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Fair Work Act 2009                                                    




AM2020/99 AM2021/63 AM2021/65


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


Application by Health Services Union


Aged Care Award 2010




11.00 AM, THURSDAY, 24 JUNE 2021


THE COMMISSIONER:  Good morning, everyone.  I understand in terms of appearances this morning, that we have Mr Hartley and with Mr White for the ANMF, Mr Gibian and Ms Grayson for the Health Services Union, Mr Ward for a number of employers, Mr Reeves for the Australia Government Solicitor's Office, Mr Warren for the AFEI, Mr McManus for the Chamber of Commerce in WA and Mr Redford for the UWU together with a number of other people in attendance.  Have I missed anyone in relation to appearances?  No.  We've got that covered.  All right.


Well, the matter's been listed this morning for a conference to deal with three issues, the question of whether all three applications to vary the Award should be dealt with jointly, future programming and any information or data requested from the Government.  Proposed directions have been filed by both the Health Services Union and the ANMF which deal with those matters.  We might just take each issue in turn.


So in relation to the first issue of whether all three applications should be dealt with jointly, I take it from the proposed directions from the HSU and ANMF that both parties at least wish for the matter - all three applications to be dealt with jointly.  Can I ask is there any party that has a different view that they'd like to put?  All right.  Well, we're off to a good start already.  All right.


I might deal with the third issue because that might or may not have an impact on the second and that is the question about any information or data requested from the Government.  Attached to the directions was a schedule of information sought from the Government from both the HSU and the ANMF.  If I start - well, perhaps if we start with an indication from you, Mr Reeves, I'm assuming that that's a large part of your interest in this morning's conference.  Have you had an opportunity and is there anything you wish to say in relation to the two schedules that have been put forward?


MR REEVES:  Thank you, Commissioner.  Yes, so we've had a brief opportunity to consider the schedules.  We firstly want to make clear that the Commonwealth does intend to assist the Commission and the parties by providing information and data relevant to the proceedings consistent with the Government's response to the relevant recommendation of the Royal Commission Report.


However, having only receive notice of the schedules yesterday morning, we've not - we and our instructors have not yet had the opportunity to consider all of the information sought and confirm both whether in all cases it's information data the Commonwealth is actually in a position to provide and where it is, whether it's information that we could provide by 23 July which is the time frame identified by the HSU and the ANMF.


As such, the Commonwealth would presently be opposed to a direction that it provide all such information set out in the schedules by that date, however, what we propose is that there be some discussion exchanged between the Commonwealth, the HSU and the ANMF with a view to trying to reach agreement on schedules of information and data that the Commonwealth could be provided.  We think there's a number of things in the schedules that the Commonwealth certainly can agree to and can provide quite quickly and there's other points where it's information that's not ready to hand and would require a bit of both refining of the categories and also a bit of work on the part of the Commonwealth to provide and so we'd seek some further time to provide that.


There's also some categories where either on a preliminary examination either the Commonwealth doesn't have that information or there's some concerns that that information may be subject to maybe material that is the subject of Cabinet deliberations or advice and so is material that we just wouldn't be in a position to provide and to the greatest extent possible, it seems preferable to resolve that through the relevant parties trying to reach agreement on the categories that are sought so as to avoid needing to deal with issues of Cabinet confidentiality more formally.  So that's what we'd have to say as a starting point on the request for information so ‑ ‑ ‑


THE COMMISSIONER:  All right.  Thank you for that.


Perhaps if I can start with you, Mr Gibian, what would you like to say in relation to what Mr Reeves has just put?


MR GIBIAN:  I think there's in short three matters that we raise.  Firstly, we're happy to - or the HSU is happy to engage in discussion with the Commonwealth in relation to the provision of information.  We'd obviously encourage the Commonwealth as I think it's indicated is willing to do, to respond to the categories and provide such information that it can provide as soon as possible.  Secondly, what they've indicated is that the Commonwealth would be in a position to respond in respect of all the categories at least by 16 July as to whether it will provide the information which is sought and we think a direction should be made to that effect.


The third observation I would make is that we don't think that this - that that process should delay what other directions should appropriately be made for the preparation of the case, that is it can operate concurrently with the parties preparing their evidence to be filed in the proceedings.


THE COMMISSIONER:  So if I understand what you're saying, Mr Gibian, what you're saying is that if the Commonwealth provide at least some of the information after the date indicated in your proposed directions, that that wouldn't impact on the remaining work to be done in terms of preparing evidence and submissions.


MR GIBIAN:  Yes.  We don't think it ought delay the parties generally from preparing the case for hearing by the Commission as soon as is reasonably practicable.  In terms of the provision of document by the Commonwealth, we've accepted a reasonable course might be in the first instance for the parties to be directed to have discussions and that the Commonwealth respond as to its (indistinct) or capacity to provide the information sought no later than 16 July.


