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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1057498
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BOOTH
COMMISSIONER CAMBRIDGE
AM2016/31
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2016/31)
Health Professionals and Support Services Award 2010
Sydney
10.05 AM, MONDAY, 2 DECEMBER 2019
Continued from 23/08/2019
PN48
VICE PRESIDENT CATANZARITI: Thank you. We'll have the appearances.
PN49
MS L DOUST: I appear for the Health Services Union. It's Ms Doust. With me is Ms Liebhaber and to her right is Mr Leszczynski.
PN50
VICE PRESIDENT CATANZARITI: Thank you.
PN51
MR P MILES: Paul Miles. I appear for the Australian Dental Association and the Dental Prostheses Association. With me is Mr Wilkinson.
PN52
VICE PRESIDENT CATANZARITI: Thank you.
PN53
MR H HARRINGTON: If it please the Commission, Harrington, initial H for the Australian Industry Group.
PN54
VICE PRESIDENT CATANZARITI: Thank you.
PN55
MS K MURPHY: If the Commission pleases, Murphy, initial K, of the Dental Hygienists Association of Australia. With me I have Dr Carol Tran, also from the Dental Hygienists Association of Australia.
PN56
VICE PRESIDENT CATANZARITI: And on the video?
PN57
MS K THOMSON: If it please the Commission, Thomson, initial K, for ABI and the New South Wales Business Chamber.
PN58
VICE PRESIDENT CATANZARITI: Thank you. So that is everyone. Now, this is a discrete part of the previous matter, but for ease of convenience I will restart the exhibits from scratch. Otherwise it will be very confusing with where we were. All right. Now, let's start. Thank you.
PN59
MS DOUST: Yes, your Honour. Might I start, we have some evidence in the matter. We rely on the statement of Mr Alexander Leszczynski dated 17 March 2017. That's already been marked as HSU 2 in the previous proceeding. Does your Honour wish - - -
PN60
VICE PRESIDENT CATANZARITI: I'm going to re-mark everything.
PN61
MS DOUST: I tender that.
VICE PRESIDENT CATANZARITI: In these proceedings that will become HSU A.
EXHIBIT #HSU A WITNESS STATEMENT OF ALEX LESZCZYNSKI DATED 17/03/2017
PN63
MS DOUST: And we also rely upon - sorry, was that HSU A?
PN64
VICE PRESIDENT CATANZARITI: HSU A.
PN65
MS DOUST: Thank you. We also rely upon the evidence given orally by Mr Leszczynski in the hearing of 11 December 2017. That is in the transcript at paragraphs numbered 1204 to 1337 and for convenience we've extracted those parts of the transcript and I hand up copies for the Bench now.
VICE PRESIDENT CATANZARITI: I will actually make that an exhibit, so it's clearer. I will make that HSU B.
EXHIBIT #HSU B TRANSCRIPT OF 11/12/2017 PN2014 TO 1337
PN67
MS DOUST: Also your Honour should have on the file a witness statement of Dr Rosemary Kelly, dated 7 August 2019 which have been filed with the Commission. Dr Kelly is not being required for cross-examination by any of the parties.
VICE PRESIDENT CATANZARITI: Yes. That will be HSU C.
EXHIBIT #HSU C WITNESS STATEMENT OF ROSEMARY KELLY DATED 7/08/2019
PN69
MS DOUST: Thank you. There is a further witness statement of Mr Leszczynski dated 7 August 2019.
VICE PRESIDENT CATANZARITI: That will be HSU D.
EXHIBIT #HSU D WITNESS STATEMENT OF ALEX LESZCZYNSKI DATED 7/08/2019
PN71
MS DOUST: Thank you. And Mr Leszczynski hasn't been required for cross-examination by any of the other parties. Your Honour, there is a long list of submissions that have been previously been made. Is it convenient for me to just state on the record which of those we continue to rely upon in the written submissions?
PN72
VICE PRESIDENT CATANZARITI: Yes. Thank you.
PN73
MS DOUST: On the question that is before the Commission today, the HSU relies upon its submissions dated 17 March 2017. The relevant paragraphs are paragraph 4 to 33. There are reply submissions dated 22 May 2017. This is paragraphs 22 to 29. There is a submission dated 12 February 2018, paragraphs 51 to 60. There is a submission dated 7 August 2019 and then subsequent to your Honour's directions given on 17 September, there is the reply submission of 15 August 2019 and we rely upon all of those submissions.
PN74
Your Honour, I propose to make some additional oral submissions and I expect they will go for about 15 or 20 minutes. I don't know if it is convenient for me to - - -
PN75
VICE PRESIDENT CATANZARITI: I think with all the evidence in we will do submissions in a formal sense after all the (indistinct).
PN76
MS DOUST: Certainly.
PN77
VICE PRESIDENT CATANZARITI: Thank you.
PN78
MR MILES: Vice President, I do apologise. I've been taken somewhat by surprise in the way in which the Commission has chosen to deal with this in that I haven't come armed to put the previous matters before the Commission in that way, although we do rely upon - - -
PN79
VICE PRESIDENT CATANZARITI: Well, you can put in a supplementary document to do that, because we don't intend to go back and unnecessarily clutter this matter when it's a very discrete issue.
PN80
MR MILES: I appreciate it is a discrete issue and they are only aspects of it. I am referring to the evidence of Eithne Irving from May of 2017.
PN81
VICE PRESIDENT CATANZARITI: You are tendering that evidence of May 2017 is a discrete part of this matter now?
PN82
MR MILES: Yes. I will review it, if I may, to ensure that I only tender those aspects that are relevant to this part of the proceeding.
VICE PRESIDENT CATANZARITI: Make that exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 23/05/2017
PN84
MR MILES: And the statement of Dr Hewson of 9 June 2017. Again I will review that too so I can clarify which - - -
VICE PRESIDENT CATANZARITI: Yes. Exhibit 2.
EXHIBIT #2 WITNESS STATEMENT OF DR NEIL HEWSON DATED 9/06/2017
PN86
MR MILES: The evidence of Eithne Irving given on 12 December 2017.
VICE PRESIDENT CATANZARITI: Exhibit 3.
EXHIBIT #3 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 12/12/2017
PN88
MR MILES: Then there is a statement of Eithne Irving from October of this year that's been filed in the Commission.
VICE PRESIDENT CATANZARITI: Exhibit 4.
EXHIBIT #4 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 14/10/2019
PN90
MR MILES: And the statement of Jenine Bradburn filed also in October of this year.
VICE PRESIDENT CATANZARITI: Exhibit 5.
EXHIBIT #5 WITNESS STATEMENT OF JENINE ANNE BRADBURN DATED 14/10/2019
PN92
MR MILES: And, of course, the submissions filed on 14 October and I'll - - -
PN93
VICE PRESIDENT CATANZARITI: Yes. We'll come to the submissions separately. Are any of your witnesses required for cross examination?
PN94
MR MILES: As I understand it, no.
PN95
VICE PRESIDENT CATANZARITI: Right, Thank you. Yes.
PN96
MR HARRINGTON: We have no additional evidence to tender in these proceedings. We would be interested in making our (indistinct) oral submissions at a later point.
PN97
VICE PRESIDENT CATANZARITI: Thank you. Anyone else?
PN98
MS MURPHY: Sir, the dental hygienists similarly wish to rely on the two witness statements that were tendered in the 2017 arbitration proceedings in their altered state in that there was - - -
PN99
VICE PRESIDENT CATANZARITI: Yes. Identify those statements.
PN100
MS MURPHY: Of Dr Melanie Hayes is the first one and the date - - -
VICE PRESIDENT CATANZARITI: That will be DHAA 1.
EXHIBIT #DHAA 1 WITNESS STATEMENT OF DR MELANIE HAYES DATED 13/03/2017
PN102
MS MURPHY: And the second one, the witness statement of Dr Hayes which has attached to it the DHAA member survey.
VICE PRESIDENT CATANZARITI: That's DHAA 2.
EXHIBIT #DHAA 2 WITNESS STATEMENT OF DR MELANIE HAYES DATED 09/06/17 (WITH MEMBER SURVEY ATTACHED)
PN104
MS MURPHY: And also the witness statement of Dr Carol Tran, dated 9 June 2017.
VICE PRESIDENT CATANZARITI: DHAA 3.
EXHIBIT #DHAA 3 WITNESS STATEMENT OF DR CAROL TRAN DATED 9/6/2017
PN106
MS MURPHY: In addition, the evidence of Dr Melanie Hayes given on 12 December 2017.
VICE PRESIDENT CATANZARITI: DHAA 4
EXHIBIT #DHAA 4 WITNESS STATEMENT OF DR MELANIE HAYES DATED 12/12/2017
PN108
MS MURPHY: And the evidence of Dr Carol Tran, given 12 December 2017.
VICE PRESIDENT CATANZARITI: DHAA 5.
EXHIBIT #DHAA 5 WITNESS STATEMENT OF DR CAROL TRAN DATED 12/12/2017
PN110
MS MURPHY: In addition, sir, the witness statement of Ms K Ball, dated 16 June 2019.
VICE PRESIDENT CATANZARITI: DHAA 6.
EXHIBIT #DHAA 6 WITNESS STATEMENT OF KAY BALL, DATED 16/06/2019
PN112
MS MURPHY: The witness statement of Ms Alison Taylor, dated 19 June 2019.
VICE PRESIDENT CATANZARITI: DHAA 7
EXHIBIT #DHAA 7 WITNESS STATEMENT OF ALISON TAYLOR DATED 19/06/2019
PN114
MS MURPHY: The witness statement of Ms Susan Melrose dated 26 June 2019
VICE PRESIDENT CATANZARITI: DHAA 8.
EXHIBIT #DHAA 8 WITNESS STATEMENT OF MS SUSAN MELROSE DATED 26/06/2019
PN116
MS MURPHY: The witness statement of Mr Christiane Zerk dated 24 June 2019.
VICE PRESIDENT CATANZARITI: DHAA 9.
EXHIBIT #DHAA 9 WITNESS STATEMENT OF CHRISTIANE ZERK DATED 24/06/2019
PN118
MS MURPHY: The witness statement of Ms Lyn Carman dated 30 July 2019.
VICE PRESIDENT CATANZARITI: DHAA10.
EXHIBIT #DHAA 10 WITNESS STATEMENT OF LYN CARMAN OF 30/07/2019
PN120
MS MURPHY: The witness statement of Mr Benjamin Marchant, dated 16 June 2019.
VICE PRESIDENT CATANZARITI: DHAA 11.
EXHIBIT #DHAA 11 WITNESS STATEMENT OF BENJAMIN MARCHANT DATED 16/06/2019
PN122
MS MURPHY: The witness statement of Mr Samson Chan dated 30 July 2019.
VICE PRESIDENT CATANZARITI: DHAA 12
EXHIBIT #DHAA 12 WITNESS STATEMENT OF SAMSON CHAN DATED 30/07/2019
PN124
MS MURPHY: Sir, we understand that cross-examination for these proceedings is not required for any of those witnesses.
PN125
VICE PRESIDENT CATANZARITI: Thank you.
PN126
MS MURPHY: If the Commission pleases.
PN127
VICE PRESIDENT CATANZARITI: That leaves Ms Thomson.
PN128
MS THOMSON: We don't have any evidence in these proceedings, your Honour.
PN129
VICE PRESIDENT CATANZARITI: All right. So no witnesses are required for cross-examination, is that correct?
PN130
MS THOMSON: Yes.
PN131
VICE PRESIDENT CATANZARITI: All right. Then we will go into submissions. Thank you, Ms Doust.
PN132
MS DOUST: Thank you, your Honour. If I can just deal with the evidence first, your Honours and Commissioner, and make some observations about that evidence. Can I ask whether the members of the Bench have a company of Mr Leszczynski's first statement, which has become HSU A?
PN133
VICE PRESIDENT CATANZARITI: This is witness statement of 7 August. Is that correct?
PN134
MS DOUST: No. I'm sorry, Commissioner. There is also a witness statement of 17 March 2017 and Mr Leszczynski gave a later statement of 7 August this year, which you should also have and I will turn to that shortly.
PN135
VICE PRESIDENT CATANZARITI: Which is the one you want us to look at at the moment?
PN136
MS DOUST: 17 March 2017 first. That HSU A.
PN137
DEPUTY PRESIDENT BOOTH: You don't have a spare copy?
PN138
VICE PRESIDENT CATANZARITI: We don't have it here.
PN139
MS DOUST: We can give you a copy, Deputy President. I think it's relatively unmarked, but somewhat - - -
PN140
VICE PRESIDENT CATANZARITI: What we might do, in fact, is actually take a short adjournment to sort out these witness statements, because we've got a series of folders which I think have all got the 2019 stuff and I don't think we have in these folders currently behind us the 2017 stuff. We will get that and take a short adjournment.
