C2015/7416, Transcript of Proceedings [2015] FWCTrans 725 (24 December 2015)

JUSTICE ROSS, PRESIDENT

C2015/7416

s.739 - Application to deal with a dispute

Australian Paramedics Association of Victoria

and

Ambulance Victoria

(C2015/7416)

Ambulance Victoria Enterprise Agreement 2015

Sydney

1.06 PM, THURSDAY, 10 DECEMBER 2015

PN1

JUSTICE ROSS: Can I have the appearances please?

PN2

MS C SERPALL: It's Serpall, initial C. I seek permission to appear on behalf of APA Vic.

PN3

JUSTICE ROSS: Thank you Ms Serpall.

PN4

MR W FRIEND: Your Honour, I seek permission to appear on behalf of United Voice.

PN5

JUSTICE ROSS: Thank you Mr Friend.

PN6

MR J SNADEN: If your Honour pleases, my name's Snaden and I seek permission to appear on behalf of Ambulance Victoria.

PN7

JUSTICE ROSS: Thank you. Any objection to the various - is there anybody else? No? Is there any objection to the various applications for permission? Do I take that it's put on the basis that having regard to the complexity of the matter it would be more efficiently dealt with if permission were granted.

PN8

MS SERPALL: Certainly on behalf of APA Vic.

PN9

JUSTICE ROSS: Okay. Same position with everybody else?

PN10

MR FRIEND: Yes.

PN11

MR SNADEN: All right.

PN12

JUSTICE ROSS: Permission is granted on that basis. I think there are two purposes really for bringing the matter on. You might recall on the last occasion we had received from Ms Serpall's clients some correspondence about their desire to be involved in the proceedings and I think there were to be some discussions with United Voice about that issue and with Ambulance Victoria.

PN13

In particular about what was the nature of the involvement that was envisaged? So there was that issue. There was also the question of - I've got the proposed consent directions and I just wanted to get an update on where you were with the agreed facts document. But I'm in your hands as to which matter you'd prefer to deal with first. Any preference?

PN14

MS SERPALL: To the extent that perhaps it might be of assistance if I can indicate the involvement that is sought by APA Victoria. Firstly, it seeks to be formally identified as a party in these proceedings and looking at the EBA, it certainly specifically contemplates the previous name of the now APA Vic being NSPA at clauses 2.3, 3, 3.2, 3.4 and 4.1. NSPA is defined as a party for the purpose of the paramedic work value case. Firstly, that's what's sought by my client.

PN15

I have had the benefit of being provided with a copy of the document that I had which is headed draft order dated 27 November 2015. Clearly, both draft orders haven't contemplated involvement by my client and we certainly would seek to put on an outline of submissions, some witness statements and I haven't yet got a proper sense of what's contemplated in the site inspections but to the extent that any of the parties are attempting such inspections, my client also would wish to have representatives present at those work site inspections.

PN16

JUSTICE ROSS: Ms Serpall, I should just clarify that this isn't a decision that I will be making, that is whether you're given party status or joint etcetera. It's been put on for mention to see what the scope of the - whether there's a disagreement between the parties about whether you should be given the status that you seek and the involvement you seek.

PN17

If there is a dispute about that matter, then I'd be seeking to have a discussion with the parties about how to determine that matter, but on the face of it, it's something that would probably be determined on the basis of written submissions and on the papers. Ultimately it would be a matter for the Full Bench, not just for me alone.

PN18

Whilst I appreciate you outlining your position and the extent of the involvement, and that may inform the position of the other parties, I didn't want you to think that I'd be deciding it today.

PN19

MS SERPALL: Appreciate the indication, your Honour.

PN20

JUSTICE ROSS: Can I just ask when you say further witness statements, how many witnesses are you contemplating?

PN21

MS SERPALL: In terms of lay witnesses, there would be certainly one and two. It may be that there is an expert or two as well.

PN22

JUSTICE ROSS: About what?

PN23

MS SERPALL: About matters relating specifically to paramedics' health. So when I say experts, looking at psychiatric experts. One of the issues - I don't think there's any mystery about it, that in terms of the effect on paramedics in relation to the hours and the circumstances that are naturally a part of their working day, so to speak, issues such as post-traumatic stress disorder and the like, are matters that the expert reports we expect will contemplate and deal with.

PN24

JUSTICE ROSS: All right.

PN25

MS SERPALL: Can I indicate also that there have certainly been some prior contact between my instructors and those representatives for the other parties who are present. I'm not in a position to put anything formally about the views in relation to APA Vic becoming a party to these proceedings, but perhaps that's something we might be able to canvass here or afterwards.

PN26

JUSTICE ROSS: Certainly, okay, thank you.

PN27

MS SERPALL: Thank you, your Honour.

PN28

JUSTICE ROSS: Mr Friend, are you content to go next?

PN29

MR FRIEND: Yes I am, your Honour. The primary concern for United Voice is not to lose their hearing dates.

PN30

JUSTICE ROSS: No, well I can assure you that you won't be losing dates whatever happens in relation to this matter.

PN31

MR FRIEND: Good and not to extend the scope of the proceeding too much. The problem with APA coming in at this late stage is that - in what I've just heard now, tends to suggest that there might different and new issues that we may well have to send submissions, if it is a work venue case.

