PN1227

VICE PRESIDENT HATCHER: Is there any change of appearances or new appearances?

PN1228

MR CLARKE: Vice President, for ABI, ACCI and New South Wales Business Chamber, Mr Cahill has been or will be replaced by Mr Tyler.

PN1229

VICE PRESIDENT HATCHER: Thank you. Anything else? All right. Mr Clarke, can we start with the statements of Dr Cronin?

PN1230

MR CLARKE: Yes. Your Honour, I understand as a result of matters that have transpired overnight, you recall that the purpose of a further statement of Mr Cronin was to deal with some matters in the notices to produce. I understand and Mr Arndt will correct me if I'm wrong that he no longer seeks to rely on or tender those documents from the Royal Flying Doctor Service. If that is the case, the further statement we will not seek to tender but the original statement we do seek to tender.

PN1231

VICE PRESIDENT HATCHER: Is that correct, Mr Arndt?

PN1232

MR ARNDT: That's correct, Vice President.

PN1233

VICE PRESIDENT HATCHER: All right. So we can just proceed, so I'll close that. So the statement of Dr Andrew Cronin - - -

PN1234

MR CLARKE: 1 May, your Honour.

PN1235

VICE PRESIDENT HATCHER: Sorry, what was that Mr Clarke?

PN1236

MR CLARKE: 1 May is the date.

PN1237

VICE PRESIDENT HATCHER: Dated 1 May 2020 will be marked exhibit 32.

EXHIBIT #32 STATEMENT OF DR ANDREW CRONIN DATED 01/05/2020

PN1238

Then are we ready to deal with Professor MacIntyre?

PN1239

MR CLARKE: If she's on the line.

PN1240

THE ASSOCIATE: Yes, Vice President, she's in the lobby. I'll admit her now.

PN1241

VICE PRESIDENT HATCHER: Right, thank you.

PN1242

THE ASSOCIATE: Professor MacIntyre, can you hear and see me?

PN1243

PROFESSOR MACINTYRE: Yes, I can.

PN1244

THE ASSOCIATE: We can't see you, bear with me a moment.

PN1245

PROFESSOR MACINTYRE: My camera's on.

PN1246

THE ASSOCIATE: There we go. Ms MacIntyre, can you please state your name and full address?

PN1247

PROFESSOR MACINTYRE: It's Chandini Raina MacIntyre, (address supplied).

<CHANDINI RAINA MACINTYRE, AFFIRMED [9.06 AM]

EXAMINATION-IN-CHIEF BY MR CLARKE [9.06 AM]

PN1248

VICE PRESIDENT HATCHER: Who is taking this witness?

PN1249

MR CLARKE: It's Mr Clarke.

PN1250

VICE PRESIDENT HATCHER: Mr Clarke.

PN1251

MR CLARKE: Thank you. Professor MacIntyre, can I get you to just reconfirm for the purposes of the transcript your name and address?‑‑‑It's Chandini Raina MacIntyre, (address supplied).

PN1252

You prepared a statement for the purposes of these proceedings, which is dated 11 - well on 11 May?‑‑‑Yes.

PN1253

That statement has eight annexures to it marked RM-1 to RM-8?‑‑‑Yes.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1254

The last of those marked RM-8 is a report prepared by yourself?‑‑‑Yes.

PN1255

Were the contents of that report and that statement honest and accurate to the best of your knowledge and expertise at the time that you wrote them?‑‑‑Yes, they are.

PN1256

The report deals with broadly the background to COVID-19, the mechanisms of its spread and particular risk settings?‑‑‑Yes.

PN1257

Thank you, Professor. In the introduction to your statement you refer to your occupation as an academic and an epidemiologist and as a public health physician. Are you able to explain to the Commission the requirements or current duties of your occupation in the context of the COVID-19?‑‑‑So I'm in a full-time research role funded by an National Health and Medical Research Council principal research fellowship. So the vast majority of my time is dedicated to doing research at the Kirby Institute in UNSW medicine, and my research is around infectious diseases.

PN1258

Thank you. Has that involved duties or research related to COVID-19 currently?‑‑‑Yes, it has. Well, specifically, I have a study that's been running since 2018 in nine aged care facilities across New South Wales, which was set up to study influenza outbreaks, but has now been - had a modification of the ethics approval to also study COVID outbreaks. But we're doing a range of other research on COVID-19; modelling, epidemiology and I also work with overseas collaborators in countries where there's more COVID-19 and I've published a number of papers already. My other research background is mainly on respiratory transmissible viruses, so influenza. I have done research on MERS-Coronavirus as well which is similar to COVID-19, and I've done research in aged care facilities on outbreaks in aged care facilities and in hospitals. That's been a major part of my research for over 15 years.

PN1259

Thank you, Professor. The research, is that for the purpose of publication or advice to other authorities or are you able to explain?‑‑‑Well, as an academic obviously publications are part of the outputs that are expected of us, but the research that I do is really around preventing infection and much of it has informed policy and practice internationally and nationally. So ultimately, you know, you expect that your publications will inform policy and practice and make a difference in terms of prevention of infection.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1260

Thank you. Well, I take it in the current context you would be very busy. On the first page of your report you mention that the world is facing an unprecedented pandemic and that global impacts are still unfolding. Can I ask you to comment on how it has unfolded, at least in Australia, since you prepared your report?‑‑‑Yes. So in Australia it's - we have been extremely fortunate in getting the disease under control. We're only one of probably three countries in the world that are in this position of having brought incidents down to fairly low levels compared to other countries. But when we look at what's happening globally right now, the pandemic is on the very steep upward trajectory so it's rising very steeply overseas, which means that for us as a country it's not going away. The risk is going to continue and it's very likely that we will have intermittent epidemics which we have to try and keep control of to make sure that they do not become uncontrolled in Australia.

PN1261

Thank you. Would it be correct to say that it hasn't gone away?‑‑‑Yes, that's correct, not by any means.

PN1262

Your report on pages 3 and 4 refers to overseas experience of transmission to health workers and in health facilities, and also an outbreak in an aged care facility in Ryde in New South Wales in Australia. Since your report, are you aware of any other instances in Australia?‑‑‑Yes, some of the research we've been doing has been trying to - because - sorry, I'll just take one step back. Because we don't get formal reporting of numbers of cases in by occupation, such as health care workers and aged care workers I have a research student who is doing a project on trying to actually quantify the degree of transmission in aged care and health care settings, and this is part of my longstanding interest in aged care and health care. The first thing we did is we looked at the - we curated the number of different outbreaks, so we identified the Northwest Regional Hospital outbreak in Tasmania, the Alfred Hospital outbreak in Victoria, the Gosford Hospital outbreak in New South Wales, Cairns Hospital in Queensland, Albert Road Clinic in Victoria, Sunshine Hospital Victoria, Westmead New South Wales, Joondalup Private Hospital in WA. In terms of aged care and long term care facilities the Anglicare Newmarch House, Dorothy Henderson Lodge and Lynden Aged Care.

PN1263

Thank you. Is that the project that's continuing that you mentioned earlier in your - - -?‑‑‑Yes, so it's not - - -

PN1264

- - - evidence?‑‑‑Yes, we're in the middle of preparing two separate papers on aged care and health care.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1265

Those findings which you mentioned are going back to the data and looking at where the outbreaks were and the occupational settings, how does that sit - those emerging research findings, how do they sit with the views that you've expressed on page 3 and 4 of your report about the risks to particular health and community services workers?‑‑‑So we looked at the source of infection and looked at whether they were exposed in a clinical setting or the work setting. Whether it was unknown how they got infected or whether they got infected in the community, and the majority were actually exposed in a clinical setting of the cases we identified. The risk of infection compared to the general community and so the national average for healthcare workers, we've calculated that risk to be three times higher than the general community but it did vary by state, so the highest risk was in Tasmania and that was obviously influenced by the outbreak in the hospital there, but Victoria also had a high risk. States like WA, New South Wales and Queensland - sorry, WA and New South Wales did not have any statistically significant difference. So there's quite a lot of variation between states and territories, but overall an increased risk.

PN1266

Thank you, Professor. Now in relation to the opinions expressed on page 3 and 4 of your report about risks to particular workers and particular workplace settings, material will be presented to this Commission that shows that certain aged care or disability care or facilities, hospitals and other health and community service workplaces have published policies and procedures dealing with screening questionnaires for people coming in and out, and employees, and taking people's temperature, personal protective equipment, isolation, infection control, including specifically in relation to COVID-19. What do you say about that?‑‑‑I think that's really a very positive thing. The - you know, the whole sector has had to stand up and take note because there were so many outbreaks in aged care and long term care facilities internationally which have had quite catastrophic outbreaks. So every aged care and long term care facility in Australia has had to take note and formulate policies and decide how they're going to deal with it, which is good. That's what we've seen. Having said that though the settings themselves remain high risk and that's - and this has been known for a long time from research on other diseases like other respiratory diseases like influenza and RSV, which shows that in those closed settings where you've got long term residents, when an outbreak happens if one person, usually a staff member or a visitor, brings the infection in you get much more intense transmission and very explosive outbreaks. With influenza, for example, even if people are vaccinated you can still get outbreaks because the transmission is so intense in those settings. So we would still expect to be seeing outbreaks. The other issue is about the implementation of policy. So policy is just the starting point but it's the people on the ground understanding what those policies are, complying with them and implementing them that's where the problems arise and, you know, in the area where I've worked in aged care for a long time in influenza, we know that there are policies saying that staff should get vaccinated but very few staff actually do get vaccinated. We've done a fair bit of research on the aged care workforce which has not been much of a focus of research in Australia before, which they're quite different from the healthcare workforce and often there are financial barriers to complying with guidelines.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1267

Sorry, what do you mean by financial barriers to complying with guidelines, I'm sorry. Are you able to explain that, Professor?‑‑‑We were doing research around influenza and in the nursing homes that we looked at, which was nine nursing homes of one provider Hammond Care, and that's an ongoing study, a large proportion of the workers were migrant workers who did not have full-time permanent - who did not have permanent residency or citizenship. So they were on bridging visas and kinds of visas where they were not eligible for Medicare. So even going to the doctor to get a screening test or to get vaccinated was an out of pocket cost to them that they often could not afford, and therefore they would come to work without doing those things. Whereas when the aged care facility provided the vaccinations on-site the uptake was much higher because there was no out of pocket cost to the workers.

PN1268

Thank you for clarifying that, Professor. If it were to be suggested to you that your opinions about risks to workers and in the workplaces identified in your report just aren't applicable at all to Australia because of your reliance on international studies, how would you respond?‑‑‑So it's not my opinion, it's my considered expert understanding of the evidence and there's just such a huge body of evidence showing that these settings have recurrent outbreaks of many different kinds. Not just respiratory viruses; gastroenteritis and other kinds of outbreaks as well. It's well recognised everywhere including in Australia, including by people in the aged care sector in Australia who I work with that this is a high risk.

PN1269

Thank you. You say on page 2 of your report that there's growing evidence that the virus can be transmitted by fine respiratory aerosols. What are fine respiratory aerosols?‑‑‑So when you breathe or cough or sneeze you generate aerosols from your respiratory tract. In a cough or a sneeze you generate droplets that come from the mouth and the nose and they are large droplets generally greater than 5 microns in size, which are the things that you feel and see when someone sneezes in your face. But also with that you get generation of very, very microscopic particles of, you know, aerosols which come from the lungs. They can come out just with breathing or with speaking or with even singing. You might have heard about the outbreaks in choirs around the world and the impact it's had on choral singing, that's because of the respiratory aerosols that come out with activities that do not even involve coughing or sneezing. Generally those particles are coming from the lung. So there's been a number of studies showing - one that showed that Coronaviruses are more likely to come out in those fine aerosols than other viruses like influenza, and that they come out just when you breathe, you don't even need to cough. If you put a surgical mask on it stops the virus coming out.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1270

Thank you?‑‑‑I should mention, sorry, that there's a study that was just published this week which was in a pre-print form previously, I've referenced it in the pre-print form in the document, which is a study by Alicia Fears. That was a study done across top laboratories in the US, including the National Institutes of Health, University of Texas Medical Branch at Galveston, the US Army Medical Research Infectious Disease Institute, Tulane University and another university. They all repeated the same experiments independently across these five labs and they showed that not only is SARS-CoV airborne aerosolised, those terms are used interchangeably but they mean the same thing. But that it is more aerosolised than SARS No. 1 and MERS-Coronavirus, so it's got more propensity to be airborne. And they also identify viable virus 16 hours after the aerosolisation of the virus. There's been a few other studies that have shown that the virus can be detected three to four hours after being aerosolised, but this study showed it was persistent 16 hours. That matters in closed settings because particularly if the ventilation is not good or you're re-circulating the air with your air conditioning, those aerosols can persist and hover around in the air long after whoever was infected has moved away from there.

PN1271

Thank you for explaining that, Professor. So is that related to your separate statement on page 5 of your report, that the evidence is accumulating that COVID-19 can be transmitted by the airborne group? Is that still the case that evidence is accumulating?‑‑‑Yes, there's more and more evidence. It's pretty clear. There's also - there's sort of the clinical evidence that comes from hospitals, there's laboratory evidence and then there's aerosol scientists who are also doing research, so it's coming at it from multiple different angles and it's all consistent with airborne transmission being a pretty significant part of the transmission of SARS-CoV-2.

PN1272

Thank you, Professor. On page 5 of your report you make a couple of references to the resilience of the health system. What does that expression mean?‑‑‑It means that when you've got a disaster situation, so a pandemic is a disaster, the type of planning you do for a pandemic is disaster planning. You know, it's around business continuity, resilience of systems, maintaining the functioning of critical infrastructure which includes the health system. That's an area of research I've been involved in for a long time. Actually last year we ran a pandemic simulation in the US, in three cities in the US, to look at what happens in a serious pandemic. In that case it was small pox, but we looked at exactly that. What happens when you run out of hospital beds, ICU beds, when your health workforce is getting sick, when other people also need the equipment and personal protective equipment like the police and other first responders. We simulated something that was quite similar to what panned out with COVID-19. But that's work I've published on as well so one of the publications was looking at Sydney particularly and what would happen with the health system if certain parameters were exceeded, looking at, you know, which ultimately identified what you need to do to make sure that the health system doesn't fall over.

PN1273

Can I clarify, you understand in these proceedings that the applicant unions are seeking paid leave as opposed to unpaid leave is provided to health workers, in the event they're required to self-isolate or contract COVID-19. Do you understand that?‑‑‑Yes, yes, I understand.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1274

It'll be argued by some participants in these proceedings that it is a pure hypothetical that the provision of paid rather than unpaid leave relate in infection control. What would you say about that?‑‑‑So we know from other research in these kind of settings which we've done in both health care and aged care that if people have a financial disadvantage, they will come to work sick. They won't tell you that they're sick, they'll come to work because they have to. We've actually seen that happen in other countries which have been more severely affected, and then that sets off an outbreak, so you end up in a much worse situation with much greater losses than if that person had just been financially able to afford to stay sick.

PN1275

Does that apply just to the issue of illness or to the issue of being told that they can't work because they might present a risk?‑‑‑No, it applies to quarantine as well and we've seen the same thing, even in Australia in the - I think in the restaurant industry early on. There was a case of someone who turned up to work who was meant to be in quarantine. So the quarantine period, people are put into quarantine when they are contacts or at risk, so say there's an identified case in the workplace and you know that certain people have had close contact with that person. They need to stay away from work and quarantine. Commonly we hear the term self-isolate, I just want to make a typical distinction that isolation refers to sick people with infection being isolated. Quarantine refers to well people who are at risk of infection being isolated, but it's actually quarantine I'm talking about. So if people breach that quarantine they are at a very high risk of infection. That's like the target group where you really want to stop transmission. If they breach that quarantine then you're posing a risk to society that they will infect other people outside of - in the community or back at work or wherever they're going if they breach that quarantine.

PN1276

Thank you for explaining that, Professor. It's been suggested by one of the participants or at least one of the participants in this proceedings that a recent entry in the Medical Journal of Australia by Muhi, Irving and Buising, identifies potential limitations in extrapolating the overseas experience of COVID-19 in the health sector to the Australian healthcare system. Now that's an article titled:

PN1277

COVID-19 in Australian Healthcare Workers: Early experience of the Royal Melbourne Hospital emphasises the importance of community acquisition.

PN1278

Are you familiar with that article?‑‑‑Yes, I am. Yes.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1279

Can I ask you to comment on the proposition that that article identifies potential limitations in extrapolating the overseas experience of COVID-19 in the health sector to the Australian healthcare system?‑‑‑So that article, what they did there was random screening. Rather than targeted investigation around an actual case or an outbreak, they just decided they were going to screen everyone who wanted a screening test. So that's quite different and you know in Australia, because we've had a low instance (indistinct), if you do that kind of random screening you won't find a high amount of disease. But they did find a handful of cases that could have certainly got it at work and if that was the case I worked out some rates of healthcare workers based on registered healthcare workers and the Australian health practitioners registration data with the general community rate, and the rate is higher in Victoria, even based on that study. But we've done - in the study I mentioned that my student is doing we've found a statistically significantly higher rate, about six times higher I think. Yes, 5.8 times higher in Victoria for healthcare workers compared to the general community. So that is not - that's a one off cross-sectional random survey. What you'd need to look at is the - if you want to test people, you need to test around contacts of cases in the health system.

PN1280

So they adopted a methodology that was more unlikely to actually find a connection but found some connection anyway?‑‑‑That's right. They certainly did find - in their paper, from memory, they just attributed one of the cases they found to acquisition in the hospital but they really didn't provide enough information to preclude acquisition in the hospital from at least three or four other cases.

PN1281

Thank you, Professor. Can I ask you to comment on a proposition that on the strength of that article it's safe to say that community acquisition of COVID-19 is likely to be occurring in healthcare workers more often than work related acquisition?‑‑‑No, that's actually not correct because in Australia where the community rate of transmission is very low, the highest risk is going to be in healthcare, because that's where sick people go, that's where people with respiratory symptoms go. It's been documented for decades and decades that the healthcare setting is high risk for healthcare workers because, you know, in an emergency department for example you've got multiple patients, staff, all going through. This infection can also present asymptomatically so people can be infected and infectious without any symptoms. So other healthcare workers themselves who have been exposed may be infected and unknowingly transmitting in the healthcare setting. So the hospital is like an incubator, so it's much more likely that a healthcare worker who gets infected is infected in the workplace. So in the analysis that we did, which isn't published, but which I mentioned earlier the majority of hospital workers were exposed in the clinical setting.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1282

Thank you, Professor. So if it were suggested to you that the Australian experience has shown that health and community workers have not contracted COVID-19 at a higher rate than the general population or been required to isolate or quarantine at a higher rate than the general population, how would you respond?‑‑‑Well, I think I'd say first of all we haven't had a transparent presentation of the data on a national level or even at a state level. The only thing I've heard presented on a state level is Victoria some time in May saying they had 160 healthcare workers infected. I actually contacted the chief health officer of Victoria at the time because I calculated a risk for healthcare workers based on that and the community rate and I said look, I've calculated very high risk for healthcare workers and he said we're just looking into the cause of acquisition and he didn't have an exact breakdown but, you know, Victoria has been the most transparent in actually saying how many healthcare workers. No other state has actually presented those data and we do not have those data on a national level. In the hospital infection control community there is generally a culture of trying to minimise infections in healthcare workers and trying to attribute it to anywhere else but healthcare. That's not borne out by the research. The research shows that healthcare workers are at higher risk of numerous infections in the health system and it kind of - it makes sense too because as I said there's much more risk in a healthcare setting because of patients, other healthcare workers et cetera.

PN1283

VICE PRESIDENT HATCHER: Mr Clarke, can I just intervene here. It's Hatcher VP, Professor MacIntyre. I don't think you answered the second part of Mr Clarke's question, which is whether there is a high incidence of requirement for quarantine among healthcare workers in the general community?‑‑‑Okay, my apologise, your Honour. Yes, so we did look at that in the analysis we did of the outbreaks in hospital and aged care, and I can just read to you the numbers that we got. In the Northwest Regional Hospital in Tasmania 1200 staff were required to quarantine. At the Alfred Hospital 100 but I've actually heard from someone who works there it was slightly more than that. Gosford Hospital we weren't able to find out. Cairns Hospital, 80 staff were required to quarantine. Albert Road Clinic, we couldn't find out the number. Sunshine Hospital, 24 staff were required to quarantine. Westmead Hospital, 20. Joondalup Private Hospital, 19. In the aged care settings Anglicare Newmarch 55 staff were required to quarantine. Dorothy Henderson Lodge, 65 per cent of their entire workforce was required to quarantine. Lynden Aged Care we were able to get the numbers. So I haven't worked out a rate compared to the general population but I think it will be similar to the risk of infection that it will be higher based on the general community incidents of disease and people who have been quarantined. But again there's no national data on the number of people who have been quarantined.

PN1284

There have also been large scale quarantines at some other hotspots outside of healthcare, I think meat works is one of them?‑‑‑That's correct, yes, your Honour.

PN1285

Just to clarify, when you talk about healthcare workers apart from people in hospitals and aged care, who are we talking about?‑‑‑So long term care, you know, which includes disability but also people who work in - so there's two types of settings. One is the institutional setting and the risk is similar where there's residents in long term care. The other is the homecare setting where individual workers have to go into somebody's home and there there's very close personal contact from some of the testimonials I've read from people who work in the sector, like you know cleaning soiled beds and emptying bed pans and washing sheets, changing people, showering people, helping them to toilet et cetera. So that's, you know, more intense individual risk.

PN1286

Thank you. Mr Clarke.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1287

MR CLARKE: Thank you. Are you familiar with the regulatory conditions - requirements regarding when a person is obliged to self-isolate or quarantine in relation to COVID-19?‑‑‑So generally that's determined at a jurisdictional level, state or territory that the state when they're notified of a case they will identify the contacts and they will issue a request to quarantine. But also at the international borders, the return travellers who have come in and also quarantined as a matter of routine because of the high incidence of disease overseas.

PN1288

It's been suggested by the pharmacy employers in these proceedings that a person is required to self-isolate after 15 minutes of close contact with a known or suspected case. Can you tell the Commission if that is a requirement and if so why is that 15 minutes a requirement?‑‑‑So that's a general guideline. You have to have a definition of close contact to be able to implement that requirement for quarantine, so it's generally close contacts that are quarantined. And it's a somewhat arbitrary cut off point to say that, you know, after 15 minutes or more makes you a close contact. It doesn't mean that people with less than 15 minutes of contact don't have a risk. It's not based on data, it's just an arbitrary cut off that's used to help define close contacts. Having said that though, in a closed setting, with the aerosolisation of virus, the virus has been shown to be able to persist for anywhere from three to 16 hours in the air after someone who's infected has gone. That's been shown for other infections as well like influenza, so somebody working in a closed setting where there's a lot of people moving through, who could be sick, could be exposed for longer than 15 minutes because of aerosolisation.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1289

Thank you, Professor. Much has been said in the materials relied on by some parties in these proceedings about the implementation and subsequent easing of restrictions on social contact, in terms of the numbers of people permitted in the one place at the one time. Are you able to explain to the Commission the scientific reasons why or the basis upon which such restrictions are implemented or eased, as the case may be?‑‑‑Yes. So this is an epidemic disease which means that it increases exponentially over time, over matters of weeks not months or years. So one case can give rise to on average three other cases which then each will give rise to three more cases, which is why you see rapid growth of epidemics. Because we don't have a vaccine or a drug to stop the spread, we have to rely on these non-pharmaceutical measures which are in essence finding all the cases and isolating them so they can't infect anyone else, then tracking all of their contacts and putting them in quarantine because the contacts of those cases are the ones who are at most risk of becoming the next lot of cases. So if we quarantine them before they can - in the two weeks' incubation period during which they're most likely to become infected, then you're stopping them from infecting other people because they're in quarantine. (Indistinct) social distancing, they're all used together so they need to be seen as interventions used together. So the social distancing which can be anything from complete lockdown of society to banning of mass gatherings like sporting events, to asking people to not congregate in groups of more than two or four, whatever the number may be, to keeping a distance of 1 to 2 metres between people where you can. Those are measures that do work because it is a respiratory transmissible infection because you can't always tell who's infected and you yourself may not know if you're infected because of the asymptomatic transmission. When there's a high level of disease we tend to increase the number of restrictions which is what we saw in March when we had the peak of disease in Australia. That's when, you know, gradual phased - first of all we closed the international borders and then there was gradual phased increase in social distancing, lockdown type restrictions, and once that came down to a really low level we started seeking the phased opening up of society and relaxing of those restrictions to allow people to go back to work, to go to restaurants and so on. But as that happens, you'll get more and more contact between people, which then increases the risk of another epidemic. The other concerning factor is that the cases, most of the - back in March over 60 per cent of the cases were travel related. Now we're seeing more than half the cases being community transmission, so that's what of concern, that because a lot of people can have mild or asymptomatic infection there could be a risk of a resurgence of COVID-19 through community transmission.

PN1290

Thank you, Professor. I think I mentioned before that some of the - and you identified some of those lockdown or social distancing measures are based around the number of people being in the one place at the same time. Evidence has been given in this Commission that as many as, you know, 4500 customers could be personally served in a pharmacy in a three month period by the one worker, or 450 in a day, so they're not in the same place at the same time but what do you say about that?‑‑‑So the risk of infection is proportionate to the number of contacts you - for an individual, the number of contacts you have per day and the closeness of that contact, and the setting of that contact. So an indoor closed setting is more high risk than an outdoor setting. If you're seeing, you know, thousands of people or hundreds of people even in a day then your risk is higher than if you were just seeing a couple of people a day. The pharmacy also, I should add, is a setting where sick people tend to go when they're not sick enough to see the doctor but need something, say, for their sore throat or whatever else. You do get sick people congregating in pharmacies.

PN1291

In relation to that matter, evidence has been given to this Commission by a pharmacy worker about continuous positive airway pressure machines. Do you know what a continuous positive airway pressure machine is?‑‑‑Yes, yes, it's something that's used for different respiratory conditions, including sleep apnoea.

*** CHANDINI RAINA MACINTYRE XN MR CLARKE

PN1292

That witness said that her work involved - in the pharmacy, her work involved fitting people for these machines and these people would bring the machines in if there were issues with them, she would handle these machines which she would say have been perhaps used by the customers and not washed. She would fit them to customers' faces, she would turn on a run the machine and feel around them for air leaks and that that could take 15 to 20 minutes to do that on each occasion. Do you care to comment on that procedure?‑‑‑So that's probably a reasonably high risk procedure because you're dealing with respiratory emissions and there's a device around the face and if there's leakage through the sides of that device while you're doing the testing and the fitting, you know, and you're up at close quarters we know that respiratory - even large droplets can travel up to 8 metres but generally, you know, more than 2 metres. So when you're right up near someone that risk would be quite significant if the person was infected.

PN1293

VICE PRESIDENT HATCHER: Mr Clarke, I think your butting against some reasonable time implications now. Are you about to (indistinct) - - -

PN1294

MR CLARKE: Yes, I have one final question, your Honour, if that's okay. On page 2 of your report you say that:

PN1295

In the disability and homecare sector carers have very close personal contact with the people they care for, including cleaning soiled bedsheets, lifting, helping with toileting and bathing. Given the transmission from SARS-CoV-2 from droplets, aerosols, direct contact, fomites and even faecal material, such workers are at a high risk.

PN1296

I was wondering if you could just explain to the Commission what are fomites?‑‑‑The fomites are, you know, like particles of dust et cetera that might have virus on them that are on surfaces and they can get re-aerosolised with movement of those surfaces. So say a bedsheet, for example, that's got some particles on it which has virus on them, when you change those bedsheets, just the process of moving them or even shaking them can then cause those particles to get aerosolised again and be breathed in.

PN1297

Thank you for that, Professor. I seek to tender the statement of Professor MacIntyre.

PN1298

VICE PRESIDENT HATCHER: The statement and (indistinct) annexures of Professor Raina MacIntyre dated (indistinct) 11 May 2020 will be marked exhibit 33.

EXHIBIT #33 WITNESS STATEMENT AND ANNEXURES OF PROFESSOR MacINTYRE DATED 11/05/2020

PN1299

Mr Arndt.

CROSS-EXAMINATION BY MR ARNDT [9.50 AM]

PN1300

MR ARNDT: Professor MacIntyre, can you see me?‑‑‑Yes, I can.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1301

Unfortunately I can't see you but that's all right, I'll just proceed. My name if Julian Arndt. I'm representing employers in this case or some employers in this case and I have a couple of questions to ask you, some of which has already been covered quite extensively by Mr Clarke so I may actually be shorter than Mr Clarke. In your statement you identify the five pillars of epidemic control which to summarise would be testing, contact tracing, social distancing, travel bans and preventative measures like face masks and PPE, vaccines and so forth. Now depending on how those factors are all implemented, that has the effect on whether a pandemic can be controlled, that's right?‑‑‑That's right.

PN1302

It's a complex question though isn't it? I mean the more effective in respect of one of those controls, the less or necessary or extreme you might need to make the controls in relation to the other factors. This is very complex isn't it?‑‑‑So when we don't have a vaccine to control the disease, generally any of those one measures on their own is not enough, you need to use all of them together and the cumulative effect can suppress the epidemic.

