PN612

DEPUTY PRESIDENT CLANCY: Good morning. Mr Minucci, your first witness, please?

PN613

MR MINUCCI: If the Commission pleases, I call Marie Johnson.

PN614

DEPUTY PRESIDENT CLANCY: Thank you. Good morning, Ms Johnson. If you could please turn on your camera and microphone.

PN615

MS JOHNSON: Yes, sure. Thank you.

PN616

DEPUTY PRESIDENT CLANCY: Thank you.

PN617

MS JOHNSON: Good morning, how're you going?

PN618

DEPUTY PRESIDENT CLANCY: Good. It's Deputy President Clancy, I'm sitting with my colleagues, Commissioner Bissett and Commissioner O'Neill. We are going to take your evidence now, so what will happen is my associate will take an affirmation from you, then Mr Minucci will lead your evidence and, after that, Mr Robson, who is the advocate for the ASU, will have some questions for you. All right?

PN619

MS JOHNSON: Sure, thank you.

PN620

DEPUTY PRESIDENT CLANCY: Thank you.

PN621

THE ASSOCIATE: Ms Johnson, please state your full name and address.

PN622

MS JOHNSON: Marie Therese Johnson, (address supplied).

<MARIE THERESE JOHNSON, AFFIRMED [10.04 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI [10.04 AM]

PN623

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci.

PN624

MR MINUCCI: If the Commission pleases.

*** MARIE THERESE JOHNSON XN MR MINUCCI

PN625

Ms Johnson, could I get you to state your full name again for the purposes of the transcript, please?‑‑‑Marie Therese Johnson.

PN626

And where do you work?‑‑‑I work for Whitehorse City Council in Nunawading, Victoria.

PN627

What's your position at the council?‑‑‑I'm the coordinator of human resources.

PN628

How long have you worked for the council?‑‑‑Since about 1994, October 1994.

PN629

Have you prepared a witness statement for the purposes of these proceedings?‑‑‑I have.

PN630

Have you had the opportunity to review that statement?‑‑‑I have.

PN631

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑They are.

PN632

If the Commission pleases, I tender that.

PN633

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, subject to the objection you've raised, is there any other objection to the receipt of this witness statement?

PN634

MR ROBSON: No, your Honour.

PN635

DEPUTY PRESIDENT CLANCY: Thank you. I will mark the witness statement of Marie Johnson, which is in the court book at page 292, as exhibit R9.

EXHIBIT #R9 WITNESS STATEMENT OF MARIE THERESE JOHNSON (PAGE 292 OF COURT BOOK)

PN636

Thank you. Anything further, Mr Minucci?

PN637

MR MINUCCI: If the Commission pleases, no further questions in chief.

*** MARIE THERESE JOHNSON XN MR MINUCCI

PN638

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson?

PN639

MR ROBSON: Thank you, Deputy President.

CROSS-EXAMINATION BY MR ROBSON [10.05 AM]

PN640

Ms Johnson, my name's Michael Robson, I'm an industrial officer with the Australian Services Union. I'm going to ask you some questions about your witness statement. Now, you're the coordinator of human resources. Do you work directly with the arts tutors?‑‑‑I don't. I engage with them through my role. Obviously, they will sometimes have queries to us and, yes, I have had some liaisons with them. Most of my discussions would be with the coordinator of the facility or their supervisor or manager.

PN641

So the management of that program is done by another person?‑‑‑Correct.

PN642

When you talk about the workforce, they're the arts tutors?‑‑‑Yes.

PN643

You are talking about things that have been related to you by another person?‑‑‑Yes, through my role, I guess. I don't work hands on with most of our 1400 employees, but I have an understanding of the work they do. I've been to that facility on numerous occasions and have met with the tutors from time to time. If there have been performance issues, then obviously I do meet face to face with them.

PN644

Yes?‑‑‑But I've never attended one of their classes, if that's the question.

PN645

You haven't included any rosters for this program with your statement?‑‑‑No, I haven't.

PN646

You haven't included a budget for this program with your statement?‑‑‑No, I haven't.

PN647

You haven't included in your witness statement any calculation of the cost impact of a two-hour minimum engagement on this program?‑‑‑No, I haven't.

*** MARIE THERESE JOHNSON XXN MR ROBSON

PN648

Is that because you haven't done that calculation?‑‑‑I haven't done it. Obviously, the managers of the facilities may have. Obviously, we're coming out of a period of COVID when the facilities weren't able to operate because of the CHO directions, so possibly the last 12 months, those figures would be a bit skewed because they were unable to operate some of those classes.

PN649

But you couldn't say for sure today what that would be?‑‑‑I couldn't, no. I'm sure the manager could.

PN650

You are aware that the council is covered by an enterprise agreement?‑‑‑Yes.

PN651

That enterprise agreement can include terms and conditions of employment that are different from those found in the underlying modern award?‑‑‑Yes.

PN652

No further questions, your Honour. Thank you, Ms Johnson.

PN653

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner Bissett or Commissioner O'Neill, do you have any questions, please?

PN654

COMMISSIONER BISSETT: No, thank you.

PN655

COMMISSIONER O'NEILL: No, thank you.

PN656

DEPUTY PRESIDENT CLANCY: Thank you. Mr Minucci, any matters arising?

PN657

MR MINUCCI: Nothing arising, Deputy President. I ask the witness be released.

PN658

DEPUTY PRESIDENT CLANCY: Thank you.

PN659

Ms Johnson, thank you for your attendance this morning and your evidence. You are excused now from further attendance. If you would like to remain as an observer, could I just ask that you turn off your camera and your microphone?‑‑‑That's fine. I won't be staying; I have some other appointments, but thank you for the offer.

PN660

Thank you. I won't take it personally. Thank you?‑‑‑Goodbye.

<THE WITNESS WITHDREW [10.09 AM]

*** MARIE THERESE JOHNSON XXN MR ROBSON

PN661

DEPUTY PRESIDENT CLANCY: Mr Minucci, who is next?

PN662

MR MINUCCI: If the Commission pleases, I call Sharon Bridgewater.

PN663

DEPUTY PRESIDENT CLANCY: Thank you. Good morning, Ms Bridgewater. Are you there? Could you please turn on your camera and microphone.

PN664

MS BRIDGEWATER: Yes, I am here.

PN665

DEPUTY PRESIDENT CLANCY: Thank you. It's Deputy President Clancy here, Ms Bridgewater. I am sitting in this case with my colleagues, Commissioner Bissett and Commissioner O'Neill, and we are going to take your evidence now. The process will be that my associate will take an affirmation from you, then Mr Minucci will lead your evidence and, after that, Mr Robson, who is the advocate for the ASU, will have some questions for you in cross-examination. Is that clear?

PN666

MS BRIDGEWATER: Yes.

PN667

DEPUTY PRESIDENT CLANCY: Thank you.

PN668

THE ASSOCIATE: Ms Bridgewater, please state your full name and address.

PN669

MS BRIDGWATER: Sharon Leigh Bridgewater, (address supplied).

<SHARON LEIGH BRIDGEWATER, AFFIRMED [10.11 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI [10.11 AM]

PN670

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci.

PN671

MR MINUCCI: If the Commission pleases.

PN672

Ms Bridgewater, could I get you to state your full name, please, for the purposes of the transcript?‑‑‑Sharon Leigh Bridgewater.

PN673

Where do you work?‑‑‑Glenelg Shire Council.

*** SHARON LEIGH BRIDGEWATER XN MR MINUCCI

PN674

What's your role at the council?‑‑‑Community grant and visitor information centre liaison officer.

PN675

How long have you worked at the council?‑‑‑Fifteen years.

PN676

Have you prepared a witness statement for the purposes of these proceedings?‑‑‑Yes.

PN677

Have you had the opportunity to review that statement?‑‑‑Yes.

PN678

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN679

If the Commission pleases, I tender that.

PN680

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, subject to the objection you have previously raised, are there any other objections to the statement of Ms Bridgewater being received into evidence?

PN681

MR ROBSON: No, your Honour.

PN682

DEPUTY PRESIDENT CLANCY: Thank you. I will mark the witness statement of Sharon Bridgewater, appearing at page 281 of the court book, as exhibit R10.

EXHIBIT #R10 WITNESS STATEMENT OF SHARON LEIGH BRIDGEWATER (PAGE 281 OF COURT BOOK)

PN683

Thank you, Mr Minucci, anything further?

PN684

MR MINUCCI: Nothing further in chief, if the Commission please.

PN685

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci. Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON [10.12 AM]

*** SHARON LEIGH BRIDGEWATER XXN MR ROBSON

PN686

Hello, Ms Bridgewater. My name's Michael Robson, I'm an industrial officer with the Australian Services Union. I'm going to ask you about your witness statement. Now, do you currently employ any casuals in the visitor centres?‑‑‑Yes.

PN687

How many would that be?‑‑‑Four at the moment.

PN688

Four?‑‑‑We are currently recruiting for more casual staff, though.

PN689

You haven't included any rosters with your witness statement?‑‑‑No.

PN690

And you haven't included any schedules for when the visitor centres are open?‑‑‑No, I haven't, no.

PN691

You haven't provided a budget for the visitor centres?‑‑‑No.

PN692

And you haven't provided with your statement any calculation or costing of the impact of a two-hour minimum engagement?‑‑‑No.

PN693

That's because you haven't done it; is that correct?‑‑‑That's right, yes.

PN694

No further questions, your Honour.

PN695

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner Bissett or Commissioner O'Neill, any questions?

PN696

COMMISSIONER BISSETT: No, thank you, Deputy President.

PN697

DEPUTY PRESIDENT CLANCY: Commissioner O'Neill, any questions?

PN698

COMMISSIONER O'NEILL: No, thank you.

PN699

DEPUTY PRESIDENT CLANCY: Thank you. Anything arising, Mr Minucci?

PN700

MR MINUCCI: If the Commission pleases, just briefly two matters.

RE-EXAMINATION BY MR MINUCCI [10.14 AM]

*** SHARON LEIGH BRIDGEWATER RXN MR MINUCCI

PN701

Ms Bridgewater, you were asked some questions about the existence of a roster. Can you give an example of what a roster might look like for casual employees?‑‑‑Casuals are employed ad hoc whenever there's leave or rostered days off, so the hours are varied from week to week, you know. One week, they might work five hours; the next fortnight, they might not work any hours; the next fortnight, they might work 20 hours. It's very, very ad hoc work.

PN702

What are the visitor hours for the centre?‑‑‑9 am till 5 pm daily, every day of the year, except for Christmas Day.

PN703

Is that the span of hours in which casual employees would be required to work?‑‑‑Yes.

PN704

Sorry, Deputy President, just one moment. If the Commission please, I'm grateful, I don't have any further questions in re-examination and I would ask the witness be released.

PN705

DEPUTY PRESIDENT CLANCY: Thank you.

PN706

Ms Bridgewater, just a question from me. You say you have currently got four casuals on the books, or that you've had four casuals used, and then you've just said they have been engaged on an ad hoc basis for coverage with leave and RDOs. Where they've been used in that context, what was the span of the shifts that they worked?‑‑‑5.5 hours.

PN707

Thank you. Unless there's anything arising out of that for anyone, I will excuse Ms Bridgewater from further attendance.

PN708

Ms Bridgewater, thank you for your attendance this morning. You are free to go. If you would like to remain as an observer to the hearing, you're welcome to do so, but I just ask that you turn off your camera and microphone; all right?‑‑‑Thank you. Bye bye.

PN709

Thank you. Bye now.

<THE WITNESS WITHDREW [10.15 AM]

PN710

Mr Minucci, have we any of the other witnesses in the waiting room or on hand?

*** SHARON LEIGH BRIDGEWATER RXN MR MINUCCI

PN711

MR MINUCCI: I'm hopeful that Ms Hunt is in the waiting room. I'm not sure, Deputy President, but Jacinta Hunt was the next proposed witness. We're hoping she's dialling in at the moment. If not, we can move to Shelley Ann Bourke, if she's dialled in at this stage.

PN712

DEPUTY PRESIDENT CLANCY: All right. I will just check with my associate to see who is perhaps in the waiting room. I'm advised that Shelley Ann Bourke is in the waiting room, so we will admit her now.

PN713

MR MINUCCI: Thank you, Deputy President.

PN714

DEPUTY PRESIDENT CLANCY: Good morning, Ms Bourke, it's Deputy President Clancy. If you could please turn on your camera and microphone. Good morning. I'm sitting in this case with my colleagues, Commissioner Bissett and Commissioner O'Neill, and we are now going to receive your evidence. The process we will follow is that my associate will take an affirmation from you, then Mr Minucci will lead your evidence and, after that, Mr Robson, who is the advocate for the ASU, may have some questions for you. All right? Thank you.

PN715

MS BOURKE: Okay, thank you.

PN716

THE ASSOCIATE: Ms Bourke, please state your full name and address.

PN717

MS BOURKE: Shelley Ann Bourke, (address supplied).

<SHELLEY ANN BOURKE, AFFIRMED [10.18 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI [10.18 AM]

PN718

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci.

PN719

MR MINUCCI: If the Commission pleases.

PN720

Ms Bourke, could I get you, please, to repeat your full name for the purposes of the transcript?‑‑‑Shelley Ann Bourke.

PN721

Where do you work, Ms Bourke?‑‑‑I work at the Glenelg Shire Council.

PN722

What's your role at the council?‑‑‑Aged and disability services manager.

*** SHELLEY ANN BOURKE XN MR MINUCCI

PN723

How long have you been in that role?‑‑‑Since 5 July 2021.

PN724

Have you prepared a statement for the purposes of this proceeding?‑‑‑Yes.

PN725

Have you had the opportunity to review that statement?‑‑‑Yes.

PN726

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN727

If the Commission pleases, I tender that.

PN728

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, subject to the objection previously raised, is there any further objection to the receipt of this statement into evidence?

PN729

MR ROBSON: No, your Honour.

PN730

DEPUTY PRESIDENT CLANCY: Thank you. I will mark the witness statement of Shelley Ann Bourke, which appears in the court book at page 278, as exhibit R11. Thank you.

EXHIBIT #R11 WITNESS STATEMENT OF SHELLEY ANN BOURKE (PAGE 278 OF COURT BOOK)

PN731

Mr Minucci, any further matters?

PN732

MR MINUCCI: If the Commission pleases, no further questions in chief.

PN733

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON [10.19 AM]

PN734

Ms Bourke, my name's Michael Robson, I'm an industrial officer with the Australian Services Union. I'm going to ask you some questions about your witness statement. You are giving evidence about the impact of a two-hour minimum engagement on home and personal carers. You haven't included in your statement any calculations or costings of the impact of a two-hour minimum engagement on the organisation?‑‑‑No, I haven't.

