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Fair Work Act 2009






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


Application by Ellis & Castieau and Others



Nurses Award 2020




12.00 PM, FRIDAY, 22 APRIL 2022


Continued from 13/04/2022



JUSTICE ROSS:  I'll just briefly go through the appearances that I have.  For the ANMF Mr McKenna with Mr Hartley of counsel.  For the HSU, Mr Gibian with Ms Saunders.  For the UWU, Mr Redford.  For ABI and various other employer interest, Mr Ward.  And Ms Deagan for the Aged Care Workforce Industrial Council.  I notice you're also on the line, Ms Dowst.  Whilst I'm always happy to see you, I'm just - I was wondering about your role in the proceedings.


MS DOWST:  I'm with Mr Gibian, your Honour.


JUSTICE ROSS:  Okay, thank you.  So, let me run some issues about where I think we're up to and a proposal for how we might deal with the volume of evidence.  HSU filed their hearing plan.  It wasn't a joint hearing plan, it was their proposal.


Before I seek ABI's views on the hearing plan, Mr Ward, I just want to ask you some questions about the cross‑examination of the lay witness evidence, the union lay witness evidence.  You can divide that evidence broadly into two categories.  There are some 15 union officials giving lay witness evidence, and there are you know, on my count, which, you know, may not be right 82 employee lay witnesses, if I can describe it that way.  They predominantly work in aged care, but some also work in the home care sector.


If I look at those 82 so I'm not talking here about the union officials; I'm talking about the 82 lay witnesses - do I apprehend that the cross‑examination of those witnesses is likely to be relatively short?  I would imagine that you may be seeking to clarify some issues in their statement, perhaps about whatever changes in the way they perform their work have occurred, et cetera.  Is that broadly right?


MR WARD:  Yes, your Honour.  I might use a slightly different phrase in the sense of it'll certainly be contained, and it will be targeting elements that are fairly common to all of them to, as it were, deal with matters that they've perhaps been quiet about rather than necessarily fundamentally trying to contradict what they've said.


JUSTICE ROSS:  Okay.  So it's not likely to be an area where credit is at issue.  You're seeking some elaboration?  All right.  Thank you.


MR WARD:  Again, it's all that value(?) case.  I'm not really sure credit really comes into it.


JUSTICE ROSS:  No, I had worked on that assumption.  Look, I've discussed with the other Members of the Bench just how the Commission resources can be efficiently utilised in this.  What we're proposing is that O'Neill C, sitting alone, would hear the evidence of those 82 lay employee witnesses.  The Full Bench would sit to hear the cross‑examination of the 15 union official lay witnesses, the experts and the employer lay witnesses, because we apprehend there may be more detailed cross‑examination in respect of them.


O'Neill C would provide a report to the Full Bench, and the parties would have an opportunity to comment on the report.  It would largely identify the aspects of the evidence that was the subject of cross‑examination and attach the relevant transcript.


So I want to discuss that proposition with you first, and then go to the other matters that we need to deal with.  Mr Ward, do you have any issue with that?


MR WARD:  I have no objection, your Honour.


JUSTICE ROSS:  All right.  Mr Gibian?


MR GIBIAN:  Ultimately it's obviously a matter for the Commission.  I'll just seek some instructions as to whether we have any particular opinion we would like to express about that.


JUSTICE ROSS:  All right.  Well, you'll need to do that quickly, because we'll be holding - - -


MR GIBIAN:  (Indistinct).


JUSTICE ROSS:  - - - (indistinct) to do so, and you would need to structure your hearing schedule accordingly.


MR GIBIAN:  I understand that, but your Honour, there are some availability issues in relation to the experts, but I think they are already proposed to be concentrated at least at two particular times.


JUSTICE ROSS:  Yes.  Look, I'm really here talking about the union official lay witnesses rather than interspersing them with the employee lay witnesses.  If you can aggregate them that would be helpful.


MR GIBIAN:  I understand, your Honour.


JUSTICE ROSS:  All right.  Mr McKenna?


MR McKENNA:  Thank you, your Honour.  I had some technical difficulties joining the conference the mention, I'm sorry.  I might defer to Mr Hartley to respond to the proposal.


JUSTICE ROSS:  Sure.  Mr Hartley?


MR HARTLEY:  Your Honour, I think we're in the same position as Mr Gibian.  It doesn't strike me as being something to which we immediately object, but I'd like the opportunity to take some instructions about that, if I may, your Honour.


JUSTICE ROSS:  Sure.  You can let us know perhaps by the end of the day.


MR HARTLEY:  Yes, we can do that, your Honour.


