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Fair Work Act 2009                                       1058274






s.158 - Application to vary or revoke a modern award


Application by Ellis & Castieau and Others


Aged Care Award 2010




2.00 PM, MONDAY, 23 NOVEMBER 2020


JUSTICE ROSS:  Good afternoon, it's Justice Ross.  If I can just run through the appearances as I have them:  Mr Gibian for the HSU - there are a range of others but I don't propose to go through everyone's name - there is Ms Wischer for the ANMF.


MS WISCHER:  Yes, your Honour.


JUSTICE ROSS:  I have Claire Bailey for Leading Aged Services Australia.  I have Ms Wade for the Aged and Community Services Australia.  I have Ms Lo for the AFEI, Mr Barklamb for the ACCI, Mr Arndt for ABI, Mr Moss for the Chamber of Commerce and Industry of Western Australia, Mr Nicholas Gold for Australian Unity, Mr Redford for the UWU and in an observing capacity, Ms Schuler for the Commonwealth Attorney-General's Department.  Have I missed anyone or any organisation?  I know there are a lot of people here for the HSU but I don't propose to take everyone's time by going through all of you.


But have I missed any other organisation?  No?  Can I indicate some steps the Commission has taken  we have, for the list of organisations that we had anticipated had an interest, sent them an email.  The email indicates that the application has been made, that we've created a dedicated web page for the matter and we will post all the documents there and if you wish to subscribe to that web page so you can be automatically notified of any material that is filed, then there is - the email tells you how you go about doing that.


If for whatever reason you haven't received that email and you want to find out more about the website page, and how you can subscribe to notifications to it, then simply send an email to my chambers, chambers.ross@FWC.gov.au and we will send you all the details.  That way you will automatically receive information that is posted in relation to this application.  If I can go to you, Mr Gibian, it's your application:  what do you want me to do with it?


MR GIBIAN:  As your Honour will have seen, the application seeks substantial increases in rates of pay for employees in the aged care sector, covered by the Aged Care Award as well as various changes to the classifications in an effort to provide improved career progression, particularly in the personal care area.  The applicants believe that the current award doesn't provide wage rates that properly reflect the value of the work, the skills and responsibilities of the employees in residential aged care and consistent with what have been concerns expressed by a series of reports and inquires over time, including in the course of the current aged care royal commission.  The applicants obviously believe it's time for the Commission to be asked to properly assess the pay rates of employees covered by the Aged Care Award, and that is obviously enough the purpose of the application.


The broad overview of the application will be clear to the Commission and to all those who are part of this hearing.  In short, what is sought is an increase in rates of pay of 25 per cent across all classifications.  That would apply across the three streams of workers covered by the award, being personal care, food services and the general administrative streams.  As I mentioned, there are also sought adjustments to the classification structure in the personal care - particularly in the personal care area, including the clarification of progression of the lower levels and either renaming or introduction of both a senior and a specialised personal care workers' classifications.


In terms of the way in which the matter can be sensibly progressed, we are somewhat in the Commission's hands, perhaps.  You won't be surprised to hear, your Honour, that we do envisage that there will be a need for a substantial amount of evidence in the proceedings, both from employees engaged in the sector and likely expert evidence as well.  Obviously, the union has given some considerable consideration in terms of what would be needed in terms of that preparation and thinks that it will be likely in a position to file the evidence upon which it will rely by towards the end of March next year, having regard to the Christmas break, which is upcoming.


We are obviously in the Commission's hands as to whether there would be any useful way in which - whether other parties have any inquiries or useful discussion about what is sought in the application.  But that is broadly what the HSU and the applicants had in mind, your Honour.


JUSTICE ROSS:  Thanks, Mr Gibian.  Look, I don't propose to canvas the merits of the application.  It's fairly clear on its face, what is sought.  I'm more interested in the mechanics of the directions and hearing processes.  I imagine that the application will be opposed by the various employer interests, at some if not all of them.  I imagine that they will want to know reasonably soon if you have some - can give an indication as to the nature of the evidence, if not the witness statements that you'll be filing but which particular experts you might be looking to provide evidence and a brief summary of what that evidence might look like.  I'm assuming that the evidence from the various employees would canvas the nature of their work, what they do on a day-to-day basis and perhaps how that work has changed over time.  I think until the employer interests get some idea of what and the scope of it, I don't know that we can usefully set out timelines at this point.


But can you give me an indication, Mr Gibian, as to when you might be able to file - I'd suggest this course:  if you can give me an indication as to when you'd be in a position to file something giving an indication as to the scope of the evidentiary case the union would be putting, and something in the order of magnitude about how many employee witnesses and the type of evidence that they might be providing as well as the nature of any expert evidence and any details you can provide around that, then everyone would be informed as to the nature of the case they would have to meet, at least in broad terms.


That also gives you an opportunity to give some thought to what directions might look like from your perspective.  If you file draft directions as well as that indication of the evidence, then I think the other interested parties will have an opportunity to look at that and perhaps make more meaningful comments on the next step in the process.  Is all of that clear, Mr Gibian, and - well, that's the first question and the second is whether it makes sense, which is a different question (indistinct).


