

And who is responsible for the implementation or execution ultimately of those actions?‑‑‑The senior medical practitioner.

PN528

In what sense are they responsible, in a practical sense?‑‑‑By actually taking the person through, demonstrating competency again, essentially going through another training pathway - another training process for that particular issue.

PN529

Nothing further, your Honour.

PN530

THE DEPUTY PRESIDENT: Thank you, Mr Chin. Thank you, Dr Avard, you are excused.

<THE WITNESS WITHDREW [12.55 PM]

PN531

THE DEPUTY PRESIDENT: I think that’s probably a good time to break for lunch. I suggest we resume at 10 to two this afternoon.

LUNCHEON ADJOURNMENT [12.55 PM]

RESUMED [2.00 PM]

PN532

THE DEPUTY PRESIDENT: Mr Tse is your next witness?

PN533

MR CHIN: Yes, thank you. I call Dr Oerder, O-e-r-d-e-r.

<VAUGHN MARK OERDER, AFFIRMED [2.00 PM]

EXAMINATION-IN-CHIEF BY MR CHIN [2.00 PM]

PN534

MR CHIN: Mr Oerder, can I just hand to you a folder containing your statements filed for the purpose of these proceedings? Thank you. You’ll see the folder is open at tab 6. You’ve prepared and provided two statements for the purpose of these proceedings, have you not?‑‑‑I have indeed.

PN535

The first, is that the statement that appears behind tab 6 in that folder dated 21 February 2015? It has eight annexures, annexures A to H?‑‑‑Yes, it is.

*** VAUGHN MARK OERDER XN MR CHIN

PN536

Do you say the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN537

I tender that statement, your Honour.

PN538

THE DEPUTY PRESIDENT: I mark that exhibit C8.

EXHIBIT #C8 STATEMENT OF VAUGHN OERDER DATED 21/02/2015 WITH EIGHT ANNEXURES

PN539

MR CHIN: If you could kindly turn to the next tab, tab 7? That is your supplementary statement dated 9 March 2014, is it not?‑‑‑Yes.

PN540

That has two annexures, annexures A and B?‑‑‑Yes.

PN541

Do you say the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN542

I tender that statement.

PN543

THE DEPUTY PRESIDENT: I’ll mark that exhibit C9.

EXHIBIT #C9 SUPPLEMENTARY STATEMENT OF VAUGHN OERDER DATED 09/03/2013 WITH TWO ANNEXURES

PN544

MR CHIN: That’s the evidence-in-chief.

PN545

THE DEPUTY PRESIDENT: Ms Robinson?

CROSS-EXAMINATION BY MS ROBINSON [2.00 PM]

PN546

MS ROBINSON: Thank you, Dr Oerder. Now, on 13 April 2013, you received a bargaining notice, notice of representational rights, is that correct?‑‑‑Yes.

PN547

As a consequence of that notice, you nominated Dr Matthieson as your bargaining representative?‑‑‑Yes.

*** VAUGHN MARK OERDER XXN MS ROBINSON

PN548

You in turn were nominated as a bargaining representative?‑‑‑Yes.

PN549

Do you agree you attended two bargaining meetings?‑‑‑Yes, yes.

PN550

One in November 2013 and another on, I think, 25 September 2013?‑‑‑The dates might be incorrect, but I think it’s those dates, there or thereabouts, yes.

PN551

Do you agree that at one of those meetings, on 25 September, you raised concerns about the use of on-call and recall of senior specialists?‑‑‑Absolutely.

PN552

Would you agree that your comments about those matters were accurately reflected in the minutes?‑‑‑Yes.

PN553

On the second occasion, the November meeting, you said very little, is that correct?‑‑‑Correct.

PN554

Do you agree that you had an opportunity to raise any concerns you had during those two meetings?‑‑‑Yes.

PN555

Do you agree that the concerns you raised about the use of TOIL for senior specialists were addressed in the proposed agreement?‑‑‑No.

PN556

Do you agree that changes were made in the proposed agreement to make it clearer that TOIL could be accessed by senior specialists?‑‑‑Could you clarify your question? You are asking if - sorry, just repeat for me?

PN557

I’ll be clearer. Do you agree that changes were made to the TOIL arrangements for senior specialists in the new proposed agreement?‑‑‑Yes.

PN558

Do you agree that you did not raise any concerns during the two meetings you attended about the process of the negotiations?‑‑‑Yes.

PN559

Do you agree you didn’t raise any concerns about the process of the negotiations outside the bargaining process, outside those meetings?‑‑‑Yes.

PN560

You would agree that Mr Steven Linton was one of the bargaining representatives at those meetings?‑‑‑Yes.

*** VAUGHN MARK OERDER XXN MS ROBINSON

PN561

You talked to Mr Linton, not commonly, but reasonably regularly, about a number of issues?‑‑‑Yes.

PN562

Do you agree you didn’t raise with Mr Linton any concerns about the progress of the enterprise agreement negotiations?‑‑‑Yes.

PN563

Now, what I understand you did raise with Mr Linton was a concern about the TOIL and on-call arrangements?‑‑‑Yes.

PN564

Mr Linton explained that Health understood there were issues with on-call and recall and that it shouldn’t be used as a substitute for overtime, is that correct?‑‑‑Yes.

PN565

But what he suggested was that one of the solutions available to this problem would be a better rostering arrangement where specialists were rostered on at the times they were most needed?‑‑‑Correct.

PN566

Now, at the conclusion of the bargaining process, you signed the draft agreement?‑‑‑Yes.

PN567

That agreement was put to a vote?‑‑‑I guess so.

PN568

Some 83 per cent of those who voted, voted in favour of the agreement; you’re aware of that?‑‑‑I have become aware of that, yes.

PN569

You didn’t raise any concerns about the voting process with anyone?‑‑‑I wasn’t aware there was a vote going on. I did not receive a ballot and was never asked to vote.

PN570

So you’re saying you didn’t actually receive a ‑ ‑ ‑ ?‑‑‑No.

PN571

Do you regularly received Ozstaff emails?‑‑‑Yes.

PN572

Do you regularly check your emails?‑‑‑Yes.

PN573

When did you find out about the vote?‑‑‑When it had been - when it had become alerted to me by one of the intensive care consultants.

*** VAUGHN MARK OERDER XXN MS ROBINSON

PN574

Did you advise anyone at ACT Health that you did not receive a ballot?‑‑‑No.

PN575

During the course of the bargaining meetings that you attended, did you raise any concerns about the scope of the agreement?‑‑‑Just that I was mandated by my department.

PN576

Would you agree that the only reason you’re here today, and you’ve appointed Ms Wyborn as your bargaining representative, is you are dissatisfied with the outcome of the process?‑‑‑Of the - yes.

PN577

I have no further questions.

PN578

THE DEPUTY PRESIDENT: Thank you, Ms Robinson. Mr Wilson?

PN579

MR WILSON: Thank you, your Honour.

CROSS-EXAMINATION BY MR WILSON [2.08 PM]

PN580

MR WILSON: Dr Oerder, you’re an anaesthetist, correct, if I understand you correctly?‑‑‑Yes.

PN581

By virtue of that profession, if you like, you’d agree with me that you could provide anaesthetic services - perhaps that’s not the right term, forgive me, I’m a layperson - at any facility in the ACT?‑‑‑Provided I was credentialed at that facility, yes.

PN582

Yes. Yes, indeed. You aren’t limited in the practice of your speciality to the Canberra Hospital?‑‑‑I’m an internationally-qualified doctor, so I have limitations placed upon me as part of an immigration process, but not through the enterprise agreement as it stands and as it pertains to others and my colleagues, no.

PN583

You certainly could provide anaesthetic services at any facility that did surgery in the ACT?‑‑‑Yes.

PN584

Thank you. You are the deputy director of anaesthesiology, that is a department, is it, within the Canberra Hospital?‑‑‑Yes.

PN585

Within that department, does training of anaesthetists occur?‑‑‑Yes.

*** VAUGHN MARK OERDER XXN MR WILSON

PN586

Any other type of employee?‑‑‑We have senior medical officers who rotate through as part of a critical care rotation. We have intensive care registrars who rotate through in order to acquire some airway skill knowledge and the same is true for emergency department trainees.

PN587

Does research happen within that department?‑‑‑We have some ongoing research within the unit. It is run by individual consultant anaesthetists, but there is no research unit set up, as such.

PN588

Are you aware through, if I put it this way, the things that have been going on, here at least, or perhaps in your work at the Canberra Hospital, about the general hospital trust fund; you’re aware of that?‑‑‑I have limited knowledge of it, yes.

PN589

But you’re aware of its existence?‑‑‑Yes.

PN590

In your capacity as the deputy director of anaesthesiology, have you had cause to be involved in any applications made to that fund?‑‑‑No.

PN591

Do you otherwise know how that process works in your department?‑‑‑In terms of funding for research or accessing that particular funding?

PN592

Accessing the particular funding?‑‑‑I would be sketchy at the best to describe it. I would have to say no.

PN593

I have no further questions of the witness.

PN594

THE DEPUTY PRESIDENT: Thank you. Mr Chin.

PN595

MR CHIN: Thank you, your Honour.

RE-EXAMINATION BY MR CHIN [2.11 PM]

*** VAUGHN MARK OERDER RXN MR CHIN

PN596

MR CHIN: Dr Oerder, you were asked some questions about the bargaining process and you referred to your role as bargaining agent. You used the expression “as mandated by your department”. What did you mean by that?‑‑‑We, as a department, had in discussions with ASMOF, realised that they were less keen to represent some specific concerns we had with the EA as they pertained specifically to work on weekends or on-call work that was essentially non‑lifesaving and limb-saving surgery, and how that was being remunerated under a flat rate, and I was asked to go and represent those concerns at the bargaining table.

PN597

What was your understanding of the scope of your role as bargaining agent, in terms of the concerns you were to raise?‑‑‑I was to talk specifically to that matter. I don’t for one minute assume to have enough know-how or knowledge to address the entire EA and ‑ ‑ ‑

PN598

What was your understanding at the time of how your interests as a senior specialist was to be - more broadly than the on-call/recall issue, was to be represented in the bargaining process?‑‑‑I understood that ASMOF would be taking the primary responsibility for that.

PN599

THE DEPUTY PRESIDENT: Can I just ask a question around that because I think your evidence before was that you appointed somebody else as a bargaining representative for yourself?‑‑‑I did indeed, Deputy Director. The role of directing Mr Matthieson was that we acknowledged and realised that we may at points have clinical commitments which might make it difficult for either or both of us to attend, and as such, within the department structure, we just made a nominal nomination. Although Mr Matthieson, or Dr Matthieson, I apologise, was appointed as my bargaining representative, I did so with the similar sort of mandates, that he would be there to represent that particular concern.

PN600

In terms of the concept, then, of what you’ve just said, ASMOF also representing you, you had one bargaining representative in a process and I’m assuming that’s Dr Matthieson, if you’ve signed a particular instrument of appointment?‑‑‑That would be fair.

PN601

I presume that Dr Matthieson or yourself, in terms of your participation, would have presumably fed back the issues emerging from the negotiations to your colleagues in the anaesthesia department?‑‑‑With respect to our mandate, yes, sir.

PN602

When you say “mandate”, what does that - I mean, is it an issue that, collectively, the anaesthetists said that this is our key concern and we actually want to have this resolved through the bargaining process?‑‑‑We absolutely felt so.

PN603

You did your best, and presumably Dr Matthieson did his best in terms of raising that issue in the context of negotiations?‑‑‑We did.

*** VAUGHN MARK OERDER RXN MR CHIN

PN604

You didn’t necessarily get the outcome that you were seeking?‑‑‑There were actions that were put in place on the actions of some of the outcome of the meetings whereby Professor Bowden and the professor of the department were supposed to have a meeting to discuss those. I was not even made aware of whether that meeting took place or the outcome of that meeting.

PN605

MR CHIN: So just to clarify, what was your understanding of the scope of Dr Matthieson’s role as bargaining agent?
---We effectively performed the same duty, but acknowledged that we may not be able to both attend, or I may be prohibited from attending as a result of other commitments, and as such, felt that we should have two people who could potentially present the same issues.

PN606

In the meetings you attended, who else was represented in those meetings? What other parties were there?‑‑‑We were instructed that we weren’t allowed to attend with ASMOF and so we attended with the AMA. Mr Oslans(?) was present and I think the secretary of the AMA, Professor Bowden, Mr Linton, myself and Dr Matthieson.

PN607

So far as the negotiations or bargaining to which ASMOF was participating, that was in a separate bargaining stream, was it? Is that correct, and that was a process in which you had no participation at all?‑‑‑Correct.

PN608

What was your understanding as to ASMOF’s role in that second bargaining stream?‑‑‑ASMOF had proved to be fairly good negotiators with respect to the general enterprise agreement, as had been shown since my employment at ACT Health, and they would be, in the broader sense, looking after all the other concerns as they relate to senior medical practitioners.

PN609

Senior medical practitioners, yes?‑‑‑Yes.

PN610

One of the issues of concern, as you and other specialists have raised through Ms Wyborn, has been the issue relating to special employment arrangements, SEAs, correct?‑‑‑Correct.

PN611

SEAs are of particular concern to senior specialists, or specialists?‑‑‑Yes.

PN612

Why is that?‑‑‑They now contribute a significant portion of people’s income and the process by which they are managed is not necessarily as clearly-defined as we would like.

PN613

I think you have given evidence in your statement about various SEAs that apply to your position, employment?‑‑‑Yes.

*** VAUGHN MARK OERDER RXN MR CHIN

PN614

You make some comment about the observation that at least two of those SEAs have never been reviewed by ACT Health, is that correct?‑‑‑Correct.

PN615

What was the extent of your knowledge about - you’re aware now that there’s a new provision in the EA, proposed enterprise agreement, automatically rendering your SEAs as expiring after a period of some 15 months? You’re aware of that?‑‑‑Yes.

PN616

That’s one of the issues of concern and one of the issues about which you’ve instructed Ms Wyborn to raise?‑‑‑Correct.

PN617

What was the extent of your knowledge about that provision during the bargaining process?‑‑‑So I certainly only truly gained a deeper understanding when I had that meeting with my colleague from intensive care, and in fact, we argued extensively about the fact that he had misunderstood the EA and I, only upon going back and reading it again, became aware of the 15-month clause.

PN618

Why did you misunderstand that provision?‑‑‑I had read the initial statement which - the initial, original EA governs the SEA and talks about reviewing it on an annual process. The new EA, I assumed, had said the same, but I did not realise there had been modifications to that.

PN619

What steps did ASMOF take to bring that provision to your attention during the bargaining process?‑‑‑So I’m not an ASMOF member, and so as such, I received no notification of that.

PN620

THE DEPUTY PRESIDENT: Did Dr Matthieson who was the bargaining representative who you appointed to act on your behalf bring it to your attention?‑‑‑No. Unless Dr Matthieson was an ASMOF rep - excuse me, ASMOF member, he wouldn’t have been notified by it either.

PN621

That’s not quite the question I asked. I’ll ask a slightly different question first before I come back to that one. Did Dr Matthieson participate in any of the bargaining sessions?‑‑‑Yes.

PN622

Arising out of that, did Mr Matthieson provide feedback to you in terms of what was agreed in the context of these negotiations around the SEAs, the issue of SEAs?‑‑‑No.

*** VAUGHN MARK OERDER RXN MR CHIN

PN623

MR CHIN: Just to clarify, Dr Matthieson only participated in the bargaining stream in which you and the AMA were involved, is that correct?‑‑‑Correct.

PN624

Dr Matthieson was not involved in the bargaining stream involving ASMOF?‑‑‑Correct.

PN625

Yes. Nothing further, your Honour.

PN626

THE DEPUTY PRESIDENT: Thank you, Dr Oerder, you’re excused. Thank you.

<THE WITNESS WITHDREW [2.20 PM]

PN627

MR CHIN: Our next and final witness required, your Honour, is Dr Heman Tse, T-s-e. I call Dr Tse.

<HEMAN TSE, AFFIRMED [2.21 PM]

EXAMINATION-IN-CHIEF BY MR CHIN [2.22 PM]

PN628

MR CHIN: Dr Tse, you have provided this Commission with one witness statement for the purpose of these proceedings ?‑‑‑Yes.

PN629

You have a folder in front of you in the witness box there. Can I ask you to turn to tab 11. It’s probably the final tab?‑‑‑Yes. Got it.

PN630

Is that your statement dated 20 February 2015?‑‑‑Yes, correct.

PN631

Do you say that the contents of the statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, that’s correct.

PN632

I tender that statement, your Honour.

PN633

THE DEPUTY PRESIDENT: I’ll mark that exhibit C10.

EXHIBIT #C10 STATEMENT OF HEMAN TSE DATED 20/02/2015

PN634

MR CHIN: That’s the evidence-in-chief.

*** HEMAN TSE XN MR CHIN

PN635

THE DEPUTY PRESIDENT: Thank you. Ms Robinson?

CROSS-EXAMINATION BY MS ROBINSON [2.22 PM]

PN636

MS ROBINSON: Dr Tse, you’re a specialist anaesthetist, is that correct?‑‑‑Yes, that’s correct.

PN637

I’m going to be using very lay terms, so you’ll have to forgive me, but as I understand it, the role of an anaesthetist is to alleviate a patient’s pain?‑‑‑Correct. That’s true.

PN638

You’re doing so in situations where you’re often trying to keep that patient alive but unconscious while surgery is being performed on the patient?‑‑‑Yes, that’s correct.

PN639

Yes, amongst other things?‑‑‑Amongst other things, correct.

PN640

That’s a job that takes a lot of skill, I would imagine. You’re literally holding someone’s life in your hands?‑‑‑Correct.

PN641

Would it be correct to say that if you don’t exercise the appropriate degree of skill, the consequences for the patient could be very significant?‑‑‑I would agree with that, yes. Correct, yes.

PN642

Indeed, they could be catastrophic?‑‑‑Yes. For sure.

PN643

Now, you say in your statement I think at paragraph 5, that to be a qualified anaesthetist, it takes some 10 years of training as a junior medical officer?‑‑‑Mm-hm.

PN644

Correct?‑‑‑Yes.

PN645

That is, as I understand it, on top of your medical degree, is that ‑ ‑ ‑ ?‑‑‑That’s correct, yes.

PN646

During those 10 years, you would gradually increase in responsibility, in terms of what you can do?‑‑‑Yes, that’s true.

*** HEMAN TSE XXN MS ROBINSON

PN647

How many years into your training did you first intubate a patient?‑‑‑Probably six years into my work as a resident, as a resident - about four years into my work as a resident medical officer, something like that. So a four years post medical school.

PN648

That’s resident medical officer?‑‑‑Yes, correct. Yes.

PN649

How many years in training did you first give someone a regional anaesthesia?‑‑‑Probably - the earliest one, if you - depends on your definition. Probably the fullest definition of regional anaesthesia that I can think of would be probably first year as a registrar. That’s in about 2008, so that’s about five years post medical school.

PN650

The first time you did that, was that under the supervision of a senior medical officer?‑‑‑Yes, correct. Yes.

