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Fair Work Act 2009                                                    






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


Application by Ellis & Castieau and Others


Aged Care Award 2010




2.00 PM, FRIDAY, 18 DECEMBER 2020


THE ASSOCIATE:  Matter AM2020/99, the Aged Care Award, for mention.


JUSTICE ROSS:  Good afternoon.  I'm not entirely sure who's on line, but can I run through those that I have a note of?


Mr Arndt, for ABI?




JUSTICE ROSS:  Ms Wischer for the ANMF.


MS WISCHER:  Yes, sir.


JUSTICE ROSS:  Ms Lo for the AFEI.  Ms Min for the Aged and Community Services Australia.  Ms Day, for the Commonwealth Department, observing.  Mr Lilleyman for the CCI of WA, you're here?


MR LILLEYMAN:  That's right.


JUSTICE ROSS:  Okay.  And Ms Grayson, with Ms Friend, for Maurice Blackburn, for the applicants.  Who else have I missed?


MR R WARREN:  Your Honour, Ralph Warren, I'm appearing for AFEI, Ms Lo is with me, but I'm making the appearance.


JUSTICE ROSS:  All right.  Anyone else?


MR B REDFORD:  Your Honour, Ben Redford, for the United Workers Union.


JUSTICE ROSS:  Yes, sorry, Mr Redford, I saw you pop up on the screen earlier.


Anyone else?


MS A RIZKALLAH:  Your Honour, Ms Adele Rizkallah, for Asian Community Services Australia.


JUSTICE ROSS:  Okay, thank you.  No one else?  Okay.


Well, consistent or further to a statement I published on 24 November, the HSU and the applicants filed an outline of the evidence they propose to call, on 14 December, and some draft directions.  I have received a short note from ABI, indicating their position, in respect of the draft directions.


As I understand the position it's pretty much this, that the applicants are proposing, broadly, that in three months time, on 1 April, they file their evidence and submissions and that then three months later, on 1 July, the employer interests file their evidence and submissions.  Then two months later, on 1 September, the applicants file material in reply.


The position put by ABI is that - well, in short, they want five months, and not three months, to reply to the union's material.  Is that pretty much it, Mr Arndt?


MR ARNDT:  That's a concise summary, your Honour.  I can expand on it, if you would like but, yes, that's the long and short of it.


JUSTICE ROSS:  All right.  Do I take it that, essentially, the union interests support the HSU's proposed directions and the various employer interests support ABI's position?  Does anyone have another view?  No?  All right.


Just bear with me for one second.  Sorry about that.


Mr Arndt, why do you need five months?


MR ARNDT:  Hopefully - I mean our correspondence this morning was quite short.  My instructions are, from the client, but also from our advocate, Mr Ward, is to seek five months, on the basis - the applicant's outline is outlining a very, very substantial case.  Forty to 60 witness statements, four experts, this is a very, very large amount of material to read, make inquiries about and respond to.  Three months, in our view, would not be enough time to do that.


To take your Honour back to a comment your Honour just made, it is true that the applicant's case, or the applicant's evidentiary material, from today, would be due on 1 April, but it's no secret that the applicant's case has been building for some time, as it would do.  The applicant's have been gearing up and building up to this case for a time period which, obviously, predated their filing date.


Even on their filing date it's still almost been four and a half months from the time that they filed to the time that they're due to file their material.  We say that, as a matter of fairness, that would warrant a longer period than three months.  But also on the basis that, on the face of the case that the applicant's seek to run, it's not a three month responsive case, it's more than that.


MR WARREN:  Your Honour, could I say something, with respect to AFEI?


We support the application for an extended time by ABI.  It's clear that the applicant has had a significant amount of time to prepare their case.


JUSTICE ROSS:  No, that's all right.  No, Mr Warren, I don't really need to - I'm assuming you're just going to repeat whatever Mr Arndt has said.  I'm taking it - - -


MR WARREN:  Wholeheartedly.




MR WARREN:  Yes, I understand, your Honour.


JUSTICE ROSS:  Yes.  So there's no point in me going around everyone to say the same thing.


MR WARREN:  No, it's the evidence that we are concerned about, your Honour, and the extent of that and the need that we may need to respond to that, and the time that that might take.  That's the fundamental difference in our position.


