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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT KOVACIC
DEPUTY PRESIDENT BULL
COMMISSIONER ROE
AM2014/196 AM2014/197
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Casual Employment and Part-time Employment
(AM2014/196 and AM2014/197)
Sydney
10.11 AM, MONDAY, 15 AUGUST 2016
PN1
VICE PRESIDENT HATCHER: Before we start, can I indicate that for health reasons, Commissioner Rowe is sitting in Melbourne and is unable to travel to Sydney. Are there any changed appearances? Mr Gibian, you are appearing for the Transport Workers' Union?
PN2
MR GIBIAN: May it please the Commission.
PN3
VICE PRESIDENT HATCHER: Does anyone oppose Mr Gibian being granted permission to appear?
PN4
MR FERGUSON: No.
PN5
VICE PRESIDENT HATCHER: We will grant you permission. Mr MacDonald.
PN6
MR MACDONALD: Your, Peter King of counsel will be appearing on behalf of APTIA. He is currently just tied up in another court, but he will be appearing on behalf of APTIA with the leave of the court.
PN7
VICE PRESIDENT HATCHER: We will do this in anticipation. Does anyone oppose Mr King being granted permission?
PN8
MR GIBIAN: No, your Honour.
PN9
VICE PRESIDENT HATCHER: We will grant that permission. Mr Nguyen.
PN10
MR NGUYEN: Your Honour, I also appear on behalf of the AMWU Vehicle Division today as well.
PN11
VICE PRESIDENT HATCHER: I think you're the same union, so that's not necessary, as has been pointed out. Mr Fleming, you appear for the ACTU in Melbourne?
PN12
MR FLEMING: Yes, that's correct, your Honour.
PN13
VICE PRESIDENT HATCHER: Are there any other appearances in any other location? No. So can we proceed? Who is the first witness?
PN14
MR NGUYEN: Your Honour, we just have some administrative matters that we seek permission for the Commission to deal with first.
PN15
VICE PRESIDENT HATCHER: Yes, all right.
PN16
MR NGUYEN: The first is in relation to Mr Tegg's cross-examination. Mr Tegg would be available if the Commission does commence the hearing earlier on Wednesday morning at 9 o'clock. But otherwise we request that he be confirmed for Wednesday morning first up. At the moment, the schedule lists him as at the end of the list for the Tuesday/Wednesday block, Wednesday morning block. We just request confirmation that he would be required first thing on Wednesday morning. The second is a request for - - -
PN17
VICE PRESIDENT HATCHER: Sorry, before you move on, does he have some availability issue on Wednesday, does he?
PN18
MR NGUYEN: He is not available tomorrow.
PN19
VICE PRESIDENT HATCHER: No, sorry, but is there any timing issue? We will probably start at 10 on Wednesday, so is there any reason why he can't attend at 10?
PN20
MR NGUYEN: He can attend at 10. It's just for flexibility if the Commission decided to start earlier, I just wanted to indicate that that was possible.
PN21
VICE PRESIDENT HATCHER: Thank you.
PN22
MR FERGUSON: I just note we support him being dealt with first only because Ai Group is only dealing with one witness, Mr Tegg, so we would prefer not to sit all day.
PN23
VICE PRESIDENT HATCHER: All right. Yes, anything else, Mr Nguyen?
PN24
MR NGUYEN: Yes, and the second issue is we would like to make a request to have an opportunity to provide a written response to the AiG submission which was filed Tuesday night and not publicly available until Wednesday morning which is in excess of 500 pages. The AMWU hasn't had an opportunity to fill digest the contents of that final written submission. So we would just like an opportunity, if necessary, to provide a written response to anything that might arise in those written submissions which we haven't already addressed in our previous submission. I don't think that's a high probability of happening, but given the material that we have already provided, but just in case we would like to make that request formally.
PN25
VICE PRESIDENT HATCHER: We might just leave that in reserve until we come to the submissions and if in oral submissions any party claims there is some prejudice arising out of that, we can deal with that then. Is that appropriate, Mr Ferguson?
PN26
MR FERGUSON: Yes.
PN27
VICE PRESIDENT HATCHER: Are there any other procedural issues we need to deal with at the outset, Mr MacDonald?
PN28
MR MACDONALD: Your Honour, I was advised late on Friday afternoon by the Transport Workers' Union that Messers Romanowski and Dewberry who were going to appear in Tasmania or in Hobart and Adelaide, they weren't required, so we will no longer be calling those two witnesses.
PN29
VICE PRESIDENT HATCHER: So that's Mr Romanowski.
PN30
MR MACDONALD: Romanowski and Dewberry.
PN31
VICE PRESIDENT HATCHER: Is that right, Mr Gibian?
PN32
MR GIBIAN: Yes.
PN33
VICE PRESIDENT HATCHER: Mr MacDonald, there is one issue with Mr Romanowski's statement, if I can just find it. At paragraph 20, he refers to an attachment A, but the version filed had no attachment.
PN34
MR MACDONALD: In the interim, I will check that, if that's all right, your Honour, and see what that was and, if necessary, make application in relation to it.
PN35
VICE PRESIDENT HATCHER: I don't want this to lead to a late application for cross-examination, so the sooner we can attend to it, the better. I would like to mark those statements before we finish today, so if you want to add the attachment to it, can you sort of attend to that very quickly?
PN36
MR MACDONALD: I will.
PN37
VICE PRESIDENT HATCHER: Thank you.
PN38
MR GIBIAN: I think a similar issue applies with Mr Ferris's statement at paragraph 26, at least on the version that we have.
PN39
VICE PRESIDENT HATCHER: Which statement, Mr Gibian?
PN40
MR GIBIAN: Sorry, Mr Ferris's statement of 10 October 2015.
PN41
VICE PRESIDENT HATCHER: What paragraph was that?
PN42
MR GIBIAN: Twenty-six, on the last page.
PN43
VICE PRESIDENT HATCHER: Yes, yes, that's the same issue. Do you see that, Mr MacDonald?
PN44
MR MACDONALD: I just haven't got it in front of me, but I'll address it, your Honour.
PN45
VICE PRESIDENT HATCHER: All right. So can we proceed with the witnesses?
PN46
MR GIBIAN: Yes, there are two witnesses in relation to the Long Distance Award who are being dealt on telephone, Mr Hosking and Mr Osland, and we were proposing to deal with Mr Hosking first, I think.
PN47
VICE PRESIDENT HATCHER: Mr Hosking?
PN48
MR GIBIAN: Yes.
PN49
VICE PRESIDENT HATCHER: All right. So we can we get Mr Hosking on the telephone, please?
PN50
MR NGUYEN: Your Honour, if I could be excused until Wednesday morning?
PN51
VICE PRESIDENT HATCHER: Yes, Mr Nguyen.
PN52
MR FERGUSON: Your Honour, while that's occurring, we did raise some objections in our correspondence of 10 March. I know that the Bench has adopted a general approach in relation to these things, but we have adopted a practice of pointing them out for the Bench. It's on page 15.
VICE PRESIDENT HATCHER: All right.
<GRANT WILLIAM HOSKING, AFFIRMED [10.19 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.19 AM]
PN54
MR GIBIAN: Thank you, Mr Hosking. My name is Mark Gibian. I'm appearing for the Transport Workers' Union. You have just given your full name as Grant William Hosking?‑‑‑That's right.
PN55
Your address is (address supplied)?‑‑‑That's correct.
PN56
You have made a statement for the purposes of these proceedings which you indicated you had with you?‑‑‑Correct, I have, yes.
PN57
This is dated 21 February of this year, I think, on the third page?‑‑‑Yes, correct.
PN58
I'm not sure what the process of the Commission has been, but I would seek to have that statement admitted into evidence subject to what Mr Ferguson says.
PN59
VICE PRESIDENT HATCHER: Mr Ferguson, I have just been trying to find your objections. I'm not sure we have them before us, but is the submission that we note the objections and they can be dealt with as a matter of weight in submissions?
PN60
MR FERGUSON: We are content for it to be dealt with that way.
VICE PRESIDENT HATCHER: The statement of Grant Hosking dated 21 February 2016 will be marked exhibit 268.
EXHIBIT #268 STATEMENT OF GRANT HOSKING DATED 21/02/2016
PN62
VICE PRESIDENT HATCHER: Are there any further questions, Mr Gibian?
*** GRANT WILLIAM HOSKING XN MR GIBIAN
MR GIBIAN: There is not. Mr Hosking, Mr Ferguson who appears for the Australian Industry Group will now ask you some questions?‑‑‑Sure.
CROSS-EXAMINATION BY MR FERGUSON [10.20 AM]
PN64
MR FERGUSON: Good morning, Mr Hosking. Can you hear me?‑‑‑I can, yes. Good morning.
PN65
Morning. I just have a small number of questions. Let me know if you are having trouble at any point?‑‑‑Sure.
PN66
You have got a copy of your statement with you, do you, Mr Hosking?‑‑‑I do, yes.
PN67
Can I just take you to paragraph 6?‑‑‑Yes.
PN68
I understand that you do the run between Melbourne and Sydney?‑‑‑That's correct.
PN69
On some occasions you do that by way of a change over; is that correct?‑‑‑Correct.
PN70
Am I right to say that where this is done by way of a change over, you drive part of the way and then - - -?‑‑‑I drive halfway to Sydney and then swap trailers and then return back to Melbourne.
PN71
So that enables you to return home that same day, if you will?‑‑‑That night, yes, that's correct.
PN72
So you don't have to stay over anywhere in a depot or anything like that?‑‑‑No, no.
PN73
Am I right to assume that that swap over occurs at Tarcutta?‑‑‑Well, it's not quite Tarcutta. We call it Kyeamba Gap. It's a parking bay. It's actually exactly halfway between Melbourne and Sydney.
PN74
So there is a specific location, but not in Tarcutta?‑‑‑No, that's right.
*** GRANT WILLIAM HOSKING XXN MR FERGUSON
PN75
But you would be aware, wouldn't you, that it's very common or operators to arrange their work so that drivers change over at Tarcutta?‑‑‑That's correct, yes.
PN76
There is a major purpose-built facility at Tarcutta that enables these change overs to occur safely, isn't there?‑‑‑That's correct.
PN77
Many operators in the industry do arrange their work so that drivers perform change overs, don't they?‑‑‑They do, yes.
PN78
That includes when working between Melbourne and Sydney?‑‑‑That's right, yes.
PN79
But there are change over arrangements in place along other corridors, aren't there?‑‑‑There is, yes.
PN80
So, for example, you would agree with me that between drivers operating on the corridor between Brisbane and Sydney often change over at Clybucca, don't they?‑‑‑That's right, yes.
PN81
Again there is a facility there that enables that changeover to occur safely?‑‑‑Well, no, not really. At Clybucca, it's either in the service station or on the side of the road.
PN82
VICE PRESIDENT HATCHER: Mr Ferguson, how do you spell that location?
PN83
MR FERGUSON: I will confess, I have taken a guess which may not be right, but perhaps I can advise you.
PN84
VICE PRESIDENT HATCHER: What's the first letter? Is it a K or a C?
PN85
MR FERGUSON: I don't know. I've written C, but perhaps I can come back to you.
PN86
VICE PRESIDENT HATCHER: All right.
PN87
MR FERGUSON: Am I right that the State Governments, they're in the process of building a facility?‑‑‑That I can't confirm, no. I don't do that corridor and I haven't heard any of our drivers saying that a facility is being built there, so I can't confirm or deny that.
*** GRANT WILLIAM HOSKING XXN MR FERGUSON
PN88
Are you aware that drivers also or the companies also commonly implement change over arrangements on the Melbourne to Adelaide corridor?‑‑‑I am, yes.
PN89
Commonly the drivers change over at Nhill, don't they?‑‑‑Nhill, yes, that's correct.
PN90
That enables those drivers doing the change over work to come home that day or that night?‑‑‑That's correct.
PN91
Would you agree with me that another very common run undertaken by long distance drivers is Sydney to Dubbo?‑‑‑That's right.
PN92
That doesn't require anyone staying overnight, does it?‑‑‑Well, it all depends because normally if a truck goes from Sydney to Dubbo or Melbourne to Dubbo it's usually going somewhere else. Dubbo isn't usually the destination. All our trucks that come out of Melbourne go to Dubbo. We have a facility in Dubbo for the men to go to bed and then another driver gets up and takes that truck through to Brisbane and that's usually the norm. Dubbo isn't normally the main destination. It's just another change over point, but it's a change over point where the truck keeps going and the driver actually stays for his ten-hour break and then comes back.
PN93
You are talking in terms of Toll operations, are you?‑‑‑Yes, yes, well, most of them because, like I said, Dubbo isn't a major destination point. It's simply just a change over point.
PN94
I will just ask you then about your understanding of the industry generally given your extensive career?‑‑‑Yes, yes.
PN95
Am I right to say that a lot of road trains operate out of Dubbo?‑‑‑Yes.
PN96
There are a lot of drivers that perform long distance work transporting material from Sydney to Dubbo?‑‑‑To Dubbo, yes, then it normally goes onto another prime mover or another driver in it, then it comes on its way to its destination.
*** GRANT WILLIAM HOSKING XXN MR FERGUSON
PN97
That driver could commonly then return back to Sydney that same night?‑‑‑No, because of the distance travelled, they wouldn't have enough time to get back to Sydney or back to Melbourne. They have to have a ten-hour break in that time, in that period. I don't know what other companies with their drivers up there, but our company has a purpose built depot for drivers to go to bed and accommodate them at Dubbo and, like I said, our trucks continue on with other drivers that actually live in Dubbo. But the Melbourne based ones and the Sydney based ones go down there and stay for ten hours before a truck comes back to meet them so they can come back home.
PN98
That's the operations of Toll, you are talking about?‑‑‑Yes, and that's the operation of most places, otherwise the truck gets held up, it can't go anywhere for ten hours.
PN99
Most of your work involves transporting freight that's between major cities, is it, Mr Hosking?‑‑‑That's correct, yes.
PN100
But there are long distance drivers that undertake work that involves transporting material to other interstate locations that are not in other states?‑‑‑Yes, yes, there would, obviously there would be a few because the country areas have to be serviced.
PN101
So there is a lot of work undertaken in the industry generally that involves a driver transporting goods to a particular place and then returning to the depot and that doesn't necessitate them staying at work overnight?‑‑‑Well, it all depends where they're based.
PN102
Mr Hosking, just one other issue I want to touch upon. You have been with the Toll Group for a very long period of time?‑‑‑Yes.
PN103
Am I right to assume that you have been with Toll for the last 25 years?‑‑‑That's right, that's correct.
PN104
So I take it you haven't applied for another job as a linehaul driver in recent time?‑‑‑No.
PN105
No further questions?‑‑‑Thank you.
PN106
VICE PRESIDENT HATCHER: Any re-examination, Mr Gibian?
MR GIBIAN: Just one matter, I think.
RE-EXAMINATION BY MR GIBIAN [10.28 AM]
PN108
Mr Hosking, can you hear me still?‑‑‑Yes, I can, yes.
*** GRANT WILLIAM HOSKING RXN MR GIBIAN
PN109
Mr Ferguson asked you a couple of questions about an operation in which you transport goods from Sydney to - well, goods will be being transported from Melbourne to Sydney, but it would be done by way of a change over?‑‑‑Yes.
PN110
I think you indicated you changed over at a point other than Tarcutta, but halfway between Melbourne and Sydney?‑‑‑That's correct.
PN111
You were asked whether you could return to Melbourne that same day. Do you recall that?‑‑‑That's right.
PN112
How long is that operation from start to finish? That is, if you attend in Melbourne for loading, drive to the change over point and then return to Melbourne?‑‑‑Well, by the time we go in and do our pre departure checks in our truck, check oil, tyres and all those sort of things, then we go over and pick up our trailers. We check all the straps and all the tyres are right, all the lights are functioning and all that sort of stuff, then go up to where we change over at Kyeamba Gap, like I said, in kilometres, that's exactly halfway. Then go back to the depot, fill the truck and park it off. Roughly 12 hours, 12 and a half hours.
PN113
You were asked about other change overs in the Brisbane to Sydney and Melbourne to Adelaide routes?‑‑‑Yes.
PN114
Are those routes that you personally undertake?‑‑‑No.
PN115
Thank you, Mr Hosking?‑‑‑Not a problem.
PN116
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Hosking. You are excused, which means you can simply now hang up the phone?‑‑‑All right. Thank you very much.
Thank you?‑‑‑Bye bye.
<THE WITNESS WITHDREW [10.30 AM]
PN118
VICE PRESIDENT HATCHER: So Ms Osland is next?
PN119
MR GIBIAN: Mr Ferguson has just told me Mr Osland is not required in light of that evidence.
*** GRANT WILLIAM HOSKING RXN MR GIBIAN
PN120
VICE PRESIDENT HATCHER: All right.
PN121
MR GIBIAN: We will just contact Mr Osland to inform him of that.
PN122
VICE PRESIDENT HATCHER: Thank you. So who is next, Mr Gibian?
PN123
MR FERGUSON: We are going to be excused or seek an excuse, if that's okay. We don't have anything else to deal with today.
PN124
VICE PRESIDENT HATCHER: Thank you. Before you go, Mr Ferguson, we might mark Mr Osland's statement?
PN125
MR FERGUSON: Yes.
VICE PRESIDENT HATCHER: The statement - let me just find it. Just hold on. Just hold on, please. The statement of Brad Osland dated 21 February 2016 will be marked exhibit 269.
EXHIBIT #269 STATEMENT OF BRAD OSLAND DATED 21/02/2016
PN127
MR GIBIAN: Thank you, your Honour. I was just going to raise, the Long Distance Award issue is a discrete issue about the part-time employment provisions in that award and I'm not sure how we are going to deal with submissions in respect of that particular issue.
PN128
VICE PRESIDENT HATCHER: I was going to ask the parties at some stage how they wish to deal with that.
PN129
MR GIBIAN: Just if Mr Ferguson was going to leave, I thought maybe it was appropriate to raise it at this point.
PN130
VICE PRESIDENT HATCHER: We won't leave Mr Giddens standing there.
PN131
MR GIBIAN: Yes.
PN132
VICE PRESIDENT HATCHER: Perhaps if you just take a seat for the time being, Mr Giddens, and we will come back to you in a second. Yes, do the parties have a preference as to how to deal with this in terms of closing submissions? That is, whether written submissions would be sufficient or whether an opportunity for oral submissions might be necessary?
PN133
MR GIBIAN: For our part, there are reasonably extensive written submissions that have already been filed in relation to the issue. I mean, we are in the Commission's hands, but I would have thought that perhaps there are some issues that the Commission might want to hear from us about orally.
PN134
VICE PRESIDENT HATCHER: I did say I had some questions about how this proposal might work.
PN135
MR GIBIAN: Probably relatively briefly, but it may be a matter that would require oral submissions rather than further written submissions, as it were, since, as I say, there is already some reasonably extensive material that has been put on.
PN136
VICE PRESIDENT HATCHER: How long would the parties need before they can proceed to that?
PN137
MR GIBIAN: I am happy to do it immediately, your Honour.
PN138
VICE PRESIDENT HATCHER: I know you are busy this week, Mr Ferguson. I was going to say we might have Wednesday afternoon free the way things are going, but you are probably fairly busy this week, Mr Ferguson?
PN139
MR FERGUSON: This week I'm busy. Look, we have had previous discussions with the TWU, but we hadn't finalised those. We had anticipated putting on some reply material to the written submissions of the TWU. That may narrow things. I haven't got a date in mind, but we could do that, it's just a matter of looking at the calendar and I wasn't sure what dates the Full Bench might have available because I rather expected that a hearing would be necessary even if only to deal with questions about the mechanics of the provision.
PN140
VICE PRESIDENT HATCHER: I assume this would only take an hour or two at the most.
PN141
MR FERGUSON: I think that's right.
PN142
VICE PRESIDENT HATCHER: I can indicate that we have two days reserved for oral submissions which have not yet been taken up. That's 27 October and 29 November. So if the parties can reach agreement about directions and a hearing date, that will be accommodated.
PN143
MR FERGUSON: Yes, yes.
PN144
VICE PRESIDENT HATCHER: So can I leave the parties to - - -
PN145
MR GIBIAN: I can only do the 29th. Sorry, it was 29 November, was it, your Honour?
PN146
VICE PRESIDENT HATCHER: Yes.
PN147
MR GIBIAN: Yes, I can do that date, but not the other date that was mentioned, but we will have discussions.
PN148
VICE PRESIDENT HATCHER: Can I ask the parties to confer and then file an agreed minute of the directions and hearing date?
PN149
MR GIBIAN: Yes.
PN150
VICE PRESIDENT HATCHER: Thank you. You are excused, Mr Ferguson.
PN151
MR FERGUSON: Thank you, your Honour.
PN152
VICE PRESIDENT HATCHER: Mr King, you appear now.
PN153
MR KING: Thank you, your Honours. My apologies I wasn't here a little earlier, but Mr MacDonald mentioned my appearance. And I did hear your Honour refer to 29 November. That is a convenient date for us in relation - - -
PN154
VICE PRESIDENT HATCHER: I will come to the issue of closing submissions for the Bus Award in due course when we have heard the witnesses.
PN155
MR KING: Sorry.
VICE PRESIDENT HATCHER: So can we administer the oath or affirmation to Mr Giddens, please?
<ROBERT PETER GIDDENS, AFFIRMED [10.35 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.35 AM]
PN157
VICE PRESIDENT HATCHER: Mr Gibian.
PN158
MR GIBIAN: Yes, thank you, your Honour.
PN159
Mr Giddens, can you just give your full name for the record?‑‑‑Robert Peter Giddens.
PN160
You have given a business address of 11 Alexandra Place in Murarrie in Queensland?‑‑‑That's correct.
PN161
You are presently employed as a coordinator or lead organiser with the Queensland branch of the TWU?‑‑‑My area is passenger transport coordinator for Queensland, yes.
PN162
You have made a statement for the purposes of these proceedings entitled: "Statement in reply"?‑‑‑Yes.
PN163
Dated 12 February of this year running to some 22 paragraphs?‑‑‑That's correct, yes.
PN164
I would seek that statement to be admitted into evidence.
VICE PRESIDENT HATCHER: Yes, thank you. The statement of Robert Giddens dated 12 February 2016 will be marked exhibit 270.
EXHIBIT #270 STATEMENT OF ROBERT GIDDENS DATED 12/02/2016
PN166
VICE PRESIDENT HATCHER: Any further evidence?
PN167
MR GIBIAN: Yes, thank you, that's the evidence.
PN168
MR KING: Can I indicate for the record, your Honour, that we did notify an objection to paragraphs 15 and 16, but we are happy to have it received subject to objections.
*** ROBERT PETER GIDDENS XN MR GIBIAN
PN169
VICE PRESIDENT HATCHER: Yes, we will note the objections and we will treat those as a matter of weight which can be raised in closing submissions, Mr King.
PN170
MR KING: Thank you.
PN171
VICE PRESIDENT HATCHER: Mr King, do you want to cross-examine this witness?
