B2014/1133, Transcript of Proceedings [2015] FWCTrans 239 (22 April 2015)

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Australian Capital Territory; Australian Capital Territory; Australian Salaried Medical Officers Federation; Australian Medical Association (Act) Limited; Mr Will Matthieson

PN1

THE DEPUTY PRESIDENT: Thank you and good morning everybody. Nice to see you again. Mr Wilson, I understand you’re going to lead us off this morning.

PN2

MR WILSON: I represent myself. That’s correct, your Honour.

PN3

THE DEPUTY PRESIDENT: Mr Chin?

PN4

MR CHIN: Deputy President, before we commence the submissions there’s one matter that I need to bring to your Honour’s attention to. May I update the Commission in terms of the number of the appointments that either Ms Wyborn as a bargaining agent. Since the last occasion, Ms Wyborn has received 10 additional appointments from specialists at the Calvary Hospital. That brings the total to 48. I have a copy of the appointments and a list of the additional specialists to hand, your Honour.

PN5

I did say at the commencement of the hearing previously with some additional appointments that morning. I don’t think those documents were tendered.

PN6

THE DEPUTY PRESIDENT: I don’t they were tendered.

PN7

MR CHIN: No. Might it be convenient to do so just for completeness? I have a copy of those appointments that I handed to your Honour on the last occasion for your Honour, if that’s convenient.

PN8

THE DEPUTY PRESIDENT: Thank you. And I’ll mark those. I’m just checking where we’re up to in respect of those exhibits. C11, which will perhaps logically be the list of additional instruments of appointment from the last hearing.

PN9

MR CHIN: Yes, they were seven.

EXHIBIT #C11 LIST OF SEVEN ADDITIONAL INSTRUMENTS OF APPOINTMENT

PN10

THE DEPUTY PRESIDENT: And C12 will be for the 10 that you have just given me this morning.

EXHIBIT #C12 LIST OF 10 ADDITIONAL INSTRUMENTS OF APPOINTMENTS

PN11

MR CHIN: Thank you, your Honour. I think there’s an evidentiary matter that my learned friend needs to address as well.

PN12

THE DEPUTY PRESIDENT: Certainly. Ms Robinson?

PN13

MS ROBINSON: Yes, your Honour. An additional housekeeping matter. The statement of Mr Russell Noud.

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MS ROBINSON: Dated 4 March 2015. Due to an oversight that was not tendered at the last hearing. I seek leave to tender it.

PN16

THE DEPUTY PRESIDENT: Yes, the intention was to mark it into evidence and it never formally occurred. And that would make it Exhibit R4.

EXHIBIT #R4 STATEMENT OF MR RUSSELL NOUD DATED 04/03/2015

PN17

THE DEPUTY PRESIDENT: Can I just perhaps foreshadow, too, that I wouldn’t mind an opportunity at the conclusion of the hearing this morning just – I understand that there's notice been given of protected industrial action in the matter - just having a brief conference with the parties to discuss what the latest is? Mr Wilson?

PN18

MR WILSON: Your Honour, that’s a segue to a submission that I would make about the order of proceedings today. My submission is that the submissions in relation to my application be dealt with first and then, as it were, I might slide off into the morning, hopefully. Of course, to a large degree Ms Wyborn’s application is a contest between her and the Territory. And also, of course, I don’t need to be involved in the matter that your Honour has just raised.

PN19

THE DEPUTY PRESIDENT: Sure. The only observation I’d make and that’s a matter for you, Mr Wilson, in the sense that after making submissions - heading off – if I use that sort of - in essence foregoes the right of any submissions in reply.

PN20

MR WILSON: Well, my submission was that, your Honour, that my friends make their submissions in contravention of mine and then I reply to them at that stage and then Ms Wyborn’s submissions in her case are run.

PN21

THE DEPUTY PRESIDENT: How do the other – Ms Robinson, how do you feel about that? Mr Chin?

PN22

MR CHIN: We’d oppose it, your Honour.

PN23

THE DEPUTY PRESIDENT: Okay.

PN24

MS ROBINSON: Yes, we would also oppose it. The vast majority of The Territory’s submissions relate equally to Mr Wilson and Ms Wyborn and it would not be a particularly effective use of time for me to repeat them twice.

PN25

THE DEPUTY PRESIDENT: Mr Wilson, I might – I’m going to stick to the sort of more traditional approach in the sense of yourself, Mr Chin and Ms Robinson, and then my all means if you wish to, you know, sort of come back and then that will give you the opportunity to head off if you so choose but I think otherwise it, in essence, puts Ms Robinson, I think, at a potential disadvantage of having to – with Mr Chin and so on, so we’ll just proceed on the normal process.

PN26

MR CHIN: As the Commission pleases.

PN27

THE DEPUTY PRESIDENT: And in terms of the conference I mean that’s your call. I’m entirely open to that.

PN28

MR CHIN: Thank you.

PN29

THE DEPUTY PRESIDENT: Yes. Okay, so over to you, Mr Wilson.

PN30

MR WILSON: Thank you, your Honour. Your Honour, from page 477 of the bundle that I have tendered in my case are extracts from the shorter Oxford English Dictionary. I put them there because I contend that the words that the Commission has to address its attention to in section 238(4) are essentially plain English words and they mean what they say and say what they mean.

PN31

There may be a gloss of commentary in the authority about them, but nonetheless they’re plain English words. In particular, the words “efficiency” and “fairness” are at the centre of your deliberations in my application and Ms Wyborn’s. If you go to page 477, “efficient” is defined as making, causing to be that makes a thing to be what it is productive of effects operative.

PN32

So, of course, the question is will the scope that I contend for cause something to be – make things, a thing to be done and what is or is it going to be productive of effects. “Fairness” is found at page 478 and the shorter OED defines that as

PN33

In a fair manner or a degree beautifully, civilly, becomingly, equitably, impartially

PN34

and as you probably know, your Honour, this dictionary was originally put together by what we’d call crowd-sourcing in our times. And what the crowd did that was engaged by the philologists that put the dictionary together which defined words as they had been used in literature and the like and at the end of each extract or most extracts they provide a quote. Interestingly, the one for “fair” is

PN35

Fairing the foul with Art’s false borrowed face.

PN36

Now, it’s my essential well, hope out of this my application, your Honour, that you will fair what’s been fouled, be it by the art of my false borrowed face or otherwise.

PN37

At the heart of this matter are three things. The first thing is the Radiation Oncology Sub-fund. The second thing, and this goes to fairness and, indeed, efficiency is the ability of the majority of employees, be it through jealously, indifference, ignorance, or self-interest or in the case of the main default bargaining representative ASMOF, a contrary what might be called philosophical position, to adversely affect the interests of those I represent in relation to the proposal that there be an enterprise agreement.

PN38

The third thing is the collateral ability of the employer, The Territory and Calvary, the public hospital, to rely upon and use that jealously, indifference, ignorance or self-interest of the majority to its advantage to disadvantage a discrete group of employees. At the outset I ask you to remember, your Honour, that it was the radiation oncologists alone, amongst all of those medical practitioners employed by The Territory and Calvary whose private billing incomes are subject of the imposition of a facility fee who had their facility increased.

PN39

Now, turning to the first thing that’s at the heart of this matter. Doctor Elsa Leahy’s statement tells the story of the formation and development of the sub-fund and its centrality to him taking up employment with The Territory in his position in the working lives of those that I represent and not to make too fine a point of it, your Honour, in respect of the cancer sufferers that those I represent and care for. The Territory seeks to trivialise it through Professor Bowden by saying it’s got nothing to do with employment organisation or operation.

PN40

He says it’s just a house. Well, actually, his actual word is a “vehicle”. He says that at paragraph 100 of his statement. Page 67 of The Territory’s submission. He says, it’s just a vehicle or a house for income. But as Darryl Kerrigan would say, “It not a house. It’s a home.” Now, we all laughed of course at Dennis Denuto’s – “it’s just the vibe of the thing” – submission, however, part of Rob Sitch's genius, your Honour, of course, was by the time he made that submission we’re already thinking that that vibe re justice dictated that the Kerrigan’s home be acknowledged for what it was and preserved and not destroyed by the forces of majority indifference, ignorance or self-interest.

PN41

The radiation, oncology sub-fund on Professor Bowden’s submission is unique. He says that on two occasions at paragraph 99 and 112 of his statement. But it’s more than unique in the narrow sense of it being merely a house for the private billing income, the radiation oncologist to wash into and then wash out of into their pockets. The Radiation Oncology Sub-fund is a home. It’s a home that has, since 2006, provided for and enhanced cancer treatment access to such treatment, clinical trials, cancer research, radiation oncology, staff skills et cetera. That’s all described, uncontested, in Dr Elsa Leah’s statement.

PN42

In short, it’s provided for a marked improvement in treatment and the lives of ACT cancer sufferers, compared with what would have been the case had things just continued as they were since 2006. That cannot be and is not controverted. Now, increasing the facility fee will lead to a reduction in all of that and The Territory admits that at paragraph 101 of its submission. That’s found at page 22 of the documents.

PN43

Now the Territory says that that home, the Radiation Oncology Sub-fund has nothing to do with the terms and conditions of employment that apply to radiation oncologists or to the industrial framework and they say that at paragraph 99 of their submission. But, your Honour, I submit that that’s a very narrow view of employment. It has its parallel in the Full Federal Court’s decision in Ramsey Butchering Services v Black Adder, in which of course, the High Court overturned on appeal.

PN44

And as Justice Kirby observed in the High Court’s decision there’s something called the satisfaction of employment, a feeling of self-worth that it can generate and Justices Callinan and Hayden made a similar point. And Doctor Elsa Leahy’s statement makes it very clear how this formation of the Radiation Oncology Sub-fund was to him, in agreeing to take up employment, and how central the Radiation Oncology sub-fund is in the employment lives of those I represent. It’s intertwined with their employment. It’s a central part of their employment. You cannot separate, as The Territory would have it, and indeed Ms Wyborn would have it, the existence of the fund and what it does from the employment of those I represent.

PN45

Now, turning to the second point, and that is the ability of the majority of the employees, be it through jealousy, indifference, ignorance, or self-interest, or in the case of as more of a contrary philosophical position - that’s my words – to adversely affect that home. And I may as well deal with the collateral ability of the employer to rely on that jealousy, indifference, ignorance or self-interest or the majority to disadvantage a discrete group of employees. And, again, I remind you that it was radiation oncologist who alone, were subject to increase in their facility fee.

PN46

Turning specifically to section 238(4), your Honour, we have all agreed that there are simply three paragraphs of that subsection at issue in my application and I believe Ms Wyborn’s. The first is paragraph (b) of subsection (4) of section 238 and that is that the Fair Work Commission may make a scope order if it’s satisfied that making the order will promote fair and efficient conduct of bargain.

PN47

Now, I want to make a point at the outset of my submission on this paragraph. In contravention of the Territory’s proposition, I anticipate, because I have read in their submission, that this is simply a continuation of the process that happened several – started several years ago and that everything was hunky dory and then we stumbled upon a technicality and upset that at the approval stage of the agreement.

PN48

That submission, in my submission, is wrong and that’s because – I won’t, perhaps unless if we take you through each section of the Act, your Honour, but if you start at section 172 and then you track to – section 172 introduces the concept of an enterprise agreement and then section 173 you will find a word – a phrase called “proposed enterprise agreement”. And that phrase is found if you track through from section 173(1), (2) and (4), that’s the phrase, and you go through to section 174(1), it’s still the phrase. And then to 176(1) and 181 and 181(1), and 182(1), the phrase is always “proposed enterprise agreement”. And then we come to a profound fork in the road or, sorry, it’s not even a fork, it’s a gate.

PN49

And that is, that section 183 of the Act refers to the making and section 185 to the making of an enterprise agreement and from then, that is from section 103 on, right up to the approval sections of the Act we no longer have the phrase “proposed enterprise agreement”, it is always the agreement. And that is because once an enterprise agreement is made it is an enterprise agreement. It’s simply – it’s no longer proposed. So once it’s made, it's an agreement. The question is then whether it’s approved and that stands and falls by all the tests that the Commission has to apply at that stage.

PN50

But once it’s made it’s an enterprise agreement. It just doesn’t take effect because it’s not approved. It doesn’t change its nature by the fact that it hasn’t been approved and so the point I am making is that the proposed enterprise agreement that the Territory proposed following the Fair Work Commission’s decision of the 3 December of last year is not the same process and it’s not the same proposed enterprise agreement that was proposed to be made on the 18 September 2014.

PN51

The Act doesn’t say that an enterprise agreement is not an enterprise agreement but remains in a proposed enterprise agreement that’s not approved by the Fair Work Commission. On the contrary once it’s made, as I’ve said, that thing becomes an enterprise agreement and is no longer a proposed enterprise agreement. Now, once that’s understood, in my submission, it becomes clear that the conduct of bargaining for this proposed enterprise agreement has not been fair and it hasn’t been efficient. Even if it was for the enterprise agreement that was made on the 13 October 2014 – if that’s indeed when it was made, according to the statutory declaration of Mr Linton - it was filed in the application for its approval.

PN52

Now, you recall that I illustrated some words in the definition of fair in the shorter OED’s definition and made mention of the quote to illustrate the word fairing the foul with Art’s false borrowed face. Bargaining hasn’t been conducted equitably or becomingly as far as the radiation oncologists have been concerned because – why? It goes to the third point I made in my introduction. The Territory has relied on the majority, jealousy, indifference, ignorance or self-interest of the majority to impose or maintain the imposition of the increasing the facility to feed what they did for the agreement that was made in October last year, that they relied on that jealousy, indifference, ignorance, self-interest of the majority to impose that increase on the radiation oncologists alone.

PN53

And in doing so, it’s continued to justify the position on a mere assertion. If you go to – you don’t have to now, your Honour, if you look at it later – to page 356 of the documents that I tendered in this matter you will see the justification that was used by The Territory for the increase in the facility fee, and that was increased costs in providing infrastructure. Now, just excuse me – there has, as the evidence has fallen in this matter, been no evidence at any time submitted to justify that bald assertion.

PN54

And of course, the justification is disingenuous for this reason that the implication, even if it’s true as Professor Bowden asserts that it’s a self-evident proposition in statements like that, of course, your Honour should be treated with the scepticism that they inevitably are, that there are increased costs of providing infrastructure. The implication is a cost the Territory ignore to run the Radiation Oncology Department that it did in 2006, and there’s no evidence for that.

PN55

And, in fact, Dr Elsa Leahy’s evidence illustrates that the complexity with which the Radiation Oncology Department is funded with private billings and also Commonwealth funding. So this Commission and none of the representatives at this table have any idea as to whether in fact the justification that’s relied upon by the Territory is really true. Now, Dr Hallam’s evidence was that in the previous bargaining ASMOF asked for evidence going to increased costs and the like and that’s found at paragraph 813 to 815 of her evidence in the Commission’s transcript and when that transcript was made nothing was forthcoming.