JUSTICE ROSS:  If we don't adopt that course we'll need to revisit the availability of dates and what have you and we'll do that on Tuesday, and that may extend the hearing beyond the dates that are scheduled.  The difficulty we have is that, well, I'm aware that Asbury DP is not available next Friday, and I'm constrained beyond the dates that are already listed by the annual wage review.  So it may put us - if we adopt a different course, it may put us into July, but you can bear that in mind when you give some thought to where you want to go.  Mr Redford, was there anything you wanted to say about any of this?


MR REDFORD:  Your Honour, bearing in mind that the applicant unions will express a view in due course, from UWU's perspective the proposition doesn't cause us any technical difficulties, and say if we're just working through the availabilities of people, we could deal with the matter if it was done that way, your Honour.


JUSTICE ROSS:  Okay.  Look, I think it actually makes it easier to work through availabilities, because you'd only have to contact one Chambers and any shift in if you wanted someone to come on late, or by telephone or whatever, then we don't need three people to focus attention on it.


Can I then move through the other issues?  In relation to the experts, I wasn't sure how you're proposing to deal with the Smith and Lyons report.  Is Professor Smith and Dr Lyons, are they giving concurrent evidence or how's that going to work, or are you only requiring one of them for cross‑examination?  It's not really a question for you, Mr McKenna; it's a question for Mr Ward.


MR WARD:  Well, I actually had assumed, having read it, that it was sort of like one of them was more involved than the other, and I had assumed that that person would probably make themselves available, but I might be corrected on that.


JUSTICE ROSS:  Which one do you want to cross‑examine, or do you want to cross‑examine both?


MR WARD:  I have to get some instructions on that, your Honour.  I don't have that to hand.


JUSTICE ROSS:  Then if you can discuss that with Mr McKenna and just sort out what you want to do, whether both are required, whether it's concurrent, or there's some other proposition.


On the inspections on Wednesday in Sydney, Asbury DP will be attending those.  If there are any additional requirements, Mr Gibian, you mentioned that you'd make some inquiries about flu vaccs and what have you.  I don't think at that stage you were aware of any, but if there are, if you can advise Asbury DP's Chambers.


MR GIBIAN:  Of course, your Honour.


JUSTICE ROSS:  In Melbourne, O'Neill C will undertake the inspection.  O'Neill C advises me that she - I think the HSU advised on the last occasion that COVID vaccs and booster and flu vaccination was required in Victoria.  O'Neill C has had all of that.


While I remember, there's an odd or not odd, but you know there's a statement that has been filed of a Mr Paul Crantock, who is the CEO of Tandara Lodge Community Care.  It's not a statement that has been filed any of the principal parties.  Well, look, without wanting to seem to be making a ruling in relation to any of it, it looks a bit like a submission that's sort of filed as a statement.  I wonder if - has anyone heard of Mr Crantock, or are they aware of him in any way at all?


SPEAKER:  No, your Honour.


JUSTICE ROSS:  Okay.  Well, look, it's not urgent.  We'll make - look, it should be on the website but I'll ask my Associate to forward to each of you a copy of the statement and we will make an inquiry of Mr Crantock as to whether he intends it to be a witness statement or a submission in the proceedings.  And depending on the answer to that, well we'll let you know either way and see what flows from it.


Can I deal with the digital court book.  The HSC and ANMF have identified some omissions or corrections.  They've been rectified and look, you'll have the opportunity at any time during the course of these proceedings, if there's something you want to correct or add to the court book, you're at liberty to do that.


In relation to the objections to the evidence, I think you've each taken the position that you're not making a formal objection but you're all reserving your position to make submissions as to the weight that should be attached to particular aspects of the evidence before us.  If I'm not right about that assumption or that characterisation please let me know, but that's how I had read them.


Also, in relation to attendance, the HSU and UWU have advised that their advocates and witnesses will attend via Teams. Is that the same in your respect, Mr Ward?


MR WARD:  It is, your Honour, unless anybody wants people face to face, in which case we'd organise that.


JUSTICE ROSS:  Okay.  Look, the ANMF takes a different view and it looks like you're all proposing to rock up for your opening on Tuesday to address an empty room in Melbourne.  Is that the case?


MR McKENNA:  Your Honour, that's what is proposed for the federation.


JUSTICE ROSS:  You appreciate there'll be no Commission member in that room.


MR McKENNA:  That is understood.  It seems from the ANMF's perspective that there is some value in at least having us in one room and not being reliant on individual technology for reasons that my late attendance this morning points out quite well.


JUSTICE ROSS:  All right.  You'll need to advise my chambers by 4 pm today who will be attending, because we shut and so you'll need to be admitted to security downstairs and you'll be shown to a room and the same will occur in relation to your witnesses, if you wish them to attend in person.  The witnesses, I think you've mentioned four of them, and one of those is an aged care nurse, Mr Andrew Venosta.  Well, on the proposal I outlined earlier Mr Venosta's attendance should be organised through O'Neill's C chambers.