MR GIBIAN:  If what is envisaged is a narrative description of the type of evidence that we expect will be filed, we think we could do that within, say, three weeks, together with some proposed directions.  As I say, we had envisaged that we are likely to be able to put that evidence together in at least relatively final form by March or so of next year but certainly within three weeks or so we could file a description of the evidence that we expect to be filed, to be prepared, and a proposed directions.


JUSTICE ROSS:  Thank you.  Do I take it that the other union interests, the ANMF and UWU are supporting the application and perhaps if I can ask them that question and also whether they would be contemplating calling any evidence and if I can just - before I go to them if I can indicate that if that is the case, I would ask that the three union interests confer before you file that outline, Mr Gibian, so that you can encompass whatever material the other unions may be contemplating putting so that the employers have a complete picture of the union's side of the case?  Ms Wischer, can I go to your first?


MS WISCHER:  Thank you, your Honour.  At this stage we are in a very preliminary position and I think it is probably premature for us to actually be able to say whether we will be filing evidence.  Certainly, we would anticipate that and also yes, I don't have instructions in terms of the ANMF's response to the application at this stage.  I think the provision of the information in three weeks' time or whatever that timeframe, the outline would assist.


JUSTICE ROSS:  What I would ask the ANMF within that three weeks - I don't want you to wait until you get that indication - I want you to seek instructions about your attitude to the claim and whether you will be bringing any evidence and then I want you to communicate with the HSU what your position is and that can be incorporated in the material that Mr Gibian will be filing, okay?


MS WISCHER:  Yes, thank you, your Honour.


JUSTICE ROSS:  I'm not expecting any sort of detailed exposition from you about if you do decide to play an active role in the proceedings and to call evidence.  At this point we only really require some indication as to what the scope of that evidence is likely to be.  For example, for argument's sake you might think of somewhere between six and 10 employee witnesses or something of that order.  We just want to start to sketch out the dimensions of the case so that when we come to consider the directions, we know what is involved in it, okay?


MS WISCHER:  Yes, thank you, your Honour.


JUSTICE ROSS:  Mr Redford, where are you up to with all this?


MR REDFORD:  Your Honour, we are in a very similar position to the ANMF.  I expect that after we follow your directive to confer with the other unions about the matter we will be in a position to give the kind of indication that your Honour is envisaging we give in relation to our level of participation in the matter.


JUSTICE ROSS:  Thank you.  The proposition then is that the unions will confer over the course of the next three weeks. By - bear with me for a moment - 4 pm on Monday, 14 December the HSU will file the - what I'll describe as the evidentiary outline and by that I mean an indication as to the number of employees witnesses and a broad indication of the character of their evidence, and also any expert evidence that's to be called.  If you can identify the name of the expert and a description, a narrative of what that evidence is in relation to, as well as some draft directions, and then - look, the next step would ordinarily be I would list the matter for further mention.  I would be content to do that on 21 December, but I can also do it on 18 January.  I'm in the hands of the parties.  I would ask you each to consider that for a moment, and I'll just go to the employer interests to see, firstly, whether there's any opposition to the broad process that has been outlined, and also I'll ask them whether they have a view about whether it's 21 December or 18 January, and then I'll come back to you, Mr Gibian, and the other unions.  Or do you want to indicate now, Mr Gibian, if you have a preference one way or the other?


MR GIBIAN:  Your Honour, our preference would be for the matter to be relisted before Christmas, if that is possible on the Commission's part.


JUSTICE ROSS:  No, there's no difficult from my part.  I'm happy to do it on 24 December.  I want to give the employer - - -


MR GIBIAN:  The 21st will be convenient for us.


JUSTICE ROSS:  I want to give the employers at least a week to have a look at it.


MR GIBIAN:  Of course.


JUSTICE ROSS:  In any event, any directions that the Commission issues would be subject to liberty to apply, so this case is likely to - the procedural aspects of it might move around a little, and I think we're all just going to have to be a bit patient about that.  If I can go to the employer interests - Mr Arndt, you were in the Aged Care four‑yearly review matter; perhaps if I go to you first.


MR ARNDT:  Thanks, your Honour.  In terms of I guess the easy one first, no issues with either date for the next mention, and we're comfortable with the proposal put this morning.  The only other aspect which I probably should raise now, in respect of the proposal put by your Honour this morning, it only probably needs to be flagged now and it would be premature to do anything more than flag it, but I might just raise it.  Discussions amongst the employer parties after the application was filed suggest that there's obviously a range of interests in this case.  Some of the interests, including the organisation that I'm representing today, will seek to be very actively involved in the totality of the case - the legislative principles, specifically to do with aged care, the evidence, cross‑examination, the full box and dice.  We do understand though that there are some other employer parties who at this stage are viewing this case in a more limited lens, in that their preference is to make more limited submissions to do with the issues of principle concerning work value.  Obviously there has been relatively few work value cases run and this is going to be an important case in respect of that subject matter.


