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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

JUSTICE ROSS, PRESIDENT

 

AM2020/99

 

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

 

Application by Ellis & Castieau and Others

(AM2020/99)

Aged Care Award 2010

 

Melbourne

 

2.00 PM, FRIDAY, 18 DECEMBER 2020


PN1          

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

PN2          

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?

PN3          

Mr Arndt, for ABI?

PN4          

MR ARNDT:  Yes.

PN5          

JUSTICE ROSS:  Ms Wischer for the ANMF.

PN6          

MS WISCHER:  Yes, sir.

PN7          

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?

PN8          

MR LILLEYMAN:  That's right.

PN9          

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

PN10        

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

PN11        

JUSTICE ROSS:  All right.  Anyone else?

PN12        

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

PN13        

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

PN14        

Anyone else?

PN15        

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

PN16        

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

PN17        

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.

PN18        

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.

PN19        

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?

PN20        

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.

PN21        

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.

PN22        

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

PN23        

Mr Arndt, why do you need five months?

PN24        

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.

PN25        

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.

PN26        

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.

PN27        

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

PN28        

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.

PN29        

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 - - -

PN30        

MR WARREN:  Wholeheartedly.

PN31        

JUSTICE ROSS:  Yes.

PN32        

MR WARREN:  Yes, I understand, your Honour.

PN33        

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

PN34        

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.

PN35        

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 - - -

PN36        

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.

PN37        

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.

PN38        

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.

PN39        

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.

PN40        

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.

PN41        

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.

PN42        

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.

PN43        

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?

PN44        

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.

PN45        

JUSTICE ROSS:  I accept that.

PN46        

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

PN47        

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.

PN48        

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.

PN49        

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

PN50        

MS GRAYSON:  Please the Commission.

PN51        

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.

PN52        

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.

PN53        

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.

PN54        

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

ADJOURNED INDEFINITELY                                                            [2.14 PM]