PN56

And the material that Dr Elsa Leahy put in evidence, going to, or including the Aurora Port that led the Territory to decide to move to a four-line act department in 2006 would indicate, in fact, that the Territory has saved money, rather than increased costs since 2006. Now, as for efficiency and going back to the words that illustrate that word, bargaining for the current proposed agreement has not caused anything to be and it’s not being productive of effects.

PN57

We say that bargaining will be fairer and more efficient if the radiation oncologists are not part of the scope for the present proposed agreement. That is that the scope of the currently proposed enterprise agreement be all medical practitioners other than radiation oncologists. Why? It will be fairer, that is, equitable and becoming because the interests of the radiation oncologists will not be able to be or won’t be capable of being ignored by reason of the jealousy, indifference, ignorance or self-interest of the other employee parties and their representatives and the employer will only be able to rely on the attitudes of those in imposing its agenda on those I represent.

PN58

And it will be more efficient because, one – all of the other employees and their representatives have done their bargaining, that is, not the ones that I represent and not the ones that Ms Wyborn represents, but the rest of them. They have done their bargaining. We haven’t heard a squib from them in relation to the currently proposed enterprise agreement. We have to assume that they’re all happy.

PN59

Two, going to efficiency for my scope that leaves the Territory dealing with Ms Wyborn and those she represents in reality and she’s, as far as I can see, already put everything that she wants to say to the Territory already. There’s a raft of – page after page, logs of claims from Ms Wyborn and we haven’t heard anything else in these applications about anything else that has to be dealt with. So for the scope that I contend for it doesn’t have the unfairness that I have illustrated. It concerns those that I represent and in reality the only parties left to thrash it out will be the Territory and Ms Wyborn and as far as I can see Ms Wyborn, with respect, has said everything that she wants to say or just about everything. So it hasn’t got long to go.

PN60

And thirdly, to state the obvious, there will be one less controverter and that is the group that I represent whose interests conflict with those of Ms Wyborn’s represent and as long as the default bargaining representative for – one has to assume the majority of the rest of the employees. That takes the controverter, that is, those that I represent out of the equation, so it will be more efficient for those three reasons.

PN61

Now, paragraph (c) is –

PN62

“The Fair Work Commission may make the scope order if the Fair Work Commission is satisfied that the group of employees who will be covered by the agreement proposed be specified in the scope order was fairly chosen.”

PN63

We say that all of the other medical practitioners employed by the ACT are organisationally operationally and geographically distinct from those I represent. Yes, in terms of organisational distinction, if you draw an organisational chart you will see that radiologists – radiation oncologists – are located on it where Dr Bowden says they are. But that’s superficial and you can reduce that argument to the absurd and by simply saying, if that’s the case, everybody – every public servant in the ACT can be linked by an organisational chart and we should just have one enterprise agreement.

PN64

The employment of those I represent is uniquely organised because they have a trust fund that they operate whereby they determine both how they’re going to be equity remunerated in an appalling sense that Dr Elsa Leahy describes and as I have tried to emphasise on the Commission in the important matter that what their workplace is going to look, feel and be like as a result of all of the funding that the surplus of the trust fund provides for and what the care of cancer patients, that is, just part of their employment is going to look like and they operate distinctly in, for the same reasons.

PN65

Now they’re even - although I can’t of course make a stronger submission in that regard - they’re even geographically distinct in the manner from all other senior medical practitioners and the manner that’s described at Dr Elsa Leahy’s statement at paragraph 16 and his further statement at paragraph 112 - that is, unlike all other senior medical practitioners they are limited to where they can practise to the Canberra Hospital. All other senior medical practitioners, we say the evidence demonstrates, have the capacity by reason of their particular speciality in the place where services are offered or available in that speciality to work outside of the particular location.

PN66

Now, finally, there’s paragraph (d) where the Fair Work Commission may make the scope order if the Fair Work Commission is satisfied it’s reasonable in all the circumstances to make the order. And Ms Wyborn seeks to dissuade you, I anticipate, or at least does in her submission in her statement and the evidence is lodged from hiving off those I represent from any of the scope, either the Territory’s existing scope or her proposed scope for, essentially two reasons.

PN67

First, she says in her submission that it would be administratively difficult and cumbersome to create an agreement just for radiation oncologists but she doesn’t say why. And, in fact, my submission would be it would be “administratively easy”. The Territory would simply be dealing with one bargaining representative and the discrete issues that I have identified in relation to those I represent.

PN68

The other reason why Ms Wyborn poses my – those I represent for being hived off from either scope or for the other two possible scopes. It is that she says that those I represent are a “marginal group”. And if my application was granted it would, “advance the interests of a marginal group who are on terms and conditions of employment under an SEA arrangement which are more beneficial than many other SMP’s employed by ACT Health.” are jealousy. Well, I say two things about that.

PN69

First, your Honour, sometimes it’s fair to protect marginal groups, particularly when their employment circumstances are such that they are particularly and uniquely benefit those that they care for and I just have one authority that goes to that point, if I might just hand it up? It’s Rowe C’s decision in National Union of Workers v Linfox Australia Proprietary Limited. The reference is B2013/1556, a decision of Rowe C of Melbourne 16 December 2013.

PN70

Now, if you go paragraphs 59 or go to paragraph 59 of Rowe C’s decision, your Honour. He addresses this issue of what I would think is better described as a minority group and that’s the word Rowe C has used, rather than marginal group. He makes the point –

PN71

“It’s commonplace that a particular minority group of employees within the scope of a proposed agreement may feel they’re in danger being swamped by the interests of the majority.

PN72

I have no doubt that to some extent this is how then you and its members feel in the circumstance of this case and this in part motivates their desire for a separate agreement as of course is the case here. However, the weight of this should be given in determining whether or not a scope order will prove the efficiency and fairness of the bargaining and whether or not it will be reasonable to grant the order will depend on the circumstances. The extent of the special interests and potential disadvantage. The impact of the interests of the other bargaining parties, the history and conduct in bargaining and the stage of the bargaining are all relevant matters which I have considered.”

PN73

Then, he goes on in paragraph 60 to say –

PN74

“In the circumstances of this case there are many warehouse employees at a number of sites who are a part of the national agreement.”

PN75

Bear in mind this is simply a warehouse case where it was one particular warehouse was sought to have their own separate scope. And then he finishes the last two sentences at paragraph 60 saying –

PN76

“There is no evidence before me that inappropriate discriminatory or unfair conditions are likely to be imposed on the workers at the Truganina warehouse. There is some disadvantage to interests of the other bargaining parties that scope orders be granted and this disadvantage is greater because of the late stage of bargaining.”

PN77

Now, I want to say several things about Rowe C’s observations which can simply be summarised. Our case is the opposite of this. We do have special interests. We are subject to the potential disadvantage of the majority. The impact on our interests is going to be significant. The history of bargaining we have just started and the evidence is they’re inappropriate. Discriminatory or unfair conditions are likely to be imposed on us by virtue of that majority, indifference, jealousy, ignorance or self-interest that I have described.

PN78

THE DEPUTY PRESIDENT: Can I just ask a question there?

PN79

MR WILSON: Yes.

PN80

THE DEPUTY PRESIDENT: Your comment there about the history of bargaining and having just started.

PN81

MR WILSON: Well – sorry.

PN82

THE DEPUTY PRESIDENT: I take the point in a sort of an immediate sort of sense but according to this history of agreements covering – you know – sort of medical practitioners employed by the Territory over a period of time. What say you about that history?

PN83

MR WILSON: I have to concede, your Honour, that the history tells us that every medical practitioner, be they a JMO, an SMP or a radiation oncologist have been lumped in with the one group.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR WILSON: As far as I can see, but it may differ, but in the ACT, as far as I’m aware, certainly for quite a long time. However, the circumstance – my submission has changed by virtue of what I have been submitting, that is the jealousy, indifference, ignorance, or self-interests of the majority of singling out one particular group for the imposition of a detrimental condition in this particular round of bargaining and the last one. Sorry, your Honour, to return to Ms Wyborn’s assertion that those I represent are a marginal group, as I said I have two things to say about that.

PN86

The second thing is well, let me return fire with some gentle cordial friendly fire. That submission about marginal group reminds me of Captain Corelli’s observation that German’s didn’t understand irony. If there’s anyone who’s a marginal group, it’s my submission is it’s those that Ms Wyborn represents. In fact, my submission is that in reality her constituents are not a group in any real sense. Rather they’re a disparate bunch of individuals who unlike those I represent don’t constitute anything like the majority in the very scope that they urge upon the Commission.

PN87

Indeed, there’s no evidence that I am aware of that the individuals in Ms Wyborn’s group even constitute a majority in their own so-called craft group. Compare that with mine seven of the eight radiation oncologists and the evidence in relation to Dr Sunderland is he didn’t want to be involved because he was about to retire. In fact – and my arithmetic is a little out because I have used the figures that were in place prior to the hearing on the last occasion - but of course, it will have increased but on those figures, in terms of the scope urged, those that Ms Wyborn represents constitute a tiny minority. It was immediately prior, as I recall, but of course it had gone up. It’s now 48 – but then it was 31 out of 299. That’s just over 10 percent. It would be a bit.

PN88

But even if one counts the additional 22 which are the recent additions to those that Ms Wyborn represent are counted, even if one counts the additional 22 signatures to Dr Avard’s petition and acknowledging we don’t know the circumstances of that, one assumes however that Dr Avard and the others Ms Wyborn represents energetically promoted their petition far and wide that resulted in 53, including those that are represented signing the petition out of 299, in other words 17.8 per cent. So the short point is that they’re – with respect a marginal group within the very scope that they urge on this Commission.

PN89

Essentially, your Honour, I think you have to say with respect that they’re Johnny-come-lately individual opportunists who have “johnny’d” in at every turn on the slipstream of every initiative of those that I represent because they have heard what those I represent have done and, “Oh, the radiation oncologists have successfully challenged the approval. Well, we’d better not miss out.” “Oh, the radiation oncologists have filed a scope application.” “What’s that?” “Oh, we’d better do that.”

PN90

And they’ve turned up here because they think they’re missing out on something and to engage in old school line by line log of claims bargaining and unlike those I represent they don’t have any particular definable organisation or operational feature despite Ms Wyborn’s best effort that characterised them as a group, let alone a marginal group that warrants consideration, let alone protection.

PN91

Again, there are I submit a small minority of desperate individuals, even within their contended for scope. And so they should, in my submission, just be left with the vast majority of the Territory’s define scope who all – minus those I represent of course – who, on all appearances, don’t seem to have a problem with bargaining together with their JMO colleagues. Unless you have anything further from me, your Honour, those are my submissions.

PN92

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

PN93

MR CHIN: Thank you, your Honour. Your Honour, may I begin by handing to your Honour some supplementary written submissions at the risk of burdening your Honour with paper, these submissions are an attempt to incorporate the oral evidence that was given at the hearing in addition to the written statements and to confine the submissions to the three matters at issue in respect of our application. And also we have a bundle of authorities. There’s only one or two cases I’d like to take your Honour to but for your Honour’s assistance.

PN94

THE DEPUTY PRESIDENT: In terms of the submission?

PN95

MR CHIN: Yes.

PN96

THE DEPUTY PRESIDENT: Do you have that tendered into its evidence or not?

PN97

MR CHIN: No. There’s no need to tender the submission, your Honour. Yes, your Honour. If your Honour pleases, as I haven’t had a chance to provide a copy of the submissions to your Honour prior to today what I propose to do is to speak to those submissions to take your Honour through them. There are, I can say three issues that I want to address your Honour on in respect of Ms Wyborn’s application, as foreshadowed in my opening.

PN98

The first is the notion of fair and efficient bargaining. There are – in respect of that issue – I would wish to take your Honour briefly through the relevant legal principles. As has been referred to there are two competing tests that your Honour may wish to consider on the authorities. I’d like to take your Honour through those tests. Ultimately, our submission will be that we succeed on either of the tests but your Honour will need to hear some submissions in relation to how those tests are to be applied if your Honour is to elect between them.

PN99

The second is so after looking at the legal principles I will apply those two tests – the first and the second test to the facts at hand – and, as I say our submission is on either tests Ms Wyborn’s application ought to succeed. Because if your Honour has to choose between whether if the scope order is made that we contend for is fair and efficient or is fairer and/or more efficient than if it were not to be made then, in our submission, the evidence will show that the proposed agreement if no scope order is made will proceed immediately or as soon as possible to a vote and the likelihood is that it will be approved and be passed.

PN100

There will be no bargaining, let alone good faith bargaining. That’s the comparator that your Honour will be asked to have regard to if the test for which the ACT Health contends is to be applied but we’ll come to that. The second issue is whether junior medical officers as a group is fairly chosen, as distinct from senior medical practitioners.

PN101

The third issue is whether it’s reasonable in all the circumstances to grant the scope order for which we contend. In that regard, your Honour, I want to take your Honour through the evidence as to support for the separation of seniors and juniors, the historical precedent in the ACT. Mr Wilson is incorrect in submitting to your Honour that there has been no historical precedent. Clearly there has been on the evidence of Professor Bowden. I will come to that. And also for reasons of alignment with other States, such as New South Wales and Victoria. Finally, I will come to Mr Wilson’s application on radiation oncologists.

PN102

Can I commence then with the legal principles relevant to fair and efficient conduct of bargaining? Your Honour, can I ask your Honour to take up the list of authorities? A bundle of authorities I have handed to your Honour behind tab 2, the decision of AMWU v BRB Modular Proprietary Limited, a decision of Commission Ryan, of 7 October 2014. Your Honour, this is – so far as we have seen this decision contains the most thorough and detailed analysis of what the relevant statutory provisions actually mean, and that analysis starts from paragraph 8 – page 3 of 26 – in the top right hand corner.

PN103

The first reference, your Honour, is in paragraph 9 – of course reference to the Full Bench decision in United Firefighters Union – this is the test referred to in that decision which ACT Health will contend for as I apprehend it. There’s two propositions in that extract to United Firefighters. The first, in the first paragraph, I’m looking at the extract – paragraph 54 of the Firefighters’ decision. At the end of that paragraph the Full Bench says, “If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair that the tribunal is satisfied of the relevant matters and is disposed to make the order it would be an error not to do so.”

PN104

That’s not controversial, your Honour. That’s a principle accepted by Ryan C and in all the relevant authorities. That is, you don’t need to find that the ACT’s scope order or scope of the agreement is unfair. You don’t need to find that Mr Wilson’s proposed scope is unfair. You just need to find Ms Wyborn’s is fair relevantly. That is, it’s theoretically possible that all of the scope – that all of the respective scopes contended for at this Bar table are fair in some degree.

PN105

In paragraph 55 of the Firefighters decision, there is a reference to a principle that is in contention. You will see there a passing reference in the second sentence that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. That is the controversial proposition. Over the page, Ryan C then refers to a decision that was handed down by Richards SDP soon after the Full Bench decision in the Australian Red Cross blood service case.

PN106

Your Honour will see there that Richards SDP took a different approach. He said that section 238 in the second sentence of that extract in paragraph 24 –

PN107

“Does not require me to be satisfied that the order will make the conduct of the bargaining fairer still or more efficient than the conduct of the bargaining for the proposed agreement.”

