AG2015/5182, Transcript of Proceedings [2018] FWCTrans 66 (6 March 2018)

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PN323

THE COMMISSIONER: Do you know, Ms Bingham, it's 12 months since we were last together.

PN324

MS BINGHAM: I know. Almost to the day. Commissioner, I am not going to give you a broad opening or a long opening. The nature of the case is set out in the submissions and the submissions in reply that have been filed in this matter. I must say that the focus of this case for you is to determine whether there is an arrangement as between the ingoing contractor and the outgoing contractor at South West Healthcare pursuant to section 311(3) of the Fair Work Act.

PN325

You will see that the opening line deals with the term "arrangement" and then we come down to sub (3) of that provision, which is then the salient issue: the connection between the old employer and the new employer if, in accordance with an arrangement between, then if you go down, subsections (b) and (c) and (d) are relevant. What we say there is there was an arrangement as contemplated by section 311(3) for the purposes of a transfer of business. We then go into 318, which deals with the issues associated with synergy and transferring employees and those types of issues.

PN326

There is not a lot, in fact, there is a paucity of case law on this provision other than really in the unfair dismissal jurisdiction dealing with mainly periods of service. The Full Bench case which you should have regard to - and I am sure my learned friend will take you to it as well - is John Lucas Hotel Management Services T/A Work Square Pub v Hillie [2013] FWCFB 1198, a Bench of Drake SDP, Hamberger SDP and Bull C.

PN327

The consideration deals with a decision of Bissett C in a matter of Zabrdrac - excuse my pronunciation. At paragraph 19 the word "arrangement":

PN328

is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law.

PN329

Then the Bench does look at the issue as to moral obligation and those further issues, which I will take you to in the submissions, but for the Commission to bear that case in mind when hearing the evidence that will be given today.

PN330

The union, the HSU, has one witness, Mr Elliott. There are four witness statements of Mr Elliott, if I could run through them with you. The first witness statement has 15 exhibits and is dated 9 February 2016. We have some updates to exhibit 5, which is the annual report of Primary Health. Naturally, considering the age of Mr Elliott's witness statement, there have been new annual reports. That is the 2017 annual report.

PN331

THE COMMISSIONER: That is the update to number?

PN332

MS BINGHAM: Number 5, I think. Just to make sure - - -

PN333

THE COMMISSIONER: Of which statement? The big one?

PN334

MS BINGHAM: Yes.

PN335

THE COMMISSIONER: Sorry, technical term. Thank you.

PN336

MS BINGHAM: The next update is to PE-13. Since Mr Elliott filed this affidavit, there was a wage increase under the Healthscope Agreement on 01/07/2016, so that table has been updated to include the wage increase and the consequential changes in the percentage difference between the Dorevitch Agreement and the Healthscope Agreement for the various classifications of scientists under the agreement.

PN337

The second witness statement is actually called the "Additional Witness Statement of Paul Elliott". Paragraphs 1 to 11 of that statement are in regard to the issue associated with the documents that have been determined, but the material substantive to this case is under the heading "Histopathology" and it is paragraphs 12 to 14. That witness statement is dated 14 April.

PN338

Then there is the second witness statement of Paul Elliott dated 24 October 2017. That has two exhibits, PE-16 and 17, and they are emails, just to make sure you have got that one, and there is a third witness statement which was filed last week. It has eight annexures. There are some typographical errors in it, if I can just take the Commissioner to those typos. Paragraph 8, on the third line, after the word "Dorevitch", there is the word "scientists" which is superfluous and should be deleted. Paragraph 9, there is a phrase that starts on the fourth line "At the time". That should be deleted and the words "Prior to" inserted. Paragraph 17, on the third line, you will see a sentence commencing "The employment" and the word should be "offered" - ed - not "offer", and paragraph 26 is not in fact a paragraph.

PN339

THE COMMISSIONER: I worked that out when I read it, yes.

PN340

MS BINGHAM: Thank you.

PN341

THE COMMISSIONER: I got that, yes.

PN342

MS BINGHAM: They are the typographicals that I picked up with respect to that statement.

PN343

Both parties on Friday exchanged objections to each party's material. Commissioner, they are in writing - I can see you smiling at me. The general response that we have - I certainly can hand them up to you and you can deal with them in the usual manner - the response we have to the objections made to Mr Elliott's statement - the objections are mainly hearsay objections - the material is what the material is, this is the Commission, you can give the appropriate weight to the material that is provided to you, but, most importantly, the witnesses for the respondent Dorevitch have been able to answer the material that the objection has been raised to. So, we say you should just give it the appropriate weight.

PN344

Similarly, the objections that I make with respect to the affidavit material, and I understand Mr Moller is not being called, again it is generally hearsay issues, relevance and opinion - the usual things that you get in this jurisdiction. I will leave the matter in your capable hands as to how you want to deal with those objections, whether you want to deal with them before we actually start calling witnesses or whether you want to deal with them as and when the witnesses are called.

PN345

THE COMMISSIONER: How about I ask Mr Forbes on that question, if I may, Ms Bingham. Thank you. Mr Forbes, do you have a view?

PN346

MR FORBES: I do. Commissioner, can I hand up a copy of the respondent's list of objections.

PN347

THE COMMISSIONER: Is there one from the union as well?

PN348

MS BINGHAM: Yes.

PN349

THE COMMISSIONER: This is Monday morning, guys.

PN350

MR FORBES: Yes, it is. Can I indicate, you will see from the list of objections that we have filed, Commissioner, that from April 2016, my client has indicated that it objected to the evidence that had been filed in this matter. We have foreshadowed objections to the evidence to the first witness statement and the additional witness statement on 21 April 2016. In relation to Mr Elliott's second witness statement, we foreshadowed our objection in November 2017, and in relation to the most recent witness statement, which we didn't get until last Wednesday afternoon, I think, we have not had an opportunity to foreshadow those objections, but virtually the following day, I have informed my learned friend of it.

PN351

Commissioner, you know, we all know, that the Commission is not bound by the Rules of Evidence, but that does not mean the Commission doesn't have regard to them, and there is plenty of authority where a Full Bench has said the Commission ought be guided by the Rules of Evidence. There is a reason for that. The fact that the Commission is not bound by the Rules of Evidence does not mean that it can be a free for all.

PN352

What we say about the evidence from Mr Elliott is that it is almost entirely hearsay and in terms of the relevant matters that the Commission must take into account in this proceeding, Mr Elliott cannot give any probative first-hand evidence. Indeed, he doesn't attempt to. Everything he says in his statements is effectively what he says others have told him, those others being in the main unidentified persons who it is alleged fear retribution. No evidence whatever of that. Mr Elliott's evidence is simply not probative and there is no reason why the HSU has not called and does not propose to call direct evidence which it is perfectly capable of calling.

PN353

At the end of the day, we press our objections for the reasons that we have set out. If the Commission wishes to take the view that we should get on with it and those objections can be ruled upon later on in your decision, then we won't oppose that, but I wish to put as forcefully as I possibly can that this is, in my experience, quite an unusual matter where the evidence is so deep in hearsay that most of what Mr Elliott puts is virtually irrelevant.

PN354

I am content to leave it at that. My preference would be for the Commission to rule on the objection, but if the Commission takes the view that for the purposes of expediency, those rulings can come at a later stage, we will be content with that. But a plain reading, respectfully, of Mr Elliott's evidence discloses that he can't say anything about this case. I will address further in final submissions, depending upon how the Commission wishes to proceed.

PN355

THE COMMISSIONER: Thank you, Mr Forbes.

PN356

MS BINGHAM: Commissioner, it is not unusual for a union official to give evidence in the manner in which Mr Elliott has, that is, on the information provided to him by members. You are well familiar with these industrial players, you know how each of them conduct themselves and I will make no further comments in that regard. Needless to say, the members have provided the information to Mr Elliott. They don't wish to be identified, yet Mr Persano says he knows who they are in his affidavit.

PN357

THE COMMISSIONER: That was with respect to two, I think, wasn't it?

PN358

MS BINGHAM: Yes.

PN359

THE COMMISSIONER: The two on night shift.

PN360

MS BINGHAM: Yes.

PN361

THE COMMISSIONER: I am assuming that Mr Forbes takes issue with statements - paragraph 24, for example:

PN362

I was contacted on or around 15 June 2015 by HSU members employed by Healthscope in the SWA's pathology service. These members told me -

PN363

et cetera. I am assuming that that is also part of the objection.

PN364

MS BINGHAM: Again, it is not unusual evidence for a union official to give on the basis of the information he has been provided by his members.

PN365

THE COMMISSIONER: I think we need to get on with this because, as I observed deliberately, it's been 12 months.

PN366

MS BINGHAM: Two years. Two years since these proceedings were issued by the union.

PN367

THE COMMISSIONER: Correct. I was proposing, subject to hearing from both of you, to take the usual Commission approach to witness statements. Whether it be on behalf of the applicant or on behalf of the respondent, it actually doesn't matter. Rather than go through a line by line dissection of each other's witness statement in terms of hearsay or relevance or whatever, I was wondering whether the parties would be content for the Commission to apply the normal rules in terms of relevance and hearsay and submissions and, obviously, any decision I make is subject to appeal, and so if I have strayed and taken into account hearsay evidence or whatever when I shouldn't have, and wasn't planning to, you all have a Full Bench to access.

PN368

MS BINGHAM: Commissioner, I think giving the evidence the appropriate weight is the usual approach that the Commission takes with this and I am instructed that my client is certainly content for the usual approach to be adopted by the Commission in these circumstances. We do want to get on with it. In discussions with Mr Forbes, he has indicated, and I agree, that we should conclude the evidence today, which will allow both parties to provide you with submissions tomorrow.

PN369

THE COMMISSIONER: Mr Forbes?

PN370

MR FORBES: Just in response, I am content with the Commission's ruling or approach in relation to that, save that I would ask that the Commission, in assessing weight, take into account the evidentiary objections that we have formally raised.

PN371

THE COMMISSIONER: Yes.

PN372

MR FORBES: Can I just indicate also that having now regard to the evidence that will be permitted, at least for the purposes of today, we have prepared and had confirmed this morning a further witness statement from Mr Persano which responds to matters which arose from the statement filed last week, and that's the best we could do, to get it together today. I am only just giving it to my learned friend now because we needed to know what evidence was going to be permitted today. If my friend needs a few moments to read it - - -

PN373

MS BINGHAM: I was about to say, if I could be given 10 minutes to get some instructions and read the material?

PN374

THE COMMISSIONER: Of course.

PN375

MS BINGHAM: I don't know whether this affects - Mr Forbes did indicate that one of his witnesses may have difficulty being here after 1 o'clock and she, Ms Bracko, may need to be called tomorrow. My instructions are that we don't object to that course, so if it's the situation based on having the matter stood down for a while and then Mr Elliott giving his evidence causes Ms Bracko's evidence to be delayed where she may be here after 1 o'clock, I am content to have Ms Bracko called on Tuesday morning, first thing, if that assists my opponent.

PN376

THE COMMISSIONER: I am in the hands of the parties. There are two days allocated. This is my day job.

PN377

MR FORBES: Just to explain, Ms Bracko, you might recall, is a new mother.

PN378

THE COMMISSIONER: I do.

PN379

MR FORBES: She has a very young child. We have arranged for her to come in this morning. My hope is that she can be heard and dealt with before 1 o'clock. If there is any risk that that's not the case, then we will tell her to come back tomorrow.

PN380

THE COMMISSIONER: Cool, okay.

PN381

MS BINGHAM: I have no issue with that.

PN382

THE COMMISSIONER: Is that okay, Ms Bingham?

PN383

MS BINGHAM: No issue with that whatsoever.

PN384

THE COMMISSIONER: Okay.

PN385

MS BINGHAM: I was unable to respond yesterday. I hadn't had an opportunity to speak to my client until this morning. Commissioner, if the matter is stood down today without Ms Bracko giving evidence, I have instructions to invite the Commission - it's always worth trying to conciliate this matter again. We have a few different players this time around. I am sure that the union and Dorevitch don't need their barristers interfering in a conciliation process, so Mr Forbes and I can go back to chambers and prepare submissions for you, but Mr Elliott did suggest that if we have an afternoon and you are available, it might be worthwhile exploring the issues again.

PN386

THE COMMISSIONER: Thank you, Ms Bingham. Mr Forbes, is that a suggestion you would like to take on notice?

PN387

MR FORBES: I am happy to take it on notice. It's probably best I get instructions before I answer it. I know what the answer is, but perhaps I should get instructions. I have to say this matter is - this is a legal case now. There is a legal matter to be determined by the tribunal and I don't think anything is served by conciliation, but - - -

PN388

THE COMMISSIONER: When the dispute is about legal issues and rights, the ability for the Commission to mediate or conciliate a settlement depends basically on both parties being comfortable to put to one side the legal issue and to find an industrial settlement.

PN389

MR FORBES: I understand.

PN390

THE COMMISSIONER: In my experience, sometimes that's possible and sometimes it's not. That is how I see it.

PN391

MR FORBES: I understand, Commissioner.

PN392

THE COMMISSIONER: Mr Forbes, will you get back about that later?

PN393

MR FORBES: Yes, I am happy to.

PN394

THE COMMISSIONER: All right. May I do a couple of things? I am assuming, Ms Bingham, that you would like to call Mr Elliott. Is that the next thing you would like to do?

PN395

MS BINGHAM: I should read Mr Persano's additional statement.

PN396

THE COMMISSIONER: Before, of course.

PN397

MS BINGHAM: Get some instructions from Mr Elliott.

PN398

THE COMMISSIONER: Of course.

PN399

MS BINGHAM: We may have to make some telephone calls.

PN400

THE COMMISSIONER: Yes.

PN401

MS BINGHAM: And then I will call Mr Elliott, he will simply adopt his four statements and he's then all Mr Forbes'.

PN402

THE COMMISSIONER: All right. When would it be most suitable to do the admin side of this, which is mark both submissions from the HSU and the respondent's list of objections and the applicant's? Do you want to do that now before the break?

PN403

MS BINGHAM: We might as well do all of that now and get the administration out of the way.

PN404

THE COMMISSIONER: Cool.

PN405

MS BINGHAM: There is an outline of submissions of the applicant and a reply submission of the applicant.

PN406

THE COMMISSIONER: Mr Forbes, is there any objection to the outline of submissions and the outline of submissions in reply being marked as respective exhibits?

PN407

MR FORBES: No, Commissioner.

PN408

THE COMMISSIONER: Have you got both, Mr Forbes? The reply came in on 11 April 2016.

PN409

MR FORBES: Thank you.

PN410

THE COMMISSIONER: And the outline is 11 February 2016. Do you have both those, Mr Forbes?

PN411

MR FORBES: Yes, I do.

PN412

THE COMMISSIONER: I shall mark the outline of submissions from the HSU dated 11 February 2016 as exhibit A1.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS FROM THE HSU DATED 11/02/2016

PN413

THE COMMISSIONER: And the outline of submissions in reply from the Health Services Union filed on 11 April 2016 as exhibit A2.

EXHIBIT #A2 OUTLINE OF SUBMISSIONS IN REPLY FROM THE HSU FILED ON 11/04/2016

PN414

THE COMMISSIONER: Would both parties like their respective list of evidentiary objections marked as exhibits?

PN415

MS BINGHAM: Yes, Commissioner.

PN416

MR FORBES: Yes, please.

PN417

THE COMMISSIONER: All right. I am assuming nobody is objecting to the other's?

PN418

MS BINGHAM: No.

PN419

THE COMMISSIONER: All right. I shall mark the objections list from the Health Services Union that was handed up today as exhibit A3. That is headed "Objections" and then "Further Witness Statement of Domenic Persano".

EXHIBIT #A3 OBJECTIONS LIST FROM THE HSU DATED 19/02/2018

PN420

THE COMMISSIONER: For the respondent is the respondent's list of evidentiary objections dated 16 February 2018 and that will be exhibit R1.

EXHIBIT #R1 RESPONDENT'S LIST OF EVIDENTIARY OBJECTIONS DATED 16/02/2018

PN421

THE COMMISSIONER: I think that's all prior to Mr Elliott's witness statements, which obviously, Ms Bingham, I assume you will tender through Mr Elliott?

