051011b20113548 application protected action ballot...

TRANSCRIPT OF PROCEEDINGS Fair Work Act 2009 63641-1 COMMISSIONER GOOLEY B2011/3548 B2011/3549 B2011/3600 B2011/3601 B2011/3602 B2011/3603 B2011/3604 B2011/3605 B2011/3606 B2011/3607 B2011/3608 B2011/3609 s.437 - Application for a protected action ballot order Australian Nursing Federation and Grampians Community Health Centre Inc (B2011/3609) Melbourne 12.09PM, WEDNESDAY, 5 OCTOBER 2011 Reserved for Decision

PN1 THE COMMISSIONER: Mr Friend.

PN2 MR FRIEND: Thank you, Commissioner. I can propose this: that we deal first with matter 3548, which is the matter which deals with the 86 employers and the authorisation that has just been granted. As you'll be aware, Commissioner, section 442 of the Act places, it would appear, restrictions on dealing with multiple applications together, in the sense that it allows it in some circumstances and therefore doesn't presumably allow it in others.

PN3 What we would propose - and I think the parties are in agreement about this - is that we lead the evidence in relation to matter 3548; that all of the other applications dealing with the individual employers in each of schedules B, C, D, E and F - that the evidence that's led in 3548 be treated as evidence in each of those applications, so you only have to hear it once. The same issues are involved, the same concessions and agreements are in place, and the same decision presumably will be able to be made without duplicating the hearing time.

PN4 Commissioner, the application is made under section 437 for a protected action ballot. Section 443 provides that the tribunal must make a ballot order in relation to the proposed enterprise agreement if the application has been made under section 437. That's agreed that the application before you that we're dealing with satisfies that description and the tribunal is satisfied that each applicant has been and is genuinely trying to reach an agreement with the employer and the employees who are to be balloted. That is agreed that that is the case.

PN5 Subsection (5) is where we have some dispute. The ballot order may specify an extended period if the tribunal is satisfied in relation to the proposed industrial action, the subject of the ballot, that there are exceptional circumstances justifying the period of written notice being longer than three working days, up to seven. As I understand it, the employers seek seven working days. I was handed a document last night which indicated that that extension was only sought in respect of some of the forms of industrial action which are proposed. I don't know if you have a copy of that.

PN6 THE COMMISSIONER: No, I don't think so.

PN7 MR GOSTENCNIK: I was proposing to attend to it later but I'm happy to do so now if that's of assistance.

PN8 THE COMMISSIONER: Thank you. I'll mark that document VHIA1.

EXHIBIT #VHIA1 DOCUMENT RE EXTENDING PERIOD OF WRITTEN NOTICE

PN9 MR FRIEND: So the debate really is about the extension for the indicated items in that table. We propose to call evidence of Mr Gilbert, who's here, and that will constitute our case and then I'll make submissions after the evidence has been called by the VHIA. That's the appropriate course. So if it's convenient - perhaps before I do that, there was one other housekeeping matter that I've neglected to mention. It was raised yesterday I think in open hearing that there was an issue about some of the questions in relation to community health centres, and there's been agreement reached in relation to that - category B - that all of those applications dealing with community health centres that do not have beds have been amended and the amendments have been provided to the commission. I can provide to you a pro forma in relation to those so that you have something to go by, so that there's no question about closing beds. Bellarine Community Health Centre has beds and the application in respect of that remains the same.

PN10 THE COMMISSIONER: Thank you. I'll deal with that when we - - -

PN11 MR FRIEND: When we come to category B, yes.

PN12 THE COMMISSIONER: Yes, category B.

PN13 MR FRIEND: I call Mr Gilbert.

<PAUL FRANCIS GILBERT, SWORN [12.14PM]

<EXAMINATION-IN-CHIEF BY MR FRIEND [12.14PM]

PN14 MR FRIEND: Mr Gilbert, you have a document handed to you. Just state your full name, please?---Paul Francis Gilbert.

PN15 Your address?---540 Elizabeth Street, Melbourne.

PN16 You're the assistant secretary of the Australian Nursing Federation Victoria branch?---That's correct.

PN17 You prepared a statement in relation to this matter?---I did.

PN18 22 paragraphs and seven attachments?---I did, yes.

PN19 Are the contents of that statement true and correct?---Yes.

PN20 I think you have a copy, Commissioner. Yes, I tender that.

PN21 THE COMMISSIONER: Thank you. I will mark the witness statement of Paul Gilbert as ANF1.

EXHIBIT #ANF1 WITNESS STATEMENT OF PAUL GILBERT

PN22 MR FRIEND: Mr Gilbert, you're familiar with the operation of the health system in Victoria in relation to these employers we're dealing with?---Yes, I am.

PN23 Are you familiar with the questions of elective surgery?---Yes.

PN24 And the issue of cancellation of elective surgery?---Yes.

PN25 Is that something that occurs outside periods of industrial action by the ANF?

**** PAUL FRANCIS GILBERT XN MR FRIEND

---Hospitals routinely cancel or postpone elective surgery for a range of reasons and they call those hospital-initiated postponements.

PN26 Yes?---In fact data in respect to that is published in various reports available from the Department of Health.

PN27 Look at this document please. Could you describe that document, please, Mr Gilbert?---That's page 68 out of a departmental document called the Victorian Health Services Performance Report for the March quarter of 2011, and table 51 refers to the number - or percentage, in fact - of hospital-initiated postponements occurring across a range of public hospitals.

PN28 At the bottom of that table it sets out the percentage over a period of time, over the year up to March 2011?---That's correct.

PN29 I tender that, if the commission pleases.

PN30 THE COMMISSIONER: Thank you. I'll mark the document headed Victorian Health Services Performance Report March 2011 Quarter, which is two pages long, as ANF2.

EXHIBIT #ANF2 VICTORIAN HEALTH SERVICES PERFORMANCE REPORT MARCH 2011 QUARTER

PN31 MR FRIEND: Some evidence is going to be given about the notice needed to give to people of cancellation of elective surgery and the consequences of that. You have experience of the notice that's given to patients?---In my experience, the notice that's given to patients is usually of the nature of one to two days; sometimes the same day, sometimes even after admission has occurred,

sometimes after the patient has been prepared for surgery - bowel prepped, those kind of things.


PN32 Yes?---In the main, if not in all cases, hospital-initiated postponements occur at very short notice.

PN33 After these issues were raised yesterday did you make inquiries in relation to these matters during the course of the day?---I did.

PN34 Look at these two documents please. Could you describe those, please, Mr Gilbert?---They're both emails to the address that's - we, as a consequence of matters that were discussed yesterday, asked our members to provide experiences of surgery cancellations, particularly in the context of the expressed desire to provide counselling and support to people who had their surgery cancelled, and these were some of the responses that came back in respect to that.

PN35 Commissioner, can I ask this - possibly got the same document twice. Have you got two different documents?

PN36 THE COMMISSIONER: Yes, I do.

PN37 MR FRIEND: Thank you. I tender those, if I may, Commissioner.

PN38 THE COMMISSIONER: Thank you. I'll mark the two emails from Cathie Rayner to Lisa Fitzpatrick dated 4 October as ANF3.

EXHIBIT #ANF3 TWO EMAILS DATED 04/10/2011

PN39 MR FRIEND: Did you also obtain a press report in relation to cancellations, from 29 May of this year, in the Sunday Herald Sun?---I did.

PN40 Is that on the second page of that document, the quotation about the number - the statement about the number of elective surgery patients cancelled at the last minute, in the fourth paragraph?---Yes, and I've seen that statement in other documents, supported by the current minister, that that figure is reflective of published reports.


PN41 I tender that, Commissioner.

PN42 THE COMMISSIONER: I'll mark the three-page document headed "Herald Sun: it's a waiting game in our hospitals" as ANF4.

EXHIBIT #ANF4 THREE-PAGE DOCUMENT HEADED "HERALD SUN: IT'S A WAITING GAME IN OUR HOSPITALS" FROM 29/05/2011

PN43 MR FRIEND: One of the issues that's been raised in the witness statements for the employers concerns delay in elective surgery treatment. Are you aware of whether there are delays in elective surgery at the moment?---There aren't delays. Elective surgery falls into a number of categories, but elective surgery - for example, by way of a total knee replacement, the measurement is measured in 365 days. That's the time in which a person should be able to have that treatment performed, within 365 days, but there is data that shows that a significant proportion of people - and I think, for example, at the Austin about 23 per cent of patients don't get seen, don't have that treatment within 365 days now.

PN44 Could you have a look at this document, please. Could you describe that document?---That's a document I downloaded from the department's web site yesterday in which it's - the department's web site contains a number of links to hospital performance data and that's publicly-available data, and you can click down further and further into that to look at how individual hospitals are performing in regard to particular operations or clinical specialities - all those kinds of things. The document you've handed me is the one I referred to a moment ago, in fact, that the data came from for total knee replacements. Looking at the Austin Hospital, at the second line it's referring to there being 26.7 per cent of patients awaiting elective surgery for total knee replacement. 26.7 per cent of those waited for longer than a year and are therefore still waiting.



PN46 THE COMMISSIONER: Thank you. I'll mark the document headed Victorian Health Services Performance as ANF5.

