PN542

VICE PRESIDENT HATCHER: All right. The next witness is Mr Andrew Richardson, is that right?

PN543

MR ROBSON: Yes, that's right, sir. I'll be taking him.

PN544

VICE PRESIDENT HATCHER: All right. Well, let's get Mr Richardson to join us and then we'll give him the information.

PN545

THE ASSOCIATE: Good morning, Mr Richardson. Can you confirm that you can hear and see me, please?

PN546

MR RICHARDSON: Yes, I can.

PN547

THE ASSOCIATE: Thank you. All right. Could you please state your full name and address?

PN548

MR RICHARDSON: My name is Andrew Donald Richardson. My address is - my personal address is (address supplied).

PN549

THE ASSOCIATE: Thank you. I'm now going to read out an affirmation, can you please confirm that you agree by saying, "I do."

<ANDREW DONALD RICHARDSON, AFFIRMED [10.03 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON [10.03 AM]

PN550

VICE PRESIDENT HATCHER: Right, Mr Robson.

PN551

MR ROBSON: Thank you, your Honour.

PN552

Mr Richardson, have you - can you please state your name for the record?‑‑‑Yes. Andrew Donald Richardson.

PN553

And have you prepared a witness statement for these proceedings?‑‑‑Yes.

PN554

And do you have that in front of you?‑‑‑Yes, I do.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN555

And is that a witness statement dated 18 May?‑‑‑Yes, it is.

PN556

It runs to five pages with one attachment of two pages?‑‑‑Yes.

PN557

Yes. Your Honour, we have a few corrections. Some of them I will take Mr Richardson to through some of the documents that I sent through to the Commissioner last night. Do you have a copy of those?

PN558

VICE PRESIDENT HATCHER: I'm just trying to see. I think so, yes.

PN559

MR ROBSON: Excellent.

PN560

Mr Richardson, do you have a copy of that package of documents that I gave you?‑‑‑Yes, I do.

PN561

Yes. Could you please go to paragraph 11 of your statement?‑‑‑Yes. This is on the original statement.

PN562

Yes, your original statement?‑‑‑Yes.

PN563

And in the bundle of documents at page 6?‑‑‑Yes.

PN564

At paragraph 11 you record the number of employees with suspected or confirmed cases of Covid‑19 at your organisation?‑‑‑Yes.

PN565

And in the bundle of documents, page 6 is a document with a table titled, "Covid‑19 report for 30 June 2020"?‑‑‑Yes.

PN566

And that is an updated report of the number of total cases of suspected, confirmed and negative Covid‑19?‑‑‑Yes, that's correct.

PN567

And so that's more accurate than number 11 - paragraph 11?‑‑‑Well, I think 11 was accurate at the time as best our reporting would make it and this is accurate as best our reporting makes it as at 30 June.

PN568

All right.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN569

VICE PRESIDENT HATCHER: I think, Mr Robson, this is updated evidence and it's not a correction.

PN570

THE WITNESS: Yes.

PN571

MR ROBSON: Yes, of course. All right.

PN572

Well, then is your statement true and correct?‑‑‑Yes.

PN573

All right. Your Honour ‑ ‑ ‑

PN574

VICE PRESIDENT HATCHER: I'll mark it. Yes. So the statement of Andrew Richardson dated 18 May 2020 will be marked exhibit 10.

EXHIBIT #10 WITNESS STATEMENT OF ANDREW RICHARDSON DATED 18/05/2020

PN575

Do you want to tender this bundle as well, Mr Robson?

PN576

MR ROBSON: Yes, your Honour. Can I tender this bundle?

PN577

VICE PRESIDENT HATCHER: Yes. So we'll call this the ASU Corona bundle, and it'll be marked exhibit 11.

EXHIBIT #11 ASU CORONA BUNDLE OF DOCUMENTS

PN578

MR ROBSON: Yes. Mr Richardson, going back to page 6 of the bundle of documents you were given last night, that's an update on the number of suspected and confirmed employee cases in the table on that page?‑‑‑That's correct. And customer cases on the following page.

PN579

Yes, that's page 7 of the bundle?‑‑‑Correct.

PN580

Thank you. Mr Richardson, if you can go to page 1 of the bundle.

PN581

VICE PRESIDENT HATCHER: Mr Robson, before you move on, can I just clarify what that table shows?

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN582

Sorry, it's Vice President Hatcher, Mr Richardson. In the column headed "Total cases raised to date" what does a case mean, what does that mean?‑‑‑Yes. A case is someone who has symptoms that may be Covid‑19. So we'll have taken a cautious approach as I think most responsible organisations have to say to our staff and to our customers, "Look, if you have any flu like symptoms, any raised temperature, symptoms of coughing and the like as per the health guidelines then you must report that", and we then go through a process of isolation of self‑quarantine or whatever it may be until the test results a positive or a negative outcome.

PN583

All right. And they're employee cases, that's not talking about clients?‑‑‑Yes. On page 6 it's employees and then the second half of the table which has fallen onto page 7 is clients who - in our language, our collective noun is normally customers but they're people with disability who we support.

PN584

All right. So on page 7 there was one customer who has tested positive?‑‑‑Yes.

PN585

Can you say anything about that - say anything personal - give me any personal information, can you just broadly talk about the circumstances of that person?‑‑‑Yes. That was a customer of support coordination only so under the NDIS we provide a range of services of supports to people with disability. One of those is called support coordination where we help people access the services, be they paid or community‑based services they need to live out the goals in their NDIS plan. That is very different to, for example, support work within a more traditional group home setting and fortunately in that case that was a gentleman in northern New South Wales and we had several weeks earlier changed our protocol so that support coordination was happening remotely rather than face‑to‑face because of the risk and in that case there was no transmission from that customer to any customers or staff because there hadn't been that direct personal contact and the good thing is that the gentleman recovered fully.

PN586

All right. And just going back to page 6, I'm just looking at the last column under "Isolation not tested"?‑‑‑Yes.

PN587

What's (indistinct)?‑‑‑That is where staff in, on page 6, choose not to be tested which is their right but therefore self‑isolate and don't come to work.

PN588

So presumably what's - is that 14 days?‑‑‑Yes.

PN589

Just hold on a second. Yes. All right. Thank you.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN590

Mr Robson?

PN591

MR ROBSON: Yes. Thank you, your Honour.

PN592

Mr Richardson, can I take you to page 1 of the bundle of documents?‑‑‑Yes.

PN593

This is the Covid‑19 care allowance policy. Could you tell us what that is?‑‑‑That's a policy that Aruma instituted to provide for a payment of an hourly allowance for support workers in certain circumstances who are supporting a customer who has or is suspected of having Covid‑19. It was also attached to my May statement.

PN594

Excellent. Thank you. Going to page 3, what's this document?‑‑‑This is internal work that our chief people office did recently, Kim Parish is her name, just looking at the cost of covering shifts under various scenarios where staff choose not to support someone for whatever reason.

PN595

Yes. And can you take us through the types of costs that could be incurred?‑‑‑Yes, I could. I think the context for this is simply that we introduced a Covid‑19 care allowance because we felt that was the fair and right thing to do in recognition of the requirements on our staff. It also though makes sense from a business perspective in that our experience is that the cost of the allowance is very low and you can contrast it with a range of scenarios where you have to cover for staff, all of which is a substantially higher cost than the cost of paying the allowance (indistinct) industrial or award (indistinct) where workers choose not to work because of personal risk or for whatever reason in supporting someone suspected of having Covid‑19 or indeed having it, the cost of covering shifts is much higher than the costs of paying an allowance to encourage people to deliver those services themselves in the normal way. Well, not in the normal way, it's different but to deliver those services themselves.

PN596

Yes. And can I take you to page 4, please?‑‑‑Yes.

PN597

Could you - what is this document?‑‑‑This is a summary of the Covid care allowance payments made to date. You'll see that there have been, I think 387 hours roughly of allowance paid, the costs to the organisation is a little under $2,000 and that's been spread across eight supported independent living sites to date.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN598

Thank you. Page 5, please?‑‑‑Yes. This is a breakdown of head count by type of employment and area of work. It looks easy. Sometimes it's harder than you think to pull together these type of analyses and particularly as for example, you will have seen that we applied the Covid care allowance to Victorian Government staff who are currently under our management control but are still technically employed by the Victorian Government until the end of this calendar year under the terms of the transfer of disability services from the Victorian Government to Aruma last year. So these are fairly accurate, maybe a few out here or there, but fairly accurate summaries of our workforce cut different ways.

PN599

Thank you. We have addressed pages 6 and 7. Can I take you to page 8?‑‑‑Yes.

PN600

Can you explain what this document is?‑‑‑Yes, I can. We were asked to provide to the Commission a range of documents as at 1 January and as at - I forget the date, it's written down - 9 June relating to a range of subject matters and this is a list of those documents that we were asked to provide.

PN601

Dot point 2, Arabic numeral 2, not Roman numeral ii?‑‑‑Yes.

PN602

That reads (audio malfunction) 2020 that relate to any of the following subject matters. That seems to me to be a more extensive list than those at dot point 1, which were those that existed at 1 January 2020. Could you explain to the Commission why there are so many additional documents?‑‑‑Covid-19 is a major health risk, as I think we all would accept, and we support people with disability who often have quite significant comorbidities and hence the risk of Covid-19 to our customers on average is higher than the risk to members of the general community, and so we have had to institute a range of additional controls in response to government directives, in response to health guidelines just as a matter of good common sense in order to seek to limit the risk of our customers contracting Covid-19 and, importantly, our staff contracting Covid-19 because it's a disease which is not yet well understood, that is highly infectious, so it transmits readily, there's no cure and no vaccine, so that's the logic by which our pandemic response team, which is the group in the organisation that has taken the lead on our response to Covid-19 has made sure that we provide our staff with as much guidance as we can to help them keep their customers and themselves safe.

PN603

Going down to 2(b), there are additional policies around PPE, or guidelines or documents. Why have you had to provide these documents?‑‑‑Because the risk is higher with Covid-19 of transmission and it has potentially fatal consequences, and so we have wanted to be very cautious and careful and make sure that we are equipping our staff as best we can to keep the customers and each other safe and us all safe in response to this bigger risk that's there.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN604

Is the reason why you need to do this because your support workers haven't had to use PPE in the same way or to the same extent in the past?‑‑‑It's hard to answer that with a clear answer but I'll give it my best shot. Yes, clearly, from time to time, our support workers do need to use PPE. They support people who, like the rest of the community and often more so, are susceptible to illness and other conditions, so we have always provided guidance and support to our support workers in the use of PPE, but, at their heart, they are support workers, they are hired for their ability to help our customers live a great life, and that's all about choice and control and relationships and about helping people live the type of life that they want to live.

PN605

It is not fundamentally a medical care environment, it is a support environment where we are helping people live the type of life that they want to live as best we possibly can, and so when a big risk like Covid-19 emerges, it's incumbent on us as a responsible organisation both for the wellbeing of our employees but also our customers to help our staff respond as well as they possibly can to a very different circumstance where they are going from being an enabler, you know, an active supporter of someone often, to having barriers between them and the customer, to saying, "No, you can't do that", which is the antithesis of choice and control. "You can't meet your family, you can't go out", and so that's been really challenging.

PN606

I apologise, it's a somewhat circuitous answer, but I guess the point I'm trying to make is support work changes in this context, it goes from being all about choice and control and supporting people to live the life they want and the emphasis switches to trying to keep people healthy and safe and free of the virus, and that's quite a challenge for all of us, particularly for support workers.

PN607

MR ROBSON: Does that change in focus present a new challenge for support workers in their relationships with their clients or customers?‑‑‑On average, yes. Clearly, we support thousands of people and they are all individuals, but typically it does because you need to, for example, be a whole lot better at sterilising and cleaning surfaces and working with family members, with our customers themselves, who may not understand or accept some of the actions we are taking as we try as hard as we can to keep them safe. The heart of support work is still there, but there are all these additional pressures and responsibilities on support staff as they deal with their customers, as they deal with family members and others, and they also try and keep themselves and therefore their families safe from infection.

*** ANDREW DONALD RICHARDSON XN MR ROBSON

PN608

Thank you very much. Page 10, could you tell me what that is?‑‑‑Sure. It is a document that we provide on our web portal, which is our intranet, how we provide most of our policies and guidelines and procedures and forms and things to staff, just some guidelines around supporting staff to manage verbal or physical aggression from customers, and clearly when the environment changes in ways that customers don't understand, there is a greater risk of verbal and physical aggression in response and we just wanted to make sure that we were reminding our support staff of some of the lessons they would have learnt in their induction and other training around keeping themselves safe when the customer escalates in their behaviour for whatever reason but potentially because of their response to the changed environment that they find themselves in.

PN609

Why is it important for your staff to respond in the right way to these challenging behaviours?‑‑‑That's a big question. The completely answer is because it helps the staff keep the customer and, if it's a supported living setting, their co-residents and themselves safe and free from harm.

PN610

Thank you, Mr Richardson. No further questions from me, your Honour.

PN611

VICE PRESIDENT HATCHER: Mr Richardson, it's Vice President Hatcher again. I know this actually doesn't appear to have happened yet, but if you had a client with care needs that required close contact support from employees and the client was positively diagnosed with Covid, how would the organisation respond to that and deal with that situation?‑‑‑It would depend on the circumstance and the availability of Health Department supports. Our first direction would be if the customer in a supported living setting is confirmed as having Covid-19 to have them transferred to a hospital so that they can be well cared for. If that is not possible, then we have a range of protocols around how to isolate someone within their own setting or how to support them in a new setting. So, we have set aside a number of properties where we can take people who have to self-isolate because of Covid 19, but, for whatever reason, can't go to hospital, then we have a number of properties set aside and policies and guidelines and practice set out for staff who will support a customer with Covid-19 in those type of settings.

PN612

At the end of the day, presumably, again, if they don't need to go to hospital or can't go to hospital, an employee would end up having to support that person even if they had the infection?‑‑‑That is correct, yes, and one of the good things is that when someone in a supported living setting is confirmed as having Covid-19, there is a line item or a couple of line items in the NDIS price guide which would provide us with incremental funding to help support that.

