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Fair Work Act 2009                                                    








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

Application by Ellis & Castieau and Others




9.28 AM, TUESDAY, 26 APRIL 2022


Continued from 22/04/2022



JUSTICE ROSS:  Good morning.  I take it there are no changes in the appearances?  No?  There were some preliminary matters I wanted to raise before we move to your opening.  The first relates to a statement that we published regarding the proceedings.  I'm assuming everyone has a copy of that.  It was sent to each of you, and it was published on the website I think yesterday.  There are a couple of issues.


We attach an attachment A, a document which divides the 106 witnesses into the various categories, that is, the union lay witnesses into those made by union officials – we call them union lay witnesses, and the 81 witness statements by persons employed in aged care and home care as the employee lay witnesses.  I'd invite you to check we've got the characterisation right, because there was an error I think earlier with one of the ANMF witnesses.  We put it in the wrong spot.


The second point is that at para 16 to 18 we note that a revised hearing plan will need to be done to reflect the way we're proposing to deal with the matter, and also to identify which witnesses are actually going to be called on which day, rather than referring generically to seven lay witnesses, or whatever it might be.


I wanted to explain paragraph 18 because, you know, it may not have been clear.  We don't expect you to file the full hearing plan, but we want to know what's ahead of us for the next week or so.  We understand the logistical challenges of trying to fit people in and it may not always be possible to have a clear delineation between employee lay witnesses and other lay witnesses or experts.  We ask you to make your best endeavours on that, but we do want to see something by no later than 4 pm on Thursday about what you're up to for the next week.


The last issue on the statement is about the mode of hearing.  We received some advice from the ANMF, late on Friday I think, clarifying that they propose to appear by Teams.  I just wanted to ask, because your original position was your advocates would be in person, as well as I think four or five identified witnesses who were I think union lay witnesses, we've assumed that - and we've said as much in the statement - that all witnesses would be appearing by Teams, but is that going to be different for the ANMF for those witnesses or not?


MR J MCKENNA:  No, your Honour, it will not.  All witnesses will be appearing via Teams.


JUSTICE ROSS:  Thanks for that indication, Mr McKenna.  I might also mention the issue you raised about (audio malfunction) Major Cases website.  I think we've already communicated - my associate's communicated with, well, someone from the ANMF that the reason for that was it contained unredacted personal information.  The personal information either has been or is being redacted.  I've asked that they provide your organisation, or the organisation you represent, with the redacted version; make sure you're happy with that before it's posted on the Major Cases website.


MR MCKENNA:  Thank you, your Honour.


JUSTICE ROSS:  Can I also just before I go to some of the submissions and the last couple of issues I wanted to raise?  Those who have not already done so, or can you check with your instructors that all of your submissions and witness statements have been filed in Word as well as PDF?  It makes it much easier for the preparation of any background documents, or indeed in the drafting of the decision, if we've got Word documents to work with.


The second last issue is – I want you to think about this, not respond to it now particularly, and it may be that in thinking about it you just think no, it'd be too much trouble and we don't want to do it, and that's fine.  In reading the submissions, a number of you comment - and in the reply submissions - that there are areas where you've got a common position, and there are also areas of difference obviously.


To give you some examples, I think it's the HSU in reply notes that ABI's overview of the predecessor awards to the Aged Care Award is – I think it's characterised as 'fairly comprehensive.'  I've taken that to be that they don't take issue with it, and it may be some of the other award history material is uncontentious.  So I want to find a way of identifying what's uncontentious.


There is a significant part of the section 157 work value material that is or appears to be uncontentious.  There are obvious areas where that's not the case and that might go to the significant and addition point, and the extent to which the comparison of classification levels across awards is relevant.


I'm just wondering how do we - well, I mean I'm happy to go through them and have a stab at what I think's, you know, broadly agreed and what's not and we can put out a background document and you can comment on it.  Or, you know, more desirably from my perspective, less desirably from yours, you can do it.  So, have a think about it.  At least let's - there are some differences between the ANMF and the HSU.  Now, there may be differences of emphasis in the approach to work value but at least narrowing those would be of assistance.


So I'd like you to have a think about that over the course of the next week or so.  Once I see your hearing plan I'll fit in with that and do a short mention and we'll discuss that issue, the identification of what's uncontentious and what's in dispute at that mention, but it won't be for a week or so.


Can I also - there is one issue, Mr Ward, that you might usefully address, either this morning or at some point but both the HSU and the ANMF make the observation that in their view some of the - what they characterise as your assertions in the written submissions contradict the aged care sector stakeholder consensus statement.  The HSU reply mentions this, I think at 27 to 28.  The ANMF reply at 11.  And the proposition's put, at least by the HSU, that well, when you're making those statements you're really just talking for ABI and not for the other parties you represent.  So, some clarity around, well to the extent there are any inconsistencies, what are we to be guided by;  the stakeholder consensus or the submission?  And if it is the case that there is a difference and the submission is to prevail then what do you say about the proposition that you're only speaking for yourself there?


That brings me to the directions, and this is really something else for you to think about.  I don't want an answer now.  I just want you to think it through.  Bearing in mind, look, it is likely that we will publish a summary of the submissions of the parties and if you don't do it then we're likely to also do a document which tries to identify in terms of the legislative framework and the work value principles what's in agreement and what's between you.  We indicated in the draft statement that we'll be publishing some information notes et cetera over the coming weeks.


I note that the - two things about the remaining directions.  The first is that you're to file closing written submissions, the current direction says regarding the evidence by 3 June, and then submissions in reply on the evidence by 24 June.  Now, that was originally framed that way, look, mainly to avoid you repeating everything you've already said in your earlier submissions, so it's intended to try and confine the material.  But there will be the other documents - two things.  There will be the other documents that the Commission will publish that you should have an opportunity to comment on.  The second point is that there doesn't seem to be a provision for a reply by the employers to what the unions say about their submission and that opportunity should be provided.  Otherwise, it'll end up being put in an oral argument and the unions will need to respond to it on their fee.


So, I just want you to think about that timeframe; how those directions are structured.  I want you to discuss it amongst yourselves collectively and see if any amendments are necessary, either in timing or in the way they're expressed to let us know and we'll discuss that at the mention at some stage next week at a convenient time as well.  Any questions on any of those preliminary matters before we hear from, I think, you're up first Mr Gibian or the HSU is up first.  Any questions?  Any preliminary issues anyone wants to raise?  No?  All right.  Well, let's get cracking.  Mr Gibian.


MR GIBIAN:  Thank you, your Honour.  Just by way of those matters, as I understand the matters that Your Honour has raised.  Just two matters.  In relation to the hearing plan, we expect to be in a position to provide at least for the initial period a hearing plan coordinated with the other unions in the timeframe that is contemplated in the statement that was provided over the weekend.  I think we can, hopefully for the benefit of the other parties, provide at an earlier time at least an indication of the witnesses that will be called on, on Friday because that may be somewhat late notice if it's provided at the same time as the following hearing plan.


And we'll also - - -




MR GIBIAN:  I'm sorry, your Honour.


JUSTICE ROSS:  Yes.  I'm sorry, Mr Gibian.  You said that you'll coordinate with the other unions.  Well, we asked on the last occasion for a joint hearing plan to be submitted and that was not just with the unions, it's with the employer interests as well.  So, we want you to confer with them also.


MR GIBIAN:  Yes.  We'll certainly do that, and we certainly had provided the earlier hearing plan to all of the parties and we'll certainly (indistinct) to confer - - -


JUSTICE ROSS:  Yes.  No, no, I appreciate that.  No, no.  My point is I don't want you to provide it to them.  I want you to file it with us after you've spoken to them.  So, it's a joint hearing plan.  We emphasised that point in the statement because that's not what you filed last week.  You filed a document and sent it to the employers - - -


MR GIBIAN:  I understand.


JUSTICE ROSS:  Yes.  Look, I should have raised this before, Mr Gibian, so I'm sorry for interrupting you but has anyone heard anything from the WA chamber?  Are they - - -


MR GIBIAN:  As I understand it not and those instructing me have been in communication with them on numerous occasions and have not received responses to those communications.  So that's at least as I understand the situation.


JUSTICE ROSS:  All right.  Yes.  We're in the same position.  They've been provided with time and dates of hearings, sent copies of the statement et cetera, but we haven't heard anything and there's no indication from them that they want to cross-examine anybody.  All right.  Thank you, Mr Gibian, please go on.


MR GIBIAN:  Yes, thank you, your Honour.  We'll also of course give consideration to the other matters that your Honour has raised.  Secondly, just by way of brief housekeeping, I just note that we're in the court room in Sydney, as I think your Honour knows.  We can't currently see anyone else on the screens that are available to us, so if there's any need to interrupt me that'll have to be done orally of course, and I apologise in advance if I don't take visual cues in those circumstances.


With that clarification, I wanted to say something in introduction to the case.  The Full Bench obviously has the written submissions and the detailed documentary material which has been filed.  The current applications, as the Commission knows, provide an historic opportunity for the Commission to examine the work of workers engaged in the aged care sector, both through residential aged care and through the provision of home care to aged persons in their own homes.


As was observed by Justice Tracey as Commissioner of the Royal Commission into aged care safety and quality, the hallmark of a supervised society is how it treats its most vulnerable and our elderly are among the most physically, emotionally and financially vulnerable.  An effective and appropriate system for the provision of care to aged persons, whether in a residential setting or in their own homes is a critical feature, no doubt of the society that most Australians would want us to have.  The significance of such a system is only increased with the ageing population.


As was recognised by the Royal Commission, nothing is more important to providing an effective and appropriate system of aged care than the composition skills of the workforce involved in the provision of that care.  A highly skilled, well‑rewarded and valued aged care workforce is vital to the success of the aged care system.  Ensuring that the aged care workforce has appropriate conditions of employment and is properly remunerated is a vital task.


That is the reason that the HSU and the individual applicants have made application to vary its two modern awards so as to provide for an increase in rates of pay to workers engaged in residential care and in the provision of home care services.  With respect, the current awards, in the HSU's view, fail to provide a fair and relevant safety net, and fail to properly remunerate the workers engaged in aged care, having regard to the skills required and the responsibilities of their work.


In brief, the applications are as follows, firstly with respect to the Aged Care Award.  That award, as the Full Bench knows, covers workers engaged in a residential aged care setting across classification streams covering personal care work, general administrative services and food services.  The application with respect to the Aged Care Award seeks to increase the rates of pay for employees in each of those classification streams by an amount of 25 per cent.


Additional changes are sought with respect to the classification structures, particularly to provide greater clarity with respect to personal care worker classifications, and to introduce a new level for personal care workers at aged care employee level 6 for specialised personal care workers engaged in specialised care such as dementia care, palliative care, or in a household model of care, and introduction of new role descriptions for recreational and lifestyle activity officers and senior recreational lifestyle and activities officers.


Secondly, the Social, Community, Home Care and Disability Services Award, commonly called the SCHADS Award, covers among other things workers engaged in the provision of home care to aged persons and to persons with disabilities in a private residence, that work involving personal care such as assisting with showering, dressing and oral hygiene; domestic assistance from vacuuming and mopping to cleaning toilets and bathrooms, to changing bedding and rubbish disposal; social support, including taking clients into the community for shopping, appointments, (indistinct); meal preparation duties, including drawing up meal plans, safe food‑handling and hygiene; and incidental gardening and home maintenance tasks.


The application with respect to that award seeks to create a new wage table for employees engaged in the provision of home care, specifically to aged persons in a private residence, having the effect of increasing the rates of pay for those employees also by an amount of 25 per cent, incidentally bringing them, in approximate terms at least, to the level of those engaged in the provision of care to persons with a disability.


The view of the HSU is that the Aged Care Award and the SCHADS Award fail to appropriately reward aged care workers for the work that they perform.  The award history makes clear that neither award has been subject to award value assessment at the time of the award modernisation or since, and appears any comprehensive manner previously.  The time has well and truly come for that assessment to be undertaken.


Your Honour the President observed the debates as to the approach to the assessment of work value considerations, and I don't need to address that at great detail now.  Once the Full Bench has had the opportunity to review the evidence in full, in our submission it will be well‑satisfied that the increase in rates of pay sought are justified for work value reasons, as is required, necessary to provide a fair and relevant safety net in the terms and conditions of employment consistently with the modern awards objective and the minimum wages objective.


The present applications come before the Commission at a particular historical moment.  There are at least two aspects of the background against which the Commission will assess the work value considerations raised in the application of the modern awards objective and the minimum wage objective, which are appropriate to report at the outset.


The first is that the applications have been made during or shortly following the completion of the deliberations of the Royal Commission into aged care quality and safety.  The Royal Commission represented a once in a lifetime opportunity to consider how this country can create a better system for elderly Australians and that better aligns with the expectations of the Australian people.  Part of the matters, understandably enough, that the Royal Commission had occasion to consider concerned the workforce engaged in aged care, including questions of pay and conditions of employment.


In its final report the Royal Commission was direct.  It baldly stated that the bulk of the aged care workforce does not receive wages or enjoy conditions of employment that adequately reflect the important caring role they play.  The final report recommended at recommendation 84 that employee organisations with relevant coverage make application to vary the Aged Care Award, the SCHADS Award and the Nurses Award to increase the rates of pay in those awards.


The HSU has taken up that task and indeed was congratulated for already having commenced proceedings with respect to the Aged Care Award by the Royal Commission itself.  The Royal Commission urged that the community as a whole needs to reflect upon the value of aged care workers and the essential nature of the work they do, and to pay them accordingly.


Although appropriately recognising this Commission will of course exercise its own independent statutory role, the Commission observed that on the extensive evidence before that inquiry about the work performed by personal care workers and nurses in both home care and residential care, the Commission considered that all three of the section 157(2A) reasons may well justify an across the board increase in minimum rates under the applicable awards, and that there was also a strong argument for parity between residential care workers working under the Aged Care Award and social community service workers who had been awarded significant pay increases as a result of the equal remuneration order made by then Fair Work Australia in 2012.


The Royal Commission further noted the disparity in pay between caring roles in the aged care sector and comparable jobs in the acute care sector and other industries is substantial and had not been successfully addressed by other initiatives, including improvements in funding.  Although exercising its independent statutory function, this Commission can and should take into account and be informed by the findings of the Royal Commission.


The second feature of the background to the Commission's consideration of these applications is that the Full Bench perhaps unusually had the benefit of a joint statement prepared by many of the major stakeholders in the aged care industry, to which the President referred in the introductory matters that have been dealt with, known as the Aged Care Sector Stakeholder Consensus Statement, filed in the Commission on 17 December last year.  The statement was prepared as a result of meetings convened by the Aged Care Workforce Industry Council in the second part of last year to consider the applications brought by the HSU and the ANMF.


That process was itself consistent with the recommendations of the Royal Commission, particularly recommendation 76.  The signatories to the statement included stakeholder organisations representing aged care workers, aged care providers and aged care consumers.  The stakeholders are agreed that wages in the aged care sector need to be significantly increased because the work of aged care workers has historically been undervalued and has not been subject of the proper assessment by the Commission, and that the minimum wages need to be set according to the value of the work done and to properly recognise the complexity and the nature of the work and the skills and responsibilities involved in doing that work, and the changes in the conditions in which the work is done.