PN32

JUSTICE ROSS: Yes I must admit. I'm sorry Mr Friend, I didn't mean to interrupt you then. I must admit the notion of - I'm not expressing any concluded view on this, but the notion of the impact of workload, whilst it's an important health and safety issue, has not generally been a matter that's featured in work value assessments. The conditions under which the work is performed certainly is a relevant consideration, but generally work load issues haven't tended to feature prominently in these sorts of cases, and if it were to feature in this case, that may well move it off in a different direction.

PN33

MR FRIEND: Yes, your Honour, that's one of our concerns. Obviously, it can't be dealt with as your Honour has indicated today, but we would be very strongly opposed to any interference with the consent order and the dates that have been set for that. The parties are working very hard to comply with those orders to ensure that the case can proceed in an orderly fashion.

PN34

APAV have come in very late. They've been aware of the case for a long time. They've come in very late. We'll have to have to the debate, your Honour, but that's our position.

PN35

JUSTICE ROSS: Can I take it that Ambulance Victoria's got a similar sort of concern?

PN36

MR SNADEN: Yes, your Honour, very similar. It's good news to us that we won't be losing the hearing dates. So long as the existing directions, they're still draft as I understand it, we've been treating them as though they're not. So long as they remain, that's our primary concern.

PN37

JUSTICE ROSS: All right. If I can give you an indication as to how I intend to deal with it and then invite any comments from any party. I will issue the orders that have been submitted as directions. I'll confer with my colleagues on the bench in relation to that. There'll be liberty to apply in relation to the directions, so it not intended to determine the question of the Association's involvement in the proceedings, but it would give the parties some greater certainty as to the time frames and the hearing dates. That would be the first step.

PN38

The second is that it does seem to me that, Ms Serpall, if I can put it to you this way, and this is something that I think is, at this point, probably best done by some further discussion between your client and the other interests in the proceedings. But if I can, without wanting to verbal Mr Friend or Ambulance Victoria, reading between the lines, if their position is going to depend on the extent to which your involvement runs the risk of extending these proceedings, or shooting them in a different direction. I think your client needs to come to a view fairly quickly about what it's intending to put and how that can be accommodated within the existing directions.

PN39

I think if you can come to a position where what you're intending to be put can be accommodated within the case processing to date and within the time frames, then that will go a significant way to negating any opposition from any other party for your client's involvement.

PN40

MS SERPALL: Yes, your Honour.

PN41

JUSTICE ROSS: I would prefer that you had those discussions and by making that observation I'm not by any stretch seeking to commit United Voice or Ambulance Victoria to that path, it does seem to me that they need a bit more information from your client about the impact. You've heard their concern.

PN42

For what it's worth, I share their concern. We've got these dates, this has been a long difficult process to get to this point. I have no intention of abandoning those dates. That might mean that if you can't reach an accommodation with the other parties, you want to run the proposition about your status in the case, and that Full Bench hears that. And in the event that they decide in your favour, that may mean some supplementary process later, but that's sort of the worst case scenario from a timetabling perspective. I would rather that it was sorted out between the parties once they have a better idea about the scope of what you want and that we do it broadly within the confines of the agreed programming.

PN43

Now the issue becomes, I think, time is of the essence in relation to this matter. I think you really need to clarify or get your client to clarify precisely what it is how many witnesses etcetera and the nature of the case and then have the discussion, well I suppose particularly with United Voice because I imagine any witnesses you call will be called in that same broad common cause. But also with Ambulance Victoria, if what you're intending to do is upset the current programming.

PN44

We need to get some clarity around this issue reasonably quickly. I'd suggest that you commence those discussions immediately. I can either, I think probably the safest course I'll list the matter for further mention at 1 o'clock next Thursday and get the report back on where you're up to. Either then you'll be in broadly by agreement and we'll know what you're in doing, or you won't have an agreement and I'll issue directions for how we might resolve it.

PN45

MS SERPALL: Sorry, your Honour, I have a difficulty with that time. I'm in a Royal Commission into child sexual abuse and that's when I expect to be cross-examining George Pell.

PN46

JUSTICE ROSS: Would 8.30 that day suit you, in the morning?

PN47

MS SERPALL: Yes if that's available, thank you.

PN48

JUSTICE ROSS: Yes, it certainly is. It's only going to be a 10 or 15 minute and look I'm more than content. What I might do is get my associate to contact each of you and we can do it by telephone and that will save you coming in and the rest of it, because it's only going to be a sort of 10 minute. You'll either have reached a position or not. If you haven't reached a position, then what I would expect is for there to have been some discussion between you about well, well what direction should I issue to resolve this issue.

PN49

But I think it's in the interests of all the parties to try and reach an agreement about this issue and reach an agreement that does not disturb or involve hearings outside the parameters that we've currently provided. If you can take that on board and let your client know that, then I'd be hopeful that there'll be a resolution and we'll wait and see.

PN50

MS SERPALL: Thank you, your Honour.

PN51

JUSTICE ROSS: I'll list the matter for 8.30 next Thursday by telephone. My chambers will be in touch with you just to get your numbers. Can Ambulance Victoria give me an update on where we are with the agreed statement. I think it was next week it was likely to come in. Is that right?

PN52

MR SNADEN: We might be a couple of days ahead, I think your Honour. By the end of this week we should be in a position to finalise from our perspective. I'm getting nods.

PN53

JUSTICE ROSS: All right. Thank you very much for that indication. Was there anything further?

PN54

MR SNADEN: No.

PN55

MR FRIEND: No, your Honour.

PN56

JUSTICE ROSS: Well thanks very much for your attendance and I'll talk to you at 8.30 next Thursday. I'll adjourn.

ADJOURNED INDEFINITELY [1.22 PM]