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Fair Work Act 2009                                                    




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


Application by Ellis & Castieau and Others





1.00 PM, WEDNESDAY, 13 APRIL 2022


Continued from 24/06/2021


AUDIO RECORDING COMMENCES                                                 [4.30 PM]


JUSTICE ROSS:  - - - sitting with you, but have I missed any organisation or anyone else?


MS J LOMBARDELLI:  Apologies, your Honour.  This is Lombardelli, initial J.  I'm appearing on behalf of ABI, ACSA and LACSA.


JUSTICE ROSS:  Sorry, Ms Lombardelli.  Look, the short point I wanted to raise with you is on my calculation the unions have filed six expert reports and witness statements from some 99 lay witnesses; 54 from the HSU, 27 from the ANMF, 18 from the UWU.  My first question is, is my maths right?  The HSU has filed the bulk of them.  Mr Gibian?


MR M GIBIAN:  Yes, your Honour.  As I understand, so far as the HSU is concerned there were 39 statements in total in relation to residential aged care, 18 in relation to home care or the SCHADS Award.  I have been provided with a list of the numbers.  I haven't done the maths in my head, but it looks like your Honour would be correct.


JUSTICE ROSS:  Yes, so I've got roughly 99 lay witnesses from the unions and six experts.  Does that sound about right?


MR GIBIAN:  It does.


JUSTICE ROSS:  All right.  I 've got eight lay witnesses from ABI.  Is that right, Ms Lombardelli?


MS LOMBARDELLI:  Yes, that sounds right.  Thank you, your Honour.


JUSTICE ROSS:  I understand you want two days of inspections, is that also right; one in Melbourne and one in Sydney?


MR GIBIAN:  Yes, your Honour.


JUSTICE ROSS:  All right.  Ms Lombardelli, can I go to you then.  Can you give me an indication of how many of the experts and the lay witnesses you propose to cross‑examine?


MS LOMBARDELLI:  Yes, your Honour.  We're still working our way through an exact list and we're working towards that with the HSU's lawyers, as well.  We have had some initial discussions with them to try to reduce the list, but at this stage we're looking to call all witnesses for cross‑examination.


JUSTICE ROSS:  All right.  Let me just talk about the lay witnesses for a moment and I appreciate that you're still in the process of seeking to narrow the list and the issues, et cetera.  At present can you give an indication as to how long you would be likely to be with each of those witnesses?


MS LOMBARDELLI:  Yes, your Honour.  With the lay witnesses we're looking between 20 to 30 minutes and we would say roughly about 20 minutes for each expert, as well.


JUSTICE ROSS:  Okay.  You're not all going to be able to cross‑examine the eight ABI lay witnesses about the same issues, but, Mr Gibian, can you give me an indication as to do you want to cross‑examine each of those witnesses?


MR GIBIAN:  That's the present position, your Honour, although for my part I don't expect the cross‑examination would be particularly lengthy.  I think three or four of them would probably, what, be one to two hours, the other three or four would probably be more like 15 to 20 minutes - or maybe 20 to 30 minutes to be safer.


JUSTICE ROSS:  Yes, so that was four - - -


MR GIBIAN:  Four of them for one to two hours, the other - and this is being general perhaps.




MR GIBIAN:  But the other for less, for maybe half that time really; 20 to 30 minutes.


JUSTICE ROSS:  Right.  Anything you wanted to add to that, Mr McKenna or Mr Redford?


MR J McKENNA:  Your Honour, this is McKenna, initial J, for the ANMF.  I broadly agree with Mr Gibian's estimate.  I was going to say between 30 minutes to one hour for each, but obviously it may well be that there is overlap on the cross‑examination.




MR McKENNA:  We'll obviously endeavour not to trouble the witnesses and the Commission if - - -


JUSTICE ROSS:  Well, you can take it that we probably won't be permitting overlap, so you'll have to sort out between yourselves how you want to divide the cross‑examination of a witness.  It's unlikely that we would permit a witness to be cross‑examined about the same issue twice, so if you bear that in mind.  Here's my problem and the reason why I wanted to have this discussion.  The matter is listed between 26 April and 11 May; that's 12 sittings days.  If you take out two days for the inspections, you're down to 10 days.