They put forward 23 matters that they ask the Commission to consider in assessing the value of the work of aged care workers.  I don't need to go to them in detail, but I note they cover changes in the acuity and complexity of the needs of residents and recipients of aged care services.  The consequent changes in the skills, or increases in the skills, both clinical and care skills, as well as social and emotional skills, require the employees to meet the complex needs of residents and aged care recipients.


They note the increased expectation of aged care consumers and families and the community as a whole, together with the change in philosophy in aged care provision towards an emphasis on person‑centred care based on choice and individual needs, as well as the cultural, social and linguistic diversity of the consumers requires enhanced interpersonal communication and cultural diversity skills.  Changing to the staffing levels and skill mix of the workforce, particularly the increase in the proportion of personal care workers that have resulted in significant changes in the work undertaken by that class of employees.  And finally of workers engaged in the provision of home care has been affected by the move towards consumer directed home care packages, and workers being required to work with minimal supervision with consumers with higher and higher levels of (indistinct) and dependency.


In the HSU's submission, the stakeholder statements mean the Commission may proceed on the basis that major stakeholders agree that some variation to wages is justified and that it should be significant.  The Commission also has the benefit of submissions from a range of other significant aged care providers which are in a general sense at least broadly supportive of the applications which my client has made, including Uniting Care, BaptistCare, Uniting ACT, New South Wales ATT and the ART Group.


Can I turn briefly to the major themes that we say emerge in relation to - from the evidence in relation to work value considerations that the Commission will need to consider.  As the Full Bench knows, the HSU has filed a large amount of evidence.  Four expert witnesses will be called; Professor Sarah Charlesworth, Professor Kathleen Eagar, Gabriel Maher and Dr Susan Curley.  I hesitated to ensure I've got the numbers right but in the region of 33 employee witnesses dealing with residential care and 15 dealing with - giving evidence with respect to home care work in addition to a number of union officials will be called to give evidence.


The Full Bench will obviously enough have an opportunity to consider the evidence in detail through the processes the Commission set in place as described in the statement which has been provided over the weekend.  What I wanted to do is to highlight - is simply an opening to highlight some of the things which we say emerge from the evidence which will no doubt be apparent to the members of the Bench already.


The first theme that emerges is the fundamental change which has taken place over and around the last two decades in the demographic and profile of persons - of aged persons receiving care, both in a residential setting and in a home environment.  The evidence, particularly the expert evidence, describes how in the past much of what is now referred to as aged care was essentially a lifestyle choice.  People retired from work and moved into a hostel and nursing home facility and were able to live independently often for many years.


That has changed dramatically since at least - since around the late 1990s.  People in residential aged care are now typically very frail with complex physical, cognitive and social care needs and enter aged care because they're unable to live independently.  This change has arisen both from the deliberate government policy to facilitate and encourage aged persons to remain in their homes through the provision of community support, as well as from changed social societal attitudes.


The commonwealth has introduced home care packages to facilitate elderly persons remaining in the home longer and delaying or avoiding the need for residential care.  Home care is now fundamental and growing feature of the national aged system through the Commonwealth Home Support Scheme and the Home Care Program.


The impact on the profile of persons in residential aged care and being provided with home care services in the community has been profound.  The nature of the change is demonstrated by the expert evidence which has been filed.  It is appropriate because it is so striking, however, to emphasise some of the data which is available in that area.  For example, data from the Australian Institute of Health and Welfare demonstrates that between 2009 and 2019 the share of residents in residential care with high care needs increased across all domains measured in the aged care funding instruments.


The share with complex health needs quadrupled from 13 per cent to 52 per cent.  The proportion with cognition and behavioural needs increased from 36 per cent to 64 per cent.  Those needing support in carrying out activities of daily living increased from 33 per cent to 60 per cent.  Those with high care needs across all three domains; being activities of daily living, cognitive and behavioural needs and complex health care needs increased from a tiny four per cent to almost a third or 31 per cent.  The proposition of aged care residents with complex health conditions has skyrocketed.


By 2015, most older people living in residential care had multiple long term health conditions.  More than three quarters had five conditions and almost a quarter had at least nine conditions.  The prevalence of conditions requiring clinical assessment and treatment has exploded, including residents with diabetes, hypertension, heart disease and sarcopenia.   The proposition with cognitive mental health and behavioural issues has correspondingly grown.


By 2019, 53 per cent of older persons in residential aged care had a diagnosis of dementia.  The prevalence of disruptive intelligence behaviour has similarly increased.  According to the research, utilisation of classifications studied undertaken by  Professor Eagar between 2017 and 2019, 43 per cent of residents exhibited symptoms of agitation, including being noisy, uncooperative or resistant to help.  Thirty-five per cent were suffering from depression, five per cent exhibiting symptoms of irritability.  A third of residents had behaviours associated with occupational disruptions with staff, including 15 per cent of residents being assessed as highly disruptive.


The impact on the provision of care in homes and community setting has been no less profound.  Obviously enough, the expectation that the older Australians may be maintained longer at home and enter into residential care being reserved for the extremely frail has resulted in the demographics and care needs of recipients of home care services also changing fundamentally.  Consumers of home care services are similarly older, more frail and more complex and with more complex health, social and care needs.


By 2020, 64 per cent of recipients of home care packages were aged 80 and over, 41 per cent aged over 85.  By 2015, 22 per cent of home care package recipients had dementia and 51 per cent had high frailty scores up from 15 per cent in 2006.  The available data to which I have made reference, I only took a small part, demonstrates that the changes in the profile and care needs of consumers has been  stark.


The impact on the nature of the work, the skills and responsibilities involved in those providing care to that population and the conditions under which that work is done are obvious.  All parts of the workforce, particularly but not limited to those involved in direct care roles are required to possess and exercise with greater frequency and consistency higher level of care skills and a greater (indistinct) of responsibility providing care to a population with complex and demanding medical, social and care needs.  The involvement in specialist care dealing with persons with dementia, behavioural issues and the end of life care is now an (indistinct) reality.


The second theme which emerges from the evidence concerns  changes that have occurred to the models of care and the care philosophy in residential care and the provision of home care services.  Contemporary models of care reject the institutionalisation of older people that in the past have required that we conform to the norms and routines of a hospital like setting.  Instead, models of care increasingly emphasise that the care should be person centred, adapt to the needs of each individual older person and that person centred care is grounded in a caring relationship in an aged care setting.


Similarly, the provision of home care services, concepts of consumer choice and control have become important in organising and funding aged care services.  The Commonwealth Home Care Support Program that deliver home care packages have embedded principles of consumer choice and consumer directed shared care, the aim of which is to involve a person's choice about the types of services they receive and how and when the services are delivered.


New goals of wellness enable them to be introduced, the goal of which is to build on the individual's strength, capacities and goals and improve physical, social and emotional wellbeing of care recipients.  In both settings, the provision of peer care is underpinned by individualised care plan formulated and reviewed in consultation with the aged person receiving the care.  The change in philosophy and the goals that aged care provisions, also the nature of the work of those involved in the provision of that care across all aspects of the operation of the residential facilities and in the provision of home care.  The contemporary aged care worker is required to apply person‑centred principles of practice in their everyday work.  As Professor Eagar describes it:


Staff members are no longer employed just to do physical tasks.  They are expected to engage socially with each older person in their care and to be the eyes and ears of the facility.  Principles of enablement and increased psychosocial needs of residents increase the requirement for all staff at facilities and in the provision of (audio malfunction) hygiene to exercise judgment, responsibility and assessment skills, as well as to exhibit strong interpersonal skills as they interact and respond appropriately to the individualised needs of care recipients.


Associated with this move towards a person‑centred approach to delivery of aged care services is the development of new models of care, such as those involving the clustered domestic or household model, which seek to more closely replicate a home environment rather than an institutional setting, and some of the inspections that Members of the Full Bench will participate in in the coming days will allow observation of those new forms of model.


The third theme which emerges from the evidence concerns changes to the regulatory and government's arrangements in aged care.  Aged care is a highly regulated sector, principally through the Aged Care Act 1997 of the Commonwealth which governs funding, regulation standards, and quality of care and the rights of people receiving care.


The most recent iteration of the standards under that Act are the Aged Care Quality Standards, which commenced operation on 1 July 2019 and set out standards required (indistinct) by aged care providers.  Those standards are substantially more comprehensive than what they replaced and in particular enshrine principles of dignity and choice for older people in relation to their care and the involvement of recipients of care as partners in the ongoing assessment of planning, and planning that helps ensure that they receive care and support that they need for their health and wellbeing.


In addition, the aged care sector has been subject to increasing accreditation reporting and assessment regimes, including under the Aged Care Quality and Safety Commission rules, the National Quality Indicator Program, and the Serious Incident Response Scheme.  There is a sense in some of the submissions that have been received by the Commission that these requirements represent no more than a burdensome paperwork obligation, and appears that they at least do that.  However, the enhanced principles of care and the care regulation imposed and the forms of regulation impose higher expectations on all those - and properly so - on all those who participate in the aged care workforce and enhance the accountability for the provision of care through the imposition of documentation, reporting, auditing and accreditation requirements.


The fourth theme that we say will emerge from the evidence, which has a particularly profound effect in the residential aged care setting, has involved the changing staffing profile in that sector.  The removal of mandated minimum staffing levels in residential aged care has produced changes in the staffing mix, and as a consequence the work and responsibilities of all employees in residential care.


In particular there has been a marked decline in the proportion of qualified nursing and allied health staff, for example, between 2003 and 2016 the proportion of registered nurses reduced from 21 per cent to 14.6 per cent, and enrolled nurses from 14.4 per cent to 9.3 per cent, and allied health from 7.6 per cent to 4 per cent over the same period.


These positions have been replaced largely by personal care workers, whose representation has increased from 56 per cent to 71 per cent.  The reduction in the proportion of nursing staff in particular has also been combined with the increased administrative regulatory burden falling on the remaining nursing staff, particularly the registered nurses.


The consequence is that a very high proportion of the direct care work is now undertaken by personal care workers.  The impact of the changing staffing profile and the allocation of duties has been particularly significant for that class of employees.


Personal care workers are now required to provide care to a more complex and higher needs population, with less direct supervision (indistinct) assuming greater responsibility for decision‑making and accountability for the care provided.  Tasks previously undertaken by nursing staff have progressively and necessarily transferred to personal care workers, including in relation to observation, assessment or reporting of health information, pain management, and the assessment and supervision of the administration of medications.


Finally, the fifth theme that I wish to emphasise that arises from the evidence is that in dealing with the application, it will be necessary for the Full Bench to consider the extent to which the work of workers involved in aged care in a residential setting and in a home care environment has been historically undervalued, including for reasons related to the gendered nature of that work.  The workforce in both residential care and home care is overwhelmingly female dominated, and the nature of the work is such that it is of the nature that has historically and regrettably been characterised as 'women's work.'


The evidence demonstrates that the complex and sensitive nature of the work, and the scope and variety of the skills required in the performance of that work, the skills involved cover health and medical‑related skills and knowledge of complex conditions, knowledge and understanding and ability to provide person‑centred care, literacy and numeracy, language communication competencies, technological and digital capabilities, problem‑solving capacities to work as a team managing stress and wellbeing, and body skills, which require specialised knowledge and skills to enable workers to care for the (indistinct) of service users to protect skin integrity, to uphold the dignity of the service user (indistinct) hygiene and infection control policies.


It is complex work involving emotional, intellectual and physical labour, frequently simultaneously, and involving a high degree of discretion, judgment and advanced interpersonal communication and empathetic skills.


However, many of these attributes have been precisely the type of skills which, particularly in a female‑dominated workforce, have tended to be viewed as somehow natural rather than demonstrable of a skilled workforce.  The Commission will need, in assessing the present applications, to ensure that appropriate recognition is now given to the responsibilities and skills involved in the work in the aged care sector.


As will be apparent, the themes that I've endeavoured to emphasise will represent simply some of the matters which we'll ultimately submit are demonstrated by the evidence and support the conclusions that a variation to minimum wages is justified on work value grounds.  There are other matters which will be relevant and which the Members of the Bench will have seen are referred to in the evidence, including qualification requirements and training, increased obligations to interact and communicate with families and external service providers, dealing with a population of increased cultural and social diversity, enhanced use of technology and mechanical aids, the impact of the COVID‑19 pandemic and the emphasis on infection control, and the effects of the widespread understaffing, among other things.


With respect to the Aged Care Award, much of the focus of the evidence is understandably directed at the care worker roles.  However, as I have observed, the application seeks to increase rates of pay also in the general administrative stream and the food services stream.  Without addressing the evidence in detail, the evidence also demonstrates that there were work value reasons for the increases for those employees.


With respect to the food services employees, the evidence will demonstrate that food services staff need to have increasingly specialised knowledge of older persons' nutritional needs, special diets and the psychology of their social interaction, and their work is affected by an emphasis on the choice of meals and the high‑quality mealtime experience required in delivering person‑centred care.  The knowledge and skills required in food service workers in the residential care setting extends well beyond those of food service workers in non‑care environments.


Cleaning staff can be conceptualised as part of the carer workforce, and perform a critical role in the provision of aged care through infection control, maintaining the appearance of the home, consistent with the individual needs of the residents, and through the relational work they provide, not least through regular and the substantial time they spend in residents' rooms.


Administrative staff have similarly experienced considerable change in the operating environment for residential care in recent years, notably through changes in the regulatory and information technology requirements, through increased demands of consumers and their families and external service providers, and through the requirement to be involved in the provision throughout the facility of individualised person‑centred care.


As the Bench will have seen, there is a difference between the HSU's position and the ANMF's application in this regard.  As I understand the ANMF's submissions, they do not have anything to say against increasing rates of pay for employees in the general administrative and food services streams.  But they do seek to separate the principle care workers from the other classifications in the aged care (indistinct).  The HSU does not join in that position.


Although the themes I've endeavoured to outline can be described at a level of generality, the more revealing stories that the Commission will hear in the course of these proceedings and will need to consider are found in the evidence of the individual workers who have come forward to give their evidence to this Commission.  By way of a very brief example, can I refer to four of the individuals who are coming forward to give evidence?  firstly, Virginia Ellis, who is one of the individual applicants, describes her work in a dementia ward operated under the home maker model at the Uniting Care aged care facility in Springwood in New South Wales.


Ms Ellis will give evidence as to her work providing care to residents suffering from dementia as effectively the head of the household in the household in the home maker model.  She'll describe work involved in the administration and management of medications, including assessing the best method of administering medication for a particular resident, measuring blood sugars and blood pressures prior to administering medications; administering creams, eye drops; providing tablets and ensuring medication is taken correctly.


She will describe how personal care involves looking after the whole body of the residents, from in between their toes, behind their ears and everything in-between:  their fingernails and their belly buttons.  The bathing and dressing is used - is a complex task, used as an opportunity to make observations in relation to skin integrity, medical issues or any injuries that may have occurred to the resident.  In the home maker model, the personal care worker, as a personal care worker she is engaged in cooking and cleaning as well as personal care tasks and responsible for the mental and emotional needs of the residents, including developing and implementing activities to assist and stimulate the residents.