PN613

I gather that that doesn't apply where it's only a suspected case, that is, they are in self-isolation or awaiting a test?‑‑‑That is correct, your Honour, yes.

PN614

All right, thank you. Ms Bhatt, are you cross-examining this witness?

PN615

MS BHATT: Yes, Vice President, thank you.

CROSS-EXAMINATION BY MS BHATT [10.26 AM]

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN616

Good morning, Mr Richardson, can you see me and hear me?‑‑‑Yes, I can. You are sort of down the bottom of the screen, so I've got to try and look at the camera rather than you, but I'll do my best.

PN617

That's okay, Mr Richardson. I represent the Australian Industry Group in these proceedings and I wanted to start by asking you some questions about Aruma's operations?‑‑‑Sure.

PN618

I understand from your evidence that Aruma provides support services to persons with a disability, but I have also read some information about Aruma that appears to suggest that it also provides a range of other types of services. It's true, isn't it, that Aruma provides facility management services such as property maintenance, commercial cleaning and infrastructure maintenance?‑‑‑Aruma is actually a single purpose organisation. We only exist to support people with disability and we do that in a range of ways. We support people to live in the community, we support people to access the community, we train people. One of the things that we have done for many years is employ people with a disability who otherwise wouldn't be able to get and keep a job because of the nature of their disability in what are called Australian disability enterprises. That is a particular model defined over time by the federal government and now contemplated by the National Disability Insurance Agency, and so, yes, we have a range of businesses employing people with disability and whilst the vast majority of our income comes from government to support people with disability, a small per cent comes from the sales and services provided by those businesses which employ people with disability.

PN619

MS BHATT: So can I very quickly take you through what I understand to be some of those parts of the organisation or some of the different types of businesses and if you can confirm whether or not that is indeed one of the businesses that is operated in the way that you have just described. Coming back to my initial question, there are facility management services that are provided?‑‑‑We have a business called Aruma Facility Services which employs people with disability and does cleaning and grounds maintenance and landscaping and that type of thing. Yes, that's part of what we do. It would be, I would think, less than 1 per cent of what we do, but, yes.

PN620

There is a commercial laundry near Newcastle in New South Wales?‑‑‑Absolutely, there is, yes. Again, that's one of our Australian disability enterprises that employs people with disability. All these businesses only exist to employ people with disability and they are very challenged from a business perspective because if you imagine running a business that might need to employ five times as many people as your competitors, so typically they are loss-making businesses that we subsidise from fund-raising and other income because it's all about the employment experience for people with disability.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN621

I will come back to the detail around some of that shortly, Mr Richardson, but if we continue to just move through the list, can you confirm that there is a part of the organisation that packs and supplies medical supplies or products for hospitals and other healthcare organisations?‑‑‑We have another Australian Disability Enterprise, yes, that employs people with disability that produces medical packs. If you were tested by the police in pretty much every Australian jurisdiction, I think maybe not WA, for roadside drug tests and the like, then there's a chance that that pack will have been made by Aruma at our packing business, yes. So, again, it's one of those businesses we have that employs people with disability.

PN622

Yes. Similarly, there's a cardboard and plastic recycling business?‑‑‑Not any more. There was, but that was just losing too much money. Because the vast bulk of our funding is NDIS funding or government funding that hasn't yet transitioned to the NDIS for support services, it's getting increasingly difficult to cross-subsidise those business operations out of other revenue streams, and so we closed that business because it just couldn't carry the losses.

PN623

All right. My information is a little out of date, thank you. It is true, isn't it, that Aruma, in the same way, manufactures and sells certain types of goods?‑‑‑We manufacture - let me think what we manufacture. In Forbes, we have a business called Aussie Biscuits, which employs people with disability, who make biscuits which we sell. So, yes, although currently that business has been shut as part of our Covid-19 response, but, again, it's a small regional business that probably turns over maybe - I can't think off the top of my head - maybe 2 or 3 - maybe $300,000 a year or something of that order from biscuit sales.

PN624

Mr Richardson, I last night asked that a document be provided to you by email titled "2019 Annual Review, the Year that Was". Do you have that to hand?‑‑‑Yes.

PN625

I take it that's a document you have seen before?‑‑‑Yes.

PN626

It is Aruma's annual report of 2019, isn't it?‑‑‑It's not a full financial report, but it's the summary document of our annual review. We obviously do full financial reporting, but this is a snapshot document that is more informative about what we do and what we stand for.

PN627

I tender that, Vice President.

PN628

VICE PRESIDENT HATCHER: All right, the Aruma 2019 Annual Review will be marked exhibit 12.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

EXHIBIT #12 ARUMA 2019 ANNUAL REVIEW

PN629

MS BHATT: Thank you. Sorry, I should check, does the Bench have a copy of that document?

PN630

VICE PRESIDENT HATCHER: Yes, I do.

PN631

COMMISSIONER LEE: Yes, so do I, thanks.

PN632

MS BHATT: Thank you.

PN633

Can we go to page 38 of that document, Mr Richardson, please?‑‑‑Yes.

PN634

I am looking at a chart that's in the bottom right-hand corner that says "Revenue Resources"?‑‑‑Yes.

PN635

Below that there are several coloured dots. There's an orange dot that says "Other Services, $30 million." Is that a reference to the services that I just asked you about?‑‑‑That would include the - probably I'm thinking maybe 15 - this might be a few million wrong - but that would include about $15 million of services revenue from those Australian Disability Enterprises, and the rest of the services revenue will be revenue from customers on our support services who we support in supported living and other settings, who also make a contribution to the costs of, you know, rent and those type of things.

PN636

I understand, thank you. If we go to the next one on the list, "Sale of Goods", is that a reference to the goods that I understand are manufactured and sold by Aruma's various disability enterprises?‑‑‑Yes, that would be correct.

PN637

Mr Richardson, can we go back to your witness statement at paragraph 8, please?‑‑‑Yes.

PN638

You say there that:

PN639

We are obliged to comply with the following new regulatory requirements -

PN640

and then there's a list that follows?‑‑‑Yes.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN641

If I take you to the first dot point, "Government directives, federal, state and territory." You would agree that Aruma has taken specific steps to ensure compliance with those directives?‑‑‑Yes.

PN642

Then if we go to the next dot point, which is, "NDIS Quality and Safeguards Commission Reporting Directives." I take it, Mr Richardson, that Aruma is a registered NDIS provider?‑‑‑Yes, we are.

PN643

You would accept that the NDIS Code of Conduct and the NDIS Practice Standards apply to Aruma?‑‑‑Yes.

PN644

You would accept that they require the delivery of safe quality supports and services and the management of risks associated with the provision of those services?‑‑‑Yes.

PN645

You would accept, of course, that Aruma has taken again specific steps to ensure that it is complying with those requirements in the context of the Covid-19 pandemic?‑‑‑Yes.

PN646

Perhaps if we go over the page in your statement, Mr Richardson. I'm looking at the second dot point on the next page: "Covid-19 Plan for the Disability Services Sector (Victoria)." I take it that that's a reference to a plan that disability service providers are required to implement by the Victorian Department of Health; is that right?‑‑‑The Victorian Department of Health and Human Services has had a range of requirements, as have government bodies in other states, around response to Covid. They are focused around supported living environments.

PN647

You would accept again that Aruma has taken specific steps to ensure that this particular plan that you have referred to is properly implemented?‑‑‑In general terms, I would. It's hard for me, as the CEO of a large organisation, to be personally across every aspect of every plan, but, yes, as best we possibly can, we have responded to federal, state, territory directives and guidelines and advice. One of the challenges has been at times federal and state and territory guidelines have differed, which in a multi-jurisdictional body like us has made that quite a challenge.

PN648

Yes, I can imagine that it has. Rather than labour through each of these issues that you have listed out in your statement, can I put to you these more general propositions, that Aruma has implemented various measures to ensure that it complies with the various regulatory requirements imposed on it in the context of Covid-19. You would agree with that, wouldn't you?‑‑‑Yes.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN649

You would also agree, wouldn't you, that Aruma has devoted significant time and resources to ensuring that it properly does so? You would agree with that too?‑‑‑Yes.

PN650

You would also accept that the circumstances of Covid-19 have required Aruma to procure more PPE than was generally required prior to the pandemic?‑‑‑Procurement of PPE has been a challenge, and I am sure people are generally aware of that, so I won't labour the point, but, yes.

PN651

Similarly, you would accept that the circumstances of Covid-19 have required Aruma to make additional arrangements for the distribution of PPE across your workforce and workplaces?‑‑‑That's been one of a whole lot of - yes, it's been one of a whole lot of things that we've had to do as part of our response.

PN652

You accept that another one of the things you have had to do as part of your response is to make additional arrangements for the disposal of PPE?‑‑‑I don't - look, I assume the answer is "Yes". From a personal perspective, I don't know if there are additional arrangements or not.

PN653

Sure. But you would accept that the circumstances of Covid-19 have required Aruma to procure goods that enable proper hand hygiene, such as hand sanitiser?‑‑‑We have purchased quite a lot of hand sanitiser, yes.

PN654

I see from Aruma's website, Mr Richardson, that it has issued an urgent appeal for members of the public to make monetary donations if they can to assist Aruma's efforts to ensure that both staff and customers have access to enough PPE and hand sanitiser and the like. You would agree that Aruma is undertaking that fund-raising effort?‑‑‑Yes, we have a much smaller fund-raising activity than we used to. It probably amounts to about 1 per cent of revenue, in fact less than that now, probably half a per cent of revenue, but, yes, any time we can, as a charity, get from our donors some discretionary funding, that enables us to do things that we otherwise wouldn't be able to do. Sadly, those dollars are pretty small these days.

PN655

But just to confirm, there is a fund-raising effort specific to Covid-19 and matters such as PPE, hand sanitiser and the like that is currently being undertaken?‑‑‑I believe our tax appeal, which is one of a couple of campaigns we run a year to give people an opportunity to donate, has - yes, I am confident that it has referenced that type of need, yes. It's a small per cent of what we do.

PN656

I understand?‑‑‑I am not heavily personally involved in it.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN657

Sure. To the extent that you can answer this question, can I take it that that appeal for funds has been issued because the procuring of items such as PPE and hand sanitiser comes at a significant cost to the organisation?‑‑‑Look, the reason we do fund-raising is much broader than any individual instance in that, as I think you would probably be aware, there's a general trend in the disability support industry for the NDIS to transactionalise and seek to drive down the cost of services, so if we can obtain some discretionary income from willing supporters, then, yes, we will apply that wherever we think we can best do so.

PN658

You would accept this proposition, which is part of the proposition I put to you last time - we will just take on part of it - that procuring items like PPE and hand sanitiser in the context of Covid-19 has come at a significant cost to the organisation? You would agree with that?‑‑‑I probably would not agree with "significant". If you have a look at - I think our turnover this year is about 400-and - this year just finished would've been about $430 million or so. The profit on that is minimal, unfortunately, that's just the nature of the work that we do. So, within that context, the cost of hand sanitiser and the like is not particularly significant.

PN659

Can I take it from your earlier response about the NDIS and - I withdraw that because I will come back to that. Can we go to paragraph 10 of your statement, which deals with funding in relation to the NDIA?‑‑‑Yes.

PN660

You will see at the second dot point, you have referred to a 10 per cent loading on some services?‑‑‑Yes.

PN661

Mr Richardson, are you aware that that 10 per cent loading is no longer available as of 1 July, which was yesterday?‑‑‑Yes.

PN662

Thank you. You have also given some evidence, of course, about an allowance that Aruma is paying some of its employees in the context of Covid-19. You were involved in making the decision to implement the payment of that allowance, were you?‑‑‑Yes, that's correct, and just to clarify your last question, because I wouldn't want to mislead, I was referring to the second dot point of paragraph 10.

PN663

Yes?‑‑‑So the communications with the agency to date say that the funding for Covid-19 to support people who test positive to Covid-19 is ongoing, the $1200 a day and the one-off cleaning costs, so that is extant.

PN664

Am I right in understanding that that part of the funding, it applies only in a supported independent living environment?‑‑‑Correct.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN665

Thank you. If we go back, Mr Richardson, to the allowance that Aruma is paying some of its employees, can I take you to paragraph 22 of your statement, please?‑‑‑Yes.

PN666

The first sentence of that paragraph says:

PN667

We believe that the proposed allowance is affordable unless infection rates spike.

PN668

It seems to logically follow from that part of your evidence that if infection rates do spike, the allowance may become unaffordable. You would agree with that, wouldn't you?‑‑‑That was one of our concerns in May when we were looking at this. We took a decision based on what we thought was in the best interests of our staff, our customers and the organisation. If I were writing that now, I would probably write it differently in that we have spent the princely sum of $1910 in total on the Covid-19 care allowance, which feels very affordable. I think what's happened is, for example, people with disability living in supported accommodation employees are classified as essential services, so you can get access to very rapid testing, which wasn't apparent back in May. So, the cost now is much more manageable than we would have thought. I mean the facts are the facts. We've spent $2000 in total and, clearly, if someone is confirmed as being Covid positive within a supported living setting, which is the heart of what we're talking about, then there is adequate funding to cover the cost, and if they are not confirmed as Covid positive, then you can turn around test results very quickly and so you're looking at a small number of hours of pay of a small allowance, which we think is very appropriate, very fair and very affordable.

PN669

You have given some evidence just then about your experience as to how quickly test results have become available. Would you agree with this proposition, that test results have typically been available within 24 to 48 hours?‑‑‑I'm probably not the most expert person to answer that. I know it can range from a few hours up to a day or two, but I don't have enough personal specific knowledge to answer that question well, I'm sorry.

PN670

Not at all, thank you. Can I take you then to annexure A of your statement, please, which is the Covid-19 Care Allowance Policy. I see from that policy that the allowance is $4.94 per hour. Mr Richardson, are you still there?

PN671

VICE PRESIDENT HATCHER: I don't think he is.

PN672

MS BHATT: No.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN673

VICE PRESIDENT HATCHER: Hold on while we try to find him again.

PN674

THE ASSOCIATE: Vice President, he seems to have dropped out of the call. Mr Robson, can you perhaps contact him and ask him to rejoin the proceedings, please.

PN675

MR ROBSON: Yes, I will do that, thank you. Here he comes.