EXHIBIT #ANF5 DOCUMENT HEADED VICTORIAN HEALTH SERVICES PERFORMANCE

PN47 MR FRIEND: Now, you've read Ms Diver's statement, have you?---I have, yes.

PN48 In paragraph 20 of that statement she says that there are 154,000 elective surgical procedures every year - that is 616 per working day - and that the proposed one-in-three reduction to operating sessions would need 205 less elective surgical cases each working day, on average. Do you have any comment on that?---What the statistics will show in terms of when we have had action in place, for example,

is that the number of - a reprioritisation occurs and the patient group who is in need of treatment within 30 days - the urgent treatment group - are given priority because the less urgent group tend to be the ones whose surgery is postponed, and we end up with 100 per cent statistics or statistics showing that urgent patients receive their treatment within 30 days 100 per cent of the time, which is higher than it would normally be outside of our industrial dispute.

PN49 What is it normally at, outside the industrial dispute?---It's 97, 98 per cent. Something around that range.

PN50 Do you base that experience in past industrial action?---Yes, because there is a reprioritisation process that we encourage - and it's referred to in the ballot questions about having a bed management committee.

PN51 Yes?---That bed management committee obviously can only occur if there is preparedness on both sides for that to happen, but in our experience that generally does happen. We sit down - not we the ANF but we our respective members in those areas - with management and logically reprioritise the surgery if it's going to occur. Given the nature of the proposed bans means that emergency surgery is given priority over non-emergency surgery for the duration of the dispute.


PN52 When you say "emergency surgery" what do you mean?---That's either surgery that's meant to be done within 30 days or surgery as a result of trauma that comes in via emergency departments and those kinds of things.

PN53 When you say "meant to be done within 30 days" that's category 1?---Category 1, yes.

PN54 Thank you?---I should say further, on that point, that we have a policy within - and this has been a campaign that we've ran on previous occasions. We've had a policy throughout that time that a patient whose condition would deteriorate significantly within 24 hours if they weren't admitted will be admitted.

PN55 If I can just take you back to cancellation for a moment, are you aware of whether patients who have their elective surgery cancelled in the ordinary course receive counselling?---I hesitate to put it - in my exploration yesterday, with our members generally, it was considered to be a humorous and innovative idea that the hospitals would embark on some counselling process if they had more notice because there is no counselling process - no effective counselling process now. That depends on whether you are already a patient and you get sent home. If you're already prepped and ready to go, and you are sent home, you might get some degree of counselling.

PN56 Yes?---If you've never been - if you've not got to the point of admission, and your surgery is cancelled, then you may simply get a message on your phone. That's most people's experience, both personally and as nurses. That's what happens. There's no other contact.

PN57 A message on your phone to what effect?---That your surgery has been postponed at this stage, and we'll be in contact with you for alternative dates.


PN58 The ANF took some industrial action in 2001. Is that right?---Yes.

PN59 Can you look at this document, please. Does that record resolutions in respect of that industrial action taken on 9 August 2001?---It does, yes.

PN60 Does that describe how many operational beds were to be closed under those resolutions?---That's correct.

PN61 And the number?---One bed in three.

PN62 Did that industrial action actually take place?---It took place from the 9 to 23 August 2001.

PN63 9 to 23 August 2001; one bed in three?---That's correct.


PN65 THE COMMISSIONER: I'll mark the document headed ANF Resolution Moonee Valley Racecourse 9 August 2001, which is a two-page document, as ANF6.

EXHIBIT #ANF6 ANF RESOLUTION MOONEE VALLEY RACECOURSE 09/08/2001

PN66 MR FRIEND: There's some evidence given in Ms Edwards' statement about redeployment in psychiatric facilities?---Yes.

PN67 Have you made inquiries about whether redeployment ever occurs in those facilities?---We could not find any experience of redeployment occurring in the current scenario. In fact, I guess, to add weight to the concept that it's kind of an unheard thing, we received a change impact statement, which is a terminology used in our industry to describe a document to give effect to a proposed change and we received that from Austin Hospital in respect to its mental health services,

asking us to meet and discuss a proposed change to introduce redeployment. It's simply because redeployment is not a feature of the system currently and it's put in there in contemplation that there may be redeployment proposed to try and - you know, if someone calls in sick, for example, rather than what they would ordinarily do and bring an external person out to - that they might try and fill that from within external resources as a cost saving during the dispute.


PN68 When you say "put in there" do you mean put in the ballot questions?---Yes, put in the ballot questions to reflect the potential, from experience, that during the dispute there will be efforts to redeploy people. That hasn't happened in mental health because there's no proposed bed closures in mental health.

PN69 Yes?---You know, if you need seven people and you've got 30 beds, there's no opportunity to move that person to somewhere else because there's no - we're not closing any of those 30 beds.

PN70 And it might arise in other circumstances because beds are closed?---Correct. If you've got eight beds closed on a 40-bed ward then there would be an enthusiasm by hospital management to move someone from that area, given the change in patient numbers versus rostered nurses.

PN71 Thank you. Pardon me one moment. Nothing further, Commissioner.

PN72 THE COMMISSIONER: Thank you. Mr Gostencnik.

PN73 MR GOSTENCNIK: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR GOSTENCNIK [12.31PM]

PN74 MR GOSTENCNIK: Mr Gilbert, you're not saying that the proposed industrial action that's the subject of the resolution isn't going to have any effect?---It will have an effect; correct, yes.

PN75 What effect, in your experience, will it have?---It will have the effect of putting pressure on the employers to resolve the dispute.

PN76 What effect will it have on the capacity of hospitals to admit patients to beds?---It will change the nature of patients who are admitted, in our experience. There will be an increase in the number of urgent admissions and a decrease in the number of elective admissions.

**** PAUL FRANCIS GILBERT XXN MR GOSTENCNIK

PN77 When you say "an increase in the number of urgent admissions", that results from what, prioritisation?---It results, I hesitate to say, to some degree from a recategorisation by people's treating doctors to "urgent" in order to have their patient admitted, when in fact their condition isn't urgent within the criteria that would normally apply to surgery outside the industrial dispute - nothing that we've done - and probably the main factor is - and as I've discussed in detail with an emergency physician last night - that if we were to cancel a theatre session that would be eight patients who would have been admitted post-theatre to beds and, as a consequence of that session not proceeding, then there are eight beds available that wouldn't normally be available, and that even if three of them were closed as a consequence of our industrial action that would give them five more beds than they would ordinarily have to admit to, direct from ED, where obviously the main critical emergency patients enter the system.

PN78 The patients who are admitted to hospital beds, who you describe as non-urgent, you're not suggesting they shouldn't be in hospital beds?---Sorry, I missed the last bit.

PN79 You discussed a change in the way in which hospitals will admit patients, from admitting non-urgent patients to admitting more urgent patients. That's one of the effects of the bans on bed closures?---I did say that, yes.

PN80 You're not suggesting that persons who you describe as non-urgent should not be admitted to hospital beds?---They would all need to be admitted to hospital beds at some point.

PN81 But a person would otherwise have been admitted to a hospital bed, when these bans are implemented - described as non-urgent in your case - would not be admitted to a hospital bed?---Potentially not admitted, yes.


PN82 You gave some evidence about elective surgery cancellation being an everyday occurrence. Remember that?---Yes.

PN83 It's the case, is it not, that the effect of the bans would be that more elective surgery would be cancelled? That is normally the case?---Look, the government's own statistics will show that 8 to 15 per cent is their - that's their KPIs, if you like, of elective surgery cancellation. 8 per cent is meeting your best KPI and 15 per cent - it's a sliding scale back to 15 per cent, where you get no bonus as a consequence.

PN84 Yes, but - - -?---So there is an ordinary 8 to 15 per cent at least turnover of - or cancellations that occur in the routine scheme of things. I'm just carefully answering, Mr Gostencnik, because it may be that those 8 to 15 per cent are

replaced by people with urgent surgical theatre requirements. It doesn't automatically mean that if you take 30 people out of a theatre schedule that 30 people don't get operated on. They might be a different 30 people getting a different 30 procedures done on them. Because our proposed action very clearly delineates between people who have got an urgent requirement for care and people who are assessed as needing - or a preferential time frame for care between 30 and 180 days, I think, and the other one is up to 365 days. So there's quite a window there. When you look back historically, our industrial campaigns have never really exceeded three weeks, and three weeks in the context of 180 days of potential treatment time I don't see as being - you know, it disadvantages - well, it would irritate people. I accept that that would happen. If I had my surgery cancelled I would be irritated by that, but I don't believe for a moment that there is any deterioration in the patient's condition as a consequence of that.

PN85 Mr Gilbert, can you listen to the question that I asked? Your bans are said to include a ban - or your proposed bans are said to include a ban on the cancellation of up to one in every three operating sessions. That's a third - up to a third, is it not?---Yes.


PN86 Doesn't it follow that more elective surgery - to use your term, non-urgent elective surgery - will be cancelled as a consequence of the bans?---I'm quoting the department's terms about urgent and non-urgent but - - -

PN87 I'm using your terms?---And I'm quoting from the department's categorisation. The logical consequence of banning one in three theatre sessions would be a reduction in elective surgery of up to one third.

PN88 Yes, and if the ban were to be implemented across each of the hospitals that provide surgery - or theatre sessions in this state - potentially one third of theatre sessions available for elective surgery will now not be available?---Not be available for elective surgery; that would be right.