PN1303

In terms of the risk, it also depends on how many infections a country has doesn't it? I mean the more infections the necessity for stricter controls and the more extreme the risk. The less infections the less risk?‑‑‑Yes, that's true in a general sense, however as I said earlier to Mr Clarke that closed institutional settings have been identified as high risk of outbreaks, even in the absence of high community transmission, and that's been shown with diseases like influenza and also with COVID. You know, when we had some of the outbreaks - the initial outbreak in New South Wales in Dorothy Henderson Lodge, there wasn't a high level of community transmission at that time in the general community. The other issue I guess is that it's not a static picture. We have a pandemic, we're in the middle of a pandemic and there's a very high incidence of disease worldwide, and we're going to - we're going to have to kind of walk a tightrope between now and the time that we have an effective vaccine, if we ever have one, in probably periods of waxing and waning disease incidents. So we'll have more epidemics, we'll then increase the restrictions and bring the cases down and then you know it'll just be this cycling kind of epidemic interval scenario is what most experts think is what we're facing.

PN1304

It has to be the case though, Professor, that the lower infections Australia has the lower risk faced by everyone?‑‑‑Yes, that's true but as I said the risk today of community infection doesn't reflect necessarily the risk in a month's time or two months' time. Nobody - no one expects that we're going to be able to keep things under control. We've even had the Prime Minister say we will have more epidemics. The one concerning factor is that there's now a higher proportion of community transmission in the cases we're seeing in Victoria and New South Wales at least than there was back in March.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1305

Thank you, Professor. In terms of those five pillars of epidemic control, and Mr Clarke has already covered this, I mean we're in an industrial tribunal today. The five pillars of epidemic control that you state really is at a social or community national level. The relevant factors for a workplace would be PPE or face masks and social distancing wouldn't they? I mean that's what employers and employees can control at the workplace level?‑‑‑Yes, it is but those other pillars come into as well because we've seen, you know, some of the biggest outbreaks we've had have been in hospitals and aged care facilities in Australia, and when that happens then the contact tracing, the quarantine, the case finding, the testing, all of that comes into play in the workplace setting. Because it's really important to identify every case and stop the outbreak and we've seen great difficulty with stopping the outbreak in some of those settings. Like the Newmarch House outbreak and the Dorothy Henderson Lodge, for example.

PN1306

You'd agree to use those two examples, the hospital and the aged care setting that PPE protocols and, you know, infection control protocols vary by industry, vary by sight really?‑‑‑So I can only speak to the experience that I've had and I've worked with two different aged care providers over a period of about 15 years and I think there is some variation. There were also concerns about the limitation of supply, so there's a global shortage of PPE, so some - you know, there's been some difficulty I think for organisations procuring PPE.

PN1307

In what industries?‑‑‑In health but I think also in aged care, certainly during March/April it was very difficult to get PPE and the prices also went really high compared to what they were last year. Last year it would have been much cheaper to stockpile face masks and respirators, and they're, you know, quite expensive now.

PN1308

Just so I'm clear, Professor, when you talk about in health, you're aware of the scope of the industries covered by this claim?‑‑‑Yes, I am.

PN1309

When you say health, you're talking about all those industries or just particular parts of those industries?‑‑‑I think any industry involved in providing healthcare to individuals is in the health system.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1310

You have your expert report with you. I don't want to - I don't want to over-labour the point because you've already - you already indicated in your first comments that - I believe you said that Australia was fortunate and that we have - did you say - is it correct that you said that we have the situation under control in relation to COVID?‑‑‑We have the situation under control and I - in my view most people in Australia are not aware of how grave the situation is globally and for us, because it's not a reality. If you lived in New York or London you would know people who have died, you would know - you may have even lost people that you love. That's not the case in Australia so the risk perception is very different here, and I don't think many people are aware how lucky we are that through good management of our government we've got things under control. But that does not mean the danger is passed. This is - you know, personally I'm really worried, you know, of where this is going, how we're going to get out of it and how we're going to get back to normal life. This is an unprecedented pandemic. It is arguably worse than the 1919 pandemic that was experienced in Australia, certainly the data on the severity of the disease and the long term consequences, et cetera seem to indicate that. We're all kind of at sea wondering, you know, what's the exit strategy and I - some people don't even feel confident that we'll have an effective vaccine, in which case this is something that's, you know, possibly going to change our lives long term in the way that we manage the risk and have to live our lives around it. It's not magically gone away.

PN1311

Thank you, Professor. No, I appreciate that, Professor. I must be more direct in questions. Just a yes or no answer to this one; it is the case though that it's your view that Australia has had a low fatality rate compared to other countries and has achieved a very low disease incident rate and a very low community transmission rate?‑‑‑Yes.

PN1312

Can I just ask you, a health systems capacity to meet ventilator need is - I mean that's a critical metric in determining whether a health system can deal with the COVID pandemic?‑‑‑Yes.

PN1313

I've provided some documents to you and I'm going to try and do this quickly. is it your understanding that there's around 191 ICU's in Australia?‑‑‑Yes.

PN1314

Is it the case - an article or the research that I've done indicates that in a study that was conducted, they identified 2184 standard ICU invasive ventilators? Does that accord with your understanding of how many ventilators Australia has?‑‑‑Yes, although it's been expanded to plan for COVID-19.

PN1315

It's been expanded considerably, hasn't it?‑‑‑Yes, yes, the capacity has been expanded by more than 100 per cent and that was done in March, yes, mainly in March.

PN1316

Do you know, my reading suggested it had expanded by 2631 ventilators. Is that similar to what your understanding is?‑‑‑Yes, yes, it is.

PN1317

Looking on the Health Department website this morning, there's currently two COVID cases in ICU in Australia, currently. Is that your understanding?‑‑‑Yes.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1318

So, and I appreciate I will work through this quickly. Australia hasn't been close to exceeding the number of ventilators that we've needed, have we?‑‑‑No.

PN1319

Therefore, you'd agree with me, the Australian Health System hasn't been overwhelmed?‑‑‑No, it hasn't, but we're not out of the woods.

PN1320

I won't put that to you, Professor MacIntyre, so what I might ask though is, in relation to - it's the fact that other countries health systems have been overwhelmed, which has created significant reinfection rates in those countries. It's not just that this - well maybe I'll just put that question to you. It's the overwhelming of the health system which is significant in respect of the outbreaks of COVID. That's what you're trying to guard against, isn't it?‑‑‑Yes, but the other point is that epidemics grow exponentially and it can happen very very quickly where you go from a situation of things being under control to things being out of control, particularly if you've got community transmission. You know, in the US for example, we've seen states that had very low incidence a month or two ago, like Arizona, suddenly now a period later surging and having and having problems. Obviously, the US has been very poorly prepared, compared to Australia and it's a really good thing that we've expanded our ICU capacity to what it is. It means that we will be able to save lives and prevent avoidable deaths, because people die of respiratory failure. But we may still face an epidemic wave worse than what we faced in March.

PN1321

How would you see that happening?‑‑‑So, if there's sustained community transmission, and as I said, epidemics grow exponentially, so the situation today you'd have double or triple the number of cases in two weeks' time and double or triple again in another two weeks' time. So, in the blink of an eye really, you could end up with a very large epidemic, because 80 per cent of cases are mild, you may not realise an epidemic is growing until it gets big enough to impact the health system. So let's take the protest for example, just to explain what I'm saying. Two weeks after the protest, everyone was saying it's fine, we haven't seen a surge because of the protest, therefore everything's okay, and it may well be that the use of masks and the outdoor setting didn't create a big problem. But you can't really tell until you wait for about four to six weeks to see what's happened with those chains of transmission. Because 80 per cent of cases are mild, you know, when you get growth of an epidemic exponentially through each generation of cases, you just may not know and that's been seen over and over again during this pandemic in different settings. Even in China, they'd had really good control of the disease.

PN1322

Thanks Professor. I'm going to ask you some questions about your report at page 3, the implications of COVID Pandemic for Health and Community Related Service Sectors. Mr Clarke, asked a number of questions about this and I was going to put to you that the rates of infection and the studies that are put in that paragraph, they're related to overseas experience, aren't they?‑‑‑That's right.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1323

Is there any finalised data or published evidence of the rate of infection of health workers in Australia?‑‑‑As I said, we we're working on a paper and this is the other problem, is that there's not been any transparent reporting of the rate of infection in health care workers by states. The only state that's given us numbers has been Victoria. No other state has provided data. In the data that we've pulled together, there is a six times higher rate in Victoria, a nearly 20 times higher rate in Tasmania and nationally, over a three times higher rates in health care workers, than the general community. I think it's really important that we have nationally transparent data on this. Then in Aged Care, so I can just go over the numbers. I did go through them with - - -

PN1324

Professor maybe I could ask you a question?‑‑‑Yes.

PN1325

We don't have national data on this, do we though?‑‑‑No, we don't, but from the data that we've analysed, there's clearly a higher rate nationally, but there is quite a variation by state, when you look at the state-by-state data, as I went through earlier.

PN1326

When would this data be finished, or published, or be able to be reviewed?‑‑‑So the process with research is generally we do a draft and we work up the draft, we try and verify the data. That takes maybe, depending on what sort of scale of study, can take, you know, one to three months. In this case, this study is pretty much done, and then you submit it to a journal, it's sent for peer review. That can take - if they fast-track it, it can take a few weeks, but if they don't fast-track it, it can take anything from three to six months to get published. Which is why again, it's really important that we have transparent data presented to us on a national level. We have other kinds of data being presented to us at both the State Health Departments and Federally, but we haven't seen this data for health care workers. So, it may be a few months before we can say that right it's published. There is now a facility to put pre-prints up, which has really taken off during the COVID pandemic. So there's been a number of pre-prints servers being set up so that people can put their research up on a pre-print server before it's peer reviewed, with the caveat that it's not peer reviewed. But it's been quite influential in this pandemic to provide people with data quickly in an acute setting.

PN1327

Professor, obviously, there's limits - - -

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1328

VICE PRESIDENT HATCHER: Mr Arndt, can I just ask something. I just want to go back to those risk numbers that you identified Professor MacIntyre. If I understand this correctly, you said that nationally, the risk of infection to health care workers was three times the rest of the workforce, but that was a result of figures in Tasmania and Victoria, is that right?‑‑‑Largely driven by that, but I have to say that most of - it's probably an under-estimate because we've found out by - directly through some of the affected hospitals that the numbers that are reported there are actually less than the real numbers. So, it's probably an under-estimate.

PN1329

All right, but to the extent that you're advancing those statistics, for example, the Tasmanian figure?‑‑‑Yes.

PN1330

That's the result of the, as it were, the three hospital hotspots which occurred at the height of the situation? Is that fair to say?‑‑‑That's right, the outbreak related to the Ruby Princess. That's the thing about outbreaks, you know, they are unpredictable and you just need on infected person to come into that institutional setting and it not be realised whether they're asymptomatic or whatever, and then you get the outbreak. So, you know, the overall odds ratio that I presented is an average for all the national data which reflects the diversity in the outbreaks and Tasmania and Victoria have had the worst outbreaks.

PN1331

Am I right in saying that the most recent cases in Victoria are in health care settings? That is, that's community transmission?‑‑‑That's correct.

PN1332

Thank you. Mr Arndt.

PN1333

MR ARNDT: Professor, just following on from the Vice President's questions, certainly the long list of aged care, I think they were aged care providers, but the long list of locations that you read out while you were giving your evidence to Mr Clarke, they were all to do with clusters, weren't they? Outbreak clusters?‑‑‑They were outbreaks, yes.

PN1334

Is this study - there's only one study that you're doing, or is there multiple?‑‑‑It's one study, but we're looking separately at health workers and aged care workers.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1335

Does that apply generally, or does it apply only to residences or locations that have had clusters?‑‑‑So he nature of epidemic infections are this is how they spread, you get outbreaks. Whether they're on cruise ships, in prisons, in hospitals, in aged care facilities and then you get some people going out of those outbreaks and setting community transmissions. So the transmission in Victoria, for example, that we're seeing now, a lot of it we don't know where those people got infected. So they may be people who have arisen from a chain of transmission one generation to the next, from the hospital outbreak, from the meat works outbreaks, from other outbreaks. But the outbreaks are where they start and they set off the transmission in other settings that then gets - what you don't want is the community transmission to happen, because that's when it becomes really difficult to control. In an outbreak, you can control it, because you know the parameters of the setting, you can go in there, you can control it. But when it's out in the community, it's much much harder to track those chains of transmission. But this is how - you can't think of outbreaks as some sort of discrete event that's not related to everything else. This is exactly how epidemic diseases work. You get intense outbreaks in very known risk settings, health care, aged care, prisons, institutions, cruise ships, anywhere where you've got people clustered together in closed settings. Those are where you get the outbreaks, where it's most noticeable. But then those outbreaks are what result in community transmission. For example, the Ruby Princess accounted for 25 per cent of cases in New South Wales, of all cases in New South Wales, and 15 per cent of all cases in the whole of Australia, right. And that's community transmitted cases. As a nation, what we're interested in stopping is the community transmission. That's where you could really get in trouble if those community outbreak transmissions take off, it's much much harder to control, because you don't exactly know where to go in and look for cases. In a nursing home, you know where to go in and look for, you know who to test. When it's a community transmission you don't know where the person got infected from, that's where you can lose control of the whole situation and end up in a much worse situation. I don't know if that's clear enough, but I'm saying that you can't look at outbreaks as separate things that are unrelated to what's happening in the country.

PN1336

I guess I'm asking about your (indistinct). What is the data set? Is it just Tasmania and Victoria? Is it just locations where a cluster has taken place?‑‑‑So we've taken all the data we can identify from publicly available sources, which includes State and Territory Health Department websites, Federal Health Department websites and media reports. As well, there's an open line list of cases of COVID where you can go in and look at linked media stories et cetera to get more information about different clusters. So, we've just put together what we can on publicly available data to try and fill that gap because there's a lack of reporting on very important data.

PN1337

On that point, Professor you sound slightly frustrated by the National lack of reporting. I imagine that compromises the study that you're doing, and you work in this space?‑‑‑No, actually, what we're doing is trying to do is fill a gap to get some information where there's a gap in information in a very important risk group.

PN1338

The lack of information, or the lack of - sorry, please finish?‑‑‑So we've done a similar study on cruise ship outbreaks to look at the contribution of cruise ship outbreaks to what's happened in Australia and that's currently submitted to a journal, but that was also done by just pulling together the publicly available data and analysing it. I think there are - sometimes there are vested interests that result in certain things not being reported publicly in the way that they should be. Clearly, it's obvious what that is around the cruise ship with some, you know, lapses in management around particularly the Ruby Princess. I think in the health care setting there is also a vested interest in not reporting those data publicly.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1339

The media is only going to report the outbreaks, aren't they? If you look into the media to establish your research?‑‑‑That's right. They report the outbreaks. So, what we're talking about here is an absolute minimum estimate and only some people like the MJA study that you mentioned, the Bousin study, will go out and actively test health care workers in a screening way. So that hasn't actually happened, so we don't actually have a handle on the disease burden.

PN1340

I think the statistics you have put are about the likelihood or I guess, the increased likelihood of a health care worker becoming infected. Are there any statistics that actually show the incidents rates? So for example, do you know how many of Australia's COVID infections were doctors or nurses or pharmacists or aged care workers or any of those groups? Professor?‑‑‑

PN1341

VICE PRESIDENT HATCHER: I think we've lost - Professor can you hear us?

PN1342

MR ARNDT: I have now returned after five seconds of delay.

PN1343

VICE PRESIDENT HATCHER: I can see you Mr Arndt, but Professor appears to be frozen.

PN1344

THE ASSOCIATE: Vice President, would you like me to disconnect her and then perhaps you can you can try and reconnect again?

PN1345

MR CLARKE: Sorry to interrupt, I've just received a message from her to say that her connection has dropped out. Shall I advise her to reconnect?

PN1346

VICE PRESIDENT HATCHER: Try again.

PN1347

MR CLARKE: Advise her to reconnect, yes.

PN1348

PROFESSOR MACINTYRE: Hello.

PN1349

VICE PRESIDENT HATCHER: Professor, all right, thank you.

PN1350

PROFESSOR MACINTYRE: Sorry, I don't know what happened. My apologies, I don't know what happened.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1351

VICE PRESIDENT HATCHER: All right, can you hear us all now Professor?

PN1352

PROFESSOR MACINTYRE: Yes, I can.

PN1353

VICE PRESIDENT HATCHER: All right, your link is a bit scratchy, but anyway we'll try to proceed. Mr Arndt?

PN1354

MR ARNDT: Professor, I'll ask the question I think we froze on. The evidence, as I understand it that you've given this morning is about an increased likelihood that if you're a health care worker that you may be infected or maybe affected by COVID. I wanted to ask you about the actual incidents rates. Are you aware - is there any data and given the limitations on the data that you've already expressed there may not be? Is there any data on how many of Australia's COVID infections are health workers?‑‑‑Only from the data that we've pulled together, because there's no data reported on a State level or a National level on the (indistinct) health care workers. So, we can make an estimate from the data that we've pulled together, but there's no reported data, except in Victoria, and Victoria it was quite a - it was sort of - the incidence was you know, much higher, six times higher based on what they reported.

PN1355

When you say six times higher, what is higher than what?‑‑‑Than community cases. So, we're looking at the rate of cases in the community versus the rate of cases in the health care workers with the cases being the numerator and the total number of health care workers or the community members as the denominator. Then comparing the rate between the two populations. The figure I said to you at the beginning of three times the risk is based on community groups and denominators for a national estimate. So, we're talking about, I know in Victoria there were over 180 cases reported in health care workers. New South Wales, from what we've identified about eight cases in hospitals, not the aged care. Queensland five and Western Australia two, Tasmania 84. So, Victoria had the largest number of cases as a total of cases. Having said that however, the numbers that we've identified through this method are much lower for New South Wales than - you know, I'm a part of a study of infection in health care workers in New South Wales but I can't really talk about it because that's a confidential study, but I do know that there's at least as many cases as have been declared in Victoria as in New South Wales; it's just not publicly reported.

PN1356

Professor, is it fair to say that there are some considerable limitations on whether you could rely on these statistics that you're provided?‑‑‑Yes, the limitation is there and an absolute estimate. The true numbers are likely to be substantially higher, based on lack of reporting from authorities. I know that to be the case for New South Wales, for example, because I am involved in a study which is looking at this which is a New South Wales health study.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1357

So the numbers of incidences, as well as the likelihood, in your view it would be considerably higher? That's your evidence?‑‑‑Yes, what we've been able to look at based on what's publicly reported, is a minimum estimate.

PN1358

Can I just take another tac - - -?‑‑‑I mean, just to add to that, it's entirely consistent with what's been found in other countries. It's not something that's disputed really that health care workers are at increased risk. It's been shown more easily, I suppose, in countries where there's a high incidence of disease and a lot of disease in the community. So, it's not really a surprising finding that you know, we've also found it to be a higher risk in health care workers here, and it's for the reasons that I've said. There is a much larger body of research for decades, really, looking at the risk of health workers for respiratory transmitted diseases in aged care and in health care and that you can get infection, even in the absence of substantial community transmission because they are environments where the transmission is amplified and intensified by the setting.

PN1359

Professor again, just distinct from the higher risk, I'm interested in numbers. Can you provide the Commission any numbers in relation to how many doctors or nurses or community care workers have contracted - is there any data on that in Australia?‑‑‑I've said previously, it's not been reported. Only Victoria has reported it and I did have an email correspondence the Chief Health Officer of Victoria. I can see if I can find it for you, but based on the data that they reported, I calculated that the risk for health care workers in Victoria was 200 times higher than the general community. That was data that he confirmed was correct.

PN1360

Professor, I'll take a different tac. Can I take you to your report at any other matters?‑‑‑Yes.

PN1361

You say you were provided with the testimonials of workers in a range of sectors?‑‑‑Yes.

PN1362

Those are the witness statements in these proceedings?‑‑‑Yes.

PN1363

You read these statements?‑‑‑I did.

PN1364

Did you read the survey undertaken by Dr Cortis?‑‑‑Let me just check.

PN1365

It was included in the pack?‑‑‑Was that the material that you sent through today? The material that you put together?

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1366

No, it was a research report included in the materials, well I understand included in the materials that the ACTU provided to you in relation to a research report conducted by the University of New South Wales?‑‑‑Yes, the Disability Workforce and COVID-19 Initial Experiences of Workforce.

PN1367

That's right?‑‑‑Yes.

PN1368

Now I can assume you've just accepted these statements in that survey as true without undertaking any enquiries about what was included in them?‑‑‑That's correct. I wasn't asked to make enquiries.

PN1369

No that's fine Professor. Just noting the time, if you can just answer these series of questions briefly. In that paragraph, you say that those persons in the witness statement have direct close contact roles which place them at increased risk of infection. You'd agree that to the extent that those roles have been modified during the pandemic to reduce close contact, this would reduce the relevant risks?‑‑‑Some of the measures such as PPE, but in the report that you just highlighted, people mentioned difficulty accessing PPE and not feeling adequately protected. Comments like playing Russian Roulette with (indistinct) basic equipment such as hand sanitizer, shoe covers, masks, doesn't make me feel - you know, so in terms of the individual statements, I read statements about people providing personal care, helping people with toileting, changing their bed sheets, helping them to have a shower, cleaning their faeces and urine. So, I assume that those things still need to be done for a resident in a care setting, that they do need their bed sheets to be changed. Someone still needs to do that, so I'm not clear what you're putting to me.

PN1370

Professor, do you accept that the appropriate use of PPE and infection controls can make the environments, not just that survey, the Russian Roulette survey, but the other statements that you've looked at. Do you accept that the use of PPE in infection control procedures can make those environments a safe place to work?‑‑‑If they can make them safer, it's not a zero risk thing. You can PPE, because it's been documented that people wearing PPE can get infected, but it's an essential part of occupational health and safety, but some of the people obviously didn't feel that they were given adequate PPE. But yes, you're right that if you have the best possible PPE, it makes it a much safer work environment.

PN1371

If there was a very low disease COVID incident rate in the community, it would also bring the risk down of working in all those environments, wouldn't it?‑‑‑I think I have answered that question already - at the beginning.

PN1372

MR CLARKE: Asked and answered, your Honour. Asked and answered.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1373

VICE PRESIDENT HATCHER: Mr Clarke?

PN1374

PROFESSOR MACINTYRE: Just to recap what I said last time was - - -

PN1375

MR ARNDT: No, it's okay Professor, I'll move on.

PN1376

VICE PRESIDENT HATCHER: Mr Arndt, we'll need to speed this up. This witness is taking too long.

PN1377

MR ARNDT: Yes, I'm coming very quickly to this, Vice President. You say in that paragraph some of them may lose their job, what are you basing that on?‑‑‑I'm basing it on the sense of some of the statements that were presented to me. One of them, I think, was a pharmacist who was trying to work out how she was going to be employed and that she may not be able to be employed because of the various circumstances around her practice. So, it was based on the statements of some of the - that were provided to me. (indistinct).

PN1378

Professor?‑‑‑I can pull up the statement and read it to you if you want.

PN1379

No, it's okay, Professor?‑‑‑Yes.

*** CHANDINI RAINA MACINTYRE XXN MR ARNDT

PN1380

It's okay. I just have one more group of questions to ask if I may. You say uncapped paid leave for people in quarantine or under treatment is a minimal requirement for all essential workers in the health sector, disability sector and other sectors represented in the testimonials. When you say it's a minimal requirement, a minimal requirement to achieve what?‑‑‑To achieve disease control and social cohesion during the pandemic. Some of the work that I do is about break-down of societies, break-down of critical infrastructure, break-down of systems in a disaster situation and you know, for that to happen, for that to not happen there has to be planning during the good times to make sure that you're not setting up the circumstances where people will turn up to work sick or not turn up to work at all. As we saw during the Dorothy Henderson lodge, they actually had trouble finding people to come to work and care for the people who were in there. There was a period of time where there was inadequate care able to be provided, because nobody wanted to work in there and everyone else was off in quarantine. So, it's really important I think to make sure that everyone who's essential to making these systems work feels safe enough to come to work and safe enough to stay away from work including financially secure when they need to stay away from work. It's in the context of this being a long haul situation, so we are not out of it by any stretch of the imagination. This pandemic by most experts' assessment could go on for anywhere between two to five years before we have a safe and effective vaccine that allows us to go back to any semblance of normality. It's in that context that we really need to prepare and make sure that our systems are resilient and our people looked after. I'm not making any judgment on who looks after them. Maybe it's something that needs to be done by the government, you know, the same way that the Job Keeper allowance has been given. It's a consideration for all countries for all societies to make sure that if we do face bad times in the future which is quite a considerable period of time we're talking about, that we don't have a situation of collapse of our systems.

PN1381

One last question Professor, you'd agree though, that notwithstanding we don't have uncapped paid leave in these sectors, that we've been able to bring the COVID situation under control thus far, and in your words, we've been fortunate to do so?‑‑‑Yes, I think I've already answered that.

PN1382

I don't think I have anything further, Vice President. Thank you very much Professor. I appreciate your responses?‑‑‑Thank you.

PN1383

VICE PRESIDENT HATCHER: All right, any brief re-examination Mr Clarke?

RE-EXAMINATION BY MR CLARKE [10.34 AM]

*** CHANDINI RAINA MACINTYRE RXN MR CLARKE

PN1384

MR CLARKE: Yes, your Honour, I take the hint. Thank you Professor MacIntyre. You were asked a couple of questions about personal protective equipment and I think you indicated that personal protective equipment can make the work safer, but it's not a zero risk situation. Can I just ask you to explain the distinction between safe and safer, particularly in relation to when the PPE might be used, having regard to the comments in your statement about asymptomatic transmission?‑‑‑So, in occupational health and medicine, there is a risk pyramid and personal protective equipment is right down the bottom, it's the last resort. There's many other things that need - that are much higher in the hierarchy of controls, including environmental controls and removing workers from the situation of risk and avoiding the risk and so on and PPE is the last resort for occupational health and safety. It should not be the first resort. Having said that, yes, a lot of - in occupational settings healthcare workers and aged care workers may wear the PPE when - and in some guidelines are asked to wear the PPE including in our National Healthcare Guidelines when they feel they are at risk, when they identify they are at risk. So, for example, our National Guidelines on respiratory protection say that for a healthcare worker, they should wear a respirator, like a N95 or a P2 when they are doing an aerosol generating procedure or something else that's going to generate respiratory aerosols. That means that in other situations which may be quite high risk as well, they may not be wearing that respirator and that's kind of another issue around the adequacy of the guidelines in light of the current evidence for PPE. If you're not wearing the PPE but there's aerosolised virus around, then you are still at risk. There's also the question of removing the PPE. Sometimes it's been documented that people can get infected from self-contamination while they're removing the PPE. Particularly in areas like aged care, there's not a culture of wearing PPE and certainly not masks and there's less training. Often the workers there are not trained health workers. They are low paid, low skilled people who do the kind of jobs that nobody else will do and they don't have the training in use of PPE and proper use of PPE and safe donning and doffing of the PPE.

PN1385

Just coming back to that pyramid of risk and the idea of removing the risk, do I understand the evidence that you gave in response to Mr Arndt's question, I think it was either about the disability or aged care setting that somebody still has to do the work?‑‑‑Yes, unless - that's my - yes. If we want to look after people with the dignity that they deserve in these settings where they are highly vulnerable, the residents, someone still has to help them with their activities of daily living and their care.

PN1386

That would be a pillar in the hierarchy that's impossible to - - -?‑‑‑Yes and so it's an upside down triangle and the top tier of hazard control is elimination, followed by substitution, followed by engineering controls, followed by administrative controls which is where all the policy and the guidelines would come in. The last bit of that triangle is PPE.

PN1387

Thank you for clarifying that. You were asked a lot of questions about the data sources and you were compiling and were utilising in your research, comparing the relative risk of healthcare workers to those in the general community. Is it correct - is it fair to say that where the data was provided transparently, a higher risk was shown?‑‑‑That's correct. As I said, I'm involved in a study for New South Wales Health and I can't really speak about it because it's confidential.

PN1388

I won't ask you?‑‑‑The Victorian data, I had a correspondence with the (indistinct) reported 160 healthcare worker infections and I did some calculations and I discussed them with him and that risk ratio was higher - much higher than what I've presented, or what we can present in the research study.

PN1389

Yes. You were asked by His Honour the Vice President about risks or incidents of quarantining or isolation and I can't remember which you said the correct term was, forgive me.

PN1390

VICE PRESIDENT HATCHER: Actually, you asked that question Mr Clarke. I don't know that you can re-examine on your own questions.

PN1391

MR CLARKE: Sorry, that must be an error in my notes.

*** CHANDINI RAINA MACINTYRE RXN MR CLARKE

PN1392

VICE PRESIDENT HATCHER: I only asked if she could explain the second part of your question.

PN1393

MR CLARKE: Okay?‑‑‑Sorry, I'm unclear. What was the second part of the question?

PN1394

VICE PRESIDENT HATCHER: No, it's all right Professor, you don't need to do anything.

PN1395

MR CLARKE: All right, I think you agreed with the general proposition in cross-examination by Mr Arndt that the lower the risk of infections, the lower the risk faced by everyone. Does that mean that healthcare workers or workers in these sectors face no higher risk than the general population?‑‑‑No, they still face a higher risk and that's been borne out by research both in this pandemic and in multiple other respiratory infections and other human transmissible infections in the past. Healthcare workers, aged care workers, these are settings of intense outbreaks that can occur even in the absence of substantial transmission in the community.