PN676

THE WITNESS: No idea what happened there, sorry about that. I'm back. Sorry, I obviously missed that last question.

PN677

MS BHATT: That's okay. You can hear me, Mr Richardson?‑‑‑Yes, I can.

PN678

We were looking at annexure A to your statement?‑‑‑Yes.

PN679

Which is the Covid-19 Care Allowance Policy. It says at clause 4.1 that the allowance is $4.94 for any of the hours worked that meet the relevant criteria?‑‑‑Yes.

PN680

If I take you to paragraph 1.3, which is further up the page, it says:

PN681

Aruma has developed this policy in consultation with our union partners as part of our response to the Covid-19 pandemic.

PN682

Can I take it from that that the quantum of the allowance, the $4.94 per hour, you arrived at that quantum also as a product of your consultation with the unions?‑‑‑Look, there was a process in front of Deputy President Booth, I believe, and I was involved in a little bit of that, where that was worked out using some formula that was quite complex and because we had different industrial contexts within Aruma, we thought it was easier to just specify the dollar number rather than all the logic of working out what the $4.94 was, but that was the hourly allowance rate that was put forward as part of those discussions in front of Deputy President Booth.

PN683

There was one or more union involved in those discussions?‑‑‑Yes, there was employer representation, there were unions, there was, until late in the place, broad consensus.

PN684

Thank you, Mr Richardson. I have no further questions, Vice President.

*** ANDREW DONALD RICHARDSON XXN MS BHATT

PN685

VICE PRESIDENT HATCHER: Thank you. Any re-examination, Mr Robson?

PN686

MR ROBSON: Yes, your Honour.

RE-EXAMINATION BY MR ROBSON [10.50 AM]

PN687

Mr Richardson, you were asked about fund-raising from donors in the community?‑‑‑Yes.

PN688

Your organisation isn't reliant on fund-raising, is it?‑‑‑No, we're not. It's probably, on the revenue basis these days, in the order of half of 1 per cent of our revenue, and clearly the margin on fund-raising after the costs of fund-raising is less than that, and so, in the great scheme of things, it's tiny. We have progressively wound back our fund-raising activities over the past decade or so, both from a human rights perspective, that we believe that people with disability should, as of right, be entitled to adequate support from our community and the NDIS goes a long way towards meeting that, and also because we don't feel comfortable spending a lot of cents in a dollar to gain a dollar. Fund-raising has become more difficult and more competitive and so we have cut back on fund-raising and tried to focus on residual fund-raising activities where we can generate a reasonable return, but, in the scheme of things, the dollars are small and, realistically, almost immaterial.

PN689

Thank you, Mr Richardson. Your Honour, no further questions from me.

PN690

VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Richardson, you are excused, which means you can simply disconnect?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.52 AM]

PN691

VICE PRESIDENT HATCHER: All right, submissions. Are you going first, Mr Robson?

PN692

MR ARNDT: Vice President - apologies, Mr Robson - I just had two issues in relation to the materials that have been admitted into evidence. I just wanted to confirm, I don't believe, and my colleague's notes don't confirm, that the notes that Mr Hyland was taken to yesterday were admitted into evidence?

PN693

VICE PRESIDENT HATCHER: The notes?

*** ANDREW DONALD RICHARDSON RXN MR ROBSON

PN694

MR ARNDT: The materials that he was taken to. I could be wrong.

PN695

MR ROBSON: I don't believe I took Mr Hyland to any notes.

PN696

MR ARNDT: No, the materials that I took him to.

PN697

VICE PRESIDENT HATCHER: Did you tender it?

PN698

MR ARNDT: No, this is why I raise it now. Is it possible to tender it this morning?

PN699

VICE PRESIDENT HATCHER: Of course, but I have just lost track of what you're actually talking about. Just hold on a second.

PN700

MR ARNDT: I don't believe - it was my mistake - I don't believe I tendered it at the time.

PN701

VICE PRESIDENT HATCHER: All right.

PN702

COMMISSIONER LEE: Mr Arndt, it's Commissioner Lee here. You are referring to what you put to Mr Hyland that was in the drop box that you sent at 4.39 pm on 30 June?

PN703

MR ARNDT: That's correct.

PN704

VICE PRESIDENT HATCHER: What employer was this again?

PN705

COMMISSIONER LEE: Mr Hyland.

PN706

VICE PRESIDENT HATCHER: What was the employer's name again?

PN707

COMMISSIONER LEE: Mr Hyland - H-y-l-a-n-d.

PN708

VICE PRESIDENT HATCHER: No, the employer's name.

PN709

MR ARNDT: The employer's name is Lifestyle Solutions.

PN710

VICE PRESIDENT HATCHER: All right, got it.

PN711

MR ARNDT: There is a second issue I apologise for, Vice President.

PN712

VICE PRESIDENT HATCHER: Let's deal with this one. So the ABI Lifestyle Solutions bundle will be marked exhibit 13.

EXHIBIT #13 ABI LIFESTYLE SOLUTIONS BUNDLE

PN713

MR ARNDT: The second issue is before my appearance, my colleague, Mr Ward, appeared in these proceedings and put into evidence what were numbered ABI1 to 7. In the statement produced by the Full Bench, our client was asked to identify the findings that should be made in relation to that material. I just wanted to note and just confirm whether your Honour was aware of that material and whether it was still before the Full Bench, so to speak?

PN714

VICE PRESIDENT HATCHER: Not really and I don't think I have it to hand.

PN715

MR ARNDT: Can I undertake to provide it to chambers? I don't think much more needs to be said about it given that we have filed a written submission stating what we say should be taken out of it in response to that statement issued by the Full Bench previously.

PN716

VICE PRESIDENT HATCHER: All right, thank you.

PN717

MR ARNDT: They were all the issues, Vice President, thank you.

PN718

VICE PRESIDENT HATCHER: All right. Mr Robson?

PN719

MR ROBSON: Yes, thank you, your Honour. We have filed an outline of written submissions and we intend to rely on them. My intention is to take you through the evidence and tell you what we say about that and make some comments about the merits of our arguments of the case.

PN720

I think I will start with our witnesses. Ms Brown presents evidence of the intensification of work while supporting a client who was suspected of Covid-19. I think in her oral evidence, there was a very good demonstration of that in her description of the work of taking a client from the room where they were self-isolating in a group home through to the bathroom, the management of the other people in the house, the putting on and taking off of PPE, the cleaning, the removing of the item from the home, all the while managing the emotional state and reactions of the various people who live together.

PN721

Ms Fatah - I understand Ms Liebhaber will go into some detail on Ms Fatah's evidence, so I won't touch on that, simply to say that that's a description of a more experienced support worker working in a more complex care type of facility.

PN722

What we heard from Mr Hyland yesterday, his evidence is that his organisation has gone through a wholesale process of adapting to the Covid-19 pandemic. This is an organisation that supports 1800 customers. These have a range of needs from mild disabilities through to complex an end of life care.

PN723

There are a range of people in any disability service and larger organisations that don't specialise in a particular type of care will care for a range of people, but they will have specialties, some will focus on people with a physical disability, others may focus on people with an intellectual disability, and in the context of the pandemic, this has required (a) a general revision of their approach towards infection control, towards managing their clients' behaviour, but, of course, very specifically, when dealing with a client with Covid-19, he talks about the very different duties that an employee would have normally.

PN724

This requires behaviour management, which is more extreme than normal, this requires the use of PPE that a support worker just wouldn't use in their daily life, this requires the use of cleaning - the regular cleaning of the bathroom, the cleaning of equipment used in the house such as washing machines.

PN725

The employers cross-examined him on infection control policies that existed in January 2020, but it is his evidence that while, you know, general principles of infection control may remain the same, its implementation in his organisation is different. In particular, I think it's important to take a clear look at Lifestyle Solutions' Covid-19 Protocols. These are the practices that they have implemented that apply as soon as a customer displays Covid-19 symptoms, and he says in his evidence that he knows that this is when they've had contact with a suspected or confirmed case of Covid-19. So the first step is to isolate a customer. This might be in a private home or it might be in a residential setting, something like a group home or supported independent living.

PN726

Again, the use of cleaning, the use of PPE, the constant changing of personal protective equipment all while managing their relationship with the customer and supporting them, so the normal work of supporting a customer doesn't end just because they're being supported during Covid-19. Of course, there are other people who might live with that customer who continue to need their daily supports, including potential additional duties because someone in the place that they live is being isolated.

PN727

Mr Hyland was also able to give evidence about the allowance that he has put in place in his organisation. It's the same quantum as that we've seen or the ASU's claim at paragraph 31 through 34 of this statement. Mr Hyland talks about his projected cost to the organisation of this allowance. He wasn't cross-examined on this evidence. In cross-examination it did come up that there are some differences between the union claim and that implemented by Mr Hyland. But I think the key difference there is that Lifestyle Solutions has maintained a discretion to pay the allowance before there is a confirmed case.

PN728

But I think on further questioning that distinction isn't necessarily supportable. We say that this actually demonstrates the need for this allowance to be incorporated into the award. We can approach individual employers through bargaining or through proposals for changing their policies but there is a merit argument for this and if we leave this to individual organisations to adopt this in individual circumstances there will be inconsistencies and it will mean that some people who are deserving of payment for the work that they are doing won't be entitled to it.

PN729

VICE PRESIDENT HATCHER: So, Mr Robson, these projections of cost are based upon the current, fairly benign situation Australia continuing but what if there is a full-blown second wave as per what's happening in the United States, for example?

PN730

MR ROBSON: Yes, I think the first thing to say is that the United States has taken a much more haphazard approach to the management of the disease than Australia. Secondly, I think we have to admit that there is some uncertainty about the future but this is a government-funded industry. The government has responded to the needs of the industry with a 10 per cent loading that expired yesterday with the continued support for supported independent living where there is a confirmed case of Covid-19. I think the thing to say is that the funding is not - the cost of this allowance at present on the evidence available to the Commission is very limited.

PN731

Mr Farthing in his statement provides data received from the minister of - the disability minister. At the time there were a very small number of confirmed in the entire country. We've seen the evidence from both Mr Hyland and Mr Richardson, Mr Richardson being one of the largest providers in the country, with several thousand customers, one confirmed case and a number of suspected cases in the hundreds. That's the evidence that we have available now.

PN732

VICE PRESIDENT HATCHER: I mean, the question is less directed at persons being - dealing with confirmed cases but if there was a threat of a second wave which required large-scale testing, that would presumably mean that there would be a high degree of working with people who are awaiting the results of a test, for example, or self-isolating.

PN733

MR ROBSON: Indeed, but also a higher number of workers with - the intensification of work that will come to and of course the other disabilities associated. I think the thing to say about it is that it's a government-funded industry and there is an extent to - we don't know what their response to it will be. I think that was acknowledged by Mr Hyland and Mr Richardson. But on their calculations, planning for their business, they're comfortable supporting this allowance. Indeed, a business who hasn't given evidence, Life Without Barriers, has put in submissions supporting it as well.

PN734

These would be if not the three largest disability services organisations they would be amongst the largest.

PN735

VICE PRESIDENT HATCHER: So Life Without Barriers - are they paying an allowance?

PN736

MR ROBSON: I'm unsure but I can confirm that.

PN737

MR LIEBHABER: Vice President, I can in fact confirm that they are paying an allowance and the details of that are included in exhibit 7.

PN738

VICE PRESIDENT HATCHER: Are they paid for dealing with clients in isolation?

PN739

MR LIEBHABER: Yes.

PN740

VICE PRESIDENT HATCHER: Thank you. Sorry to interrupt.

PN741

MR ROBSON: No, that's all right; thank you, your Honour. Essentially I think the point I was coming to about Mr Hyland's evidence is the one that you asked me about. We have three organisations who have undertaken to pay this allowance voluntarily. Two of them have agreed to give evidence, one of them has filed a submission supporting an employee giving evidence in this case. What we say is these are some of the largest, leading organisations in the sector. Certainly, that is important evidence from them.

PN742

We've also had a submission and there has also been a witness statement filed by Ms Hollywood. Ms Hollywood is the director of policy and accuracy at People with a Disability of Australia. PWDA is a peak body, an association of people with disabiliti8es in Australia. Their board is constituted of people with disabilities. Their CEO is a person with a disability. This is an organisation - among others - that gives a voice to people with a disability in this country. I think her evidence adds a very important part to your considerations.

PN743

We've heard quite a lot of evidence from employees who are practicing the discipline of disability support. We've heard from the leaders of organisations who are managing these organisations and managing relationships with people with a disability as customers and clients. But this is an explanation of what people with a disability need in their own voice and we believe this evidence is very important because the fundamental thing about this sector, which is different from health care, which is different from institutional settings for mental health, is that it deals with people who are going about their day-to-day normal lives.

PN744

A disability organisation works with a person with a disability. They are exercising choice and control, even within the restrictions of the pandemic. Their job, as quite ably explained by Mr Richardson, is to help them to live their life, to do the things that they want to do to achieve their goals. Ms Hollywood makes the point at 18 and 19 about the impact of restricted practices on people with a disability. A restrictive practice is - they are the leftovers from the bad old days of the disability sector. They could be the use of physical controls, sedation, detention; anything that limits the person's ability to express themselves, to live fully and to exercise their human rights.

PN745

Ms Hollywood makes a connection that we also do, that for a person to be able to exercise those rights, to live fully, even in the context of a world-spanning disaster like the one we're living in, it requires skilled, experienced staff, people like Ms Brown, people like Ms Fratter, who are able to manage a situation like a lockdown in a group home without - with the skills that they don't need to use these practices. Attached to her statement is an open letter to the National Cabinet, supported by a range of peak bodies and associations for people with disabilities, calling on them to do what is necessary, including supporting the retention of skilled staff in the sector during the pandemic, so that the people they represent can get the support they need.

PN746

This, I think, is important because it is the starting point of this case. The Commission's task in this case is to consider our application in making a safety net that is fair and relevant of minimum terms and conditions in the SCHADS award. An important consideration is community standards and certainly, this is evidence that there is a standards in the community that there should be well-remunerated, skilled staff working in the sector.

PN747

VICE PRESIDENT HATCHER: Have the state and territory governments introduced any additional payments in respect of people dealing with Covid or suspected Covid patients in the public hospital system?