MR KING: If the Commission pleases.
CROSS-EXAMINATION BY MR KING [10.36 AM]
PN173
MR KING: Mr Giddens, would you have a look, please, at your statement, paragraph 9?‑‑‑Yes.
PN174
Would it be fair to say that there are some casual bus drivers who do not do both?‑‑‑Not to my knowledge. The majority of the - well, the school bus drivers that I have spoken to generally do mornings and then they do the afternoons. Very few of them do less than that. Normally it's 40 weeks a year, 20 hours a week.
PN175
You have seen Mr Doolan's statement, have you not?‑‑‑Yes, I have.
PN176
You recall at paragraph 16 of his statement he sets out varying personal reasons why particular drivers, casual drivers, would not or do not wish to do two starts a day?‑‑‑I can't speak to that because my understanding is, from the interaction that I have had with a large number of bus drivers, casual school bus drivers, that they would like to do 20 hours a week or more. And most companies that start school bus drivers, they actually start them off doing that and then they transfer them into casual positions, part-time positions and eventually full-time positions for those that require it.
PN177
That answer leads to a question I have about paragraph 11 of your statement. You refer there in the second sentence to a survey. Do you have a copy of that survey with you?‑‑‑No, I don't.
PN178
Do you recall that on 4 March this year, Mr MacDonald of APTIA wrote to Vice President Hatcher copying it to the TWU referring to the absence of that survey?‑‑‑I'm not aware of that, no.
*** ROBERT PETER GIDDENS XXN MR KING
PN179
I call for a copy of the survey.
PN180
VICE PRESIDENT HATCHER: Is there a copy of the survey present in court to give him?
PN181
THE WITNESS: Thank you.
PN182
MR KING: My friend has produced a document or a bundle of documents.
PN183
MR GIBIAN: Yes, the surveys have the names of the individual employees on them. If anything wishes to be done with it beyond Mr King looking at it, then we will have a discussion about it, but if that's the extent of it.
PN184
MR KING: If your Honours please, what we would ask is that perhaps it be marked for identification at this stage. And I think I heard my friend saying that they would object to its tender. The way we would propose to deal with it - - -
PN185
MR GIBIAN: I didn't say we would object to its tender. I said we will see what is to be done with it after that.
PN186
MR KING: Thank you. What I propose is that we have the opportunity to look at it and perhaps deal with it a little later in the morning or alternatively defer its tender if that's convenient.
PN187
VICE PRESIDENT HATCHER: I must note that an order for production of this document could have been sought a long time ago, Mr King. So there won't be too many opportunities to delay the matter to peruse it. But, anyway, at this stage you want us to mark it for identification?
PN188
MR KING: If your Honour pleases.
VICE PRESIDENT HATCHER: I am not sure whether we have marked any earlier documents for identification, so I will call it MFIA just in case.
MFI #A SURVEY
PN190
MR KING: If the tribunal pleases.
*** ROBERT PETER GIDDENS XXN MR KING
PN191
Mr Giddens, in the second sentence of paragraph 11, you refer to the shortest engagement for the drivers referred to in the surveys as being 90 minutes.
PN192
But are you aware from your other work as a coordinator of those who might work less than that, say, for example, one hour?‑‑‑I can't recall any specific instances of somebody that works an hour for a storeroom, no, I'm not aware of any.
PN193
For example, there are villages adjacent to Toowoomba and a bus trip to those villages and return could conceivably take less than hour in such a case, that's a possibility?‑‑‑Definitely, it definitely could, even going down the hill to Laidley is less than hour drive. But Bus Queensland handles that area and my understanding is that the drivers that work in the Toowoomba and surrounding areas work a minimum of two hours and some of their runs are down to as low as an hour and a half to an hour and three quarters, but they still work the two hours. You've got to remember that part of the time that they're employed, their work time commences when they start at the depot and they have got - they have 15 minutes to do a prestart check as well. So if they are doing a three quarter of an hour - hour and three quarter run, the 15-minutes prestart check is included in the two-hour minimum.
PN194
VICE PRESIDENT HATCHER: Mr Giddens, Bus Queensland, is that State owned?‑‑‑No, it's not. It's a privately owned company.
PN195
Privately owned company?‑‑‑Yes.
PN196
MR KING: Then in paragraph 12 in the second sentence you refer to the award currently provides sufficient flexibility for casual school bus drivers. But I want to suggest to you that that's not correct. Are you aware that the Fair Work Ombudsman produced an exposure draft which flushed out a particular issue regarding the uncertainty of the present provision, clause 10.5?
PN197
MR GIBIAN: I'm not sure it's an exposure draft. There was some correspondence that came to the Commission.
PN198
VICE PRESIDENT HATCHER: Discussion paper?
PN199
MR KING: That's what it's called in the document we received, your Honour.
*** ROBERT PETER GIDDENS XXN MR KING
PN200
MR GIBIAN: I assumed that that was a reference to some correspondence that was annexed to some submissions, but maybe it was a reference to something else.
PN201
MR KING: I think I said the Fair Work Ombudsman, your Honours. It was the Commission staff produced the draft.
PN202
VICE PRESIDENT HATCHER: I see.
PN203
THE WITNESS: No, I'm not familiar with that.
PN204
MR KING: I see, all right. Then paragraph 13, you say that in second sentence that most drivers tend to work at least 20 hours per week, but if a driver required flexibility and only wanted to work 10, the company could employ the driver for morning and afternoon runs only. But I want to suggest to you that under the present arrangements that's not possible because the effect is that the company will be charged for 20 hours?‑‑‑What I meant by that, and I thought it'd be fairly obvious, that if the driver only wanted to work 10 hours, for instance, he could do the morning shift and they could have another driver that also wanted to do 10 hours and work the afternoon shift. The driver's obligation is to work two hours per engagement, so he's not locked in to working 20 hours a week, two hours in the morning and two hours in the afternoon. The flexibility is there. He may wish to do two days in the morning and three afternoon days and obviously through job sharing arrangements and the fact that he was a casual employee, the flexibility is there where he could employ - the owner or the operator could employer somebody to work the alternates.
PN205
You mentioned flexibility, but what I'm putting to you is that as a matter of practicality, the proposal of APTIA affords greater flexibility particularly with respect to aged workers. What do you say to that?‑‑‑Well, again the flexibility is there. If he wants to work less hours, then he has got the flexibility to do it. We actually have an EBA operating in Queensland where job-share is part of the flexibility agreement and that's not just restricted to permanents. It's restricted to all employees, so they can actually job-share if they wish. We have a situation at the largest private company in Queensland where due to domestic situations where each parent has to have the child for a week on, week off, we have a number of - or two drivers that I'm aware of that share and they work a week about and they are permanent employees. I don't see why that sort of arrangement, be it a formal arrangement or whether it's just ad hoc arrangements couldn't be incorporated for school bus drivers who tend to want to work the 20 hours but may not in some instances. And I admit that there will be some instance where there are drivers that may not wish to work 20 hours a week. They may wish to work mornings or afternoons or a mixture of both.
*** ROBERT PETER GIDDENS XXN MR KING
PN206
Have you read the TWU submission in reply, have you, Mr Sheldon, the national secretary?‑‑‑No, I haven't.
PN207
Can I suggest to you that the flexibility that was written into the Retail Industry Award 2010 General, with respect to the particular circumstances of young persons in relation to the retail industry is also applicable to the casual school bus industry because of the large number of elderly folk many of whom either do not wish to have a significant increase in their income or for some other reason only want to have flexible hours. What do you say to that?
PN208
MR GIBIAN: I object to that. I think that's asking an opinion of such breadth that is not going to be of great use to the Commission.
PN209
VICE PRESIDENT HATCHER: I think for that to be a fair question, you would need to disclose the basis upon which there was a change in the Retail Award in relation to the circumstances of working school students.
PN210
MR KING: If your Honours please.
PN211
Can I just ask you, Mr Giddens, about paragraph 17 of your statement? And I think I have already suggested to you that the present arrangements do not offer sufficient flexibility for drivers who wish to work and employers who wish to employ them for hours of less than 20 per week. And that the job sharing arrangements for employing the use of additional drivers in the way that you have described there, isn't an alternative?‑‑‑I think I have answered that. I don't understand why it's not an alternative. There's no restrictions whatsoever apart from the minimum two hours per engagement as to whether or not somebody is employed for 20 hours or 15 hours, 10 hours. It's irrelevant. I think that it's an arrangement, a work arrangement between a casual employee and his employer as to how many days he wishes to work. When somebody is in the industry on a part-time basis, they decide together mutually agreeable on the hours and the days that they would work. The same situation can be used for school bus drivers and, I would imagine, is used for school bus drivers where they may not wish to work 20 hours a week. As I've said before, there's no reason why they can't work two hours every morning for five days or two hours in the afternoon or a combination of either - a mix. I just don't understand where the question is because the flexibility arrangements are already there by the very nature of their employment being casual.
PN212
In that last answer you gave, you referred to the word 'engagement'. What did you mean by the word 'engagement' in that answer?‑‑‑School bus drivers are employed for a minimum engagement of two hours.
*** ROBERT PETER GIDDENS XXN MR KING
PN213
So do you treat each engagement as the shift for the day including a broken shift?‑‑‑No, I treat each engagement as an actual engagement of employment. It's not a shift. It's an engagement as per the Passenger Vehicle Transportation Award.
PN214
In relation to paragraph 21 of your statement, can I suggest to you that the observation you make there doesn't address the issue of country town operations?‑‑‑I believe that they can. They may be able to extend. I haven't worked in a country area. I'm not overly familiar with country town operations. I am aware of one company which I referred to in number 19 in my statement, paragraph 19, in relation to Stewart's Coaches who wanted the flexibility and then as a result they have employed some of their drivers, their casual school bus drivers, on a three by two. So they actually do 12 hours in one week and eight hours the following week and that's been very unsatisfactory as far as the employees go who wish to do 20 hours each week or more.
PN215
Do you have an understanding of how many or what proportion of the casual school bus drivers that you were aware of in Queensland who are aged 60 or more?‑‑‑I would put that figure around about the 30 to 35 per cent.
PN216
I want to suggest to you that it's at least twice that number?‑‑‑Well, I haven't got the figures in front of me, so I can't give an exact figure. But I believe it's in excess of 30 per cent.
PN217
In excess?‑‑‑In excess, yes. I don't believe - I think the average age in the industry is about 54 years.
PN218
Nothing further.
PN219
VICE PRESIDENT HATCHER: Any re-examination, Mr Gibian?
MR GIBIAN: Yes, I think there is just one matter.
RE-EXAMINATION BY MR GIBIAN [10.54 AM]
PN221
MR GIBIAN: Mr Giddens, you were asked about the evidence you gave in paragraph 11 in relation to the average run for a school bus driver where you say in the first sentence in paragraph 11 that in your experience the average run for a school bus driver is around two hours with the run ranging from 90 minutes to two and a half hours. Do you see that?‑‑‑Yes.
*** ROBERT PETER GIDDENS RXN MR GIBIAN
PN222
In answer to those questions, you referred to work time in addition to the actual run itself?‑‑‑Yes.
PN223
I think you specifically mentioned pre departure checks; do you recall that?‑‑‑Yes, yes, I do.
PN224
I just want to ask, with respect to paragraph 11, are the time periods you refer to in paragraph 11 intended to refer to the run only, that is, excluding other work time?‑‑‑Yes, yes.
PN225
MR KING: It doesn't say that.
PN226
MR GIBIAN: That's why I am asking him to clarify in regard to the cross-examination.
PN227
In relation to pre departure checks, what does that involve?‑‑‑That's when they actually go out to the bus or they gather their equipment. It could be their cash tins, check ticketing, that sort of thing. They go out to the vehicle. They start the vehicle up and then they do a walk around to make sure that everything is in order, lights are working, belts are fitted, make sure the tyres are up. Some yards, especially the regional yard, they actually have to check the oil levels and the fluid levels in the vehicle and make sure the bus is operating and safely to operate. And while they're doing that, the air is building up to enable the brakes to release so they can actually drive it away.
PN228
VICE PRESIDENT HATCHER: Is that something you just do in the morning or also in the afternoon?‑‑‑No, it's per bus. Each bus you drive you must do that check. If you're changing over and you're afternoon shift and have a different bus, you must check that. The driver is wholly responsible for that bus being checked.
PN229
Thank you.
PN230
MR GIBIAN: Does fuelling also occur in that period?‑‑‑In the region areas, a lot of companies now have actually done away with fuels, so, yes, they are often fuelled as well. In the regional areas, they tend to fuel every two days on average, but they're still given - and they're normally given extra time. In the EBAs that I've worked on, they're given extra time if they do have to re-fuel every day.
*** ROBERT PETER GIDDENS RXN MR GIBIAN
PN231
VICE PRESIDENT HATCHER: In Queensland, are there still buses who do cash collection for fares?‑‑‑Yes, yes, there is, yes, because they operate through the card system, the Go Card system, but they also have weekly and they also have part passes as well which are a cheaper version of the weekly.
PN232
Thank you.
PN233
MR GIBIAN: In the previous answer you gave, you indicated that companies had done away with fuellers. Do we understand those to be specifically employed employees to refuel vehicles?‑‑‑Yes, well, some companies are contracting them out now. Others still employ. They do - normally they are cleaners and refuellers so they do both jobs. But there are companies that don't employ people to fuel the buses and they also provide - they also allow the - or get the drivers to clean the buses as well on the inside at least. A lot of them do them on the outside as well. So the driver, it becomes part of their duties and therefore where they have a run it might be only an hour and a half, they use that extra half hour to either fuel or clean or service the bus to limit the services.
PN234
If cleaning is done, is that done upon return to the depot after the run?‑‑‑It's often done once a week. It could - they could do various aspects of it. Like, it might be sweep the floors. Well, they sweep the floors at the end of every shift, every start, morning and afternoon, just to make sure it's clean. They may vacuum seats. One day a week they may do windows, internal windows, external - and do the external things, yes.
PN235
When the driver returns to the depot after a school run, are there any other duties that they might perform?‑‑‑Normally it would be shutting down the bus, securing it, making sure everything is okay, doing the sweep out, fueling if it needs to be fuelled, and then going back and accounting for the revenue that's been taken and balancing the books.
PN236
Thank you, Mr Giddens.
PN237
MR KING: Just arising from that briefly, if I may.
VICE PRESIDENT HATCHER: Yes.
FURTHER CROSS-EXAMINATION BY MR KING [10.58 AM]
PN239
MR KING: Mr Giddens, do you agree that the pre-run and post-run duties to which you have just referred form part of the engagement?‑‑‑Yes, they do.
*** ROBERT PETER GIDDENS FXXN MR KING
PN240
I suggest that the evidence that you have just given embellishes what you have said at paragraph 11?‑‑‑In paragraph 11, I stated that the typical school bus run ranging from 90 minutes to 2.5 hours. I was referring in paragraph 11 to the bus run itself as opposed to the start time and finish time.
PN241
But in the second sentence you refer to the engagement about which I asked you earlier?‑‑‑That's correct.
PN242
You say that engagement for 90 minutes includes the up to half-hour pre-run and post-run?‑‑‑I refer to the shortest engagement, yes. So the run could be quite easily an hour and 15 minutes with the extra allowance for - some companies only allow 10 minutes to pre-start, other companies allow 15 minutes. And some companies I have recently found out don't allow any time and expect the drivers to come in early to do all that sort of work prior to them signing on and being paid.
PN243
Have you ever done that yourself?‑‑‑Some in early? No.
PN244
Nothing further.
PN245
VICE PRESIDENT HATCHER: Any further re-examination, Mr Gibian?
PN246
MR GIBIAN: No, your Honour.
PN247
DEPUTY PRESIDENT BULL: Mr Giddens, just a couple of questions about paragraph 17 and 18 of your statement there. You say at 17 that the employees already have a flexibility under the award to enter into job sharing arrangements or employing additional drivers. And then you say that these types of arrangements have been introduced into enterprise agreements, at 18, that you have negotiated such terms in those agreements?‑‑‑Yes.
PN248
So does that mean you have just taken the award provisions and put them in the agreements or you have negotiated something different?‑‑‑Well, I've negotiated job sharing arrangements in the Surfside Enterprise Agreement - - -
*** ROBERT PETER GIDDENS FXXN MR KING
PN249
What I am trying to work out is if you say the award already has the flexibility to do that, why do you need to negotiate it into an agreement?‑‑‑The award flexibility agreement provides for five standards and that's when work is perfect, when overtime - the remuneration for overtime, long service leave and there's a couple of others I can't recall at the moment. Job sharing is not listed in the award, but it's something that we have negotiated into the flexibility agreement within an EBA.
PN250
Is it correct then if you say job sharing is not in the award, can you do it under the award or not?‑‑‑There's no reason - it's a flexibility arrangement. There's no reason why you can't. But what I'm saying with the flexibility under the award because the school bus drivers are employed for a minimum engagement of two hours, they're not restricted to the number of days. They're not also restricted to the number of hours that may be worked in a week. As I've said before, if a school bus driver only wanted to work Monday, Tuesday, Wednesdays, and it suited the employer to employ him for Monday, Tuesday, Wednesdays, and then there's somebody else to work Thursday, Friday, then that flexibility is there because they only have a two-hour minimum engagement.
PN251
VICE PRESIDENT HATCHER: That is, you don't need a flexibility agreement do to that?‑‑‑No.
PN252
The award just allows it?‑‑‑No, that's right, because it's just casual.
PN253
DEPUTY PRESIDENT BULL: But in practice, does that actually happen under the award?‑‑‑I'm not aware of any situations where anybody has. We actually haven't. I'm not aware of any job share that we actually have in the school bus only drivers because the majority of school bus drivers wants to work the 20 hours and when they are offered the employment, they're offered the employment at 20 hours and that stays whether they decide whether they wish to work the 20 hours or not. The biggest bone of contention that I have with school bus drivers is that they're doing an EBA and they do look at the wage increase and do a calculation on how it's going to impact on their pensions, for instance, and my answer to that is, well, you are able to salary sacrifice any additional to keep you within those limits and those guys - - -
PN254
Thank you.
PN255
VICE PRESIDENT HATCHER: Mr King, may this witness now be excused?
PN256
MR KING: If the Commission please.
VICE PRESIDENT HATCHER: All right, Mr Giddens, you're excused and you're free to go?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.02 AM]
PN258
VICE PRESIDENT HATCHER: Who is the next witness, Mr Gibian?
*** ROBERT PETER GIDDENS FXXN MR KING
PN259
MR GIBIAN: I'm not sure should be done with the survey that was marked for identification.
PN260
MR KING: I just want to look at it.
PN261
MR GIBIAN: Anyway, we will deal with that in due course. Mr Murray was the next witness.
PN262
VICE PRESIDENT HATCHER: All right.
PN263
MR GIBIAN: As I indicated, that document has names on it. We would ask that access to it not be extended beyond Mr MacDonald and Mr King.
PN264
VICE PRESIDENT HATCHER: Extended beyond who?
PN265
MR GIBIAN: Mr MacDonald and Mr King?
PN266
VICE PRESIDENT HATCHER: Is that sufficient for you to allow you to examine the document, Mr King?
MR KING: Yes.
<NORM MURRAY, AFFIRMED [11.03 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [11.03 AM]
PN268
VICE PRESIDENT HATCHER: Mr Gibian.
PN269
MR GIBIAN: Thank you, Mr Murray. Can you just give your full name for the record?‑‑‑Norm Murray.
PN270
You have given an address that as care of 11 Alexandra Place, Murarrie?‑‑‑That's the TWU office.
PN271
You are a casual bus driver with Surfside Buslines?‑‑‑That's correct.
*** NORM MURRAY XN MR GIBIAN
PN272
You have made a statement for the purpose of these proceedings dated 18 February this year. Do you have a copy of that with you?‑‑‑Yes, I do.
PN273
It's two pages and runs for some 14 paragraphs?‑‑‑That's correct.
PN274
I would ask that be admitted into evidence.
VICE PRESIDENT HATCHER: Yes, the statement of Norm Murray dated 18 February 2016 will be marked exhibit 271.
EXHIBIT #271 STATEMENT OF NORM MURRAY DATED 18/02/2016
PN276
MR GIBIAN: Thank you, Mr Murray. Mr King will ask you some questions now.
PN277
VICE PRESIDENT HATCHER: Mr King.
MR KING: Thank you.
CROSS-EXAMINATION BY MR KING [11.05 AM]
PN279
MR KING: Mr Murray, could you look at paragraph 4 of your statement, please?‑‑‑Yes.
PN280
You say that of your own knowledge that the profile of your depot is typical of the Queensland bus depots relating to casual bus drivers for schools?‑‑‑The three depots that we have in our company?
PN281
Yes?‑‑‑I'd say it would be pretty close, yes.
PN282
Of course older drivers have their own special requirements, don't they, with respect to flexibility for workplace arrangements?‑‑‑In what regard?
PN283
For example, they may wish to place a cap on revenue for pension purposes?
*** NORM MURRAY XXN MR KING
PN284
MR GIBIAN: I'm not sure whether Mr Murray is being asked about his own circumstances or what he has been told by somebody else. Presumably, he could only give evidence about what he has been told are the concerns of others. But the basis of the question ought to be made clear so that the Commission is in a position to evaluate - well, any objection could be made and the Commission is in a position to assess the nature of the evidence.
PN285
VICE PRESIDENT HATCHER: If you don't mind me asking, Mr Murray, how old are you?‑‑‑Fifty-five.
PN286
So you are not in receipt of a pension yet?‑‑‑Not yet.
PN287
Do you have any knowledge about arrangements for collecting a pension and earning extra income?‑‑‑I have some knowledge, yes.
PN288
Perhaps you proceed, Mr King, and we will see how far we get.
PN289
MR KING: Thank you.
PN290
So, for example, there are some older drivers who are in receipt of a pension wish to put a cap on what they earn so that they don't treat it as their pension entitlements?‑‑‑I wouldn't say a cap. I'd say they are very wary of what they do so they don't affect their pension.
PN291
Other reasons may include the fact that they might be a carer and have a commitment at one period of the day, say, the afternoon, which makes them free in the morning, but not the afternoon?‑‑‑I personally know one that is a carer for his wife who is very sick. He does his morning shift, looks after her during the day and then does his afternoon shift.
PN292
At paragraph 6 of your statement, you say that the current provisions provide for a minimum of two hours per engagement. But if there were a job sharing arrangement or an arrangement for different starts by different employees in respect of a particular shift, the result would be that the employer would have to pay three hours for each of those two shifts. That's not reasonable, is it?
PN293
MR GIBIAN: I object to that. I'm not sure that - - -
PN294
VICE PRESIDENT HATCHER: So, Mr King, you have to explain the premise of that question because, I confess, I didn't follow it. Can you?
*** NORM MURRAY XXN MR KING
PN295
MR KING: Yes, I don't understand it.
PN296
What do you mean by a lesser minimum payment of hours in the first sentence of paragraph 6?‑‑‑Well, I believe I did because you're trying to get the minimum engagement down to one hour per day per engagement, and currently we get two.
