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Fair Work Act 2009                                                    






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


Application by Health Services Union; Ellis & Castieau and Others


Aged Care Award 2010




12.30 PM, FRIDAY, 26 MARCH 2021


JUSTICE ROSS:  Can I just go through the appearances, at least as I have them?  Mr Warren for the AFEI, Ms Anna-Marie Wade for Aged and Community Services Australia, Mr Max Rezic(?) for the UWU, Mr McKenna and Mr Hartley of counsel, and various others for the ANMF, Ms Bailey for Leading Aged Care Services Australia, Ms De Platter for the HSU National Office.


For the applicants Ms Saunders of counsel, Mr Barklamb for the ACCI?  Mr Barklamb?  Who's here for ACCI?  I'm assuming people can hear me.  The Chamber of Commerce and Industry WA, Justin Lilleyman and have I missed anybody?


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


JUSTICE ROSS:  You're with Mr Rezic, are you, Mr Redford?


MR REDFORD:  I am, your Honour.


JUSTICE ROSS:  All right.  Do we have Mr Ward from ABI?  No.  All right, just bear with me for a moment.


All right.  So since the matter was last before me I received correspondence from Gordon Leibman(?), on behalf of the ANMF.  I published the statement, on 18 March, setting out what the ANMF had written in relation to.  I don't think I have the variations to directions that were sought.  Perhaps if I go to the ANMF representatives first and then I'll indicate - well, I'll indicate now, I've also received correspondence from the Australian Government Solicitor, indicating that the Australian Government will announce its response to the recommendations of the final report of the Royal Commission into Aged Care Quality and Safety on or before 31 May 2021.


I've also received correspondence from Maurice Blackburn, setting out its understanding of what's proposed and, essentially - well, I'll come to you, Ms Saunders, in due course, but, essentially, that correspondence indicates that the applications are premature and they don't support any variations to the directions.


Can I go to the ANMF who kicked this matter off?  Who's speaking on their behalf and what variations to the directions are you seeking?


MR J MCKENNA:  Thank you, your Honour, McKenna, initial J, for the ANMF, with Hartley, initial J, seeing permissions.


Your Honour, the proposed variations to the directions were filed with the Commission on Wednesday, 24 March, at 3.56 pm.  I'm happy to read those, if they're not available to you.  I'm sure they can be sent to - - -


JUSTICE ROSS:  No, no, that's fine.  Look, I'm sure we've got them, but what's the essence of them?


MR MCKENNA:  In summary, your Honour, the ANMF seeks that the orders of 18 December be set aside and that the ANMF file an application to vary the Nurses Award by 17 May.  Reference is also made to the UWU filing applications to vary the SCHADS Award on that same day as well, and Mr Radford can speak to that.


It's then proposed that the ANMF would file any agreed position, by 11 June and that a further mention to occur on the matter on 25 June.  Your Honour, that's a summary of what are significantly more complex and detailed than that, but that's the essence of what's sought by the ANMF.


JUSTICE ROSS:  Okay.  Thanks, Mr McKenna.


I should indicate, there's no need to seek permission to appear, it's a Modern Award variation matter and the rules provide that you don't need to seek permission in that regard.


MR MCKENNA:  Thank you, your Honour.


JUSTICE ROSS:  All right.  Well, let's go to, I think, you, Ms Saunders and I'm assuming - look, it's just a shortcut, I don't meant to cut off the UWU, but I'm assuming they support the position of the ANMF, is that right, Mr Rezic or Mr Redford, or do you have a different view?


MR REDFORD:  No, your Honour, and this is Ben Redford, for the UWU.  We do support that position, that's correct.


JUSTICE ROSS:  Okay, thanks.


Ms Saunders?


MS SAUNDERS:  Thank you, your Honour.


The HSU's main difficulty is with what's at proposed order 6 of the variation proposed by the ANMF, which is that the directions dated 18 December 2020 are set aside and it's implicit, not replaced.