PN651

So that would have involved a senior medical practitioner in the room with you at the time?‑‑‑Correct, yes.

PN652

At what stage in your career did you first give someone a regional anaesthesia, without a senior medical practitioner in the room?‑‑‑Probably - if you used the fullest description of regional anaesthesia, and I include this as your actual anaesthesia such as spinals and epidurals, later in 2008, so we’re talking about six months into that year, but that is also with some degree of remote supervision, if you like.

PN653

So you were certainly were supervised remotely, but you weren’t supervised at the time you were actually giving the ‑ ‑ ‑ ?‑‑‑Depending on the clinical situation and circumstances, it would change. Some, I would have to have direct supervision and others would be just remote supervision.

PN654

So in some of those cases, not all, but some of those cases, it’s supervision after the fact, effectively. So you’ve given the anaesthesia and then you’re consulting with the SMP about what happened?‑‑‑Not always. At the start of my training in anaesthesia, there was an expectation that certainly - depends a little bit on where you worked, but - and who your consulting SMP is, there would be some discussion about - before the fact as to what your plan is. So it’s not always after the case.

PN655

No, but in cases, it would have been after the case?‑‑‑Yes.

*** HEMAN TSE XXN MS ROBINSON

PN656

How many years into your training did you first give a patient a general anaesthesia?‑‑‑That would be the first year of my registrar training, which is 2008, again.

PN657

I would imagine on that occasion, you would have been supervised by a senior medical practitioner, you agree?‑‑‑Yes, correct.

PN658

When did you first give a patient a general anaesthesia without a senior medical practitioner?‑‑‑Possibly - I think around 2008, the middle. Again, it’s the first year of my registrar training in which, you know, my roles and responsibility has been upskilled gradually.

PN659

I would imagine - I can really only imagine - but the first time you gave an anaesthesia without direct supervision would have been quite stressful?‑‑‑Definitely.

PN660

Thinking back to those years when you were a registrar and senior registrar, would there have been occasions when you were the most senior medical practitioner at work at the hospital in anaesthesia, at that particular time?‑‑‑So, sorry, could you repeat that again?

PN661

I’ll be a bit clearer?‑‑‑Sorry, yes.

PN662

Would there have been occasions, particular times of day, for example, or particular times of night where, as a senior registrar, you would have been the most senior person in anaesthesia on at the hospital?‑‑‑Yes, there would be. Yes, definitely.

PN663

Would you say that after, say, 10 pm at night, it would be quite common for a senior registrar to be the most senior anaesthetist on?‑‑‑Yes, I’d agree.

PN664

Would it also be quite common, after 10 pm for example, for surgery to be conducted by a senior registrar in anaesthetics and a senior registrar in surgery?‑‑‑Yes. Again, it depends a little bit on the complexity of the case, but yes, generally that’s ‑ ‑ ‑

PN665

Perhaps an example, perhaps an emergency caesarean, for example?‑‑‑Yes. Yes, correct.

*** HEMAN TSE XXN MS ROBINSON

PN666

In paragraph 13 of your statement, particularly the last sentence, you say that you’re responsible for the unexpected outcomes of surgery?‑‑‑Mm-hm.

PN667

And you also say that you’re responsible for those unexpected outcomes even when the junior medical officer hasn’t consulted with you?‑‑‑Yes.

PN668

So again, there’s going to be circumstances where the junior medical officer simply isn’t able to consult with you before they make a certain decision or undertake a certain procedure?‑‑‑Potentially, yes.

PN669

I’m not suggesting that that’s not a form of supervision; clearly it is a form of supervision. You’ve chosen that registrar, you’ve ensured they’re trained to an appropriate degree, you consult with them afterwards, but it’s not necessarily direct supervision on each occasion?‑‑‑Yes, it’s not direct one to one supervision, but there is scope and this is what I do at the start of on-call shifts, to determine the level of seniority beforehand and have usually at least a 15-minute discussion with them to establish where they are and where they’re comfortable with in the decision-making and encourage them to call if anything concerns them.

PN670

But you’re effectively making the decision in that situation, is this registrar capable of handling what is likely to happen without the need for a senior medical practitioner to be here with them?‑‑‑Yes. I’m making that risk assessment at the time, yes.

PN671

You say in paragraph 12 of your statement, again, particularly the last paragraph, “Ultimately, the buck stops with me now, whereas before as a JMO, the buck stopped with my supervising SMP”?‑‑‑Correct.

PN672

Are you saying that a JMO under your supervision effectively has no responsibility for the work they’re undertaking?‑‑‑I’m saying that they have responsibility for their own work, but if there’s a bad outcome, then I need to be responsible for that.

PN673

But if there is a bad outcome, for example, the junior medical officer would also be responsible?‑‑‑To some degree, yes.

PN674

They would presumably have some of civil liability, for example?‑‑‑Yes, but I’m not - to be honest, because I haven’t - I’ve been very lucky, in some ways, I haven’t been involved in a lot of critical incidents in my time, training as a JMO, I personally have no experience of major bad outcomes or civil liabilities.

*** HEMAN TSE XXN MS ROBINSON

PN675

Presumably, one of the reasons why you haven’t had any of those adverse outcomes is that you’ve taken your role very responsibly, as a JMO?‑‑‑Yes.

PN676

Took a lot of care for your patients to ensure that you had the right skills and competence, and you accepted responsibility for those patients who, as a registrar, were your patients and who you had oversight of while you were engaged on the ward?‑‑‑Yes, and on top of that, with consultation on a daily basis with supervising medical officers.

PN677

So you’d agree that JMOs had enormous responsibility?‑‑‑Yes, I think so, yes.

PN678

No further questions.

PN679

THE DEPUTY PRESIDENT: Thank you, Ms Robinson. Mr Wilson?

PN680

MR WILSON: I have no questions of this witness.

PN681

THE DEPUTY PRESIDENT: Mr Chin?

RE-EXAMINATION BY MR CHIN [2.32 PM]

PN682

MR CHIN: Dr Tse, just briefly. You were asked some questions about when you happened to be the most senior person in anaesthesia at the hospital as a JMO. At those times, what support does a JMO have?‑‑‑Immediately, there’s always a senior medical officer on call. So I’m thinking of the situation where there’s no other senior anaesthetic JMO around, you would immediately discuss with the person on call, the senior medical officer - practitioner, rather.

PN683

It was put to you that you’re not suggesting JMOs have no responsibility, I think your answer was, no, of course not, but ultimately as the senior practitioner, you’re responsible for bad outcomes?‑‑‑Mm.

*** HEMAN TSE RXN MR CHIN

PN684

How do you compare the type of responsibility exercised as a JMO, as you were and as you are now as a senior medical practitioner?‑‑‑Well, as the senior medical practitioner, I feel like I’m responsible for not only the events happening in anaesthesia in theatres, but also to some degree the welfare of the JMO as well, and whether this - so as I mentioned in my statement, the buck stops with me, but also whether the abilities of your JMO to cope under these, can be, quite stressful situations is sufficient or whether you need to - and sometimes that would be one of the reasons why you will come into work after hours because you’re there to support, hand hold, if you like, the JMO as well, so there’s an added responsibility.

PN685

Nothing further, your Honour.

PN686

THE DEPUTY PRESIDENT: Thank you, Dr Tse. You’re excused?‑‑‑Okay. Thank you, your Honour.

<THE WITNESS WITHDREW [2.35 PM]

PN687

THE DEPUTY PRESIDENT: Next on my list of witnesses is an ASMOF witness, Dr Hallam; is ASMOF here?

PN688

MS ROBINSON: Yes, I believe so.

PN689

THE DEPUTY PRESIDENT: Is Dr Hallam ready to be called? Just while we’re waiting, I think probably in terms of programming today, my sense is we might get through all of the witness evidence. I’m not sure we’ll get through closing submissions, so we’ll probably need to deal with some programming at the conclusion of today.

PN690

MR CHIN: I think that a good prospect, your Honour. My instructions were to inquire as to whether there’s any possibility of the Commission sitting on a little longer to deal with the submissions. I’m not in a position to say that that would accommodate the submissions, but I thought I would inquire.

PN691

THE DEPUTY PRESIDENT: Well, in terms of sitting on, I can, but we might just sort of see what the lie of the land is when we actually conclude the witness evidence and have that conversation then.

PN692

MR CHIN: Yes.

PN693

THE DEPUTY PRESIDENT: Do you have any particular requirements? Are you locally-based, Mr Chin?

PN694

MR CHIN: I’m not. I’m not constrained this evening, I just need to be back in court in Sydney tomorrow. That’s my only constraint.

PN695

THE DEPUTY PRESIDENT: I don’t think there’ll be any risk that you’ll miss that one, so I think you’re safe on that front.

PN696

MR CHIN: Thank you, your Honour.

<LAVINIA ANNE HALLAM, AFFIRMED [2.37 PM]

EXAMINATION-IN-CHIEF [2.37 PM]

PN697

THE DEPUTY PRESIDENT: Welcome, Dr Hallam. Please have a seat.

PN698

Is anyone here representing ASMOF from the Bar table? No? I might do the formalities in terms of the witness statement and then we can just throw it open for cross‑examination.

PN699

Dr Hallam, you have provided a witness statement which is dated 24 February and runs to 12 paragraphs. Is that a true and accurate statement of your evidence in this matter?‑‑‑Yes, it is.

PN700

Are there any changes that you wish to make to that particular witness statement?‑‑‑No.

PN701

Do you wish to tender that witness statement?‑‑‑Yes, please.

PN702

I’ll mark that as exhibit ASMOF1?‑‑‑Thank you.

EXHIBIT #ASMOF1 WITNESS STATEMENT OF LAVINIA ANNE HALLAM DATED 24/02/2015

PN703

THE DEPUTY PRESIDENT: Mr Wilson, I understood you wished to cross-examine the witness?

PN704

MR WILSON: Yes, please. May I approach the witness?

PN705

THE DEPUTY PRESIDENT: You can.

PN706

THE WITNESS: Thank you.

*** LAVINIA ANNE HALLAM XN

PN707

THE DEPUTY PRESIDENT: There’s no reason you shouldn’t share the pleasure of the rest of us in terms of managing files?‑‑‑Shall I close this one?

PN708

MR CHIN: I’m sorry, your Honour. I think there’s volume 2 of ours. Could it be returned?

PN709

THE DEPUTY PRESIDENT: Yes. We wouldn’t want overload.

PN710

MR CHIN: No.

CROSS-EXAMINATION BY MR WILSON [2.39 PM]

PN711

MR WILSON: Dr Hallam, I have given you a duplicate of the material that I have provided to the Commission in precise order and I also have the same thing as you in front of me. All right?‑‑‑Thank you.

PN712

You will see, I hope, a tab that says “Witness statement of Hany Elsaleh”, can you see that tab?‑‑‑Yes.

PN713

If you just go to the first page, you’ll see a heading, “Witness statement of Hany Elsaleh”, can you see that?‑‑‑That’s correct.

PN714

Would you please turn to paragraph 83 of that statement. I’ve neglected to number the pages of it in any way, I regret, Dr Hallam, but you should simply just track through the paragraphs?‑‑‑I have 83.

PN715

Thank you. Now, you don’t take issue that at all material times, and by that I mean at any relevant time to my application, or indeed, the issue of the proposed enterprise agreement, bargaining for it, et cetera, that Dr Elsaleh was a member of your organisation, do you?‑‑‑I haven’t got the figures in front - the memberships and the times, but as far as I’m aware, Dr Hany has been a member.

PN716

Dr Elsaleh, Dr Hany Elsaleh?‑‑‑Sorry.

PN717

Would you consider that that would be the case also in relation to Lyn Austin, Brendan Newan and Lisa Sullivan and Ken Sunderland, if you look at the next paragraph?‑‑‑I understand that is correct.

PN718

Thank you, Dr Hallam?‑‑‑Without obviously checking the database.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN719

Yes. Now, you are also, in addition to your role with the ASMOF organisation, an anatomical pathologist?‑‑‑That’s correct.

PN720

What’s that?‑‑‑It’s a pathologist that deals primarily with tissue pathology, so either biopsies or surgical specimens or autopsies.

PN721

You’re aware that specialists and senior specialists under the current enterprise agreement, if I could call it that, have rights of private practice, is that so?‑‑‑That’s correct.

PN722

You’re aware of that? In relation to that right, there are a number of schemes?‑‑‑There are two schemes.

PN723

Are there? Well, perhaps if I can explore. There’s a scheme A, isn’t there?‑‑‑Sorry. I was misunderstanding which schemes you were talking about.

PN724

Yes?‑‑‑Yes, there are A, B and C.

PN725

For the remuneration that relates to private practice?‑‑‑Yes.

PN726

There’s a scheme B?‑‑‑That’s correct.

PN727

There’s a scheme C?‑‑‑That’s correct.

PN728

There’s also something called a radiology scheme?‑‑‑That’s correct.

PN729

And lastly but perhaps not least as far as you’re concerned, there’s a pathology scheme?‑‑‑That’s correct.

PN730

Under the proposed enterprise agreement, that is - let me just tell you what I mean by that. Under the one that was voted for in October, there was a retention of the pathology scheme in relation to what it is in the existing enterprise agreement? Do you want me to repeat that?‑‑‑That’s correct, yes.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN731

Yes. In that regard, the only change to the scheme in that agreement that was voted on, in comparison to the current agreement that everybody is still under, was that the facility fee for the radiation oncologist went up to 30 per cent from 20, is that right?‑‑‑Yes, that’s - that increase certainly is in the new agreement.

PN732

Yes. That is the same in relation to the agreement that is currently proposed that we have been talking about ever since I arrived on the scene; correct?‑‑‑Can you please clarify that? I got a bit lost.

PN733

Yes, I can see how it is confusing. I was talking in my first question about the agreement that was actually voted for in October?‑‑‑Correct, yes.

PN734

And when everyone voted for that, whoever did vote, the only change in relation to facility fees and the schemes was in relation to radiation oncologist, which their facility fee was increased from 20 to 30 per cent?‑‑‑That’s correct. I think there were some minor changes of wording as well.

PN735

All right. That is the same in relation to the agreement that we’ve been talking about since I arrived on the scene?‑‑‑The proposed agreement?

PN736

Yes. I call it the proposed agreement?‑‑‑Yes.

PN737

So the only group of specialists that were singled out for punishment in an adverse way compared with their entitlements under private practice billing schemes, under the current agreement compared with either of the two agreements - proposed agreements - we’ve been talking about, where the radiation oncologists, right?‑‑‑There was an increase from 20 to 30 per cent. I think it also has to be admitted that that was the lowest facility fee for a proceduralist as opposed to outpatients and consultations.

PN738

THE DEPUTY PRESIDENT: Sorry to interrupt there, would you mind just explaining that for me a little bit more, Dr Hallam?‑‑‑Well, some of the other areas in health, for instance, for sleep laboratory, for ECGs, there were varying facility fees, and those were primarily higher facility fees for certain procedures. Pathology has 100 per cent facility fee, radiology has 100 per cent facility fee. I think ECGs are 50 per cent, but I’d have to check exactly the figures. EEGs had a raised facility fee.

PN739

MR WILSON: Those groups, if you like, did not have their facility increased, did they?‑‑‑That’s correct.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN740

You said that your pathology scheme has 100 per cent facility fee, is that right?‑‑‑That’s correct.

PN741

Why is that?‑‑‑Historical, I - the actual reasons behind that, I’m not sure, but certainly I’ve been involved in negotiations in the last three agreements and that has been - there has always been 100 per cent facility fee for radiology and pathology and because it’s 100 per cent facility fee, there has been a scheme to recompense the pathologists and radiologists. Currently, the amount of money earned in private practice by pathologists, and I can’t speak for radiology, exceeds the amount that is given to the pathologists as part of the scheme and that money, a proportion goes to the private practice trust fund. Again, I’m not - can’t quite remember the figures, but I thought it was about 9 per cent of a pathologist’s salary goes to the private practice fund and the remainder goes to revenue.

PN742

THE DEPUTY PRESIDENT: Is the rationale for the differing facility fees reflective of the extent to which the different specialist groups, if I describe it that way, have the capacity to see private patients within the hospital system?‑‑‑I think it’s one of the vagaries of Medicare funding, that anatomical pathologists, for instance, who have a much, much greater input into producing the result - I mean, if I did a prostate that had been removed, it could take me two or three hours to report that, not counting all the processing. The actual Medicare refund for that doesn’t equate with the amount of input from staff. However, by chemistry, you have a much lower fee, but they have a much greater throughput, and so in many, many pathology departments, the pathologists are treated equally and even in the private sector and the moneys coming in by chemistry, haematology, microbiology, anatomical pathology, goes in and everybody is basically, especially in the public hospitals, paid the same, even though the actual billings might be very different.

PN743

MR WILSON: You’ve read Dr Elsaleh’s statement that I took you to, have you?‑‑‑I have read it. I must admit, with all the other information that I’ve also read, I would not necessarily be able to recall it in huge detail.

PN744

But perhaps you recall the part in his statement where he describes his dealings with Dr Cormack, or Mr Cormack, I’m not sure who it is, and Professor Stewart Harris whilst he was negotiating to take up his position as director of radiation oncology. Did you read that?‑‑‑Yes, I did.

PN745

You also, as part of that, read how the radiation oncology sub-fund came into being, did you?‑‑‑Yes.

PN746

You would appreciate that it performs two functions, and I’ll describe what they are. For the first function it performs is that money in it from the private practice billings of radiation oncologists is used to pay remuneration in various forms to radiation oncologists, is that right?‑‑‑That’s correct.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN747

You’d be aware, would you, correct me if I’m wrong, that before money goes into the trust account, a facility fee is taken out?‑‑‑That’s my understanding from reading the documents.

PN748

You’re also aware that in addition to paying the remuneration of radiation oncologists, money in the fund is used to pay for a number of things that enhance the radiation oncology department, from reading Dr Elsaleh’s statement?‑‑‑Yes.

PN749

Like training?‑‑‑Yes.

PN750

And research?‑‑‑Yes.

PN751

Do you remember reading those sorts of things in his statement?‑‑‑In general terms, yes. I remember reading references to these.

PN752

Yes?‑‑‑I cannot say anything about the accuracy of what’s written because ASMOF is not involved in negotiations of these sort - this sort.