PN297
Do you see the TWU proposal as being a minimum shift proposal in respect of either four or six hours?‑‑‑I don't know where the four/six comes from.
PN298
MR GIBIAN: I object to that. That's not the TWU's proposal.
PN299
VICE PRESIDENT HATCHER: There is an ACTU proposal, Mr King, is that what you're addressing?
PN300
MR KING: Yes.
PN301
VICE PRESIDENT HATCHER: Perhaps you will need to make it clear to the witness what the ACTU proposal is so that he understands that before he answers the question.
PN302
MR KING: Are you aware of the ACTU proposal in respect of a four-hour minimum casual engagement period?‑‑‑I was made aware of that this morning.
PN303
You weren't aware of that when you prepared your statement?‑‑‑No, no, I wasn't.
PN304
If you could have a look, please, at paragraph 10 of your statement. Isn't it the case that drivers who wish to reduce their hours, assuming that they are members of the TWU or are entitled to claim benefits under the 2010 award, are in a situation where neither they nor the company accommodate the request of the type that you have referred to in that paragraph?‑‑‑I don't see - - -
PN305
MR GIBIAN: I don't know what the premise of that question was.
PN306
MR KING: I am asking about his paragraph.
PN307
MR GIBIAN: He has asked whether other people ought be aware of some restriction in the award which was unspecified that might affect what is said to be a general request to work fewer hours.
*** NORM MURRAY XXN MR KING
PN308
VICE PRESIDENT HATCHER: So, Mr Murray, when you say fewer hours, you mean fewer hours than 20 per week?‑‑‑Yes, exactly.
PN309
Is that what your question is directed at, Mr King?
PN310
MR KING: Yes.
PN311
VICE PRESIDENT HATCHER: All right. Can you just state the question again?
PN312
MR KING: I will move on if I may, your Honour.
PN313
Can I ask you about paragraph 11 of your statement, Mr Murray? Have you had experience of job sharing arrangements in relation to casual bus drivers for schools?‑‑‑I actually negotiated a job sharing arrangement for two permanent drivers who were told by the operational staff that it wasn't possible to be done. After investigating it, I found it could be done under the NES, so I went in there and I got that arrangement completed for them. Currently, I do know of some older drivers now who are looking to cut back and are interested in job sharing arrangements, whether that be casual or permanent or permanent part time. But I do believe it's got to be accommodated anyway under the NES, that's my understanding, whether they're in the TWU or not.
PN314
You're aware of the minimum requirement of three hours?‑‑‑Currently with us, it's four.
PN315
I want to suggest to you it would be unreasonable for the employer to have to pay for two periods of three hours or four hours when the amount of time being worked is, say, one hour?
PN316
MR GIBIAN: I object. There is not a proposal that there be two periods of three hours or two periods of four hours for school bus drivers.
PN317
VICE PRESIDENT HATCHER: I think when this was raised in the context of the ACTU proposal, it was explained that in the context of school bus drivers it would mean two lots of four hours. I thought that's the way it was explained, but may recollection is wrong.
PN318
MR KING: Yes, no, that's correct, your Honour.
*** NORM MURRAY XXN MR KING
PN319
VICE PRESIDENT HATCHER: Mr Gibian.
PN320
MR GIBIAN: Your Honour has an advantage over me in that I wasn't present at that time.
PN321
VICE PRESIDENT HATCHER: I think Ms Carr was there, but my recollection -- -
PN322
MR GIBIAN: Ms Carr is shaking her head.
PN323
VICE PRESIDENT HATCHER: My recollection was that I asked that question and the answer was that it would lead to two four-hour periods. But maybe my recollection is wrong.
PN324
MR GIBIAN: I am told that that's not our understanding of the intention of either of the TWU's or the ACTU's proposal so far as it would apply to casual bus driver.
PN325
VICE PRESIDENT HATCHER: Can you add to this debate, Mr Fleming?
PN326
MR FLEMING: I'm just checking that now. I'm reading against the award. But looking at the draft determination it does look like two periods of four hours.
PN327
VICE PRESIDENT HATCHER: Maybe it was you who answered the question.
PN328
MR KING: Perhaps I will ask another question if I may, with respect to your Honours.
*** NORM MURRAY XXN MR KING
PN329
I want you to assume that there are employees who pay per engagement, that is per start, to simplify the proposition, three hours. Now, what I'm putting to you is that it is not a demonstrate of a flexible work arrangement if the employee is required to and indeed only needs to work one hour or even one and a half hours to perform his or her service. And yet the employer is limited in employing or engaging that person by the requirement that he or she pays or it pays the person three hours or four hours, as you mentioned?‑‑‑Okay. Currently we have a situation in our company where we cannot get enough school bus drivers. (a) because the hours alone, the 20, now are insufficient. So what's happening now is because we're so short of school drivers, they're calling in permanents on their days off to fill those school runs. Now, those school runs may be two hours in the morning. That permanent is coming in to do that two hours at double time - eight hours pay. So to say that we are arguing over three hours here when we have got - we can't cover the shifts now.
PN330
Nothing further.
PN331
VICE PRESIDENT HATCHER: Any re-examination, Mr Gibian?
PN332
MR GIBIAN: Can I just have a moment, your Honour?
PN333
VICE PRESIDENT HATCHER: Yes.
PN334
MR GIBIAN: No, your Honour. Thank you, Mr Murray.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Murray. You are excused, you're now free to leave.
<THE WITNESS WITHDREW [11.15 AM]
PN336
VICE PRESIDENT HATCHER: So who is next? Mr Edwards?
MR GIBIAN: Yes, your Honour.
<THOMAS WILFRED EDWARDS, AFFIRMED [11.16 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [11.16 AM]
PN338
VICE PRESIDENT HATCHER: Mr Gibian.
PN339
MR GIBIAN: Thank you, Mr Murray. Can I just get you to repeat your full name for the record? Sorry, Mr Edwards?‑‑‑Yes, Thomas Wilfred Edwards.
PN340
Can I get you to repeat your full name for the record?‑‑‑Yes, Thomas Wilfred Edwards.
PN341
In the statement that you have made which is that a statement in reply you have given the TWU's address at care of 11 Alexandra Place in Murarrie?‑‑‑Correct.
*** THOMAS WILFRED EDWARDS XN MR GIBIAN
PN342
You are currently a casual bus driver employed with Kangaroo Bus Lines?‑‑‑When the statement was written, yes. I'm now permanent.
PN343
When did that come about?‑‑‑Approximately two months ago.
PN344
You have made a statement for the purpose of these proceedings which was dated 15 February this year?‑‑‑That's correct.
PN345
You have got a copy of that with you?‑‑‑I do.
PN346
I think it runs to some four pages, 13 paragraphs?‑‑‑That's correct.
PN347
I would ask that be admitted into evidence, your Honour.
VICE PRESIDENT HATCHER: Yes, the statement of Tom Edwards dated 16 February 2016 will be marked exhibit 272.
EXHIBIT #272 STATEMENT OF TOM EDWARDS DATED 16/02/2016
PN349
MR GIBIAN: Thank you, Mr Edwards.
PN350
VICE PRESIDENT HATCHER: Mr King.
MR KING: Thank you, your Honour.
CROSS-EXAMINATION BY MR KING [11.17 AM]
PN352
MR KING: Would you have a look at paragraph 4 of your statement, thanks, sir?‑‑‑Yes.
PN353
Would you agree with me that most of the casual school bus drivers are older than 55?‑‑‑No, well, at my company, everyone starts as a casual bus driver. So even to average that out, I don't think it would be over 55 as an average, no.
*** THOMAS WILFRED EDWARDS XXN MR KING
PN354
I didn't ask you about the whole of the casuals. I asked you only about the casual school bus drivers. That is, the people who drive the young children or the children to and from school in mornings and afternoon?‑‑‑Yes, and everyone that starts with Kangaroo Bus Lines as a casual school bus driver falls under what you have just said. We have one driver at the moment that is 26 years old.
PN355
Can I ask you about paragraph 10 and perhaps 11 of the statement at the same time? Would it be fair to say that there are a significant number of casual school bus drivers about which you have given evidence for whom this would be their last job?‑‑‑I would think that's the case, yes.
PN356
A number of those for varying reasons are looking for flexibility in their workplace arrangements such as, for example, not wanting to engage a concern about their pension entitlements or the like?‑‑‑Although I'm not an authority on pension entitlements, I certainly know some drivers do limit the hours they work per week so that they don't get entitlements taken off them.
PN357
And some others are, particularly the elderly drivers, are maybe carers or they may have health issues that might make it appropriate for them to limit their engagements in the way you have just described?‑‑‑I don't know of any drivers at KBL that fill a carer role from a pension point of view, but I guess it's possible.
PN358
So in this particular industry, that is casual school bus drivers, there is a particular desirability from a social point of view for flexibility in relation to the workplace arrangements, would you agree?‑‑‑I know at Kangaroo Bus Lines there are a number of drivers already who have negotiated with our employer to work less hours simply because of whatever their personal requirements might be. To throw a curve ball in, we have a driver - and he is an older driver - who doesn't work Wednesday afternoon so he can go and play golf.
PN359
To throw back your curve ball, Mr Ferris will give evidence of another driver who is a professional golfer in the sense that he gives professional golf lessons in the afternoon and drives in the morning. That would be another example. Do you agree?‑‑‑Sure.
PN360
Nothing further.
PN361
VICE PRESIDENT HATCHER: Any re-examination, Mr Gibian?
MR GIBIAN: Yes.
RE-EXAMINATION BY MR GIBIAN [11.21 AM]
*** THOMAS WILFRED EDWARDS RXN MR GIBIAN
PN363
MR GIBIAN: Sorry, Mr Edwards, in relation to Kangaroo Bus Lines, you indicated in answer to a question Mr King asked you that everyone starts as a casual school bus driver?‑‑‑Correct.
PN364
Do we understand correctly that Kangaroo Bus Lines also undertakes other bus routes or coach services?‑‑‑Sure, we do everything across the board, charter work, urban work. JetStar and Virgin Airline when for whatever reason a flight is cancelled. We do contract work with mines. Tour work with, you name it, Kangaroo Bus Lines has people doing it.
PN365
If the general arrangement is that a worker who commences for the first time with the company starts as a casual school bus driver, how might they progress from there into other work?‑‑‑Yes, generally there is a three-month probation and then depending on - they would talk with operations in regards to the sort of work that they would like to do, then they will most likely move into that area of work.
PN366
Is it a kind of seniority basis at least as a general proposition or - - -?‑‑‑No, not necessarily. Operations will determine if they feel the bus driver is appropriate for what they are asking, even if he is required in that type of work.
PN367
Thank you, Mr Edwards.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Edwards. You're excused, you're now free to leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.23 AM]
PN369
VICE PRESIDENT HATCHER: So is that all your witness for this morning, Mr Gibian?
PN370
MR GIBIAN: There were also a number of statements of a person not required.
PN371
VICE PRESIDENT HATCHER: So the first one is Mr Zander, is that right?
PN372
MR GIBIAN: Yes, your Honour.
PN373
VICE PRESIDENT HATCHER: Can you identify the date on that statement, Mr Gibian? Is that the 18th?
*** THOMAS WILFRED EDWARDS RXN MR GIBIAN
PN374
MR GIBIAN: I think it is 18, yes.
VICE PRESIDENT HATCHER: The statement of Matthew Zander dated 18 February 2016 will be marked exhibit 273.
EXHIBIT #273 STATEMENT OF MATTHEW ZANDER DATED 18/02/2016
PN376
VICE PRESIDENT HATCHER: The next on is Mr Pink; is that right?
PN377
MR GIBIAN: Yes.
VICE PRESIDENT HATCHER: So the statement of Steve Pink dated 20 February 2016 will be marked exhibit 274.
EXHIBIT #274 STATEMENT OF STEVE PINK DATED 20/02/2016
PN379
MR GIBIAN: Thank you, your Honour.
PN380
VICE PRESIDENT HATCHER: So now we turn to your witnesses, Mr King.
MR KING: If the Full Bench pleases, I will call Mr Doolan.
<BENJAMIN JAMES DOOLAN, AFFIRMED [11.25 AM]
EXAMINATION-IN-CHIEF BY MR KING [10.25 AM]
PN382
VICE PRESIDENT HATCHER: Thank you.
PN383
MR KING: Can you give your full name and address to the Full Bench, if the Commission please?‑‑‑Benjamin James Doolan of (address supplied).
PN384
You are the managing director of Australian Transit Group Pty Ltd or ATG which principally operates in Western Australia and the Northern Territory?‑‑‑Yes.
PN385
Have you prepared a statement, Mr Doolan, of the evidence that you give to the Full Bench dated 9 October 2015?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XN MR KING
PN386
I tender it.
VICE PRESIDENT HATCHER: The statement of Benjamin Doolan dated 9 October 2015 will be marked exhibit 275.
EXHIBIT #275 STATEMENT OF BENJAMIN DOOLAN DATED 09/10/2015
PN388
MR GIBIAN: I think we did have some objections which I am content to be treated in the same way.
PN389
VICE PRESIDENT HATCHER: I will note the objections, Mr Gibian.
PN390
MR KING: Nothing further.
PN391
VICE PRESIDENT HATCHER: Mr Gibian.
MR GIBIAN: Yes.
CROSS-EXAMINATION BY MR GIBIAN [11.26 AM]
PN393
MR GIBIAN: Thank you, Mr Doolan. In your statement you indicate that the company has over 500 employees, I think?‑‑‑Yes.
PN394
I take it those are overwhelming bus drivers. That is, there is administrative employees, but that's a relatively small part?‑‑‑Yes, that's right, yes.
PN395
How many administrative employees are there?‑‑‑There's about 30.
PN396
The remainder are bus drivers?‑‑‑Yes.
PN397
You have said, and this is over on paragraph 10, that the overwhelming majority of those are casual employees?‑‑‑Of the bus drivers, yes. I note in that number 10 that I've said - that says 75 per cent of the administration staff are casual, that's probably the other way around. It should be full time, I think.
PN398
I'm not sure we're overly concerned with the administrative employees here?‑‑‑No.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN399
But if you want that to be noted. In your statement, you have also said that the terms and conditions of the bus drivers employees at least are governed by the Passenger Vehicle Transport - I think it's actually the Transportation Award; correct?‑‑‑Yes, yes.
PN400
Do you also have enterprise agreements?‑‑‑We have enterprise agreements at different operations around the state.
PN401
So are we correct in understanding at some locations employees would be covered by enterprise agreements, at other locations they would be directly covered by the award?‑‑‑Yes.
PN402
Has that just arisen because of historical circumstances, that is, has the company made a particular choice at certain locations to have enterprise agreements and not at others?‑‑‑Not an active choice. It's been just the nature of some depots or operations have wanted an agreement. We're not adverse to agreements, but predominantly we would rather work to the award.
PN403
At least so far as you have employees covered by enterprise agreements, I take it you understand that any change to the award would not directly affect their conditions of employment at least immediately?‑‑‑Yes.
PN404
Just in relation to the work of casual school bus drivers who you do employ, now, as you have said, they are overwhelmingly employed as casuals; correct?‑‑‑Yes.
PN405
Notwithstanding that they are employed as casuals, the pattern of work is regular; correct?‑‑‑Yes, predominantly for the school bus driver, yes.
PN406
That is, you will employ a school bus driver in most cases to work a morning and afternoon shift five days a week?‑‑‑Yes.
PN407
A morning and afternoon engagement five days a week; that's correct?‑‑‑Yes, yes, yes.
PN408
To drop off in the morning, pick up and drop home in the afternoon?‑‑‑That's the ideal if they want to work that, yes.
PN409
And that that will be obviously enough regular for 40 weeks of the year?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN410
No doubt you switch people around as necessary, but so far as possible drivers might continue to do the same run week in, week out?‑‑‑Yes.
PN411
Starting at the same time and finishing at the same time, et cetera; correct?‑‑‑Generally, generally, yes.
PN412
And for most drivers at least, the situation is, I take it, that they do both the morning and the afternoon runs?‑‑‑Yes.
PN413
And will have an unpaid period during the middle of the day?‑‑‑Yes.
PN414
VICE PRESIDENT HATCHER: Is that because they want to do that, or because you require it, or?‑‑‑A bit of both, mostly, yes. A lot of the operations, there is no other work besides the school bus run, morning and afternoon.
PN415
MR GIBIAN: Your understanding, at least, is that most drivers who do school bus work will want to do both the morning and the afternoon?‑‑‑Yes.
PN416
I think you indicate, and this is in paragraph 14 on the second page of your statement, that a dedicated casual school bus driver may only work in the morning. Do you see that?‑‑‑Some - I have drivers that request all sorts of arrangements, you know. The general rule is we'd rather them work morning and afternoon for scheduling purposes, obviously. But, yes, no, every combination is possible.
PN417
Without
going to precise numbers, the overwhelming majority of school bus drivers do
both morning and afternoon
runs?‑‑‑The majority, yes.
PN418
You have some who have, for whatever reason, requested only doing the morning or only doing the afternoon, is that right?‑‑‑Yes.
PN419
And that's something you're able to accommodate, at least some of the time?‑‑‑Some of the time.
PN420
That
is, you may have a request which you are not able to accommodate, just for
practical or scheduling
reasons?‑‑‑Well, and the limitations of the award, as well.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN421
SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, does the award prevent you having people do two hours in the morning, and not do the two hours in the afternoon? Is there anything in the award that stops that?‑‑‑Well, our advice has always been that it has to be - that they're on a three hour - you know, if it - - -
PN422
They're just doing - so I'm thinking of people on school runs?‑‑‑Well, we've sort of worked on the assumption that if they only do a two hour shift, they get paid a three hour minimum. So I was interested in one of the earlier witnesses saying that's not the case, but that's not the advice we've always got all the way through.
PN423
VICE PRESIDENT HATCHER: When you say advice, advice from whom?‑‑‑From the Western Australian association.
PN424
SENIOR DEPUTY PRESIDENT HAMBERGER: Even if they're just doing school runs?‑‑‑Yes.
PN425
MR GIBIAN: Now, in paragraph 14 you indicate that a dedicated school bus driver may only work in the morning, and I think in answer to the question I asked you, you said that that has happened. You've had such requests?‑‑‑Yes.
PN426
How many of those requests have you accommodated, that is the only - well, maybe how many drivers do you currently have who would do only a morning?‑‑‑I couldn't tell you off the top of my head.
PN427
Do you know whether it's one or two, or 10 or 15, or are you unable to say?‑‑‑Off the top of my head, no.
PN428
And is that because you don't directly deal with those kinds of requests, or the scheduling, that that's other people in the company - - -?‑‑‑Well, that's right, day to day scheduling - but, you know, there would always be a multitude drivers that, with the age of our workforce, have appointments, or, you know - got to look after their grandkids in the afternoon, for whatever reason. You know, the reasons are long and varied.
PN429
But at least so far as you're able to give evidence of, you don't have that direct involvement, so you can't tell us how many we're talking about?‑‑‑Not an exact number, no.
PN430
Now, in paragraph 15 you indicate that a school bus driver may do other work in the middle of the day for the company. Charter work?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN431
And, again, that's just a matter which depends upon what work the company has available?‑‑‑Yes.
PN432
Are there school bus drivers who have regular charter work in the middle of the day, between school runs, or is it really an occasional?‑‑‑I sometimes have more work than others, certainly, but, you know, we can't predict when a school is going to book to the zoo, or whatever. You know, it really is ad hoc by nature.
PN433
That is there's not school bus drivers who every day go and do charter work in the middle of the day?‑‑‑No, not every day, no.
PN434
The school bus runs are undertaken by the company under contract with the WA Department of Transport?‑‑‑Yes.
PN435
At least in Western Australia, I assume?‑‑‑Yes.
PN436
You
also have school bus runs in the Norther
Territory?‑‑‑Yes.
PN437
And are they under contract with the Northern Territory Government?‑‑‑Yes.
PN438
Now, you say in paragraph 6 that you tender for services based on the wages assumptions in the Passenger Vehicle Transportation Award?‑‑‑Yes.
PN439
You
then, and this is at the top of the second page of the statement, express a
concern in relation to any change that would have a significant increase -
sorry, that any change to the award would have a significant impact on the
viability of the services. Do you see that?‑‑‑Yes.
I take it you're there referring to a concern about any change that would
increase the costs of labour?‑‑‑Yes. Yes.
PN440
Over and above at least your understanding of the present requirements of the award?‑‑‑Yes.
PN441
Tell me if you know this or don't, but I did find one of the enterprise agreements that you do seem to have, in relation to Geraldton. Do you have any familiarity with the enterprise agreement?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN442
You do? In fairness, I can just provide the witness with a copy. It may be unnecessary to do anything else with it. If I can just ask the witness a question about it. The title of the agreement is the ATG Geraldton Enterprise Agreement 2014, which was approved by the Commission on 29 April 2014. If you just go to the text of the agreement, you'll see there's page numbers at the bottom of the page. Do you see that?‑‑‑Yes.
PN443
Just so we can orient ourselves, you'll see that on page 3, clause 3 first of all deals with the date and operation, and indicates that the agreement has a normal expiry date in March 2018. Do you see that?‑‑‑Yes.
PN444
Then clause 4 deals with application and scope, and indicates that the agreement shall apply to all employees who are employed are passenger transport drivers by the company, and provide those passenger services in or around Geraldton in Western Australia. Do you see that?‑‑‑Yes.
PN445
Now, does that include people who would be casual school bus drivers?‑‑‑It can, yes.
PN446
Do you know whether it does? That is, do you have school bus operations in Geraldton?‑‑‑Yes, we do.
PN447
You do?‑‑‑Yes.
PN448
So
I take it, it would apply to those people at
present?‑‑‑Yes.
PN449
If you go to page 5, clause 6 deals with terms of engagement. Do you see that?‑‑‑Yes.
PN450
You
see little (c), commencing right at the bottom of page 5, makes provision for
casual employees. Do you see
that?‑‑‑Yes.
PN451
It provides that a casual employee is an employee engaged by the hour, with uncertain hours and duration. Do you see that?‑‑‑Yes.
PN452
And that each engagement of a casual employee, including a broken shift, shall stand alone and cease at the end of the engagement. Do you see that?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN453
And then that a casual employee, while working ordinary hours, must be paid on an hourly basis as prescribed in the agreement, and be paid a minimum payment of three hours for each shift. Do you see that?‑‑‑Yes.
PN454
Or solely engaged for the purpose of transportation of school children during the school day, a minimum payment of two hours for each engagement. Do you see that?‑‑‑Yes.
PN455
So do you understand that provision to broadly affect the provisions of the word?‑‑‑Vaguely it's the same as the award, isn't it?
PN456
I'm asking whether you understand that?‑‑‑Yes.
PN457
Is it your understanding that it is intended to have the same effect as the award?‑‑‑Yes.
PN458
In that respect at least. So we're correct in understanding that, at least in this instance, when the company has negotiated an enterprise agreement it has not sought to alter those arrangements, or to vary those arrangements, at all - - -?‑‑‑Yes.