*** SHELLEY ANN BOURKE XXN MR ROBSON

PN735

Is that because you haven't done them?‑‑‑No, not specific to this case, but I manage the budget of the aged and disability service unit and understand what the cost constraints are.

PN736

But you haven't included them in your witness statement?‑‑‑No.

PN737

When you're rostering staff to work, do you roster staff so that their engagement aligns as closely as possible with the service provided to the client?‑‑‑Yes.

PN738

So, if a person was travelling between work locations, you would roster them at client A for the time directly facing with the client and then you would make a break in the roster for travel and then there'd be the next client?‑‑‑Travel is included in the service.

PN739

Okay?‑‑‑So we roster shifts concurrently.

PN740

I will take you to your paragraph. At paragraph 9, in the first dot point:

PN741

Casuals are used to backfill, which would require council to pay two hours for one hour of funded home care.

PN742

Now, do you use casuals to backfill when employees are on leave?‑‑‑Yes, sometimes when they're sick, for example.

PN743

When you were using a casual to backfill someone who was sick, how would you roster that work?‑‑‑It's on a case by case basis. It would depend on the casual's availability; it would also depend on what the client's needs were and what times we could accommodate because, as you would appreciate, when a worker is sick, that's usually not scheduled, so if they had, you know, a shower, for example, scheduled at 8 o'clock in the morning, we may not be able to schedule that until a mutually agreed time, later in the day sometimes.

PN744

So there is some flexibility in how you roster the casuals?‑‑‑On occasion there is, yes.

PN745

You haven't included any rosters with your witness statement?‑‑‑No.

PN746

No further questions, your Honour.

*** SHELLEY ANN BOURKE XXN MR ROBSON

PN747

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner Bissett, any questions?

PN748

COMMISSIONER BISSETT: No, thank you.

PN749

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner O'Neill?

PN750

COMMISSIONER O'NEILL: No, thanks.

PN751

DEPUTY PRESIDENT CLANCY: Thank you. Anything arising, Mr Minucci?

PN752

MR MINUCCI: Just briefly, if the Commission pleases.

RE-EXAMINATION BY MR MINUCCI [10.23 AM]

PN753

Ms Bourke, you were asked some questions about the budget for your area and you gave an answer to the effect that you understood the budget constraints that were operating in your area. What are those constraints?‑‑‑The service is substantially subsidised by ratepayer money between $200,000 and $300,000 per year, which has been the case for the last three to five years. The funding arrangement is per unit and it's just a case that the funding we receive per unit of home care or personal care doesn't meet the costs associated with delivering that care and, subsequently, council have to subsidise the program substantially. So, at the moment, you know, we're budgeted to make over a $200,000 loss on that service.

PN754

What effect, if any, do you anticipate the imposition of a minimum engagement period for your casuals to have on that budget?‑‑‑It'll further deepen the losses if we are forced to use a two-hour minimum engagement when we're only funded for one hour of service.

PN755

I am grateful, Ms Bourke. If the Commission pleases, I don't have any further questions for this witness and I would ask that she be released.

PN756

DEPUTY PRESIDENT CLANCY: Thank you. Ms Bourke, thank you for your evidence this morning and your attendance. You are excused from further attendance. If you would like to remain as an observer to the hearing, you are welcome to do so. I would just ask that you turn off your camera and your microphone if you do so?‑‑‑Thank you.

*** SHELLEY ANN BOURKE RXN MR MINUCCI

PN757

Thank you.

<THE WITNESS WITHDREW [10.25 AM]

PN758

DEPUTY PRESIDENT CLANCY: Mr Minucci, I understand we might have a further witness in the waiting room. I'll just check with my associate.

PN759

MR MINUCCI: Thank you, Deputy President.

PN760

DEPUTY PRESIDENT CLANCY: Thank you. We have both Ms Scott and Ms Hunt, so it's your call.

PN761

MR MINUCCI: If the Commission pleases, we'll go with Ms Hunt. I think she was supposed to be first, so, if the Commission pleases, I call Ms Hunt.

PN762

DEPUTY PRESIDENT CLANCY: Thank you. We will admit Ms Hunt to the room. Thank you, Ms Hunt, it's Deputy President Clancy. I'm hearing the matter with my colleagues, Commissioner Bissett and Commissioner O'Neill. We are now going to take your evidence and the process will be that my associate will take an affirmation from you, then Mr Minucci will lead your evidence and, after that, Mr Robson, who is the advocate for the ASU, will have some questions for you in cross-examination. Thank you.

PN763

THE ASSOCIATE: Ms Hunt, please state your full name and address.

PN764

MS HUNT: My full name is Jacinda Claire Hunt, (address supplied).

<JACINDA CLAIRE HUNT, AFFIRMED [10.26 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI [10.26 AM]

PN765

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci.

PN766

MR MINUCCI: If the Commission pleases.

PN767

Ms Hunt, could I get you to state your full name again, please, for the purposes of the transcript?‑‑‑Yes. Jacinda Claire Hunt.

*** JACINDA CLAIRE HUNT XN MR MINUCCI

PN768

Where do you work?‑‑‑I work at the Yarra Ranges Council.

PN769

What's your role at the council?‑‑‑I'm currently the acting youth development coordinator.

PN770

How long have you worked at the council?‑‑‑About 10 weeks.

PN771

Have you prepared a statement for the purposes of this proceeding?‑‑‑I have.

PN772

Have you had the opportunity to review that statement?‑‑‑Yes, I have.

PN773

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑It is.

PN774

If the Commission pleases, I tender that.

PN775

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, subject to the objections that you have raised previously, are there any further objections to the reception of the statement of Ms Hunt?

PN776

MR ROBSON: No, your Honour.

PN777

DEPUTY PRESIDENT CLANCY: Thank you. I will mark the witness statement of Jacinda Hunt, which is at page 296 of the court book, as exhibit R12. Thank you.

EXHIBIT #R12 WITNESS STATEMENT OF JACINDA CLAIRE HUNT (PAGE 296 OF COURT BOOK)

PN778

Any further matters, Mr Minucci?

PN779

MR MINUCCI: No further matters in chief, if the Commission pleases.

PN780

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON [10.28 AM]

*** JACINDA CLAIRE HUNT XXN MR ROBSON

PN781

Ms Hunt, my name is Michael Robson, I'm an industrial officer with the Australian Services Union. I'm going to ask you some questions about your statement?‑‑‑Mm-hm.

PN782

You haven't included with your statement any budget for this program?‑‑‑No.

PN783

You haven't included any calculations or costings of the impact of a two-hour minimum engagement?‑‑‑No.

PN784

Is that because you haven't done it?‑‑‑We haven't done it, and also the cost would not be prohibitive; it would be the impact that would be prohibitive.

PN785

What do you mean by the impact would be prohibitive?‑‑‑It would just mean that the young people who are youth ambassadors who attend meetings, they would be paid for the three hours that they have per week, it just means they will just be less effective in attending meetings, or they wouldn't be able to attend as many meetings.

PN786

Are you aware that the Yarra Ranges Shire Council is covered by an enterprise agreement?‑‑‑Yes.

PN787

That enterprise agreement can include terms and conditions of employment that are different from the modern award?‑‑‑Yes.

PN788

And so couldn't you find some arrangement through those negotiations to allow those staff to attend those meetings?

PN789

MR MINUCCI: I object to that. There's a number of matters. There's no evidence about whether or not Ms Hunt's exposed to any of the negotiations for an enterprise agreement; it's an inherently unsuitable question because it contemplates negotiations through bargaining and, of course, it's possible to bargain in respect of any matters, but, in my submission, it's not a matter for this witness to depose to.

PN790

DEPUTY PRESIDENT CLANCY: Well, that's the nub of it, isn't it? I mean the proposition is that if there was enterprise bargaining, there might be negotiations, they might cover this thing, they might not, but, at the end of the day, any agreement would have to be approved by the employees and meet the better off overall test. How far it advances things, I don't know, but - - -

*** JACINDA CLAIRE HUNT XXN MR ROBSON

PN791

MR ROBSON: The question is withdrawn, your Honour.

PN792

DEPUTY PRESIDENT CLANCY: Yes. Thank you. Anything further?

PN793

MR ROBSON: No, thank you, your Honour.

PN794

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner Bissett, any questions?

PN795

COMMISSIONER BISSETT: Yes.

PN796

You made a comment before, Ms Hunt, with respect to that the cost wouldn't be prohibitive but the impact would be and you said - and this is in your statement as well - that the youth ambassadors wouldn't be able to attend all of the required meetings. I'm just not quite sure why that would be the case?‑‑‑At the moment, they've got three hours a week to attend meetings, so they might attend three meetings online, virtual meetings, they might attend three meetings and have impact with three different groups of people. If there was a two-hour minimum, that would mean that they would only really be able to attend one meeting instead of three.

PN797

Are those meetings generally scheduled back to back or dispersed through the week?‑‑‑Through the week, yes, they're not back to back, generally.

PN798

So you would look at spending the same amount of money, in effect, but you would have to reduce the number of meetings they attended because they would get the two-hour (audio malfunction). Thank you, I understand?‑‑‑Correct.

PN799

That's all from me, thank you, Deputy President.

PN800

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner O'Neill?

PN801

COMMISSIONER O'NEILL: No, nothing from me, thank you.

PN802

DEPUTY PRESIDENT CLANCY: Thank you. Mr Minucci, any matters arising?

*** JACINDA CLAIRE HUNT XXN MR ROBSON

PN803

MR MINUCCI: Nothing arising, Deputy President. I would ask the witness be released.

PN804

DEPUTY PRESIDENT CLANCY: Thank you. Ms Hunt, thank you for your attendance and evidence this morning. You are excused from further attendance. If you'd like to remain online to observe the balance of the hearing, you're welcome to do so. I would just ask that you turn off your camera and microphone?‑‑‑Okay, thank you.

PN805

Thank you.

<THE WITNESS WITHDREW [10.32 AM]

PN806

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci, I believe we have Ms Scott in the waiting room.

PN807

MR MINUCCI: Yes, Deputy President, I call Ms Scott.

PN808

DEPUTY PRESIDENT CLANCY: Thank you. Good morning, Ms Scott, it's Deputy President Clancy. I am sitting in this matter with my colleagues, Commissioner Bissett and Commissioner O'Neill. We are going to receive your evidence now and the process will be my associate will take an affirmation from you, then Mr Minucci will lead evidence from you, and then Mr Robson, who is the advocate for the ASU, will have some questions for you in cross-examination. All right?

PN809

MS SCOTT: Sure.

PN810

DEPUTY PRESIDENT CLANCY: Thank you.

PN811

THE ASSOCIATE: Ms Scott, please state your full name and address.

PN812

MS SCOTT: Simone Maree Scott, (address supplied).

<SIMONE MAREE SCOTT, AFFIRMED [10.34 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI [10.34 AM]

PN813

DEPUTY PRESIDENT CLANCY: Thank you. Mr Minucci?

*** SIMONE MAREE SCOTT XN MR MINUCCI

PN814

MR MINUCCI: If the Commission pleases.

PN815

Ms Scott, could I get you to please state your full name again for the purposes of the transcript?‑‑‑Simone Maree Scott.

PN816

Where do you work, Ms Scott?‑‑‑Glenelg Shire Council.

PN817

What's your role?‑‑‑The contract and procurement coordinator.

PN818

How long have you worked for the council?‑‑‑Since 1993.

PN819

Have you prepared a witness statement for the purposes of this proceeding?‑‑‑Yes, I have.

PN820

Have you had the opportunity to review that statement?‑‑‑Yes, I have.

PN821

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN822

If the Commission pleases, I tender that.

PN823

DEPUTY PRESIDENT CLANCY: Thank you. Any objection to the tender of the statement, please, Mr Robson?

PN824

MR ROBSON: None, save the one we highlighted yesterday.

PN825

DEPUTY PRESIDENT CLANCY: Thank you. Then I will mark the witness statement of Ms Simone Scott, which appears in the court book at page 276, as exhibit R13.

EXHIBIT #R13 WITNESS STATEMENT OF SIMONE MAREE SCOTT (PAGE 276 OF COURT BOOK)

PN826

Thank you. Anything further, Mr Minucci?

PN827

MR MINUCCI: One brief matter, Deputy President.

*** SIMONE MAREE SCOTT XN MR MINUCCI

PN828

Ms Scott, at paragraph 3 of your statement, you say that your kindergartens are over 300 square metres?‑‑‑Yes, that's correct.

PN829

Do you have any other facilities that are greater than 300 square metres?‑‑‑Yes, we do.

PN830

What are they?‑‑‑So we have the animal welfare centre, which is just a fairly new building that's come on board.

PN831

Any more?‑‑‑And our community facilities where we have staff working out of, so the Fawthrop Community Centre, the Fitzgerald Street depot and our main office in Cliff Street.

PN832

Do your observations in your statement in respect of cleaning an area greater than 300 square metres apply to those properties and facilities as well?‑‑‑Yes, it would.

PN833

If the Commission pleases, I don't have any further questions in chief.

PN834

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, please.

PN835

MR ROBSON: Thank you, your Honour.

CROSS-EXAMINATION BY MR ROBSON [10.36 AM]

PN836

Ms Scott, my name's Michael Robson, I'm an industrial officer with the Australian Services Union. I'm going to ask you some questions about your statement. Ms Scott, you haven't included a schedule or a roster of the cleaning services the council requires; is that true?‑‑‑Sorry, you just cut in and out then. I didn't catch all of your question.

PN837

My apologies, and please let me know if my connection isn't working properly?‑‑‑Sure.

PN838

You haven't included a roster of the cleaning services that the council provides?‑‑‑No, I didn't.

PN839

You haven't included a budget for the cleaning services?‑‑‑Not within my statement, no.

*** SIMONE MAREE SCOTT XXN MR ROBSON

PN840

You haven't included a figure for the cost of a two-hour minimum engagement, if that was applied?‑‑‑No, I didn't do that either.

PN841

Is that because you haven't done that calculation?‑‑‑Not to date, no.

PN842

So, when you talk about the impact of the two-hour minimum engagement on your cleaning department, that's speculative, isn't it?‑‑‑Sorry, your last bit just cut out then.

PN843

My apologies, Ms Scott, I'll repeat the question?‑‑‑Thank you.

PN844

When you talk in your statement about the impact of a two-hour minimum engagement on the cleaning service, that is speculative; yes?‑‑‑Yes.

PN845

Thank you, Ms Scott. No further questions, your Honour.