As for the other witnesses, you'll need to advise my chambers by 2 pm on the day before you want them to appear in person so that we can organise security access.  Again, there won't be anyone else there.  I'm a bit staggered that you can't manage - have a secure technology link between the ANMF and counsel, but nevertheless if that's your position, that's your position.


MR McKENNA:  Your Honour, can I just indicate as well that the communication to the Commission to your chambers yesterday, that dealt with the evidence, the hearing plan and so forth set out the attendees, legal representatives and representatives from the ANMF with phone numbers, so I'll make sure that if there are any additional persons then that's brought to the Commission's attention as soon as possible.


JUSTICE ROSS:  Yes, and we'll have someone downstairs in the 11 Exhibition Street entrance.  I'm assuming it's in Melbourne?


MR McKENNA:  Yes.  Yes, your Honour, thank you.  And your Honour referred earlier to Andrew Venosta is an official - an employee of the federation.




MR McKENNA:  He gives evidence about his experience.  Some of his evidence basically is experience working with the industry but he's probably got a foot in both camps.


JUSTICE ROSS:  All right.  Well, in that case you'll advise my chambers if he's coming in for whatever reason.


MR GIBIAN:  Your Honour, can I just add, so far as the HSU's concerned, arrangements have been made to attend the Commission premises in Sydney for the first day of the hearing only.  I think those have been put in place.


JUSTICE ROSS:  With whom?


MR GIBIAN:  I'm sorry, your Honour?


JUSTICE ROSS:  With whom have they been put in place?


MR GIBIAN:  I mean internally within the HSU and I think we had communicated with the Commission that that was the HSU's intention.  It was only with respect to the first day of the hearing that the intention was to do it in that way.


JUSTICE ROSS:  Yes - - -


MR GIBIAN:  I think we've partly done that because we're unsure whether Asbury DP was going to be in the court room in Sydney or not and we didn't want to be rude.  But - - -


JUSTICE ROSS:  No, Asbury DP will not be - - -


MR GIBIAN:  I now understand that that's the case - I now understand that that's the case but it was still our intention to attend the court room in Sydney, just for the first day of the hearing.


JUSTICE ROSS:  All right.  I'll let the Sydney registry know.  Look, can I suggest that you - those who are attending in person arrive at the premises at least 15 minutes before, just in case there's any hold up in getting you into the building.


MR GIBIAN:  Of course, your Honour.


JUSTICE ROSS:  Okay.  So, the union parties will advise if there's any objection to the suggestion about O'Neill C hearing the evidence of the employee lay witnesses.  If you can do that by 4 pm today.  Is there anything else?


MR WARD:  Your Honour, can I just indicate to you that we'll need to take up an issue with Mr Greyson who's organised the schedule so that we can actually find out who the lay witnesses for each day actually are going to be.  Because at the moment they're not identified.


JUSTICE ROSS:  Yes.  No, no, I suspect, Mr Ward, the schedule will need to be recalibrated in any event, in the light of the proposal about the employee lay witnesses versus the unions.  But I have a similar issue.  We'll need to know at least two days before the witnesses are going to appear so that we can familiarise ourselves with the statements, just make sure we've got them ready and the thing goes seamlessly.


MR WARD:  Yes.  Thank you, Your Honour.


MR GIBIAN:  That was certainly the intention, your Honour. Obviously there's a lot of practical arrangements that have to be put in place for that to occur but we'll obviously endeavour to notify everyone an order of particular witnesses as soon as we can.


JUSTICE ROSS:  All right.  Well, we'll re-visit that issue during the opening on Monday - sorry, Tuesday.  I think the witnesses that are proposed to be called on Tuesday afternoon are - am I right about that, employee lay witnesses?


MR GIBIAN:  No, your Honour.  The union (indistinct) the HSU.


JUSTICE ROSS:  Okay, they're officials.  All right.  Well, that's easy because we can deal with those sitting as a Full Bench.  All right.  And you'll let us know the contact details and the like?  Whoever is calling those witnesses.


MR GIBIAN:  I'm sorry, your Honour?


JUSTICE ROSS:  Who is calling those witnesses?  I just don't have - - -


MR GIBIAN:  They're our witnesses, your Honour.  The HSU.


JUSTICE ROSS:  So, you'll advise us of their contact details for the purpose of the Teams hearing.


MR GIBIAN:  Of course.


JUSTICE ROSS:  Okay.  Anything further?


MR McKENNA:  Your Honour, can I just raise a couple of logistical housekeeping matters.  In terms of the use of the digital hearing book, and please excuse my ignorance, but is it anticipated that through Microsoft Teams it'll be possible to share documents with a witness, so that everything that a witness will need to see will be made available to them through Microsoft Teams?