PN141
MS DOUST: Can I indicate, Vice President, I will go to those three witness statements and I will also be cross-referencing to the Award, so if the members of the Bench have a copy - - -
PN142
VICE PRESIDENT CATANZARITI: We have the Award. The Award we do have. And that would apply to all the parties. There are other statements that are referred to today that are not currently before us and we will need to get that sorted out. We will take a short adjournment.
SHORT ADJOURNMENT [10.19 AM]
RESUMED [11.42 PM]
PN143
VICE PRESIDENT CATANZARITI: Thank you. Ms Doust.
PN144
MS DOUST: Thank you, Vice President and members of the Bench. I just wanted to go briefly to Mr Leszczynski's statement of 17 March 2017 first, if members of the Bench have that in front of them at the moment.
PN145
VICE PRESIDENT CATANZARITI: Yes. We have that.
PN146
MS DOUST: A couple of observations to be made about this statement. First of all, you will note in paragraph 3 that Mr Leszczynski has been working in the union since March of 2013. So he has now amassed a considerable amount of experience dealing with this sector. And he identifies in this witness statement a number of different roles, occupations, descriptions that have some currency within the sector for the purpose of reflecting upon the nature of the list that appears in schedule C to the Award.
PN147
So one can see, if one goes down to paragraph 6 of the statement on the first page, first of all he identifies this description of health promotion officer and I will ask you, if you would, to turn to page 6 of the document, please, which is that annexure 1 and you can see the position description that he has attached there for that role of health promotion officer.
PN148
If you go over to page 8, you can see that this is a position that was updated in May 2014. But this is not a role. This descriptor, health promotion officer is not one that appears in schedule C of the award, but it is similar in nature to the position of community development worker, which is in schedule C of the award and this role is not a role that's regulated by the Australian Health Practitioner Regulation Agency.
PN149
So this, unlike those other roles doesn't have a description that's anchored in that regulatory framework and that system of professional recognition under those boards. Nonetheless, this is a role one can see from the requirements in the selection criteria at the bottom of page 7 that what's required is a tertiary degree in health promotion, community development or another relevant qualification and it's obviously a specialised health role, one of the requirements just looking at point 2 is commitment to working within a feminist framework and within a social model of health. Over the page, up-to-date knowledge and/or experience in women's health issue. Point 4, demonstrated sound health promotion skills, knowledge and experience.
PN150
So that is the first sort of occupation that Mr Leszczynski deals with in this statement. He also refers to these positions of massage therapist. That is the way in which the position is described. He refers to that at paragraph 6(b) and the position description for that role appears at page 9 of the annexures. And that specialised role of paediatric occupational therapist.
PN151
Of course remedial masseur is included in schedule C and occupational therapist simpliciter appears in schedule C, but there is no reference to paediatric occupational therapist or the title 'massage therapist.' But perhaps more instructive for the purposes of the Bench's consideration of schedule C in a prospective sense is the example of the play therapists and Mr Leszczynski deals with this example at paragraph 10 and onwards.
PN152
Now, that profession, the profession of play therapist is in fact listed in schedule C. So there obviously there is no question on any view of how schedule C operates that those persons are covered by the Award. Play therapists are not currently a role that's regulated by the Australian Health Professionals Regulation Agency. So the Bench is no doubt aware there is a number of different national boards operating under that legislative scheme and they cover a range of different health practitioners, but they don't cover the play therapists. And one can see at annexure 5, which is at page 16 of this statement, that there is movement in the world of play therapy and associated work and can I ask does the Bench have annexure 5 open which is at page 16?
PN153
VICE PRESIDENT CATANZARITI: Yes. We have that.
PN154
MS DOUST: One can see that's a statement or a release from the Association of Child Life Therapists Australia. One can see, going to the second paragraph of this release there is the notation there:
PN155
Up until this point there had been many titles to describe the role across Australia including play therapist, educational play therapist, hospital play specialist, and play coordinator. This led to confusion and difficulty in evolving the profession
PN156
And they refer there to the term 'child life' or 'child life therapist' as the professional title that's used elsewhere - USA, Canada and elsewhere, and the views taken by this association that aligning with that title recognises the full scope of practice and provides an opportunity to strengthen identity and so there's process recommended here. One can see over the page there is a number of documents referred to whereby this association is advocating that its members go through the process of transitioning their professional titles. So there's a process for telling people, getting people on board with that description and so on.
PN157
So that's the second example. That's the play therapists of which it appears the professional organisation now wants to adopt the description 'child life therapist.' And the third example that Mr Leszczynski goes to here that I'd like to take you to is that of clinical coder. I am sorry, can I just before I get to clinical coder, one can see at paragraph 12, Mr Leszczynski makes some reference to the position of health promotion officer and how that title is something that is growing in currency within the industry, as he's experienced it.
PN158
Can I move on to clinical coder is and he refers to that group of employees at paragraph 13 and 14, and onwards. Clinical coders, of course, that's not an occupation that is listed in schedule C of the award and it's not a role that's regulated by AHPRA. It's not a practitioner as such and I will come shortly to the taxonomy, if you like, of occupations that are within schedule C and you can see there's different categories of professional within that schedule.
PN159
Mr Leszczynski says, and there is no challenge made to it, that clinical coders often work side‑by-side with health information managers and that's a role that appears in schedule C. So he says historically there was a hierarchy or a difference between those two roles, because health information managers would agree qualified clinical coders were often unqualified or had less than degree qualifications, but he says that's changing and there are now clinical coders that are degree qualified and the distinction between the two professions is blurring and he refers to the fact that there are positions that are now described as health information manager/clinical coder.
PN160
That occupation, as he observes in paragraph 15 now has its own professional association. That's the Clinical Coders Society of Australia and as I've said, they're similar to that role of health information manager which clearly sits in schedule C of the Award.
PN161
Can I ask the Bench now to turn to the statement of Dr Kelly which is dated 7 August 2019?
PN162
VICE PRESIDENT CATANZARITI: Yes. We have that.
PN163
MS DOUST: Dr Kelly, I think, helpfully points out at paragraph 7 a couple of corrections that probably need to be made in schedule C in respect of the spelling of dietician and also that the position of genetics counsellor. It should really be genetic counsellor and that might, I think, inform the Bench somewhat about the process by which this list was assembled. That there is certainly some aspects of it and I will come to some further shortly where one can see that there are some inaccuracies or inconsistencies.
PN164
But most importantly, Dr Kelly identifies at paragraph 5 two degree-qualified health professional occupations which are not listed in schedule C and they are the position of medical physicist which does not appear within the schedule. And I am instructed that medical physicists are the physicists who program the machines that carry out radiation therapy upon patients. So they bring their skills in physics to the programming of those machines for the purpose of that therapy.
PN165
She also refers to the position of IVF counsellor and her experience which is long, dating back to February 2000 - her experience is that it is accepted within the health sector in Victoria that the health professionals award applies to the employment of employees in those professions, notwithstanding that they aren't included by name in schedule C. So that's some evidence that those professions are regarded as being within the same category as the professions or occupations that are listed in schedule C.
PN166
Now, can I turn ultimately to Mr Leszczynski's final statement which is the 7 August 2019? And Mr Leszczynski here focuses specifically on the situation with the cardiac technologists. Cardiac technologists, of course, are a profession that's listed in schedule C. Cardiac technologists are not regulated by AHPRA, so there is no national board of AHPRA that covers the cardiac technologists. But the professional association for that group, the professionals in Cardiac Sciences Australia resolved in 2016 to now call themselves cardiac physiologists instead of cardiac technologists and to make the call on states and territories to adopt that description and that gives rise, of course, to the prospect that there may be either a wholesale adoption of that title, that there may be partial adoption of that title in some areas or that there may be a staggered process ultimately leading to adoption of that title.
PN167
Can I ask the members of the Bench to turn to page 9, which is the announcement by the professionals in Cardiac Sciences Australia and can ask the members to - and you will see in the box at the top of the page, the call upon Australia states and territories to adopt the new title and moving down the page under the heading, 'Why is a standardised title needed?' The association says there:
PN168
Currently in Australia there is no consistent title for individuals working in the clinical cardiac science professions. Current title variability is demonstrated by the use of terms such as technician, technologist, scientist and specialist for individuals performing variations of the same roles in different states and territories of Australia.
PN169
So this is straight from the horse's mouth. The professional association itself, about the range of different descriptions used for what is essentially the same role performed by people with similar qualifications. And the range of functions comprehended by their suggested title of cardiac physiologists appears over the page. This is page 10 of the witness statement and one can see there, 'Who will the new title apply to?' That heading. It says, 'The term cardiac physiologist}will be applicable to a range of distinct specialities.'
PN170
There are five distinct cardiac science roles for whom the title 'cardiac physiologist' is recommended. First ECG, second cardiac catheterisation, third, cardiac sonography and echocardiography. Fourth, cardiac devices, fifth, electrophysiology. So there's a range of different areas of practice and it's not difficult to imagine the range of titles or descriptions that might be used for the workers that are operating in any or some of those functions.
PN171
Now, the reason for the desire to adopt the new description appears below that heading, 'Why was physiologist chosen as a recommended title.' First, it is already in use in New Zealand. There is a joint Cardiac Society. They wish to have consistency of title with New Zealand and the United kingdom uses that title already. They also note that there is a movement in universities to use physiology in the title of courses. So there is a movement at the educational end to use that title in the description.
PN172
And one can see in that third dot point underneath that heading the Australian counsel for clinical sciences will unite the wider clinical physiology professions and they there list 'Cardiac physiologists will be joined by respiratory physiologists, sleep physiologists, neuro physiologists, renal physiologists' et cetera. So one can see they are all titles which don't appear in schedule C, but they appear to be accepted here as either current or emerging descriptors of people in similar roles within health.
PN173
Now, one can see, if one goes to the following page which is an extract that's annexure AL2, that was the predecessor award in Victoria from 2003. Cardiac technologist, that descriptor in the pre-modern awards included - and just under that heading, 'Cardiac technologist grade II' at the second box point, one can see it's a person with special knowledge or depth of experience in echocardiography, electrophysiology, cardiac catheterisation or halter monitor interpretation.'
PN174
So there is a range of different functions that are comprehended by that title 'cardiac technologist' and therefore the capacity or prospect that a role that was once comprehended by that title and probably continues to be comprehended by that title will have a different description in practice in real life and one can see over the page that was the extract I just showed you at AL2 is the extract from the Public Sector Award. There is a similar description of the cardiac technologists in the Private Sector Award over the page in AL3. That's at the bottom of page 12 there. So those same functions were considered part of that role of cardiac technologist in the pre-modern Victorian awards.
PN175
Now, interestingly, some of the people caught within that description might also be regarded as sonographers and sonographers don't have their own national board under the AHPRA regime, but they are referred to also in schedule C. Now just turning to our paragraph 18 to 20 of Mr Leszczynski's statement, he's gone even further back to extract - and this is a document that appears at page 31 and following - to extract some material about cardiac technicians. And you might recall they were one of the one in that list of descriptions that the cardiac technologists in referring to their desire to become the cardiac physiologist said was a description that was applied to their field. So the description of cardiac technician was one of the descriptors that they wish to harmonise with this title of physiologist. One can see in this document at page 35, which is a claim in respect of medical technicians and medical laboratory technicians that the term 'medical technician' was something that comprehended that position of cardiac technician that appears in the middle part of page 35.
PN176
VICE PRESIDENT CATANZARITI: They're just numbered at - - -
PN177
MS DOUST: I'm sorry?
PN178
VICE PRESIDENT CATANZARITI: After about page 29 they are no longer numbered.
PN179
DEPUTY PRESIDENT BOOTH: Page 30 has got a blue (indistinct) Australasian Society for Ultrasound and Medicine and then it goes into unnumbered pages from our point of view.
PN180
MS DOUST: Yes. I see. The first page of this document should be like a memorandum and at the top it says, 'Subject VAHPA claim for a new classification structure for medical laboratory technicians.' So if one turns over the page from there and then over again, there is a heading, 'Health Professional Services Award. Medical laboratory technicians costing.'
PN181
VICE PRESIDENT CATANZARITI: Yes.
PN182
MS DOUST: It is a document that analyses the number of people within the public health system performing particular roles and so on. Over the page, there is a page headed 'Medical laboratory technicians.' It sets out the current salary scale and the VAHPA proposed salary scale and so on. It's one further page on from there and it identifies there the persons who are paid as medical technicians under that old description and that includes - if you look down the second-last entry, cardiac technicians, but there's a range of different technicians.
PN183
Now, of course, the title 'medical technician' currently appears in schedule C in the list. This is curious example. Can I ask the Bench to turn to schedule C, if you have the award available? That's at page 61, schedule C appears. It's right at the back.
PN184
VICE PRESIDENT CATANZARITI: Which part of the award?
