Applications by the Health Services Union, Australian Nursing and Midwifery Federation (Victorian Branch) and the Victorian Hospitals' Industrial Association

[2020] FWC 5314

[2020] FWC 5314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.240 - Bargaining dispute

Applications by the Health Services Union, Australian Nursing and Midwifery Federation (Victorian Branch) and the Victorian Hospitals' Industrial Association
(B2020/278, B2020/299 and B2020/408)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 OCTOBER 2020

Application for Order requiring Production of Documents – application granted in part.

[1] On 20 May 2020, an application for the Fair Work Commission to deal with a bargaining dispute was filed by the Health Services Union (Branch Number 2 – Vic) (HSU). 1 This was followed by an application filed by the Victorian Hospitals’ Industrial Association (VHIA) on 29 May 2020 relating to the same bargaining2 and a further application filed on 30 July 2020 by the Australia Nursing and Midwifery Federation (Victorian Branch) (ANMF).3

[2] The various bargaining disputes relate to the issue of coverage that has arisen in negotiations for the renewal of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016–2020 (Nurses Agreement)and the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (Mental Health Agreement).

[3] On 30 July 2020, the parties entered into a deed containing a Settlement Agreement and Arbitration Agreement in which they have agreed to a consent arbitration before the Commission, pursuant to s.240(4) of the Fair Work Act 2009 (the Act), in order to resolve their dispute over coverage for the proposed replacement agreements for the Nurses Agreement (Replacement Nurses Agreement) and the Mental Health Agreement (Replacement Mental Health Agreement).

[4] The HSU disputes the definition of employee coverage proposed by the ANMF and VHIA for both the Replacement Nurses Agreement and the Replacement Mental Health Agreement. Annexure A and Annexure B of the Settlement Agreement and Arbitration Agreement set out the proposed definitions as follows:

Annexure A

Enrolled Nurse means a person registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 and includes a person:

(i) registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 with a standard condition “may practise only in the area of mothercraft nursing”; or

(ii) with an equivalent and role described in subclause 4.1(q)(i) above;

but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.

Public Mental Health Services means mental health services delivered on a service, department, unit or program level operated by an employer covered by the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (or its successor)

Registered Nurse means a person registered in Division 1 Registered Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009:

but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.

Annexure B

‘Employee’ under the current Mental Health Agreement be amended by adding:

“In this Agreement, ‘engaged solely or predominantly in the provision on Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.”

[5] The parties have agreed on two questions for the arbitration:

1) Is the proposed definition of coverage of the Replacement Nurses and Midwives Agreement appropriate having regard to the matters in paragraph 9 of the Settlement agreement and the Arbitration agreement?; and

2) Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Settlement agreement and the Arbitration agreement?

[6] The matters in paragraph 9 that the parties have agreed that the Commission is to have regard are:

(a) whether the employees proposed to be covered by each of the replacement agreements are fairly chosen within the meaning of “fairly chosen” as referred to in s.186(3A) of the Act;

(b) whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements;

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered in that replacement agreement;

(d) the existing coverage of the Nurses and Midwives Agreement and the Mental Health Agreement;

(e) in relation to each of the replacement agreements, the history of applicable industrial instruments;

(f) the desirability that the coverage of the respective replacement agreements be mutually exclusive; and

(g) any other matters the Commission deems relevant.

[7] On 21 August 2020, the President allocated the bargaining disputes to a Full Bench comprising myself, Deputy President Millhouse and Commissioner Bissett. While the Arbitration Agreement contemplated a timetable for the filing and service of materials and arbitration hearing, it also records that the parties shall comply with all directions, including timetabling directions, issued by the Commission. The HSU had filed and served its materials on 19 August 2020. Following a Mention before me on 3 September 2020, the following directions were made:

•  The ANMF and the VHIA were to file and serve their material by no later than 4:00pm on 23 September 2020;

•  The HSU was to file and serve any material in reply by 12:00pm on 19 October 2020.

[8] The arbitration hearing is listed over five sitting days, the first being scheduled for 5 November 2020.

[9] On 11 September 2020, the HSU filed an interlocutory application seeking an order for production of documents to the Commission by the Department of Health and Human Services (DHHS) in accordance with s.590(1) and s.590(2)(c) of the Act (Application).

[10] For present purposes, s.590 of the Act provides:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

...

(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWC.

…”

[11] The Application was opposed by both the DHHS and the ANMF. I issued directions for the filing and service of material in relation to the Application and heard the parties and the DHHS in relation to it on 25 September 2020. The DHHS filed a statutory declaration of Ms Allison Sidebotham (Director Industrial Relations – Health) in opposing the Application. Having heard argument from the parties and the objection of the DHHS, I allowed Ms Sidebotham to be cross-examined by the HSU.