PN753

However, you don’t dispute, do you, Dr Hallam, that what Dr Elsaleh says in these regards? You don’t dispute that the funds in the radiation oncology sub-fund since its implementation have provided for improved technological cancer treatments?‑‑‑I agree that it’s in the - I mean, I can’t verify the information ‑ ‑ ‑

PN754

You don’t dispute, though?‑‑‑ ‑ ‑ - the information, I don’t dispute that that’s in the documents.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN755

You’d also not dispute, would you, that if the facility fee is increased, there’s going to be less money to provide for all of those sorts of things, isn’t there, at the end of the day?‑‑‑I would have - I would not be able to comment on the accounting of the figures provided. However, again, we’re down to the problem of the vagaries of Medicare funding, that even oncology treatment is not just reliant on radiation oncology. ASMOF has been very firmly of the belief that one central fund is the best way to move forward and fund these activities, and indeed, said that at the time that the radiation oncology sub-fund was set up. We were concerned that having a separate fund would be divisive amongst the salaried staff and that areas that do not have the same capacity to - because of the vagaries of Medicare, do not have the same capacity to achieve the same billings, and therefore, we do not - we have repeatedly said we do not think this is the best option. However, the decision - we have never said to ACT Health that the sub‑fund should be combined. We believe we are entitled to that opinion, that it is preferable to have one fund and it is between ACT Health and radiation oncology whether that fund continues, discontinues, is joined with the PPTF fund and again, view that the existence of the fund as part of an SEA for the radiation oncologists, it’s an item in that SEA and ASMOF do not believe the agreement - the only issues with SEAs that we believe ASMOF is involved in is ensuring that the process for a review, because that’s in the agreement, is fair and equitable, but all the provisions in an SEA are not part of ASMOF’s remit.

PN756

Go towards the back of the big folder you have, and you’ll see once you get past Dr Elsaleh’s statements, there is a tab that’s headed, “Supporting documents”, you see that?‑‑‑Yes.

PN757

If you look on the top right-hand corner, you’ll see that - perhaps thankfully - all these documents are numbered?‑‑‑Yes.

PN758

Now, if you then, Dr Hallam, go to page 338, top right-hand corner ‑ ‑ ‑ ?‑‑‑338?

PN759

338?‑‑‑Yes.

PN760

You will see that page 338 is a copy of a letter that you sent to me on 10 December?‑‑‑That’s correct.

PN761

In fact, if you look at the fourth paragraph down, you see that?‑‑‑That’s correct, yes.

PN762

It starts:

PN763

ASMOF ACT acknowledges the extraordinary development of the radiation oncology department brought about by the hardworking diligence of the staff specialist under the guidance of Dr Hany Elsaleh.

PN764

Right?‑‑‑That’s correct.

PN765

So ASMOF does agree that there has, in its words, been extraordinary development of the radiation ‑ ‑ ‑ ?‑‑‑That’s correct.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN766

You would have to attribute that, wouldn’t you, Dr Hallam, in considerable measure to the existence of the radiation oncology sub-fund?‑‑‑I think that the existence of the sub‑fund does - yes, that is correct. However, you know, I still believe that it is divisive to have separate funds, however, we have never requested that the ACT Health - we’ve said that our opinion is, and we feel that we’re entitled to that opinion, what arrangements ACT Health have with radiation oncology is between ACT Health and radiation oncology. One could also say that if the same amounts of money were available to all other specialities and they had good management, that the same would apply.

PN767

Indeed, if you look from the second sentence of that paragraph, what you’re saying in this letter is what you’re saying now, isn’t it, Dr Hallam?‑‑‑That’s correct.

PN768

Yes, indeed?‑‑‑With the addition of clarifying that we have never, as far as I’m aware, made any demands on ACT Health to subsume the radonc fund into the PPTF. We do believe we’re entitled to our opinion.

PN769

Yes, indeed. You’d agree with me, at the point of the proposal that the facility fee be increased from 20 per cent to 30 per cent, ASMOF’s interests were in line with the ACT’s, weren’t they?‑‑‑That’s incorrect. We said from the very beginning - originally, ACT Health wanted an increase to 50 per cent. We - ACT Health also wanted a review of all facility fees. We were happy to look at reviewing all facility fees. The stumbling block came when it was stated that an increase in facility fees would result in an improvement in billing and that the overall effect would be greater accountability and ability to bill would lead to overall increase of moneys for all parties. Our previous experience is that this has not been done consistently, properly or to the best procedures and that if we were to consider increases to facility fees, we would want some KPIs and some safeguards and some penalties. ACT Health decided that therefore it was too difficult and we were unwilling to increase the facility fees without those provisions. The result was that it was decided that we wouldn’t completely put the issue to bed, but that we would agree to a review during which our position would be very much the same as already stated, and that we have a veto as to whether the facility fees are changed. As far as the facility going from 20 to 30 per cent, we did, amongst other negotiators, for instance, radonc themselves, and ourselves and I’m not quite sure about the bargaining agents because we weren’t involved with this discussion with them, was that it would increase from 20 to 30 per cent. We felt it was very difficult to - in view of the fact that the 20 per cent is the lowest facility fee in the agreement, that - and that the costs of provision of a radonc service, that we couldn’t really justify holding up the whole agreement to hold out not to have an increase. Is that clear? It’s a bit rambling, I’m sorry.

PN770

My question related to a shared interest of the ACT and ASMOF. It would be the case that if the result or a result of upping the facility fee in the minds of the ACT would allow the radiation oncology sub-fund to be amalgamated with the general hospital trust fund, that the interests of the ACT and ASMOF would merge at that point, wouldn’t they?‑‑‑Can you just repeat the question?

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN771

Very well. If the purpose of the ACT, through the increase of the 30 per cent in facility fee for the radiation oncologists, was to facilitate the amalgamation of the radiation oncology sub-fund back into the general hospital fund, then the interests of the ACT would be the same as ASMOF’s, wouldn’t it?‑‑‑Except at no point was the merging of the funds ever an issue with an increase in the facility fee.

PN772

Is that right?‑‑‑Yes.

PN773

Really? At any bargaining meeting that you attended, that was never said?‑‑‑It could be - the issue of what ASMOF’s view of the fund may have been. I don’t recall it ever having been, but I can’t say ‑ ‑ ‑

PN774

But no ACT - sorry to interrupt?‑‑‑But it was not an issue that - ASMOF was - at no point did the issue of merging the two funds have any relevance to whether the facility fee - ASMOF’s preferred position at all time was that any increase to the facility fee of the radiation oncologists should be part of the review process, and that we were - we did not wish to have it increased until such time as that review was complete. However, ACT Health would only go down to increasing it from 20 to 30 per cent, rather than leaving it at 20 per cent and in order not to hold up all the other improvements that we’d attained, we decided that in view of the fact that other facility fees were much higher as well, that we couldn’t justify holding out for that facility fee to remain at 20 per cent, and so that was one of our losses. In addition, I did put that as a disadvantage in my - I think it’s form 18 to the Fair Work Commission, that this was in fact a disadvantage to radiation oncologists, but that we believed, overall, the improvement that we had attained, for instance, a minimum of 20 per cent non-clinical time, the increases in salaries which were at the time better than anywhere else in Australia as far as we were aware, outweighed hanging out to not have the increase in the facility fee for this area. We can’t - you know, there is no way we can make sure that everybody gets everything they want. It has to be a compromise at some point and that was our compromise.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN775

What I understand you to be telling the Commission is that at no point during any of the meetings that you attended, bargaining meetings that you’ve attended with the ACT representatives, did they come out and say something to the effect of the increase from 20 per cent to 30 per cent in the facility fee for radiation oncology will facilitate the transfer or movement of the funds in the radiation oncology sub-fund to the general hospital fund?‑‑‑As far as I’m aware, not from this side in - there may be other meetings where this is discussed. As far as we’re concerned, we have an opinion on whether the fund - whether it’s preferable to have several funds or one fund for the benefit of all staff, so that we do have an opinion on that. As to whether the radiation - the radonc fund exists or not is a matter between ACT Health and radoncs, and is part of - as far as I’m aware, part of the radonc SEA. The provisions for SEAs are not part of ASMOF’s remit. The agreement that we’ve been negotiating, we believe, is the bottom line and is the - all SEAs cannot, we believe, or should not, give away the provisions in that agreement, but SEAs are negotiated between the employee and management and the only other issue that ASMOF has, as far as this is concerned, is to try to ensure that the review process is fair and equitable. We do believe there should be a review in that; again, our compromise was not to push that.

PN776

In the context of bargaining, would you consider it fair, if that was the ACT government’s position, in other words, that they wanted to transfer the radonc fund into the general fund, that they come out and say that?‑‑‑I would expect them to, yes.

PN777

You would expect them to?‑‑‑Yes.

PN778

Because that would be fair, wouldn’t it?‑‑‑I don’t think you can argue with that.

PN779

No, you can’t argue with it. We’re in non-furious agreement, perhaps, Dr Hallam. In fact, that wasn’t the justification for the increase in the facility fee for radiation oncologists that was provided, was it?‑‑‑No, it was to do with the cost of the health of infrastructure.

PN780

Yes, yes. Now ‑ ‑ ‑ ?‑‑‑And can I say that that’s also the main justification, infrastructure, billing practices for ACT as they presented to increase the other facility fees that will be part of the review.

PN781

Sure?‑‑‑And I don’t - you know, we are prepared - we were and are prepared to listen to the arguments, as to why ACT Health might want to increase the facility fees. It has to be a quid pro quo and that there has to be some clear advantage in increased billings or what have you, and there have to be safeguards to ensure that whatever ACT Health are offering in place of a 10 per cent of the facility fee, that they’re going to actually be able to achieve them.

PN782

Yes, indeed. Now, in relation to that evidence that the ACT did - in relation to your evidence about how the ACT justified that increase, 30 per cent ‑ ‑ ‑ ?‑‑‑Can I also say that we did strongly advise ACT Health that because we foresaw issues with that, that they had to talk to the radiation oncologists and we also liaised with them, but you know, the 20 per cent facility fee is part of an SEA. It’s currently, that’s how it was set up and therefore we believed that they need to talk to the radiation oncologists. We do not - we don’t have figures or anything for radonc. We did encourage radonc to talk to ACT Health, ACT Health to talk to radonc.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN783

But the facility fee is written into the agreement, isn’t it?‑‑‑Correct.

PN784

So therefore, was part of a bargaining for an agreement?‑‑‑But the 20 per cent was part of an SEA. Having a low facility fee was part of an SEA.

PN785

Dr Hallam, could you please turn to page 354 of the bundle. You’ll see that this is a document headed, “What’s different about the ACT Public Sector Medical Practitioners Enterprise Agreement 2013 to 2017”?‑‑‑That’s correct.

PN786

If you would please turn to page 346?‑‑‑It’s going backwards, sorry.

PN787

Going backwards, yes. In fact, go to page 343?‑‑‑Correct, yes.

PN788

You’ll see it says “Form F17”. Do you know what that document is?‑‑‑That’s the document that the employer submits to Fair Work Commission with the agreement for ‑ ‑ ‑

PN789

With the application for the approval agreement, yes. If you turn to page - and sorry, if you just quickly go to page 353 - I’m sorry, don’t go there. Just go back to page 343, please. You’ll see that the statutory declaration was made by Steven Linton, you see that on there?‑‑‑Correct, yes.

PN790

Now would you please go to page 346 and you’ll see in the middle of the page there’s a section 2.6. Can you see that?‑‑‑Correct, yes.

PN791

The section of the form is headed, “What steps were taken by an employer to explain the terms of the agreement and the effect of those terms to the relevant employees”?‑‑‑Correct, yes.

PN792

You’ll then see the answer to that question deposed to by Mr Linton is:

PN793

All relevant employees were sent an email with a link to an Internet page containing a set of documents including the agreement and a document entitled, “What’s different in the proposed ACT Public Sector Medical Practitioners Enterprise Agreement 2013 to 2017”.

PN794

?‑‑‑Correct.

PN795

Did you get an email like that?‑‑‑I did, yes.

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN796

Then would you please turn - sorry, next question. Did you have a look at the link that was referred to?‑‑‑I did, yes.

PN797

Then would you turn to page 354, and when you had a look at the link, were you able to locate this document or do you recall locating that document?‑‑‑I can’t - I’ve seen this document from several fora and I’ve also seen lots of other documents, so I wouldn’t be able to swear that I saw this at the link.

PN798

Right, but you’ve seen it before?‑‑‑Yes.

PN799

If you please go to page 356, you’ll see the first heading is, “Facility fees”?‑‑‑Correct.

PN800

There’s a statement there, and this is, we assume, let’s you and I assume, the ACT’s explanation about what’s different about the agreement at that time, we assume in comparison with the existing agreement?‑‑‑Correct.

PN801

Or existing conditions, and there’s a statement:

PN802

An increase in facility fees for radiation oncology under private practice schemes B and C, annexe F, from 20 per cent to 30 per cent -

PN803

You see that?‑‑‑Yes.

PN804

Then it says:

PN805

- reflecting increased costs in providing infrastructure.

PN806

?‑‑‑Yes.

PN807

So that was always the reason that’s asserted to ASMOF during the negotiations in relation to the agreement that Mr Linton deposes to in his statutory declaration for the increase, was it?‑‑‑Yes, that and the fact that increased cost and costs. So he’d already - I mean, there are costs there that ‑ ‑ ‑

PN808

All right?‑‑‑ ‑ ‑ - as well as increased costs, if you see what I mean?

*** LAVINIA ANNE HALLAM XXN MR WILSON

PN809

Very well. Any one, any employee ‑ ‑ ‑

PN810

THE DEPUTY PRESIDENT: Mr Wilson, can I just ask a question here. In terms of the issues that the Commission needs to determine around the scope order, where does this line of questioning take us?

PN811

MR WILSON: Whether or not parties have been bargaining in good faith and also the other considerations you have to make under paragraph (d) of subsection (4). I’ll be very quick, your Honour. I’ve only got one more question.

PN812

THE DEPUTY PRESIDENT: All right.

PN813

MR WILSON: Were you ever provided by the ACT with any information which set out what the increased costs were?‑‑‑No.

PN814

Did you ask for any?‑‑‑Yes, we did. We may not have asked specifically for radiation oncology, but we did ask for the information regarding increases in facility fees in general during the discussions.

PN815

Very well, and were you provided with any information?‑‑‑No. That information wasn’t - we were told that information wasn’t readily available and we said that was another reason for having the review, maybe not in quite those words, but that was the implication.

PN816

I have no further questions of this witness.

PN817

THE DEPUTY PRESIDENT: Ms Robinson?

PN818

MS ROBINSON: No questions, your Honour.

PN819

THE DEPUTY PRESIDENT: Mr Chin?

PN820

MR CHIN: Yes, thank you, your Honour.

CROSS-EXAMINATION BY MR CHIN [3.19 PM]

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN821

MR CHIN: Dr Hallam, you agree that there is merit in having separate enterprise agreements for JMOs and senior medical practitioners, don’t you?‑‑‑Yes. We do think there is merit in that, and we have in fact been asking that for probably the last three agreements, possibly two agreements.

PN822

The last two or three agreements? Is that right?‑‑‑Yes.

PN823

And you’ve asked for it in the context of the proposed agreement before the Commission, or the subject of these proceedings now?‑‑‑That’s correct.

PN824

Is that partly because of the numerical increase in junior medical officers relative to senior practitioners in the last few years?‑‑‑I think yes, that there’s been a greater increase in juniors over seniors. The ratio, I think, is currently two to one, and even if there was no - or even if it was unlikely that the seniors would be outvoted by the juniors because traditionally seniors are more likely to vote than juniors, there is still the perception that if the plebiscite is bigger for the juniors than the seniors, there’s a perception that it could - the juniors could outvote the seniors. There are a lot of other issues as well. We believe that gradually over the last few agreements the significance of the changes to the senior and junior members’ provisions has also increased.

PN825

Can I just stop you there. In the agreement as it - the proposed agreement as it stands now and in past agreements, there are many conditions that apply uniquely to seniors and not to juniors currently?‑‑‑And vice versa. Yes.

PN826

And vice versa. So you’d agree that as the agreement has evolved over the various bargaining stages, there is a reasonably clear delineation within this one agreement between provisions that apply to seniors on the one hand and provisions that apply to juniors on the other?‑‑‑That’s correct.

PN827

Yes?‑‑‑And we did raise this issue to start off at the - but as ACT Health were quite against splitting them, and there are arguments on both sides.

PN828

Just let me interrupt you there?‑‑‑Sorry.

PN829

You raised it; ACT Health didn’t accede to it?‑‑‑They did not wish to split the juniors and seniors.

PN830

And that was the end of the matter?‑‑‑We believed there were more important issues to discuss.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN831

Okay, but that was the end of the matter?‑‑‑Yes.

PN832

It wasn’t otherwise pressed by ASMOF?‑‑‑It wasn’t pressed by ASMOF.

PN833

Okay?‑‑‑However, as we’ve approached the end of these negotiations, we have put ACT Health on notice that it will be part of our initial ‑ ‑ ‑

PN834

No, I understand that. I’ll come to that in a moment. Just we’ll take it step by step?‑‑‑Okay. Sorry.

PN835

As late as the meeting that you’d attended with ACT Health, and indeed with - I’m sorry, I should have said this at the outset. I’m representing Ms Wyborn, the bargaining agent for a number of senior practitioners. Ms Wyborn attended a meeting with ACT Health on 7 January this year; you were at the same meeting?‑‑‑That’s correct.

PN836

Ms Wyborn raised the request that the agreement be split between JMOs and seniors?‑‑‑Correct.

PN837

Yes, and your response was, at that stage, that you did support that proposal?
‑‑‑We believe that proposal has some merit. We didn’t support it because we had already accepted it would not be appropriate at that stage for this agreement.

PN838

You’ve seen the minutes of the meeting, Mr Hallam, of 7 January?‑‑‑Yes, but some time ago.

PN839

Was that an accurate reflection of what was said?‑‑‑I’d have to re-read them to ‑ ‑ ‑

PN840

Could I, in fairness, show you the minutes. I’ll have to burden you with a couple of folders, I’m sorry?‑‑‑I should say that we have had several letters, including one to Fair Work Commission and ‑ ‑ ‑

PN841

Just wait till I ask a question, if you don’t mind. Thank you. Can I ask you to turn to - it’s the first volume, there are two volumes. One is marked volume 1. It’s at tab 2 of that volume, and there’s a page number at the bottom of the page, page 86?‑‑‑26? Oh, 86.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN842

So volume 1, page 86. Perhaps the first page, page 85. This is minutes of a meeting, 7 January 2015. Do you have page 85?‑‑‑I do. Oh, I have 86.

PN843

I’m sorry, if you could just go to page 85. Do you see right at the bottom there, “Ms Wybrow[sic] suggested another way to split the agreement could be into juniors and seniors. This would be in line with other jurisdictions.” Mr Linton then says the issue of splitting between juniors and seniors had been discussed, “It has not been strongly pushed by the bargaining representatives.” Now, he’s referring to ASMOF there, isn’t he?‑‑‑Amongst other bargaining representatives.

PN844

Did you know of anyone else who has asked for the splitting of the enterprise agreement?‑‑‑I think the AMA are also - like ASMOF, they see some merit in splitting the two agreements.

PN845

Do you know for a fact that AMA has made that request?‑‑‑I don’t know - well, I can’t remember if they actually said.

PN846

You don’t know?‑‑‑No, but I do know that from other conversations I know that ‑ ‑ ‑

PN847

That they support it?‑‑‑Yes.

PN848

Yes?‑‑‑However, like us, they don’t think it’s appropriate at this late stage ‑ ‑ ‑

PN849

I understand. Just wait for my question, if you could, Dr Hallam, I’d appreciate that. So Mr Linton is referring to at least bargaining representatives that include ASMOF, when it says it wasn’t strongly pushed, correct?‑‑‑That’s correct.