PN108

Now, two observations can I make in relation to that statement? It is contrary to the Full Bench test. As Richards DP is there expressly stating that it’s not required to make a comparison. There’s no comparator bargaining required. And, secondly, what the Full Bench is talking about, if the comparator is required is the proposed bargaining – sorry, the bargaining for the proposed agreement, that’s the relevant comparator. So those are the two observations.

PN109

Ryan C goes on to adopt that approach and the Commissioner does so in a reasoned and detailed manner in a way which was not centrally at issue in the Firefighters case and in a way which, apart from that passing reference by the Full Bench, no other real analysis of the meaning of section 238 is apparent from the face of the decision. Now, can I just skip through, your Honour, in relation to the reasoning of Ryan C? You will see in paragraphs 11 and 12, the observation is that the effect of the Full Bench test – in the Firefighters test, I should say, is to read words into the provision that aren’t there. That, in effect, what the Full Bench test requires is to read the words “fair” and “efficient” to mean fairer and more efficient. An interpretation which puts a gloss on the plain meaning of the provision itself.

PN110

In aid of the Commissioner’s analysis if your Honour could skip through to paragraph 23 onwards? I’m sorry for spending a bit of time on this, your Honour, but it’s something I will return to in the course of analysing the facts. The Commissioner does resort to the explanatory memorandum. Over the page there’s an illustrative example set out in the explanatory memorandum to the Act or the bill, including a factual analysis of an agreement between an organisation called David’s Debt Services – DBS – and over the page again, that’s page 8 of 26. The example is given that a scope order will be available where the two groups of employees with different interests and the bargaining agents for those respective two groups could not agree on their negotiating strategy. That’s the agreement. That’s the example given in the explanatory memorandum.

PN111

In paragraph 24, the Commissioner observes that there’s nothing in the explanatory memorandum or the Commission itself which suggests that the Firefighters’ test, if I can refer to it that way ought to be the correct test. In paragraph 30 the observation is that there is no language in the Act or the explanatory memorandum requiring a comparator and then from paragraph 31 onwards resorts to the ordinary dictionary meaning of the terms “promote”, the terms “fair” and the terms “efficient.”

PN112

I won’t dwell on that analysis but your Honour will then see on page 11 of 26, the Commissioner then determines that section 238(4)(b) the words speak for themselves. In paragraph 40 of the decision the Commissioner makes the observation that if the Firefighters’ test were to apply then the example in the explanatory memorandum of DDS in that example, that test would render a scope order unavailable in some circumstances in relation to that example. Because it may not be possible to demonstrate that the separate agreement, separate bargaining would be “fairer and more efficient.”

PN113

The Commissioner then goes on to apply or deal with the relevant statutory interpretation principles. I won’t dwell on that analysis but it’s a thorough going analysis. And, finally, the – I’m sorry before then, on page 14 of 26, paragraphs 50 and 51, having regard to those interpretation principles, the Commissioner observes that the Firefighters cases has construed or rewritten section 238 in a way – too much at variance with the natural and plain language. The priority in the interpretative task – statutory interpretation task being to give effect of the meaning of the words used by the legislature.

PN114

And then in paragraph 54, again, the Commissioner identifies that the standard introduced into the provision by the Firefighters’ case is a level of fairness and efficiency attached to the bargaining process at the time the application for a scope order is dealt with. That must be the bargaining process for the proposed agreement and that answers the question if your Honour has to deal with the question fairer and more efficient. Fairer and more efficient than what? The answer is, or must be, the bargaining for the proposed agreement as it stands. And going forward, applying some crystal ball gazing, how the two courses of bargaining would compare with each other, that is bargaining for the separate agreements between seniors and juniors on the one hand and bargaining going forward for the proposed agreement as a single unit.

PN115

Another relevant point made by the Commissioner in paragraph 64 going over to 65, page 15 and 16 of 26, the Commissioner observes that in the Act, where the legislature has meant to say something needs to be more efficient then it has said so in relation to provision on representation by lawyers, section 596, that it’s not a case of the legislature. I withdraw that. The pointed use of the different terms and different context is consistent with the legislature not saying what it means when it uses the language efficient as distinct from more efficient.

PN116

And in conclusion, there’s an observation in paragraph 67 which your Honour will be interested in. The Commissioner refers to the convention of following Full Bench decisions. It says it’s a brave or foolish member who doesn’t. We would submit your Honour would be brave and, in any

PN117

event ‑ ‑ ‑

PN118

THE DEPUTY PRESIDENT: Don’t you need the word “courageous”?

PN119

MR CHIN: No, your Honour. In fact, I’ll withdraw that. It won’t be an act of braveness or courage because it’s simply the correct approach based on the ordinary analysis of the provision and supported by, at least, two decisions of the single members of the Commission – Richards SDP and Ryan C. Keeping in mind, also, that the Full Bench in United Firefighters did specifically expressly state that none of their analysis is meant to amount to a statement of general principle that it was confined to its facts and I can give your Honour that paragraph. If your Honour looks at the Firefighters case it’s at paragraph 71. The findings were bound up with the facts of that case.

PN120

Then finally, in paragraph 70 of the BRB decision, Ryan C states the true and correct position. Paragraph 70 states that you can make a scope order that will promote fair and efficient bargaining which could be less fair, more fair or, equally as fair or could be less efficient, more efficient or equally as efficient or any combination of these degrees of fairness and efficiency, than if no scope order was made.

PN121

So that’s the setting in terms of the applicable legal principles. Can I turn now, your Honour, to deal with the facts? The first part of my supplementary written submissions establishes the first proposition and the foundation – one of the parts of the foundation of our case. The first proposition is there is existing an impasse, a stalemate or a deadlock in relation to issues that are exclusively of concern to senior medical practitioners as a group.

PN122

I identify six different issues based on the evidence. Evidence is referred to in the footnotes. Can I highlight three? Obviously the first one is the issue of separation as such – a separate agreement. The second is the absence of a tiered scale for the on-call allowance for senior medical practitioners and one of the – and the third one which I want to highlight – there are six – but I highlight the third one which is the revisions to the special employments part of the proposed agreement whereby for the first time SEA’s which the evidence shows are of such critical importance to the remuneration of many, many senior practitioners and largely only senior practitioners, the first time introduction of a provision that will automatically render them expired – after a period – and the concern is there that despite the assurances of ACT Health about timely reviews experience – sometimes hard experience and conceded by ACT Health on its own record of review there’s a real concern there about whether those reviews will be conducted or able to be completed in time and with the new guillotine of 15 months a real risk of their very important part of their benefits being rendered negatory. That’s an important issue for the SEA. So the first proposition, your Honour – those issues are at deadlock we’ve asked ACT Health has refused to move from the position that was agreed with ASMOF and the AMA in the negotiations prior to the approval of the agreement last year.

PN123

Now, we have a submission that involves a flavour of what Mr Wilson was submitting but not on all fours. If no scope order is made the evidence – it only points one way – I’ll take your Honour to the evidence but it only points one way. If no scope order is made the agreement will, as soon as possible, proceed to vote and very likely be approved and thereby come into force.

PN124

We have seen that. It happened last year. The positions of ACT Health, ASMOF, the AMA are unanimous and firm. That’s what all of the major parties want. And as a consequence the interests of seniors in respect of those disputed matters, at least, will be overborne by the majority who are to be subject to the proposed agreement. So there is an element of tyranny of the majority in prospect. More than that, your Honour, we say naturally flowing from the consequence of any refusal of Ms Wyborn’s application.

PN125

We don’t, and I expressly repudiate it, found that in terms of jealousy, or envy or any of those matters. It’s just the nature of the process. The objective interests of junior medical officers in this case, as distinct from senior medical officers will produce that result. It’s just the structural tension that exists under the one proposed agreement and I will develop that in due course.

PN126

The evidence as to the one likely relevant consequence of the making of the scope order is set out in paragraph 4 of my supplementary submissions. If your Honour makes the scope order that we contend for, then the evidence points again only in one direction, the proposed agreement as soon possible will be put quickly to a vote excluding senior medical practitioners. In all likelihood it will be approved as it was and it will proceed to come into effect. That’s the only direction in which the evidence points.

PN127

ACT Health has not pointedly – has not come before the Commission and said that if your Honour makes the scope order all bets are off – we are starting from scratch or that there’ll be any upsetting of any of the provisions already agreed between ACT Health and the various parties that pertain to the benefits for junior officers.

PN128

Now, if there was one way to resist the scope order that we contend for it would be to come to the Commissioner and say, “Look, if the Commission makes this order then all bets are off. There is no prospect. We negotiated this agreement as a whole for both seniors and juniors. If you take one away there is no agreement.” ACT Health has not come to the Commission and suggested that at all. Quite the contrary, and it could have done so. And that would have been an issue for the applicant’s to deal with.

PN129

ACT Health, ASMOF and AMA have each expressed the desire for the agreement to be put to another vote as soon as possible. That’s in the evidence from Professor Bowden, from Dr Hallam and from the submissions of the AMA. The current stalemate concerns only conditions of concern to SMP’s – to senior medical practitioners. All other issues concerning juniors are agreed as between the representatives of those junior medical officers and ACT Health. There’s no suggestion otherwise.

PN130

The historical precedent is that in September last year the agreement was, in fact, approved by a large margin. Now, when one looks at ACT Health’s evidence the only relevant evidence is that of Mr Noud’s, N-O-U-D, in Exhibit R4.
Mr Noud merely asserts, generally, at paragraph 25 that backdating of pay increases could be withdrawn “at any time”. Now, he says that generally but he doesn’t say it – he doesn’t say – and that is said irrespective of the scope agreement. It’s not said that this will happen or the risk arises if the scope order is made. It’s just a bare statement. It doesn’t go anywhere. It’s a statement of the obvious and it’s said irrespective of whether your Honour exercises your Honour’s discretion to make the scope order.

PN131

Now, ACT Health’s written submissions and I am referring to the submissions filed before he commencement of the hearing do say, without any evidentiary basis, that the parameters of bargaining for a new agreement for senior medical practitioners only will have to be considered by Cabinet. That’s a submission that’s made, paragraph 43 to 44 of their submissions. That’s all they submit. Mind you, as I said, without any evidentiary foundation.

PN132

But that’s a statement in relation to the future agreement with senior medical practitioners. It says nothing about the existing proposed agreement before junior medical officers. ACT Health does not submit that the bargaining parameters, for instance, for the proposed agreement but junior officers would need to return to Cabinet. There is, in fact, no suggestion whatsoever that ACT Health is not prepared to allow that proposed agreement in its present form but excluding senior medical practitioners and the provisions applying to them to be put to a vote of the employees as soon as possible.

PN133

So, your Honour, there’s no evidence to support any assertion that the agreed terms of the proposed agreement as they apply to junior officers are likely to be prejudiced in any way if the proposed agreement was limited in scope as we contend. So that if the scope order that we contend for is made there are two possibilities. Sorry – if the scope order for which we contend is made there is, on the evidence, only one likely possibility that is, as I have said, the agreement as it relates to junior medical officers goes through as amended.

PN134

If the scope order is not made there are two possibilities. First, the stalemate between ACT Health and seniors continues to impede and delay the approval of the proposed agreement. In this scenario the interests of juniors would be prejudiced by the further delay. They’re not interested in the dispute we’re having now.

PN135

Secondly, in the alternative, your Honour, the proposed agreement will be put to a vote and is likely to be proved despite my client’s concerns so that, in contrast, your Honour will have a situation where if the scope order is made fair and efficient bargaining will be promoted because the consequential modifications to the proposed agreement will be mechanical in nature and minor because of the existing clear delineation of senior medical practitioner’s specific provisions in the agreement. Your Honour, I handed up that chart as an aide memoir at the outset of the proceedings. Doctor Hallam agreed in her evidence in relation to the structure of the existing proposed agreement, a clear – you could almost draft a blue pencil through the agreement in relation to senior practitioner-specific provisions.

PN136

Secondly, that bargaining over any consequential amendments and the approval of the agreement would be unimpeded by the present stalemate between senior practitioners and ACT Health. So that the making of a scope order is likely to proceed or likely to result, I should say, in the proposed agreement being approved in a timely and efficient manner. That’s the position for which we contend. In terms of fairness ‑ ‑ ‑

PN137

THE DEPUTY PRESIDENT: Doesn’t that presume though that the ACT Government’s bargaining position, to date, sort of on some of those areas where there is a difference of view changes? If you just use the example of the revisions to the special employment arrangements – you know – sort of that’s clearly an area of disagreement between those that Ms Wyborn represents.

PN138

MR CHIN: Yes.

PN139

THE DEPUTY PRESIDENT: And the ACT Government. It’s a case of still having to get to agreement on that particular issue.

PN140

MR CHIN: That’s correct, your Honour, but I’m not addressing the issue of the proposed agreement as it relates to senior practitioners. What I’m addressing here ‑ ‑ ‑

PN141

THE DEPUTY PRESIDENT: Is the agreement as it relates to juniors?

PN142

MR CHIN: Yes. If your Honour makes the scope order.

PN143

THE DEPUTY PRESIDENT: Okay. Right.

PN144

MR CHIN: If your Honour makes a scope order and the question – this arises more on the test of the Firefighters’ case, the Full Bench, where your Honour has to make the comparison. But if your Honour makes the scope order the evidence before your Honour is that the agreement, as it’s agreed, as it applies only to juniors will not be upset.

PN145

THE DEPUTY PRESIDENT: I understand the point you’re making on that issue.

PN146

MR CHIN: That’ll go through.

PN147

THE DEPUTY PRESIDENT: But then in essence the sort of the challenge is the issue of fair and efficient will apply to all of the bargaining that might ensue from the nature of the scope order wouldn’t it?

PN148

MR CHIN: Well, the comparator from the legal analysis I took your Honour to – the comparator is the fairness and efficiency of the bargaining for the proposed agreement and what I’m addressing here is for the proposed agreement.

PN149

THE DEPUTY PRESIDENT: Well, if I issue a scope order ‑ ‑ ‑

PN150

MR CHIN: Yes.

PN151

THE DEPUTY PRESIDENT: Either in the terms that Ms Wyborn is seeking and/or in the terms that also Mr Wilson is seeking, which is separately, and I’m then in the Territory – aren’t we then in the territory of talking about proposed agreements, not a proposed agreement?

PN152

MR CHIN: But the application is, with respect, to only the proposed agreement before your Honour. The way we put is this. Your Honour will have to look at what would be the effect of the scope order on the proposed agreement? The proposed agreement is one that now covers both juniors and seniors. That proposed agreement will go through. If your Honour doesn’t make the scope order then two possibilities arise and here is where your Honour’s point comes in. If your Honour doesn’t make that proposed scope order two possibilities arise.

PN153

Firstly, again, the proposed agreement covering juniors and seniors goes to vote immediately or as soon as possible gets passed – the likelihood that it will. That will occur – that’s unfair because it will overbear the legitimate and very serious interests of senior medical practitioners, or at least it’s less fair than if the scope order were made.