[12] Through the Application, the HSU seeks:

1) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of the HSU in which the establishment of AOD and Mental Health Hubs was discussed.

2) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of the ANMF in which the establishment of AOD and Mental Health Hubs was discussed.

3) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of the VHIA in which the establishment of AOD and Mental Health Hubs was discussed.

4) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of VHIA in which the DHHS Guidelines for the establishment of AOD and Mental Health Hubs was discussed.

5) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of ANMF in which the DHHS Guidelines for the establishment of AOD and Mental Health Hubs was discussed.

6) Copies of all diary entries or other records of meetings between officers, employees or representatives of DHHS and officials, officers of other representatives of HSU in which the DHHS Guidelines for the establishment of AOD and Mental Health Hubs was discussed.

7) Copies of minutes or other records of each meeting referred to in items 1-6 above.

8) Copies of all correspondence or other communications relating to the establishment of AOD and Mental Health Hubs, between officers, employees or representatives of DHHS and:

a. officials, officers of other representatives of ANMF;

b. officials, officers of other representatives of VHIA; and/or

c. officials, officers of other representatives of HSU.

9) Copies of all correspondence or other communications relating to the DHHS Guidelines for the establishment of AOD and Mental Health Hubs, between officers, employees or representatives of DHHS and:

a. officials, officers of other representatives of ANMF.

b. officials, officers of other representatives of VHIA; and/or

c. officials, officers of other representatives of HSU.

10) Copies of all correspondence or other communications relating to the establishment of AOD and Mental Health Hubs, between officers, employees or representatives of DHHS and employees or other representatives of Monash Health, Peninsula Health, Western Health, Barwon Health, St Vincent’s Hospital or Melbourne Health.

11) Copies of all correspondence or other communications relating to the DHHS Guidelines for the establishment of AOD and Mental Health Hubs, between officers, employees or representatives of DHHS and employees or other representatives of Monash Health, Peninsula Health, Western Health, Barwon Health, St Vincent’s Hospital or Melbourne Health.

[13] Noting that what was being sought are records of meeting and correspondence relating to the establishment of Emergency Department Mental Health and Alcohol and Other Drugs Hubs (ED Hubs) and the DHHS Guidelines for Emergency Department Mental Health and Alcohol and Other Drug Hubs (Guidelines) in respect of the establishment of these ED Hubs, the DHHS provided the following background context in its submissions opposing the interlocutory application:

•  The documents sought relate to a DHHS initiative to enhance Emergency Department (ED) responses and treatment for people that present to ED units with mental health, alcohol and/or drug related issues, either in isolation, in combination or as part of another emergency care presentation.

•  Funding for the program has been allocated to Monash Health, Peninsula Health, Western Health, Barwon Health, St Vincent’s Hospital and Royal Melbourne Hospital and provides for approximately 150-200 nursing staff to be employed across the ED hubs.

•  DHHS circulated the Guidelines for the establishment of the ED Hubs, initially in July 2019 and then finally in October 2019.

•  The Guidelines issued in October 2019 reflect the service delivery model of the ED Hubs, which the Department intends to fund.

[14] The DHHS opposes the interlocutory application, maintaining it is oppressive having regard to the breadth of the categories of documents sought and submitting it would prejudice the interests of the VHIA in the arbitration and falls outside the terms of the Arbitration Agreement.

[15] As to the oppressive nature of the interlocutory application, the DHHS relies on the abovementioned statutory declaration from Ms Sidebotham to submit there would be a significant number of documents that could potentially fall within the categories sought, thus requiring it to expend considerable time, effort and expense to locate, review and determine whether any document properly falls within them. Ms Sidebotham’s evidence covered the number of employees likely to have been in discussions and communications about the ED Hubs (on her evidence, approximately 25) and the requirement for them to undertake manual searches, the requirement to obtain IT assistance to conduct system based searches and the need for a legal review of the documents so as to cover commercial-in-confidence, privacy and legal professional privilege considerations and redactions.

[16] Ms Sidebotham put the number of hours required at hundreds, if not thousands. She outlined the time that had been required when she had conducted a preliminary search of her own email system and she expressed concern about the capacity of DHHS employees to be diverted into complying with an order for production, particularly IT department employees. In this respect Ms Sidebotham gave evidence about some of the demands being placed on DHHS employees due to the COVID-19 pandemic, such as mental health response initiatives tied to a recent $59 million funding announcement, prevention and responses in relation to infection control and PPE, mental health initiatives for homeless persons, providing IT support for 7000 employees required to work from home and preparing information management systems, 10,000 iPads and numerous laptops for incoming workers to work in contact tracing.