PN748

MR ROBSON: I am unaware of that, sir, and certainly we believe that the disability sector, as a subset of the community sector, it's funded in quite a separate way to the health sector. The disability is almost entirely funded through the NDIS. For example, in other parts of the community sector we've been able to work with the New South Wales Department of Human Services to develop new ways of providing for care in youth services. That's a state situation with a different funding scheme. This is the disability sector, funded through the NDIS.

PN749

VICE PRESIDENT HATCHER: What's the relevant difference between the disability sector and, for example, the aged care sector?

PN750

MR ROBSON: Well, firstly there is significantly different funding arrangements. The NDIS finishes at the age of - - -

PN751

VICE PRESIDENT HATCHER: The issue of wages and allowances in awards is not dependent upon whether - the way the employer is funded.

PN752

MR ROBSON: No, of course not.

PN753

VICE PRESIDENT HATCHER: Based on industrial principles concerning health and safety and work value and the like - I'm trying to ascertain for our purposes and having regard to the modern awards objective, what considerations make the disability sector different from the aged care sector?

PN754

MR ROBSON: The starting point would be that the work is fundamentally different. I think this is in respect of the SCHADS award reflected by the fact that home care workers, who are almost entirely engaged in the aged care sector, have a different stream of classifications. I think that is a relevant comparison. They are primarily focused on providing personal care. They don't have the element of work that is the support work element, the welfare work element that focus on well-being and expansion. My understanding is that the direction from the Commonwealth government is that during the Covid-19 pandemic, if an elderly person receiving the home care support is suspected or diagnosed then that person is supposed to be taken to hospital because of their risk and in=home supports cease.

PN755

So the home care worker wouldn't be working in the circumstance. The duties that disability workers have; any additional disability simply aren't an issue for those workers.

PN756

VICE PRESIDENT HATCHER: Thank you.

PN757

MR ROBSON: So starting from the perspective of the people receiving the care, this application is made in the context of a global pandemic, which is unprecedented. If you go to fact sheet 11 of the bundle of documents that were provided to Mr Hyland, the example given is of the SARS pandemic and the fact sheet references that 800 people died of that pandemic. There have been hundreds of thousands of deaths in the Covid-19 pandemic, millions of people have been infected and many more millions have been locked down. We say that there is just no - it just cannot be sustained, any submission that there isn't any significant difference between Covid-19 and another infectious disease.

PN758

This is the evidence from both Mr Hyland and Mr Richardson that is an unprecedented situation for their organisations. Whether it's measles or HIV, they don't have the same level of infectivity. They are not spreading rapidly around the globe. They've existed for many, many years and we have treatments, vaccines in many cases, and very clear evidence about the types of techniques and activities that will allow us to minimise risk. So we say this is an unprecedented situation requiring an unprecedented measure and this is why our application is expressed in two ways: firstly, that it shouldn't set any precedents. We see this as an application being made to deal specifically with the Covid-19 pandemic and we believe that the evidence makes out that this is quite separate from anything else that is being considered.

PN759

Indeed, the last time we had a global pandemic of such a size was in 1918. The award system was in its infancy. It just is simply a completely different industrial relations set up and certainly not - certainly, we haven't had a pandemic of this significance since the creation of award regulation of work in the disability sector or even in the community services sector in general. Coming from that, what we've seen in the evidence is that there have been changes to a person's work in general during the Covid-19 pandemic but in fact when supporting a client who has Covid-19, these changes are greatly intensified.

PN760

This work is very different from the work that a support worker normally does. Mr Richardson just gave evidence to this Commission where he explained the change. In a normal support worker's role they are going out into the community with their clients; they are doing everything that they can to support that client to live as fulsomely and as happily to achieve their ambitions, to do the things that they want to do, whether that's learning how to cook or simply being able to get out of bed and put on the clothes that they wear every day themselves. That's the day-to-day work of a support worker.

PN761

When there is a suspected case of Covid-19, that work slams to a halt. The clients can't leave the house. In many cases, they can't even speak to the people that they live with if they are in group homes. I think it's really important to stress to the Commission that this group home, it's not an institutional setting. It is the client's home. This is where they live. The people in that home are their housemates. They're their friends. They're the people they sit on the couch with in the evening. They are the people that they play board games with. They're the people they share a cup of tea with. It is a significant disruption to their lives to have that broken apart. Indeed, in a private residence the client will probably not be able to speak to their family, whether they live with their parents. That's especially likely for an older person with a disability who might be living with an aging parent. That puts them in an at-risk group. This person's life is completely disrupted, the person with a disability.

PN762

What then changes - as described there an important part of a support worker's job is the management of those behaviours, whether that is even just a basic explanation of what's going on or more complex work required to ease physical or verbal aggression. Mr Hyland in his statement - and I'll take you to the point - talks about this work from his context of an organisation that supports people with an intellectual disability. This is paragraph 24:

PN763

People with a disability, especially if they have a cognitive or intellectual disability, can have challenging behaviours and they can be more extreme or harder to manage than a person who doesn't have that disability. They can be expressed in different ways, whether it is aggression - physical and verbal - whether they become scared and retreat into themselves or even sexualised behaviours.

PN764

MR ROBSON: As Mr Hyland says at paragraph 24:

PN765

If they are sufficiently serious the customer may need treatment by a clinical psychologist. These behaviours are exacerbated by stressful situations like self-isolation.

PN766

MR ROBSON: He says:

PN767

They are serious and could have long-term impacts on the emotional wellbeing of the customer.

PN768

MR ROBSON: Managing the client's behaviour is not simply a matter of being nice to someone. It's not a matter of being caring. It's actually about their wellbeing and the protection of the employee. We add to that the additional use of PPE, the fact that when there is a suspected or confirmed case are required to wear masks, gowns, foot covers - that is Ms Brown's evidence - constant use of hygiene techniques; so cleaning doorknobs, cleaning them after they've been touched, installation of new technology because people aren't able to leave their rooms. All of this adds up to more and more work for the worker in the home, more stressful duties, more environmental stresses, such as the emotional disturbance of their support - of the people they are supporting. This also combines with the very legitimate fear they may have of working in a circumstance where it's a disease that can spread like wildfire. We don't have a cure for it. We don't have a vaccine for it. It has existed for nine months so we don't even necessarily know what techniques are guaranteed to protect you against the virus.

PN769

This isn't HIV AIDS, which has existed since the '80s and there are very well-established protocols for dealing with it. I believe Ms Fratter talks about that. This isn't the measles. This isn't the flu. This is the biggest disease that's hit the world stage in a century. That is what we say is the underlying basis of the allowance. So that goes to section 139(1)(g)(ii) and (iii) of the Fair Work Act. That says the modern awards may provide for allowances that concern - in the case of (ii):

PN770

Responsibilities or skills that are not taken into account in the rates of pay and disabilities associated with the performance of particular tasks or working in conditions or locations.

PN771

MR ROBSON: While we would accept that there is a certain level of PPE used that is expected in disability work and has always been accepted in disability work, we say it's ridiculous to submit that a classification structure that dates from 1992 could have accounted for a pandemic - for the work required in a pandemic of this global extent. This is not part of normal work. This is not work that would have been contemplated when that structure was being implemented. It is certainly not something that - there is no point or any case that anyone can point to where this was contemplated by the Commission or any Commission in its deliberations. This is novel.

PN772

Certainly, the stress associated with this work, the overwhelming fear - well, we also say that is something that hasn't previously been contemplated in the setting of pay in the sector. There has been some questions about the setting of the value of the allowance and we went into this in our outline of submission. The value of the allowance is set by reference to the difference in pay between a SACS level 3.1, who is paid under the equal remuneration order in New South Wales, and that between a 4.1. Why was this amount picked? It's not a higher-duties allowance. The issues associated - it's not appropriate to remunerate these workers by simply bumping them up a level because it's not just simply additional duties, it's additional disability. It's the stress, it's the fear, it's the intensification of already existing duties. Level 3.1 is an appropriate reference point because it is a point at which complex care is priced under the NDIS price guide. Most disability support workers would be priced at level 2. But essentially, setting an allowance is a value judgement. There is a consideration of the multiple factors that go into it and in this case the difference between a level three worker, someone providing complex care like Ms Fratter, who may be more likely to deal with the more extreme cases of Covid-19 is probably the appropriate starting point.

PN773

A flat dollar amount is administratively simple, tied to the standard rate. It reflects the additional duties that they have to undertake, the intensification of work while supporting a client with Covid or a diagnosed client, and the fears and stresses that arise from doing that work, whether it's the fear for their person or dealing with the stresses of the people they are supporting. Of course, we have to say that we're not seeking this allowance as danger pay. The money doesn't cure the defect. We've heard from Mr Hyland and Mr Richardson and indeed from Ms Brown and it is also Ms Fratter's evidence that there are procedures and policies in place to minimise risk and that's the appropriate way to deal with it.

PN774

The use of PPE, the use of social distancing; that's how you cure it. That doesn't take away the fact that there are more duties performed more often in a more stressful and fear-inducing circumstance than there has ever been.

PN775

VICE PRESIDENT HATCHER: Does it follow from your claim that the ASU accept that a direction for an employee to continuing providing support to a client who has been diagnosed with Covid would be a lawful and reasonable direction?

PN776

MR ROBSON: If it was safe to do so.

PN777

VICE PRESIDENT HATCHER: That's the point, isn't' it? I mean, nobody is in a position to say that with all the PPE in the world that it's safe to deal with an infected patient. That's just not possible to say, is it?

PN778

MR ROBSON: Look, I suppose the issue is that this allowance would apply in circumstances where there is a lawful and reasonable direction. There are guidelines from the state and territory governments that they believe minimise the risk to the employee and to other clients and to the organisation of infection. There are practices that they've been directed to take, quite extreme practices of hygiene and cleaning. If an organisation weren't undertaking that work we would certainly say that's not a lawful and reasonable direction. I think the issue is that yes, there is some risk associated with that work but I don't believe this Commission or any of the parties associated would say that the existence of any risk would necessarily mean that work is unlawful. We have a system of work health and safety rules in this country that put prescriptions on how work is performed to make sure that it's safe, that require organisations to have practices to protect people from risks and ultimately so that if it's too dangerous to do, don't do it.

PN779

This allowance applies in a circumstance where an organisation behaving lawfully sends a client in. The allowance isn't to compensate for the risk of infection of Covid-19. That, we say, would be inappropriate for the Commission to do. It's the additional work that Ms Brown and Ms Fratter describe. It's the intensification of work and the stress and fear and working with people who are scared and stressed.

PN780

VICE PRESIDENT HATCHER: Thank you.

PN781

MR ROBSON: Moving on from that, that's the value of the allowance. We say this is something that the sector can afford. There has been some evidence in these proceedings about the types of funding that are available to organisations. The first thing to say is that we're three organisations who have put their hands up, who have costed the allowance and have explained it and we've gone into some discussion of that. There has been additional funding from the government, some of which has ceased. But also in the case of (indistinct) an additional $1,200 a day to accommodate support for a client who has been diagnosed with Covid-19.

PN782

It's the evidence of Mr Richardson that in fact his organisation has spent a total of $1,900 in the past little over a month, which is in many ways the height of the pandemic. Mr Hyland again also wasn't cross-examined on his estimates of the cost so in fact Mr Richardson on cross-examination was able to explain he feels more comfortable now than when he actually agreed to the entitlement. We say this is - if there is an argument about capacity to pay, it's just not sustainable. I think that brings me to the close of my submissions, your Honour. Thank you.

PN783

VICE PRESIDENT HATCHER: Thank you. Do any of the other union representatives want to add anything?

PN784

MS LIEBHABER: Vice President, I was planning to make a few short remarks in closing.

PN785

VICE PRESIDENT HATCHER: Go ahead.

PN786

MS LIEBHABER: Thank you. The HSU supports the submissions of the ASU and we also rely on the outline of submissions previously filed, but I'll just make a few additional remarks. The parties opposing this application seem to paint Covid‑19 as simply another kind of infectious disease which disability support workers would have experience dealing with.

PN787

For example, AiG's submission on 25 June argues it's not unusual for employees to perform work with clients who suffer from an infectious disease and ABLA has made similar submissions, and has drawn attention during cross‑examination to pre‑Covid infectious disease policies. For example, Lifestyle Solutions, and they have also filed - which is at exhibit 8 - infectious diseases policies from Life Without Barriers.

PN788

As Mr Robson has said, it's clear that what we are currently living through is not a normal disease and Mr Richardson stated this in his evidence this morning; that the disease is not yet well understood, highly infectious, there is no cure and there is no vaccine. We know the only method available to slow the spread of the disease is social distancing. That's why we're currently all attending this hearing online and most of us are attending from the safety of our homes.

PN789

The employees who are subject of this application are not able to maintain social distancing from their clients, who will often still require care and support even if they contract Covid. This is emphasised in Ms Fatah's evidence. In paragraph 36 of her statement she says:

PN790

We attempted to practise social distancing with the residents and each other. With residents this presents as difficult as we are supporting residents with showering, toileting, brushing their teeth, dressing and undressing, et cetera. It is impossible to practise social distancing in these instances.

PN791

As my colleague Mr Robson has also said and as Mr Richardson said, as well, this morning, a group home or a supported living environment is not the same as a hospital environment. These are people's homes. Support workers aren't nurses or doctors or health professionals. They are not used to donning and doffing PPE on a regular basis. Gowns, goggles and shoe covers are not commonly worn in disability services. Ms Brown's evidence spoke to that yesterday.

PN792

Before Covid, sure, gloves may have been worn and support workers would have acquired a basic understanding of infection control, but it's nowhere near the level of PPE and additional procedures in relation to cleaning, in relation to maintaining logbooks of visitors, laundry procedures and so on that are required in this Covid‑19 environment, particularly when dealing with a client who has the disease.

PN793

This is supported by Ms Fatah's evidence on page 40 of her statement. She says she has worked with clients with other infectious diseases such as HIV and hepatitis, and what is required in relation to those diseases is a good solid understanding of universal infection control guidelines, and that these infectious diseases are very different in their nature in how they're contracted and spread compared to Covid‑19.