Our expectation would be that hopefully by that date the Commonwealth would be able to indicate at the same time when it could provide the information that is sought in a complete form and if there is some dispute about that then the matter could be brought back before the Commission.


THE COMMISSIONER:  All right.  Thank you.


Mr Hartley?


MR HARTLEY:  Thank you, Commissioner.  Our position is slightly different to Mr Gibian's in, I think, two respects.  From our point of view, it may very well make a considerable difference to the ability of the parties to prepare and file their evidence within particular time frames when the information comes in from the Commonwealth.  That being the case, in particular, in terms of data that may be provided to expert witnesses or indeed lay witnesses and if on the 16th the Commonwealth were to say, "We need another month because this data isn't available, readily to hand but we can get it from the Australian Statistician", for example, that would blow up the timetable it seems to us.


For that reason, we would favour either of two possibilities. The first possibility is barely a direction which is to say, a direction itself and only this, that the Commonwealth indicate within a particular period of time, be it 16 July or some other date, what information it will provide and when and when that information is in hand and there can be further discussions about what directions should follow from that, that's not the approach that we favour.


The approach that we favour is rather that directions in the terms that we have proposed be made but noting expressly that the Commonwealth may seek to vary the scope and/or timetable of order 2 in particular and the liberty is reserved to the Commonwealth to make that approach and so the - what is in contemplation is, as Mr Reeves says, some or much or perhaps all of the data it might be capable of being provided by 23 July.  If so, great then there's a timetable in place for what follows.


If not, then the Commonwealth can, in the first instance, informally, there's no need for a direction to this effect, have discussions with the parties seeking to reach an accommodation as to when that information can be provided if that has no effect on the rest of the timetable, good.  If it does have an effect on the rest of the timetable then we're back before the Commission and if the parties cannot reach an accommodation as to the Commonwealth's difficulties, say that there is some issue about Cabinet confidentiality, then that can come back before the Commission by virtue of the Commonwealth exercising its liberty to apply.


So our preference would be for - or I should put it differently, in our submission, the appropriate course is that the directions proposed by the ANMF should be made with an additional notation that the Commonwealth in particular has liberty, not necessarily beyond the liberty in proposed order 8 but that the Commonwealth has liberty expressly to vary the order - seek to apply to vary the data and the scope of the information which is contemplated by order 2.


THE COMMISSIONER:  All right.  Thank you for that.


Mr Ward - or is there any other party that wishes to have anything to say in relation to the information sought for the Commonwealth?


MR WARD:  Commissioner, if I can just say this, I don't think it materially impacts my client's interests, some of the information being sought seems to be of general use, it's demographic information, it's funding related information.


I'm not sure how some of the other information being sought related to Government policy is going to be used in the case or tried to be used in the case but irrespective of that, whether or not one looks at the ANMF proposed timetable or the HSU proposed timetable, when one looks at the time for putting on the employer case, I suspect all of these issues would be answered so I think it's really a matter predominantly between the two unions and the Commonwealth, simply that we be kept informed as to where matters are at.


THE COMMISSIONER:  All right.  Thank you, Mr Ward.


Was there anyone else that I've missed?


MR REDFORD:  Commissioner, it's Ben Redford for the UWU, I should say firstly, Commissioner, where the UWU is not one of the applicants in any of these three applications but we have a significant interest in each of the three applications but we're not applicants and so I suppose my role in this discussion, Commissioner, is - I won't describe it as a cameo role but perhaps I'm a member of the supporting cast, Commissioner, and ‑ ‑ ‑


THE COMMISSIONER:  More than an extra, shall we put it that way?


MR REDFORD:  So it's - so having said that though, we are concerned broadly the UWU about the time frame in what appears to be quite a complex proceeding and that our members have enough time to participate in the matter in the manner in which they, I expect they would want to.  For that reason, Commissioner, we're attracted to the submissions made by the ANMF in relation to this matter and indeed the proposed directions that the ANMF have made and we would support those.




Look, Mr Reeves, having heard from everyone, what do you have to say in relation to Mr Hartley's proposal which is, as I understand it, the preferred option of, "Yes, the parties continue to have discussions about the scope and nature of the Commonwealth's ability to provide the information and data sought but the direction be maintained for some date at least, for the filing of material but noting that the Government can seek to vary the scope - either the scope of the schedule or the timing if those discussions are unable to resolve the matter.


MR REEVES:  I don't think we could be agreeable to that direction, Commissioner, firstly because my present instructions are that there's at least some of the information that we simply are not going to be able to provide within that time frame so we know that there's going to be at least some of it that we need more time to prepare and we also think there's at least - we're also fairly sure there's at least some of it that we're not going to be in a position to provide.


There's also a concern that the Commonwealth is directed to provide this material, we need to consider the interaction of the Commission's power to direct the Commonwealth to file that material against the provisions of the Aged Care Act which deal with information protected under that Act and that Act actually limits the capacity of court and court‑like bodies to require the production of material.  It's an issue we'd much rather resolve and that may confine the Commission's capacity to actually direct the filing of all of the material that's in the schedules.