PN850

You didn’t disagree with that in the meeting?‑‑‑No.

PN851

No, because it wasn’t strongly pushed, frankly?‑‑‑It wasn’t, no.

PN852

You are quoted there as saying, “ASMOF had previously suggested a split into junior and senior and would support such a move.” Now, were you referring to the proposed agreement there, or you’re talking there about a future agreement?‑‑‑A future agreement.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN853

Like the bargaining around before ‑ ‑ ‑ ?‑‑‑In principle, yes. For a future agreement, but as I said, we do not believe it’s appropriate currently.

PN854

Yes, and no doubt the round before this enterprise agreement, the same position was taken? “We support it, but let’s wait for the next round”, is that right?‑‑‑I think it - as I said previously, that the - there were more important issues that needed to be ‑ ‑ ‑

PN855

Yes, and then the round before that, was that the same position taken? “Look, we support it, but let’s wait for the next agreement”?‑‑‑I think that was probably the one where it was first brought up and it’s probably over the last three agreements that it’s - which - I’m just trying to think how many years ago. That would probably be six, seven years ago.

PN856

Yes?‑‑‑Since then, there has been an increase in medical students, an increase in juniors, and the issue has become more important as things go along.

PN857

And the issue, I suggest to you, is important as we speak now?‑‑‑I think that - I’m not sure - well, our - ASMOF’s view is that in the current agreement, as put forward to members, it is not an important enough issue to hold up re‑voting on the agreement and if members then decide that it is that important, they can vote down the agreement.

PN858

Yes, but if the scope order is made that my client seeks, Ms Wyborn, then there will be nothing to hold up going to a vote for your junior members, will there?‑‑‑Well, we want to go to vote for seniors and juniors.

PN859

But you accept that, standing here now, the separate - the idea of a separate ‑ ‑ ‑?
‑‑‑The - in principle ‑ ‑ ‑

PN860

Just let me finish, let me finish. The idea of a separate agreement between juniors and seniors is that it is desirable now? I withdraw that. That it’s justified now?‑‑‑I don’t believe that that is true. We believe there is merit in splitting them. There would be ‑ ‑ ‑

PN861

And the merit ‑ ‑ ‑ ?‑‑‑Merit in discussion ‑ ‑ ‑

PN862

Just let me finish. The merit in splitting them applies now?‑‑‑The merit is evolving.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN863

But you say there is merit. It’s not that there will be merit in two years’ time, there is merit now? That’s what you’re saying?‑‑‑There is - yes, there is merit, but there is a degree of merit.

PN864

Yes, and that merit will continue to grow?‑‑‑I think so, yes.

PN865

Now, you recognise ‑ ‑ ‑ ?‑‑‑So part of the evolution will be that - I’m sure it will be stronger next time.

PN866

Right. Perhaps that’s a view you took in the last round and the one before that?
‑‑‑As I say, there were other issues that we believed were of more importance.

PN867

There will always be other issues, won’t there, Dr Hallam?‑‑‑Exactly. So it has to evolve to the top of the pile.

PN868

And indeed, there will be other issues that concern junior medical officers only that you want to negotiate and you wouldn’t want an issue, meritorious as it is, that concerns the splitting of seniors and juniors, to prejudice benefits that might flow to junior officers? That’s your position?‑‑‑Sorry, can you repeat that?

PN869

I’m sorry. You wouldn’t want the issue, meritorious though it is, of the splitting of seniors and juniors to prejudice benefits that might accrue under your negotiations only to junior officers?‑‑‑No, we’d want it for both juniors and seniors. We want to get the agreement - I mean, the agreement is nearly - well, in June, will be two years out of date.

PN870

Yes, I understand that?‑‑‑And we will have to start renegotiating the next agreement very soon.

PN871

Yes. You recognise that senior medical practitioners are concerned about the enterprise agreement’s effects on their SEAs?‑‑‑Correct, and indeed, we held a number of meetings with senior ‑ ‑ ‑

PN872

Just let’s take it one step at a time. I’ve just asked you that you recognise that they are concerned and you’ve told me that you agree they are?‑‑‑I’m just trying to demonstrate how concerned we ‑ ‑ ‑

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN873

All right. That’s fine. We’ll come to that. We’ll come to that. Now, I think you said in your evidence that your concern, ASMOF’s concern, was only with respect to the fairness of the process of reviewing SEAs? That’s what you confined yourself to in this bargaining round?‑‑‑That’s correct because that’s what is in the EA. ASMOF don’t believe they should be involved in negotiating SEAs because it’s very difficult to negotiate an enhanced agreement for one party and not another one.

PN874

Can I just stop you there, I’m sorry. We’ll get through this quicker. I didn’t ask you why?‑‑‑Okay.

PN875

I just asked you that that was your concern. So if you could just confine yourself to the questions, it will enable you to get out of the witness box sooner?‑‑‑Good.

PN876

Okay. ACT Health provided you with a revised schedule, I think it’s annexure C to the agreement, which sets out the review mechanisms for SEAs during the course of the bargaining, correct?‑‑‑Correct.

PN877

Yes. In that schedule appeared for the first time a new provision which meant that seniors’ SEAs would expire automatically within a certain period of time if they weren’t reviewed?‑‑‑Correct.

PN878

You’re aware that ACT Health has a less than perfect record of conducting timely reviews of SEAs, are you not?‑‑‑Absolutely.

PN879

Absolutely; no disagreement there. In fact, in the agreement - sorry, in the meeting that you conducted on 7 January this year where Ms Wyborn participated, Mr Linton of ACT Health said that the ACT Health is very aware of the history of SEAs and the lack of regular review and appreciate the concern of the seniors for whom Ms Wyborn represents. You recall that?‑‑‑Yes.

PN880

So notwithstanding that provision, that would be a matter of - the new provision of the automatic expiry of their SEAs would be obviously quite a matter of real concern to senior medical practitioners, would it not?‑‑‑Correct.

PN881

But you recommended the approval and you still recommend the approval of the enterprise agreement, notwithstanding that provision?‑‑‑We recommended that, that it be approved after informing members and we can’t - we only inform members because that’s the only people we should have informed, I understand, that what the possible consequences might be.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN882

Can I suggest to you that you didn’t inform members of the - you didn’t draw the attention of members specifically to the provision, the new expiry provision, that’s a new clause 3.5?‑‑‑Yes, we did. We held a union meeting to which everybody was invited. We invited Professor Bowden and Steven Linton to come and talk about the provisions and we also pointed out the increase of the radiation oncology facility fee. We talked about the ARINs and the process and we also told people about what the improvements were in the agreement.

PN883

I see?‑‑‑And there was a lively discussion in all fora and we said, well, this is the agreement, it’s not up to members to say yes or no.

PN884

And you didn’t say, given ACT Health’s track record of not reviewing SEAs in a timely manner, this new provision could mean all your SEAs expire automatically?‑‑‑First of all, I don’t think I needed to say that, and secondly, we had been in negotiation with ACT Health that would result - and there were letters from the director general, letters or emails, I can’t remember quite which, that specifically said all SEAs would be declared under review before the new agreement was implemented and that the clock would start ticking once the people involved were informed that their SEA was under review.

PN885

With no guarantee?‑‑‑So we did believe we had ‑ ‑ ‑

PN886

Of how long that review would take or when it would be complete?‑‑‑We had assurances that it would be done ‑ ‑ ‑

PN887

You had assurances?‑‑‑As quickly and painlessly as possible and ‑ ‑ ‑

PN888

So ACT Health told you, “Don’t worry, trust us, we will do it in time”, that’s what they said?‑‑‑No. They made a commitment to not let any SEA lapse through inaction or slow inaction.

PN889

But you didn’t ask to amend clause 3.5, you didn’t ask for it to be removed?‑‑‑No, because our understanding is that all these clause - all the ARINs and SEA clauses would be the same for every agreement in ACT Health.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN890

THE DEPUTY PRESIDENT: Can I just ask again a question I’ve asked on several occasions today. The line of questioning is really about events that occurred around the previous bargaining. We’re in a new bargaining process here, in terms of the new agreement, and the issue that I need to determine is around scope. I’m not quite sure how this is assisting me determine those issues that everyone agreed at the Bar table this morning that I need to determine, and that is that the making of the order will promote and efficient conduct of bargaining. Secondly, that the group of employees, to cut to the chase, was fairly chosen, and thirdly, that it’s reasonable in all circumstances to make the order. I’ve heard a lot of evidence today which really goes to the initial bargaining round where people were dissatisfied with the outcome in terms of what it meant for them, either collectively as a group or in terms of that, but I’ve not heard a lot of material or evidence that goes to those criteria that I need to make a judgment on.

PN891

MR CHIN: Your Honour, it’s relevant, it can be relevant in this way. There’s a conflict in the authorities as to whether your Honour has to decide whether, if the scope order is made, bargaining will be fairer and/or more efficient than otherwise.

PN892

THE DEPUTY PRESIDENT: No, it says “Will promote the fair and efficient conduct of bargaining.”

PN893

MR CHIN: Yes. United Firefighters, a Full Bench decision, puts a gloss on that which we say is wrong. ACT Health will contend otherwise, I expect, so that if that is the test what will be relevant will be the proposition, the submission I will make, that bargaining that took place last year for the proposed agreement was significantly, in its structure, unfair and to some degree inefficient so far as senior medical practitioners are concerned, and that if a scope order is made, the bargaining will proceed relatively to what has occurred more fairly and more efficiently. So that's one way in which this line of cross-examination is relevant.

PN894

If your Honour applies the test for which we contend, all your Honour has to find is that if the scope order is made the bargaining to proceed will be fair and efficient and that could be more fair and efficient, equally fair and efficient as otherwise or even less fair and efficient as otherwise, but still fair and efficient and thus overcomes the statutory hurdle, the statutory test. That's the position for which we will be contending, but this cross‑examination is intended to address the United Firefighters test as well where there may be a comparison in terms of degree of fairness and efficiency.

PN895

THE DEPUTY PRESIDENT: All right.

PN896

MR CHIN: So that’s why I'm troubling your Honour with that.

PN897

THE DEPUTY PRESIDENT: I'll just make the point again that I haven't heard a lot of material that goes to those statutory tests that I need to make some judgments on today in terms of the evidence that’s been led and I suppose what I draw from that is that it’s not necessarily assisting me in terms of coming to a view as to whether or not to make an order.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN898

MR CHIN: Yes, your Honour. I should say, your Honour, a lot the material I'm not troubling the Commission with because it’s in writing.

PN899

THE DEPUTY PRESIDENT: Yes, I appreciate that. I appreciate that.

PN900

MR CHIN: Yes, thank you, your Honour.

PN901

THE DEPUTY PRESIDENT: I appreciate that.

PN902

MR CHIN: In any event, I won’t be long. Excuse me, your Honour. In fact that’s the cross‑examination. Thank you, your Honour.

PN903

THE DEPUTY PRESIDENT: You're true to your word, Mr Chin. Mr Wilson, do you wish to re‑examine again?

PN904

MR WILSON: I don’t, your Honour. No, no, I don’t wish to. I think there’s a representative from AMA with a witness statement, but I don't know whether you propose to deal with that.

PN905

THE DEPUTY PRESIDENT: I don't have anyone from AMA in terms of being down on the witness list. Do we have anyone from AMA that wishes to give – does AMA wish to call a witness? All right.

PN906

Thank you, Dr Hallam, you're excused now.

<THE WITNESS WITHDREW [3.42 PM]

PN907

THE DEPUTY PRESIDENT: We’re now down to the last of the witnesses for today, Professor Bowden. Just perhaps before we swear Professor Bowden in, there were other witness statements that were submitted on behalf of the ACT government. Some of those witnesses aren’t required for cross‑examination. We probably should deal with the paperwork in terms of just formally tendering those, but we might do that after we do the evidence of Professor Bowden. The other thing I should come back to is there was the duty statement that was canvassed in the cross‑examination earlier this afternoon of Dr Bronwyn Avard. Did you wish to tender that into evidence?

PN908

MS ROBINSON: Yes. Yes, your Honour.

*** LAVINIA ANNE HALLAM XXN MR CHIN

PN909

THE DEPUTY PRESIDENT: We didn't mark that at the time, so I'll mark that exhibit R2.

EXHIBIT #R2 STATEMENT OF DR BRONWYN AVARD

PN910

THE ASSOCIATE: Please state your full name and address, please.

PN911

MR BOWDEN: It's Frank Bowden (address supplied).

<FRANK BOWDEN, AFFIRMED [3.44 PM]

EXAMINATION-IN-CHIEF BY MS ROBINSON [3.45 PM]

PN912

MS ROBINSON: Professor Bowden, did you make a statement in this matter dated 5 March 2015?‑‑‑I did.

PN913

Do you have a copy of that statement there?‑‑‑I do.

PN914

Is that statement true and correct?‑‑‑It is.

PN915

I tender that statement, your Honour.

PN916

THE DEPUTY PRESIDENT: I'll mark that exhibit R3, witness statement of Professor Bowden which compromises 20 pages and 119 paragraphs and a number of annexures. Do you have a sense, Ms Robinson, how many annexures there are?

PN917

MS ROBINSON: It goes to annexure H.

PN918

THE DEPUTY PRESIDENT: Eight annexures A to H. That's exhibit R3.

EXHIBIT #R3 WITNESS STATEMENT AND ANNEXURES A TO H OF PROFESSOR BOWDEN DATED 05/03/2015

PN919

MS ROBINSON: Your Honour, if I may just ask a few quick questions?

PN920

THE DEPUTY PRESIDENT: Certainly.

*** FRANK BOWDEN XN MS ROBINSON

PN921

MS ROBINSON: Professor Bowden in paragraph 31 of your statement, you discussed the role of CMOs or career medical officers. Could you assist the tribunal by making some objectives about what role career medical officers play in a hospital?‑‑‑Career medical officers are a small group within the hospital, but a group that we have been in many areas very fortunate to have. A CMO is a person who may not have a specialist qualification in the particular area that is – for example, in the – one of the examples we have is in neonatology. So a person may have trained overseas, has the requisite experience to perform the tasks that we would require, and then they work with us effectively as a specialist, but they're not classified as a specialist because they do not hold the qualification. They haven't gone through the process necessary to get the local specialist qualification.

PN922

So your evidence is that a CMO and an SMP, a senior medical practitioner, essentially perform the same - I think you'd say professional role. What would be the consequence for CMOs were there terms and conditions to diverge from those of an SMP?‑‑‑Well, this would create an inequity because the – as I say, the CMOs effectively work the same roster. They do the same work. There might be some exceptions to that, but in the majority of the cases, the CMO and the senior medical officers, staff specialists, senior staff specialists, VMO, look exactly the same. It’s simply the arrangement, employer arrangement, that we have with them that differs. There may be – there may be – some limitations on their practice at the level of the regulating authority of AHPRA. So some of them may only be able to practise within the specialty that they are working in, but that goes across to staff specialists. There are many staff specialists, VMOs, who - you know, staff specialists in the hospital who will have an AHPRA regulation which limits them to a particular specialty or particular area within the practice. The CMOs in that way are no different from some of the staff specialists.

*** FRANK BOWDEN XN MS ROBINSON

PN923

If you turn to paragraph 35 of your statement, which is also on page 57, there you used the word “interdependence” to describe the relationship between SMPs and JMOs. Could you explain what you mean by that term?‑‑‑A modern teaching hospital runs 25 hours a day, 365 days a year and is – if you walked into it at different times of the day you would see different people there. If you walked in tonight at midnight, the hospital is run by junior staff. Now, there may be some senior staff in certain places. They might be coming in to do particular procedures or operations, but the vast majority of the work that is done after hours is principally done by junior staff. Now, that’s an arrangement that flexes in and out, depending upon need. So if we have a major trauma then the hospital activates and the senior staff necessary to that will come in. But if you were to look for some routine medicine like Caesarean sections, if you look at the weekend, the vast majority of the Caesarean sections which are done in the hospital will be done by registrar anaesthetists and registrar obstetricians. Now, they will be more senior, they certainly won’t be people who are in their first year of training, but the people who are in their four, five, six years of training will be at the other end, but they may have no senior involvement at that time because the senior staff are supervising at a distance, dependent upon the level of experience and expertise of the individual registrar and that varies. That varies from the individual case to the individual experience of the particular junior doctor or senior doctor. Effectively, the senior doctor is saying, “I invest in your responsibility. I'm confident that you are able to do the following.” Now, there’ll be many instances where the junior doctor will say, “I'm not right to do this. I need your help or I need your advice. Could you help me? Could you come in and do this for me?” But within the scope that the junior doctor is known to be safe, most of the work will be done by them. We focused upon in this – certainly in my response to other people’s claims, we focused on ICU and anaesthetics and we haven't looked at the vast number, and there are 600-odd junior doctors in our hospital who are performing a number of other tasks within various other specialities within surgery, psychiatrist, medicine, the emergency department, et cetera. And there again after 6 o'clock at night, the hospital is essentially run by junior staff with supervision from senior staff at a distance.

PN924

Further on in paragraph 35, Professor Bowden, you say:

PN925

Separating the JMO, CMO and SMP enterprise agreements could lead to employment arrangements that make it increasingly difficult to run the clinical service in the current workforce environment.

PN926

Could you perhaps give an example of a problem that may arise?‑‑‑If you look back to the last 20 years where we've reduced the number of hours that junior doctors can work, it’s meant that there’s had to be considerable changes to the way we roster people. This means that hospitals have to be able to devise different ways to cover rosters. Now, it’s a good thing. I mean, we don’t want junior doctors exhausted. That's never been the intention, but it has created some areas where we need to be able to think about how do we – for example, how do we get more senior cover at the important times of the day to provide support for junior doctors? It’s my view, it’s my belief, that one of the risks of separating the two agreements is that we lose that integration, that ability to look at the service that we’re trying to provide as a whole and that we have – and that we may have people who are – and I make no judgment about people’s rights to do this, but there may be people who would be focusing more upon the needs of a particular group at a particular time rather than, as I have observed in my two rounds of negotiation, a sense that this is an integrated service. We’re privileged in the ACT to have a very small area to deal with and to look at a system as a whole, that by bringing the two groups together we’d look at the issues of: what happens if the junior doctors have to work these number of hours and can’t work X in a row? What’s the implication for senior staff and vice versa? If we’re looking at senior – what we’re expecting of our senior staff, it has to be seen in the light of what the junior staff are able to offer safely within our budgetary constraints.

PN927

Turning to paragraph 37?‑‑‑I'm sorry, 30?