PN846

DEPUTY PRESIDENT CLANCY: Thank you. Any questions, Commissioner Bissett?

PN847

COMMISSIONER BISSETT: No, thank you, Deputy President.

PN848

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner O'Neill?

PN849

COMMISSIONER O'NEILL: No, thank you.

PN850

DEPUTY PRESIDENT CLANCY: Thank you. Mr Minucci, any re-examination?

PN851

MR MINUCCI: Just one matter briefly, Deputy President.

RE-EXAMINATION BY MR MINUCCI [10.38 AM]

*** SIMONE MAREE SCOTT RXN MR MINUCCI

PN852

Ms Scott, you were asked a question a moment ago about your assessment of the impact of the minimum engagement period and you gave an answer where you said it was speculative. What are the matters in your knowledge and experience that would inform your views about the impact or otherwise of a minimum engagement period for casuals?‑‑‑Sure. So, at the moment, we have some permanent part-time staff who are engaged to clean our kindergartens and they're engaged for 1.5 hours per day five days a week. So, if one of those staff members was to phone in ill or was on annual leave, the minimum engagement would be, if this was to go through, would be two hours per day over the week, so, obviously, we would see an increase of 30 minutes per day for cleaning, or we would just have to pay someone for two hours where only 1.5 hours' work is required.

PN853

If the Commission pleases, I have no further questions for Ms Scott and I would ask that she be released.

PN854

DEPUTY PRESIDENT CLANCY: Thank you. Ms Scott, thank you for your attendance and your evidence this morning. You are excused?‑‑‑Thank you.

PN855

You are welcome to remain as an observer for the balance of the hearing, but if you do so, I would just ask that you turn off your camera and microphone. Thank you?‑‑‑I'll excuse myself because I'm actually on holidays in Queensland.

PN856

Thank you, Ms Scott?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.40 AM]

PN857

DEPUTY PRESIDENT CLANCY: I can't imagine why she didn't want to stay.

PN858

MR MINUCCI: I can't imagine either. If the Commission please, that's the case for the councils and the library corporations.

PN859

DEPUTY PRESIDENT CLANCY: Thank you. We have completed the evidentiary cases for both parties. Would the advocates require a short break before we proceed to oral submissions to do any final preparation having regard to the evidence this morning?

PN860

MR MINUCCI: I would, Deputy President, be grateful for that indulgence. I know that my learned friend has sent through some case authorities upon which he proposes to rely about 15 minutes ago, so I haven't had an opportunity to review those yet and I'm not sure what paragraphs he intends to rely on at this stage, but that's by the by, but I would appreciate at least, if the Commission is minded, 20 minutes to half an hour so that I can collect my thoughts and look at that material before we commence closing, and I would still anticipate that we would be able to conclude at lunch time.

*** SIMONE MAREE SCOTT RXN MR MINUCCI

PN861

DEPUTY PRESIDENT CLANCY: All right, thank you. On that basis, the Commission (audio malfunction).

PN862

MR ROBSON: Apologies, Commissioner, you cut out for me.

PN863

DEPUTY PRESIDENT CLANCY: Sorry, Mr Robson, I must have cut out. I was just saying that the Commission will adjourn now until a quarter past 11.

PN864

MR MINUCCI: If the Commission pleases.

PN865

MR ROBSON: If the Commission pleases.

PN866

DEPUTY PRESIDENT CLANCY: Thank you.

SHORT ADJOURNMENT [10.42 AM]

RESUMED [11.16 AM]

PN867

DEPUTY PRESIDENT CLANCY: Thank you. We will now proceed to oral submissions. We will start with you, Mr Robson, please.

PN868

MR ROBSON: Thank you, Deputy President. The ASU's case is fairly simple. There is a need to protect employees with a minimum engagement and there isn't any evidence before you that would demonstrate that this would cause an impact on councils that are so adverse that this fairly standard protection, this almost universal protection for employees in the modern award system, shouldn't be applied in this case, and certainly in the areas in dispute here, there isn't evidence before the Commission that would persuade you that a two-hour engagement is inappropriate. In fact, the evidence before you would demonstrate that it is. These employees are as deserving and have as much of a need for a two-hour engagement as any other employee in the country.

PN869

What I propose to do, I will rely on our outline of submissions that was filed on 22 February; I will make some comments on the jurisdictional points we have raised there and take you to some decisions that are relevant to your task in this proceeding; I will then address the evidence that's been heard with reference to the specific areas that are in dispute, and that will be what I intend to do.

PN870

Just to frame this, there are a limited number of areas in dispute. The parties have agreed that the majority of people covered by this award should have the protection of the two-hour engagement, and there is a small number of carve-outs for this general agreement. Those are: home carers; arts and culture employees; livestock and sale yards; library shelvers; pound attendants; community drivers; childcare workers in playhouses; occasional childcare workers in leisure and aquatic centres; youth workers in social and community services, and visitor information services. That's the area in dispute.

PN871

The legislative framework is set by the Fair Work Act. The Commission is granted the power to vary modern awards by section 157 of the Act. The Commission's powers to vary modern awards are limited by section 136 and 138, 136 limiting the terms that are permitted or required by the Act and terms that should not contravene the Act. Section 138, I will go into some more detail about that because it says:

PN872

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

PN873

The modern awards objective is at section 134(1) of the Act and it outlines that the modern awards objective is to provide a fair and relevant safety net of terms and conditions, taking into account a list of statutory criteria at subclauses (a) through (h).

PN874

These statutory considerations all must be given equal weight and none must be given more weight than the other, but they are not the modern awards objective; it's not simply a checklist of these subclauses. The objective is to provide a fair and relevant minimum safety net of terms and conditions, taking into account those considerations, and this applies wherever the Commission exercises its powers under Part 2-3 of the Act, which relates to awards.

PN875

Additionally in this case, the State reference public sector awards objective is relevant to the proceedings. This provision has been given relatively less consideration than the modern awards objective simply because there's a smaller number of State reference public sector awards. I will read out section 168F(1), which outlines the public sector modern awards objective, which is the need for the Commission to recognise:

PN876

the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and

PN877

that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.

PN878

There doesn't appear to have been significant consideration of what this means by any Full Bench, but some of the consideration of the history of the Victorian Local Government Award provides some guidance.

PN879

I will take you to one of the decisions that I refer to in my list of authorities. That is State Reference Public Sector Transitional Award Modernisation [2015] FWCFB 3349 at paragraph 13. I won't read that entire paragraph, but the relevant point - the text I want to highlight is this quote:

PN880

In our view, the modern awards objective is best served by a high degree of commonality between awards applying to comparable employees. It follows that the existing modern local government award will be a major influence over the terms of the state reference award.

PN881

This is in the context of a decision making the Victorian Local Government Award. The ASU had a claim for a modern award on terms very different to the Victorian Local Government Award. The Commission rejected our application and instead created an award with certain tailoring that reflected the Local Government Award 2010, as it was then, which applies to local government in the federal system outside of Victoria and to people providing employees to local governments on an on-hire basis in Victoria. What we are saying there is that the conditions that apply in that award, there should be some consideration of that and they are relevant to what conditions should apply in this award.

PN882

This is particularly important, we say, in this case where there has been significant consideration of minimum engagements by several Full Benches. There's been consideration of not just the industry of local government but also several of the occupations that are currently in dispute, most particularly the consideration of minimum engagements for home care employees and disability services employees covered by the Social, Community, Home Care and Disability Services Industry Award, and we say that influence continues. This is a position that the Full Bench in this case should adopt and take forward in its considerations.

PN883

This is particularly relevant to this case. The Commission, obviously, isn't bound by stare decisis, but there is, we say, a well-established principle that it should follow previous Full Bench decisions, particularly in modern award matters, for public policy reasons.

PN884

I will take you to another of our authorities. That is the Preliminary Jurisdictional Issues [2014] FWCFB 1788 decision. There, at paragraph 25 through 27, are the relevant propositions. While this decision is not directly relevant to the current matter - it concerns the four-yearly review - it is probably the most authoritative consideration of the Commission's powers in award matters and its principles of application in that matter. At 26, the Full Bench then said: 'While the Commission is not a court' - sorry, I apologise - at 25, the Commission cites a High Court decision, Nguyen v Nguyen, and quotes:

PN885

When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.

PN886

I will exclude the reference in that quote. The Commission went on to say:

PN887

While the Commission is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Commission. As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel):

PN888

'Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so.'

PN889

These policy considerations tell strongly against the proposition that the Review should proceed in isolation unencumbered by previous Commission decisions. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.

PN890

DEPUTY PRESIDENT CLANCY: How far does the relevance extend in this matter? For example, we have, at a macro level, a minimum engagement for casual employees and then, at a more micro or focused level, minimum engagements as they have appeared in local government awards, whether they be federal or pre-reform or pre-modernisation Victorian awards? So, we have got a broad principle that you're seeking to have us invoke about what should be a minimum engagement for casual employees per se and then, in terms of following previous decisions of the Commission, what do you say exists or that we should have regard to that pertains to local government?

PN891

MR ROBSON: I think we need to be looking at the context in which the Victorian Local Government Award was made and the intention of the Commission in that decision for it to replicate the Local Government Industry Award 2010, as it was then, and deliberately rejecting the ASU claim for an award that reflected the previous Victorian state award that applied to local government. So, the Commission has rejected that historical consideration; it's tailored that award to some, you know, specific considerations for the Victorian Local Government Industry Award, and then we will come to the discussion of the general principles established by the Fair Work Commission Full Bench in a minute.

PN892

DEPUTY PRESIDENT CLANCY: Okay.

PN893

MR ROBSON: What we say there is that there are a number of decisions pressing on this Full Bench to apply a two-hour minimum engagement. It has developed as a standard in the modern awards system as something necessary to provide a fair and relevant safety net, but accepting that each award needs to be reviewed in its own terms and there may be reasons to depart from that. What we say is the evidence doesn't show that there's a reason to depart from that.

PN894

That comes to another relevant point from the Preliminary Jurisdictional Issues decision and that's at paragraph 22. This concerns the level of evidence that's required by the Commission to act. There the Commission addresses a submission by Australian Business Industrial, shortened to ABI at paragraph 22, and I will quote, that ABI:

PN895

contended that the procedure adopted by the Commission should reflect the nature of the issues involved. In some cases this approach may require a formal hearing with the presentation of evidence sufficient to move the Commission to exercise its discretion to vary a modern award.

PN896

They go on to say:

PN897

This is likely to be the case where a major change is sought to be made to a modern award and the proposal is contested. In other cases a formal hearing or evidence may not be necessary.

PN898

And they give two examples: one is where an award variation may be self-evidently necessary, and they give the example of a mistake; and the other is where the industrial parties have reached a high level of consensus.

PN899

In relation to the uncontested matters, we say there is a high level of consensus between the parties. In this case, the Australian Services Union, which is a registered organisation of employees with a substantial amount of experience covering these workers, and the 77 local councils, represented in these proceedings by Meerkin & Apel, and presumably they have industrial advisors internally and have received legal advice about this from Meerkin & Apel, so we can take it that informed industrial parties have reached that consensus. So, even though there isn't evidence before the Commission about the areas that are agreed, you can feel safe in this case to make those variations.

PN900

DEPUTY PRESIDENT CLANCY: So, you would say that for the matters that the parties have reached a consensus on during the course of this proceeding, we can proceed on the basis of the principles outlined in paragraph 22 of the Preliminary Jurisdictional Issues?

PN901

MR ROBSON: Yes.

PN902

DEPUTY PRESIDENT CLANCY: Okay. I apprehend you will then take us to from where we should be guided for the contested matters.

PN903

MR ROBSON: Yes, indeed, and that's paragraph 23.

PN904

DEPUTY PRESIDENT CLANCY: All right.

PN905

MR ROBSON: There the Commission - and it's the last sentence that we say is relevant:

PN906

Where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

PN907

DEPUTY PRESIDENT CLANCY: The interesting feature of the case here, though, is you are proceeding on the basis - and correct me if I'm wrong - that the Victorian Local Government Award, as it currently stands, doesn't have the two-hour minimum.

PN908

MR ROBSON: Yes.

PN909

DEPUTY PRESIDENT CLANCY: And yet your case is proceeding on this basis: that because it's a standard that exists across the awards system, in order to depart from that standard, then the councils in this case require probative evidence supporting a departure from that standard. Aren't they going to come back with, 'Well, hang on, the status quo, as it pertains to this award, is something other than the two-hour minimum; therefore it's for the ASU to have the probative evidence to persuade you to depart from that that is currently in the Victorian Local Government Award'?

PN910

MR ROBSON: Yes, and so there are two things I will say to that: we have provided probative evidence, but also there was a provisional view expressed by the Part-time and Casuals Full Bench that - and I will give you that reference.

PN911

DEPUTY PRESIDENT CLANCY: Yes.

PN912

MR ROBSON: That is [2017] 269 IR 125 at paragraph 408, that a two-hour minimum engagement period was appropriate for - - -

PN913

DEPUTY PRESIDENT CLANCY: Sorry, just a moment, I'm just - - -

PN914

MR ROBSON: My apologies, your Honour.

PN915

DEPUTY PRESIDENT CLANCY: Is this the decision of July 2017 or is it a later one?

PN916

MR ROBSON: Let me check my - yes, it is.

PN917

DEPUTY PRESIDENT CLANCY: Sorry, it's the 2017 one or the 2018 one?

PN918

MR ROBSON: The 2017 one.

PN919

DEPUTY PRESIDENT CLANCY: Right, and that's the decision of 5 July 2017?

PN920

MR ROBSON: Yes, that's right.

PN921

DEPUTY PRESIDENT CLANCY: What paragraph would you like to take us to?

PN922

MR ROBSON: 408.

PN923

DEPUTY PRESIDENT CLANCY: 408. Just a moment, please. It's just navigating; just a moment. I'm trying to save trees, so I'm just working with the electronic copies. Right, 408, I'm there now. I'll just make sure that my colleagues are.

PN924

MR ROBSON: Yes. And so there the Commission says:

PN925

We do consider, having regard to those same competing considerations -

PN926

and I will come to what those are in a second -

PN927

that it is necessary for modern awards to contain some form of minimum engagement period for casual employees in order to avoid their exploitation in order to meet the modern awards objective.

PN928

I will talk you through the part time and casual Full Bench's considerations. But the relevant point here is that they went on to say that they reach a provisional view that a two-hour minimum engagement period for casuals is the appropriate standard.

PN929

Now, what followed from that decision was a process of individual reviews of modern awards where parties that sought to object to that variation could then raise evidence against it and make arguments for alternative proposals. That went through for Local Government Award. Local Government Associations initially raised some objections, but when asked to file evidence in support of that position, it didn't proceed. Now, that's attached in our list of authorities as Local Government Industry Award 2010 [2018] PR700 662.