PN1396

Sorry, in relation to healthcare workers, is that inclusive of the paramedics?‑‑‑Particularly paramedics, and this is another area where there has not been a lot of research, but I've just had a PhD student who's a paramedic finish a PhD on infection risk in paramedicine and the problem there is they're the first person to see the patient, so where a diagnosis has not been made. There's a culture in paramedicine of rescue, you know, you rush in and rescue so in a very poor culture or personal protective equipment use. They are very high risk because they are exposed right at the start where infectiousness is highest in affected cases right at the beginning of the infection and then they don't know what the diagnosis is, and they're in that very small closed environment of the ambulance which is very small, poorly ventilated area for usually more than 15 minutes on the journey to the hospital.

PN1397

Thank you, Professor. I thank you for putting up with my second list of questions for you Professor. I have no further questions for the Professor, your Honour.

PN1398

VICE PRESIDENT HATCHER: All right, thank you for your evidence, Professor. You're now excused, which means you can simply disconnect from the call?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.43 AM]

PN1399

Is Mr Corderoy next?

*** CHANDINI RAINA MACINTYRE RXN MR CLARKE

PN1400

MR ARNDT: Yes, Vice President.

PN1401

VICE PRESIDENT HATCHER: All right, well let's get him in.

PN1402

THE ASSOCIATE: Could you please state your full name and address?

PN1403

MR CORDEROY: Grant Hilton Corderoy (address supplied).

<GRANT CORDEROY, AFFIRMED [10.43 AM]

EXAMINATION-IN-CHIEF BY MR ARNDT [10.43 AM]

PN1404

MR ARNDT: Mr Corderoy, can you see me?‑‑‑Yes, I can.

PN1405

Can you just repeat your name for the transcript?‑‑‑Grant Hilton Corderoy.

PN1406

You've prepared a statement for the purposes of these proceedings?‑‑‑That is correct, yes.

PN1407

Dated 17 June 2020?‑‑‑Correct.

PN1408

Is the statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN1409

I seek to tender that statement and I note that the statement is tendered on behalf of the Aged and Community Services Australia and Leading Aged Services Australia.

PN1410

VICE PRESIDENT HATCHER: Thank you. The statement of Grant Corderoy dated 17 June 2020 will be marked exhibit 34.

EXHIBIT #34 STATEMENT OF GRANT CORDEROY DATED 17/06/2020

PN1411

Ms Wischer, are you cross-examining this witness?

PN1412

MS WISCHER: Yes thank you, your Honour.

*** GRANT CORDEROY XN MR ARNDT

CROSS-EXAMINATION BY MS WISCHER [10.45 AM]

PN1413

Good morning Mr Corderoy. Can you see me?‑‑‑Yes I can.

PN1414

Sorry, I can't see you just at the minute?‑‑‑Is that better.

PN1415

Sorry, I'm still with Vice President Hatcher. My name is Kristin Wischer, I'm from the Australian Nursing and Midwifery Federation and I just wanted to ask you some questions about your statement and the two reports that you've prepared. I'm sorry, I can't actually see Mr Corderoy.

PN1416

VICE PRESIDENT HATCHER: Well, I can. Can everyone else see Mr Corderoy? I'm getting affirmations.

PN1417

THE ASSOCIATE: Ms Wisher, it may be that you've pinned Vice President Hatcher to your screen. Can you see more than one person?

PN1418

MS WISCHER: I can see you.

PN1419

THE ASSOCIATE: Just me?

PN1420

MS WISCHER: Yes.

PN1421

THE ASSOCIATE: I'm not sure why that's happening, but hopefully when Mr Corderoy is speaking, Microsoft Team should recognise that and bring him up on the screen for you.

PN1422

THE WITNESS: I'll just speak now. Can you see me now?

PN1423

MS WISCHER: Yes I think - yes, you've come up now. Thank you. All right, so your statement you've two aged care financial performance surveys. The first one is from December 2019?‑‑‑Correct.

PN1424

So, that one the data that you report in that survey completely predates the COVID-19 outbreak pandemic?‑‑‑Correct.

*** GRANT CORDEROY XN MR ARNDT

*** GRANT CORDEROY XXN MS WISCHER

PN1425

Yes. Then through Mr Arndt, your more recent survey report dated 31 March 2020 has been provided. Is it correct that that report also would largely reflect data that relates to the period prior to the outbreak?‑‑‑Yes, that's correct. That report, the COVID, really the effect of COVID is really March, is a nine month report, so eight months would be prior to the effect of COVID from the financial point of view.

PN1426

Yes, thank you. In your statement you say at paragraph 13 that:

PN1427

The survey is subscription-based and is designed for each participant organisation to compare and benchmark their operating performance at residential aged care homes and home care program level through a number of financial and non-financial measures.

PN1428

Just trying to understand, is it correct that aged care providers subscribe to your service?‑‑‑Yes, that's correct.

PN1429

Is it only those who subscribe who can participate in the survey?‑‑‑That is correct, yes.

PN1430

Would you agree then, that the report that you generate from the survey data is not an independent report, but rather a report that is designed to be of practical use to your subscribers?‑‑‑Our subscribers also include the Aged Care Financing Authority, Department of Health, are also subscribers to the report. But yes.

PN1431

Yes, they don't participate in the survey?‑‑‑They don't participate in the sense of they're not providers in their own right, but we also receive a substantial amount of data from them that relates to providers and providers that aren't in our survey.

PN1432

Yes, but in terms of - all right, I'll just move on. Then in paragraph 19 of your statement, you say that:

PN1433

It needs to be noted that the primary purpose for the survey is for participant organisations to obtain a granular comparison for each residential aged care home or home care package for their individual analysis, using a range of KPI's.

PN1434

That's correct?‑‑‑That's correct, yes.

*** GRANT CORDEROY XXN MS WISCHER

PN1435

So then within that, you would have some providers with multiple aged care homes and they would use that to compare the performance of their own homes?‑‑‑That is correct, yes.

PN1436

Yes. You then say in your statement, which is confined to the December survey, that you have received detailed responses from 154 approved providers. How many approved aged care providers are there operating in Australia?‑‑‑Excluding the government and semi-government providers, there's about 787 we'll call them individual providers which could be for profit or not-for-profit.

PN1437

In total, if you counted the government providers that would come - would be a figure more like 875?‑‑‑From the top of my head I'm not sure, but it sounds about correct.

PN1438

You said semi-government. What providers are they?‑‑‑When I say semi-government, they're providers of the local government, state government and also community providers that are sort of attached to a government body.

PN1439

All of those different providers do make up the entire sector, though?‑‑‑Correct.

PN1440

Yes. Then in your March survey the March 2020 survey, you advised that you have some 201 providers responded to the survey?‑‑‑No, a point of clarification, that 154 that you referred to in December, that's relating to a section of our reporting - what we call approved provider level, so the organisation level. 154 providers provided data for their overall results and residential aged care responded about 191 providers provided their residential aged care results but not their overall results. Like, if I could make an example, there might a provider that is not multi-purpose business. They do the residential aged care and they also do community care and other aspects. They might not have provided us their overall organisation figures, but they provide us all of their residential aged care data. So in March, we had probably 201 organisations provided their residential aged care data. In December, it might have been 191 provided their residential aged care data. But 154 of those 191, provided their overall results, not just residential care.

PN1441

I see. In any event, and I understand what you're saying that there's some overlap in that, but nevertheless the overall percentage of the entire, let's say 875 aged care providers, your survey is representative of less than a quarter of those providers?‑‑‑Probably a better way to look at it is how many aged care homes. There's about 2700 because we do the reporting of aged care home level. There's 2700 approximately aged care homes. We have 1108 aged care homes. So, in the percentage of aged care homes, there's over 40 per cent of aged care homes.

*** GRANT CORDEROY XXN MS WISCHER

PN1442

But those - one of those providers might be the provider organisation that runs a number of those homes?‑‑‑That's correct, but the figures that we're doing - we're not looking at provider per se, we look at the actual performance of the aged care home.

PN1443

But that performance could be different. For example, if you had an aged care provider that had some metropolitan aged care homes, they could be running profitably, couldn't they?‑‑‑That's right. So, for example, they would be included in the results for metropolitan or the regional, or the outer regional homes to the result. I might add that we compare the data to what a Department would get, which is 100 per cent providers and the data, the difference in the percentage is marginal. You could look at the aged care financing report. They've virtually got exactly the same figures, you know, within a percentage difference, and we help prepare that report, and that's 100 per cent of all providers.

PN1444

Thank you, Mr Corderoy. Of the providers that you do survey, the residential care homes, the aged care homes, what percentage are for profit?‑‑‑In our survey?

PN1445

Yes, within the survey?‑‑‑Over 85 per cent.

PN1446

So, 85 per cent are for profit?‑‑‑That's correct.

PN1447

Then the remainder, are they the not-for-profit providers?‑‑‑No sorry, my mistake. It's 85 per cent are not-for-profit; 15 per cent are for profit providers.

PN1448

Of those providers, can you give me a break-down of how many of those would be charitable in that they have charitable status? So they might be faith-based or essentially, what number, percentage would be charitable?‑‑‑Of that 85 per cent cohort, I can give you an estimate because I don't have that figure in front of me, but it would be approximately the faith-based, they're all charitable in a sense, but the faith-based organisations would represent about 60 per cent and the community based which are also public benevolent institutions and registered charities would be the rest. But all of the not-for-profits are public benevolent institutions registered with the Australian Charities and not-for-profit (indistinct).

PN1449

All right.

PN1450

VICE PRESIDENT HATCHER: Ms Wischer?

PN1451

MS WISCHER: Yes.

*** GRANT CORDEROY XXN MS WISCHER

PN1452

VICE PRESIDENT HATCHER: This is all very interesting, but what really is the relevance of this, given we're dealing with an urgent union application?

PN1453

MS WISCHER: Sorry, your Honour, it is just, I suppose, to put in context that these providers have certain funding mechanisms and access to various other funds and that they're also - so look I will come to that in terms of - it's about how the sector is funded and coming to how the government funds these providers.

PN1454

VICE PRESIDENT HATCHER: All right Ms Wischer, well you go on as long as you like, but this is an urgent union application and if we don't finish today there'll be weeks before you get another date.

PN1455

MS WISCHER: Yes.

PN1456

VICE PRESIDENT HATCHER: Beyond that the unions themselves can prioritise what questions they want to ask.

PN1457

MS WISCHER: Thank you, your Honour. So, all of those providers receive government funding Mr Corderoy?‑‑‑Government funding under the Aged Care Act, yes.

PN1458

Yes, what percentage - in terms of total revenue, what percentage would government funding comprise?‑‑‑Government funding for residential aged care would probably comprise over 70 per cent of their revenue.

PN1459

And for some it could be as high as 80 per cent?‑‑‑Could be, depending on the mix but yes, 70 to 80 per cent. But certainly 70 per cent is probably a better percentage.

PN1460

All right. Do you know in terms of those providers that you survey, what percentage would have agreements, or what would be reliant on the aged care or nurses award, in terms of how the entitlements - the basis of their entitlements, wages and conditions?‑‑‑Yes, it would have an enterprise agreement, rather than be an award-based, is that the question, sorry?

PN1461

Yes?‑‑‑Look, I don't know the answer to that, but I suspect that over 50 per cent would have an enterprise agreement which would have been based on the nurse's award.

*** GRANT CORDEROY XXN MS WISCHER

PN1462

Look, in the interests of just moving through, you say in your report at page - in the March survey report at page 5, that there's been additional funding provided to the aged care sector as a result, in response to the COVID-19 pandemic?‑‑‑Correct.

PN1463

And in any new report you refer to that there has been as at March, the residential aged care sector has been provided additional funding in recognition of COVID-19 equating to $900 per bed in metropolitan areas and $1350 per bed in regional areas?‑‑‑That's part of the additional funding. That was just announced, but they've also got other additional funding as you're probably aware.

PN1464

Yes, that's correct. My understanding is that the government has released, granted funded to the aged care sector to a total of some $850 million in additional funds in response to the pandemic?‑‑‑That's what the Minister has announced. I am not aware that that amount has actually physically been paid, but that's certainly the amount.

PN1465

No, those are the announcements, and in coming months, some of that money will be released, or already has been released, depending on particular things. So, that funding has, for example, been for up-skilling of workforce, for (indistinct) and for providing continuity of workforce?‑‑‑Yes, included in that figure would be Job Keeper which wasn't relevant to the residential aged care sector. Many didn't qualify for the Job Keeper allowance.

PN1466

Yes, this funding is not for - this funding is not connected to Job Keeper, it's directly to the aged care sector. So, for example, there's an uplift to the APTI funding?‑‑‑Correct.

PN1467

So that means an additional again, rate per bed. Do you understand that to be correct?‑‑‑Sorry?

PN1468

You mentioned just then Job Keeper, sorry can you hear me Mr Corderoy?‑‑‑Yes I can; can you hear me?

PN1469

You mentioned before Job Keeper. Whilst not all residential aged care are entitled to apply for Job Keeper if they're eligible, aren't they?‑‑‑That's correct.

PN1470

For a charitable organisation, is it correct that they only have to demonstrate a 15 per cent drop in revenue?‑‑‑Yes.

*** GRANT CORDEROY XXN MS WISCHER

PN1471

And that that revenue excludes the funding they receive from government?‑‑‑Only if they choose. They've got an option of including it or excluding it.

PN1472

Yes, so just going back, you said you've got 80 of the not-for-profit providers, they're all registered as charitable organisations and some of those would have - if for example, they received 80 per cent funding from the government, they'd only have to demonstrate a drop of 15 per cent of the remaining 20 per cent of funding?‑‑‑That's correct.

PN1473

That would only be a 3 per cent drop in revenue?‑‑‑That put in others terms, would be about an 11 per cent drop in their occupancy rate which no aged care home has had an 11 per cent drop in their occupancy.

PN1474

No?‑‑‑Funding is dependent on rates of occupancy, and therefore - and totally dependent on occupancy, so they would have to have an 11 per cent drop in occupancy to have qualified.

PN1475

Right, look I'm not sure that that's correct. But nevertheless, it is an option then that they could access Job Keeper if they qualify. Then other - also then there's funding provided to cover, if for example, an aged care provider had a high number of staff or had an outbreak in an aged care home and they had to get surge workforce to replace staff that were required to go into self-isolation. Is it your understanding that some of that government funding and grants are to meet the cost of replacement and surge workforce?‑‑‑That condition existed (indistinct).

PN1476

Sorry?‑‑‑If the conditions were met in relation to outbreak of COVID or surge workforce, that funding would be available.

PN1477

Yes. So, would you agree then that there has been a substantial amount of money funded and granted to the aged care workforce since the outbreak of COVID-19?‑‑‑Yes, I would agree that there's been a substantial amount of money - there's more sectors from the government and I'd also state there's been a substantial amount of costs which are greater than the revenue received or the existing fund received.

PN1478

But this will be reflected in your next report, won't it?‑‑‑It's reflected in this report and it's reflected in the report that hasn't been tabled (indistinct) government on the costs of COVID and the funding, the likely funding.

PN1479

Thank you Mr Corderoy, I don't have any further questions.

*** GRANT CORDEROY XXN MS WISCHER

PN1480

VICE PRESIDENT HATCHER: Any re-examination Mr Arndt?

RE-EXAMINATION BY MR ARNDT [11.05 AM]

PN1481

MR ARNDT: Vice President, there is just one important administrative point. Mr Corderoy's statement and the December report was admitted, but we should also admit the latest report, the nine months ended 31 March 2020 as part of Mr Corderoy's evidence. It was supplied after - - -

PN1482

VICE PRESIDENT HATCHER: Where do we find that?

PN1483

MR ARNDT: It was supplied under correspondence from ABLA on 22 June 2020.

PN1484

VICE PRESIDENT HATCHER: Can you just identify the document again please?

PN1485

MR ARNDT: Yes, it is called the Aged Care Financial Performance Survey Aged Care Sector Report - - -

PN1486

VICE PRESIDENT HATCHER: Just a moment.

PN1487

MR ARNDT: Sorry, apologies, Vice President.

PN1488

VICE PRESIDENT HATCHER: Aged Care Financial Survey - - -

PN1489

MR ARNDT: Aged Care Financial Performance Survey Aged Care Sector Report nine months ended 31 March 2020.

PN1490

VICE PRESIDENT HATCHER: So the Aged Care Financial Performance Survey Aged Care Sector Report nine months ended 31 March 2020 will be marked exhibit 35.

EXHIBIT #35 AGED CARE FINANCIAL PERFORMANCE SURVEY AGED CARE SECTOR REPORT NINE MONTHS ENDED 31 MARCH 2020

PN1491

MR ARNDT: Nothing in re-examination.

*** GRANT CORDEROY RXN MR ARNDT

PN1492

VICE PRESIDENT HATCHER: All right thank you for your evidence Mr Corderoy, you are excused and you can simply disconnect?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.07 AM]

PN1493

Is Ms Allanson the next witness, Mr Arndt?

PN1494

MR ARNDT: Yes, she is and I think she's in the (indistinct).

PN1495

VICE PRESIDENT HATCHER: All right, well let Ms Allanson know.

PN1496

THE ASSOCIATE: Could you please state your full name and address?

PN1497

MS ALLANSON: Vivian Allanson (address supplied).

<VIVIAN ALLANSON, AFFIRMED [11.07 AM]

EXAMINATION-IN-CHIEF BY MR ARNDT [11.07 AM]

PN1498

MR ARNDT: Hello Ms Allanson, can you see me?‑‑‑Yes, Julian.

PN1499

Just repeat for the purpose of the transcript, your name?‑‑‑Viv Allanson, full name Vivian, called Viv, yes Viv Allanson.

PN1500

Yes, and you've prepared a statement for these proceedings dated 17 June?‑‑‑Yes, I have.

PN1501

Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN1502

Thank you. I seek to tender that statement.

PN1503

VICE PRESIDENT HATCHER: The statement of Vivian Allanson dated 17 June 2020 will be marked exhibit 36.

EXHIBIT #36 STATEMENT OF VIVIAN ALLANSON DATED 17/06/2020

*** VIVIAN ALLANSON XN MR ARNDT

PN1504

All right, Mr Bull.

PN1505

MR BULL: Thank you, your Honour. Ms Allanson, can you see me?‑‑‑Yes, I can.

PN1506

Right, I can see you. Look, my name is Stephen Bull, I'm an industrial officer with the United Workers Union and I'd like to ask you a few questions about your statement?‑‑‑Certainly.

PN1507

Do you have a copy of your statement with you?‑‑‑I do.

PN1508

Maroba, is that the correct pronunciation?‑‑‑It is, you've got it in one.

PN1509

Thank you. Essentially is an aged care provider. You have two residential aged care facilities?‑‑‑Yes, under one RAC ID on the same site, with two separate buildings.

PN1510

Then I believe it's also on the same site you have assisted living or retirement village, is that correct?‑‑‑Yes, that's correct.

PN1511

And that's called Maroba Terrace?‑‑‑Yes.

PN1512

In addition to these three residential facilities, you're also a provider of home care within the community?‑‑‑No, we provide social and wellbeing programs for community clients. So we are contracted to those that have packages, so we don't actually have packages and their clients choose to come to Maroba to use our gymnasium, to join our social programs, go to our day spa and beauty salon and our gymnasium and our Tai Chi classes and things like that. So, we're providing a service for those that have packages.

PN1513

But in relation to the Commonwealth funding arrangements for home care, you're in receipt of funding as a home care provider?‑‑‑No, we're not; we get paid by the actual provider and they contract our services.

PN1514

So that's really just a fee for service?‑‑‑Yes, that's correct.

PN1515

So that wouldn't be characterised as government revenue? That's revenue you get for service?‑‑‑That's right, exactly.

*** VIVIAN ALLANSON XN MR ARNDT

PN1516

You get government revenue. So approximately 66 per cent of your revenue is from direct government funding, is that correct?‑‑‑That would probably be about right. I don't have that figure in front of me.

PN1517

Then about 26 per cent is other revenue?‑‑‑Yes, so other revenue would be from resident fees and additional service charges where that applies.

PN1518

Then you've got small amounts of revenue from donations and bequests?‑‑‑We get very little revenue from that; very little.

PN1519

You've got some revenue from goods and services?‑‑‑Yes, so those additional services and like people can order, request gift voucher for the day spa and beauty therapy. So it's a small income.

PN1520

And you've got some income from investments?‑‑‑Yes, which have just plummeted.

PN1521

In relation to the Maroba Terrace, that's essentially, it's a retirement village?‑‑‑Yes.

PN1522

That operates under a loan license arrangement where you essentially sell units or licenses to inhabit the units to residents?‑‑‑Yes.

PN1523

Then they pay ongoing fees and so forth to occupy their unit. That's correct?‑‑‑Yes, correct.

PN1524

Is that broadly a profitable part of your enterprise?‑‑‑I wish; it's not. It's more of a service we provide. It's a small village, so we don't get big economies of scale or anything. The fees that people pay are, if you're aware of the retirement village legislation, that's not an opportunity for us to make a profit, that is the resident's money and it goes into their services and from time to time, if there is any surplus the residents may request that that be paid back to them or then be used for something of their choice within the village.

PN1525

Is the village currently at full occupancy?‑‑‑We've had a departure in the last month and that one is being marketed at the moment. We only have 23 villas, so we're a very small village.

PN1526

So 22 are currently occupied?‑‑‑Yes.

*** VIVIAN ALLANSON XN MR ARNDT

PN1527

And you're getting fees and so forth from those 22?‑‑‑Yes.

PN1528

And there's been no reduction noticeable as a result of the pandemic in relation to occupancy of the retirement village?‑‑‑Not because of the pandemic, no.

PN1529

So that's remained stable?‑‑‑Yes.

PN1530

In relation to funding, you'd be aware that there's been a number of COVID specific funding announcements in relation to aged care?‑‑‑Yes, there has been some announcements to aged care, yes.

PN1531

I might just go through some of them. Now, this is a general one. Is Maroba getting, or has it applied to receive Job Keeper?‑‑‑No, we haven't applied for Job Keeper. We were not eligible because our jobs were ongoing. Everybody kept their jobs, yes.

PN1532

So have you had a 15 per cent reduction in turnover?‑‑‑We've had a reduction in turnover because we chose to separate off an isolation area which was a 12-bed unit and we have just progressively emptied that unit to enable us to provide isolation for anyone with symptoms of COVID or with actual COVID so that we could care for them outside the rest of the service, but on the site. So we have lost - that would be about $1.2 million for the year that we will have lost in revenue because of that decision which we believe was a (indistinct) decision.

PN1533

Would that constitute 15 per cent of your - - -?‑‑‑Our income would be - our revenue across all parts of the business would probably be around $15 million.

PN1534

Right, but as a percentage, would you say you had a 15 per cent reduction in your revenue?‑‑‑Look, I'm not a mathematician, I'm sorry, so can someone do the numbers on that?

PN1535

Okay, what I'm saying is you haven't turned your mind to whether you would be eligible to receive Job Keeper?‑‑‑My accountant - my General Manager or Finance and Corporate Services has and we do not qualify. We have turned our minds to that, not personally, but a member of my senior executive has done that and we do not qualify.

PN1536

There's a COVID-19 funding boost for residential care providers, are you aware of that facility?‑‑‑That laughable one?

*** VIVIAN ALLANSON XN MR ARNDT

PN1537

Well, the lump sum one?‑‑‑The one where we got $900 per occupied bed, is that the one?

PN1538

That maybe the one?‑‑‑Yes.

PN1539

Have you applied and received that money?‑‑‑We have received that funding. It totalled about $127 000 for us.

PN1540

So, you did receive an additional $127 000 through that program. There's also a COVIDE-19 aged care support program. Are you aware of that?‑‑‑Which one was that? Yes, there's been lots of notifications about different things and where we are eligible, naturally we're receiving. We did get a small increase. I couldn't tell you exactly what that amount is, or if we have it yet.

PN1541

This is the $52.9 million?‑‑‑So that was - is that the one that's made available for people who are affected by COVID?

PN1542

Eligible expenditure incurred on managing direct impacts of COVID up to a maximum grant value per service?‑‑‑Okay, we weren't eligible for that because we didn't have a case of COVID-19.

PN1543

In relation to the isolation ward, did you get any specific funding for putting that in place?‑‑‑No, we didn't. There was no incentive to do the right thing, other than when they announced the $900 per bed, it was occupied bed, so of course, I had just given up our beds and so I didn't even get the full complement of the funding for that. So that has been a significant cost to us, but the whole team, we still believe it was the right thing to do and we're still ready to go because we believe we're in the mid-way of this.

PN1544

In relation to your employees, you've got - you put in your statement, you've got 181 employees?‑‑‑Yes.

PN1545

I looked at your return on the charity's website, it's a bit old and you had a lower number of staff, but you had about 144 part time staff?‑‑‑Yes, that sounds probably like it would be about right. I'm trying to find that exact sheet, but that sounds about right in terms of part time. Yes, yes that's correct, about that, yes.

PN1546

So, it's a significant proportion of your entire workforce?‑‑‑Yes, yes.

*** VIVIAN ALLANSON XN MR ARNDT

PN1547

The part time workers - and correct me if I'm wrong, would tend to be in the catering, home care, clerical, care service classification streams, is that correct?‑‑‑It's pretty well across the whole organization. There's very few full timers; people don't want to work full time. My maintenance guys, a number of them work full time. I clearly work full time, but most other people are working a nine day fortnight or less, so that's their choice in terms of being a flexible workforce.

PN1548

So, many of your employees would not be on very large incomes, would they?‑‑‑No, they're on appalling incomes.

PN1549

So, it wouldn't be unusual for a part time home care worker for example, to be - - -?‑‑‑I don't have any home care workers. I don't have any home care workers.

PN1550

The agreement has home care workers, but it wouldn't be unusual for one of your care employees to be earning less than $800 a week gross, you'd agree with that?‑‑‑Yes.

PN1551

If you could just go to paragraph 29 of your statement and look at the subsequent paragraphs. You've got the statement Ms Allanson?‑‑‑Yes, yes I have.

PN1552

So, you've had 36 employees prior to 25 May who were unable to attend work because of COVID-19 symptoms and then eight employees after 25 May. So, I make that to be about 43 of your staff have had to not attend work for some period because they disclosed COVID-19 symptoms?‑‑‑Yes.

PN1553

Is that about right?‑‑‑Yes.

PN1554

That's, on my calculation, about 23 per cent of your workforce?‑‑‑Yes.

PN1555

A significant proportion of that group used up or exhausted all of their paid legal leave entitlements when they did not attend work?‑‑‑Yes.

PN1556

So you would now have within your workforce a significant component that has no remaining paid leave entitlement?‑‑‑Yes, yes, it's of great concern.

PN1557

And many of those, your employees who have no paid leave entitlement would be on relatively low incomes?‑‑‑That's correct.

*** VIVIAN ALLANSON XN MR ARNDT

PN1558

Now, as you said, it's not over, is it?‑‑‑No.

PN1559

The pandemic. You're I suppose, policy, which is also annexed to your statement, which is the pandemic management plan. Perhaps if you could turn to page 29 of that policy?‑‑‑Yes.

PN1560

To a large extent, your plan to manage the pandemic and possible outbreaks at your facilities, relies on the cooperation of your staff. You'd agree with that?‑‑‑Yes.

PN1561

They have to - there are some aspects which they probably can't hide if they've been ordered to self-isolate and so forth, but the principle type of cooperation that you need from your staff is that you need them to disclose to you that they have a symptom which may be COVID and which may cause them to self-isolate. You would agree with that ?‑‑‑Correct.

PN1562

Now, you weren't here, but we heard from a Professor of clinical epidemiology this morning and the Professor said words to the effect, people who have a financial disadvantage will come to work sick. Would you agree with that proposition?‑‑‑I've been working with low paid workforce for over 28 years in aged care and I would have to say for the most part they don't. Believe it or not, these people that work in aged care are very very concerned about the wellbeing of the people they care for, so they put themselves second and that's where our sector has gone so long being underpaid because primarily it's a female workforce, who primarily focus on care, primarily focus on the wellbeing of others and so therefore they have cooperated over a long period of time in declaring when they're unwell and not coming to work.

*** VIVIAN ALLANSON XN MR ARNDT

PN1563

With respect, you actually wouldn't know, would you, if you had an employee who had a sort throat or some sort of mild cold, whether or not they told you about it and notwithstanding this, come to work, would you?‑‑‑In any circumstance, even visitors who profess to love their mother dearly, will come into this service with a Nile virus, influenza A and come in, knowing that that shouldn't happen. Yes, that may happen with staff, but if they have symptoms, as I said, Maroba has not had an outbreak here for four years, so I know that our arrangements with staff and trusting their judgment as to whether they are unwell or not, is actually working here. So, yes it is possible that someone may, and that is the risk. If people do run out of leave, that is a risk that they may choose to come to work instead of declaring their circumstance. Now here at Maroba, over many years, sometimes I felt I should change the sign on my door and call it Lucky's Loan Office because where staff have had financial hardship, I've provided no interest loans for them to help them in whatever circumstance they are in and I think staff know here that if they are in dire straits or in financial difficulty, or even I have a number of staff who are domestic violence situations, will come and ask for assistance and I will readily give it to them. But I do know this, that staff have a primary concern for the wellbeing of residents and now that the services are opening up, their primary concern is now well what are visitors going to bring in here and will they be blamed if indeed, COVID-19 comes into our service.