PN422

MS BINGHAM: Yes, absolutely.

PN423

THE COMMISSIONER: And whatever other stuff. How long do you need an adjournment for?

PN424

MS BINGHAM: If you could give me 15 minutes, that will allow me to read the statement, speak to Mr Elliott, make any necessary telephone calls and deal with any objections that I might have to the new witness statement, which, if you are content, I will go back to chambers and put them in a list and hand them up to be annexed to A3.

PN425

THE COMMISSIONER: Yes, I understand that. Beautiful. We shall adjourn for 15 minutes. Thank you.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [10.36 AM]

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PN426

MS BINGHAM: Commissioner, your associate has indicated you would like a soft copy of the list of objections. Mr Forbes and I think we can deal with this by me forwarding Mr Forbes' email to me attaching his objections to Mr Elliott's material and he forwarding my objections to his material by way of email and all we need is an email address and we can effect that very quickly.

PN427

THE COMMISSIONER: Thank you, my associate will facilitate that convoluted approach.

PN428

MS BINGHAM: Thank you. Commissioner, I have indicated to Mr Forbes that there is one issue that has arisen with respect to the material that has just been provided to us. We can't contact the member that I need to speak to to seek clarification of one of the issues. In those circumstances - I don't know what the response is going to be - I have a suspicion of what it is - but Mr Persano may need to be recalled first thing tomorrow morning if I have a question to put to him. It may not be necessary. Once I get the information, I will be in a better position to assess that and I will let Mr Forbes know as soon as I am in that position.

PN429

THE COMMISSIONER: Please.

PN430

MS BINGHAM: Commissioner, the union calls Paul Elliott to give evidence in this matter.

PN431

THE COMMISSIONER: Thank you.

PN432

MS BINGHAM: Commissioner, we have a set of additional witness statements which might assist your associate.

PN433

THE COMMISSIONER: Thank you.

PN434

MS BINGHAM: They don't include the further witness statement of Mr Persano that was provided today.

PN435

THE COMMISSIONER: Sure.

<PAUL ELLIOTT, AFFIRMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.00 AM]

EXAMINATION-IN-CHIEF BY MS BINGHAM牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.00 AM]

PN436

THE COMMISSIONER: Please have a seat, Mr Elliott, thank you?‑‑‑Thank you, Commissioner.

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PN437

MS BINGHAM: Your name is Paul Elliott?‑‑‑Yes, it is.

PN438

Your business address is Level 1, 62 Lygon Street, Carlton South in the State of Victoria?‑‑‑Yes, it is.

PN439

You are a trade union official?‑‑‑Yes, I am.

PN440

You are the Branch Secretary of the Health Services Union Victoria Number 4 Branch?‑‑‑Yes, I am.

PN441

And the Executive Officer of the Medical Scientists Association of Victoria?‑‑‑I am actually now the Secretary because since the witness statement was submitted, my title has changed.

PN442

Thank you. Mr Elliott, you have filed four witness statements in this proceeding?‑‑‑Yes, I have.

PN443

The first witness statement is dated 9 February 2016?‑‑‑Yes, it is.

PN444

And it consists of 60 paragraphs and 15 exhibits?‑‑‑That's correct, yes.

PN445

Do you adopt that witness statement as your evidence in these proceedings?‑‑‑I do.

PN446

I tender that, Commissioner.

PN447

THE COMMISSIONER: Mr Forbes, in relation to the objections, do I need to repeat any of that? Is it okay subject to those?

PN448

MR FORBES: Yes. I rely on R1 in relation to all the statements. I don't need to say more.

PN449

THE COMMISSIONER: Cool, thank you. I shall mark the witness statement of Paul Elliott dated 9 February 2016, together with 15 attachments, as exhibit A4.

EXHIBIT #A4 WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH 15 ATTACHMENTS DATED 09/02/2016

PN450

MS BINGHAM: The next witness statement that you have prepared for the purposes of these proceedings, Mr Elliott, is titled "Additional Witness Statement of Paul Elliott"; that's correct?‑‑‑That's correct.

PN451

It is dated 14 April 2016?‑‑‑That's correct.

PN452

It has three attachments to it?‑‑‑Yes, it has.

PN453

Do you adopt that statement as your evidence for the purpose of these proceedings?‑‑‑Yes, I do.

PN454

I tender that, Commissioner.

PN455

THE COMMISSIONER: Thank you, Ms Bingham. I shall mark the additional witness of Paul Elliott, together with three attachments. It is dated 14 April 2016 and it will be exhibit A5.

EXHIBIT #A5 ADDITIONAL WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH THREE ATTACHMENTS DATED 14/04/2016

PN456

MS BINGHAM: The next witness statement that you prepared for the purpose of these proceedings, Mr Elliott, is titled "Second Witness Statement of Paul Elliott"?‑‑‑Yes, it is.

PN457

It consists of four paragraphs and two annexures?‑‑‑That's correct.

PN458

PE-16 and PE-17?‑‑‑That's correct.

PN459

Do you adopt that second witness statement as your evidence in these proceedings?‑‑‑Yes, I do.

PN460

I tender that, Commissioner.

PN461

THE COMMISSIONER: Thank you, Ms Bingham. I shall mark the second witness statement of Paul Elliott dated 24 October 2017, together with two annexures, as exhibit A6.

EXHIBIT #A6 SECOND WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH TWO ANNEXURES DATED 24/10/2017

PN462

MS BINGHAM: Finally, there is a witness statement titled "Third Witness Statement of Paul Elliott". You would have heard me, Mr Elliott, make some typographical amendments to that statement earlier today. That statement is dated 14 February 2018?‑‑‑Yes, it is.

PN463

It consists of 26 paragraphs?‑‑‑Yes.

PN464

And eight exhibits?‑‑‑That's correct, yes.

PN465

You adopt that witness statement as your evidence in these proceedings?‑‑‑Yes, I do.

PN466

I tender that.

PN467

THE COMMISSIONER: Thank you, Ms Bingham. I shall mark the third witness statement of Paul Elliott, together with eight exhibits. It is dated 14 February 2018 and is exhibit A7.

EXHIBIT #A7 THIRD WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH EIGHT EXHIBITS DATED 14/02/2018

PN468

MS BINGHAM: Thank you, Commissioner, no further questions for the witness.

PN469

THE COMMISSIONER: Thank you, Ms Bingham. Mr Forbes?

PN470

MR FORBES: Thank you.

CROSS-EXAMINATION BY MR FORBES牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.04 AM]

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PN471

MR FORBES: Mr Elliott, you would agree with me that the business of providing pathology services to hospitals is an intensely competitive one?‑‑‑I'm not sure that I do, and I don't mean to be argumentative with you, but there's a mixture of models of delivery of pathology services. For example, in a public pathology service which is delivered to a hospital, there is no competition. There are some contracted services, and in that field, certainly pathology companies claim there is a lot of competition between themselves, so I understand that to be the case with that amount of pathology work, yes.

PN472

The evidence in these proceedings is that Dorevitch - I am talking about the South West Healthcare contract - the evidence that Dorevitch did not purchase any business from Healthscope; you accept that, don't you?‑‑‑Again, I'm not sure what you mean by that exactly.

PN473

I am putting to you that Dorevitch did not purchase a business from Healthscope. Do you accept that or don't you?‑‑‑I understand there was no financial arrangement between Dorevitch and Healthscope with respect to the new contract that Dorevitch won, yes.

PN474

You are aware or you would accept, wouldn't you, that Dorevitch did not purchase any goodwill from Healthscope?‑‑‑?‑‑‑Mr Forbes, I don't want to be difficult, do you mean goodwill in the normal sense of the word when a business is sold and there's an element of goodwill as a component of that?

PN475

Yes, I do, yes?‑‑‑I do accept that, yes, in that context I do.

PN476

You accept, don't you, that there was no purchase of the premises upon which Dorevitch provides services to South West Healthcare?‑‑‑Yes, I understand that to be the case, yes.

PN477

You would accept, wouldn't you, that Dorevitch has entered into a commercial lease in relation to the Warrnambool and Camperdown laboratories?‑‑‑Yes.

PN478

You would accept, wouldn't you, that no employee of Healthscope was guaranteed employment with Dorevitch?‑‑‑No, I don't accept that it is as straightforward as your question suggests. Employees of Healthscope, particularly scientific staff, were always going to be, in my view, offered employment by Dorevitch for the purposes of that contract that they had just been award in South West Healthcare.

PN479

What is your evidence for that?‑‑‑The tender specifications which make it clear that South West Healthcare preferred that staff were offered ongoing employment in the contract changeover and, secondly, it's my view that Dorevitch had no choice but to employ the Healthscope staff, particularly scientific staff, to give it any chance of commencing the contract on 1 July 2015, given the very narrow timeframe between the awarding of the contract and the commencement of the contract, which was only about three weeks.

PN480

You have no evidence of any employee having been told that they were guaranteed employment, do you?‑‑‑No, but I was - sorry.

PN481

You are aware, aren't you, Mr Elliott, that employees of Healthscope could express interest to Dorevitch about wishing to work with Dorevitch?‑‑‑Yes.

PN482

And that some did?‑‑‑Yes.

PN483

And there were employees of Healthscope who did not express interest in working for Dorevitch?‑‑‑In terms of the scientific staff, very few, I think there were two.

PN484

So the answer is "Yes"?‑‑‑Yes.

PN485

That was their choice?‑‑‑Yes.

PN486

It is the case, isn't it, that there were employees of Healthscope that remained with Healthscope?‑‑‑They're the two that I referred to, Mr Forbes, yes.

PN487

It is the case, isn't it, that none of the couriers that were employed by Healthscope accepted employment with Dorevitch?‑‑‑I'm not aware of that because I don't - I had no involvement with couriers, they're not part of my union.

PN488

So you don't know one way or the other?‑‑‑No, I don't know.

PN489

You would accept the evidence that will be given, wouldn't you, that each person employed by Dorevitch received an offer of employment from Dorevitch?‑‑‑Yes.

PN490

That each employee engaged by Dorevitch was required to serve a probationary period?‑‑‑Yes, I recall that that's the case, yes.

PN491

That each employee engaged by Dorevitch had to undergo a police check?‑‑‑I believe that to be the case, yes.

PN492

You are aware, aren't you, that persons who accepted employment with Dorevitch - no, I withdraw that. You are aware, aren't you, that Dorevitch did not recognise any prior service with Healthscope for the purposes of calculating future entitlements?‑‑‑Yes.

PN493

You have no knowledge of any commercial relationship between Healthscope and Dorevitch in relation to the South West Healthcare contract?‑‑‑By that do you mean a contract between the two entities, that sort of commercial arrangement?

PN494

Are you aware of any commercial relationship at all between the two companies in relation to the South West Healthcare contract?‑‑‑Well, I think there's - I'm aware that there was an arrangement in place where during the period of the Dorevitch contract, some of Dorevitch work was completed by Healthscope or undertaken by Healthscope, performed by Healthscope. I understand from some of the witness statements from Mr Persano that Healthscope was paid for that work or billed - he describes it as "billed" for that work.

PN495

You say you are aware of an arrangement. What arrangement?‑‑‑The arrangement necessary to ensure that the commencement of the Dorevitch contract was, I think to use the expression that has been used by a number of people, seamless, so in other words, at midnight when the contract commenced, there needed to be an arrangement to ensure that that occurred without any disruption to testing and therefore to place any patient at risk.

PN496

It is your evidence, isn't it, Mr Elliott, that you just think there must have been an arrangement? You don't have any evidence of an arrangement other than your belief; that's the case, isn't it?‑‑‑Well, no, I think the evidence is, for starters, information that was given to the Commission as a result of the order, the recent order, in relation to the data from Healthscope setting out the testing that it performed after midnight on 30 June 2015. There is evidence, I believe, of that arrangement. That's the first thing I would say.

PN497

Can I take you then to your third witness statement, which is the witness statement dated 14 February?‑‑‑Yes.

PN498

That is a witness statement to which you have attached a number of exhibits which are identified as PEORD-1 through to 8?‑‑‑Yes.

PN499

As I understand your evidence, the tables that have been included in that document, which I think are predominantly PEORD-4 and PEORD-7, are documents that you have obtained pursuant to a notice to produce that was served on Healthscope?‑‑‑Yes.

PN500

Just pardon me one moment. You may be - no, I withdraw that. What you say is that those tables relate to testing activity which occurred on 1 July predominantly?‑‑‑Yes.

PN501

And 1 July 2015 was the day on which Dorevitch took on the contract?‑‑‑Yes, the contract had started on the 1st.

PN502

So the contract started at midnight on the 30th and Dorevitch effectively took over at that time?‑‑‑Yes.

PN503

Mr Persano will say that there were no Healthscope staff at the laboratory - no, I withdraw that. Do you know who was at the laboratory on the evening of 30 June 2015?‑‑‑I don't know all of the staff, but I know there were Healthscope staff in the laboratory on the evening of 30 June.

PN504

They were technicians who were rostered to perform pathology testing?‑‑‑I know of at least one scientist.

PN505

At least one scientist?‑‑‑Yes.

PN506

You weren't there?‑‑‑No, I wasn't.

PN507

You didn't know what was going on that night?‑‑‑Well, I've been informed what went on that night, but, at the time, no, I wasn't there and I had no direct communication with people on the night.

PN508

You knew, didn't you, that any technician who was working beyond midnight became an employee at midnight of Dorevitch; do you agree with that?‑‑‑Yes, I understood that any employee became an employee of Dorevitch at midnight.

PN509

Yes, that anybody who was there working that night became an employee of Dorevitch at midnight?‑‑‑Yes.

PN510

You have given some evidence that - you have attached those tables which you say indicate that a total of 499 tests were performed on Healthscope's equipment on 1 July?‑‑‑Yes.

PN511

Those tests were not, in fact, predominantly performed at Warrnambool, were they?‑‑‑Not that predominantly, but there was a mixture of locations where the tests were performed and it might be the majority were at Clayton, I'm not sure, but certainly there were tests performed at Warrnambool, yes.

PN512

If I just take you then to the table which you have attached to your statement and take you to PE-7?‑‑‑Yes.

PN513

I am not going to endeavour to count how many pages there are, but there's 15 or 20 pages?‑‑‑Yes.

PN514

You say that these are tests that were performed on 1 July 2015?‑‑‑Yes.

PN515

You derive that, don't you, from the fact that under the heading "Report Date" all of those tests are reported on 1 July?‑‑‑Yes, and I also derive that from the advice that was given to me by Healthscope, which is in correspondence which is exhibited to an earlier statement, I think, to this statement from Healthscope or ACL, as it's now known, which confirms that that's the case, yes.

PN516

Then there is a column "Testing Lab"; do you see that?‑‑‑I am going to it.

PN517

There's a column "Testing Lab"?‑‑‑Yes.

PN518

Do you have that?‑‑‑Yes.

PN519

And you will see beneath "Testing Lab" there is "GMM" and "WAR" and then there's "MEL"?‑‑‑Mm-hm.

PN520

You would agree with me, wouldn't you, that where it says "MEL", the testing laboratory was Melbourne?‑‑‑Yes.

PN521

Where a testing lab is identified as "ADE", would you accept from me that that is Adelaide?‑‑‑I haven't clarified that. It suggests that, but I don't know for certain that that's the case.

PN522

Where it says "GMM", where's that?‑‑‑Not sure.

PN523

So you don't know anything about this document really, do you?‑‑‑I know that it is a list of tests which were performed by Healthscope on Healthscope equipment in a number of different labs during the time of the Dorevitch contract. I know that much about it.

PN524

Yes, and it's the case, isn't it, that save for four patients, all of the tests were performed by Healthscope on specimens collected by Healthscope prior to 1 July?‑‑‑I think - I've not calculated the number of patients but I've calculated the number of tests and I understand that there were 13 tests which were requested on 1 July that were performed in the Warrnambool laboratory by Healthscope.

PN525

Yes. I just want to be clear?‑‑‑And I derive that, can I say, Mr Forbes, from the "Collection Date" column.

PN526

Mr Persano will say that PEORD-7 records in respect of specimens collected after midnight there were nine tests carried out on four patients; do you accept that?‑‑‑No, I don't, I believe he's incorrect in that.