The idea, as we understand it, is that the entire timetable for evidence and submissions, which has its first event next Thursday, be just vacated and, similarly, the three weeks of hearing that are programmed in November are vacated and not relisted.


That, inevitably, is going to cause significant delay, a year would be optimistic, to the HSU's claim, which is already - application, I should say, which has already been before the Commission for some six months.


We have no difficulty at all with the nurses making whatever application they would like to.  Difficult to comment on its effect on these proceedings, without having seen it.  The Nurses Award, of course, doesn't contain aged care specific provisions so there's at least a risk that it goes beyond the scope of these.


Similarly, more than happy for the United Workers Union to file whatever application it likes.  More likely than not the HSU would be involved in both of those, but the SCADS Award has the same difficulty, it goes well beyond aged care.  I don't think anyone is saying that disability workers are generally widely overpaid, with out seeing the application the scope can't quite be known.


Similarly, very keen to collaborate with everyone and have discussions with the government.  The Royal Commission's report may have been a touch optimistic, in terms of the prospects of reaching the same kind of agreement that was reached in the Family and Community Services case, some time ago.  But if the government, by the end of May, decides it wants to talk, we'll engage.  What we don't want to do is derail these entire proceedings because of what is presently a theoretical prospect.


The better course is for the nurses and UWU to make their application.  They can make that without directions, in whatever time they need, although it wouldn't seem to necessarily take a month, a month and a half, and then bring the matter back, to see if there are efficiencies in hearing them together.


JUSTICE ROSS:  Thanks, Ms Saunders.


Let's go back to the ANMF and the UWU and then I'll hear from the various employer interests?


MR MCKENNA:  Thank you, your Honour.


The reasons for the AMF's application are set out in the correspondence to the Commission, dated 16 March.  In essence, what the ANMF is seeking to do, by these variations, is to give effect to the recommendation of the Royal Commission final report.  That recommendation is set out in the correspondence.


The Royal Commission final report expressly anticipates that there be, as a first step, collaboration between the Commonwealth, unions and employers, then applications being brought to vary the relevant awards.


So the ANMF has taken steps to start that collaboration process.  The ANMF has written to the acting Minister for Industrial Relations, and has written to the Aged Care Industry Council, requesting that they make arrangements for speedy collaboration.  In my submission, that is something that should occur prior to the applications progressing in the Commission.


Secondly, the final report of the Royal Commission makes very clear that it anticipates that these applications progress together.  That's part of the report itself and, in my submission, makes very good sense, having regard to the efficiencies and the obvious overlap between the applications.


Obviously, if there are three applications they are going to be considering the same tests.  But in addition to that there's, in my submission, a significant overlap in the evidence that's going to be before the Commission about that.  In that sense I note, your Honour, that employees, under the Nurses Award, in the nursing assisted classifications, are, essentially, performing the same work as employees under the Aged Care Award in the personal care streams.


So to the extent that the Commission's having regard to work value issues, there is going to be a very significant overlap.  For that reason the applications should progress together.


The third issue, your Honour, is that the ANMF has started the process of looking at preparing an application but, as I said, it's submitted that that should be informed by and follow collaboration but also that is a process that will take some time.  That is why the ANMF have indicated that date of 17 May.  First, to give an opportunity for collaboration and then to allow time for the application to be properly before the Commission, such that there's no necessity for variations as the matter progresses, and changes to that application.


JUSTICE ROSS:  Thanks, Mr McKenna.


Mr Redford, anything you want to add, from the UWU's perspective?


MR REDFORD:  Your Honour, we support that position and I don't want to be in a position where I'm just simply repeating what Mr McKenna has said.


The only thing, perhaps, that is relevant to add is that our intention is to attempt to confine our application, in relation to the SCADS Award, to those elements of the award that relate to aged care.  Now, we are going to have to navigate how we do that, but we are conscious of the fact that any discussions that occur with government, which we also intend to engage in and support that they occur may impact on the way in which we attempt to do that, to confine the application in that regard, which is part of the reason why, for our part, we think that the timeframe that's been outlined is appropriate for us to frame that application to attempt to achieve that desired effect.