PN794

Yesterday we filed a bundle of documents, which were marked exhibit 7. Those are the policies and procedures relating to Covid‑19 from Ms Fatah's employer, Life Without Barriers. That organisation has also made a submission in support of the application. As I mentioned, it has introduced a Covid‑19 complex care payment, which is a payment for staff who provide direct face‑to‑face support to a client who has tested positive for the virus or is suspected to have the virus. That document is the first document in that bundle, in exhibit 7.

PN795

The second document in that bundle is a 16‑page document titled "Infectious disease Covid‑19 response procedure". Page 2 of that document states that the procedure is an addendum to the infectious diseases procedure and specifically provides guidance on a number of dot points, including strategies to manage risks of contamination when supporting someone with Covid‑19. Particularly relevant is page 5 onwards which details all the precautions that must be taken when there is a confirmed case of Covid‑19. That starts with the heading "Second tier precautions". For example, pages 5 to 6 states:

PN796

The minimum PPE to be worn always within the house when there is a Covid‑19 infection will be as follows: Long‑sleeved gown, P2/N95 respirator should be checked with each use, face shield or goggles and disposable non‑sterile gloves when in contact with patient.

PN797

If you compare this to the so‑called regular infectious disease policies which were filed by ABLA and which are contained in exhibit 8, you know, there is quite a difference. Under regular infection control employees are required to wear full body gowns when there is a risk of extensive skin‑to‑skin contact or a risk of contact with blood and bloody substances, or a possibility of extensive splashing of blood and body substances. A surgical mask and eyewear is only worn when there is a procedure that may generate splashes or sprays of blood, but in the specific Covid infectious disease policies those PPE are required to be worn all the time while in the house.

PN798

The document that I was referring to, the "Infectious disease Covid‑19 response procedure", has further instructions around - for example, on page 6, a staff log is required to be maintained for monitoring potential breaches of infection control. If a potential or known breach occurs, it has to be logged via eyesight and Life Without Barriers national Covid‑19 response call centre. There are a number of requirements around that, including appropriate signage, management of visitors, contractors, family members. Employees cannot work in another house if they are working in a house infected with Covid‑19.

PN799

There are further dot points, such as removal of all non‑essential furniture and ensuring that remaining furniture is easy to clean and does not conceal or retain dirt or moisture within or around it. These are quite onerous requirements we would say. On page 7 on that first procedure, it sets out the minimum training required to work with a client infected with Covid‑19. That sets out seven dot points.

PN800

I believe apart from the first two of those dot points which refer to My Learning modules, the remaining five are included in that bundle in exhibit 7, which includes two toolbox talks and work instructions. The other documents in that bundle are instructions around PPE, so I won't take you to all of those, but they do provide quite extensive further training and procedures in relation to caring for clients who are Covid‑19 positive.

PN801

We say that what these documents show is that contrary to what the parties opposing this claim submit, there is a substantial and significant increase in infection control procedures when dealing with clients who have or who may have Covid‑19 in the disability support setting. This is also supported by the evidence we have had from members and employees in this matter. In addition, as Mr Richardson said this morning, a disability support worker's role isn't just to ensure that there is appropriate infection control. These are not medical staff. The environment where they work, they are not medical care environments.

PN802

Mr Richardson I believe said this morning that the role of a disability support worker is to support their clients to live a great life and even though the emphasis has been changed with Covid‑19, I think it's relevant that the role of disability support workers is also to provide social and emotional support to clients. It's not just to stop the spread of infection through use of infection control.

PN803

I'll just draw attention again to Ms Fatah's evidence, in paragraph 37 of her statement. She talks about the questions that she was receiving from residents about the passing of another staff member and about the wellbeing of the clients who had contracted Covid. She says:

PN804

The situation was unique, strange and stressful. It can be difficult to explain to people with intellectual disabilities why someone has passed, why they're not able to go out and enjoy the activities they usually do, why we are all wearing PPE, why we cannot truly support them in the way they are accustomed to, why we couldn't attend our friend's funeral service, why their families cannot come and see them, why they cannot go to day placement, et cetera. The list of questions is endless and they asked (indistinct) people the residents' trust.

PN805

For these reasons, as well as the reasons given by Mr Robson and those in our previous submissions, we say that the allowance is fair and relevant, and necessary to meet the modern awards objective in relation to disability support workers during this current pandemic.

PN806

VICE PRESIDENT HATCHER: Thank you. Do you want to add anything, Mr Bull?

PN807

MR BULL: No, your Honour, just that we support the application and we rely on the submissions made, including the initial written submissions. That's all we wish to say.

PN808

VICE PRESIDENT HATCHER: All right. Thank you. Who would like to go first on the employer's side? Any volunteers? Is Mr Warren speaking?

PN809

MR WARREN: Sorry, I was just on mute. I thought you were speaking first, Mr Arndt. I must be wrong.

PN810

MR ARNDT: I can do so. I can speak first, Vice President.

PN811

VICE PRESIDENT HATCHER: All right.

PN812

MR ARNDT: We have filed submissions on 1 May, 18 May and 25 June. We rely on those submissions. With reference to a matter I raised this morning, we note that the 19 May submission identified the propositions we seek to draw out of ABI1 to 7. I won't re‑ventilate those issues. I also note that in this proceeding the Commission issued a statement, citation [2020] FWCFB 2343. I make that comment at the outset because I might refer to it in a number of places during my submission.

PN813

In my closing submission I seek to address the evidence and I would seek to do so with some specificity, and to draw out three propositions. One, the applicant has failed to support the proposition that the use of PPE relevant to a customer that is self‑isolating or in fact has Covid is any different from the use of PPE for clients not in that class. The use of PPE is contemplated by the award and is contemplated by the pre‑existing employer policies that we have been through. We say that no additional case or disability has been made out which would justify the claim as sought.

PN814

Secondly, to the extent that the apparent disability is grounded in something else - an increased requirement to clean, requirements to manage customers' emotional states, requirements to monitor health of customers - all of these tasks we say are either in the ordinary scope of the relevant work or otherwise wouldn't justify the allowance as sought. I think I would summarise both of these points in the manner that has already been put in our written submissions.

PN815

Insofar as the application seeks to compensate employees for a disability beyond the ordinary course of their duties and one which is as implicitly asserted as currently not contemplated within the scope of the current award, that disability and requirement for the allowance should be established through evidence before the Commission. Our submission stated their no such evidence and I would add to that there's no such evidence which would warrant the granting of the allowance sought.

PN816

The last thing I wish to do in my submissions is to make good the point that even if such a disability had been made out, there is no warrant for the quantum of the claim. Indeed, no real attempt has been made to establish a rationale behind the quantum. We accept that it's a value judgment, but we say that the quantum is out of step with the evidence before the Bench and also when compared to other allowances, and we have addressed that in our previous submissions.

PN817

I might just deal with the first point before getting to the evidence, and I want to refer to the Full Bench's statement previously issued and specifically to paragraph 46 of that statement. At that statement at 46, the Full Bench stated:

PN818

It seems to us that the nature and extent of significant changes which are said to have occurred are central to the applicant's case.

PN819

The applicants were then invited to adduce evidence by the statement of the Full Bench and what they were invited to do was to adduce evidence of the infection control procedures required when working with Covid-infected patients, the extent to which those procedures differ from the procedures used in other types of infections, such as Hepatitis B, and how these infection control procedures make the work performed more difficult.

PN820

Now, further evidence has been adduced, but we say it doesn't satisfactorily meet this request in such a way that the Full Bench would be satisfied to make the claim. We say that there doesn't appear to be any meaningful difference between the extent that Covid procedures, which we have heard evidence about, differ from procedures used in other types of infections, such as Hepatitis B. We say that the evidence adduced doesn't satisfactorily meet this request.

PN821

We have seen evidence that seemed to go to the apparent increased difficulties of the work in the Covid pandemic environment. We say that these are in two categories: one, difficulties that are either unspecific to the relevant work which the allowance applies to and the apparent purpose of the allowance and, two, difficulties which would not be sufficient to warrant what is a substantial allowance, particularly when compared to other allowances.

PN822

I propose now to deal with the evidence specifically and in the most targeted way that I can, beginning with Ms Brown. We address Ms Brown's statement at paragraphs 4 and 5 of our 25 June submission. Ms Brown's statement disclosed only a suspected case of Covid. The cross-examination of Ms Brown, to my mind, disclosed that the primary disability associated with this episode was a requirement for additional cleaning, which Ms Brown described as "a little bit stressful". Ms Brown also acknowledged that that extra cleaning is still going on, so presumably is not connected necessarily with the diagnosis of a suspicion of Covid but rather a general requirement for infection control during the pandemic.

PN823

That evidence probably would be useful for a different claim, but, in this claim, it doesn't disclose the increased difficulties or disabilities which arise from the infection control procedures while working with Covid-infected customers.

PN824

Ms Brown gave evidence of having to dispose of PPE after use. As was demonstrated by some of the other material and several witnesses, disposal of PPE and careful removal of PPE is required in relation to any use of PPE. The nature of PPE is that you use it when trying to avoid an infection. It bears the brunt of whatever infection may be there and then you remove it to ensure that you don't infect yourself and the PPE remains infected and not you.

PN825

Ms Brown also gave evidence that she used gloves, not just in respect of infection control but in respect of cooking, showering, toileting, medicating and doing laundry in normal scenarios, if I can use that phrase.

PN826

Ms Brown gave evidence of the effects of the scenario or the circumstance on one of her customers, that the customer was bored, cried, asked questions and that her anxiety levels were raised a little. This is relevant to the extent that it made Ms Brown's job more difficult. We say, however, as has already been put, that the interaction with providing comfort to and answering questions of customers is part and parcel of the role of these workers, it is the job of these workers and, as Mr Hyland said in his statement, and we will get to him shortly, behaviour management is a significant part of what support workers do.

PN827

It is also worth observing that to the extent Ms Brown gave evidence of being required to fill out forms, this would also be an ordinary aspect of her role, as would other evidence she gives in her statement about being required to administer medicines in the right dose at the right time under strict hygiene conditions. This would apply generally at large. Regardless of Covid, regardless of any infection, that would be required in any case.

PN828

By way of final observation in respect of Ms Brown, her comments about the fact that PPE was not sufficient or needed to be obtained because it was not ordinarily kept on site we say shouldn't be relied upon to demonstrate an increased difficulty of the relevant work when dealing with Covid, a Covid-positive customer. Any failure to provide PPE or insufficiency of PPE is a failing of an employer and, thankfully, it seems to be remedied in that case.

PN829

Finally, to the extent Ms Brown relies upon the apparent increase of her work, increased risk of her work, we have addressed that in our written submissions, and that there should be a policy prohibition on the granting of danger money or hazard pay in respect of this case, I don't seek to elaborate on that any further.

PN830

VICE PRESIDENT HATCHER: Mr Arndt, do you accept that an employee could reasonably and lawfully be directed to provide care to a patient diagnosed with Covid?

PN831

MR ARNDT: That would be my position, Vice President.

PN832

VICE PRESIDENT HATCHER: Do you accept also that it would be - although risk can be minimised in accordance with established protocols, it would be impossible to say that the risk can be eliminated?

PN833

MR ARNDT: I think the evidence establishes that. I think the evidence establishes that that's the reason why you take several - you take several different types of - why these infection control procedures are multifaceted. It's not just relying on PPE, it's not just relying on isolation, it's not just relying on vaccines in some cases. It is a complicated process and there's no absolutes, so I would have to accept that.

PN834

VICE PRESIDENT HATCHER: All right, thank you.

PN835

MR ARNDT: To just finish on this ground, I don't seek to cavil with her evidence that this period has been difficult and that her work in the last few months has been stressful. Notwithstanding that concession, her evidence doesn't make out that her infection control procedures or the infection control procedures she is required to undertake while a resident is suspected of Covid was different was different and any more onerous than those procedures which would apply for any other type of infection.

PN836

Moving on from Ms Brown to, I guess in sequence, Ms Cudmore, who was our witness. Ms Cudmore is a registered nurse and has a Masters of Public Health, she is operating a large business and, in our submission, is extremely well versed in the clinical infection control procedures which are required and which are the centrally relevant point in issue in this case.

PN837

We say the evidence Ms Cudmore gives in respect of the standard infection control procedures is similar to that given by Mr Hyland, and Ms Cudmore identifies that that additional Covid protocols have been implemented based on these existing principles for management of known existing infectious diseases in the community.

PN838

The relevant parts of Ms Cudmore's statement which I would rely on are 37, 38 and 42, and perhaps just in finishing off Ms Cudmore, I can read out that last paragraph:

PN839

The new Covid-19 procedures that we have implemented follow similar protocols and risk assessments as for any other infectious disease that our staff will encounter during the course of their work.

PN840

We say that Ms Cudmore's evidence directly answers the question posed by the Full Bench in its statement at paragraph 46 and it answers it in the negative.

PN841

Moving on to Mr Hyland, who we heard from yesterday, we address Mr Hyland's evidence at paragraphs 12 to 15 and 24 and 25 of our 25 June submissions. Mr Hyland is obviously a CEO and is an accountant. I thought he was cooperative in that he engaged with the infection control materials that were presented to him. I would note he hadn't actually seen anyone working in respect of a Covid isolation or suspected Covid case.

PN842

He gave evidence that the infection control procedures applying in his organisation pre-Covid had been drafted to reflect the quality standards applying in the industry and the relevant legislative standards that applied to his organisations. He acknowledged that these policies related to infectious diseases with the same transmission methods as Covid, which is important because, obviously, the transmission method is relevant to the precautions that need to be taken.

PN843

When I took Mr Hyland through the material, I think I can summarise it by saying that he acknowledged that these policies required his employees to wear gloves, to wear those gloves subject to a protocol which complied with health regulations and to dispose of them after single use. He acknowledged that employees were required to wash hands immediately after removing gloves and generally practise hand hygiene. He acknowledged employees may need to wear gowns or aprons, to wear face masks, eye protections, sort and wash contaminated linen separately, conduct effective environment cleaning, provide care to customers while they are sick and monitor the health of sick customers, to call ambulances or doctors where necessary and to liaise with families and customers to keep them informed of the management of an illness or outbreak and to explain the process of what was happening. This is all pre-Covid.