PN527

All right?‑‑‑A straightforward search of the column "Collection Date" shows that there are 39 dates of 1 July.

PN528

Yes. You would accept, would you not, that in the vast majority of tests referred to in PEORD-7, the collection date of the specimen was prior to midnight on 30 June?‑‑‑Yes, I accept that.

PN529

Nearly all of them?‑‑‑I accept that the vast majority, yes.

PN530

Those specimens were collected by Healthscope?‑‑‑Mm-hm.

PN531

And it is the case, isn't it, that specimens are of different ages because many of them have been incubated?‑‑‑Depending on the nature of the test. Not all samples are incubated, but it is the case, I accept, that generally some pathology tests take longer than others and some pathology tests can take a number of days from the time of the sample being collected to the time that a test result is achieved, yes.

PN532

In respect of specimens that were collected prior to 1 July, those specimens, you say, some of them were then tested in Warrnambool after 1 July or on 1 July; yes?‑‑‑Yes.

PN533

They were tested on a Healthscope machine?‑‑‑Yes.

PN534

Healthscope didn't ask for that to be done, did it?‑‑‑Healthscope didn't ask for it to be done?

PN535

No. You have no evidence that Healthscope asked for that to be done by Dorevitch?‑‑‑No, I don't have - I've not said that at any time in my evidence at all, no.

PN536

Mr Persano will say Dorevitch tested those specimens because they thought it was the right thing to do?‑‑‑But Dorevitch didn't test those specimens, Healthscope did.

PN537

Who did?‑‑‑Healthscope.

PN538

Who?‑‑‑Scientists employed by Dorevitch using Healthscope equipment.

PN539

Dorevitch employees conducted the tests, didn't they?‑‑‑Yes, they did.

PN540

Yes?‑‑‑Scientists, yes.

PN541

They used a machine which had been left behind for that day by Healthscope?‑‑‑For the purpose of conducting the tests.

PN542

How do you know?‑‑‑Because the arrangement in a pathology laboratory in a transfer like this requires that there be continuity. It's not possible for an incoming contractor to, on a day, e.g. 30 June, set up an entire laboratory of equipment successfully and therefore be able to click the switch at midnight on 30 June. It's just simply not possible. This is a construct that Dorevitch put together for the purposes of running an argument that this agreement should apply. It's not possible and anyone in the pathology sector will tell you that. You can't do it, and certainly scientists are the first to tell you that. You can't do it. So the machines had to stay in place, the equipment had to stay in place to continue the testing to ensure that there was continuity of the delivery of the pathology work in the Warrnambool laboratory; otherwise there would have been a gap.

PN543

Mr Persano says that he decided to use the Healthscope equipment to finalise those tests on the outstanding Healthscope specimens?‑‑‑Of course, he had to, yes. There was no other way of doing it.

PN544

He says that Dorevitch could have discarded those and started again?‑‑‑Well, I doubt it. I mean, if they had have done that then it would have potentially compromised patient safety. It certainly would have comprised quality standards because one of the key quality standards in a pathology laboratory is turnaround time, so if they had to go back and resample patients, the turnaround time would have blown out the window, there would have been a quality issue with that and potentially a patient safety issue, depending on the condition of the patient. It was never an option to resample patients, I don't believe.

PN545

In respect of those tests that were conducted on a Healthscope machine on the morning of 1 July, who billed for those services?‑‑‑I assume - everyone said - it's not a question that I've asked but I understand from Mr Persano's evidence that Healthscope billed for that. I've got no reason to say that that's not the case.

PN546

You would expect then that Mr Persano says Dorevitch didn't obtain any financial benefit for having performed that service?‑‑‑For Healthscope having performed it?

PN547

No, for Dorevitch having performed that service?‑‑‑Dorevitch received no benefit for Healthscope performing the service?

PN548

Yes?‑‑‑No, I believe that - sorry, I don't dispute what Mr Persano has said in relation to that, but it is - that's a case of Healthscope receiving a financial benefit of performing Dorevitch work, clearly.

PN549

Mr Persano says that the decision to use a Healthscope machine was his and his alone. You can't contest that, can you?‑‑‑Well, I rely on the advice that was given to me by scientists who were working in the laboratory that

PN550

Healthscope had said to them in the lead-up to the contract changeover and at the time, "We are going to fully cooperate in the changeover, including the use of our equipment if that's necessary." So both companies were aware that Healthscope equipment might be used and certainly on 1 July, Healthscope was aware, management were aware that its equipment would be used to perform Dorevitch work and agreed that that would be okay. Scientists checked with them.

PN551

From midnight on 1 July, Healthscope didn't employ anybody, did they?‑‑‑No, they didn't.

PN552

Healthscope wasn't capable of issuing any directions or instructions to those employees after that time?‑‑‑That's true, yes, of course.

PN553

Pardon me a moment. You would agree with me, wouldn't you Mr Elliott, that pathology services provided to a hospital will provide specimen bottles to the hospital for the purposes of collecting specimens? Yes? And those bottles may find themselves up in wards or emergency department or all over the place?‑‑‑That's where they are located, yes.

PN554

You have given some evidence about blood cultures having been received in Healthscope bottles after 1 July?‑‑‑Yes.

PN555

Mr Persano will say that occurred because there were some Healthscope bottles up in the wards and they got used by staff and then sent down to pathology?‑‑‑I - - -

PN556

Do you accept that?‑‑‑I'm aware that he has said that. Do I accept it? Look, Mr Forbes, let me be frank, I think that's just a convenience for the purposes of the argument that you are asked to submit during this proceeding.

PN557

So you don't think he's telling the truth?‑‑‑I'm not saying that for a moment. I'm not going to - it's silly - I'm not going to accuse him of lying. I'm just saying that I think it suits the argument and the submissions that the company wants to run in these proceedings.

PN558

But you can't say that it's incorrect, can you?‑‑‑No, I'm not going to say it's incorrect, no.

PN559

Mr Persano says that in the early hours on 1 July, Dorevitch used a Healthscope instrument because an instrument that Dorevitch had brought on the site failed. Do you accept the accuracy of that?‑‑‑I understand that's the case, yes, that it wasn't operative. I think it's more a case of it wasn't successfully started, so they had problems starting it up and commissioning it rather than starting it and it failing. That is my understanding of that circumstance, Mr Forbes.

PN560

You understand, don't you, Mr Elliott, that by the end of the first day of the contract or thereabouts, Healthscope had taken all of its equipment away?‑‑‑Yes, I believe that's the case, yes.

PN561

And Dorevitch had moved all of its equipment in?‑‑‑Yes.

PN562

There is no suggestion on your part that Dorevitch continued to use any Healthscope equipment beyond those few instances in the early hours of 1 July?‑‑‑Well, beyond the information contained in PE-7 of my witness statement. That's 400-odd tests, yes.

PN563

But you accept from me that a very significant number of those tests were not performed at Warrnambool Hospital?‑‑‑No, but they were for Warrnambool patients and it was work which is part of the Warrnambool pathology services contract.

PN564

But it was performed by Healthscope?‑‑‑Yes, on their equipment, that's right.

PN565

But not at Warrnambool?‑‑‑Yes, for Warrnambool patients at the time of the Dorevitch contract. So, in other words, it was Dorevitch contract work performed by Healthscope on Healthscope equipment in a number of different laboratories including Warrnambool.

PN566

I just want to clarify this. You accept from me that PEORD-7, at least your understanding of it, is that that identifies testing on samples nearly all of which were collected prior to midnight on 30 June?‑‑‑Yes.

PN567

You accept that?‑‑‑There were a significant number collected prior to midnight on 30 June.

PN568

I put to you nearly all of them?‑‑‑Well, there was a large number, 39 of them were collected after midnight on 30 June, so make of that what you will, but they're the facts on the documents, yes.

PN569

Mr Persano will clarify that side of it?‑‑‑Yes.

PN570

All but, let's say, 39?‑‑‑Yes.

PN571

Those samples were therefore collected by Healthscope?‑‑‑Yes.

PN572

And those samples have then been tested on Healthscope equipment?‑‑‑Yes.

PN573

And those tests have been conducted at various places?‑‑‑Yes.

PN574

Some of which you would say are at Warrnambool?‑‑‑Yes.

PN575

The only ones that could have been conducted by Dorevitch on your scenario are the ones that were conducted at Warrnambool?‑‑‑I presume that would be the case.

PN576

Yes?‑‑‑I'm not certain but I presume that would be the case, yes.

PN577

As I understand the proposition you are advancing, and correct me if I am wrong, is that if Dorevitch conducted a test on a specimen that had been collected by Healthscope, then there must have been some arrangement or deal in place for Dorevitch to do that?‑‑‑I haven't argued that at all. I don't know the purpose of the question. That's not been my contention. My contention, if I might, is that the specimens - the work for the specimens that were collected prior to 30 June that were commenced by Healthscope is ultimately work - on midnight 30 June is ultimately work, the pathology service's work, under the contract which Dorevitch had commenced. So, although it started in the old contract, it was completed under the old contract and therefore work - sorry, the new contract - and therefore work of the new contract. That's my contention.

PN578

I see. But that's just your guess or opinion, isn't it? You've got no idea?‑‑‑Well, the contract started, so the pathology work which is being undertaken was in the new contract.

PN579

Mr Persano says that any specimen that was collected prior to midnight on 30 June is the property of Healthscope; do you accept that?‑‑‑I thought it was the property of the hospital, so I don't accept it. I'm not sure with that one. My understanding has always been in pathology services that ultimately the specimen belongs to the hospital.

PN580

You would accept then that it's not the property of Dorevitch?‑‑‑No. Sorry, my understanding of that is that it wouldn't be the property of Dorevitch, yes.

PN581

You give some evidence in your witness statements by annexing emails. I refer in particular to your second witness statement, the witness statement dated 24 October?‑‑‑I'm getting to it. Sorry, yes?

PN582

You have annexed two emails, one PE-16 and one PE-17?‑‑‑Yes.

PN583

You say in your statement that the members who sent those emails have fears of retaliation. What were you told?‑‑‑That they feared retribution.

PN584

For what?‑‑‑If their identities were known. For giving evidence here.

PN585

From whom?‑‑‑From management, Dorevitch management.

PN586

Who said that?‑‑‑Pardon?

PN587

Who told you that?‑‑‑The individuals concerned who are members of the MSAV.

PN588

What did they say?‑‑‑They said, "We fear retribution, that if we give evidence, we'll be identified and there'll be retribution."

PN589

Neither of them told you of any threat that had been made to them?‑‑‑No, no threat was made to them because they weren't known to the company, so, no.

PN590

Yes, thank you, there's nothing else.

PN591

THE COMMISSIONER: Thank you, Mr Forbes. Any re-examination, Ms Bingham?

PN592

MS BINGHAM: Just a small amount.

RE-EXAMINATION BY MS BINGHAM牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.40 AM]

PN593

MS BINGHAM: Mr Forbes asked you a question about goodwill, Mr Elliott, and you were cut off in your answer. He asked you about - you answered, "Goodwill in the business context." What other contexts were you dealing with or contemplating goodwill?‑‑‑The reputation of the pathology service within the hospital and within the community, and by that I mean the reputation the pathology service has for quality particularly.

PN594

You also answered a question about the guarantee of employment with respect to scientists, that is, you directed your answer to scientists. You were cut off after you accepted that there was no guarantee of employment. What were you going to say about the nature of the employment that was offered or otherwise guaranteed?‑‑‑There was no written guarantee, but it was made clear to me in discussions I had with South West Healthcare in the lead-up that South West Healthcare had made it clear that they expected that job offers would be made to existing staff and, secondly, my understanding is that when Dorevitch management met with Healthscope staff before the contract commenced, they had advised staff that a job offer would be made to them. So there was a lot being said about job offers being made. It wasn't so clear what the nature of the offer would be, the terms and conditions, but, yes.

***牋牋牋� PAUL ELLIOTT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 RXN MS BINGHAM

PN595

Mr Forbes asked you some questions about PEORD-7, which is the Healthscope data in shorthand. He asked you whether you knew under the heading "Testing MEL", what that meant, and then he asked you what "ADE" meant and you weren't sure but he put to you Adelaide and you weren't sure. What does "WAR" stand for?‑‑‑Warrnambool.

PN596

"WAR" in the "Testing" column is Warrnambool. "WAR" in the "Requesting" column?‑‑‑Is Warrnambool.

PN597

The changeover between the two contracts was one minute past 12 on 1 July. Was there anybody working prior to one minute past 12 on 30 June?‑‑‑Yes, my understanding is there were people working in the laboratory prior to midnight.

PN598

Who was their employer?‑‑‑Healthscope.

PN599

What machinery were they using or what equipment were they using?‑‑‑Healthscope equipment.

PN600

Do you know what the shifts are down at Warrnambool for night shift?‑‑‑Yes, it varies a bit, but the night shift is from either 10.30 pm or 11 pm, so commencing prior to midnight.

PN601

And it concludes?‑‑‑And seven and a-half hours or eight hours, depending.

PN602

On the starting time?‑‑‑Yes.

PN603

I have got no further questions.

PN604

THE COMMISSIONER: Thank you, Ms Bingham. Mr Elliott, thank you for your evidence, you may be released. You are released, you may step down.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.44 AM]

PN605

MS BINGHAM: Commissioner, that concludes the evidence for the union.

PN606

THE COMMISSIONER: Thank you, Ms Bingham. Mr Forbes?

PN607

MR FORBES: Thank you, Commissioner. Like my learned friend, I don't propose going into a deep opening about what the matter is about, but it is common ground between us, I think, that the threshold issue to be determined by the Commission is whether there has been a transfer of business between Healthscope and Dorevitch and determination of that question comes down to, in this particular matter, whether there is a connection between Healthscope and Dorevitch, and that question, whether there is a connection, is determined by whether there is an arrangement.

PN608

Just tracking through that, what the applicant seeks to do here is to enliven your power to make orders under section 318 or 319. Your power to make orders there turns on whether there is a transfer of business and to determine that, there must be a connection between the two companies and, as to whether there is a connection, the way the case is put is that that connection is evidenced by an arrangement.

PN609

Our case is that the application must fail because there is no evidence which points to the existence of an arrangement.

PN610

This will be a matter of further submission, but just to perhaps further confine the matter the Commission needs to determine, the application that you have before you is an application that was made back in 2015 and it seeks two orders. Do you have the application available, Commissioner? It was made on 5 October 2015.

PN611

THE COMMISSIONER: These are the orders set out in paragraph 4 of the application?

PN612

MR FORBES: Yes.

PN613

THE COMMISSIONER: Yes.

PN614

MR FORBES: We take it - we haven't been advised otherwise - that those are the two orders that are being sought in that proceeding. That is still the case? Yes. And the two orders that are being sought are, effectively, the first one being an order that the former agreement, the former enterprise agreement, applies to persons who were employed by Healthscope at 30 June but then became employees of Dorevitch within the three months after that. That is what order (1) is about. Order (2) is an order which is directed to non-transferring employees, so employees who joined subsequently. That's the gist of the orders.

PN615

It will be a matter of submission in due course, but can I indicate now that Order (1) is not an order that the Commission can make because it is in the nature of seeking a bare declaration of a legal right. It is an order that is not within the scope or species of orders that the Commission can made under 318 or 319 and, in effect, it is simply seeking a declaration that employees who were transferring employees are covered by the previous agreement. The Act says that. Section 313 of the Act says that's what happens, so if the order that is being sought is saying, "We want a declaration to that effect", that is not an order that the Commission can made. I won't further elaborate on that now, but, in simple terms, we say Order (1) can't be made.

PN616

Order (2) then is an order that non-transferring employees, if you like new employees, ought be subject to the Healthscope Enterprise Agreement and in order to determine that question, your task, Commissioner, is to have regard to two things: first of all, you need to find that there has been a transmission of business or transfer of business, so that's the threshold question you need to determine, and then you need to go on to consider the criteria in section 319(3). So, there's no right to an order, but if there has been a transmission of business and there are new employees, the Commission can make an order that they be covered after taking into account the seven or eight matters in 313(3), which include the views of the new employees, of which there is no evidence.

PN617

That, in broad terms, is the way in which we put our case that the Commission should not make the orders: first, that order (1) can't be made and, secondly, that order (2) ought not be made because there's no transmission of business anyway and, even if there is, the applicant doesn't get through the discretionary matters that need to be considered.