PN89 Do you know what factors are taken into account when a decision is made currently to postpone elective surgery for a particular patient?---I'm aware of probably most of them.

PN90 What are they?---Are you talking about hospital-initiated postponements?

PN91 Yes?---They would be - the factors that would give rise to them or the considerations - - -

PN92 The considerations that those who make a decision whether or not to postpone a particular patient's elective surgery - do you know what those factors are?---Well,

those factors would include whether or not the patient's condition would deteriorate significantly as a consequence of that, and whether or not they could be put somewhere else into a theatre if it was operational, or be operated on by a surgery who was available, or all of those potential options that ran through on the day.


PN93 That requires some consideration, does it not? It requires consultation with surgeons, does it not?---I would suggest to you that it happens routinely, yes.

PN94 Just answer my question. It requires, does it not, consultation with surgeons?---It would be referred ordinarily to the director of surgery. I'm not privy to attending the director of surgery's meetings.

PN95 It would require, would it not, consideration about the particular patient's condition?---Yes, obviously.

PN96 It would require, would it not, considerations about whether or not and when a surgical session might be made available for the patient?---The opportunity for a subsequent session would be a consideration, yes.

PN97 It would also require consideration of whether or not a particular bed into which that patient might be admitted would be available at the time that the surgery was rescheduled?---Correct.

PN98 So those considerations take some time, don't they?---No, that's where I don't agree. This is where my answer before was perhaps premature in that these things happen routinely, every day, in hospitals, with very, very short or no notice, in fact. Patients prepped ready for theatre are cancelled. It's regrettable.

PN99 Are you talking about the notice that's given to a patient?---I am.

PN100 Yes, but not the decision leading up to that?---No, well, the decision is as a consequence of unforeseen issues that have generally happened in that same day or perhaps the day before. No-one organises theatre for a day when they know there's no theatre.


PN101 But ultimately, where elective surgery capacity is reduced or going to be reduced by up to a third, there will be a significant requirement, will there not, to give consideration across a range of patients, across a range of conditions, across a range of services, in circumstances where the bed capacity will also have been

reduced. Isn't that the case?---And that's what those meetings that we have with hospital managers every day in the dispute is all about, managing that.

PN102 Can you answer my question? Is that not the case, that there will be a multiplicity of considerations across a multiplicity of patients in circumstances where the capacity of the system might be reduced by up to a third?---In my experience there would be a reprioritisation process occur that is not particularly time-consuming; it happens on a day-by-day basis.

PN103 It happens on a day-by-day basis, Mr Gilbert, in circumstances where there are no bans?---I'm talking about my experience during industrial campaigns, where this has occurred in the past.

PN104 Are you suggesting that there were no elective surgery cancellations during the past courses of industrial action?---No, I'm not suggesting that.

PN105 Isn't it the case that large numbers - certainly more significant than the numbers relating to hospital-initiated elective surgery cancellations occurred during the last campaign in 2007?---Strangely, and almost counterintuitively, I'd say the answer to that is no. The statistics would show that over the course - if you look at the 13 days, or however long the campaign went for - nine days or something - you can look at that and say, "Well, within that nine days there were less elective surgeries occurred." If you look at it across the reporting time, which is a quarter - a three-month period - there is no change in the number of elective - in fact sometimes over the various campaigns the number of elective patients treated increased and the number of urgent patients treated increased and ambulance response times decreased. I know it sounds counterintuitive but - - -


PN106 That's not the question I asked you. I asked you - - -?---I'm really falling for that one a bit, aren't I?

PN107 Yes. The question I asked you is, isn't it the case that a larger number of elective surgeries were cancelled during the last industrial action period than would otherwise be the case when hospitals initiate cancellations?---Comparing elective to elective, I'd agree that that's possible. I don't have any statistics to support it.

PN108 Continuation of elective surgery during periods of industrial action is as a consequence of reprioritisation of patient categories, is it not?---Sorry, Mr Gostencnik?

PN109 Isn't it the case that during periods where the ANF engages in the kind of industrial action that is proposed that the hospitals undertake an exercise of reprioritising patients who are to be operated on?---Yes.

PN110 They don't do that just in relation to one patient, do they?---No. Only unless there was one patient affected.

PN111 Necessarily, when you cancel or make unavailable up to a third of operating sessions, there will be significant numbers affected, won't there?---The words "up to" are used with intent. I mean, you anticipate that there would be - one-third of theatre sessions that would ordinarily be set aside for elective surgery would be - those patients would be postponed and rescheduled for some later period.

PN112 Having that occur in the context of industrial action occurring system-wide takes some effort and some time, does it not?---No, in my experience it doesn't.

PN113 You've run an operating theatre before, have you, Mr Gilbert?---No, Mr Gostencnik.


PN114 Have you sat on committees which have made these decisions?---I have been involved in consultations with those committees where agreement has not been able to be reached.

PN115 Have you ever contacted patients who have had elective surgery cancellations? ---I've had patients contact me who have had elective surgery - - -

PN116 Have you ever contacted patients who have had - - -?---No, Mr Gostencnik, I don't.

PN117 The proposed industrial action concerning the closure of one in three beds, putting aside the exemptions, will quickly lead to a reduction in hospital capacity, will it not?---For certain types of admissions, yes.

PN118 Let's explore that for a minute. Let's assume we have a ward of 30 patients - medical patients?---Yes.

PN119 The effect of your ban will be - assuming full occupancy today and assuming your ban is implemented tomorrow - once patients are discharged from those beds that bed will be closed?---Subject to the urgent admissions criteria, correct.

PN120 I understand that. So that, over a relatively short period, up to 10 beds in that ward might be closed?---I'd be surprised if it happened but it might be possible.

PN121 In addition to that, your members might further allocate two of the remaining beds as emergency beds?---That's right.

PN122 That will mean that patients who are not emergency patients will not be able to be admitted into that ward, assuming 10 bed closures, two allocated, when the ward is at 18-bed occupancy?---That's potentially so.


PN123 Assuming that was the same in relation to the surgical ward, aside from the two emergency beds, elective surgery patients couldn't be admitted into that ward? ---So we're talking 18 beds in a 30-bed ward because 12 are closed? Is that - - -

PN124 10 are closed and two are emergency?---18 are left, and there are - - -

PN125 And they are occupied?---They are occupied, yes.

PN126 A person who might have elective surgery couldn't be admitted into that ward? ---That's correct.

PN127 So if elective surgery is to occur, other arrangements would need to take place? ---If the person required - - -

PN128 A bed?--- - - - admission to a bed, yes.

PN129 That, multiplied across the system, has a significant effect in reducing the capacity of the hospital system, does it not, to deal with surgery, to deal with admission of medical cases into public hospitals?---Non-urgent cases, it will have that impact, yes.

PN130 Let's be clear. Non-urgent cases doesn't mean that people don't require hospitalisation, does it?---It just means they don't require it right now. That's correct.

PN131 But it's desirable?---It's desirable.

PN132 You're not in a position to dispute the fact that it might have a negative impact on their outcomes if they're not admitted?---No, well, I think I can say that the department's own categorisation is based on its own medical evidence that if a person is treated within that window of zero to 30 days or 31 to 180 days, there is no medical consequence for that delay.


PN133 You're talking about surgery?---I am talking about surgery, correct.

PN134 Yes. I'm talking about medical admissions now?---I didn't notice the jump.

PN135 You're not in a position to say that the failure to admit a non-urgent medical condition won't have the effect of having an adverse outcome on that patient?---If it was likely to have a significant one the patient would be treated as an urgent admission. It may give rise to irritation and unhappiness, I agree, but it won't have any significant impact on their health outcome or we would happily admit the person.

PN136 Decisions about whether or not a patient requires admission is made by the medical staff?---Subject to resources that are available, yes.

PN137 That's right?---Yes.

PN138 So it follows, does it not, that a doctor who's of the opinion that somebody requires admission to a hospital needs to then work through the myriad of - sorry, I'll withdraw that. There needs to be capacity in the system to admit that patient? ---Yes.

PN139 If there's not the capacity in one hospital, presumably attempts are made to admit that patient in another hospital?---Initially attempts would be made to release a bed by discharging somebody, yes.

PN140 But the cumulative effect of the industrial action proposed will mean that there are fewer resources in the health system to accommodate patients who would otherwise be admitted into hospital?---Correct.

PN141 So that a range of considerations would need to be taken into account in relation to those patients?---As they are every day.


PN142 Yes, but not within the same constraints as hospitals will face when your bans are implemented?---But I think the considerations are quite comparable, but it would be on potentially a broader scale. I should say during winter we have gastro outbreaks, for example. We have flu outbreaks, we have things that come along that fill hospital beds up very rapidly, and they face those same consequences during those times.

PN143 Yes, but here we're not talking about filling beds. We're talking about making beds that would otherwise be full not available. It's an entirely different circumstance?---No, it's not, because the beds that they thought they were going to have available for admission to people have been used by somebody else who they hadn't anticipated would be admitted.

PN144 All right. The considerations that hospitals take into account during those outbreaks and the - sorry, what are the considerations that hospitals take into account in relation to those sorts of outbreaks? What do hospitals do?---They reprioritise.

PN145 And do you know what they actually do when they reprioritise?---No, I don't, but they do it quite quickly.