PN185
MS DOUST: Just if you turn over to the second page of that list of common health professionals, fourth from the top, if we are going off the same print is the descriptor, 'medical technician/renal dialysis technician.' Now, it is a curious way to describe an occupation in that way. It is not - certainly one would think it would be odd to think that the general descriptor 'medical technician' is somehow limited by what appears subsequently. But the use of the slash between those descriptors is somewhat confusing and we say probably reflects more on the, shall we say, vicissitudes of the award modernisation process. And there were many vicissitudes in that process.
PN186
But Mr Leszczynski summarises the history, if I might say, very eloquently at paragraph 23 where he says:
PN187
With cardiac technologists, when you put all of this together, originally they were paid as a medical technician, referred to as a cardiac technician, became known as a cardiac technologist, some within that grouping became known as cardiac sonographers or echocardiographers and now they want to be known as cardiac physiologists.
PN188
And that is all happened over what is a relatively short period of time. And Mr Leszczynski goes on in his witness statement to discuss the position of sonographers within the Victorian Health system. The short point that he makes which is in answer to much of the material that is filed, if I can say, in broad terms in the area of tooth science, or the tooth sciences or the tooth practitioners, the point appears to be made against the HSU that award regulation is going to drive down conditions. That's Mr Leszczynski's observation that sonographers have an award underpinning them and they are doing fairly well as a consequence simply of market forces.
PN189
Now, that's not a consideration that we think really is one that would weigh heavily in the Bench's consideration of this initial question that has been set down for hearing today, which is whether or not that list should be exhaustive or indicative. That appears to be an argument that is principally made in respect of the dental hygienists. But to the extent that's pressed that's one example that he gives by way of an answer.
PN190
Now, can I say something generally about our evidence. Putting aside the material about those in the dental area, which seems to be in a separate category, might I say, in the consideration of the Commission in respect of this award and has some particular considerations arising in respect of it and its particular history. No attempt really has been made by the other parties to challenge or contradict the evidence of Dr Kelly and Mr Leszczynski about the state of the health professions within the industry. And what their evidence shows the Commission is the level of flexibility and movement and both the titles applicable to the health professions, but probably more importantly the descriptors used for roles by employers and the descriptors used in industrial instruments. And that has all occurred at a place which is the intersection between for the one part a national scheme of regulation of some health practitioners. Not all health practitioners, only those who have a national board operating under the Australian Health Practitioners Regulation Agency. So some of those practitioners are governed by that scheme. That is one of the factors that plays in this process of change that has occurred in the last few years. The other factories, obviously, changes in health practice and policy and the other factor which cannot be overlooked is obviously enormous technological change and advances in the type of treatments and care and therapies that are available.
PN191
That leads me to make some observations about the list of health professions in schedule C, which we think would inform the Commission in the approach it takes to this question about whether the list should be regarded as exhaustive or indicative or should be, in a prospective way, an exhaustive or an indicative list. First, not all of the health professions listed in schedule C are health practitioners. And by 'health practitioner' I think that probably can be described as someone who is providing a health diagnostic procedure or a treatment.
PN192
So not all of the health professions are people who either diagnose or treat patients. For example, in schedule C we have health information managers, medical librarians, photographers, illustrators, medical technicians, just as examples. They are people that probably never have to approach a patient in the course of the work that they perform.
PN193
So this award and that description 'health professional' is, obviously, not just limited to the sort of allied health practitioner that we might think of at first blush such as your physiotherapist, such as your radiographer and the like.
PN194
The second thing to be said is this; not all of the health practitioners which appear in schedule C are regulated by the Australian Health Practitioner Regulation Agency under the national scheme. So your sonographers and cardiac technologists fall into that category. So they are not currently regulated under that scheme, even though they are practitioners who are dealing with patients carrying out diagnostic or therapeutic procedures on patients.
PN195
Now, for those practitioners who are AHPRA regulated, there is obviously considerable certainty about professional roles and descriptors. The professional identity of that sort of practitioner and title is anchored in the regulatory superstructure. There is protection about who can use that description, but for the practitioners who fall outside that scheme, such as the cardiac technologists or the cardiac physiologists, both role title and scope of practice are matters for debate and negotiation.
PN196
And notwithstanding the fact that there is that debate in negotiation about both those areas, proper description and scope of practice, they are covered within schedule C and how with those people we discern their level within the system is by going to schedule B and one can see there is the definitions for the health professionals at the various levels and I will come back to that shortly.
PN197
The point is that even though the particular form of practice or descriptor is something which is currently moving, they are still caught by this award. The third point to be made is that there are in addition to those roles, there are professional roles within the health industry working within the same system as all the other occupations listed in schedule C that are similar in qualifications and role to occupations listed in schedule C, but which don't appear there.
PN198
And these are roles in respect of which we say there is no good reason why they would be regarded any differently to the roles in schedule C and for example health promotion officer and clinical code, those are the roles for example that Mr Leszczynski identifies in his statement. And one can't discern on the material before the Commission that there would be any sort of reason in principle which warranted distinguishing between those two groups and saying that the one that doesn't appear in the list is out and the one that does appear in the list is in.
PN199
So from looking at the descriptors in schedule B, one can see these are definitions that are capable of covering, obviously, more than just the professions that are listed in schedule C and they can readily accommodate those roles, such as health promotion officer, clinical code, medical physicist or IVF counsellor. Because there are broad descriptors that that distinguish between the professionals based upon the level of their experience, specialist knowledge and autonomy within their area.
PN200
Now, we contend that schedule C, being an indicative schedule is something that would be consistent with the terms of the award modernisation request and I think against the objection from the Bench I am going to hand up a copy of that request and remind the members - no doubt there will be some trauma involved.
PN201
There's a couple of observations I wanted to make about this. First is this, that within the objects of award modernisation one can see at the first objects, the aim of the award modernisation process is to create a comprehensive set of modern awards. Not piecemeal or patchwork, and we say that a comprehensive set of awards to cover the health industry and health professionals is what the Full Bench was endeavouring to do when it dealt with the health and welfare industry pre-reforms together and settled on a division of the workforce into some occupational awards or in the first instance some occupational awards and industry award, and a mixed industry and occupational award.
PN202
So we have the nurses, the doctors, aged care and then we have health professionals and support services. We say that was an attempt to deal comprehensively across those areas in a way that was appropriate to the particular professions and occupations and to the industry.
PN203
Now, obviously, what was issued at first blush was ultimately refined somewhat and there were further iterations that evolved. But we say it's clear from how the modern awards evolved that that was the intent of the Full Bench to provide for comprehensive coverage.
PN204
The second observation we make is as to paragraph 2(a) of that award modernisation request. The request says:
PN205
The creation of modern awards is not intended to extend award coverage -
PN206
and so on, that first sentence,
PN207
Classes of employees who have traditionally been award-free,
PN208
but the second part, we say is instructive:
PN209
This does not preclude the extension of modern award coverage to new industries and new occupations where the work performed by employees in those industries or occupations is of a similar nature to work that's historically been regulated by awards in Australia.
PN210
So we say if one thinks of possible health professionals that fall outside these descriptors in schedule C, and one looks at the list in schedule C, those ones that possibly fall outside schedule C are roles performing work of a similar nature to work that's historically been regulated by awards. And most of those are roles in schedule C. They were historically regulated by awards. So we say the schedule C being a list which is indicative of health professionals that term drawing its meaning from the descriptors in schedule B is something that would be consistent with the award modernisation request.
PN211
Can I also ask you to look at paragraph 2(f) of the request? Again, this is what the creation of modern awards was not intended to do. It was not intended to exempt or have the effect of exempting employees who are not high income employees. Of course, that term is defined in section 329 of the Act as an employee who has an annual guarantee of earnings.
PN212
For modern award coverage or application, unless there's a history of exempting employees from coverage across a wide range of pre-reform awards and (indistinct) in the relevant injury or occupation. So in the process of bringing together all of the different pre-reform awards from the various states and jurisdictions, we say the presumptions appears to be towards coverage and that the onus is really upon parties wising to exempt from coverage to show that there is an established and broad practice of exemption, in order to make out a case that you should be excluded from coverage.
PN213
Now, I accept that there is obviously limits at this stage to how far we can go back and interpret what occurred in the award modernisation process. There is obviously - it's a profoundly difficult task to bring together all of those pre-reform awards with the limitations or the expectations that were set out in the request. The notion that no-one would be worse off, no-one would pay any more and so on. Trying to bring them together was a difficult task and it was all performed, I think, in relatively short time frames.
PN214
So I think there is limitations in what can be made of the inconsistencies that arose in that process. Inevitably, there were going to be inconsistencies in approach and expression and one can look back and we, obviously, rely upon the statement of the Full Bench at the time the first draft of the Health Professionals Award was published in that process. We refer to the statement of the Full Bench and its intent to cover all the health professionals there. Our friends refer to other statements elsewhere, but what we say is that the approach that we contend for prospectively is one that is most consistent with the award modernisation request. Regardless of what one might ultimately be able to discern, if that's possible, was in the minds of the Full Bench in the making of the award.
PN215
But we say, when one looks at the way in which, as I've said, the awards were published that the Full Bench sought to establish comprehensive coverage consistent with the request across the health and welfare industries. The aged care sector was dealt with separately. The occupations of doctors and nurses were carved out for their own awards. Otherwise, it is apparent that Health Professionals and Support Services, that award was directed to establish comprehensive coverage otherwise within the health industry and of the health professions, apart from those previously mentioned professions.
PN216
On that basis, we say that there is no sensible principled and consistent basis on which it can be said that this award should not cover a health professional who otherwise meets the descriptors in schedule B, but who is not listed in schedule C, save for those professions, the subject of specific mention such as doctors and nurses where there is a clear intent on the part of the Full Bench to deal with them separately and their awards provides specifically in the coverage clauses that if there's two awards, one goes to the award that's more appropriate and, clearly, if you are talking nurses or doctors, that's the award that's more appropriate.
PN217
We say it could not be a desirable outcome to have an award which would in a hospital setting for example have clerical and administrative staff covered by the present award under the support staff schedule. Technical and other support staff, such as maintenance people, gardeners, lab assistants and so on covered under the support schedule. Nurses covered by the Nurses Award. Employed doctors covered by the Medical Practitioners Award. Sonographers covered by the HPSS, but someone going by the description of cardiac physiologists, for example, or health promotion officer falls outside the award because their particular title is not included in schedule C.
PN218
That is not, we say, consistent with the scheme that was set up with the making of the modern health awards. But equally we say it could not be desirable or consistent with that scheme of coverage to have a person whose training or experience places the initially in a schedule C role fall outside the scope of coverage because there is a change in their role title or duties that takes them outside that list, while still falling within schedule B only to come back in 18 months later or two years later after they've either returned to something with their original title or the Fair Work Commission has gone through the arduous process of hearing yet another application to add another description to the list in schedule C.
PN219
It is surely a far more sensible use of the resources of the Commission. But we say ,more importantly, consistent with proper principle to have the award cover health professionals however they are designated. Unless there are any other questions, those are the submissions for the HSU.
PN220
VICE PRESIDENT CATANZARITI: Thank you.
PN221
MR MILES: I intend to be fairly brief and should be concluded well before the luncheon adjournment. Because of the nature of the interests that my clients represent, they represent the interests of dentists and dental prosthesists and the vast majority of those professionals have chosen to be members of my clients. They are not an employer association. They are there to represent the dentists in the dental prosthesists, including those who are employees.
PN222
Whilst due to the nature of that role that we are aware of matters within the dental industry and we've attempted to assist the Commission in relation to some of the background material that may or may not be useful in relation to features of the dental industry. I don't intend to make submissions on matters that go outside the question of the coverage of dentists and dental prosthesists. That's not my client's interest and it's not - unless there is some particular manner in which the Bench would like assistance, it's not something I propose to go to.
PN223
So whether cardiac technologists or any other person is appropriately covered is just not a matter that is - - -
PN224
VICE PRESIDENT CATANZARITI: We understand your point.
PN225
MR MILES: Yes. And similarly in relation to dental hygienists and oral health therapists, they are not my client's members. Whilst we have some awareness and involvement with them, whether or not they are covered by an award is a matter that they can deal with.
PN226
So looking through the prism of the dentists and dental prosthesis, we are in a position where there was no significant award coverage prior to 2009. Submissions refer to some minor aspects in the public sector and in relation to Tasmania, with dental mechanics, but primarily there was no significant award coverage. They are not in a - they are also in an industry which is dominated by the private sector; the evidence of Ms Irving, talking about something like 10 per cent of all dentists being involved exclusively in the public sector and similar evidence from Ms Bradburn as to the very low extent of public sector employment in those professions.
PN227
We say there is no evidence that dentists or dental prosthesists are low paid. In looking at the modern award objectives this is not a factor that is going to encourage why they should be covered by an award. They are not - Ms Doust referred to the regulation by - - -
PN228
VICE PRESIDENT CATANZARITI: I am just wondering whether we should short-circuit this. I mean, we're not dealing right now as to the coverage of dentists and dental prosthesists. That may well be matter for another day if something emerges, where it's really the narrow issue that we are dealing with right now. So - - -
PN229
MR MILES: Well, as we see it, the way in which - - -
PN230
VICE PRESIDENT CATANZARITI: And really, it's probably Ms Murphy is really the person with the greater interest.