*** FRANK BOWDEN XN MS ROBINSON

PN928

37. Just over the page on page 58. You make some comments about the nature of JMO employment and the fact that the JMOs are only in a position to be involved in negotiations around their agreement for a limited number of years. Could you perhaps make some observations about what your concerns are about that agreement arising from that statement?‑‑‑Not many people in – not many junior doctors are particularly interested in industrial issues. I mean, most of them are mainly focused upon doing their job, getting their training, doing the right thing. They are a small group of people who are interested in that, but they will come and go. Again, one of the advantages of having things together is that by definition all of the senior doctors involved in the negotiations will have been junior doctors so there is a memory of what’s going on. There’s also – and my experience has been that there’s been a balancing of requests so that while a junior doctor might say, “I believe this is exactly what we should do for the following reasons,” and a more senior doctor can say, “Well, I see your point, but the following – can you consider the following?” Again, my experience with the negotiations has been that there is sometimes a tempering of some of the claims from the juniors, but more importantly there is a memory on the part of the senior doctor about what it’s like to be a junior doctor. It’s quite easy to forget that. Junior doctors are only junior doctors for a short period of time and they're living in real time while they are in the space of negotiation. So, again, I see an advantage in having the seniors feeling that they have some responsibility to ensure that the rights of the juniors are looked after as well. Separating it seems to me – and this is my view – gives a message to the juniors, “Well, you're on your own. We’re up here looking after ourselves. You're down there. You look after yourselves. You can seek the advice you need, but we won’t be involved in that process.” And, again, in a small jurisdiction like ours, one of the beauties has been a sense of a continuum of learning, a continuum of professional development which strangely is written into an enterprise agreement to a degree.

PN929

Your Honour, that completes our evidence‑in‑chief.

PN930

THE DEPUTY PRESIDENT: Thank you. Mr Wilson, do you want to go first or Mr Chin?

PN931

MR CHIN: Could I be permitted to go first, your Honour?

PN932

THE DEPUTY PRESIDENT: Thank you.

CROSS-EXAMINATION BY MR CHIN [3.57 PM]

PN933

MR CHIN: Professor Bowden, you accept that there has been a significant increase in JMOs in the ACT in your statement, don’t you, over recent years?‑‑‑That's true.

*** FRANK BOWDEN XXN MR CHIN

PN934

And the increase has been something like – it has been since the last enterprise agreement 2011 from 307 to 561 JMOs?‑‑‑That's correct.

PN935

And that’s an increase of about 82, 83 per cent in JMOs. Now, seniors have increased from 235 to 229 [sic] on the figures we've been provided by ACT Health and you agree with that?‑‑‑I'll have to take – it depends what we’re ‑ ‑ ‑

PN936

That's okay. Just accept from ‑ ‑ ‑?‑‑‑I certainly accept that there has been an increase in both groups.

PN937

Yes. If you'll accept from me that the figures we’ve received from ACT Health is that the increase over that period 2011 to the end of 2014?‑‑‑The only concern I’ve got in my mind is that the number of staff specialists that we have on staff is 300.

PN938

It’s 299?‑‑‑I'm sorry. I thought you said 249.

PN939

No, no. I'm sorry, 299?‑‑‑My apologies. All right.

PN940

Yes?‑‑‑I'll allow the one. It’s probably changed since we've spoken.

PN941

Give or take one?‑‑‑Yes.

PN942

And that’s an increase of about 27.2 per cent, give or take a point of per cent. Now, the rate ‑ ‑ ‑

PN943

THE DEPUTY PRESIDENT: That's the one per cent?‑‑‑That's the one. Yes, yes.

PN944

MR CHIN: And the ratio of junior medical officers to every senior has widened in that period from about 1.3 closer to even to nearly two junior medical officers for every senior member. You accept that. You also enlighten us, Professor Bowden that there is a precedent in the ACT for separate enterprise agreement for junior staffs. I think interns had a separate agreement from 1999 until 2002 – there’s an agreement?‑‑‑That's my understanding.

*** FRANK BOWDEN XXN MR CHIN

PN945

Yes. That, you say, coincided with – and I take it that these factors were reasons for such a separate agreement that Canberra Hospital was taking on significant numbers of interns?‑‑‑It was a small increase. I can't tell you the exact numbers, but remembering that in 2001 and two where our intern numbers were roughly 26 to 30, somewhere around there. So it would have gone up from about 16 to 20. So in terms of a relative increase, quite substantial. In terms of an absolute increase, not much.

PN946

But you say it’s significant in relative terms?‑‑‑Yes.

PN947

And that was thought to be one factor justifying a separate agreement for interns?‑‑‑Look, I'm not 100 per cent sure that that was the final reason. I was not involved in any of those processes. That's an assumption that I may have made as a coincidence of the two..

PN948

But you've raised that as a relevant fact associated with the existence of that separate agreement?‑‑‑Yes.

PN949

The other relevant fact is that there was a desire to link some conditions or pay to other states, New South Wales in particular?‑‑‑That's my understanding.

PN950

Can I just put this proposition to you: in respect of the proposed agreement now, there are elements of both of those considerations, firstly, an increasing number of JMOs; and secondly, at least one of the conditions that Ms Wyborn, for whom I appear, is seeking an increase, the medical expense fund reimbursement is to align with that that exists in New South Wales?‑‑‑So I was giving a reason. I would not have agreed with that reason. That would not have been my view. I would not have seen those particular circumstances would justify it, but I was not involved in the process so I can’t ‑ ‑ ‑

PN951

So that’s not your personal view?‑‑‑It’s not my personal view.

PN952

But you accept though that we have presently two significant features which in the past was thought to have justified a separate agreement for junior medical officers?‑‑‑Well, I’d certainly agree that there was an increase. There was a small increase 12 or 13 years ago where people felt that it justified it.

PN953

Yes, okay. I just want to ask you about the prior bargaining process at the risk of raising his Honour’s ire.

PN954

THE DEPUTY PRESIDENT: Go for it, Mr Chin.

*** FRANK BOWDEN XXN MR CHIN

PN955

MR CHIN: Thank you, your Honour. The professor does recount this in his statement, sir, and I'm going to blame the professor. Up until now there were - you've described in paragraph 11 of your statement – in fact three separate bargaining streams for this proposed agreement, were there not. I'll take you through them step by step. Firstly, there’s the core level bargaining between, I think, centrally conducted by Treasury and all bargaining representatives. That's the first one. Correct?‑‑‑That's my understanding.

PN956

The second one is between the ACT Health and ASMOF, representing both juniors and seniors. Correct?‑‑‑That's correct.

PN957

So that’s a separate stream. Then a third stream is between ACT Health and the AMA and other bargaining representatives?‑‑‑That's correct.

PN958

The AMA represented at least one senior medical practitioner, but also represented juniors. Correct?‑‑‑That's correct.

PN959

There were from time to time other bargaining representatives like Dr Oerder and Dr Matthieson on various issues for seniors?‑‑‑Specifically for anaesthetics.

PN960

Specifically for anaesthetics? That process was managed by ACT Health, at least the last two streams. You were communicating proposals made by ASMOF in one bargaining negotiations to those participating in the AMA stream in another bargaining process and vice versa, you say in your statement?‑‑‑That's correct.

PN961

Not all parties were in the same room at the same time. Correct?‑‑‑That's correct.

PN962

There were separate negotiations with ASMOF and AMA and others, but you still managed to coordinate that process, that is to put matters that might have been of relevance to one party who were not part of that negotiation or bargaining to that other party in a separate bargaining stream. You were able to do that?‑‑‑That's correct. We held the meetings essentially back to back.

PN963

You were able to reconcile, or attempt to reconcile, senior medical practitioner and junior medical officer interests in the course of those two separate bargaining streams, were you not?‑‑‑Yes.

*** FRANK BOWDEN XXN MR CHIN

PN964

So that two separate bargaining streams were no impediment to the reconciliation of – not necessarily an impediment to the reconciliation of those interests where they were competing interests between JMOs and seniors, for instance?‑‑‑As you can see, from the way that the separation occurred, AMA principally – principally – represented the junior doctors.

PN965

Yes?‑‑‑ASMOF, principally, were representing the interests of the senior doctors, but not exclusively. Both were considered. It actually ended up being quite – that distinction was quite helpful and, in effect, quite efficient because of that separation and the way that had turned out.

PN966

What you're saying is if that’s correct that the ASMOF stream was principally about seniors and the AMA stream was principally about juniors, you saw nothing wrong with it in terms of efficiency in separate negotiations for those two interests?‑‑‑Because we brought everybody together at the end for the drafting so that we did that together as a group and also every issue was raised with both. So ever junior doctor issue that was discussed and gone into in detail was discussed in detail with the other group and we were meticulous in ensuring that both ‑ ‑ ‑

PN967

Can I suggest to you that if there was a bargaining for a separate agreement with senior doctors, there’s nothing stopping ACT Health from similarly performing that function and consulting junior doctors if something came up that you thought junior doctors needed to be consulted about?‑‑‑I accept that.

PN968

You accept that?‑‑‑I accept that.

PN969

In terms of the representation of senior doctors, that representation in this bargaining process was, shall we say, spread out or fractured? The representation of senior medical practitioners, their interests, was somewhat fractured. You accept that?‑‑‑Well, fractured implies something. There were certainly some separate arguments.

PN970

Separately represented in different bargaining streams. So you had the ASMOF in one stream. You had the AMA and you had some other anaesthetic bargaining agents?‑‑‑Yes.

PN971

Can I move on to another issue, the issue of SEAs, special employment arrangements for senior medical practitioners? You understand they’re of particular concern to senior practitioners?‑‑‑I certainly do.

*** FRANK BOWDEN XXN MR CHIN

PN972

In paragraph 64 of your statement – and just to be fair to you, I want to make this plain – you say the use of SEAs is not as widespread as is implied. You're seeking to downplay the significance of SEAs to seniors in this paragraph, are you not? Is that what we take from that?‑‑‑No. It’s quite clear that because the people who do have SEAs are represented in this separate action that it means a lot to them. The SEAs are very important to them. I suppose my point is that – and I wish to make the counter to it that over 60 per cent of doctors who work at Canberra Hospital – excuse me, in ACT Health – do not have an SEA.

PN973

Yes. No, that’s not quite right, is it? 40 per cent actually received a benefit under an SEA in 2014?‑‑‑Excuse me, that is correct.

PN974

More senior practitioners may well be covered, but didn't actually receive a benefit in that time?‑‑‑Now, my ‑ ‑ ‑

PN975

That's correct, isn't it?‑‑‑Okay. And I'll have to take that on – excuse me. I don't know the answer to that. The information that I have is that regardless of it being a specific SEA for the individual or a group SEA that those numbers are correct. I'm unaware of other doctors who are receiving the benefits of an SEA outside of that number.

PN976

Really, the distinction is the figures you're giving are about doctors who in fact received a benefit under an SEA?‑‑‑That's ‑ ‑ ‑

PN977

You're not giving a figure for senior doctors who are ‑ ‑ ‑?‑‑‑That's one of ‑ ‑ ‑

PN978

‑ ‑ ‑ otherwise covered by an SEA but who did not receive a benefit, a payment – so a bonus payment or whatever the SEA governed?‑‑‑That's - I'm saying that there was no benefit received for 61 per cent.

PN979

Yes, I understand that.

PN980

THE DEPUTY PRESIDENT: Can I just perhaps ask the question slightly differently?

PN981

MR CHIN: Yes.

PN982

THE DEPUTY PRESIDENT: What does that mean? Does that mean that sort of the remuneration was not supplemented as a result of the SEA? There was no additional payment or what?‑‑‑The figures that I'm aware of – I mean, there are two ways that people can receive an SEA. They receive an SEA which is essentially a written agreement between them and their employer, which says, “We will provide you with the following. They are confidential.” They're to the individual. So the individual says, “I'm worth this. You need me. You need to keep me.”

*** FRANK BOWDEN XXN MR CHIN

PN983

So it’s a salary top up whatever arrangement type thing?‑‑‑It’s like a market value. There are other SEAs which are attached to groups so that the group themselves may be getting an SEA, so that they will be getting paid more money than the enterprise agreement says. So if the salary is $200,000 they will be paid extra for particular reasons and in the past this has been due to difficulties with recruitment because – it’s mainly to do with certain craft groups who have been difficult to attract. There have been other agreements made with people, if they work in a very onerous roster. There are allowances within the enterprise agreement for an additional payment for onerous work. So if you're on one in two or one in one, you may get an extra amount. But other people will say, “Well, I’ve been doing this for two or three years, I really because I need extra,” and that could be an SEA, but that’s again an individual SEA.

PN984

So the words you've used there, “Did not receive a benefit under an SEA,” that implies that they got no financial benefit from the SEA or what? I'm just ‑ ‑ ‑?‑‑‑I guess what I was trying to say was that 61 per cent of doctors did not receive any money that was associated with an SEA.

PN985

MR CHIN: And my proposition is that that is not necessarily the same as saying 61 per cent – that is it’s not necessarily the same as saying only those doctors who received a payment constituted the universe of doctors covered by SEAs?‑‑‑But why would you have an SEA and not get paid extra for it?

PN986

If, for instance, an SEA provided for a contingent payment and the contingency didn't arise?‑‑‑Okay. My understanding is that they don’t; that that’s not the case.

PN987

There are variable SEAs out there for different seniors, though, aren’t there?‑‑‑So I think what you might be alluding to is somebody who’s on a scheme where it’s possible for them to earn – but that’s a scheme, so that doesn't work. That's within one of the schemes. So I'm unaware of, and I stand to be corrected, but I'm unaware that there would be somebody with a contingent SEA.

PN988

Can I give you an example, an SEA that provides for payment for working a fifth day a week at another hospital and an employee – the doctor happens not to do that and therefore doesn't receive a benefit, but that’s not to say he’s not covered by the SEAs?‑‑‑Okay. I mean, I can see ‑ ‑ ‑

PN989

You concede that?‑‑‑I can see what you're saying.

PN990

Yes?‑‑‑So an arrangement where an SEA says, “If you'd like to take this up, you could take it up.”

*** FRANK BOWDEN XXN MR CHIN

PN991

Yes?‑‑‑“If you'd like – if you would work another day for us, we will pay you extra to do that.”

PN992

Yes, I don’t want to get bogged down with this issue, but in any event it’s important to senior doctors, SEAs?‑‑‑There’s no question that it’s important.

PN993

In fact, so if you accept your figures, 40 per cent received the benefit in 2014. On the figures we've received from ACT Health, 32 out of 561 junior medical officers also received a benefit, but that’s negligible. That was like – that amounts to something like 0.06 per cent of junior officers who benefited from any SEAs?‑‑‑So I suppose this comes to how we characterise differences, that on the one hand, you know, there are some similarities which we’re downplaying, in other areas there are differences which we’re accentuating so ‑ ‑ ‑

PN994

Professor Bowden, I'm sorry to interrupt.

PN995

THE DEPUTY PRESIDENT: Let’s go with questions. Okay?

PN996

MR CHIN: Yes.

PN997

Can you just please focus on the question I'm asking?‑‑‑Sure.

PN998

Thanks?‑‑‑Sorry.

PN999

What I'm suggesting to you is that it’s a tiny fraction of JMOs compared to a very substantial proportion of senior medical practitioners who benefit from SEAs. A simple proposition?‑‑‑Sure, yes.

PN1000

It’s of major concern because in respect of some seniors, it can represent more than 50 per cent of their income?‑‑‑So it’s a substantial amount of money.

PN1001

Your Honour, I should just out of consideration for the court staff, just note the time and say I’ve still got some substantial cross‑examination to go.

PN1002

THE DEPUTY PRESIDENT: That's fine. My objective is to conclude the witness evidence today.

*** FRANK BOWDEN XXN MR CHIN

PN1003

MR CHIN: Yes, I didn't want to presume.

PN1004

THE DEPUTY PRESIDENT: Yes, that’s fine. I mean, unless anyone else has got any commitments that they need to get away, I'm happy to sit until we've firstly concluded Professor Bowden’s evidence and then until we deal with how we’re going to deal with the issue of closing submissions.

PN1005

MR CHIN: Thank you, your Honour.

PN1006

You're aware it’s a major concern of Ms Wyborn, the bargaining representative of various senior practitioners, this issue of SEAs. Yes?‑‑‑Yes.

PN1007

One concern is the new provision which provides that SEAs will automatically cease to operate within a certain period of time unless they're reviewed and a decision is made about them?‑‑‑Yes, I'm aware of that.

PN1008

The response of ACT Health is to say, “Look, there’s no need to worry because under the agreement the Director‑General is required to conduct a review,” so there’s no cause for concern on the part of senior doctors because the Director‑General is required to conduct a review annually. That's correct?‑‑‑It’s clearly concerning them, but ‑ ‑ ‑

PN1009

I'm putting to you that’s your response?‑‑‑So that’s my response.

PN1010

Yes, thank you?‑‑‑Sorry, I thought it was your ‑ ‑ ‑

PN1011

No, that’s fine. Sorry if I didn't make that clear. Can I give to you volume 2 of our bundle? You'll find, Professor Bowden, a copy of the proposed agreement in that bundle and it starts under tab 3. It’s under annexure A. There’s a plastic tab which shows annexure A. That's the proposed agreement and I want to take you to the provision dealing with this issue. You'll see page numbering, pagination at the bottom of each page. Can I ask you to turn to page 481? You'll see clause 3.5, the provision I was referring to earlier towards the end of that page. Do you see that?‑‑‑I do.

PN1012

And it provides that SEAs are now known as attraction and retention incentives or ARINs will automatically cease unless the ARIN is reviewed - and either extended or renewed. Do you see that?‑‑‑Yes.

*** FRANK BOWDEN XXN MR CHIN

PN1013

Can I ask you to turn to page 484 and this is the provision you point to to provide comfort to senior doctors:

PN1014

7.1: the Director‑General must review ARINs at least annually from the date of signing the ARIN to determine whether it should continue to operate.

PN1015

Do you see that?‑‑‑Yes.

PN1016

But following the review there are another couple of steps, are there not? 7.4 requires the Director‑General to consult with the employee party to the ARIN when undertaking this review. 7.5 says:

PN1017

Following the review the Director‑General –

PN1018

at (a) over the page:

PN1019

concludes from the review that the position the employee occupies continues to meet the eligibility criteria –

PN1020

that he concludes:

PN1021

the ARIN will continue to apply to the employee.

PN1022

In 7.6:

PN1023

There must be a written submission to the head of service that the ARIN continue or be varied.

PN1024

Do you see that?‑‑‑I do.

*** FRANK BOWDEN XXN MR CHIN

PN1025

So it’s clear, isn't it, Professor Bowden, that although a review must be conducted annually, there are a number of steps that need to take place under this agreement upon a review being conducted because the Director‑General has to form a view – has to conclude either to vary it, continue it or that it should cease, has to make a written submission to the Director‑General and all that may take more than 15 months for the Director‑General after a review to draft the written submission and to conclude whether the SEA or the ARIN should continue, vary or cease. Do you accept that?‑‑‑My understanding is that in the processing of this, because of the number of people who have ARINs, that there will be some delegation, but clearly the Director‑General is the delegate and will make the final decision.

PN1026

Yes?‑‑‑But the work will be done at a divisional level in terms of forming part of the normal performance plan that’s drawn up between them.