PN844

Mr Hyland's organisation already actually had an epidemic/pandemic and outbreak fact sheet and he also accepted that the pre-existing policy position was that customers are to stay at home and away from other people while they are contagious and accepted that social isolation or quarantine would apply to any customer who was contagious with any disease. That shouldn't be controversial and it shouldn't be surprising; it makes sense even to a non-medical person.

PN845

When it was put to him that all of these things were the same things that were required, that all the things that were required pre-Covid are required in the Covid pandemic and that essentially the same things were required of the staff now, he said it was - I agree he said it was a simplistic but true statement, was his evidence. Now, in terms of the simplicity of that statement, it appears the nuance or complexity of the situation for Mr Hyland was, one, the fact that isolations in respect of Covid are enforced by public health order. In our submission, that would be a fairly administrative difference or distinction.

PN846

The other difference he raised was the fact that Covid isolations were for 14 days instead of 48 hours, which was his evidence which he asserted applied to other diseases. Presumably, going back to his statement, that's what he means in his statement when he says that the normal infection control procedures do not include the same level of social distancing and self-isolation as those of Covid.

PN847

Now, to that evidence we say, and we put this to Mr Hyland, that it can't be the case that all non-Covid infections are a 48-hour isolation proposition. We don't accept that proposition and Mr Hyland acknowledged that it would depend on the disease and that he wasn't sure of the precise isolation time or quarantine time of something like SARS.

PN848

Even accepting his evidence, it is not apparent to us that a longer isolation period would necessarily mean that the Covid isolation procedures are relevantly different from the procedures used in other types of infections, again returning to the Full Bench's statement at 46, particularly in relation to the fact that this is an hourly allowance.

PN849

Mr Hyland finished his evidence by acknowledging that the difference was in the length of isolation not in the nature of the isolation. We say that if the work is the same, we say that no disability arises notwithstanding that the work continues for longer. Obviously, the longer you work, the more you get paid.

PN850

With respect to the increased load placed on disability workers to communicate with customers Mr Hyland gave evidence that it's part of the disability worker's role to engage with customers, I have already addressed this. Mr Robson in his submissions this morning he referred to the wholesale changes that Mr Hyland's organisation has had to undertake during the pandemic. Mr Robson referred to the comparative global infection death rates of Covid versus SARS. He compared the current situation facing the world with that applying with the H1N1 pandemic in 1918.

PN851

With respect to those submissions we say the question is not whether Covid-19 has had a substantial and unprecedented effect on the world. The answer to that question we would say is pretty obvious. The question is has the specific work changed. Further to that we say the comparator isn't normal work when people are well. If that were the case this case could be run as a general isolation allowance claim. It wouldn't need to be connected to Covid and it wouldn't need to come in now or it wouldn't need to be run now. We say relying on - perhaps not relying, but consistent with the question posed at 46 of the Commission's statement the relevant comparator is the procedures used in respect of other types of infections, not normal work.

PN852

Two last points of Mr Hyland. He couldn't help us on why $4.94 was appropriate, but he did give us evidence which sheds light on the difficulties in providing this allowance for suspected cases. He was pushed quite hard on this. Initially he said you wouldn't get the allowance if it was just a suspicion and you wouldn't get paid if there was a negative test. In re-examination Mr Robson reminded him as to what was in the policy and he acknowledged he did have some discretion as to apply the payment in that context, but the answer that he gave suggested that this would only apply where the employee was in some financial difficulty. That's hardly a ringing endorsement of the union's claim in that respect.

PN853

We say the Full Bench should accept Mr Hyland's evidence where he described the payment for a suspected case as having the potential to go on and on ad nauseam, I am quoting him, the potential to go on and on ad nauseam without any evidence to say that there has been a case. He described this as a grey area for his organisation, and his organisation being a strong supporter of the claim. This in of itself presents a significant question in respect of that aspect of the claim. I don't need to say anything else in relation to Mr Hyland's description or endorsement of this entitlement as federally mandated hazard pay, because we have already addressed it.

PN854

Moving on to Mr Richardson, I will be very brief, and I would rely on the other employer parties to deal with Mr Richardson principally. The only additional point beyond the written submissions we have made about Mr Richardson would be his evidence this morning that additional Covid precautions were necessary because the risk was higher, and the submission we would make to that evidence is obviously that wouldn't hold absolutely. Death rates and infection rates vary in relation to diseases, and again Mr Richardson's evidence shouldn't be used to support an application for hazard and danger pay.

PN855

Dealing with Ms Fatah, and Ms Fatah was not called, and we have already addressed in our written submissions dated 25 June 2020 at paragraphs 6 and 9 the limitations we say should be put on Ms Fatah's evidence. For the purposes of today I would just refer to one issue. We filed in the course of yesterday materials in respect of her organisation which disclosed the pre Covid position, and that discloses that her organisation would have required her to perform hand hygiene before and after every episode of client contact, or an infectious contagious disease was present, to perform routine hand hygiene after touching a client infected with a contagious disease; to perform the same routine, hand hygiene, after touching a client's surroundings who had an infectious contagious disease; that hand hygiene would need to be performed with hand sanitiser.

PN856

Those policy documents also require an employee in Ms Fatah's position to wear a mask or face shield or eye protection in relation to infectious diseases. I will just take one issue with the characterisation of that evidence by Ms Liebhaber this morning, and the reference is page 3 of that exhibit. We say that the mask or face shield wouldn't be restricted to splashes or blood or bodily fluids, but it would be related to infectious diseases more generally where such PP equipment was required. The evidence also goes to wearing gowns and aprons, to wearing gloves, implementing environmental controls including cleaning spills, to clean surfaces that are close proximity to the client and frequently touched surfaces that should be cleaned frequently using disinfectant wipes. It relates to the use of high grade detergent solutions that must be used on all walls, floors, sinks, wash basins and door knobs where there has been a contagious infected client, all of this being pre Covid.

PN857

Those policies and those obligations shouldn't be surprising, they should follow quite straight forwardly from the types of the diseases and the types of contagious infections that existed pre Covid and we say they're relevant to the comparison between that work and the work which is needed to be performed now relevant to this claim.

PN858

In terms of Ms Hollywood's evidence we don't intend to say much. It is certainly not disputed in any way, shape or form that the human rights belonging contribution and potential and diversity of all people with disability should be recognised, respected and celebrated. That being said we say that this statement is of limited probative value in this case and therefore I don't need to say anything further on that.

PN859

I want to conclude now by making some comments about the drafting of the clause. It is the second go of this clause. In our original submission we made some submission in section 6 of our original submission which were acknowledged by the Full Bench in its statement to have some force. The applicants were entitled or requested to refrain their claim and the claim was amended somewhat. It includes now close personal contact with the relevant Covid customer, but the claim on its face still does not deal with in ABI's submission with the fact of enhanced hygiene procedures and the need to follow them, the need to wear PPE, the asserted responsibility in following the enhanced hygiene procedures for wearing PPE.

PN860

VICE PRESIDENT HATCHER: Sorry, Mr Arndt, I don't have the statement in front of me, what paragraph of the statement are you referring to?

PN861

MR ARNDT: I will just find it. The specific question was question 7, but I will just find - I mean I think technically it's paragraph 54. It's question 7 which is red under - as in the colour red - under paragraph 54.

PN862

VICE PRESIDENT HATCHER: Thank you.

PN863

MR ARNDT: To summarise the submission I was making we are still left not really knowing why this is a different scenario to an employee working with a customer with a different infectious disease. We say that PPEs are already contemplated in the award. All of this was part of the pre Covid set up of these organisations, and particularly we say there's no evidence to suggest that a specific allowance is warranted in the quantum sought. We haven't really got much help about quantifying the allowance. Mr Hyland relies on the union's claim to make out the allowance that he's providing to his employees.

PN864

To the extent that the evidence stacks up to warrant anything it doesn't approach the quantum sought, and we have already addressed that in our submission. What allows us to say that is that employers do have a responsibility to take all necessary precautions to keep these workers safe so far as is reasonably practical. Your Honour has indicated this morning, and I would agree, that that could never be an absolute standard of safety, but there is the responsibility on an employer to do all that it can to ensure safety, and that's supported by a substantial framework of regulations that apply to not only this industry but all industry. We say that employees shouldn't be compensated for running a risk. To the extent that that ground is relied upon at all it shouldn't be adopted.

PN865

The relevant question we say is what are the responsibilities or skills that are not taken into account in the rates of pay currently. What are the disabilities associated with the performance of particular tasks or work in particular conditions. Now, I am taking that directly from section 139. We say that reviewing the evidence we don't find answers sufficient to support the making of the claim, and those are my submissions.

PN866

VICE PRESIDENT HATCHER: Thank you. Mr Warren, are you going to go next? Sorry, you have got your microphone off, Mr Warren.

PN867

MR WARREN: I have got it on now hopefully, your Honour, if I can be heard and seen. Your Honours, thank you for that. Can we make five fundamental points. First of all we note our submissions that AFEI filed on 1 May and further on 20 May this year. We won't go into the same detail that Mr Arndt goes into with respect to the evidence. We don't want to repeat that. We want to emphasise a number of issues.

PN868

Firstly it is clear that the application seeks an allowance to be paid in certain circumstances. Clearly central to that is the potential or real Covid-19 infection potential. The reach of the responsibilities and duties identified in the award, particularly with respect to Level 2 and 3 social community service employees, are identified in the AFEI's submissions filed on 1 May in paragraphs 3 and 4. It is noted the broad reach of those definitions, and clearly the submission of AFEI is that that reach of those definitions and responsibilities take into account any nuances or differences that may arise as a result of the introduction of Covid-19 into our industrial situation.

PN869

It is clear, we say, that the award structured in broad terms is written in such terms that allows for if there is any additional responsibilities or work or new types of work involved in the implementation of Covid-19 precautions then that is clearly covered when one looks to the type of definition found within the award. The employees are observed in the award to be capable of looking to unusual circumstances, circumstances which are out of the ordinary. It's impossible in any award situation of course to stipulate every circumstance that the employee might come into contact with, might come within their realm of need for work, and we say clearly the definitions and responsibilities that are identified in the AFEI's submissions which are found in paragraphs 3 and 4 of those submissions deal with that situation. There is not a unique - - -

PN870

VICE PRESIDENT HATCHER: You say the award covers the work of being in close contact with somebody with a highly infectious and deadly disease?

PN871

MR WARREN: The award covers a situation where there are, and I will read directly from the award:

PN872

Perform tasks of a sensitive nature including provision of more than routine information. Assist in the range of functions or contribute to interaction, interpretation of matters for which there is no clearly established practice or procedure.

PN873

Your Honour, enmeshed in an answer to your Honour's question goes to the situation of - you look at the occ health and safety and workplace health and safety provisions, and I will take the Commission to that, found within for example in the link material in exhibit 2, that the type of potential for an infectious disease and the contact with infectious disease is clearly contemplated in the policies and procedures prior to the introduction of Covid-19, and the award in its broad terms clearly doesn't say: and with respect to Covid‑19 this is what occurs. The award is, we say, deliberately structured in broad terms to allow an employee to be employed in circumstances where the employer and the employee meet that new circumstance and deal with it, and construct appropriate policies and procedures around dealing with that changed circumstance.

PN874

VICE PRESIDENT HATCHER: So the answer to my question is yes?

PN875

MR WARREN: The answer to your question is a qualified yes, your Honour, because it doesn't - your Honour's question was in terms of Covid‑19. The award does not deal with Covid‑19 in terms of the words, "Covid‑19", but the award clearly envisages people in their normal workplace coming across circumstances which are beyond the established practices, and that a person then has to deal with those circumstances. I mean, when one looks to the evidence of Ms Brown yesterday and the way she was describing having to deal with a person who was emotional, confused, that's the very work that these people do every day of the week in dealing with people in sensitive situations and in delicate situations, and in changing situations. That's the nature of the work that these people are employed to do, and it's covered by the award.

PN876

VICE PRESIDENT HATCHER: Thank you.

PN877

MR WARREN: Thank you, your Honour. So when one looks to the procedures of Link, for example, those policies and procedures were put in place long before Covid‑19 came on our unfortunate horizon. When one looks to the policies, for example, and I'm referring to exhibit 2 now, at page 103 is the adoption of infection control procedure that was last edited on 25 September 2019 that was last edited on 25 September 2019. It goes into significant detail about hand hygiene, respiratory hygiene, gloves, gowns, aprons, face masks, et cetera. This was a policy in place, an instruction in place to employees prior to Covid‑19. This particular policy wasn't created as a result of Covid‑19. It was already there and implemented, and indeed, when one looks at the type of infectious diseases that could be potential - one looks at HIV/AIDS, one looks at hepatitis, and the other various infectious diseases that have had a run in these proceedings to date. It is clear, we say, that the type of policies - and that's indicative of the type of employer policies that are currently in place - employers have been dealing with infection control in these circumstances of employees covered by this award, and have put in place clearly safety mechanisms to deal with those infectious controls.

PN878

Your Honour was asked various (indistinct) beforehand with respect to whether the employers can guarantee or make it without doubt a safe environment. The employers have clearly made - have put in place workplace health and safety procedures that protect the employee as far as is reasonably practicable, and that's clearly the extent of their obligation under the Act, but once more, there is no evidence at all before the Commission that those policies and procedures have failed at any stage. They are in place and they are working. The need for disposal of PPE equipment in a safe and efficient manner is dealt with once again in the Link policies, looking at pages 131 to 135 of exhibit 2. It deals with the disposal of waste as a result that may have been contaminated. So your Honour, it is clear that the workplace health and safety procedures, which are in place, (a) are working, and (b) there's simply no evidence to suggest, or could suggest, that they are inadequate.

PN879

That being the case, the type of disability that is being described as a need for some recompense for that disability does not exist. When one also looks at the - and thirdly, of course - one looks at the evidence given by Ms Brown of some indicated anxiety and stress put on staff, I merely refer once again to the policies of Link, which have been put within these proceedings, and I look at page 12 of exhibit 2, and once again the accommodation coordinator says, and I quote:

PN880

Don't forget please to contact the employment assistance provisions for support and give the phone number. As explained, it's a free and confidential counselling service and operates 24/7.