If I take just the union witnesses, experts, et cetera, and the estimate of time, that alone is more days than we have available.  Certainly the available time is not going to cover the cross‑examination of the ABI lay witnesses, bearing in mind you get roughly five hours, 15 minutes a day of hearing time.  This is assuming everything works seamlessly from one witness to another, which as we all know, you know, a triumph of hope over experience.


Assuming we start at 9.30 each day, we usually go through to about 11.30.  It varies on witness availability.  We have a short break, 15 minutes, then we go through to 1.00.  We have a one‑hour break, then we sit from 2.00 to 4.30.  Now, as those of you who have appeared before me before know, you know, I am content to sit late when required, but I'm pretty conscious that here you have got a block of 10 sitting days and it might turn into trial by exhaustion.


Look, if I look at the other cases that I've been involved in that have this number of particularly lay witnesses - and this might be different, Ms Lombardelli.  I'm not making any pejorative comment or anything of that nature, but often the cross‑examination is around a couple of issues seeking to extract particular concessions usually around either some hearsay point or that the evidence is confined to that particular person's experience.  You have said you want to cross‑examine the six experts for 20 minutes which rather suggests to me that that cross‑examination also might be around discrete issues.


I think wherever possible I would encourage both sides - and the reason I wanted to have this chat now rather than leaving it until next week - to give some thought to whether you can reach a resolution of some of these matters either by conferring with the witnesses you're calling so they could clarify an aspect of evidence, if that's an issue, or by making appropriate concessions.  I can assure you that if the cross‑examination of 99 lay witnesses follows the same pattern at the start and certain concessions are made, I'm going to be revisiting this issue when we're about six or seven witnesses in.


I am also conscious that we may be unnecessarily taking up the time of witnesses when there might be another way home.  So that was really the purpose of the mention, but if you're going to pursue the cross - you know, of course you're entitled to, I'm not suggesting otherwise - then if that's the case when we meet next week, I'm going to need to look at splitting the case.  We will need to find other dates for the cross‑examination of the ABI witnesses, so you need to bear that in mind.


Just on the simple maths, it's not going to work in the time we've got and I want to ensure that there is fairness to both sides.  I don't want you to be in the position where you're having to cross‑examine half a dozen witnesses in the remaining two hours of the allocated hearing time and that may prejudice your case.  Okay, so are there any questions about any of that?  It's really intended to give you food for thought rather than to elicit a response today.  Any questions about the Bench processes?  Anything I can help you with?


MR GIBIAN:  Your Honour, it's Mr Gibian.  There were two matters I was going to raise.  The first is - and this is not to at all cut across anything your Honour has just said, but purely a matter of inquiry - I've been told that we were at least under the impression that 12 and 13 May had been set aside at least on a contingent basis if they were necessary to be used.


JUSTICE ROSS:  Yes, one of those dates is not available; that is the 13th.


MR GIBIAN:  I understand, your Honour.  It was just more a query, not, as I say, to cut across anything said about wishing to confine the cross‑examination to the extent that it can be.




MR GIBIAN:  The other matter I was just going to raise is - we maybe can deal with this next week - in relation to the inspections that are proposed.  I'm not sure whether your Honour wants to hear at least - - -


JUSTICE ROSS:  Sure, yes.  No, no, I'm happy to hear.


MR GIBIAN:  In short, as I understand the proposal at least from the unions jointly or at least as agreed between the unions was for there to be inspections on Wednesday, the 27th, and Thursday, the 28th of April, in Sydney on the Wednesday and in Melbourne on the Thursday, with three locations, I think as I understand it at least, relatively geographically related on each of those days.




MR GIBIAN:  Obviously we can provide more details of the proposal, but I thought maybe that might be of assistance to your Honour.