PN154

Now, that’s one scenario. The other scenario is that – and I was coming to that – the stalemate continues to infect both the interests of juniors and seniors because the proposed agreement will be held up by the bargaining that may take place between the senior practitioners and ACT Health. And if that were to happen then, in my submission, the evidence will show and I will come to this in due course that bargaining would be less efficient and less fair than if your Honour were to make the scope order. For instance, in that circumstance all the parties positions are entrenched – AMA, ASMOF, ACT Health – they know that given the numerical superiority of junior medical officers there would be no impetus for good faith, further good faith bargaining or any concessions to be made if the bargaining were to take place on a combined basis.

PN155

There would be no scope for negotiating a cost neutral on‑call tiered allowance, whereas if bargaining were to take place separately with Ms Wyborn and those for whom she represents that becomes an open issue. ASMOF closed down that issue without further consideration and the evidence is that there has been no further opportunity between ACT Health and Ms Wyborn to discuss that very issue. And that’s something we want, that is, a tiered on-call allowance. So that’s an issue that opens up.

PN156

THE DEPUTY PRESIDENT: So can I just come back to a point that you make in terms of – in the context of the scope order that the Commission needs to consider, it’s about the proposed agreement – that being the agreement that would apply to junior medical officers.

PN157

MR CHIN: Yes.

PN158

THE DEPUTY PRESIDENT: When I look at section 238(4)(c), it talks in terms of the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen.

PN159

MR CHIN: Yes.

PN160

THE DEPUTY PRESIDENT: So wouldn’t that imply that the nature of the order that is being sought is an agreement for senior medical practitioners?

PN161

MR CHIN: (4)(c) refers to the group of employees who will be covered by the agreement - the proposed agreement – on our scope order application ‑ ‑ ‑

PN162

THE DEPUTY PRESIDENT: No, it doesn’t say “proposed agreement”. What it says by the agreement proposed to be specified in the scope order. Now, that kind of goes to the question of the order that’s being sought.

PN163

MR CHIN: Yes.

PN164

THE DEPUTY PRESIDENT: But I would have thought that the order that is sought by the application that Ms Wyborn’s made on behalf of those that she represents – is one that the agreement proposed would be an agreement which relates – covers senior medical practitioners solely.

PN165

MR CHIN: My understanding is that the agreement – that the scope order application is for the exclusion. Your Honour will recall I opened on the basis that you can get a scope order to exclude employees. The scope order applies for an order that the employees to be covered by the proposed agreement be limited to junior medical officers, excluding seniors. So the application focuses on the ‑ ‑ ‑

PN166

THE DEPUTY PRESIDENT: So I get the point that you’re making.

PN167

MR CHIN: Yes. So we return again to the proposed agreement, as it will look, given the scope order and that will be the proposed agreement covering juniors only. I understand your Honour’s point. It may have been phrased differently but you can only bring in an application for a scope order in relation to a proposed agreement that there is no relevant proposed agreement for senior practitioners only at this stage. It’s just a proposed agreement for both of them and that’s the agreement that I’m addressing in terms of what will happen – in terms of bargaining – if the scope order is not made.

PN168

So I have referred to some of these factors in the course of my submissions. But in summary, your Honour, is the scope order is made then the likelihood there’s limited mechanical residual bargaining to take place on modifying the proposed agreement to remove senior specific provisions. So we know that bargaining will take place and it will take place in good faith. Separate good faith bargaining on senior practitioner specific issues will then also result.

PN169

This opens up negotiations, as I said, on a cost-neutral tiered on-call allowance. Something which ACT Health desires. There will be no more duplication than otherwise, your Honour, because bargaining for a single agreement is in separate streams in any event. In fact there’ll be less duplication. Does your Honour have the transcript?

PN170

THE DEPUTY PRESIDENT: Yes, I do.

PN171

MR CHIN: And I am mindful of your Honour’s questioning of myself and others at the Bar table on the last occasion about the relevance of the historical bargaining process and, in my submission, this is where the relevance comes in. Perhaps it’s indirectly relevant but relevant nonetheless. If your Honour has to look at the “crystal ball” and compare efficiency and fairness in terms of future bargaining, then the question “What type of bargaining will occur if no scope order is made?” is informed by the bargaining that has occurred in the past.

PN172

In a technical sense, and we adopt it – Mr Wilson’s submissions about a new agreement and new bargaining since the approval of the last one is correct – but, of course, in the real world there is a history of the terms of the position of the parties in respect of this proposed agreement and that history informs your Honour as to how bargaining will proceed efficiently or otherwise if no scope order is made. That’s the way in which we put its relevance.

PN173

The evidence of Professor Bowden is relevant in that regard. Your Honour will see from transcript reference PN57 onwards. The page number I have for the transcript is not numbered but does your Honour have PN957?

PN174

THE DEPUTY PRESIDENT: 957? Yes, I do.

PN175

MR CHIN: I cross-examined Professor Bowden on the course of – or the structure and course of the prior bargaining – and it transpired that what occurred was you had multiple streams of bargaining for the agreement that covers juniors and seniors. You had fractured representation of senior medical practitioners between two of the streams so the stream in which ASMOF was participating as well as the stream in which AMA was participating. Both separate streams which never met in the same room together had the representation of senior medical practitioner interests fractured between both those streams.

PN176

I asked Professor Bowden whether he was able to at PN963, “Were you able to reconcile or attempt to reconcile senior medical practitioner and junior medical officer interests in the course of those two separate bargaining streams?” He says, “Yes.” I think he says the ASMOF stream was predominantly senior and the AMA stream was predominantly junior. But in the AMA stream you also had bargaining agents – Dr Burder(?) and so forth – and there’s no doubt that both representation of seniors were in both separate streams to whatever degree.

PN177

I then asked Professor Bowden that the two separate streams were no impediment to the reconciliation of the competing interest between JMO’s and seniors. Professor Bowden then gives evidence about the predominant representation in each stream. And then over the page in PN967, can I suggest to you that if there was 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 out that you thought junior doctors needed to be consulted about. Professor Bowden’s answer is that he accepts that and then he repeats that he accepts that.

PN178

So that if no scope order is made the likelihood based on an historical bargaining, for this is essentially in substance the same agreement, is for a fractured process of representation for senior medical practitioner interests over separate bargaining streams. And there’s no advantage to the existing agreement covering seniors and doctors in terms of avoiding duplication of negotiation and effort. If the scope order is made and there is a separate bargaining process for senior medical practitioners, because in practice, indeed, there already has been but less efficient. Because that’s representation, separate representation, for senior or separate bargaining for senior medical practitioners was fractured over multiple bargaining streams.

PN179

If the scope order is made bargaining will be more efficient because there will be only one bargaining stream that is with senior medical practitioners. Like the bargaining for the proposed agreement a separate stream for senior medical practitioners so that there’s no greater duplication. But, unlike bargaining for the existing proposed agreement, it will be more efficient because there’ll be less duplication. There will be one stream for senior medical practitioners represented in the one room on the issues of concern only to senior medical practitioners. That’s the advantage in efficiency that we submit and for which we contend your Honour.

PN180

Now, those submissions proceed on the assumption, your Honour, that if there’s no scope order made in fact bargaining will happen. So as I said earlier, your Honour will recall if no scope order is made either one of two things will happen, the agreement gets approved and no bargaining happens or further bargaining takes place. I have just submitted to your Honour why in our submission – if bargaining does take place a separate agreement will be more efficient and fairer.

PN181

If there’s no further bargaining which, in my submission, is the more likely outcome then by definition, in my submission, this outcome is less efficient and less fair because, your Honour, there will be no fair and efficient bargaining at all. The proposed agreement will simply as each of the major players have given evidence and suggested, is consistent with their respective positions, will simply be put to a vote as soon as possible.

PN182

In that scenario your Honour will be comparing good faith bargaining between senior medical practitioners and the ACT Health about those matters that concern to seniors as against no good faith bargaining at all. Indeed, no bargaining at all. Your Honour, in paragraph 13 of my supplementary submissions I refer to a Full Bench case in Australian Workers’ Union v BP Refinery (Kwinana) Proprietary Limited. It was there recognised, by the Full Bench, that bargaining for two agreements for two groups of employees may be more efficient than bargaining for a single agreement, covering both groups, where the evidence establishes that the two groups have conflicting positions on issues, that are important to them, but not particularly important to the employer.

PN183

And your Honour will recall the example, perhaps in the explanatory memorandum, involving the DDS example, examined by Ryan C, where you’ve got two groups of employees with different bargaining strategies. That can be a justification for more efficient bargaining for separate agreements.

PN184

In my submission, the present circumstances is relevantly analogous for the reasons I have set out in those – further in those written submissions and I have touched on already that there’s less duplication - not more – and both representation of senior practitioner interests would be more effective, more efficient and more fair. In his evidence Professor Bowden raised concerns about some potential difficulties associated with separate agreements – separate bargaining – in my submission, your Honour would disregard and reject that evidence.

PN185

For instance, in cross-examination, there is one issue in relation to Professor Bowden’s evidence, an initial suggestion in his statement that separate agreements might compromise the training needs of junior medical officers as distinct from the training responsibilities of senior medical practitioners. In my submission, there was some retreat from that position by Professor Bowden in the cross-examination. That eventuality, on his evidence, is in no sense likely to occur.

PN186

Professor Bowden finally retreated to the position where he’s saying, “I guess all I’m saying is it’s possible” and “That does not mean that it will certainly reflect the future”. Indeed, because it won’t. Because the evidence overwhelmingly shows that it won’t. The uncontested evidence of senior medical practitioners that gave evidence in this hearing is that they take their training responsibilities of JMO’s very seriously indeed. And, in fact, are pushing for a greater proportion of their working time to be spent doing that with some resistance from ACT Health, not from senior practitioners themselves.

PN187

And, your Honour, will recall the debate about whether 30 percent of clinical duties as distinct from 20 percent was adequate. Doctor Avard said if the college says 30 percent, that’s what - we stick to it strictly. Professor Bowden says 20 percent is sufficient. There’s some, on Professor Bowden’s evidence to be fair to him, some lack of clarity in his mind about what those non‑clinical duties might consist of but nonetheless the resistance to the amount of time being spent, essentially, on non-clinical educational training duties is not something that can be said to be a matter about which senior medical practitioners is seeking to diminish.

PN188

The second issue is the assertion by Professor Bowden that the risks of separate agreement leading to less integrated conditions between juniors and seniors that has been avoided in his evidence by a combined bargaining. But Professor Bowden conceded that previous “combined bargaining” actually, your Honour, involved separate bargaining streams. Now, I know they came together at the end to resolve the final agreement but even on Professor Bowden’s evidence there’s no reason why that coordination ought not be able to occur for a separate agreement for senior medical practitioners. There’s no reason. There’s no impediment to that process.

PN189

This notion of combined bargaining is really a misnomer because what actually happened and what will happen, if there is bargaining at all, if no scope order is made is a system of effectively the same thing – no better than separate bargaining streams. In fact, on our submission, less efficient, less fair because of the fractured nature of representation of senior medical practitioner interests in that context.

PN190

We otherwise rely on the written submissions both filed prior to the hearing and my supplementary submissions on that issue, your Honour. Can I now turn to the issue of the question of fairly chosen? The Firefighters’ case is instructive on this issue. In that case, your Honour, fire commanders and assistance chief station managers were sought to be removed or excluded from an agreement that covered both those classes and operational firefighters. The Full Bench determined that it was more fairer and efficient to do so.

PN191

In doing so, it recognised that the nature and quality of supervisory and management duties can constitute a relevant operational and organisational distinction between two groups of employees. Managerial responsibilities, which are qualitatively different from the duties of subordinate employees whose duties are primarily operational. In my submission, we have a similar circumstance in this case. The evidence demonstrates that JMO’s – junior officers – are not simply subordinate but otherwise fully-fledged doctors.

PN192

Of course they perform a vital service delivery function. Of course they do. But they are primarily trainees, if you like, apprentices in the practise of medicine being trained and supervised by senior medical practitioners who are fully fledged doctors. Junior medical officers are not fully fledged in the sense that they cannot practise medicine autonomously, that is, without the supervision and management and training provided by senior practitioners.

PN193

Now, there are number of issues which I highlight in the submissions from paragraph 19 onwards. Your Honour will see at 19(a) – “Senior medical practitioners have the authority to performance, manage, discipline and decide whether to continue the employment of junior medical officers.” Because they sit on the annual recruitment rounds to determine whether to renew fixed term contracts of juniors. There’s no equivalent junior medical officer role there.

PN194

In (b), on page 19, “Seniors are responsible for developing rosters, participating in quality assurance committees and meeting professional college accreditation requirements.” Again, no junior medical officer equivalent role there. Similarly, the requirement – the college imposed requirement to devote time to non-clinical or clinical support work – no equivalent junior medical officer role there. And in (d) and (e), essentially, in terms of service delivery, of course, there’s an overlap. There is an overlap of function performed by the two groups. But my submission is the extent of the supervisory and managerial role of senior medical practitioners makes their role qualitatively different from those of junior medical practitioners.

PN195

In (f), over the page, at 20 “The responsibility to mentor, train, develop curriculum for JMO’s.” There is no junior medical officer role equivalent there. In (g), senior medical practitioners sitting on credentialing committees which are responsible for credentialing, that is, admitting to practise in a college of junior medical officers. Again, no equivalent junior role there.

PN196

Again, in (h) there is a degree of training performed by JMO’s the evidence shows of less experienced more junior employees. But, again, that overlap overstated by ACT Health ignores the important qualitative difference between the two training functions if you like. The training itself is a subject of teaching and education by seniors to junior medical officers.

PN197

Clinical support, in (i) – “Senior medical practitioners maintain administrative and clinical support systems.” “Staffing arrangements” – again, no equivalent junior role there. In (j), over the page – “JMO’s have no part in senior’s role in liaising with professional colleges to ensure best practise, developing guidelines, and the like.” And of course all this is manifested in the conditions, the different conditions, employment conditions, that pertain to both groups. Rights to private practise. Permanent employment as opposed to fixed-term short-term employment, overtime benefits for JMO’s as opposed to a flat allowance for on-call payment beyond ordinary hours and government of conditions by SEA’s over and above minimum agreement or award entitlements.

PN198

Again, can I trouble your Honour to just turn again to the transcript, just briefly, and to look at the evidence of Dr Zey at PN684. Doctor Zey’s evidence, before I take your Honour to it, is, can I submit, particularly valuable. Doctor Zey became a senior medical practitioner very recently, in January of this year, so that this is a witness who is very well familiar with the role of junior medical officer, as distinct from a senior position which he now occupies. It’s not a case of a senior medical officer who has been in that role for many decades and, who perhaps might not be as familiar with the role of juniors as otherwise.

PN199

Doctor Zey is very well placed to state the distinction between the two, having recently straddled both, or jumped from one to the other I should say, and when asked as to what the difference in responsibilities exercised by junior medical officers, Dr Zey gives his answer in that passage in 684. I won’t read it to your Honour. Your Honour can read it but he mentions there because in terms of assistance and training and supervision – although you’re not there 24 hours a day – you’re there, as it were, to be a support and to “hand-hold”. Doctor Zey’s evidence to “hand-hold the junior medical officer.” And that extends to the junior medical officer’s wellbeing because situations can, of course, be very stressful.