PN930

DEPUTY PRESIDENT CLANCY: Sorry, your list of Authorities, which decision is it?

PN931

MR ROBSON: Apologies, we may not have included that.

PN932

DEPUTY PRESIDENT CLANCY: I see.

PN933

MR ROBSON: No, we haven't your Honour.

PN934

DEPUTY PRESIDENT CLANCY: I'll just take the citation again, please.

PN935

MR ROBSON: That is Local Government Industry Award 2010 [2018] PR700 662.

PN936

DEPUTY PRESIDENT CLANCY: 700?

PN937

MR ROBSON: 700 662.

PN938

DEPUTY PRESIDENT CLANCY: 770 662, thank you.

PN939

MR ROBSON: It's referred to at paragraph 54 of our outline of submission.

PN940

DEPUTY PRESIDENT CLANCY: Thank you.

PN941

MR ROBSON: And this was adopted there, based on that provisional view. Now, what we say that means for these proceedings, is that there is a weight of authority in support of minimum engagements as an important protection for workers. We have an evidentiary burden to meet there, but the Commission also needs to be satisfied - but if the Commission were to not adopt this, should be satisfied that there are reasons in this local government - in this particular award that it shouldn't follow those decisions as well.

PN942

That's where we engage with employer's evidence where they have not established anything that would be persuasive to the Commission that a two-hour minimum engagement shouldn't be adopted. So, we presented the evidence saying that it should be, and they have presented evidence about the disputed areas saying that it shouldn't. But that evidence doesn't get to a level where the rational of a two-hour minimum engagement is counter-balanced to the unfairness to the employer.

PN943

Unless you have any further questions on that point, I might take you to some of the decisions about part time minimum engagement that we referred to in our submission.

PN944

DEPUTY PRESIDENT CLANCY: Thank you.

PN945

MR ROBSON: Excellent. So, one of the things I want to take you to is 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 2383 and 246, there's some consideration of the purpose of a minimum engagement. We think that's - we submit that this is an accurate and appropriate summary of the merit argument for minimum engagement. They say:

PN946

As we said in the aged care substantive claims decision, the short point made in the relevant authorities is that minimum engagement terms protect employers from exploitation by ensuring that they receive a minimum payment for each attendance at the workplace to justify the cost and inconvenience of each such attendance.

PN947

Now, this followed in relation to the review of the SCHADS Award. This followed a previous decision related to the Aged Care Aware, which in turn took the principle of a two-hour minimum engagement from the part time and casuals Full Bench. What the part time and casual Full Bench had to say about part time minimum engagements is relevant to these proceedings. This was a common issue in the four yearly review of modern awards. A wide range of matters were considered, various applications, but also some issues of general consideration were proposed by the Full Bench in that case. Substantial bouts of evidence including lay witnesses, both employers and employees and expert evidence was heard in those proceedings.

PN948

The Commission in that case goes through the history of minimum engagement terms, considers the evidence presented about them and then comes through with some observations about the needs of employees. We cover that in our submission.

PN949

Now, what we say you should take from the part time and casual Full Bench, is that a minimum engagement is created to protect employees. There was consideration of a greater engagement four hours, as a potential standard across awards. That was rejected. The two hours was adopted as an engagement - a balance of fairness between the employer and the employee, and that there was a necessity for that protection in a fair and relevant minimum safety net of terms and conditions.

PN950

One of the additional points that was raised is that there may be a counter-veiling - there may be some counter-veiling considerations, one of which may be raised in this case that the different working patterns of part timers and casuals, might mean that different minimum engagements were established. The reference for that is - apologies, your Honour, I'm just trying to find the reference. I've been working online for the preceding period and I'm working with paper documents and I'm just readjusting to it.

PN951

DEPUTY PRESIDENT CLANCY: That's all right.

PN952

MR ROBSON: That's paragraph 247 of that decision.

PN953

DEPUTY PRESIDENT CLANCY: That's the 2017 decision, is it?

PN954

MR ROBSON: That's right.

PN955

Now, there is another Full Bench authority that disagrees with that. The SCHADS Award Full Bench from the 2021 decision that I quoted from earlier said - considered at paragraph 297:

PN956

That the principle of neutrality of treatment and the con-committed proposition that modern award terms should not be set, such as to reflect a preference for one type of employment over another, supports the consistent application of minimum engagement terms to casual and part time employees.

PN957

In that Bench - and in that case, the Full Bench awarded the same minimum engagement to part time employees as already existed in the award for casual employees.

PN958

What we say about meetings in this case, is that the employer's objection to our claim on the basis that it doesn't align with the entitlement for part timers, isn't fatal. There is authority that you can have different minimum engagement periods and the part time and casual Full Bench did not impose a universal minimum engagement for part time employees.

PN959

There is an argument that there should be neutrality of treatment and if the Commission is concerned about that or persuaded by that, it will be appropriate for it to conduct a review of the part time term of this award. There is in evidence in these proceedings that part time working patterns, it wasn't the subject of our application, but of course, the Commission is acting in these proceedings as the regulator of minimum terms and conditions of employment in the modern award system. It can act on its own cognisance and it can choose to review these entitlements when it chooses to.

PN960

Then finally, another piece of authority I'd like to take you to, which is the 4 yearly review of modern awards — Group 4 — Social, Community, Home Care and Disability Services Industry Award 2010 — Substantive claims [2019] FWCFB 6067. This is relevant to these proceedings, because it considers the importance of funding arrangements when considering award entitlements. We say that this relevant to these proceedings where one of the objections to accrue our minimum engagement, are the funding arrangements that apply in local government. There, this issue is considered between paragraph 122 and 143. At 132, the Commission states that it considers funding arrangements are relevant, but it is the modern award's objective - they go on to say at 133:

PN961

...which is central to our consideration of the claims, and the modern award's objective is to ensure that modern awards, together with the National Employment Standards provide a fair and relevant minimum safety net of terms and conditions taking into account the section 134 considerations. The importance of the Modern Award's objective is emphasised by the terms of section 138.

PN962

They go on from that point to deal with an AIG submission to say that if there are employment costs that would be implemented in a funded sector, we would argue strongly against making a variation to that award. The Commission rejects that proposition at 135. All the considerations should be relevant - should be considered and no primacy is to be attached to them. They accept that there will be a granting claims - will impose employment costs and it's a relevant consideration, but they go on to say:

PN963

That the Commission's statutory function is to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net. It is not the Commission's function to make any determination as to the adequacy or otherwise for the funding models operating in the sectors covered by the SCHADS Award. The level of funding provided and any consequence impact on service delivery is a product of the political process, not the arbitral task upon which we are engaged.

PN964

They go on to say:

PN965

We recognise that it may take time for a funding arrangement to adapt to a change in circumstances and such an increase in employment costs occasioned by a variation, the award safety net. Such matters can be addressed by appropriate transitional arrangements.

PN966

They go on to say that:

PN967

We would also observe the approach advocated by AI Group would result in employees covered by the SCHADS Award effectively subsidising the level of services delivered by the NDIS and other government funded social services through lower minimum terms and conditions of employment been warranted by merit-based assessment, or the claims before us, taking into account all the relevant section 134 considerations. Such a subsidy would operate on circumstances where a significant number of employees are low paid.

PN968

They go on at 142 to say:

PN969

The Commission's statutory function should be applied consistently to all modern award employees while recognising that the particular circumstances that pertain to particular awards, may warrant different outcomes. The fact that a sector receives government funding is not a sound basis for differential treatment. Further...

PN970

And they go on to speak about the gendered nature of employment.

PN971

Further, given the gendered nature of employment in many government-funded sectors, such differential treatment may have significant adverse gender pay equity consequences.

PN972

We say those principles are relevant in these proceedings. Local Government is funded by various means. It's discussed in Ms Hardy's statement. They face similar pricing constraints to any funded service whether it is through the limitations on the money they can raise through rates, or whether it is through the government funding they receive for aged care programs. But that doesn't argue against the application of a broadly applied minimum standard like a minimum engagement provision of two hours to these workers, especially when there is an overwhelming consensus amongst Full Benches that a two-hour minimum engagement at the very least, is necessary to establish a fair and relevant minimum safety net of terms and conditions. Where departures from that principle have been based on consideration of the very unique circumstances of particular occupations.

PN973

So, essentially to sum up what we're saying here, is that the Full Bench in this case should follow previous decisions. It should have regard to that authority and only depart from it where it has good reasons for doing so. In these particular circumstances, the history of award regulation under previous industrial relations systems, is somewhat irrelevant because that was deliberately set aside by the Commission when it made the award. It adopted the terms and provisions of the Federal Local Government Award, which at that time, didn't include a minimum engagement period for casuals.

PN974

Since that decision was made, since the award was created, these provisions have been reviewed by the Commission across a wide range of awards and principles have been established. What we will come to, when we talk through the evidence, is that there is evidence before you that demonstrates the need for a minimum engagement but also, there is nothing before you that would suggest there are any harm or unfairness that would be suffered by Councils that would suggest that this variation shouldn't be made.

PN975

So, I will come now to the evidence, unless there's any questions about anything I've just discussed.

PN976

DEPUTY PRESIDENT CLANCY: Not for me. I'll just check with the other members of the Bench. Commissioner Bissett?

PN977

COMMISSIONER BISSETT: No, I'm fine, thank you.

PN978

DEPUTY PRESIDENT CLANCY: Thank you. Commissioner O'Neill, I think you indicated there were not questions. Thank you. All right, Mr Robson.

PN979

MR ROBSON: Yes, now what we can say about Local Government in Victoria is that there are a significant number of casuals employed in the sector. In Ms Hardy's statement at paragraph 7, provides a calculation that on the figures available in 2019, 18.31 per cent of the workforce were casual employees, and that this area varies by area of employment. She also calls out the aged and disabled services where the data she refers to, shows that only 8.84 per cent of employees in that sector are casual employees. She breaks down the number of casual employees, based on the data from the Victorian Local Government Grants Commission and that's quite - that's relevant to your proceedings, because it shows you the number of employees we're considering.

PN980

So, the largest group of casual employees by far, is the recreation and culture space. Many of those employees would be covered by - would include the recreation staff that we've discussed that are subject to the agreement, fitness instructors and so on. But what you'd also see is that there are some other large areas, family and community services. When you go through the table at paragraph 9, where the categories in dispute, if they're matched for a particular area of employment and that is not a perfect correlation, you see that an overwhelming proportion of the people who are casuals are women.

PN981

In aged and disabled services, it's 81 per cent. In recreation and culture, it's 64 per cent. In governments it's 73 per cent. In family and community services it's 90 per cent and in business and economic services, it's 65 per cent. So, this decision, disproportionately impacts women and it will have a gender equity implication.

PN982

One of the other points that I'd like to raise is that the areas in dispute are not necessarily areas with significant casual employment. There are less than 500 casual employees in the Victorian aged and disabled services in the Victorian Local Government. That's in the table beneath paragraph 8. That's out of a total of 10 000 casual in the state and 54 866 workers in total in 2019. It's a very small number of people; it's significant, but still very small.

PN983

This is where I'd really like to start talking about the evidence in relation to the different areas in dispute and I'll start with visitor and information services. The Commission has heard evidence from the ASU's witness, Ms Penny Aston. She has worked in the role since 2018, initially as a casual employee and she works 7.6 hours for each engagement. What she says, and she hasn't been cross-examined on this point, is that the casuals in her space are used to fill those shifts when someone is on a form of leave. She also gives evidence about the implications of short shifts in regional areas. She says that it's a one and a half hour round trip to travel to and from work. She also talks about the fuel and child care costs that would make a one-hour engagement prohibitive. This aligns with the matters identified by the Commission in the part time and casual Bench.

PN984

The evidence from employers about this proceeding, support the proposition that we say that there is no need for an engagement of one hour. John Wynen, in his evidence, he's the Manager of People and Culture at the Bass Coast Shire Council, another regional centre. He's relied on conversations with others to give his evidence. He may have worked with the visitor's centres in the past, but he doesn't do that now. He says the Shire engages five casual customer and visitor experience employees. He hasn't included rosters; he hasn't included a summary of the payments or the costs that would be associated with this program, and his speculation about the impact on the program, we would say, merely that - speculation, unsupported by evidence or detail that would allow the Commission to come to an understanding about the accuracy of his statements. What he does say is that the implications of this would be that there is one visitor centre where there would not be lunch cover for one hour. He also indicates an intention to engage people for short shifts.

PN985

Ms Bridgewater again, she's the Visitor Information Centre Liaison Officer from the Glenelg Shire Council. She also didn't provide rosters, schedules for when visitor centres open, or the costings of applying a two-hour minimum engagement. She explained that casual employees are engaged on an ad-hoc basis to cover leave or RDOs of permanent staff and when engaged, casual employees in that space, work five and a half hour shifts. She does say that she's looking for a one-hour role to fill a one-hour shift at a visitor centre in Casterton, but hasn't been able to follow it.

PN986

What we'd say you take from this evidence is that nothing - there are no serious harms that are identified by the employers. They haven't looked at the costings; they haven't looked at the rosters; they haven't provided them to you for you to understand these organisations and you couldn't make any significant findings based on their evidence. But there are, from the evidence of Ms Aston, real impacts for employees, when they are required to work; there are real costs, especially in regional areas and short engagements will cause these workers' trouble.

PN987

Going through to Arts and Culture, again with Mr Wynen, his evidence is that the Council does use one-hour shifts, but again, doesn't identify any service that would close and doesn't appear to have considered the impact in any great detail. The Commission wouldn't be persuaded from his evidence that the impact of a two-hour minimum engagement on this organisation would cause any significant adverse impacts. Of course, Mr Wynen's employees are covered by an enterprise agreement and these can provide different terms and conditions as in the modern award, and there's no evidence in front of the Commission that there is an obstacle to enterprise bargaining to resolve any issues that arise from the variation.

PN988

Going through in the Arts and Culture space, Ms Marie Johnson, she is the Coordinator of Human Resources at Whitehorse City Council. She doesn't manage the space directly, and her involvement with it is related to human resources, participating, in her words, in hiring and things like disciplinary matters. What Ms Johnson said, and I suppose there's only one casual employee at present. She hasn't worked out what the cost of changing the engagement would be, hasn't provided costings, hasn't provided any detail about this program. On the basis of her evidence, you don't know what this program looks like, what it involves, how many people attended. On that basis, you can't find any conclusions about whether or not there would be an impact on this. Local Governments provide services to their constituents for a number of reasons and decisions about opening and closing services would be dependent on a number of factors. Without knowing anything about this program, you wouldn't be persuaded to make any significant findings on that basis.