PN231
MR MILES: In that sense, but our concern is the way in which the HSU are - - -
PN232
VICE PRESIDENT CATANZARITI: Yes. But that may well be a separate application. I mean, bearing in mind that after the award review process is over, there is nothing stopping, under the new guidelines - the new part of the Act - for coverage to be relooked at. But let's focus on what we have to deal with, which is one narrow issue at the moment.
PN233
MR MILES: Well, there are two narrow issues as I understood - - -
PN234
VICE PRESIDENT CATANZARITI: And Ms Murphy cautioned the Bench in writing that we should focus on the narrow issue for this hearing so that nobody is prejudiced by.
PN235
MR MILES: Yes. I thought it was the two issues that we're dealing with today, being the question of whether it is indicative or exhaustive.
PN236
VICE PRESIDENT CATANZARITI: No. It is not. We are only dealing - - -
PN237
MR MILES: Well, that's the reason that we've come to appear, is because we've been told that it's to deal with that question of indicative or exhaustive.
PN238
VICE PRESIDENT CATANZARITI: No. We - - -
PN239
MR MILES: In terms of Ms Murphy's matter, I am not - - -
PN240
VICE PRESIDENT CATANZARITI: We aren't going to be determining the whole gamut of schedule C in this particular hearing. If we - depending on what happens in the first - in the current matter, that may well lead to a second application to deal with the wider issue, but it's not going to be determined right now.
PN241
MR MILES: I am in the Commission's hands. I am merely here to represent members on the understanding it was deal with the question of indicative or exhaustive.
PN242
VICE PRESIDENT CATANZARITI: No. It's not - we are not - - -
PN243
MR MILES: And if the Commission is not intending to deal with that today - - -
PN244
VICE PRESIDENT CATANZARITI: We are not going to determine that in this particular hearing.
PN245
MR MILES: Then I can, you know - - -
PN246
VICE PRESIDENT CATANZARITI: We're dealing with the first part of the issue which is really this issue involving the dental hygienist issue.
PN247
MR MILES: Okay. That wasn't our understanding and on that basis I would simply seek to withdraw. We don't seem - we don't need to be heard in relation to whether hygienists or oral health therapists are covered for reasons that I've stated and if the Commission is not dealing with the other question which I thought it had been, then I won't take any further of your time.
PN248
DEPUTY PRESIDENT BOOTH: Mr Miles, I will tell you how I see it and I think it's a question of your interpretation. But as the directions set out, we are looking at whether or not schedule C should prospectively be considered to be indicative or exhaustive. As I see, your submissions are going to whether by the consequence of that, your clients would be adversely impacted.
PN249
I think what the Vice President is really alluding to is it wouldn't be appropriate for us to look into whether or not a certain profession should or shouldn't be covered by the award in that context, because we are looking at the question - - -
PN250
MR MILES: No. But in looking at the question of exhaustive or indicative, our view of not being covered is because of our view as to how that schedule was developed in the role in which particularly the Dental Association had in the award modernisation process and their familiarity with that. And the fact that - and the way in which that emerged we say goes towards why it is not indicative in - well, 'there is some debate as to even what 'indicative' means. But on our submission that in looking at what that means, you couldn't see anything from that list that indicates dentists or dental prosthesists. And in looking at prospectively what the award covers, that's a matter that should properly be taken into account in formulating that view.
PN251
Now, I am quite happy to make those submissions at the appropriate time if the Bench is telling me that the appropriate time is not now, then that's fine.
PN252
DEPUTY PRESIDENT BOOTH: I defer to the Vice President in relation to that.
PN253
VICE PRESIDENT CATANZARITI: (Indistinct) going to determine that issue on what we have at the moment, right, because the way Ms Doust has put it, she's certainly saying that the list in reality keeps changing, because professions keep changing. The wider issue of whether it's going to be extended to dentists for example, is not going to be determined in this application right now.
PN254
MR MILES: No. And I am not aware of any application that it should include dentists. The question is - the only matter on which I wish to be heard is in relation to the question of indicative versus exhaustive. And if the Bench doesn't want to deal with that at the moment, we are content with that and - - -
PN255
VICE PRESIDENT CATANZARITI: Well to some extent - we are going to be dealing with it to some extent in this (indistinct) way because one view the list in schedule C does not reflect reality at the present time. So if you say you are being prejudiced by not addressing this in addresses, but that's going to be the argument that as it turns out there are professions currently utilising schedule C, which have not been identified.
PN256
But that's a big jump to say that dentists should now be included and dental prosthesists. That's a different - that is not - - -
PN257
MR MILES: Yes. And our point - - -
PN258
VICE PRESIDENT CATANZARITI: We are wasting a lot of time going down that burrow right now.
PN259
MR MILES: Our point would simply be that whichever way you look at it, there was no doubt that oral health therapists and dental hygienists were intended not to be covered by the award and the way in which that was achieved was simply by taking them off the list.
PN260
As I said, when the Commission wishes to hear and determine the matter of whether it is indicative or exhaustive is - I am in the Commission's hands and happy to address at that time. In terms of the oral health therapists and dental hygienists, we don't need to be heard.
PN261
VICE PRESIDENT CATANZARITI: Yes. Ms Doust, what are you - there may be some confusion as to what the current application is. I just want to make sure how far you wish to go in this. I mean, are we just - are we going to deal with the interests of Ms Murphy or do you want a wider - because we were going to (indistinct) of Ms Murphy and we weren't going to go to the wider picture.
PN262
MS DOUST: As I understand it - - -
PN263
VICE PRESIDENT CATANZARITI: Because that's a much bigger hearing and would require a - we're not going to get away with it with the short submissions that have occurred thus far.
PN264
MS DOUST: As I understand it, today was about whether or not prospectively schedule C should be an indicative list or an exhaustive list. And our submissions have been in short it is our view it started indicative, but regardless of what the Bench says about whether or not schedule C was currently intended to be indicative, it should be indicative prospectively for the reasons that we say in respect of the movement of occupational descriptors.
PN265
As we understood it, that was the question for today. There's the separate question that the Bench identified in the decision of December last year, which was whether or not the question of dental hygienists and oral health therapists should be reconsidered, given I think you'd referred to - the Bench had referred to a New South Wales award and some similarity in scope of practice and so on. And as I understood it, that was the secondary question to be dealt with after the question of indicative had been determined by the Bench. But from our perspective, it seems to me that those - well, the first observation I would make about that is as I understand it, that was at the request of the DHAA that those - - -
PN266
VICE PRESIDENT CATANZARITI: Yes. You're right. So the difficulty with that approach is that Mr Miles will say if the Bench formed a view that it was indicative, how far does that go.
PN267
MS DOUST: Yes.
PN268
VICE PRESIDENT CATANZARITI: Because it can't just be in a - well, I think I understand the point you wish to make.
PN269
MS DOUST: We accept that there is - that Mr Miles has got a specific argument about the position of dentists, which arises from the pre-award - the pre-modernisation history and from statements made in another Full Bench decision. And we ultimately came to the position in our submissions that if the Bench accepts that conclusion, that they weren't intended to be covered by this award, then that's not something that should impact upon whether or not schedule C is indicative going forward. That's a matter that if there is some doubt about whether or not that's properly expressed, then that could be dealt with by way of an exemption in coverage.
PN270
VICE PRESIDENT CATANZARITI: I think Mr Miles is concerned that if the Bench did form a view that schedule C was indicative - - -
PN271
MS DOUST: Yes.
PN272
VICE PRESIDENT CATANZARITI: Does it then follow that the argument involving dentists suddenly becomes a live issue?
PN273
MS DOUST: Well, that's a matter that we think goes to the specific facts of the history of the teeth in this matter. And it seems to me that's quite specific and isolated.
PN274
VICE PRESIDENT CATANZARITI: Do you think we need – consider the question, indicative. Do we need to have submissions about dentists at this point? That's the difficulty. Because - - -
PN275
MS DOUST: In my submission you have that. There's the written submissions from Mr Miles about the position of dentists and what the intention of the Full Bench was. It's our submission that even if you accepted that that was a correct interpretation of what the Full Bench intended to do with the making of the Health Professionals & Supports Services Award, the appropriate way to deal with that is not by way of determining that schedule C should be an exhaustive list. The appropriate way to deal with that is by way of perhaps setting out some clear exemption in the award in clause 4 or something of that nature, and that that's an isolated matter that doesn't touch on, we say, the force of our argument about why schedule C shouldn't be regarded as exhaustive in health professional roles.
PN276
VICE PRESIDENT CATANZARITI: So you say that we – not that we've formed any views, but you say if the Bench did form a view that schedule C was indicative - - -
PN277
MS DOUST: Yes.
PN278
VICE PRESIDENT CATANZARITI: An opportunity would be given to parties to be heard as to whether by using that sort of language, some industries are carved out in any event?
PN279
MS DOUST: Yes. Yes. In effect, that leave could be reserved on that question in respect of particular industries.
PN280
VICE PRESIDENT CATANZARITI: Yes.
PN281
MS DOUST: And as it stands, it's really only in that area of the dental and oral people that that is an issue.
PN282
VICE PRESIDENT CATANZARITI: Yes.
PN283
MS DOUST: There is that particular award history - - -
PN284
VICE PRESIDENT CATANZARITI: Yes, okay.
PN285
MS DOUST: And there are those questions. And can I say, we don't at this stage concede any of it.
PN286
VICE PRESIDENT CATANZARITI: No, no, I follow that.
PN287
MS DOUST: And in particular, in respect of certainly the – the hygienists, the oral health therapists, and so on because of that argument about similarity.
PN288
VICE PRESIDENT CATANZARITI: No, but the preliminary question is, is it indicative or not.
PN289
MS DOUST: Or should it be prospectively.
PN290
VICE PRESIDENT CATANZARITI: Should it be. Yes, or should it be, yes.
PN291
MS DOUST: That's how we understood the question.
PN292
VICE PRESIDENT CATANZARITI: Yes, should it be prospectively, that's right.
PN293
MS DOUST: And our approach to it was that, well, one can look and try and read the tealeaves in what occurred in 2010 and onwards, and one gets a hell of a headache going through that process, but regardless of the answer to that question there still remains the question that the Full Bench posed in December which is, prospectively, what is the appropriate way for this award to operate. And that's really what we addressed in substance today. We say prospectively it does not make sense to have piecemeal coverage in the health professions by reference to - - -
PN294
VICE PRESIDENT CATANZARITI: Otherwise schedule C would be clearly coming back to be revised.
PN295
MS DOUST: And much as we'd love to continue to appear and see he members of the Commission on a regular basis - - -
PN296
VICE PRESIDENT CATANZARITI: All right.
PN297
MS DOUST: That wouldn't be, we say, a sensible way for the Commission to proceed.
PN298
VICE PRESIDENT CATANZARITI: Yes. Mr Miles, does that satisfy your interests if it's done that way?
PN299
MR MILES: It's - - -
PN300
VICE PRESIDENT CATANZARITI: Because we haven't formed the view on the preliminary question.
PN301
MR MILES: Yes. It's as much about – and we posed this question directly in the submissions about, in what way is it said to be indicative of dentists and optometrists or others? It's - - -
PN302
DEPUTY PRESIDENT BOOTH: I don't know if this helps but I think you're conflating. And this comes back to the directions hearing that I held and Ms Murphy put quite firmly to us that the matters should be dealt with sequentially for the practical reason that if we were to form the view that the list was exhaustive then your concerns would fall away and Ms Murphy's concerns would fall away and there would be nothing further to be done, and therefore why put us to the trouble of creating a case that we may not have to run. If on the other hand the Bench maintained its provisional view, which remember was in our original decision - - -
PN303
MR MILES: Yes.
PN304
DEPUTY PRESIDENT BOOTH: That the list should be indicative, then of course there are consequences to that and as the Vice President has indicated secondarily, the parties would be free to put those submissions to us.
PN305
MR MILES: Yes but what troubles me is that – and I've just been looking to pull the section up but I don't have it readily to hand, because my recollection is there's a section of the Fair Work Act that says once you are covered by an award, once that coverage cannot be removed – I'm indebted to my learned colleague – yes, at 163 - and so just concerned that we don't end up being caught in that legislative trap unintentionally, because we're still not seeing how indicative – even if it's said to be indicative, how that anything about the schedule indicates the members of my client's.
PN306
DEPUTY PRESIDENT BOOTH: There's your answer.
PN307
MR MILES: But without knowing that, without seeing what it is that's intended, that's why we're apprehensive in why we're seeking to be heard in relation to it.
PN308
COMMISSIONER CAMBRIDGE: But if it's prospective, surely then the argument that you mount, you would mount when you're looking at some sort of specific exclusion.