PN200

It’s almost somewhat of a pastoral care exercise by seniors over junior medical officers, among others, so that there is a real qualitative distinction between the two groups. Can I briefly address – now, before I go there, ACT Health will say, “Well, Dr Zey, well, when he was a junior he also performed intubations and so forth.” Well, of course, he did. Of course service delivery is a common, to some extent, common shared function between the two groups. But as stated in the Firefighters’ decision, your Honour, almost all ranks have some supervisory or managerial responsibility in relation to lower ranks. That’s not the issue. It’s despite the areas of commonality whether the qualitative difference in roles connected to managerial and supervisory functions constitute a relevant organisational distinction – operational distinction. And very clearly, in my submission, in this case it does.

PN201

Can I say something about career medical officers? There’s some evidence as to career medical officers. They’re a small group of junior medical officers but with more clinical responsibility than the majority of less experienced juniors. However, they don’t have specialist qualifications. So they’re not members of professional colleges, with the same professional, managerial, educational clinical support responsibilities of seniors.

PN202

But ACT Health submits again looking at this relatively small margin – well that shows that there’s no relevant difference between the juniors as a group and seniors as a group. In my submission, the fact that they’re not members of professional colleges, they’re not specialist qualified – with all that entails – puts them appropriately with junior medical officers and not with senior medical practitioners, specialists and senior staff specialists.

PN203

Having submitted that, if there is any alternative, appropriate fair chosen group to be excluded then the alternative might be to exclude not only specialists, senior specialists, but also career medical officers but only career medical officers. Our primary position – let me be clear is that career medical officers should be left in the proposed agreement, together with junior medical officer. That’s our clear primary position. But if there is any consideration given by the Commission to an adjustment to the scope for which we contend, in my submission, that’s the only alternative adjustment.

PN204

Can I also contend, your Honour, as compared with the Firefighters’ case, on these facts you’ve got an even clearer operational distinction because in the Firefighters’ case you’ve got ordinary operational firefighters who are otherwise fully fledged firefighters. That is they attended the majority of emergencies, rescues and so forth, whereas commanders and assistant chiefs, as found by the Full Bench, only attended a minority of those which they managed when they attended.

PN205

Firefighters were otherwise largely responsible for managing rescues and operations in the field themselves. The situation here is in greater contrast because the evidence is at all times juniors are subject to supervision and ultimate responsibility and accountability in the performance of their service functions, their treatment of patients to senior medical practitioners. I will now – I’ll leave that issue unless your Honour has any questions about that. I will go to the issue of reasonableness, in all the circumstances and then deal with Mr Wilson’s application. I hope to do that in short order.

PN206

I deal with the reasonable issue from paragraph 26 onwards. The first is the proposition that your Honour the views of employees are significant and prima facie carry greater weight than the subjective views of the employer. Now, that’s a principle found in the AWU and BP Refinery decision which I have quoted or referred to I should say. And Mr Wilson criticises us for being proportionally few of all senior medical practitioners, but the only evidence your Honour has of the views of senior medical practitioners are in favour of the separate agreement.

PN207

You’ve got the fact of the appointment of Ms Wyborn by a significant and growing number of senior medical practitioners, such that it seems with the passing of each week, more and more senior medical practitioners are appointing Ms Wyborn as their bargaining agent. You have the evidence of the petition from Dr Avard’s evidence, views of I think 36 senior medical practitioners. All of the indication – that it’s a modest review – but, your Honour there is nothing to contradict it. There is no evidence to suggest opposition to the proposition of having a separate agreement whatsoever.

PN208

The only evidence is that there is support. In any event, on the authorities, the wishes of the employee whilst significant aren’t, of course, your Honour determinative subject to the application of the criteria in section 238 and to the extent that your Honour has those views of employees they carry greater weight from the subjective views of the employer. So says the Full Bench in AWU v BP Refinery.

PN209

And the second consideration is that there is historical precedent. The evidence of Professor Bowden very clearly is that the Canberra Hospital (Junior Resident and Medical Officers’ Agreement 1999 to 2002) is historical precedent for the separate regulation of conditions for junior medical officers in the ACT. And that was associated with the emergence of two factors which apply in this case, (a) an increase in numbers of junior medical officers, relative to senior medical practitioners, and (b) a desire to align some conditions with those that pertained in New South Wales.

PN210

Similarly, there’s been an influx of junior medical officers relative to seniors now. It’s been thought in the past to justify a separate agreement. Doctor Hallam accepted that that’s a reason for justifying a separate agreement, one that on her evidence will continue to grow and in this situation you have had – you have got an 82 percent increase – 82.7 percent increase in junior medical officer numbers between the commencement of the last agreement and currently. And a far less increase in senior medical practitioners, such that the ratio is now close to two junior officers for every senior.

PN211

Senior medical practitioners also through Ms Wyborn are seeking at least, in part, to align some – well, at least one condition of the medical expense fund reimbursement to align with the standard it imposed in New South Wales. You’ve got, in other words, your Honour, historical precedent for the scope order for which we’re contending justified by, at least, one very potent similar factor which now applies and will only continue to grow.

PN212

The other advantage of making the scope order, your Honour, is we know that if it’s not made now ASMOF will, as said, it will put that claim in its log of claims for the next round of agreements. In making the scope order on a rational, reasoned basis now, your Honour would be obviating any future disputation about this very issue in circumstances where the justification for the separate agreement, in my submission, exists powerfully now – for the reasons that I have submitted.

PN213

Again, there is not only historical precedent but current examples of the separate regulation of juniors and seniors both in New South Wales and Victoria and I have nominated the relevant instruments in paragraph 29. Can I now move on to Mr Wilson’s application? It’s, in my submission, a shame in some ways, your Honour, that Mr Wilson has taken the position for radiation oncologist that he has because, in my submission, their best interests would be served in participating in a separate agreement together with their fellow senior medical practitioners.

PN214

The only points of operational and organisational difference alleged by Mr Wilson, the only points of difference is firstly, the existence of the Radiation Oncology sub-fund, and secondly, some alleged geographical remoteness of radiation oncologists. Otherwise, it is clear that radiation oncologists form a subset of senior medical practitioners. They are senior medical practitioners and are not operationally or organisationally distinct.

PN215

Can I turn to the first point of difference raised or alleged by Mr Wilson? The sub-fund is not a point of operational or organisational difference. It’s merely a more beneficial and tailored incident or feature of their right to private practise – a right that is shared by all senior medical practitioners. The evidence demonstrates the Sub-fund, the purpose of the Sub-fund is functionally the same as the purpose of the private practise trust fund. That applies to all other senior practitioners. They are both funds contributed to by senior practitioners, from private practise revenue for the purpose of funding their training and educational needs.

PN216

Now, the evidence of Dr Elsa Leahy demonstrates the unity of function and purpose, really, between the two funds. He asserts in his statement that private practise trust fund does not fund technical development for allied health workers or, at least raises that as a point of distinction between that general fund and the sub-fund. But Dr Elsa Leahy, in cross-examination, conceded very clearly that he, in fact, did not know whether that general fund did or did not do so. And the unchallenged evidence of Dr Avard is that the general fund does, indeed, perform that service/function for allied health workers. So that’s not a point of distinction at all.

PN217

Secondly, radiation oncologists, the way in which they contribute to the fund is by participating in a particular scheme – a private practise scheme under the enterprise proposed agreement and the existing agreement known as the Scheme C. Scheme C payments also apply to all other specialists, if they so elect. They have different rates for particular craft groups but it’s not a payment scheme unit to radiation oncologists. In any event the management of the sub-fund and the private practise trust fund and management of those funds are not a matter for regulation by the enterprise agreement.

PN218

The private practise fee is, but there is no impediment, your Honour, no reason why the radio-oncologists’ facility fee can’t be negotiated in the context of a separate agreement for the senior medical practitioners generally. Radio-oncologists are senior medical practitioners. They’re on permanent contracts. They have quality control duties. They’re responsible to train and supervise junior medical officers. They’ve got administrative responsibilities. They share all those things with their fellow senior medical practitioners.

PN219

The other point of operational, or so-called geographical distinction, I think, is that in Dr Elsa Leahy’s statement – repeated by Mr Wilson today incorrectly – that “Unlike all other medical and surgical specialties, radiation oncologists are geographically remote.” In terms of – in the ACT – not being to provide over-flow patients to other units within ACT or within or near or approximate geographical area.

PN220

Well again, in cross-examination Dr Elsa Leahy conceded that such geographical remoteness is not unique to radiation oncologists in the ACT. In fact, specialists in the tertiary ICU unit, as Dr Avard gave evidence are similarly geographically remote. It’s not a point of distinction unique to radiation oncologists. There is no real foundation for asserting geographical or operational distinction between radiation oncologists and the rest of the senior medical practitioners. And that’s why, in my submission, the best interests of radiation oncologists would be to participate in a separate agreement covering all senior medical practitioners to advance their concerns in that context, which they would be free to do. There’s no impediment to that happening, if the scope order contended for by Ms Wyborn is made.

PN221

To flip the coin, if your Honour were to make the scope order contended for by Mr Wilson, then that would be not resolving fair and efficient bargaining, because the proposed agreement, including junior medical officers and the senior medical practitioners, except radiation oncologists would be approved. Senior medical practitioners would be denied an opportunity to bargain over their concerns about SEA’s and the like. Whereas, radiation oncologists would be able to bargain over matters, not only to do with their private practice fund but in relation to matters of concern broadly across all senior medical practitioners.

PN222

We know, at the meeting on the 7 January 2015, Mr Wilson also expressed concern about this automatic 15-month cut-off date to SEA’s as well he might and should. And no doubt that will be matter possibly for discussion with radiation oncologists in their separate agreement if their scope order is made in circumstances where the major cohort of seniors would be denied that opportunity. So that’s a demonstration of unfairness if their scope order is made.

PN223

For those reasons, we would respectfully submit that Mr Wilson’s application should be rejected and that Ms Wyborn’s application should be granted. Unless there’s anything further, your Honour, those are my submissions.

PN224

THE DEPUTY PRESIDENT: Thank you, Mr Chin. Ms Robinson, it’s almost 12.30 there’s just a question, how long do you think you might be needing in terms of your closing submissions?

PN225

MS ROBINSON: Your Honour, perhaps half an hour to 45 minutes.

PN226

THE DEPUTY PRESIDENT: Okay.

PN227

MS ROBINSON: I’m happy to press on, if that’s convenient to the Commission, but I’m in the Commission’s hands.

PN228

THE DEPUTY PRESIDENT: Yes. We might just take a five-minute break if that’s okay and then come back to do that tier if that’s okay? We’ll be back 12.35.

SHORT ADJOURNMENT [12.31 PM]

RESUMED [12.37 PM]

PN229

THE DEPUTY PRESIDENT: Ms Robinson?

PN230

MS ROBINSON: Your Honour, similarly to my learned friend I have prepared a written outline of closing submissions, and a book of authorities, again, only a couple of which I intend to take your Honour to. There is obviously some overlap in terms of the authorities between ourselves and Ms Wyborn.

PN231

THE DEPUTY PRESIDENT: Thank you.

PN232

MS ROBINSON: At the risk of earning the ire of the Commission, I need to commence our submissions by saying, in our view, it’s impossible to look at this application for a scope order without looking at the events that transpired leading up to the application for a scope order. The status of the proposed agreement that was dismissed, we say, is not a relevant consideration, whether it made and it doesn’t exist anymore or whatever else. What we’re saying needs to be looked at is the pattern of bargaining leading up to the scope order.

PN233

That pattern of bargaining, there’s a chronology set out at Annexure B of Professor Bowden’s statement, which is exhibit R3. I don’t need to go through it suffice to say there were some 21 meetings between ACT Health and ASMOF. A significant number of meetings also between ACT Health and the AMA and the non-union bargaining reps. Those meetings comprehensively canvassed almost all of the issues that are now being raised by Ms Wyborn in pursuit of a separate enterprise agreement, which leads me to my second point. It doesn’t matter how you dress this up, in terms of which is the agreement is in issue; who’s being excised from the agreement. The reality of the situation is if this scope order is granted; if Ms Wyborn’s scope order is granted, there will be two enterprise agreements; there will be a junior enterprise agreement and a senior enterprise agreement. Bargaining will need to proceed in relation to the senior enterprise agreement. No-one is suggesting that there is not going to be a senior enterprise agreement, therefore, in looking at the application of the considerations of discretionary factors in 238 it’s entirely appropriate that we look to the efficient and fair bargaining of that senior agreement, in addition to what is likely to happen with the junior component of the agreement.

PN234

In our submission, it’s evident from the language of section 238 and from the authorities, that three points can be made in relation to these discretionary considerations in 238(4): first, the use of the word “may” makes it clear that a scope order is discretionary; the use of the word “satisfied” means that the matters in the sub-paragraphs, satisfaction as to those matters is a prerequisite to making a scope order; and third, the use of the word “and” as a conjunctive between each of the sub-paragraphs means that the Commission has to be satisfied in relation to each of those sub-paragraphs; each of (a), (b), (c) and (d). It’s already clear we’re not contesting (a), the good faith issue is not in contest; (b), (c) and (d) however, we say, is simply not made out on the evidence before the Commission today.

PN235

If I may start first with whether this scope order would promote fair and efficient bargaining. Mr Chin has already drawn your attention to the conflicting authorities in relation to the test, that is, whether the bargaining merely needs to be fair and efficient without a need for a comparative, or whether, in the words of the Full Bench in the United Firefighters case, the bargaining needs to be at least fairer and more efficient than it would be if no order is made. Or at least fairer or more sufficient than the bargaining would be if no order was made. Again, we say reference to bargaining in that provision means a reference to bargaining in relation to both the agreements that are in contemplation today, that is, both the junior agreement and the senior agreement.

PN236

Now, I take this moment to agree with Mr Chin. I take this issue off the table. No matter what order is made today, ACT Health will be putting a agreement up to the vote. If an order is made excising the senior from the proposed agreement – I’ll call it the proposed agreement, simply for ease of terminology – the agreement will be put to a vote of the juniors. If no scope order is made that agreement will be put to all the medical practitioners.

PN237

The Full Bench’s reasoning has been subject to quite a strident criticism in the BRB modular case, and it is certainly inconsistent with the Australian Red Blood Service case mentioned by Mr Chin, which is the Queensland Red Cross case for ease of reference. We make four comments in relation to that issue: Mr Chin has rightly stated that the Full Bench in the UFU case did say, this is a decision based on its facts. It’s not a decision of general principle. However, the reasoning in the UFU case has certainly been adopted as a general principle in numerous cases. It is standing authority on how to apply the fair and efficient test. Second, the BRB Modular case is a decision of a single Commissioner, and it is, I understand, subject to an appeal; on appeal that hasn’t been heard yet. It’s certainly not binding. It’s a matter for your Honour to determine how persuasive it is.