I might just flag, because I don't have any particular proposal to put, and as I said, ABI will be involving themselves fully in the case, but I might just flag that the direction - some consideration may be put to formulating the direction such that the issues of principle or the discrete questions of the legislative interpretation of work value might be dealt with in a relatively discrete way, which might be efficient for all the parties.  As I said, I don't have a proposal, but by way of example in other matters, the Full Bench has assisted no doubt itself, but also the parties by directing the parties to direct their attention to specific questions or specific aspects of a particular case.  So how that might work in this matter in respect to timing and in respect to the materials that will be filed by the union at the end of this year I guess remains to be seen, but I think it best that that just be flagged at this point, as opposed to coming later in the piece.


JUSTICE ROSS:  Thank you for that, Mr Arndt.  I think if I can make two observations about that, I can readily understand that there will be employer interests who will be involved across each aspect of the case.  There will be others with either a narrower interest in relation to the issues of principle and work value, and there will be others again who may narrow their interest to an aspect of the factual matters that emerge.  I would encourage you to have a discussion, Mr Arndt, given that your organisation no doubt - probably with AFEI, perhaps ACCI - will be involved in a number of aspects of the matter.  I would encourage you to have a discussion with Mr Gibian and see if you can come to some sort of - or at least discuss the question of the statutory framework.  I think the statutory framework question frankly is probably pretty straightforward.  It might be what is meant by work value reasons, et cetera.  That might generate some submissions, and then the question really is:  is there utility in having submissions about that issue, or some issues that the parties identify as being in contention; would it be valuable to have a process whereby that's dealt with first, and then the evidentiary case.  But I'll leave that discussion with you for the moment, and have that directly and we can discuss that in more detail on 21 December.  Can I go to Mr Barklamb for ACCI; did you have anything to add to what Mr Arndt has said?


MR BARKLAMB:  No, your Honour.  I think we would at this point intend to be in that more limited scope of participation in the case on matters of principle, construction and application.  I can indicate at this stage that we wouldn't seek to either lead evidence or seek to examine witnesses, but you know, it is early days in the proceeding.  But that's our broad intention, is to appear on the framework and statutory considerations, and we would be very pleased for Mr Arndt and Mr Gibian, et cetera, to participate in a discussion about how best to facilitate directions in advance of the next return to the Commission.  Thank you, your Honour.


JUSTICE ROSS:  Thank you.  Can I indicate to ABI, ACCI, AFEI, and yourself, Mr Gibian, that whichever method one employs, whether it is we just issue directions and everyone puts in their evidentiary and legal argument in the one hit, we can still schedule the hearing such that there would be a discrete day for the argument of the legal proposition, so those parties who have a narrower interest wouldn't need to attend the whole proceedings.  We can identify and carve out some time to have any legal debate.  Can I go to Ms Lo for the AFEI?  Was there anything you wished to add to what has fallen from Mr Arndt and Mr Barklamb?


MS LO:  Thank you, your Honour.  AFEI are comfortable with the proposed steps to be taken, as outlined by yourself.  However, in terms of the further mention, our preference would be for 18 January for a number of reasons, the first being the festive period is just around the corner, the public holiday, so we like to be able to consult with our members and also have time to consider the breadth of the issues and considerations.  So that would be our preference.


JUSTICE ROSS:  All right.  Are there any other employer interests who have anything they wish to add or anything they wish to say?


MS C BAILEY:  Bailey, initial C, from Leading Aged Services Australia.


JUSTICE ROSS:  Yes, Ms Bailey.


MS BAILEY:  We would certainly support the mention being set down for 21 December.  We're certainly keen to get things afoot as soon as possible, and we do look forward to the filing of the outline and the draft directions on the 14th, but otherwise I think Mr Arndt's suggestion of separating the two issues is something that has value and something definitely worth looking at.  Thank you.


JUSTICE ROSS:  Thank you.  Are there any other amongst the employer interests that wish to say anything at this point?  No?  Last chance.  All right.  Well, I'll send out a short note confirming this to each of you, but the unions will confer, the HSU will file the material that has been outlined by 4 pm on Monday the 14th, the matter will be listed for further mention at 2 pm on 21 December, and in the meantime I would also encourage the employer peak counsels and the HSU's counsel to have some discussion to see if the issue that has been identified about the directions can at least be discussed between you, and hopefully some resolution.  If not, well we can certainly discuss it further on the 21st.  Is there anything finally from any party?


MR GIBIAN:  Your Honour, I was just going to say, in terms of the matter that Mr Arndt and Mr Barklamb have raised about submissions on issues of principle, we obviously - there would be no difficulty, as your Honour outlined, that if there were parties that wished to be heard on that as a statutory approach or interpretation that that be - some sort of time be set aside for that.  It doesn't immediately occur to me that there's some kind of preliminary issue necessarily of that nature, but if there's some suggestion in that respect, then if that could be communicated to the HSU and my instructing solicitors when it's formulated, that would be useful, and I'm of course happy to have some discussions in that respect as well if that would assist.


JUSTICE ROSS:  No, thanks very much for that, Mr Gibian.  All right, well, nothing further.  I'll adjourn and I'll see you at 2 pm on 21 December.

ADJOURNED UNTIL MONDAY, 21 DECEMBER 2020                  [2.27 PM]