PN309
MR MILES: Except for the difficulty of – and I am indebted to my friend for pointing out section 163(1), which is:
PN310
The Fair Work Commission must not make a determination varying a modern award so that certain employers or employees stop being covered by the award, unless the Commission is satisfied that they will instead become covered by another Modern Award.
PN311
MR MILES: Such that if we find ourselves in the position where we are said to be caught by the award, there is no variation that can fix that. Hence why we're being quite assertive in trying to ensure that doesn't occur in the first place, rather than then having to try and come back with some exemption.
PN312
DEPUTY PRESIDENT BOOTH: If that's a really serious submission it would have been very handy for people to put that at the directions hearing so that we didn't deal with this matter sequentially, and instead dealt with those matters together.
PN313
MR MILES: I understood the sequential. I just thought it was in the opposite way to which it's being now put, which his – I'm trying to – not to deal with Ms Murphy's point but the other one. But it's - - -
PN314
DEPUTY PRESIDENT BOOTH: I haven't even opened the Act but I'd be surprised if we couldn't deal with that in our decision because we've not finished the matter. The matter is not concluded. The matter will not be concluded until we conclude it.
PN315
MR MILES: Yes.
PN316
DEPUTY PRESIDENT BOOTH: So this is a series of decisions within the same matter and therefore I would think that whilst being the only non legal member of the Bench, perhaps I shouldn't be listened to or perhaps the common sense is there but - - -
PN317
MR MILES: I think, Deputy President, your experience should be listened to, in any event.
PN318
DEPUTY PRESIDENT BOOTH: You know, we will say in our decision, if indeed – I mean, we're not, obviously having made up our minds yet but were we to make up our minds that the matter was indicative we're very alive to the fact that there is a controversy about certain health professionals - - -
PN319
MR MILES: And how it's - - -
PN320
VICE PRESIDENT CATANZARITI: And we would be continuing to - - -
PN321
MR MILES: It's just as much about how the matter is indicative.
PN322
DEPUTY PRESIDENT BOOTH: Yes. We're creating work for ourselves if we make that decision, but be that as it may.
PN323
MR MILES: Yes.
PN324
VICE PRESIDENT CATANZARITI: I'm not sure I read section 163 the way you have. I still think one can proceed on the safe basis that we deal with this interim question first.
PN325
MR MILES: I'll take some instructions from my clients and that being, if I don't need to take any more of the Bench's time then I'll certain avoid that.
PN326
VICE PRESIDENT CATANZARITI: We take you submissions as read, in any event.
PN327
MR MILES: Yes.
PN328
VICE PRESIDENT CATANZARITI: So Ms Murphy, so we'll focus on the first question.
PN329
MS MURPHY: What was that?
PN330
VICE PRESIDENT CATANZARITI: We're focussing on the indicative question.
PN331
MS MURPHY: Yes, that's correct. I agree with the comments with regard to process of Ms Doust. I don't agree with the conclusion, of course - - -
PN332
VICE PRESIDENT CATANZARITI: No.
PN333
MS MURPHY: But with regard to what we are meant to be focussing on today, which is whether the list should be indicative or exhaustive. That was decided at the previous hearing and that's certainly what we're prepared for today. And had that not been the case our decisions with regard to not requiring cross-examination would have been different and presumably my colleagues at the Health Services Union would have had similar conclusions with regard to not wanting to cross-examine our witnesses. So that's our understanding of what's going to occur. And whether dentists should be covered or not is a separate issue which doesn't go to whether this list is indicative or should be indicative or exhaustive in the DHAA's view, sir.
PN334
VICE PRESIDENT CATANZARITI: All right. Let's just see how we program the rest. How long do you think your submissions will be today?
PN335
MS MURPHY: Twenty minutes, I would say, sir.
PN336
VICE PRESIDENT CATANZARITI: All right. Thank you. Mr Harrington? How long do you think your submissions will be?
PN337
MR HARRINGTON: Roughly 20 minutes, as well, I'd say.
PN338
VICE PRESIDENT CATANZARITI: Really?
PN339
MR HARRINGTON: Maybe.
PN340
VICE PRESIDENT CATANZARITI: I would have thought you'd have very little to say given the comments that are filed. I think it's Ms Murphy who is really going to be the person with the most to say. But let me just check then with Ms Thomson. How long do you think you'll be?
PN341
MS THOMSON: Very brief, your Honour. I'm content to rely on our written submissions.
PN342
VICE PRESIDENT CATANZARITI: Right. I think we'll bat on. Yes. We'll go with Mr Harrington first. You're following.
PN343
MR MILES: Excuse me, Vice President, if I might briefly withdraw - - -
PN344
VICE PRESIDENT CATANZARITI: You can be excused.
PN345
MR MILES: So I can get some instructions just to confirm as to whether we are going to make any further submissions at this point.
PN346
VICE PRESIDENT CATANZARITI: Yes. So I guess there's only – it's really any material you want to provide beyond the written material now.
PN347
MR HARRINGTON: No, nothing beyond our written material. We'd like to respond to a few points which have been raised by Ms Doust.
PN348
VICE PRESIDENT CATANZARITI: Yes, go ahead.
PN349
MR HARRINGTON: I'll just migrate over this way again. As the Vice President has foreshadowed, we don't have a huge amount to raise in addition to what we've already put in our written submissions, but the HSU have raised the question of a number of occupations mentioned in Mr Leszczynski's statement of 17 March 2017, so health promotional officers, massage therapists, paediatric occupational therapists, those are the three that I've written down. These are discrete occupational titles. They are not listed in schedule C. And all that's before the bench in relation to these discrete occupations are what the HSU has provided in the context of these proceedings.
PN350
If the Commission is satisfied, for example, that a play therapist and a child life therapist are the same occupation, or that these are two titles which describe the same occupation then an exhaustive list is not a barrier to coverage. If the a play therapist is simply the same occupation as a child life therapist, and we're not conceding that this is the case, then the - - -
PN351
VICE PRESIDENT CATANZARITI: I don't think that's the way she's putting it because she's taken us to the actual evidence underpinning that. And she's saying, these things are changing and they've moving around. It's not simply like for like.
PN352
MR HARRINGTON: But our view would be if the occupation altered or changed to - - -
PN353
VICE PRESIDENT CATANZARITI: But you chose not to cross-examine witnesses so we are stuck with the evidence as it is for this point.
PN354
MR HARRINGTON: And we really just put this at a very, very general level and we're not going to the nitty-gritty of the evidence, obviously. But if the occupation does change to the point where it migrates or changes into a different occupation altogether our view would be that the occupation shouldn't be covered, that if it's a different entity, a different thing that which is already in schedule C, then that's a separate occupation. And basically if the HSU is if the opinion that this occupation, this separate occupation should be covered, then the correct course of action is to make an application under 158. But we don't wish to go too much further beyond that.
PN355
The HSU have made oral submissions on the back of the statement of Ms Kelly of 7 August 2019, that IVF counsellors have been considered covered as a health professional under the HPSS Award. We'd submit that Ms Kelly's statement really represents her opinion. They don't constitute an authority on this point and should just be treated as such. We would urge the Commission to accept that Ms Kelly's statement provides no persuasive argument against the point that the list of health professionals in schedule C should be exhaustive rather than indicative. On the contrary.
PN356
The fact that you would require reference to the opinion of an assistant secretary of the HSU in order to be interpreted what the HSU consider to be an indicative list, should demonstrate what the obvious difficulties are, that such a list would present to those who don't have Ms Kelly on speed dial. The HSU have stated in their oral submissions that the other parties including AiGroup have not addressed the points raised by Mr Leszczynski and Ms Kelly in their respective statements.
PN357
If I could refer the Bench just to paragraphs 14-21 of our submissions of 19 August 2019, I don't wish to elaborate much further on what we've already said regarding IVF counsellors but 'counsellor' is already listed in schedule C. We make that point in our submissions. We don't concede this point that note that if it's not immediately apparent that these people would not necessarily be covered. The HSU have noted in support of their arguments that the list of health professionals in schedule C is not just limited to health practitioners. Medical librarians was posited as an example here. But we consider that the breadth of the list as an indicative list would be unmanageably broad if the list were not considered to be exhaustive. If 'health professional' lacks a clear reference point and in a list which encompasses occupations such as youth workers, all the way to podiatrists, employers would be left in the unenviable position of struggling to determine who is covered by the list. We submit that such an approach would be unfair and unwieldy and could not possibly be consistent with the Modern Award's objective.
PN358
So we've made note here of the nine submissions on the question of the nature of the list of common health professionals in schedule C since the matter was first raised by the Fair Work Ombudsman in 2014 and our position hasn't really deviated throughout the years. It's pretty much still the same. Our position has been and continues to be that the list of common health professionals in schedule C is exhaustive, rather than indicative. We don't wish to repeat material which the Commission and the other parties already have in the form of our submissions but our views on this matter can be summarised in a few simple points.
PN359
So an indicative list would be consistent with the ordinary meaning of the award. 4.1 of the award provides for two classification streams, one for employees in the health industry engaging support services employees and health professional employees; the second stream covering any employer regardless of industry who engages a health professional employee. Clause 15 doesn't define 'health professional employee.' It provides for a series of pay points denoted from levels 1 to 4. These levels are defined in schedule B at B.2 but provide no indication of what the health professional employee is. B.2 passes this task to schedule C. It states, 'A list of common health professionals which are covered by the definitions as contained in schedule C, list of common health professionals.'
PN360
Our view is that these words are fairly telling. It uses the term, 'health professionals which are covered.' We wonder what the purpose of these words would be if all health professionals were covered. So some indication of the meaning of the list in schedule C might be derived from a decision of the Commission to remove dental hygienists from schedule C. If the list was really indicative we'd wonder what the purpose of removing this occupation from the list in schedule C was. By the same token the Commission's refusal to remove chiropractors from the list was granted upon the similarity between this occupation and physiotherapists and occupational therapists. If the lists were indicative it wouldn't matter whether the occupation were in the list or not. The presence of either of these professions would have been sufficient.
PN361
To the extent that the list is indicative we consider the indicative nature to be restricted to the occupational names in schedule C, denoting specified occupations. This should serve to address the HSU's concerns that creative use of occupational titles would defeat coverage. The AIRC made it clear in its 23 January 2009 decision that the list was one of occupational names. At the same time the award was being made the concern was expressed that the salary structure accommodate all health professionals except for doctors and nurses. This shouldn't persuade the Commission that the award was intended to cover all health professionals. It merely demonstrates an intent that at the drafting stage the salary structure be broadly framed to accommodate all health professionals who may be covered where the coverage of the award was still being determined.
PN362
I might just raise another point which has been brought up in the context of 163, so I understand this preliminary point as to whether or not the list is actually indicative or exhaustive, and the second point is to prospectively, moving forward, whether it should be or should not. Our submissions might be divided up into two in that respect. But we maintain that if the Commission finds that the list is indicative as the HSU and ABI(?) consider, it should nevertheless be made exhaustive. There are sounds reasons for this so the most persuasive from our point of view is that an indicative list might be contrary to the scheme of the Fair Work Act.
PN363
So section 143 sub-section (2) provides that a Modern Award must be expressed to cover specified employees of employees covered by the Modern Award. 1435 and 1436 provide that this specification may be by inclusion in a specified class, whether that class be by reference to an industry or a class of work. Health professional employee, while that might arguably be a class, it's not a specified class unless schedule C might be considered exhaustive.
PN364
DEPUTY PRESIDENT BOOTH: Sorry to interrupt you but it's just on point. How do you reconcile that submission with the existence in schedule B, support services employees' definition is of a whole list of indicative roles?
PN365
MR HARRINGTON: So I'll just go to the relevant section of the award.
PN366
DEPUTY PRESIDENT BOOTH: This is on page 52 of the version of the award that I've got.
PN367
MR HARRINGTON: So you're referring to the levels one through - - -
PN368
DEPUTY PRESIDENT BOOTH: Support services.
PN369
MR HARRINGTON: Support services?
PN370
DEPUTY PRESIDENT BOOTH: Yes.
PN371
MR HARRINGTON: So you've got - - -
PN372
DEPUTY PRESIDENT BOOTH: You've got a whole series of - - -
PN373
MR HARRINGTON: Yes. The HSU have made that point and I understand. Now the distinction there in our view would be that – and it goes to the dual nature of the coverage of the health professionals and support services award, so for health professionals - there are effectively two streams. For health professionals there's occupational coverage but for support services employees it's industry coverage. So our view would be that the slightly more broad descriptors which are provided for in schedule B.1, wouldn't cause the same problem for those engaging health professionals who are outside the health industry.
PN374
So if you're actually in the health industry and coverage of a support services employee is narrowed to that extent, those fairly broad occupational classifications aren't going to cause you to run into the same sort of trouble as if you're engaging a health professional, in quotes, 'you're not in the industry.' What is going to be the reference point to you in determining whether or not you're engaging a health professional? It's not anchored by industry.
PN375
DEPUTY PRESIDENT BOOTH: So do you say that schedule C is only apposite to employers who are not in the health industry?