PN618

Unless there is anything else, Commissioner, that's the case we wish to put. We have two witnesses, Mr Domenic Persano and Ms Rebecca Bracko. I should put them the other way round because I propose calling Ms Bracko first. Subject to those words of introduction, Commissioner, we are ready to go.

PN619

THE COMMISSIONER: Mr Forbes, please may I mark your outline of respondent's submissions?

PN620

MR FORBES: Yes.

PN621

THE COMMISSIONER: I assume there is no objection, Ms Bingham?

PN622

MS BINGHAM: No.

PN623

THE COMMISSIONER: It is actually not your but it's dated 8 March 2016. Do you have it? Yes?

PN624

MR FORBES: Yes, Judge McNab's submissions I do have.

PN625

THE COMMISSIONER: Exactly. I mean "you" as in representing the respondent.

PN626

MR FORBES: Yes.

PN627

THE COMMISSIONER: Exhibit R2 for the outline of respondent's submissions dated 8 March 2016.

EXHIBIT #R2 OUTLINE OF RESPONDENT'S SUBMISSIONS DATED 08/03/2016

PN628

MR FORBES: Thank you.

PN629

THE COMMISSIONER: Would you like to call Ms Bracko now?

PN630

MR FORBES: Ms Bracko, thank you.

PN631

THE COMMISSIONER: Thank you.

<REBECCA SEKIC, SWORN牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.54 AM]

EXAMINATION-IN-CHIEF BY MR FORBES牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.54 AM]

PN632

THE COMMISSIONER: Please have a seat, Ms Bracko?‑‑‑Thank you.

PN633

MR FORBES: Thank you, Ms Bracko. Is your full name Rebecca Bracko?‑‑‑It's actually Rebecca Sekic now.

PN634

How do we spell the surname?‑‑‑S-e-k-i-c.

PN635

That is now your married name?‑‑‑Correct.

PN636

Ms Sekic, what is your current occupation?‑‑‑Dorevitch Human Resources Coordinator.

PN637

So where in paragraph 1 of your statement you have referred to yourself as "Human Resources Officer", has that now changed?‑‑‑Correct.

***牋牋牋� REBECCA SEKIC牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XN MR FORBES

PN638

So it should read "Human Resources Coordinator"?‑‑‑Correct.

PN639

For how long have you been in that position?‑‑‑In the title as "Coordinator"?

PN640

Yes?‑‑‑Just over a year.

PN641

For the purposes of these proceedings, Ms Sekic, have you prepared a witness statement?‑‑‑I have.

PN642

Is that witness statement 27 paragraphs long?‑‑‑Correct.

PN643

And do you refer to one attachment which is titled RB-1?‑‑‑Correct.

PN644

Save for the change to your surname and your current position, is that witness statement true and correct in every particular?‑‑‑Correct.

PN645

I tender the statement, Commissioner.

PN646

THE COMMISSIONER: Thank you, Mr Forbes. I am assuming we are going to be marking the one that was filed on 29 November with the stamp on it?

PN647

MR FORBES: That's correct, Commissioner.

PN648

THE COMMISSIONER: Thank you. I shall mark the witness statement of Rebecca Sekic, formerly Bracko, together with one attachment, and it was filed on 29 November 2017 and it is exhibit R3.

EXHIBIT #R3 WITNESS STATEMENT OF REBECCA SEKIC (FORMERLY BRACKO) TOGETHER WITH ONE ATTACHMENT DATED 29/11/2017

PN649

MR FORBES: Thank you. I have no further questions for Ms Sekic.

PN650

THE COMMISSIONER: Thank you. Ms Bingham?

PN651

MS BINGHAM: Thank you, Commissioner.

CROSS-EXAMINATION BY MS BINGHAM牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.57 AM]

PN652

MS BINGHAM: It may be of assistance for the purposes of cross-examination that Mr Elliott's witness statement be handed to Ms Sekic.

PN653

Ms Sekic, are you familiar with the Request for Tender document that was circulated and published with respect to the tender for the work at South West Healthcare?‑‑‑No, I wasn't.

PN654

When you say that Dorevitch tendered for the contract in paragraph 3 of your witness statement and:

PN655

As we were preparing for the tender, we gave consideration to the employees we needed to provide the service if we were successful in winning the tender.

PN656

You said that without having recourse to the tender documentation?‑‑‑The only side I was very familiar with was the employee side of the tender. Everything else about the tender and - - -

PN657

Had you ever looked at the Request for Tender document?‑‑‑No, I didn't.

PN658

So you were providing advice without recourse to the tender document?‑‑‑I was working very closely with Mr Persano, Domenic Persano, and he was passing the information to me. I wasn't actually working and looking at that side of things on my own. So, information was passed to me second-hand.

PN659

When you say at paragraph 5 you were involved in that process, that is, preparing the tender, it was a very limited involvement; that's correct, isn't it?‑‑‑You could call it limited, yes.

PN660

Were you told by Mr Persano that there were special conditions in the Request for Tender document?‑‑‑Not that I can recall, no.

PN661

Did he tell you that there was a requirement for a transition plan in the - - -?‑‑‑No.

PN662

Did he tell you that there was a special condition in the Request for Tender documents that stated as follows:

***牋牋牋� REBECCA SEKIC牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MS BINGHAM

PN663

In the interest of regional employment opportunities, South West Healthcare supports the retention of existing pathology and radiology services staff and local capabilities by the contractor where feasible.

PN664

Did he tell you that that was a special condition?‑‑‑Not that I recall, no.

PN665

In fact, did you have any involvement in the transition plan that was put into place?‑‑‑No.

PN666

You had no involvement whatsoever with that part of the transition plan that came under the heading of "Staffing"?‑‑‑No.

PN667

You knew nothing about how staffing was going to take place and what the timetable was associated with staffing the South West Healthcare contract?‑‑‑Sorry, would you mind repeating that?

PN668

So you knew nothing about the transition plan that Dorevitch was going to put into place regarding staffing if the tender was one for the South West Healthcare?‑‑‑I wasn't across anything in terms of transmission. I was just involved in new staff and appointing new staff, issuing contracts, so there was nothing of any relevance of transmission when I was involved. I was just there to support my team in terms of bringing on new employment.

PN669

When you say, "I was involved in the process", all you were involved in was issuing contracts; is that correct?‑‑‑I was involved in bringing on staff and supporting new employment and new recruits for our business, if that were to be the case and we were successful in the tender.

PN670

Were you aware that Mr Moller - he was the CEO at the time, wasn't he?‑‑‑Correct.

PN671

Mr Moller made statements that all Healthscope employees at Warrnambool and Camperdown campuses would be offered employment with Dorevitch. Are you aware that he made those statements?‑‑‑I was aware that we had discussions, as I quoted in my statement, with staff.

PN672

No, that's not the question I asked you, Ms Sekic. I asked you whether you were aware that Mr Moller had made those statements?‑‑‑I was unaware.

PN673

He didn't make those statements to you?‑‑‑No.

PN674

Can the witness be taken to PE-14.

PN675

THE COMMISSIONER: Ms Sekic, that is the first witness statement from Mr Elliott and it's attachment 14, PE-14, so it's the really big one. That's a technical term.

PN676

MS BINGHAM: It is an article from The Warrnambool Standard?‑‑‑Thank you.

PN677

Could you go to page 2, please, Ms Sekic?‑‑‑Sure.

PN678

You will see that there is a statement there from Mr Moller: "Mr Moller said his company operates"?‑‑‑Yes.

PN679

Then the next paragraph:

PN680

He said all staff at the existing service would be offered positions with Dorevitch.

PN681

It was Dorevitch's intention to offer employment to all the staff at Healthscope, wasn't it, at the hospital?‑‑‑If they were interested in becoming employees of Dorevitch.

PN682

I suggest to you that Mr Moller, the CEO, had determined that all staff were going to be offered employment with Dorevitch at South West Healthcare; that's correct, isn't it?‑‑‑If that's what it says.

PN683

I suggest to you that that statement is actually consistent with the obligations under the contract that was entered into between Dorevitch and South West Healthcare. Were you privy to that?‑‑‑No.

PN684

Do you know Mr Jassen of Healthscope?‑‑‑No.

PN685

You didn't have any discussions with anybody from Healthscope?‑‑‑No, absolutely no discussions from anyone in management from Healthscope, no.

PN686

So it wasn't your job to organise discussions regarding employment recruitment and Healthscope facilitating you and Mr Moller?‑‑‑No, I did, I organised the discussions. However, as I mentioned earlier on, I worked with Domenic and if there were any discussion with Healthscope, I can't speak on Domenic's behalf. He may have, he may not have. However, I personally didn't have any sort of discussions with any management or anyone in Healthscope.

PN687

So you didn't organise the times?‑‑‑I organised the times with the staff, if they were interested, to meet with myself and Domenic, as I mentioned.

PN688

Let's take a step back?‑‑‑Yes.

PN689

Were you in attendance at a meeting with Mr Moller and Mr Persano?‑‑‑I was, yes.

PN690

Prior to that meeting, who arranged that?‑‑‑So I arranged the timesheet and I forwarded it out to Domenic.

PN691

No, no?‑‑‑Who then - - -

PN692

Let's take a step back?‑‑‑Yes.

PN693

You attended a meeting with Mr Persano and Mr Moller at South West Healthcare at the labs; that's correct, isn't it?‑‑‑Mm-hm.

PN694

Who organised that meeting?‑‑‑Mr Persano did.

PN695

So you had no discussions with anybody at the labs to organise entry?‑‑‑Absolutely not.

PN696

Nothing? That was all in Mr Persano's bailiwick?‑‑‑Correct.

PN697

Ms Sekic, I suggest to you that the recruitment of the staff employed by Healthscope at the laboratories at Warrnambool and Camperdown was actually intrinsic to Dorevitch's ability to offer a seamless transition from one service to another; that's correct, isn't it?‑‑‑Sorry, could you repeat that?

PN698

I suggest to you the employment of the Healthscope staff by Dorevitch at the Warrnambool and Camperdown campuses, the laboratories there, was integral in Dorevitch being able to provide a seamless transition between the services; that's correct, isn't it?‑‑‑I'm not sure.

PN699

You're not sure? If there was no staff there, there wouldn't have been a seamless transition, would there? You couldn't have effected it?‑‑‑I'm not a hundred per cent sure, no, sorry.

PN700

Mr Persano didn't tell you anything about the requirements of the contract regarding personnel?‑‑‑No.

PN701

Didn't tell you anything about the requirements of the contract regarding training of those personnel?‑‑‑Not that I can recall or remember.

PN702

Didn't tell you anything about the requirement for personnel to be on particular committees?‑‑‑No.

PN703

Didn't tell you anything about the requirement to train staff on South West Healthcare policies? Mention any of that?‑‑‑No, not that I can remember.

PN704

I suggest to you that the requirements in the Request for Tender where contract personnel were required to provide professional support and the same staff that were Healthscope employees who became Dorevitch employees automatically rolled over and served on those committees. You have no reason to - - -

PN705

MR FORBES: Commissioner, the question is unfair. The witness has already said she wasn't familiar with the Request for Tender, so I don't know what purpose is served in having her speculate about what might or might not have been there.

PN706

MS BINGHAM: I won't press it, Commissioner.

PN707

There was no training by Dorevitch for the new Dorevitch employees on the South West Healthcare policies and procedures, was there?‑‑‑Not that I'm aware of.

PN708

I suggest to you that's because there didn't need to be; that's correct, isn't it?‑‑‑I'm not sure.

PN709

They didn't need training because they had been there for 10, 20 years in some cases; that's correct, isn't it?‑‑‑The scientists?

PN710

The scientists?‑‑‑I'm not sure again, I'm not familiar with the laboratory side of training.

PN711

So you're not familiar with the Request for Tender?‑‑‑Correct.

PN712

You're not familiar with the terms of the contract regarding staffing; you're not familiar with the transition plan that was put in place by Dorevitch; that's correct, isn't it?‑‑‑Correct, yes.

PN713

You are not familiar with any of the training or the procedures that were implemented in the changeover; that's correct, isn't it?‑‑‑The scientific training side of things?

PN714

Yes?‑‑‑No, I'm not familiar with that, it's not my area.

PN715

You are not familiar with any of the training on South West Healthcare's policies and procedures, are you? You would accept that Dorevitch inherited a fully-trained, professional medical scientist workforce from Healthscope, wouldn't you?‑‑‑Correct.

PN716

Having that experience and continuity of personnel was something that was of value to Dorevitch in providing the service to South West Healthcare?‑‑‑Correct, yes.

PN717

You would accept that the work that was being performed by the scientists was the same work that they had been performing under the Healthscope contract, wouldn't you?‑‑‑I wouldn't be able to answer that competently.

PN718

They were - - -?‑‑‑I'm unsure of that.

PN719

They were performing - a medical scientist grade 1 was performing the duties of a medical scientist grade 1?‑‑‑Yes, I would assume so.

PN720

And similarly up the classification scale. You would expect, wouldn't you, that they did that work for Healthscope on 30 June and when the changeover happened on 1 July, they performed that same duty and work?‑‑‑Perhaps.

PN721

The labs at Warrnambool and Camperdown were the same laboratories that Healthscope had operated from; is that correct?‑‑‑From what I understand, yes.

PN722

Dorevitch didn't bring its own benches or seats and pens and papers and things like that in, did they?‑‑‑I wouldn't have thought so, no.

PN723

The hospital database that the Dorevitch employees used on 1 July was the same as the hospital database that was used by the Healthscope employees on 30 June; that's correct, isn't it?‑‑‑I'm not familiar with that.

PN724

Do you know there were lockers in the laboratories for the staff?‑‑‑I'm not familiar with that either.

PN725

Of the employees that accepted employment with - sorry, are you aware that two scientists were redeployed by Healthscope out of the labs in Warrnambool and Camperdown?‑‑‑No, I don't recall that.

PN726

Those two employees, I would suggest to you, were the two employees that didn't accept work with Dorevitch?‑‑‑I'd assume so then, yes.

PN727

The laboratories at Camperdown and Warrnambool are two of the biggest employers in the area for medical scientists; that's correct, isn't it?‑‑‑Yes, from what I understand.

PN728

Apart from the small laboratory that Healthscope established after they were unsuccessful in retendering for the work at South West Healthcare, there's very little work for medical scientists in that south-western region of Victoria, isn't there?‑‑‑Perhaps.

PN729

You would accept that on the basis of the fact that there is limited work in the area for medical scientists that there was a situation where work and pay was better than no work at all?‑‑‑For some, yes; for others, no.

PN730

There are only, I think, two on Mr Elliott's evidence who were redeployed at Healthscope and a total of three persons that didn't accept work on your evidence. You would accept that the majority of the scientists felt that work and pay was better than no work at all? You will have to answer the question, Ms Bracko?‑‑‑Yes.

PN731

Nodding doesn't turn up on the transcript?‑‑‑Sorry.

PN732

Ms Bracko, you make some statements at paragraphs 19 to 22 of your witness statement and these are pertaining to the Dorevitch payroll system. It is under the heading "Agreement Coverage of Employees"?‑‑‑Mm-hm.

PN733

You say that the - I withdraw that. You would agree with me that the payroll system in place at Dorevitch is able to facilitate different rates of pay under different agreements; that's correct, isn't it?‑‑‑That's correct, yes.

PN734

In fact, there are different agreements applying throughout the whole of the Dorevitch network; that's correct, isn't it?‑‑‑That's correct, yes.

PN735

In fact, just here in Victoria, in the Western Health laboratories, there is the - if I can call it the Public Sector Enterprise Agreement applies to Dorevitch employees employed there; that's correct, isn't it?‑‑‑That's correct.

PN736

And the payroll system facilitates that detail, doesn't it?‑‑‑That is correct.

PN737

In Gippsland, for example, there are the Gippsland Pathology Agreements, they apply to the laboratories operated by Dorevitch?‑‑‑That is correct.

PN738

The payroll system accommodates the classifications and pay rates in the Gippsland Pathology Agreement; that's correct, isn't it?‑‑‑Yes, that's correct.