PN989

Going through to Ms Strano's evidence, she says that all casual employees in her organisation are paid for three hours and that's included in her witness statement dated 30 March 2022. She says:

PN990

Again, give some explanation about how work could be organised, including the staff meetings. All staff meetings will be paired with training to make it a three hour shift minimum. In order to accommodate business hours, workers and casuals will have employment. These shifts will usually start at 6.00 pm and they occur two to four times a year depending on availability.

PN991

There's communication between staff and their managers, so that they can be accommodated. You wouldn't be persuaded from her evidence that there are significant obstacles to a minimum engagement. Ms Strano's evidence is that a three hour minimum engagement has been implemented successfully at the Dandenong City Council in at least the Drum Theatre. That evidence is corroborated by Mr Herrera, who also gives evidence that he's engaged for three hours. He does say that there are some younger employees who may not know the industry standard who occasionally are taken advantage of by unscrupulous employers. But he did say in his evidence that there is a - he does indicate in his evidence that there was a benefit to him when he has a minimum engagement period.

PN992

Now, I'd like to take you to the evidence of Mr Patrick Gordon, that's AC5. Mr Gordon is an Outplace Support Officer at the City of Melbourne.

PN993

DEPUTY PRESIDENT CLANCY: Why is Mr Gordon relevant if he's on an agreement with a three-hour minimum?

PN994

MR ROBSON: Well, he's relevant because this demonstrates that you can have engagements in this space that do lead -that are longer than two hours and it also describes some of the work that's being performed by these workers.

PN995

DEPUTY PRESIDENT CLANCY: Well, at the City of Melbourne in their context.

PN996

MR ROBSON: Yes.

PN997

DEPUTY PRESIDENT CLANCY: At Moomba and school holidays and the like. I accept the proposition you can negotiate for three-hour minimums and if that's what the City of Melbourne and the bargaining representatives have done, that's what they've done.

PN998

MR ROBSON: Yes, and we're not saying the Commission should opt for a three-hour engagement, but that it is possible to structure work in a way that means that longer minimum engagements are possible. Importantly, Mr Gordon talks about the three-hour minimum engagement. It's not necessarily a satisfactory arrangement for him. He says it's only a couple of times a year that you're called in and he describes the time and money costs of travelling to the city. He lives in Footscray and he needs to travel into the City of Melbourne. It takes me 30 to 45 minutes to get to work via public transport, which costs $9.20, or it's a 25-minute bike ride. He'll occasionally drive, which also takes 20 minutes, but the parking costs on a weekend are $16 a day and it's only viable to drive in on the weekend, due to traffic during the week and the high costs of parking on a week day.

PN999

Now, why that's relevant is because he speaks to the significant time and monetary costs associated with work, especially in major cities. If he's spending 45 minutes on public transport for a three-hour shift, he's travelling for half as long as he's working. He's paid $41.60 an hour. You know, the cost of $9.20 on public transport, eats through a quarter of an hour's pay. Even with minimum engagements, the adverse impact on an employee isn't fully mitigated. Two hours, Mr Gordon's statement shows is actually a balancing act. Longer would be better for employees; shorter would be better for the employer, but somewhere in the middle is where the Commission should land, to establish a fair and relevant safety net.

PN1000

What we say is that there's a clear need for casuals in this space, but that employers do intend to engage people where possible on short engagements, but there are negative consequences for those casual employees when they're engaged on those short shifts. There have been no problems identified by the employers in this space that overcome that need to protect part time casual employees.

PN1001

I'll move then to community buses. The only evidence in this space is the evidence of - - -

PN1002

DEPUTY PRESIDENT CLANCY: The only other comment I make about Mr Gordon is that it doesn't seem as though he's looking for more hours of work. He's completing a PhD; he's got other casual employment. So, you know again, I just don't know how far he takes it.

PN1003

MR ROBSON: Yes, and well, I think - - -

PN1004

DEPUTY PRESIDENT CLANCY: And I should say, you know, it's the same with a lot of the witnesses that we've heard from both sides, but you know, it's the - - -

PN1005

MR ROBSON: Well, I think that's a relevant point, your Honour, that he is not looking for additional work, but it's how that work is structured that is important. He has been able to get it in chunks that he can earn his money and then have time to complete his PhD, that would be important. That's the significant point; that's where it takes you. It's not necessarily about the total amount of work performed by the employee; it's about those individual engagements being appropriately remunerative for that employee. A one-hour engagement in this space, just wouldn't be remunerative.

PN1006

In terms of community buses, Ms MacLeod doesn't engage any casuals at the moment. She has given evidence that there is at least an intention, if those casuals are engaged to have them work for an hour and five minutes as a minimum. That would be the 30 minutes of preparation and 35 minutes of driving, she discussed in re-examination. Again, there isn't evidence in front of you from Ms MacLeod about the budget for service, the total number of employees working in the service, the way work is structured. Arguments that there would be an impact on service being in this space, are just impossible to make. But there is evidence that employers do intend to engage people if it's possible, on short minimum engagements.

PN1007

Moving through in terms of library shelvers, that's the evidence of Ms Sally Both. She only has two casual employees. They're library shelvers and they're engaged to perform a single task that is repetitive and potentially injury-causing if it's performed for a significant period of time. Now, she says that this task is also performed by other library members. She's covered by an enterprise agreement. There is not necessarily a significant impact on the organisation for a longer minimum engagement. There is not necessarily an identifiable negative impact on employees. Simply put, we do not know what that business would look like after a new enterprise agreement had been negotiated if the award variation was made. Surely there is a way to resolve this problem through negotiation. It doesn't say that the minimum safety net should not include a two-hour minimum engagement for these employees.

PN1008

Moving through to pound attendants. Ms Walsh is currently a full-time employee, but was engaged as a casual employee when she commenced working at the Council. She says that when she was a casual employee, she was working what she describes as half days. So, presumably something longer than the hour that the Councils are seeking in this space. Her evidence is not tested.

PN1009

DEPUTY PRESIDENT CLANCY: So, Ms Walsh has reached the stage where at least in her employment, there was the demand for the hours and she's moved to almost full-time hours it would seem.

PN1010

MR ROBSON: Yes, and this is where referencing, when comparing Ms Walsh's evidence with the evidence from Ms Bennett, who gave evidence about the dog pound in the Glenelg Shire Council. They don't currently - - -

PN1011

DEPUTY PRESIDENT CLANCY: So, what would be your solution, cause some of the evidence seemed to go to well, on a weekend, for example, they'd need to go in and clean the enclosures and feed the animals. I think there was the example given of perhaps administration of medicine on Sunday nights or public holidays. So, how would that be done if there was simply one hour work? Would you build that into a part time roster, or would you - how would you see that?

PN1012

MR ROBSON: Yes, so I think there's different ways to skin this cat.

PN1013

DEPUTY PRESIDENT CLANCY: That's probably a little bit inappropriate when we're talking about kennels.

PN1014

MR ROBSON: I apologise that the irony of that statement, is now aware to me. So, there's different ways of resolving that problem. Ms Walsh's evidence is that part time and full-time employees, sometimes will attend for their shifts. That's perfectly reasonable. That might be through whatever the arrangements for arranging work under that local council's enterprise agreement might be; it might vary. Maybe it's overtime; maybe it's additional hours. There'll be some arrangement there.

PN1015

Or, it may just be that the minimum payment period is paid because the casual is called into work. They incur the costs of employment and they will receive that appropriate safety net payment. Now, it's relevant I think, to take you to Ms Bennett's evidence in this case, because she doesn't currently employ any casual employees. The Council's only recently taken on the operation of the dog pound and they're sort of in the phase where they're getting to know the business. It's her evidence, Ms Bennett, that they'd only require an hour in the afternoon, or 30 minutes, and one to two hours in the mornings on Saturdays and Sundays.

PN1016

Now that's not a significant amount of work that's being required and they don't actually have casuals to do that now. Her evidence is purely prospective that they might want to engage a casual for 30 minutes, for an hour, for two hours if they decide to have a casual on to fill that work. As I've said, that work could be done by a full timer; that work could be done by a part timer. It just depends on the rostering arrangements and the overtime arrangements in that enterprise agreement.

PN1017

But also, what you don't have in front of you, your Honour, is evidence about what the operation of this pound looks like. You can't tell the basis in the statement, for the need for an hour, and that's really one of the problems here with this statement, is that it asserts a need for one or two hours, and I'm sure that's a genuine assertion. But it doesn't put that one or two hours in the context of the work of the organisation as a whole. You don't know who else is rostered on shift that day, if anyone is rostered on shift. You don't know what the staffing requirements are, what the obligations that a Council might have to properly staff a pound, if there are employees in that space.

PN1018

Just what you can take from Ms Bennett's statement is that there's an intention at least, if it was possible, to roster some employees for one to two hours, and that it's a small number of hours every week that would be filled with that. That's the most you can say.

PN1019

DEPUTY PRESIDENT CLANCY: So, for these pound employees, given that the minimum engagement for a part time shift is only one hour, you'd say that weekend-type work could be accommodated by the structuring of a part time employee roster?

PN1020

MR ROBSON: Quite possibly. We don't necessarily defend the one-hour engagement for part timers. It's not - - -

PN1021

DEPUTY PRESIDENT CLANCY: No, but I'm just saying, it's in the award at the moment. So, you - - -

PN1022

MR ROBSON: Yes, it's in the award.

PN1023

DEPUTY PRESIDENT CLANCY: So, would you accept the proposition that the employer apprehension could be addressed that way?

PN1024

MR ROBSON: Yes, indeed I would, and it could also be addressed - apologies, Deputy President, your screen has frozen. I'm not sure if that's me or you.

PN1025

DEPUTY PRESIDENT CLANCY: I don't know. It's happening intermittently with everybody in the hearing. So long as you can hear me, I suppose.

PN1026

MR ROBSON: Yes, I might - if you might just repeat what you've just said in case I missed anything.

PN1027

DEPUTY PRESIDENT CLANCY: I'm just saying, you would say that any employer apprehension about the one-hour minimum disappearing for casuals, could be addressed by a part time roster which might accommodate one to one point five-hour shift patterns in its totality.

PN1028

MR ROBSON: Yes, I would.

PN1029

DEPUTY PRESIDENT CLANCY: Shift patterns in totality.

PN1030

MR ROBSON: Or through the use of a full timer, someone on wages potentially, claiming on overtime or not with a condition of that award, or possibly even someone on a salary who would have more flexibility in how they roster; how they can be required to work.

PN1031

DEPUTY PRESIDENT CLANCY: Right, thank you.

PN1032

MR ROBSON: Now, we'll finish with pound attendants. In youth social and community disability services, the evidence in this space is from Ms Jacinda Hunt. Now, Ms Hunt's objection to the two-hour engagement is the limitation on how work would be organised. She says the cost of payment wouldn't be prohibitive, but she says it would limit the number of meetings that could be attended each week. Now, Ms Hunt's employees will never be covered by this award; they're covered by the enterprise agreement at a Council with a long history of enterprise agreement negotiations. If the issue is simply cost and the cost is not - if cost is not the issue and it won't be significant, there will be a way to build an employment arrangement for these workers that can be accommodated, and potentially even, part time employment which already exists under this award.

PN1033

But again, from the evidence before you, you wouldn't be persuaded to depart from the previous Full Bench evidence - Full Bench authority about the importance of a two-hour minimum engagement, as a protection for casual employees. Now, in relation to cleaners, the Local Government authorities were obliged to confirm their position by 31 December. They didn't and the ASU advanced its case on the basis if the last communication to us about that. There is an area of dispute that we weren't aware of and so we didn't file evidence. We stick with our proposal that there should be, in general, a two-hour minimum engagement, except for those smaller facilities. The evidence for holding this position by the employers - - -

PN1034

DEPUTY PRESIDENT CLANCY: Sorry, just on that, so you've outlined the position at paragraph 12 of your submissions and this is at page 25 of the court book.

PN1035

MR ROBSON: Thank you. Apologies, there's paper everywhere.

PN1036

DEPUTY PRESIDENT CLANCY: That's all right.

PN1037

MR ROBSON: Yes, Deputy President.

PN1038

DEPUTY PRESIDENT CLANCY: So, is that not the position, is it?

PN1039

MR ROBSON: No, if I could take you to the outline of submissions filed by the Council.

PN1040

DEPUTY PRESIDENT CLANCY: Yes.

PN1041

MR ROBSON: They say at paragraph 51, which is on page 11 of their submissions, they say the ASU elected not to file any evidence to support its contention that cleaners engaged to clean locations which are over 300 square metres, should be subject to a two-hour minimum in casual engagement. However, the reason for this submission appears to be that the ASU is labouring under a misapprehension that this is no longer a disputed role.

PN1042

Now, we press our claim for a two-hour engagement for cleaners who clean facilities with more than 300 square metres.

PN1043

DEPUTY PRESIDENT CLANCY: Right.

PN1044

MR ROBSON: We had understood that there was an agreement between us and the Council. We'd been told by the Councils that by Meerkin & Apel that they were seeking instructions from one Council, was our understanding and they needed time to confirm that. They were - if I take you to the joint report that was filed in December last year, and in that joint report, filed on 10 December, the Councils at item 2, this was recorded:

PN1045

The parties have reached provisional agreement in the category of cleaners. The ASU have indicated that they would agree to an exclusion of cleaners from the two-hour minimum engagement, limited to clause 13.5 (c)(i) of the Cleaning Services Award 2020, namely where they are cleaning a location of a total area of no more than 300 square metres, the Councils will be able to provide confirmation of their position by 31 December.

PN1046

Now, no confirmation was reached, was provided by the Councils and the first time they indicated their position to us was after we'd filed our evidence. Now that puts us at something of a disadvantage and simply we say, that having not filed evidence in this space, shouldn't be held against us.

PN1047

DEPUTY PRESIDENT CLANCY: All right.

PN1048

MR ROBSON: So, where that takes us to, is the evidence from Ms Scott. Again, Ms Scott doesn't provide the Commission rosters, costings or budgets. It is impossible to put her evidence into its proper context. It's difficult to understand the relationship between casual employment and part time employment at this Council. You do not know how many full timers, if any, are employed by this Council. So, when Ms Scott makes comments or speculates about the future, very little weight should be attributed to that. There just simply isn't enough information to test or support those assertions.