PN376
MR HARRINGTON: No. No, it's not. So there's the joint – there's two streams, effectively.
PN377
DEPUTY PRESIDENT BOOTH: Yes.
PN378
MR HARRINGTON: So there's one for those who are in the health industry, and where they engage health professionals. Our understanding is that obviously schedule C is relevant to them. But for those engaging a health professional outside the industry there's occupational coverage. It is not the same weight for the support services employees. That's where we make the distinction.
PN379
DEPUTY PRESIDENT BOOTH: The difficulty I have with that submission is that there are very specific role descriptions, like 'orthotic technician,' and 'pathology collector' - - -
PN380
MR HARRINGTON: Is this in schedule C, sorry?
PN381
DEPUTY PRESIDENT BOOTH: I'm still in the support service stream, if you like,
PN382
MR HARRINGTON: B.1.8.
PN383
DEPUTY PRESIDENT BOOTH: So for example, support services employee level 4; dental technician. So I'm just having difficulty reconciling the existence of those as indicative with your submission about the inappropriateness of schedule C as being conceived of as indicative.
PN384
MR HARRINGTON: These are referred to as 'indicator roles,' I understand.
PN385
DEPUTY PRESIDENT BOOTH: Yes.
PN386
MR HARRINGTON: So if you go – I'm looking at, just as an example, B.1.1, you've got the general and administrative services; you've got food services; you've got technical and clinical.
PN387
DEPUTY PRESIDENT BOOTH: Yes.
PN388
MR HARRINGTON: And then you've got a list of occupations there. So these are indicative. Our understanding is that the coverage there isn't – and you know, I should probably get instructions and this is just me expressing my opinion at this stage, this list here is just indicative - - -
PN389
DEPUTY PRESIDENT BOOTH: Yes.
PN390
MR HARRINGTON: Based on the broader descriptor which is at B.1.1.
PN391
DEPUTY PRESIDENT BOOTH: And why wouldn't it be appropriate prospectively for that to be the way in which schedule C is seen, as well, in respect of the health professional?
PN392
MR HARRINGTON: Simply by virtue of the fact that those engaging health professionals wouldn't necessarily be in the industry and shouldn't have the level of knowledge, or shouldn't be expected to have the same level of knowledge of who would be covered or who would be a health professional.
PN393
DEPUTY PRESIDENT BOOTH: So understandably from your point of view, being AiGroup and not necessarily having – although you may well do now, have health employers as members, but being a generalist employer organisation you're mainly concerned about the way in which employers in other industries who, for example, a mine, a mine site that employs perhaps an exercise physiologist, you're concerned about them having the clarity to know which award to apply to that person they've employed?
PN394
MR HARRINGTON: That's one of our concerns. It's one of our chief concerns but it's not our only concern. So basically even if you are engaged in the health industry our view would be that the list in schedule C is still far to woolly to be properly understood if it's considered to be indicative. And I appreciate that I've made this distinction based on who is in the industry and who is out of the industry but the support services employees are only covered by the award if they're in the industry. You have that, at least, to anchor them. You have that, at least to guide whether or not they've covered by the award.
PN395
A support services employee is not going to be covered by the award unless they're engaged by an employer who is in the health industry. You have that to anchor it. You don't have that necessarily if you are outside the industry.
PN396
DEPUTY PRESIDENT BOOTH: Okay, thank you.
PN397
MR HARRINGTON: Thank you. So if the list is indicative the boundaries of the class are too indistinct in our view for it to be considered specified for the purposes of 1432. Section 1437 prohibits extension of award coverage to classes of employee who because of the nature or seniority of their role have traditionally not been covered by awards or performed work that's not of a similar nature to work that has traditionally be regulated by such awards. There's no indication whether an indicative list would only extend coverage to occupations which were similar in the sense contemplated by section 1437 or the award modernisation request. And I'll explain what I mean.
PN398
An indicative list may not only draw in occupations which require similar work, they may draw in occupations which are similar in a different sense. For example, similarity by virtue of which part of the body they professional specialises in, or on which service or similar clientele occupy the same medical facilities. AiGroup considers the nebulous extension of the coverage of the Health Professionals & Support Services Award by an indicative list to be a strong indication that it would be inappropriate to vary the list to render it indicative.
PN399
So we accept that special provisions in the Fair Work Act at section 163 limit the Commission's capacity to vary a Modern Award causing employees to no longer be covered. However we consider that where a coverage provision is in conflict with 1432, or 1437, a variation to correct this conflict wouldn't necessary enliven 163. To read 163 in the manner which allows for the retention of such a clause would invite the Commission to find an internal inconsistency in the legislation. We do not consider such a finding should be made. So if the Commission on the other hand agrees with AiGroup and the other parties to these proceedings bar the HSU and ABI, that the list in schedule C is exhaustive, we nevertheless submit that it should remain so. We rely on our submissions on this point. But we might just raise an additional argument.
PN400
We see some use in responding further to the argument which the HSU has put in its 15 November submission – to give you some time to find it but it's paragraph 22 – that coverage by reference to a general descriptor is common and therefore should not persuade the Commission against the appropriateness of an indicative list of occupations. To answer this point it's necessary to run through how classification works under the HPSS award. So as I was stating earlier and obviously you raised this point, there are two classification streams provided for in 4.1. The first in industry based. Employees in the health industry are covered and the employees in the classifications in clause 40 and 15. Clause 40 contains minimum wages for support services employees. 15 provides the same for health professionals.
PN401
The second stream is occupation based and provides for the coverage of any employer engaging a health professional employee. To be caught by this stream an employee need not be in the health industry. The various classification levels are described in schedule B. So B.2, levels of health professional are distinguished by extremely broad criteria. For example, under level 2, 'exercise independent judgment on routine matters.' The HSU are not incorrect that such broad descriptors are common amongst Modern Awards but in the absence of a clear definition of 'health professional employee' they provide insufficient indication as to what a health professional employee is.
PN402
If the list in schedule C is indicative, employees not in the health industry cannot rely on the list to provide certainty as to whether they are covered. Some nebulous test of similarity would need to be applied. However such tests may be applied in different ways. Is an occupation similar by virtue of similar patterns of work to be covered? Is treatment of similar parts of the body sufficient? An employer should not be placed in the unenviable position of having to determine coverage by reference to a list which is expressly stated to be incomplete. We submit that the HSU's argument that broad classification descriptors are not unusual to be an inadequate response to this problem. We ask the Commission to find that an indicative list of health professionals in schedule C would not be consistent with the Modern Award's objective. If it please the Commission those are out submissions, unless there are any questions.
PN403
VICE PRESIDENT CATANZARITI: No, thank you.
PN404
MR HARRINGTON: Thank you.
PN405
VICE PRESIDENT CATANZARITI: Ms Murphy, do you want to go last, and let Ms Thomson in to finish the employee client? It could be better.
PN406
MS MURPHY: Yes, please, sir.
PN407
VICE PRESIDENT CATANZARITI: Yes. Ms Thomson, we'll hear your submissions next.
PN408
MS THOMSON: We seek to rely on our written submissions, Your Honour, unless there's anything else you require from us.
PN409
VICE PRESIDENT CATANZARITI: Thank you. Okay, Ms Murphy?
PN410
MS MURPHY: Thank you, sir. I'd like to say by way of preamble to provide a summary of where the dental hygienists see - including after the submissions made today where we are at odds with the Health Services Union and the other parties, and where we are together. It seems to the dental hygienists that the dental hygienist represents a little bit over 1500 dental hygienists and oral health therapists in Australia. The vast majority of those are employees. The health – and all of the submissions and all of the work we've done on this matter has been in relationship to advancing and preserving their interests.
PN411
The DHAA understands DHHA understands that the Health Services Union has the same view with regard to their members and potential members of advancing the interests of employees and the health sector and preserving their interest in the health sector. Where we disagree with, and I have made this point in my submissions but I think it's worth repeating, the Health Services Union does not under its rules to represent dental hygienists and oral therapists. It does, however – I notice my colleague is shaking her head so I'm happy to be disproved on that, that they have the right to represent dental therapists.
PN412
Where we differ is that the Health Services Union believes that all health professionals including dental hygienists and oral health therapists, and we'll go to this in the next stage, that their interests are preserved and advanced by award coverage. I have no reason to think otherwise in terms of having perused their submissions. The Dental Hygienists Association, and we've presented evidence on this, does not agree with that. And our disagreement with that in terms of the fact that award coverage, in particular, in relationship to this award, so specific to this award, disadvantages dental hygienists and oral health therapists, and on that point, which is as the Full Bench is, of course, aware, covered under the consolidated request at point 2C, we submit that that change, that situation that the creation of Modern Awards is not intended to disadvantage employees.
PN413
Many things have changed since 2008/2009, but that has not for dental hygienists and oral health therapists. So what has that to do with whether the list should be exhaustive or indicative? If you believe that there is no possible disadvantage to award coverage, as the Health Services Union believes as I understand it, then of course you would think that the list should be indicative because there's no reason for it not to be. If the default position because this is what you believe, is that award coverage preserves, protects, and advances the best interests of health professionals then it would make sense for the list to be indicative because if somebody is award free that's considered to be a negative thing.
PN414
So that is the fundamental issue that the Dental Hygienists Association and the Health Services Union are at odds with. The DHHA have no reason to particularly disagree with Mr Leszczynski's evidence in relation to changing the nomenclature in the health sector. The DHHA have expertise with regard to the dental sector. They don't have general expertise with regard to the health sector in general. So in terms of changing the nomenclature we have said at arbitration and we said in previous submissions that award variation applications are available in such situations. But if the Bench is of a mind to think that that is too arduous a process as the Health Services Union has said again today, then and if the list is to be indicative, we would still be asking the Full Bench to have an exclusionary clause. And this is still to be determined but our view on that exclusionary clause would be that dental hygienists and oral health therapists are excluded.
PN415
The reason for that is this issue of disadvantage. And there is another issue. That is the issue of clarity and certainty. When those two issues are combined, needing to be certain that you are not disadvantaged by award coverage, and I accept that that's an unusual circumstance but it is the circumstance that applies to dental hygienists and not oral health therapists, as we will go to with great more evidence in the next session, then it becomes necessary to have that exclusion clause. The DHHA is facing a situation, as we are all aware here, where we had, or have, a 2009 Full Bench decision of the Australian Industrial Relations Commission and for – I know we're all very aware of that decision but I did hand up copies of that to rely on that for evidence. It is [2009] AIRCFB 948.
PN416
The DHHA, even though this issue of award coverage had been around since 1993, and discussions with the Health Services Union had been occurring particularly in Victoria with regard to this issue since then, the DHHA thought in 2009 when it put in an application to have the award varied, that the matter was then concluded. But since then evidently the matter is not concluded. By saying that I understand that we are now looking at whether the list should be – we're forward looking, we're looking at the future. However that issue of certainty is still there. Not even having a Full Bench decision gets one or two occupations the certainty of whether they are covered by the award or not.
PN417
My colleagues at the HSU would say that doesn't matter because they should be covered by an award. They disagree with us and we concede that. They disagree and say, dental hygienists and oral health therapists would be better off if they've covered under an award and we understand that position. But the members of DHHA and this is who we're here to represent, do not believe that. And that's why we put in petition evidence which was attached to Dr Melany Hayes' submission which is, sorry, DHHA – I think it's 5, with respect. I didn't quite – it's one of the submissions from the petition.
PN418
VICE PRESIDENT CATANZARITI: So your point is, in the light of the 2009 decision nothing has changed in that the list was indicative to put dental hygienists back in?
PN419
MS MURPHY: Yes, nothing has changed in relation to the dental hygienists and oral health therapists. The issue of oral health therapists which we need to go into again in light of the new evidence that came up since 2017, there is some further evidence and debate because my colleagues at Health Services Union are contending that that occupation wasn't properly recognised in 2009 at the time the Modern Award was made, and in particular when the decision was made by the Full Bench to take dental hygienists out of the award.
PN420
My point, sir, is that that certainty, that certainty that dental hygienists and oral health therapists should have a right to rely upon as to whether their employer conditions are covered by an award or not. When it's of grave concern to them, and it's always been of grave concern to them, they need that certainty. So if the Bench is inclined to say that the list in schedule C is indicative, and certainly you made those comments in your decision in 2018 after the arbitration in 2017, then the DHHA's view on that is, we would accept that but we need and we request an exclusion clause for the two occupations of interest to us, to give those employees the certainty and clarity they need. Because without that certainty and clarity they consider that they are disadvantaged and that's why it's a serious issue.
PN421
Beyond the issues of nomenclature that the Health Services Union are talking about, which I think as my colleague acceded to in any event, do not apply to those two occupations in any event, because they are ARPRA registered so their titles do not change, and won't change, haven't changed since 2009 and are very unlikely to change in the next ten years. My understanding with regard to an exclusionary clause - - -
PN422
VICE PRESIDENT CATANZARITI: So just as a matter of interest, in two thousand – not that we're going to determine it today obviously, but in 2009 when this exclusion was made, what happened to the dental hygienists? They became where there was no award for them to go, at all, is that - - -
PN423
MS MURPHY: That's correct, sir.