It's an issue we'd much rather resolve through examining the schedules, putting proposals to the HSU and the ANMF as to how they might be varied so as to avoid the production of information the subject of such limitations but if we're directed to file such material before we have the chance to work through that, I think those issues are much more squarely raised and so I think we'd press for at most the Commission making a direction in the terms that the HSU are proposed where the Commonwealth is given a time to respond to the proposed schedules and indicate what material it can provide and the time frame in which it can provide it.


And if I can offer the Commission and the parties some comfort in terms of the timetable going forward, we do anticipate being able to provide quite a bit of the information by 23 July, so it doesn't directly answer to the schedules but we do expect that by 23 July we'd be in a position to provide the 2020 Aged Care Workforce Census data, historical and forecast Commonwealth Aged Care expenditure, some high level consolidated data on expenditure on staffing costs for residential aged care for the last four years only and some data relating to the aged care financial instrument.


And we expect that any further data that we can provide within the terms of the schedules would be available at the very latest by the end of August but I think we'd have to be opposed to a direction where we'd be almost certain to be seeking, if you were exercising that leave to seek at least some variation of it based on the present instructions I have, again, nothing that the Commonwealth just hasn't had very much time to consider these schedules and work through all the issues relating to providing that material.


THE COMMISSIONER:  All right.  Look, it seems to me that the ‑ ‑ ‑


MR GIBIAN:  There may be an intermediate course which is - which accommodates both sides which is that there is a direction that the Commonwealth provide such information as it is able to provide by a specified date and at the same time or around the same time it informs the parties and the Commission of any information which it is either unable to provide at that time in the time when it will be able to provide it, it expects - or any issue that it wishes to raise as to its - any constraint that exists upon its provision of information to answer the requests.  Obviously in the concept of discussions during - in the meantime.




MR HARTLEY:  Commissioner, might I - I'm sorry to interrupt you, Commissioner, might I say one or two things as well in response to what Mr Reeves has said?




MR HARTLEY:  Thank you, Commissioner.  The first is that the point about a direction being construed as requiring to - as requiring the Commonwealth to provide information that its prohibited by law from providing or which it can't be ordered to provide but that's easily dealt with by a carve out so you could append to the end of order 2 words to the effect of, you know, "Noting that nothing in this order requires the Commonwealth to produce information that it's prohibited by law from providing and nothing in this order requires the Commonwealth to produce documents that the Commission cannot order it to require."


So that's easy enough and then if there are debates about what's caught within those carve outs, then there are debates.  Secondly, if it is the case that some of the information that's sought by the union parties is provided as late as the end of August then inevitably there'll be an application, it seems to me, to vary whatever timetable is put in place, especially if it's the HSUs which contemplates the filing of material by 16 August but even if it's the ANMFs which contemplates the filing of material by 12 November.


So one way or another the parties are going to be back before the Commission either to debate the additional amount of time that's required for the Commonwealth to put on further information or to debate the additional amount of time that the union parties will require to put on their evidence and submissions which again, and I'll finish here, leads one to, I think, one or two views.  One, you either just make the direction that the Commonwealth provide information and then we're all back for another mention, or that there's a timetable which contemplates all steps to be done by particular times such as the ANMFs with liberty for the Commonwealth to apply if it sees fit to do so.


THE COMMISSIONER:  All right.  Look, I don't think it would be the best course to simply deal with the question of the Government information.  I hear what's being put about the different views as to whether the information that is ultimately provided will or won't have on the evidence to be put on by the applicants and other union parties.  That remains to be seen and really can't be ascertained until the information from the Commonwealth in whatever form and scope that ultimately ends up being is provided.


So I accept what you're saying in relation to it but the chances of a requirement for some further mention is pretty high but I think the better course is to issue directions for the entire programming of the matter and in relation to this issue my thinking is that something along the midway point that Mr Gibian suggested is probably appropriate in that the parties confer, the Commonwealth respond by 16 July indicting what information it can provide and by when, that it provide the information that it can by 23 July and there be liberty to apply which there would be, I think, in any of the directions, wherever we end up today.


That's sort of my view at this stage.  Was there anything else anyone wanted to relay - raise in relation to that issue otherwise we'll go to the remaining directions.


MR REEVES:  Commissioner, I might just suggest as an addendum to that midway point that, as I understand it, it would be we have a date of 23 July for the Commonwealth's response, a date - sorry, a date on 16 July for the Commonwealth's response, a date on 23 July to provide such information as it's able.  I assume that contemplates in part information where is able, that it include - exclude information the Commonwealth's not able to put together and then have ready in that time.


If that's the case, it might make sense to further give the Commonwealth leave to file any additional information that it's able to put together at a later date at some further point or in general if that information can be put together.  Of course that might affect the timetable but if that information is seen as relevant to the matter, it would seem unfortunate if we couldn't provide that information to the Commission without bring the matter back on to vary the directions just so that we could provide that additional information sought by the unions.