JUSTICE ROSS:  All right.  Well, can I go to Ms Grayson?  Do I take it, Ms Grayson, you're basically - you're the point person for - you're the person I should be going to, to get the response, is that - - -


MS GRAYSON:  I am today, thank you, your Honour.  Yes, look, I think we press for the orders that we have put forward.  We will have three months, essentially, to put on our evidence, and that's taking into account the Christmas closure period.


Whether the case has been building or not for a while doesn't really matter here nor there, we say.  We think we can do in that period of time.  We think a similar period of time would be appropriate for the employer parties and what I would say is, this isn't kind of a traditional, I wouldn't have thought, responsive case that the employers might run.  That is, they can start preparing their case right now and we say that would be entirely reasonable.


In addition, they would then have three months, in the middle of the year, and not over Christmas, to put on their evidence.  We say that would be entirely appropriate, in these circumstances.


We have endeavoured to put forward a timetable that would allow for the matter to be heard at the end of next year, should that be convenient to the Commission.  That's, essentially, why we have proposed what we have proposed and we think it is achievable for all parties, in the circumstances.


JUSTICE ROSS:  Yes.  Well, Ms Grayson, can I put this to you, that my initial reaction is, look, I think there's some force in the proposition that those that you represent have had - well, obviously been giving the matter some thought for some time.  I don't agree with your point that that's neither here nor there, I think it's a consideration, as is the fact that the time that's permitted for you to do it takes in the Christmas period, and I'd need to have regard to that as well.


I'm also concerned that if I was to accept, on the face of it, the variation proposed by ABI, that may make it difficult to conclude the matter in 2021.


What I would be minded to do is to grant the employer interests until 15 August, so, in other words, four and a half months.  In relation to - the question then arises, that would then bring it back to the middle of October, for your client's, Ms Grayson, to provide any responsive material.  On that basis, I'd be confident that the matter could be heard and determined in 2021.


Look, the only - and I don't - Ms Grayson, to be clear, I'm not raising this to - other than to ask you the question.  More time could be provided for the back end, for the hearing, if - it's really whether you think you require the full two months to file the response, or whether you think that could be done in six weeks?


MS GRAYSON:  I think it is very hard to say, your Honour, in circumstances where I don't quite know what the evidence (indistinct) will be.


JUSTICE ROSS:  I accept that.


MS GRAYSON:  I think the timetable you have proposed would be reasonable, in the circumstances.


JUSTICE ROSS:  All right.  In any event, what I propose to do is once the directions are issued I would also be having some mentions, after the material is filed by the employers, and actively case managing the matter to ascertain which witnesses would be required for cross-examination and to start an earlier process of the scheduling of witnesses, because that's often the difficulty.  So hopefully that would also compress the amount of time that would be required for any oral hearing.


So that's the proposition, that ABI's proposal be granted, in part, that they be provided until the middle of August.  The direction 3 be adjusted accordingly but that the unions still be provided with the two months from the filing of the employer material.


Does anyone wish to be heard on that proposal?  No?  All right.  Someone?  No?


MS GRAYSON:  Please the Commission.


JUSTICE ROSS:  It's always slightly awkward with Zoom meetings, I'm never entirely sure.  I adjourned a matter last week only to find out that there was someone who was desperate to say something but couldn't find their mute button to turn it off.


In any event, there is liberty to apply and if issues emerge.  Look, I'd also, and this is probably getting ahead of ourselves for the moment, but I'll be encouraging the parties to have ongoing discussions, once the evidentiary case becomes clear.  What I don't want to do is to sit through three days of objections to evidence, on the basis it's hearsay, it's opinion.  Because, in my experience, particularly in this award and with these parties, you both put in evidence and then you object to the same evidence that's advanced by the other side.  It just goes nowhere.


So I'd encourage you to, when you're getting the evidence together, avoid evidence that amounts to submissions, because it's not helpful.  Stick to evidence around facts and have experts express opinions about the matters within their expertise.


Okay?  I'll issue the directions later on this afternoon.  Thanks very much for your attendance.

ADJOURNED INDEFINITELY                                                            [2.14 PM]