PN424
VICE PRESIDENT CATANZARITI: So they are currently award free?
PN425
MS MURPHY: That's correct, sir.
PN426
VICE PRESIDENT CATANZARITI: Okay.
PN427
MS MURPHY: And, sir, the further comment is, oral health – the submission that was put in by the DHHA in 2009, did not ask for oral health therapists to be excluded from the award because they weren't on the list.
PN428
VICE PRESIDENT CATANZARITI: So that issue has not been addressed, at all?
PN429
MS MURPHY: That's right.
PN430
VICE PRESIDENT CATANZARITI: Yes.
PN431
MS MURPHY: So that issue – and I know that to be a fact because I wrote the submission with my colleagues, Ms Sue Wildenhoven(?) and Ms Lia Littlejohn from the DHHA. And that submission that went to the Full Bench in 2009 specifically addressed the award modernisation request in the way that I just indicated before. And presumably the Full Bench considered it, in light of the award modernisation.
PN432
VICE PRESIDENT CATANZARITI: But there was no contradictor, was there, in 2009?
PN433
MS MURPHY: No, there wasn't. What actually happened, sir, in 2009 is that we put the submissions in, we waited for the contradictor, and in fact we expected two. At that time we were expecting the ADA and the Health Services Union to potentially object. It didn't occur. The Full Bench rang me and asked me to speak to it, so the decision was made on the papers, which I did, and then the decision was issued. So – and I have, I don't know why – my understanding and discussions since is that the application was published on a different website to the general website that was being used for the award modernisation process at that time. That certainly had nothing to do with the DHHA. That would be the AMOD team that made that decision as to where they were going to publish the document.
PN434
VICE PRESIDENT CATANZARITI: Well, of course, even if the list wasn't said to be exhausted on any view, under the amendments to the Act there would be nothing stopping the HSU seeking to vary the award and have a full blown argument in relation to whether this group is in or out?
PN435
MS MURPHY: That's correct, sir. We acknowledge that and accept it. And in fact we think that's the way it should be with regard to any of the occupations including dentists.
PN436
VICE PRESIDENT CATANZARITI: Yes. Sorry, we're still – no, don't get up - have you finished, Ms Murphy?
PN437
MS MURPHY: No, I'm not, sir.
PN438
VICE PRESIDENT CATANZARITI: No, well, let Ms Murphy finish.
PN439
MR MILES: I was only going to withdraw, that was all.
PN440
VICE PRESIDENT CATANZARITI: You'll withdraw, that's okay.
PN441
MR MILES: Sorry, I wasn't wanting to make a submission.
PN442
VICE PRESIDENT CATANZARITI: I wasn't sure if you wanted to make a submission.
PN443
MR MILES: I was merely saying that I've got instructions. My client is content to be heard on – once the Bench has decided whether it's indicative or exhaustive my client's content to be then heard as to how it – to ensure that it still excludes dentists and dental prosthetists, and we're content to withdraw on that basis.
PN444
VICE PRESIDENT CATANZARITI: Thank you. Yes, Ms Murphy.
PN445
MS MURPHY: So, the single point of commonality of all the parties including the Health Services Union as I understand it at this point, including having listened to what my colleague had to say today, is that doctors are not covered by the Health Professionals Award currently and should not be covered by the award. Now that point, and I'm happy to be contradicted - - -
PN446
VICE PRESIDENT CATANZARITI: It was doctors and nurses, I think it covered.
PN447
MS MURPHY: Yes, doctors and nurses today, but doctors was only conceded, from my understanding, on 3 September 2019 I an email that Ms Leibhaber wrote to your chambers. And she made reference to – sorry, sir, and I handed this up as evidence – so in this email which is also copied to the AMA, to Andrew Lewis of the AMA, the Health Services Union says that the award was never intended to cover doctors and they do not seek to extend coverage under the APSS award to doctors in these proceedings. And as you just said, sir, of course it's open to them to change their mind about that any time. However my point, sir, in terms of making the list indicative is, who is to know, other than the parties to these proceedings, in four or five years' time that doctors are not intended to be covered by this award? That's why if you're of a mind to make the list indicative we need an exclusory clause.
PN448
VICE PRESIDENT CATANZARITI: Well - - -
PN449
MS MURPHY: Yes, sir?
PN450
VICE PRESIDENT CATANZARITI: But isn't that – in the actual decision, 23 January, twenty nine(sic) in relation to doctors and nurses, they're actually out. But there are also awards that cover salaried doctors and nurses. So that's how you'd find out.
PN451
MS MURPHY: Some doctors remain award free, sir, and nurses have their own award, and in relationship to that decision, that decision was in relationship to the exposure draft. And in that exposure draft, sir, dental hygienists appeared in it. So my point, sir, is it's difficult. It's – for practitioners we would go through, down the rabbit hole and look at it, as we all have in preparation for these proceedings which have gone on for nearly five years now, so it is relatively complex. We would find the answer and we would probably find the correct answer, but for the people utilising these awards, in particular, our interests are dental hygienists and oral health therapists, but presumably employee doctors, how do they know for sure whether they are covered or not? And again this issue becomes important if employees feel they are disadvantaged by award coverage, which some do, in particular, dental hygienists and oral health therapists as per our witness evidence that we've put forward, and the petition that we put forward in the 2017 arbitral proceedings.
PN452
So therefore we say in relationship to the list being indicative, and just a point that I wanted to make that the Health Services Union state at point 17(b) of their submission of 15 November 2019 that clarification that the list is not exhaustive will focus the minds of employers and employees back on the term, 'health professional employee,' a phrase which has sufficient clarity to be understood by them. Well, sir, the DHHA would say, well, evidently not because that's why we're here in these proceedings. It evidently isn't clear. And so again if the best interests of the very big sector is served by having an indicative list of titles, because the titles are changing so much, we say again that it's not clear because a dental hygienist is a health professional employee. An oral health therapists is a health professional employee. And indeed, sir, I would say a doctor is a health professional employee.
PN453
So people who are not industrial relations practitioners, no matter how sharply they focus their mind, will not understand who is covered by this award and who is not, unless there is an exclusion clause regardless of whether the list is considered to be exhaustive or indicative. We submitted evidence in our submission of 14 October 2019 which related to a qualitative research report on citizen co-design with small business owners. It was prepared, it was sourced and prepared by the Fair Work Commission. And in that submission, in that qualitative work it was very clear that employers want and need simplicity and certainty from awards. If the Full Bench finds today that that list should not be exhaustive, we accept that but that certainty and clarity it seems to us is required from an exclusionary list. It has to come from somewhere.
PN454
With regard to the position of the Health Services Union, as I said, the Health Services Union position is that universal coverage is in the best interests of health professionals. And there's been no change in this position as I understand it since their submissions of 31 October 2008, to the Australian Industrial Relations Commission in AM2008/13. And I've handed that up too which is this document, sir.
PN455
VICE PRESIDENT CATANZARITI: Yes, we have that.
PN456
MS MURPHY: In this document, and you know, there's a value in consistency but a big part of their argument is that the health industry has changed dramatically since 2008 and 2009, but at, is it point 35(c), and I apologise for my hand notation there but at clause 35(c) the Health Services Union was opposing the submissions of the Australian Nursing Federation because they said that nursing was an occupation or profession, and I think there's a mistake there, but occupation or profession which is – they were saying that its not distinct from other health workers. That's a flawed notion. And across the bulk of work places that would be covered by the Modern Award. Nurses operate along with other health professionals and support staff in multi-disciplinary teams.
PN457
It is inappropriate to regard the terms and conditions of employment of these classifications of workers within these teams in isolation from their context. And over the page at point (d), there is no substantial distinction in terms and conditions of employment other than the wage rates between nurses and other health professionals such as allied health workers. And for those matters of difference there is no reason why such differences cannot be accommodated by appropriate schedules of classifications and by dual provisions in relation to key entitlements. I would say that's a pretty good summary of the exact same thing that Ms Doust has said today with regard to why the list should be indicative, not exhaustive. The DHHA would say, well, the Full Bench thought otherwise with regard to nurses back in 2008 so some things have changed. The presumption of being covered by an award or covered by that particular award is not necessarily correct.
PN458
So some things have changed, and some surprising things have changed in that presumably in 2008 it wasn't expected that the nurses would have their own award. The fact that it has changed that way, which is unusual, we have a complicated mix of occupational and industry awards in the one sector, again goes to the need for certainty and clarity which DHHA submits is best served by an exclusionary clause, whether you make the decision that the list is indicative or exhaustive, particularly as DHHA continues to say that our very strong view is that award coverage is of disadvantage to dental hygienists and oral health therapists. And we've also submitted evidence with regard to another industry which is the pharmacist, and in our – sorry, we're just trying to get the number, sir, I beg your pardon – DHAA11 and 12 which went to the views that award coverage disadvantaged pharmacists significantly.
PN459
Now whether that's correct or not, that's a view. But the directions today were to look at whether the list should be indicative or exhaustive, whether it should be, looking forward. And at the directions hearing we had, we talked about that in terms of evidence needing to be predictive, needing to contain some subjective views. Whether the views of the pharmacists are correct or not, or whether they can be connected to the likely future of dental hygienists and oral health therapists if they end up somehow covered by this award, it's impossible say. What you can though glean as a matter of evidence is that dental hygienists, oral health therapists and the pharmacists that we produced evidence from think that award coverage is disadvantageous. If they think that, therefore it's necessary to have specific exclusion clauses so that people know definitively whether they're covered by the award or not, and can seek advice easily from entities such as the Fair Work Ombudsman and their employer associations and be given correct advice on that basis.
PN460
So I'm now going to make a couple of comments about the Health Services Union evidence, bearing in mind that we didn't seek to cross-examine their witnesses today, and the comments that I'm going to make are only in relationship to the proceedings today, which is whether the list should be exhaustive or indicative. Ms Kelly's, Mr Rosemary Kelly's witness statement, and I think we know what the content of it was, Ms Kelly's witness statement goes to the notion that a form F17 being completed by an employer indicates award coverage. Now I'll leave that in the hands of the Full Bench to decide whether that's true or not, or in any event, to attribute appropriate weight to that view of Ms Kelly. But what is evident again in that argument of Ms Kelly which we do agree with, is this notion of advantage. The Health Services Union are arguing that if employees don't know for sure that they're covered by an award or not, and they thin, that the best way of achieving that is by an indicative list because they believe that everybody should be covered by an award, what Ms Kelly's statement does indicate in our view, is that the issue is important in terms of disadvantaging or not disadvantaging employees. So we agree with that. We just come up with a different conclusion which is that an exclusionary list is necessary because of that issue of advantage versus disadvantage.
PN461
With regard to Mr Leszczynski we will address his evidence about sonographers separately, sir, because that really goes to – he attempts to make a generalisation from sonographers to dental hygienists and oral health therapists and I think that that's outside of the scope of today's matter. Is that - - -
PN462
VICE PRESIDENT CATANZARITI: Yes, we're only dealing with the indicative - - -
PN463
MS MURPHY: Okay. So in summary, sir, we would like you to consider the fact that it is a genuine view that there is a disadvantage to award coverage and that relates to the award modernisation request. In relationship to that it's necessary for certainty and clarity, which is also part of the requirement of Modern Awards to have an exclusionary clause. The DHHA's preference if we put in all of our submissions which we rely on – so would you like me to list all the submissions, is that - - -
PN464
VICE PRESIDENT CATANZARITI: No, no, they're all in, so - - -
PN465
MS MURPHY: Yes, they're all in. And the witness evidence that we referred to earlier, our witness statements, the witness statements from the previous arbitral proceedings, which are all listed - our view is that it would be preferable for the list to be exhaustive. We say that it is exhaustive currently. However in terms of the comments made from the Bench in relationship to that and our acknowledgement that the titles in the health sector are changing, that doesn't impact upon dental hygienists and oral health therapists, therefore if you are of a view to say that the titles are that the list should be indicative, our submission, sir, is that there needs to be an exclusion clause. Unless you have any questions from the Bench - - -
PN466
VICE PRESIDENT CATANZARITI: No. Thank you.
PN467
MS MURPHY: Thank you, sir.
PN468
VICE PRESIDENT CATANZARITI: Ms Doust?
PN469
MS DOUST: Briefly, your Honours and Commissioner, might I hand up copies of the eligibility rule for the Health Services Union. Ms Murphy has contended that the HSU doesn't have coverage for dental hygienists. HSU's coverage goes across a number of different areas. If we look at rule 3, true it is that the phrase, 'dental hygienist,' does not appear in the eligibility rule but one can see that there is broad and general coverage under rule 3A in connection with the carrying on of hospitals, benevolent homes, and so on, so a range of health related institutions. There is an exception from that broad coverage at (i) in the state of Western Australia for dental therapists. And there is also an exception in (c) for the state of Victoria for dentists employed by a public hospital, and dental therapists employed by the school dental service. Obviously there's a need for that exception when otherwise persons of a dental persuasion were employed in connection with one of those institutions.