PN459
- - - from the award. Correct?‑‑‑Yes.
PN460
Sorry, you agree with me?‑‑‑Yes.
PN461
VICE PRESIDENT HATCHER: That clause would allow school bus drivers to be engaged on the basis they could do just a morning or just an afternoon and get a minimum of two hours?‑‑‑On this one it looks like it, yes.
PN462
You think the award is different to that?‑‑‑Well, that's the advice we've been given, yes.
PN463
MR GIBIAN: Now, in paragraph 16 on the final page of your statement, you assert that many employees, up to 50 per cent, who seek to work as casuals also seek lesser hours. Do you see that?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN464
In the first sentence of paragraph 15, you refer to lesser hours, are you referring to less than full time employment?‑‑‑No, that's probably lesser hours than their sort of - their 20 hours a week, I'd say. Obviously, I think that, probably to clear that up, is that changes every week with most of our employees. They start on a basis of 20 hours, but a week before they need to have this day off, that day off, this afternoon off, you know. That's the nature of it.
PN465
SENIOR DEPUTY PRESIDENT HAMBERGER: They're not asking for shorter minimum engagement periods, are they?‑‑‑No. No.
PN466
MR GIBIAN: Firstly, just by lesser hours, well, in part at least you're referring to - - -
PN467
MR KING: 16.
PN468
MR GIBIAN: Sorry?
PN469
MR KING: In 16, not 15.
PN470
MR GIBIAN: Sorry, either I or the witness may have referred to paragraph 15 instead of paragraph 16, I don't know. If one of us made an error in that respect, we are referring to paragraph 16. You understand that?‑‑‑Yes. Yes. 16, yes.
PN471
When you refer to lesser hours, at least so far as casual school bus drivers are concerned, you're referring to less than the 20 usual hours, is that right?‑‑‑Yes. It could be twenty - sometimes it's four and a half hours, five hours, whatever the combination is.
PN472
20 is if there's only two hours, but some bus - - -?‑‑‑Yes.
PN473
- - - drivers obviously take longer, and so there might three hours in the morning, and three hours in the afternoon - - -?‑‑‑Yes.
PN474
- - - because of the nature of the run. Correct?‑‑‑Yes.
PN475
So less than the time required to do the both the morning and the afternoon school runs?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN476
I think in clarifying that, the reference you make in paragraph 16 is not only a reference to people who want to work less than morning and afternoon, five days a week generally, but also ad hoc requests. Is that right?‑‑‑Yes. Yes.
PN477
That is if someone has a doctor's appointment, or wishes to go away for a couple of days, or whatever it might be. Correct?‑‑‑Yes.
PN478
So the 50 per cent of people who you say - or up to 50 per cent of employees who seek to work lesser hours, include people who just want alteration in one particular week, for a particular reason. Is that right?‑‑‑Yes.
PN479
Does it also include people who want to work less, generally. That is less than the 20 or - - -?‑‑‑We have a lot of employees that want to work less, generally.
PN480
Can I just ask you about some of the particular matters that you refer to in subparagraphs, in paragraph 16. The first is you refer to someone who is of semi-retired status. Do you see that?‑‑‑Yes.
PN481
And age profile, I take it you mean that there are a degree, at least, of older workers?‑‑‑A huge proportion of our drivers are older.
PN482
I take it some of those people, at least, wish to work, as you understand it, lesser hours to have more free time, essentially. Is that right?‑‑‑Yes.
PN483
To play golf, or whatever it might be, correct?‑‑‑Yes.
PN484
The second item you refer to is a capacity to take leave whenever they feel like it. Do you see that?‑‑‑Yes.
PN485
I take it that's a - you're referring there really to the status of casual employment, rather than the particular number of hours engaged. Correct?‑‑‑Yes, that's right. Yes. Casual by nature, they treat their employment as casual, and are happy to take the caravan and wander away for weeks at a time, and it suits them.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN486
VICE PRESIDENT HATCHER: So in paragraph 18, when you talk about it would be beneficial for such flexibility, what's the change that's necessary to allow flexibility to occur? That is you can already engage somebody for two hours for particular staff, who don't have to work the morning and afternoon. I'm just struggling to understand what's the change you want?‑‑‑I think if that was made clear, this whole clause of what's an engagement and what's a shift that has been, you know, in dispute since the award came in, I think if that was some clarity, that they only had to do two hours, that would probably suit our business.
PN487
So if it's made clear that if you're morning, you only have to do two hours, if you do an afternoon, you do two hours, and if you do both it's four hours?‑‑‑Yes, for a school run. If you're doing a non-school run, you get paid a three hour minimum. That's probably where our company would - you know, that clarity is probably all we need.
PN488
Right. Okay.
PN489
MR GIBIAN: So you'd be content with a situation where if the person just does the morning, a school run, they get a minimum two hour payment?‑‑‑Yes.
PN490
If they do both the morning and the afternoon they would get a minimum of four hours, two each?‑‑‑Yes.
PN491
And the three hours would apply to other work, not school runs?‑‑‑Yes.
PN492
Just in terms of taking leave whenever they feel like it, although these employees are casual employees, you do rely upon having the employee, at least with a reasonable degree of predictability, available each week to do the school runs, don't you?‑‑‑Yes, and the majority of our staff, and I think I made that point in one of the other ones, is that they really do take ownership of the school bus run, and, you know, their kids, to get them to school. So they would much rather have their sick leave paid in the casual entitlement for that reason, because they really do commit to getting those kids to school.
PN493
The majority of your drivers do make themselves available on the 40 weeks a year to do the morning and the afternoon school runs?‑‑‑If they commit for the following week, they're very committed, but, you know, they do have those gaps where they - - -
PN494
But
the majority of employees do have low
absenteeism?‑‑‑Yes.
PN495
And don't take advantage of great flexibility in terms of having time off. Is that right?‑‑‑No, they have - the low absenteeism in regards to sick leave we have is fantastic for our company, but their holiday leave, or non-sick leave leave, for want of a better word, yes, they take advantage of that a lot.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN496
The third issue you refer to is too many hours affects benefits like pensions or health care cards. Do you see that?‑‑‑Yes.
PN497
I take it the effect would be on the overall number of hours, that is if a person works - in a week?‑‑‑Yes. Yes.
PN498
The
fourth matter is the matter to which you've just referred, that is the low
absenteeism. Do you see
that?‑‑‑Yes.
PN499
Again, whether people wish to be paid as casuals, or accrue other entitlements, is a factor of the casual nature of the employment, rather than the pattern of hours worked?‑‑‑Yes.
PN500
The fifth matter you refer to is that many have other jobs. Do you see that?‑‑‑Yes.
PN501
That's a matter that may cause someone to request just to work in the mornings, and not the afternoon shifts, for example?‑‑‑Yes.
PN502
The sixth matter you refer to is carers' responsibilities. Do you see that?‑‑‑Yes.
PN503
In terms of that, the flexibility that might be occasioned there, you don't have any flexibility as to the time of work of school bus drivers. That is they have to occur before school and after school, obviously?‑‑‑Yes. Yes.
PN504
That can't be altered. Correct?‑‑‑That's correct, yes.
PN505
So any flexibility that's able to be provided there could only be, again, maybe only workings the mornings and not the afternoon?‑‑‑Yes, that's right.
PN506
Or maybe working two days a week and not the other days, for example?‑‑‑Yes.
PN507
The seventh matter is a reference to the freedom of casual employment. Do you see that?‑‑‑Yes.
PN508
Again, that's a reference to the status of casual employment, rather than the - - -?‑‑‑Yes.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN509
- - - pattern of hours. I think the eighth matter refers to the same, that is the casual nature of the employment, correct?‑‑‑Yes. Yes.
PN510
As does the 9th. As do the remainder?‑‑‑Yes.
PN511
That's the cross-examination.
PN512
VICE PRESIDENT HATCHER: All right. Thank you very much, Mr Doolan. Sorry, is there any re-examination?
PN513
MR KING: Nothing in re-examination.
PN514
DEPUTY PRESIDENT BULL: Mr Doolan, can I just ask, paragraph 17 of your statement you say you try to accommodate your workforce with their requests, and then you say in all of the cases I'm thwarted by the obligation of minimum engagement. What are you saying there? What minimum engagement are you talking about? Because on paragraph 13 you say the minimum engagement is two hours, and say no one has asked for anything less than two hours, is that right?‑‑‑Generally that's the - that goes back to where we've been treating the engagement of two hours as two shifts. Two hours - if they're doing a school bus run, a two hour shift in the morning, and not doing the two hours in the afternoon, we pay them a three hour minimum. It's back to that clarity of the engagement versus shifts.
PN515
VICE PRESIDENT HATCHER: So when you say minimum engagement at paragraph 17, you refer to a belief that there's a three hour requirement?‑‑‑Yes. If they do one engagement.
PN516
DEPUTY
PRESIDENT BULL: So being thwarted means that you've got to pay the three
hours, is that what you're
saying?‑‑‑Yes, that's what we do.
PN517
But if you could only pay the two hours, would that overcome the problem?‑‑‑It would, probably, because potentially if they want to do 10 hours a week, the way we have been interpreting the award we pay them 15 hours a week, which for some people affects their health card, or their pension. You know, for a job sharing arrangement like someone else was saying, well, if we could job share a 10 hour shift between two people, one does the morning and one does the afternoon, but at the moment it looks like they have to do - it would cost us 30 hours, not 20 hours a week.
*** BENJAMIN JAMES DOOLAN XXN MR GIBIAN
PN518
Thank you.
VICE PRESIDENT HATCHER: Sorry, Mr King.
RE-EXAMINATION BY MR KING [11.49 AM]
PN520
MR KING: Just arising that, if I may, just one question. Mr Doolan, are there employees that work less than the two hours per engagement, or start?‑‑‑Some of the runs are considerably less than two hours, but they certainly get paid their two hours.
PN521
Thank you.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Doolan. You're excused and free to go.
<THE WITNESS WITHDREW [11.50 AM]
PN523
Mr King, before we call your next witness, just for clarification, does your client take the view that school bus drivers have to be paid three hours, even if they work only the morning or only the afternoon?
PN524
MR KING: There is a degree of uncertainty, if your Honours please, and that's one of the reasons that we've sought clarity in relation to this. The exposure draft itself draws attention to that issue.
PN525
VICE PRESIDENT HATCHER: Mr Gibian, does your client take the position that there's an overriding three hour minimum that applies to school bus drivers?
PN526
MR GIBIAN: No, we accept that if a person only does the morning run, then the minimum payment is two hours.
PN527
VICE PRESIDENT HATCHER: From your client's point of view, has there ever been ambiguity about that?
PN528
MR GIBIAN: No. We don't understand any application that's being made in these proceedings to seek to address any issue in that respect. The uncertainty that was raised by the Fair Work Ombudsman, for example, was whether the two hours could be split, rather than whether the - - -
*** BENJAMIN JAMES DOOLAN RXN MR KING
PN529
VICE PRESIDENT HATCHER: I thought the ambiguity was whether it was two hours for the whole day, or two hours for a morning or an afternoon.
PN530
MR GIBIAN: Exactly. That was the issue that the Fair Work Ombudsman raised. We don't understand there to be any continuing dispute, at least before the parties appearing, that the intention of the award is a minimum payment of two hours for a morning run, and a minimum payment of two hours for the afternoon run, consistent with what was said at the making of the award, and by Bissett C in the two yearly review, that there's a debate about what words might best clarify that, if there be a need for it to be further clarified. But we didn't understand there to be an issue about a three hour requirement, if a person just does the morning run.
PN531
VICE PRESIDENT HATCHER: Thank you.
PN532
MR KING: Your Honour, perhaps I'll talk to my friend about it afterwards, but we are concerned that his proposal, his claim doesn't necessarily reflect what has just been put to your Honour.
PN533
VICE PRESIDENT HATCHER: You're now talking about the ACTU claim again.
PN534
MR KING: No, I'm talking about my friend's letter of 17 July 2015, the claim letter.
PN535
VICE PRESIDENT HATCHER: Where is that? That's the draft determination?
PN536
MR KING: Yes, and it's particularly the words "may be rostered to perform two separate engagements per day."
PN537
VICE PRESIDENT HATCHER: Yes, what's wrong with that? You read that as perhaps requiring two separate engagements per day, do you?
PN538
MR KING: That's where the ambiguity arises, and it's part of our - - -
PN539
VICE PRESIDENT HATCHER: I'm sure the parties could sort that out with some sensible discussions, as to how that drafting might be improved to remove any such ambiguity.
PN540
MR GIBIAN: This matter was the subject of argument at the two yearly review. Yes, if there's - we can look at that, if there's some issue in the wording.
PN541
VICE PRESIDENT HATCHER: All right, your next witness, Mr King?
PN542
MR KING: Yes, call Mr Ferris.
PN543
VICE PRESIDENT HATCHER: Mr Ferris, is it?
PN544
MR KING: Yes.
PN545
THE ASSOCIATE: Please state your full name and address?
MR FERRIS: Geoffrey Ivan Ferris (address supplied).
<GEOFFREY IVAN FERRIS, AFFIRMED [11.53 AM]
EXAMINATION-IN-CHIEF BY MR KING [11.54 AM]
PN547
VICE PRESIDENT HATCHER: Mr King.
PN548
MR KING: Thank you. Would you give your full name to the court, please?‑‑‑Geoffrey Ivan Ferris.
PN549
Have
you prepared a statement dated 10 October 2015, Mr Ferris, to assist the
full bench in its
deliberations?‑‑‑I have.
PN550
I tender the statement, subject to this, your Honours. In paragraph 26, Mr Ferris refers to an attachment. I don't press that paragraph, and I don't tender that attachment.
VICE PRESIDENT HATCHER: Thank you. The statement of Geoffrey Ivan Ferris, dated 10 October 2015, but excluding paragraph 26, will be marked exhibit 276.
EXHIBIT #276 STATEMENT OF GEOFFREY IVAN HARRIS EXCLUDING PARAGRAPH 26 DATED 10/10/15
*** GEOFFREY IVAN FERRIS XN MR KING
PN552
MR KING: May I have leave to ask one supplementary question of the witness, relating to a topic I did raise earlier.
PN553
VICE PRESIDENT HATCHER: Yes, (indistinct) objection.
PN554
MR KING: Mr Ferris, can you have a look at this document, which I'll ask the officer to show you. A copy for their Honours. Is this a staff profile that you have prepared from the company records?‑‑‑It is.
PN555
What does it in summary demonstrate in relation to the matters of relevance which you address?‑‑‑I think the relevance is the age profile. We are the largest rural and regional operator in New South Wales and regional route bus services. The age profile of our business is that 55 per cent of our people are 60 years or older. Also as well the breakdown of our employment type, 93 per cent of our 363 drivers are casual. One per cent is part time and six per cent are full time permanent employees.
PN556
Thank you.
PN557
VICE PRESIDENT HATCHER: Mr Ferris, is that for all your drivers across all functions?‑‑‑It is. We have 12 depots, 12 operations in New South Wales.
PN558
Is the age profile likely to be any different for school bus drivers?‑‑‑They - every one of our drivers is a school bus driver.
PN559
Thank you. Do you want to tender that, Mr - - -
PN560
MR KING: I tender that document.
PN561
VICE PRESIDENT HATCHER: Any objection, Mr Gibian?
PN562
MR GIBIAN: No, your Honour.
VICE PRESIDENT HATCHER: The document headed Buslines Group staff profile August 2016 will be marked exhibit 277.
EXHIBIT #277 BUSLINES GROUP STAFF PROFILE DATED AUGUST 2016
*** GEOFFREY IVAN FERRIS XN MR KING
PN564
MR KING: There's one further matter, your Honours, if I may. Mr Ferris, you may recall that I asked a question a little earlier today concerning an employee, a casual employee, who is also a golfing pro?‑‑‑Yes.
PN565
Can you just verify that example for their Honours, please?‑‑‑I can. In our Griffith operation we have the captain of the Griffith Golf Club. If he is not out of the Griffith depot by 9.15 and on the course by 9.30, he will not do his AM shift. So if I've got a shift that runs until 9.25, or 9.35, he cannot do that, because he has to be on the golf course at 9.30 every day. So that's the flexibility we provide to our staff, is that whatever their requirement is, where we have a shift available we do that. No amount of enticing him by doubling the rate, or giving him extra work, will entice him not to play golf each day.
PN566
VICE PRESIDENT HATCHER: When does he start?‑‑‑He starts at 7 am.
PN567
So is there any difficulty reconciling that with the two hour minimum for the morning run?‑‑‑Some shifts. Some shifts are out - in Griffith particularly, because Griffith is a small layout of a town, we've got one hour and five minute shifts, one hour and 15 minute shifts.
PN568
So I'll come back to that, but I was really talking about the golf - - -?‑‑‑We've given him one that is two hours and 15.
PN569
So
this is the golf player, he's from Griffith is
he?‑‑‑Yes. Yes.
PN570
Right. So with the shifts that you've described as one hour or something, do other drivers do those?‑‑‑Yes.
PN571
And how does that operate with the two hour minimum?‑‑‑We give them a three hour shift in the afternoon. They still get their four hours. We're on an enterprise agreement. We've just entered 12 enterprise agreements in the last six months, one in every operation.
PN572
So under the EBA you balance out the short shift in the morning with a long shift in the afternoon?‑‑‑Yes, long shift in the afternoon.
PN573
And that gives them their four hours?‑‑‑Yes.
*** GEOFFREY IVAN FERRIS XN MR KING
PN574
And that gives you the flexibility you need?‑‑‑That's the flexibility we need, yes.
PN575
Thank you, Mr King.
MR KING: Thank you. That's the evidence.
CROSS-EXAMINATION BY MR GIBIAN [11.59 AM]
PN577
MR GIBIAN: Thank you, Mr Ferris. I think, as you just indicated, the company has enterprise agreements applying to its employees?‑‑‑We do.
PN578
And I think generally speaking the structure is that you have a separate agreement for each depot, or location?‑‑‑We have - yes, we do.
PN579
I think there's a great commonality in the terms, but these are separate agreements for each location?‑‑‑Yes.
PN580
That applies to each location?‑‑‑Yes.
PN581
That is an enterprise agreement covering all employees?‑‑‑All driving employees, our administration and our mechanical staff aren't under that enterprise agreement.
PN582
Yes, I apologise for that, I am asking about the driving employees. You understand that the effect of that is that any change to award would not have immediate direct impact upon the conditions of those employees?‑‑‑We will. In Dubbo we are half the buses in Dubbo or in Tamworth where we're two thirds, we are still competing for staff. So if the other neighbouring operators are offering a larger minimum engagement for not having to work we have to compete for that staff in those towns. So it does affect us what the award says because that is how our neighbours pay.
PN583
But in terms of the direct conditions of your employees it will not have a direct effect?‑‑‑Correct.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN584
VICE PRESIDENT HATCHER: Does that answer suggest that you're competing in the labour market for employees who want higher minimum engagements?‑‑‑If that's what they want. We've got a lot of - yes, if they want higher. We've got a lot that want less, you know, and I think I gave some examples in my statement where we've got a cabinet maker in Ballina who drives a bus for one hour and five in the morning. Runs from our depot from here to the corner, Riley Street, and commences his cabinet making duty at quarter past nine and runs back at quarter to three so he can drive the bus home in the afternoon. He works one hour and five minutes in the morning and about one hour and 15 minutes in the afternoon.
PN585
How does that work with the minimum in your agreement?‑‑‑Well he has a side agreement where he doesn't want to work any more. He asked us not to work less because of his other employment as a cabinet maker.
PN586
Is he under an enterperise agreement?‑‑‑He's under an enterprise agreement, yes.
PN587
What do you pay him?‑‑‑We pay him with a side letter two hours and 20 minutes a day.
PN588
MR GIBIAN: What is a side letter?‑‑‑An agreement, a flexibility agreement. You'll see in the enterprise agreement it says there's a flexibility clause to be able to work with what the employee wishes to work around. So where that fellow has that requirement we allow him to have that flexibility in his engagements.
PN589
Is he the only one who has asked for that?‑‑‑No, not at all. Not at all. We've got an auto electrician in Mittagong who works for the taxi company, in the middle of the day he's an auto electrician. Understand a lot of these people want to bring the school bus in, they drive in from an outlying area and drive the school bus in, it gives them another couple of hours, two and half a hours, guaranteed money 40 weeks a year and that's good. Then they go and do their job in the middle of the day, then they drive the school bus home in the afternoon.
PN590
Do you have side letters for them as well?‑‑‑Yes.
PN591
So how many of these side letters in total do you have?‑‑‑We would have - we have drivers who are working less than the minimum engagement, probably - and I haven't got the exact number with me but I would say we'd number 20.
PN592
DEPUTY PRESIDENT BULL: What change are you actually seeking, your company personally, under the award then?‑‑‑We've got the flexibility in our enterprise agreement. In the award though, if the conditions in the rest of the industry change, our competing for some of our staff that want larger hours we have to compete with our neighbours. Understand, minimum engagement of two hours, in Dubbo the majority of shifts are less than two hours. So if our neighbour is paying someone two hours work to do one hour and ten minutes work, they are at a big advantage to us who may only pay one hour and ten minutes or one hour and 30 minutes, one hour and 45 minutes.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN593
VICE PRESIDENT HATCHER: So although you are not covered by the award you want the award to be changed to improve your competitive position in the labour market?‑‑‑For the industry, yes. Yes, that's right.
PN594
MR GIBIAN: And the concern that you have is that you may lose out on employees who want to work longer minimum engagement periods?‑‑‑Sorry, I don't understand, we might lose out?
PN595
That is, employees who wish to work longer engagement periods might choose to work for another employer?‑‑‑No. We have a lot of shifts that were longer engagement, it's more the staff who are only working the shorter shifts that we have to compete - that may want to think that it's easier to get paid for two hours and only work one, if that's allowable.
PN596
In relation to the school bus - sorry, the school bus drivers who you do have, you say you have over 230 employees, most of them bus drivers?‑‑‑Yes.
PN597
I think in answer to questions that the Vice President asked you, you said all of your drivers are school bus drivers?‑‑‑Correct.
PN598
Now, most of those work regular morning run and afternoon run, 40 weeks a year?‑‑‑Correct.
PN599
You indicate that some of those may not have any work at all in the school holidays, is that right?‑‑‑Correct.
PN600
What proportion would that be?‑‑‑Depends whether you're talking about number of people. So in the coming school holidays in each of our depots, lets take a depot that has 30 buses in it, today 27 shifts will go out this morning, 27 shifts will go out this afternoon. In school holidays four or five shifts will go out each day. We can split those shifts, so we probably give eight to ten drivers per day a shift. Given that happens 12 weeks a year, we try and share that around. So it depends if you're talking number of employees. So in the school holidays we may use three quarters or half of our drivers to give them some money but they're only earning three hours a day, maybe four hours a day, and we share it around to give them all - some of them as much income as we can share. So not necessarily on numbers. We could do it with probably eight drivers out of 30 in each of those depots but we try and share it maybe amongst 12 or 16 drivers.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN601
So that is they may work a day or two a week during the school holidays such as work is available?‑‑‑Exactly right.