PN1564

You'd agree, notwithstanding, that the goodwill that your staff obviously have, that it's easier for them to disclose a COVID like symptom if they know the consequence will be that they'll get paid leave. You'd agree with that?‑‑‑Say that again. If they know they're going to get paid, they're more likely to - - -

PN1565

Disclose. If you have a - - -?‑‑‑Well, they may well be, but guess what, the wages, the money hasn't been the motivator or these people would have walked out a long time ago. As I'm telling you, their motivation is the wellbeing. Now, it's up to us as providers not to take advantage of that and to make sure that our workforce has a level of wellbeing where they are able to function well in the workplace. Now we know if they are worried about money and other things, it may not be going to the conclusion that they won't confess their symptoms, it will be more like they will be dysfunctional in other way, because they're so worried about their own family and their financial arrangements.

PN1566

Surely if you're worried about your finances, you've already had a period off because you had a COVID symptom and then a month later you get a cough and cold like symptom, it would be rational to just come to work and not disclose it to your employer?‑‑‑Well, it may be - that may be the way you may act, but it's not necessarily the way that the people that are in a care role, they've seen what played out in other services and they are terrified that that may happen here. So, in front of their minds is the wellbeing of the resident, more than how can I get round this. Because, as I said to you, in my service, our staff know if they are in, under duress, they will come forward and they know that they have been supported in the past and they will be helped.

PN1567

Now, my disappointment is that the government didn't step up to the plate and say, like in the public health system, we know staff who have got daughters and sons in the health system that have been granted automatic 21 days for pandemic leave. Now that's what this government should have done for aged care, because they know we are financially on our knees. I'm going to have a $1.3 million loss come the end of this month. I'm going into the next financial year with a budgeted $300 000 to $400 000 loss. I have no more money. It means I will be taking away from some other care aspect.

*** VIVIAN ALLANSON XN MR ARNDT

PN1568

But if the Commonwealth Government had any moral appetite, they would be funding leave for aged care workers who are the lowest paid in the country and most undervalued by the community and certainly by our governments, they would be offering that up to us, instead of this trickling down of these so-called look good politically amounts of money that they are putting up there and posting and saying they're giving this and they're giving that to aged care and it's record levels and how wonderful they are. Well, I'm telling you, our aged care is on its knees, financially, and I'm one of them.

PN1569

Yet I know we run a great service here for our residents, our families feel very - in a place where they trust us. Our staff feel that they trust us, that they feel we've protected them and I think the government should be stepping up and saying, "Here we are, we've come to the party and we will allocate so much money for every aged care worker in this country". They have access to the Tax Office, they know who's an aged care worker and they should be saying, "Right, if they need leave this is what we're going to allocate", because they'll think that is - I think where you're going with this is necessary, but I have 60 per cent of the sector, and I don't know about the others, I don't think they're doing that crash hot either. They're less and less, in terms of their robustness of their financial outcomes, there is no money, yet, morally, these workers, these women, the majority of female workforce who constantly put themselves second should be put first for once and this government should put its hand up and say, "We will pay for that leave", because we're - we're in the middle, there is more to come and they should be given peace of mind to know that they can still look after their families and look after the residents and do the very best for them. Just saying.

PN1570

MR BULL: So you actually think paid pandemic leave is necessary?‑‑‑I believe it is.

PN1571

You don't want to pay it?‑‑‑It's not that I - hey, come on, you correct that. It's not that I don't want to pay it.

PN1572

Okay?‑‑‑I can tell you, my policy, with aged care, it's not that I don't want to pay it, there is no money to pay it. We are on our knees. This sector is going out backwards. Until the community stands up and says, "We want a better deal for older people in this country", then we're going to stay the same as we are now. So that's where this argument should be going.

*** VIVIAN ALLANSON XN MR ARNDT

PN1573

Okay. So you think that - your facility doesn't have the capacity to pay it, but you think that paid leave should be paid because it would greatly assist you running your business?‑‑‑I'm more concerned about the staff than running my business. I mean my business - it's diabolical running a business in aged care, and if anyone thinks they're in it to make money will soon be disappointed. My concern is for the staff, their wellbeing, that they can support their families, support their own personal arrangements by not having to worry about sick leave because I know they will keep putting the resident first and they will not come if they are unwell, I know that about them. I think across Australia, for the most part, you will find that's the case. So it's - they ought to be looked after in this circumstance. Now, we know, already, the government promised this money for aged care workers, as a retention, and they've reneged, they're not paying the full amount, they're saying, "No, then you'll pay tax", and they're only paying it to direct carers. Let me tell you, the cleaner that goes into that room is just as important as the carer. The person that serves the meal is just as important, but we're not getting any money for that. So this $800, less tax, will help the people that didn't have enough leave, yes it will, that's great. But that shouldn't be what the story is, the story should be the government saying, "Right we're writing the cheque for these people so that they can be looked after", not so that I can run my business better.

PN1574

Thank you, Ms Allanson. We wouldn't necessarily disagree with a lot of what you've said. I've got an article here, which you're quoted, it's called The Weekly Source, and it was published on 12 June this year, are you familiar with that article?‑‑‑I am, yes. I've got it in front of me.

PN1575

So the quotes they've quoted are accurate statements that you've made?‑‑‑Well, I believe their accurate.

PN1576

You're a strong critic of the government funding model for aged care, that's correct?‑‑‑Yes, that is correct.

PN1577

But you're not, as your answers have demonstrated, a critic of the concept that employees, if they have to self-isolate, should be paid, you're not generally critical of that idea, are you?‑‑‑No.

PN1578

The problem you have with - - -

PN1579

MR ARNDT: Vice President?

PN1580

MR BULL: Sorry?

PN1581

MR ARNDT: Apologies, Mr Bull, haven't we covered this ground extensively already?

PN1582

VICE PRESIDENT HATCHER: I think we have, Mr Arndt, but as I've observed earlier, the unions want this application heard and dealt with urgently and if they want to waste time and spread it into another hearing, that's on their heads.

PN1583

MR BULL: I'll finish up fairly soon.

*** VIVIAN ALLANSON XN MR ARNDT

PN1584

You'd agree that you described having to pay your employees when they self-isolate would be an onerous cost to your business?‑‑‑If it's outside the normal leave provisions because I only have so much budget. So normal leave provisions, we manage that, even though we're not making any - we're making a loss but, yes. But if it's outside of that, as you could see, there was already over 40 people. Now, if that has a second round, those people won't have any leave, for sick leave, well then we'll start eating into their annual leave and then we'll start eating into, you know, long service or whatever leave they may have left. But these people, I believe, our staff ought to be able to have a holiday when it comes time for them to be able to have one. So I'm very sympathetic to this, however, unless there is a new funding arrangement for this, from the Commonwealth, then it is just going to - there will be people lose their jobs because there will not be enough money to pay for it.

PN1585

But you'd agree that if you did have an employee who, because they had no paid leave left, who came in, who had a COVID symptom, which turned out to be COVID, and you had an outbreak in your facility, that would be a far more disastrous consequence than having to pay some paid leave, you'd agree with that?‑‑‑Yes.

PN1586

That would really affect your business. And you've expressed concerns, in the article, that if there's a second wave you'll be knocking on the Prime Minister's door to have paid leave, as your employees are amongst the lowest paid in Australia, that's a correct quote?‑‑‑Yes, it is a correct quote, I said that.

PN1587

It's not just a normal cold season or gastro season, they have to have two weeks off, so it's a quite different use of their sick leave?‑‑‑If they have COVID it will be two weeks off, until their symptoms - but if its - if they have symptoms that turns out to be COVID negative it's seven days and now, at the moment, given the reduced amounts in the community, it's as soon as they have a negative test and symptoms have dissipated, so it has changed. So it's not the full 14 days, but if someone does test positive, it's - that changes the game again.

PN1588

Now, you've got extensive policies, in relation to PPE?‑‑‑Yes.

PN1589

You'd agree that they're not in substation to your employee's disclosing their health conditions and self-isolating, when appropriate?‑‑‑Sorry, say - I missed the meaning of that.

*** VIVIAN ALLANSON XN MR ARNDT

PN1590

Your infection control policies are not going to stop whether your employees, externally, possibly coming in contact with the virus, are they?‑‑‑Well, because I don't know their movements, so having PPE available on site doesn't necessarily mean it stops them coming in contact on the way in or if there's an unknown case that perhaps a relative's brought in, yes, it will only help prevent if they are caring for someone in direct contact, that's when the PPE will be best used or best benefit.

PN1591

I've got no further questions of this witness?‑‑‑Thank you, Steve.

PN1592

VICE PRESIDENT HATCHER: All right. Ms Allanson, it's Hatcher VP here, can I just ask you one question? In paragraph 30 of your statement you talk about numbers of employees who displayed possible COVID symptoms, did any of the people under care of your institution display COVID symptoms and require isolation?‑‑‑Yes, we activated our pandemic plan and we moved - we have moved a number of people into our isolation wing whilst we awaited results, which were all negative. So we haven't had a positive case but we were able to activate the use of our isolation wing.

PN1593

Thank you. Any re-examination, Mr Arndt?

PN1594

MR ARNDT: No re-examination, your Honour.

PN1595

VICE PRESIDENT HATCHER: All right, thank you very much for your evidence, Ms Allanson, you're excused, which means you can simply disconnect?‑‑‑Thank you very much.

<THE WITNESS WITHDREW [11.50 AM]

PN1596

VICE PRESIDENT HATCHER: Is Ms Cudmore next?

PN1597

MR ARNDT: Yes, she is, your Honour, and she should be in the waiting room.

PN1598

THE ASSOCIATE: Ms Cudmore is just being admitted now.

PN1599

MR ARNDT: Just to clarify or observe, Mr Corderoy and Ms Allenson were giving evidence on behalf of Laser and AXA and Ms Cudmore is commencing the evidentiary case from AKI ADI(?) New South Wales Business Chamber.

PN1600

VICE PRESIDENT HATCHER: What basis (indistinct) for that fact, Mr Arndt?

*** VIVIAN ALLANSON XN MR ARNDT

PN1601

MR ARNDT: Just where I received my instructions, Vice President. I mean they are separately represented, filed separate submissions.

PN1602

VICE PRESIDENT HATCHER: All right. So they don't fully endorse each other's evidence?

PN1603

MR ARNDT: I think that's fair to say.

PN1604

VICE PRESIDENT HATCHER: All right. Ms Cudmore?

PN1605

THE ASSOCIATE: Could you please state your full name and address?

PN1606

MS CUDMORE: Susan Cudmore (address supplied).

<SUSAN CUDMORE, AFFIRMED [11.41 AM]

EXAMINATION-IN-CHIEF BY MR ARNDT [11.41 AM]

PN1607

MR ARNDT: Ms Cudmore, can you just state your name, for the transcript?‑‑‑Susan Cudmore.

PN1608

And you've prepared a statement in these proceedings?‑‑‑I have.

PN1609

That statement is true and correct, to the best of your knowledge and belief?‑‑‑It is.

PN1610

I understand there's an issue of relevance that you wanted to raise with the Commission, you wanted to add to your statement?‑‑‑Correct. I thought it may be of interest, when the statement was published, to give you an update on some of our activity in relation to COVID and staffing in the health sector. So if you're open to that, I'd like to share that with you.

PN1611

Is that acceptable, Vice President?

PN1612

VICE PRESIDENT HATCHER: Yes, it is.

*** SUSAN CUDMORE XN MR ARNDT

PN1613

THE WITNESS: Okay. So to just maybe illustrate some of the activity that our business has been participating in, in the space. Our nursing agency, Health Solutions Group, has now provided nursing staff into five aged care facilities that have been impacted by COVID outbreak clusters, and we've been working with the Department of Health and Aspen, and help to deliver that program.

PN1614

We've provided approximately 200 to 250 nurses over this period of time. We've had, just talking to the statistics, we've had no - none of those nurses, those 250 nurses, have contracted COVID, however we have had eight nurses that have been defined as close contact.

PN1615

That was in one aged care facility where there was two components to that aged care facility. There was a COVID isolation unit and then there was a general aged care unit. The nurses that were defined as close contact were working in the non-isolation unit, the general unit, and it was a resident who, unbeknownst to them, obviously, at the time, had contracted COVID and then the Department got involved and the Department of Health got involved and did contact tracing and defined that those eight nurses fell into that category of close contact. Subsequent to that they were required, as per the Department of Health protocol, to self-isolate for 14 days.

PN1616

Those nurses, like the rest of the nurses that we provided, were also screened, had tests for COVID, had two tests, both of those were negative. Those nurses are now cleared to work and, in fact, are working in the health environment.

PN1617

Of note to this conversation, I suppose, is the initiative that the CEO of the organisation took, and decided, as a (indistinct) that he would like to reimburse those eight nurses with the sum of $750 per week for two weeks, equivalent to the JobKeeper.

PN1618

So I thought was relevant, obviously, and to be transparent I thought we'd just share that.

PN1619

The other thing also to share is that we do have nurses today, you would have seen in the media in Victoria, we have nurses who are working with the Department of Health doing some community roving screening testing, and they're being trained by the Alfred Hospital, PPE protocols today and they'll be out. There's about 12 of those in Victoria going out with Department of Health to do community screening in those hotspot geographical areas in Victoria.

PN1620

MR ARNDT: Thank you, Ms Cudmore. I'd seek to tender Ms Cudmore's statement.

*** SUSAN CUDMORE XN MR ARNDT

PN1621

VICE PRESIDENT HATCHER: The statement of Sue Cudmore, dated 17 June 2020 will be now marked as exhibit 37.

EXHIBIT #37 WITNESS STATEMENT OF SUE CUDMORE DATED 17/06/2020

PN1622

Ms Wischer?

CROSS-EXAMINATION BY MS WISCHER [11.46 AM]

PN1623

MS WISCHER: Thank you, your Honour.

PN1624

Hello, Ms Cudmore, my name is Kristen Wischer, I'm from the Australian Nursing and Midwifery Federation and I just wanted to ask you some questions about your statement. Can you see me all right?‑‑‑I can, thank you.

PN1625

Can I just - so your business, as I understand from your statement, there are two components. There's Health Solutions and Alliance Community?‑‑‑Correct.

PN1626

Health Solutions Group, that is an agency that places - is a labour hire agency for nurses?‑‑‑Correct.

PN1627

And you've got four - Health Solutions has four agencies?‑‑‑Yes, correct.

PN1628

You say, in your statement, at paragraph 10, that Health Solutions employs around 5800 nurses?‑‑‑Yes. Over the last calendar year, financial year we had 5800 active nurses on our books. They don't all work at the same time and they come and go, as per the nature of agency work.

PN1629

So, as you say, they're on your books but they may not all be taking shifts or accepting work, on a regular basis. Some - would it be correct that some just do an occasional shift here and there?‑‑‑Correct.

PN1630

But they're all employed through your agency, on a casual basis?‑‑‑Correct.

PN1631

As such, they have no entitlement to personal leave or annual leave?‑‑‑That's correct.

*** SUSAN CUDMORE XXN MS WISCHER

PN1632

They're all employed, pursuant to the terms and conditions of the Nurses' Award?‑‑‑Correct.

PN1633

So that includes their rate of pay?‑‑‑Yes.

PN1634

Would you agree that the rate of pay, under the Nurses' Award, if you compared it to what you would earn as a nurse in the public health system, public sector, the rate is lower than a public health nurse, a nurse in a public hospital would earn?‑‑‑So I'll just clarify. We meet the minimum - we exceed the rate of pay, we meet the conditions of the Nurses' Award, we exceed the standard rate of pay of the award, so they are paid above that.

PN1635

So they're paid above award rates?‑‑‑Correct.

PN1636

Thank you. Then the second part of your business is Alliance Community - sorry, and - so the second part of your business is Alliance Community, you've got some 450 employees there?‑‑‑Correct.

PN1637

They're employees who, is it right, that they're working in the community and disability sector?‑‑‑Predominantly, and in aged care.

PN1638

And in aged care. So the people who are working in community and disability, would they be people who, for example, are going in and caring for people in their homes?‑‑‑Yes, that's correct.

PN1639

So they would be doing things like changing beds, helping shower, toileting, meal preparation?‑‑‑Yes, all those things. Predominantly - predominantly our focus is on care needs and complex care. We so some social support and group activities, but that's (indistinct).

PN1640

So that care support would involve close contact with people in their homes?‑‑‑Yes.

PN1641

You say that those Alliance employees, some of them are employed under the SHADS Award and some under your enterprise agreement, what's the percentage there who would be award covered?‑‑‑Off the top of my head I would say probably about 40, 45 per cent award covered.

*** SUSAN CUDMORE XXN MS WISCHER

PN1642

Okay, thank you. Just going back to the nurses that you placed through your agency, so you've got four agencies and they place nurses with host employers, that's correct?‑‑‑Yes.

PN1643

Do you have a figure about how many host employers you would be engaged with, or engage your services?‑‑‑Off the to of my head, hundreds. Hundreds. We have hundreds of them.

PN1644

Hundreds?‑‑‑Yes. We have major contracts with Health (indistinct) Victoria, with all the Health Departments, basically, and a national contract with BUPA. Quite a few of the aged care national contracts within aged care groups as well. So I think, from our market scan, we're probably the second biggest nursing agency provider, under those four different brands, in Australia.

PN1645

Okay. So then you say in your statement, paragraph 13, that those nurses are then placed in places that are predominantly hospitals, private hospitals, aged care - residential aged care, community services, corrective services, mental health and disability, is that correct?‑‑‑Yes.

PN1646

So all of those nurses are then coming in contact with people who, whether they're - because of their health or their age, that they're frail, they're particularly - they're vulnerable populations that are being looked after in those various services?‑‑‑Yes.

PN1647

So, essentially, those nurses are being placed at the forefront where the impact of COVID-19 is extreme - is strongly felt. For example, in aged care, that's a vulnerable sector, the residents there are vulnerable, so there are - the risks of COVID-19 infection are higher - are very high in those areas?‑‑‑The risks - well, our evidence shows that we haven't had anybody contract COVID-19 but, yes, it's true to say that we know aged people are more vulnerable and at high risk. That's what the health advice is.

*** SUSAN CUDMORE XXN MS WISCHER

PN1648

Yes, thank you. So then, at paragraph 18, you say that for Health Solutions you conduct an assessment of a host employee before people go to work there. Just very briefly, could you just describe, in a bit more detail, what that assessment entails?‑‑‑The host site. So if they're an aged care facility or a hospital. There's a combination. It falls within - sorry, I'm getting all tongue tied. It can fall within a contract of agreement with, say, Health Purchasing Victoria, or we will - we have like a framework around that, which is (indistinct) and then we would do our site visits, with the host, or if they - or negotiations or conversations with the appropriate people in the host site that overall there's a safe working environment for our staff. That's inclusive of access to PPE equipment, inclusive of access to safe manual handling equipment and environmental features. So the branch managers will undertake that assessment closely, either by face-to-face or with liaison with the appropriate person in the facility. So in a big facility it might be a safety manager.

PN1649

Okay, thank you. But then you go on, at paragraph 20, to say that once you've bee through that process and the host passes the relevant requirements, the host is responsible for the day-to-day matters, such as safety, infection control and PPE, is that correct?‑‑‑Yes.

PN1650

Would you agree then that since COVID, the outbreak of the pandemic, all of those very day-to-day matters have been elevated to the forefront, have become very important and very (indistinct)?‑‑‑Of course. Of course. And, as you'll see, we have a risk framework around that that helps us guide our questioning and our decision-making, in relation to working with (indistinct).

PN1651

Would you agree also that that's been - the requirements, for example, around PPE in aged care have changed rapidly. There's been a lot of advice, a lot of government guidelines?‑‑‑Yes, we're getting them daily.

PN1652

Yes. And that, for example, there's been, for example, aged care has reported some facilities have said, "We have a shortage of PPE, we haven't been able to source that", would you agree that that's been a problem in some areas?‑‑‑It has, especially at the beginning of the pandemic when access to PPE was a little bit harder. But part of our screening in that - actually, what did happen was that our staffing, in that acute time when there was challenges with PPE in our nursing business, hospitals and the aged care sector actually closed their services. So we had a significant drop in our activity, down to like 20 per cent of what we would normally do. So our exposure was reduced purely by the fact that the hospitals or the aged care facilities were (indistinct). So it obviously had a big business impact prior that that. Through that really acute phase where PPE was a big challenge we actually weren't being asked to provide services. When we did start to be asked to be providing services then obviously we were very clear about the PPE requirements and (indistinct).

*** SUSAN CUDMORE XXN MS WISCHER

PN1653

So what you're saying is that in a period where there was a lack of confidence that there was adequate protection provided that was a deterrent to people working?‑‑‑No, I'm not saying that. What I'm actually saying is that in that initial period there wasn't demand for our services, because we know that the hospital stopped requiring - so being a contingent workforce, they require us when there's high activity. Because the hospitals closed their operating theatres, they pushed people back into the community, they reduced their activity, they didn't need us as a contingent workforce. That impacted for us. The risk reduced because we just actually did not work. We didn't have the (indistinct). Then as the demand picked up, especially in those hot spots, (indistinct) we (indistinct) across the training programs that were delivered in those facilities. As we have a clinical governance committee, and I'm head of that, we were quite clear in making sure that we had - there was appropriate PPE and training, which is really very important.

PN1654

All right. Nevertheless, in all of your hundreds of host employers, you couldn't be 100 per cent sure, all of the time, that all of those measures are being met, all the appropriate (indistinct)?‑‑‑Of course not.

PN1655

Then you're - given that you've got - your nurses are casual employees so they might just have an engagement with a host employer, they may not be terribly familiar with that employer, is that correct?‑‑‑That can happen, yes.

PN1656

As a casual employee who is obviously reliant on getting shifts in order to work and to be paid, are they employees who may be less likely to raise concerns about whether there are adequate infection control measures in place?‑‑‑I don't know. I don't know how we would measure that. But very much in their induction with us, to the company, we do run through that we really do want to get their feedback. Something that we do do with nurses, when they first start with us, as (indistinct) business, we call them the first shift that they've worked, to see how it went, and then we call them at set intervals, to encourage that engagement with the agency, so hopefully they do feel confident they can just ring if something - if they're feeling that they're not being supported or provided with the appropriate equipment.

PN1657

Just moving now, in your statement you describe, at paragraph 57, that you had a large community, that there were three - a total of nine employees who, either from returning from overseas or suspected contact with someone with COVID-19 outside of the workplace, or another three employees with flu-like symptoms, all of those people were required to self-isolate and therefore not take any work?‑‑‑Correct.

PN1658

Are they the employees that you just described to Mr Arndt, that they were refunded - given some money?‑‑‑No, they're separate employees.

PN1659

Right. So they're the Alliance Community employees, but that's a total of nine people?‑‑‑Yes.

PN1660

Then your statement goes on to talk about isolation for - is that the situation that you just described? In your statement you talk about that there were eight people who, through work in aged care, had been considered close contact, is that the same situation?‑‑‑What are you referencing in my file?

*** SUSAN CUDMORE XXN MS WISCHER

PN1661

I'm looking at your statement, at paragraph 60?‑‑‑Sixty. Yes. Actually, that is the beginning of that - yes. Yes. Yes. So basically the update that I provided was in relation to those ones there.

PN1662

So your organisation made a discretionary decision to pay those people $750 a week?‑‑‑Correct.

PN1663

For the period - was that for the two weeks?‑‑‑Yes.

PN1664

All right, thank you. That's to be commended. So would you say then that given that your organisation has made that decision to pay that, is that something that you would see as supporting those casual workers, because they've experienced having to not work for two weeks, and the risk of having been a close contact. Is that something you were happy to support those workers?‑‑‑It felt good to do it. We understand the emotional side of this argument, so I think it did feel good to do it. It's like us paying above the award, you can do that. It's just, I suppose, in relation to this argument, a blank having to do it in every circumstance is a challenge that the business would struggle with for viability. So I think that's the point that - and we're - you know, we did make a discretionary payment and we thought, at the time, that that was the right thing, in those circumstances.

PN1665

Yes, thank you. You then go on, in your statement, you talk about cost implications. Now, I understand that for Alliance community, they're dependent on NDIS funding, is that correct?‑‑‑Predominantly. I'd say NDIS funding is about 75 per cent of the funding. We're also funded by Veterans' Home Care and the Commonwealth Home Support Program and we also deliver about 35 aged care packages. But predominantly it's NDIS.

PN1666

So I suppose nobody anticipated, some months ago, that there would be a pandemic and that we would, from time to time, require health care workers, because of the nature of their work and the nature of their exposure to vulnerable people, that they would be required to self-isolate, would it be possible, if there were a change in the funding model, that that could then meet the cost of paying for leave, as you did on a discretionary basis, but in a funded basis. Is that something that could be possible?‑‑‑Yes, I'm sure, if it were provided, we'd be open to that.

PN1667

Thank you. Then for your Health Solutions employees, you say that - you have a contract with the host employer?‑‑‑Correct.

*** SUSAN CUDMORE XXN MS WISCHER

PN1668

And that in order to increase the amount that you - is it correct that in order to increase the amount that you would charge the host employer you would have to renegotiate your contract?‑‑‑Correct.

PN1669

As it stands, at the moment, you can't make a - can I clarify, is it the case that you can't make a claim for an unforeseen expense?‑‑‑Correct, yes. We'd like to, it's getting tougher and tougher contracting, especially with the Health Department so, yes, it would be a real challenge.

PN1670

That said, you could renegotiation your contracts and, in the event that if this application were granted and there was paid pandemic leave, that's something that you could then incorporate into your contract?‑‑‑I'd have to look at the specifics of each contract, to be honest. I couldn't answer that honestly now. It would be extremely difficult.

PN1671

All right. But it is possible and the expense would no longer be a - well, it would not be an unforeseen expense?‑‑‑Unlikely I would say.

PN1672

All right. Then, finally, Ms Cudmore, attached to your statement is, at attachment B and it's page 58, you have a policy called COVID-19 Response Plan Alliance Community?‑‑‑Yes. Yes.

PN1673

Now, is it correct that that just applies to your Alliance Community Staff?‑‑‑Yes, I have one for the nursing agency as well.

PN1674

You do? Is that similar?‑‑‑It is similar and I think you find that that one and the other one have been updated recently. So we would updated weekly, as the advice changed.

PN1675

Okay. On page 58 of that, I think it's the attachment, you've got Workforce Considerations, and you say:

PN1676

All workers are instructed that they are not to attend work if they are unwell. This includes mild symptoms of cold and flu. Workers are reminded regularly of this work requirement. Workers are to understand their role in following all requirements to keep themselves safe in the community.

*** SUSAN CUDMORE XXN MS WISCHER

PN1677

So, because I haven't had the benefit of the nurses' policy, that same policy would apply to your nurses working through Health Solutions?‑‑‑Yes, they're materially the same. There's just a little bit more detail in the Community one because it (indistinct).

PN1678

All right. So can I just confirm then, that being casual employees, your expectation is that those employees, if they have any form of cold and flu symptom they should make themselves unavailable?‑‑‑Correct.

PN1679

In that instance, in the absence of - because they're not entitled to any form of leave, they forego their salary for that period?‑‑‑If they don't attend work, yes, that's correct.

PN1680

They don't attend work so they don't get paid. All right. Whereas, obviously, if there was - sorry, no further questions. Thank you, Ms Cudmore?‑‑‑Thank you.

PN1681

VICE PRESIDENT HATCHER: Any re-examination, Mr Arndt?

PN1682

MR ARNDT: Nothing arising, your Honour.

PN1683

VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Ms Cudmore, you're excused and you can simply disconnect?‑‑‑Okay, thank you.

<THE WITNESS WITHDREW [12.07 PM]

PN1684

VICE PRESIDENT HATCHER: Is Ms Van Heerden next?

PN1685

MR ARNDT: She is, your Honour, and she's in the waiting room.

PN1686

THE ASSOCIATE: Could you please state your full name and address?

PN1687

MS VAN HEERDEN: Shanene Van Heerden (address supplied).

<SHANENE VAN HEERDEN, AFFIRMED [12.08 PM]

EXAMINATION-IN-CHIEF BY MR ARNDT [12.08 PM]

PN1688

MR ARNDT: Ms Van Heerden, can you hear me?‑‑‑Yes, I can.

PN1689

It's Julian here. Can you just repeat your name, for the transcript?‑‑‑It's Shanene Van Heerden.

*** SHANENE VAN HEERDEN XN MR ARNDT

PN1690

And you've prepared a statement in these proceedings, dated 17 June 2020?‑‑‑That is correct.

PN1691

That statement's true and correct, to the best of your knowledge and belief?‑‑‑Yes, it is.

PN1692

I seek to tender that statement?

PN1693

VICE PRESIDENT HATCHER: All right. The statement of Shanene Van Heerden, dated 17 June 2020, will be marked exhibit 38.

EXHIBIT #38 WITNESS STATEMENT OF SHANENE VAN HEERDEN DATED 17/06/2020

PN1694

VICE PRESIDENT HATCHER: Mr Robson, is it?

PN1695

MS LIEBHABER: Vice President, I'll just be asking a few questions instead of Mr Robson, if that's okay?

PN1696

VICE PRESIDENT HATCHER: Yes.

PN1697

DEPUTY PRESIDENT CLANCY: Sorry, can Mr Robson clarify if he's on the line?

PN1698

MR ROBSON: Yes, your Honour, I'm on the line. Ms Liebhaber, we've agreed should take the lead on this one.

PN1699

DEPUTY PRESIDENT CLANCY: Sorry, I misunderstood, I'm sorry to interrupt.

PN1700

VICE PRESIDENT HATCHER: All right, Ms Liebhaber?

CROSS-EXAMINATION BY MS LIEBHABER [12.10 PM]

PN1701

MS LIEBHABER: Ms Van Heerden, can you hear and see me okay?‑‑‑Yes, I can.