PN1027

Yes, I understand that. You say all of that can be done within 15 months. You say that. But what I'm suggesting to you is on the terms of the agreement itself, the process of concluding whether to vary or continue an SEA may exceed the 15-month period?‑‑‑It’s certainly – in all of the negotiations that we've had in the course of this, we've made it very clear to people that the likelihood of all of the scrutiny of SEAs is that they will continue and so that the process is – which has been the experience of everybody for a long time. In the previous agreements, the clauses exist for review and for cessation of SEAs and outside of issues relating to misconduct or incompetence or people losing particular qualifications, the SEAs have not been varied. The longstanding experience within the organisation has been – it was made clear to everybody in the process that our intent was to have the ability, which we had had in the past, but which was consistent now with a core agreement which was to make more specific some of the requirements for review and we thought – and my feeling as a member of the negotiating team, as the lead negotiator, was that this was reasonable, that this would make people attend to the process of review in a formal way and to develop the considerable administrative processes that would be needed to look at this.

PN1028

But there’s a difference now, isn't there, Professor Bowden, and the difference is that if that process doesn't take place, those SEAs will by operation of the agreement itself cease to exist. That's the difference now?‑‑‑Now the advice I'm given and, clearly, this has been discussed and I'm clearly not an industrial lawyer, so I'm going on the advice that I'm given, is that if we were to terminate without review, that we would be breaching the Act and that we would – and the employee who was in that position would have a very strong case.

PN1029

So you say ‑ ‑ ‑?‑‑‑And we made that very clear to people that that’s not our intention. There was no intent ‑ ‑ ‑

PN1030

I understand you say that’s not your intention, but the bottom line is, Professor Bowden, that what you are saying to senior medical practitioners is to take us on faith. This will all be done within 15 months. Do you agree with that proposition?‑‑‑This is the change and we’re saying to people we will have to put in place administrative mechanisms to ensure that this is done because if we don’t do that, if we do not review them and it lapses then the employee has every right to come to the Commission.

*** FRANK BOWDEN XXN MR CHIN

PN1031

That may or may not be the case, but you talk about implementing administrative mechanisms to ensure it’s done. You would accept, wouldn't you, that ACT Health has a less than perfect record of conducting reviews of SEAs in the past?‑‑‑I think that’s true.

PN1032

That's true. There’s a concession by Mr Linton in the meeting that you attended in January that that was so, that Dr Oerder, for instance, has given evidence today that one of his SEAs, SEA number 117 – the SEA itself received annual review since January 2009. The SEA itself, in black and white, required annual reviews and his evidence was it has never been reviewed. Do you accept that?‑‑‑I'm unaware of the individual ‑ ‑ ‑

PN1033

You're unaware of it, but you can’t ‑ ‑ ‑?‑‑‑But I can’t deny it.

PN1034

It doesn't surprise you?‑‑‑It doesn't surprise me.

PN1035

With that context, the senior medical practitioner concern about this new automatic cut-off of 15 months in the proposed enterprise agreement, you would accept, is understandable?‑‑‑It is understandable because if an employee who is receiving a benefit above the award would like to have it reviewed every year then we should be able to provide that review. I mean, because the reviews go both ways. There are people with SEAs who will negotiate with their employer for an increase in the SEA. To my knowledge, that has occurred on a number of occasions with success on the part of the person who has negotiated it. So on the one hand, I think there has been a passivity in that an SEA, where the person who’s in possession of it has been performing well, has been clearly a respected member of the staff that people feel that the SEA can stand. The employee who feels that they have increased their value to the organisation in some way will approach the organisation through their relevant executive director and seek an increase in pay and I'm aware of the number of instances of that. These are private matters so many people won’t be - they're private matters so others won’t know about that.

PN1036

Can I just ask you to pause there? In response to my question, I think your evidence would be that you accept that that concern in that context is understandable presently?‑‑‑I can understand it.

PN1037

In the context of your negotiations with ASMOF about this new regime, ASMOF never took issue with this new automatic expiry provision, did they?‑‑‑There was a lot of discussion about this. People were concerned. The minutes were - as you know, all the minutes were circulated, so Dr Oerder and Dr Matthieson would have received the minutes.

*** FRANK BOWDEN XXN MR CHIN

PN1038

Yes?‑‑‑They would have been aware of that. The ‑ ‑ ‑

PN1039

Can I just pause there? You say the minutes of your meetings with ASMOF about the SEA issue were ‑ ‑ ‑?‑‑‑No, excuse me, AMA. My apologies. AMA would have been Dr Oerder and Dr Matthieson.

PN1040

So you say because they got the minutes of your meetings with ASMOF, they were aware of this issue?‑‑‑I'm saying they had the opportunity to do ‑ ‑ ‑

PN1041

Let’s go to those minutes. Can I ask you to look at volume 1? In your statement, you – sorry, I withdraw that. Behind tab 2 is a statement of Ms Wyborn and Ms Wyborn annexes to her statement at annexure H the records of the minutes of your meetings with ASMOF and in your statement you refer to them, I think. You say, “Those minutes are annexed to Ms Wyborn’s statement.” So if I can ask you to turn to annexure H, the minutes proper start at about page 77. Do you see the pagination at the bottom of the page?

PN1042

THE DEPUTY PRESIDENT: Annexure H or annexure I?

PN1043

MR CHIN: It’s annexure H, I think. That's a good question. It’s annexure I, I'm sorry. It is annexure I. Yes, thank you, your Honour.

PN1044

I'm sorry, Professor Bowden, if I’ve confused you, but it’s annexure I?‑‑‑Not at all, no.

PN1045

The page number is probably the safest reference?‑‑‑Yes. No, I’ve got it.

PN1046

They start at page 77. Can I ask you to turn to page 98? That's a minute of a meeting dated 28 March 2014. It’s recorded that you were present, Mr Linton was present, among others and Dr Hallam for ASMOF, among others, was present. Do you see that?‑‑‑I do.

PN1047

On page 100, can I ask you to turn there, there’s a notation in the last row about the SEAs. Do you see that?‑‑‑Yes.

PN1048

Can I ask you to read through that until over the page – the row continues over the page? Can I ask you to read that and let me know when you've finished?‑‑‑Yes, thank you.

*** FRANK BOWDEN XXN MR CHIN

PN1049

That records ACT Health alerting ASMOF to the existence of the new review regime for SEAs under the proposed agreement. Correct?‑‑‑Yes.

PN1050

It records ASMOF’s comment or response, stated that this will have a large impact on the doctors. Do you see that?‑‑‑I do.

PN1051

It records nothing else. It doesn't record any discussion about the new automatic cut-off, does it?‑‑‑No.

PN1052

And that’s because it wasn't raised explicitly?‑‑‑I'm afraid I can't recall.

PN1053

Will you accept from me, Professor Bowden, that in the course of all of the minutes of the meetings between yourself, Health and ASMOF, which you pointed to as existing in annexure I to Ms Wyborn’s statement?‑‑‑Yes.

PN1054

This is the only reference to any substantive discussion about the SEA review mechanism. Would that surprise you?‑‑‑The SEAs was an issue of considerable discussion. I mean, it was an out of negotiation discussion. People were talking about it around the hospital. People were talking about it.

PN1055

I'm just asking you to confine yourself to the bargaining negotiations you had with ASMOF?‑‑‑No, no, I understand. You're making the point which is that the only time it was raised would be here and I'm saying to you that it’s recorded here as a particular item, but I can’t say that that is the only time that discussions were had and the only time that informal discussions would have been had and as you're aware, in the process of negotiations there is always – people are always talking about things; not in an official sense, but at a level of colleagues.

PN1056

So clause 3.5 might have been discussed in an informal way outside of these meetings, you say, with ASMOF?‑‑‑No, no, that’s not what I'm saying. I'm talking about amongst doctors. Perhaps one of the things that you – excuse me, I'm sorry. One of the things, Mr Deputy President ‑ ‑ ‑

PN1057

No, no, before you go on, Professor Bowden, please, can I ask you to focus on my question. My question is about the bargaining between ASMOF and Health?‑‑‑Yes.

PN1058

Okay? I'm not talking about hallway scuttlebutt or between doctors of the hospital?‑‑‑Yes.

*** FRANK BOWDEN XXN MR CHIN

PN1059

Leave that aside?‑‑‑Yes.

PN1060

I'm talking about the formal bargaining process, the context in which ASMOF is representing the interests of senior doctors about a very important issue to senior doctors. Okay?‑‑‑Yes.

PN1061

This, you have said, is a vehicle by which AMA and other bargaining representatives or senior practitioners in another stream can come to learn about what’s important to them in the new proposed agreement, okay, the minutes of your bargaining. You said that?‑‑‑This is certainly one area where it’s raised.

PN1062

Yes. Will you accept from me that this is the only reference, or substantive reference, to the changes to the SEA scheme recorded in the minutes between meetings between you and ASMOF?‑‑‑I'm certainly happy to accept that.

PN1063

It wouldn't surprise you because it was only discussed at this meeting to this extent in the course of your bargaining negotiations?‑‑‑The information about the SEAs was also discussed at a meeting of all of – open to all of the members of ASMOF.

PN1064

Leave that aside?‑‑‑Sure.

PN1065

I'm talking about your bargaining with ASMOF?‑‑‑Sure.

PN1066

ASMOF did not oppose the inclusion of clause 3.5, did it?‑‑‑ASMOF - to my recollection, the discussions were around the fact that there were some concerns about it, but that there was – it was felt that the reassurance that had been given to them – and it was a reassurance that I needed myself ‑ ‑ ‑

PN1067

So is the answer to my question yes?‑‑‑The answer is yes.

PN1068

On the topic of ASMOF’s representations about the prospect of splitting enterprise agreements between seniors and juniors, you say it was raised early on by ASMOF, but you say it wasn't seriously raised. That's your evidence?‑‑‑It is my evidence. If I may just expand upon that?

PN1069

Yes, I'll ask you if I need to?‑‑‑Sure.

*** FRANK BOWDEN XXN MR CHIN

PN1070

That prospect is not recorded in any minutes, do you accept that, ASMOF raising the idea of splitting the enterprise agreement?‑‑‑I'll accept it. If you tell me it’s not in the minutes, I will accept it.

PN1071

Would it surprise you that it’s not?‑‑‑I don't know what you mean surprise me, but my evidence is that we discussed it, that we – that it was an issue that was raised. The fact that it’s in the minutes or not, I apologise, I'm unaware that it’s not in the minutes.

PN1072

I don’t mean to be cute about it, but it wasn't a major topic of discussion between ASMOF and you. They raised it. You batted it away. That was the end of the matter. Correct?‑‑‑I think it was clear to us that it was not a major part of the negotiating that they wished to pursue.

PN1073

What you're really saying is that when Ms Wyborn raised - my client Ms Wyborn – the issue for the first time in this context after it having been raised in this bargaining period by ASMOF, that’s the first time it’s been insisted upon. Correct?‑‑‑I think I know what you're saying. I mean, insisted upon by Ms Wyborn that ‑ ‑ ‑

PN1074

There be separate agreement for senior medical practitioners?‑‑‑So it’s certainly spelt out that it was a part of a – strong part of the claim.

PN1075

Yes, yes. Can I move on to another topic? I'm just noting the time. You deal in your evidence with the on-call allowance issue. The tiered on-call allowance, I think, was raised by Health with ASMOF. So you took the initiative about this proposition?‑‑‑I should point out that ASMOF have raised this in the past in previous negotiations and it’s been ‑ ‑ ‑

PN1076

But I'm talking about this bargaining process. You took the initiative and raised it with ASMOF. Correct?‑‑‑My recollection is that when we were discussing on-call allowance, we raised the issue that tiering might be something worth exploring.

PN1077

So you regard it as desirable. That's why you suggested it. You raised it?‑‑‑We talked about it because there may be some value in looking at tiering because there are people who are working more on call than others, whereas at the moment everybody is paid the same amount regardless of the on-call requirement.

*** FRANK BOWDEN XXN MR CHIN

PN1078

So you thought there was value in looking into it and that a tiered system may well be desirable, but you put a condition on it that it had to be cost neutral. Is that right?‑‑‑So it would have to be that ‑ ‑ ‑

PN1079

Can you just listen to my question?‑‑‑Sorry. My apologies. I'm sorry.

PN1080

I'm just conscious of the time, Professor Bowden?‑‑‑I understand that.

PN1081

I mean no disrespect?‑‑‑Yes; and no disrespect to you either. That's not my - I'm not used to this.

PN1082

No, no. Now I’ve forgotten my question. You raised it as a potentially desirable prospect and you made the condition that whatever it had to be, it had to be cost neutral?‑‑‑Yes.

PN1083

And ASMOF refused to countenance that condition?‑‑‑Yes, that was – that’s right. Yes.

PN1084

And that’s a source of regret to you. You thought it might have been borne some fruit and been a desirable outcome if they could have negotiated it on that basis?‑‑‑My intention would be to revisit this issue.

PN1085

You would welcome representatives of senior medical practitioners who were prepared to discuss or negotiate a tiered system based on cost neutrality, wouldn't you?‑‑‑That's correct.

PN1086

You've never had an opportunity to discuss that with Ms Wyborn, have you?‑‑‑Personally, no.

PN1087

And you know that Ms Wyborn has made a claim in her log of claims, so to speak, for a tiered on-call allowance system, haven't you?‑‑‑I do and according to what we have said, though, it would mean that people would have to reduce their on-call allowance. So someone would have to ‑ ‑ ‑

PN1088

Yes, but my question was ‑ ‑ ‑?‑‑‑Someone would have to lose. So the reason that - I'm sorry.

PN1089

THE DEPUTY PRESIDENT: Just listen to the question.

PN1090

MR CHIN: My question, simple question, Ms Wyborn raised that as one of her demands or requests, a tiered on-call allowance?‑‑‑Yes.

*** FRANK BOWDEN XXN MR CHIN

PN1091

Yes or no?‑‑‑Yes.

PN1092

You have not explored with Ms Wyborn the prospect of coming to some agreement as to that on a cost neutral basis, have you?‑‑‑No.

PN1093

THE DEPUTY PRESIDENT: Can I just ask the follow up? There’s no reason why that issue couldn't be explored irrespective of whether you had a tiered approach to bargaining as opposed to a single bargaining unit?‑‑‑I can't see an impediment to that.

PN1094

MR CHIN: You suggest, Professor Bowden, in your statement that – in paragraph 36 of your statement, just to be fair to you, if you want to have a look at that, you discuss and you go to some further elaboration in answer to some questions from Ms Robinson – you deal here with what you see as some risks of splitting the enterprise agreement or splitting bargaining for the enterprise agreement, more particularly, don’t you? Is that right?‑‑‑I do.

PN1095

And in paragraph 36, correct me if I'm wrong, but what you're suggesting there, you're suggesting, are you, that senior medical practitioners may seek – if they were bargaining for a separate agreement, may seek to diminish their training responsibilities to JMOs. That's what you're suggesting in that paragraph, aren’t you?‑‑‑I'm saying it’s possible.

PN1096

You don’t really have a basis to suggest that that’s a serious prospect or a serious risk that the Commission should take into account, do you?‑‑‑I don't think it’s – as I’ve written in this paragraph, I’ve written it as a statement of some of my concerns. It’s very difficult to have a – I can’t ‑ ‑ ‑

PN1097

This is a serious exercise, Professor Bowden, about what bargaining with senior medical practitioners for their own agreement might look like?‑‑‑Yes.

PN1098

You've raised this prospect. You say now in the witness box – let me finish – that it’s possible. It’s possible. You don’t say it’s likely. You're just raising it as a possibility?‑‑‑I am. I'm raising it as a possibility. It forms one part of my evidence, yes.

PN1099

THE DEPUTY PRESIDENT: Can I ask a slightly different question? Is the expectation in terms of the training obligations of senior medical practitioners set out in their duty statements or ‑ ‑ ‑?‑‑‑Yes, it is.

*** FRANK BOWDEN XXN MR CHIN

PN1100

As opposed to the enterprise agreement?‑‑‑The duties statement have requirements for teaching.

PN1101

So how would an enterprise agreement sort of undermine that given the context you've made?

PN1102

MR CHIN: I can explore that, if I may.

PN1103

THE DEPUTY PRESIDENT: Okay. I'll let you go.

PN1104

MR CHIN: I intend to explore that now.

PN1105

THE DEPUTY PRESIDENT: All right.

PN1106

MR CHIN: You know that senior medical practitioners take very seriously their role as trainers of junior medical officers and educators of junior officers, don’t you?‑‑‑I do.

PN1107

They are subject to professional college guidelines that include an apportionment of their time spent on clinical duties and non-clinical duties. Correct?‑‑‑If they're in a training position, that’s correct.

PN1108

Yes. And their non-clinical duties include an educational training role. It includes those duties?‑‑‑Am I allowed to clarify?

PN1109

Yes. My question is the time recommended by some colleges for an apportionment of time to non-clinical duties includes a training and educational role?‑‑‑That is correct, but it’s important to point out that a lot of that training and teaching occurs at the time of service delivery.

PN1110

Yes, I understand that. Yes, that’s fine. But the point is, for instance, the College of Intensive Care Medicine provides that an ICU senior practitioner should devote three days out of 10 to non-clinical duties, which includes educational and training roles. Right?‑‑‑Yes.

PN1111

That's 30 per cent of their time. Correct?‑‑‑So we have to be very careful ‑ ‑ ‑

PN1112

So just yes or no?‑‑‑Well, I can’t say yes or no to that unless I clarify it.

*** FRANK BOWDEN XXN MR CHIN

PN1113

Let me show you ‑ ‑ ‑?‑‑‑I'm sorry, I'll say yes.

PN1114

That's all right?‑‑‑My apologies, Deputy President. I'm not meaning to be difficult.

PN1115

THE DEPUTY PRESIDENT: That's all right. You got the answer yes.

PN1116

MR CHIN: That's all right?‑‑‑Yes.

PN1117

You don't know that for a fact?‑‑‑No, no, there’s complexity within the statement that has to be pointed out.

PN1118

Let me unpack that capacity?‑‑‑I believe it has to be, yes, yes.

PN1119

Do you have Dr Avard’s statement? Do you have volume 2 of the two volumes that I’ve given you? If you look at page 557. It’s annexure B to Dr Avard’s second statement?‑‑‑Yes, I have that.

PN1120

That is a guideline issued by the College of Intensive Care Medicine of Australia and New Zealand. It’s for hospitals accredited for training in intensive care medicine. Do you see that?‑‑‑Yes, I do.

PN1121

It talks in section 2 about the duties of an intensive care specialist. It deals firstly with their clinical duties. Do you see that?‑‑‑I do.

PN1122

Over the page in 2.2 it then deals with their administrative and educational duties. Do you see that?‑‑‑I do.

PN1123

In 2.2.2 it specifies some of those educational activities. Do you see that?‑‑‑Yes.

PN1124

Those are regarded as non-clinical duties. Correct?‑‑‑They do.

PN1125

In paragraph 3.1 it is stipulated that for intensive care staff specialists non-clinical duties of an intensive care staff specialist on average three days per fortnight should be allocated. Do you see that?‑‑‑I do.