PN739

When somebody from, I'll say the Heidelberg lab, goes to Gippsland, under what agreement are they paid at?‑‑‑The Dorevitch Agreement.

PN740

So there's two agreements operating in place there?‑‑‑Yes.

PN741

When somebody from the Heidelberg laboratory goes to Western Health and to the laboratories there, what agreement do they get paid under?‑‑‑The Dorevitch Agreement.

PN742

And they work side by side with somebody who gets paid under the Public Sector Agreement, don't they?‑‑‑Correct.

PN743

There would be no difference if the employees at Warrnambool were being paid under the Healthscope Agreement - I withdraw that. There would be no issue with the payroll system if the employees at Warrnambool were paid pursuant to the Healthscope Agreement; that's correct, isn't it? It could be facilitated?‑‑‑I wouldn't say it's correct because it is something that does open - it's a complicated exercise and it is difficult for our payroll officers to manage, so if it's something that can be avoided, it's definitely something that doesn't need to be - we wouldn't - - -

PN744

Dorevitch is very happy to have employees on different pay rates work side by side with each other, aren't they?‑‑‑Sorry, would you repeat that?

PN745

Dorevitch is happy to have employees on different pay rates working side by side; that's correct, isn't it?‑‑‑I wouldn't call it "happy".

PN746

But you do it, don't you?‑‑‑We do have staff who work side by side who are on different pay rates, that is correct, yes.

PN747

You don't take the view that somebody who comes from Heidelberg and goes to Western Health, you don't pay them at the higher rate because they're now working at Western Health, you pay them at the lower rate on the 2004 agreement that expired in 2007, don't you?‑‑‑Yes, we do.

PN748

You have got no issue with that, you just continue to do it; that's correct, isn't it?‑‑‑We do that, yes, that's correct.

PN749

When you say:

PN750

If this application was granted, it would create unfairness as the relieving employee would be on different terms and conditions from others working on those sites.

PN751

That is an approach that Dorevitch internally takes; that's correct, isn't it?‑‑‑It's because there are staff who we have to pay because of a transition of business that are on those pay rates and we do that because we have to, so putting somebody on who's transitioning or working at Western Health from Dorevitch, we're not obliged or having to pay them under the Western Health Public Sector rate, so, yes, it does create unfairness, but it's something we're obliged to do.

PN752

You are obliged to do it; that's correct, isn't it?‑‑‑Yes.

PN753

You are obliged to pay the higher rates to those employees who have been transferred; that's correct, isn't it?‑‑‑Who have been transmissioned to business, yes.

PN754

Old language, but we all know what it means. Ms Sekic, Dorevitch could elect, if it so wished, to pay those employees that went from Heidelberg on relief at the higher rates, couldn't it?‑‑‑No, because they are covered by the Dorevitch Agreement.

PN755

They could unilaterally elect to pay the higher rates, couldn't they? There's nothing to stop Dorevitch?‑‑‑That is correct.

PN756

So it's Dorevitch's election to have the employees on different terms in circumstances where there is a transmission; that's correct, isn't it?‑‑‑Correct.

PN757

You are aware that the Healthscope Agreement was voted on by the medical scientists employed at the Camperdown and Warrnambool laboratories by Healthscope? You are aware that they had voted on that agreement?‑‑‑Yes, I am.

PN758

Refresh my memory: all but two on Mr Elliott's evidence and three on your evidence of those former Healthscope employees were employed by Dorevitch; that's correct, isn't it?‑‑‑Sorry, would you mind repeating that?

PN759

All but, on Mr Elliott's evidence, two of the former Healthscope scientist employees were employed by Dorevitch; your evidence was that all but three; that's correct, isn't it?‑‑‑That I'm aware of, yes.

PN760

Of those employees, those scientists that were employed by Dorevitch, did any of them vote on the Main Health Agreement?‑‑‑No, because they wouldn't have been employees of Dorevitch at the time.

PN761

But they did vote on the terms and conditions of the Healthscope Agreement; that's correct, isn't it?‑‑‑They were employees of Healthscope, so, yes.

PN762

So when you say, at paragraph 23 of your witness statement:

PN763

The Healthscope Agreement was negotiated by the Health Services Union with Healthscope in order to cover employees within that business. It does not relate to the business of Dorevitch.

PN764

You would accept Mr Elliott's evidence that the employees that you employed voted on those terms and conditions; that's correct, isn't it?‑‑‑At the time they were employed by Healthscope, that's correct.

PN765

Those were the terms and conditions that would apply at the Warrnambool laboratory and also at the Camperdown laboratory?‑‑‑Correct, while they were employed by Healthscope.

PN766

Excuse me, Commissioner, I just have to get some confirmation. Thank you, Commissioner.

PN767

Of course, you are aware and you accept that the Dorevitch Enterprise Agreement, the Main Health Agreement, passed its nominal expiry day in 2007?‑‑‑Yes, I'm aware of that.

PN768

So that's almost 11 years?‑‑‑Yes.

PN769

You would accept that - I withdraw that. Have you looked at the Healthscope Agreement and the Dorevitch Agreement by way of comparison?‑‑‑Briefly, yes.

PN770

You would accept that most of the conditions are commensurate, they have very similar conditions?‑‑‑Some are, some are not, from what I can recall. It's been a while since I looked at it.

PN771

Mr Elliott gives evidence that hours, shift work, rosters and all types of leave are almost identical between both the agreements; you would accept that?‑‑‑It may be. I can't recall it being exactly the same from memory, but it may in fact be, yes.

PN772

And that the wage rates are the biggest difference between the two agreements?‑‑‑That's correct.

PN773

You are aware that Dorevitch is in arbitration with respect to HWU collectors for an arbitrated agreement?‑‑‑All staff are, that's correct, other than scientists and techs.

PN774

MR FORBES: Commissioner, this cannot possibly be relevant to whether there was a transmission of business back in 2015.

PN775

MS BINGHAM: Actually it is, Commissioner, it addresses one of the issues associated with the fact raised by Ms Bracko about the fact that the agreement covers collectors, et cetera, other classifications other than medical scientists and technicians and seems to indicate that only the agreement would apply to the medical scientists in circumstances where Dorevitch has elected to pursue a separate agreement associated with the other classifications as a whole by way of an arbitrated outcome. So, the fact that the collectors, et cetera, will be extracted in any event out of the Main Health Agreement is an issue that Ms Bracko brought up as a live issue in these circumstances. Mr Elliott deals with it at paragraph 27 in response to paragraph 24 of Ms Bracko's statement. You are looking at me puzzled, Commissioner.

PN776

THE COMMISSIONER: Yes. Are you putting something that Mr Elliott had in his statement to Ms Bracko for her comment or are you leveraging off paragraph 24 - sorry, Ms Sekic.

PN777

MS BINGHAM: Paragraph 24, Ms Sekic, sorry, yes.

PN778

THE COMMISSIONER: Apologies.

PN779

MS BINGHAM: In paragraph 24, you make statements about the fact that the Main Health Agreement covers all employees?‑‑‑That's correct.

PN780

But Dorevitch, you are aware, are negotiating - not negotiating - - -

PN781

THE COMMISSIONER: I was about to say that stopped.

PN782

MS BINGHAM: Yes. It is currently before this Commission with respect to an arbitrated outcome after a termination of bargaining period?‑‑‑That's correct.

PN783

That is with respect to particular classifications of employees; that's correct, isn't it?‑‑‑That's correct.

PN784

That classification of employees do not include medical scientists?‑‑‑Correct.

PN785

So there will be - - -?‑‑‑Medical scientists and technicians.

PN786

So there will be, in any event, two separate agreements covering the employees in Dorevitch?‑‑‑That's correct.

PN787

Ms Sekic, have you had the opportunity to have a look at a table of comparison of the wage rates prepared by the union? It's exhibit P-13 to Mr Elliott's first affidavit.

PN788

THE COMMISSIONER: But that's been updated.

PN789

MS BINGHAM: It has been updated.

PN790

THE COMMISSIONER: Yes, this morning.

PN791

MS BINGHAM: I will just deal with the one that Ms Sekic more likely has actually seen.

PN792

That is a comparison. Have you seen that before?‑‑‑No.

PN793

So you weren't shown this for the purposes of preparing your witness statement?‑‑‑I've reviewed the rates but not this one in particular that was prepared by Mr Elliott.

PN794

If we look at the rates, if you just have a quick look, would you agree that the calculations here are indicative of the differences between the Healthscope and the Dorevitch Agreements?‑‑‑Yes.

PN795

I would suggest to you that - I withdraw that. No further questions, Commissioner.

PN796

THE COMMISSIONER: Thank you, Ms Bingham. Is there any re-examination, Mr Forbes?

PN797

MR FORBES: No, Commissioner.

PN798

THE COMMISSIONER: Thank you. Ms Sekic, thank you for your evidence, you are released, you are free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.35 PM]

PN799

MS BINGHAM: We are just having a discussion whether we should go straight on. I have got no issues with it, Commissioner. It might be a circumstance that we might sit a bit past one to get Mr Persano's cross-examination done and then we can all go back to chambers and write submissions.

PN800

THE COMMISSIONER: And write a decision in my case.

PN801

MR FORBES: I am sure we will each help you with that task.

PN802

THE COMMISSIONER: You have both been extremely helpful in terms of the forthcoming one. Could you just wait a quick moment, please. Mr Persano?

PN803

MR FORBES: Yes, please, Mr Persano.

PN804

THE COMMISSIONER: Just double-checking, as I understand it, I don't have the additional second one?

PN805

MR FORBES: No, I've got that.

PN806

THE COMMISSIONER: But that's okay. I will need an associate for that. But, as I understand it, the further witness statement of Mr Persano completely replaces the one that was filed; is that correct?

PN807

MR FORBES: That's right, Commissioner. I will ask Mr Persano to adopt what's called the "Further Witness Statement".

PN808

THE COMMISSIONER: Yes.

PN809

MR FORBES: We won't be relying on anything that has been filed prior to that.

PN810

THE COMMISSIONER: Prior to that. Good, thank you, I just wanted to double-check, thank you.

<DOMENIC PERSANO, SWORN牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.38 PM]

EXAMINATION-IN-CHIEF BY MR FORBES牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.38 PM]

***牋牋牋� DOMENIC PERSANO牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XN MR FORBES

PN811

THE COMMISSIONER: Please have a seat, Mr Persano, thank you.

PN812

MR FORBES: Mr Persano, could you please repeat your full name?‑‑‑Domenic Persano.

PN813

And your address?‑‑‑(Address supplied)

PN814

What is your current occupation?‑‑‑Current occupation is Regional Business Manager.

PN815

Who are you employed by?‑‑‑Dorevitch Pathology.

PN816

Mr Persano, for the purposes of these proceedings, have you prepared a witness statement which is titled "Further Witness Statement of Domenic Persano"?‑‑‑Correct.

PN817

Which is 53 paragraphs long?‑‑‑Correct.

PN818

Over 13 pages?‑‑‑Yes.

PN819

Do you exhibit to that witness statement three annexures which are marked DP-1, DP-2 and DP-2?‑‑‑Yes.

PN820

Mr Persano, are the contents of that witness statement true and correct?‑‑‑Yes.

PN821

I tender that statement, Commissioner. That's the further witness statement of Domenic Persano.

PN822

THE COMMISSIONER: I shall mark the further witness statement of Domenic Persano, which was filed on 17 November 2017, together with three annexures, as exhibit R4.

EXHIBIT #R4 FURTHER WITNESS STATEMENT OF DOMENIC PERSANO TOGETHER WITH THREE ANNEXURES FILED ON 17/11/2017

PN823

MR FORBES: Thank you, Commissioner.

PN824

Mr Persano, have you also prepared a later witness statement for these proceedings titled "Third Witness Statement of Domenic Persano"?‑‑‑That's correct.

PN825

Is that a witness statement that is dated today's date?‑‑‑That's correct.

PN826

Is that a witness statement of 10 paragraphs over four pages?‑‑‑Yes.

PN827

Are the contents of that witness statement true and correct?‑‑‑Yes.

PN828

I should hand a copy of the witness statement up, sorry, Commissioner.

PN829

MS BINGHAM: Commissioner, just to anticipate the fact that I will provide objections to this witness statement to you tomorrow.

PN830

THE COMMISSIONER: Yes.

PN831

MS BINGHAM: And that there may be issues that will require Mr Persano being recalled tomorrow morning, but I will let my learned friend know later this afternoon.

PN832

THE COMMISSIONER: Excellent, Ms Bingham. Is that okay, Mr Forbes?

PN833

MR FORBES: Yes, it is, thank you.

PN834

THE COMMISSIONER: All right.

PN835

MR FORBES: I seek to tender that additional witness statement, the third witness statement of Domenic Persano.

PN836

THE COMMISSIONER: Subject to the comments made by Ms Bingham, I shall mark the third witness statement of Domenic Persano, dated 19 February 2018, as exhibit R5.

EXHIBIT #R5 THIRD WITNESS STATEMENT OF DOMENIC PERSANO DATED 19/02/2018

PN837

MR FORBES: Thank you.

PN838

Mr Persano, you have given some evidence in your most recent statement in response to material filed by Mr Elliott regarding testing that was conducted on the morning of 1 July 2015. Are you able just to - sorry, were you there that day?‑‑‑Yes.

PN839

When were you there?‑‑‑On the 1st, a team of us arrived at around about six in the morning on 1 July.

PN840

Prior to that, when were you last there?‑‑‑We finished up the night before, which was actually the 1st again, around about 1 o'clock in the morning.

PN841

Who else was present?‑‑‑There was myself, our CEO at the time, Neville Moller, and the regional - western regional manager, Michael Phyland.

PN842

If I can just take you, please, to an attachment to Mr Elliott's witness statement which is identified as PEORD-7. Is there a copy of Mr Elliott's witness statement there, please? The associate will hand you a copy?‑‑‑Sure.

PN843

Hopefully you have in front of you a witness statement of Mr Elliott?‑‑‑Yes.

PN844

That is dated 14 February and attached to that there are a number of exhibits, one of which is marked PEORD-7?‑‑‑Yes, I've got a copy here actually of it.

PN845

Have you got your own copy of a document, a table?‑‑‑Yes.

PN846

Which has a number of columns, the first one being "Lab Number" and the last one being "Collection Method"?‑‑‑Yes.

PN847

MS BINGHAM: Can I have a look at it, if he's not using the one that is exhibited to the witness statement?

PN848

MR FORBES: Yes. Can I just have a look at the document you have got, please? Otherwise I will give him mine. I will give him mine.

PN849

THE COMMISSIONER: Mr Forbes, I am happy to provide mine.

PN850

MR FORBES: If your associate can find it.

PN851

THE ASSOCIATE: Attachment 7?

PN852

MR FORBES: Yes, please.

PN853

THE WITNESS: Thank you.

PN854

MR FORBES: I just want to direct your attention to that particular document, Mr Persano. You have seen that document before?‑‑‑I have.

PN855

When did you see that document?‑‑‑Friday afternoon, I think it was.

PN856

Last week?‑‑‑Last week.

PN857

Can you, just in your own words, explain what you understand to be contained in that document?‑‑‑So - - -

PN858

Can I ask you, in doing so, to explain the basis upon which you are able to express whatever opinion you are going to express?‑‑‑So we have a list of the laboratory numbers, which is a reference used for patient - each patient is given a laboratory number and within that laboratory number there can be one or more tests that are associated with that laboratory number. So, there's laboratory number on the left-hand side, there's what they would call a penal code, which is actually the test code that they would use within their own pathology practice.

PN859

What do the different letters in that column - - -?‑‑‑So the different letters mean the different tests, so different types of tests, so a CSF would be, well, pretty much a CSF, a BC would be a blood culture, a UMC would be a urine micro culture. So it's a code associated to a test that the pathology performs.

PN860

Thank you?‑‑‑The tie-break, I'm not sure what that is because it's their document not ours. "Referring doctor" would be the doctor that has referred the test - that's a code that they would use internally - again that's an internal code that they use within their practice.

PN861

Sorry, when you refer to "they", who are you referring to?‑‑‑Healthscope or ACL. Healthscope at the time, ACL at the moment.