THE COMMISSIONER:  All right.  That sounds imminently sensible.  All right.


Now, in relation to the other proposed directions, there's some other common ground between the two proposed directions that have been filed and one of the major differences appears to be that the ANMF is seeking principally longer time in which to file material on behalf of the union compared to the Health Services Union.  I'll invite you first, Mr Hartley, to outline the basis for the timetable that you've put forward.


MR HARTLEY:  Yes.  Thank you, Commissioner.  I think a very important difference between the ANMFs proposed orders and the HSUs proposed orders is the existence in the ANMFs of a proposed order 3.  The proposed order 3 contemplates that the ANMF, but it doesn't have to be us, there will be filed an agreed position involving union parties, employers, employer associations and/or the Commonwealth in relation to the three variation applications by a particular date being 20 August and that partially goes to explain why all the other dates are later than the HSUs dates.  The reason for proposed order 3 is that it is directly responsive to recommendation 84 made by the Aged Care Royal Commission which recommended ‑ ‑ ‑


THE COMMISSIONER:  This is the collaboration point.


MR HARTLEY:  That's what it is, the collaboration point.  Our view is that it's inefficient to ignore that recommendation and proceed as though there can be no scope for the narrowing of issues before the parties are put to the expense of drafting submissions and preparing evidence and all these sorts of things, noting of course that all that is already underway but the narrowing of issues is likely to be efficient and cost‑effective in the longer term, even had it not been for that recommendation, we would say it's commonly expedient in the interests of efficiency in matters of this size to seek to define common ground whether by a pleading or, you know, more relevantly here an agreed statement of facts before filing evidence including expert evidence or written submissions.


It seems to us that there's ample scope in matters of the present kind for agreement if not between all parties then at least permutations or combinations of them.  So it might be that the unions reach common ground or a union with the Commonwealth or the unions with the employers but not the Commonwealth.  This is, it seems to us, something that hasn't yet been adequately explored, ought to be explored and that's what we contemplate by proposed order 3.  There would follow then a period of some time for the parties then, in light of what was been agreed, to file evidence and submissions.


The second rationale for proposed order 4, even if the Commission were against everything I said on proposed order 3 and thought that we should just proceed straight to evidence and submissions, still we would press for a date of Friday, 12 November.  I'm instructed that 16 July is too soon for a number of reasons, the first is that in the light of things that Mr Reeves has just said, on a best case scenario we will only, as at that date, have had data and information from the Commonwealth for a number of weeks which we say is insufficient.


If as a matter of fact the data and information or some of it including important some of it is provided later then the position is a fortiori and in any event, I'm instructed that given the size of these three applications, the number of witnesses including expert evidence and the complexity of submissions that even in a perfect world, even without order 3, even if the Commonwealth produced its material by 23 July, all of it, my client would simply not be in a position to file by 16 August and it's for those reasons that we propose the later date, all of those reasons but each of them individually as well, we propose the later date of 12 November 2021.


Everything else I think, then follows.  The end result is that the hearing that we propose commences three months after the hearing that the HSU proposes which we say in the context of three applications of this size, it's better to aim toward a hearing which you're confident won't be vacated because the parties are simply unable to meet hearing deadlines rather than try to compress it into a shorter, and we say impracticable time frame and where the difference is only a matter of a number of months, we say that the Commission would prefer the approach proposed by the ANMF.  If it please.


THE COMMISSIONER:  Thank you.  I mean, the difficulty in the balance that, you know, needs to be struck is the burden on the parties but also the capacity to deal with matters properly and quickly and at least in respect of the Health Services Union application in relation to the Aged Care Award, it is getting somewhat long in the tooth already and there's a legitimate basis or expectation that that matter be dealt with as quickly as practicable as well.  So it is a balancing act that we are dealing with today really, isn't it?


MR HARTLEY:  It is, Commissioner, but can I say in respect of that, that there are in fact two applications made by the HSU, the last one was filed only as recently as less than a month ago, it was 31 May.




MR HARTLEY:  Yes.  So there is that matter and in addition, I think the parties are now - the first thing we discussed, and we were all in furious agreement, was that these matters should be dealt with jointly.  The consequence of that is that it wouldn't make sense to timetable the later filed matters on the assumption that the starting point was that the filing date of the earlier filed matter.  Now we've got three applications, the latest of which was filed less than a month ago.


Since they are to be dealt with together, yes, of course it's the case we would never contradict the proposition that the Commission should deal with matters as quickly as it can but if, for example, the second application filed by the HSU or the application filed by my client in mid‑May, if that were to come to hearing by the date that the ANMF proposes, namely, 22 June, that's little over a year which for a matter of this size and this complexity involving this many parties, in our submission, wouldn't shock or scandalize the onlooker.