Ms Ellis will describe involvement in end-of-life care, which is an inevitable part of aged-care work, including making the dying resident as comfortable as possible, sitting with the resident, negotiating appropriate pain management, cleaning and dressing the body following death and communicating with the resident's bereaved family.  Secondly, Allison Curry is a personal care worker at Warrigal in Mount Terry in Albion Park.  Ms Curry will describe the complexities involved in the changing model of care sought to be introduced, including permitting residents to age in place rather than being occupied in dedicated, high-care or low-care wards.


She will provide a description of the work involved in providing personal care to residents, including washing bed-bound residents, using mechanical aids and machinery to transfer residents; she will describe the requirement to constantly observe and assess the health of residents, to fill out assessments, to provide changes to their care plans as necessary as well as recording and administering and assisting in the administration of medication.  Ms Curry also provides a particularly detailed description of the emotional labour involved in end-of-life care, from comforting the dying resident, managing verification of death, cleaning and dressing the body for presentation, managing the distress of other residents and consoling family and dealing with external medical and funeral staff.


Thirdly, Linda Twyford, who is the regional food services and dying manager for the Royal Freemasons Benevolent Institution RFBI will give evidence in relation to the work of food services staff in a residential facility.  Ms Twyford will describe the impact the changes in the acuity of residents and the emphasis on person-centred care on food services staff.  Food services staff are required to cater for residents who commonly have eating or nutritional difficulties and prepare texture-modified diets and remain actively observant of residents as they are eating to monitor nutrition and in the case of a resident in distress or with difficulty eating or swallowing.


Further, she will describe changes that have occurred to safety regulations and reporting auditing requirements of as having a fundamental effect on the work of food service workers.  Finally by way of brief example, Jenna Wood is a support worker as employed with Uniting Higher and Community Care Nepean, with some 11 years' experience in home care.  She currently provides services to clients aged between 74 and 97, including two clients with dementia, and has provided support to clients with Parkinson's Disease, multiple sclerosis, motor neurone disease, cerebral palsy and those who are legally blind and deaf as well as those with limited mobility.  Amongst other things, she will give evidence as to the increasingly significant role home care workers play in the lives of clients as a regular source of social interaction and emotional support, including having residents disclose health concerns, family issues and in one case a history of child sexual abuse.  Ms Wood describes powerfully how what might appear on the surface to be relatively mundane domestic tasks such as cleaning, changing beds, rubbish disposal are made more difficult or complicated where clients have mental health problems, including behaviours (indistinct) challenging and anti-social behaviours which need to be managed.


Through Commissioner O'Neill the Commission will in due course no doubt receive a detailed report in relation to the evidence of the employee witnesses.  I provide merely a short - merely brief examples at the outset.  Finally it's not necessary to say too much in introduction.  In addition to the written submissions the Commission has received in relation to the modern award's objective or the minimum wages' objective.  The Full Bench will understand that in the HSU's submission the most important consideration in that regard is the need for award rates to provide a fair and relevant safety net at minimum wages and to ensure that the work of aged care workers is appropriately valued and rewarded.


I would just note that there are a number of particular matters which arise from the evidence which will require consideration.  They include that the workforce is to a substantial extent award-reliant in aged care and that there are limitations which have been experienced in enterprise bargaining in the aged-care sector and that enterprise agreement rates of pay are generally only marginally above the minimum award rates; secondly, that the composition of the workforce is, as I've mentioned already, overwhelmingly female and low paid.  Employees are often subject to various forms of insecure work.  There is a significant portion of the workforce from non-English-speaking backgrounds.


Thirdly, there are longstanding and increasing difficulties with attraction and retention of staff in aged care and the difficulties provided by or produced by staff shortages and disparities in pay with comparable workers have contributed to the difficulties identified by the royal commission in the provision of aged care.  These are all matters that will be relevant to the Commission's ultimate considerations.  Unless there is anything further, that was what I proposed to say in brief opening to the case.


JUSTICE ROSS:  Mr Gibian, look, one matter that you either can touch on now or perhaps in the further written submissions to be filed:  the HSU is seeking the same level of increase for those providing personal care in either a residential or a home-care setting.  But there are differences and similarities between the provision of care in those two settings.  I'm interested at some point in the HSU identifying what those are and why it is the same increase should pertain.  For example, just as a - on a casual observation a resident of an aged-care facility may have a higher level of dementia, therefore requiring more acute care.


But that's taking place in a residential facility and there are other employees that can support any personal care worker.  In a home setting the level of acuity might be less but you're effectively on your own and the reason this sort of came is as you were touching on the proportion - I think it was 56 per cent of the residents in aged-care facilities - with dementia and there seemed to be a lower proportion in home care.  You touched on the proportion of residents in aged care facilities with mental health issues, anxiety and the like, and that created particular challenges for staff.  I'm interested in the comparative position in the home care setting.  You touched on it in broad but perhaps if you can bear that in mind when you come to make the next round of written submissions, Mr Gibian, unless you wanted to - I don't want to, you know, foreclose you saying anything about it now.  But I wanted you to also give it some thought and address it in your further written submissions.


MR GIBIAN:  Well, we'll certainly do that, your Honour.  Just briefly by way of - by reference to the figures that I brought in overview at least or the data that I in overview at least referred to, it is important to emphasise in that respect that the data is not completing (indistinct) or the time period of the data for the different sectors in relation to the specific matter that your Honour's raised was different.  The point that we have emphasised of course is the levels of acuity and the care needs of care recipients, both in a residential setting and in a home care setting have changed dramatically in recent years, in both respects.


Which is not to say there is not some difference in the profile of the recipients of home care and in a residential care setting, but that similar challenges are encountered in both environments albeit as your Honour points out the home care worker is, at least in immediate sense, dealing with matters on their own and independently entirely but we think the challenges are broadly saying across those two sectors.  But as I say, that's a matter that we'll address in some detail no doubt having heard the evidence.


JUSTICE ROSS:  Thank you.  Any further questions?  No.  Can we go to the ANMF.


MR MCKENNA:  If the Full Bench pleases.  Touching first upon the matters raised in the statement dated 24 April and those matters raised by His Honour the President this morning.  There are matters raised there that have been and will continue to be taken into account on behalf of the ANMF and where appropriate we will make inquiries and have discussions with our colleagues to respond to the statement appropriately.


More generally in terms of the case for the ANMF, very detailed submissions have been filed on behalf of the ANMF dated 29 October 2021 and further reply submissions filed on 21 April this year.  In those circumstances I will endeavour not to repeat the things in those submissions but what I propose to do really is raise three key issues, I'll address three key topics.


Firstly, the background and context in which the ANMF brings its application to vary the Aged Care Award and the Nurses Award.  Secondly, to identify for the Full Bench what those variations are and what they entail, and then thirdly provide a very brief overview of the evidence particularly having regard to the descriptions of the major classifications in aged care relevant to the Aged Care Award and the Nurses Award.  Secondly, to address briefly the work value reasons identified in section 157(2)(a) and then finally address some of the evidence going to the ANMF's case about the historical undervaluation of work performed under both those awards.


Commencing with a background context of the ANMF's application, the application is made in response to and against a background of the findings of the Royal Commission into aged care quality and safety.  In February last year, the Royal Commission final report concluded that the bulk of the aged care workforce do not receive wages adequately to reflect their roles.  Mr Gibian has taken the Full Bench already through a number of the findings identified by the Royal Commission in its final report.  I won't repeat those but I will emphasise the content of recommendation 84, where the Royal Commission expressed a view that providers, unions and the Australian government must work together to improve the pay for aged care workers.


The recommendation read that:


Employee organisations entitled to represent the industrial interests of aged care employees covered by the Aged Care Award 2010, the Social Community Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010 should collaborate with the Australian government and employers to apply to vary wage rates in those awards to reflect the work value of aged care employees in accordance with section 158 of the Fair Work Act, and/or to seek an equal remuneration order under section 302.


The Royal Commission also made recommendations about the roles to be played by the Aged Care Workforce Industry Council.  Again, those are matters that have been addressed by Mr Gibian already, but I will note that part of the recommendations in section - in recommendation 76 was that  the Aged Care Workforce Industry Council lead the commonwealth government and aged care sector to a consensus to support those applications to improve wages.


Now, as the Full Bench is aware, there has been a detailed process of collaboration between unions, employers and other stakeholders.  Regrettably, the commonwealth government has not been involved in that collaboration process but that collaboration has produced a consensus statement dated 17 December 2021 and filed in this matter on that day.


Again, that consensus statement is something to which Mr Gibian has already referred the Full Bench so I'll be brief in what I say about it.  It is of significance - it is of significance that the parties to that statement include Aged and Community Services Australia and Leading Age Services Australia, as the President earlier pointed out this morning.  The parties also include the union applicants in this proceeding and other aged care stakeholders.


By that document, by that consensus statement, the stakeholders agree that wages in the aged care sector need to be significantly increased because the work of aged care workers has been historically undervalued for a range of reasons and has not been assessed by this Commission or other industrial tribunals.  The statement also identifies that minimum wages and awards need to be set according to the value of the work done by workers in aged care, recognising increases in complexity of the nature of the work and the skills and responsibility involved in doing the work and the changes to the conditions under which the work is done.


The consensus statement goes on to identify a number of matters which the parties to the statement consider that this Full Bench should have regard in properly valuing the work of aged care workers and setting minimum wages in the various awards.


Could I then turn to the particular application made by the ANMF and start with the application to vary the Nurses Award.  As the Full Bench would be aware, the current classification structure under the Nurses Award contains a single structure.  It provides for classifications from assistants - from nursing assistants, enrolled nurses, registered nurses at various levels 1 to 5, and nurse practitioners.


At this point I want to pause to say two things about the classification to nursing assistant that arises in the Nurses Award and the terms 'nursing assistant, assisting in nursing, personal care worker, personal care assistant and extended care assistant'.  Firstly, those terms, nursing assistant, AIN, PCW, PCA and extended care assistant, are used interchangeably throughout the industry.  The approach that I'll take in this opening similar to the approach taken in the written submissions by the ANMF is to refer to AIN/PCWs.


The second thing I'd say is that the classification of PCW under the Aged Care Award and the classification of assisting in nursing under the Nurses Award, both may apply to persons performing substantially the same work.


Returning then to the current structure under the Nurses Award, the award does not distinguish between the context in which employees perform their work.  There is currently in the Nurses Award no specific reference to the performance of work in the aged care sector.


In direct response to the Royal Commission findings and recommendations regarding the need to increase minimum wages for aged care workers, the ANMF now seeks to introduce a new schedule applying only to employees engaged in the provision of services for aged persons, firstly, in residential facilities and others forms of aged care accommodation, and secondly, for employees engaged in the provision of services for aged persons in a private residence.


The proposed new schedule then picks up the classification descriptors that apply to the general - - -


JUSTICE ROSS:  I'm sorry, you've just muted yourself, Mr McKenna.  There's an issue with your sound.


MR MCKENNA:  Thank you.  You can hear me now, I take it?




MR MCKENNA:  Thank you for the indication.  I'll presume that your Honour interrupted me shortly after I went off air.  The new schedule picks up the classification descriptors as apply to the general classifications under the Nurses Award:  safety, occupational health nurses who have no equivalent role in aged care.


The ANMF seeks increases of 25 per cent to the minimum rates applicable to the general classification of registered nurses, enrolled nurses and nursing assistants, AIN/PCWs, engaged in the provision of services for aged persons to properly value the work that they perform.


The application seeks for that schedule to have a limited operation applying for a period of four years.  Within that period it is anticipated that a further work application will be brought under section 158 with respect to the work value of other classifications under the Nurses Award.


Turning then to the application made by the ANMF to vary the Aged Care Award, the application to vary the Aged Care Award by the ANMF overlaps substantially with that made by the HSU and as supported by the UWU.  Whereas the HSU application applies to all classifications of aged care employees under the award, the ANMF application relates particularly to those personal care employees.


By the ANMF's application, employees within the personal care stream would be extracted out of the general classification of aged care employees and given their own classification structure.


The ANMF otherwise proposes only very minor amendments to the language currently used in some of the classification titles and classification descriptors, as currently contained in the award.


As such, the personal care stream would then stand as a separate and distinct stream applying separately and independently to rates of pay pertaining to general administrative services employees, which encompasses clerks, receptionists, maintenance persons, drivers and gardeners and so forth, and food services employees.  The ANMF seeks a 25 per cent increase in minimum award wages for employees within the personal care stream.


As Mr Gibian indicated, the ANMF says nothing against the broader application made with respect to general administrative service employees and food service employees.  In fact, the ANMF supports that application for increases, but as the Full Bench would be aware, that is not part of the evidentiary case of the ANMF, and accordingly it's not part of the determination that has been sought.


Turning then to the particular evidence, on 29 October last year the evidence as filed by the ANMF includes two expert witness reports provided by three separate expert witnesses; nine statements of union officials, there being two statements by Ms Wischer and seven other statements; and 16 statements provided by employees who are or have been engaged performing work in the aged care sector.


The evidence from the union officials will include evidence from the federal secretary, Annie Butler; from the senior federal industrial officer, Ms Kristen Wisher; from a senior federal professional officer, Julianne Bryce; the Victorian branch assistant secretary, Paul Gilbert; the director operations and strategy in the South Australian branch, Robert Bonner; the Queensland branch industrial officer, Kevin Crank; the Victorian branch occupation health and safety coordinator, Kathryn Chrisfield; and the Victorian branch industrial organiser, Mr Andrew Venosta.


The ANMF's evidence will cover the performance of aged care work in both residential and home care settings.  As to how that evidence is relevant, the evidence regarding residential aged care is relevant to the work value of personal care workers under the Aged Care Award, and to the work value of AINs, PCWs, enrolled nurses and registered nurses, including nurse practitioners, under the proposed new schedule to the Nurses Award applying to the provision of services to aged persons in residential aged care facilities and other accommodation facilities.


Evidence regarding the performance of home care work is relevant to the work of AINs, PCWs, enrolled nurses and registered nurses, including nurse practitioners, under the proposed new schedule to the Nurses Award applying to the provision of services to an aged person in a private residence.


The evidence of the ANMF also identifies three main categories of employees covered by the application to vary the Nurses Award.  They are AINs, PCWs, enrolled nurses and registered nurses, including nurse practitioners.  The ANMF will rely on the evidence of six registered nurses who work, or have worked, in the aged care industry.


A registered nurse is a person registered as such by the Nursing and Midwifery Board of Australia.  That registration currently requires the completion of a three‑year Bachelor of Nursing degree and ongoing annual requirements.


A nurse practitioner is an advanced practice registered nurse who has successfully completed an accreditation program of study leading to endorsement as a nurse practitioner.  Currently that is a Master of Nursing (Nurse Practitioner), or a Master of Nurse Practitioner.  So whilst it is somewhat confusing, the role of nurse practitioner falls within the broader category of registered nurse.


The evidence from registered nurses currently or formerly employed in aged care, together with the evidence from union officials, will identify that registered nurses lead nursing teams responsible for the provision of care to aged persons.  They have the ultimate responsibility for the aged person under their care.  They bear significant and increasing administrative and managerial responsibilities.  This involves the coordination/delegation of care, the running of residential aged care facilities, and the overseeing of home care.