PN602
I take it the fact that you try and share it around reflects the fact that most drivers wish to earn - work more and earn more money?‑‑‑A lot of them want to earn their eating and drinking money. So they like to earn some money most weeks.
PN603
The work that a school bus driver does involves not only the actual driving the bus, there's some pre-departure duties and some duties upon return to the depot, is that correct?‑‑‑Yes.
PN604
So what will usually happen is that the driver will attend the depot?‑‑‑Correct.
PN605
Clock on or whatever the procedure is and collect the documentation and the like that they need for the run?‑‑‑Correct.
PN606
Does that still include cash boxes and the like in some cases?‑‑‑All our drivers carry a cash box with them, carry a shift bat, the shift bat that tells them what to do, yes.
PN607
And they have to complete some documentation in relation to that?‑‑‑They fill out a vehicle movement sheet, yes.
PN608
They then locate the bus, I take it, in the depot?‑‑‑Yes.
PN609
They turn the bus on and here's a pre-departure check?‑‑‑Correct.
PN610
Sometimes refuelling occurs?‑‑‑Some drivers refuel, yes, depending on how long their shift is and how many days a week they refuel, yes.
PN611
But the buses don't need to be refuelled every day necessarily?‑‑‑Every day, no.
PN612
They then proceed to the commencement of the run, collect the children and drop them at the school?‑‑‑At a variety of schools, yes.
PN613
That is there may be more than one run in a morning?‑‑‑They go out and do a shift. Now a shift may drop at numerous schools, some children are on from the start to finish, some are on - get off at the third school and get on after the third school and get off at the fifth school. So it just depends on the lay out of the shift.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN614
So it's not necessarily just collecting students for one school?‑‑‑No, some are one school shifts but most service more than one school.
PN615
And obviously they can spread over primary and high school which expands the period?‑‑‑Correct.
PN616
They then return to the depot?‑‑‑Yes.
PN617
There's a clean that occurs at that point at least, at least involving sweeping and I think sometimes mopping?‑‑‑Sweep and mop each AM, yes.
PN618
AM, what about PM?‑‑‑Sweep in the afternoon.
PN619
Just sweep in the afternoon?‑‑‑Yes.
PN620
That's a general practice is it?‑‑‑In our operation that's company policy, yes.
PN621
They then return whatever, the documentation and the cash box and the like as required?‑‑‑Correct.
PN622
You gave some evidence in the proceedings that were before Bissett C in 2014, do you have a recollection of doing that?‑‑‑Yes I do.
PN623
Tell me if you need to look at the documents but in those proceedings you said, I think, that - or you presented some documentation which suggested that 74 per cent of school bus runs took two hours or more in time?‑‑‑Yes, I remember that figure at the time and that was correct at the time.
PN624
I take it that the runs haven't changed substantially since that time?‑‑‑It would be a similar profile.
PN625
You haven't redone that exercise, I take it?‑‑‑I haven't redone that exercise, no, I didn't.
PN626
There's no reason, we would assume, it would be substantially different?‑‑‑Not substantially different.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN627
In paragraph 22 of your statement on the third page you refer to what you describe as a standard shift, do you see that?‑‑‑Yes.
PN628
What you're describing there is an example, is that right?‑‑‑An example.
PN629
That is they vary from driver to driver depending on the run, correct?‑‑‑Correct.
PN630
That is by, standard shift, you don't mean that this is - - ?‑‑‑No, not that everyone does that, it's what - maybe typical is a better word.
PN631
In the first Roman paragraph under paragraph 22 you refer to a morning shift commencing at 7.45 and finishing at 9.15, do you see that?‑‑‑Yes.
PN632
That is a one and a half hour period?‑‑‑Yes.
PN633
As you just indicated that's a minority position, that is - as you have said, 74 per cent of the runs take two hours or more?‑‑‑Yes, correct. Well, sorry, on top of that we may well add 20 minutes of cleaning time to do our sweep and mop at the end. So our drivers and our company policy is to give them 20 minutes after each AM shift to sweep, mop and keep the windows clean. They don't necessarily clean the windows every day but they get 100 minutes a week to keep the interior of the bus clean.
PN634
So here you are referring to a run that took from 7.45 to 9.15?‑‑‑Correct.
PN635
And some pre-departure checks and the sweep and mop, et cetera?‑‑‑Correct.
PN636
You then in the second Roman point on paragraph 22 refer to a midday period of work between noon and 12.45?‑‑‑Correct.
PN637
Is that an instance in which there happened to be a job or a chartered job taking children to school sport or something to that effect?‑‑‑Yes, generally, in maybe five days, two to three days a week schools will go to some sort of midday sport operation. You've got to remember in towns like Lithgow we are the sole bus operator, so whether we want to do it or we don't want to do it we have a community obligation to make sure the kids get to sport and get to their other school activities.
PN638
That is, that's something that may or may not happen on a particular day?‑‑‑Yes.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN639
Even if it's one of those two or three days a week, that doesn't involve your drivers?‑‑‑It doesn't involve all of them, no.
PN640
That is some drivers, even on the day the sport is on will do that work, others will not?‑‑‑Correct.
PN641
There's then an afternoon run that takes from 2.30 to 4.30?‑‑‑Correct.
PN642
We're right in understanding that, at least you would structure this particular day there is an unpaid break between - it's not quite 9.15 but 9.30 or thereabouts, 9.35?‑‑‑Yes.
PN643
And 12?‑‑‑Yes.
PN644
And a further unpaid break between 12.45 and 2.30?‑‑‑Correct.
PN645
VICE PRESIDENT HATCHER: Paragraph 21 when you said the minimum payment becomes three hours, is that because they're no longer a dedicated school bus driver, because they've done the charter work in the middle of the day?‑‑‑Exactly. Under our understanding of the PVTA, yes exactly right, they're no longer a dedicated school bus driver as the definition in the PVTA is.
PN646
MR GIBIAN: In relation to that point that you make at paragraph 21. If the school bus driver also does the charter work in the middle of the day, they'll certainly do in excess of four hours work on that day?‑‑‑Not necessarily, in towns like Griffith and Dubbo not necessarily because they're tight towns. Towns that are tight we don't have big long runs in, other towns we have massive long runs. So it just depends on the profile of the town or shift profile.
PN647
Just taking one step at a time. The school bus driver will have a regular, generally speaking at least, a regular morning run and an afternoon run?‑‑‑Correct.
PN648
I think you indicated that - side letters aside - those are structured such that there's two hours in the morning, at least four hours in total, correct?‑‑‑Generally.
PN649
Sorry?‑‑‑Generally, yes. It's hard to generalise when we've got that many hundreds of shifts, yes.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN650
You mentioned a number of side letters, leaving those to one side?‑‑‑Yes.
PN651
The remainder will do at least two hours in the morning and two hours in the afternoon, correct?‑‑‑Yes.
PN652
If the person does also in addition to those two runs some charter work in the middle of the day they will have done more than four hours?‑‑‑If they do all three starts, yes.
PN653
And that's generally the position, correct?‑‑‑Yes, for the majority of our work we'll do that, yes.
PN654
You assert from paragraph 23 that you have some drivers who, as a result of their age, request some flexibility in work?‑‑‑Correct.
PN655
Firstly, in paragraph 23, you refer to some drivers being in partial retirement, do you see that?‑‑‑Correct.
PN656
Or simply staying in the workforce to supplement their income, do you see that?‑‑‑Yes.
PN657
I take it your understanding at least is that some of those drivers request to work lesser hours so that they have more time free for other actitives?‑‑‑A variety of reasons or their income, yes.
PN658
Taking those one at a time. One might be the person just wishes to work less?‑‑‑That's right.
PN659
To go to work less, so that they're free in the afternoons to play golf or whatever social - that seems to be the one that's mentioned today, but whatever social activity or other activity they wish to undertake, correct?‑‑‑Correct.
PN660
That's as you understand that category, correct?‑‑‑Mm.
PN661
In terms of the income there's some, you understand I take it, who wish to supplement their income but don't wish to earn above the threshold that will have an affect on a pension or other entitlement, correct?‑‑‑Yes.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
PN662
The concern of that driver is the total amount that they earn in a particular week or period, correct?‑‑‑Yes.
PN663
That that is kept under a particular threshold?‑‑‑Yes and that varies with each employee.
PN664
That is the amount varies?‑‑‑The amount varies, sorry, yes.
PN665
But that may result in an employee requesting to work a lesser total number of hours in a particular week?‑‑‑Yes.
PN666
Yes, thank you.
PN667
VICE PRESIDENT HATCHER: Any re-examination Mr King.
PN668
MR KING: No, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Ferris, you are excused and you are free to go.
<THE WITNESS WITHDREW [12.17 PM]
PN670
VICE PRESIDENT HATCHER: Mr King, we can proceed to mark the other two statements?
PN671
MR KING: If the Full Bench pleases. Mr Romanowski is the first. In relation to his statement I do not read paragraph 20.
PN672
VICE PRESIDENT HATCHER: The statement of Mr Ben Adam Campbell Romanowski dated 9 October 2015 excluding paragraph 20 will be marked exhibit 278.
PN673
MR KING: My apologies, your Honour, I should have said paragraph 20 last sentence, for the same reason that I didn't read that in the case of Mr Ferris.
PN674
VICE PRESIDENT HATCHER: I'll correct that to say excluding the last sentence.
*** GEOFFREY IVAN FERRIS XXN MR GIBIAN
MR KING: Yes, thank you.
EXHIBIT #278 STATEMENT OF MR BEN ADAM CAMPBELL ROMANOWSKI DATED 09/10/2015 EXCLUDING THE LAST SENTENCE.
PN676
VICE PRESIDENT HATCHER: Then the next one is Mr Dewsbery, is that right?
PN677
MR KING: That's correct.
VICE PRESIDENT HATCHER: The statement of Mr Shane Dewsbery dated 9 October 2015 will be marked exhibit 279.
EXHIBIT #279 STATEMENT OF MR SHANE DEWSBERY DATED 09/10/2015
PN679
MR KING: No other evidence.
PN680
VICE PRESIDENT HATCHER: So that's all the witnesses for this award is it?
PN681
MR GIBIAN: Yes, your Honour.
PN682
VICE PRESIDENT HATCHER: So, again, you missed this this morning, Mr King, but can the parties advise us in terms of what they want to do with closing submissions, that is whether the existing submissions are enough, whether further written submissions will be necessary in addition or, alternatively, whether the parties wish to address us orally on either 27 October or 29 November.
PN683
MR KING: Thank you, your Honours. We would wish to address orally. I have heard what Mr Gibian said about 29 November and that's convenient to us.
PN684
VICE PRESIDENT HATCHER: All right and further written submissions are they necessary?
PN685
MR KING: No, it's not necessary.
PN686
VICE PRESIDENT HATCHER: Mr Gibian, what do you think?
PN687
MR GIBIAN: I'm certainly happy to address orally on 29 November. There is perhaps just two issues that maybe it might be appropriate to address in writing so that other people can see them I suppose. If an issue has been raised about the - and I understand from what your Honour said that it has, about the interaction of the ACTU claim with this award, it's probably appropriate that that be clarified and that we do that in writing. So perhaps if we could have an opportunity to put on something short - - -
PN688
SENIOR DEPUTY PRESIDENT HAMBERGER: Do you think there is going to be some benefit in the parties talking about this alleged confusion about the two hours - that you could work just two hours in the morning and not work two hours in the afternoon and not having to pay somebody for three hours?
PN689
MR GIBIAN: We are certainly happy to discuss it. As I say we weren't aware that there was such an issue up to this point of time
PN690
SENIOR DEPUTY PRESIDENT HAMBERGER: There does appear to be one.
PN691
MR GIBIAN: Well, Mr Doolan seemed to have an issue about it in Western Australia.
PN692
MR KING: Not only Mr Doolan (indistinct).
PN693
MR GIBIAN: We are certainly happy to have discussions about it. We are happy to address something like that in writing but we are certainly also happy to attend on 29 November. It will certainly be convenient for me if I could attend on that day if I am also addressing the other award.
PN694
VICE PRESIDENT HATCHER: All right, we'll pencil this award together with the Road Transport Long Distance Operations Award for oral submissions on 29 November and Mr Gibian perhaps you can confer with Mr King and if there's any proposed program for further written submissions you can forward us a note about that and we'll make the appropriate directions.
PN695
MR GIBIAN: Thank you, your Honour.
PN696
VICE PRESIDENT HATCHER: Anything else we can deal with today, Mr King?
PN697
MR KING: No, if the Full Bench pleases.
PN698
VICE PRESIDENT HATCHER: I think that is all this morning's business. The next witness, Dr Fitzgerald, is due at 2 pm so we will adjourn now and resume at 2 pm.
LUNCHEON ADJOURNMENT [12.22 PM]
RESUMED [2.08 PM]
PN699
VICE PRESIDENT HATCHER: Can I just indicate again for those of you who weren't here this morning that Roe C is sitting in Melbourne for this week's hearings.
PN700
Ms Doust, you're returning again for the ASU, the HSU and United Voice?
PN701
MS DOUST: Yes.
PN702
VICE PRESIDENT HATCHER: Mr Pegg, you return for Jobs Australia?
PN703
MR PEGG: Yes, your Honour.
PN704
VICE PRESIDENT HATCHER: Mr Arndt, you're appearing for the Business Chamber and associated groups. Mr Fleming is continuing his appearance in Melbourne.
PN705
MR FLEMING: Yes, your Honour.
PN706
VICE PRESIDENT HATCHER: All right, Mr Pegg, your witness?
PN707
MR PEGG: Yes, I'd like to call Dr Jennifer Fitzgerald.
VICE PRESIDENT HATCHER: Yes, all right. Ms Fitzgerald, come forward, please.
<JENNIFER MARY FITZGERALD, SWORN [2.09 PM]
EXAMINATION-IN-CHIEF BY MR PEGG [2.09 PM]
PN709
MR PEGG: Dr Fitzgerald, have you given a witness statement in these proceedings?‑‑‑I have.
*** JENNIFER MARY FITZGERALD XN MR PEGG
PN710
Do you have a copy with you?‑‑‑I do.
PN711
Can you confirm that that statement consists of 61 paragraphs?‑‑‑It does.
PN712
Is this an amended version of a statement that was previously filed in February?‑‑‑In February, correct.
PN713
Are there any further corrections that need to be made to that statement?‑‑‑Yes. There's one minor correction on paragraph 50(b), the last sentence should read:
PN714
It is a requirement of the NDIS that only the time actually spent with a client is paid for by the client and so the employer loses money and is not able to charge extra to compensate.
PN715
Sorry, which paragraph number was that?‑‑‑Paragraph number 50(b), the last sentence. So the last line should read, "and is not able to charge extra to compensate."
PN716
Thank you. I tender that statement.
VICE PRESIDENT HATCHER: The witness statement of Dr Jennifer Fitzgerald dated 11 August 2016 as amended will be marked exhibit 280.
EXHIBIT #280 WITNESS STATEMENT OF DR JENNIFER FITZGERALD DATED 11/08/2016 AS AMENDED
PN718
MR PEGG: Dr Fitzgerald, can you just briefly describe the type of services that Scope provide?‑‑‑Yes. So we provide services to over 6,000 Victorians with disability. They're predominantly people with complex and multiple disability. The services that we provide range through all of the ages, from young children first diagnosed to actually providing palliative care in people's homes. We provide accommodation services, respite services, therapy services, community and in-home support and day and lifestyle programmes and some open employment.
PN719
Do you operate, you provide services in the Barwon trial site for NDIS?‑‑‑We do.
PN720
That's in addition to outside of Barwon where it's not yet NDIS?‑‑‑Correct, although the roll-out has commenced 1 July.
*** JENNIFER MARY FITZGERALD XN MR PEGG
PN721
The mix of the services that you offer, how have you seen them change, if at all, in the Barwon area under NDIS?‑‑‑Certainly. So our funding and service agreement with the State government essentially operates as block funding, where there is funding to some clients assigned on an individual support package, but we are paid prior to the delivery of those services and we rarely report on outputs rather than outcomes. What we've seen in the Barwon trial over the last three years is really a focus on outcomes, not outputs and an individualisation of services with a strong focus on in-community and in-home support around core supports and capacity building supports.
PN722
I'd like to hand you a document?‑‑‑Thank you.
PN723
Can you identify that document, please?‑‑‑Yes, I can identify it as a document prepared in response to requests for further information.
PN724
So what does this document show?‑‑‑This document shows a range of shifts for three employees, A, B and C over a client cohort of one to what should read 14 clients, and what you can see is the allocation of hours to those staff across a period of weeks commencing 11/07/2016 to 22/07/2016.
PN725
What types of supports would these employees be providing for these clients?‑‑‑These are around flexible support, so these would be in-community or in-home support, around building capacity on the whole.
PN726
So these are the sorts of supports that you've seen a growth of in the trial site and that it was less of outside of NDIS?‑‑‑Yes. If you look at the NDIS quarterly reports over the three-year period, what you can see is 70 per cent of all funds are expensed on one-to-one and community support.
PN727
So outside of – if we were to look at – as I understand this is just a sample but if we were to look at a typical roster for the sorts of supports that were provided prior to NDIS which I understand were group supports, how might that differ?‑‑‑Very differently. So the way that our funding was allocated was according to service lines. So for example you would have a roster that was allocated to shared supported accommodation or respite services or day and lifestyle. And for example the day and lifestyle program would operate between 9.00 and 3.00 pm, five days a week for 47 or 48 weeks of the year. What we've seen with rosters like this is a complete change so now we start with the individual. We get their plan and then we build our services and supports around the individual rather than starting the service lines.
*** JENNIFER MARY FITZGERALD XN MR PEGG
PN728
This roster for each client seems to me to show a fairly regular pattern of engagements. How often would a roster like this change?‑‑‑Interestingly, I had a look at that and got some data from our GoldCare System which is our client management system. For the last pay period we had 1071 shifts to fill and in that fortnight period 359 of those shifts were changed, so a 35 per cent change during the course of that fortnightly period.
PN729
And that's different to what you would observe outside of the - - -?‑‑‑Very different. Very different indeed - - -
PN730
So that's just in the Barwon region?‑‑‑To the rest of the business, yes.
PN731
All right. No further questions at this point.
PN732
VICE PRESIDENT HATCHER: Do you want to tender that document?
PN733
MR PEGG: Yes, I – perhaps if I - - -
VICE PRESIDENT HATCHER: The document entitled, "Sample D, identified roster for supports provided to Scope clients in Barwon area" will be marked exhibit 281.
EXHIBIT #281 DOCUMENT ENTITLED 'SAMPLE D, IDENTIFIED ROSTER FOR SUPPORTS PROVIDED TO SCOPE CLIENTS IN BARWON AREA
VICE PRESIDENT HATCHER: Ms Doust?
CROSS-EXAMINATION BY MS DOUST [2.16 PM]
PN736
MS DOUST: Yes. Dr Fitzgerald, I think at paragraph 17 you express a view about the impact of the changes to the funding model for disability services and I just want to go through some material that isn't plain in your statement. You agree, don't you, under NDIS the client first establishes a plan with the National Disability Insurance Agency?‑‑‑Yes.
PN737
The support needs of the client are identified in the plan?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN738
That plan includes an overall budget spend for the client and itemises the types of support that are provided for the number of hours of each type and costs of same?‑‑‑Yes. Yes.
PN739
The client then goes and makes a service agreement with the provider for the provision of particular types of support?‑‑‑Yes.
PN740
I'll show you a document if I might. Now do you recognise that document?‑‑‑Yes.
PN741
That's a document that was provided by Scope to United Voice in response to a call for documents that were referred to when you were preparing that sample roster?‑‑‑Yes.
PN742
And I just want to take you through the document so that we can identify the relevant parts. The front section starts with the NDIS plan, is that correct?‑‑‑Correct.
PN743
It goes for some seven pages?‑‑‑Correct.
PN744
Just looking at the fifth page onwards, that's where we identify these specific types of supports that will be provided to the client?‑‑‑Correct.
PN745
So looking at that first item, reference no. 0001, "Assistance with daily life at home in the community, education and at work", we have there provision for personal care of two hours per day on four days of the week for 47 weeks of the year. And then another provision of 10 hours on 12 days of the year?‑‑‑Yes.
PN746
VICE PRESIDENT HATCHER: Ms Doust, does this relate to one of the clients referred to in exhibit 281?
PN747
MS DOUST: As I understand it, yes.
PN748
VICE PRESIDENT HATCHER: Are we able to say which one? Do you know which one, Ms Fitzgerald?‑‑‑I believe that it is the number – client 13 but I haven't had that confirmed. But just listening, I believe it's client 13.
PN749
Thank you.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN750
MS DOUST: And can I just ask you, as to point 2, "Supported independent living", is that a service that Scope provides in respect of this client?‑‑‑I'm just looking. Can you just clarify where you were looking at supported independent – sorry - - -
PN751
That's the second item. It doesn't have a reference no. but the budget in respect of that item is 11,553?‑‑‑I believe this client lives at home with their mother and has in reach, in home support.
PN752
Yes. Is that support that's provided by Scope?‑‑‑That's not – Yes.
PN753
Yes?‑‑‑Yes.
PN754
And so that's on 25 days of the year for the entire day, is it?‑‑‑It would usually be those periods that the individual isn't attending the day and lifestyle program so it would generally be outside the hours of 9 am to 3 pm.
PN755
Does that end up being a regular day per fortnight for that client, do you know?‑‑‑It depends on the mother's work conditions.
PN756
Yes. Just going to the next item there, "Improved daily living skills"?‑‑‑Yes.
PN757
There's a reference there to "Orthotics assessment and speech therapy and occupational therapy"?‑‑‑Yes.
PN758
Is that something that Scope provides?‑‑‑Yes.
PN759
Scope actually has a workforce that includes Allied Health professionals?‑‑‑Correct.
PN760
I think that term's probably out of date now?‑‑‑Yes.
PN761
But other health professionals?‑‑‑That's correct, yes.
PN762
Yes. And for those professionals it's correct, isn't it, that the rate at which Scope will get paid in respect of those services is about $170 per hour?‑‑‑For therapy services, yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN763
Yes, so more than four times what you'll get paid in respect of an hour's attendance by a support worker?‑‑‑Correct.
PN764
Is it fair to say in respect of those matters Scope's margin in significantly greater, the margin between the rate paid and the actual wage cost of the employee?‑‑‑For therapy staff?
PN765
Yes?‑‑‑For therapy staff they have to have 4.6 NDIS billable hours per day.
PN766
Yes?‑‑‑Over the past 12 months our therapists' highest level has been 3.6 NDIS billable hours per day, and for FY16 we actually lost $150,000 on therapy services in Barwon.
PN767
So just the answer to my question, Dr Fitzgerald, in relation to the margin, hour for hour between your health professionals, your occupational therapists and orthotics assessors and so on, are substantially greater than that four – your support workers?‑‑‑No. If you look at the way that the NDIS pricing is constructed that's not the case.