[17] The DHHS submitted the HSU has not submitted with sufficient precision how these documents are relevant to the issues in dispute in the arbitration. The DHHS submitted that despite the HSU describing the documents as “relevant to a number of critical issues which arise in the arbitration”, the HSU’s materials filed on 19 August 2020 made scant reference to the ED Hubs. The DHHS asserted a large number of the documents are likely to be irrelevant or commercially sensitive as they may comprise notes from meetings at which a large number of issues were discussed, documents which are outdated or which have been superseded, documents about tender processes and capital building works associated with the ED Hubs and private health information of individuals, if their circumstances were used as an example or case study during a meeting at which ED Hubs were discussed.

[18] Referring to the criteria in paragraph 9 pf the Settlement agreement and the Arbitration Agreement, the DHHS submitted that the HSU made reference to none of the criteria in its written submissions. DHHS asserted that in oral submissions, the HSU engaged only with 9(c) which refers to the interests of the employers and the employees proposed to be covered in the replacement agreements. As such, the DHHS submitted that there is no need for categories 1-9 of the documents sought because these deal with conversations with the HSU, ANMF and VHIA. As to categories 10 and 11, the DHHS submits that the HSU’s stated purposes for seeking these is to find out whether there was unhappiness with the ED Hubs or Guidelines but the documents in those categories do not deal with the employers’ attitudes, instead simply dealing with correspondence and communications relating to the establishment of the ED Hubs and the DHHS guidelines. The DHHS then submitted in support of its assertion that the interlocutory application was a fishing expedition. It says the Application was filed before the VHIA and ANMF material was filed and yet, once it was filed the HSU was moved to rely on just a single paragraph in the statement of Mr Gilbert (paragraph 74). The DHHS was critical of the HSU submission that categories 5 and 6 were central to its case, pointing to the way in which the programming had been agreed without there being a submission from the HSU that there was a requirement for documents to be produced prior to its material being due. The DHHS submitted that in these circumstances, any suggestion that there would be a denial of natural justice cannot be sustained. Further, it pointed to the HSU witness evidence of Mr Paul Healey, HSU Branch Secretary, which it says lacks any details of what was discussed in the meetings in 2019 regarding the implementation of the ED Hubs. Finally, the DHHS submitted that in the Arbitration Agreement, including the criteria in paragraph 9, there is no express reference to the ED Hubs beyond the reference in the example outlined in the coverage clause that says the ED Hubs will be under the Replacement Nurses Agreement.

[19] The DHHS submitted that having regard to the current pressures on its resources due to the current State of Emergency in Victoria, the cost and burden imposed on it (as a non-party to the arbitration) in searching for and producing the documents sought is not warranted in the absence of any clear and cogent justification for the requested documents.

[20] The ANMF submits that while the HSU’s assertion of the relevance of the documents is based on the proposition that the ED Hubs are an exemplar and “reference point” for the proposed scope of the Replacement Nurses Agreement, this misstates the proposed description of coverage. The ANMF submits the clarification in the proposed description of coverage goes to the meaning of the terms “Public Mental Health Services” and “Mental Health Services” and that in turn refers to the “service, department, unit or program of the Employer rather than the duties of the individual employee”. The ANMF says that where the example is given of a nurse working in an ED Hub in an Emergency Department as an example of the work of a “service, department, unit or program”, the “department” referred to in the example is the Emergency Department. It says the provision of the example referring to the Emergency Department as the relevant “service, department, unit or program” does not detract from or add to the meaning of “Public Mental Health Services”, or indeed the work of an ED Hub, in the proposed description of coverage. The ANMF claims the HSU has sought by inductive reasoning to elevate an example of an employee working in an ED Hub to be definitive of the “service, department, unit or program” part of the proposed coverage.

[21] The ANMF says the DHHS has issued Guidelines in relation to the role of the ED Hubs which are unambiguous in that they are to operate within the Emergency Departments of the health providers and be available for people who present with, in part, mental health or AOD comorbidities and/or physical health issues. The ANMF asserts the Guidelines are also unambiguous in outlining that the clinical and operational management of the ED Hubs will be the responsibility of the Emergency Department and that the multi-disciplinary treatment available in them will be under the clinical governance of the Emergency Department. The ANMF submits the HSU has not, and cannot, make a valid assertion that diary entries of discussions about ED Hubs or the Guidelines can make the unambiguous provisions of the Guidelines more explicable. The ANMF submits the Guidelines speak for themselves and deliberations of the DHHS and its communications with stakeholders and stakeholder views in the development of the Guidelines about the ED Hubs, which on any view are unambiguously part of Emergency Departments, are simply irrelevant to any question before the Commission. Finally, the ANMF submits there is a clear distinction between the establishment of ED Hubs and any dispute about the organisation of them.