Otherwise, we support what has been said, on behalf of the ANMF, in relation to both the timeframe that's been proposed and also the impact that that will have on the directions that have been made, in relation to the Aged Care Award.


JUSTICE ROSS:  All right, thank you.


Mr McKenna, I want to make some preliminary observations to you and give you an opportunity to respond to those.  At the moment there's no application by your organisation, or the UWU, to vary either of these awards.


The first direction in the directions issued, back on 18 December, is directed to the applicant and union parties to file evidence and submissions by that date.  The applicant has already indicated that their application was not predicated on the Royal Commission report.


On the face of it, I see no reason to depart from the directions at this point.  When you file your applications I'll call the matter back on.  The position of the employers and the employer organisations is not adversely affected by that course of action because in the event that further material was to be filed by any of the union parties, then the various employer parties would, of course, be given an opportunity to be heard about the time they would need to respond to that material.  It's difficulty to deal with a joinder application, or the overlap that you say exists between the applications, without seeing the.


So I think until we get the applications filed, not only myself, but all of the other parties, are not really going to be in a position to make any sort of assessment about overlap or bases or anything of that nature, until we get that material.


You've known that you had to file whatever you wanted to say about the application that's presently before us, you had to file that material by 1 April.  You've known that since 18 December.


Now, if you subsequently filed an application relating to the Royal Commission to either vary the Aged Care Award, or any other award, well, we can deal with it then.  I mean all your application before me today would do is to stop the HSU filing the material that it's already presumably prepared.  No one else seems to be disadvantaged by that course at the moment.  The employer position is protected, for the reasons I've articulated.


MR MCKENNA:  Your Honour, what I would say in my response is that the ANMF has, having regard to the final report of the Royal Commission, tabled in parliament the first of this month, it has taken that and embraced the recommendation in that and is doing what it can to act consistently with that.  I won't repeat myself, your Honour, but that involves collaboration.  Then, in my submission, applications to vary the three awards being progressed in tandem.


So that is the approach that the Federation has taken, since the release of that report.  So the emphasis has shifted from the current HSU application to considering its own application and, as I've indicated, attempting to start that collaboration process.


So by reason of that, the ANMF won't be in a position to file material in respect of the HSU's application, on 1 April.  And, as I have indicated, for the reasons that are clearly articulated by the Royal Commission, it's my submission that the best way to approach the current application and, indeed, the further applications, which the ANMF and UWU have committed to make, by a specified date in the proposed directions, would be to put the current process on hold to allow that to occur.


JUSTICE ROSS:  Mr McKenna, all putting the current process on hold would do, would be to relieve you of your obligation to file material and evidence by 1 April.


MR MCKENNA:  With respect, your Honour, it would also allow the HSU's current application to be the subject of collaboration.


JUSTICE ROSS:  But nothing stops that.  Don't misunderstand my position, I'm not, by any stretch of the imagination, opposed to collaboration, engagement between the various parties, reflecting on the Royal Commission, et cetera.  The HSU has made it clear that their application is not predicated on the Royal Commission report.  It is pursuing it on a different basis.


It's been on foot for some time, has have the directions.  Whether you're in a position to comply with them or not is a matter for your organisations.


Once you file your applications then I can call the matter back on and I can hear argument about whether they should be heard together.  Joinder is always a curious notion in tribunal proceedings, but we can leave that for an exciting exchange of views for another time.  But I understand the thrust of it will be, they should be heard together because the evidence might be common and it's obviously more convenient for witnesses to give evidence across three matters, if it's substantially in the same terms, et cetera.


I understand that submission, but at the moment we don't have anything of that nature.  I'm struggling to see why, in those circumstances, I should amend the directions at this point.