PN146 You know that how?---Because it happens every year, at least once a year.

PN147 What happens?---That hospitals have to reprioritise as a consequence of an outbreak of something or other.

PN148 You say they do it quite quickly. Give me an example?---If there was a gastro outbreak - - -

PN149 Give me an actual example.


PN150 THE COMMISSIONER: Mr Gostencnik, one of the things that is concerning me about the course of this cross-examination is that many of the things that you may be raising may be relevant to issues about suspension or termination of bargaining periods but it doesn't seem to me particularly relevant to the question about whether you get three or seven days' notice. Once the notice is given the beds will be shut on a progressive basis. So just given the time constraints, I ask you to focus on the issues that I have to determine, which is whether there are exceptional circumstances that warrant anything other than the norm, which is you get three days' notice of the industrial action.

PN151 MR GOSTENCNIK: Okay.

PN152 Isn't it the case, Mr Gilbert, that the healthcare system, hospitals individually and collectively, will need to plan for taking whatever steps they can to mitigate against the effect of the industrial action?---Yes.

PN153 They will have to plan for what will inevitably be blockages to emergency departments?---Only if we took the industrial action.

PN154 Yes, I'm assuming that?---I'm hoping that's not inevitable.

PN155 Assuming you take the industrial action, they will need to plan for that, will they not?---Yes.

PN156 And they will need to plan for how they deal with rescheduling of surgery, will they not?---Yes.

PN157 And they will have to deal with or review the patients that are scheduled for surgery during the period of anticipated industrial action, will they not?---Yes.


PN158 In order to prioritise?---Yes.

PN159 They might have to rearrange resources?---Yes.

PN160 And they'd have to plan for rearranging operating theatre schedules?---Yes.

PN161 And they'll have to plan for how they will prioritise the most urgent cases?---Yes.

PN162 And they'll have to undertake a risk assessment, will they not?---Yes.

PN163 And they'll have to coordinate with other health services, will they not? ---Potentially.

PN164 And they'll have to consult with ambulance service, will they not?---In respect to emergency departments, potentially, yes.

PN165 And they'll have to communicate with patients, will they not?---Yes. Sounds like an ordinary day.

PN166 Thanks for the gratuitous comment. Can I just take you briefly to some of the matters that arise from the exhibits that were tendered. ANF3 contains two emails?---Yes.

PN167 And I take you to the first of those, which is signed by Chris Van der Stock, who is the elective surgery manager at the Royal Children's Hospital. The Royal Children's Hospital is exempt, is it not?---Yes, it is.

PN168 The other relates to - it seems like an email from a patient?---It would be a member who had been a patient as well; correct.


PN169 Did you make any other inquiries?---Other inquiries of members?

PN170 Yes?---Yes, we made quite broad - well, we sent out an email to our public sector membership. That's right.

PN171 And these are the two you got back?---No, they're not the only two we got back. We could have given you other ones and none of them would have - these were indicative of the kind of things that we got.

PN172 I see?---We didn't pick and choose particularly.

PN173 Just excuse me for a moment. Those are the matters, Commissioner.

PN174 THE COMMISSIONER: Mr Friend?

PN175 MR FRIEND: Nothing in re-examination, Commissioner. The witness can be excused.

PN176 THE COMMISSIONER: Thank you for your evidence, Mr Gilbert. You may leave the witness box.

<THE WITNESS WITHDREW [1.00PM]

PN177 MR FRIEND: That's the case for the ANF - the evidentiary case.

PN178 THE COMMISSIONER: Yes. Mr Gostencnik.

PN179 MR GOSTENCNIK: Yes, thank you, Commissioner. I call Karleen Edwards, who I understand is outside.

<KARLEEN MICHELLE EDWARDS, AFFIRMED [1.02PM]

<EXAMINATION-IN-CHIEF BY MR GOSTENCNIK [1.02PM]

PN180 MR GOSTENCNIK: Good afternoon, Ms Edwards, thank you for making the time to come along today. Also, apologies for the inconvenience caused yesterday. Could you, for the record, state your full name?---Karleen Michelle Edwards.

PN181 And your business address?---50 Lonsdale Street, Melbourne.

PN182 In preparation for these proceedings, did you assist in the preparation of a witness statement?---I did.

PN183 Do you have a copy of that witness statement with you?---I do.

PN184 Is that witness statement some 17 paragraphs in length - three pages?---Correct.

PN185 Dated 4 October 2011?---Correct.

PN186 Do you have any amendments you wish to make to that statement?---No.

PN187 Are the contents of that statement true and correct?---They are.


PN189 THE COMMISSIONER: I will mark the witness statement of Karleen - - -

PN190 MR FRIEND: Commissioner, some of the content would seem to go to the issues that you raised with Mr Gostencnik in his cross-examination. I don't want to take a formal objection, but the material is obviously irrelevant.

PN191 THE COMMISSIONER: Thank you, Mr Friend. I'll mark the witness statement of Karleen Edwards, which is 17 paragraphs long, dated 4 October 2011 as VHIA2.

**** KARLEEN MICHELLE EDWARDS XN MR GOSTENCNIK

EXHIBIT #VHIA2 STATEMENT OF KARLEEN MICHELLE EDWARDS DATED 04/10/2011

PN192 MR GOSTENCNIK: Commissioner, if I may, there was just one matter that I want to explore in examination-in-chief.

PN193 Ms Edwards, can I take you to paragraph 16 of your statement. I understand you wanted to make some or give some elaboration on that, so I'd invite you to do that now?---Thank you. I just wanted the opportunity to expand on the work that a service would need to undertake to prepare for those bans and to ensure that patients receive appropriate care. Firstly, these are acute or urgent care services. There are really no elective mental health services, so the sense of being able to put people on waiting lists isn't an option for the services. Also a number of people within inpatient services are there under compulsory treatment orders, so under the Mental Health Act, and it's important for the service to ensure that the Act is appropriately operationalised and that means ensuring staff are available to administer medications, monitor the use and effects of treatments, to provide clinical assistance and also risk assessments, and also to manage, at times, restraint and seclusion. So to prepare for those proposed bans, the services actually need to assist the rest of the individuals, they need to work in alternative service provisions and treatment sessions. For instance, if somebody requires a regular depot injection, then they need to determine whether they receive it earlier

or later, and in terms of planning for that they need to engage families and carers around those individuals, to look at options for reducing admissions and to facilitate earlier discharges if that's possible, but also to provide other supports. Just the logistics of organising all of those things on an individual basis for people within care but also about to come into care will take longer than three days. My expectations of services will ensure that staff who are present have the necessary skills and knowledge to actually assess and manage the symptoms and behaviours of people of what is really a very highly vulnerable group. The importance of consistency and less change of routine is really important for them and their ongoing management. This is probably the most distressing part of - in people with chronic mental illness in terms of an inpatient admission. So a safe treatment and therapeutic environment is really important for that, for both staff and patients within that environment. So just that sense that it actually takes a lot to actually plan those changes. Thank you.

**** KARLEEN MICHELLE EDWARDS XN MR GOSTENCNIK

PN194 That's the evidence of this witness.

PN195 THE COMMISSIONER: I just need to ask a question in relation to that. So these are for the people that you know are going to be admitted to the hospital over the period of the industrial action. What percentage of mental health patients do you know are going to be admitted in any period?---This is for - - -

PN196 In advance?---So this is for people who are already within services. So their average length of stay would be 10 to 12 days. So people within services that also need to receive consistent care and be assessed for their risk, if there are to be changes such as being discharged earlier, or changes in the way that their treatment - or monitored.

PN197 I'm just trying to understand whether, for example, you would know that somebody is going to be - say the industrial action is going to start on 1 November - 2 November?---Yes.

PN198 In terms of planning, you would know who was going to be admitted to a mental health facility or bed in November in the last week of October?---We - - -

PN199 Do you know who they are?---There are a percentage of people who will be followed up in the community where you would be monitoring any deterioration, but that's a small group of people that you would be aware of. Many present very acutely, and so you wouldn't have that ability to be able to say, "Yes, we know they're going to be admitted in a week." But there is a group of people, certainly that we're aware of, and monitoring and supporting, that are likely to require admission.

<CROSS-EXAMINATION BY MR FRIEND [1.09PM]

PN200 MR FRIEND: Ms Edwards, you've been in Victoria since 2009?---Correct.

**** KARLEEN MICHELLE EDWARDS XXN MR FRIEND

PN201 I see from your statement. So you don't have experience of the previous industrial action taken by the ANF?---Not in Victoria.

PN202 Not in Victoria. Thank you. You talk about bans on overtime, in paragraph 7(c) of your statement. What do you understand the ban on overtime to be?---I don't have the bans with me. My understanding is that there needs to be approval.

PN203 Approval by the employer, in writing, in advance?---Correct.

PN204 And what's the position with overtime normally? People just do it without approval, do they?---Approval by whom?

PN205 Without approval by the employer?---No, the - - -

PN206 They normally need to get approval to do overtime?---Correct.

PN207 So the difficulty in relation to that is that it's got to be given in writing in advance, has it?---(No audible reply)

PN208 All right, and what do you anticipate will be the effect in terms of overtime? ---The effect really - my understanding is that in terms of being able to provide a service at the point of time and in terms of having the adequate staff skills and experience and knowledge to provide the service - - -

PN209 That's beyond my question. My question is what will be the effect? How many people won't be working because of this ban on working overtime unless it's approved in advance?---I don't have that information.