*** FRANK BOWDEN XXN MR CHIN

PN1126

That is a reference to non-clinical duties which include their educational duties. Do you accept that?‑‑‑I accept that.

PN1127

A representative of this college visited you in December in 2014, did they not?‑‑‑That's correct.

PN1128

And that’s because the college accredits the hospital or the ICU in particular, whether it is a training college for their purposes or not?‑‑‑As a training site.

PN1129

That's right?‑‑‑Yes.

PN1130

During that visit it was remarked to you by the representative of the college that any departure from their recommended non-clinical time would risk the hospital’s ICU losing their accreditation for training. Do you recall that?‑‑‑I do.

PN1131

That was said to you by the representative?‑‑‑Look, to be honest, I don't have a direct recollection of that, but I know that those things were discussed and it’s been put in writing and I believe that’s quite likely that that’s what they ‑ ‑ ‑

PN1132

And yet ACT Health rejects those guidelines. Correct?‑‑‑The ACT does not reject the guidelines.

PN1133

Can I take you to paragraph 50 of your statement?‑‑‑Yes.

PN1134

In paragraph 50 and about halfway down, the third sentence I think, you say, “The ANZCA guidelines refer to” – this is by Dr Oerder. Dr Oerder is talking about different guidelines, but again similarly dealing with a portion in between clinical and non-clinical duties. You say:

PN1135

They're a guideline only and they're rejected by ACT Health. ACT Health considers 20 per cent reasonable for those SMPs.

PN1136

?‑‑‑Okay. So I used the word “reject”. It’s a very strong word and I probably wouldn't have used that word “reject” but I would say questions because of the complexity of what constitutes clinical and non-clinical time. We have put together a guideline in the proposed agreement that outlines what would be seen as clinical or non-clinical. If you scrutinise those guidelines, you can see that a lot of things which are called clinical, many people would call non-clinical. So it’s a whole of activities which are related to the administration of your practice, the administration of the teaching which would be considered to be clinical activity.

*** FRANK BOWDEN XXN MR CHIN

PN1137

The resistance to more clinical time, which includes training, I want to suggest to you is coming from ACT Health and not from senior medical practitioners?‑‑‑That's absolutely not true.

PN1138

So you're prepared to adhere to the guidelines set down by the colleges in terms of - they're split for clinical and non-clinical duties; non-clinical duties including training and educational activities?‑‑‑All colleges can sit – and there are many colleges who come to accredit the hospital who all have slightly different demands about their training requirements. They're all similar, but they're slightly different. My belief is that if we tease them out and look at the individual requirements, the statements that we've made in the agreement are such that we can meet easily all of the requirements of the colleges.

PN1139

In any event, it’s quite wrong to suggest that senior medical practitioners bargaining in their own right for a separate agreement would be likely to want to be negotiating to diminish their training activities when they are subject to the guidelines by their own colleges and the evidence is that they are the ones wanting to comply with the recommendations of their own colleges as to training?‑‑‑It’s quite possible that they might. It’s possible that they might seek payment for those activities.

PN1140

So it’s quite wrong to suggest that a separate enterprise agreement negotiation would result in some costs to junior medical officers in terms of their training they receive from seniors?‑‑‑I guess all I'm saying is it’s possible. I don’t feel very strongly about that particular point that it would lead to everybody coming out and saying that they're not going to provide ‑ ‑ ‑

PN1141

Professor Bowden, that’s because it’s pure speculation, that’s why and it ought not be a serious consideration for the Commission?‑‑‑I object to the statement that it’s pure speculation. I think it’s based upon my considered opinion, but that does not mean that it will certainly reflect the future.

PN1142

Can I ask you about your evidence about staffing in the ICU at paragraph 42? You've seen Dr Avard’s response to that, haven't you? Dr Avard gives some different figures?‑‑‑No, I have. I have, I have.

PN1143

She says you're out by some one or two in your figures. Are you prepared to ‑ ‑ ‑?‑‑‑It raises the issue that perhaps they're being employed without funding. That's my question.

*** FRANK BOWDEN XXN MR CHIN

PN1144

She says she’s looked at rosters?‑‑‑It may be – exactly, that’s what I'm saying. So the FTEs - I'm basing it upon the FTE. So they may have recruited above the FTE.

PN1145

But you defer to Dr Avard’s actual roster figures there in terms of numbers?‑‑‑If Dr Avard says, “They're the people on the roster,” then I accept that is the correct number.

PN1146

So you accept that there’s been an increase from 18 to 30 juniors in the ICU since 2009. That's what Dr Avard says?‑‑‑Over the seven years. Correct.

PN1147

You accept that training workload of seniors is not merely determined by the number and experience of the JMOs or the experience outside the ICU, wouldn't you?‑‑‑There’s a balance between workload and trained requirements. If you have more junior staff to do more work for you, you have more time to teach them.

PN1148

But the training needs is not determined necessarily by their number. There are other factors at play. Do you accept that proposition?‑‑‑The most important thing for a junior doctor to do is to see patients; is to be involved in clinical work. The more they do, the more experience they get, the more supervision they have by experienced practitioners, the better they will be. Teaching as in knowledge is one component, as in a didactic teaching session is one small component of the learning that a doctor has to do.

PN1149

And supervision on the job is also a form of teaching?‑‑‑Indeed, yes.

PN1150

And senior doctors in the ICU are responsible for that?‑‑‑And the more senior your junior doctors are, by that the more senior registrars you have, the more time you have to spend with the less experienced doctors. I celebrate the fact – I celebrate the fact – that the junior staff has increased in our intensive care. It’s a wonderful thing. I celebrate the teaching commitment that the intensive care doctors make to their junior staff. It is a wonderful place. It is a wonderful place to learn and to teach. It’s a wonderful place to be cared for. We have a wonderful ICU so I'm not objecting to any of those things. All I'm saying is the facts are that in terms of needing to – to say that there is a separation between the two is an artificial separation. These arguments which have been made to me do not seem to reflect the realities of day‑to‑day work.

PN1151

Which question are you answering?‑‑‑I don't know. I'm just making a statement. Sorry.

*** FRANK BOWDEN XXN MR CHIN

PN1152

You're making a speech, aren’t you?‑‑‑Yes. Could I have a glass of water, please?

PN1153

Dr Avard is well placed to know about the training requirements of her officers?‑‑‑Dr Avard is an excellent position.

PN1154

And she says whether a first time junior medical officer in the ICU – whether they're second year or third year, if they’ve never been in the ICU they need similar levels of training and supervision. You accept that?‑‑‑Not entirely.

PN1155

You don’t?‑‑‑I would ‑ ‑ ‑

PN1156

You disagree with that?‑‑‑Look, I'm not going to die in the ditch over that sort of argument, but I would say I don't agree entirely with it in the sense that if you're a first year doctor, every single thing you do is new to you. If you're a second year doctor, things aren’t so new. If you're a third year doctor, you learn things more quickly. But having said that, I’ve got third year doctors who would be not as ready to learn as a second year doctor. There’s great variation within that.

PN1157

There is great variation?‑‑‑And I just think that ‑ ‑ ‑

PN1158

We can agree on that?‑‑‑This seems to me to be a casuistic argument. I just don’t - I'm sorry, it’s not my business to say.

PN1159

Dr Avard is an experienced ‑ ‑ ‑

PN1160

THE DEPUTY PRESIDENT: Keep going with the questions I think.

PN1161

MR CHIN: Yes, thank you.

PN1162

Dr Avard says:

PN1163

The National Safety and Quality Health Care Accreditation Standard has introduced new reporting requirements that create more onerous reporting administrative work for seniors in relation to the training that they do.

PN1164

You accept that?‑‑‑There is – yes.

*** FRANK BOWDEN XXN MR CHIN

PN1165

The College of Intensive Care in 2015 introduced new assessments which has increased the training requirements required of ICU specialists. You accept that?‑‑‑Correct, yes.

PN1166

So it’s not just the function of the number of – and year level of trainees that are rotated through ICU in terms of the training workload of seniors?‑‑‑So the external requirements, yes. Yes.

PN1167

I'm sorry, Professor Bowden, just bear with me for a moment. Are you aware of the result, Professor Bowden, of the protected action ballot of senior practitioners conducted recently?‑‑‑I'm aware of the action. I'm not aware of the result.

PN1168

Would it surprise you to learn that it was approved?‑‑‑Sorry, just explain to me, by approved meaning that it was ‑ ‑ ‑

PN1169

That the proposed protected action in the ballot, proposed in the ballot, was approved by senior medical practitioners?‑‑‑I'm sorry. Are we talking the same – this is about looking for the protected action of the senior ICU staff?

PN1170

It’s among the senior medical practitioners represented by Ms Wyborn?‑‑‑Yes.

PN1171

Yes?‑‑‑Yes, and so that has been granted?

PN1172

Yes. You're not aware of that?‑‑‑I wasn't aware of it. I knew the application had been made.

PN1173

Yes, you knew the application had been made. What effect do you see that as having on the process of bargaining going forward as it exists now?‑‑‑I don't know.

PN1174

There may be some prolongation of that process if this process is played out to a protected action. You accept that?‑‑‑I’d have to take advice. I don't know, but it sounds like it would.

PN1175

Thank you. Nothing further.

PN1176

THE DEPUTY PRESIDENT: Mr Wilson?

*** FRANK BOWDEN XXN MR CHIN

PN1177

MR WILSON: Thank you, your Honour.

CROSS-EXAMINATION BY MR WILSON [4.59 PM]

PN1178

MR WILSON: Professor Bowden, you're aware that my application seeks the currently proposed enterprise agreement to be limited in an odd way to all medical practitioners employed by the ACT except the radiation oncologists who are the people I represent?‑‑‑Yes.

PN1179

You're also aware, are you, that one of the considerations that this Commission has to bear in mind in determining whether or not to grant the order I seek is that the making of the order will promote fair and efficient conduct of bargaining? Have you been told that by somebody?‑‑‑I have. I’ve been – yes.

PN1180

In that context can I take you to your statement, please? Go to page 65. You'll see in the top right‑hand corner, I think, those who prepared or assisted you with the preparation of your statement have page numbered it. 65? See that?‑‑‑Sorry. I'm on mine. I’ve got my copy.

PN1181

Have you?‑‑‑If you tell me which paragraph it is, I can go to it.

PN1182

All right. Please go to paragraph 83?‑‑‑Thank you.

PN1183

I believe everybody else here has numbered paragraphs. All right. You'll see in the centre of that page there’s a central heading, if you like, Mr Wilson’s claims?
‑‑‑Yes.

PN1184

Everything else that you say in your statement after that heading relates to my claims?‑‑‑That's correct.

PN1185

And, therefore, the order that I seek. If you go to paragraph 114, you'll see immediately ‑ ‑ ‑?‑‑‑Yes.

PN1186

I'm sorry, Professor Bowden, you let me know when you've got it?‑‑‑Yes.

PN1187

You'll see the heading The Bargaining Process. All right?‑‑‑Yes.

*** FRANK BOWDEN XXN MR WILSON

PN1188

You make some statements underneath that. What you're really saying there, is it not, that bargaining has been fair so far as those I represent are concerned. Correct?‑‑‑Yes.

PN1189

It won’t be any fairer if – that is – and one would assume they continue to be, if the order I seek is granted?‑‑‑Certainly, there would not be - I can't see how it would be fairer to the medical officers currently covered by the enterprise agreement.

PN1190

All right?‑‑‑Currently covered.

PN1191

Yes. So in that regard, you contend that bargaining, insofar as those I represent are concerned, has been fair?‑‑‑That's my contention. Yes.

PN1192

And that fairness will be continued if the current process continues as is, that is without hiving off those I represent?‑‑‑Yes.

PN1193

Can I give you some more paper, please? What I’ve handed to you just now, Professor Bowden, is the bundle of documents that I have provided to the Commission in support of my application. Okay? Can you first of all please – and you'll see a tab which is headed Supporting Documents. Can you see that on the side?‑‑‑I can.

PN1194

You'll see on the top right‑hand corner these pages are numbered. All right? Would you be good enough, Professor Bowden, to please turn to page 354?
‑‑‑Okay.

PN1195

Do you recognise that document?‑‑‑I do.

PN1196

It’s, of course, for the record, “What’s different about the ACT Public Sector Medicare Medical Practitioners Enterprise Agreement 2013 to 2007.” All right? You'll accept – sorry. Did you have a hand in reviewing that in your role as the chief negotiator for the ACT?‑‑‑This was prepared by staff and I would have seen it and it would have been prepared on the basis of discussions that we had.

PN1197

And you approved it?‑‑‑And I'm very happy to approve it.

*** FRANK BOWDEN XXN MR WILSON

PN1198

Would you please turn to page 356? Do you see the heading Facility Fees? It’s perhaps to state the obvious, Professor Bowden, that you would accept that a significant, if not the significant bone of contention, on the part of those I represent is the increase in facility fee from 20 to 30 per cent. All right?‑‑‑Yes.

PN1199

This document, if you look at the first paragraph under the heading Facility Fees, provides the justification on the part of the territory for that increase, doesn't it?‑‑‑It does.

PN1200

And that is, you'll agree, the increased costs in providing infrastructure for radiation oncologists?‑‑‑Yes. That's what it says.

PN1201

Yes. That's been the consistent message, hasn't it, or justification of the ACT to the other bargaining representatives through the course of bargaining for the agreement?‑‑‑It is.

PN1202

In general?‑‑‑In general.

PN1203

In particular, to the radiation oncologists. Is that right?‑‑‑If we’re defining infrastructure?

PN1204

They're not my words, but increased costs in providing infrastructure has been the justification for the increase in the facility ‑ ‑ ‑?‑‑‑Certainly the justification you've put here, but that does not necessarily reflect all of the discussions that would have been had and I suppose the definition of infrastructure is important.

PN1205

Very well. But none of this – this was the representation to everybody who voted on the agreement in the first instance and, in particular, the radiation oncologists?‑‑‑Yes.

PN1206

Because, of course, you'll agree with me that the radiation oncologists numerically are a very small group amongst the whole of the amorphous mass, if you like, of medical practitioners?‑‑‑That's correct.

PN1207

An increase in the facility fee is a very important issue for them, is it?‑‑‑Clearly.

PN1208

Clearly. Conversely, an issue that everybody else would be uninterested in or disinterested in?‑‑‑No. No, that’s not true.

*** FRANK BOWDEN XXN MR WILSON

PN1209

Really?‑‑‑Well, if I was to – as in the negotiations, as you can see, there’s a – in the following paragraph it says, “The facility fee arrangements will be discussed for the entire medical practitioners’ group.”

PN1210

Yes. But it doesn't affect anyone other than the radiation oncologists, does it?‑‑‑Yes, indeed.

PN1211

Really?‑‑‑So everybody who’s on a scheme, B and C, is paying a facility fee. There’s no facility fee for scheme A, but all on scheme B and C have a facility fee. So, for example, the cardiologists pay a 40 per cent fee. The respiratory doctors pay a 40 per cent facility fee.

PN1212

Yes?‑‑‑So had we – as does any practitioner who’s using any of the facilities – and they pay, if they're, for example a scheme B endocrinologist, they pay a 20 per cent facility fee because they use the facilities of the ‑ ‑ ‑

PN1213

I agree. I accept that, Professor Bowden?‑‑‑So it’s the facility ‑ ‑ ‑

PN1214

But the only people who had their facility fee increased were the radiation oncologists?‑‑‑As for the agreement, that was – however, the following paragraph says that we will be looking at the facility fees for every practitioner.

PN1215

Very well. But not in this agreement?‑‑‑Not in this agreement.

PN1216

Are you aware that during the course of my application leading up to this hearing, I prepared what’s called a form F52 order, requiring production of documents, et cetera, to the Fair Work Commission? Are you aware of that?‑‑‑Can you take me to it?

PN1217

Yes, I can take you to it, page 1?‑‑‑Right, yes.

PN1218

Have you seen this document before today?‑‑‑This is your application for the scope order? Yes, I have.

PN1219

No, no. I'm sorry, Professor Bowden. I'll make sure we’re on the same page. It’s page 1, which has got a heading form F52. Can you see that?‑‑‑Sorry. Now I'm right.

PN1220

The first document?‑‑‑Now I'm right.

*** FRANK BOWDEN XXN MR WILSON

PN1221

Yes, all right. You've seen this document before, have you?‑‑‑I haven't seen it printed, so I'm going to have to – I’ve only seen it on the screen.

PN1222

But you're aware of its existence before now?‑‑‑Okay.

PN1223

Did you assist in its consideration?‑‑‑I did.

PN1224

Could you go to page 2, please? Could you have a look at paragraph 3 or point 3 where I asked for:

PN1225

A copy of all documents, how so ever titled, described, produced by or obtained by the ACT government during the relevant period that contains statements which the ACT government relied upon in deciding the proposed facility for radiation oncology at 30 per cent as stated at table 1 of our annex 5 of the proposed enterprise agreement.

PN1226

Could you then please turn to page 10?‑‑‑Yes.

PN1227

You'll see that’s an email from Mr Linton of 19 February to me and it’s copied to a whole host of other people. Okay? Perhaps you were included – perhaps not. It’s headed Re‑sought After Documents. Have you seen this email before?‑‑‑I haven't, but ‑ ‑ ‑

PN1228

If you go to page 13, please, you'll see a table. Have you seen that table before?‑‑‑Look, I'm going to have to say that I haven't.

PN1229

Very well. If you have a look at point 3, you'll accept from me, won’t you, that this table provided the Territory’s answers to the documents that I was seeking? You don’t cavil with that, do you?‑‑‑I don’t cavil with it.

PN1230

It lines up – if you look at the column request, you'll see it’s numbered. If you turn the page up to point 31, the left‑hand side, the first column?‑‑‑Yes.

PN1231

Do you see that?‑‑‑Yes.

PN1232

Now go back to page 13 and you'll see the number 3 and that, you'll accept, is the answer to paragraph 3 of my request on page 2. Do you accept that?‑‑‑I accept it.

*** FRANK BOWDEN XXN MR WILSON

PN1233

You just recall that I asked for all documents that were produced by or obtained by the ACT government containing statements which it relied on in deciding to propose the increase to the facility fee. Right? You're with me so far?‑‑‑Yes.

PN1234

The facility fee increase was justified, you agreed with me earlier, on the basis of increased costs in infrastructure. You accept that, don’t you, and that was what was promoted to everybody?‑‑‑Yes.

PN1235

Will you then look at page 15 of the documents that you've got in front of you? Turn the page and you should see a document which about the first almost half is blank and then it’s got a heading Radiation Oncology Increase to Facility Fee From 20 per cent to 50 per cent?‑‑‑Yes.

PN1236

Would it surprise you to know, Professor Bowden, that this is the only document produced by the ACT in relation to my request at paragraph 3 of my notice calling for documents?‑‑‑It doesn't surprise me.

PN1237

Really? So this is the only document that the ACT relied upon in deciding to propose to increase the facility fee?‑‑‑This is the only document we have in production here for you. It does not reflect the discussions that were had.