PN768
VICE PRESIDENT HATCHER: Before you go on, Dr Fitzgerald, that 4.6 hours you referred to, that requirement, where does that come from?‑‑‑The 4.6 hours, so in terms of the way that the therapy price is constructed, it's different to the way our therapy is currently funded under the State Government, so we are only funded for what is ascribed as NDIS direct billable hours, so none of the travel between clients, for example, for in-community support is funded. Their vehicles aren't funded. The asset that we house them in and all their equipment is not funded. So in terms of the margins, all of those things that were previously funded or are currently funded in our state funding and service agreement are no longer funded under the NDIS.
PN769
All right, but you mentioned a number, 4.6 hours?‑‑‑Yes.
PN770
So what's that number?‑‑‑4.6 billable hours under the NDIS is break even for us.
PN771
Right.
PN772
MS DOUST: Now just moving on to the next item if we could, "Increase social and community participation"?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN773
That's for support workers to assist the client to have some speech therapy?‑‑‑Correct.
PN774
And are both of those services provided by Scope, both the speech therapy and the support?‑‑‑Yes, they would be in this case.
PN775
So it is the case that in relation to – in that sort of example Scope is billing for two workers in respect of the client?‑‑‑They would bill for the speech pathology time and for the support worker to do the follow-up capacity building work, yes.
PN776
And again there we've got in respect of the support worker, there's regular chunks of hours allocated over the course of quarters of the years, isn't there?‑‑‑Yes, I can see, yes, from the plan.
PN777
Now just in terms of the actual agreement itself - - -?‑‑‑Yes.
PN778
That starts, I think it's at about the 9th or 10th page in – sorry, the 9th page in. Do you see the document headed, "Confidential Scope participant agreement", dated 7 March 2016?‑‑‑Yes.
PN779
So that's the agreement as between this client and Scope?‑‑‑Correct.
PN780
Is this agreement a standard format agreement that you have with all of your clients?‑‑‑It is. It's based on the NDIS recommendations but it is a Scope specific agreement that we also translate into a fully accessible format for people with communication support needs.
PN781
Now just going to page 4 of that document - - -?‑‑‑Yes.
PN782
You have a two stream cancellation approach - - -?‑‑‑Yes.
PN783
Don't you?‑‑‑Yes.
PN784
Cancellation provisions in respect of occasional supports and cancellation provisions in respect of regular supports?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN785
Can you tell me, how do you define "regular" in this sort of context?‑‑‑Yes, of course. Look, this is particularly focused at therapy as under the NDIS there are no coverage for any cancellations or do-not-attends. For the services provided by direct support workers we can charge up to eight occasions per annum.
PN786
Yes?‑‑‑So what we were finding was we had quite a high cancellation rate - as you can imagine with young families, things happen – for our therapy services so it was in some ways differentiating what the NDIS rules state.
PN787
No, I was just asking you, what's the distinction between regular and supports you receive sometimes?‑‑‑Sorry, I should be clearer. So for regular we attempt to roster our schedules or our staff, six weeks ahead.
PN788
Yes?‑‑‑And we may find that, as I said, up to 35 per cent of those shifts can change over a fortnightly period, but we do as much as we can where there is a reasonable level of predictability around the services provided to roster those six weeks ahead.
PN789
So Dr Fitzgerald, if you'd just attend to my question please?‑‑‑Yes.
PN790
What are the supports that are referred to here, described as "regular"?‑‑‑So in this case it would be the attendance at the day and lifestyle program, would be considered regular.
PN791
Yes?‑‑‑Where there is attendance, I believe, at e.motion21 on a regular basis, that would be considered regular.
PN792
Yes, and just to clarify, e.motion21 for this client is a weekly dance class - - -?‑‑‑Correct.
PN793
That the client attends, to assist the client to participate in the community - - -?‑‑‑Social inclusion.
PN794
And to develop her skills?‑‑‑Correct.
PN795
Or his skills, whomever?‑‑‑Correct.
PN796
I think it might indicate the gender somewhere there. So it's known during the course of the year, that client's going to be attending that class on a regular basis, weekly?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN797
And this client's got regular supports, four days of the week with day to day care?‑‑‑For that period of 9.00 till 3.00 she attends the day and lifestyle program, yes.
PN798
Yes. But as well as – what we have with this client is, as well as, I think, a couple of hours in the morning four days a week, there's also the six hours during the day spent in the day program?‑‑‑That's correct, yes.
PN799
Thank you. I tender that.
VICE PRESIDENT HATCHER: NDIS plan and Scope participant agreement for client 13 will be marked exhibit 282.
EXHIBIT #282 NDIS PLAN AND SCOPE PARTICIPANT AGREEMENT FOR CLIENT 13
PN801
MS DOUST: Now just going back to those regular attendances, what you require of clients is six weeks notice where they are, for example, going away on holidays and things like that?‑‑‑Correct.
PN802
And you want at least 24 hours notice where there's an unplanned absence such as illness and the like?‑‑‑That would help us greatly. We looked at our cancellation rate for non therapy services for the past financial year and we actually had an 18.85 per cent cancellation rate by participant, and the main registered causes of that were that they were unwell, that they were unavailable, or they no longer required the service.
PN803
And you can charge under your agreement - - -?‑‑‑Up to eight.
PN804
Cancellation fee if they don't give you the required notice?‑‑‑Up to eight times per annum.
PN805
Yes. After that time the matter needs to be reported back to the NDIA, doesn't it?‑‑‑Correct. We haven't had any luck with receiving funds for those, however, when it's above eight.
PN806
Well, they review - - -?‑‑‑They review - - -
PN807
They review the plan at that stage, don't they - - -?‑‑‑Mm.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN808
To see whether there's some fundamental problem with the plan that is preventing that client from - - -?‑‑‑Yes.
PN809
Achieving their identified goals?‑‑‑The plans are generally reviewed on an annual basis unless there is a considerable change in status or on request by the participant.
PN810
I'm talking about the instance of eight, if there's eight cancellations. You've got an obligation to report that to the NDIS, haven't you?‑‑‑We do report it. It doesn't immediately trigger a review just based on the demands that they have at the moment. At the moment they're onboarding 18,000 new participants per month across the nation so – we report it - - -
PN811
But you understand that is the protocol where there's that - - -?‑‑‑Correct.
PN812
Number of cancellations?‑‑‑Correct.
PN813
The plan will be reviewed with a view to seeing whether the plan is actually right, if that's the weight of the cancellations?‑‑‑Those are the rules.
PN814
Yes, thank you. Now - - -
PN815
VICE PRESIDENT HATCHER: So do I understand your evidence to be that those rules aren't currently being followed simply because of the demand?‑‑‑It's just the demand of onboarding 18000 per month with full scheme implementation so we've got to get between 420,000 and 460,000 people on in the next three years.
PN816
Thank you.
PN817
MS DOUST: And you accept this, don't you, for the vast majority of supports that are provided by Scope, they're occurring at regular hours at around about the same time on the same day of any week, aren't they?‑‑‑What we've seen is a huge shift in what was our day and lifestyle program in Barwon to one to one support in community and in the home, so - - -
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN818
That proposition remains correct though, doesn't it, Dr Fitzgerald, that although there's a growth in one to one supports being sought by clients, particularly new clients, still the vast majority of work that is performed by Scope support workers is occurring at regular hours, that is, at around about the same time on the same day of any week?‑‑‑For the day lifestyle program, yes.
PN819
Now nothing in your agreement with your clients guarantees that the client is entitled to have supports provided by an identified part time employee at any time they choose, is there?‑‑‑What we try to do is in the – the participant has control and choice of who they want to work with them.
PN820
Yes?‑‑‑As an employer, we try as a mission based organisation, to work with that but we also try to have what we call a circle of support. So we have workers who have the right skills, the right temperament, experience with that participant and their family to deliver those services. So that the client gets the preference, or the participant gets the preference on who they want to work with them and we have ensured that we have some succession plan to back that up if we need a change in participant at short notice, in matching.
PN821
Does that mean that the answer to my question is really, yes, there's nothing obliging Scope to provide clients with their choice of worker at the time that they choose, but Scope does its best to accommodate clients where it feasibly can?‑‑‑That's certainly - - -
PN822
Is that fair to say?‑‑‑In a fixed price environment that's the defining piece about service quality, so that's what we attempt to do.
PN823
And where we're talking about managing the delivery of services for personal care in the home, one of the strategies available for managing workload is to give the client a window within which the support will be provided?‑‑‑We usually actually give the hours, a specific time, not a window.
PN824
You accept that that is one strategy that's available to Scope?‑‑‑It is a strategy that's available.
PN825
The appropriateness of such a strategy might depend upon the nature of the support, do you accept that proposition?‑‑‑I think the people that we work with are very, very vulnerable and tend to be fully dependent so it's not much use me saying to a family, "We might get someone to your home between 7.00 and 9.00 to undertake personal care and meal time assistance", because that person is fully dependent and will require medications, might require an epilepsy management plan, needs to get to another program, so we actually undertake to give people a time that we get there.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN826
Dr Fitzgerald, it's not the case, is it, that with ever instance of support in the home that Scope is dealing with a client with that degree of vulnerability, is it? There's a range of clients?‑‑‑Our client base is predominantly people with complex and multiple disability. That's our mission.
PN827
And I want to suggest this to you, as well, that not all of the support that's provided in the home will necessarily be time limited, for example, by the need to get off to school or work or a day program afterwards, that's right, isn't it?‑‑‑I think it's not just our relationship with the participant but with their families and natural supports which is what the agency relies upon, so whilst we're trying to provide the direct support to a participant it's inter-dependent on their family's life.
PN828
Dr Fitzgerald, I'm actually asking you about the - - -?‑‑‑Sorry.
PN829
Nature of the attendances on clients?‑‑‑Yes.
PN830
What I'm saying is, not all of the attendances on clients in the home are time limited by some hard deadline occurring afterwards of attendance at work, attendance at school or attendance (indistinct)?‑‑‑I guess my comment in response is, particularly at the beginning of the day, it is time limited dependent upon the other natural supports in the home.
PN831
And not all of the services that are provided by Scope are delivered at the beginning of the day?‑‑‑No, we're seeing an increasing number, beginning and end of day.
PN832
A cohorter provided in the middle of the day?‑‑‑Yes.
PN833
And at the end of the day there isn't the same sort of hard deadline of needing to be in attendance somewhere else?‑‑‑No, it's more pressure at the beginning of the day, you're right.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN834
In those other instances there's greater capacity, isn't there, for Scope to manage the provision of supports by way of offering windows or having some sort of variation in the hours in which the service is delivered?‑‑‑Exactly. Could I make a comment to that? We've actually found the rostering so hard that we've worked with a group called Opturion and they're two mathematics professors from Monash University, to help us build the algorithms to actually do this. And we found it very, very difficult when the billable time under the efficient price is 95 per cent participant facing time and we haven't been able to achieve that, nor have any of our sister organisations. So whilst we say that we can do these things pragmatically when you're dealing just in Barwon it's just 399 contracts. Across Victoria it'll be 6000, and that's not allowing for growth. So the scheduling, actually we've found, is extremely difficult.
PN835
One of the things that has occurred as a consequence of the NDIS coming on line at Barwon has been a huge growth in the services being sought from Scope, isn't it?‑‑‑We've had a 29 per cent growth. It's predominantly been driven actually by our therapy and that was because at the beginning they required assessments before they were willing to undertake planning, so our growth has actually been led by our therapy services.
PN836
But what has occurred with Scope in the last while has been, I want to suggest to you, over the past couple of years, significant increases in its annual revenue, do you accept that?‑‑‑The revenue for Barwon specifically has increased by $600,000 over the course of the Barwon trial.
PN837
And across Victoria Scope's position has increased – I'll be with you in a second - - -?‑‑‑Last financial year it was 93.4 million dollars.
PN838
Yes?‑‑‑And we've exited all of our Australian disability enterprises in the course of that financial year, so this financial year we'll see a reduction of approximately ten million dollars in our revenue, as a result of that exit.
PN839
VICE PRESIDENT HATCHER: Can you just remind me where the Barwon region is?‑‑‑Yes, it's down near Geelong.
PN840
Right?‑‑‑So it extends, not quite to Bannockburn, Colac, those LGA's around the Surf Coast area.
PN841
MS DOUST: Now that figure of 93.4 million compared to the year represented a substantial increase, didn't it, Dr Fitzgerald?‑‑‑It did, due to growth of new services outside the Barwon trial.
PN842
Yes?‑‑‑So we were successful in picking up tenders in Melton for a respite facility and we also established a new day and lifestyle in Bass.
PN843
Yes?‑‑‑And have picked up approximately 25 new clients in our day and lifestyle programs across the state.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN844
Yes. I see you don't report separately in respect of the Barwon area, you just report as an organisation, overall?‑‑‑Correct. Look, it's about 6.7 million of our 93 million dollar budget. We expect that we will tip our reporting to full NDIS reporting in 2018 when 33 per cent of our business will be NDIS specific.
PN845
Now at paragraph 41 of your statement you've chartered the activities and support required for one client during the course of a day?‑‑‑Yes. Yes.
PN846
Of course, Scope has thousands of clients across Victoria?‑‑‑Approximately 6000.
PN847
Six and a half thousand, I think is the last report, Dr Fitzgerald?‑‑‑Just over, yes.
PN848
Do you accept that?‑‑‑6,342, I think, is the round figure.
PN849
Okay, is that for the 2016 financial year, is it?‑‑‑Yes, I think so. The majority of our clients are actually therapy clients so early childhood intervention services and school age services, so we have the contract across the state for Catholic education and we're the major contractor into all the state schools. So the majority of our clients are actually young children and students at school.
PN850
So they're not required to be funded in accordance with the NDIS?‑‑‑They will receive some funding.
PN851
That's a different sort of funding?‑‑‑The early childhood intervention services would transfer straight across.
PN852
Yes?‑‑‑It's unclear yet how the Department of Education and training will deal with school age children's plans and how it interfaces with the educational system.
PN853
Yes. So, so far as Scope's broader cohort of clients is concerned, some of them aren't attending day programs, that's right, isn't it?‑‑‑Correct.
PN854
Some of them will just be receiving occasional support, either at home or in the community during the course of the day?‑‑‑Can I clarify? Is this broader Scope?
PN855
Yes?‑‑‑Thank you. Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN856
And that's correct in Barwon, as well, isn't it? Not all of your clients in Barwon are comparable to the case study in paragraph 41?‑‑‑In the organisation as a whole, in terms of the individual support plans which is what you would equate to a participant plan, we would not have more than 50 of those across the organisation.
PN857
I'm sorry, you mean 50 of whom?‑‑‑People with an individual support package funded by the state government, which I think is what you are equating to a participant plan.
PN858
So are you saying that for the vast bulk of Scope's clients they are supported in a day program sort of arrangement?‑‑‑There's around 256, I think, who are currently supported in a day program.
PN859
In Barwon, do you say?‑‑‑No, sorry. In Barwon there's 90. And across the state – I'm sorry, it's about 256 we support in shared supported accommodation, and just under 500 that we support in day and lifestyle programs, and then we run eight respite facilities and they each support about 60 to 70 families.
PN860
So just within Barwon you've got 90 clients who are receiving day program sort of support?‑‑‑A mixture. Day program, in community and in home support.
PN861
Yes, and you've got another 500 odd who are receiving a different form of support?‑‑‑Yes, across the state, yes.
PN862
I just want to make this suggestion to you in relation to the case study that you give us in paragraph 41. There's nothing to stop Scope, is there, from allocating the employee who provides that half hour of one on one care to the client at 9 am which is referred to at 41(e), nothing to stop you using that employee to provide that care and then going off and providing another support to another client, another one of the 500, is there?‑‑‑So this is in Barwon?
PN863
Well, it's your statement?‑‑‑So are we talking to the - - -
PN864
Is this an example from Barwon?‑‑‑This is an example from Barwon.
PN865
Yes, so in this instance there's nothing to stop Scope from managing the work flow here by utilising the employee to provide the half hour one on one support that's referred to in paragraph (e), and then going off and - - -?‑‑‑And that was my comment earlier.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN866
Providing supports to another client?‑‑‑That's exactly what we try to do but the challenge we have found in getting 95 per cent billable time throughout the day of one to many, many to one, and one to one, in centre and in the community and in the home has proved extremely difficult for us.
PN867
So that is one strategy you can use, you can combine work being performed in a day program with work being performed one on one in the community?‑‑‑We certainly attempt to do that, however with the travel costs and distances again, it's very hard to hit the 95 per cent in the NDIS billable time across the range.
PN868
Well under the NDIS - under the NDIS, there's no obligation on SCOPE to enter into an agreement with any client that presents and seeks assistance is there?‑‑‑Correct. Our board as based on our mission has decided that we will, wherever possible, continue to provide services to the clients that we currently support, with a particular focus as stated in our constitution on people with multiple and complex disability, and with particular reference to people with cerebral palsy. So that's our stated mission purpose.
PN869
I accept that might be your mission but there's no obligation to provide that support and I want to suggest to you this, you would have to give consideration in any instance, to where a client or potential client was allocated to make a determination whether support could feasibly be provided, wouldn't you?‑‑‑That's certainly what the whole system is moving towards. We lack the sophistication I would say in the disability service sector to do that very readily. We're actually in the process of building for the first time in our industry the business process requirements because we think we're actually going to have to co-design the system to deal with it. It's that complicated.
PN870
Just going to the second part under the heading "Typical day supported in a centre based day program"?‑‑‑Yes.
PN871
You refer there to the meal time window between 11 am and 1 pm?‑‑‑Yes.
PN872
There's nothing to stop you in that instance from shifting - sorry, over that lunch time period, one way to manage staffing and the support provided is to stagger the times at which clients take meals?‑‑‑We try not to give meals a time that's not a normal meal time.
PN873
There seems to be a window of between 11 and 1 there that's identified for meal times, is that right?‑‑‑And that is also combined with personal care assistants, so 2:1 assistants with toileting et cetera. So you can have at a facility at any one time in a room, you can have 15 people all who require full manual assistance, they can't self-feed and you're also providing toileting support during that window period. So it's a really highly busy time during the day.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN874
Then it follows, wouldn't it, that one of the strategies that would be used to manage the workload at that time would be staggering the provision of meals to those clients. Isn't that what happens?‑‑‑That assumes that all the clients have been in the centre all morning or are not leaving the centre early afternoon. So it assumes they've all been there so that you can just coordinate and stagger meal times. They're all coming and going.
PN875
You accept this proposition don't you, Dr Fitzgerald, that in the way in which it delivers its services, SCOPE looks to manage the delivery of services to clients in a way that is efficient in terms of the use of its workforce?‑‑‑Correct, we do.
PN876
What I want to suggest to you is staggering the times for the provision of meals, for example, is one way in which that efficiency could be achieved?‑‑‑And that is the way it's done but it's - - -
PN877
That's one strategy that can be used to ensure that workers rather than being used for half an hour and then dispatched can be given a reasonable length of shift?‑‑‑And I would agree that during the hours of 9 to 3 that's much easier to do.
PN878
In fact, isn't that one of the strategies that you actually use at the moment, because you work with casual employees, you have a minimum engagement period of two hours, you might have clients that only require half an hour's attendance but you can use a casual if you can have three or four or maybe more such attendances lined up in a row?‑‑‑We do do that if we don't have permanent part-time staff available to do it.
PN879
Yes?‑‑‑What we're finding is we're using the casuals far more in the in-community and in-home support.
PN880
Yes, and so in those instances you're able to aggregate sufficient work to meet that two hour minimum?‑‑‑We make every attempt to try and give our staff a meaningful number of hours per week. So for example, our part-time staff we would hope to be able to give them between 15 and 20 hours work a week.
PN881
Yes, I'm talking about on a particular shift you use those strategies of aggregation in order to meet the minimum period for casuals, don't you?‑‑‑I think it goes back to my earlier comment. We make every attempt to do so but we are finding in the new environment much harder to do that with 95 per cent accuracy.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN882
Well you're not saying, are you, that in respect of casuals, where you have a two hour minimum engagement, that you actually engage them for less than the award provision, are you?‑‑‑No.
PN883
You employ, don't you, for those workers strategies of aggregating tasks in order to meet the minimum standard?‑‑‑Yes, at every attempt to do so.
PN884
What I want to suggest to you is if that minimum period increases, you would be required to employ the same strategies wouldn't you. It would be about trying to identify your sources of work and line them up one after another in order to most efficiently utilise an employee for the course of a shift?‑‑‑My observation is that in the three years of the Barwon trial we've actually seen more casualisation of our workforce to accommodate that flexibility, and what we're now seeing is the impact of direct employment, such as better caring and higher up impacting on our workforce.
PN885
Now I want to take you now to the - what you say at paragraph 42 onwards about the makeup of the work that SCOPE performs?‑‑‑Yes.
PN886
You're aware aren't you that the unions have called for data upon which you base your conclusions in this section of your statement?‑‑‑Yes.
PN887
You provided or were you involved in the provision of the data that was referred to?‑‑‑Certainly aware of it and it's pulled from GoldCare, our client management system.
PN888
Thank you. I wanted to show you some documents if I might. Now just going to those documents, Dr Fitzgerald, are you able to identify them?‑‑‑Yes, yes, they come from GoldCare our client management system.
PN889
If I can just deal first with the document which is in portrait layout. Can you identify what that shows?‑‑‑Yes, so this is showing, the top of the page is showing the shift duration of in-home and in-community supports, and we've excluded therapy services from those.
PN890
Yes?‑‑‑For the period of July 2013 to June 2014.
PN891
Just tell me for what area; is that for Barwon or is that for - - -?‑‑‑That's for Barwon, yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN892
This is purely for Barwon?‑‑‑Yes.
PN893
If we can go to the next page which is at landscape layout?‑‑‑Yes.
PN894
Can you identify what that page shows please?‑‑‑Yes, so again this is for the period of financial year 14/15. It is showing the duration of shifts on weekdays and weekends and the percentages of each of those. It starts at less than one hour, which there are a small number and the total shifts worked, and it gives a breakdown if you look at the bottom tables, it gives a breakdown of the change in those durations over the year FY16 and 15.
PN895
For what period are we talking about here?‑‑‑So financial year?
PN896
Sorry, for what area?‑‑‑Barwon.
PN897
Barwon. Now - - -
PN898
VICE PRESIDENT HATCHER: So what year is this?‑‑‑Two financial years, so July 2014 to 2015 and 2015 to 2016.
PN899
I see, it's up there. Yes, right. Does this correspond with the percentages and the tables in your statement just above paragraph 48?‑‑‑It represents the same information, your Honour.
PN900
That's the raw data which supports those percentages?‑‑‑Yes, it feeds into it, yes your Honour.
PN901
MS DOUST: Can I just ask you, you refer there and you refer in your statement, Dr Fitzgerald, to the length of shifts. Are you in fact referring to the length of the service that is provided to the client?‑‑‑To an individual, yes.