[22] The HSU submitted Ms Sidebotham’s evidence regarding the demands on the IT Departments was indirect and unsatisfactory. It also suggested that Ms Sidebotham could provide nothing more than a generalised proposition as to how long it might take each one of the estimated 25 or less employees to search their material in response to an Order for Production, having not spoken with any of them about this. As to the impact of COVID-19 on the capacity of the DHHS to comply, the HSU submitted it is a large organisation and “there must be a way in which arrangements can be made for these documents to be provided”, with the demands of the COVID-19 pandemic needing to be balanced against the capacity of parties in a matter before the Commission being able to put their case.

[23] In relation to relevance, the HSU flagged that the argument in the arbitration will be that the previous agreement operated by reference to the duties of the employee and what is proposed for the Replacement Nurses Agreement is a significant change. The HSU submits that to say that the example of an ED Hub does not serve any purpose to elucidate or cast light on the way in which the definition of “Public Mental Health Services” is to be interpreted is quite artificial.  The HSU submits that the example of the ED Hub serves a significant purpose as a demonstration of how the new definition is intended to work and therefore, it is important to understand what an ED Hub is and how it works in order to establish whether what is being asserted is a fiction or whether it is a reality. The HSU asserts all the witnesses have said there are no working examples of an ED Hub and there is no way of testing what the reality is.  It says there is a theoretical position and only a partial hub at Monash Health, so there is a difficulty in putting before the Commission material that will allow the Commission to “lock in this example in an agreement for at least three years before we've actually seen it on the ground.”

[24] The HSU submits that since the ED Hub is used as a specific exemplar and reference point for the newly proposed scope of the Replacement Nurses Agreement, it is a legitimate and centrally relevant matter to be investigated in the arbitration. It submits that in order for the Commission to be able to sensibly consider whether the ED Hubs are an appropriate reference point for the new scope proposed for the Replacement Nurses Agreement, it would be important to have information about what actually is being proposed to be done. As such, the HSU submits the documents are therefore directly relevant and important for the Commission to be able to properly carry out the arbitration. The HSU proffers that if the proposal for ED Hubs is at such an inchoate state that such evidence is unavailable, then that will weigh heavily against it being used as a reference point or exemplar in the Replacement Nurses Agreement and demonstrates clearly and directly why this information is important to have before the Commission in the arbitration.

[25] The HSU does not accept the DHHS assertions regarding the relevance or helpfulness of the documents it seeks to have produced. It submits irrelevant parts of records do not need to be produced or can be redacted (as can private individual health information) and refutes the suggestion that superseded documents are irrelevant, submitting that documents which evidence the evolution of a final document can be important in exposing the purpose or reasons which were ultimately fixed upon for a final decision.

[26] As to the prejudice to the VHIA, the DHHS submissions were to the effect that as it and the VHIA had the same lawyers and their lawyers would be responsible for reviewing any documents required to be produced, the VHIA would be prejudiced in its capacity to prepare evidence and submissions in the arbitration.

[27] In response, the HSU submitted the time for this particular argument had passed, given the time for the filing of the VHIA’s materials in the arbitration, 23 September 2020, had passed.

[28] As to the proposition that the requests for documents falls outside the terms of the Arbitration Agreement, the DHHS submitted that the terms of the Arbitration Agreement set out the questions to be determined and the parameters of the arbitration but does not contemplate the making of an application for orders for production of documents from third parties. It submitted the Commission should not stray from the Arbitration Agreement, in circumstances where it would be burdensome and costly to the DHHS to produce the documents sought, unless it is necessary and appropriate for the Commission to determine the issues in dispute. The DHHS submitted this is not the case here. The DHHS also submitted that with the parties already having filed their material, the agreed timetabling would likely be lost if copies of the documents were to be introduced for cross examination purposes.

[29] In response, the HSU submitted that s.595(3) of the Act authorises an arbitration under s.240(4) of the Act and that s.595(4) enables the Commission to exercise any of its powers under Subdivision B of Division 3 of Part 5-1 of the Act in conducting an arbitration and these powers include powers under s.590 of the Act. Further, the HSU submitted the timetabling of the hearing is not a matter for the DHHS as a non-party.