PN238

In my written submissions, paragraphs 10 on, I’ve set out some authority in relation to the doctrine of precedent in the Fair Work Commission. Obviously Fair Work Commission is not a judicial body. The doctrine of precedent does not readily apply, however, as their Honours observed in that case it’s clearly desirable for members of the Commission to adhere to Full Bench decisions, and they set out a quote from a case, Dalrymple Bay Coal Terminal Proprietary Limited where they say that:

PN239

There is not a developed system of stare decisis in this jurisdiction, however it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids in the consistent decision making, which in turn, provides the parties, the Commission proceedings, with greater certainty.

PN240

Similar observations were made in the case of CFMEU v Oakleigh Coal Proprietary Limited [2012] FWAFB 5107, and the reported version of that case is in the authorities folder at case number 5. In that case Acton SDP and Lewin C, with whom O’Callaghan DP agreed on this point, observed that a previous Full Bench decision should only be departed from cautiously and when compelled by the conclusion that the original was wrong.

PN241

Secondly, in the BRB modular case, Ryan C makes the criticism, at paragraph 11, that the Full Bench decision in the United Firefighters case, departs from the plain words of the Act and implies other words into the Act. The reasoning in the United Firefighters case, at paragraph 55, is where the comment about fairer and more fairer is made. But, their Honours do not go into a significant amount of reasoning in relation to that comment, therefore it’s somewhat difficult to understand the basis for their decision, but, if I may offer an interpretation. It appears – it could be contended, that what the Full Bench was doing, was not putting a gloss on the words “fair and efficient”, but rather giving effect to the word “promote”. As noted by Ryan C in the BRB modular case, the MacQuarie dictionary defines “promote” as: one, to advance and rate dignity opposition to increase its status; two, to further the growth development of progress or to encourage something; and three, to help found, that is, originate or organise. Clearly, definition number two is the most relevant in this context.

PN242

On this basis, I would submit that you cannot promote fair and efficient bargaining without furthering or growing the fairness or the efficiency, that necessarily means you have to look at what is the status quo and then look at what happens to fairness or efficiency if the scope order is granted. So we’re not necessarily talking about a direct comparison, but you certainly need to look at what is going to happen in the future, and whether that scope order is going to encourage, advance fairness and efficiency.

PN243

This observation is not necessarily inconsistent with the reasoning of Richards SDP in the Red Cross case, and, at paragraph 15 of my written submissions, I quoted his Honour. That case is case number 15 in the materials, the authorities provided. Richards SDP says:

PN244

An order that the Fair Work Australia (Fair Work Commission) might make must stand on its own terms as it were grounded in evidence and have the effect of promoting the fair and efficient conduct of bargaining. The requirements of an order must promote fair and efficient conduct of bargaining is a conjunctive requirement. An order by the Fair Work Commission therefore must manifest a capacity to promote both fairness and efficiency in the conduct of bargaining. In a definitional sense the order must promote, that is, it must excite the principles of fairness and efficiency in relation to the conduct of bargaining.

PN245

The Senior Deputy President goes on to say there’s no need for a comparator, hence, on his view, there’s no need to say the alternative process is more fair or more efficient. Health doesn’t necessarily accept Senior Deputy President’s conclusions there, but we what we say is that whether you’re adopting the reasoning of the Full Bench in the United Firefighters case, or the reasoning of Ryan SDP, the question is whether the scope order advances further, found, or excite a fair and efficient process. If the order does nothing, if it simply retains the status quo, it can’t promote anything.

PN246

Thirdly, we submit that the applications in this case, if approved, do not advance fairness and efficiency. Indeed, in terms of efficiency, they don’t even maintain the status quo. That status quo is the proposed agreement, the agreement that’s been reached after two years of bargaining now, which is ready to go to a vote. The position that is contended by the applicant is to recommence that bargaining with no prospect that it’s going to result in any different outcome. This is, we would submit, a step backwards. It is unlikely to be fair to the majority of employees, noting that only a minority are supporting this application, and it’s certainly not efficient on any appraisal. We say, on that basis, it’s not even necessary to decide between different interpretations of 248(4)(b) that the circumstances of this application meet neither.

PN247

So if I may turn to the issues of fairness. Invariably fairness is going to mean different things to different people. It has to involve consideration of all the circumstances and a balancing of factors and of interests. The Fair Work Act is centred around the concept of collective bargaining, which involves enterprise level bargaining towards an enterprise agreement that is better proved by a majority of employees. It’s a democratic process and, unfortunately, often majority wins.

PN248

There’s no doubt that some senior medical officers, represented by Ms Wyborn and by Mr Wilson, are dissatisfied with the proposed outcome of the collective bargaining process. That’s unfortunate, but the fact that everyone did not get what they wanted out of this process does not make it fair, and the corollary is that the fact that another process may result, and the highest you could put it is “may”, in some kind of different outcome does not mean that alternative process is going to be fairer.

PN249

I’ve set out, at paragraphs 21 and 22 and 23, the reasons why we say the process to date has been fair. There’s no need to go through those in any detail, but they’re there. We’d note that the evidence of – briefly stated, the evidence of Dr Adair is that his concerns were listened to. He attended the meeting, raised his concerns, they were listened to, and some changes were made to the proposed agreement. The evidence of Dr Avard appears to be that she has some concerns with ASMOF and with the communication, or lack thereof, with that organisation, but, again, she left the bargaining to her bargaining representatives and she was dissatisfied with the end product. There’s no evidence or suggestion that the process to date hasn’t been a fair one.

PN250

Notably, and one possible exception I’ll come to in a second, the applicants have not suggested any means by which the process could be fairer or could be enhanced. Effectively they’re conceding that, on their way forward, we’re just going to continue bargaining on these issues that have already been the subject of 18 months, two years of negotiation.

PN251

Now, the possible exception that they rely on is that the juniors will get to vote on an agreement now, which the applicants point out will allow the juniors to get the benefit of the pay rise and the advanced conditions in the proposed agreement. That will, it’s submitted, enhance fairness to the juniors. And on one view certainly it would, however the fairness to the juniors of letting them vote now has to be balanced against the long-term consequences of splitting the agreement. Professor Bowden’s evidence was that the juniors are not well-placed to negotiate a separate agreement. His evidence, at paragraph 37 of his statement, is that JMOs on short and medium term contracts, they have minimum corporate memory. They are not interested, for the most part, in industrial issues, and it should be evident that all the independent bargaining reps involved in this process were senior medical officers, not junior medical officers.

PN252

Professor Bowden then goes on to say in his evidence, PN928, that because most of the senior doctors have been junior doctors they have a memory of what it was like to be a junior doctor. Under the current system responsibility is placed on those senior doctors to represent, to some extent, the interests of the junior doctors in the process and ensure they are protected, and in doing so this also ensures that the senior doctors have an investment in the process and gain in the corporate knowledge.

PN253

Professor Bowden went on, at PN928, to express concern about the likely impact on the JMOs should the seniors be removed from their agreement. The short effect would be that the juniors’ interests may not be as well protected and their bargaining power may, in fact, be reduced. So, for the benefit of being able to vote on a new agreement now, there is a potential unfairness into the future of a bargaining process that splits off juniors, short-term employees from seniors.

PN254

No doubt, and much has been made of this, that junior medical officers outnumbers seniors. I think the ratio is about two-to-one vis-à-vis junior officers could vote for seniors. The same, of course, could be observed with just about any classification, any agreement in the ACT Government or elsewhere, administrative officers outnumber senior officers, for example, and we still cover them by the same agreement.

PN255

However, even putting that to one side, a raw comparison of the numbers does not reflect the relative bargaining strength of junior medical doctors under this agreement. Dr Hallam gave evidence, at PN824, that seniors were more likely to vote than juniors. Most juniors are working towards becoming senior medical officers and they would have little interest in seeing the conditions of senior officers decreased just as their reaching that threshold. Additionally, the senior doctors have a more extensive corporate memory and more incentive to participate in the bargaining, given their ongoing employment with ACT Health.

PN256

Finally, in relation to fairness, and this is the point that was made by Mr Wilson, so I won’t labour it too hard, but Ms Wyborn represents a minority of medical practitioners. She represents 38 senior medical practitioners at the Canberra Hospital out of a total of 299. I understand she now represents 10 medical officers at Calvary. The Calvary offices are not included in the 299 at the Canberra Hospital, but even if they were that does not significantly change the numbers. Mr Wilson represents eight medical practitioners. So we have 46 employees at the Canberra Hospital; 56 also if you include Calvary, who are dissatisfied. That is hardly a ground swell proposition to this agreement. In fact, it represents about 15 percent of senior medical officers, which is actually slightly less than the percentage of overall who voted against the agreement when it was put to a vote.

PN257

Even counting the additional 22 medical practitioners who signed the survey, and we note here the value of the survey is somewhat doubtful, for the reasons that are in Professor Bowden’s statement, at paragraphs 80 to 82, including, for example, that that survey was circulated by some of the more senior medical officers within their sections, and there must have been a considerable amount of peer pressure on the more junior senior medical officers to sign it. But, even putting that to one side, if you include all those officers, the percentage who oppose this agreement is about 22 percent of the senior medical officers, and that’s a clear minority.

PN258

A submission has been made by my learned friend that the only evidence is of those who oppose the agreement, and therefore, presumably, some inference should be drawn that there must be more significant opposition. We say that’s without foundation. Anyone who wished to sign that survey could have done so. There’s no reason why other people can’t appoint Ms Wyborn as their bargaining representative if they are likewise concerned. The silence of the majority of medical practitioners, we would submit, shows that they have no particular grievance with the proposed agreement or with the process so far. Indeed we would submit that the more likely reading of the evidence is that these senior medical practitioners want the agreement to go through; want it to go through so they can get their pay rise and get their newly agreed 20 percent non-clinical time; they can take advantage of the other beneficial outcomes of the process that were discussed by Dr Hallam in her evidence.

PN259

So, in terms of fairness, we say it would not be more fair to split the agreement, and indeed it would not be fair at all to split the agreement. In terms of efficiency, it bears noting that even if the Commission was satisfied that there is some unfairness in pushing through to a vote in a situation where clearly a minority of employees are concerned about the outcome, even if there is some degree of unfairness, the Commission must be still turn its mind to whether the scope agreement is going to promote efficiency in the conduct of the bargaining, and both have to be considered.

PN260

The MacQuarie dictionary defines “efficient” to mean effective use of energy and resources. The process leading to the agreement was lengthy and comprehensive. It reached, what appeared to be, a conclusion in September 2015. The process was a dual process. Mr Chin has made much of the two bargaining streams. The nature of the process is set out in Professor Bowden’s statement at paragraph 11. The background to these two streams, set out in paragraph 11, is that the ACT Government has reached an agreement with the unions where there are two parallel streams of bargaining. It will meet with the official union bargaining representatives at one meeting; it will meet with the non-union bargaining representatives, of which the AMA is one, and the independent bargaining representatives in a second stream. That is what happened in this case. The streams, however, met back-to-back. They met the same morning, one after the other. The minutes were the same. The issues discussed were the same. There were some going backwards and forth raising different issues that, as Mr Chin has conceded, in both meetings the interests of junior and senior doctors were represented, the AMA and ASMOF. Both represent senior and junior doctors, they just do so in two separate meetings.

PN261

If a scope order is made today, either of the scope orders, particularly, I suppose, Ms Wyborn’s scope order, those two sets of meetings will need to become four sets of meetings. We’ll need to have meetings of union bargaining representatives and non-union bargaining representatives in relation to the junior agreement, if not this time, and probably not this time, because the agreement would simply be put to the juniors in all future negotiations. We’ll need to have separate meetings in relation to the seniors. The obvious consequence of that is that the time taken for bargaining is going to significantly increase, or bargaining representatives are simply going to have less time with ACT Health representatives to discuss their proposals.

PN262

Any review of the case law will show that scope orders are usually brought when bargaining has stalled due to an impasse, that is, the bargaining process can’t be taken any further because of some disagreement between the bargaining representatives. ACT Health does not consider that to be the issue here, because we say bargaining has largely concluded. All the issues raised by Ms Wyborn, and indeed the issues raised by Mr Wilson, other than scope, have been the subject of considerable negotiation already.

PN263

SEAs and ARANs have been the subject of negotiation since the process for bargaining for the core in 2013. The SEA process was agreed by bargaining representatives and there’s evidence in Professor Bowden’s statement and in Mr Noud’s statement that ASMOF was involved in the core negotiations. The SEAs were agreed as part of that process in November 2013.

PN264

On call and recall was certainly a controversial issue, and the minutes reveal it was discussed at some length with a proposal put on the table by ACT Health that was ultimately rejected on the basis that ACT Health said the proposal needs to be cost neutral and ASMOF was of the view that there was no fair way to do it without the proposal being cost neutral. In any case, that has been thoroughly discussed. Additionally, it’s worth noting the on call/recall issue has been the subject of some discussion as to how to solve it as an administrative issue and Dr Adair agreed with that in his evidence.

PN265

Even assuming – I should say, and the reason we say there’s no an impasse on those issues is because ACT Health has reached agreement on those issues with the major bargaining representatives and agreement has been drafted. That agreement is ready to go to the vote and the evidence is, even Mr Chin’s agreement is, that vote will likely get up.

PN266

But even assuming there is an impasse, the question then becomes whether a scope order is an efficient means of resolving it. For example, in Capral Limited v The Australian Manufacturing Workers’ Union, a copy of which is in the authorities, [2010] FWA 3818, at paragraphs 31 and 32, Spencer C took account of the fact that there is no evidence to suggest that either party, simply by resuming bargaining under the auspices of a separate agreement, would make concessions.

PN267

The applicants face the same problem here. There is no evidence that splitting the agreement will result in an easier resolution of the issues, or that the territory will change its mind on any of the issues. Indeed the evidence is that the Territory will not change its mind on any of the issues, and particularly not in relation to the hotly contested SEA and ARAN issue. The evidence of Mr Noud, who is the director of public sector industrial relations and who was responsible for the oversight of the bargaining for the core, is that the SEA and ARAN provisions are negotiated to be common across Government, and that that process, as I said before, was concluded in November 2013. Mr Noud states that changing those provisions for medical practitioners, no matter what the scope of the agreement would be cumbersome, inefficient and unfair, and that’s at paragraph 48 of his statement.

PN268

Altering the scope of the agreement does not address this concern. It will not cause the Territory to re-open the matter that had been settled 16 months ago. The Capral decision also took account of the timing of a scope order. In that decision the scope order was solved four days before the vote in circumstances where the need for it was evident early in the bargaining process, and this is at paragraph 27.

PN269

This point is particularly relevant to the employees who appointed Mr Wilson as their bargaining representative. The radiation Oncologists have been aware of the issue relating to the facility fee since February 2014. We would submit that, in this situation, where the issue has been live for so long, permitting a scope order so late in the bargaining process undermines rather than promotes efficient bargaining.

PN270

In the case of National Union of Workers v Linfox [2013] FWC 9851 Roe C took into account the consequences for efficiency if the scope order were to be granted. In that case the Commissioner particularly took account of the consequences for the other parties of the scope order application being brought so late in the process. The discussion is at paragraphs 59 and 60, but we’d say the consequence, in the present case, is the further delay for those employees, on the evidence, the majority of employees who are not involved in this action. If a scope order is made, and we are required to commence negotiations for a new agreement, covering only senior medical officers, that delay will inevitably be some time. As your Honour has pointed out the situation in the Territory has changed. There is no guarantee that the same bargaining parameters will be on table for the seniors as were on for the combined agreement. There will be a necessity to go back to Government. It will take time.