MR MCKENNA:  Your Honour, I, of course, accept that the HSU's application was not predicated on the Royal Commission final report, but the simple fact is that we do now have the Royal Commission final report and it makes recommendations and, in my submission, those recommendations change the landscape in which the current application was filed.  As I've indicated, the approach of the Federation is to act consistently with those recommendations.


JUSTICE ROSS:  All right, thank you.


Mr Redford, was there anything further you wanted to say?


MR REDFORD:  Well, your Honour, I understand your Honour's point, however, we do support the position that's been put by the ANMF.  It may be the case, as the HSU's indicated, that it's not intending to frame its application around the Royal Commission report, but the reality is that the Royal Commission report was released after the application was filed and, for our part, we will absolutely be making reference to that report, with respect to out contribution to the application, in relation to the Aged Care Award.


I'd also submit to you, your Honour, that what will also be relevant is the government's response to that report.  What will also be relevant to the application, in relation to the Aged Care Award will be the government's response to that report as, indeed, will any discussions that occur with government, over the next month or so, which we've indicated to your Honour we intend to pursue, as was recommended by the Royal Commission.


Those discussions which will occur, will occur after 1 April and they will have a bearing on they way in which, at least speaking for the UWU's position, the UWU intends to respond to and make submissions about the application in relation to the Aged Care Award.


So that is why we say that requiring us to make those submissions, on 1 April, before those events take place, is, respectfully, we submit, premature and why a direction that that occur should be deferred.


JUSTICE ROSS:  Sure.  But the collaboration and discussions you're having with the Commonwealth, if that changes the shape of this, you've got liberty to apply to bring the matter back in and to seek whatever directions you want to seek at that point.


At the moment we don't know anything about those discussions, but we do have a claim, which is said to be not predicated on the Royal Commission report, that's been in progress for some time.


If circumstances change, any party is at liberty to make an application to vary the directions to take account of those circumstances.


Can I go to the employers, as I've indicated, the proposition that I'm putting for you to comment on is that the directions not be varied at this point, that I call the matter on for further mention and directions once the foreshadowed applications have been filed and, for that matter, if there is any further development that impacts on a party, they can request the matter to be brought back on.


I know that, at this stage, the employers are not required to file their evidence and submissions until the middle of August, so I wouldn't have thought a further mention, on the filing of the foreshadowed applications, prejudices anyone's position.  You'll have an opportunity to say what you wanted to say about those applications, whether they're heard together with this one, and whether that requires an adjustment to the current schedule.


But let me go to each of you and first in best dressed, so just launch off, whoever's ready to go first?


MR WARD:  Your Honour, it's Mr Ward.  Can I apologise for  being late and just to confirm, I continue to appear for the Australian Business Industrial, New South Wales Business Chamber.  I appear with Ms Wade, for the Aged Care and Community Services Australia, and I appear with Ms Bailey for Leading Aged Care Services Australia.  I apologise, I was late in.


Your Honour, that is a convenient position for my clients, with this observation.  As you could appreciate, my clients are concerned that they're facing an every complex set of applications and one of their key considerations is going to be the efficiency of how the matter runs.


You've given us an opportunity to have our rights reserved on that, that's more than satisfactory for my clients.  Our challenge is going to be the practical one, which is more than likely witnesses will be giving evidence, in relation to all classes of employees who claims are made for.  So our interest is going to be ensuring the putting on of that evidence is efficient and that the hearing of that evidence is sufficient.  But at this stage, your Honour, nothing has been done to prejudice that position so we're comfortable with that.


As to the dialogue that's developed this morning, about engagement of the parties and consultation and the like, can I just make this observation?  The Commonwealth have made it fairly clear that they're going to respond to the Royal Commission on 31 May.  Any constructive dialogue really will require that response before it gets any head of steam up.


Once that Commonwealth response is in the public domain, my client is more than willing and, in fact, would encourage participation in conferences chaired by the Fair Work Commission, to see if there is any opportunity for, at some level of consent, in the matter or matters that ultimately are the subject of application.