JUSTICE ROSS:  Yes.  Look, it may also be useful for you to have a discussion amongst yourselves about how those inspections are going to be conducted.  In saying that, let me tell you what I want to avoid.  I want to avoid a sort of rugby scrum of representatives surrounding the - well, it will be Asbury DP in Sydney and it will be myself and O'Neill C in Melbourne - sort of making a running commentary as we go around and essentially, you know, seeking to put evidence or make submissions on the run.  I think it needs to be much more controlled than that.


Desirably you should limit the number of representatives that are going to be there at each facility and you should be very clear that it's what you are going to show us.  We're not going to have a transcript recorder there, you're not going to be recording what you show us, so you need to discuss amongst yourselves how it's going to work.  Okay?


MR GIBIAN:  Yes, well, for our part at least we are fully conscious of those issues.




MR GIBIAN:  We have had some thoughts at least about limiting the number of people and how the inspections could hopefully be practically run as efficiently and productively as possible.


JUSTICE ROSS:  Look, I'm also assuming that - and I might be wrong about this - you're arranging the inspections in compliance with whatever the public health orders are in the respective states, because I thought there was a limit; at one point, only relatives of residents could visit aged care facilities.  There are vaccination requirements, et cetera.  That's certainly not an issue for me and I don't think it's an issue for other members of the Bench, but what is the position with that?


MR GIBIAN:  As I understand the position in New South Wales at least, it is that there are vaccination requirements and requirements to complete a rapid antigen test immediately prior to entering, and to wear a mask, but other than that I don't understand there to be other restrictions that would prevent the type of inspection that has been proposed.




MR GIBIAN:  I think the Nurses Federation's proposal is in Melbourne, so I'm not sure myself of the situation in Victoria.


JUSTICE ROSS:  Okay.  Well, in Sydney I'm assuming that you will have the rapid antigen tests available and, what, the member will take the test outside the facility and then wait for 15 minutes?


MR GIBIAN:  The (audio malfunction) at least was that the staff of the facility supervise that process.




MR GIBIAN:  We will ensure that that can be done.


JUSTICE ROSS:  Okay.  No problem.




JUSTICE ROSS:  Then, Mr McKenna, what do you know about the situation in Victoria?


MR McKENNA:  Your Honour, I don't know off the top of my head, but we will ensure that whatever the protocols are they are clearly conveyed to the tribunal and to the other parties, and we'll make sure that that's all known well in advance.




MS L SVENDSEN:  Excuse me, your Honour.


JUSTICE ROSS:  Yes, Ms Svendsen.


MS SVENDSEN:  I can actually just update you very quickly - it's Leigh Svendsen.  The current state of affairs in aged care in Victoria - I visit often, my mother is in one - is masks.  They will usually give you face shields you have to put on you when you go in.  You have to be vaccinated and show your certificate, and you have to show your flu vaccine certificate, too.


JUSTICE ROSS:  Well, that might be an issue.


MS SVENDSEN:  Yes, that's why I'm actually pointing it out.


JUSTICE ROSS:  I have had my flu vax, but I don't know that I've got a certificate.


MS SVENDSEN:  It's pretty easy to get.






JUSTICE ROSS:  I'll sort that out.


MS SVENDSEN:  Last time - I'll double‑check.  You might be able to just sign that you've had it now.




MS SVENDSEN:  But, you know, certainly we had to show it before.


JUSTICE ROSS:  Yes, yes.  No, look, I'll see what we can do in that regard and I'll talk to O'Neill C.  Is there a similar requirement in New South Wales for a flu vaccine?


MR GIBIAN:  Not as I understand it, your Honour.  We will check that I'm not incorrect in that respect, but not as I understand it.




MR LOMBARDELLI:  If I may, your Honour, we have had some feedback from one of the potential site visits, Uniting, and the feedback they provided us is that we will just need to comply with any directions that they would give the visitors.  We obviously need to be wary that if there is a COVID outbreak at the facility, then we will not be able to visit, but we take a RAT test and that we also wear PPEs, what they have said so far.