*** SHANENE VAN HEERDEN XXN MS LIEBHABER

PN1702

My name is Rachel Liebhaber, I'm an industrial officer with the Health Services Union. I've just got a few very short questions for you. So in paragraph 1 of your statement you state that you've been in the role as a human resources business partner for one year, do you have any previous experience working with a disability support provider in Australia?‑‑‑No, I don't.

PN1703

So it would be fair to say you have a fairly limited experience working in disability support services in the NDIS context?‑‑‑Yes.

PN1704

At paragraph 35(a) of your statement you say that you describe how 12 staff were required to be tested for COVID-19 and to self-isolate, and that your organisation made the decision to pay them the rates that they would have received, if they had been at work, including overtime, double time penalties and so on. Did this lead to your organisation having to review your current programs, downsize or close any program?‑‑‑I just want to add a correction there, it wasn't 12 staff members who needed to be tested, it was one customer who needed to be tested and the 12 staff were involved in supporting that customer. So at that stage we still had to adhere to the 14 day isolation period and obviously isolating until we have the test results back for the customer. So those 12 staff were requested to self-isolate and therefore, because it was our request, we paid them what they would normally have been paid if they were completing the actual shift. This has not caused any downsizing or anything like that.

PN1705

So in paragraph 49 where you say that if you're required to pay a staff member to self-isolate it could lead to downsizing or closing of programs, I mean if that wasn't the case with those 12 staff members, surely it wouldn't be the case if the award variation was granted, would it?‑‑‑This - the 12 staff members who isolated was in the beginning of May and obviously we anticipate that there may be some more cases and we've obviously had more staff required to isolate and customers that need to be tested. So if this is ongoing, it will almost certainly have a financial impact on the business. We already are facing losses, due to, specifically, our lifestyle learning area having to obviously adhere to regulations and we have limited customers that can attend. So our accommodations areas are carrying part of the business at the moment and if this additional expense is added, it would 100 per cent result in financial losses and we would need to look at which areas do we need to downsize or possibly cease.

PN1706

But the experience you had with those 12 members, was that - didn't cause a significant financial detriment to the organisation?‑‑‑No, and only because we were receiving the JobKeeper payment at the moment. If that was not in place, yes, then it would have.

PN1707

Can I take you to annexure I to your statement? On page 2 of that annexure, I think it's page 31, if you can see, under the heading Version Control, it says:

*** SHANENE VAN HEERDEN XXN MS LIEBHABER

PN1708

The NDIS price guide is subject to change.

PN1709

Then it lists a number of details of amendments to the price guide. You can see that in your - in that attachment?‑‑‑Yes.

PN1710

So it's correct to say that the NDIS price guide is reviewed and amended by the NDIA quite frequently?‑‑‑Yes, it is.

PN1711

It's reviewed and amended in response to Fair Work Commission decisions, as well as a number of other things, is that correct?‑‑‑Yes, that's my understanding.

PN1712

So if the Fair Work Commission were to decide to grant the union's claim for paid pandemic leave, if it became an award entitlement, then the NDIA would amend the NDIS price guide to reflect that, that's correct, isn't it?‑‑‑I cannot comment on that because we haven't received that information from the NDIA.

PN1713

Yes, but where you say, paragraph 47 you say that:

PN1714

The NDIS price guide limits the fees that you can charge for services provided.

PN1715

That you would agree that the price guide is continually amended to reflect award entitlements and other incidences?‑‑‑It is reviewed, yes, but predominantly on a 12 month basis and also, as I stated previously, we haven't received any confirmation from the NDIA that they would be implementing further changes, based on any Fair Work legislation.

PN1716

But you would agree that the price guide can be amended, based on a Fair Work Commission decision to review the award?‑‑‑It could, yes.

PN1717

I've got no further questions, Vice President.

PN1718

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

PN1719

MR ARNDT: No, your Honour.

PN1720

VICE PRESIDENT HATCHER: All right, thank you very much, Ms Van Heerden, you're excuse, which means you can simply disconnect?‑‑‑Thank you.

*** SHANENE VAN HEERDEN XXN MS LIEBHABER

<THE WITNESS WITHDREW [12.17 PM]

PN1721

VICE PRESIDENT HATCHER: Can we have the final witness. Do you know how to pronounce this, Mr Arndt?

PN1722

MR ARNDT: Kevelighan.

PN1723

VICE PRESIDENT HATCHER: Kevelighan. Okay, Mr Kevelighan.

PN1724

MR ARNDT: No, that's my attempt, your Honour. Let's find out.

PN1725

VICE PRESIDENT HATCHER: Okay.

PN1726

THE ASSOCIATE: Could you please state your full name and address?

PN1727

MR KEVELIGHAN: It's Ryan Lewis Kevelighan and (address supplied).

<RYAN LEWIS KEVELIGHAN, AFFIRMED [12.18 PM]

EXAMINATION-IN-CHIEF BY MR ARNDT [12.18 PM]

PN1728

VICE PRESIDENT HATCHER: Mr Arndt?

PN1729

MR ARNDT: Mr Kevelighan, it's Mr Arndt here. Can you just repeat your name, for the purposes of the transcript?‑‑‑Ryan Lewis Kevelighan.

PN1730

You've prepared a statement, for the purposes of these proceedings, which is dated 17 June?‑‑‑Yes.

PN1731

Is the contents of that statement true and correct, to the best of your knowledge and belief?‑‑‑Yes.

PN1732

I seek to tender that statement.

PN1733

VICE PRESIDENT HATCHER: All right. The statement of Ryan Kevelighan, dated 17 June 2020 will be marked exhibit 39.

*** RYAN LEWIS KEVELIGHAN XN MR ARNDT

EXHIBIT #39 WITNESS STATEMENT OF RYAN KEVELIGHAN DATED 17/06/2020

PN1734

VICE PRESIDENT HATCHER: Ms De Vecchis, are you cross-examining this witness?

PN1735

MS DE VECCHIS: Yes, I am, thank you, your Honour.

CROSS-EXAMINATION BY MS DE VECCHIS [12.19 PM]

PN1736

MS DE VECCHIS: Mr Kevelighan, can you hear me?‑‑‑I can, yes.

PN1737

Terrific. My name is Marika De Vecchis and I'm from the Australian Salaried Medical Officers' Federation?‑‑‑Yes.

PN1738

I'm going to ask you a few questions about your statement?‑‑‑Mm hm.

PN1739

You say, in your statement, that you have approximately 120 doctors on your books. That would make your agency a relatively small provider of locum doctors in Australia, wouldn't it?‑‑‑It would, correct, yes.

PN1740

Can I take you to paragraph 8 of your statement - - - ?‑‑‑Yes.

PN1741

- - - where you broadly outline two different ways in which doctors on your books are engaged?‑‑‑Yes.

PN1742

What proportion of the doctors on your books would be in the group that you describe as PAYG casual employees?‑‑‑It's relatively fluid, but on our particular books it's averaging about the 40 to 45 per cent mark at the moment. So it varies, on a week-by-week basis.

PN1743

Those doctors would all have provider numbers, wouldn't they?‑‑‑Well, yes, they'd have provider numbers, not - yes, they would. Yes.

PN1744

Can you describe to the Commission, please, what a provider number is?‑‑‑So a provider number is a number that is assigned to a doctor that is also affiliated and registered with Medicare, that allows them to access, with firm requests, Medicare items, I believe. It differs from a prescriber number, which would be the extension which would be the actual prescriptions.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1745

Having a provider number enables the doctor to, amongst other things, bill Medicare, that's correct, isn't it?‑‑‑Yes.

PN1746

That would be including for telehealth services?‑‑‑As of recently, yes.

PN1747

Would you agree with me that the provision of telehealth services has increased greatly during the current COVID pandemic?‑‑‑I'm under the impression it has. I personally don't have much involvement with it.

PN1748

Can you tell me what happens to the revenue that is generated by the billing of patients, by PAYG casual employees? Does that go back to your agency?‑‑‑It doesn't. In particular the PAYG casual employees that are on our agencies, they're predominantly not accessing any of those Medicare billings. Those Medicare billings would mainly, if they occur, would be going to the relevant hospitals or clinics that they are working within. So we don't have any involvement in the Medicare billings.

PN1749

Okay. Now, would you agree with me that the COVID-19 pandemic has had significant impacts on the medical workforce in Australia?‑‑‑Yes, I think it's had a significant impact on everyone.

PN1750

To your knowledge, have doctors from overseas been unable to travel to Australia to work during the pandemic?‑‑‑There has been an element of that, yes.

PN1751

Can I ask whether the closure of interstate borders in Australia has limited the mobility of the medical workforce in Australia?‑‑‑It's significantly limited it, yes.

PN1752

Have both those phenomena led to an increase in demand for the PAYG casuals on your books?‑‑‑We don't - we've had an increase in demand. We had a decrease when the borders initially closed and then it's led to an increase. Because the wave of COVID infections, thankfully, never actually came, we then had a decrease of demand as hospitals unbooked doctors that they'd overbooked, in preparation for the perceived wave that was coming. But we don't have a specific demand for PAYG casual doctors, because the hospitals do not request how the doctor's engaged from us, they just want a doctor. So we, as the agency, in conjunction with the doctor, make the decision as to how that doctor will end up being engaged when they go to work.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1753

Yes. But you've given evidence, haven't you, that certain jurisdictions have specific requirements, in relation to how they engage the doctors on your books?‑‑‑Correct. Tasmania and Queensland specifically have a more restricted commercial space. They do not do direct engagement themselves, so we have to provide either PAYG or Pty Ltd contractors.

PN1754

Has there been an increase in demand, during the pandemic, for PAYG casuals in those particular (indistinct)?‑‑‑No, there's been an increase in demand for doctors in general in recent weeks, but not specifically PAYG because, again, they don't define how they want those doctors, they just want a doctor.

PN1755

Okay. Could I take you to paragraph 29 of your statement?‑‑‑Yes.

PN1756

You say there that currently 40 to 50 per cent of your agency's business is providing PAYG casuals to hospitals, do you see that?‑‑‑Yes.

PN1757

Does that figure include New South Wales where, as you say, PAYG casual engagement is not permitted in the New South Wales public health system?‑‑‑No. I believe, from memory, I excluded the New South Wales figures, because they're all direct engagement.

PN1758

Yes. So if we include New South Wales, the figure would be what, in your view?‑‑‑I wouldn't like to give a specific, but it wouldn't be too much of an impact because, at present, New South Wales is one of our - it's not one of our main territories that we're working in - we're providing into, as we speak.

PN1759

Okay. In paragraph 41 of your statement - - - ?‑‑‑Yes.

PN1760

- - - you give evidence there about circumstances where a PAYG casual on your books is required to isolate, due to COVID-19, and you refer there to contacting either the doctor or the host organisation to ensure that a proper process was being followed?‑‑‑Yes.

PN1761

Can you explain what you mean by that, please?‑‑‑So I suppose it would depend how it unfolded, so if it was the doctor that was alerting us to an issue, then we would be contacting the client, the host client, to inform them of the issue, whereas if it was the host client that was contacting us to let us know that there was an issue that there was going to, therefore, be an isolation event, we'd be contacting the doctor, if the doctor already wasn't aware of it. But, regardless, we'd be involved in ensuring that whatever processes needed to be followed were being followed. Mainly, I suppose, in this case, ensuring that people who need to isolate are isolating.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1762

Yes. Paragraph 44 of your statement, you refer to paid pandemic leave arrangements in some hospitals?‑‑‑Yes.

PN1763

Are you referring there to entitlements in state and territory public health systems?‑‑‑They're localised, yes. So they're not entitlements that have gone into any formal contract or enterprise agreement or anything like that, that I'm aware of, I'm more referring to the specific ones that have been rolled out, with short notice, in different geographical areas, to cover these events. So each of the states and territories have been reacting as it unfolds themselves.

PN1764

Yes, but you'd be aware, wouldn't you, that all the state and territory governments in Australia have enacted paid pandemic leave entitlements, in different forms. But all state and territory jurisdictions currently have paid pandemic leave entitlements for their public hospital staff, including doctors. You're aware of that, aren't you?‑‑‑Potentially, but that's not something that I deal with because I'm only dealing with casual staff.

PN1765

Okay. So you say, in your statement, that your agency does not have any arrangements in place with hospitals to fund paid - to fund paid pandemic leave, that's correct, isn't it?‑‑‑It is, yes.

PN1766

Then, at paragraph 46, you describe a situation, in April of this year, where one of your PAYG casuals who was working in Tasmania, was paid during a period of isolation?‑‑‑Correct, yes.

PN1767

Was that particular placement with a public health facility?‑‑‑It was. It was in Tasmania and the reason why I've said, previously, that there's no arrangements is because the arrangements haven't been formalised. Tasmania have, in an informal manner, extended some assurances to allow paid events to happen. That's the only one that we've had so far.

PN1768

All right. In the circumstances you describe, at paragraph 46, who paid the doctor on that occasion, for the leave?‑‑‑So we paid the doctor because the doctor was on hire by ourselves. We received the pay from the - the total pay from the hospital, which had passed on to us, which was then passed on to the doctor.

PN1769

So you paid the doctor, but you were able to recoup those costs from the host?‑‑‑Correct, but we only paid the doctor because we were on the assurance that we were going to be recouping those costs from the host.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1770

Yes, thank you. When you place PAYG casuals with a client, does your agency pay the required workers compensation premium?‑‑‑We do, yes.

PN1771

Do you also pay other insurance costs, such as public liability and medical indemnity costs?‑‑‑So we hold professional indemnity and public liability to $20 million value so, yes, we do.

PN1772

Is it correct to say that you consider those charges as the cost of doing business for a medical locum agency?‑‑‑Yes, some of the costs. Unfortunately there's a lot more.

PN1773

Any increase in those costs would be passed on to the client organisation, that's correct, isn't it?‑‑‑Not really, because the market is quite unique, compared to a lot of other on-hire recruitment industries, in the sense that the actual pay rates and charge rates are very fixed. So it's not like other on-hire markets where there's a lot of fluidity and flexibility. So, in answer to your question, yes, if we did have an increase in costs, over a period of time, we'd have to look to increase the cost, but it would be quite a long process.

PN1774

What would that process involve?‑‑‑Dealing with the public health service, back and forth, could take anywhere from six to 24 months to get an end outcome potentially. That wouldn't be an uncommon event for us.

PN1775

So you're describing there, are you, the renegotiation of contracts?‑‑‑Yes. And most of the states are in some kind of fixed tender cycle of somewhere between three to five years.

PN1776

Have you made any approaches to your clients, in relation to the possibility of paid pandemic leave being granted to doctors on your books?‑‑‑I have. About four or five weeks ago, when I first became involved in this, I went down that route, however I was met with, "Well, we don't know what we're dealing with yet, so come back to us when we know what we're dealing with", e.g., after the outcome of this.

PN1777

So there's the possibility there of having some negotiations with your clients around this particular issue?‑‑‑There's always the possibility. I'm not favourable or positive on the end outcome of it.

PN1778

Why do you say that?‑‑‑Because in the main two states that are involved in this, from the (indistinct) of the PAYG component, I would - I would predict that, in particular in Queensland, they will turn around to us and ask us to provide doctors that are Pty Ltd contractors, as opposed to PAYG doctors. They'll see it as a mechanism to avoid this exposure.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1779

What impact would that have on your business?‑‑‑Look, I suppose one of the things that we would find is a lot of doctors that currently work as PAYG engagement do not wish to become a Pty Ltd contractor, so they might remove themselves from being available from the locum pool, so that would be one impact. That's a separate impact, of course, as to whether we choose to not continue to do PAYG engagements as a source of business.

PN1780

Looking at paragraph 59 of your statement, you give - do you have that, paragraph 59?‑‑‑Yes, got it in front of me.

PN1781

So you give evidence there about the possibility of raising your fees to cover any costs to your agency, arising from the grant of paid pandemic leave, and you express concerns about doing so on the viability of your business, is that the correct way to characterise your concerns?‑‑‑I believe so. When you run the numbers, the fees would have to be raised by quite a significant amount to even remotely be coming to the region of being able to cover some of these incidents. So it's not just a case of raising - sorry. It's not just a case of raising the fees by a couple of percentage points, it would have to be - it would have to entirely rework the models that are in place. That's not me.

PN1782

VICE PRESIDENT HATCHER: All right, go ahead.

PN1783

MS DE VECCHIS: Thank you, Vice President.

PN1784

Mr Kevelighan, you say that you've reviewed the proposed variation to the Medical Practitioners' Award?‑‑‑Yes.

PN1785

Now, if granted, the variation will apply to other medical locum agencies with which you compete in tendering for work, that's correct, isn't it?‑‑‑It is, yes.

PN1786

You can expect your competitors to raise their costs to cover any potential or actual liability arising from the grant of paid pandemic leave to doctors, is that correct?‑‑‑If they get the opportunity to raise their fees, yes, they will.

PN1787

So what we'd be looking at, potentially, is the creation of a level playing field amongst the medical locum agencies when tendering for work, is that correct?‑‑‑We already have a level playing field.

*** RYAN LEWIS KEVELIGHAN XXN MS DE VECCHIS

PN1788

Yes, but my question is whether, if you're all raising your fees, there would be no particular disadvantage to your agency arising from the tender for work?‑‑‑Correct. I don't think the end outcome would be that we would raise our fees, however, I think the end outcome, the only viable solution, would be that we'd have to have it as a cost of employment that's directly passed on to the host clients, because the numbers are so significant when dealing, in particular, with doctor's wages, and isolation events can be so significant, in terms of multiple people being removed from a floor at any given time. It probably wouldn't be fair to the public health system to simply try and add a few percentage points on, in terms of an agency margin and it would have to be as and when an events happen, it's passed on as a direct cost, depending on the cost, if that makes sense?

PN1789

Yes, thank you. Thank you, Mr Kevelighan.

PN1790

I have no further questions for this witness, Vice President.

PN1791

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

RE-EXAMINATION BY MR ARNDT [12.38 PM]

PN1792

MR ARNDT: Just one question, your Honour.

PN1793

Mr Kevelighan, you were asked some questions about potential changes in the workers compensation premiums that you might be paying, do you recall that?‑‑‑I was asked some questions, did you say?

PN1794

Yes. You were asked some questions about changes - increases in costs in your workers compensation premiums?‑‑‑Yes. Yes.

PN1795

And that you occasionally may have to try and renegotiate those or take them into account when renegotiating contracts?‑‑‑Potentially. There's very little renegotiation of contracts that goes on in the public health space, in relation to the locum agencies. It's virtually their (indistinct), without sounding negative.

PN1796

That's okay. Can I ask you the question, how often would you become aware that your workers compensation premiums, or those kind of costs of doing business, would rise? Would that be an annual increase, or does it occur more regularly than that?‑‑‑I'm under the impression it would be an annual indication of an increase.

PN1797

That's all I have. Thank you, Mr Kevelighan.

*** RYAN LEWIS KEVELIGHAN RXN MR ARNDT

PN1798

VICE PRESIDENT HATCHER: All right, thank you for your evidence Mr Kevelighan. You're excused which means you can hung simply disconnect?‑‑‑Okay. Thank you very much. Thank you.

<THE WITNESS WITHDREW [12.39 PM]

PN1799

VICE PRESIDENT HATCHER: So, Mr Arndt, remind me, what's the position with Ms Danielle Lee's statement?

PN1800

MR ARNDT: It has been withdrawn.

PN1801

VICE PRESIDENT HATCHER: All right, thank you. Then you wanted - so that's all of your witnesses but you wanted to tender some documents, I think, didn't you?

PN1802

MR ARNDT: I did. I forwarded a Dropbox link and an email this morning, to Chambers. I sought to significantly rationalise those materials overnight. There's four relevant witnesses to which those documents relate. I'm in your Honour's hands as to how you or if you would like to receive those into evidence.

PN1803

VICE PRESIDENT HATCHER: I just want to find them first. All right, if there's no objection, is it sufficient we just mark that and I'll just use this as a shorthand, ABI bundle of documents. Mr Arndt?

PN1804

MR ARNDT: No objection from us.

PN1805

VICE PRESIDENT HATCHER: The ABI bundle of documents will be marked exhibit 40.

EXHIBIT #40 ABI BUNDLE OF DOCUMENTS

PN1806

VICE PRESIDENT HATCHER: Is that all the evidence from your side, Mr Arndt?

PN1807

MR ARNDT: It is, your Honour.

PN1808

VICE PRESIDENT HATCHER: All right. So let's have a discussion about how to finish today. Is it appropriate we take an early lunch and then resume for submissions at 1.30?

*** RYAN LEWIS KEVELIGHAN RXN MR ARNDT

PN1809

MR CLARKE: Could I ask for maybe a little longer than that, maybe 1.45, your Honour?

PN1810

VICE PRESIDENT HATCHER: All right. 1.45. How long will you take, Mr Clarke?

PN1811

MR CLARKE: A little under an hour, I think, sir.

PN1812

VICE PRESIDENT HATCHER: All right, we'll do that. 1.45. We'll adjourn until then.

PN1813

MR CLARKE: Thank you.

LUNCHEON ADJOURNMENT [12.42 PM]

RESUMED [1.47 PM]

PN1814

THE ASSOCIATE: Hello everyone. Can I please just confirm I've got each of the members of the Full Bench, Vice President Hatcher, can you hear me?

PN1815

VICE PRESIDENT HATCHER: Yes.

PN1816

THE ASSOCIATE: Deputy President Clancy?

PN1817

DEPUTY PRESIDENT CLANCY: Yes.

PN1818

THE ASSOCIATE: Deputy President Dean?

PN1819

DEPUTY PRESIDENT DEAN: Yes, thanks.

PN1820

THE ASSOCIATE: Okay. There we go, thank you. Commissioner Spencer?

PN1821

DEPUTY PRESIDENT SPENCER: Yes.

PN1822

THE ASSOCIATE: Thank you. And Commissioner Lee?

PN1823

DEPUTY PRESIDENT LEE: Yes.

PN1824

THE ASSOCIATE: Thank you very much. This Commission is now resumed.

PN1825

VICE PRESIDENT HATCHER: Right, Mr Clarke?

PN1826

MR CLARKE: Yes. Thank you. Thank you, your Honour. Now, in addition to our outline of submission I don't know whether you want to have that marked at all?

PN1827

VICE PRESIDENT HATCHER: No.

PN1828

MR CLARKE: Identified. We also rely on the background information document we prepared on the 28 April as a submission. We rely on that as a submission in aid of the point that the awards that we seek to vary do actually apply to people.

PN1829

VICE PRESIDENT HATCHER: Yes.

PN1830

MR CLARKE: So you have our outline. Well, it was supposed to be an outline. It was reasonably comprehensive in the end I think.

PN1831

VICE PRESIDENT HATCHER: Mm.

PN1832

MR CLARKE: We say that the entitlements that we're seeking are necessary for a fair and relevant safety net. If we can rewind back to 2014 to what's often referred to as a preliminary issues decision. That's 2014, FWCFB - I've written 1888 but I reckon it was 1788 - never mind. You know it well. The Full Bench relevantly said at paragraphs 33 and 34 -

PN1833

'There's a degree of tension between some of the section 134(1) considerations being the Modern Award objective considerations. The Commission's task is to balance the various 134(1) considerations and ensure that Modern Awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in section 134(1) and the diversity in the characteristics of the employers and employees covered by different Modern Awards means that the application of the Modern Awards objective may result in different outcomes between different Modern Awards.

PN1834

Given the broadly expressed nature of the Modern Awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular Modern Award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations and permutations of provisions may meet the Modern Awards objective.'

PN1835

So there's more than one way to skin a cat. And that decision went on to say at paragraph 36 that what is necessary in a particular case is a value judgment based on an assessment of the considerations in section 134(1) having regard to the submissions and the evidence directed to those considerations - a value judgment.

PN1836

Well, you bet it is. Are these entitlements necessary to achieve in fair and relevant safety net? In terms of fairness to employers and employees and relevance in the sense that it's suited to contemporary circumstances that accords with community standards.

PN1837

Now, a number of applications have been filed in relation to the existing Schedule X entitlements in these Awards of preserving them until this proceeding is determined. Might I just ask? Are those applications actually before this Bench?

PN1838

VICE PRESIDENT HATCHER: No.

PN1839

MR CLARKE: Right. Well, perhaps I won't address that. Did I mention that to the Bench yesterday, I believe?

PN1840

VICE PRESIDENT HATCHER: Yes, you did. Well, no they haven't been allocated to this Bench yet and it's probably likely they will be allocated to the pre-existing Bench. But the answer is I don't know at this stage.

PN1841

MR CLARKE: Okay. All right. Well, all I say about that now then is that those entitlements certainly weren't controversial at the time they were introduced and we've sought a brief extension. We haven't sat on our hands obviously in the past few months in relation to trying to get the Pandemic leave rights of these workers resolved. And, in any event, even if it isn't squarely before you, I'd suggest that an extension of the proceedings of those entitlements is within the ambit of what we've already proposed, given the first order of the draft determination or, indeed, in the final outcome if you make a different value judgment to which we have.

PN1842

Now, the decision in relation to the matter, the decision which established those entitlements is [2020] FWCFB 1837, stands for the following relevant propositions at least. We would say that these Awards need some intervention to deal with leave entitlements associated with the COVID-19 Pandemic.

PN1843

Secondly, that the entitlements established by that decision do not preclude more being done, given the context disclosed in paragraphs 52 of 58 of that decision, a summary of which is we said by all means do the unpaid leave now but we urgently want to do paid leave to on multiple occasions. And instead of the Bench saying, 'Well, no you can't. We've decided what's necessary and it's over. It's finished.' They could have said that but they didn't because there's more than one way to skin a cat. They said, 'Let's convene a conference about those issues.' And so we did and the rest is history and here we are today - finally.

PN1844

Thirdly, that the personal leave as expressed in the National Employment Standards does not apply to all employees and does not provide a right to leave when self-isolating in the absence of any illness.

PN1845

Fourthly, that the absence of leave rights puts the employee in a position of choosing between work and public health. Fifthly, that the unfair dismissal provisions don't extend to all workers. Well, you probably don't need to read the decision to figure that one out. And, finally, that the protection against unfair dismissal or protection against unlawful dismissal for a temporary illness or injury doesn't apply - to people who are self-isolating but are not unwell.

PN1846

We say that the entitlements that we propose are no less effective at closing the gaps that were identified and those that the Bench proposed. The things that weren't fair and I need to - need I remind the Bench that those gaps will open up by default again on Wednesday of next week.

PN1847

And, further, it stands to reason that a paid entitlement will better address the incentive issue dealt with by the Full Bench in that decision and assist the national economy by reducing the spread of the virus. You had evidence, specifically about that from Professor MacIntyre this morning, including based on research and health care settings relevant to these applications.

PN1848

What we bring to the Full Bench is a better solution supported by cogent argument and evidence not advanced in the previous matter. Firstly, in support of our claim that what we're seeking is relevant in the sense that I have described it a moment ago. Well, we say that large parts of the workforce already have it.

PN1849

Now, that's not just because Mr Van Emmerik was paid for self-isolation. And it's not just because Mr Gold told us that anybody who works at Australian Unity might be paid for self-isolation like Ms Dryden was, or for illness as well if they are a casual. And it's not just because Mr Wannop was being paid by one of his employers when he was isolating. And it's not just because Ms Cudmore paid her employees when the situation of isolation actually arose as a practical matter. And it's not just because Ms Van Heereden's organisation paid the workers when the practical situation of isolation actually arose. And it's not just because Mr Kevlyn's organisation actually paid them - when the practical situation arose. It's not just because of those examples.

PN1850

It's because most employees in the health and community services sectors in the country have some access to some form of paid special leave in association with a requirement to self-isolate and that's detailed extensively in the annexures to our outline.

PN1851

VICE PRESIDENT HATCHER: Mr Clarke, what's the position in the public hospital system?

PN1852

MR CLARKE: Public hospital - - -

PN1853

VICE PRESIDENT HATCHER: The State Public Hospital systems.

PN1854

MR CLARKE: Yes. The State Public Hospital systems are covered by a combination of ministerial directives and, in some States, I think, there's still the operation of the State system.

PN1855

VICE PRESIDENT HATCHER: Yes. But do they - - -

PN1856

MR CLARKE: Industrial relation system.

PN1857

VICE PRESIDENT HATCHER: Do they have any provision for like in special leave to cover these circumstances?

PN1858

MR CLARKE: Yes, they do. Yes, they do. And in all candour, your Honour, there are differences between the States and Territories in the amount of leave. And in the additional pre-requisites that apply for casual employees to access them.

PN1859

But, in any event, you know there's your community standard if representative democracy still counts for anything in any event. So there's a gaping unfair chasm between the haves and the have-nots in this regard. And there could be nothing more relevant for an industrial tribunal to do for award-dependent workers than supporting their living standards when they're affected by the most significant health incident in a lifetime.

PN1860

Now, as to fairness we say that this is fair because there is an elevated risk in these workplaces and in these workplace settings and in association with the work. We say it's necessary to support these workers and these workplaces in light of that. And we say the risk works in different directions. The workers might be exposed or come into close contact through their clients or patients. The workers might spread it to other workers or clients or patients who might spread it to other clients or patients, and so it goes on.

PN1861

When you appreciate as the evidence demonstrates you must that in any of the clients and patients and some of the workers and their families are recognised as being in vulnerable groups, then the fact that it's possible that the first contact from the virus comes from outside the workplace doesn't detract from the merit of the entitlement in fairness and relevance.