PN881

And the person concerned attaches a flyer and encourages people if they are feeling and have a need to seek additional assistance. That additional assistance - emotionally of course - that additional assistance is clearly catered for and provided for by employers in this industry. There's the ability of the employee, if the employee feels particularly overstressed, to seek assistance and counselling on a very confidential basis. And apart from that, one then goes back to the original concept of these employees' duties. A fundamental part of their duties is indeed dealing with people who may have a propensity for stress, may have a propensity for anxious conditions, and that's their training(?), it's what they do, and to suggest that it's something unusual as a result of Covid‑19 is the extension.

PN882

It was emphasised within the AFEI submissions in writing, both on first instance and on 20 May, the fundamental submission is that you don't pay for safety, and that is central to the employers' submission in case in this matter. The evidence is that the employers have comprehensively adopted procedures, and modified existing procedures, or emphasised existing procedures, as the development of Covid‑19 and the public response and governmental response to it has occurred. The evidence in exhibit 2 is quite replete with updates on Covid‑19 and reminding persons of their ability and need to work safely when dealing with persons with Covid‑19, or potentially with Covid‑19, but that is no different in policy or in action than dealing with any other guest or client, with any other sort of different infectious disease. The type of policies applied for dealing with infectious diseases is the same as the policies applied in dealing with a person with Covid‑19. They are comprehensive and they are already in existence. It would be wrong to then say that an employee requires an additional payment for the provision of a situation where the employee may be exposed to a difficulty with Covid‑19. You don't pay for safety. You make it as safe as possible, as safe as reasonably possible - practicable, and indeed, your Honours, Commissioner, you will note the references in the AFEI submissions of 20 May. Certainly it's readily admitted that the cases that have been able to be found are old cases, but the principle remains the same. The principle remains the same and has been in place, it would appear, for at least 100 years, both in the old Commonwealth Court of Conciliation and Arbitration and in the Arbitration Commission, that you don't pay for safety and you make things safe, or the employee indeed should not be in any stage asked to work in an unsafe environment.

PN883

VICE PRESIDENT HATCHER: I think there's a limited exception to that, which applies to essential service workers, that is, if the service is essential, it just can't not be done, but there's a risk which can't be eliminated with whatever safety measures are available, that is, constantly it's an exception.

PN884

MR WARREN: Your Honour, we note that - - -

PN885

VICE PRESIDENT HATCHER: It's not like a building project where if something unsafe happens, you just close it down, you stop, rectify it, then you start again. When it comes to some services, such as essential health and care services, that's not an option.

PN886

MR WARREN: And we recognise this is an essential service, and it has been declared - we recognise that, your Honour, but it's not a question of that's not - with respect, not an option. There is no evidence that it is the case. There is no evidence that the safety procedures that have been put in place have failed, and once again, all the employer can say is they will make it as safe as is reasonably practicable, and no one - I note your earlier questions to earlier advocates, your Honour - no one can say it is absolutely guaranteed to be 100 per cent safe, but there has been nothing identified in any of the procedures that are in place with respect to workplace health and safety in the industry that have been shown to be: well, that didn't work, or there's a potential failure. No one has come forward and said here's a potential failure, here's what's wrong, and the employer can say well, look, I'm sorry about that but you're just going to have to work through that, because this is an essential industry.

PN887

I note your Honour's comment, and it's a clear fact that this is an essential service industry - it has been declared as such - and if that be the case and there was a potential for unsafe work, then it's really a matter in terms of saying well you're just going to have to bight the bullet and do it. But that isn't the evidence in this case. No one has come forward and said oh, my PPE failed. There has only been one incidence - and that was I think disclosed this morning in Mr Richardson's evidence - of one incidence of a person who has actually contracted or tested positive to Covid‑19, and that was a person who was at that time under remote care. So there's - the unions have failed to put forward evidence to say well, look, you've said this is a safe way of doing things, you've said you've provided PPE which is safe, but it isn't safe, and it hasn't been safe, and we say the onus is clearly on the applicant to show the Commission that the provisions that are in place now aren't safe, but they've got to soldier on and do the work in any event. That's not the case here, with respect, your Honour.

PN888

If I could further emphasise, apart from the paper danger matter, we note in the applicant's submission of 28 April at paragraph 28, they indicate that a number of these people should be classified as "low‑paid workers." We note the submission in response by AFEI at paragraph 50 of their submission of 20 May 2020 where indeed it's identified that there are no employees covered by this award or covered in this case who are low‑paid workers in terms as defined. I am instructed that the lowest paid person nationally as a result of EROs, et cetera, and the minimum wage increases of 1 July 2020, the lowest paid worker is receiving a rate of $27.82 per hour. So it's not a question of the Commission looking at that part of the Act where you have to consider, in essence, whether these people are low‑paid workers. That is not the case, and we refer once again - - -

PN889

VICE PRESIDENT HATCHER: How does that follow?

PN890

MR WARREN: How does it follow? Well - - -

PN891

VICE PRESIDENT HATCHER: We know that a huge proportion of this industry are either casuals or part‑time employees. Why?

PN892

MR WARREN: I don't understand your Honour's question. It follows that the union is saying that there are some persons who are low‑paid workers. There aren't, in terms of the definition of what a low‑paid worker is.

PN893

VICE PRESIDENT HATCHER: But what submission are you relying on?

PN894

MR WARREN: Well, the definition in indeed the earlier statement of 5 May in paragraph 87, and I read from it:

PN895

The most recent data of the median earnings is for August 2019. The ABS characteristics of employment survey data on median earnings are also available in the survey of employer earnings and hours for May 2018. On the basis of that data from the survey, two‑thirds of the median weekly earnings of full‑time employees is $920. Data on median weekly full‑time earnings are also available from the survey of May 2018, and two‑thirds of the median earnings were $973.33.

PN896

And that throws an hourly rate of - - -

PN897

VICE PRESIDENT HATCHER: But that's the point, Mr Warren. They're weekly figures. They're not hourly figures.

PN898

MR WARREN: Well, the hourly - yes, but if you convert that to an hourly rate, your Honour.

PN899

VICE PRESIDENT HATCHER: But you would have to come - not low‑paid on the basis of an hourly rate you get, but not low‑paid on the basis of a weekly income.

PN900

MR WARREN: But the rate per hour that is described by the unions in paragraph 28 is speaking of an hourly rate of $22.69 - is the hourly rate that is paid to a level 2.1 employee covered by this award, and there's then the suggestion that these people are low‑paid people. So just using the unions' own calculations, we're saying the unions' calculations are wrong; that there is no employee paid $22.69 per hour. The lowest paid employee covered by this award and doing this work is $27.82 per hour. It's merely a response to the unions' submissions, your Honour, and the use of the unions' submission of the hourly rate to say these people are low paid, therefore that's an additional situation that the Commission should take into account when considering the allowance claimed in this application. We put it no more than that, but we say it's a response to the unions' position, and we say the unions are - it's just incorrect.

PN901

VICE PRESIDENT HATCHER: All right.

PN902

MR WARREN: Thank you, your Honour. In summary, therefore, your Honours, Commissioner, we say that the unions have not come over the threshold necessary to prove their case. They're seeking an allowance, which however it's dressed, however it's dressed by the union advocates, it is an allowance paid for persons working in what is seen to be a dangerous circumstance, and you don't pay for danger, and there is simply no evidence available to the Commission that has been put forward to say that the safety provisions put in place by the employers in this industry have failed, and as such, there is no basis whatsoever for the grant of the allowance. If the Commission pleases.

PN903

VICE PRESIDENT HATCHER: All right. Ms Bhatt, do you want to make any further submissions?

PN904

MS BHATT: Yes, thank you, Vice President. Ai Group has filed written submissions on 2 May, 20 May and 25 June. We continue to rely on all of those, but for the purposes of the proceedings today I propose to briefly cover the following four points. The first relates to an exchange that the Vice President has had with the prior two advocates about the performance of work by employees with a person who has contracted Covid. The second is what can be made of the material before the Commission about three employers who are electing to make above‑award payment to employees in circumstances that are similar to the union's claim. The third relates to issues about funding, and the fourth is the key bases upon which we oppose the claim.

PN905

Turning to this first issue, which as I understand it relates to the proposition that: can the risk that an employee required to work with a person who has contracted Covid be eliminated. In our submission, in these proceedings there is no expert medical or scientific evidence that has been called about the extent of risk facing an employee in those circumstances. Nor has there been any expert evidence called about the effectiveness or otherwise of PPE, or other infection control measures in the context of a client who has contracted Covid, and as Mr Warren has just submitted, there is no evidence that measures that are being implemented by employers to mitigate any such risk are failing. I think it's also relevant that the evidence doesn't demonstrate, or even suggest, that employees are commonly being required to perform work in those circumstances. Mr Richardson said this morning that in the one instance that they've had of a client who has contracted Covid, support was being provided remotely. Giovanna Fatah gives evidence of a client who contracted Covid who was admitted to hospital once the positive test result was received, and I accept that this is not in evidence, but by way of submission I put that that's consistent with the feedback that we've received from industry that where a client contracts Covid, efforts will typically be made to ensure that that person can receive the expert medical assistance that they need from a hospital.

PN906

Even if that proposition were true, that is, that the risk can't be eliminated, even if that finding were made, I think the ASU itself has said this morning that it would not be appropriate for an award to provide for a payment that relates to danger, and I'd echo the comments, respectfully, that Mr Warren has made this morning about that, or this afternoon as it is. Certainly there's no justification for why it would warrant an allowance of $5 an hour. It's a matter, in our submission, for the health and safety system, and I'd also say that it's not clear that that is a circumstance that can be distinguished from other infectious diseases, that is to say that there seems to be an acceptance in these proceedings that disability support workers are commonly required to work with clients who have an infectious disease, and it may indeed be the case, but in the context of those infectious diseases too, the risk is unable to be eliminated entirely. To introduce an allowance in relation to Covid, if nothing else, would render this award and render that provision out of step with the safety net as it currently sits in that regard.

PN907

If I turn into the second point, which is about what can be made of the material before the Commission that employers were electing to pay an allowance that's similar to what is being proposed by the union, the evidence establishes that there are three employers who are making such payments, Life Without Barriers, Lifestyle Solutions and Aruma. I think the first and most obvious point about this is that those employers have self‑assessed, that they have a capacity to make such payments, but it doesn't follow, and the inference should not be drawn, that other employers will also have the capacity to absorb the additional employment costs that would flow from the grant of the claim, and I think this becomes particularly apparent when regard is had to the sizes of the relevant organisations. I think Mr Robson made a similar point this morning. Life Without Barriers describes itself in its submission as one of the largest disability support providers in Australia. Aruma's annual report reveals that it derives the revenue from a range of activities that are not limited to NDIS‑funded support services, and it made a net profit in 2019 of $2 million. Lifestyle Solutions supports over 2000 people and it employs over 1000 employees. These are particularly large organisations, and in one case a particularly diverse organisation.

PN908

The evidence says nothing of the ability of other organisations to pay the allowance that is being sought by the unions, and it should also be borne in mind that the nature of a discretionary payment is exactly that. It's discretionary. So unlike an award‑derived obligation, an employer has the ability to assess the practical application and the cost implications of such an allowance as the circumstances of Covid‑19 unfold, and to revise and review it, if that becomes necessary. For instance, if there was a spike in the rate of infections, then where it's a discretionary payment, an employer has the ability to exercise its discretion to either cease the operation of that policy or to revise the eligibility criteria. I think Mr Richardson said this morning that that was a matter that was at the back of his mind when their policy was initially prepared, and I note that that policy expressly states that it will be reviewed from time‑to‑time. In any event, none of this evidence can, in our submission, be relied upon to establish the proposed term if necessary in the relevant sense. It's really reflective only of a desire and a self‑assessed capacity to temporarily an above‑award payment.

PN909

I also wanted to say something about the Life Without Barriers submission, which today at least twice has been characterised as a submission in support of the unions' claim. We say that that is not an accurate characterisation of Life Without Barriers' submission. The submission says nothing about whether the Commission should vary the award in the manner sought by the unions. Their submission outlines some of the business changes, as Life Without Barriers describes it, that it has faced in the context of Covid‑19. It provides some information about the extent to which people living in supported independent living have been required to self‑isolate, the impacts on its staff and its client, but it does not express a view about whether the Commission should vary the award. I think the submission concludes with a description of some of the challenges that Life Without Barriers and its management have faced in the context of Covid, and those comments relate, for example, to (indistinct) of PPE and the distribution of PPE, that these comments are similar to some of the remarks that were made by Mr Richardson in his evidence today.

PN910

If I can turn then to the issue of funding. It's notorious that the provision of disability services is largely funded by the NDIS and that there are limits on the prices that can be charged by employers covered by the award, which means that employers don't have so much as the option of endeavouring to recover some or all of the costs that would flow from the grant of the claim. I think it's relevant to note that the application was filed initially in the context of the relevant group of applicants endeavouring to secure funding from the Commonwealth to cover the cost of the claim. Indeed, in the initial submissions that were filed by the applicants, they conceded in their submissions that in the absence of funding the cost of the claim to an individual employer may be significant. It has since become apparent that the Commonwealth hasn't granted or committed to granting any specific funding that relates to this allowance. Various written submissions that have been filed, including ours, have outlined other types of funding that were announced. As has been established in the evidence today, one such form of funding has since ceased to apply, and that was also referred to in correspondence we filed in the Commission earlier this week.

PN911

As a result of all of this, the only form of additional funding that is currently available to providers under the NDIS is the funding that's described at paragraph 15(b) of our 20 May submissions. It applies only where a person with a disability has contracted Covid, and only if that person with a disability is in a supported independent living environment, and this quite obviously means that there would be a very broad range of circumstances in which the proposed clause would apply, but the funding would not, and we say in that context, where employers are prevented from being able to otherwise try to recover the cost of the claim, and employers themselves are facing various challenges and various additional costs associated with the pandemic, it is plainly unfair to require the payment of this additional allowance, which we note is not insignificant in quantum, and indeed if it were payable to multiple employees over a period of time, the impact could be quite significant.

PN912

Finally, if I can just identify the key reasons why we oppose the claim. The first relates to the impact on employers, and I refer back to the submissions we have made about the absence of funding. The second is that the proposed clause is, in various ways, unworkable in the practical sense, and we have outlined those issues in our written submissions, so I won't canvass them again.