THE COMMISSIONER:  Well, that's true.  I mean, at the same time, you know, I accept what you're putting.  At the same time the parties to the two later applications do benefit in some respect, at least.  It would seem likely from the extensive material that has been filed in relation to the original application so - but I hear what you say.


Mr Gibian?


MR GIBIAN:  Thank you, Commissioner.  Look, on the part of the HSU we think that the matter should be able to progress significantly faster than is suggested in the ANMFs timetable and stepping back that the parties should be able to work towards a hearing in the first half of next year at least rather than in the second half which seems to be the course proposed by those directions.  We say that in this context, that the application of my client so far as the Aged Care Award is concerned, was filed in November of last year.


It filed evidence or it filed evidence of this year and the directions permitted the other unions to do so and the UWU did so, as I understand it, so far as the scope of that application was concerned.  The employers are subject to a current direction requiring them to put on evidence by 16 August in relation to those proceedings and have had a substantial period to - already to prepare that material.  The ANMFs application overlaps with that existing application at least so far as the personal care worker classification is concerned, that is, they were already on notice of and subject to directions in relation to at least that part of the workforce that is concerned with their application.


And so far as the application in relation to the SCHADS Award is concerned, that is an application by my client, it's not an application which is the more recently filed application.  That's an application by my client.  I don't understand the ANMF has any interest or coverage in relation to the classifications in - covered in that application and to the extent they're overlapping issues, they are issues of more general overview, that is, changes in the nature of Aged Care provision, acuity of residence and persons receiving aged care in the home which are already dealt with in the evidence that has been filed in the residential aged care proceedings.


So in terms of extending the time frames contemplated in the Aged Care Award application, we're dealing with a supplement that is to also deal with nursing classifications in residential aged care and to deal with the home‑based aged care covered by the SCHADS Award.  Much of the expert‑type evidence would be overlapping, we would apprehend, to the extent that it deals with changes generally in the nature of aged care provision and the industry generally speaking and in that context we think it should be possible to work towards a time frame that sees a hearing in the first half of next year and we have suggested the time frame of 16 August for applicant and other union parties and by December for the employer parties which would accommodate that arrangement.


So far as the direction 3 in the ANMFs directions are concerned, the contemplation of a discussion and agreed position so far as the union party employers and the Government is concerned, my client would not be obviously against such discussions occurring.  We do though, don't - do not think, however, that that should delay the preparation of the case in a sensible - the applications in a sensible way.  We note in that respect that the HSU has written to the Government requesting meetings to discuss that matter and was received earlier in the year and received no response from Government.


The response of the Government to the particular recommendation of the Royal Commission in relation to wage rates suggested no more than the Government's involvement would be to provide information and data to the Commission as required.  In those circumstances, we perhaps, regretfully, don't think that there is great prospect that the nature of the case will be altered, that need to be prepared would be altered in some fundamental way by discussions that were contemplated by the Royal Commission, assuming the Commonwealth were willing to enter into such discussions contrary to the evidence as it presently stands and in those circumstances, we don't think that process, as with the process of the provision of information ought delay the directions that would otherwise sensibly be made for the preparation of the proceedings.


Of course discussions can be ongoing while that process is occurring and if we're contemplating a hearing in the first part of next year, there is obviously plenty of time for that to occur if it produces some sensible result.


THE COMMISSIONER:  The other point that I - the related point that I understood Mr Hartley to make around order 3 was that it provides an opportunity for the issues to be narrowed and some agreement to be reached that would reduce the burden for all parties for preparing or responding to the applications, what's your view on that?


MR GIBIAN:  As I say, I don't - I'm not sure that was really what was contemplated by the Royal Commission recommendation and I think the Royal Commission optimistically contemplated that the Government and the employers and the unions would get together and produce an agreed outcome for wage increases.  We would obviously be very pleased if that were the outcome but as I say and live in hope but we don't think the prospects of that outcome are such that the timetable would be delayed.  So far as discussions which would seem to be of a somewhat different type in relation to narrowing the issues, obviously we would encourage those discussions to occur.


Again, we don't believe that it would - that that prospect ought delay, a sensible timetable being set and indeed the preparation of, for example some agreed statement of facts that may be possible in relation to the nature of the industry, composition of the workforce or the like, is likely to be informed by the preparation of evidence rather than warranting a delay in the timetable for the preparation of evidence and submissions for a potential hearing.  It's certainly something that could happen in parallel.


THE COMMISSIONER:  All right.  Thank you for that.


Did anyone else wish to say anything in relation to that programming or those issues that we have just discussed and I'm particularly interested around the view that's been put around the later timetable proposed by the ANMF.


MR WARD:  Commissioner, if I could make a couple of comments.  In terms of the time that's provided to us in both proposals, it seems to be roughly about four months from both unions so frankly, we're not in any sense prejudiced by either proposal but I do concede that some of what Mr Gibian has said today is obviously correct, we've been on notice in relation to the Aged Care application for some time and have been working on that.  We don't say that we favour one over the other.