PN1238

But if you have a look at this document, it doesn't make any reference, does it, to increased costs?‑‑‑The first sentence is inherent. The meaning is inherent.

PN1239

Where is the word “increased” because you'll remember, Professor Bowden, we’re talking about an increase in the facility fee justified by an increase in infrastructure costs. There’s no such statement, is there?‑‑‑There’s no statement in here.

PN1240

No. There’s certainly no monetary information going to any expenditure whatsoever, is there?‑‑‑Sorry, Mr Wilson, can you ‑ ‑ ‑

PN1241

There’s no statement going to any actual expenditure, is there, in this document?‑‑‑I'm not following your question.

PN1242

Let me make it plain?‑‑‑There’s no statement going to ‑ ‑ ‑

PN1243

There’s no information about any expenditure whatsoever in this document, is there, in relation to infrastructure costs at the radiation oncology?‑‑‑No.

*** FRANK BOWDEN XXN MR WILSON

PN1244

So simply the ACT is telling us that there’s no evidence to show any increase in costs whatsoever, is there, to justify the fee?‑‑‑I'm afraid I think it was because the – it was such a self-evident proposition that the costs – the number of linear accelerators is increased to four. The costs of increased staff, the cost of the increased material that’s required and the treatment, the number of staff now required, the conformational work that’s required has changed. There is absolutely no question that the expenditure of radiation oncology in the ACT has increased and, again, we celebrate that. We celebrate that. This is a marvellous thing that we’re now able to provide services to people, but to me it’s a self-evident fact.

PN1245

You have no information, do you, that enables you or me or those I represent or this Commission to show when you compare income generated by private practice billings on the part of radiation oncologists with money that flows into the ACT Health coffers through the HPG grants on the one hand to compare with expenditure over time out of the pocket of the ACT that shows any increased costs whatsoever, do you?‑‑‑We don't have them here. We don't have them for the purposes of this. However, we have all of that information available within the division of cancer. When this information is widely available, it’s tabled, it’s a matter of public record. It’s in the annual report. I mean, this information is easily obtainable, but I accept that for the purposes of this discussion and this negotiation, we have not gone to that detail.

PN1246

THE DEPUTY PRESIDENT: Mr Wilson, can I just put the question I put again several times today, where is this line of questioning going? I understand the point that you're - I'll reiterate the point I made previously on this issue with Mr Chin, but I get the point that, yes, a number of groups of employees are not satisfied with the outcome of the bargaining process in respect of some particular issues that are of particular importance to particular groups, but in the context of the scope order and the particular issues I have to have regard to, I am not quite sure where this is adding to the knowledge that I need or the evidence that I need to base the decision on.

PN1247

MR WILSON: Your Honour, I consider that my cross‑examination has directly done that for this reason: that questioning one of the issues you have to determine, as we all know, is whether making the order will promote the fair and efficient conduct of bargaining. This witness has given evidence in answer to my question that he considers the bargaining has been in good faith and fair and efficient to date and that is an issue that he relies on in resisting – or the ACT relies on through his statement – my application.

PN1248

I am here demonstrating that the evidence is contrary to the very thing that Professor Bowden puts in issue in the Territory’s case or the Territory puts in its case about having negotiated in good faith.

*** FRANK BOWDEN XXN MR WILSON

PN1249

THE DEPUTY PRESIDENT: In essence, the issue about bargaining in good faith, I presume this document – and it’s not dated from the version that I can see – relates to the bargaining process that led to the agreement that wasn't approved by the Commission. So there have subsequently been some further conversations or negotiations around that agreement and to the extent that the issue has or hasn't been traversed in those conversations, the bargaining process provides the opportunity for dealing with those sorts of questions.

PN1250

MR WILSON: Look, I can only say what I’ve said, this is an issue as to whether, with my clients hived off, that the bargaining process is going to be fair and efficient. It hasn't been so far as my clients are concerned. That will be my submission. I think this evidence goes to it. At any rate, I’ve basically come to the end of that line of cross‑examination.

PN1251

THE DEPUTY PRESIDENT: All right, thank you.

PN1252

MR WILSON: Can I just ask you – I realise it’s late, your Honour, and I will be as quick as I can, although I haven't been relatively long.

PN1253

You've read Dr Elsaleh’s statement thorough, have you, Professor Bowden?‑‑‑I have read it.

PN1254

I think you say in your statement at – if you go to paragraph 112 – there’s no doubt that the sub-fund is unique?‑‑‑That's correct.

PN1255

In the context of the application I seek, all other medical practitioners participate in a general fund, don’t they?‑‑‑That is correct.

PN1256

For their training and research, et cetera. Is that right?‑‑‑That's correct.

PN1257

That's how they operate, isn't it, in terms of accessing funds for training, education, research, et cetera. Yes?‑‑‑It’s one way that they do.

PN1258

A significant way?‑‑‑Well, it’s an important way. I mean, the $16,000 that the ACT Health gives for medical education and training is administered through these funds. Medical practitioners get good leave and get good opportunities to do that.

*** FRANK BOWDEN XXN MR WILSON

PN1259

Sure?‑‑‑But it’s one part. It’s one part of what people do. To suggest that the sub-fund is such an important part of other people’s practice just doesn't make sense to me.

PN1260

So you're saying the general fund is not an important part of other medical ‑ ‑ ‑?‑‑‑It’s a small but important part.

PN1261

A small part?‑‑‑Small part, but important part.

PN1262

But you'd agree with me, wouldn't you, that for radiation oncologists, their fund is a fundamental part of their practice?‑‑‑Because the fund takes their earnings to a level which is separate from others.

PN1263

Yes?‑‑‑That is correct.

PN1264

Yes?‑‑‑But it’s outside of the enterprise agreement in the sense that it’s part of an SEA. The facility fees within that – the facility which would be put into the enterprise agreement would form part of that, but as we know that has to be negotiated within the SEA because of the current agreement – excuse me because of the current SEA.

PN1265

Nonetheless, those I represent are unique in their organisation inasmuch as they’ve got their own fund, aren’t they?‑‑‑For a fund, indeed.

PN1266

Yes?‑‑‑But just for the fund.

PN1267

Yes. You accept that after their bonuses and other remuneration entitlements are accounted for out of the fund in accordance with an SEA ‑ ‑ ‑?‑‑‑Yes.

PN1268

The balance of the fund is exclusively used for the enhancement of their workplace?‑‑‑That's what’s presented.

PN1269

Exclusively. And they're in a complete point of distinction in that regard from all other medical practitioners employed by the ACT, aren’t they?‑‑‑But the same happens with the other fund.

*** FRANK BOWDEN XXN MR WILSON

PN1270

No, it doesn't. I don’t mean to argue with you. Let me put this to you: the other fund is not for the exclusive use of any particular department or, as I’ve heard here, craft group, is it? They have to compete with each other for access to the funds in reality, don’t they?‑‑‑There is a process that allows access to it for a broader group of people.

PN1271

Of course and there’s a limited fund, amount of money in there, and they have to compete with each other, don’t they?‑‑‑They do.

PN1272

Radiation oncologists do not have to do that, do they?‑‑‑Well, I don't know whether they compete with each other for the funds. The funds must be limited in some way. I mean, I know they're capped. I mean, I know there’s a certain amount so there must be some competition amongst them for it.

PN1273

You accept, don’t you, Dr Bowden, that radiation oncologists are limited as to where they work at the Canberra Hospital? Correct?‑‑‑They can only treat – they can only provide treatment at the hospital.

PN1274

Yes?‑‑‑They're not limited to working at the hospital. They all have the opportunity to work – to members working in New South Wales as part of the ‑ ‑ ‑

PN1275

I see, but not in the ACT?‑‑‑They could work anywhere. You could set up rooms anywhere in the town.

PN1276

Yes?‑‑‑There’s nothing to stop you, but you can’t treat people because currently the only facility exists at the hospital.

PN1277

Correct?‑‑‑So I don’t quite understand the statement that they can’t work anywhere else, which was one of my issues when I read the statement.

PN1278

You accept the Commonwealth dictates the geographic location of linear accelerators, don’t you?‑‑‑I accept that.

PN1279

They do that by MBS billings in HPG funding. Is that right?‑‑‑That's one of them they can use, yes.

PN1280

As a result of that, they're geographically restricted in terms of treatment to the Canberra Hospital?‑‑‑Currently in terms of treatment.

PN1281

Yes?‑‑‑Consulting is a different matter.

*** FRANK BOWDEN XXN MR WILSON

PN1282

Very well?‑‑‑Most doctors consult. Some doctors have machines as well which they can use to deliver treatment. The ACT Health would also not be resistant to the idea, if it was promoted, for a private facility to come to Canberra.

PN1283

Very well. There’s nothing on the cards in that regard?‑‑‑I'm unaware of anything.

PN1284

That's all the questions I have.

PN1285

THE DEPUTY PRESIDENT: Ms Robinson.

PN1286

MS ROBINSON: One very quick question.

RE-EXAMINATION BY MS ROBINSON [5.29 PM]

PN1287

MS ROBINSON: Professor Bowden, unfortunately, I'll need to take you right back to the beginning of this afternoon’s cross‑examination. There was a discussion about the separate bargaining stream, I think the word was used, for the AMA and ASMOF. An observation, I think, was made that you're already bargaining in two separate streams. Could you perhaps just make some comments on the agenda for those two different streams of the AMA and ASMOF?‑‑‑They're identical.

PN1288

So the same topics were traversed, effectively, twice back to back?‑‑‑Yes.

PN1289

Would that change if you have to negotiate two separate agreements, one for the juniors and one for the seniors?‑‑‑We’d only do the juniors and the seniors. We wouldn't go to the other.

PN1290

Thank you. No further questions, your Honour.

PN1291

THE DEPUTY PRESIDENT: Thank you very much. You are excused, Professor Bowden. Thank you.

<THE WITNESS WITHDREW [5.30 PM]

PN1292

THE DEPUTY PRESIDENT: Shall we take a short five-minute break just to freshen up and deal with the issue of where we go to next.

PN1293

MR CHIN: Yes, your Honour.

PN1294

THE DEPUTY PRESIDENT: And so you've got the chance to stretch your legs.

SHORT ADJOURNMENT [5.30 PM]

RESUMED [5.44 PM]

PN1295

THE DEPUTY PRESIDENT: Mr Chin.

PN1296

MR CHIN: Your Honour, the parties have had some discussion with the great assistance of your Honour’s associate. I understand there’s some availability next week on Wednesday for submissions and, as I understand it, all parties at the bar table would be available either by way of a video conference facility from here, as I understand your Honour’s sitting in Melbourne, or to attend in person on the Wednesday.

PN1297

THE DEPUTY PRESIDENT: All right. I understand there’s also been an issued raised in terms of availability for transcript.

PN1298

MR CHIN: Yes.

PN1299

THE DEPUTY PRESIDENT: We'll put in a request that the transcript be prepared urgently, but I can’t give you a precise time frame as to when that might be. I’d be hopeful that it would be no later than Monday, but that’s a matter that’s beyond the Commission’s control. I suppose if circumstances are such that the transcript is not available and is later than that, I'm open to having a plan B in terms of a date, if that works for people.

PN1300

THE ASSOCIATE: We could probably find out as soon as we’re adjourned in terms of timing for the transcript.

PN1301

THE DEPUTY PRESIDENT: Okay. I'm just very mindful of the fact that we've got everyone in the room and we have a fall‑back date just so we don’t lose that and I don't have to get people on the phone to try and work that.

PN1302

MR WILSON: What’s the next available date, your Honour?

PN1303

THE DEPUTY PRESIDENT: I'm in Sydney for much of the week before Easter, but the Monday I could do here in Canberra which is 30 March, from memory. Prior to that, I could do Monday the 23rd.

PN1304

MR CHIN: I'm not available until the 30th.

PN1305

THE DEPUTY PRESIDENT: Okay.

PN1306

MR CHIN: I could do the 30th. So, of course, Sydney would suit me if you were in Sydney for the rest of the week.

PN1307

THE DEPUTY PRESIDENT: So the 30th would be perhaps plan B if next Wednesday ‑ ‑ ‑

PN1308

MR WILSON: That's the Monday before Easter, is it, your Honour?

PN1309

THE DEPUTY PRESIDENT: That's right. Does that work for you, Mr Wilson? Let’s keep that one up our sleeves just in case next Wednesday doesn't work out.

PN1310

MR WILSON: So if the transcript is held up or something.

PN1311

THE DEPUTY PRESIDENT: Yes. Look, we'll follow up tomorrow and try and get some indication as to the timing of the transcript.

PN1312

MR WILSON: Sure.

PN1313

THE DEPUTY PRESIDENT: I'm really mindful people will want - we've obviously covered a lot of territory today and there’s a lot of material. So I'm very mindful of the fact that people would want to have a look at the transcript in terms of drafting their closing submissions.

PN1314

MR CHIN: Your Honour, I'm sorry to interrupt. I’ve just had a brief discussion with Ms Robinson, but given those concerns, we weren't aware that the 30th was an option, but it might be preferable just to set it down for the 30th.

PN1315

THE DEPUTY PRESIDENT: Mr Wilson, how does that suit you?

PN1316

MR WILSON: Again, it’s a date I don't know, but set it down and I'll communicate with your associate if ‑ ‑ ‑

PN1317

THE DEPUTY PRESIDENT: All right. We'll work on the basis of the 30th.

PN1318

MR CHIN: In Canberra, your Honour?

PN1319

THE DEPUTY PRESIDENT: Do people have any views or preferences around Canberra or Sydney?

PN1320

MS ROBINSON: Certainly the respondent’s preference would be for the hearing to be in Canberra.

PN1321

THE DEPUTY PRESIDENT: I can understand that.

PN1322

MS ROBINSON: It’s not a significant issue.

PN1323

MR WILSON: That's my preference also.

PN1324

THE DEPUTY PRESIDENT: Yes, it will be Canberra.

PN1325

MR CHIN: I'm outvoted, your Honour.

PN1326

THE DEPUTY PRESIDENT: It will be for once that Sydney gets outvoted by Canberra. All right. We'll get a notice of listing out, subject to just confirmation as to your availability, Mr Wilson.

PN1327

MR WILSON: I'll send Ms Mayer a note when I get back.

PN1328

THE DEPUTY PRESIDENT: Thank you. Look, can I thank everyone today? I know it’s been a long day. I thank you for staying the course, so to speak. I look forward to seeing you on the 30th.

ADJOURNED UNTIL MONDAY, 30 MARCH 2015 [5.49 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

HANY ELSALEH, SWORN.................................................................................. PN55

EXAMINATION-IN-CHIEF BY MR WILSON................................................. PN55

EXHIBIT #W1 WITNESS STATEMENT OF HANY ELSALEH DATED 27/02/2015 PN61

EXHIBIT #W2 SUPPLEMENTARY WITNESS STATEMENT OF HANY ELSALEH DATED 10/03/2015................................................................................................................. PN62

CROSS-EXAMINATION BY MS ROBINSON.................................................. PN66

EXHIBIT #R1 DOCUMENT............................................................................... PN116

CROSS-EXAMINATION BY MR CHIN......................................................... PN190

RE-EXAMINATION BY MR WILSON............................................................ PN252

THE WITNESS WITHDREW............................................................................ PN258

EXHIBIT #C1 WITNESS STATEMENT OF JENNIFER WYBORN DATED 20/02/2015 PN267

EXHIBIT #C2 WITNESS STATEMENT OF JENNIFER WYBORN DATED 06/03/2015 PN269

EXHIBIT #C3 WITNESS STATEMENT OF DR BURT DATED 20/02/2015 PN271

EXHIBIT #C4 WITNESS STATEMENT OF DR ROBERTSON DATED 20/02/2015 PN273

EXHIBIT #C5 SUPPLEMENTARY WITNESS STATEMENT OF DR ROBERTSON DATED 06/03/2015............................................................................................................... PN275

BRONWYN JANE AVARD, SWORN............................................................... PN278

EXAMINATION-IN-CHIEF BY MR CHIN..................................................... PN278

EXHIBIT #C6 WITNESS STATEMENT OF BRONWYN AVARD DATED 20/02/2015 PN286

EXHIBIT #C7 SUPPLEMENTARY WITNESS STATEMENT OF BRONWYN AVARD DATED 09/03/2015............................................................................................................... PN292

CROSS-EXAMINATION BY MS ROBINSON................................................ PN311

CROSS-EXAMINATION BY MR WILSON.................................................... PN436

RE-EXAMINATION BY MR CHIN.................................................................. PN488

THE WITNESS WITHDREW............................................................................ PN530

VAUGHN MARK OERDER, AFFIRMED....................................................... PN533

EXAMINATION-IN-CHIEF BY MR CHIN..................................................... PN533

EXHIBIT #C8 STATEMENT OF VAUGHN OERDER DATED 21/02/2015 WITH EIGHT ANNEXURES........................................................................................................ PN538

EXHIBIT #C9 SUPPLEMENTARY STATEMENT OF VAUGHN OERDER DATED 09/03/2013 WITH TWO ANNEXURES................................................................................. PN543

CROSS-EXAMINATION BY MS ROBINSON................................................ PN545

CROSS-EXAMINATION BY MR WILSON.................................................... PN579

RE-EXAMINATION BY MR CHIN.................................................................. PN595

THE WITNESS WITHDREW............................................................................ PN626

HEMAN TSE, AFFIRMED................................................................................. PN627

EXAMINATION-IN-CHIEF BY MR CHIN..................................................... PN627

EXHIBIT #C10 STATEMENT OF HEMAN TSE DATED 20/02/2015......... PN633

CROSS-EXAMINATION BY MS ROBINSON................................................ PN635

RE-EXAMINATION BY MR CHIN.................................................................. PN681

THE WITNESS WITHDREW............................................................................ PN686

LAVINIA ANNE HALLAM, AFFIRMED........................................................ PN696

EXAMINATION-IN-CHIEF............................................................................... PN696

EXHIBIT #ASMOF1 WITNESS STATEMENT OF LAVINIA ANNE HALLAM DATED 24/02/2015............................................................................................................... PN702

CROSS-EXAMINATION BY MR WILSON.................................................... PN710

CROSS-EXAMINATION BY MR CHIN.......................................................... PN820

THE WITNESS WITHDREW............................................................................ PN906

EXHIBIT #R2 STATEMENT OF DR BRONWYN AVARD......................... PN909

FRANK BOWDEN, AFFIRMED....................................................................... PN911

EXAMINATION-IN-CHIEF BY MS ROBINSON........................................... PN911

EXHIBIT #R3 WITNESS STATEMENT AND ANNEXURES A TO H OF PROFESSOR BOWDEN DATED 05/03/2015............................................................................ PN918

CROSS-EXAMINATION BY MR CHIN.......................................................... PN932

CROSS-EXAMINATION BY MR WILSON.................................................. PN1177

RE-EXAMINATION BY MS ROBINSON...................................................... PN1286

THE WITNESS WITHDREW.......................................................................... PN1291

Fair Work Commission Transcripts

B2014/1133, Transcript of Proceedings [2015] FWCTrans 142 (23 March 2015)