HSU request for Production of Documents by the ANMF

[30] In correspondence dated 24 September 2020, the HSU requested that the ANMF provide the HSU with “copies of all communications between ANMF and each of St Vincents Hospital and Monash Health relating to” the “ongoing disputes” referred to in paragraph 74 of the witness statement of Mr Paul Gilbert, the Assistant Secretary of the Victorian Branch of the ANMF. The contents of paragraph 74 are as follows:

“Of the six proposed hubs, I am not aware of any that are fully operational. I have held meetings with St Vincent’s Hospital and Monash Health regarding enterprise agreement coverage for ED Hubs and, to my knowledge, the finalisation of both hubs is on hold pending the resolution of the coverage dispute; recruitment has also been postponed. There are presently some ongoing disputes between the ANMF and St Vincent’s Hospital and Monash Health regarding the organisation of ED hubs.”

[31] The ANMF characterised the HSU’s position in seeking these documents as being that the disputes referred to by Mr Gilbert are relevant to the Commission in deciding whether the proposed scope of the Replacement Nurses Agreement is appropriate in order to understand what issues there are around the establishment of the ED Hubs and whether it is a suitable exemplar or reference point for the scope.

[32] The ANMF submitted:

•  it is not apparent how the documents requested are relevant to the resolution of the issues that are the subject of the Arbitration. It says the last sentence of paragraph 74 is relied upon solely for the purpose of establishing the fact of a dispute referred to therein.

•  the reference to ED Hubs as a “suitable exemplar or reference point for scope” misstates the proposed description of coverage. It says the HSU incorrectly seeks to elevate the example of an ED Hub to being definitive of the “service, department, unit or program” part of the proposed coverage.

•  the proper characterisation of ED Hubs is a matter to be determined objectively, and not by reference to the communications relating to any dispute between the ANMF and two health services regarding the organisation of those ED hubs, with the Guidelines making it plain that the ED Hubs are part of the relevant health services’ Emergency Departments.

•  the HSU’s own evidence accepts that the individual health services are allowed flexibility in how they will organise the ED Hubs.

•  the request is a broad request for all communications “relating to” any disputes, not confined by any specific subject matter or to specifically described documents. As relevance has not been articulated in any concrete terms, the request is a fishing expedition by the HSU.

[33] The HSU submits that it is relevant to the Commission to understand what issues there are around the establishment of the ED hubs and whether it is a suitable exemplar or reference point, in deciding whether the proposed scope of the Replacement Nurses Agreement is appropriate. It arguesits request is narrow and limited and that it could not be anticipated that there would be volumes of documents, with the ANMF not having argued it would be oppressive for it to have to produce the volume of documents or even to search for them. As such, it submits the only issue is whether it is appropriate for the Commission to exercise its discretion to order the production of the requested documents.

[34] The HSU submits it is inappropriate for a party to “let slip that there is something going on and then try to hide what it is that is going on.” The HSU submits there is no credible basis to resist providing documents in relation to an issue that the ANMF’s own witness has deposed to and put on the table for the arbitration and that having done so, it is entirely inappropriate of the ANMF to resist production.

[35] Subsequent to the hearing before me, the HSU further submitted that paragraph 83 of Mr Gilbert’s statement contains further information which explains the relevance of the ANMF disputes with St Vincent’s and Monash Health to the issues before the Full Bench in the Arbitration and which provides a full answer to the allegations of “fishing”. The HSU therefore sought leave to rely on paragraph 83 in support of its application. Paragraph 83 of Mr Gilbert’s Statement is as follows:

“The clarification to the scope of coverage sought by the ANMF would also, in my view, assist with the resolution of outstanding confusion regarding coverage which has emerged in discussions between the ANMF and St Vincent’s Hospital and the ANMF and Monash Health with respect to nurses working in the ED Hubs, and allow the development of ED Hubs to progress towards being fully operational and delivering modern medical services as envisaged by the DHHS Guidelines.”

[36] As to this, the ANMF submits the HSU’s reliance on paragraph 83 of Mr Gilbert’s statement does not provide a “full answer” to the ANMF’s submission that the HSU’s request for production of documents by the ANMF constitutes fishing, and does not otherwise advance the HSU’s position with respect to the request.  The ANMF submits paragraph 83 of Mr Gilbert’s statement relevantly refers to clarification of the scope of coverage assisting with the resolution of outstanding confusion regarding coverage which has emerged in discussions between the ANMF and St Vincent’s Hospital and the ANMF and Monash Health with respect to nurses working in the ED Hubs.  It says that in a similar way to paragraph 74, paragraph 83 simply refers to the fact of “confusion” which has emerged “in discussions” with the two hospitals but does not refer to or rely on the substance of any particular discussion or dispute, and does not refer to any documents.  As such, the ANMF submits the HSU’s request remains an ambit claim for documents relating to the matters referred to at paragraphs 74 and 83 of Mr Gilbert’s statement, none of which are described with any particularity. 