Registered nurses are accountable for care delivered and responsible for the coordination, supervision and delegation between enrolled nurses and AINs/PCWs who assist them in the provision of care.  The registered nurse plays a central role in developing, implementing and updating care plans, which are the primary documents governing the provision of care in residential aged care and home care settings.


The evidence of registered nurses will also go to the value of the work performed by other classifications in (audio malfunction) and Care Award.  The ANMF will also rely on evidence from three enrolled nurses who work or have worked in aged care.  An enrolled nurse is a person registered as such with the Nursing and Midwifery Board of Australia.  The requisite qualification for an enrolled nurse is currently an 18-month diploma of nursing.  Enrolled nurses provide nursing care working under the direct and indirect supervision of the registered nurse and in doing so they are accountable for their own practice and remain responsible to a registered nurse for the delegated care.  The ANMF will rely on the evidence from seven AIN PCWs, who work or have worked in the industry.  This evidence is relevant to both the application to vary the Aged Care Award and the application to vary the Nurses Award.


AINs/PCWs have responsibilities for delivery of care particularly with respect to the day-to-day care of residents and clients.  AINs/PCWs work as part of a nursing team.  They provide care in accordance with care plans, they observe residents and clients and give information to RNs in order to implement the resident's care plan.  They perform physically and emotionally demanding work.  Mr Gibian has spent some time taking the Commission through some of the work that those RNs, PCWs perform, which is obviously relevant here.


As to how the case for the ANMF justification for the variation to award minimum wages under the Aged Care Award and Nurses Award, it is essentially put in two ways:  firstly, whilst there is evidence of some fixation of rates for ENs and RNs having occurred in 1998 and in 2005 for AINs/PCWs, the ANMF agrees with the position adopted by other parties that this has never occurred for PCWs under the Aged Care Award and further, even taking the dates of 1998 and 2005, there have been substantial increases in the work value performed by those employees since that time and there will be evidence before the Commission which identifies those changes and those increases so as to justify an increase to the award minimum wages.


Secondly, it is said on behalf of the ANMF that the minimum rates as were fixed in 1998 and 2005 were never properly fixed because the setting of those rates was not free of gender bias.  The minimum award rates for registered nurses, enrolled nurses and RNs and PCWs under the Nurses Award and for PCWs under the Aged Care Award have never reflected the proper value of the work.  Turning then to the assessment of work value:  the work value reasons which may justify the increase to the minimum wage as defined by section 157(2)(a).  Dealing with each of those briefly, the nature of the work - the evidence of the ANMF will highlight that aged care work is cognitively, physically, emotionally and spiritually demanding.  The evidence will identify the increasing acuity of residents and clients entering aged care.  That evidence will be adduced both from direct evidence of those who work in the industry and also from data and reports which identify substantial increases in the percentage of residents identified as high care and as otherwise requiring additional care.  This is also reflected in the consensus statement, which at paragraph 1 identifies that the acuity of recipients of aged care services has increased and this trend is expected to continue.


The consequence of the increased acuity is greater complexity of care needs, including in relation to wound care, medication, pain management, continence care, end-of-life palliative care, comorbidities and dementia and its associated behaviours.  Increases in acuity will be identified in both residential and home care settings.  Evidence will also identify changes in (indistinct), specifically a reduction of the hours performed by registered nurses as a percentage of all direct care.  Essentially there are now less registered nurses on the floor in aged care facilities and less registered nurses assisting the provision of care in home care.


Again, there will be direct evidence from employees employed in the industry to that effect and there is also ample data in the evidence which identifies a substantial reduction in the percentage of direct care preformed by registered nurses.  ANMF witnesses will also identify inadequate staffing levels across aged care, and together these issues are reflective of the consensus statement at paragraph 14, which recognises the changes in staffing levels, skill mix and consequentially workloads, have a significant impact on the changing nature of the work and therefore the work value.


Also at paragraph 15 of the consensus statement, it's recognised that the decrease in the number of nurses and recognises that the expectations of RNs have increased markedly.  These changes to skill mix have flow-on effects with the reduced availability of registered nurses and enrolled nurses, AINs and PCWs are now required to exercise greater responsibility.  The ANMF evidence will also identify changes to the model of care provided in aged care, describing a transition to person-centred care and increased recognition of the individual needs of an aged person and the need to provide choice in how clients and residents receive their care.


Evidence will be that as a consequence of this, work is more resource-intensive, something which is magnified particularly when coupled with the reduction in the use of chemical and physical restraints.  Again, these matters are reflected in the consensus statement at paragraph 9.  Witnesses across all classifications will identify increased administrative burden, including the completion of reporting and other paperwork.  As to skill and responsibility, the evidence will be that each of registered and enrolled nurses and AINs, PCWS, are required to exercise new skills in response to the changes to the model of care and restrictive practices legislation.


The evidence will show that the introduction of new technologies requires new and additional skills.  Paragraph 8 of the consensus statement will also be reflective of the evidence of the witnesses from all classifications.  Paragraph 8 provides that there is an increase in the number and complexity of medications prescribed and administered.  There have also been changes to palliative care which have consequences for the value of the work performed.  Firstly, it is now more common that residents in aged care facilities should be palliated in their home environment and the same may be said for the move to home palliation in residential care.


Secondly, the reduced average length of stay in aged care facilities means that there are at any time a higher proportion of residents in end-of-life care at any time.  With respect to the skills and responsibilities, the ANMF relies upon the expert statement of Dr Anne Junor.  Dr Anne Junor identifies hidden skills as are exercised by registered nurses, enrolled nurses and AINs and PCWs.  The statement of Dr Junor provides many examples and explanations about those skills and how they manifest in the work that is performed.  For now, suffice to say I will just simply identify the three categories of hidden skills identified and discussed by Dr Junor.  They are contextualising, building and shaping awareness within which she identifies sensing context or situations, monitoring and guiding reactions and judging impacts.


Secondly, Dr Junor identifies connecting, interacting and relating as a category of hidden skills, including negotiating boundaries, communicating verbally and non-verbally and working with diverse people and communities.  Thirdly, Dr Junor identifies a hidden skill of coordinating or multitasking and within that she identifies sequencing and combining activities, interweaving own activities smoothly with those (indistinct) and maintaining and/or restoring (indistinct).


Finally, with respect to the work value considerations under 157(2)(a), the conditions under which the work is done.  The ANMF witnesses will describe increasingly physically demanding, dangerous and emotionally taxing work conditions in aged care.  The conditions under which aged care is performed also involves unacceptably high levels of occupational violence and aggression.  Witnesses from both residential care and home care will identify that the death of residents has a significant and difficult factor in the performance of their work.  ANMF witnesses will say that in addition to requiring a high degree of compassion and sensitive aged care work is also what might traditionally be described as 'dirty work'.


With respect to the historical undervaluation of the wage rates contained in the Nurses Award and the Aged Care Award, the ANMF relies upon the expert reports of Associate Professor Meg Smith and Dr Michael Lyons who provide a single report and the report of the Honorary Associate Professor Anne Junor.


Identifying first or starting with the Smith/Lyons report, Dr Smith has been published wildly in the field of employment relations with a specific focus in gender pay equity.  She's a recognised expert in the concept of gender undervaluation and was appointed by this Commission to complete a research-based independent report for pay equity unit.  Dr Lyons has expertise in the area of gender relations and equality and industrial relations.  He's given evidence in work value cases before the New South Wales and Queensland Commissions and in their report prepared for this proceeding, they identify the existence of a general pay gap in Australia.  Whilst there are - the report identifies the different ways of measuring that and the different figures that are available, they prefer an approach based upon the adult full-time ordinary time average wage earnings data, which they identify as fluctuating between about 13.4 and 18.5 per cent as the gender pay gap in Australia.


The reports concludes that female dominated occupations tend to be paid less than male dominated occupations, taking into account educational requirements and other factors that may influence 'worker productivity'.  They say that the gender pay gap cannot be fully explained by the (indistinct).  Rather, it is their conclusion that the general pay gap arises from differences and returns received by women compared to men for productivity related characteristics.  It arises from operational segregation and it arises from undervaluation of feminised work in occupations which are predominantly made up of women and equate into areas of work relating to traditionally female gender roles, including those relating to the provision of care.


The Smith/Lyon report identifies evidence of gender-based undervaluation of work and recognises that the skills applied in female dominated jobs are not always visible when the work value is assessed, and even when skills are recognised they can be undervalued because they are 'soft  skills' and devalued when compared to traditional male type skills.  They identify that the capacity to address the valuation of feminised work has been limited by the requirement to position that valuation against mascularised benchmarks.  Having regard to the award history of both the Aged Care Award and the Nurses Award they conclude that the work of PCWs, AINs, enrolled nurses and registered nurses to be undervalued.


In the report of the Honorary Associate Professor Anne Junor, she identifies her main research field as that of skill identification, particularly in the service and care sectors.  She played a central - she has in her career played a central role in the development of what is known as the 'spotlight tool'.  It was initially developed for the New Zealand government, continues to be used by the New Zealand government.  It is a tool designed to aid in identifying, naming and classifying invisible skills.


Dr Junor explains invisible skills to be skills that are hidden, underdefined skills, under-specified skills and under codified skills.  The report explains the concept of skill and visibility as identified in academic and practitioner literature.  Dr Junor has applied the spotlight tool in two previous expert witness reports for this Commission; firstly, the equal remuneration case 2010 to 2012 and secondly Crown Employees (school administrative and support staff) Award application for award variation 2017-19.


Dr Junor has adopted and applied the spotlight tool to a sample of AINs, PCWs, enrolled nurses and registered nurses working in the aged care industry.  Dr Junor's analysis of the work performed by aged care employees has involved the employees completing the spotlight workbook.  Employees providing written answers to open-ended questions, extensive interviews with employees and research.  The application of the spotlight tool to those workers has identified overwhelming evidence of the heavy use of the identified hidden skills at the high level of problem solving, solution sharing by each of registered nurses, enrolled nurses and AINs and PCWs.


Dr Junor's evidence is relevant to this Commission in two ways.  Firstly, it provides an evidential basis for a finding that in the past there has been gender-based undervaluation of work and secondly, it assists in identifying what exactly are the skills increasing work value that are not recognised in the current (indistinct).


Having regard to that expert evidence, it'll be submitted that an historical undervaluation of the work of registered nurses, enrolled nurses and AINs, PCWs has occurred and one of the significant contributing factors to that undervaluation has been the gender identity of the persons performing that work.  In determining this application, a proper assessment of the work value of aged care workers under the Aged Care Award and the Nurses Award must take into account the changes in work values that have occurred over the past 17 years for AINs and PCWs, and the past 24 hours for RNs - for registered nurses and enrolled nurses.


A work value assessment must also take into account the inherent value of the work performed which for reasons including gender reasons has not been properly recognised in the past.  It will be submitted that those matters justify the aim in this application for a 25 per cent increase under the Aged Care Award and the Nurses Award for the relevant classifications identified.


For the reasons that will be developed further in closing, such increases are also necessary to achieve the minimum wages objective and modern award's objective, and subject to one further clarification, those are the submissions in opening for the ANMF.  The one point of clarification would simply be to say that the application brought by the HSU to vary the Aged Care Award as it applies to the classifications that are outside the ANMF's application, that being general administrative service employees and food services employees, it probably need not be said but those are employees that are outside the scope of coverage of the ANMF.


So, if the Full Bench pleases, those are the submissions - the opening submissions for the ANMF.


JUSTICE ROSS:  Thank you, Mr McKenna.  No questions.  Mr Redford.


MR REDFORD:  Thank you, your Honour.  I intend only to make the briefest of opening comments.  We'd sought a short time be allocated this morning just in case there were already administrative matters that need to be addressed by the UWU, and I don't think there are any, so I'm content to say by way of opening simply that the United Workers Union has many thousands of members working across Australia, engaged in both residential and home aged care, and we support the applications that are the subject of these proceedings.


We've filed in support of the applications material which the Bench will have, and that material is an outline of submissions in relation to the applications concerning the Aged Care Award and an outline of submissions in relation to the application concerning the SCHADS Award, a reply submission and 20 witness statements where six statements relate to the Aged Care Award, but there were a further two statements filed as part of our reply material, making eight statements in relation to the Aged Care Award and 12 witness statements relating to the SCHADS Award, which include our sole union official lay witness.  Unless there's anything specific that I can address the Bench at this time, there is nothing further from me.


JUSTICE ROSS:  Thank you, Mr Redford.  Is it convenient if we take a 10‑minute break at this time and then come back and hear your opening, Mr Ward?  Does that suit you?


MR WARD:  Yes, your Honour, it does.


JUSTICE ROSS:  Well we'll take a short break and resume at 11.20.

SHORT ADJOURNMENT                                                         [11.09 AM]

RESUMED                                                                                   [11.21 AM]


JUSTICE ROSS:  Thank you, and we'll go to you shortly, Mr O'Neill.  My apologies to those of you who were still tuning in and heard the fascinating conversation I was having with a local paint supplier about getting some fence paint for our place.  I'll try and exercise a bit more care in the future.  Mr Ward.


MR WARD:  Thank you, Your Honour.  Can I start by just dealing with a couple of administrative matters?  I'll then jump to Your Honour's question to me before I get into it proper.  I just should correct a quite significant typographical error in our written submissions on page 17 at paragraph 3.9 we refer to the Australian Quality Framework.  That of course should have been the Australian Qualifications Framework.  I think that's an error of my making, given that it used to be the Australian Quality Training Framework and I'm just of the vintage where that's in my mind.  But if I could make that change, it's significant.


Your Honour has asked me the question about the quick statement.  I'm going to have to dodge answering that in full this morning simply because I've not been able to get instructions from two clients who are identified in that statement and I don't have sufficient grasp of the politics behind that to respond today.  I will however - - -


JUSTICE ROSS:  That's fine.


MR WARD:  Yes - I will, however, say this, that this is clear:  everything we have filed, including our submissions, have been reviewed word by word by all three of our clients and signed off before they were filed.  To the extent that that might create some embarrassing issue for me to deal with, I'll deal with it in due course.  If the Commission pleases, I want to start by discussing how we entered this case.  I then want to talk about what we believe should be at a headline level uncontroversial.  I want to discuss briefly what we would ask you to keep an eye out in the evidence for and then lastly I want to just touch on what this case is not about and to ask you to show some caution when you hear the evidence in that regard.


We start from this proposition:  I'm not going to hide from the fact that many employers in the sector would be happy to pay any increase of any level as long as it was fully funded in perpetuity.  I don't hide from that.  It's a fact and that is the position if you ask employers in this industry that many would take.  That is no in and of itself a relevant consideration in properly setting minimum rates of pay.  I'll come to which relevance later.  Our clients have instructed us to present a position that neither supports nor seeks to defeat the applicants.  We have been instructed to walk a more nuanced line to assist the Commission to ensure that minimum rates of pay in aged care and home care are properly set; properly set having regard to section 157, 284 and 134.