PN1862

Why? Well, apart from the obvious public health consequences, this is not a case about fault. It is a case about inherent risk and the fair allocation of that risk. An allocation that some of the employers you've heard from this morning have altered to their workers' benefit weren't actually and practically funded by it.

PN1863

If I take you back to our outline? It's paragraph 18. This nobody's fault that it sometimes rains on construction sites. The construction workers are still paid when it rains, and they can't work. It's nobody's fault that a storm interrupts a grape harvest, but the workers still get some pay because, as your decision alluded to in that matter, vice President, it's not fair to just stand them down without pay.

PN1864

Well, going back to sick leave, in its purest form it's nobody's fault that they sometimes get sick and yet they get paid. It's not a novel concept in industrial relations. Before I take you through the evidence in detail as it relates to our contentions, can I firstly deal with one aspect of Professor MacIntyre's report? Professor MacIntyre's report - - -

PN1865

VICE PRESIDENT HATCHER: (Indistinct)

ASIDES [2.02 PM]

PN1866

THE ASSOCIATE: I have just placed her on mute.

PN1867

MR CLARKE: Yes. Okay, that's all right. Yes. Some aspects of Professor MacIntyre's report, it states squarely that the average time before seeking medical care for COVID-19 is one week because initial symptoms are mild. She states the highest infectiousness is in the two days prior to symptoms developing and on the first day of symptoms. And she states that it's also transmissible in people who never develop symptoms. She also explains how this virus is spread both on surfaces and through the air, among other methods, including fomites which she explained this morning.

PN1868

Now, I just ask you to let those uncontested facts sink in and please bear them in mind as I take you through some of the evidence in this matter. And we say we've made good on some of the key factual issues from our evidence. And I can give you an overview. It's not exhaustive. Firstly, the point that there is work performed under these awards that involves close physical contact. Now I don't know how long you want me to take on this, your Honour, but I can take you through every single paragraph reference in the evidence.

PN1869

VICE PRESIDENT HATCHER: Yes.

PN1870

MR CLARKE: Or I can just tell you what the points are.

PN1871

VICE PRESIDENT HATCHER: Just tell us broadly what the points are.

PN1872

MR CLARKE: Okay. So firstly - - -

PN1873

VICE PRESIDENT HATCHER: I mean I don't think we need persuading, for example, that paramedics and hospital workers and aged care workers come into close contact and home care workers come into close contact with vulnerable people but perhaps some of the other groups might be have elaboration.

PN1874

MR CLARKE: Well, you heard that from Mr Cudmore this morning, too, and there was evidence from Ms Humphreys, Ms Anderson, Ms Madden and Ms Potter in cross-examination about their inability to practise social distancing in farming - pharmacy. Sorry - that's thrown me a little bit. And the evidence in relation to that for the Supported Employment Services Award was uncontested from Ms Wilson - uncontested in relation to Mr Lazinski's evidence for the Health Professionals and Support Services Award. The risks in relation to the Aboriginal Community Control Health Centres workers were addressed in Professor MacIntyre's report. And the other scientific witness, Mr McLean wasn't cross-examined at all and paragraphs one and two of his statements deal with the risks to health care workers more broadly before he extends into a specific detail relating to paramedics.

PN1875

Secondly, the workers covered by these awards coming into contact with people at increased risk and serious illness. Thirdly, that these workers perform work that is likely to put them into contact with people who may need to self-isolate. Fourthly, that these workers are at an increased risk of coming into contact with people who have the virus. Fifthly, that these workers are more likely to be exposed to COVID-19. Sixthly, that the workers are more likely to spread COVID-19.

PN1876

Seventh, that there's an incentive to work when required to self-isolate. Professor MacIntyre added to that in her evidence this morning. Ms Allenson also acknowledged it and she said she thought that workers should be paid. Eighth, that some of these workers are low paid and I will refer you also to what Ms Allenson had to say about that this morning.

PN1877

Ninth, that an entitlement like this will assist these workers to maintain their living standards. Tenth, that some of these workers have no or insufficient entitlements to draw on in the circumstances. Also, evidence of Ms Allenson in relation to that and to the point that some of these workers are subsisting on personal interest free loans from their colleagues.

PN1878

Eleventh, that some of these workers work with their clients or patients at multiple locations and/or from multiple employers. And the expert scientific evidence, both Mr McLean - uncontested - and Professor MacIntyre makes it plain how these risk present in those workplace sittings in a manner that's consistent with the lay worker's descriptions of those experiences.

PN1879

VICE PRESIDENT HATCHER: Mr Clarke, can I just ask you a few questions? Just pausing there?

PN1880

MR CLARKE: Yes.

PN1881

VICE PRESIDENT HATCHER: I've got some of these questions based on propositions advanced by the respondents. Firstly, would it be accepted that a person who catches COVID while performing their duties would be covered by workers' compensation?

PN1882

MR CLARKE: They would be - well, they are covered by workers' compensation. They may choose to make a claim for workers' compensation. It may or not be accepted - - -

PN1883

VICE PRESIDENT HATCHER: Right.

PN1884

MR CLARKE: - - -but there's no getting around the fact that if the employer accepts that the infection came from the workplace there would be a workplace, there would be an entitlement in relation to that which would be at varying levels I think. The highest, I think, it's about 95 per cent in Victoria. I'm not sure that it's full income replacement anywhere in Australia. I'm not sure about that. I'm not saying it's not. I'm not sure. That's the best that I can do to respond to that question but I don't think that - - -

PN1885

VICE PRESIDENT HATCHER: Right. The second question is for persons to either catch COVID or are required to go into quarantine.

PN1886

MR CLARKE: Mm.

PN1887

VICE PRESIDENT HATCHER: For reasons not connected with the workplace, for example, they attended a party and it turns out somebody there was exposed to somebody else who had COVID. What distinctions employers under these awards as distinct from any other employers? That is while that class of persons with these (indistinct) have to provide, have to have a leave entitlement that no other employer would have?

PN1888

MR CLARKE: Well, because as the expert evidence has shown that these particular workplace settings are prone to outbreaks because of the nature of the work performed. So it's transmission - not just from patients to workers, but workers to patients - to patients, back to other patients through other workers and so forth. We're talking about the explosive exponential infection.

PN1889

VICE PRESIDENT HATCHER: So is the answer then that the paid leave is necessary to ensure that workers staying in quarantine has a (indistinct) that is it's a public health measure rather than something to do with the employment - employer/employment relationship?

PN1890

MR CLARKE: Well, it's both. Because it's protecting people, other workers and I don't want to downplay the situation that the vulnerable people with which these workers deal, but also protecting the other workers in those circumstances, given that that's - - -

PN1891

VICE PRESIDENT HATCHER: Well, I understand the general proposition of the need for workers to protect other workers and in people which they deal but I'm trying to work out in that respect where the source of it is outside the workplace - - -

PN1892

MR CLARKE: Mm.

PN1893

VICE PRESIDENT HATCHER: - - -how you provide these awards to different employers and employees covered by any other award. For example, the Restaurant Award, or the Hospitality Award.

PN1894

MR CLARKE: Yes. It's because of the nature of the interactions which we say creates a risk to other workers and other people on the employer's premises.

PN1895

VICE PRESIDENT HATCHER: Right.

PN1896

MR CLARKE: That they include vulnerable people.

PN1897

VICE PRESIDENT HATCHER: Right then, thank you.

PN1898

MR CLARKE: Now, if I can just come to the cross-examination of our lay witnesses attempting to deduce as I have what the assertions that were sought to be made there. Well, there weren't any 'gotcha' moments there were there? Much of what the cross-examination achieved, we'd say, in fact assisted our case. Contrary to the assertion that these workers could just work safely remotely - we heard from Professor Willcock. We learned that he couldn't do the whole of his job from home and that some patients with complex conditions that have poorer outcomes if they're not seen face to face. We heard from Ms Racciatti that she couldn't actually do any of her job at home.

PN1899

Contrary to the assertion that policies solve everything we heard from Mr Wannop, Mr Strudewicke and Ms Humphreys about the impracticability of observing them, including because they're not in a position to control the behaviour of impaired or disabled clients or Mr Strudewicke who was never given the instruction which, apparently, exists to not carry out home visits without personal protected equipment.

PN1900

We heard from Ms Lamprey, from the private hospital that's already gone through an outbreak, that she doesn't get a mask in her work that involves her going into every ward in the hospital, including interacting with patients who are subsequently suspected of having COVID-19. In her own words, 'It got a bit too complacent after they'd already had an outbreak.'

PN1901

And, of course, Dr Cortis's report speaks for itself on those issues. Professor MacIntyre gave evidence about this in her report in cross-examination and in re-examination about the hierarchy of control and its effectiveness.

PN1902

Contrary to the assertion that pharmacies are infection-control fortresses, we heard from Ms Anderson that as at the 31 March and the graphs exhibited with the employer materials will allow you to infer what the likely state of public awareness was at around the 30th or 31 March. Her evidence was that her pharmacy had a bottle of sanitiser and no social distancing markings and it was hard to keep up with the cleaning. She stood two feet away from people while they told her about their sore throats and she escorted them around the store.

PN1903

We heard from Ms Blacker that her pharmacy she was only provided with masks at the 'height of it' - whatever that means. Although, there was a webinar that she could watch about it and she also said that it was harder to social distance at work than outside of work.

PN1904

Similarly, we heard from Ms Potter that customers don't abide by social distancing at all in a pharmacy where she works. And I should digress - we heard some instructive evidence from Ms Gigg about her decision-making process around whether she would front up to work if she had COVID-19 symptoms. And Professor MacIntyre offered her comment on the situation of the 15 to 30 minute sessions with continuous positive airway pressure machine. And, of course, contrary to the assertion that pharmacy workers engage in high risk behaviours outside their workplace we learned that, well some of them go to the supermarket.

PN1905

The principal attacks on our evidence, is - 'Well the Pandemic's not really that bad any more. The risk is less. It's not going to get worse. Don't worry about it. It's over.' And that was advanced in the submissions of AFEI and the AiGroup. I think Professor MacIntyre comprehensively put that to bed, both in her report and this morning.

PN1906

The idea that some workers covered by the Awards are not at risk or some at less risk than others - well, nobody was cross-examined about that - and Professor MacIntyre explains that a worker to worker transmission and worker to client, and client to worker transmission, and you've also got, as I said, Mr McLean at paragraphs one and two, who wasn't called at all.

PN1907

The idea that there's no evidence that employees in these health sectors - health and community sectors have got it - more than the general population it's advanced by AFEI and ACI. Well, that was, again, rejected by Professor MacIntyre comprehensively numerous times this morning. I think she'd still give the same answer if you wore a different coloured tie. Or, you know, 'it's probably their fault if they get it outside the workplace and so we shouldn't have to pay.'

PN1908

Well, there's no evidence that these people are careless and to the contrary, Ms Racciatti gave evidence of her professional obligations outside the workplace. But as I said before it's not about fault - sick leave's not about fault.

PN1909

Or the idea that there's no greater risk that an employee working in a - you know - community pharmacy would come in close contact with a person who is COVID-19 positive and any other workers of the Pharmacy Guild assert without any evidence. Well, you've heard about the workplace settings and levels of activity and the range of tasks, the number of people in stores, the nature of the tasks, advice given by doctors not to work in pharmacies. And you've heard and read about what Professor MacIntyre says about all of that.

PN1910

So what's the principal purpose of the employers' evidence in this proceeding? Well, it's expensive - yes, it costs money. But as the Full Bench decision - the prior Full Bench decision in relation to the (indistinct) Community Health Disability Services Award - I hope I got that right - I'm sorry - in 2019, FWCFB 6067 shows. That's paragraphs 133 to 136. The issue of cost is certainly not determinative and the evidence shows that like - you know - what - whenever our opponent's witnesses actually did. You know? What did they actually do when confronted with a practical situation?

PN1911

Ms Cudmore went as far as to say that it felt good to be paying these people. Ms Allenson said that the payment of these workers was necessary and moral and that they ought to be looked after. Mr Corderoy's evidence was far from persuasive on this because on a cost question, because it didn't actually account for the $850 million in funding that's (indistinct) under the aged care sector in relation to this Pandemic.

PN1912

The other line of attack as well - you know - we reduce risk through policy and procedure. That's advanced by ACI and the AEI Group and private hospitals. Private hospitals, of course, in the invidious position of defending the application when one of the most well-known outbreaks involved a private hospital.

PN1913

Of course, you know, there's no expert evidence advanced by the opponents about any of this. As far as the evidence takes you is that these policies and procedures do reduce the risk but as you've heard already it's not a failsafe in terms of compliance or effectiveness.

PN1914

Silent transmission from asymptomatic people through surfaces and air - that's how this can work. The gravamen of Professor MacIntyre's evidence about this is that if you approach it on the basis that precautions are only taken when people are sick you fail. And as Ms Allenson acknowledges, some of these policies rely on what people actually tell you, and she acknowledges that there are incentives applied.

PN1915

The other line of attack, you know, without a witness to support it, there's less risk for pharmacy workers because of hygiene requirements and lower amounts of close contact. Well, the only actual evidence about this rather than assertion was that from the workers and that was that there was a range of hygiene practises, not all of them exemplary and on the evidence that there's high traffic, close contact and a risk of transmission greater than in the general community.

PN1916

Now in terms of some of the legal issues that are advanced against our claims. Well, firstly, it's said that it's retrospective by AFEI. It's not our intention to mark it retrospective. If there's another way to write it to make it clear that's fine. We're not seeking to say that people who have already utilised the unpaid leave should be back paid in paid leave and if there's a draft and issue to be resolved we're open to having that discussion that would suggest that if we ever get to that - the appropriate point to get to that would be after some provisional view on the general merit of being expressed by the Bench.

PN1917

The other proposition advanced by AFEI is, 'Look, this is actually - it's got nothing to do with leave. It's an indemnity scheme.' I've tried to get my head around that - I really have - both clauses say that they provide people with leave and I don't - I'm not able to take it any further than to say that these clauses that give people leave are about giving people leave.

PN1918

The idea that workers' compensation is available for people who get COVID-19 at work - yes, that's true if you prove it. It's also said that that's double-dipping but it's not double-dipping. It's possible to utilise this entitlement without making a WorkCover claim for less than full income replacement. And the benefit of that for employers is that the absence of claims - the claims aren't made through the policy. It's not going to ratch it up - the premiums is it?

PN1919

It's also said that we're giving paid leave to people who are not medically unfit to work versus unpaid leave when they're medically fit to work. Again, it might be an issue with the way we've expressed the order, the ambit of what we seek. It was approached on the basis that there would be workers who could not work, who could not do their duties when they were required to self-isolate because of the nature of the work that they perform and there was some support of that in the evidence. But, ultimately I'd suggest that that complaint is not a basis for the rejection of the claim in its entirety.

PN1920

And the other assertion is that there's no gap to be filled and what's necessary to be done has been done and that's advanced by ACCI, the Pharmacy Guild as well. So what's necessary to be done has been done. Well, as I say, that's all falling away next Wednesday, unless something else happened and this is all about trying to make something else happen. And I come back to the preliminary issues decision. There's more than one way to skin a cat and you assess the question on the basis of the material that's available to you and the arguments that you've advanced and there can be differences. This is new material. This is a different case. This is a better solution.

PN1921

And it's also asserted by the Pharmacy Guild that the second element of our claim actually prevents people from accessing their National Employment Standard entitlements to personal leave. I just pause for a moment to observe that paragraph four of the Pharmacy Guild submissions says words to the effect that we're the Pharmacy Guild and we're generally opposed to paid absences for anything other than what already exists.

PN1922

Well a claim doesn't say - again, it's an issue, you know, if you like about the way that the clause is drafted from their perspective but I think the clause quite clearly indicates that an employer cannot be required - an employer cannot require the worker to exhaust their personal leave first. It doesn't say that the employee cannot use their personal leave. It says that the employer cannot require them to use their personal leave first, and to my reading of the provision of the National Employment Standards there's no difficulty with that at all.

PN1923

It said that we can't quantify just how much more resilient this would make the health system. No, we can't measure that piece of string. We can't. We can't put an algorithm on it but it's a pretty important issue. And in any event, you know, if we're going to talk about quantifying things precisely - I just come back to the issue of the way costs was dealt with.

PN1924

VICE PRESIDENT HATCHER: Mr Clarke, can I just interrupt you again there?

PN1925

MR CLARKE: Mm.

PN1926

VICE PRESIDENT HATCHER: I mean this application is brought, in effect, as an emergency response to the current Pandemic and therefore, presumably, has to be assessed in light of the circumstances prevailing at the current time. But I'm wondering if Professor MacIntyre's evidence in so far as health workers is concerned is pointing to a level of this which is not necessarily associated with the current circumstances that is, as it were, a permanent risk. That is I thought the effect of her evidence, going back on a number of cycles of Pandemics and various 'flu and the like is that health workers are at permanently heightened risk of catching illness at work. So there's some of the - to the extent that's true that would require a permanent solution, not necessarily one that prevails as to the circumstances of the Pandemic as we face it today. What do you say to - - -

PN1927

MR CLARKE: Look, I think the evidence of the professor was that as she assessed the situation in May and, again, in her updated evidence this morning she remained of the view that there would be - you know - that there is still a level of activity in Australia. You would be aware of the escalating situation in Victoria and that there were the intermittent epidemic periods and outbreaks for the period that she felt confident, expressing a view about in her report.

PN1928

Now, those things may change. We go to - you know - there were some - in our outline we go to some historical award revisions associated with other infectious disease situations in the health sector and those provisions existed for a time but didn't survive forever.

PN1929

Our claim today is to address the COVID-19 situation on the basis of evidence about COVID-19.

PN1930

VICE PRESIDENT HATCHER: All right. Thank you.

PN1931

MR CLARKE: There's also the assertion that workers can take personal leave if a doctor requires you to stay at home but you're not sick. Now, having regard to section 97(a) of the Act that can't be right. I don't want to criticise employers who have allowed employees to use sick leave when they're not sick but there is a real issue as to whether it's permissible for them to run down their sick leave balances when they are not actually sick. Sometimes well-intentioned things can have foul consequences.

PN1932

VICE PRESIDENT HATCHER: Quite. An employer who does that runs the risk, that is, that some time down the track an employee will just say, "Well, it was not personal leave within the meaning of the Act and it could not be taken from my leave balance."

PN1933

MR CLARKE: Yes, that's right. That, I think, plays into the simple and easy to understand criterion of section 134. All of those criteria were addressed in our written outline.

PN1934

It is also asserted that casuals are paid for their leave entitlements in advance. I hate to be sort of pedantic about it, but you can't possibly have an advance for an entitlement that doesn't exist yet. That's all I say about that.

PN1935

To the extent that it's said that there's a difficulty where there are multiple employers, well, it's no more a difficulty than it is in relation to other leave entitlements. If I wanted to go on a holiday, my boss would say "No". I mean if I wanted to go on a holiday and I had more than one job, I would probably take leave from both jobs and I would get paid by both employers. It doesn't strike me as a complexity, to be perfectly frank.

PN1936

It is also said that there are other awards where people can't work if they are required to self-isolate. That might be right, but I am not advancing a case about any of those awards, I'm advancing a case about these awards based on specific evidence about the nature of the work and the nature of the risk in those settings.

PN1937

It is also said that there's occupational health and safety laws and that means that the employer needs to make things safe so the Commission shouldn't do this. We think that's a largely irrelevant criticism. The most that can be said is that even if employers do all that is reasonably practicable to do to eliminate or reduce the risk, this will still be high risk work and we would say Professor MacIntyre's evidence about that this morning confirms this.

PN1938

It is also asserted that making it less likely to violate self-isolation is not an appropriate basis for variation. Well, you don't need a very long memory to see that that's not correct according to a five-member Full Bench of this Commission.

PN1939

I think that was all I had from our perspective, unless I get a message in the next couple of minutes telling me off.

PN1940

VICE PRESIDENT HATCHER: Just a question about the question of the cost of the claim. On one view, it might be said that if the pandemic has largely dissipated then (indistinct) that, as the evidence makes clear, the pandemic has manifested itself in the health care sector (indistinct) in particular institutions, and that means, for example, that if you get an aged care facility which has an outbreak, it basically has to shut down and then, under your claim, it would then be paying basically indefinite leave to all its employees until the situation had resolved. Is that right? If you get an outbreak, everybody has to go home in quarantine and it may be a very long period. That could be just a ruinous situation.

PN1941

MR CLARKE: When there's a set number of days of leave for each occasion when a requirement to self-isolate or quarantine, whatever the right word is, 14 days per occasion, and so if the place told everybody they had to self-isolate and they didn't reopen again for three weeks, the leave would still only be two weeks in that situation, except in relation to any of the employees who had in fact contracted the disease.

PN1942

In terms of it being potentially ruinous, there's an element of speculation about all of that and we need to, in a claim like this, put our best case forward. We have done that and it doesn't preclude some calibration of limits around what we have proposed. It's not an all or nothing proposition in the Fair Work Commission. It's not a commercial litigation case about a contract, it's a social policy case about what should be happening in workplaces and what's fair and relevant and reasonable.

PN1943

VICE PRESIDENT HATCHER: I suppose in that scenario, there might be an interaction with the stand down provisions in the Act. That is, one response of the employer in that situation might simply be to stand everyone down.

PN1944

MR CLARKE: Yes, that might be one response of the employer, but if you go back to the casual minimum engagement deal, there was some potential unfairness seen in standing people down for four hours. I think there's some potential unfairness in leaving these people without an income for the entirety of that two-week period or longer.

PN1945

VICE PRESIDENT HATCHER: Yes, all right. Thank you, Mr Clarke. Ms Moussa, are you next?

PN1946

MS MOUSSA: Yes, your Honour. My submissions will be very brief. We support and adopt the submissions made overall by the ACTU in relation to how the proposed variation meets the requirements of the Act, the modern awards objective, but also in response to the employer, broad submissions in relation to the applications before the Commission.

PN1947

We represent Mr Alan Stokes, who has made an application to vary the Ambulance and Patient Transport Industry Award and the amended draft determination that we filed on 18 May on its terms mirrors the draft determination that was filed by the ACTU, I think today, except for that note that specifically applies to two awards that are not relevant to the Ambulance Award. Evidence that was filed in support of our application, or Mr Stokes' application, included the statements of Mr Stokes and Mr Hill, both of whom were not required for cross-examination and whose evidence remains uncontested.

PN1948

While we note that there was other evidence filed in these proceedings in support of the proposed amendments to the Ambulance Award, including the statements of Mr McLean and Ms Heifer, we note that the evidence of Mr McLean is consistent with the evidence filed by Mr Hill and Mr Stokes. In particular, however, the evidence of Mr Hill and Mr Stokes focuses on the nature of the work performed by employees who are award-reliant in this industry, namely those who are engaged in the non-emergency patient transport industry, which I will refer to from hereon in as the NEPT industry, and we say, at paragraph 4 of our outline of submissions, we confirm the continued relevance of the Ambulance Award for this part of the industry and the information note that we filed earlier on in this proceedings in relation to the ambulance industry nationally forms part of the statement of Mr Hill and we continue to rely on that information note as well.

PN1949

I might just note for the Commission's reference, while there was obviously broad opposition to the variations proposed by the unions in this proceeding, there were no industry-specific submissions made in relation to the Ambulance Award and, on this basis, we would say that the Commission is left with no other option but to make the proposed variation sought by Mr Stokes and the other unions in relation to the Ambulance Award.

PN1950

Notwithstanding that, your Honour, I can take the Bench to the specific evidence of both Mr Hill and Mr Stokes going to the nature of the work performed by paramedics and the reasons why we say the proposed variation is necessary, but I note that when my colleague, Mr Clarke, was earlier giving his submissions, you indicated that there was no need to go to that evidence, but I can if it will assist the Commission.

PN1951

VICE PRESIDENT HATCHER: Ms Moussa, just for my part, can you just remind me what type of operations in a practical sense are covered by the award?

PN1952

MS MOUSSA: Almost 50 per cent, just under - it's about 48 per cent - of the national ambulance industry is award-reliant. Annexure D to exhibit 28 is the background note, the information note that we prepared, and that confirms that up to 48 per cent of the industry continues to rely on the award, and that is mainly people engaged in the non-emergency patient transport sector.

PN1953

So, the emergency patient transport sector is largely - those services are largely provided by public sector authorities in different states whose employment is either governed by state awards or enterprise agreements, but there is a significant number, in particular in Victoria, of employees whose employment is regulated by the award. That includes those whose terms and conditions are entirely award-reliant or where enterprise agreements incorporate the award by reference within the agreement itself.

PN1954

In Victoria, we have estimated there's approximately 600 to 700 employees who are award-reliant who currently don't have any access to paid leave entitlements. Most public sector employers, we understand, certainly in Victoria, it's the case that there's a paid leave entitlement provided for employees who are required to self-isolate if they come into contact with a suspected case or otherwise need to self-isolate, but that's not the case for a number of people in the non-emergency patient transport sector.

PN1955

VICE PRESIDENT HATCHER: Thank you.

PN1956

MS MOUSSA: Your Honour, I might just, for completeness, take the Bench to the specific evidence that goes to the nature of the work performed by people covered by the Ambulance Award. Obviously, the risk of contracting COVID-19 or being required or forced to self-isolate on more than one occasion is a real risk for people covered by the Ambulance Award. Paragraphs 11 to 16 and 18 of Mr Hill's statement and 7 to 10 of Mr Stokes' statement confirm the exact nature of the work performed by people in this industry. That is both across the emergency sector and the non-emergency sector. In particular, we note the evidence given by the ACTU's witness, Professor MacIntyre, today and in her statement at page 3 where she spoke to the issue of paramedics being especially at risk because they are the first to see a patient before a diagnosis is made and are within a small enclosed space with the patient during transportation to hospital.

PN1957

VICE PRESIDENT HATCHER: That is not the type of paramedic that is, in a practical sense, covered by the award, is it? What you would call the frontline paramedics are, in practice, covered by various instruments applying the state instrumentalities?

PN1958

MS MOUSSA: That's correct, your Honour, although people in the non-emergency patient transport sector are still required to transport people who may already have been diagnosed with COVID-19 or are a suspected case of COVID-19. People in the non-emergency patient transport sector, in particular in Victoria, respond to what is described as code 4, 3 or 2 cases. And that's with people with low acuity type injuries. Those persons may have symptoms which are consistent with COVID-19. So, they are still in a cabin with that particular patient and either wearing the appropriate PPE or not, depending on the nature of the call and the information they're given to respond. They do primarily do inter-hospital transfers, but they do respond to this low acuity calls for assistance. So, they're still within proximity to a patient in the back of the vehicle.

PN1959

VICE PRESIDENT HATCHER: All right. Thank you. t

PN1960

MS MOUSSA: In addition, obviously the risk arises because of the location within which the work is performed. At paragraphs 12 to 13 of Mr Hill's statement confirms that despite the ability to take precautionary measures to avoid the risk, it's not possible because of the uncontrolled nature of the working environment. Again, we draw the Commissioner's attention to the evidence of Dr MacIntyre today, where she confirmed that SARS COVID 2 had more efficient virilisation than other viruses and can be found in the air up to 16 hours after aerosolisation, and that fact made it worse in closed areas or non-ventilated areas, which we say arises in ambulance patient transport vehicles.

PN1961

Obviously the risk of exposure to COVID-19 where precautionary measures can't be taken, because of inaccurate reporting. Like I said, paramedics or even ambulance workers in the non-emergency patient transport sector are called to cases and they don't have all the information on hand, so they might be responding to inaccurate reporting of the case and could be putting themselves at risk in that way. There's also issues with PPE use in the industry and access to sub-optimal PPE as well. In particular, within the non-emergency patient transport industry. I would refer the bench to paragraphs 19 of Mr Hill's statement and paragraphs 13 to 14 of Mr Stokes' statement, where he refers to the need to actually go out and buy his own masks because he didn't have access at work at one point in time to the masks.

PN1962

There's also the inability on some occasions for employees to not comply with PPE requirements, because of the nature of the response required. Again, that's for more emergency-based paramedics, or emergency services paramedics, who would be caught in that scenario. But I might note that - for the bench's information - that the award might cover - or could cover people nationally who work for aero-medical retrieval companies, private contractors, who have qualified paramedics on board but are not covered by enterprise agreement. So, the observations that are made in the evidence with respect to emergency service employees covered by agreements equally apply to those who might be covered by the award nationally, working for those types of organisations.

PN1963

There's also the issue about confusion about when to don the appropriate PPE and that can create a risk to contracting - being exposed to COVID-19. I refer to paragraph 20 of Mr Hill's statement in that regard and also the evidence given by Professor MacIntyre today, regarding the culture of ambulance workers which is rushing to assist an emergency and not perhaps in that circumstance donning the appropriate PPE. There's also the possibility of contracting COVID-19 via the inadequate cleaning of vehicles, which needs to occur on each occasion that a patient with COVID-19 is exposed. Sorry, or is transported.

PN1964

VICE PRESIDENT HATCHER: Ms Moussa, I don't think you need to recite the detail of what's in the statements. We can read those for ourselves.

PN1965

MS MOUSSA: No worries. Thank you, your Honour. So, like I said at the start of the submissions, we think that based on the evidence before the Commission it should be satisfied that the making of the variation we propose is necessary to achieve the modern award's objective and ensure that the ambulance award provides fair and relevant minimum safety net of terms and conditions of entitlement. We also reaffirm and support the submissions about the paid pandemic leave entitlement ensuring the health and resilience of the ambulance and patient transport industry, given the risk faced by workers within this industry. We note paragraphs 23 of Mr Hill's statement and 26 of our outline of submissions, where it's noted that the risk of having to self-isolate on more than one occasion is a real risk for people in this industry.