[37] The ANMF submits that in such circumstances, it is still not apparent how the communications requested by the HSU are relevant to the resolution of the issues the subject of the arbitration, and how the request constitutes anything other than fishing.

Relevant Principles

[38] In the context of an application for an order pursuant to s.590(2)(c), the Full Bench in Esso Australia Ltd v Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 4 stated:

“The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.” 5 (reference omitted)

[39] Before me, the parties referenced the decision of Commissioner Jones in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 6and the principles outlined therein. In particular, reference was made to the decision of McIlwain v Ramsey Food Packaging Pty Ltd and others7in which Greenwood J summarised the principles which govern the courts in relation to discovery and subpoenas to produce documents and the following principles identified by Greenwood J, outlined by Commissioner Jones in her decision:

“a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins (unreported, O’Loughlin J, 1 August 1997).

.......................................................................

d) The documents for production must be identified with reasonable particularity. (The Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ). The category of documents must not be so wide as to be oppressive.

e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris [1920] 1 KB 659, 666).

f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:

"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resiting its issue, that may also be a practical factor to be weighed."

g) The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34] in requiring the existence of a legitimate forensic purpose for the production of documents.

h) In Trade Practices Commission v Arnotts Limited(No. 2) (1989) 21 FCR 306, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?

i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.

j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.

k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay [34].

l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 497.

m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment ’. (Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] FCA 510; [2005] 216 ALR 147, [12].

n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541.

o) In Dorajay Pty Limited v. Aristocrat Leisure Limited [2005] FCA 588 at paragraph [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v. Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at paragraph [18]:

"These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at p.11] in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive."

[40] The DHHS relies on the matters outlined by French J (as he then was) in Australian Gas Light Company v Australian Competition & Consumer Commission 8 (reproduced above) and submitted that demonstrating apparent potential relevance does not of itself entitle a party to an order. It also submitted the HSU was unable to identify what assistance it might derive from the production of the documents sought. Further, it proffered that while production might identify that a hospital was unhappy with an ED Hub or a guideline, the relevance of this to the criteria in paragraph 9 of the Arbitration agreement was unknown. The DHHS submitted the case management considerations all ran against the HSU and that the consideration of a “wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party” referred to by French J was apposite and weighed against an order. Also to be weighed was a situation in which the issue of a subpoena is likely to delay progress to trial in circumstances where the interests of the ANMF and VHIA in having the replacement Agreements put to a vote without further delay lay behind their opposition to the order sought.

[41] The DHHS further submitted that the HSU is unable to identify the benefit they will derive from the documents sought and as outlined above, that the order sought would be oppressive in its impact.

[42] In response, the HSU relied on the decision in MATFA v AMIEU, 9 in which Deputy President Riordan held that the Commission’s discretion to make an order for production must be exercised in a fair and reasonable manner and in which the HSU says guidance as to the way in which relevance needs to be identified for the purpose of making an order for production is provided as follows:

•  An application for the issue of a summons is not to be refused unless there are good and sufficient reasons for doing so. In particular, the right of a party to have reasonable access to relevant information to enable a proper response to a case against him or her is not to be denied.

•  The Commission must act judicially in order to ensure that matters are determined in a fair and reasonable manner. In this regard a party must be given a proper opportunity to present the case that such party wishes to pursue.

•  Per Anderson J in R v Small Claims Tribunal and Homewood: Ex p Cameron: “…the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense…” 10

[43] In response to the submission of the DHHS regarding the burden the order would impose at a time when it is required to respond to the COVID-19 pandemic, the HSU submitted that the Commission needs to be mindful achieving a balance, such that it is able to put its case. The HSU refuted the timing and case management issues raised by the DHHS, maintaining it would have three and a half weeks to file its material and proposes to file it, submitting there is nothing which requires it to put on any documents produced into affidavits or witness statements and submitting that the mere production of documents neither calls for nor necessitates any change in timetabling.

Consideration

[44] The interlocutory application for orders for production is made in the context of a dispute regarding employee coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement. The proposed definitions of coverage in the Replacement Nurses Agreement outline that a person ‘employed solely or predominantly in the provision of Public Mental Health Services’ is excluded and provides an explanation as to what that term means, with an example. The HSU considers the reference in the example to an ED Hub in an Emergency Department is a matter of significance. As was submitted by the HSU:

“…it's significant for us to understand the reasons and the way in which the guidelines have evolved both in terms of trying to properly characterise or understand the characterisation of the ED hubs and how that fits into the definitions as the example that is pointed in to demonstrate the working of the definitions as we've seen and we say that that will be a significant matter and for that reason we should be entitled to have a look at these documents.” 11

[45] The HSU also submits that the interlocutory application is focussed on the fact that the proposed definitions of scope are framed by reference, at least in part, to the ED Hubs in circumstances where the ED Hubs do not yet exist on the ground and therefore it is necessary to try and discern what the ED Hubs will look like and how they are going to operate if and when they ever start. This, it says, is why the documents are required.