PN913

Finally, as other employer advocates have today argued, the unions haven't made out their case. They have not established that, as a question of fact, employees performing the relevant type of work suffer the various disabilities that they have outlined in the submissions, and they have not established that even if those disabilities are suffered or that they are required to undertake various additional tasks or activities, that that warrants or justifies an additional payment. The fact that employees are more frequently required to wear certain forms of PPE or more frequently required to wipe down certain surfaces wouldn't be the end of the matter in any event. The onus is on the applicants to establish that those circumstances necessitate the payment of an additional allowance and, in our submissions, they have failed to discharged that onus.

PN914

Unless there are any questions, those are my submissions.

PN915

VICE PRESIDENT HATCHER: Thank you, Ms Bhatt. Mr Pegg, are you still there?

PN916

MR PEGG: Yes, your Honour, and I would like to make just a very brief submission in closing.

PN917

VICE PRESIDENT HATCHER: Go ahead.

PN918

MR PEGG: Firstly, of course, we rely on our earlier written submissions. Just briefly, the one thing that I would like to pick up on is covered was covered by Ms Bhatt just recently. It relates to the issue of funding for this matter. We accept absolutely that it's not a business as usual situation that we are in and we understand the origin of the union claim for this allowance. Ms Bhatt mentioned the beginnings of this matter, initially NDS was a party to the application and the application arose in the context of discussion on a wide range of matters between ourselves and the unions but also with the Commonwealth around a range of supports that were available to the sector.

PN919

When it became apparent from correspondence with the Minister for the NDIS that there was no intention to fund specifically an allowance of this nature, that was the point where NDS withdrew its support for this application and it was because it's a matter of striking a balance between the competing factors that need to be taken into account. So, in relation to the modern awards objective, we say that, in the absence of dedicated funding for this, the imposition of the extra costs on employers weighs heavily enough to tip the balance to the extent that we now oppose the claim.

PN920

The three employers that gave evidence in support of the union claim, as Mr Robson characterised it, are three of the largest employers in the country in this sector. I think it would be fairly evident that while, for example, Aruma, in evidence this morning, we saw that they reported in the previous financial year a profit of some $2 million on the basis of a $342 million revenue and, by my quick arithmetic, that's around a point 6 per cent profit margin. A point 6 per cent profit margin for a small employer with, say, a $2 million revenue base is a very different kettle of fish. So, it is difficult to scale down the costs of this Covid allowance that we have seen in evidence to date in the Aruma example and try and say that it would be a negligible effect for a small employer. We say it would be quite considerable and, in the absence of dedicated funding, for employers who are already struggling under very tight pricing, it weighs heavily against the claim.

PN921

VICE PRESIDENT HATCHER: (Indistinct) situation for which there does appear to be funding, that is, where a client has actually contracted Covid and remains in independent living?

PN922

MR PEGG: So that funding is provided for certain purposes that are outlined in the conditions for the provision of that funding and so it's to cover back-up staff, to cover extra staffing costs where there's extra numbers of staff required and to cover intensive cleaning and, importantly, it is restricted to supported independent living facilities, it doesn't extend to a wide range of other sorts of facilities. Whether an employer is able to tap into that is going to depend on whether the funding itself adequately covers the other extra costs which it is notionally intended for.

PN923

VICE PRESIDENT HATCHER: Just so I understand that last response, the context of independent living obviously covers group homes. What doesn't it cover?

PN924

MR PEGG: Well, it would not cover, for example, an individual client living in their own home with their family.

PN925

Your Honour, that's all I wanted to add. The other employer groups have covered off any other comments we might have made around the evidence.

PN926

VICE PRESIDENT HATCHER: Thank you, Mr Pegg. Are there any submissions in reply?

PN927

MR ROBSON: Yes, your Honour. Let me just turn on my video. Touching on the most recently raised point by Mr Pegg, what we would say is that funding is regularly reviewed and updated by the NDIA and there's no evidence that this wouldn't change or couldn't change and there's been no evidence that there have been new entitlements created in this sector in the past that haven't been accommodated by funders and, indeed, the price guide directly refers to the SCHADS Award in setting those prices, and I don't believe any party would disagree with the second part of my submission.

PN928

Another issue that has been raised is - - -

PN929

VICE PRESIDENT HATCHER: That is theoretically true, but if the Minister wasn't prepared to fund it back in May, then there's not much chance they are going to start funding it now, is there?

PN930

MR ROBSON: Yes, but we don't believe that it requires - this allowance requires individual funding. The Minister wrote to the Commission and explained the different types of funding that were on offer at the time that the application was lodged. The supporting (indistinct) is still there, that's a significant amount and would cover the cost of this allowance.

PN931

We would say the evidence in front of the Commission is that in the cases where it is used, it's used sparingly, or in suspected cases it's used sparingly, and there isn't much evidence of - there isn't evidence that there are significant numbers of people who have contracted Covid-19 in the sector. We believe that the cost implication is limited and that the employers' submissions about the impact on businesses just aren't sustainable.

PN932

We have three employers, two of whom have given witness statements saying that they (a) support our application and (b) have implemented an allowance in the exact figure that we are seeking. There is an additional employer who has made a submission but also provided documents that show it is paying that allowance, that's Life Without Barriers.

PN933

Ms Cudmore doesn't make any comments about the affordability of this allowance in her statement. There's just simply no evidence in front of the Commission to say that this isn't an affordable plan. The employers are making the submission without evidence.

PN934

That is simply what there is to say about that, and there's no evidence to say that the NDIA is unresponsive to changes in the SCHADS Award, there's no evidence to say that it isn't reviewed or updated. I think, yes, there is uncertainty, but that's just a normal case for any decision of the Fair Work Commission, but it shouldn't weight against making the determinations that we have sought.

PN935

Going through to Mr Warren's point about the classification structures, I think it's telling that they didn't take Ms Brown to her position description, which is found at page 57 of the bundle of documents presented to her. At dot point 1 there, under "Duties", it says, "Service delivery and planning." At 1.2, it says, "Provide a stable domestic environment, interim protection and privacy for the residents." It goes through and lists a number of duties that are consistent with the ASU submissions about what her normal duties would be, and nowhere does it mention the use of personal protective equipment, enhanced hygiene protections or anything of that sort.

PN936

This comes to the point why the Commission wouldn't be persuaded by AFEI submissions about the classification structure of the award. Yes, it is very broad, but it has to be understood in its historical context. It derives from an award that was made in the early 1990s in Queensland and the classification structure was derived from a classification structure for local government employees. There is still a classification structure in the Queensland state award that is in place.

PN937

It is very broad banded to cover the width of duties that could be expected by somebody in this sector. This sector covers everything from advocacy organisations like Amnesty International, youth services, women's services and disability, and the evidence from the workers in the sector and the employers in the sector is that while they have policies in place, as they are obliged to do, the use of PPE, the dealing with infectious diseases, especially in the context of something like Covid-19, just hasn't been a normal feature of the work that people have done so far.

PN938

I think that brings me to a point about Ms Cudmore's statement. Ms Cudmore employs 180 people covered by the SCHADS Award out of about 6200. 5800 of them are nurses provided as a labour hire business. Ms Cudmore is a nurse, her organisation makes decisions through nursing clinicians and she admits that this is what separates her from the industry. It is a highly medicalised approach to service provision. Contrast that with Mr Richardson's evidence where he, unprompted, came to the point that he is not a medical services provider, his workers are support workers, their job is to assist people to live better, happier, you know, more productive lives. It's not health care, and so it's just a different context where these issues don't arise in the same way that they might do in a hospital or another institution.

PN939

So, no, we would say the Commission wouldn't be persuaded that the classification structure already encompasses it and, indeed, looking at the points that have been drawn out, dot point (a) says, "Perform tasks of a sensitive nature, including the provision of more than routine information" and then, comma, "the receiving and accounting for moneys and assistance to clients." Unfortunately, that descriptor doesn't say, "Provide highly intensified support in the nature of a highly infectious disease during a global pandemic."

PN940

Again, just going through to even level 3:

PN941

Assist in a range of functions and/or contribute to the interpretation of matters for which there are no clearly established practices and procedures.

PN942

Well, that could cover almost anything and it would say that there could never be an allowance for additional duties or responsibilities because, on the face of it, the classification descriptors of the award are incredibly broad banded, but we need to consider the evidence about the work that people are doing and the different work that they are doing when they are supporting a suspected or confirmed case of Covid-19, which I think brings me to the point about danger money which the employer parties in these proceedings have made extensive submissions on.

PN943

We agree with them that it is not appropriate for the Commission to make an allowance to compensate for risk and we are not actually asking you to do so. The grounds of our submission focus on the additional duties associated with the work and the stresses and disabilities associated with it, and the fact that the work involved has a potential danger we say doesn't mitigate against - doesn't take away from that.

PN944

In ABLA's submissions of 1 May, they attach a summary of disability allowances and PPE related terms in modern awards. Looking at the disability allowances, many of them cover types of work that could be potentially dangerous: cold places, night soil, tanks, fuel tanks, confined spaces, sewerage treatment plants. All of these types of allowances contemplate work that is admittedly dangerous, but you are allowed to do it in that circumstance because there are policies and practices in place to ensure safety and, of course, ultimately, the right of a worker to refuse to do dangerous work. What those allowances do, though, is compensate our additional duties or disabilities associated with that work.

PN945

So we say if the work is dangerous it shouldn't be done. We believe that there is guidance from state and federal authorities that there is a way to do this work safely. We have given evidence from workers who have performed the work safely and employers who have adapted their practices to do the work safely, and that is what the allowance is directed at. If an employer is failing to comply with their obligations the work shouldn't be done, and if it's necessary they should be prosecuted for it. That's what we say on that issue.

PN946

I think that brings me to the next point in reply. Much has been made about the existence of infection control procedures at every organisation that has been the subject of evidence in these proceedings. We say that's quite natural. Of course infection control procedures existed, but these are policies, and they don't cover the specific work that is being - they didn't cover the specific work that's being done by workers who are dealing with confirmed cases of Covid‑19, with workers who are dealing with suspected cases of Covid‑19.

PN947

We say that the employers are focussing on the documents, on the paper, because when you examine the work that is being done by employees you see additional stress, you see an intensification of work, you see fear and concern for families and loved ones, because they are working with a disease for which there is no known cure and no vaccine, and additionally the additional duties that come with it, and the focus on PPE, I think, is slightly misleading. The basis of the allowance, while there are additional duties associated with PPE, they're significant, but that is not the total of the ASU, the HSU and UWU's claim.

PN948

Again, that's all I'll say about the issue of danger pay. Your Honour, we've already made submissions about the evidence that you've heard. We don't think that you would accept the submissions that have been made about Mr Hyland's evidence, and indeed his position on the Covid‑19 allowance, we say that shows the necessity of award regulation.

PN949

It's natural for unions to approach employers asking them for conditions that we believe are relevant and necessary in the industry. In that space it is the relevant negotiation and compromise, and so we don't necessarily get what we want, because we are striking a bargain.

PN950

In the award space we are making decisions in a more rational and considered way, and we say that on the basis of the evidence given led by the ASU, UWU and the HSU, you'd be persuaded to make an allowance in the form that we say it should be made.

PN951

Coming to the drafting of the allowance, there have been a number of criticisms in the drafting levelled against it. We've addressed some of those that we think are relevant in our revised draft determination. We've included a very explicit requirement that the allowance is paid when a person is in close physical contact. We've had a description of that work and we think that it would be quite clear to determine that.

PN952

In the example of Mr Richardson, support coordinator, who dealt with an infected client, who only dealt with that person by telephone, it's very clear that it wouldn't apply in that case, but for a person like Ms Brown who was physically in the workplace, in the client's home, that's clearly a distinction. There's no risk that this will leak out to people in office environments, especially with the social distancing measures that are in place. It's simply not the issue that the employer suggests it should be.

PN953

Additionally, AiG has made submissions about the use of the term "disability services". They say that this isn't described in the SCHADS Award, and, look, we agree that this is one of the deficiencies in the SCHADS Award, that it uses this term "disability services" or "disability" routinely to set conditions and organise work, but that would make our allowance no different from clause 3 and the definition of "social and community sector", clause 10.4(i) which provides for three‑hour minimum engagement for social and community services employees except when undertaking disability services work, and 25.6 where the award provides that the broken shift term applies to social and community services employees when undertaking disability services work.

PN954

We don't believe there's been any evidence in front of the Commission that there is any great disputation about the difference between disability services work and any other type of social and community services work, and certainly no one's been able to put in front of you a situation where there is some ambiguity.

PN955

If the Commission is minded to resolve this problem, there was a definition of "disability services work" prior to 2012 when there was a separate classification stream for disability services which was then merged into the social and community services stream. That variation was made by consent and I don't believe that there's any party present who was opposed to it, but the previous definition, and we record that at paragraph 79, said:

PN956

Disability services means the provision of personal care, domestic and lifestyle support, teaching, promoting or maintaining living skills, client advocacy, promoting or supporting community access and social inclusion or developing or assisting in developing care and support plans, including the assessment of client needs, to a person with a disability.

PN957

We say that disability services work, the meaning is understood, and with the clear limitation of the allowance to close physical contact, we say any drafting flaws have been corrected, and indeed, I think that comes to the end of my reply submissions. Thank you, your Honour.

PN958

VICE PRESIDENT HATCHER: Are there any other reply submissions? No? All right. I thank the parties for their submissions. We will reserve our decision and will now adjourn.

ADJOURNED INDEFINITELY [1.07 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANDREW DONALD RICHARDSON, AFFIRMED....................................... PN549

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN549

EXHIBIT #10 WITNESS STATEMENT OF ANDREW RICHARDSON DATED 18/05/2020................................................................................................................................. PN574

EXHIBIT #11 ASU CORONA BUNDLE OF DOCUMENTS......................... PN577

CROSS-EXAMINATION BY MS BHATT....................................................... PN615

EXHIBIT #12 ARUMA 2019 ANNUAL REVIEW........................................... PN628

RE-EXAMINATION BY MR ROBSON............................................................ PN686

THE WITNESS WITHDREW............................................................................ PN690

EXHIBIT #13 ABI LIFESTYLE SOLUTIONS BUNDLE.............................. PN712