PN862

Thank you?‑‑‑"Report doctor" is pretty much the same - usually the same code, or where the report will be delivered to. The report date is the date that it actually has been completed and delivered; the report time is the time of that date; the requesting lab is the code that they would use for each of their laboratories where the test has been initiated, so "WAR", I presume, means their Warrnambool laboratory. The testing lab is the lab where it's actually tested at, and you'll see a number of different codes there. From what I can gather from the information, "MEL" would mean the Melbourne laboratory where they would test it at the Melbourne laboratory. There's also an Adelaide code I saw in amongst the group of tests. "ADE" would be the Adelaide code. They have a large laboratory in the city of Adelaide. The collection date would be the date that the actual test has been collected and the collection time is the time that that is collected on that particular collection date. The requesting hospital is an internal code they would use for the type of hospital where the laboratory's at, and collection centre, I'm not a hundred per cent sure, but it would look like that's a code that they use internally for where it was actually collected. The collection methodology - collection method, again I'm not familiar with their codes, but that looks as though it might be "P" for public patient, or so, but I'm not a hundred per cent sure because it's not our document.

PN863

Thank you. This is said to be, and I think there's no argument, this is a Healthscope document. Where the report date is dated as 1 July 2015 and the testing lab is identified as WAR, what does that mean?‑‑‑That could mean a number of things. That could mean that - well, certainly the test has been collected prior to the changeover to us to do the contract, so anything with a date of 30/06 is what we would consider their period of testing or their period of collection, and then the report date of anything post the 30th, which would be the 1st, would mean the date that the test is actually completed. Some tests can take one day, two days, three days, four days, five days, so they can - there's that overlap period of when tests are actually collected prior to the handover of the contract and post when we're running the contract.

PN864

If we take, for example, a test that was performed on 1 July in respect of a specimen taken prior to that date, are you able to tell who performed the test?‑‑‑So the information shows a number of scenarios there. Some, and a lot of them, are tests that were collected prior to the 1st, on the 30th, and they were tested - requested by WAR, which is their laboratory there, they've used the stat code, and then the testing laboratory. If we look at the first one, for example, GMM, would indicate where it was actually tested. I believe that would be their molecular laboratory unit, their main facility in at Clayton.

PN865

WAR, the next one, would mean that a result has been reported using the test code of the laboratory that they previously had, and that could mean that they failed to do it within the timeframe when they had the contract and then they've just entered the results on the 1st, which is the period that we have got the contract, so the results have just come through on the next day. That's what that would mean, yes. And there's other ones where Adelaide, for example, would be the testing laboratory, Melbourne being the testing laboratory, and so forth.

PN866

MR FORBES: Yes. Are you able to assist the Commission with any observation about the equipment upon which these tests were conducted based on this material?‑‑‑So based on this material, the equipment that was used was - any test that says "Melbourne" testing would be on their equipment in the facility at Clayton; any testing that was performed at Adelaide would be on their equipment in Adelaide. It's a little bit unclear - where it says, for example, a blood culture collected at Warrnambool and then performed post the ending of the contract, they would count that as their equipment because it's been completed on their system, so that would be tested - initiated prior to the changeover and the result comes through two or three days later via an incubator and then it's entered into their system, Healthscope's system, and so that's why it would say testing laboratory Warrnambool.

PN867

Prior to midnight on 30 June, who would have performed that work in WAR?‑‑‑In WAR, so it would be the staff that we took over would perform some of that testing and some of it was performed, I guess, by their staff at Melbourne or Adelaide as well.

PN868

I have no further questions.

PN869

THE COMMISSIONER: Thank you, Mr Forbes. Ms Bingham?

PN870

MS BINGHAM: Thank you, Commissioner.

CROSS-EXAMINATION BY MS BINGHAM牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.54 PM]

PN871

MS BINGHAM: Mr Persano, you were the Regional Business Manager for Dorevitch Pathology at the time the tender was successful at South West Healthcare?‑‑‑Correct.

PN872

In your position as the Regional Business Manager, you became familiar with the Request for Tender document circulated by Health Purchasing Victoria?‑‑‑Yes.

PN873

Did you have any discussions with Ms Bracko, as she was then, regarding what was in the Request for Tender document?‑‑‑Yes.

***牋牋牋� DOMENIC PERSANO牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MS BINGHAM

PN874

What was the nature of those discussions?‑‑‑It was a long time ago, but essentially discussions would have been around staffing and staffing requirements.

PN875

Did you talk to her about any of the special conditions associated with the Request for Tender?‑‑‑I don't believe I understand what the special conditions are. If you can refresh for me?

PN876

There is a part of the Request for Tender, part 4, which is entitled "Special Conditions"?‑‑‑Right.

PN877

Do you recall those?‑‑‑No.

PN878

Mr Elliott's first witness statement, exhibit 1 to that statement, the Request for Tender Special Conditions part 4 is immediately after page 24 of the initial document. Do you recall those?‑‑‑I do, yes.

PN879

Do you recall discussing the transition plan, special conditions, with Ms Bracko?‑‑‑So I guess I can't recall the exact conversation, but any discussion with Rebecca would have been largely about the staffing that we needed, the type of staff that we required for a laboratory of that size.

PN880

You would accept that one of the special conditions at 4.7.3 deals with regional employment opportunities and South West Healthcare supports the retention of existing pathology service staff?‑‑‑Yes.

PN881

I assume you communicated that to Ms Bracko?‑‑‑So again I can't remember the exact conversations, but the conversation would be around that we would try and employ that staff that we needed to run our business going forward and largely we always look at what's available in the community because they're already working there in that facility or in that vicinity.

PN882

Naturally, having people that are familiar with the laboratories and the policies and procedure and the work and the doctors in the pathology lab at a hospital makes life easier for you to take over the contract, doesn't it?‑‑‑Well, it's a new set of staff, so it's always a significant amount of training that's required regardless of whether you're taking over their facility or you're not because the policy and procedures that we have in our facility are completely different to any incumbent.

PN883

There was a requirement that the staff be trained on South West Healthcare policies and procedures under the terms of the Request for Tender, isn't there?‑‑‑Well, the hospitals would normally have some policies and procedures that all our staff would need to be familiar with, yes.

PN884

And having a ready-made workforce that is familiar with that makes your life substantially easier, so you can meet that term of your contractual arrangement quite simply?‑‑‑Not necessarily. It's a very small component. Knowing the hospital procedures is a very small component of being a scientist within any of our laboratories, so, yes, they do need to be familiar with the procedures of the hospital, but it's a very small component of what they do day to day.

PN885

But it makes life easier for you, doesn't it?‑‑‑Well, I guess there is a component that they don't need to be trained on, but it's a very small component.

PN886

Dorevitch had a requirement to meet an agreed level of service during the transition from Healthscope to Dorevitch as the provider; that's correct, isn't it?‑‑‑Sorry, I don't quite understand the question.

PN887

Dorevitch had an agreement with South West Healthcare that there would be an agreed level of service provided when it took over from Healthscope?‑‑‑Yes.

PN888

So when that transition at one minute past 12 on 1 July and the button ticked over, you had an agreed level of service?‑‑‑Correct.

PN889

And I suggest to you that that agreed level of service was a seamless transition; that's correct, isn't it?‑‑‑We always aim for a seamless transition. That's certainly the benchmark.

PN890

I think that's actually what you give evidence of, that you want that seamless transition?‑‑‑Correct.

PN891

I would suggest to you that a seamless transition in a hospital laboratory that's a 24-hour operation is just not achievable, you just can't flick a switch; that's correct, isn't it?‑‑‑Well, I guess there's lots of levels of complexity to it, but, essentially, what they want to see is a result. The patients have tests performed by the doctors' requested tests and we release a result. If we can achieve that, that becomes a seamless transition.

PN892

For you to achieve that type of result, you may have to use equipment that isn't Dorevitch's to achieve that result at that changeover point; that's correct, isn't it?‑‑‑In the transitions that I've managed, and there's been several, almost half a dozen in the last five or six years or so, we have not used the equipment from any incumbent, but, in this instance, there was these four patients where we did.

PN893

When you were looking at your employment options, one of the things that you were required to do was provide South West Healthcare or Health Purchasing Victoria with a transition plan and you produced or Dorevitch has produced a transition plan to the Commission?‑‑‑Mm-hm.

PN894

I am just going to show you a document and get you to identify it. Would you identify those documents for the Commission, please?‑‑‑Yes, they're the transition plans we had.

PN895

It says: "Project, South West Healthcare Project Plan", date Wednesday 01/04/15?‑‑‑Yes.

PN896

I tender that document, Commissioner.

PN897

THE COMMISSIONER: I am not as efficient as you and Mr Forbes.

PN898

MS BINGHAM: I think my instructor may be able to turn up one quickly for you.

PN899

THE COMMISSIONER: This was in the documentation that was produced?

PN900

MS BINGHAM: That was produced in accordance with your order.

PN901

THE COMMISSIONER: Yes.

PN902

MS BINGHAM: Five pages.

PN903

THE COMMISSIONER: Yes, five pages I have got.

PN904

MS BINGHAM: So the first page is "South West Transitioning Out Plan".

PN905

THE COMMISSIONER: Is it?

PN906

MS BINGHAM: Yes, it is. There is a document titled "South West Health Transitioning Out Plan", one page, and then there is a document titled "South West Health Implementation Plan", which is by my learned friend.

PN907

THE COMMISSIONER: I seem to have two of the first page. Maybe my associate can show you what I have got.

PN908

MS BINGHAM: Can I - - -

PN909

THE COMMISSIONER: Yes, of course you can.

PN910

MS BINGHAM: Sorry, you are right, Commissioner.

PN911

THE COMMISSIONER: Yes, I've got two of the one page.

PN912

MS BINGHAM: You have got two of the one document, so you don't have the Transitioning Outcome?

PN913

THE COMMISSIONER: That's the one.

PN914

MS BINGHAM: The first two pages are the same.

PN915

THE COMMISSIONER: Good, I'm not going crazy.

PN916

MS BINGHAM: You are not going crazy.

PN917

THE COMMISSIONER: Not yet.

PN918

MS BINGHAM: And what you are missing is a single page which is titled "South West Health Transitioning Out Plan", which is dated 02/04. I can hand up - - -

PN919

THE COMMISSIONER: I was about to say, could we do a quick photocopy, maybe?

PN920

MS BINGHAM: I will hand that one up.

PN921

THE COMMISSIONER: Do you want them marked separately?

PN922

MS BINGHAM: I think they probably should be marked separately.

PN923

THE COMMISSIONER: Okay. So I am going to mark the South West Health Transitioning Out Plan as exhibit A8.

EXHIBIT #A8 SOUTH WEST HEALTH TRANSITIONING OUT PLAN

PN924

THE COMMISSIONER: And then the South West Health Implementation Plan as exhibit A9.

EXHIBIT #A9 SOUTH WEST HEALTH IMPLEMENTATION PLAN

PN925

THE COMMISSIONER: Ms Bingham, do you need this page back?

PN926

MS BINGHAM: No.

PN927

THE COMMISSIONER: Are you sure?

PN928

MS BINGHAM: I am sure.

PN929

THE COMMISSIONER: Okay.

PN930

MS BINGHAM: I have got copies and my instructors have copies.

PN931

THE COMMISSIONER: Excellent, thank you.

PN932

MS BINGHAM: Can I get you, Mr Persano, to look at the document called "South West Health Transitioning Out Plan"?‑‑‑Yes.

PN933

This is a Dorevitch document?‑‑‑Yes, that's correct.

PN934

Prepared by Dorevitch?‑‑‑Correct.

PN935

Under the heading "Staffing":

PN936

Consult with staff re redundancies. Liaise with new pathology provider re access. Impact statement release. Consult with unions.

PN937

These are all actions that would take place with respect to Healthscope, weren't they?‑‑‑No, that's not correct.

PN938

What redundancies were you going to - - -?‑‑‑So this is a transition out plan, so this would be at the end of our contract, current contract.

PN939

I see?‑‑‑This would be the discussions that we would have.

PN940

So that's why the dates there are 05/06/20?‑‑‑I think what's happened there is that the date should read 20, yes, that's correct.

PN941

Are you saying that the date for Monday 01/06/20 is 2020?‑‑‑Correct.

PN942

The Implementation Plan?‑‑‑Yes.

PN943

If I can take you to the fourth page, "Staffing"?‑‑‑Yes.

PN944

That says:

PN945

Liaise with Healthscope re access to staff.

PN946

?‑‑‑Yes.

PN947

So you spoke with Mr Jassen of Healthscope?‑‑‑Jansen?

PN948

Jansen, sorry?‑‑‑Correct.

PN949

Regarding access to his employees or Healthscope employees?‑‑‑So what that means - and this is a generic document - but what that means is that we would ask for permission to be able to talk to staff prior to the contract ending rather than just going to the laboratory and saying, "We're going to be the new provider."

PN950

And Healthscope facilitated you being in their laboratory talking to their staff?‑‑‑They allowed us to - over a lunch time period, I think it was - to have a chat to their staff.

PN951

The impact statement release, usually an impact statement is dealt with if there's redundancies under the Medical Scientists Agreement. What impact statement was Dorevitch - - -?‑‑‑Like I said, this is a generic document, so there may have not been any impact statements at the time, I just cannot recall, to be honest.

PN952

Any impact statement would have been from Healthscope, wouldn't it, because they were making employees redundant?‑‑‑Yes, as I said, it's a generic document and there may be some actions that weren't actually carried out.

PN953

So you didn't consult with the MSAV or the union, did you, either?‑‑‑No, they weren't our staff, so I guess there was no real need, we felt at the time, to have that conversation.

PN954

But this is a document you produced to South West Healthcare?‑‑‑Yes.

PN955

And you represented to them that you were going to consult with the union for five days from 22/06/2015 to 26/06/2015. That is what you represented to South West Healthcare, didn't you?‑‑‑Yes, we did present this to South West Healthcare, yes.

PN956

In fact, you have read Mr Elliott's witness statements in these proceedings, haven't you, and do you recall him saying that he attempted to contact, I think it was Mr Moller, regarding what was going to happen to the employees and that Mr Moller didn't return calls? Are you aware of that?‑‑‑I'm unaware of the conversations that Paul had with Mr Moller, so I'm unaware of what the actual detail of their conversation was or anything.

PN957

And you didn't take any steps to consult with the union?‑‑‑No.

PN958

In accordance with this transition plan?‑‑‑No.

PN959

When you say "recruit staff", are you talking about the Healthscope employees that you recruited from Healthscope?‑‑‑So it's a combination of - "recruit staff" essentially means advertise for staff and recruit staff, and some of those staff were current employees at Healthscope, correct.

PN960

Let's just talk about the medical scientists and technicians, which is what we are dealing with today. You recruited a full complement of medical scientists and technicians but for two from Healthscope?‑‑‑I can't remember the exact detail. We didn't, I guess, employ a full complement; there were several positions that were not filled at the time. There were several - I can't remember the exact number - if it was two, five - there was a number of positions that were still, I guess, vacant and inclusive of - - -

PN961

How long did it take to fill the vacant positions, do you recall?‑‑‑I can't recall, to be honest.

PN962

I suggest to you quite a while. Warrnambool is a bit of a way from Melbourne and there's a limited - - -?‑‑‑Yes.

PN963

- - - employment base for people who wish to live out in the country areas?‑‑‑Generally, in the country areas, it's a little bit more difficult to recruit people. That said, Warrnambool is one of those locations that's not too bad because there are several laboratories down there and there's a fair amount of job opportunities for them, I guess, in that way, and some of our towns are a lot more difficult than Warrnambool, and generally it's a nice environment to live in.

PN964

You would accept that the Warrnambool and Camperdown labs and South West Healthcare are the majority employer for medical scientists in the area?‑‑‑Are the majority, but there's also - there's another two laboratories in that particular town as well.

PN965

One of whom is a Healthscope laboratory?‑‑‑They are both now Healthscope laboratories. At the time, it was a St John of God laboratory and also a Healthscope laboratory.

PN966

Are you aware the two Healthscope employees that rejected offers from Dorevitch were offered redeployment in the Healthscope laboratories?‑‑‑So we didn't reject any employees, we actually offered employment to all the employees and, from what I understand, there was a number of employees that weren't offered redundancies by Healthscope and they might be the ones that you're talking about.