PN1966

At paragraph 26 of our outline we noted that as at 1 April 2020, 81 paramedics were in isolation, or unable to work because of self-isolation or other preventative measures. In this case those paramedics were provided with a paid leave entitlement by their employer, being Ambulance Victoria, but the fact that Ambulance Victoria provided the paid leave entitlement illustrates that the likelihood of having to quarantine or self-isolate is a real and immediate likelihood of risk and may occur frequently. Obviously those who are award-reliant don't have access to paid leave entitlements and they shouldn't be disadvantaged by the fact that they may also be required to self-isolate, but don't have access to a paid leave entitlement. We also want to just reaffirm that there is a real possibility, in particular within the ambulance industry, that workers, if they're not granted the paid leave entitlement, are likely to violate the self-isolation requirements. So, there is evidence at paragraph 20 of Mr Stokes' statement, and 30 of Mr Hill's statement, where employees have reported, and members have identified, feeling compelled to attend work, notwithstanding that they should be self-isolating.

PN1967

In relation to the specific modern award objective criteria, we again support and adopt the submissions made by the ACTU in relation to those matters, but we want to draw specific attention to section 134(1)(a), and the Commission's assessment of this criterion, when considering whether to make the variation in relation to the ambulance award. So, we agree with the ACTU's submission that the other groups relevant to the assessment of the living standards of award reliant workers is the rest of the ambulance industry. So, obviously that would be, in the case of award reliant employees, those who are engaged in the emergency sector. Those employees who have their employment covered by enterprise agreements or are employed by public sector authorities pursuant to state awards, or enterprise agreements, provide wages above the award minimum, or have otherwise been provided with paid pandemic leave entitlements. As a consequence, employees under the award are at a disadvantage when compared to employees within this sector of the industry, despite doing the same work as their colleagues. So, it's consistent with this situation for other healthcare workers in that regard.

PN1968

We've presented evidence before the Commission in support of our application that confirms that employees who are award reliant are low paid. See specifically paragraphs 8 to 10 and 25 to 30 of Mr Hill's statement, and paragraphs 16, 18, and 21 of Mr Stokes' statement. The needs of these low-paid workers is a relevant consideration for the Commission. We also note that in Victoria, in particular, in the non-emergency patient transport sector, providers of this service have had a significant drop in their core work as a result of COVID-19 overall, and that's because of the reduction of the movement between hospitals and other facilities, health facilities, of patients in that space. This has affected both casual employees, which represent almost half of the employees in the non-emergency patient transport industry in Victoria, and permanent employees as well. So, we would ask the Commission or submit that the needs of the low paid require a consideration of the potential exacerbation of the financial detriment that would befall this employees, where following a reduction in their overall workload they're then required to self-isolate or may contract the virus without access to paid leave entitlements.

PN1969

Like is the case with other health awards, many employees in the ambulance and patient transport industry within Victoria are already providing forms of paid pandemic leave, or special leave, and this includes some non-emergency patient transport providers. We submit that these forms of paid leave have now become part of the industry's safety net for the purposes of the modern award's objective. So, in circumstances where the broader industry has recognised the importance of providing such entitlements, those covered by the awards should not be left behind just because of the identity of the entity that employs them. So, if there are no further questions, your Honour, that concludes our brief submissions in support of the proposed variation.

PN1970

VICE PRESIDENT HATCHER: Thank you. So, Mr Arndt, are you next?

PN1971

MR ARNDT: Yes, your Honour.

PN1972

VICE PRESIDENT HATCHER: Go ahead.

PN1973

MR ARNDT: I'll commence with ACCI, ABI, and NSW Business Chambers submissions. I intend to say a few words at the end in relation to the aged care employers. ACCI, ABI, and NSW Business Chamber filed a submission on 17 June. We rely on that. It conveys our position as to the drafting of the cause, addresses the modern award's objective. It broadly addresses the merit basis of the application. I'm going to rely on that submission in respect of those aspects and I don't necessarily want to deal with them in any great detail. I should note that ACCI, ABI, and NSW Business Chamber don't support the applications as made in three awards, Aboriginal Community Controlled Health Services, Ambulance and Patient Transport Industry Award, and the Pharmacy Award, but I have not and I don't intend to make any specific observations in respect of those awards today.

PN1974

What I will do is I will limit my observations to the witness materials and I think I'll probably be quite brief in a relative sense at least. The witness material before the full bench, that we've heard over the last few days, there's been a significant number of lay statements, and, really, as the ACTU have put, in the form of testimonials. There's limits to what such evidence can do and perhaps limits to what cross-examination can illuminate from them. I'll also deal with the evidence of Dr Cortis and Professor MacIntyre. What I want to do is summarise the state of the evidence in to three propositions, which I say are relevant to the full bench's ultimate task of determining this matter. That determination has to decide whether granting the application is necessary to achieve the modern award's objective.

PN1975

Obviously, by way of emphasis, the assessment is whether the changes sought are necessary, not desirable. As was put by our witness, Ms Cudmore, it's not so much as to what might feel good, it's what's necessary within the framework of the Act. We say three general propositions fall from the evidence that we've heard over the last three days. Two days. It has not been made out, we say, that the existing safety net is insufficient, with respect to leave and/or payments available to the relevant workers. We say that the central premise of the application is not clearly made out in such a way that could justify it. And, lastly, and I think I'll put this in summary, the granting of the application would produce unfair safety net outcomes, or a safety net that would be inconsistent with a fair and relevant safety net.

PN1976

To my first point, as to the sufficiency of the existing safety net in respect of leave or payments to the relevant workers, we've put in our submission, I think it still holds true, based on the evidence that we've heard, I don't see that this is a case so much about leave as it is about payment. I haven't heard any real argument that an employer wouldn't be able to absent themselves from work in the situations we're talking about. Even the outlier examples, like Mr Warnup, who was indefinitely isolating, there doesn't really appear to be any issue with him being able to do that. Certainly we haven't heard any of that evidence. There was, and this is a more typical case, of Mr Van Emmerik, who had a brief absence, he did express a concern that he would face a sanction from his employer, because he was off work. We say, at least as today, those concerns would be remedied by schedule X, and the practical concern probably doesn't arise, as we haven't seen it arise at all in evidence as yet.

PN1977

The question then is, well, what should be paid and how much should be paid? Unpacking that question, obviously the ACTU, to my reading at least, seeks to do two thing: firstly, it seeks to protect employees from expending any of their existing paid entitlements. Secondly, it seeks to protect employees from going without pay, in the situation where they go on leave. Dealing with the first concept, and I think this is more of a theoretical concept, really, that if an employee - the ACTU say that the employee should not need to use existing paid leave entitlements in respect of COVID and that they should be able to rely on a new entitlement. My impression of the evidence is that primarily what we've seen is that the entitlement seems to be used by people who are showing symptoms of ill health, but not of COVID. We haven't seen a vast amount of evidence of COVID infected people. What we've seen, and from memory, I can remember Crowell, Dryden, Hein, of people that were unwell, that were sick, and therefore weren't able to go to work, and told not to come to work.

PN1978

We say, if those symptoms have turned out to be COVID, and that's a status which would be far more quickly identified now than it was at the time those statements were made, because of the increase in testing, we say that workers compensation would potentially apply. A number of other government - in certain jurisdictions - payments might apply. But if COVID wasn't detected, which is the statements and the witnesses that we heard mostly, in fact entirely, in these proceedings, we say that those absences are precisely what personal leave is for. And we say that the safety net caters for those people.

PN1979

VICE PRESIDENT HATCHER: Well, Mr Arndt, can I just ask you about that. If you have a sore throat, it wouldn't ordinarily disable you from performing work, but it becomes a suspected COVID symptom and you're directed to go into quarantine, do you say that's something to which you can take an entitlement to personal leave?

PN1980

MR ARNDT: I think it would depend on the context. Certainly - - -

PN1981

VICE PRESIDENT HATCHER: Perhaps I'll finish the question. That is the employee, but for the direction to go home, would come to work.

PN1982

MR ARNDT: Is that a factual question, or is it - - -

PN1983

VICE PRESIDENT HATCHER: Well, I mean, you're making the submission that somebody who's required to quarantine because of suspected symptoms, and it doesn't turn out to be COVID, would be entitled to access personal leave. That's why I'm raising it with you. Because it doesn't seem to be the case somebody who would otherwise be at work, but is required to go home by the employer, because of a government guideline, a direction, is necessarily entitled to take personal carer's leave. Of course, the other side of the coin is that if the employer decides to let them take personal carer's leave, it may turn out that the employer - there's a backlash against the employer, because the employee can later say, well, it can't have been personal carer's leave, because it doesn't apply in my entitlement.

PN1984

MR ARNDT: I think I would answer that question by going to the Act in section 97, which would say, you know, is the employee not fit for work because of personal illness or personal injury. I think in the context that we've heard about, and certainly the evidence that we've heard, the sore throat in the home care setting, or a sore throat in the residential aged care setting, I think would justify you to take personal carer's leave.

PN1985

VICE PRESIDENT HATCHER: Go on.

PN1986

MR ARNDT: Sorry, I missed that, Vice President. Did you tell me to go on?

PN1987

VICE PRESIDENT HATCHER: Yes. Go on. I mean, that's your answer, so go on.

PN1988

MR ARNDT: The scenario that the full bench is likely to be more interested in, and certainly the ACTU are more interested in, is a scenario where an employee is left without pay. Now, much of the evidence we've heard talked about the potential for that. The obvious exception that everyone needs to deal with is the idea of a casual, because a casual has no entitlement to paid leave, and therefore there's no real argument that, to the extent that a casual doesn't have this entitlement, or doesn't have an entitlement from somewhere else to leave, that they are going to go without pay, to the extent that they have to absent themselves. We've covered in our submissions the obvious fact that we say that the loading is paid in lieu therefore. We say, with respect, that courts and tribunals should be reticent to simply dismiss the fact that an employee has received a casual loading and payment in lieu of leave. And to simply dismiss that in this case would just ignore the fact the basis of the casual loading and the reason why it's paid.

PN1989

I should note at this point, Mr Kevlyn's evidence showed - I mean, there are parts of the health system that are structured - there are many parts of the health system, and we've seen much evidence in this case, that are structured to utilise the concept of casual employment. That's relevant and I'll come to that slightly later. Just keeping on the theme of casuals being potentially put out, Ms Racciatti gave some very interesting evidence on this. She had to isolate, she didn't get paid as a casual, but obviously she had given evidence she'd only taken one day of sick leave in the past 10 years. I will engage with what was self-described pedantry of Mr Clarke. Maybe this isn't pre-payment of leave, but at least you could not say Ms Racciatti had suffered loss, as being forced to isolate without leave. She had had the benefit of that long-standing payment in lieu of leave and she did and would have relied upon it at the time she took it.

PN1990

VICE PRESIDENT HATCHER: She may not in fact be a casual in the (indistinct) sense. She might find she's got entitlement accrued over 10 years. In which case she's got (indistinct).

PN1991

MR ARNDT: I believe her evidence was that she hadn't considered that but perhaps she will, after this case.

PN1992

VICE PRESIDENT HATCHER: She'll have (indistinct) if she does.

PN1993

MR ARNDT: Precisely. In terms of the evidence of people losing out on pay, I have to say, my observations of the witnesses and the statements of this case, it was quite mixed. Mr Strudewicke was isolated and he appeared to be paid for some of his roster, or the parts of his shift that he'd already been rostered on for, and (indistinct). Mr Van Emmerik was initially seen to be forced to take leave without pay and then he ended up being paid. Professor Willcock was isolated, but he worked from home, so he didn't have to take leave. And, of course, Ms Dryden received pay under an employer's policy and so did some of the employees who were employed by the witnesses called by the employers in this proceeding. I might mention at this point, even Mr Wannop, who had taken the decision to absent himself completely from work over an extended period of time, and indefinitely, he's in receipt of a Victorian Government employment benefit. He's in receipt of JobKeeper. And he is a casual.

PN1994

So, I think in assessing the evidence before it, the full bench needs to have regard to the fact that - it needs to be satisfied that there is a gap to be filled, not only in respect of leave, but an understanding of what is the gap in respect of what are the practical effects of COVID in an ongoing way, and most importantly, is the application, as it's argued, necessary to meet those effects. In our submission, it shouldn't be surprising that the position that the ACTU hasn't established a group of relevant workers who are required to go without pay, or at least haven't been able to bring much evidence of that regard, we say that because of what's already in the existing safety net, be it paid leave in the form of annual leave or personal carer's leave, certain entitlements coming from the government, obviously what's happening at the enterprise specific level, but I think most critically what's happening with the rate of infections with COVID in Australia. That's what I will come to later.

PN1995

In respect of the safety net, and this is all addressed in our written submissions, we have schedule X, personal carer's leave, annual leave, and also workers' compensation. In respect of the position of COVID in Australia, obviously things can change, and this is an extremely serious situation which Australia and the world has had to deal with, and continues to deal, and will continue to deal with, but on my reading of the Australian Government website, there's currently 16 people in Australia in hospital with COVID. The evidence, it's not in contest, that the community transmission is low. Things can always change, but it is a fact as of today that COVID is not widespread in Australia. To put an incredibly complex issue in glaringly simple terms, we say that the Fair Work Commission should have regard to the fact that the less COVID out there, the less infection rates, the less hospital rates, the less death rate, the less support for a proposition that effectively unlimited paid leave should be provided to a large group of employees.

PN1996

I might just address the issue of the incentivisation of getting people to stay away from work while sick. We've heard evidence of this from the witnesses. I think I heard one employee on the pharmacy side admit that they might come to work while sick. But certainly Ms Racciatti, Strudewicke, Humphreys, all acknowledge they wouldn't attend work if ill, and we say that the Fair Work Commission should accept this evidence. It was illuminated by Ms Allenson this morning. She gave evidence and I would tend to support the proposition that the idea that health workers need to be paid to stay away from work, and not infect their clients and their customers and those in their care, does seem to undercut the idea that these people - and what is clear on the evidence - that these people care about the people they care for, and the vulnerable and sick people that they provide care for.

PN1997

Just before I leave the point of paid leave, I just want to touch on the worker's compensation position. I believe in the last couple of days, Western Australia has updated its position and intend to make similar changes to those made in New South Wales in respect of worker's compensation. Basically to make worker's compensation claims more straightforward for health care workers. Contrary to the - it's actually the opposite, I believe, of what Mr Clarke said. It wouldn't be for the employee to prove that it was related to employment. In those jurisdictions, at least, it would be the opposite. It would be the employer to disprove that COVID had occurred in the workplace and that compensation should flow.

PN1998

We'll move on now to the second issue I want to address, which is that the central supporting premise of the application isn't made out in such a way as to justify the granting of the application. Much of the ACTU's submissions and the evidence today has been focused on the idea that there is an increased exposure of risk. To use, I guess, the argument of Professor MacIntyre, or at least the argument that her evidence is called in support of, that to the extent there's an increased exposure of risk, the granting of the claim is justified, I think it's really important to have an understanding of what Professor MacIntyre's view is. What her report says is that uncapped paid leave for people in quarantine or under treatment is a minimal requirement of all essential workers in the health sector, disability sector, and other sectors representing the testimonials that are being provided.

PN1999

I want to say two things about this. Firstly, the quantification of the increased risk. I appreciate Mr Clarke's comments that it is not required of the ACTU to precisely measure that string. Nonetheless, some understanding of what risks faced by the relevant workers need to be assessed, and need to be provided in evidence, and need to be determined by the Fair Work Commission in determining this case, we've heard a great deal of evidence of a whole range of different contexts of people's work that are covered by these applications. Different protections, different precautions, and it's not contested that increased precautions and increased infection controls do have benefits for the risks faced by the worker. Professor MacIntyre accepted this. While Professor MacIntyre was very strong in the view that there was an elevated level of risk, I'm not in any position to understand what her evidence suggested that elevated risk was.

PN2000

The professor gave some evidence this morning about ongoing research that her organisation is doing. Obviously we haven't had the benefit of reviewing that material. It's unpublished and apparently will be available to be reviewed in a matter of months. But from my understanding of her evidence this morning, there are some deficiencies in how that evidence was put this morning. I'm not aware of the sample size of what was being put. The evidence, as put by Professor MacIntyre, did suggest that there were variants of the increase of risk over the various states. My understanding and recollection was that the results of that material was that you were 20 times more likely to contract COVID as a health worker in Tasmania than you would be as a non-health worker. A lesser amount in Victoria and I think it was seemingly no difference in the other states.

PN2001

Now, it's incredibly dangerous to make any criticism of that, and so I do not make this as a criticism. She is qualified in the area and I am not. I just pose the question, I wonder what the utility of the proposition is that you are 20 times more likely in Tasmania to get COVID, as a health worker as opposed to someone else, when there's currently no active cases in that state. It may be that a proper assessment of that material is only possible after it's finalised, or after a longer period of time. That would be my observation at this point.

PN2002

VICE PRESIDENT HATCHER: Presumably that figure is (indistinct) in the sense that Tasmania had - obviously is a confined area and had a fairly small number, and we know that most of the cases emerged from three particular health institutions.

PN2003

MR ARNDT: This is the problem with an incredibly small data set. It appeared from what he professor was saying that material - I mean, it just did seem like it was heavily influenced by the idea of clusters or outbreaks. Certainly Tasmania has experienced clusters and outbreaks disproportionately to other states.

PN2004

VICE PRESIDENT HATCHER: That's right.

PN2005

MR ARNDT: Continue?

PN2006

VICE PRESIDENT HATCHER: Yes. I should just add this other question. It was also clear, wasn't it, that Professor MacIntyre's opinion about the risk was not just informed by statistics about this pandemic, but experienced with pandemics and infectious illnesses in general. That is, somebody in a health institution, or a closed environment, or dealing with sick people, in any form of infectious disease, has a high risk of getting the infection. I thought she quoted a number of previous incidences of that.

PN2007

MR ARNDT: I think that is a fair observation and categorisation of her evidence. It would beg the question as to whether this claim could have been brought earlier and whether it would have been justified pre-COVID in relation to those risks. Whether those risks are ordinary parts of working in the health system or whether they, as it seems to be put by the ACTU, there is something specific about COVID which justifies uncapped leave.

PN2008

VICE PRESIDENT HATCHER: Right.

PN2009

MR ARNDT: The question about risk, as I see it, isn't necessarily a question about increased risk, but what is the risk? We say that the full bench, to make the claim, would likely need to know what is the risk that a health worker in these awards would be infected or be required to quarantine, and whether this risk requires remedying with essentially what is uncapped leave. I haven't been able to identify any evidence before the full bench which would even attempt to quantifying the likelihood of if you are a health worker you will be required to isolate or potentially get COVID. What we do have is from Professor MacIntyre and Willcock, who gave evidence about low infection rates, low transmission rates, in terms of the important criteria of the ability to meet ventilator requirements. Professor MacIntyre acknowledged that we are very, very, very comfortably meeting ventilator requirements currently.

PN2010

Professor Willcock's evidence was interesting. He gave evidence about the risk faced in his hospital. He said working in his hospital was a safe environment. He described his work working in COVID clinics in Ryde, which was described as the epicentre of COVID in Australia. He acknowledged that that was a safe environment. He also stated it was his opinion that he considered that the risks faced by him were equivalent to a doctor working in the public health system. That evidence is suggestive of a safe system. Not a perfect system. Not an infallible system. But a safe system.

PN2011

Ms Racciatti also described taking precautions as a nurse in people's homes and creating a safe environment. Again, we saw a wide range of locations and types of work addressed in the various statement. Retail conditions, client homes, kitchens, offices, vehicles. Different policies applying and different PPE standards applying. It's an extraordinary difficult proposition to make an absolute finding in relation to any of this. Almost all of the witnesses acknowledged a requirement or practice to wear or use PPE, and we've put in to evidence a sample of the types of COVID-specific policies and precautions that have been rolled out in the last few months. In many respects, it's incorrect just to dismiss these policies as bits of paper and bureaucratic detail. On any assessment the world has changed in the last few months and in almost every sense work has changed.

PN2012

We've seen in the evidence, Mr Carlio identified increased safety precautions. Dr Willcock described the new conditions applying at the hospital, including visitor limits, temperature testing. Nicholas Gold spoke about the suite of documents that were introduced in to Australia. And obviously this was a common thread amongst the employer witnesses, Cudmore, Allenson, and (indistinct). Even Tina Lamprey, who had some initial concerns, or gave some concerning evidence about complacency in her workplace in relation to the following of protocol, indicated that she'd made a complaint and that the particular complaint, or the issue that had given rise to her complaint, was being addressed. We say that this evidence needs to be taken in to account in determining the risks faced by these workers and specifically whether the risk faced by these workers requires an alteration of the safety net in such a fundamental way.

PN2013

I'll briefly deal with Dr Cortis' evidence. We submit that that evidence needs to be treated with a great deal of caution and likely afforded very little weight. To the extent that one considers its conclusion, the full bench should have regard to all the limitations that were identified in cross-examination. It was only union members. It was conducted at the peak time of - I think Dr Cortis' words, when things were blowing up. It was based on the perceptions of anonymous respondents. There's no way of verifying or checking any of it. My particular concern is in relation to the conclusion, which states that the risks of these workers have increased massively. We say that that evidence is not sufficient to justify that conclusion and therefore the full bench should not have regard to that conclusion, or should not place weight upon it.

PN2014

I should just note, Ms Wilson wasn't cross-examined, on the basis that we say that her witness statement, for all intents and purposes, is a submission and therefore is probative of very little. That's all I need to say about that. Can I come - I've addressed the fact that the central premise behind the application probably isn't made out, at least not in a way that the full bench could proceed with any certainty to make the claims as sought. But even if it was, the premise would need to be made out in such a way as to justify the entitlements as claimed. The evidence makes no connection, either with respect to the scale, or particularly with the connection to work. Almost none of the evidence we've heard provided statements where employees were forced to isolate because of something that happened at their workplace, the workplace where, as has been put by the ACTU, the workers faced elevated risk.

PN2015

Much of the evidence simply disclosed that workers got sick.

PN2016

Crowell had a sore throat. So did Kathleen Dryden. Trudy Hein was ill. These were issues that didn't arise from their state as health workers. They're issues that all workers face and which are addressed by personal carer's leave. Ms Sebastian went on holiday. Obviously Mr Wannop had a pre-existing condition unconnected with his job. Ms Racciatti was exposed at work, but she was exposed because one of her colleague had a friend who came back from the UK. We then extended it out to Ms Racciatti's daughter, who also took out isolation because she lives with her mum and so on and who worked at the surgery, who knew the doctor, and so on and so forth. I will say, Mr Van Emmerik did appear to incur a loss as a result of performing his duty. But that's been remedied by his employer now.

PN2017

I might just move on and in conclusion identify some of the aspects why we say the granting of the application will produce a safety net outcome, which could not be described as fair and relevant. The first simple proposition is that the granting of an application which would not require a worker to take sick leave when they're sick, would not be fair or relevant. The second proposition is that an illness which would otherwise be covered by worker's compensation should be covered by worker's compensation and not additional overlapping leave. I might briefly digress to Mr Wannop again. There is an issue with multiple employers. Mr Wannop is currently receiving an entitlement from one of his employers and also receiving an entitlement for JobKeeper. It's not clear who - perhaps it is clear based on Mr Clarke's submission this afternoon, that both employees would be required to take leave.

PN2018

The difficulty with Mr Wannop's evidence is that it demonstrates the seemingly unending scope of the ACTU's claim. Mr Wannop has said he doesn't want to face the risks of working and his decision to make, but it appears that his leave will proceed indefinitely until COVID is over, or the pandemic is over. To rely on the evidence of Professor MacIntyre, that is a question of years. In terms of the fairness of what would result from the granting of the claim, we say that the full bench should also have regard to the variety of evidence about how doctors actually advise to isolate. It could be indefinitely, like Mr Wannop. It could be periodically, like Ms Dryden, who took 14 days because she was sick. Then she took another 14 days, because she was still sick, and was told to get a COVID test at that time. Essentially, as I mentioned before, we say that it would render personal carer's leave redundant. And we say that's inappropriate.

PN2019

I've spoken about Ms Racciatti's daughter being isolated. I might just, towards the conclusion of these remarks, talk about the contribution of Australian Unity in these proceedings. Now, Australian Unity is, by any stretch of the imagination, a very large and profitable organisation. It's got seven-and-a-half thousand employees. Even the scope of their pandemic policy is very limited, compared to the ACTU's claim. The response of Mr Gold when I asked him why there needed to be a single ten-day limit on the payment of leave, and why special leave would only be payable after the exhaustion of personal carer's leave, that even for a large well-resourced and well-intentioned employer, a form of leave which is unlimited and which essentially disregards the fact that personal carer's leave exists, was several bridges too far for Mr Gold. We say it should be several bridges too far for the full bench as well.

PN2020

Even the Australian Unity policy was described as a guideline. Your Honour raised the possibility, in questioning of Mr Clarke, about even if COVID as a general sense was low, even if payments under this leave entitlement in a general sense were low, the potential of an outbreak, and obviously - not so much an outbreak, but a cluster of infections, would give rise to a cluster of entitlements. I would agree with the proposition that it would be a potentially ruinous situation. Mr Kevlyn gives evidence about - his evidence is mainly based on the fact that the medical - that doctors who he employs are well paid. If his business had to pay paid leave potentially indefinitely, but at least for a couple of weeks, to well-paid doctors, and that happened in a cluster, it would have potentially a ruinous effects on his business.

PN2021

VICE PRESIDENT HATCHER: He'd be unlikely to be affected by a cluster, because - remembering correctly, he's essentially hiring out doctors to a whole range of different workplaces. A better example might be Ms Allenson, if there was a cluster at her facility, along the lines of Newmarch, where effectively the place closes down and everyone has to go home. That's the sort of thing that could break the entire enterprise, I would have thought.

PN2022

MR ARNDT: Particularly having regard to the remainder of Ms Allenson's evidence, I think that would have been a reasonable conclusion to make.

PN2023

VICE PRESIDENT HATCHER: Of course, on one view, if the whole facility had to shut down you could arguably simply stand people down, rather than treating it as a medical situation.

PN2024

MR ARNDT: I haven't fully considered the full ramifications of the ACTU's claims on that point. Can I also raise another thing that your Honour said in the questioning of Mr Clarke. Your Honour went to the most interesting part of Professor MacIntyre's evidence, which is that we will be living with this for years. And potentially permanently, if you take the view that what we're actually talking about isn't necessarily COVID, but we're talking about the vulnerability of the health system, the increased risks faced by health workers, and the requirement that we protect those health workers through a form of leave, so that they can take leave. I guess I would pose the question, if these arrangements are necessary now, with what is an extremely low incidence of COVID, low community transition and low hospitalisation rates, it does beg the question of how long would they be necessary for and at what point would they no longer be necessary. We say that no basis exists to grant the application now and to grant them would not maintain a fair and relevant safety net.

PN2025

I might just make a very short submission about the ACSA and LASA position. ACSA and LASA has filed a written submission. That written submission adopts the submission of ACCI, ABI and NSW Business Chamber. Essentially, if I'm going to limit my comments to the witnesses and the evidence that we've heard over the last two days, the submission is simple. The statements of Ms Allenson and Mr Corduroy should be relied upon to demonstrate what is a precarious financial position of the aged-care sector and that tends against the granting of the claim.

PN2026

VICE PRESIDENT HATCHER: (Indistinct) supported employment services award.

PN2027

MR ARNDT: Apologies, your Honour, I didn't hear that?

PN2028

VICE PRESIDENT HATCHER: (Indistinct) specifically about the supported employment services award.

PN2029

MR ARNDT: No, only that Ms Wilson's statement - only that we do not support it and that Ms Wilson's statement, to the extent that it addresses that award, should be taken with little weight as a submission.

PN2030

VICE PRESIDENT HATCHER: Am I right in saying that the majority of disability enterprises have shut down?

PN2031

MR ARNDT: My personal professional experience has been - for what that's worth - has been that there has been a very large scaling back of programs. So, whether it constitutes a shutdown is probably a question of degree, but certainly there's been - and certainly they were some of the first to go, in terms of shutting down, or pulling the trigger, or pulling their staff out, early days of COVID. That would be fair to say.

PN2032

VICE PRESIDENT HATCHER: Thank you.

PN2033

MR ARNDT: That's all the submissions I have.

PN2034

VICE PRESIDENT HATCHER: Thank you. Who would like to go next? Perhaps Ms Wellard. Are you there, Ms Wellard?

PN2035

MS WELLARD: I am, your Honour. Sorry, Mr Ferguson, I saw that you jumped in, but I'm content to go next.

PN2036

VICE PRESIDENT HATCHER: All right.

PN2037

MS WELLARD: Thank you. I will try and be very brief. The Pharmacy Guild relies on the submissions that we filed on 17 June. Just one point that I want to pick up arising from those submissions, and then I briefly want to talk about the evidence. The Pharmacy Guild, we hold the view that there are problems with the interaction of what the unions ask for and the national employment standards. To the extent that the national employment standards provide a mechanism for paid personal leave when a person is actually unwell, the award cannot include a term that excludes that from operation. And we say that the clause - the terms sought by the unions - sorry, I'm having some difficulty moving my mouse across three screens - that the clause sought by the unions does do that. It does exclude or prevent an employer from requiring an employee from taking personal leave.