PN1049

What Ms Scott says - one second - is that she does intend to engage people for less than two hours and that casuals have an ad hoc roster filling in where part timers are absent or unavailable to work. We say this supports our contention that there needs to be a protection of a two-hour minimum engagement. If the work is ad hoc, if the engagements are short, then there's a definite need for these workers to be protected from unremunerative work. So, even though we haven't filed witness statements in this space, the evidence filed by the employer supports our contention. There is short work, short hours, ad hoc hours that run the risk of being exploitative, run the risk of being unremunerative and these employees need that protection.

PN1050

Which brings me to home care. Now, this is the area where the most evidence has been filed by the parties. It's also an area where there has been extensive consideration of working patterns in the broader sector and minimum engagement periods through the four-year review of the Social Community and Home Care and Disability Services Industry Award, wherein 2021 the Commission decided where there was no minimum payment period for part timers, but there were minimum payment periods for casuals, to award a three-hour minimum engagement for Social Community Services employees who are part timers. A two-hour minimum engagement for part time home care employees and disability services employees, and then increasing the minimum engagement for casual employees who are employed in home care to two hours.

PN1051

Now, this is relevant to these proceedings because the work that's performed by home care employees in this space, is basically the same as the work that is performed by home care employees employed under the SCHADS Award. The evidence from the employers is that they provide these services under the CHSP program. That is a program that also funds services in the community sector or in the private sector, but they supplement this work with additional funding. This funding isn't available to those private sector or community sector employees. What we see in this sector is that there's a very small number of casuals. Eight per cent or perhaps nine per cent is the better rough estimate there; 493 employees in total in 2019.

PN1052

What you see from Ms Leighanne Smith is an example of a well-structured roster of a part time employee in appendix A. This describes how work has been set out in that sector. There are services provided to elderly people or people with disability in their homes. These services range from 15 minutes through to several hours. These services are interposed with periods where people travel between work locations. This is very similar to the findings that have been found about work in the home care and disability sectors, performed by employees covered by the social community and home cares, the SCHADS Award.

PN1053

I will take you to the Commission's decision in 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 2383. I'll take you to paragraph 322 where the Commission in that case sets out its findings that supported its decision to implement those new minimum engagement periods and increase the minimum engagement period of casual employees in the home care sector. So, at 322.1:

PN1054

Short shifts are a very common feature in home care and disability services sector. In the home care and disability support areas, employers regularly engage employees to work shifts of duration of less than three hours.

PN1055

And they give several examples.

PN1056

This would not be disputed by the Councils. Ms Liam, to Ms Bourke and Ms Stephenson describe the benefit of not having a minimum engagement for casual employees, as the ability to work these short shifts and then carefully tailor paid time directly for the services that are being provided to those clients.

PN1057

Now, item 2 of the Full Bench SCHADS Award decision:

PN1058

The incident of short shift is reflective of the nature of the services provided in this industry and the personal care services, domestic care services and lifestyle services that are provided.

PN1059

There are a list of services there that are provided by home care and disability services employees. Ms Smith's witness statement - Sam, could I have a copy of that please - provides a detailed description of the different types of work that may be performed by a home care worker in Local Government. At paragraph 19, she describes the different types of service. Personal care, home care, respite care, shopping services, food preparation services and assessments.

PN1060

At 21, through 24, she describes working and providing personal care services, and that will give you the information you will need to match that list of sort of services that are provided, identified by the Commission in the SCHADS award, for work in this sector. At 26 through 31, or 32, Ms Smith describes the work of providing home care services. This would be for the most part, domestic assistance that is provided. Cleaning, laundry, ironing, washing dishes, assisting the person in their home. Respite care, which she describes at 34 through to 39 and with that there's a checklist that's used. With each of these there are checklist annexed to a statement that would help the Commission to understand the work that she's directed to perform. Respite services, also identified at item 2, paragraph 322 of the SCHADS' decision, that's described. Similarly, shopping services and some additional things such as meals on wheels that weren't necessarily subject of the evidence in the SCHADS Award decision.

PN1061

This is, I think, uncontroversial. The witness statements from the employers in this space may be relatively simple and undetailed, but I do agree that these services are what are being provided.

PN1062

Now, there's an employer objection to Ms Smith's evidence that she relies on hearsay evidence. This has been dealt with as a matter of weight. Ms Smith was not cross‑examined in her statement and what we say, in this case is that, yes, it is not direct evidence from casual employees in this sector but it is, at best, the closest information that you have about the views of casual employees, who are very scarce.

PN1063

Importantly, what Ms Smith says is that these casual employees are used in this sector to fill shifts that are vacated by part-time workers. So people who are working a roster that are part-time work. So, in home care in particular, Ms Smith's evidence establishes that not only are there similar working patterns to those in the sectors covered by the home care sector and the disability sector covered by the SCHADS Award.

PN1064

The situation is actually, perhaps, better in this place where more sophisticated employers are able to structure work in a more effective and efficient way. There isn't a need in this, SAR(?) space, for a shorter minimum engagement. The casuals who are being employed on an ad hoc basis to fill shifts need the protection of a minimum engagement, which takes us to the employer evidence.

PN1065

I'm going to take you, first, to Ms Lind's statement. I would say that this statement generally supports the ASU's case. She has 17 casuals employed at the Greater Geelong City Council and in 12 months only 17 shifts have been less than two hours in duration. That's a test that this is actually something of a - this is a non issue. The cost to the council would be minimal.

PN1066

Again, Ms Lind doesn't provide you with copies of rosters, budgets, costings that would help you to understand this home care business that would support any submission made by the councils that there would be a negative impact or unfairness to them by the imposition of a two-hour minimum engagement.

PN1067

Taking you to Ms Bourke. Ms Bourke is from the Glenelg Shire Council. Again, there is a relatively small number of casuals in this space, 15. They say that they roster people for very short periods of time, 30/45 minutes, one hour, 1.5 hours, and that this might be the only work that this person has available on the day. This support our contention that here is a need to protect these casual employees with a part-time minimum engagement. Again, her employer is covered by an enterprise agreement. Whatever problems that might arise from this, they can be resolved further down the line, through enterprise bargaining.

PN1068

Michelle Stephenson is the last witness. She's from the Corangamite Shire Council. Now, she's a human resources manager. She doesn't directly manage this space and most of the evidence that she gives has been related to her by another person. That's particularly important when considering her statements about the impact on aged people.

PN1069

Ms Stephenson does understand what the funding arrangements are, but she doesn't - she isn't able to provide insight about how work might be structured if a two-hour minimum engagement is required, or what the views of aged or disabled people might be.

PN1070

Significantly, the example she gives of why people might want to leave her service if the two-hour engagement were applied refers to a disability services provider, presumably, if it's not engaged by another council, operating under the terms and conditions of the SCHADS Award, where there will be, from 1 July this year, a two-hour minimum engagement that applies to both home care workers and disability services employees. This suggests that there's actually a need for equivalence between the two sectors to maintain parity. That's probably the best inference that can be drawn from that.

PN1071

So where does that leave us, with the evidence? There's a clear need for protections for these workers. For many councils it's a very small number of employees who are employed only to fill shifts when someone is absent, on an ad hoc basis. These are the people who need the protection of a minimum engagement most, to ensure that their work is remunerative.

PN1072

Mr Tozer gave evidence that some councils were exiting the aged care space, but Mr Tozer doesn't include any budgets, any policy papers, anything that would help you understand the positions of those councils and why they are made, not even the minutes of council meetings that considered this matter. Without that evidence you can't take it as reliable that a minimum payment period would impact a council's decision one way or the other. It's just not simply available to you and it's not a submission that you'd accept.

PN1073

That brings us to the space where there is no evidence about the sectors. These are livestock and saleyards, childcare workers and playhouses, occasional childcare workers and leisure and aquatic centres. They would all be subject to longer minimum engagements if they weren't employed by the councils. They shouldn't be given poorer conditions simply because of the nature of their employer. Further, we say that the weight of precedent is on our side. The Commission has adopted a two-hour minimum engagement, broadly, across modern awards, with tailoring, where there is evidence, and you just don't have any evidence in front of you about that circumstances.

PN1074

So we say, in this case, you should simply adopt our proposal, ours is he most favourable and best balances the need of employees for protection from unremunerative work.

PN1075

DEPUTY PRESIDENT CLANCY: A feature of the cross‑examination has been to point out or suggest to witnesses that they could address these issues through enterprise bargaining. We take that to be that you would submit that the changes that you urge in the nature of section 134(1)(b), the need to encourage collective bargaining.

PN1076

MR ROBSON: Absolutely, sir.

PN1077

DEPUTY PRESIDENT CLANCY: You go, sorry.

PN1078

MR ROBSON: We made two submissions on that point. The first, that this is an issue that should be dealt with through the safety net. It's not an issue that's been dealt with through bargaining and so it is, properly, a matter to be dealt with in the modern award system, but we also do make the submission that it is that consideration that this is likely to prompt bargaining and encourage collective bargaining.

PN1079

DEPUTY PRESIDENT CLANCY: So taking that up, because it's the submission that you've made and the suggestion you've made, how would it be addressed through bargaining?

PN1080

MR ROBSON: We need to know the circumstances of the work that's being addressed, that's being considered, and the circumstances at that council.

PN1081

DEPUTY PRESIDENT CLANCY: You've got a situation now where there's a one hour minimum, how would you address that through bargaining? If the minimum became two hours, how would you address going from where things currently stand to the future, through bargaining? I'm just trying to explore your proposition that this could be addressed through bargaining.

PN1082

MR ROBSON: Yes. Well, so the first point to be made is that there isn't currently a minimum engagement for casual employees in this award. The standard at the moment is not one hour, it is no hours. Now, how you'd address it through bargaining I do make this point very clear, that it would need to be context specific, that's in the nature of enterprise bargaining, and you'd need to address it to the circumstances of that business. Certainly we would go through a process, if this was raised as a claim with us, of engaging with our membership, collecting information from the employer and try to talk about the interest that we're trying to resolve.

PN1083

Now, it may be that the outcome of the bargaining is that we change the way that workers perform in this space. There's an efficiency we can find in the business that gives us a cost saving or a different way of doing the work that's effective, or it might simply be that we make an arrangement in that, that ensures that there's a level of remuneration paid to employees for those shifts that passes the BOOT but there's a commensurate flexibility for the employer.

PN1084

One of the points I think is important to raise is our clause says, 'Engaged and paid', it's a minimum engagement claim. It's possible to have a different way of organising work, which might be through minimum payment periods. So in the example of Ms Hunt, if the award says, 'Engaged and paid' and engagement period, the council can negotiate a minimum payment period, ensuring that people have the same remuneration and then the work can be organised more flexibly than it would do under the award. I think, just to make it clear, we need to do that in consultation with members, but there are many different ways of resolving problems, they just need to be addressed in the circumstances that they arise in.

PN1085

DEPUTY PRESIDENT CLANCY: Thank you. I'll just check with my colleagues, whether they have any questions?

PN1086

COMMISSIONER BISSETT: Not from me, thank you.

PN1087

COMMISSIONER O'NEILL: No.

PN1088

MR ROBSON: I'm sorry, your Honour, I should have said, I'm not quite finished yet.

PN1089

DEPUTY PRESIDENT CLANCY: I see. Sorry.

PN1090

MR ROBSON: Yes. I just have to make some submissions about Mr Tozer's statement.

PN1091

DEPUTY PRESIDENT CLANCY: Yes.

PN1092

MR ROBSON: Our submission is that it should be treated as a submission rather than as evidence. Mr Tozer is essentially acting as an advocate for these councils. He's making a number of assertions about how the industry is and should be that's unsupported by anything that would assist you. For example, when I took him, in cross‑examination, to the dot points at paragraph 16, he admitted that they are hypothetical examples, based on his discussions with local councils.

PN1093

Under re-examination he wasn't able to give a concrete example in that case, other than the Pioneer Centre, at Swan Hill. But what you don't have about Swan Hill is the budget, you don't have the council's policy rationale for operating that centre, you do not have the rosters, the staffing arrangements. You just simply wouldn't be able to tell, on his evidence, what that really means and what the implications of a two-hour engagement would be, if it was even connected to that.

PN1094

Similarly, when he makes assertions about the financial position of councils, particularly in regional areas, he doesn't attach budgets, he doesn't attach council minutes. It's simply assertions about the state of councils and the impact that this will have.

PN1095

There appears to be a deep-seated preference on his part not to have minimum engagements, as a matter of personal policy. So what should you take of it? It's a submission from a human resources practitioner in the field who has been engaged and paid by these councils. I think that's the appropriate way to treat it and that's the weight it should be given. It's the view of one human resources practitioner amongst many.

PN1096

That's all I needed to say, Deputy President, thank you.

PN1097

DEPUTY PRESIDENT CLANCY: All right, thank you.

PN1098

Looking at the time, it's five minutes to one, I think, Mr Minucci, your indication yesterday was that you might require an hour?

PN1099

MR MINUCCI: Yes.

PN1100

DEPUTY PRESIDENT CLANCY: That being the case, I'm going to suggest we take the lunch adjournment now and that we resume at 2 pm.

PN1101

MR MINUCCI: Commission pleases.

PN1102

DEPUTY PRESIDENT CLANCY: We'll adjourn until 2 pm, thank you.

LUNCHEON ADJOURNMENT [12.53 PM]

RESUMED [2.01 PM]

PN1103

DEPUTY PRESIDENT CLANCY: Thank you, Mr Minucci?

PN1104

MR MINUCCI: If the Commission pleases.

PN1105

It is the position of the Local councils and library corporations that the ASU's application to vary the modern award should be dismissed.

PN1106

The ASU has failed, in any material respect, to lead evidence to establish that there is any necessity at all for the variation to be made in the terms sought. Consequently, the Commission cannot reach the relevant state of satisfaction required of it, by section 157 of the Act.

PN1107

It is not enough, for the purposes of this application, for the union to simply state that because other awards have a minimum two-hour engagement that this award needs to have a minimum two-hour engagement. But that, in essence, is the substance of their case.

PN1108

To start, that doesn't even take into account the differences between Victoria and other states, which would have justified the making of the award, in the terms sought, at first instance, let alone the evidence canvased by Mr Tozer and others, in this witness statement.

PN1109

There is one matter, before I deal with the specifics of the jurisdiction, that needs to be mentioned. The union, in its opening address, said that this application was necessary to prevent exploitation of workers.

PN1110

That aspect of their case was opened too high. There is no evidence of any exploitation of any worker employed or engaged or covered under this award at all. There is no evidence of any such exploitation occurring in any of the councils which I represent and no conclusion to that effect can be drawn.

PN1111

So to the extent that they rely on any existence of any exploitative practices, such evidence cannot stand. That is particularly so, given that we are talking about an industry that is 100 per cent enterprise agreement covered.