We intend to conduct ourselves throughout these proceedings both in how we cross-examine the witnesses and in how we trial our closing submissions in that context.  We will refer consistently to the pharmacy case and the teachers' case because we believe those two cases provide very helpful and material guidance in how these matters should proceed.  One of the things that we appear to agree on with the applicants is that the minimum rates under review have not previously been properly set.  The path one has to travel in making that conclusion is easier for care workers and home care workers.


It's a little bit more problematic and challenging when one deals with nurses but on balance the conclusion we've reached is that the rates under review have not previously been properly set.  I know the applicants are desperately keen for me to stop referring to it but in properly setting minimum rates we believe that the Commission should divert its attention to Australian Qualifications Framework and the C10 scheme of arrangements.  We have gone to great lengths to explain why that is a proper thing to do.  Even though I appreciate that it's frustrating the applicants, we intend to continue to do that.


Ordinarily, such an exercise would involve evaluation of a benchmark classification and then consideration of internal relativities.  So much is so from the ACT Child Care case.  Ordinarily this would be the C10 or Certificate III classification, and in relation to care workers we suggest the primary focus should be on that.


And in relation to the university qualified employees it would be the C1 classification, which is, in our view, entirely relevant for registered nurses.


We will invite the Commission to consider applying its judgment in that context when it considers the evidence and exercises its discretion in relation to section 157, 134 and 284.


We have tried to avoid hyperbole and distractions in presenting the Commission with an objective picture of the industry.  We've done that in both residential and home care.  That said, the notion that every classification in this industry being properly set should warrant a uniform 25 per cent increase is respectfully unsustainable.


That said, we have openly acknowledged that some classifications should be increased.  In fact, in relation to the registered nurse, which is a good example, it would appear that we have suggested that the increase that should be afforded to the registered nurse when properly set be some $110 a week more.


JUSTICE ROSS:  Your screen has just frozen, Mr Ward.  The connection's dropped off.


MR WARD:  (Indistinct) assist the Commission in properly setting the rates.  Sorry, your Honour?


JUSTICE ROSS:  Yes, Mr Ward, yes, we're just having - you just dropped out for a moment.  At least I lost you for a moment, and you had just indicated that your client's position is that when the registered nurse's rate was properly fixed you ended up with an outcome that was $110 a week higher than that which was proposed by the union.


MR WARD:  Yes.  Yes, I ‑ ‑ ‑


JUSTICE ROSS:  Am I the only one that experienced the drop out, or did everyone?


MR GIBIAN:  We had the same experience.


JUSTICE ROSS:  Yes, okay.  Yes.


MR WARD:  Maybe somebody doesn't want me to say that publicly, I'm not sure, but we'll wait and see.  I think that demonstrates that our focus is on the proper setting of the rates, not on necessarily supporting or defeating a particular case.


Some things are, as we've submitted, uncontroversial.  And I'm going to describe those now, and I appreciate that somebody might not like an adjective I'm about to use, or they might prefer a different adjective, but in general terms some things are clearly uncontroversial.


Residential care work is, first of all, relatively consistent across the sector.  There might be some small distinctions based on size, or the actual structure of the facility one is looking at.  But this is not a case where you need to be worried that what is done in Victoria is materially different to what is done in Tasmania or Queensland.  It's relatively consistent.


The same can be said for home care.  There's no issue here that what's done in New South Wales is pretty much what's done in Western Australia.  So, this is not one of those cases where people are going to be trying to suggest to you that there is material difference, sir.  And that certain parts of the evidence represent the industry and other parts of the industry there's a gaping hole.


So, I don't want there to be any issue with that, because we believe that the roles of home care workers and care workers, registered nurses, et cetera, is relatively consistent across the industry.


Consumer directive care has shifted the focus of care ‑ ‑ ‑


JUSTICE ROSS:  We're just picking up some feedback.  Yes, I think that was one of the ‑ ‑ ‑


MR WARD:  I don't know if it was ‑ ‑ ‑


JUSTICE ROSS:  No, it wasn't from you, it was from one of the others had gone off mute.  So, if those who are not currently talking just exercise a bit of care.  Well, I'm hardy the one to be giving advice about this, about turning your microphone off.


MR WARD:  Thank you, your Honour.  Consumer directive care has shifted the focus of care in the industry, but we need to be cognisant that the certificate III and the university qualifications have kept pace with that.  We need to be cognisant of that.


The industry is highly regulated.  The regulation has increased over time.  It might be said that the industry is overly regulated, but we acknowledge that it is a highly regulated industry.  The impact of that regulation does not fall uniformly.  That is to say that certain people in residential aged care feel the impact of that regulation more than others, and that we will work hard to ensure that that nuance is understood as the case progresses.


It's uncontroversial that the industry is heavily reliant on the applicable funding model to drive financial outcomes and wages affordability.  I will deal with that right at the end of the submissions in very short order.


Consumers are utilising home care to stay in their residential setting longer when they are able to do so.  That is completely accepted by our clients.


Consumers are entering residential care later in life, and, as such, those with higher needs are proportionally more than has ever been the case.  And the language used the higher needs, acuity, comorbidity, I don't think there is any disagreement between us about the fact that the people are entering later and people are entering in a state which requires a high level of care.


It also follows as a consequence of that that consumers are staying in residential care for a shorter period.  It may well have always been the case that once entered people didn't leave residential aged care, but it's clearly the case now that once entered people don't leave.


It's uncontroversial that registered nurses are less prevalent in this sector than they once were, and that there is a higher proportion now of personal care workers than there traditionally would have been.


When the evidence is considered we would ask the Commission to be mindful of certain things.  And I'm not putting these in any way to demean or undermine the role that people play in the workplace, but we would ask the Commission to be on the lookout for these issues because they balance out the picture that's been presented.


Residential aged care is by its nature high (indistinct).  There is normally a general manager responsible for the facility.  There will normally be a clinical care manager of some description.  That clinical care manager will usually be a registered nurse.  There will then be registered nurses.  Registered nurses might be undertaking more administrative functions.  They might be undertaking less administrative functions, and attending to more clinical activities.


Sometimes, but seemingly not particularly often, the registered nurse might have working under them an enrolled nurse, although the number of enrolled nurses in the sector is not large.  Working under the supervision of the registered nurse will then be a care worker - care workers.  And as the ANMF have done, those could be described in many different ways, depending on which award you're talking about, which unions involved.  So that is the hierarchy that things operate in and there's no doubt that the registered nurse plays a pivotal role in that hierarchy because day to day they are usually the person who is responsible for the clinical care of people in the facility.


The role of the registered nurse has become more administrative.  It's inescapable and when you see the evidence you'll see that.  That does bring with it a different responsibility.  It also means that the registered nurse may very well be spending less time dealing with direct clinical care and more time dealing with administration and supervision.  It's not to say that the registered nurse has been removed from direct clinical care.


Care is still largely routine and I'm going to build the layers because the layers are relevant.  It's primarily driven by the cadence of the day.  Similar to the cadence that most people would experience living at home. People wake up, people toilet, people bathe, people have breakfast, people have morning tea, people have lunch, people have afternoon tea, people have dinner, people prepare for bed, people go to sleep, people wake up.  And it will be wrong to suggest that the cadence that you will see is dramatically different from that at the base.


Now that cadence is joined by what you might expect to see.  It's joined by medications.  It's joined by assistance with movement and reposition.  It's joined by physiotherapy.  It's joined by recreational therapy, recreational activities as well as socialisation.  Now, some of the socialisation could be relatively perfunctory, such as a good morning from the cleaner, but other socialisation is rich in form.  It's akin to the socialisation you would see in any family setting when a carer gets to know somebody over a long period of time.


That cadence will be interrupted by events associated with the consumer, and they could be at varying degrees.  It could be a buzzer being pressed by the consumer to signal that they require assistance, which could be can I have a drink, it could be I need to be assisted with toileting, it could be assisting them with repositioning, it could be as simple as changing their television channel.  It could be something far more serious.  It could be that they're experiencing difficulty with their breathing, it could be that they've had a fall.  It could be that they are emotionally distressed.  Throughout that basic cadence of the day, those interruptions are common features.


Ultimately, a consumer will be transferred to hospital when they require a level of clinical care the facility cannot provide.  Carers usually work with specific consumers.  That is to say as you look at the evidence you will see that carers will often say well, I work in this wing.  I work in this room.  I work in this area.  And it makes good sense to do that because the greater the familiarity the carer has with the consumer, the greater the knowledge of the consumer and the greater the ability to observe changes in the behaviour or disposition of the consumer.


Now, that's nothing novel in itself.  It's nothing new in itself.  That's always been the way things have worked.  One of the fundamental artefacts of that process is the consumer care plan and it's a little disappointing that the employee evidence didn't discuss this in more detail.  The consumer care plan informs the care regime for the consumer.  Now, this artefact is primarily the responsibility of the registered nurse.  Sometimes the clinical care manager.  Certainly in home care you might actually have somebody in a clinical care manager role responsible for the development and authorisation of the care plan.  In a residential setting you'll normally find it's the registered nurse who is responsible for completing and authorising the consumer care plan.


Care workers will have input into that care plan, particularly once they become aware of the consumer they're working with.  They will obviously complete, as we'll see from the evidence, they'll complete charting on the consumer, that charting might suggest engagement with the registered nurse to change the care plan.  They might observe changes in behaviour which that care worker brings up with the registered nurse to change the care plan.  But the care plan is very much at the heart of the process and is the primary responsibility of the registered nurse.


Now, in residential care, care work and support functions are well (indistinct) and I'd ask you to bear that in mind when you consider the evidence.  While my client's members value the work of all employees, the Commission should be careful when it examines the work of support functions.  Generally speaking, these roles have not dramatically changed over time but have evolved as work normally evolves.  The role of the gardener hasn't dramatically changed.  The gardener has always been required to converse with consumers.  The role of the cleaner hasn't dramatically changed, and so I would say for the laundry attendant and the kitchen hand.


Some attention needs to be given to the role of the person controlling the kitchen, because there is no doubt that the added focus on nutrition and well being has made the person who is designing the menu for the consumers, that is now a more important role than may have been the case historically.  That is something to look out for in the evidence for that particular class of person, be they the head cook, be they the chef or however they're titled, depending on the size of the facility.


Now, you will see in some of the evidence discussions about the use of computers and iPads and similar devices.  We would ask you to be cautious about that because the aged care industry has simply progressed from paper to digital, like almost any other industry.  And computers and iPads are common place in the industry now, and there as common place as employees' iPhones.  Just bear in mind that that is a natural evolution that's occurred in most industries.  As you will see historically a care worker might have written on a chart to identify behaviour, might have identified consumption of fluids.  That chart will often now be done digitally, which obviously provides some efficiency for the operator and allows more speedy access to that information by the care workers' supervisors.


Now, home care is similar but different to residential care, and there's a sort of balance here between what you find.  The tasks in home care are going to be to some extent more domestic in nature because you're actually in the home setting.  So you will see somebody preparing a meal, they will actually cook it.  You will see somebody cleaning a bathroom.  You will see somebody doing shopping for somebody or assisting somebody doing shopping.  You will see them transporting people to different places, be it appointments, to see a doctor, be it transporting them to visit a friend.  You will also see them accompany people on recreational outings; recreational outings to a park, to a movie theatre or whatever.


It would be wrong to think that all of that is done by a care worker in a residential setting.  It's a different set of tasks, but for some people in the home setting the tasks are actually very similar to the residential setting.  The difference in home care is in the nature of the care, its focus, it's effectively one on one, which obviously means the care worker has a much better opportunity to concentrate the provision of the care or the undertaking of the task, but at the same time they do that with a level of isolation.  They are not the beneficiary of a work colleague around the corner.


If they need assistance they will have a protocol to follow to call in assistance, and in that sense the home care worker will be required to exercise judgment as to when they go away or when they call their supervisor to ask what they should do next.  That might also include calling somebody who's trained and authorised to give clinical care, including an ambulance.


When you look through the evidence you will see that the work for some is immensely rewarding, possibly for others it is less so.  You will see that some days will be smooth and trouble-free and others will be challenging and draining.  Some days will be uplifting and some days emotionally overwhelming.  All of that you will find in both the residential and the home care setting.


When you consider the work being performed we would ask you to consider this; many of the manual tasks, the physicality of the tasks being performed is relatively simple.  However, what complicates the role is the interaction with the consumer.  It's an interaction which is heavily influenced by the consumer's cognitive capacity, their ability for independence, be it independent thought, independent movement.  It also will be influenced by their personality and it could be influenced on the day by their mood.  So it's the cognitive side of this job that in many respects will present the challenge, not the sheer manual physical task being performed.


One thing we will ask you to do as you consider the evidence is to ask whether or not what some of the employees are doing is simply that which they are trained to do if they hold a Certificate III, a Certificate IV and university degree.  When you look at the qualifications in the industry they have been modernised on an ongoing basis and the various units within those qualifications are contemporary and train people to deal with the changes that we discussed which should be uncontroversial; the changes in the focus of care, the increased prevalence of dementia, the increased need to understand palliative care.  All of these things are properly comprehended within the current syllabus of Certificate III, Certificate IV or university degree.  So when you look at the evidence those are the things we would ask you to consider.


We said before that there are some distractions in this case.  I say that respectfully, but many of the distractions in our view are not (indistinct) to consider when properly setting minimum wages.  There may be some element of consideration for some of these issues in section 134.  We just want to call them out for caution.  There is a lot in the evidence criticising what is said to be a lack of full-time employment or lack of hours.  With respect that in itself is not a proper consideration for setting minimum rates themselves.


Several witnesses have attested to the fact that they are struggling to make ends meet.  I don't want to respond to that flippantly, it would be entirely improper.  We should have sympathy for people who are in that situation, but again respectfully that in itself is not relevant for the proper setting of minimum rates of pay.


You're going to hear a lot when you take the evidence about the industry being understaffed.  I don't think it's going to offend anybody when I say that.  Some if not all of the applicants are advocates for fixed ratios in this sector as they are in other sectors, but some caution needs to be taken with that narrative.  This is not a case about staffing ratios per se, nor is it a case about sweating of labour.


We accept that there can be an intensity for the work for 100 per cent of the time, but clearly there are moments where the work is very intense.  We acknowledge that in our submission.  It's different to be distracted by arguments about staffing.  You have a challenge in terms of understanding physicality of the work environment.  It seems that the applicants want to have a bob each way (indistinct).  They seem to concede that the work environment for many is now contemporary, ergonomic, well designed, but at the same time want to suggest that it's dangerous and more dangerous than it's ever been before, and we just ask the Commission to not be distracted by hyperbole around that, because it could be a distraction you could fall into.


You are going to hear a narrative that the industry has a supply site problem.  It does.  It absolutely does have a supply site problem.  I suppose it should be said at the moment that many industries have a supply site problem in this country, but there's no doubt that the industry has a supply site problem.  The industry is challenged in attracting labour.  It's more challenged in some parts of its workforce than others so it would be more challenged in attracting registered nurses away from the public sector.  It's more challenged in finding personal care workers, particularly in some geographical areas.  It's going to be less challenged around support staff and it simply has whatever supply site challenge the rest of the country has in that regard.