PN470
Just continuing on, looking at (aa)(i)(ii) and (iii), there's coverage in respect of community health centres in Victoria, Tasmania, the ACT, and going over the page to (a)(b), there's coverage in connection with aboriginal health services, so the connection is not in respect of specific roles but in respect of particular types of employers, so obviously persons in that role, the role of dental hygienist, employed in any of those sorts of institutions would be covered by the rule. Going down to (b) there's coverage in Victoria, Queensland, Tasmania, and the Australian Capital Territory in respect of, can I say the disability institutions and so on. Over the page at (c) in the state of Victoria, child care services, day care centres, residential centres and so on; (d), this is at page 11, in the state of Tasmania, 'in or in connection with doctors and/or dental surgeries, clinics and practices,' so no argument at all that we would pick up dental hygienists employed in the state of Tasmania.
PN471
Then (e), Victoria, Queensland, Tasmania, the Australian Capital Territory, provision of medical, paramedical and/or nursing care for aged persons, in day care centres, and so on. If one goes over, there's general coverage in the health industry in Western Australia, that's at (g). There's generalised coverage under capital B over at page 13 in the state of New South Wales in connection with hospitals, et cetera, and then tertiary institutions and so on. So there's a range of areas in which the HSU has an interest in employees employed in health roles and those areas of coverage would necessarily include dental hygienists.
PN472
Ms Murphy handed up a submission from 2008 in the award modernisation process and referred to our submission that nurses should be treated along with other health professionals and covered by the same Modern Award because they work in multi discipline routines and so on. Unfortunately that was a submission that was not ultimately accepted by the Full Bench so we're left now to deal with the reality that nurses have a separate occupational award. It is not clear to me how any of what was submitted in 2008 before that decision makes our position today untenable or unacceptable, or inconsistent in some way. But there's obviously a significant intervening event in respect of which we really are left to deal with.
PN473
Can I go back to what Ms Murphy has said about, first of all, the attitude of some of the pharmacists who have given evidence in this matter, and obviously some of the dental hygienists who are members of her organisations. And it was put I think a number of times that this Bench should proceed on the basis that there was definitely a view amongst those persons, be it correct or not, that award coverage was a disadvantage and that the mere existence of that view somehow gave it some legitimacy or meant that this Bench was compelled to create exceptions in award coverage as a consequence. That would not, we submit, be a view that would be adopted by this Full Bench.
PN474
The Full Bench is not bound to proceed by reference to the subjective feelings or desires of any particular party but bound obviously to apply the principles and legislation that's in the Fair Work Act. So we say that those things ultimately count for very little when the Commission is considering how the Modern Award should apply. My friend kept referring to the example of the doctor and how anyone would know that doctors had a different award. I say this. There's not too many corner shop owners hiring doctors to perform medical services for them. The task of employing doctors is one that necessarily involves a great deal of organisation of infrastructure and we would respectfully submit that those sorts of persons are not nave operators who would have no idea that there is an award that applies to salaried employed doctors.
PN475
So that is a submission we say the Bench wouldn't give much credence. But if there is some lack of certainty from the award as it currently is expressed and drafted, those are not matters that tell against having schedule C as an indicative list. Those are matters that can be dealt with by making it clear in that list that this is an indicative and not a complete list of occupations, or by some work on the definition of 'health professional. There's a number of different ways in which the matter might be addressed. But we say that one can draft this award in a way that makes it clear both that the list in schedule C is not exhaustive and which can be understood by an employer with a reasonable amount of common sense in the industry, employing someone who in this instance is a professional person. So we're talking about employers who are looking at engaging in their organisation a physio therapist, a health promotion officer, someone of that sort of level. Again, I'd say you are not dealing with an unsophisticated or nave operator in this area, that the Bench can happily assume that there's a reasonable level of common sense that will be applied in the process of discerning what's the appropriate award coverage for the employee.
PN476
Now my friend, Mr Harrington's submissions about the risks and dangers of having schedule C operate as an indicative list were made all completely in the absence of any evidence about real life examples in industry, whether it be within the health industry or outside the health industry, to illustrate the points that were being made. So they're being made, we say, at a high level of abstraction and the Bench can readily compare those abstract examples with the real life examples presented in the unchallenged Mr Leszczynski and Dr Kelly. And we say the Bench would prefer that evidence. What was telling, I submit, in the submissions of the AiG was that when the example of IVF counsellor was dealt with my friend said it is not necessarily apparent that these would not necessarily be covered by the award. So that was the submission that the AiG make about that role.
PN477
Our view is that if you come to this Commission and say that a particular approach to the drafting of the award should be adopted - - -
PN478
VICE PRESIDENT CATANZARITI: Didn't he say his view is, schedule C, the word, 'counsellor,' includes the - - -
PN479
MR HARRINGTON: Sorry, Commissioner, our view is not necessarily that the word, 'counsellor' includes just merely that. It's not immediately apparent whether it does or doesn't.
PN480
VICE PRESIDENT CATANZARITI: Yes. So that's the best argument, yes.
PN481
MS DOUST: Well, we say that if the list is indicative then it would mean that other types of counsellor would immediately fall within the scope of the schedule, and that's the appropriate way in which an award should operate, because there is really no rhyme or reason why a role such as that shouldn't be covered by the award, consistently with counsellors and genetic counsellors being covered under the award. So those are the submissions in reply, unless there's anything arising.
PN482
DEPUTY PRESIDENT BOOTH: I do have a question, Ms Doust.
PN483
MS DOUST: Yes.
PN484
DEPUTY PRESIDENT BOOTH: Would you comment, notwithstanding Mr Miles' withdrawal, I think from an abundance of caution - - -
PN485
MS DOUST: Yes.
PN486
VICE PRESIDENT CATANZARITI: As we're preparing our decision we need to hear from you on the implications of section 163 and whether we are in some way acting at odds with the Act if we made a decision.
PN487
MS DOUST: Yes. What I say about that is this. If the Bench's view is that the award, schedule C is currently indicative, then proceeding to make it in a prospective sense, exhaustive, contravenes 163. Because if it's indictive then it clearly has the scope to cover beyond the people in that list, and determining hence for that list will be exhaustive and that only those persons will be covered, will then cut out the people who were caught within the list such as, we would say, your health promotion officer, your clinical coder, and those sorts of persons. It would remove them from coverage, so it would have that effect. So we say that question arises if the Bench proceeds in that way, finds that it's currently indicative, and moves to make the award exhaustive.
PN488
If the Bench takes the view that the list is currently exhaustive we say there's no barrier in 163 in making the list prospectively indicative and that there's been a reference to, I think, 143(7), you know, picking up employees who are of such seniority or something like that, the history of award coverage, that this is not what a Modern Award should do. Again, there's been no example of any health professional employee of that type, save for the dentists and I'll deal with the dentist separately if I might, because in my submission that really falls into a different category. But I say that there's no barrier in 163 if the Bench thought the list was currently exhaustive in proceeding to say, henceforth it shall be indicative.
PN489
Now it seems to me that the argument in respect of the dentists is one which doesn't really arise in respect of schedule C. Really the argument is that the true intention of the Bench at the time of drafting the award was that they weren't contemplated under this award. And that seem to me to be a different question, and that's something that could appropriately be dealt with by way of an exception if that was what the Bench ultimately determined. So that's a different question. That's a question really of award interpretation, having regard to the comments of the Bench at the time the awards were published. So that's how I see those questions interacting together.
PN490
DEPUTY PRESIDENT BOOTH: Do you think you could just extend the analysis so it's comprehensive in relation the dental hygienists and the oral health therapists, because we segmented the two matters that were alive in our decision of December 2018 - - -
PN491
MS DOUST: Yes.
PN492
DEPUTY PRESIDENT BOOTH: At the request of, and because we were persuaded by the submissions of the Dental Hygienists Association.
PN493
MS DOUST: Yes.
PN494
DEPUTY PRESIDENT BOOTH: And I just want to be abundantly cautious that by so doing we haven't effectively snookered ourselves in actually dealing with those matters.
PN495
MS DOUST: From dealing with the dental hygienists.
PN496
DEPUTY PRESIDENT BOOTH: Correct.
PN497
MS DOUST: One way the Bench might proceed is to defer determination of the issue of whether or not the list would be indicative going forward, until such time as it had heard the arguments about that group. Perhaps the only way the Bench can deal with it is either by saying that leave is reserved in respect of those particular occupations consequent upon the way that the matter has evolved.
PN498
DEPUTY PRESIDENT BOOTH: I mean, an award is not made until an order is issued.
PN499
MS DOUST: Yes.
PN500
DEPUTY PRESIDENT BOOTH: So I think Ms Murphy's concern was that her organisation wasn't put to the trouble of making extensive submissions and providing evidence in relation to dental hygienists and oral therapists if we were going to make a decision that the schedule was exhaustive.
PN501
MS DOUST: Yes. Yes.
PN502
DEPUTY PRESIDENT BOOTH: Because that would end the matter if we make the decision, that is, confirm our provisional view that the schedule ought to be indicative but we don't issue an order to that effect.
PN503
MS DOUST: Yes.
PN504
DEPUTY PRESIDENT BOOTH: And it seems to me that the matter is still open and we could go forward and continue to consider the consequential matters that arise.
PN505
MS DOUST: Yes. No, I think we accept how your Honour's described that rather than the way that I put it previously, and we think that's correct.
PN506
DEPUTY PRESIDENT BOOTH: Thank you.
PN507
VICE PRESIDENT CATANZARITI: Yes, anything further?
PN508
MS DOUST: Nothing further, just unless there are any questions.
PN509
VICE PRESIDENT CATANZARITI: No, thank you.
PN510
MS DOUST: May it please the Commission.
PN511
VICE PRESIDENT CATANZARITI: All right, the decision is reserved and the Commission is adjourned.
ADJOURNED INDEFINITELY [2.02 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #HSU A WITNESS STATEMENT OF ALEX LESZCZYNSKI DATED 17/03/2017................................................................................................................................... PN62
EXHIBIT #HSU B TRANSCRIPT OF 11/12/2017 PN2014 TO 1337................ PN66
EXHIBIT #HSU C WITNESS STATEMENT OF ROSEMARY KELLY DATED 7/08/2019................................................................................................................................... PN68
EXHIBIT #HSU D WITNESS STATEMENT OF ALEX LESZCZYNSKI DATED 7/08/2019................................................................................................................................... PN70
EXHIBIT #1 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 23/05/2017 PN83
EXHIBIT #2 WITNESS STATEMENT OF DR NEIL HEWSON DATED 9/06/2017 PN85
EXHIBIT #3 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 12/12/2017 PN87
EXHIBIT #4 WITNESS STATEMENT OF EITHNE MARY IRVING DATED 14/10/2019 PN89
EXHIBIT #5 WITNESS STATEMENT OF JENINE ANNE BRADBURN DATED 14/10/2019................................................................................................................................... PN91
EXHIBIT #DHAA 1 WITNESS STATEMENT OF DR MELANIE HAYES DATED 13/03/2017................................................................................................................................. PN101
EXHIBIT #DHAA 2 WITNESS STATEMENT OF DR MELANIE HAYES DATED 09/06/17 (WITH MEMBER SURVEY ATTACHED)....................................................... PN103
EXHIBIT #DHAA 3 WITNESS STATEMENT OF DR CAROL TRAN DATED 9/6/2017 PN105
EXHIBIT #DHAA 4 WITNESS STATEMENT OF DR MELANIE HAYES DATED 12/12/2017................................................................................................................................. PN107
EXHIBIT #DHAA 5 WITNESS STATEMENT OF DR CAROL TRAN DATED 12/12/2017 PN109
EXHIBIT #DHAA 6 WITNESS STATEMENT OF KAY BALL, DATED 16/06/2019 PN111
EXHIBIT #DHAA 7 WITNESS STATEMENT OF ALISON TAYLOR DATED 19/06/2019 PN113
EXHIBIT #DHAA 8 WITNESS STATEMENT OF MS SUSAN MELROSE DATED 26/06/2019................................................................................................................................. PN115
EXHIBIT #DHAA 9 WITNESS STATEMENT OF CHRISTIANE ZERK DATED 24/06/2019................................................................................................................................. PN117
EXHIBIT #DHAA 10 WITNESS STATEMENT OF LYN CARMAN OF 30/07/2019 PN119
EXHIBIT #DHAA 11 WITNESS STATEMENT OF BENJAMIN MARCHANT DATED 16/06/2019............................................................................................................... PN121
EXHIBIT #DHAA 12 WITNESS STATEMENT OF SAMSON CHAN DATED 30/07/2019 PN123