In relation to ANMF order 3, that seems to be something that's got various limbs.  One, to the extent that there might be an opportunity for some agreed statement of facts about some matters in the case, my clients are open to exploring that with Mr Hartley or Mr Gibian or Mr Redford and we're available to do that.  Mr Gibian's correct, that's normally better informed when at least a reasonable amount of the evidence is put on but we're available for that.


There's a broader issue though, I think, emanating from order 3 as proposed and that is not about agreed statement of facts or reducing issues or suggesting what might be the nature of the contest itself, is the question, I think, emanating from order 3 about whether or not there could be some agreed outcome that could be presented in the matter.  All I can say about that is two things, one, my client's available to participate in conferences around that and will do so but I would ask whether or not there is a role for a member of the Commission if there is to be what might best be described as some conciliation process, is there a role for a member of the Commission to ensure that that occurs in a more orderly way.


Again, we think that would be a sensible thing to occur and we would participate in that process.  Like Mr Gibian though, we're not inclined to think that has to hold everything up, that could run parallel to the normal process of preparing and putting on the cases but order 3 does seem to have those two distinct limbs and we do ask the Commission to consider whether or not in relation to the second limb that is possible agreed outcomes, there is a role for the Commission to facilitate the process.


THE COMMISSIONER:  Thanks, Mr Ward.  In relation to that matter, I'm not sure that a formal direction would be required but certainly if the parties at any stage took a view that they would appreciate the assistance of the Commission in facilitating those discussions or some other role then you know, I'm sure it would be open to any such request.


Mr Warren?


MR WARREN:  Yes, Commissioner.  The AFEI does not have any difficulty with the amended proposed orders of the HSU that they filed two days ago, we could work within those.




Mr McManus, was there anything you wanted to say at this point?


MR MCMANUS:  No.  No great preference between, I guess the two distinct options other than the earlier the resolution the better so far as it's practically possible balancing the capacities of the various parties but, yes, no great preference.




And Mr Redford?


MR REDFORD:  Thanks, Commissioner.  Just two quick points.  Look, the UWU does have an interest in the application that's been made in relation to the SCHADS Award, a significant interest in it and I just make a couple of quick points in relation to our support for the longer time frame as proposed by the ANMF.  Firstly, Commissioner, the proposition being made by the shorter time frame is that interested parties have less than three months to file material in relation to an application that was made on 31 May.


I'm not going to pretend that we didn't have to - that the application wasn't a complete surprise to us, we were aware that it was in contemplation but nevertheless, the application was made on 31 May and the proposition is the parties would have less than three months to file material in relation - in support of it.  That is, in my submission, an extremely tight time frame for a proceeding of this complexity, it would be a tight time frame for any work value application, much less one that actually involves three awards and those awards being some of the more complex awards in the system and to be honest, Commissioner, I'm just not sure whether we can make it.


I mean, what we would be required to do is prepare and file material in relation to the application filed on 31 May that has to sort of grapple with the differences between the in‑home care and the residential care contemplated by the two different awards and then prepare material in relation to our support for the Nurses Award of which we also have an interest and of course grapple with the various legal issues that arise from the interaction of all three applications.


We have some material that has been filed in relation to the Aged Care Award, I accept that but there's a real question as to the extent to which that sort of detracts from the task that we face in relation to the Nurses Award and the SCHADS Award, a real question about whether it's going to make much difference in relation to the size of that task if at all and just the final point I'd make again, Commissioner, in support of the longer time frame is the conversation that we've had about the information that might be provided by the Government is incredibly important to this question of time frame.


I mean, it may be that we receive some of the information from Government in July, less than a month before we're required to file all of the material in support of the three applications as contemplated by the HSU time frame, indeed we might not receive that information by then and might even have less time and to me that's an extremely significant factor weighing in favour of the longer time frame and we'd support that longer time frame, Commissioner.


THE COMMISSIONER:  Thank you.  Thank you, Mr Redford.


MR GIBIAN:  Can I just add - I'm sorry to interrupt again.  The HSU's happy - would like everyone to have a reasonable opportunity to put on such materials they wish but we would just notice - note two matters, one is that within the evidence so far as the Aged Care Award application was concerned, it was required to be filed and was filed by all union parties on 1 April, that is four months after the application was filed, which included the Christmas period and without any perceived necessity to obtain the information which is now sought from Government to inform the applications generally speaking and that is some context in which an appropriate timetable might be considered.


And we also note that there is some concern that we have that evidence that was filed in April of this year will be well in excess of 12 months old by the time we get to a hearing of the matter on the timetable that is proposed - the longer timetable that is proposed and will then maybe need to be supplemented or the like in a manner which will only produce more delay and cost.