PN902
So when the - - -
PN903
SENIOR DEPUTY PRESIDENT HAMBERGER: Well, can we be clear, so when you say shift that may not be the shift length for an employee?‑‑‑That may not be the full shift length for the employee.
PN904
So it's the service?‑‑‑It's the service driven by the plan, yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN905
MS DOUST: So this is the attendance or this is the length of the attendance upon the client by one of SCOPE's workers?‑‑‑Correct.
PN906
Only its support workers because therapy workers aren't included - - -?‑‑‑Excluding therapy, correct.
PN907
In these stats?‑‑‑Correct.
PN908
Now just at paragraph 43, you refer there to a 400 per cent increase between 2014 and 2015 and in-home support shifts. Are you able to tell me - well, first of all I wonder if those documents might be tendered and marked, so that I can refer to them more easily.
PN909
VICE PRESIDENT HATCHER: Yes. The document headed "Breakdown of shift duration of in-home or in-community shifts excluding therapy", dated July - should this be one exhibit or two?
PN910
MS DOUST: It'd probably be easier if they got different markings so that they can be referred to.
VICE PRESIDENT HATCHER: That document will be marked as exhibit 283. What do we call the second document? Length of service duration for financial years 14/15 and 15/16 will go into exhibit 284.
EXHIBIT #283 DOCUMENT TITLED BREAKDOWN OF SHIFT DURATION OF IN-HOME OR IN-COMMUNITY SHIFTS EXCLUDING THERAPY
EXHIBIT #284 LENGTH OF SERVICE DURATION FOR FINANCIAL YEARS 14/15 AND 15/16
PN912
MS DOUST: Dr Fitzgerald, did you follow that, that the document in portrait format is now 283 and the document in landscape layout is now 284?‑‑‑Thank you.
PN913
By reference to those documents, can you assist me to understand the 400 per cent increase between two years where that is shown in these statistics?‑‑‑So it goes to the total number, not the number of hours or percentage of hours. So it's the total number of supports in plan, so total number of hours across all plans. So this data is not designed to evidence that.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN914
Well I'm sorry but you refer there to 400 per cent in paragraph 43?‑‑‑Between the two years, yes.
PN915
Which figures in these documents are you referring to or do you say that they don't appear in these documents?‑‑‑These documents show the change in the number of percentage of services delivered over a course of a number of hours, over that time. But what we're saying is the total number of in-home support shifts. So these are percentages and hours.
PN916
VICE PRESIDENT HATCHER: But they show the total number of services, don't they?‑‑‑They show the number of hours, not the number of shifts. So my apologies if that's not clear.
PN917
SENIOR DEPUTY PRESIDENT HAMBERGER: Also these are a financial year and I think that figure was a calendar - two calendar years?‑‑‑Over the two years, yes, so - - -
PN918
VICE PRESIDENT HATCHER: If we go to exhibit 284, just the second for each year?‑‑‑Yes.
PN919
There's a grand total for 14/15 of 10,209, do you see that?‑‑‑10,209.
PN920
That's the second table for financial year 14/15?‑‑‑So the - I beg your pardon, your Honour, the - - -
PN921
So this is the landscape document?‑‑‑Landscape document, yes.
PN922
On the left, the second table?‑‑‑Second table, yes.
PN923
10,209, is that the number of services for that year?‑‑‑Number of hours.
PN924
That's the number of hours, is it?‑‑‑Yes, not shifts.
PN925
So in each column where it's got a number that's the number of hours of services in that category - - -?‑‑‑That is my understanding, your Honour.
PN926
- - - not the number of services in that category?‑‑‑That's my understanding.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN927
MS DOUST: Are you quite sure about that, Dr Fitzgerald?‑‑‑I would need to seek clarification.
PN928
Who is it who has put these figures together?‑‑‑The general manager of West Division who is responsible for this area.
PN929
VICE PRESIDENT HATCHER: So if you go to one hour to two hours - - - ?‑‑‑Yes.
PN930
Sorry, I withdraw the question. You can't tell. All right?‑‑‑My apologies for the lack of clarity.
PN931
MS DOUST: Dr Fitzgerald, you're not sure whether what this shows is the number of services or attendances or the number of hours of attendance; that's what your answer was just a moment ago?‑‑‑My understanding is that the data in 283 and 284 pertains to the number of hours and the comment in paragraph 43 pertains to an increase in the number of support shifts.
PN932
When you use the word "shifts" there, do you mean attendance or do you mean shifts being performed by employees?‑‑‑The number of attendances performed by employees across the financial year.
PN933
So the 400 per cent isn't a figure that we can take from this material here?‑‑‑I think it lacks the clarity that you're requiring.
PN934
You've referred at paragraph 44 to an increase in individual support shifts on the weekends?‑‑‑Yes.
PN935
That's a figure that's limited to the provision of assistance with daily life item, isn't it?‑‑‑No, it can also be so core support and capacity building. So those supports can be provided on the weekend as well.
PN936
Do you see in exhibit 284, we have the first table has a heading - the first table on the left-hand set of columns, "Assistance with daily life" and underneath that there's "Assistance with social and comm participation"?‑‑‑Yes.
PN937
That means assistance with social and community participation?‑‑‑Participation, correct.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN938
That's replicated on the right-hand side of the page, isn't it, for the following financial year?‑‑‑Correct.
PN939
You break it down into assistance with daily life and assistance with social and community participation?‑‑‑Correct.
PN940
You've referred to this figure of 8 per cent there. You're limiting your comments to assistance with daily life?‑‑‑Yes. I take your point.
PN941
It's not the same - - - ?‑‑‑I take your point.
PN942
- - - change in respect of social and community participation, is there?‑‑‑I take your point.
PN943
In fact, when we limit our analysis to the daily life assistance, and refer to that as "supports", you're only looking at about one-third of the services that are provided, for the hours, what the table mentions?‑‑‑Under item - are you looking at under item 15, "Improve daily living skills"?
PN944
Yes. I'm just looking, if we look at financial year 2015/2016, the grand total for assistance with daily life is 8,495?‑‑‑For 2015/2016?
PN945
Yes?‑‑‑Yes.
PN946
Underneath that, the figure for assistance with social and community participation is 17,000?‑‑‑Yes.
PN947
So daily life is only about one-third of what's measured, even in this set of data?‑‑‑I take your point.
PN948
If we look at the change over that period from 2014/2015 to 2015/2016, what you can see is that the grand total figure for daily life, what you refer to as in-home supports, remains stable, doesn't it, or it decreases slightly?‑‑‑It remains fairly stable.
PN949
Yes. What really explodes is assistance with social and community participation which increases from 10,209 to 17,038?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN950
So you say this is hours of work performed or attendances, or you're just not clear?‑‑‑I believe these are hours of work performed.
PN951
Yes. On any view, that is the area in which there's been the marked increase?‑‑‑Yes, which goes to the capacity building component of a person's plan.
PN952
By far the largest portion here of any sort of attendance is attendances in excess of five hours?‑‑‑Are you comparing weekend or weekday for that comment? So usually that would be - - -
PN953
I'm looking at the total. When we look at the total for 2016/2016, that's certainly the largest item, isn't it?‑‑‑So the majority of those supports are provided during the weekday.
PN954
Yes. What these documents show, don't they, is that there's been a huge expansion in the work of Scope over that period?‑‑‑There's been a 29 per cent growth in our revenue base.
PN955
Has there been an increase in the numbers of employees you've engaged to meet that additional demand?‑‑‑A slight increase. It's remained fairly stable.
PN956
Yes, fairly - - - ?‑‑‑We have a stable workforce.
PN957
Fairly stable since about 2012/2013, I think. You accept that?‑‑‑We've had a growth in casual workforce to accommodate the change, but our permanent part-time and full-time workforce has been pretty stable.
PN958
Have you met some of the growth by increasing the hours that are offered to your part-time workforce?‑‑‑Yes.
PN959
I'm just going on the stats in the annual report, Dr Fitzgerald, and the figures that are here show a number of staff of 1,862 in 2012/13 and a number of 1,874 in 2014/15. Does that sound about - - - ?‑‑‑We're a State‑wide organisation so Barwon is 6.7 million of a $93 million organisation.
PN960
Yes?‑‑‑So you've got to take the numbers in the context of a State-wide organisation.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN961
But you're not in a position to tell us any precise figures about what's happened with your employment patterns in Barwon?‑‑‑The significant employment pattern change in Barwon has that, particularly in the first 18 months of the trial, we saw an increase in the casual workforce to deal with the increased demand, for one-to-one and in-community support.
PN962
VICE PRESIDENT HATCHER: Do you identify any particular difficulty in managing the growth that way?‑‑‑It's not our preference, your Honour, because we work with very complex people and we invest a lot in training of our staff, and you'll be aware of the issues in terms of Senate and Parliamentary inquiries around harm, abuse and neglect. So our preference is to have staff who we employ based on the right attributes. We now recruit for attributes and we train for skill. So our preference is to optimise our own workforce and where we can't do that, we will use Scope casuals and where we don't have sufficient Scope casual workforce, we have agency casual workforce on contract.
PN963
So for example, Barwon, you're in a regional area which has some distance between clients?‑‑‑Yes.
PN964
There's a fixed price you can charge?‑‑‑Correct.
PN965
You've got to achieve 95 per cent utilisation?‑‑‑Yes.
PN966
And you're offering clients the person of their choice at the time they want?‑‑‑That's what we're trying to do.
PN967
It sounds to me like an impossible task, quite frankly?‑‑‑It's been very, very hard and for us, for example, Scope operates 42 Mercedes Sprinter buses. They cost us $100,000 to buy, 30,000 to fit out and then we have to run them so that we can put wheelchairs, for example. So there are three of those in Barwon. They're not funded. We've just opened a beautiful new facility, purpose-built, platinum plus accessibility called Shannon Park. It's not funded. So the pressures on us have been very, very substantial in this change and we're trying to advocate and explain that whilst we completely agree with the philosophy of what's trying to be achieved, until we have a community that's fully accessible, someone has to provide those things. And so for us, the provision of assets and transport is having a very substantial impact.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN968
But do you approach this as an exercise in which you operate as a charity which receives a degree of support from the government, or do you see it as an exercise in which, in a commercial sense, you have to - - - ?‑‑‑I'm trying to shift our business - - -
PN969
- - - make the government revenue match your expenses?‑‑‑Yes. We are very much trying to shift from what we were as a charity in 1948 to a not for profit now. My goal is to be a full purpose social enterprise by full scheme rollouts, so we're doing everything in our power to drive front office productivity and back office efficiency to match the NDIS pricing.
PN970
Thank you.
PN971
MS DOUST: Dr Fitzgerald, you were aware, weren't you, in preparing your statement for the purpose of these proceedings that the issues in play included things like whether or not casuals or part-timers should be given a minimum shift length of four hours; you understood that was an issue?‑‑‑Understood, yes.
PN972
You also understood, I'd suggest, that the question whether or not Scope had had to engage new employees, whether they were casual and part-time, those matters were all in issue?‑‑‑Yes.
PN973
I'd suggest to you they were things that scope could have easily accessed some data and provided to the Commission so it could understand how or what impact the NDIS had had on Scope's employment profile?‑‑‑I think what I've said is the employment profile, the permanent part-time and full-time, has stayed steady. The thing that has changed is the utilisation of casuals to meet demand and flexibility requirements.
PN974
Does that mean that you accept my proposition that you could have provided some data to the Commission and to the other parties so that they could assess what the position was?‑‑‑We can certainly provide that data based on our client management system, yes.
PN975
Scope has had an enterprise bargaining agreement in place since 2005?‑‑‑2006 I think it was signed.
PN976
It's currently bargaining again with its workforce for a further enterprise agreement?‑‑‑We're not currently - we are for the therapy team, not for our direct support worker team currently engaged in the bargaining.
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN977
That's certainly something you've done in the past with your support worker - of employees?‑‑‑Yes, certainly in Victoria, about 80 per cent of disability service providers are covered by the one agreement.
PN978
You accept this, don't you, there's nothing to stop you, again, from bargaining with your support worker workforce with a view to getting an agreement that contains the sorts of provisions concerning part-time work that you would prefer to have in place?‑‑‑Our preference, as I stated, is to have - our workforce is our biggest asset, it's 80 per cent of our cost, so we want to optimise our workforce to be the employer of choice and what our workforce have told us is how can we help them be the employee of choice, when a participant has full choice. So our workforce is our investment and we choose to - we could move to another organisation, sorry, to an attendant care model or a direct employment model. We don't believe that that's in the best interests of the people we support or the staff that we employ. So our preference is to leverage the skillset and attributes and value proposition of the people that we employ.
PN979
I'm just directing you to enterprise bargaining with the workforce?‑‑‑Yes.
PN980
You accept, don't you, there's nothing to stop Scope from proceeding to bargain with its workforce about part-time worker provisions, is there?‑‑‑No. In principle and in theory, no.
PN981
In fact, it's done it before in the context of having a number of different applicable part-time worker provisions across a range of awards?‑‑‑Yes, correct. We employ across a number of awards historically.
PN982
When you first engaged - I'm not sure whether this predates you, and please let me know - - - ?‑‑‑It does, yes.
PN983
I'm sorry. Well, I might tender, if I could, the - I've only got one copy, but it is the Scope (Victoria) Ltd - Health Services Union of Australia - Disability Services Sector - Certified Agreement 2005, agreement AG846547. I tender that. We just may wish to refer to that in submissions, so we would want that to - - -
VICE PRESIDENT HATCHER: The Scope (Victoria) Ltd - Health Services Union of Australia - Disability Services Sector - Certified Agreement 2005 will be marked exhibit 285.
EXHIBIT #285 SCOPE (VICTORIA) LTD - HEALTH SERVICES UNION OF AUSTRALIA - DISABILITY SERVICES SECTOR - CERTIFIED AGREEMENT 2005
*** JENNIFER MARY FITZGERALD XXN MS DOUST
PN985
MS DOUST: Will you just excuse me for a moment?
PN986
DEPUTY PRESIDENT BULL: Dr Fitzgerald, when you say that buses and other infrastructure is not funded, where does all the money come from? Is that from your reserves, is it?‑‑‑We have - at the moment it has come under our Funding Service Agreement, so there's still - the majority of our services are still delivered under a State-based Funding Service Agreement. We've advised our board that we will have to exit transport and have pretty much an asset-like strategy under a full NDIS. We won't be able to afford to sustain.
PN987
MS DOUST: Just finally, Dr Fitzgerald, paragraph 56 of your statement you suggest that you don't know the demand for work two weeks in advance; do you recall that part of your statement?‑‑‑Yes.
PN988
Please have a look at it if - - - ?‑‑‑56?
PN989
Yes?‑‑‑So the comment I made earlier was that we roster six weeks ahead, but what we've experienced, just as an example, in the last pay period was a 35 per cent change in those rosters within the pay period.
PN990
What I want to suggest to you is that in fact you have a very good idea of your demand six weeks in advance. That's right, isn't it?‑‑‑We can plan for that, and what I'm saying is, on the ground, 35 per cent of those shifts get changed in a 14-day period.
PN991
Yes. Nothing further.
PN992
VICE PRESIDENT HATCHER: Does any other party want to ask this witness any questions?
PN993
MR FLEMING: Yes, your Honour.
VICE PRESIDENT HATCHER: Mr Fleming?
CROSS-EXAMINATION BY MR FLEMING [3.18 PM]
PN995
MR FLEMING: Good afternoon, Dr Fitzgerald. My name is James Fleming and I appear for the Australian Council of Trade Unions. I just want to ask you a few questions about your statement?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN996
At paragraph 51 you say that:
PN997
If minimum engagements were longer than the current two hours for casual disability support workers, Scope would need to reconsider whether it was commercially viable to offer supports of less than two hours, which would have a significant adverse impact on the choices available for our clients with a disability.
PN998
You gave evidence earlier that when a client requests a service at a particular time, you accommodate that client at that time, is that correct?‑‑‑Yes, we do so as much as possible.
PN999
So it's not your current practice to provide a window of time or to negotiate - - - ?‑‑‑It hasn't been. We attempt very much to give a reliable time for a service provision as per a contract, I guess. So a customer-based service.
PN1000
So it's fair to say, isn't it, that that statement that you make at paragraph 51 is based on the assumption that you're always going to provide a service at a fixed time and not negotiate within a window of time? Is that correct?‑‑‑Our experience to date has been that the window of time approach has not met with positive response from participants, particularly their families, so as much as possible, we - - -
PN1001
Could you please answer my question?‑‑‑Our practice is to make an appointment and to try and keep that appointment time.
PN1002
But my question was, it's fair to say, isn't it, that the assumption behind the statement you make at paragraph 51 about the viability of providing supports less than two hours is based on the idea that you'll be providing services at a particular time, isn't it, and not within a window of time?‑‑‑It's based on an appointment, but also the cost drivers against price. So if it's less than two hours, it's no longer financially viable. It's a loss‑making service for us to deliver.
PN1003
VICE PRESIDENT HATCHER: Unless you can sequence it with a service for another client?‑‑‑Correct, and the issue with that, your Honour, is the travel in between. So particularly if it's in-community, the travel in between, if it's more than 10 minutes, is unfunded.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN1004
MR FLEMING: I put it to you that it's a possibility that if you're providing a window of time, you may be able to aggregate multiple short shifts and make longer shifts in some instances?‑‑‑We would certainly attempt to do so, to the best of our ability.
PN1005
You mentioned that you have sought advice from some academics at an organisation, I think you described as Opturion?‑‑‑Opturion. So it's a private enterprise run in combination with Monash and Melbourne Universities.
PN1006
You've sought their advice about to more efficiently roster the work, is that correct?‑‑‑Correct.
PN1007
In the brief you gave to them, did you ask them to consider how shorter shifts might be aggregated into - shorter appointments might be aggregated into longer shifts for employees?‑‑‑What we did was actually gave them six detailed case scenarios based on participant plans and current rostering and we gave them the assumptions based under the efficient price framework of 95 per cent direct billable time, the travel time, et cetera, and asked them to build that into their model for the analytics for an optimised rostering system.
PN1008
So is it fair to say that the answer to my question is no?‑‑‑The answer is they haven't been able to do that as yet, to our satisfaction.
PN1009
But did you ask? You said you'd asked them to come to an optimal rostering arrangement, did you ask them to consider what I asked you?‑‑‑That was built into the case studies that was given to them. My apologies, I wasn't clear. So that information was in the case studies.
PN1010
VICE PRESIDENT HATCHER: So that was in effect an assumption which they had to build - - - ?‑‑‑That's it, your Honour. Yes.
PN1011
- - - into the model they were trying to create?‑‑‑My apologies for not being clear.
PN1012
MR FLEMING: So just to clarify, you did ask them to look at providing longer shifts by combining short shifts into - - - ?‑‑‑We did. We asked them to look at one-to-one support, one to many participants, many participants to one support and to look at that in centre-based, in-home and in-community situations.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN1013
Did you ask them to look at whether providing a four-hour minimum was possible?‑‑‑We looked at all of the - we basically gave them the evidence of our experience over five to six case studies. So we didn't give minimums and maximums in terms of number of hours, we gave them the data that we had on six clients and their plans.
PN1014
So is the answer to my question no?‑‑‑I couldn't say that it specifically asked to do that, no.
PN1015
Have they provided a report yet?‑‑‑They've provided an interim report. The second phase of the study will be rolled out in Loddon Valley which comes into scheme in the next 12 months. So it's at a pause at the moment.
PN1016
Thank you. Independently of what you asked them, did they provide any advice in that report about whether a four‑hour minimum term of engagement would - - - ?‑‑‑No, they did not.
PN1017
So you don't actually know if a four-hour minimum term of engagement could be accommodated, do you?‑‑‑Not at this point. We don't have a final report.
PN1018
So I put it to you that you have a greater capacity than you've currently employed or described to aggregate short appointments into longer ones and provide longer shifts. Do you agree with that?‑‑‑We make every attempt to do so.
PN1019
But do you have a greater capacity than you currently employ or have described?‑‑‑The way that we have accommodated that is increased use of casual staff.
PN1020
I put it to you that you have choices within your power to make and that you have the choice open to you to provide longer shifts if you were to engage in certain rostering practices. For example, if you were to provide a window of available time where you could instead of an exact agreed - instead of always agreeing to the time that the client prefers, if you're able to aggregate those kinds of appointments into longer shifts, you're able to overlap and roster workers' shifts. Do you agree with that?‑‑‑I think the window, what you've got to realise is if you apply a window of two hours, only one hour of service is billable to the NDIS. So every hour has to be signed off by the participant as when, where and how it was delivered. So I can provide a window, but anything outside what's in the contract is not funded.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN1021
I put it to you if you had one client appointment in a certain area on a Monday at 9 o'clock and then you had another appointment, 9 o'clock the next day with a different client, your current practice would be to accede to both of those requests at that time, but I put it to you that you would have the option to ask the client, the second client, if they'd be willing to have their attendance at 10 am on the first day so you could aggregate those two together?‑‑‑We could potentially do that. It depends upon the nature of the support being provided and whether there are time factors related to that.
PN1022
But currently your practice is not to explore those kinds of options because, as you've said, you give the client the service at the time that they request, without negotiating?‑‑‑We attempt to do that. One point I should make is we're also responsible for the delivery of client's medications which do have times associated with them, generally have to be provided with meals. So again there are external factors that impact upon us in terms of the timing of the delivery of those services.
PN1023
Can you give us a sense of what proportion of those client attendances have time-critical medications attached to them?‑‑‑Certainly anyone that we work with who is in specialist disability housing, that would apply. We also provide all of the daytime medication through Webster-paks, and those have specific times allocated to them for a large proportion of the 90 clients that we provide services to in our day and lifestyle programmes.
PN1024
So roughly what proportion would you say of attendances involve medication that has to be given at a precise time?‑‑‑If it's for day and lifestyle clients and for people living in our accommodation, I would say that it's more than 50 per cent.
PN1025
Okay, but it's certainly not anything like all of the attendances?‑‑‑No.
PN1026
Thank you. Do you have any employees who want to work more hours than they are currently getting?‑‑‑90 per cent of our part-time, permanent part-time staff in Barwon have accepted more shifts from us, so when they're employed, we ask them are they available for additional hours and over the past 12 months, 90 per cent of those offers of additional hours have been accepted by our permanent part‑time staff.
PN1027
VICE PRESIDENT HATCHER: Typically, when you engage part‑timers, how many hours guarantee do you put them on?‑‑‑Most of them, your Honour, are on between 15 and 20 hours per week. And then we ask them do they have preferences for other days and times and our experience has been to the positive, that they accept additional hours on request.
PN1028
So that base, 15 or 20 hours, is rostered on some regular basis, is it?‑‑‑Particularly around the day and lifestyle hours, your Honour, so that's the more predictable part, yes.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN1029
MR FLEMING: How do you offer those additional hours to employees?‑‑‑So we usually - they have agreed that they are willing to accept additional hours and when we're doing the shifts, we'll make phone contact or face-to-face contact with the worker and ask them if they're available for additional hours. So it's a verbal offer and acceptance.