PN210 So you can't see there'll be any effect at all?---Well, I can't answer that because I don't have that information.


PN211 But you've said in your statement that it's creating a problem, but you don't have the information that's fundamental to working out whether there's going to be a problem or the extent of it?---You asked me how many people that would affect.

PN212 Don’t you need to know how many to understand whether there's going to be a problem?---That would be the degree of the problem.

PN213 Well, you don't know if it's going to be a big problem or a small problem, do you?---No, I don't.

PN214 Thank you. Redeployment is not something that occurs at the moment, is it? ---Occasionally on a short-term basis but usually it's to respond to demand on services in particular areas.

PN215 So it's only the occasional thing, all right. So in terms of the ban on redeployment, that affects only something that happens occasionally; correct? ---Redeployment occurs to manage demand in particular areas and services, which may change depending on particular pressures. And if you are providing changes to the inpatient service, that may well affect the need and the demand on other services requiring redeployment.

PN216 You talk about consistency of care for inpatients?---Yes.

PN217 Do you mean by that continuity; care from the same person?---It means two things. It does mean continuity of care, particularly where the relationship between a key nurse or a key worker is important, and that therapeutic relationship on an individual basis is really part of the therapeutic environment. So there is that but there's also consistency in terms of having consistent knowledge and understanding of the way that - the practices that you implement.


PN218 So if one nurse isn't working because of industrial action, there will have to be a handover to someone else who takes over that job?---Correct.

PN219 That's what you see as the problem?---That's one of the problems.

PN220 That's the one you're dealing with when you talk about consistency of care?---It may be, though, that if an individual has a key worker who is a nurse and that nurse isn't available at short notice, then that may be an issue around consistency of care. But handover will be a really important part of that.

PN221 Yes?---It's a change in routine and a consistency around the care that a person receives that's also important for this particular group.

PN222 That will be an ongoing problem throughout the whole period of any industrial action that's taken; correct?---Correct.

PN223 It's not going to be something that only occurs on the first day. It will occur on the second day or the 10th day; correct? You need to speak your answer, sorry? ---Correct, yes.

PN224 All right. So that being so, it doesn't make any difference whether you get seven days' notice or three days' notice, does it?---Well, it doesn't mean that you could rearrange in terms of who's managing that person or how that person is managed - whether you look to other professional groups or other people within the team that might be able to assist.

PN225 But those extra four days won't have any effect on what you've done in respect of days 5, 6, 7, 8 or 9, will they?---But they will assist in the planning for day 1.

PN226 Yes, and you know what the proposed industrial action is now, don't you? You know what's in the - - -?---Can you - - -


PN227 You know what the proposed industrial action is?---Yes.

PN228 I assume you're making contingency plans in respect to that even now? ---Certainly the contingency plans are there but it's actually in the operationalisation of those plans that will take the time, because it won't include just the service itself but includes a much wider stakeholder group, the service users and their families, as well as looking at the support from other parts of the sector.

PN229 And you simply assert that three days isn't long enough?---Correct.

PN230 And you've got no experience in respect to that operation of those bans in Victoria?---But I have elsewhere.

PN231 Yes, all right. Can I show you a document please? Are you familiar with this? ---No, I'm not.

PN232 That sets out the procedure in Southern Health for increasing staff due to ward acuity. Is that the type of procedure that operates in the establishments that you're dealing with?---It is.

PN233 So there's quite a bit that has to be done in relation to doing that but it's all done in a fairly short period of time, isn't it?---Yes.

PN234 I tender that, if the commission pleases.

PN235 THE COMMISSIONER: I'll mark the document headed Southern Health Inpatient Wards' Need to Increase Staff Duties - Ward Acuity as ANF7.

EXHIBIT #ANF7 DOCUMENT HEADED SOUTHERN HEALTH INPATIENT WARDS' NEED TO INCREASE STAFF DUTIES - WARD ACUITY

PN236


MR FRIEND: You accept that there's no planned industrial action that would involve closure of beds in your establishments?---I do.

PN237 The acute inpatient units, you can't predict who or when patients are going to attend or require admission?---Generally not. There is a small group that we would be aware of.

PN238 A small group, yes. How many patients are admitted with more than three days' notice into an acute ward?---I can't give you that off the top of my head, sorry.

PN239 Almost none. It would be very rare, wouldn't it?---With more than three days' notice? Mostly they're admitted acutely. In some wards there will be some planned admissions and there's the other group that I've mentioned that are being monitored because they're deteriorating, that we know we will be coming at some stage.

PN240 But you don't know when they're coming or which ones, indeed, do you; correct? ---Correct.

PN241 So there's a group of people out there, some of whom might need to be admitted, you're fairly confident, but you don't know when or who, and otherwise you can't predict at all who is going to be admitted without notice whatsoever. That's all right, isn't it?---That's correct.

PN242 So I suggest to you that seven days' notice is totally unnecessary in respect of planning because you can't plan for those people?---But you can plan for the expectation around the likely number of admissions per day and about managing the people within your current services who are likely to be there for, you know, 10 to 12 days and how you would manage those over that period as well.

PN243 That planning will be something that goes on from day-to-day while the industrial action takes place, won't it?---Yes, although if you're going to reduce the staffing at particular times and you want to maintain safety and a safe therapeutic environment, then you will need to plan for that ahead of time.


PN244 Yes, thank you. Nothing further, Commissioner.

PN245 THE COMMISSIONER: Mr Gostencnik.

PN246 MR GOSTENCNIK: Nothing in re-examination.

PN247 THE COMMISSIONER: Thank you.

PN248 Thank you for your evidence. You're excused from the witness box and you may leave the tribunal if you wish?---Thank you.


PN249 MR GOSTENCNIK: If the tribunal pleases, I call Frances Diver.

<FRANCES MARIE DIVER, AFFIRMED [1.20PM]

<EXAMINATION-IN-CHIEF BY MR GOSTENCNIK [1.20PM]

PN250 MR GOSTENCNIK: Thank you for your attendance this afternoon, Ms Diver. Would you, for the record, please state your full name?---Frances Marie Diver.

PN251 And your business address?---Business address: 50 Lonsdale Street, Melbourne.

PN252 And your occupation?---Public servant.

PN253 What position do you hold?---Executive director of the hospital and health service performance division in the Department of Health.

PN254 For the purposes of these proceedings, did you assist in the preparation of a witness statement?---Yes, I did.

PN255 Do you have a copy of that witness statement?---I do.

PN256 Is that witness statement some 34 paragraphs in length; five pages?---Correct.

PN257 Dated 4 October 2011?---Correct.

PN258 You have attached to that statement two documents marked, respectively, FD1 and FD2?---Correct.

PN259 Are the contents of that statement and the annexures true and correct?---Yes.

PN260 That's the evidence of this witness.

PN261 THE COMMISSIONER: Thank you. I will mark the witness statement of Frances Diver, which is 34 paragraph long, dated 4 October, with two attachments, as VHIA3.

**** FRANCES MARIE DIVER XN MR GOSTENCNIK

EXHIBIT #VHIA3 WITNESS STATEMENT OF FRANCES MARIE DRIVER DATED 04/10/2011 WITH TWO ATTACHMENTS

<CROSS-EXAMINATION BY MR FRIEND [1.21PM]

PN262 MR FRIEND: Ms Diver, elective surgery is cancelled all the time, isn't it?---In some cases elective surgery is cancelled and rescheduled. Correct.

PN263 It happens every day?---Correct. Most working days there would be cases across Victoria cancelled. Not in every hospital, but yes.

PN264 Can you have a look at this document, please. This is a document about performance and accountability of Health Victoria. Are you familiar with it?---I am.

PN265 HIP is hospital-initiated postponements of elective surgery. If you look at what's page 35 - it's an extract - there's a very large number of reasons put out there for coding why surgery is cancelled. You accept that?---Correct, yes.

PN266 And all of those reasons operate all of the time, don't they?---Yes. I notice this is 07-08.

PN267 Yes?----2007-08; so there's been a few amendments since then.

PN268 All right?---But in general, yes, surgery is cancelled, and yes, in general, for the range of reasons that are outlined in the document.

PN269 And, at least in 07-08, there were benchmark targets for the number of elective surgeries that were to be cancelled?---Correct.

PN270 If you turn to page 37, in terms of KPIs at that time, less than 8 per cent was three points going to greater than 15 per cent. Are they still the targets now?

**** FRANCES MARIE DIVER XXN MR FRIEND

---Approximately. There's been some minor changes to counting rules and minor changes to targets, but the general thrust of - yes, there are benchmarks set for health services, to ensure that they limit the cancellation of elective surgery patients.

PN271 I have an exhibit somewhere here which gives some recent figures in relation to that. Pardon me one moment.

PN272 THE COMMISSIONER: Do you wish to tender this document?

PN273 MR FRIEND: Yes. I'm sorry, your Honour.

PN274 THE COMMISSIONER: I'll mark the document Victorian Public Health Service Performance and Accountability Framework Business Rules 2007-08 and the extract attached as ANF8.