THE COMMISSIONER:  Look, I'm conscious of those matters, Mr Gibian and it also does appear to me to be highly relevant that in light of none of the employer's having a particular strong view around either proposal, the applicant in both the SCHADS Award and the Aged Care Award initial application proposing the shorter time frame and I heard what you said, Mr Gibian, in relation to the confined role that you described that the ANMF have in respect of the SCHADS Award, if any, and the significant overlap in relation to their application in relation to the Aged Care Award at least being confined to personal care workers and already been subject to the original (indistinct) to file material in that respect.


MR HARTLEY:  Commissioner, I'm very sorry to interrupt you but if you were about to rule, might I make another couple of points responsively?


THE COMMISSIONER:  I'm not about to.


MR HARTLEY:  All right, good.  All right.


THE COMMISSIONER:  But if there's something you want - what I was about to do was just run through some - a possible kind of alternative scenario and provide you each with an opportunity to say anything you wish to in relation to that.


MR HARTLEY:  In that case, I'll hold my piece, Commissioner, until you've outlined thus (indistinct).


THE COMMISSIONER:  So hold your fire just for a moment.  All right.  Look, all right.


So these would be potential directions with direction 1 being as per each of the HSU and ANMF directions for the joint dealing with the matter and within the evidence given in the matters admissible in relation to all of them, setting aside the directions of 18 December in relation to the Aged Care Award application.  I'll come - in relation to the provision of the information from Government, essentially a direction - as I indicated earlier, a direction that the parties confer on the scope and timing of the information to be provided by the Commonwealth with the Commonwealth to respond by 16 July as to what information it can provide and by when.


Provide the information that it can by 23 July and any additional information as soon as it's available.  A broad liberty to apply to any party, so in the event that the information provided by the Commonwealth does have a greater impact on - or has an impact that requires reconsideration to any of the other directions then that would be available.  To maintain the proposed direction 3 by the ANMF for the filing of any agreed position involving the parties by 20 August and then look, trying to provide some additional time, a direction that the applicants and other union parties file evidence and submissions by 17 September.


The employers to file evidence and submissions by 28 January so that's as close to the four months that we discussed earlier.  Applicants and other union parties to file and reply by 31 March.  A mention on 11 April to discuss witness scheduling which witnesses will be called for cross‑examination and if there is any agreed - any progress on an agreed statement of facts or any other matters to narrow the issues that that could all be dealt with.


The - list the matter for hearing of evidence from 26 April to 11 May with 12 and 13 May reserved if need be and then the further progress that the parties file closing written submissions regarding the evidence by 3 June 2022.  All the parties to file submissions in reply to that regarding the evidence on 24 June and the matters be listed for two days of oral hearing on 6 and 7 July '22 with the liberty to apply.


Did everyone get those?  There may be - anyway, I'll hear what you have to say about that option and I'll start with you, Mr Hartley.


MR HARTLEY:  Thank you, Commissioner.


THE COMMISSIONER:  You don't need to repeat all of the arguments you put before, I absolutely understand.


MR HARTLEY:  No, I won't repeat myself.  No, I understand, Commissioner.  I'll mainly, first of all, indicate that while that position is preferred by the ANMF to the HSUs position, it doesn't go far enough.  I won't repeat what I said principally about my client instructing me that it simply could not file its material prior to the date that it proposes so 17 September is better than August but still not enough time, I am instructed.  I won't dwell on that.  The points that I ‑ ‑ ‑


THE COMMISSIONER:  Well, look, perhaps you could just actually explain the basis for that.




THE COMMISSIONER:  What - why is it that that can't - couldn't be done?


MR HARTLEY:  It's twofold, I suppose, Commissioner.  The first reason is this.  Our concept of this application is that it is extraordinarily large in scope, requires a very large number of witness statements, it requires the finding of experts on very specialised fields of knowledge, the briefing of those experts, the briefing of those experts with the kind of information and data that we expect to get from the Commonwealth and that's not something that we think can or should be rushed.  That's, I think, the principle point.


Allied to that is - if I could take you, Commissioner, to the request that the ANMF did make for data, what you'll see in particular is that we have - we've set out the sort of rationale for the data that we seek, starting really with paragraph 4 are some propositions that we've drawn from the Aged Care final report, I think the punchline of which is subparagraph (3), 4(3):


The way that the Commonwealth funds the Aged Care sector directly affects how employers negotiate paying conditions -


- which I think surprises no one.  Then when one goes to the requests that we make for data starting with paragraph 8, there's some historical and prospective information about what sort of money is available but if you go down to 13 and 14 or 12, 13, 14.  12:


What will the budgeted money cover in terms of wage increase?




Will the Commonwealth commit to providing funding sufficient to meet wage increases?


And 14:


If no, it won't do that in some sort of open ended way, what increase will it commit to meet?


Now, that sort of information, if it's provided in a way that is responsive and of assistance and we imagine it will be given the Commonwealth's commitment, has, it appears to us, got the capacity to considerably affect the position of, of course the unions but more importantly, much more importantly, the employers who at least on our understanding which is borne out in the Royal Commission Report, take considerable guidance in respect from - in respect to the way that they negotiate paying conditions and one would imagine the way that they approach this application, from the amount of money that's going to be available.