[46] I observe there is no range of dates pertaining to the documents sought by the HSU. Ms Sidebotham’s evidence was that DHHS discussions with external stakeholders about the implementation of ED Hubs commenced at the beginning of 2019, and possibly at the end of 2018. Therefore, it would appear that if issued in the terms sought, the DHHS would be required to conduct a search of documents covering a span of nearly two years. Additionally, the documents are sought in relation to exchanges between the DHHS and nine separate organisations.

[47] Amongst the nine organisations is the HSU itself. It was stated that the HSU does not have any records of meeting with the DHHS in which either the establishment of the ED Hubs or the Guidelines were discussed. 12 I observe however that there do not appear to be any statements within the various HSU witness statements to the effect that the HSU do not have records of meetings they attended with the DHHS.

[48] The documents sought are described in two subsets. The category of documents sought in one of the subsets is stated in very broad terms, seeking all diary notes or other records of meetings, minutes, correspondence or other communications relating to the establishment of the ED Hubs.

[49] The other subset are documents in relation to the Guidelines. In terms of the Guidelines, versions issued in July 2019 and October 2019 are attached to the witness statement of Mr Healey filed in the substantive proceeding. The purpose of the Guidelines documents as outlined in the Guidelines issued in October 2019 is said to be:

“These guidelines outline the service delivery model of the ED mental health and AOD hubs. They also assist health services to identify and reduce variation in care within ED mental health and AOD hubs, while improving service efficiency and quality. The guidelines can also assist consumers in setting expectations about the nature and quality of services they can expect.

Each health service should also develop a model of care responsive to the cohort of ED patients which is underpinned by the principles of safe and quality ED assessment, diagnosis and treatment, and operate within the Mental Health Act (2014), and ensure the model of care reflects the expectation of providing an integrated response to people with urgent health needs within the capability of the health service.”

[50] The contents of the Guidelines issued in July 2019 13 are set out under the following headings:

1. Introduction

1.1 Purpose of this document;

2. Objectives of the emergency department mental health and AOD hub

2.1 Emergency department mental health and AOD hub eligibility criteria;

3. Guiding Principles of the service model;

4. Core features of the emergency department mental health and AOD hub;

5. Governance

5.1 Roles and responsibilities

5.2 Governance committee

5.3 Linkages and referrals;

6. Patient Journey

6.1 Initial presentation and triage

6.2 Multidisciplinary treatment and care

6.3 Bed-based treatment

6.4 Post treatment planning

6.5 Assertive outreach for patients leaving the hub;

7. Staffing;

8. Safety and security;

9. Built environment;

10. Monitoring and evaluation

10.1 Evaluation

10.2 Routine monitoring; and

11. Reporting.

[51] The headings in the Guidelines issued in October 2019 14 were identical in all but one respect. A sub-heading “7.1 Application of ED employed staff industrial awards and agreements” was inserted in the October 2019 Guidelines under “Staffing”. Under that sub-heading it is stated:

“In keeping with the responsibility for Governance being with the emergency department, the range of Industrial Instruments that apply to staff employed under the direction of Emergency Department leaders will apply to staff employed in ED MH and Hubs.

The following awards and enterprise agreements may be applied:

•  Medical staff – Medical Practitioners Award 2010/AMA Victoria – Victorian Public Health Sector – Doctors in Training Enterprise Agree 2018 – 2021; AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021 (only Doctors in Training and Medical Specialists have EBA coverage

•  Nursing staff- Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020

•  Health and Allied Services staff-Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020

•  Health Professionals Staff - Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016 – 2020

•  Administration staff-Victorian Public Health Sector (Health and Allied Services, managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020

Noting that a Peer Workforce model is not substantive workforce in Emergency Departments the award below be applied:

•  Peer Workforce - Victorian Public Mental Health Services Enterprise Agreement 2016 – 2020

Where an enterprise agreement applies, this would usually exclude coverage of an award. Which agreement applies will depend on the role and nature of the employee's work.”

[52] While the Nurses Agreement is included, the Mental Health Agreement is not amongst the awards and enterprise agreements that are stated to apply in ED Hubs and in reference to the October 2019 Guidelines, Mr Healey states in his witness statement filed in the substantive proceeding:

“… in October 2019 the DHHS published a new version of the Guidelines which, for the first time, nominated the industrial instruments which were suggested as applying to the workforce in the Hubs...