PN967

So the offering of employment to all the medical scientists and technicians was consistent with your obligation under the contract to maintain the laboratory pathology staff at Camperdown?‑‑‑Well, I guess we know the number of employees that we need for a laboratory of that size and so we did, by memory, offer employment to all of the scientists, all of the collection staff and - not all of the collection staff but some of the collection staff - and some of the laboratory assistants and so forth as well, and some of those employees rejected the offer because they weren't going to stay in town and moved to another town and some were not offered redundancy by Healthscope at the time and therefore felt that they would remain with the positions that they were given.

PN968

Mr Moller made a statement to the press that Healthscope would offer all the scientists - sorry - Dorevitch would offer all the Healthscope scientists employment?‑‑‑I can't remember the exact statement, but if you've got it there and it's in writing, then he must have done that.

PN969

If I can take you, just to refresh your memory - - -?‑‑‑Sure.

PN970

To PE-14, an article from The Warrnambool Standard, the second page, if you want to read that?‑‑‑I can't argue with the media.

PN971

THE COMMISSIONER: Fake news.

PN972

MS BINGHAM: But that is all consistent with your obligations to maintain the workforce?‑‑‑I guess there's always an element in all new work that we do get and in regional communities that we actually are perceived to be, you know, a responsible employer, and so I guess that would not be - would be something that we would have aimed to do, I guess, by putting that statement out there.

PN973

When you say in paragraph 20:

PN974

Scenarios of whether employees of the current contractor wished to be employed by us are not built into the plans.

PN975

That is not correct, is it?‑‑‑Well, I guess we don't know if the employees will come across, so there's always the possibility - and it happened with the collection staff - that we have to advertise heavily and also we brought some people down from the metropolitan region to assist us in that way.

PN976

But in this particular contract, you actually had, with respect to the medical scientists, an obligation in your Request for Tender to offer employment, so you must have built that into your plan at some point, mustn't you?

PN977

MR FORBES: I want to object to the question. There's been a line of questioning now premised on some asserted obligation, contractual obligation, to maintain or to employ persons. That premise has not been established and the witness should be pointed to it if it exists.

PN978

MS BINGHAM: I take you back, Commissioner, to the Special Conditions of the Request for Tender, which actually states at 4.73:

PN979

In the interests of regional employment, South West Healthcare supports the retention of existing pathology and radiology services staff and the local capabilities by the contractor where feasible.

PN980

This is a Special Condition.

PN981

MR FORBES: That is not a contractual obligation.

PN982

THE COMMISSIONER: It's a bit like painting and beauty, you know, in the eyes of the beholder, but that to me is not quite as black and white in terms of a commitment as I'm hearing sitting under your questions.

PN983

MS BINGHAM: Commissioner, we asked for the contract and it wasn't provided. If you recall, it's been an issue regarding what the contract terms were.

PN984

THE COMMISSIONER: Can I just ask a practical question, Ms Bingham. I understand Mr Persano's evidence is that all of the scientists were offered a position with Dorevitch.

PN985

MS BINGHAM: Yes.

PN986

THE COMMISSIONER: So whether 4.73 says what Mr Forbes thinks or you think and whether or not you have the contract, on this point, the reality is, as I understand it, that every scientist was offered a position. That was what Mr Persano just said, so I'm just wondering if it's moot.

PN987

MS BINGHAM: Save and except for the fact that - I won't press it, Commissioner, I am content. Excuse me, Commissioner.

PN988

THE WITNESS: Sorry, can you just refresh my memory where I can find that?

PN989

MS BINGHAM: It is PE-1?‑‑‑Request for Tender, yes.

PN990

Service Specifications. It's part 5A.

PN991

The Request for Tender document has a Service Specification part, part 5A. That is after page 5 of the Special Conditions?‑‑‑Yes, I have that.

PN992

5.10, "Scientists", if you go to page 943?‑‑‑Sorry, I'm a bit lost. So 5.1?

PN993

5.10 and it's at page 9 of 43, if you look at the bottom of the document?‑‑‑Okay, yes, I've got that.

PN994

"Scientists"?‑‑‑Yes.

PN995

To meet these Service Specifications, Dorevitch identified the Healthscope personnel that it needed to provide the service; that's correct, isn't it?‑‑‑Yes.

PN996

You would accept that the skill of a scientist is not in the operation of a machine but rather the interpretation of the data that is generated by a machine; you would accept that, wouldn't you?‑‑‑No.

PN997

No? I suggest to you that the work of the scientists as between the work they were performing for Healthscope and for Dorevitch was the same work but different machines?‑‑‑That's right, you're getting the same outcome in terms of a test result and it is different instrumentation, that's right.

PN998

The skill of a professional scientist is developed over the years they perform the work; that's correct?‑‑‑Yes.

PN999

So that's in the interpretation of the data and the incubation of particular samples, those types of issues?‑‑‑Yes.

PN1000

If you have got a scientist of 10 or 20 years' standing, they have developed those skills in the workplace over those years?‑‑‑Yes.

PN1001

So what you inherited from Healthscope was a professional, experienced scientific workforce; that's correct, isn't it?‑‑‑I beg to differ on some of those words, but certainly what we inherited was staff that had been working as scientists for lots of years, 10 to 20 years, but like any of our new employees at any of our facilities, there's a significant amount of training that we undertake so that they learn our quality system, our instrumentation, the way the data is interpreted, the reference ranges and so forth. It's a new training program, and so because someone has that level of experience, that's great, they are able to contribute, I guess, in a shortened timeframe, but certainly there's a significant amount of training that is undertaken for any new employee in any of our businesses.

PN1002

The staff training, you estimate 60 days on the machines in your transition program?‑‑‑So I guess there's different levels of training, but certainly some of our scientists take, you know, six months to train to put onto an on call system. It can take longer, depending if they are fresh graduates or not, depending on their level of competency.

PN1003

But we are talking about the scientists that you inherited from Healthscope?‑‑‑So that's a view to show that that's when we would have had employees there to train and then the training's ongoing from thereon as well, so 60 days doesn't quite get you there for the whole training of the whole entire process.

PN1004

But you didn't have to train the scientists for 60 days, did you?‑‑‑Depending on which scientists they were. We did have a significant amount of training that's required because, again, it's our quality systems, it's our interpretation of the way the results are - all pathologies are very different and the instrumentation is very different, the procedures are very different, and so although they have a system that by name is the same as our system, those systems develop over years, so our system has been implemented - our computer system has been there for 25 years and over that period of time, there's certain developments that happen that don't happen in other people's computer systems. So there's a lot of training that needs to be undertaken.

PN1005

The senior scientist who was supervising the day to day operations, did you inherit the senior scientist?‑‑‑We inherited senior scientists, correct.

PN1006

You took 60 days to train up?‑‑‑The training is ongoing. That senior scientist would still be getting training as we speak today because it's ongoing.

PN1007

The equipment that you were using on 1 July, were the scientists able to operate that?‑‑‑We had a significant amount of what we call our Dorevitch pathology scientists on site that assisted with the staff that we inherited.

PN1008

The scientists that you inherited hadn't completed Dorevitch training on 1 July to operate the machines?‑‑‑Well, depending on which machine, yes, but there's a significant amount of training that is ongoing from day one through to - a significant period.

PN1009

If the scientists didn't know how to operate the machines, how did you provide a single service to South West Healthcare?‑‑‑We had a significant amount of our scientists on site. In fact, we doubled up every shift for quite some time.

PN1010

So the former Healthscope senior scientists were not operating the Dorevitch machines?‑‑‑Yes, they were operating the machines, but there was certainly a lot of support from our scientists as well and our senior scientists. In microbiology, we had senior scientists attend that facility for weeks on end; in the chemistry area, we had a significant amount of scientists attend weeks on end as well.

PN1011

The laboratories at the Warrnambool and Camperdown Hospitals were the laboratories that Healthscope operated out of?‑‑‑Correct.

PN1012

They were all set up as labs: benches, sinks, lockers, all the usual equipment for a lab. You didn't have to bring those in?‑‑‑What sort of things?

PN1013

Benches, sinks, all the fixtures and fittings that you would usually have in the lab but for the equipment, that was all there when you walked in?‑‑‑So they are part of South West Healthcare's fitout, so that's owned by the hospital.

PN1014

And Healthscope used that fitout?‑‑‑Largely they would have used the fitout as well.

PN1015

You started moving in equipment from about 18 June; is that correct?‑‑‑Not into the actual laboratory facility, so within the hospital space, they gave us a space.

PN1016

The third floor, I think it was, above the laboratory?‑‑‑Correct.

PN1017

You were involved in commissioning - sorry, not you - Dorevitch was involved in commissioning and calibrating the machinery that you were bringing down?‑‑‑Correct.

PN1018

On 30 June, the Healthscope machines and equipment were still operational in the Warrnambool and Camperdown laboratories?‑‑‑At the Camperdown laboratory, they decommissioned their instruments in the middle of the day on the 30th and shut shop round about - I think it was early afternoon.

PN1019

And in Warrnambool there was - - -?‑‑‑Warrnambool, they continued to operate through to midnight and, in the meantime, they had made some space for our instrumentation.

PN1020

It's wonderful when you can't make out what your note means. Your requirement was for the service to commence at one minute past midnight?‑‑‑Correct.

PN1021

So 1 July?‑‑‑Correct.

PN1022

We are dealing with a 24-hour laboratory operation at Warrnambool; that's correct, isn't it?‑‑‑That's correct.

PN1023

When it came to decommissioning, calibrating the Dorevitch machinery, was the Healthscope machinery still operating so that the service after one past midnight could still be - - -?‑‑‑We weren't involved in decommissioning, we were involved in commissioning and calibrating. They were involved in decommissioning, but there were some instruments at midnight that were still operational that were still able to be used on site. They removed half of their equipment and we essentially moved in half of our equipment.

PN1024

The Healthscope employees on the night shift on the 30th, they commenced as Healthscope employees their shift?‑‑‑Correct.

PN1025

Ten or 11 o'clock at night?‑‑‑At 11 o'clock there was one employee that does the night shift that commenced at 11 o'clock.

PN1026

Yes?‑‑‑Essentially on their time.

PN1027

Okay?‑‑‑And then switched across to our time from midnight.

PN1028

Was that employee operating Healthscope equipment?‑‑‑There was four instances in that period that the equipment was used to release nine patient results. There was a suggestion it was 400. It was actually four patients and nine test results.

PN1029

I think you will find that it's Mr Elliott's evidence that there were 39 instances of test results being run at Warrnambool and performed by Dorevitch staff on Healthscope equipment?‑‑‑So tests that were collected post the 1st of the 7th, it was four patients, nine tests.

PN1030

Mr Elliott's evidence is that there's 39 and I suppose the documents will reveal what the actual number is?‑‑‑Sure.

PN1031

When did you arrange or train the employee, your employee, on the Dorevitch equipment to be operated at one minute past midnight for the seamless transition?‑‑‑So that's the employee that was the incumbent for Healthscope?

PN1032

Healthscope?‑‑‑So we had one of our scientists work with her, so a scientist from another particular laboratory came across and did the night shift with that particular staff member.

PN1033

That's the Ararat laboratory?‑‑‑That's the Ararat laboratory.

PN1034

There were a number of issues with - I think the machine was called the AU480?‑‑‑Yes.

PN1035

There has to be a degree of cooperation between an ingoing and outgoing provider; that's correct, isn't it?‑‑‑The agreement is that you will provide us some space and we will provide some - and we will move our equipment in. So there's no discussion about using equipment.

PN1036

No, but there's got to be a degree of cooperation, doesn't there, between the two entities, the exiting one and the entering one, for all the work?‑‑‑Yes, so it's that you will leave the space at this particular time and we'll enter the space at this particular time. That's the nature of the discussion. It's not about - in all of my transitions, there's not a lot of discussion when you're leaving a facility and when you're entering a facility, it's like - - -

PN1037

You, as Dorevitch, had an obligation to have a seamless transmission of the service, the 24-hour service?‑‑‑Yes.

PN1038

To allow that, there must be some form of cooperation between an ingoing and outgoing provider; that's correct, isn't it?‑‑‑I'm not too sure what the question is. There was no - there's no cooperation, essentially, they're our competitors and they pretty much vacate the facility and we start the testing. That's the way it normally works.

PN1039

But Healthscope didn't vacate the facility at one minute past midnight on 1 July 2015?‑‑‑Correct.

PN1040

Did they?‑‑‑No, they didn't.

PN1041

They were still operational in that laboratory; that's correct, isn't it?‑‑‑They had still - half of their equipment was still in there and that's their decision when they actually decommission those, but, in my experience at other places, it's pretty much that they would shut shop and - - -

PN1042

Well, it's not the case here, is it?‑‑‑I can't speak for their decision-making.

PN1043

The Healthscope laboratory was still operational?‑‑‑Some of their equipment was still available for operation, that's right.

PN1044

When the AU480, the biochemistry analyser, was unable to run patient samples, you had the ability to use the Healthscope equipment?‑‑‑Correct.

PN1045

That allowed you to provide that seamless transition for South West Healthcare?‑‑‑We were able to provide a result for the patient, that's right.

PN1046

You would accept that there was also another machine called the Beckman Coulter Access 2?‑‑‑Yes, I'm familiar with the instrument.

PN1047

It could only run troponins and Beta-hCGs, it wasn't fully operational?‑‑‑From the data that I have, I didn't see that information, yes.

PN1048

So you didn't read the emails exhibited to Mr Elliott's second witness statement?‑‑‑So when I looked at the data, the data that was provided showed that post the 1st of the 7th, there was four patients and nine tests that were carried out.

PN1049

We are talking about two different documents. If you turn to - just to refresh your memory, Mr Persano - if you turn to the second witness statement of Mr Elliott, you will see there's two exhibits and they are emails from members, PE-16. PE-17 is the one that is relevant for this point in time?‑‑‑I can't quite find it here. I know I've got a copy with my notes, but do I need to use this one?

PN1050

THE COMMISSIONER: Would you like to borrow mine?‑‑‑Yes, please.

PN1051

MS BINGHAM: Do you recall reading that?‑‑‑Yes.

PN1052

I just wanted to refresh your memory so you understood my questioning. You were there around 1 am, weren't you, at that lab?‑‑‑Roughly. We sort of took off round about the 1 o'clock mark.

PN1053

So around 1 am, you couldn't get the AU480 operational?‑‑‑Mm-hm.

PN1054

And that's when you instructed your employees, the two Dorevitch employees, to use the HS Abbott Architect Biochemistry Analyser to get the test results out overnight?‑‑‑Yes.

PN1055

You gave the directive to split the testing work between haematology, coagulation, blood bank, troponin and hCGs all going to Dorevitch and general bio going to the Healthscope machine? That's the directive you gave your two employees?‑‑‑Yes.

PN1056

Essentially, even though you had the - I think you describe it in paragraph 9 of your witness statement:

PN1057

Where Dorevitch is the successful tenderer -

PN1058

which Dorevitch obviously was -

PN1059

in a particular public hospital, a doctor or specialist working in that public hospital must refer all public patient pathology requests to Dorevitch.

PN1060

?‑‑‑Correct.

PN1061

You elected, as Dorevitch, to contract out essentially the general bio to Healthscope to ensure that you met your contractual obligations; that's correct, isn't it?‑‑‑Yes.

PN1062

Ms Turner, she was the Ararat Dorevitch employee?‑‑‑Correct.

PN1063

She wasn't trained in microbiology; is that correct?‑‑‑So she was unfamiliar with the CSF testing.

PN1064

The CSF sample was performed by the new Dorevitch employee?‑‑‑Correct.

PN1065

The former Healthscope employee?‑‑‑Yes.

PN1066

On Healthscope equipment?‑‑‑Yes, that's right.

PN1067

Again a decision on your behalf to contract that work to Dorevitch to meet your contractual obligations?‑‑‑Yes.

PN1068

THE COMMISSIONER: To Healthscope.

PN1069

MS BINGHAM: Sorry, to Healthscope, thank you. I am looking at the time and I'm sorry, Commissioner.

PN1070

THE COMMISSIONER: My caffeine levels are getting very low.

PN1071

MS BINGHAM: I know the feeling.