PN271

Finally, we say regard should also be had to the long-term consequences for efficiency if this order is granted. I’ve already been over the evidence of Professor Bowden in terms of the bargaining process. But the professor also gave evidence that the process at the moment is efficient because it ensures an integration of interests between the junior doctors and the senior doctors, and that these interests can be addressed in one meeting. He says that it’s one of the advantages of the ACT in that it’s a small area, a small service; juniors and seniors can bargain together for complimentary conditions. If we have a separate agreement process that advantage is lost. That was at PN926 of his evidence.

PN272

In the circumstances, it is submitted that the most undeniably efficient thing to do is allow ACT Health to put the proposed agreement back to the vote. This is the case, even if there is some residual unfairness about doing so to a minority of the senior medical practitioners, it would be submitted that any approach that does not allow the proposed agreement, an agreement now nearly two years in the making to be put to the vote, would be inefficient, and is inconsistent with the requirements of sub-paragraph 4(b).

PN273

If I may now turn to the group of employees and whether they were fairly chosen. Mr Chin has, as I understand it, made the argument that the fairly chosen argument applies to look at the juniors and whether they are the subject of the proposed agreement that they are a fairly chosen group. It would by my submission that that is an unreasonable extraction of what is being sought here. What is being sought here is the removal of the senior practitioners for a different agreement. There’s no suggestion that bargaining will not continue for the seniors, and therefore we must look at whether the seniors are fairly chosen. Even if that is not the case, however, the authorities are clear that in looking at the group that is fairly chosen regard may also be had to those who have been excluded from the group, and therefore the same principles will apply either way.

PN274

Again, there’s always some subjectivity about the assessment of fairness. The leading case is Cimeco and the CFMEU, a copy of which, I think, is at 4 in the authorities book. In broad terms the principles would be fairly chosen means the selection of the group is not arbitrary or discriminatory and it would not have the effect of undermining collective bargaining or the objects of the Act. Fairness involves a balancing of interests of the parties, including those who are not to be subject to the proceedings, and, the interests of the employer are important, and that includes enhancing productivity.

PN275

Additionally, because this proposed agreement does not cover all ACT Health employees, in considering whether the scope is fairly chosen, regard needs to be had to whether employees are geographically operationally or organisationally distinct. In The Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation [2012] FWA 6329 the Commissioner, in that case, I think quite succinctly summarised what that means. In looking at geographical distinction you look at where the employees work. Looking at operational distinction you look at the work that they performed, and looking at organisational distinction you look at the structure of the organisation in which they work.

PN276

I might just turn first to the issue of whether this group is fair. Ms Wyborn seeks an agreement that applies only, or seeks to exclude, from this agreement in any case, senior medical officers with specialist qualifications and membership of a relevant college. She seeks to exclude from that group career medical officers and post-graduate fellows. Professor Bowden, at PN921 and PN922 of the transcript, and also paragraph 31 of his statement, discusses what a career medical officer is. In the statement Professor Bowden says that there is no professional difference between a career medical officer and another specialist. His evidence, given to the Commission, was that they do the same work, work the same roster, and look exactly the same as senior medical officers. The difference is that the employer arrangements with them differ. CMOs have not completed the requisite higher qualifications for admission to a college. They don’t get the same benefits in terms of education bonuses and training and that kind of thing. However, the uncontested evidence is that they do the same work.

PN277

In this regard, Ms Wyborn’s proposed split has some of the same practical issues that arose from a classification based argument in the Australian Rail and Tram Corporation case. In that case a separate agreement was sought for network controllers. Cambridge C observed that, and I quote:

PN278

The use of a specific classification as opposed to a more generic term would seem to create greater prospect for evidence to emerge that persons of another classification either worked in the same location or performed similar work, or were organised into the same structure as the network controllers.

PN279

That evidence exists in this case too. Were this scope order to be granted, it would result in experienced career medical officers performing the same work as senior medical officers but potentially doing so under different terms and conditions of employment. Putting these officers under a separate junior agreement would, Professor Bowden’s evidence is, at PN922, create an inequity as well as the obvious practical management concerns.

PN280

Additional issue of fairness would be the interests of the employer and the interests of ACT Health. ACT Health accepts there’s no presumption in favour of an agreement covering as much of an enterprise as possible. There are many reasons why an enterprise may wish to have smaller groups of employees covered, and the ACT Government has lots of different agreements and lots of different groups. However, by the same measure, weight has to be given to the right of an enterprise to manage itself in an efficient way. The authority for that is the Cimeco case. Dividing groups of employees into smaller and smaller factions representing different interests so that those particular factions gain greater bargaining power in relation to their particular interests will inevitably get to the point where efficiency is seriously compromised.

PN281

It is contended that the agreement of the type sought by Mr Wilson, an agreement that covers eight employees, is at that point. As I’ve said, the evidence of Professor Bowden is that ACT Health already has to negotiate into two separate streams with the union and the non-union bargaining reps. That process is currently streamlined by the fact that the aqendas are identical and the interests are in common. Where we’d have two separate agreements for junior seniors there would be a need for four meetings.

PN282

Additionally, the evidence of Professor Bowden, and Professor Bowden, as the chief medical administrator, would be in a strong position to give this evidence, is that two separate agreements would create operational difficulties and disharmonies where the current process allows these problems to be worked through in a cooperative manner. This is Professor Bowden’s statement at paragraph 35, and his evidence at PN926.

PN283

So I turn now to the issue of geographic operational and organisational distinction. These factors, on the authorities, are of some weight but, again, they’re not decisive. A scope order could be made whether or not there was distinction in each of these categories. In terms of geographic distinction, all the medical practitioners work in either the Canberra Hospital or Calvary. The Kwinana case [2014] FWCFB 1476, paragraph 13, makes it clear that geographical distinction is concerned with the separateness of the employer’s various work sites and work locations, not the separation of a few hundred metres within the same work site. So, notwithstanding some suggestions of Mr Wilson that the radiation oncologists are located in a particular area of the Canberra Hospital, which is not contested, they are, we would contend there could be no serious contention that there’s any geographical distinction in relation to the doctors bringing these applications.

PN284

In terms of operational and organisational distinction, the evidence is that there is a very high degree of integration in the day-to-day work of junior and senior medical officers. The evidence of Professor Bowden is that the relationship between the senior and junior medical officers is one of interdependence and that’s the term he uses with the junior medical officers providing a significant amount, if not the majority, of direct patient care under the guidance and supervision of the senior medical officers. This high level of integration is apparent even from the evidence of the applicants. For example, Dr Avard agreed, at PN431, with the proposition that junior and senior doctors must work hand in glove to provide treatment to patients in the hospital. Dr Zey agreed that particularly after 10.00 pm at night, for example, the hospital is run by junior staff with the supervision of senior staff at a distance. No-one is suggesting that’s not supervision. It’s a high degree of supervision, but it’s not supervision at the time. That’s Dr Zey, at PN663 to 665.

PN285

Now, for the purposes of Ms Wyborn’s application, the basis for the fairly chosen argument is that, as I understand it, there’s an increased managerial role for the senior medical practitioners. They have a high degree of risk and responsibility. They have private practice and insurance issues and employment arrangements. I’ll preface my comments by saying we don’t disagree that there is a degree of distinction between juniors and seniors in each of these categories, but it is one of scale. It is not a clear dividing line between the junior and senior doctor. Our contention is there’s no sufficient evidence to make out organisational or operational distinction on any of these grounds.

PN286

In terms of managerial obligations, Ms Wyborn has contended that senior medical practitioners have management and administrative responsibilities that distinguish them from junior medical officers. It’s not disputed that senior medical practitioners have a certain degree of administrative responsibility. There’s no evidence that this is any more onerous than any other senior technical expert in the ACT Government. Those who do have significant management obligations receive a management allowance and recognition. To the extent that non-clinical obligations have increased for some senior medical practitioners, this is recognised in the proposed agreement, which will provide a dedicated 20 percent non-clinical time of the senior medical practitioners with provision for different craft groups to vary that as necessary.

PN287

Similarly, it’s certainly a part of the role of the senior medical practitioner to provide supervision to junior medical officers. This is particularly the case in the teaching hospitals such as the Canberra Hospital. However, involvement in this activity from practitioner to practitioner and craft group to craft group, much of the day-to-day training of juniors is done by other more senior juniors, and that’s Professor Bowden’s statement at paragraph 1. Also the position statement which was exhibit 2, I believe, that was provided to Dr Avard, which shows that training was a key role of a registrar engaged by ACT Health, and, as I said before, that administrative obligations are recognised through a proposed 20 percent non-clinical time and through the management allowance. I would note also that, at least in ICU, it would appear that senior medical officers only supervise junior medical officers rather than the other staff in the unit. For example, Dr Avard was not aware of the performance structure of the nursing staff within her unit as that role was undertaken by the assistance director of nursing. This shows two things: perhaps a more limited managerial role that would be typical of a senior manager of a unit, but also the interdependent and integrated management structure within the Canberra Hospital.

PN288

There has certainly also been an increase in JMO numbers, however it would be wrong to view this increase as simply an increase on the burden of senior staff. The increase in junior medical officers actually means there’s more junior medical officers to do the routine matters and the direct patient care. Dr Avard’s evidence was that she requested the increase in junior medical officers in ICU for reasons of increased patient numbers. That’s at PN417.

PN289

Finally, Ms Wyborn relies on the reasoning of the Full Bench in the UFU case as authority, as I understand it, for the distinction between management and operational employees and the potential conflict of interest that can arise where they share the common agreement. A couple of comments on that: first, in the UFU case it was beyond dispute, and this is from pages 301 and 302 of the reported version in your Honour’s material. It was beyond dispute that the deputy chief fire officers were senior management with strategic obligations, and that the commanders were in key management positions. That’s not the case here. Strategic management in the Territory is the role of the senior executive services. Unless specifically engaged as such senior medical practitioners are not part of the senior executive service. The senior executive service are employed completely differently, under contracts of employment for the reasons that they do have the strategic oversight. Additionally, not all senior medical officers have management or supervisory responsibility, whilst the VCOs certainly do. As I said before those seniors who do are recognised, in this case, in other ways with additional compensation.

PN290

Secondly, the UFU case was concerned with the potential for conflict. The Territory has no such concerns in this case, mainly because of the existence of the senior executive service, as set out in Mr Noud’s statement, at paragraph 8. There is no concern about conflict.

PN291

Finally, in their reasoning the Full Bench in the UFU case, as has already been pointed out, said that the findings were made on the evidence before them and not intended to be expressions of general principle, and there’s a discussion of that in the case of Paterson v Police Federation [2011] FWA 7357 at 50, and that was in relation to this potential argument being made in the context of inspectors in the police force.

PN292

All right. The next contended for ground of distinction is risk and responsibility. There is no dispute whatsoever that a senior medical officer carries more risk and responsibility than a junior medical officer. However, there is no sharp dividing line between those who bear risk and those who do not. There’s no sharp dividing line between those who teach and those who learn. As was conceded by Dr Avard, all medical practitioners bear a degree of responsibility for the welfare of their patients, and that’s at PN346:

PN293

Junior and senior medical practitioners work together to ensure a continuity of patient care.

PN294

Dr Avard is an intensive care specialist. Her role is to look after patients whose organs have failed. ICU patients may get worse unexpectedly; they may require moment to moment care, and that care is so that if things deteriorate something can be done quickly. Yet, even in the ICU, a senior medical officer is not present 24 hours a day, seven days a week. A junior medical officer is always on duty. The relevant evidence is PN327, and also Professor Bowden’s statement, paragraph 52.

PN295

Senior medical specialists are rostered on call. They’re available at all times to consult, and they will come in as necessary. No-one is discounting in any way, the significant role of the senior medical specialist. However, they have to place their trust in the JMOs to provide patient care in their absence. They have to work together. Dr Zey was appointed as a specialist anaesthetist in February 2014. Prior to being appointed as a specialist he was engaged for 10 years in roles including intern, resident, medical officer, registrar, anaesthetics registrar and senior registrar. He is, as Mr Chin has already pointed out, in a very good position to give evidence about what junior medical officers do.

PN296

Dr Zey agreed that outcomes for patients where anaesthetists do not exercise appropriate degree of skill and care can be catastrophic, and that’s at PN642. His evidence gives a strong indication of the degree of risk and responsibility borne by a junior medical officer. Mr Chin mentioned intubating patients. That’s something he did as a resident junior early in his training. In his first year as a registrar Dr Zey gave a regional anaesthesia and later in the year a general anaesthesia without direct supervision. As a senior registrar he was commonly the most senior anaesthetist on duty. Dr Zey further agreed that it would be quite common for surgery conducted after 10.00 pm, and an example of an emergency caesar was given, to be conducted by a senior registrar in anaesthetics and a senior registrar in surgery, without any direct supervision.

PN297

Dr Zey further gave evidence that a junior medical officer may be required to make decisions without consulting a senior medical practitioner. A JMO would share responsibility for a bad outcome, and JMOs have enormous responsibilities. In short, in these roles, Dr Zey was not simply learning. He was providing direct patient care as a key part of the medical team at the Canberra Hospital or at the hospital he was engaged in at that time.

PN298

So while the buck may ultimately stop with Dr Zey, as is his evidence, or indeed with Dr Avard, as senior medical practitioners, they are not the only ones liable. They are not the only ones bearing that risk. They assign duties to junior medical officers by reference to that junior medical officer’s particular skills, which the junior medical officer must have demonstrated in order to be given that kind of responsibility. Any junior medical officer who fails to exercise their duties appropriately will be the subject to exactly the same kind of penalties as a senior medical officer, including administrative action within the hospital, professional discipline through AHPRA, the Health Professionals Regulation Authority, an inquest, potentially, and Professor Bowden gives some examples of junior medical officers who were involved in inquests, and, potentially also, civil liability. This is Professor Bowden’s statement at 54 and 57. For this reason, as Professor Bowden points out, at paragraph 58 of his statement, all medical officers, juniors and seniors, are indemnified by the Territory.

PN299

In terms of private practice, again, there’s no dispute that specialists and senior specialists have a right to private practice in the sense that that term is used in clause 154 of the agreement. What is disputed is the relevance of this for a separate agreement. It’s worth noting that the right of private practice is a right to bill effectively; to bill the Commonwealth. It affects only the means by which that patient’s stay is paid for. It does not affect the manner in which the patient is treated. A private patient is treated in exactly the same manner as any other public patient, using the same public facilities. Dr Elsawy agreed with that at PN170. It is indeed often the case that the majority of the treatments provided to a private patient, or a patient admitted under this right of private practice, are provided by other ACT Health staff, albeit certainly under the supervision of the senior medical professional.