EXHIBIT #ANF8 VICTORIAN PUBLIC HEALTH SERVICE PERFORMANCE AND ACCOUNTABILITY FRAMEWORK BUSINESS RULES 2007-08 AND ATTACHED EXTRACT

PN275 MR FRIEND: Can the witness be shown ANF2, please.

PN276 That's the performance report for the March quarter?---Sure.

PN277 And that shows the postponements across Victoria of between 6.4 and 6.9 per cent, and there's nothing out of the ordinary in relation to that?---As in is that a reflection of the performance of the sector?

PN278 Yes?---Yes, approximately six to seven cases per 100 scheduled admissions are cancelled within a period of surgery, usually - my memory is - within a two-week period of surgery.


PN279 And some people are cancelled with no notice at all?---Some people are cancelled on the day, correct.

PN280 They attend hospital and are prepped but then cancelled?---That's correct.

PN281 When they are cancelled, obviously someone from the hospital tells them, if they are there, otherwise they might be contacted by letter or telephone?---Correct.

PN282 There's no provision for those who are contacted by letter or telephone to be offered counselling, is there?---I think that arrangement would vary. I'm not familiar with the arrangements in all hospitals.

PN283 Do you think counselling is necessary?---I don't think counselling is necessary; however, it's often a clinical person contacting the patient.

PN284 It's often - sorry?---A clinical person.

PN285 Yes, but that doesn't mean they counsel them, does it?---No, not necessarily.

PN286 In relation to those that are cancelled, obviously, if there were more resources available, some of the problems that lead to cancellation wouldn't arise and there would be fewer cancellations?---So there's a range of reasons for cancellation?

PN287 Yes?---Just to be clear, there are patient-related reasons.

PN288 Yes?---There are hospital-related reasons.

PN289 Just talking about hospital-initiated cancellations for the moment?---Sure.

PN290 Postponements?---Which is a smaller proportion than the 6.9.


PN291 I see. So the 6.9 - - -?---I think is - no, sorry, you're correct. That is hospital-initiated postponements.

PN292 That's hospital-initiated?---Correct.

PN293 Yes?---No, you're correct, yes.

PN294 But in relation to those, if more resources were available, there would be fewer cancellations?---Yes. In theory that's correct, yes.

PN295 There's been a decision taken somewhere by someone that a certain level of cancellation is acceptable?---So I think what - the business rules layout is the benchmark that we seek health services to work within.

PN296 I understand that, but a certain level of cancellation is acceptable. Agreed?---So at the target level. If health services perform within the benchmark target, yes, that's acceptable to government.

PN297 And it's acceptable because that's been the decision that's made about the prioritisation of resources. Correct?---Yes.

PN298 So all of the consequences in relation to cancellations that you talk about in your statement, for those people, they are deemed to be acceptable?---I'm just not quite sure where - - -

PN299 You talk about consequences of cancellation for the patients. 21: "Delays to elective surgery are undesirable." Undesirable because patients may experience pain and discomfort while they wait for surgery, et cetera. You would accept, would you not, that in respect to the acceptable number of cancellations, those factors are also deemed to be acceptable?---So if you're asking me the question is it unacceptable that patients have their surgery rescheduled, yes, it's undesirable and, yes, we attempt to limit it. If you're asking me is there sometimes pain and discomfort and disability associated with cancellation of surgery, yes, that is true and that's also not recommended. If you're asking me how does that relate to the statement I made: clearly, setting a benchmark target is saying what's the level of cancellations that the government is prepared to tolerate, and so therefore we seek to work with services and services work to minimise the cancellation of surgery.


PN300 I understand that, but I wasn't asking you those questions?---All right. Sorry. I was just trying to clarify.

PN301 What I was suggesting to you was that the consequences of cancellation within the target range are regarded as acceptable by the government and the Health Department. You agree with that?---The cancellation of surgery is - a level of cancellation of surgery is tolerated by the department and government, yes.

PN302 And the consequences are tolerated?---And therefore the consequences of those patients being cancelled for surgery are tolerated, yes.

PN303 In relation to the cancellations, you accept that many of them occur within a day or two of the procedure being booked?---Some of them do, yes, that's correct.

PN304 It's not just some, it's many, isn't it?---I don't know the exact number.

PN305 You don't know?---I don't know, but within a two-week period those are the cancellation rates but I don't know that proportion on the day.

PN306 As far as you know, it could be a very substantial proportion. You just don't know?---It could be.

PN307 It's not going to make any difference to you, having seven days' notice of the commencement of industrial action in respect of that proportion, is it?---Well, I think my statement says that it will. Having longer notice of industrial action will allow health services to plan and prepare for a substantial increase in the cancellation of patients for surgery, because the increased cancellation rate will require increased prioritisation of patients to ensure the most urgent patients are treated fairly.


PN308 And that happened on each occasion that the ANF took industrial action over the past 10 years, didn't it, that prioritisation?---That prioritisation and notice.

PN309 Yes?---So I'm very familiar with the last industrial action and, yes, health services had some notice and, yes, they planned and prepared for that.

PN310 It wasn't seven days' notice, was it?---I don't think it was, no.

PN311 And they planned and evidence has been given that 100 per cent of patients needing emergency treatment were dealt with during that period of industrial action?---Yes.

PN312 You agree with that?---Correct.

PN313 Compared with 98 per cent when there's no industrial action. Did you know that?---So if you're referring to some cases at a particular hospital that were unable to be treated in time, yes, I'm aware of that.

PN314 So on the last occasion there's nothing that you put which suggests that there was an insurmountable problem arising from being given three days' notice rather than seven, is there?---So I guess there's a level of - I'm not sure if this is the right time to raise it, but my understanding is last time there was a set of bans associated with a one-in-four bed closure. My understanding is that there is now a set of bans associated with a one-in-three closure, which I'm not sure that the sector has actually implemented, and so I guess whilst I have concerns about managing - health services being able to manage the day-to-day hospital operations in the context of less capacity and, yes, that's been done before with a one-in-four bed closure. I have not experienced, and health services have not experienced, a one-in-three bed closure and so, from my point of view, that just potentially amplifies the situation.


PN315 But there was a one-in-three bed closure for a number of days in the 2001 industrial action. You dispute that?---I'm not aware of that. I wasn't - - -

PN316 You're not aware of any problems arising in respect of that?---I'm not aware of what occurred in that 2001 industrial action.

PN317 When you added what you added to this statement yesterday, when you discovered that it was one in three rather than one in four, did you make inquiries about whether there had ever been one in three before?---I did.

PN318 And you were told there hadn't been?---I was told that there hadn't - yes, I was told that there hadn't been.

PN319 Evidence has been given - perhaps the witness better be shown exhibit ANF6.

PN320 It's from a meeting of the ANF in 2001 - one-in-three bed closure. See that on the - - -?---Yes, I can see that.

PN321 And the evidence was that there were - from 9 to 23 August that occurred?---Yes, so that's new information to me.

PN322 Yes. So if evidence has been given that hospitals coped with that on that occasion, you can't - - -

PN323 MR GOSTENCNIK: I'm not sure that was his evidence and nor am I sure that he's qualified to give it if he gave it.

PN324 MR FRIEND: My recollection is that it was Mr Gilbert's evidence that these matters had been dealt with in the past regularly in each period of industrial action. Mr Gilbert has a great deal of experience and knowledge about this area and he is qualified to give that evidence. And anyway, it's in, so I'm putting it to the witness.


PN325 If evidence to the effect that it was dealt with on that occasion and coped with is given, you can't say anything about it, can you?---So that's new information to me and so I wasn't aware that there has in the past been a one-in-three closure and nor am I aware of the impact. Probably the only comment I would make on the last 10 years - that the occupancy of hospitals has increased and that has an impact on the capacity of hospitals to operate with reduced capacity.

PN326 Nothing further, Commissioner.

PN327 THE COMMISSIONER: Thank you. Anything in re-examination, Mr Gostencnik?

PN328 MR GOSTENCNIK: No, Commissioner.

PN329 THE COMMISSIONER: Thank you for your evidence. You're excused from the witness box and if you wish to leave the court you may as well?---Thank you.


PN330 MR GOSTENCNIK: That's the evidence for the applicant.

PN331 THE COMMISSIONER: Thank you, Mr Gostencnik. Mr Friend.

PN332 MR FRIEND: Thank you, Commissioner. The simple question before you, Commissioner, is whether the respondent has made out by evidence that there are exceptional circumstances justifying the extension of the notice period. There is a very helpful decision of Lawler VP dealing with, we would say, all of the relevant issues in respect to this. I'd like to hand that up - CEPU v Australian Postal Corporation (2007) 167 IR 4. His Honour was dealing with a previous version of the Act but if you turn to page 6 at paragraph 5 he sets out the relevant subsection, which was 463(5). That's in the identical terms, subject to relevant changes of numbering, to the present provision under consideration.

PN333 At 8 his Honour commenced to consider the expression "exceptional circumstances justifying". He went to a decision of Rares J in Ho v Professional Services Review Committee, and at paragraph 10 on page 8 summarised the position as he saw it. At the end of the third line:

PN334 In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional circumstances must be out of the ordinary course or unusual or special or uncommon but need not be unique or unprecedented or very rare. Circumstances will not be exceptional if they are regularly or routinely or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.