PN1072

THE WITNESS: I guess with that decision, I wasn't there at the time, but certainly that would have been something that I would agree with.

PN1073

MS BINGHAM: Even if the AU480 was operational, you wouldn't be able to use it at the time for the CSF tests because the protein reagent hadn't been set up?‑‑‑I'm not familiar with the exact details, but, yes.

PN1074

As you say, you would have authorised it?‑‑‑Yes.

PN1075

Because you had to provide that service for the welfare of the patients and to meet your contractual obligations?‑‑‑Yes.

PN1076

When you say at paragraph 27 of your statement:

PN1077

It was not possible for us to use their equipment -

PN1078

that's not correct, is it?‑‑‑Well, it is possible for us to use it, but I guess normally that would be impossible because they wouldn't be there.

PN1079

In this case, that's just not correct; you did use the Healthscope equipment?‑‑‑Yes.

PN1080

In fact, your - I will use the work "technicians" - the people commissioning your machines connected the AU480 to the Healthscope water filtration system, didn't they?‑‑‑Correct.

PN1081

Which caused problems when Healthscope came to decommission that?‑‑‑Yes.

PN1082

So you didn't have the AU480 operational until you actually got your own water filtration system?‑‑‑Yes, which was early that morning, from what I understand, yes.

PN1083

Around 7 am?‑‑‑Yes.

PN1084

Some tests like sepsis - I assume like septicaemia - are detected by a laboratory over a period of five days?‑‑‑Correct.

PN1085

And that's constant incubation and testing of the blood cultures?‑‑‑Yes.

PN1086

So you get the sample and it has to remain in that particular machine to finalise the tests?‑‑‑Correct.

PN1087

If you would go and retest, that would affect your quality assurance and your turnaround times?‑‑‑Correct.

PN1088

That is really not what a new pathology provider wants to see in its contract?‑‑‑Mm.

PN1089

And so actually having Healthscope continue the testing process with respect to samples taken prior to 1 July 2015 meant that the turnaround times were maintained, the quality assurance of the sample was maintained and Dorevitch met its contractual requirements to South West?‑‑‑It wasn't our work, so we had no contractual requirement whatsoever with that work, to be quite honest. Work collected prior to the 1st was not deemed to be our work, so we have got no contractual requirement whatsoever to complete that.

PN1090

I think your evidence in your third witness statement is that you determined that you wouldn't retest?‑‑‑So that's not a contractual requirement. The contractual requirement is that we test from the 1st and we did that. There was no contractual requirement for us to do anything with the samples prior to the 1st of the 7th.

PN1091

The turnaround time - the samples were obviously still at Warrnambool in many cases?‑‑‑In many cases they were.

PN1092

Yes?‑‑‑But we had no - we don't have any contractual requirement for any of that work. That is work that's collected in their period.

PN1093

Yes?‑‑‑They are contractually bound to that, so when there's no service delivery - in terms of patient care, that's a different question - but in terms of actually providing a service for the hospital, we didn't have any contractual requirement to complete that work.

PN1094

You said that since the samples were there, your employees concluded the testing?‑‑‑So some of the testing prior to them removing the incubator for the blood culture, they kept the incubator at the Warrnambool laboratory, the microbiologists decided to just keep them there and continue to test those and then reported those into their system as they would normally have done, but there was certainly no contractual requirement for us to do that.

PN1095

But you consented to your employees continuing that work?‑‑‑The question was do we discard the samples. They are the options. One is we discard them, we don't test them, we don't continue to maintain them.

PN1096

And take new samples?‑‑‑The second option is that the incumbent, the prior incumbent, should have taken all that testing away. So the options for us are to discard it or to ask for recollection. Recollection doesn't quite work if it's something that's collected, you know, two or three days ago.

PN1097

Because of the nature of the high fever, I think was described?‑‑‑Yes.

PN1098

That you're not going to get the same blood sample?‑‑‑Correct.

PN1099

But you consented and authorised your employees to continue the testing?‑‑‑Yes.

PN1100

Was that testing performed on Healthscope equipment?‑‑‑Well, it sits in an incubator. So the samples are collected and they get placed into an incubator, which was their equipment.

PN1101

Yes?‑‑‑As I said earlier, what would normally happen is they would take that incubator with the samples and take it back to another facility. In this instance, they just ran, they didn't actually take it. They did take it, I think, several days later but they didn't take - - -

PN1102

They took the incubator several days later?‑‑‑I believe so. I can't remember the exact timing but they did take it away at some point, but they could have taken the samples and incubator away at the time and then we probably wouldn't be sitting here having this conversation.

PN1103

But they didn't?‑‑‑But they didn't.

PN1104

The BACTEC bottles, I think you have got in your transition plan: "Review stores and consumables"?‑‑‑Correct.

PN1105

Obviously there were still bottles that you reviewed and saw that were Healthscope bottles?‑‑‑We did review and we didn't "saw", as you said, because if we'd seen them, we would have taken them away, but it's really their responsibility to take away their consumables, and so what happened is some of their consumables remained in the tiny inventory cupboards that they have scattered around the hospital and then when they were placed into those bottles, then we have to do a manual procedure to get them into our facility, so that you don't actually discard your sample, you keep your sample and you just transfer it into another consumable which is our consumable and then we run it into our incubator.

PN1106

The fridges were not fixtures and fittings owned by South West Healthcare?‑‑‑So, at some stage, I imagine they would have purchased these fridges, so they wouldn't have been owned by South, but, that said, I don't know that detail because they've been there for a long time and I know that in the old days when we did take over some public hospital pathology services, they would give you a fair amount of things that were there prior.

PN1107

As far as you're aware, Healthscope used those fridges?‑‑‑They did use them.

PN1108

And you at Dorevitch continued to use them?‑‑‑We purchased some new ones and they - what they did is they took away their equipment and they left some things that they were happy to throw out, I guess, so they continued to use them, yes.

PN1109

I am not going to be much longer. Thank you for your patience. It's a long time to be cross-examined. Thank you for your patience, too, Commissioner. In paragraph 39 of your witness statement, you actually say that you don't purchase equipment as an incoming contractor when Dorevitch takes over a contract or wins a tender?‑‑‑Correct.

PN1110

But I suggest to you that that actually isn't correct and you have done so on occasions and, in fact, you did so when the contract for Western Health was won by way of tender?‑‑‑So we did purchase equipment from Western Health. It was from - it went from public to public - public to private - so, in that instance, there was a transmission of business and so we did purchase equipment. In all of our other instances where it's private to private, there's definitely no purchase of equipment from the incumbents, and certainly in this instance there was certainly no money exchanged for the couple of fridges that they were happy to discard.

PN1111

The Main Health Dorevitch Pathology Certified Agreement 2004 expired in 2007; that's correct, isn't it?‑‑‑Yes.

PN1112

It hasn't been replaced?‑‑‑It's a bit outside my control but it certainly hasn't been replaced, no.

PN1113

You would accept that the former Healthscope employees have suffered a loss, quite a substantial loss, to their income by accepting employment with Dorevitch?‑‑‑I don't accept that entirely because a lot of them were offered a significant amount of money for redundancy and then got to keep their jobs at admittedly reduced rates; however, they were financially, I would argue, better off in some instances.

PN1114

Have you seen the table of comparison that Mr Elliott has exhibited to his witness statement?‑‑‑Yes.

PN1115

Do you disagree with his table of comparison with respect to the rates under the two agreements?‑‑‑I haven't looked closely, so I can't disagree. I haven't reviewed them to see if they are correct.

PN1116

Dorevitch Pathology is an arm of Primary Health Care?‑‑‑Correct.

PN1117

Primary Health Care is a lucrative business?‑‑‑I guess it depends on who you ask.

PN1118

Apparently your new CEO has told The Age that the pathology arm is doing extremely well. Are you aware of that?‑‑‑Well, I guess - look, I am aware of that, but I guess that's open for interpretation.

PN1119

If I could find the article, I would hand it up to you?‑‑‑Having worked in the pathology industry for over 30 years, I don't think it's very lucrative compared to what it used to be.

PN1120

In fact, I think the CEO - Commissioner, I will have to produce it tomorrow. It's fallen into the realms of a barristerial pile of paper, I think. Your CEO says with respect to Primary Health that pathology is one of the growth areas in the business?‑‑‑I'm not privy to that information nationally, I really am not.

PN1121

I would suggest to you that Dorevitch Pathology - found it. Can I get you to just have a look at that article. It was in The Age on Saturday. You don't disagree with what your CEO says there?‑‑‑Again, I just am not privy to the national information that he gets to see and it's a bit difficult to comment on our business as it's only one portion of the pathology business.

PN1122

I would suggest to you that Dorevitch has the ability to pay the wages, the salary rates under the Healthscope Agreement; it won't break the bank, will it?‑‑‑I guess it's an opinion, but - - -

PN1123

It won't break the bank, will it?‑‑‑I certainly don't agree totally.

PN1124

That's it. Thank you, Commissioner, for your tolerance and patience.

PN1125

THE COMMISSIONER: Thank you, Ms Bingham. Any re-examination, Mr Forbes?

PN1126

MR FORBES: Just one matter just by way of clarification.

RE-EXAMINATION BY MR FORBES牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [2.01 PM]

PN1127

MR FORBES: Mr Persano, you were asked questions about the use of Healthscope equipment in that early part of the day on 1 July. Did you or anyone on your behalf seek permission to use that equipment?‑‑‑No.

PN1128

Was there any financial transaction between Dorevitch and Healthscope regarding the use of that equipment?‑‑‑No.

PN1129

Did Healthscope charge Dorevitch for using the equipment?‑‑‑No.

***牋牋牋� DOMENIC PERSANO牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� RXN MR FORBES

PN1130

Did you charge Healthscope for using your labour on that equipment?‑‑‑No.

PN1131

Thank you. No further questions.

PN1132

THE COMMISSIONER: Mr Persano, thank you for your evidence, you are released?‑‑‑Thank you.

PN1133

You may step down.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [2.02 PM]

PN1134

MR FORBES: That's the respondent's evidence.

PN1135

THE COMMISSIONER: Thank you, Mr Forbes. What plans have you both agreed to for tomorrow?

PN1136

MS BINGHAM: Subject to - we will keep you organised, Commissioner. Subject to - - -

PN1137

THE COMMISSIONER: My associate has just said that that's her job.

PN1138

MS BINGHAM: Subject to the queries that I have - - -

PN1139

THE COMMISSIONER: Yes.

PN1140

MS BINGHAM: Nothing may come of it. We may actually have to put Mr Persano back in the witness box for a very short period of time.

PN1141

THE COMMISSIONER: And Mr Elliott, potentially?

PN1142

MS BINGHAM: Potentially Mr Elliott, yes.

PN1143

THE COMMISSIONER: Okay.

PN1144

MS BINGHAM: Just to give the evidence.

PN1145

THE COMMISSIONER: Yes.

PN1146

MS BINGHAM: We then should be in a position for submissions immediately after that. I'll go first.

PN1147

THE COMMISSIONER: That's really kind of you, Ms Bingham.

PN1148

MS BINGHAM: In your hands as to what time you would like to start tomorrow morning.

PN1149

THE COMMISSIONER: I have got all of tomorrow allocated for this matter, so given that you both have got to do closing submissions tomorrow, would it be helpful to have a later start? I'm quite comfortable.

PN1150

MR FORBES: I won't be long tomorrow, so I don't think it's necessary. I think it might be desirable for everyone to be finished by lunch. I won't be long.

PN1151

THE COMMISSIONER: Yes, like today?

PN1152

MR FORBES: I can't imagine I would be more than an hour tomorrow.

PN1153

THE COMMISSIONER: I was just trying to be thoughtful for both of you. I know there is this afternoon, but I was just trying to be thoughtful in terms of the amount of work you have got to do before we commence again tomorrow.

PN1154

MS BINGHAM: Maybe 11 o'clock instead of 10, just to give an extra hour, particularly if something arises from my discussions this evening. I will let Mr Forbes know if anything arises. We will assist in trying to get something additional down in writing for you, if that would assist the Commission, rather than just oral submissions?

PN1155

THE COMMISSIONER: I will be ordering transcript, as I normally do, so that will be available to all of the parties.

PN1156

MS BINGHAM: We certainly won't get the transcript for tonight.

PN1157

THE COMMISSIONER: Sorry, I must have misunderstood. No, no transcript between now and tomorrow, but I thought the question was would it be of assistance to the Commission if closing submissions were in writing ahead of delivery for tomorrow or at the same time?

PN1158

MS BINGHAM: No, just at the same time, yes.

PN1159

THE COMMISSIONER: All right. I thought that's what you meant, and my previous comment stands. It's up to you. Whatever's easiest.

PN1160

MS BINGHAM: If Mr Forbes wishes to start at 10, it's no skin off my nose starting at 10.

PN1161

THE COMMISSIONER: Yes. I was about to say are you okay with that, Ms Bingham?

PN1162

MS BINGHAM: Yes, that's fine.

PN1163

THE COMMISSIONER: I think we are adjourning until 10 o'clock tomorrow morning. Thank you very much, everybody.

ADJOURNED UNTIL TUESDAY, 20 FEBRUARY 2018 牋牋牋牋牋牋牋 [2.06 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSIONS FROM THE HSU DATED 11/02/2016牋牋牋牋� PN412

EXHIBIT #A2 OUTLINE OF SUBMISSIONS IN REPLY FROM THE HSU FILED ON 11/04/2016............................................................................................................... PN413

EXHIBIT #A3 OBJECTIONS LIST FROM THE HSU DATED 19/02/2018 PN419

EXHIBIT #R1 RESPONDENT'S LIST OF EVIDENTIARY OBJECTIONS DATED 16/02/2018................................................................................................................................. PN420

PAUL ELLIOTT, AFFIRMED........................................................................... PN435

EXAMINATION-IN-CHIEF BY MS BINGHAM............................................ PN435

EXHIBIT #A4 WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH 15 ATTACHMENTS DATED 09/02/2016............................................................... PN449

EXHIBIT #A5 ADDITIONAL WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH THREE ATTACHMENTS DATED 14/04/2016................................... PN455

EXHIBIT #A6 SECOND WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH TWO ANNEXURES DATED 24/10/2017.......................................................... PN461

EXHIBIT #A7 THIRD WITNESS STATEMENT OF PAUL ELLIOTT TOGETHER WITH EIGHT EXHIBITS DATED 14/02/2018............................................................. PN467

CROSS-EXAMINATION BY MR FORBES..................................................... PN470

RE-EXAMINATION BY MS BINGHAM......................................................... PN592

THE WITNESS WITHDREW............................................................................ PN604

EXHIBIT #R2 OUTLINE OF RESPONDENT'S SUBMISSIONS DATED 08/03/2016牋牋牋牋 PN627

REBECCA SEKIC, SWORN.............................................................................. PN631

EXAMINATION-IN-CHIEF BY MR FORBES................................................ PN631

EXHIBIT #R3 WITNESS STATEMENT OF REBECCA SEKIC (FORMERLY BRACKO) TOGETHER WITH ONE ATTACHMENT DATED 29/11/2017................... PN648

CROSS-EXAMINATION BY MS BINGHAM................................................. PN651

THE WITNESS WITHDREW............................................................................ PN798

DOMENIC PERSANO, SWORN........................................................................ PN810

EXAMINATION-IN-CHIEF BY MR FORBES................................................ PN810

EXHIBIT #R4 FURTHER WITNESS STATEMENT OF DOMENIC PERSANO TOGETHER WITH THREE ANNEXURES FILED ON 17/11/2017..................................... PN822

EXHIBIT #R5 THIRD WITNESS STATEMENT OF DOMENIC PERSANO DATED 19/02/2018............................................................................................................... PN836

CROSS-EXAMINATION BY MS BINGHAM................................................. PN870

EXHIBIT #A8 SOUTH WEST HEALTH TRANSITIONING OUT PLAN.. PN923

EXHIBIT #A9 SOUTH WEST HEALTH IMPLEMENTATION PLAN...... PN924

RE-EXAMINATION BY MR FORBES.......................................................... PN1126

THE WITNESS WITHDREW.......................................................................... PN1133

Fair Work Commission Transcripts

AG2015/5182, Transcript of Proceedings [2018] FWCTrans 66 (6 March 2018)