So it appears to us that there is great benefit in first of all, the Commonwealth having the time that it needs and we think it could be done by the date that we specified but it says it needs longer, fine.  Providing information that directly responds in a helpful way to the issues that we identify, then subsequently an opportunity for the parties, certainly to agree in discussion about agreed facts and what have you, but also as, I think it was Mr Ward said, to seek to reach an agreed position.


We have no resistance to the Commission involving itself or the Commission being involved in some sort of conciliation but that strikes us being a very important step and therefore the time between - or the time for the taking of that step but then also the time for the contested part of the application such that continues to exist after conciliation to be progressed should reflect the importance of that step, that attempt by the parties to reach an agreed position and so that is why we say that it's appropriate for there to be a significant amount of time after that step has been taken, which is going to be by 20 August 2021 for the parties then to put on lay and expert evidence on the directions proposed by the Commissioner tentatively just now.


There's something like three and a bit weeks or four weeks and our submission is that that just isn't enough.  If I were to go further than that, Commissioner, I think I'd be repeating myself.  But no, sorry, there is one other point.  Mr Gibian made the point that the Commonwealth to this point doesn't appear to have been especially forthcoming in terms of discussions.  That may now change.


It's responded to the Royal Commission Report in a way that indicates a willingness at least to engage itself in discussions but even if it does not, even if the Commonwealth is entirely unhelpful, as I said earlier, there's scope for the parties to reach agreement as to particular points, whether between the unions or between the unions and employer organisations or some permutation or combination.  So we don't accept that the significance of that step is in any way undermined by any perceived recalcitrance of the Commonwealth.  Those are the points I think I wish to make, Commissioner, responsively.


MR WARD:  Commissioner, can we be heard?


THE COMMISSIONER:  Yes, certainly.


MR WARD:  We would support your proposed time frame, Commissioner.  Certainly it's our client's procedural fairness in the matter.  Perhaps we are seeing the matter in a slightly more contained way than some of the applicants are and that might be because we've just lived through the Teachers Work Value case and dealing with the Teachers Work Value case decision.  I'm not entirely sure the capacity to pay issue, while it might be relevant to a negotiated outcome, I have to say, it's not entirely directly related to the work value consideration that has to be worked through by the Commission, it's possibly more a section 134 consideration.


So I'm not - if the concern is additional delay largely because of information related to Government funding, with respect, that would seem as it arose in the Teachers' case, to be a secondary consideration rather than the primary consideration of work value.


THE COMMISSIONER:  Look, thanks Mr Ward.  That occurred to me and it's also, as I understand it, essentially an argument about efficiency and preference which, you know, for good reason I absolutely kind of understand that but that's a different proposition to the indication that the federation may not be able to meet this alternative timeframe.  It might mean some duplication or inefficiency in the event that the work compiling the evidence is advanced and a fabulous agreement is reached with the Commonwealth and all parties then there would be some effort thrown away but I suspect in those circumstances nobody would be overly agitated if that was the outcome.


Mr Gibian?


MR GIBIAN:  For our part, Commissioner, although somewhat slower than the timetable we proposed, we don't have a difficulty with what you've suggested, Commissioner.  So far as Mr Hartley's comments are concerned, I think I need to repeat that any discussions with Government and employed bodies could happen at the same time as the preparation of the case and the second point is that I would embrace what Mr Ward has said, namely that any (indistinct) Government funding intentions and the like are very much a secondary issue to the case, particularly in terms of the weight of what is required in terms of the preparation of evidence.


THE COMMISSIONER:  All right.  Thank you for that.


Mr McManus or Mr Warren, did you - what was your view?


MR WARREN:  If I could speak, please, Commissioner.  We have nothing to add other than to note particularly Mr Ward's comments with respect to work value and the issue of Government funding not being related to that.


THE COMMISSIONER:  All right.  Thank you for that.


Mr Redford, what would you like to say?


MR REDFORD:  No, nothing further from me, Commissioner.  I've made the points I wish to make on behalf of the union.  We sought from you more time, your proposal provides more time but we - they're not our applications, we accept that so we've said what we have to say.  Thank you.


THE COMMISSIONER:  All right.  Look, I've heard everything that's been put.  I'll confer with the President and anticipate directions being issued fairly promptly.  Is there anything else anyone wishes to raise before we adjourn?


MR WARD:  No, thank you, Commissioner.


THE COMMISSIONER:  All right.  Thank you all for your ‑ ‑ ‑


MR HARTLEY:  Not from us.  Thank you, Commissioner.


THE COMMISSIONER:  Thank you all for your time.


MR GIBIAN:  Thank you, Commissioner.

ADJOURNED UNTIL MONDAY, 11 APRIL 2022                           [12.10 PM]