JUSTICE ROSS:  If you want to - look, if it's in the digital hearing book yes, the witness can have access to that.  If you want to show a witness a document that's not in the hearing book and you don't particularly want the witness to see it before you're cross-examining, then you can obtain the email address of the witness, email it to the witness and to the Bench and to the other parties, and just, you know, as you're prior to cross-examining, and we can open it and then we'll add it to the court book later.  I'm conscious that, you know, if you want to put something to a witness that is - might be something they've said elsewhere that's inconsistent with what they're now saying, for argument's sake, you're going to want to do that with the full theatrical flourish, Mr McKenna.


So, what we've done in other cases is not put in a court book but you simply advise the day before that look, there's material you want to put to the witness.  If it's publicly available material like an annual report of the aged care report, something like that, there's usually no difficulty with providing it beforehand but you're not required to.  But we'll manage the logistics of that as we encounter it in each instance.


I think - well, you won't be cross-examining anyone for a while so you've got a bit of time to think about what material you might want to put and whether or not it's in the court book.


MR McKENNA:  Thank you, your Honour.  That's very helpful.  One other issue I had is whether the Commission proposed to make an order for witnesses out.  Now, I expect that there will be overlapping scenes of cross-examination, probably for all sets of witnesses.  If the Commission is minded to make such an order, I note that Kristen Wischer who's the senior federal industrial officer for the ANMF would be - is a witness and will be required to provide instructions throughout the hearing.  So I'd seek an exception for her.


JUSTICE ROSS:  Well, I think I'd leave that to the respective counsel to sort out what sort of order and direction you want from us.  No doubt there'll be others in the same position but I'm content to leave it to you and come back on Tuesday with what you've agreed on.


MR McKENNA:  Thank you, your Honour.  We will discuss that.  The only other matter that I had to raise was that - and this might be something that perhaps could be raised administratively with the Commission.  But the ANMF's submissions and witness statements were filed on 29 October appeared to have disappeared from the major cases website, your Honour.  So, I'm not sure if we should write to someone within the Commission to bring that to their attention or if there's perhaps reason that that's occurred.


JUSTICE ROSS:  I can't think of a reason.  I know that we've transitioned to a new website and platform, that's probably the explanation.  Are they in the court book?


MR McKENNA:  They are, yes.


JUSTICE ROSS:  Well, then it doesn't really matter but I'll make the inquiry and I'll have someone let you know.


MR McKENNA:  Thank you, your Honour.


JUSTICE ROSS:  The digital court book, if you can look at it this way, it's intended to assist parties by making it easier to refer to documents.  We'll see how that works out in practice but that's the intention.  From the Bench's perspective, you should work on the assumption that we'll have regard to all the material in the digital court book, and only that material.  So, bear that in mind.


Obviously the transcript will go in there, any documents that are tendered et cetera, will go in there.  It avoids - also avoids the need to mark witness statements.  You can simply note when you come to your witness that you can swear the witness up to the statement obviously and then note that the statement appears at whatever the pages are in the court book and we proceed on that basis.  Okay?


MR WARD:  Your Honour, sorry, can I just ask one question if I might.  Is the Commission intending to have a hard stop at 4 o'clock on every day or if we do - - -




MR WARD:  I'm happy to give everything the college try but we might need - we might run over on some days.


JUSTICE ROSS:  No, no, absolutely.  I think we'll endeavour to help, you know.  I guess we'll take the temperature of the room.  If - I don't want it to be trial by exhaustion either, but the likelihood is that we would want to finish a witness on a day.  So, we would not want to leave a witness hanging and the inconvenience of them having to come back for another day for the sake of 15 or 20 minutes.  So, no, we will and we'll probably seek an indication from whoever's cross-examining as to how long they're likely to be and then make a judgment at that point.  But no, I think look, it's going to be trying enough.  Just the - in your witness schedule you might also give some thought to having witnesses in reserve that might be available to be put in, so that we don't have any gaps in time.  I'm almost certain that there'll be gaps in the time available.


Every other case that's involved this many witnesses, you know, you have periods where you're having to adjourn at 12 and your next witness isn't till two, so let's see, to the extent you can, if we've got - you've got some flexibility to slot someone in if you need to.  And as long as you let the cross-examining party know that that person may also be called to fill a gap, then no one should be disadvantaged by that course.  Okay?


And look, I'd encourage you to discuss any scheduling issues amongst yourselves and seek to reach an agreement.  You'll no doubt be seeing quite a bit of each other over the next few weeks, so I think to the extent you can sort those sorts of things out without needing any direction or ruling from us, you can take it if something generally suits all of you that we're not going to be leaping up and down about it.  Okay?  All right.  Thanks very much.  I will see you on Tuesday.


MR WARD:  Thank you, your Honour.


JUSTICE ROSS:  I'll adjourn.


MR McKENNA:  If the Commission pleases.