PN300

It’s also worth noting that not all senior medical practitioners exercise the right to private practice. Indeed, some are unable to do so, which is why the private practice fund exists. This is therefore not a clear basis of distinction between senior medical officers and junior medical officers. The billings do have an effect on entitlements. Individual specialists can receive bonuses. Medical education expenses are met from the fund. But, as Mr Chin has already point it out, so I won’t labour it at any length. The mere fact that it might enhance someone’s entitlements is not a ground for operational or organisational distinction.

PN301

In terms of the radiation oncologist, and the private practice fund is there particular concern, and the consequences for that fund of raising the facility fee. Again, Mr Chin has already made most of the relevant points, so I won’t hold the Commission up of egging the cake, so to speak. But two points can be made: first, a great deal of the issues in relation to the private practice fund that have been raised by Mr Wilson arise from a specific relationship or a specific agreement between ACT Health and the director of radiation oncology. It’s not in dispute that various representations were made to Elsawy and various arrangements put in place when he commenced employment with ACT Health. Those arrangements, we would contend, are simply not relevant to a scope order, for the purposes of the Commission here today.

PN302

Secondly, a great deal of Mr Wilson’s cross-examination appeared to be aimed at reaching some kind of concession from ACT Health that there was some conspiracy to abolish the radiation oncology sub-fund. The minutes should make it very clear, and the evidence before the Commission, that the abolition of the sub-fund was not an issue in the bargaining process.

PN303

In terms of overall employment conditions, it is correct that there was a separate agreement for junior medical officers in 1999 to 2002. That agreement applied only to resident medical officers. It didn’t apply to the remaining juniors. They remained covered by the main agreement, and they were subsumed in to the main agreement in the replacement enterprise agreement, and they have remained there since.

PN304

There are certainly differences in terms of conditions of senior medical practitioners and junior medical practitioners. A difference in conditions between senior and junior staff is not unusual in any other agreement. One of the most significant differences is clearly the availability of overtime, for example. But that’s the same across Governments. Senior officers do not have access to overtime, junior officers do. It’s not necessarily a ground for organisational or operational distinction. There’s a difference only in the term of employment.

PN305

One of the most significant areas of concern is the use of on call and re-call and particularly the disproportionate burden that falls upon specialists in some craft groups as opposed to others. Administrative solutions have been proposed to that including rostering senior medical officers on at times when they are most likely to be re-called, and additionally other proposals, as I submitted earlier, were raised in the context of bargaining. This issue has been addressed. It’s already been discussed at length. There is no evidence that anything else would be gained by negotiating it further, but putting that to one side, it’s a term of condition of employment, it’s not an organisational or operational difference.

PN306

Finally, if I may turn to the question of reasonableness. ACT Health contends that making a scope order is not reasonable for four reasons: first, the attitude of other stakeholders, particularly ASMOF and the AMA, who continue to support this agreement, but also because of the clear evidence that Ms Wyborn represents only a minority of employees. The other senior medical officers are not involved in this action, and we would suggest that the inference that can be drawn from that is that they are not interested in prolonging this bargaining process. Secondly, we say regard must be had to the progress of bargaining to date, particularly the late application for a scope order. Thirdly, there is, very significantly, a lack of any evidence that this scope order is going to result in any change to the Territory’s position. Indeed the evidence is it’s not going to result in a change, and that all it’s going to do is prolong bargaining. The real likelihood is that the scope order will effectively mean this bargaining drags on in to the year.

PN307

Additionally, I draw your Honour’s attention to the case of Mermaid Marine Vessel Operation v Maritime Union of Australia [2014] FWCFB 1317 which is a recorded decision at 2014 IR 35. There some observations were made about the nature of scope orders. I’ll quote:

PN308

It must be remembered that there is limited availability to scope orders. An application for a scope order is not an available remedy to resolve any dispute about scope per se. To be made the bargaining representative must be concerned that bargaining is not proceeding efficiently and fairly –

PN309

and it goes on –

PN310

Viewed in its proper context a scope order is not a universal remedy for a dispute about scope, but rather it is a remedy for bargaining that is not proceeding efficiently or fairly because the bargaining representative’s view about employee coverage of a proposed agreement. Not every dispute about scope will have the effect of impeding bargaining in this way.

PN311

It is contended that these observations are particularly relevant here, to the extent that there is a dispute about scope here today, it is a dispute that has arisen out of the fact that a minority of employees do not like the outcome of a majority bargaining process. There’s no evidence that that minority of employees is in any way distinct from the majority of senior medical practitioners, and that applies as much to Mr Wilson with his eight radiologists, as it does to Ms Wyborn, with her collection of doctors from ICU and anaesthetics, and emergency. This agreement is over the fact that an outcome of this process is not liked by the employees who have appointed Ms Wyborn and Mr Wilson. There is nothing about changing the scope that is going to resolve any of those concerns.

PN312

Finally, I’d submit the question is not simply whether a particular group of employees thinks they could get a better deal if they bargained by themselves. The question is what is going to promote the best outcome for all employees, and indeed the best outcome for the enterprise as a whole. The authority for that is the case of APT and AWU [2015] FWC 699 at 73. In our submission, the best interest for everybody, for ACT Health certainly, for the juniors, but also for the majority of senior practitioners, who are not involved in this process, is to bring these negotiations to an end and get a new agreement in place. The only way to do that, at the moment, is to put the agreed proposed agreement to a vote. If the vote is against the proposed agreement, and we’d suggest that is highly unlikely, but if it is, the parties can deal with the ramifications then. All that ACT Health is asking for is an opportunity to see what will happen, and to put the agreement back to the vote.

PN313

In summary, therefore, our submission is that both the applications before the Commission must fail. Neither is likely to promote fair bargaining. Even if one could say that there has been some degree of unfairness to the senior medical officers or to the radiation oncologists, there could be no possible basis for concluding that starting the process again with a new agreement and a new scope order is going to deal with that efficiently. Both groups of employees nominated have failed to show any reasonable degree of geographic operational or organisational distinction. Both scope orders will only contribute to further delay in this round, and indeed in future rounds. Quite simply put, the applications are brought too late in the process, and the granting of the orders now would be simply unreasonable. Unless I can assist the Commission further, those are my submissions.

PN314

THE DEPUTY PRESIDENT: Thank you, Ms Robinson.

PN315

MR CHIN: Sorry, your Honour. Can I just quickly reply?

PN316

THE DEPUTY PRESIDENT: I was going to give Mr Wilson the honours.

PN317

MR WILSON: Your Honour, I promise you I won’t be long. I just wanted to summarise the possibilities which I think came out, with respect, in Mr Chin’s submissions. That is, the possibilities as to scope: possibility one, is the scope of the agreement currently proposed, is everybody except the radiation oncologists. Possibility two is everybody, and possibility three, is JMOs only. Ms Robinson would perhaps be pleased to hear that I’m with her on just about everything. I think that it will be more efficient if the SMPs and JMOs are joined together for the reasons all these streams and the confusing things we’ve heard. If you contrast that with just having the third possibility, the JMOs, you, perhaps, your Honour, have apprehended that’s what going to happen is you’re going to have all these opposing camps that Ms Robinson – and streams and goodness knows what, deciding what to do with the people who aren’t JMOs.

PN318

I can perhaps anticipate that you will anticipate that that’s going to bring a raft of whatever number of planks of section 236 majority support determination applications, and it’s going to be terribly inefficient, and, leaving aside fairness. But, if you go with mine you are going to – Ms Robinson gets everything that she wants, they don’t get very much, and she will, I hope, agree with me, with respect, that none of the streams and the various bargaining people and so on and so forth are going to be at the table with what is left of mine, except humble me and her, and those that she represents. Why I say that you should do that is that my submission is that it has been unfair for those I represent. We’ve been ganged up. We are the Kerrigans. It will remove the possibility, as I’ve submitted to you, of allowing jealousy, that is, “Oh, they get more money than us.” That’s this lot here. Or indifference, ignorance, self-interest on the raft of everybody else for not having proper regard for the sub-fund and having proper regard to what an increase in the facility fee will bring. Those issues will narrowly be focused – and my contention is that what we will be able to do for the first time is to be able to discuss those issues in the narrow focus that they have without troubling these people, or anybody else that ASMOF represents, in solving that particular problem.

PN319

I have submitted to you that the reason promulgated by the Territory for the increase in the funds is increasing infrastructure funds, and I’ve already – there’s no evidence to that. Also I picked up on something that Ms Robinson just said. She says there’s no conspiracy to remove the radiation oncology sub-fund into the main fund. Well, that’s not exactly true. You’ll recall that when I sought production of certain documents, I asked what documents were relied upon for determining if there be an increase in the facility fee for the radiation oncology sub-fund, and the only thing that came back was the piece of paper, single half piece of paper that’s at page 16 of the documents that I tendered into evidence, where there’s a specific statement, this is the Territory’s own document:

PN320

These changes cause a reduction in radiation oncology private practice fund income but should not result in major changes to the current level of specialist bonus payments.

PN321

We agree with that. But then this little killer:

PN322

It is hoped that this would allow the radiation oncology PPTF to be amalgamated with the PPTF.

PN323

That’s contrary to the submission you’ve heard today. So, in summary, if you go with what I propose things happen efficiently and fairly for everybody. They’re not distracted by what those that I represent advocate for. You leave us and that happens efficiently because there’s only two people at the bargaining table. Nobody else represents the radiation oncologists except for me, and those on my left. So that’s all I wanted to say in reply.

PN324

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

PN325

MR CHIN: Thank you, your Honour. As to the relevant test of fairness and efficiency, Ms Robinson, can’t, as she seeks unfortunately to have her cake and eat it, took the relevant test, competing tests is either on Ryan C’s decision whether bargaining would be fair and efficient, that is, fair and efficient conjunctively promoted. The alternative is not that bargaining should be promoted such that it would be both, fairer and more effective. On the United Firefighters decision the formulation of the test is whether bargaining would be fairer or disjunctively more effective. So that the submission that Ms Robinson, at paragraph 35 of her written submissions, that it needs to be both, is incorrect. You either have a test that requires mere fairness and efficiency or you have a test that requires greater fairness or efficiency and the two ought not be conflated and, in my submission, the ACT Health conflates that too.

PN326

Moving on from that what’s the implication? We have two concessions from the ACT Health now; explicit: one, on either scenario, whether our scope order is granted or not, the matter will be put to the vote; the proposed agreement will be put to a vote; and secondly, it will be, more likely than not, approved. So, the implications of those concessions are now beyond doubt. If there is no scope order made, for which we contend the interests of senior medical practitioners, will be overborne by the majority, the vote will occur, and the agreement will be approved, and there will be no bargaining; no bargaining, whether good faith or otherwise. That’s not cured by the history of the negotiations and I’ll come back to that briefly.

PN327

If the scope order is made we know that the agreement will be passed. Junior medical officers’ interests will be best served because they will have an agreement relating and providing for benefits to them without further interference by the present impasse between senior practitioners and ACT Health. The submission is ACT Health is firm in their response to the claims that Ms Wyborn has made. That may be as may be currently. That does not detract from the statutory obligation of ACT Health to bargain in good faith on those issues, if the scope order is made. So that, on the competing scenarios, your Honour has the prospect of good faith bargaining between ACT Health and seniors on an agreement for them, on the one hand if the scope is made, on the other, no bargaining whatsoever. That prospect, the unfairness of that and the inefficiency of that scenario is not remedied, in my submission, by what’s gone before.

PN328

For the reasons I’ve already advanced, the fractured representation of senior medical practitioners, ASMOF – the common evidence is, and it’s in my written submissions, no opposition to the automatic cut off of SEAs, no opposition was made to that very, very critical and potentially adverse condition for senior medical practitioners. It’s not a question of being unhappy with the result, it’s a question of the fairness and efficiency that’s gone before.

PN329

Your Honour has all the evidence, all the minutes of all of the meetings of negotiations between ASMOF and ACT Health, and indeed between AMA and ACT Health. Your Honour will search in vain in those minutes, or search in vain for any reference to the automatic cut off of SEAs, a matter of critical importance to senior medical practitioners. Your Honour will have regard, in my submission, to Dr Avard’s evidence about the inadequate level of communication between ASMOF, despite her inquiries, and herself, about the issue of the enterprise agreement, the proposed agreement, including the issue about her SEA and SEAs generally. That evidence is that PN510 to 514.

PN330

The choice, in my submission, therefore is reasonably clear, your Honour. If the scope order is made your Honour will have the best interests of junior medical officers served and the prospect of good faith bargaining with senior medical practitioners on issues that were the subject of an inadequate and inefficient bargaining process to this point. If the scope order is not made there is so simply no bargaining. There is nothing to suggest that there will be equal efficiency of bargaining in that process. If the scope order is made the suggestion from Ms Robinson is well, we’ve suggested – previously you’ve had two separate bargaining streams, on our submission, you’ll only have one bargaining stream with senior practitioners.

PN331

Ms Robinson’s response is well, actually you’ll have four separate bargaining streams. Assuming junior medical officers will be involved, and then quickly the alternative was, well, if not now, not this agreement, then the next agreement. Well, I say two things to that: there will not be four separate bargaining streams, because, on Ms Robinson’s own concession, if the scope order is made, the agreement stands excluding senior practitioners will be voted on and will be approved. There will be no need for a separate bargaining process with junior medical officers. The prospect of four separate bargaining streams is simply a fiction, and if it transpires, that’s what is required in the next round. Your Honour is not concerned with that. Your Honour is concerned with what will happen to this proposed agreement.

PN332

In any event, we say, the prospect of four separate streams is misconceived. What you’ll have is a separate bargaining stream for a separate agreement with senior medical practitioners, a separate bargaining stream for junior medical practitioners through a separate agreement, and, as Professor Bowden conceded, adequate coordination between the two, even in the context of the separate agreements. Thank you, your Honour.

PN333

THE DEPUTY PRESIDENT: Thank you. I am going to reserve my decision. That won’t come as any surprise to any of you, and I’ll endeavour to get that decision finalised as quickly as I can, but it will take a few weeks. Clearly this is not a simple matter. The issues raised are quite contentious and clearly there is some divergence in terms of the authorities that are relied upon, so that will take some time. Nonetheless I wouldn’t mind just briefly going into conference to get a (indistinct) in terms of where things are at, and I know, Mr Wilson, you don’t wish to proceed ‑ ‑ ‑

PN334

MR WILSON: I don’t think that I need to trouble you with my presence for that.

PN335

THE DEPUTY PRESIDENT: That’s fine. So if people just want to take a five minute break just to freshen up and then we can come back here and it won’t be more than 10 minutes I don’t know just how long that conference will take, so we’ll take five or 10.

ADJOURNED INDEFINITELY [1.55 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C11 LIST OF SEVEN ADDITIONAL INSTRUMENTS OF APPOINTMENT PN9

EXHIBIT #C12 LIST OF 10 ADDITIONAL INSTRUMENTS OF APPOINTMENTS PN10

EXHIBIT #R4 STATEMENT OF MR RUSSELL NOUD DATED 04/03/2015 PN16

Fair Work Commission Transcripts

B2014/1133, Transcript of Proceedings [2015] FWCTrans 239 (22 April 2015)