PN1030
You select individual employees that you want to offer those hours to?‑‑‑No, we deliberately rotate people on our client management system so that no one is favoured. So we rotate the list of names very regularly so that no one is preferenced over another unless there's a specific stated preference by the participant for a worker at a particular time.
PN1031
Is it your ordinary practice that you're regularly going through that rotation and offering additional hours to your existing employees?‑‑‑Yes
PN1032
If you're, in fact, required, under the award, to offer any additional hours of work that you had going to your existing employees before you hired new workers, you wouldn't have any problem with that would you?‑‑‑It depends upon the flexibility that it enables me. So we're still building the NDIS. I think you'll have heard the term we're flying the aircraft while we're building it. I'm finding that what happened in Barwon is now appearing to be differently managed somewhat in north east metro Melbourne. So I can only predict what I know from past and try and read the signals from the agency about changes that they're making in their plans going forward. So, for example, the planning process is completely different to what we experienced in Barwon under full transition in north east metro. So there's an inference that there's more predictability that I have.
PN1033
I accept your point that there's some general uncertainty about how the plan will roll out but based on your existing experience and the practice that you already have, you wouldn't have a problem with that requirement would you?‑‑‑I don't have a problem with optimising our permanent part time workforce because we've invested in them, they're the right people for the job but there will be times when I need to employ casual staff where I cannot meet the demand or the request from a participant at a particular day and time.
PN1034
Right, but the proposition I'm putting to you is that you'd merely have to offer those additional hours first to your existing workforce. If you couldn't meet that demand, then you could hire additional people. You wouldn't have a problem with that would you?‑‑‑In principle, no.
PN1035
Thank you. Just to finish off, if I could take you to the document I believe's been marked exhibit 282?‑‑‑282.
*** JENNIFER MARY FITZGERALD XXN MR FLEMING
PN1036
The NDIS plan for client 13?‑‑‑Can I just clarify, is that the one that commences on 7 January 2016.
PN1037
That's right?‑‑‑Thank you.
PN1038
If you could turn to attachment 1, participant terms, which you've already confirmed the standard terms that you use, the standard agreement?‑‑‑Yes.
PN1039
It's the case isn't it that under Our Commitments to You, it says "We will consult with you on decisions about how supports are provided"?‑‑‑Yes.
PN1040
It allows for a subcontractor to provide services?‑‑‑Yes.
PN1041
Under the section Your Responsibilities, it says "You agree to, amongst other things, comply with our reasonable requirements in relation to the delivery of your supports" and then it goes on "including requirements relating to the safety and wellbeing of our staff"?‑‑‑Correct.
PN1042
In fact, in line with that, and there's otherwise nothing inconsistent in the service agreement with you negotiating about the times that services are required with the client? That's the case isn't it? There's nothing in the service agreement that prevents you doing that?‑‑‑No.
PN1043
Thank you.
PN1044
VICE PRESIDENT HATCHER: Any re-examination, Mr Pegg?
MR FLEMING: No further questions.
RE-EXAMINATION BY MR PEGG [3.34 PM]
PN1046
MR PEGG: Yes, your Honour. Just a couple more questions?‑‑‑Yes.
PN1047
Just stay on the plan, so exhibit 282?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD RXN MR PEGG
PN1048
On page six of the plan, you were taken to the budget item increased social and community participation, so that's number 0009, and that support provides for four hours per week for the first three months, three hours per week and so forth?‑‑‑Yes.
PN1049
120 hours over the year. Does that plan commit Scope to any particular timetable week by week?‑‑‑No, it's agreed with the family. In this case, it's a child.
PN1050
That can be changed through negotiation?‑‑‑Yes.
PN1051
Thank you. You were provided with a couple of spreadsheets and I just want to take you to 284, it's the landscape version and there was some time spent looking at the data on shift duration, so forth. Just bear with me while I find my place in it. There was some comparison made between financial year 14/15 and 15/16, that's what the two tables were, and the first table for each of those years was assistance with daily life and the second table was assistance with social and community participation?‑‑‑Yes.
PN1052
Am I correct in understanding that assistance with social and community participation is the area where there's been growth under NDIS and that's what these figures show?‑‑‑Correct.
PN1053
Can you just very briefly confirm the types of supports that would fit under that category. Is that distinct from daily personal care, getting ready for the day?‑‑‑Yes. So daily personal care relates to showering, dressing, toileting, meal time assistance, assistance with medications or a peak feed if a person is fed through a stoma whereas community and collusion and capacity building is actually what is defined in the plan as the capacity building component of the fund, so it's an insurance model. So what the agency is seeking is to reduce lifetime cost with early investment in capacity building. So you will see in a plan funds directed towards things that go to social participation, to education, to skills training for independence in community or in preparation for transition to employment as examples.
PN1054
Is that category of supports the area that - is that the type of support that you've observed greater variation in the timetabling of those supports?‑‑‑Yes, yes.
PN1055
Because they're more fluid?‑‑‑These are very much individualised supports that go to the person's goals established in their plan and the goals in their plan - so I sign off every plan over a certain amount under our delegated authority and I can see clients whose goals have changed over time as that capacity building component has bore fruit so that they might be learning to use transport in the community and their ultimate goal is to be able to work part time. So you'll see the goals change over time as they develop their skills.
*** JENNIFER MARY FITZGERALD RXN MR PEGG
PN1056
That's the area where we see a growth from 14/15, a growth from a grand total of 10,209 to a grand total in 15/16 of 17,030?‑‑‑Correct.
PN1057
VICE PRESIDENT HATCHER: In terms of recruitment, what's the labour market like? Do you have any difficulty in recruiting persons with the suitable characteristics to work in the industry?‑‑‑In Barwon, it's a small pool, we're lucky in having the university there so that you can sometimes get students who want to work part time. Once it hits metropolitan Melbourne I think it will be a different story. We certainly see the use of more casual staff and we're continually recruiting in Melbourne. We have a turnover of a target, upper limit target, of 13 percent. We usually sit around 11 to 12 percent. What we're seeing in Melbourne is a number of our staff are actually putting themselves up, as I said, under some of these direct employment terms using the Scope brand because we've trained them. So we suspect that we will see more of that happen over time. Those people we'll go out and say "Do you want more hours with us?" because we've invested in them, but we expect we'll see more of that.
PN1058
Well I mean in terms of paragraph 53 where you've got an existing part time workforce who have a core number of hours which are rostered on regular days and hours and you want to switch to capacity to deal with rostering independent of any pre-re-commitment, is that right?‑‑‑What we want to be able to do is deal with that flexible component of a participant's plan. So we believe we can roster with a reasonable degree of certitude probably about 80 percent of the time, six weeks ahead, but you can see by the number of shift changes in the example I gave there's a good 20 to 30 percent that we can't predict and so we'd need to be able to respond to those changes.
PN1059
Well I understand that from your perspective but from the employee's perspective, if there's greater uncertainty as to what days and hours they work, how does that help you in base recruiting and retaining staff?‑‑‑I take your point. So in Barwon, our permanent part time staff have been stable and they have been able to increase their hours by mutual agreement.
PN1060
You say that do you want to change that so that - - -?‑‑‑I want to keep our permanent part time staff as much as possible and flex them up as much as I can and at times I believe I will have to use casual staff where I can't meet that demand through my permanent part time staff.
PN1061
But does that mean for a part time employee that at least you can always guarantee a core number of hours on regular days and hours?‑‑‑That's certainly what we intend to do, your Honour, yes.
*** JENNIFER MARY FITZGERALD RXN MR PEGG
PN1062
Then have the additional work as being flexible?‑‑‑Yes, that's what we try to do.
PN1063
You don't see any problem with that continuing?‑‑‑It's worked well for us in Barwon under our current enterprise agreement. It's worked really well.
PN1064
Thank you.
PN1065
MR PEGG: You were also referred to the enterprise agreement that you currently have, it's titled 2005, probably 2006, as I understand it came into effect, so that's some 10 years since that agreement was made. Can you just confirm for me, to your knowledge, do you pay ‑ for your disability support workers, are they currently paid award rates of pay or does your enterprise agreement provide for above award rates of pay?‑‑‑We pay at award rates.
PN1066
You're aware of the - well I'll ask, are you aware of the better off overall test that applies to re-negotiate an agreement?‑‑‑Yes.
PN1067
If, as part of a bargaining process, you were negotiating around part time employment and seeking to retain your current provisions which enable you to have the arrangements that you've just described, are you aware of the award clause 10.3 that, in contrast, requires setting in the contract of employment - - -
PN1068
MR FLEMING: Your Honour, is this a matter arising? I object to the question.
PN1069
VICE PRESIDENT HATCHER: Well, I'll allow the question, Mr Fleming. If you want to seek a follow up question I will allow that.
PN1070
MR FLEMING: May it please the Commission.
PN1071
VICE PRESIDENT HATCHER: Proceed, Mr Pegg.
PN1072
MR PEGG: My question is simply, you're aware of the better off overall test if you were negotiating around part time employment, you're aware of the award clause which currently provides for setting hours of work in the contract of employment?‑‑‑Yes.
PN1073
But your current practice under your enterprise agreement is to be able to set hours in accordance with the roster, is that correct?‑‑‑Correct.
*** JENNIFER MARY FITZGERALD RXN MR PEGG
PN1074
Thank you.
PN1075
VICE PRESIDENT HATCHER: Sorry, just to be clear about this, set hours in accordance with the roster but does the roster change to each roster period for the set hours?‑‑‑It can change over the six week period. So for a fortnight, it would certainly guarantee the number of hours but it could shift up and down over a six week period, your Honour.
PN1076
It could shift to different days and different times?‑‑‑It could, yes.
PN1077
There is no stability in days and hours?‑‑‑For supported independent living and our day and lifestyle programs, that's where the stability lies and that's where the majority of our workforce are employed currently.
PN1078
That stability arises not from the terms of the agreement, just from the nature of the work?‑‑‑It arises from both but certainly - sorry.
PN1079
I'm just looking at this agreement now. It seems to not require that part time employees have any agreed days or hours of work?‑‑‑They're agreed to a roster of hours.
PN1080
Right, thank you.
PN1081
MR PEGG: No further questions, your Honour.
VICE PRESIDENT HATCHER: Ms Doust, did you want to ask any questions arising out of any of that?
FURTHER CROSS-EXAMINATION BY MS DOUST [3.45 PM]
PN1083
MS DOUST: It just goes to the question of bargaining. Just because I've received some instructions from Melbourne, I think, a little bit too late.
PN1084
VICE PRESIDENT HATCHER: No, no, go ahead.
PN1085
MS DOUST: Is it the case in relation to current bargaining that there's been attempts by at least the HSU in Victoria to engage in bargaining with Scope?‑‑‑They have commenced conversations with Jobs Australia.
*** JENNIFER MARY FITZGERALD FXXN MS DOUST
PN1086
For an enterprise agreement to cover support workers employed by Scope?‑‑‑No, we haven't formally signed up in that process, no. So there have been initial meetings and we've been invited to sign up. We haven't formally signed up with Jobs Australia to undertake that negotiation on our behalf.
PN1087
Let me just summarise this, you're aware, are you, the HSU is trying to engage in negotiations for an enterprise agreement to cover support workers at Scope, you accept that?‑‑‑I'm currently not aware of that. I'm aware that there have been conversations with Jobs Australia and NDS and there has been an invitation for us to partake in a sector negotiation. We haven't - - -
PN1088
What conversations are you aware of?‑‑‑I have not, as CEO of Scope, been formally advised that we are currently in negotiation with HSU on an enterprise bargaining agreement for our direct support worker workforce.
PN1089
What conversation were you referring to just before, just a moment ago?‑‑‑A meeting - - -
PN1090
You're aware there's conversations?‑‑‑A meeting was held between providers and Jobs Australia to look at whether or not the enterprise agreement could be looked at by the sector in negotiations with the unions.
PN1091
Can I just ask you this, have you indicated Scope's position to Jobs Australia so far as preparedness to engage in enterprise bargaining is concerned?‑‑‑No, I haven't.
PN1092
You haven't indicated to Jobs Australia that you would be willing to engage in enterprise bargaining about an enterprise agreement to cover support workers with Scope?‑‑‑We have not formally done so at this time. We have not formally done so at this time, no.
PN1093
What is it that's preventing you from indicating that preparedness?‑‑‑There is nothing. I arrived back from overseas leave and understood that the meeting had been undertaken in my absence. Scope did not attend. It is my view that we would be willing to do so. I haven't formally corresponded with Jobs Australia to confirm that as yet.
PN1094
Are we to expect then that Scope will shortly indicate its willingness to engage in those discussions?‑‑‑Yes.
*** JENNIFER MARY FITZGERALD FXXN MS DOUST
PN1095
MR FLEMING: I don't think it's fair.
PN1096
VICE PRESIDENT HATCHER: Yes. Before you go, Mr Fleming, I might have misled you about this agreement as I read on. There seems to be different part time provisions depending upon whether one was covered by certain old awards or not?‑‑‑I'm sorry, I don't have it in front of me, your Honour, to know the detail.
PN1097
No. I'll just show you clause 13.4.2?‑‑‑Thank you.
PN1098
You'll see that that clause which applies to only some employees and the first of those covered by certain awards which no longer exist, requires agreed days and hours. Do you see that?‑‑‑Under 13.4.2(e)?
PN1099
Yes?‑‑‑So it talks about "Regular part time employees shall be paid per hour worked on an amount equal to 1/38th the weekly wage rate".
PN1100
If you keep reading on, I don't have it in front of me?‑‑‑Sorry.
PN1101
There's since been a requirement of engagement to have agreed days and hours?‑‑‑"A regular pattern of work, which days of the week the employee will work and the actual starting and finishing times each day".
PN1102
Yes. Is that the provision you apply to your employees or not?‑‑‑Certainly it applies in the - yes, it does and it was designed to accommodate what was a day and lifestyle funded environment, yes, your Honour.
PN1103
Thank you. Mr Fleming, did you have any further questions?
PN1104
MR FLEMING: No, your Honour.
PN1105
VICE PRESIDENT HATCHER: Mr Pegg, are we finished with you now?
PN1106
MR PEGG: Yes, your Honour.
VICE PRESIDENT HATCHER: Thank you, Dr Fitzgerald. You're now excused and you're free to go?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [3.49 PM]
*** JENNIFER MARY FITZGERALD FXXN MS DOUST
PN1108
VICE PRESIDENT HATCHER: Well, is there anything else we can deal with today?
PN1109
MR FLEMING: Your Honour, a couple of matters.
PN1110
VICE PRESIDENT HATCHER: Yes, Mr Fleming.
PN1111
MR FLEMING: One is the witness statement and the evidence of Mr Jack Todaro who is a ACTU witness who was not available in March and at that time it was to give evidence in July. It appears he's fallen through the cracks in that he wasn't listed in July. I confess I assumed he was no longer required. It may be that our opponents assumed we no longer relied on him.
PN1112
VICE PRESIDENT HATCHER: What was he giving evidence about, Mr Fleming?
PN1113
MR FLEMING: He has a two page statement and the evidence as a casual employee, about impact of casual employment on him and his partner. I believe it's the working in a restaurant.
PN1114
VICE PRESIDENT HATCHER: All right.
PN1115
MR FLEMING: We would prefer to - he's now working full time and has very limited availability working on a construction site, long hours. We would prefer to have this matter dealt with by way of interrogatories. I've talked to my friend, Mr Arndt, about this. They do require him for cross-examination. I found a small window of time where he's available. I'd be requesting the Commission's indulgence, if he could be called, if it's suitable, not before 3.30 on Wednesday. That's one day where he's in a training course and would be able to assist.
PN1116
VICE PRESIDENT HATCHER: That's all right. Yes, all right, well we can organise that, Mr Fleming.
PN1117
MR FLEMING: I should say I have consulted about this with ACCI but I've not yet had the chance to confirm it with the other involved parties but I will discuss it with - and let them know.
PN1118
MR ARNDT: Your Honour, I believe in March, the Australian Chamber, the AI Group and restaurant and catering indicated that they all wished to cross-examine Mr Todaro, so there's no problem with us for 3.30 Wednesday but we haven't received feedback from AI Group or anyone else.
PN1119
VICE PRESIDENT HATCHER: All right. Well Mr Fleming, can I leave it to you to advise the other relevant parties that you intend to call him at 3.30 on Wednesday and if they wish to make a complaint about it they can?
PN1120
MR FLEMING: Certainly, thank you, your Honour, and one final matter of the transcript, I was just wondering, given that it seems there isn't going to be, at this stage, written submissions in relation to the August proceedings in the way that there was for the July, assume that these matters to be dealt with in the final oral submissions at the end of the week so could we please have as short a turnaround with the transcript as possible?
PN1121
VICE PRESIDENT HATCHER: You mean this week's transcript?
PN1122
MR FLEMING: Yes. I'm particularly interested in today's transcript before Thursday.
PN1123
VICE PRESIDENT HATCHER: Well, we've ordered it on a three day turnaround, Mr Fleming.
PN1124
MR FLEMING: Right. As the Commission wish.
PN1125
VICE PRESIDENT HATCHER: But you're talking about how this evidence relates to the common claims are you?
PN1126
MR FLEMING: Yes.
PN1127
VICE PRESIDENT HATCHER: Well, I doubt that you'll have that in time but no doubt someone's taken copious notes of the evidence upon which we can rely.
PN1128
MR FLEMING: May it please the Commission.
PN1129
VICE PRESIDENT HATCHER: Right, any other matters? All right, and that's all the evidence about the NDIS matters is it not?
PN1130
MR PEGG: Sorry?
PN1131
VICE PRESIDENT HATCHER: That's all the evidence in relation to the NDIS matters?
PN1132
MR PEGG: Yes.
PN1133
VICE PRESIDENT HATCHER: Yes, all right. We will now adjourn and resume at 10.00 am tomorrow morning.
ADJOURNED UNTIL TUESDAY, 16 AUGUST 2016 [3.52 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
GRANT WILLIAM HOSKING, AFFIRMED.................................................... PN53
EXAMINATION-IN-CHIEF BY MR GIBIAN................................................... PN53
EXHIBIT #268 STATEMENT OF GRANT HOSKING DATED 21/02/2016. PN61
CROSS-EXAMINATION BY MR FERGUSON................................................ PN63
RE-EXAMINATION BY MR GIBIAN.............................................................. PN107
THE WITNESS WITHDREW............................................................................ PN117
EXHIBIT #269 STATEMENT OF BRAD OSLAND DATED 21/02/2016..... PN126
ROBERT PETER GIDDENS, AFFIRMED...................................................... PN156
EXAMINATION-IN-CHIEF BY MR GIBIAN................................................. PN156
EXHIBIT #270 STATEMENT OF ROBERT GIDDENS DATED 12/02/2016 PN165
CROSS-EXAMINATION BY MR KING.......................................................... PN172
MFI #A SURVEY.................................................................................................. PN189
RE-EXAMINATION BY MR GIBIAN.............................................................. PN220
FURTHER CROSS-EXAMINATION BY MR KING..................................... PN238
THE WITNESS WITHDREW............................................................................ PN257
NORM MURRAY, AFFIRMED......................................................................... PN267
EXAMINATION-IN-CHIEF BY MR GIBIAN................................................. PN267
EXHIBIT #271 STATEMENT OF NORM MURRAY DATED 18/02/2016.. PN275
CROSS-EXAMINATION BY MR KING.......................................................... PN278
THE WITNESS WITHDREW............................................................................ PN335
THOMAS WILFRED EDWARDS, AFFIRMED............................................. PN337
EXAMINATION-IN-CHIEF BY MR GIBIAN................................................. PN337
EXHIBIT #272 STATEMENT OF TOM EDWARDS DATED 16/02/2016... PN348
CROSS-EXAMINATION BY MR KING.......................................................... PN351
RE-EXAMINATION BY MR GIBIAN.............................................................. PN362
THE WITNESS WITHDREW............................................................................ PN368
EXHIBIT #273 STATEMENT OF MATTHEW ZANDER DATED 18/02/2016 PN375
EXHIBIT #274 STATEMENT OF STEVE PINK DATED 20/02/2016.......... PN378
BENJAMIN JAMES DOOLAN, AFFIRMED.................................................. PN381
EXAMINATION-IN-CHIEF BY MR KING..................................................... PN381
EXHIBIT #275 STATEMENT OF BENJAMIN DOOLAN DATED 09/10/2015 PN387
CROSS-EXAMINATION BY MR GIBIAN...................................................... PN392
RE-EXAMINATION BY MR KING.................................................................. PN519
THE WITNESS WITHDREW............................................................................ PN522
GEOFFREY IVAN FERRIS, AFFIRMED....................................................... PN546
EXAMINATION-IN-CHIEF BY MR KING..................................................... PN546
EXHIBIT #276 STATEMENT OF GEOFFREY IVAN HARRIS EXCLUDING PARAGRAPH 26 DATED 10/10/15............................................................................................... PN551
EXHIBIT #277 BUSLINES GROUP STAFF PROFILE DATED AUGUST 2016 PN563
CROSS-EXAMINATION BY MR GIBIAN...................................................... PN576
THE WITNESS WITHDREW............................................................................ PN669
EXHIBIT #278 STATEMENT OF MR BEN ADAM CAMPBELL ROMANOWSKI DATED 09/10/2015 EXCLUDING THE LAST SENTENCE......................................... PN675
EXHIBIT #279 STATEMENT OF MR SHANE DEWSBERY DATED 09/10/2015 PN678
JENNIFER MARY FITZGERALD, SWORN.................................................. PN708
EXAMINATION-IN-CHIEF BY MR PEGG.................................................... PN708
EXHIBIT #280 WITNESS STATEMENT OF DR JENNIFER FITZGERALD DATED 11/08/2016 AS AMENDED................................................................................... PN717
EXHIBIT #281 DOCUMENT ENTITLED 'SAMPLE D, IDENTIFIED ROSTER FOR SUPPORTS PROVIDED TO SCOPE CLIENTS IN BARWON AREA....... PN734
CROSS-EXAMINATION BY MS DOUST........................................................ PN735
EXHIBIT #282 NDIS PLAN AND SCOPE PARTICIPANT AGREEMENT FOR CLIENT 13................................................................................................................................. PN800
EXHIBIT #283 DOCUMENT TITLED BREAKDOWN OF SHIFT DURATION OF IN-HOME OR IN-COMMUNITY SHIFTS EXCLUDING THERAPY........................... PN911
EXHIBIT #284 LENGTH OF SERVICE DURATION FOR FINANCIAL YEARS 14/15 AND 15/16........................................................................................................................ PN911
EXHIBIT #285 SCOPE (VICTORIA) LTD - HEALTH SERVICES UNION OF AUSTRALIA - DISABILITY SERVICES SECTOR - CERTIFIED AGREEMENT 2005... PN984
CROSS-EXAMINATION BY MR FLEMING................................................. PN994
RE-EXAMINATION BY MR PEGG............................................................... PN1045
FURTHER CROSS-EXAMINATION BY MS DOUST................................. PN1082
THE WITNESS WITHDREW.......................................................................... PN1107