PN1112

In general terms, the Commission's state of satisfaction in section 157 cannot be informed in a vacuumed, it must be formed on the basis of the evidence before it. Critically, that evidence did not and does not establish that the amendment to the award is 'necessary' to achieve the modern awards objective, as that's crystallised in section 134.

PN1113

The key word in that statutory definition or that statutory requirement, is 'necessary'. It's not enough for the Commission to be satisfied that it might achieve it, or it could possibly achieve it, or that there might be some benefits to it. The Commission must be satisfied that the variation, in the terms posed, is necessary to achieve the objective. So, to put it another way, the Commission must be satisfied that without the amendment in terms, the modern award objectives would not be met.

PN1114

It follows from the nature of the Commission's jurisdiction, in respect of an application of this kind, that there is no obligation on the council's to establish or prove anything at all. It is the ASU that purports to invoke the Commission's jurisdiction, under section 157, to make the variation in the terms sought.

PN1115

It is therefore incumbent upon the ASU to establish that this jurisdiction exists. The jurisdiction exists only once the state of satisfaction is reached. For that proposition, in respect of jurisdiction, I refer the Commission to Re State Public Sector ex parte The Attorney-General of Western Australia [1993] 178 CLR 249 at 288, and the observations of Toohey J.

PN1116

A corollary to that and the establishment of jurisdiction is that stare decisis, the extent it is invoked in this context, does not relieve the ASU of its burden. It does not relieve the ASU of the burden to establish, on the evidence presented by it, before this Commission, that that state of satisfaction is reasonably capable of being informed.

PN1117

There is no evidence, led by the ASU in this proceeding, that a failure to make changes in the terms sought would affect living standards and the needs of low paid workers. First of all, there's no evidence of any low paid workers at all, particularly given the generous terms in the enterprise agreements in this industry. Secondly, much of the ASU's evidence concerned the fact that employees have negotiated better terms and conditions through agreements and that any changes could be made in that context. That, in my submission, cuts across entirely the basis of this application.

PN1118

When the Deputy President asked my learned friend about how bargaining is facilitated, with respect there was a non answer. It was, we can either roster a few more permanent part-times. We can change some vague practice of work or, alternatively, we can just pay people more for doing less. That, with respect, does not encourage enterprise bargaining or collective bargaining at all. Rather, making the variation in the terms sought undermines collective bargaining because it now allows the union to achieve something that they have not been able to achieve in bargaining, through the back door. Because once a variation, in the terms sought, is made, the Commission is aware of the consequences of what that means, in circumstances of EA approvals and the BOOT.

PN1119

Now, the councils and library corporations and the unions have, over a number of years, negotiated enterprise agreements which suit them. Now, whether that's been appropriate or not, minimum engagement has been canvassed in some EAs in that context. But, as I mentioned, this is not the way to achieve an outcome that ought be done in bargaining. There is a bit of, 'If it ain't broke, don't fix it', here, particularly given the threadbare evidentiary case.

PN1120

In any event, the evidence reveals that a number of councils are going to have substantial difficulty with the imposition of this term and that difficulty translates into reasons why EAs in those terms aren't agreed.

PN1121

There's no evidence to support the proposition that the change is conducive to flexible work, particularly given the evidence about the significant number of short-term jobs performed for one hour or less. There's no evidence the change would increase participation. Rather, the evidence is, councils are going to start thinking about closing programs. There's been no evidence led that suggests that that position is not accurate or that that position was undermined, in any way, in cross‑examination. So it's likely, in my submission, that the evidence reveals a decrease in participation, not an increase.

PN1122

There is also a difficulty because there is an inconsistency here with the concept of equal work for equal value because that concept enshrines being paid for the work performed. But what will happen here, on a minimum engagement period, and my learned friend belled the cap on this, in his submissions, when he mentioned the minimum payment period that will be negotiated. That's really what we're talking about. We are trying to establish here a minimum obligation to pay individuals who are not working more than two hours.

PN1123

I also note that my learned friend also said that the terms 'sought' includes engagement and pay for casuals of two hours. There's no evidence to suggest that there is sufficient work available, at all of the councils the subject of this award, that could allow for that to occur. In fact, it's quite the opposite. The evidence reveals that the engagements are of less than that and will be in a position of trying to manufacture or find work to be performed for that minimum two hour period.

PN1124

As I've said before, and there was much made in my learned friend's submissions about this, about our case. To be clear again, it is not our case to run. We have no burden, we have no obligation and we cannot be criticised about the state of our evidence when our evidence is responsive to the ASU's evidence. The burden rests on them, given they are seeking the change.

PN1125

There was much cross‑examination about costings. Well, with the greatest of respect, it's quite obvious what the cost impacts are going to be of a change of this kind. Ms Scott gave evidence of the obvious impact and increases to costs if that engagement period was imposed.

PN1126

Again, the cross‑examination about the enterprise agreements didn't take the matter anywhere because we're talking about 100 per cent EA covered industry, circumstances where this application purports to subvert that, by the back door, and the Deputy President and the Commission observed that EAs are a matters of agreement where matters are given up and negotiated. It doesn't take this application anywhere.

PN1127

To the extent there's a suggestion about a failure to provide rosters, well, we don't have to, number 1. Number 2, casuals are ad hoc, so they're not subject to a roster. Number 3, my learned friend could have issued notices to produce, as part of his case, to try and avail himself of any documents that he considered relevant and they declined to do that, despite having the opportunity to run their evidentiary case in respect of these matters.

PN1128

Their case is superficial and weak, in respect of the evidentiary justification of the changes that are being sought to be made. That weak evidence does not allow the Commission to rationally form the state of satisfaction required. If that is not available and that is not open, that's jurisdictional error and that is not what can occur in a case of this kind.

PN1129

In general terms, there are other various matters that ought be touched on. The assessment of this application must have regards to the provisions of the Local Government Act 2020. That Act governs the operation of councils in Victoria. Just briefly, section 8 of that Act requires councils to provide good governance as that concept is defined in section 9. Section 9 relevantly requires councils to ensure the ongoing financial viability of the council and must take into account:

PN1130

Financial management principles and those principles are identified in section 101 of the Act, which include having regard to revenue, expenses, assets, liabilities and financial risks.

PN1131

Financial risks include:

PN1132

Financial viability, management of current and future liabilities and beneficial enterprises of the council.

PN1133

They're the parameters that underpin any assessment in this context.

PN1134

Now, dealing with the evidence of the casual workforce, my learned friend says that there's an 18 per cent mix of casuals. The difficulty, of course, is that 18 per cent includes figures that the union agree shouldn't be subject to the rates proposed in this case, or should be subject to a lesser engagement period. No work was done to separate those figures.

PN1135

There is also a distinction that needs to be remembered, and I believe this was touched on with Bissett C and my learned friend in closing, about the differences between metropolitan councils, somewhere like the City of Melbourne, and the regional councils, or rural councils, about which there is substantial evidence put forward by the respondents. That dynamic needs to be considered.

PN1136

In addition to that dynamic, which I'll touch on in a moment, there is also a difference between private sector and local government, naturally. Now, private sector is not EA covered, not in the same percentage terms as we have here for local government and not only that, local government's subject to enterprise agreements which relevantly incorporate the 2001 award, which doesn't even include minimum two-hour engagement periods, and I believe we've touched on that in our written outline of submissions previously. I think it was paragraph 44, from memory, but I'll turn up the reference, just to make sure that I've touched on that properly.

PN1137

This is not a case where the private sector is better off than the public sector and therefore equalisation needs to be made. The reality is here is that the consequences of any decision will be borne by the ratepayers, who are obliged to pay the additional expenses of the council. This is a contrast to private sector, where they can pass this on to consumers.

PN1138

councils and library corporations don't have the luxury of being able to restructure, pass on costs and do those things in the same way the private sector does, because, realistically, as you've heard, circumstances are such that they need to run at substantial losses, or pass on consequences to the rate payers or withdraw the services. That's hardly in the best interests of the communities they serve.

PN1139

For example, the Commission will recall Ms Stephenson's evidence, in cross‑examination, when asked about cost increases for clients using home care services, she said that if a two-hour minimum engagement period was imposed, it would increase the proportion of the cost from 7 per cent of a client's weekly expense on that service to 19 per cent. Now, that, in my submission, is a substantial factor and a substantial increase, given the nature and circumstances of those care clients.

PN1140

I also note that Mr Tozer's evidence, and the evidence of others, regarding the cessation of programs and how that's starting and how that's likely to continue.

PN1141

Again I touched on this a moment ago, but Mr Bourke gave evidence this morning that council's running at a loss and the substantial losses that were involved in her area. That's hardly consistent with the relevant public policy rationale to justify an amendment of this kind.

PN1142

Dealing briefly with the objections raised to the evidence by my friend, my submission is that they lack substance and the evidence can be assessed by the Commission in the usual way. My learned friend seeks to have his cake and eat it too a bit. He says that he can have his hearsay material heard, but ours ought be struck out. The reality is, is that the evidence is such that the Commission will place appropriate weight on it that it needs to, remembering the prism through which this application needs to be reviewed. It's not my client's position that it has to prove any aspect of this case.

PN1143

Now, generally, in respect of the union's evidence, most of their witnesses are not casuals. The Commission will note the majority of them are permanent part-time staff that purport to give evidence about the state of mind of other people who are supposedly casual employees.

PN1144

They could have called the casuals. They could have found their members who were casual employees, to the extent they exist. They could have adduced actual evidence from the people that this variation is supposed to affect, to justify the imposition of the minimum engagement period. They elected not to do that. That's a matter for them, but it impacts the bearing upon, or the weight upon which this Commission can afford that kind of evidence.

PN1145

We submit that none of the evidence was shaken by any of the cross‑examination and, if anything, our witnesses withstood it and the evidence (indistinct). We would say Ms Stephenson, Ms Both, Mr Tozer, Ms Bourke, amongst others, fall into that category.

PN1146

There was no evidence led about livestock yards and there was no evidence about childcare and play and leisure centres. That means, in respect of those individuals, the Commission cannot reach the relevant state of satisfaction it's required.

PN1147

DEPUTY PRESIDENT CLANCY: Casual care and leisure centres and child care.

PN1148

MR MINUCCI: Leisure and child care, my apologies. The Commission cannot reach the state of satisfaction, in respect of those categories of employees, to justify the imposition of the minimum because otherwise it would be acting without evidence.

PN1149

Much of the evidence given by the ASU's witnesses is conjecture. For example, Mr Herrera gives evidence about industry standards where he doesn't purport to justify it. He's worked in a couple of other places, he says, but doesn't identify where or why. Wants to give evidence about somebody who doesn't understand something or doesn't know something. It's weight is negligible, and that's putting it kindly.

PN1150

There was evidence put about pound attendance on the weekend. Now, my learned friend, in answer to the question from the Bench said, 'Well, we can either not do that work or we can get part-timers to do it and we'll change the roster'. So the effect of that submission is, we just won't engage casuals to do work that they're currently performing. That's apparently an appropriate consequence of the change that he seeks to urge this Commission to make.

PN1151

Now, Mr Tozer was criticised by my friend, in relation to some answers that he gave in re-examination. I would urge the Commission to examine the transcript of the re‑examination before it makes any findings of that kind, because that's not, in my submission, what Mr Tozer said. Mr Tozer was given the opportunity to clarify his evidence in respect of the dot points identified at paragraphs 13 and 16 of his statement and he listed, comprehensively, various councils and programs that would change and would be affected.

PN1152

Certainly no - and the proposition that there's some personal view or personal vendetta by Mr Tozer in respect of this variation was never put to him, in cross‑examination, so let's start with that, which is a fundamental denial of procedural fairness to him, should any finding of that kind be made. But, in any event, he denied any such implication, when asked in re-examination.

PN1153

Now, in relation to the agreement, in respect of the cleaners, we've dealt with that, at paragraph 7 in our written outline and we don't raise any matters further about that.

PN1154

Now, fortunately, I've been shorter than I'd anticipated, in general terms, because for those general reasons, in addition to the matters that we raise in our written submissions on the 4 April 2022 and 13 August 2021, we say that the application should be dismissed.

PN1155

Further, and alternatively, to the extent that the Commissioner does think intervention is warranted, it butts against the minimum engagement period for part-time employees.

PN1156

Now, my learned friend refers to general, broad statements of principles, by various other Full Bench's in different industry context, they don't assist him, in my submission. Because what each of those Full Bench's do, quite rightly, is acknowledge that while there may be general propositions that each individual award circumstance, depending upon particular industry, needs to be considered before any changes or any observations are simply cut and paste.

PN1157

COMMISSIONER BISSETT: Just with respect to that issue, to what extent can the Commission, or should the Commission, this Bench, have regard to the Local Government (indistinct), where this circumstance exists, there's a minimum engagement of one hour for part-time employees and a minimum engagement and payment for casuals, of two hours?

PN1158

MR MINUCCI: Of course. Commissioner, I don't quibble with the fact that that distinction does exist but when one looks through the decision, in respect of the approval of that award, that's not given much consideration by the Bench and my recollection is, in fact, that was unopposed in that context, so the Commission didn't have the benefit of argument in respect of that proposition. In any - maybe I'm mistaken about that aspect, I don't recall. But, in any event, it doesn't relieve the Commission of its burden, in respect of the state of satisfaction. It also doesn't relieve the Commission's burden of drawing the distinction, which is has done for a number of years, between local government in Victoria and local government elsewhere.

PN1159

COMMISSIONER BISSETT: I appreciate that, but your proposition was that the Commission shouldn't have regard to what happens in other industries, that local government in Victoria is, generally, quite distinct from the other decisions that have been made in this matter. So my question went to the Local Government Award, which is the closest in type that we've had.

PN1160

MR MINUCCI: Sorry, Commissioner, I may have - it may have been in insolicitous expression on my part. It's certainly not my submission that the Commission can't have regard to decisions in respect of other industries and in the context of (indistinct) refers to, that the Local Government Industry Award is, of course, going to bear on the Commission's considerations here. But my submission is, is that while regard may be had to it, as part of forming the relevant state of satisfaction that's required, it's not simply a cut and paste exercise.

PN1161

COMMISSIONER BISSETT: Except that life would be a lot easier if it was.

PN1162

MR MINUCCI: It would indeed. Because what the Commission would have to be satisfied of, in this context, is that there is a basis to say, 'Well, we appreciate the reason or the rationale why that distinction exists in the Local Government Industry Award, and we're satisfied, on the evidence before us, that we should preserve that distinction in the context of this award'.