PN335 Then in paragraph 11 his Honour notes that the exceptional circumstances must justify specification of a longer period. In regard to the present case, there are a few matters which are raised, as we see it, reading the evidence, as exceptional circumstances. These really relate to delays in elective surgery treatment, potential for backlogs in emergency departments and delays in radiology, outpatients and specialist tribunals.

PN336 There's also evidence given about the need for a longer planning period in respect to psychiatric institutions. All the matters that I've pointed to are systemic problems in the system. I've introduced a great deal of evidence about that. There are constant cancellations. There are constant late cancellations of elective surgery. There are constant delays and all sorts of things. The question is whether there is a requirement for an additional four days to enable the employer to deal with that.

PN337 Looking back to Lawler VP's decision, he talked about the rationale behind the notice - paragraph 12; quoting from the Davis case - to allow the employer to prepare. They give the example in that case of a sophisticated item of equipment that can't be shut down without doing it permanent damage - and we are nowhere near that position now. He points out at paragraphs 17 and 18 that the scheme of the Act is that employees have only one bargaining tool with which they could put pressure on the employer, which is taking protected industrial action. If you mitigate the effects of protected industrial action so that it doesn't in effect put pressure on the employer, it detracts from the one weapon that the employees have - and I'll have something more to say about that in a minute.

PN338 At 21, his Honour said:

PN339 Essentially, what's required in determining whether exceptional circumstances justify an extension is a weighing of the interests of the employer and third parties and the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees' bargaining power that results from such an extension.

PN340 The fact that the legislator has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it as distinct from merely conferring a simple discretion to extend the required notice period indicates that ordinarily, there should be no extension.

PN341 The evidence before you, Commissioner, is in no way persuasive that anything additional and effective, from the employer's point of view, will be done in those four days if an extension is granted. The problems are going to arise - they are going to arise and be ongoing - but all we're told is that some arrangements will be sought to be made earlier, without any detail and without any persuasive colour in relation to it. It's my submission that the employer doesn't get anywhere near showing that they've got exceptional circumstances here.

PN342 The other significant factor in all of this - and it's been sort of an elephant in the room, really - and you raised it with Mr Gostencnik - his case, certainly in cross-examining Mr Gilbert, was really about termination or suspension of the bargaining period. Of course, if the seven-day notice period - an application - as

soon as notice is given, an application could be made in respect to threatened industrial action on day one.

PN343 Regardless of the merits of that case, within five days the protected industrial action will be prohibited unless it's heard and determined within those days and the union loses. So the effect of the application in these circumstances - in the circumstances of this case - is to mean that the union will have, and the employees, no effective right to protected industrial action because of the way the Act operates.

PN344 Now, that's a very big factor in terms of weighing up the balance that Lawler VP talks about: the rights of the employees to take protected industrial action which has some bite and the right for the employer to organise. We don't have evidence that's at all persuasive about the type of organisation that might occur. We do have evidence about what's happened in the past when there hasn't been seven days: the world didn't fall down; everyone survived. We know that as an experience.

PN345 THE COMMISSIONER: There have been so many changes to the Act. The provision that Lawler VP had before him in the CEPU matter, was that the applicable provision back in 2001?

PN346 MR FRIEND: That's an exam question. 2001 is - - -

PN347 THE COMMISSIONER: Pre Work Choices.

PN348 MR FRIEND: - - - pre Work Choices.

PN349 THE COMMISSIONER: The 96 Act.

PN350 MR FRIEND: At the risk of - - -

PN351 MR GOSTENCNIK: I believe it was. At the risk of interrupting and from giving evidence from the bar table, I don't think it will be disputed that in 2001 the ANF did not take protected industrial action, so the question about what notice was given is not really relevant in that sense.

PN352 MR FRIEND: I'm not going to accept it or dispute it. I might accept that the question of notice is not relevant, but the point about 2001 was that there was one in three bed closures. It's not the days' notice. In 2004 and in 2007, notice was given but it wasn't seven days. Sorry, 2007 it was not three days' notice. 2004 it was.

PN353 We haven't had seven days' notice before. These things have been handled and dealt with. There's been no evidence about the problems that that's caused, which you would expect. There's a little bit of material attached to Ms Diver's statement but it doesn't really show anything other than the effect on cancellations.

PN354 In the circumstances, when you weigh up these factors, in my submission, Commissioner, those suggesting that the application for extension should be rejected far outweigh any slim case that the employers might have. Nothing further, Commissioner.

PN355 THE COMMISSIONER: Thank you. Mr Gostencnik.

PN356 MR GOSTENCNIK: Yes, thank you, Commissioner. May I begin by just taking you to Lawler VP's decision. Can I say, the applicant accepts that the description of the relevant test in his Honour's decision at paragraph 10 applies in this case. Indeed, as you will see from some authorities that I'll take you to in a moment, it has in fact been applied by Fair Work Australia in relation to the current provisions.

PN357 My learned friend took you to some passages that I was going to take you to, so I won't revisit them, but I do want to draw, Commissioner, your attention to paragraph 22. In paragraph 22 his Honour there deals with some illustrations of circumstances that might be exceptional circumstances that would justify a longer period of notice, and his Honour refers to the decision in Davis. Then in the fourth sentence his Honour says:

PN358 Further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them the opportunity to make alternative arrangements for the care of their children on days of the strike. Typically, three working days will be insufficient for this purpose.

PN359 Your Honour, the principles that his Honour adopted, as I indicated, have been applied in a number of cases. The first that I wanted to take your Honour to is a decision of Roe C in CPSU v G4S. If I can hand you, Commissioner, a copy of the decision.

PN360 This is (2011) FWA 2115 and concerned industrial action affecting prisons and in particular the transportation of prisoners to various areas. You will see on page 3 of the decision, at paragraph 12, that Roe C refers to the passage we've discussed from Lawler VP's decision. In paragraph 24 Roe C then discusses some of the evidence that was led. Halfway through that paragraph Roe C says:

PN361 However, I consider it likely that additional notice time would be likely to reduce the risks to public, prisoner and other employee safety which might

result from this form of industrial action and its disruption of prisoner transport and access to medical facilities in particular.

PN362 Then at paragraph 26 he says:

PN363 I am satisfied that general two-hour stoppages at Port Phillip Prison do create exceptional circumstances given the particular nature of the operations of that prison in respect to its medical facilities and the interrelationship between prisoner transport and the operations of a maximum security facility. It is a fine balance but I am also satisfied that exceptional circumstances do exist which justify some extension of the notice -

PN364 and so on.

PN365 I also want to take you to a decision of Hamberger SDP of 27 April 2010 in Transport Workers Union of Australia v Chief Executive of ACT Internal Omnibus Network or ACTION (2010) FWA 3355. Again, on page 2 of that decision, you'll see above paragraph 5 that Hamberger SDP has regard to what was said about Lawler VP in CEPU v Australia Post. Then at paragraph 5 he concludes that:

PN366 I am satisfied that there are exceptional circumstances of a kind referred to in section 4435 that would justify an increase in the notice period. I base this finding in particular on the following factors: ACTION -

PN367 that is, the employer -

PN368 is effectively the only provider of public bus services in the ACT.

PN369 He then goes on to list some other considerations. He says in paragraph 6:

PN370 Given these circumstances, I consider it appropriate that ACTION be given greater notice than the standard three working days of any form of industrial action which would involve a complete cessation of work. That would give ACTION more time to warn passengers about the effect on services of any forthcoming industrial action and would assist passengers in the community, more generally, to make alternative arrangements.

PN371 Finally, I want to take you to a decision of Richards SDP. This is a decision of 16 January 2009 at 2009 AIRC 49 in the Australian Federated Union of Locomotive Employees Queensland Union of Employees v QR Passenger Ltd. This concerned an application for an extended period of notice also. I want to take you to the observations that are made in paragraphs 15 and 16. The Senior Deputy President observes, at paragraph 15, that

PN372 It was put to me by Mr Murdoch for the employer that significant issues arise in relation to the capacity of the employer to communicate properly and with sufficient warning to the travelling public itself any changes to passenger schedules that might be disrupted by industrial action anticipated by this application. Further, the travelling public may require an extended period of time, once advised of these changes, to make alternative arrangements, which may well traverse a wide range of individual and family circumstances.

PN373 In my view these are indeed exceptional circumstances and warrant the commission requiring an extended period of written notice -

PN374 et cetera.

PN375 Commissioner, in my submission the cases that have considered the meaning of "exceptional circumstances" and how it is to be applied establish the following principles that we say you should have regard to. Firstly, you should have regard to the nature of the industrial action and the nature of the business that's conducted by the employer that's affected by the industrial action. Secondly, you should have regard to the importance of and the availability of the services or the activities that are provided by the employer that are to be affected by the industrial action and whether the employer is in the position of effectively a sole provider and whether services are readily available elsewhere.

PN376 You should take into account whether three working days' notice is sufficient to allow the employer to alert those affected by the impact of the industrial action. You should take into account the fact that arrangements will invariably need to be made by those who will not be able to access services or whose access to services would be delayed as a consequence of the industrial action.

PN377 You should also take into account the question of whether the period of notice of three working days will be sufficient to enable the employers to make appropriate arrangements to prepare for the industrial action and to give notice to all of those people who are likely to be affected by the industrial action and to give consideration to the impact on those seeking to access the services of the industrial action.