JUSTICE ROSS:  Okay.  Well, I suppose it's another argument in favour of reducing the numbers.  I don't want to unnecessarily disrupt the staff or the residents of the facilities that we're visiting, so if you could bear that in mind.  All right, well, I'd encourage you to have the discussions, seek to limit the cross‑examination by either clarification of the evidence or the purpose its given, or by appropriate concessions.  I will see you all again next Friday.  Anything else?


MR McKENNA:  Your Honour, just before we adjourn again - - -




MR McKENNA:  McKenna, initial J, for the Federation.  As has been raised, what is currently proposed is views on day two and day three of the hearing.




MR McKENNA:  I presume that then leaves the first day for openings.


JUSTICE ROSS:  It does.  Well, I'm not wild about openings, Mr McKenna.  You have made your submissions.  Is there much point?  You will have an opportunity to make further submissions and then closings.  What would be the purpose of the opening?


MR McKENNA:  Well, your Honour, that's why I raise it, because I for one don't want to be wasting the tribunal's time.  We do have that day.


JUSTICE ROSS:  We can deal with the expert evidence, presumably, because the cross on that is said to be about 20 minutes.  There are six of them.


MR McKENNA:  Yes.  Unfortunately, I can indicate for the ANMF our witnesses won't be available on that first day.


JUSTICE ROSS:  Which are yours?  I see, yes, the Smith Lyons report.


MR McKENNA:  Yes, and Junor(?).


JUSTICE ROSS:  Junor(?), yes.


MS LOMBARDELLI:  If I may, your Honour, make a suggestion on the run with what could be possibly done on the first day - - -


JUSTICE ROSS:  Certainly.


MS LOMBARDELLI:  - - - which we see could be of value to the Commission itself.  It's to possibly have a witness from each kind of category in a residential aged care facility, so, for example, a personal care worker, someone that might work in the kitchen, a gardener, a maintenance person, a laundry person, to give some evidence on that day for cross‑examination so that might help the Commission when we do attend on the site visits, as well.  That might be a good use of that time, subject to other parties' views.


MR McKENNA:  Look, I think that might present some practical difficulties for us, but we'll have some - - -


JUSTICE ROSS:  Yes, yes.  I mean, from my perspective I'm content to allow you to use that time in whatever way you can.  Mr McKenna, if the parties want to make a short opening, that's - I just didn't want you to move to sort of full submissions, but if you wanted to make a short opening I'm not wanting to rule that out.  I certainly think we should try and use the time that's available on that day if we can.


MR McKENNA:  Certainly the parties will obviously work together to include in the schedule that we put before the Commission some - to make use of that first day as best we can.


JUSTICE ROSS:  Yes, okay, but I don't want that to distract you also from trying to sort out the broader issue of whether it's necessary to cross‑examine all the witnesses in the way that has been foreshadowed and whether there is another way of dealing with the issues that arise in that evidence.  If you give that some thought and I'll hear about that in your schedule when we meet next week.  All right.


Look, I think once we know or have a better idea about what you want to do on each day and which locations, if you can also give some thought to - there was some indication that some wanted to be physically present, et cetera.  There is no difficulty with your attending Commission proceedings or having break‑out rooms.  I'm not sure - well, speaking for myself, I won't be in the hearing room.  I'm still not in a position where I'm that comfortable in face-to‑face hearings with what might be a large group of individuals, so I'll be on the video monitor in my chambers.  I don't know what O'Neill C would be doing, or Asbury J's indication.


Give that some thought, but, look, we're happy to facilitate the use of rooms, break‑out rooms and the like.  We just need to have some better idea and you can give that to me next week about what your requirements are.  Anything further?


MR GIBIAN:  No, thank you, your Honour.


JUSTICE ROSS:  No?  Thanks very much.  We will adjourn.

ADJOURNED TO A DATE TO BE FIXED                                         [4.53 PM]