But again, we would ask you not to be unduly distracted by that.  That is a proper consideration for properly fixing minimum rates of pay.  That's a matter for the employer by way of over-award payments to attract labour with higher actual rates of pay and it's a matter for the Fair Work system and bargaining - and we note this we'll come to later on - but there is some intriguing evidence from the unions about bargaining.  Some say there is a lot of bargaining, some say there is very little bargaining, but we'll come back to that.


You're going to hear a lot about COVID - COVID, COVID, COVID.  COVID has been immensely challenging for this sector.  It's been particularly challenging for consumers and families.  It's been challenging for operators and it's been challenging for employers.  But respectfully, COVID is a transitory issue.  The pandemic has come, the pandemic has gone.  COVID could very well have been a reason to ground the claim for a COVID allowance or a PPE allowance or something like that and I think the President will remember that such a claim was made in the disability sector at the beginning of COVID but it's not in and of itself a relevant consideration for properly setting minimum rates that will endure for years to come.


Lastly, I would ask the Commission to exercise some caution.  The applicants are entitled to raise the notion of gender-based undervaluation.  The Commission needs to be careful that this doesn't turn into an equal remuneration case by disguise.  If you look at some of the evidence, including Lauren Hutchins, who is going to give evidence this afternoon, you start to get a sense that that's a little bit about what some of this is.  We will be returning to that theme to hopefully assist the Commission not to go too far down that path so it ends up in effect being a quasi-equal remuneration case because it that's what they wanted to run, they should have run it.


We'll deal with the academics as they arise in cross-examination.  I think as Mr Gibian has indicated and Mr McKenna has probably indicated there is this notion in the academics that the work is undervalued because it's - as they describe it - women's work.  What none of the academics seem to effectively answer is it's undervalued compared to what?  What I mean by that is how are the minimum rates in aged care undervalued by comparison to other minimum rates.  We'll obviously be exploring that with them.  Happy for them to be on notice of that.


Perhaps there is a suggestion that the minimum rates in aged care are undervalued when you compare them to male-dominated minimum rates in the building award or something like that.  But it's not entirely clear whether or not those notions are general academic notions, notions about actual payment or notions focused on minimum rates.  Now, you have before you some proposed changes to classification structures.  We'll go to that in our cross-examination of Ms Hutchins this afternoon.  We'll certainly say a lot more about it in closing.  We would just note the number of things about classifications in opening though.


In our view in a modern award classifications need to be competence-based.  They need to reflect the AQS structure and they need to be practicable and workable in their design.  There is no doubt that my clients and the HSU agree that the current structure is not optimal.  They possibly disagree on how it should be reshaped.  But there is no doubt that the conflation of a large number of quite diverse roles and functions under one level structure has not been particularly useful.  I suspect that is both the union perspective and the employer perspective.  It's entirely proper to consider the classification structure to properly set minimum rates sitting and we will do our best to assist the Commission in ensuring that any classification structure is properly designed to reflect properly set minimum rates as we move forward.


Now in finishing can I just say this:  we've said nothing about affordability of any increases.  I'm hoping we're right about what I'm about to say.  It certainly might be a relevant consideration arising from section 134.  I think that's clear.  But it's not in and of itself a consideration related to the proper setting of the minimum rates.  We had taken the view that it was premature to talk about affordability because we didn't know what it was we had to afford.  It would be best in our view for the Commission to take a two-phase approach as was the case in the teachers' case in that if the Commission formed the view that in properly setting minimum rates for the industry increases to certain persons were warranted and the Commission could inform the parties of that and then there could be a further process to look at the question of operative date of phasing in and affordability.  But the reason why it would be premature to try and deal with that now is we simply don't know what the Commission might have in mind.  It might well be that the class of employee who gets the lion's share of an increase - those people are already subject to substantial overall payments, such as registered nurses.  It might be the opposite.


But it would be, in our respectful submission, best to deal with that as an issue (indistinct) we understand what the new classification structure is if there is to be one and how the minimum rate is properly set within it.  Unless there are any questions that is the opening of our case.


JUSTICE ROSS:  Thank you, Mr Ward.  I've got a few issues to raise in relation to what you've put.  The discussion comes down to five matters I wanted to raise with you, to either respond to now or to give some further thought to.  In relation to the AQF - and this is obviously something that any party can respond to - and you refer to the approach to work value as using the AQF, picking a benchmark classification and you go to the ACT Child Care case.  Look, from memory, the ACT Child Care case is distinguishable in at least two respects:  one, look, it's difficult for me to think that far back, but I'm pretty sure we were there dealing with a wage fixing principle that required a significant net addition in work value.


But the second point is that the case in the child care matter was run almost entirely on the AQF benchmark and didn't deal with the circumstances in which the work is performed.  And work value, and I put this as a general proposition, and invite comment in the further submissions that the parties will make, is not limited to questions of qualification.  It's also about the nature of the work that's performed and the circumstances and environment in which it's performed.


So, there may be less between you, that is, the respective parties, than might appear.  I didn't take the union parties to be saying that AQF and qualifications are irrelevant, it's rather that they don't see it as determinative of what the appropriate rate of pay should be for employees in the sectors that are within home care and residential care.


Part of this general discussion around the work value principles, you indicate that you accept there's a supply side problem, but, as I understand it, the essence of the point put is that well, attraction and retention is not relevant for the fixation of minimum rates.  And that's really a matter for over-award payments and the like.


If I can best sort of - I don't know that I'd describe it even as a provisional view, but a thought, that as a general proposition historically I wouldn't challenge that proposition, but, there are a couple of features here that are distinct and may warrant a reconsideration of that as a general principle.  One is of course we've got a different statutory framework, and how work value operates within that, and in the equal remuneration case we made a couple of points about that.


But the second is the nature of the sector here.  This was a point taken up in the SCHADS decision in the four yearly review.  It's a funded sector, and certainly in other proceedings, I've heard repeatedly from employer advocates that, well, because it's a funded sector - well, this was particularly Ai Group's argument, from memory, in the SCHADS case, the essence of it, and I'm probably over-simplifying, was, well, it's funded, therefore you can't do anything really.  You shouldn't increase costs because of the funded nature.


But it seems to me the funded nature, and we said that the funded nature of the sector was relevant, and it's that issue that I want to just tease out from a moment.  Look, mostly, yes, you'd fix minimum rates, supply and demand would be dealt by the market through over-award payments.  That's a more difficult proposition in a funded sector.


And, I mean, you take up the point in the two stages, which I'll come back to in a moment, but if the employers in the sector, particularly the not for profit parts of the sector, are essentially operating on money in/money out, that is, they'll provide what they're funded for, then providing an over-award payment may not be an option for them.  The only option may be to deal with attraction and retention maybe through an increase in minimum wages.


So, at some point I want you to address that issue.  Look, the second point was you mentioned a number of aspects of the evidence which were uncontroversial, and I think that's also an issue that could be usefully explored between the parties.  So, try and identify what it is that is between you about that.


Similarly, your observations about the classification structure, you know, if I can para-phrase it broadly, not being fit for purpose.  I noted your comments about what a classification structure should do.  Leave aside the merit or otherwise of those observations I know that I can think of a number of awards that wouldn't meet that test.


MR WARD:  Many of them.


JUSTICE ROSS:  Yes, but certainly if there's an opportunity and a measure of agreement around that it's something that should be done.


Look, the third point, you spoke about the hierarchy, and about the role of registered nurses, and certainly some of what you were pointing to would not, it seems to me, to be controversial.  That might also fall within the aspects of the evidence which are controversial.  For example, the ANMF at paragraph 68 of its submission also states that it's the responsibility of a registered nurse to develop care plans.  How much further the level of agreement goes, I don't know, but it would be worth testing.


Just on the - when you were talking of registered nurses and you spoke about their involvement in the hierarchy and they're a feature of aged care facilities, this is something you might want to touch on in due course, but I haven't been following much, if any, of the current election campaign, but I have, sort of, tuned in to the bit that touched on aged care.  And having said that, I don't really know the detail of the policy position, but labour is making the point that it will ensure that there are registered nurses in every aged care facility, or something like that.  I can't recall the detail.


The coalition has responded that that's unworkable for supply side issues.  I'm simplifying the debate, but that seemed to be it.  So, I'm just not sure about what the prevalence of registered nurses is in the aged care sector.  If one party is saying, 'Well, we need more', for the reasons they've articulated, that sort of suggests that there may not be registered nurses in every aged care facility.  I'm just not sure what they're debating that might be of interest in these proceedings.  So, if there's any data on the prevalence, and if there are any gaps, what those gaps are, of nurses in the sector, then that would be of assistance.


Again, going to this issue of evidence that may be uncontroversial, well, there are two things that also occurred to me:  one was the acknowledgement that the rates in the two awards that are under examination have not been properly fixed or had never been properly fixed is a useful starting point, and it avoids us - we'd also need to be satisfied of that fact, but the fact that there's a consensus would make our satisfaction of that fact more likely.


Also the observation about the head cook chef and the acknowledgement about the change in work value there is also helpful.


There are only two other points.  One was the - I wasn't quite sure what you meant by being cautious to take the gender undervaluation argument too far.  Bearing in mind that in the equal remuneration case the Full Bench made it clear that in a work value case you can rely on gender undervaluation.  And I think that's been - well, I'm pretty sure I've been on a Bench that's repeated it, and I think probably Aged Care or SCHADS in the four‑yearly review made a remark to the same effect.  So I'm not sure – are you challenging those decisions and saying that arguments about gender undervaluation have no role in work value, or – I'm just not sure how you put that.


And look, the final point is about the two‑stage.  I understand and can see the force in the proposition that we might issue a decision around what we regard as increases that are necessary to ensure that the minimum wages objective is met, based on work value, and then hear the parties about what the operative date of that might be, or more importantly probably, about what phasing, if any, is required.


But then you went to affordability, and that's where, speaking for myself, I stumble a bit, because I'm not as, you know, based on the material presently in, particularly persuaded that affordability would come in to an argument about what the level of any increase might be.  It seems to me that's fundamentally a result of a work value assessment and the application of the statutory framework.  I mean, to reach a different view would, it seemed to me, to be almost delegating our function to the government of the day based on whatever funding they want to provide.


I rather think it would work on the basis that we'll hear the evidence and argument, form a view about what the rate should be, and then put to the parties, well, go and have your various conversations around funding and the like and come back with your position on how, if indeed at all, that decision should be phased in, rather than coming back with a debate about, well, you've said it should be a percentage of X, we think it should be a percentage of X minus whatever, because that's all the government's prepared to fund.  I'm not sure where that would put us.


MR WARD:  Perhaps I can – I'll take some on notice, but I might be - - -




MR WARD:  Can I start at the – I might work backwards.  In relation to the affordability issue, respectfully I might not have been as eloquent as I wanted to be.  We're at one with your Honour on how that's been described.




MR WARD:  There's no capacity, the pay argument, relevant to the setting of the rates.  The affordability issue for us might very well concern operative date, phasing, those types of issues, but it's not a relevant consideration to the actual setting.


I appreciate that some of my clients' members might be anxious about me saying that, but that's the proper response.  Even if an increase is not funded, that would not be justification for not granting it if granting it properly set the minimum rates.  It might be a relevant consideration for when it commences or how it's phased in.  That's a different issue.




MR WARD:  And that's what I meant by two phases.


JUSTICE ROSS:  All right.


MR WARD:  I think that probably deals with that.  I am not seeking in any sense to suggest that undervaluation of minimum rates for reasons of genuine or anything else is not a proper consideration.  What I am saying is there seems to have crept into some of the evidence a suggestion that what's being looked for is parity with the equal remuneration order in the SCHADS case, and that's a disturbing feature, because it suggests that it's an equal remuneration case in a different form.


So when I say could you exercise caution, it's about the suggestion in some of the evidence about trying to regain parity with the equal remuneration order.  That's the point I'm making.  As to whether or not it's proper to raise considerations for gender undervaluation, the applicant's entirely free to do so, and the Commission will obviously give such weight to those matters as it deems appropriate.


On the question of registered nurses, can I say two things, and we might come back to you a little more on this?  And I apologise, there's so many statement of evidence I forget whose it is, but my recollection is that there is evidence from the ANMF, I suspect it's from a union official, possibly the secretary of the ANMF, but I might be corrected on that, which sets out in great detail the prevalence of registered nurses, enrolled nurses and the like in the sector, and having reviewed that, my clients don't take issue with that.


So in terms of what you might describe as the numbers and the proportionality, my understanding is that the ANMF have put evidence on in that regard, which again is not seen by my clients as controversial.


I think what the Labor Party were talking about was something slightly different, and that is creating – and again I might be wrong on this - but that is creating a rule where the registered nurse had to be present on site 24/7.  Ms Doust is nodding her head, so I must be doing all right on this.  I might have helped the Labor Party frame this proposition.


My understanding is, from the evidence, that it can be the case that for the night shift there won't be a registered nurse on the premises but will be on call.  I think there's at least two witnesses from the HSU who give evidence to that effect.  I think that's the issue that the Labor Party are homing in on.


JUSTICE ROSS:  Yes, okay.


MR WARD:  We'll talk to the other sides about classifications and what is or isn't uncontroversial.  I intend to, with respect, reserve comments on the supply side issue.




MR WARD:  I think it warrants some consideration and a fulsome response from us.  As to the AQF, I don't think we've ever used the word 'determinable'; quite the contrary.  We do believe it's a very relevant framework to inform the Commission's exercising of its judgment, but we've never said it's determinable, ever.


I think that's the first point we would make.  We would be concerned if it was given short thrift or abandoned.  That would concern us greatly as to whether or not that's a proper consideration of setting minimum rates of pay, and we probably do place greater emphasis on it in relation to section 134, but we'll come back to that in our closing submissions.  But it would be proper for us to say at this stage that I don't think we've ever said it's determinable.


JUSTICE ROSS:  No, I wasn't suggesting that you had.  It's characterised in the union reply submissions as being a, you know, predominant focus or something of that nature, and I just want to try and explore with the respective parties the extent of any agreement around that issue.


MR WARD:  Your Honour, can I take that on notice?




MR WARD:  There's been quite a bit to read in a short timeframe over the past four days.




MR WARD:  I'll concede I haven't read all of their submissions.  But we might take that on notice, and it might very well be that some of us can reach some understanding as to how to phrase that, as best we could.


JUSTICE ROSS:  Yes.  I think it's in the context of their responding to your comparative tables around different rates as well.


MR WARD:  If the Commission pleases.


JUSTICE ROSS:  All right, thank you very much.  I think we are on it.  Is the order of witnesses as put in the HSU's hearing plans, Hayes, Hutchins, then Friend, is that right?  If you're talking, Mr Gibian, we can't hear you.  Maybe sign language, you could do a thumbs up and that will give us a rough idea.  No.  Yes, you're still on mute.


SPEAKER:  I think that's a thumbs up, your Honour.


JUSTICE ROSS:  All right.  Not that it matters much, there are only three of them.  All right, we will adjourn until 2 pm.  Thank you very much.

LUNCHEON ADJOURNMENT                                                [12.29 PM]

RESUMED                                                                                      [1.59 PM]


JUSTICE ROSS:  All right, Ms Doust, are you taking the lead in calling Mr Hayes?  Is there someone else from the HSU?