PN1163

My submission, in that context, is not that regard shouldn't be had to it, my submission in that context is that it butts against the absence of evidence to establish the distinction or the fact that there is no rational proposition advanced, in this application, to preserve that distinction.

PN1164

Now, I hope that deals with the Commission's question on that point.

PN1165

COMMISSIONER BISSETT: Thank you.

PN1166

MR MINUCCI: In short, and to that very point, Commissioner, if I can just canvas just briefly and, further, just finalising that aspect of my submission, the real work impact of that distinction, if I can put it that way, between part-time and the two-hour minimum engagement, was in Ms Scott's evidence this morning, where she gave evidence about the fact that part-timers in her industry would be engaged to perform work of a period that was one hour or one and a half hours, there or thereabouts, and that was the extent of the work that was required to be performed by them.

PN1167

But if we then swap that out with casuals, we've got 1.5 hours of work available to them, but they then get paid for two hours of work in this context, if that variation is made. They'd either have to try and find work for them to do, where such work may not exist, and if we can't find work for them to do, that means we'd be in breach of the award, on the terms of the variation canvased by the ASU, because it requires imposition of work and pay.

PN1168

COMMISSIONER BISSETT: Mr Minucci, sorry to interrupt you again, but on that question, is it open to the Commission to consider a variation, and I appreciate Mr Robson hasn't canvased this and it's something you might think about in your reply, Mr Robson, the granting of a minimum payment provision, as opposed to an engagement and payment?

PN1169

MR MINUCCI: The short answer is, of course the Commission can consider it. There are a number of issues I have with that being advanced at this late stage of proceedings as that's not how the case has been run. There would have to be some evidence to establish, in my submission, a work value proposition for that, or some value proposition that the Commission would have to accept that says, 'Even if a casual is engaged for 15 minutes, they should be paid for two hours work'. That's not the case that's been advanced. That's not the case that we've met and certainly, in my submission, the evidence doesn't support the imposition of that, as a safety net, remembering of course, to necessitate compliance with the modern award objectives.

PN1170

So, of course, it would be open and if the Commission considered that that was something that it needed to do, of its own motion, I would be in a position where I would have to take instructions about that. I'd also have to be in a position to consider whether I needed to lead further evidence about that, particularly in respect of the nature of the work performed and the time value of those propositions. But, certainly, there is nothing, of course, for the Commission considering it, if it wanted to.

PN1171

Unless there is anything further that the Deputy President or the Commissioners wish to ask of me, those are my submissions, in closing.

PN1172

DEPUTY PRESIDENT CLANCY: Thank you. I don't have any questions. Commissioner O'Neill?

PN1173

COMMISSIONER BISSETT: No, nothing from me, thank you.

PN1174

COMMISSIONER O'NEILL: Nothing.

PN1175

DEPUTY PRESIDENT CLANCY: Thank you. Mr Robson, in reply?

PN1176

MR ROBSON: Thank you, Deputy President.

PN1177

The first thing I'd like to say is that the councils need to get their stories straight about what their position is. They entered into an agreement that was put on the record of this Commission last year, and I'll go to the transcript in a minute, that they consented to the variation of the award to provide for a two-hour minimum engagement. We narrowed the scope of this dispute to a range of discrete occupations.

PN1178

I'm going to take you to the transcript, your Honour, from the proceedings on Friday, 29 October, that started at 10 am. At PN 7, sorry, apologies, at PN 8 I make this statement, and this is in the context of a report back from discussions between the parties.

PN1179

Yes, thank you very much - - -

PN1180

DEPUTY PRESIDENT CLANCY: This is on page 341 of the court book?

PN1181

MR ROBSON: Yes, that's right.

PN1182

DEPUTY PRESIDENT CLANCY: Thank you.

PN1183

MR ROBSON: After thanking you I say:

PN1184

We haven't been able to eliminate the differences between the parties, but we think we have narrowed the scope of the issues in dispute. I think there's a broad agreement that a two-hour minimum engagement of casuals, with some exceptions, and the parties have been able to agree some exceptions, but I understand Mr Katz(?) is pursuing some additional ones to that, but the exception would be a one-hour minimum engagement, as opposed to a two-hour minimum engagement. So the ASU would be agreeing with your local governments that there would be a one-hour minimum engagement for swimming instructors, fitness instructors, personal trainers and school crossing supervisor and we have made a proposal to the local governments about cleaners to adopt the square meterage role for minimum payments, from the Contract Cleaners Award, and I understand Mr Katz is still seeking instructions on that point. This is before the filing of the joint report, on 10 December, so it's not settled, and that would be the limit of the agreement.

PN1185

Mr Katz, I understand, is pursuing a one-hour minimum payment for a range of other types of work in local government, but I leave it to him to speak to that, I wouldn't want to put words in his mouth.

PN1186

We just note, you know, our agreements and (indistinct) reflect discussions about this award. We don't want to be held to it in other award matters and, of course, we put it on record that our claims and bargaining may also be different.

PN1187

There's a question from you. I respond that we don't have a form of wording. And then you say, at PN 15, to Mr Katz, 'Mr Katz?'. At PN 15 Mr Katz replies:

PN1188

Thank you, Deputy President. Yes, Mr Robson has accurately reflected the agreement reached. We've had some very productive and fruitful discussions we, you know, have managed to limit the scope of the dispute which was, we think, very useful.

PN1189

So to come, at this late stage in the proceedings, and say, firstly, appearing to suggest that the variation should be set aside in whole is a significant departure from the previously stated position. One that has never been communicated to the ASU to this point and would significantly prejudice our case, if they're allowed to adopt that position.

PN1190

Secondly, it changes the nature of this matter. We're not arguing between a - it's not an argument between a proponent of change and a pure respondent, there was an argument about a discrete set of - the contest is between two different minimum engagement periods that have been proposed by two different parties.

PN1191

The councils are also proposing to vary the award. That's why they filed evidence in a number of areas that we didn't file evidence into. If Mr Minucci's submission that there was no need for them to do this had any grounds, they wouldn't have done it. That reflects the nature of the dispute between the parties. We're not arguing whether there should be a variation or not, there's a general agreement there should be. We're arguing about the scope of that disagreement.

PN1192

Now, what that means is that it was entirely open to the councils to run evidence in each of these areas. It was open to the councils to lead evidence about the budgets of councils, to lead evidence about the financial condition of rural councils, they didn't do it. It's just assertion. There's nothing in front of you that would make you think, one way or the other, what the financial position of a council may be.

PN1193

Their witnesses couldn't provide rosters, couldn't provide information that would put their evidence into question. So rather than being strengthened, as Mr Minucci sais, under cross‑examination, it actually becomes weaker. They are proposition an exception for a rule that they have themselves agreed to. They are proposing shorter minimum engagements for the disputed occupations as a step back from a general rule that they've agreed to in this award. So any criticism of us, that we haven't led evidence, can be returned back to them. And there is a burden on them to establish why a one hour minimum engagement should apply to one group of workers, as opposed to another, when there is a disagreement.

PN1194

That brings me to Commissioner Bissett's question about a minimum payment period. We'd say it's open to the Commission, on the evidence, to consider that. However, like Mr Minucci, we don't have instructions to accept that proposal. What we'd say is if that was something that the Commission was minded to do, it would need to issue a statement, presumably program the matter for comment and, potentially, further evidence. That's been the approach in award matters when the Commission has come to a conclusion about the appropriate conditions, provisionally, that are distinct from the proposals of the parties.

PN1195

Just one final point, Mr Minucci says that there are casuals performing work in pounds on weekends, referring to Ms Bennett's statement. It's her evidence that they don't currently employ people in that space, so it's just not something that's open on the evidence, and I'll leave it at that.

PN1196

MR MINUCCI: If the Commission pleases, if I might just seek leave to be heard in the joinder, in respect of one aspects of my friend's reply, which deals with this suggestion that the councils are purporting now to advocate for a wholesale dismissal of the application, including in respect of matters about which we've agreed. If the Commission is minded to hear me, in respect of that matter alone?

PN1197

DEPUTY PRESIDENT CLANCY: Yes.

PN1198

MR MINUCCI: That's not my submission and that certainly isn't how my submission ought be taken. When I talk about absence of evidence, when I talk about absences in respect of state of satisfaction and the like, it is all found in the context of the fact that there are disputed roles and disputed categories. We don't say, at all, that any of the dispute categories should be subject to any minimum engagement period at all and there's certainly been no concession in respect of that. The concessions are captured in the written outline of submissions and the Commission can act on them. But in respect of the disputed categories, my submissions stand, and I won't (indistinct) departing from any agreement.

PN1199

DEPUTY PRESIDENT CLANCY: The question that's arisen for me, in the way in which the parties have presented the closing submissions are, and maybe you've just clarified it, but we had the categories of swimming instructors, fitness instructors, personal trainers, school crossing supervisors, where the parties are proposing to the Commission that they be subject to a one-hour minimum engagement.

PN1200

MR MINUCCI: Yes.

PN1201

DEPUTY PRESIDENT CLANCY: Now, that would still be subject to the Commission being satisfied that that was a variation necessary to achieve the modern award's objective.

PN1202

MR MINUCCI: Yes.

PN1203

DEPUTY PRESIDENT CLANCY: Mr Robson has at least taken us to authority that goes to accepting or what the Commission might make of industrial parties having discussed and agreed changes to an award. I just want to be clear, and this, again, to both parties, as to the balance is, it the case that we have a binary position in that one party says, for the balance of the classifications or the roles of maybe two hours and the other says one, or is it two hours and none?

PN1204

MR MINUCCI: Deputy President, from the respondent's perspective, it's two hours or none. We've not conceded that the balance of the categories are subject to a one-hour engagement. However - - -

PN1205

DEPUTY PRESIDENT CLANCY: I can't hear you properly when Mr Katz is whispering, or not whispering, in the background. I've let it go, it's very distracting. You've got to work out a way to take instructions from your instructor, but it's hard to follow.

PN1206

MR MINUCCI: I'm grateful, Deputy President, I apologise for any difficulty or inconvenience.

PN1207

In terms of the respondent's perspective, in respect to the disputed categories, the position - the primary position is that no minimum engagement period ought be imposed. That is for the reasons canvased in the written outline and the matters that I've raised with the Bench. The alternative proposition, in respect of those disputed categories, is that the Commission should only impose a one-hour minimum, having regard to the part-time obligation canvased in the award, as it currently stands. I apologise for any confusion, but that is how my submissions ought be taken and that is how I proposed to have closed on that basis.

PN1208

DEPUTY PRESIDENT CLANCY: Yours is in the alternative?

PN1209

MR MINUCCI: Yes.

PN1210

DEPUTY PRESIDENT CLANCY: Mr Robson, your comments in response to that and my question, re clarification?

PN1211

MR ROBSON: Yes, I think that puts us back on the footing that we understood we were on. There was the undisputed categories that aren't mentioned, that haven't been the subject here, or at two hours. There's the agreement for the limited number of where we've agreed an exception, then there's the disputed categories, which is a dispute between our position, which is that they should be two hours, and the position outlined by Mr Minucci.

PN1212

DEPUTY PRESIDENT CLANCY: All right. Thank you.

PN1213

MR ROBSON: Apologies, Deputy President, we've just missed you.

PN1214

DEPUTY PRESIDENT CLANCY: - - - from your perspectives?

PN1215

MR ROBSON: Apologies, Deputy President, there was an interruption to your connection and we didn't hear that.

PN1216

DEPUTY PRESIDENT CLANCY: Okay, I'm sorry. I was just asking my colleagues whether they had any questions that arose out of my questions as to the characterisation of the matter before us.

PN1217

COMMISSIONER BISSETT: No, thank you, Deputy President.

PN1218

COMMISSIONER O'NEILL: No, thank you.

PN1219

DEPUTY PRESIDENT CLANCY: Thank you. Are there any other matters the parties wish to raise, at this point?

PN1220

MR MINUCCI: No, thank you, Deputy President.

PN1221

MR ROBSON: No, thank you, Deputy President.

PN1222

DEPUTY PRESIDENT CLANCY: Thank you. I'll just ask my colleagues to confirm if there are any matters?

PN1223

COMMISSIONER BISSETT: No, thank you.

PN1224

DEPUTY PRESIDENT CLANCY: Thank you. Well, the Commission will reserve, the Full Bench will reserve and, in due course, we will issue a decision with reasons, in writing. They will be sent to the parties and posted on the designated web page in the usual manner.

PN1225

That being the case, the Commission will now adjourn. Thank you.

PN1226

MR ROBSON: May it please.

ADJOURNED INDEFINITELY [2.46 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARIE THERESE JOHNSON, AFFIRMED.................................................... PN622

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN622

EXHIBIT #R9 WITNESS STATEMENT OF MARIE THERESE JOHNSON (PAGE 292 OF COURT BOOK)..................................................................................................... PN635

CROSS-EXAMINATION BY MR ROBSON..................................................... PN639

THE WITNESS WITHDREW............................................................................. PN660

SHARON LEIGH BRIDGEWATER, AFFIRMED........................................... PN669

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN669

EXHIBIT #R10 WITNESS STATEMENT OF SHARON LEIGH BRIDGEWATER (PAGE 281 OF COURT BOOK).............................................................................................. PN682

CROSS-EXAMINATION BY MR ROBSON..................................................... PN685

RE-EXAMINATION BY MR MINUCCI........................................................... PN700

THE WITNESS WITHDREW............................................................................. PN709

SHELLEY ANN BOURKE, AFFIRMED........................................................... PN717

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN717

EXHIBIT #R11 WITNESS STATEMENT OF SHELLEY ANN BOURKE (PAGE 278 OF COURT BOOK)..................................................................................................... PN730

CROSS-EXAMINATION BY MR ROBSON..................................................... PN733

RE-EXAMINATION BY MR MINUCCI........................................................... PN752

THE WITNESS WITHDREW............................................................................. PN757

JACINDA CLAIRE HUNT, AFFIRMED........................................................... PN764

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN764

EXHIBIT #R12 WITNESS STATEMENT OF JACINDA CLAIRE HUNT (PAGE 296 OF COURT BOOK)..................................................................................................... PN777

CROSS-EXAMINATION BY MR ROBSON..................................................... PN780

THE WITNESS WITHDREW............................................................................. PN805

SIMONE MAREE SCOTT, AFFIRMED........................................................... PN812

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN812

EXHIBIT #R13 WITNESS STATEMENT OF SIMONE MAREE SCOTT (PAGE 276 OF COURT BOOK)..................................................................................................... PN825

CROSS-EXAMINATION BY MR ROBSON..................................................... PN835

RE-EXAMINATION BY MR MINUCCI........................................................... PN851

THE WITNESS WITHDREW............................................................................. PN856