So at this stage, your Honour, given our concern is not prejudiced by the approach your Honour's adopting, we would be comfortable with it.


JUSTICE ROSS:  Thanks, Mr Ward.


Look, can I indicate that I, too, have a concern around the efficiency of the proceedings.  I think it's difficult to make any predictions about those matters until we see the shape of the applications that are to be filed.


Rather than going to each of the other employer representatives, does anyone have a different view to that expressed by Mr Ward?


MR WARREN:  Your Honour, could I interpose, on behalf of AFEI, Ralph Warren speaking?


Your Honour, we note the fact that your Honour has clearly indicated the safeguards for employer representatives in the current directions. We would be concerned if we were jammed for time, following a later application, bearing in mind that the employers have been given till mid-August to respond to material put on, coming up on 1 April and we would not want that to be prejudiced in any way by any later applications.


JUSTICE ROSS:  Can I indicate, look, that can be assessed once the later applications are in.  You'll have an opportunity to say whatever you want to say about the timetable then.  I don't think much can sensibly be said about that, at this stage, other than the fact that you will be given that opportunity and I'm conscious of the concern.


MR WARREN:  Thank you, your Honour.  I also note, of course, that the inference made, or the comment made by Ms Saunders earlier on that, indeed, the Nurses Award is an occupation award and covers nurses across all sorts of industries.  One would assume that in any application that may be made in the future, by the nurses, that that situation is clearly spelt out as what their application intends to cover.


But, your Honour, we don't have any difficulty with your Honour's comment, with respect to the directions made in December of last year are to continue and we will abide by our responsibilities, with respect to August.


JUSTICE ROSS:  All right, thank you.


Does any other employer representative have any different view?  No?  All right.


Mr McKenna, in respect of your application, I don't propose to vary the directions at this stage.  I will bring the matter back on once you and the UWU have filed your application.  I would invite you, in collaboration with the UWU, to file, together with the applications, what variation and directions you propose.


Presumably, from what you have said, that would involve the hearing of the three applications together and it would require some - if that application was acceded to, that would require some modification to the directions that have already been issued.


Once you've filed those variations or varied directions, I'll call the matter on, we'll publish all of that on the website page and every party will have an opportunity to comment on those.


I'd also encourage you to have a discussion about those, the variation directions that you might propose, with all of the other interested parties, prior to a mention so that you can endeavour to reach an agreed position, or at least you know where the area of dispute is likely to arise.


All right, thank you very one for your attendance.  As I've indicated, I'll bring the matter back on when the applications are filed and the variation for directions is sought.  Obviously, this matter will emerge - may have a degree of fluidity about it, if I can put it that way, and we can relist the matter, at short notice, to deal with that.


Yes, Mr McKenna?


MR MCKENNA:  I'm sorry, your Honour.  I understand your Honour's indicated that you're not prepared to vary the orders, in the manner sought by the ANMF.  Would your Honour consider varying the current order 1 to release the ANMF and, perhaps, the UWU from their obligation to file submissions by 4 pm on Thursday, 1 April?


I can say, speaking for the ANMF, that the focus has been, and will continue to be, on collaboration and the application to vary the Nurses Award.


JUSTICE ROSS:  Won't that have a consequential effect on the employers?  When are you proposing to file on the HSU's application?


MR MCKENNA:  Together with material in the ANMF's own application, your Honour.


JUSTICE ROSS:  No, I'm not prepared to make that variation at this stage.  I think you've known about it since 18 December.  We'll revisit the whole issue when the matter is brought back on for further mention.  But releasing you from one would have the necessary implication about, "When are you planning on filing it?".  Then the employers could rightly ask, well when are they being given to respond to it?


So until we know all of that, I'm not minded to vary the directions of 18 December in any way.


MR MCKENNA:  Commission pleases.


JUSTICE ROSS:  All right, nothing further?  Thank you very much, I'll adjourn.

ADJOURNED INDEFINITELY                                                            [1.03 PM]