MS DOUST:  Yes, I expected the rest of the team would be present there in the hearing room.  I'm at a separate location currently.


JUSTICE ROSS:  Yes, they're not in the hearing room.  I don't know, I think Ms Saunders has just joined us.  I don't know if she's taking the witness or not.  We'll wait till somebody gets here.


MS DOUST:  I'll try and make some inquiries, Your Honour.


JUSTICE ROSS:  Okay, thank you.


MS DOUST:  Your Honour, apologies for this, I am just wondering whether I can ask through you for the Commission to resend the link to establish connection to Ms Grayson.  I understand there's some difficulties with that part of the HSU's team in connecting.  I'm sorry - - -


JUSTICE ROSS:  No, that's all right, I will ask my associate to do that, but weren't they going to be in person?


MS DOUST:  At the hearing room?




MS DOUST:  No, I believe they may have returned to the HSU's offices to a conference room.


JUSTICE ROSS:  All right.  I will ask my associate to send a link to Ms Grayson and see how we go.  I see Mr Hayes is there, but - yes, there you are.  I thought your screen had frozen, Mr Hayes, you were just being very still.  Ms Doust, we've sent them the link, but we don't know what they're doing with it.  Are you able to contact them?


MS DOUST:  Yes.  If the Bench would just excuse me for a moment I will try and make telephone contact.  I am told they have tried to use the link, but I will just make a quick call and see how we can deal with the situation.


JUSTICE ROSS:  Okay.  Thank you.


MR HAYES:  Your Honour, I will duck into the next room and see if I can organise something in here.


JUSTICE ROSS:  Whereabouts are you, Mr Hayes?


MR HAYES:  Approximately about 15 metres from where they would be I would think at the moment.


JUSTICE ROSS:  It's probably best if you stay where you are and we will try and - if we need you we will come back to you though, if it gets desperate we will let you know.


MR HAYES:  Okay.  Thanks.


DEPUTY PRESIDENT ASBURY:  It looks like Ms Saunders is in the lobby.


JUSTICE ROSS:  Yes, we have admitted her.  I'm not sure whether Ms Saunders is in - here we are.  Yes, okay.  It doesn't look like Ms Saunders, but nevertheless.  Good to go, Mr Gibian?  You're on mute.


MR GIBIAN:  We had some difficulty connecting for reasons that escape my knowledge.


JUSTICE ROSS:  No, that's all right.  There's no point in asking me about it because I have got no idea.  All right, let's call your first witness, Mr Hayes.


MR GIBIAN:  Yes, I call Gerard Hayes.  I can see Mr Hayes and I assume you can hear me, can you, Mr Hayes?


MR HAYES:  I can, yes.


THE ASSOCIATE:  Mr Hayes, can you see and hear me?


MR HAYES:  I can, yes.


THE ASSOCIATE:  Can you please state your full name and work address.


MR HAYES:  Gerard John Hayes, number 2 109 Pitt Street, Sydney.

<GERARD JOHN HAYES, AFFIRMED                                    [2.09 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                          [2.09 PM]


JUSTICE ROSS:  Thank you.  Yes, Mr Gibian.


MR GIBIAN:  Yes, thank you, Mr Hayes.  Can you repeat your full name for the record?‑‑‑Gerard John Hayes.


And you're secretary of the Health Services Union New South Wales at New South Wales ACT Branch?‑‑‑That is correct.


And president of the National HSU?‑‑‑That's correct.


And you were formerly at least or are of professional training a paramedic?‑‑‑That's correct.


You made a statement for the purposes of these proceedings which runs to some 39 paragraphs and is dated 31 March 2021?‑‑‑Correct.


You have a copy of that with you?‑‑‑I do, yes.


You've had an opportunity to review that, have you, and it's true and correct to the best of your knowledge and recollection?‑‑‑To the best of my knowledge it is true and correct, yes.


I think your Honour expressed at the mention last week a preference for the statements to be identified by reference to the digital court book - - -


JUSTICE ROSS:  Is this at 7049 to 7293 of the court book?


MR GIBIAN:  It certainly starts at 7049 and it's document numbered 120 as I read it in the additional court book.


JUSTICE ROSS:  Okay, thank you.  All right.


MR GIBIAN:  Mr Hayes, Mr Ward, I think is the only person who will now be asking you questions as I understand it.

***        GERARD JOHN HAYES                                                                                                          XN MR GIBIAN



CROSS-EXAMINATION BY MR WARD                                 [2.11 PM]


MR WARD:  Thank you, your Honour.


Mr Hayes, can you hear me?‑‑‑Yes, I can.


My name is Nigel Ward.  I appear in these proceedings for the employer interests.  I'll try not to keep you too long if I can.  You're the president of the HSU?‑‑‑Of the national HSU, that's correct.


And is that the most senior official in the HSU?‑‑‑Probably I would think that or the national secretary of the HSU.


But you're one of the most senior?‑‑‑That's correct, yes.


And you've been involved in formulating your union's claim in this matter?‑‑‑Yes.


You support and advocate for that claim?‑‑‑Indeed I do, yes.


Can you tell me, how did you arrive at a 25 per cent wage claim?‑‑‑We got some external economic modelling done to look at, not only the wage claim, but look at the holistic approach to health, to aged care.  So, in relation to that modelling we looked at the fact that getting to a point of not only 25 per cent, but the appropriate amount of staffing that would be required to have a reasonable service, and also to have appropriate care hours.  That modelling came back with what would be described as a 25 per cent wage increase with those extra care hours with also 59,000 extra staff to be able to meet the needs of the community going forward.


Who did the modelling for you?‑‑‑The name escapes me at the moment, but I'll be able to find out that for you.


Was it a professional consulting company or an economics company?‑‑‑It was an economics company, yes.

***        GERARD JOHN HAYES                                                                                                         XXN MR WARD


Economics.  And so it took into account staffing ratios and what else?‑‑‑It looked at the staffing ratios that were applied, it look at the costings that would be involved in that to be able to achieve those outcomes.  It looked at the wage positioning compared to other areas and other industries, and it looked at the extra care hours that would be required to deliver an appropriate service to aged care residents.


And which other industries did it look at?‑‑‑Offhand I just don't recall exactly which industries those were.


Okay.  Are you aware when you looked at other industries, were you looking at actual market rates of pay, or were you looking at minimum rates of pay and awards?‑‑‑No, I don't - I can't answer that question.  I didn't get into that level of detail.


Sorry, your Honour, could I just have a moment?  Your Honour, I might indicate that we might seek to call for that model later, but we won't deal with that today.


Now, you started your career as a paramedic; is that correct?‑‑‑That's correct.


And in the 1980s?‑‑‑1986.


Bear with me, Mr Hayes, I don't want to say anything insensitive.  You described yourself as an intensive care paramedic?‑‑‑That's correct.


Is that a particular type of a paramedic or ‑ ‑ ‑?‑‑‑It is.  And so it's a - in 1986 you had general duty ambulance paramedics or ambulance officers.  And then the higher skilled people would undertake an intensive care training course which would deliver skill sets that would deliver cardiac drugs, would deliver skills such as intubation, chest drains, those sorts of things, so advanced skills along those lines.


So, when you were an intensive care paramedic, you did things different to general paramedics?‑‑‑Very much so.  High acuity work, and so giving - as I said, giving drugs of a cardiac nature, undertaking cardiac arrests where you would basically run a regime similar to what would happen in an emergency department through intubation, through institution of chest drains, decompression of the pneumothorax, dealing with compression injuries, crush injuries, a high range of serious complications.

***        GERARD JOHN HAYES                                                                                                         XXN MR WARD


You've never actually been employed by an aged care facility?‑‑‑No, I've not been employed by an aged care facility.


Have you got your statement in front of you?‑‑‑I do.


Could I ask you to go to paragraph 28?  And you say in paragraph 28, hopefully you've got there:


In saying this I also observed the role of aged care workers in supporting the elderly when they were so ill as to need an ambulance.


I take it as a paramedic you were called to an aged care facility when somebody was in serious condition?‑‑‑That's right.  And prior to being an intensive care paramedic we would obviously do routine transports for people, you know, taking them two and from aged care facilities or at times taking them to appointments to other medical practitioners.


And with that latter role, was that just to transport them?‑‑‑The latter role, yes, it was more a - yes, a routine type transport of people, yes.


When you were an intensive care paramedic and you attended an aged care facility typically what were you dealing with in terms of the resident?‑‑‑It could be a range of issues.  pulmonary oedema was one issue where people had fluid on their lungs where we would be obviously giving them medication to resolve that, but we'd also be transporting them.  Other issues, and very sadly, one still stands in my mind nearly 30 y ears later, a woman who had not moved for so long that she had a compression injury, a crush injury, from the way she had been laying in a position for such a long time.  What that effectively means is you get the potassium leakage out of your cells, that potassium can lead to cardiac dysrhythmia and that can obviously lead to death.  So that still stands in my mind some 30 years later.


You would be called in for somebody in a serious medical condition?‑‑‑Serious medical condition, people having hypoglycaemic situations, so, it is serious.  It's not necessarily life threatening at that point in time.  Some people would - I've been to situations where it clearly, in my mind, was potentially a drug overdose, you know, not through any kind of malice, but that did occur.  So, a range of sorts of medical injuries and some traumatic injuries such as falls where you get fractured neck of femur, which is very common in the elderly.

***        GERARD JOHN HAYES                                                                                                         XXN MR WARD


When you arrived at the residential aged care facility, I take it you would be shown into where the resident who needed care was?‑‑‑That's correct, yes.


And, bear with me, would you take a stretcher or something in with you to take them out?‑‑‑Initially, yes, we'd take a stretcher in, we'd take Lifepak 5 defibrillator with us, we'd have a drug box with us and possibly a first aid kit as well.


So, you might have to do something to stabilise them there before you transport them?‑‑‑Very much so.  Particularly if you think about someone who's got a fractured hip, you certainly want to give them pain relief, you want to stabilise the fracture before you move them, that's right.


And when you were inside the facility, were you normally dealing with a registered nurse?‑‑‑No, not necessarily.  Sometimes it would be a registered nurse, sometimes not.  Sometimes, and I can't sort of give you a clear break down, but it wasn't uncommon that, particularly on a nightshift, that a nurse would be on-call, and employers would say, 'Well, a nurse is available because they're on-call'.  So you would have carers, who were there, and their only access to the registered nurse would be if they contacted them during the night.  Many times the carer would contact us directly, so there's a range of different contacts.


That would be a nightshift without a nurse on, and the carer would, what, ring Triple 0?‑‑‑Yes.  Yes.


Okay.  And I take it that would normally occur because they couldn't contact the nurse?‑‑‑Well, I guess it was, sort of, I guess more funding models maybe.  And I think different sort of instructions at different facilities.  Another situation, sort of, stands out in my mind that people being taken out of their beds, you know, in the middle of winter that were taken to a hospital for a catheter change, that those things should be able to be done in an aged care facility and they weren't able to be done, and I don't know, you know, to what extent they can be done now, so, yes, those sorts of things.


In that case, to give the person the appropriate care they called an ambulance?‑‑‑Absolutely.




Can I take you to paragraph 29.  You say:


It also became clear to me from talking to members, delegates and staff and attending meetings with employers that aged care workforce is clearly under-resourced, underpaid and undervalued.

***        GERARD JOHN HAYES                                                                                                         XXN MR WARD


Under paid compared to what?‑‑‑Underpaid compared to someone working at Bunnings, someone working at a pub, someone working twisting a sign on the road. It's one thing in my mind to, you know, drop a can, you know, when you're stacking shelves in Woollies, it's another thing to drop a person, fracture their hip and they die.  So, in - you know, and I look at the level of work to qualify, I suppose, in my life as I've dealt with a lot of death (indistinct) comes with the job.  But the death we deal with was acute traumatic.  The death that people in aged care deal with is these are people they befriend, they  become like family members and they consistently die.  You know, it might be 18 months, it might be two years.  They have to go through that consistent sets of grief doing their job.  And so I think there's a big difference in terms of doing what people do in aged care to do what others do, with no disrespect to other work, but it's a job that I haven't had to be exposed heavily to that.


I understand you're an advocate for the claim. So, they're underpaid to other people in the labour market?‑‑‑I would absolutely think that that's absolutely correct, yes.


That's your view?‑‑‑That's my view.


Now, at paragraph 30 you talk about people providing things to residents out of their own pocket.  Am I right in saying you're not suggesting that their employer requires that, are you?‑‑‑No, no, I'm not suggesting that but I'm suggesting if they don't do it people go without some pretty basic things.  One issue was raised with me I think probably in the last six months or so - - -


I think you've answered the question?‑‑‑Sorry?


I think you've answered the question?‑‑‑Fair enough.


MR GIBIAN:  With respect the witness should be allowed to finish.


JUSTICE ROSS:  Well, you can deal with it in re-examination if you need to.


MR WARD:  No further questions.


JUSTICE ROSS:  Re-examination, Mr Gibian?

RE-EXAMINATION BY MR GIBIAN                                       [2.24 PM]

***        GERARD JOHN HAYES                                                                                                        RXN MR GIBIAN


MR GIBIAN:  Thank you, your Honour.  Mr Hayes, you can hear me?‑‑‑Yes, I can.


Yes.  Just a couple of matters.  Firstly, you were asked some questions about your own experience working as a paramedic and interacting with aged care.  Do you recall that?‑‑‑Yes, I do.


Can you just remind us of the period of time when you were working as a paramedic and had that direct experience?‑‑‑That would be from - I joined the Ambulance Service in 1986.  The routine side of things would have been 86 through 88, 89, an intensive care paramedic from pretty 89 through to about 2000.


Do you have any knowledge as to - you were asked (indistinct) your interactions with or occasions in which you can recall you attended an aged care facility.


JUSTICE ROSS:  Can you just repeat that, Mr Gibian.  You just froze for a moment, your sound dropped out.


MR GIBIAN:  Of course.  You were asked some questions about your experience generally when working as a paramedic and in attending aged care facilities.  You recall that?‑‑‑Yes, I do, yes.


Do you have any knowledge of the different types of aged care facilities there were at that time and whether they're different to the way that aged care facilities are classified at the moment?‑‑‑I think they're generally similar, that's breaking down into for profits and not for profits.  They've I think just generally been a design for many, many years.  I think it's certainly over the past 10 years or so there's the professionalism of both sectors, for profit and not for profit, has enhanced possibly over the last 15 years but certainly from, I guess a period of the last 15 years to a period of, you know, 15 years before that certainly there's, in my view, a greater level of accountability, regulation and compliance than when I first started out.

***        GERARD JOHN HAYES                                                                                                        RXN MR GIBIAN


You were particularly asked some questions about the staff who you dealt with at aged care facilities when you were a paramedic.  Do you have any - in the period between the late 80s to the late 90s, if I can put it generally in those terms, do you have any knowledge of whether there were different staffing requirements in that period, in relation to different types of facilities (indistinct) nursing - what would be classified as nursing homes or hostel type facilities?‑‑‑I suppose the only thing that I would really sort of notice to some degree, it was probably more RNs around back in - back in the day.  Certainly not everywhere, but I think the exposure of an RN in those days was probably more so than it is today.  I'd also think from the early time I was there, the level of skill and I think in those days was probably beginning to have an introduction of Certificate III and so forth, that wasn't as widespread as it is now, and that's - again, I don't know exactly what the ratio of workers are who had those certificates and who don't but clearly, a lot of people back in the - I would think the 80s, early 90s would have been subject to those qualifications.