There had been no prior consultation with the HSU, and HACSU in particular, about this new development. At the next consultation meeting after the issue of the October Guidelines, I raised strong objections to the DHHS becoming involved in demarcation issues in this way and dictating industrial coverage. After that meeting, HACSU was not invited by DHHS to any further consultation sessions, or any meetings at all. I am aware that the DHHS formed “working groups” with the hospitals and ANMF, but excluded the HSU.”

[53] In considering the Application, I have had regard to the potential breadth of the documents that may fall within the scope of the orders if granted and the potential timeframe that might be covered. I have noted that the HSU itself does not appear to have any documents that may have arisen in the course of its own dealings with the DHHS and yet seeks documents, if any, from the DHHS relating to those dealings. I have also noted the potential number of DHHS personnel that might fall within the scope of an order if one was granted in the terms sought, and have considered the evidence given by Ms Sidebotham relating to the demands that the COVID-19 pandemic is currently imposing on DHHS personnel and what capacity its IT department may have to attend to the tasks that may be associated with complying with an order for production at a time when it is fulfilling obligations to 7000 employees working from home and preparing information management systems, 10,000 iPads and numerous laptops for incoming workers to work in COVID-19 contact tracing.

[54] It is apparent the issue of employee coverage arose during the development of the Guidelines. In particular, it is evident there was a material change made to the Guidelines between July and November 2019 with the insertion of the new “Staffing” subsection 7.1 that has a bearing on the issue of employee coverage. This points to the issue of coverage having been a topic of conversation during that period. I am satisfied that documents relating to the Guidelines are relevant to determining the two questions for the arbitration dealing with coverage. I am therefore persuaded to make an order for production involving the Guidelines, although not to the extent sought in the Application. Firstly, I intend to limit the date range to 1 July 2019 until 31 October 2019. Secondly, having regard to Mr Healey’s evidence outlined above at [52], I decline to make the order sought in Category (6). Thirdly, given the role the VHIA plays as bargaining representative for each of the employers covered by the Nurses Agreement and the Mental Health Agreement in relation to the Replacement Nurses Agreement and the Replacement Mental Health Agreement, I decline to make the order sought in Category (11).

[55] Accordingly, I propose to make orders relating to the Guidelines that reflect categories (4), (5), (7) and (9) covering the period from 1 July 2019 until 1 November 2019 however, they will not cover the HSU.

[56] In circumstances in which I intend to make orders relating to the Guidelines in the terms outlined above, I do not propose to make orders involving the documents in the categories relating to the establishment of the ED Hubs. Given the wide-ranging timespan and the range of topics that documents relating to the establishment of the ED Hubs could conceivably cover, I consider it is likely many documents in those categories are likely to be of no relevance to the issue of coverage and in circumstances where compliance with such broad orders would impose a not insignificant burden upon the DHHS during extraordinary times, this factor weigh against the granting of the orders sought. Therefore, I do not propose to make orders relating to the establishment of the ED Hubs reflecting categories (1)-(3), (7), (8) and (10).

HSU request for Production of Documents by the ANMF

[57] Having considered the submissions of the ANMF and the HSU, I am persuaded to make an order in the terms sought by the HSU. I am satisfied the documents sought are of sufficient relevance to the questions to be resolved in the arbitration and the order sought would be neither oppressive in terms of its impact on the ANMF nor deleterious to the timetabling of the matter.

Conclusion

[58] For the reasons I have given, I will exercise my discretion under s.590(2)(c) of the Act and issue orders for production in the terms outlined above. Orders giving effect to my decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

Mr H Borenstein QC and Ms K Burke of Counsel for Health Services Union (Branch Number 2 – Vic).
Mr E White of Counsel for Australian Nursing and Midwifery Federation (Victorian Branch).
Mr J Bourke QC and Ms F Leoncio of Counsel for Department of Health and Human Services.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
25 September.

Printed by authority of the Commonwealth Government Printer

<PR723308>

 1   B2020/278.

 2   B2020/299.

 3   B2020/408.

 4   [2017] FWCFB 2200.

 5 Ibid at [6].

 6   [2011] FWA 8756.

 7 (2005) 221 ALR 785.

 8 [2003] FCA 1101.

 9 (1990) 33 IR 371.

 10 [1976] VR 427 at 432.

 11   Transcript PN 608.

 12   Transcript PN 373-378.

 13   Attachment PH-19 to the Statement of Paul Healey

 14   Attachment PH-20 to the Statement of Paul Healey