PN378 Now, it shouldn't be lost on you, Commissioner, that the industrial action that is being proposed is likely to have a significant effect on not only individual hospitals but, if carried out concurrently with other hospitals, will have a significant impact on the capacity of the state hospitals to continue operating particular services.

PN379 It's not to the point that there are currently decisions made by hospitals to close beds. It's not to the point that currently there are decisions made to cancel elective surgery. The fact is that those decisions are not made in circumstances where, potentially, one-third of the system is shut down.

PN380 The industrial action will have a significant impact on the capacity of employers to maintain and deliver the services. That will require a great deal of planning. It will require coordination with other hospitals, with other service providers. It will require communication, sometimes delicate communication, with patients that are going to be affected by the absence of services that would otherwise be available to them.

PN381 It is the evidence of the applicant's witnesses that these impacts may have an adverse impact on some people's health and wellbeing, and Fair Work Australia should take those matters into account in assessing what appropriate period of notice is required because the prioritisation that is referred to in the witness statements and accepted by the ANF's witness doesn't occur in a vacuum. It occurs having regard to the needs of particular patients, and there will be a significant number of patients that will potentially be affected by the bans. That planning and those decisions are not something that can or should be done quickly.

PN382 Exceptional circumstances do exist and the matters that we say are relevant are these. Apart from notification to patients, to those that are going to be affected most by the industrial action, there will necessarily be planning associated with rescheduling surgery. There will be assessments and decisions required about which particular cases are to be brought forward and which particular cases are to be postponed. And if they're to be postponed, for what period? Rearranging and reassigning particular cases, planning for the rearranging of resources, consulting with surgeons, dealing with theatre staff, rearranging operating schedules and planning to ensure that the system is ready to deal with the most urgent of cases in the highest priority.

PN383 Patients will need to be communicated with and their medical practitioners will need to be consulted. Relatives will need to be communicated with. We're not talking about the closure or cancellation of a few surgeries in a particular hospital on a given day. Potentially we're talking about the unavailability of one-third of the state's resources to deal with surgery. We’re not talking about the inability to admit one patient in a particular hospital on a particular day because the hospital is full. We're talking potentially about the unavailability of up to a third of the beds currently available in the system.

PN384 These are not everyday occurrences. There are, in my respectful submission, exceptional circumstances to warrant a period of seven days in order to enable each employer and the system together to plan for the industrial action that's proposed, or at least the cumulative effect of the industrial actions that we've highlighted in what is exhibit ANF1. Unless there are any questions, Commissioner, those are our submissions.

PN385 THE COMMISSIONER: Thank you, Mr Gostencnik. Mr Friend.

PN386 MR FRIEND: What you've heard a great deal about, Commissioner, is the effect of the industrial action. What you've heard nothing about really is why another four days is needed. I said in my submission, "Where's the evidence that it was a problem in the past?" There's no answer. We say there's no exceptional circumstances because the types of things that have been talked about happen all the time. In any event, whatever circumstances exist don't justify an extension from three to seven days. The hospitals could have mounted an evidentiary case in regard to that but they haven't. They've really made just submissions. In those circumstances the three days should remain, as set out in the Act, if the commission pleases.

PN387 THE COMMISSIONER: Thank you. I will consider the submissions and the evidence that has been put before me and I will hand down a decision as quickly as possible.

PN388 MR FRIEND: Commissioner, the other applications.

PN389 THE COMMISSIONER: Sorry. That was optimistic of me, wasn't it?

PN390 MR FRIEND: I had that thought if - - -

PN391 THE COMMISSIONER: Yes, sorry, I apologise for that. I did forget.

PN392 MR FRIEND: I had thought that, in effect, we'd reached an arrangement that they would be dealt with on the same basis without necessarily being called on, and I don't know that anything needs to be said other than that the parties rely upon the same evidence and the same submissions.

PN393 THE COMMISSIONER: I suppose the only matter that is before me where there is nobody representing - - -

PN394 MR FRIEND: Thomas Embling Hospital.

PN395 THE COMMISSIONER: Yes, Thomas Embling, and there's in fact no application been made.

PN396 MR FRIEND: They should just have the three days, I suppose.

PN397 THE COMMISSIONER: So in relation to Thomas Embling, as there's no opposition to the application, then I will simply propose to make the relevant orders as there's been no opposition to the making of that application. So in relation to the Thomas Embling matter, the orders as sought by the ANF will be issued.

PN398 MR FRIEND: If the commission pleases.

PN399 THE COMMISSIONER: One thing I do need to be clear about is what you're proposing, Mr Gostencnik, if I support your submissions - is that there were certain questions - that each one of these relates, in what is VHIA1, which are the forms of industrial action notice requirements. Am I right that each one of these is a question that is in each of the applications?

PN400 MR GOSTENCNIK: Well, not in each of the applications. Some of them have now been removed, for example in the community health area, so the closure of one-in-three operational beds and those related questions are not in the community health one.

PN401 THE COMMISSIONER: Your proposal would be that I would - for example, with the ban on - no, sorry, the one on the wearing and distribution of posting any campaign material.

PN402 MR GOSTENCNIK: Yes, we don't seek - - -

PN403 THE COMMISSIONER: You don't seek this, so it would simply be in relation to each question - - -

PN404 MR GOSTENCNIK: That's right.

PN405 THE COMMISSIONER: - - - separately dealt with. Okay, thank you. So there's nothing anybody wishes to say in relation to the other matters?

PN406 MR FRIEND: We will certainly show this to Mr Gostencnik, but we might use this table which we were given this morning in respect of the applications and prepare a document that reflects how each applies.

PN407 THE COMMISSIONER: Maybe I'll leave it at this point: if I am minded to grant the application of the employer then it would probably assist if the ANF then prepared relevant orders that reflected that, but only if I - - -

PN408 MR FRIEND: Only if you - - -

PN409 THE COMMISSIONER: Okay, so what I will undertake is I will give an indication to the parties of my decision prior to the finalisation of my reasons for decision and that will assist the making of the orders.

PN410 MR FRIEND: It would certainly assist us, particularly if the employer's application is rejected, if the decision were formally pronounced even prior to the provision of reasons, to keep the - - -

PN411 THE COMMISSIONER: Yes, I'm conscious of that because I note that you're proposing that the ballot close on 26 October.

PN412 MR FRIEND: Yes.

PN413 THE COMMISSIONER: Yes, okay. All right, I thank the parties for - sorry, Mr Gostencnik, did you wish to say anything?

PN414 MR GOSTENCNIK: No, no, I was just going to say goodbye.

PN415 THE COMMISSIONER: Thank you, Mr Gostencnik. I will reserve my decision in relation to this matter.

<ADJOURNED INDEFINITELY [2.10PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VHIA1 DOCUMENT RE EXTENDING PERIOD OF WRITTEN NOTICE ........................................................................................ PN9

PAUL FRANCIS GILBERT, SWORN .......................................................... PN14

EXAMINATION-IN-CHIEF BY MR FRIEND................................................. PN14

EXHIBIT #ANF1 WITNESS STATEMENT OF PAUL GILBERT ................. PN22

EXHIBIT #ANF2 VICTORIAN HEALTH SERVICES PERFORMANCE REPORT MARCH 2011 QUARTER ............................... PN31

EXHIBIT #ANF3 TWO EMAILS DATED 04/10/2011 ................................... PN39

EXHIBIT #ANF4 THREE-PAGE DOCUMENT HEADED "HERALD SUN: IT'S A WAITING GAME IN OUR HOSPITALS" FROM 29/05/2011 ................................................................................................... PN43

EXHIBIT #ANF5 DOCUMENT HEADED VICTORIAN HEALTH SERVICES PERFORMANCE ...................................................................... PN47

EXHIBIT #ANF6 ANF RESOLUTION MOONEE VALLEY RACECOURSE 09/08/2001 ......................................................................... PN66

CROSS-EXAMINATION BY MR GOSTENCNIK ......................................... PN74

THE WITNESS WITHDREW...................................................................... PN177

KARLEEN MICHELLE EDWARDS, AFFIRMED ....................................... PN180

EXAMINATION-IN-CHIEF BY MR GOSTENCNIK .................................... PN180

EXHIBIT #VHIA2 STATEMENT OF KARLEEN MICHELLE EDWARDS DATED 04/10/2011 ................................................................ PN192

CROSS-EXAMINATION BY MR FRIEND ................................................. PN200

EXHIBIT #ANF7 DOCUMENT HEADED SOUTHERN HEALTH INPATIENT WARDS' NEED TO INCREASE STAFF DUTIES - WARD ACUITY .......................................................................................... PN236


FRANCES MARIE DIVER, AFFIRMED ..................................................... PN250

EXAMINATION-IN-CHIEF BY MR GOSTENCNIK .................................... PN250

EXHIBIT #VHIA3 WITNESS STATEMENT OF FRANCES MARIE DRIVER DATED 04/10/2011 WITH TWO ATTACHMENTS ...................... PN262

CROSS-EXAMINATION BY MR FRIEND ................................................. PN262

EXHIBIT #ANF8 VICTORIAN PUBLIC HEALTH SERVICE PERFORMANCE AND ACCOUNTABILITY FRAMEWORK BUSINESS RULES 2007-08 AND ATTACHED EXTRACT ...................... PN275


051011b20113548 application protected action ballot...

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