PN2038

Now, they may say that that doesn't mean that the employee can't ask for it and therefore it's not completely excluded, but our view is there is an exclusion of the operation of the national employment standards in one way, and that is enough to say that that part of the clause can't be included in an award. In any event, even if our view on that, if the Commission disagrees with us on that, the Commission can include in the award terms that are supplementary to the national employment standards. And with respect to payment for personal leave, when a person is actually unwell, we say that a supplementary term is a term that provides for payment or additional leave after that leave has been exhausted, that it is supplementary to that leave, and not leave that is before the paid personal leave that the national employment standards provides for.

PN2039

So, I just wanted to make that point. We don't say that the Commission couldn't make additional paid leave. It's just that it would need to be supplementary to, which is on top of and therefore after, the existing personal leave had been exhausted.

PN2040

VICE PRESIDENT HATCHER: Can I just explore that, just for the sake of argument, if we awarded that additional say five days personal leave for illness occasioned by COVID only, there'd be no difficulty with that as a supplementary entitlement, would there?

PN2041

MS WELLARD: No, your Honour. Not if it was on top of or after. COVID is a personal illness. So, if the person had exhausted their entitlement to paid personal leave because of their personal illness, they could then access that supplementary five days. There would be no difficulty with that.

PN2042

VICE PRESIDENT HATCHER: Yes, all right. Thank you.

PN2043

MS WELLARD: So, I rely on the submissions filed, but I just briefly want to touch on some of the evidence with respect to the pharmacy industry award. There are two groups of workers who are covered by the pharmacy industry award. They are pharmacists and pharmacy assistants. There's no evidence before the Commission that pharmacists see a need or even a desire for paid pandemic leave. There was only one pharmacists who gave evidence in the proceedings. Her name was Jennifer Madden. Her work as a pharmacist is performed differently to most community pharmacists working in a pharmacy. Her evidence was that she was a casual employee and employed by a number of pharmacies to conduct home medicine reviews. So, she didn't work in the pharmacy environment itself. And she agreed with me that she would not expect her employer to pay for her, to give her paid leave, if she had to quarantine or isolate. Indeed, she'd been on a cruise and come back and made it clear that she didn't expect that she would have been paid for that leave.

PN2044

There were no other pharmacy witnesses. No evidence about pharmacists. There were six pharmacy assistants who gave evidence. And it is clear from their evidence that there's a concern about contracting COVID-19 at work, from those people, and passing it on to others. Particularly those that had vulnerable family members or housemates. And it's also clear that there is a desire to be paid, if they're absent from work for COVID-19 related reasons. It's interesting, though, that despite that desire to be paid when they're absent, a number of them knew that they had accrued personal leave, but they didn't know how much, and they hadn't taken steps to find out. So, there's a desire to be paid. To some extent there's an ability to be paid and they didn't even know what that was. Which we say indicates it is really a desire and not a genuinely assessed need on the part of at least those witnesses, and to the extent that they're to be extrapolated generally.

PN2045

There's no data that shows the number of pharmacy assistants, or indeed anyone in a pharmacy, who contracted COVID-19 at work, or indeed otherwise, in the community. There's no data that shows how many have needed to quarantine or self-isolate because of the risk of exposure at work or otherwise. In our submission, it is too long a bow to draw to apply the material or the numbers that Professor MacIntyre relies on to inform her views, which are largely based on numbers of infection or exposure in workers in hospitals and other institutionalised facilities, to the pharmacy environment.

PN2046

I think that Mr Clarke downplayed the number of measures that had been taken in pharmacy to prevent or reduce the risk of transmission. The pharmacy assistants generally gave evidence about measures taken in the pharmacies in which they work and those measures included the installation of protective screen, sanitisers for customers, lines at the front door and throughout the store, informing people about social distancing, spots on the floor. At one period one of the pharmacies restricted numbers in the store. Staff have to sanitise their hands every 15 minutes. Stocks being wiped down hourly. Counters and other high contact areas are being cleaned. Thermometer temperature checks were occurring at one point in one store. Staff received training. Staff were directed to tell customers to observe social distancing when they weren't. And largely physical contact had been removed. Noting in particular the evidence that took too long for me to obtain from the pharmacy assistant who was also a cosmetologist, who now doesn't do makeovers, and to the extent that she does skin assessments, she does them by use of an iPad and no need to actually touch the customer. So, there are lots and lots of measures that are being taken.

PN2047

All but one witness agreed with me that the measures taken in pharmacy were better than the measures taken by the stores around them, or the stores that they had visited. One witness said that they were about the same. The witnesses generally agreed that the customers of the pharmacy would also shop in other stores and indeed they would do that themselves. In our submission, a person who is fit enough to be able to get to the pharmacy is also fit enough to be able to shop at other stores, the supermarket, the coffee shop, the bakery, to get what they need. If those people are COVID-19 positive, they are taking it to other workplaces and other environments.

PN2048

Indeed, Professor MacIntyre's evidence was in fact that there's a significant risk of transmission because people can have COVID-19 and have no symptoms. Those people are even less likely to visit a pharmacy, because they're not ill, but it's entirely likely that they're visiting other retail stores, and going to the supermarket, and engaging in the community. Retail workers and hospitality workers come in to close contact with the customers, or in the case of personal services like hair and beauty they have actual physical contact with customers, and in some settings deal with high volumes of transactions. We acknowledge there'll be some limited occasions where for some pharmacy assistants close contact, and indeed actual physical contact sometimes, is required. Such as the fitting of the CPAP machines. Professor MacIntyre indicated that in that type of activity, because it necessarily involved breathing and potential airborne viruses, it was an ongoing occupational risk, if you like, that there would be a transmission of airborne diseases.

PN2049

Where those risks exist, personal protective equipment, and screening, and other steps are taken, so far as is practical to manage that risk. So, we maintain that the risk that a pharmacy employee would contract or be exposed to COVID-19 in the pharmacy is no greater than it would be in other retail or indeed hospitality environments. In fact, having regard to the steps that the pharmacy has taken to minimise transmission, it may in fact be less. I want to briefly turn to the evidence of Angela Anderson. Ms Anderson is a pharmacy assistant who has a personal health condition which makes her more vulnerable to significant adverse health effects, if she was to contract COVID-19. So, on the advice of her doctor she has self-isolated. Her evidence, as I recall it, is that she rarely left home, but may have done so to go to the supermarket.

PN2050

Her doctor's certificate for her absence from work says she should not return to work until the pandemic has run its course. Now, she confirmed that she didn't know and hadn't really spoken with her doctor about what that might mean, until the pandemic has run its course. She's used all her annual leave, long-service leave, and personal leave, and she's been on unpaid leave since mid-April. If the variation proposed was already a term of the award, Ms Anderson would have received an additional two-weeks leave. Two-weeks paid leave. But it's unknown whether that would have made a material difference to her circumstances, given that her illness is ongoing and her absence is ongoing.

PN2051

Ms Anderson's doctor may, though, at some point form the view that with respect to her, or her area, or whatever, who knows what the requirements will be, that the pandemic has run its course, or the pandemic is controlled, or something has happened so that she's now fit to return to work at a particular point in time, despite the fact that Professor MacIntyre tells us that most experts predict that we're going to be living with COVID-19 for at least two to five years. So, if that occurs, and Mr Anderson's doctor says she's fit to go back to work, and then there's another spike, or something happens in the community in which she lives, or for some reason her doctor determines again that she should self-isolate, she'll be paid again for two weeks.

PN2052

Now, given that she has an ongoing underlying health condition that is personal to her and not work-related, we just don't know how many times that could happen. On each occasion of her absence, the employer is going to be paying another employee, or other employees, to do the work that Ms Anderson would have performed. So, on each occasion there's an increase, in fact potentially double the increase of the labour cost of that work. I raise Ms Anderson's example, because it really highlights how paid leave on unlimited occasions is not fair or relevant as part of minimum standards, when fairness is assessed having regard to both the employee and the employer's interests.

PN2053

I also want to turn really briefly to the idea that a pharmacy assistant would work or not get tested if they were unwell, because they wouldn't want to go without pay. All but one of the witnesses said that they wouldn't work and they wouldn't get tested if they suspected that they'd come into contact with COVID-19. One witness said something like - and I think this might be Ms Gigg, who Mr Clarke referred to her as well - if she had a cough, she'd make some kind of self-assessment about how she might have contracted that cough. If she'd been in the garden on the weekend, that she might think that that's the reason for the cough. And then she's going to assess the level of the risk to herself and others and then make a decision about whether she'd go to work.

PN2054

And Mr Clarke raised this as something the employers will raise, and we have, and I am. Employees do have obligations under workplace health and safety laws to ensure the safety of themselves and others. With respect, Ms Gigg does not take her obligations seriously enough, as a person working in a pharmacy, or in the community general, if she was going to present to work with a symptom that might be COVID-19 without having been tested, or if she was unwell. The unions will put it that the - - -

PN2055

VICE PRESIDENT HATCHER: Ms Wellard, the practical reality is that if people have the option of doing that or staying at home with no income, and no leave entitlements, then they're likely to, as it were, go in to some form of denial of the risk and, as you say, self-assess and determine that they're safe. That's the practical likelihood, isn't it?

PN2056

MS WELLARD: Well, I was about to say, your Honour, that the unions would say and do say that it's precisely because of people like her that paid leave is needed, to discourage that behaviour. So, what the unions are asking the Commission to do is make employers pay employees so that employees don't do the wrong thing. And we say that's a payment for an incentive to comply and that's not something the Commission should entertain, as part of minimum standards. I haven't raised the issue of workers compensation in my submissions, either the written submissions or my oral submissions. I note that they have been dealt with quite extensively in some of the other employer submissions and to the extent relevant I adopt those submissions for how they would apply in pharmacy. I have nothing further, your Honour.

PN2057

VICE PRESIDENT HATCHER: Thank you. Mr Ferguson, are you next?

PN2058

MR FERGUSON: Yes, your Honour. I'll endeavour to be mostly brief. We filed fairly detailed submissions. I rely on the full content of that. My intention today in being brief isn't to demur or narrow arguments. I also endeavour not to repeat what's been put by the other employer advocates. What I really want to do is just touch upon three issues and then deal with any questions as I go. The first one is this central issue of the contention that employees covered by these awards face an elevated economic risk caused by COVID and that justifies the claim. Then I want to touch upon this issue of - the proposition that the proposal allocates the economic risk more fairly between employers and employees. Then, just finally, and succinctly, I just want to talk about some specific problems with the clause that was proposed, and demonstrated by the evidence or not raised in our submissions.

PN2059

Coming firstly to the point about the proposition from the unions that these workers face an elevated economic risk. We've dealt with this issue in some detail and I'm not going to repeat all of the arguments, but I think one of the central difficulties that the unions face in this case is they've effectively taken a one-size-fits-all approach, in the way they've crafted the proposed variation. In essence, they're arguing that, well, every class of employee covered by these relevant awards should have an entitlement to this paid leave when any of the relevant circumstances arise. Now, we don't accept that any of the relevant employees face an elevated risk so as to justify the claim. But there's an insurmountable difficulty in the sense that the evidentiary case advanced, in our submission, just doesn't establish that there's any level of elevated risk for vast numbers of employees.

PN2060

Our submissions go through and identify some obvious examples, but the point is there is a broad range of people that work under these awards. To take a couple of examples, think about clerical employees working under the SCHADS award, that might be able to perform their role essentially from home, or remotely. There's no reason to conclude that they're facing such risk that they should have this significant new entitlement. Also think of the various types of health professionals that don't necessarily work in an institutional setting. They don't work in a hospital. They might be utilising the sort of developments that we've heard about in the evidence, such as tele-health. They're engaging with people remotely, or adopting appropriate social distancing, and there's no reason to conclude that they face any elevated risk beyond the vast tracts of workers that are under other awards and working, notwithstanding the pandemic. So, I think the difficult for that is, the Commission can't be satisfied that the claim that they've advanced, on that point alone, is necessary to meet the modern award's objective.

PN2061

Now, in terms of the elevated risk, we've dealt with it in detail, but I'll just comment on an element of the evidence, and that's the report by Dr Cortis. We largely endorse the submissions of Mr Arndt on this point, but the point I want to emphasise is that report can only be taken to be demonstrative of the perceptions of some employees at a particular time. That was the time when, of course, the pandemic was having the most heightened impact in terms of the creation of anxiety and disruption. But, more importantly, or additionally rather, the various extracted responses from employees can only be taken by this Commission as reflective of their perceptions. It can't be adopted as establishing the truthfulness of any of the factual assertions they make. It is, in essence, hearsay material. None of us contest it. It can't be taken as establishing the level of risk that those employees faced. But, in any event, it was of course at a different time, a different stage, in the pandemic, regardless.

PN2062

I suppose the third point about that is, because the evidence didn't include the entirety of the raw data, it somewhat undermines the weight that can be attributed to the doctor's assessment of the survey. Obviously it undermines the party's ability to test the veracity of her report. But it also undermines the Commission's ability to assess the extent to which she's properly assessed those extracted sections as being reflective of the broader responses.

PN2063

That then really takes me to the next point, which is the issue of whether it's fair to reallocate the economic risk, if you will, from employees to employers. Or the economic cost. Now, we stridently submit that it's not fair to simply impose the costs with some employees having to isolate on an employer, in all circumstances. It's certainly not fair in circumstances where an employee may have been infected, or come in to contact with COVID-19, in circumstances that are entirely removed from the workforce or the workplace. It's difficult to see how an employer in that context can fairly be saddled with that burden. The other point in that respect is it's not apparent why employers in this industry should be saddled with the costs of reimbursing employees for paid leave in that context, where employers of employees in exactly the same scenario, that acquired it in the same sort of situation in other industries, wouldn't have to be.

PN2064

The answer that I think is proffered from the unions, is, well, that furthers the public policy objective of effectively incentivising those employees to not attend work. We say that's not a determinative consideration in trying to strike a fair balance between employers and employees in the context of the minimum safety net. It might be a relevant consideration for governments, as to whether they're going to proffer some sort of welfare support, or other additional payment to individuals to pursue that public health objective, but it's not in our view a reason for varying the safety net.

PN2065

In considering the fairness perspective, we do think that the force of the union's arguments that, well, it's necessary to stop these employees being left in these sort of dire situations, is also somewhat undermined by the availability of various forms of financial support to employees that find themselves in the sorts of circumstances contemplated by the claim. In short form, that obviously for some employees does include a personal carer's leave. It might include an ability to access paid annual leave or paid long service leave, but I think most significantly it does obviously encompass worker's compensation. The simple proposition is that where employees acquire an infection at work, and work's a substantial contributing factor to it, they are able to access compensation. That is the proper standard, or the proper way of dealing with this issue. It's a complete answer to the problem for which employers can in some way be held accountable for this.

PN2066

I mean, it's no one's fault, and worker's comp is a no fault system, but that's the answer. Now, it's put that, well, employers would have to prove it. I just simply say this, there's no evidence that health care workers are having any difficulty establishing if they've been affected by COVID-19 in the workplace, and establishing that they're entitled to worker's compensation. There's not even an assertion that that's a real problem. On that basis, we would say there's no reason that it could be seen to be necessary to do something in the safety net to deal with that sort of issue.

PN2067

The other point I'd say the full bench should be mindful of, is the potential availability of various welfare payments to workers who are isolating as a consequence of coming in to contact with COVID. Now, there isn't any substantial material before this bench explaining this and we say that's a deficiency in the case advanced by the unions. If they're going to say that employees are in sort of dire consequences, they should have put material before the Commission that lets it make an assessment of what support those workers would have been able to access. But at a practical level, or at the Commonwealth context, that would include potentially JobKeeper payments. The simple proposition here is if an employee is eligible and they're working for an employer who's eligible, the fact that they're isolating because of COVID-related reasons isn't going to disentitle them from continuing to receive JobKeeper payments.

PN2068

Also, JobSeeker. I'll confess, I've done no more than look at the website for the social security services. As I understand it, that indicates that employees would be able to access JobSeeker if they're isolating as a result of contact with coronavirus. Of course, it's well known that at the current time these sorts of entitlements have been inflated beyond traditional levels. Of course, some of the other eligibility requirements have been restricted. Now, even apart from that, just in recent days we've seen some states, including both Queensland and Victoria, announce one-off $1500 payments for persons who are self-isolating due to COVID. I think there are some subtle differences between the different schemes. Mr Clarke will correct me if I misstate the entitlements here, but certainly in Queensland I think the answer is you have to actually have been infected with COVID. I think you have to simply be required to self-isolate in Victoria. But that is a very relevant consideration and it does significantly undermine the proposition that, well, if we don't have this new workplace entitlement, that employees might nonetheless inappropriately attend work in breach of those sorts of requirements. Which we don't accept is something that should move the union, but this is a relevant consideration.

PN2069

I think also relevant is that, at least in some contexts, I think it's in Victoria, that those requirements aren't available until you've exhausted all of your workplace entitlements. Obviously this claim would potentially disrupt that and delay the availability of that entitlement. Now, I say Mr Clarke will correct me if I'm wrong, because as I understand it, and this is fast-moving, but the ACTU's pushing for that sort of entitlement to be replicated at a Commonwealth level. That's beyond what the Commission can consider, or can influence, but it really raises the point that to some extent these issues are perhaps better dealt with in broader areas of public policy than tweaking the safety net which is directed at striking a balance between the interests of employers and employees.

PN2070

The other issue I just raise on the fairness, before departing from that, is there is the very real prospect that this entitlement would put a significant cost burden on an employer. The Vice President has raised the prospect of particularly ruinous outcomes in the context of a cluster. I'd urge the full bench to also think of the impact on potentially small employers. We've also in our submissions addressed, you know, the difficulties that might be facing employers, for example, operating under the NDIS, to recovering their costs associated with this claim. It would be entirely unfunded under the funding arrangements that apply there and that would be another relevant consideration.

PN2071

But, more broadly, the reality is employers are themselves faced with a raft of challenges because of COVID. We've heard plenty of evidence about all of the initiatives that employers have to put in place in relation to PPE, improving workplace health and safety. All of that of course comes at a cost. And of course that's in the context, as well, of many facing reduced revenue. We had some quite emotional evidence just today from an aged care employer about the situation they're facing, the proposition that there is just no more money. When you're looking at the proposition that fairness dictates that this risk just be allocated to the employer, we say that's a very simplistic proposition, and not one that this Commission should entertain.

PN2072

That's all I wanted to say in relation to that issue. I then just wanted to touch very briefly upon the specific cause advanced and deal with two elements. In our submissions we've gone in great detail through the parade of deficiencies and problems with the cause. I just want to say something further about subclause x.2.1(III). That's the provision that entitles an employee to take up to two weeks leave on each occasion the employee's required on the advice of a medical practitioner to self-isolate. We've already addressed this to some degree, in that it doesn't provide clear guidance as to the circumstances in which a medical practitioner can actually advise a person to self-isolate.

PN2073

The reality is, it seems to provide a sort of startling level of discretion to a doctor. The difficulty with that is that it's quite foreseeable that a doctor may not undertake a robust assessment of what the particular workplace of an employee is like and the extent to which they would truly be exposed to risk by attending. They're quite likely to have the best interests of their patients in mind. And as I think the evidence today revealed, some might take the view that with an employee's underlying condition, or just simply their age, that they should isolate until this pandemic finishes. One of the real difficulties with that is, if I understand this clause, if they just keep advising the employee to self-isolate presumably the employee would remain on paid leave until the schedule either stops operating or the pandemic resolves itself. Which, of course, on the evidence could be a long way away. So, we say that's manifestly unfair.

PN2074

The second element of the clause I wanted to speak to briefly is x.2.1(IV). And that's the provision that deals with employees awaiting the results of a COVID-19 test. I think one of the practical issues here is the availability of that testing has evolved and it is now quite readily available. There are obviously some expressed requirements from relevant departments, which I've referred to in our submissions, for when you should get the test, but the reality is testing is freely available, and employees can elect when they want to be tested, when they should be tested. And there's a very real risk that employees might adopt quite a - we're not saying inappropriately, but might be tested frequently. And there's no limitation on that at all. Which means that people could be taking leave quite regularly with no real structure around that. There's nothing to prevent employees from being tested inappropriately and then they'd qualify for the leave. They're the submissions I wanted to advance. We've set out our material, our arguments, in detail. They're the submissions unless there are any questions from the bench.

PN2075

VICE PRESIDENT HATCHER: Thank you. Ms Lo, do you want to make any submissions?

PN2076

MS LO: Thank you, your Honour. Whilst I have - sorry, (indistinct) echoing. Should I try again? Okay. Can you hear me? All right. So, whilst AFEI continues to rely on its written submissions dated 18 June, we do have submissions to make based on our observations of the evidence in these proceedings, which echoes submissions made by other employer groups. The first is that there are issues of the wide application of the proposed variations across the health sector awards. The evidence that we have seen demonstrate that employee's circumstances amongst the different health sector awards are very different. For example, Professor Willcock, who is a director of primary care and wellbeing services, under the medical practitioner's award, describes his role as being comparable to those in the front line public health care environment. Whereas, Ms Dryden, as an example, who is a care worker, is covered by the Social Community and Disability Homecare Services Award. And her work requires her to attend to specific clients.

PN2077

Even within single awards, there can be a broad range of positions covered by the classifications, such as the Social Community Services Award, which covers work that is traditionally office-based. It is our view that the proposed variations would not be suitable across nine different health sector awards, particularly in circumstances where there is overwhelming evidence demonstrating that employer practices differ from one employer to another, in terms of addressing employee self-isolation, as well as mitigating protocols in place in response to COVID-19. As an example, some employees are provided with special leave. Other employees have been paid a discretionary payment for the period of self-isolation. Employers have also implemented differing stringent safety strategies to minimise any risk of infection through social distancing, hygiene, PPE, cleaning protocols, for example. These appear to be practices based on the organisation's unique operations.

PN2078

The evidence also demonstrates that certain employees are able to work from home for a period of 14 days at least. Notably, this included evidence from Professor Willcock, who described himself as otherwise being on the front line. It would be inappropriate for these types of employees to be subject to the application, where employees are able to work from home during a period of self-isolation. The second point I wanted to make is the lack of probative evidence in support of the applications. A significant number of employee witnesses are covered by enterprise agreements and are not eligible for the proposed variations. There is also no direct employee evidence for the aged care award, the supported employment services award, or the Aboriginal community controlled health services award. WE have observed there to be no employee evidence of a positive COVID-19 result for those who have been tested.

PN2079

Our third submission is that the application is unfair and costly for employers. We have observed that the reasons for self-isolation have included situations where employees have travelled internationally that is not related to work. Notably, Ms Sebastian's statement, exhibit 20. To impose the financial cost of self-isolation through no connection to the employer is unfair, as well as costly. We have also heard evidence today from Ms Allenson that her organisation has suffered significant financial loss as a result of the pandemic. Her evidence is that her organisation does not have funds for paid pandemic leave. For employee provisions, such as special leave in place, we heard evidence, notably from Mr Gold, that prior to determining the applicability of such an arrangement, the employee will take into account all the individual circumstances for eligibility for the leave, including vulnerability, and existing accrued leave entitlements. It would be unfair to prevent employees from effectively determining accommodations based on individual circumstances and their operations.

PN2080

Finally, there are a number of employees who would be entitled to the hardship payment recently announced by the Victorian and Queensland state governments, and, as Mr Arndt and Mr Ferguson mentioned, the availability of worker's compensation leading to the possibility of some employees being compensated more than once for the same period of self-isolation if the application is successful. So, this completes my submissions. If the Commission has any questions, I'm happy to answer them. Thank you.

PN2081

VICE PRESIDENT HATCHER: Anything in reply, Mr Clarke?

PN2082

MR CLARKE: Just briefly, if I may. I might have cut someone off. Was the Private Hospital Association - - -

PN2083

VICE PRESIDENT HATCHER: I don't think there's any appearance. Have I missed any employer representative? No.

PN2084

MR CLARKE: Thank you. Just in relation to the point raised by Mr Arndt, that we haven't made out that the existing entitlements are deficient or insufficient. First, I think we are. Second, I think we've already made out with reference to the preliminary issues decision and the decision in relation to the unpaid claim, that it's not actually necessary for us to do that. Thirdly, I'd just point out that three years ago, 2017, FWCFB 447, I attempted to convince the President of this Commission that you needed to demonstrate a deficiency to get a variation. I didn't enjoy reading it. He tore me to shreds. So, I was wrong. So, now I've got to be right.

PN2085

In relation to the issue about Professor MacIntyre's evidence raised by Mr Arndt about what's the data, and what are the numbers, and where the higher risk was, she never actually said that there is no difference in the other states, and it's not open to him to speculate about the position there, on the state of the evidence that exists now. In relation to the criticisms of Dr Cortis, and the reliability of her methods, she was cross-examined by Mr Arndt about her methods and she gave an explanation of her methods and that they were accepted methods in qualitative research. He never put to her that there was anything wrong with those methods. It's not appropriate to make a submission now that there was a problem with those methods. That was an issue for cross-examination.

PN2086

Similarly in relation to Ms Wilson's statement about the supported employment services award. If there was an objection to the contents of that statement, it should have been made before it was tendered without incident. In relation to Ms Wellard's comments about the pharmacy workers and whether they had a desire versus a need for paid leave, in circumstances where they didn't know what their leave balances were, again, that was an issue that ought to have been pursued in cross-examination. It's not open to speculate on their desire or need beyond what they've stated in their evidence about that. That issue wasn't raised with them and it shouldn't be raised now.

PN2087

In relation to the point raised by Mr Ferguson on behalf of the AI Group, about the different particular risks of different particular types of workers. Again, we've led evidence about risk settings and if he wanted to interrogate that, he could have. But he didn't. I think many of the comments I made about Mr Arndt's treatment in final submissions, of Dr Cortis, being a little unfair, I think also apply to Mr Ferguson in the circumstances. She explained her methods and they were not criticised. In relation to one of the points that Mr Ferguson made about fairness, and the interaction with the welfare system, I'd just suggest that if these workers are forced to rely on the welfare system while they have a job, I think that tells you about just how fair the industrial system actually is, doesn't it.

PN2088

There was also a suggestion that people might be lining up for COVID tests, just so that they could get a day off. I don't know whether any of you are in the unfortunate position of being able to take judicial notice of what it's like to get a COVID test - - -

PN2089

VICE PRESIDENT HATCHER: I've had it, Mr Clarke, and surely I don't intend to rush to have another one.

PN2090

MR CLARKE: It's not a barrel of laughs, that's for sure. Those were the only comments I wanted to make in reply.

PN2091

VICE PRESIDENT HATCHER: All right. We thank the parties for their submissions as well, once again for the efficient and cooperative way they've conducted their cases. We propose to reserve our decision, while obviously having regard to the circumstances in which the application is put and endeavour to issue that decision as soon as possible. We will now adjourn.

ADJOURNED INDEFINITELY [4.20 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #32 STATEMENT OF DR ANDREW CRONIN DATED 01/05/2020 PN1237

CHANDINI RAINA MACINTYRE, AFFIRMED......................................... PN1247

EXAMINATION-IN-CHIEF BY MR CLARKE............................................ PN1247

EXHIBIT #33 WITNESS STATEMENT AND ANNEXURES OF PROFESSOR MACINTYRE DATED 11/05/2020.............................................................................................. PN1298

CROSS-EXAMINATION BY MR ARNDT.................................................... PN1299

RE-EXAMINATION BY MR CLARKE......................................................... PN1383

THE WITNESS WITHDREW.......................................................................... PN1398

GRANT CORDEROY, AFFIRMED................................................................ PN1403

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN1403

EXHIBIT #34 STATEMENT OF GRANT CORDEROY DATED 17/06/2020 PN1410

CROSS-EXAMINATION BY MS WISCHER................................................ PN1412

RE-EXAMINATION BY MR ARNDT............................................................ PN1480

EXHIBIT #35 AGED CARE FINANCIAL PERFORMANCE SURVEY AGED CARE SECTOR REPORT NINE MONTHS ENDED 31 MARCH 2020................ PN1490

THE WITNESS WITHDREW.......................................................................... PN1492

VIVIAN ALLANSON, AFFIRMED................................................................. PN1497

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN1497

EXHIBIT #36 STATEMENT OF VIVIAN ALLANSON DATED 17/06/2020 PN1503

THE WITNESS WITHDREW.......................................................................... PN1595

SUSAN CUDMORE, AFFIRMED................................................................... PN1606

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN1606

EXHIBIT #37 WITNESS STATEMENT OF SUE CUDMORE DATED 17/06/2020 PN1621

CROSS-EXAMINATION BY MS WISCHER................................................ PN1622

THE WITNESS WITHDREW.......................................................................... PN1683

SHANENE VAN HEERDEN, AFFIRMED.................................................... PN1687

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN1687

EXHIBIT #38 WITNESS STATEMENT OF SHANENE VAN HEERDEN DATED 17/06/2020............................................................................................................................... PN1693

CROSS-EXAMINATION BY MS LIEBHABER........................................... PN1700

THE WITNESS WITHDREW.......................................................................... PN1720

RYAN LEWIS KEVELIGHAN, AFFIRMED................................................ PN1727

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN1727

EXHIBIT #39 WITNESS STATEMENT OF RYAN KEVELIGHAN DATED 17/06/2020............................................................................................................................... PN1733

CROSS-EXAMINATION BY MS DE VECCHIS.......................................... PN1735

RE-EXAMINATION BY MR ARNDT............................................................ PN1791

THE WITNESS WITHDREW.......................................................................... PN1798

EXHIBIT #40 ABI BUNDLE OF DOCUMENTS........................................... PN1805