There was just one further matter.  You were asked some questions or a question at least by reference to paragraph 30 of your statement, in relation to out of pocket expenses.  I think in answer to a question you indicated that there was one thing that had been - sorry, you were asked some questions as to whether the employers required the workers to (indistinct) out of pocket expenses, and I think you answered no, but if they don't do it people go without.  One thing that's been raised with me - and then you were cut off.  Was there something in particular that's been raised with you that's relevant to that subject?‑‑‑It was only a story around Christmas time, I think it was year before last it was raised with me, how people would bring in because - bring in either presents or bring in food to make the residents' life a little bit happier.  One issue was that this particular resident had a couple of children, one were based or both were based overseas in different countries and weren't able to be with them.  So, the worker would cover their own volition to undertake that.  But in saying that too, at the outset of the pandemic I think it was widely reported or reasonably reported that people were bringing their own PPE in and I accept that there was a broad issue with PPE across the board in 2020, that that was something that has certainly been reported to me as well.


Thank you, Mr Hayes.  That's the re-examination, your Honour.


JUSTICE ROSS:  Thank you for your evidence, Mr Hayes.  You're excused?‑‑‑Thank you, Your Honour.

<THE WITNESS WITHDREW                                                   [2.29 PM]


JUSTICE ROSS:  We'll go to Ms Hutchins.


MR GIBIAN:  Yes, thank you, your Honour.  I think it's Ms Hutchins logged on.


THE ASSOCIATE:  Ms Hutchins, can you see and hear me?



***        GERARD JOHN HAYES                                                                                                        RXN MR GIBIAN


THE ASSOCIATE:  Can you please repeat your full name and work address?


MS HUTCHINS:  Lauren Elizabeth Beamer Hutchins, Level 2, 109 Pitt Street, Sydney.


EXAMINATION-IN-CHIEF BY MR GIBIAN                          [2.29 PM]




MR GIBIAN:  Yes, thank you, Ms Hutchins.  Can you just repeat your full name for the record?‑‑‑Lauren Elizabeth Beamer Hutchins.


You're presently division manager of the Aged Care and Disabilities for the Health Services Union, New South Wales and ACT Branch?‑‑‑Yes.


I think you've made two statements for the purposes of these proceedings, the first of those dated 1 April 2021.  Your Honour, I think that as I understand it is in the digital court book at document 121, commencing at page 7294.  There is a collation issue with that document.  The first page at page 7294 is in fact the first page or the first annexure to that statement it has electors (indistinct) has LH1 (indistinct) - - -




MR GIBIAN:  That should actually appear after the end of the text of the statement as the first page of the annexures.  Sorry, I've lost the page number that it should appear at.


JUSTICE ROSS:  No, that's fine.


MR GIBIAN:  I'll have that in due course.  The statement runs - itself - runs to some 17 pages and 80 paragraphs.  You have your copy of that, do you, Ms Hutchins?‑‑‑Yes, I do.


You've had an opportunity to review the statement?‑‑‑Yes, I have.


I think there were just two minor corrections you wanted to make to it:  one at paragraph 34?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                             XN MR GIBIAN


I'm sorry, you'll just have to point that one out to me?‑‑‑So it currently reads:  'At level 6, he HSU' - that should be, 'the HSU'.


Thank you, and there was a further one at paragraph 39?‑‑‑That's correct:  at the third sentence, the sentence starts with:  'He described the process of putting the resident'.  It's actually, 'She'.


Yes, that's in the middle of the third line?‑‑‑Yes.


With those corrections is the statement true and accurate to the best of your knowledge and recollection?‑‑‑Yes.


Yes, that's the first statement, Your Honour, the text of which commences at page 7295, noting the collation issue that I raised a moment ago.  The second statement was one in reply, dated 22 April.  It's at tab 122, commencing at page 7399 in the digital court book.  Do you have a copy of that statement also, Ms Hutchins?‑‑‑Yes.


I don't think there were any corrections you wanted to make to that statement, is that correct?‑‑‑That's correct.


Is it true and correct to the best of your knowledge and recollection?‑‑‑Yes, it is.


We also seek to rely upon that statement, as well, Your Honour.


JUSTICE ROSS:  Thank you, Mr Gibian.


MR GIBIAN:  I think Mr Ward will now ask you some questions, Ms Hutchins.



CROSS-EXAMINATION BY MR WARD                                 [2.33 PM]


MR WARD:  It'll help now my microphone's on.  Ms Hutchins, good afternoon.  My name is Nigel Ward.  I appear in this matter for the employer interests.  Thank you for coming.  I feel I should apologise - I think we sent quite a few documents to you, haven't we?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Can I just - I'm going to jump around a little bit, bear with me - start with the second statement?  Can I ask you to go to paragraph 58?  You say in that statement:  'I have reviewed the statement of Anna Maris Wade dated 4 March 2022.  I disagree with her statement at paragraph (indistinct) the quality of the content of a Certificate III has decreased over time.  Course length is not the only measure of quality'.  Do you see that?‑‑‑Yes, I do.


I take it you are quite familiar with the Certificate III in individual support?‑‑‑Yes.


I have sent you a document with, I think the Commission's got the benefit of, which is headed, 'Australian Government CHC 33014 Certificate III in Individual Support'.  Do you have that?‑‑‑Yes.


Your Honour, I don't know if these are going to be marked or how you're going to deal with these.


JUSTICE ROSS:  We'll eventually add them to the court book.


MR WARD:  Thank you, Your Honour.  Am I right in saying - this came off the Commonwealth Government's website - this is the document that sets out the requirement for actually gaining the certificate III in individual support?‑‑‑I believe so, yes.


Okay, and - - -


MR GIBIAN:  I'm sorry to interrupt, Mr Ward - could you identify the document that you're referring to again?  There were a number that (indistinct) - - -


MR WARD:  My apologies.  It looks like that, just by physical reference.  It is headed - it's got the Australian Government written on the top of it.  In large print it has capital C, capital H, capital C, 33015, Certificate III in individual support and it's headed, 'Release 5'.  Has that helped at all, Mr Gibian?  I can tell when it was sent - hang on.


MR GIBIAN:  Thank you, that's it.


MR WARD:  You've got it?

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


MR GIBIAN:  We have it, thank you.


MR WARD:  Now, can I ask you to turn to page 3?  Just to make sure I understand how this works because it's important, it says there:  'Packaging rules, total number of units, 13'.  Then it talks about seven core units and six electives.  Do you see that, Ms Hutchins?‑‑‑Yes, I do.


Then further down it talks about a Certificate III in Individual Support Aging.  Do you see that?‑‑‑Yes.


It then talks about Certificate III in Individual Support (Disability) and it then talks about Certificate III in Individual Support Home and Community.  Then it also adds Aging, Home and Community.  Am I right in saying that you can elect which one you want?  Is that right?‑‑‑Or you can elect to have a general Certificate III in Individual Support.


So just bear with me then.  I need your assistance on this.  If I'm doing a Certificate III in Individual Support Aging, am I right that I have to do the seven core units that are written there and then I have to do six electives and as I understand it, if you turn the page, there's elective Group A, Aging and it says, 'four units'.  Then on the next page there is a general group called D, Aged Care.  I take it that the ones on page 3 that start with CHCCC SO15, they're the core, are they?‑‑‑Yes.


Okay, they're the core.  So no matter whether or not I get a Certificate III General, a Certificate III Aging, or whatever, I have to do those?‑‑‑Yes.


Okay, and from your knowledge, when an employer tells an employee they require a Certificate III, do they stipulate that it has to be in Aging or do they just normally require a Certificate III?‑‑‑I'm going back to my original statement here in terms of the SEEK ads, if you like, that may set out that there is a desire for that to be specialised in Aging.


Right?‑‑‑But I can't - in terms of my understanding of the sector is that a Certificate III in Individual Support General is acceptable to employers.


Okay, we'll come back to those a little later.  You talked in paragraph 58 about the quality of the Certificate III.  I take it you have a view that the Certificate III is contemporary and it's fit for the purpose?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


You think it's a robust Certificate III to obtain?‑‑‑Yes.


Can I just - am I right in saying this:  anybody who does the Certificate III, they must do a certain level of hours of placement as well?‑‑‑That's correct.


Is that 120 hours for everybody?‑‑‑That's my understanding.


That's your understanding, okay.  That's very helpful.  When you say in paragraph 58 that you disagree with Ms Wade that the Certificate III has not decreased in quality of content, you're talking about your understanding of those various units that people have to do?‑‑‑Yes.


Is that the number of units and also the content of the unit?‑‑‑And the 120 hours.


Has it always been 120 hours, has it?‑‑‑That I'm unsure of.


So it might not have been in the past?‑‑‑It may have been more than that in the past.  I'm unsure.


You don't know?  Okay, that's fine, that's fine.  Would you please hold on to that, I'm going to come back to that.  Now, your first statement describes the classification structure that is claimed starting at paragraph 21, is that correct?  I think it is, I hope I haven't missed anything?‑‑‑I've got it in front of me now, yes.


Okay, good, good - I take it, given that you've put on evidence about how it's been designed, that you've been involved in its design?‑‑‑Yes.


Are you actually the designer?‑‑‑One of.


Are you the principal designer?‑‑‑I would claim that, others may take a different view.  However, I would say that I was a driving force in that.


I'm happy with driving force, that's fine.  Do you have a copy of your claim?  We sent that to you?‑‑‑The original application?


Gosh - - -?‑‑‑Amended application, sorry?


Yes?‑‑‑Yes, I do.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Just for completeness, for the Commission, that's Fair Work Commission F46 and I think we sent it to you starting at point 2, Application.  Is that right?  Or we sent you the whole one, okay.




MR WARD:  All right, good - can I ask you to go to annexure A?‑‑‑Yes.


I'm going to be frank.  I'm not trying to ask you trick questions, I'm trying to understand why you've done what you've done so that's what I'm trying to understand.  You've instituted in level 2 this six-month service barrier?‑‑‑Yes.


Okay?‑‑‑For personal care workers.


For personal care workers - and I think in your statement you talked about that (indistinct) line to the probation period that often operates?‑‑‑Yes.


Is that what drew your attention to six months or is there something about somebody's competency at six months?‑‑‑A combination of those - one is obviously the aligning with the nominal probation period, if you like.  However, there is also an understanding across the sector and a number of agreements have an hours worked to progress to the next point in a classification.  So it really reflects my understanding of what already exists in enterprise agreements.  But it also absolutely is - the expectation after six months in my understanding of the sector is that a personal care worker at that time, the level of responsibility and supervision does reduce.  So best practice would be that a person in their first six months shouldn't be working potentially an unsupervised overnight shift, that that takes some level of understanding of the sector, some mentoring from other care employees before that would take place.  That's not always what happens but as I said, that's best practice.


So two things, if I can:  you were influenced by what's in your enterprise agreement, is that right?‑‑‑Yes.


You mention there - I think you said an hours element?‑‑‑Yes, to progress to next pay points, yes.


So your enterprise agreements normally have hours, not months?‑‑‑That's correct.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Do you know what that is?‑‑‑It varies.


That's fine, that's fine.  Do you know what it varies between?‑‑‑Not off the top of my head.


We don't want you to guess.  We don't want you to guess.  An example of what I'm able to do in month seven that I can't do in month five?‑‑‑So as I said to you that the level of supervision, the expectation of responsibility would differ in those first six months of employment and there beyond.  So as I said to you, for example, an expectation that you would be able to work a shift, a night shift, that has lower levels of supervision, absolutely would be our expectation.  So those would be - I mean, that's the most obvious example I could give you, was it's a reduction in that level of supervision that allows you to perform your work, you know, comfortably or understood that you're able to perform that.


It's not that I can do a particular task differently, it's how I'm supervised?‑‑‑Well, the requirements of someone who works unsupervised are greater.  You take on more decision making.  There is, as I said, a greater level of responsibility when you're working with limited or no supervision.  You need to make decisions and respond to residents' needs in real time and make those decisions where you otherwise wouldn't have been able to make those decisions or required to make those decisions.


That's fine, thank you.  I'm just trying to understand this.  You just said, 'unsupervised or no supervision'.  If you have a look at annexure A, level two says, 'Works under limited supervision'.  I take it you still mean that the level two person would be under limited supervision; it's not that they'd be unsupervised or have no supervision?‑‑‑That's correct, but taking you to your point, our claim in terms of Aged Care level two is that person is there for that first six months so they have limited supervision but they're still supervised.  It's not unsupervised.


Once I've gone past that six months I would then become a level three.  What's the level of supervision then?‑‑‑In the classification structure?


Yes, because it seems to only - I might be wrong but it seems to only refer to supervision in terms of non-admin clerical?‑‑‑Yes.  So we haven't made any adjustment there but as the classification reads, 'works under limited supervision either individually or in a team, non-clerical admin'.


So if I'm - I'm just trying to understand this, Ms Hutchins - if I'm a level three personal care worker, after six months I could work under this classification with no supervision at all?‑‑‑Or limited supervision as the classification structure says.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


So those words, 'non-admin clerical', they shouldn't be there?‑‑‑In terms of the words there, I'm unclear if it's referring specifically to others in the general and administrative services.  My apologies for that.  Our expectation or our understanding of how the Aged Care level three works, is that this is someone who is after six months of their employment has now passed that probation period, has demonstrated that they can undertake a level of responsibility and can work unsupervised.  There are I believe somewhere around 13 per cent of the - I might be wrong in terms of these statistics so there is a small proportion of aged care workers, personal care workers, who don't currently have their Certificate III in Individual Support or the equivalent.  Those workers under this classification structure will remain at an Aged Care level three.


They would be supervised by somebody?‑‑‑There is not a requirement for them to be supervised.  But in order to progress through the classification structure, you need to attain the Certificate III or to have - or its predecessors.


That's fine.  If I don't have a - - -


MR GIBIAN:  Sorry to interrupt, Mr Ward - it just seemed to me the witness and Mr Ward may have been somewhat at cross purposes in those questions by reference to the words that appear in brackets on the third dot point under level three - that is the words, 'non-admin/clerical'.  I mean, I don't know that is in issue or is of great contention but I just thought I should make clear that we read that as indicating that dot point does apply to personal carers rather than admin/clerical, which are dealt with in the final dot point under that heading and I think the premise of Mr Ward's questions may have been to the opposite of that proposition and may have caused (indistinct) to be somewhat less than clear as it came out and I just thought I shouldn't let that pass.


I'm not sure whether Mr Ward reads it different but that's as we would read it, at least.


MR WARD:  Thank you, Mr Gibian.  I was just trying to understand how it worked, that's all.


MR GIBIAN:  Yes, I certainly wasn't being critical.  I just wanted to clarify (indistinct).


MR WARD:  Now, I'll come back to the recreational lifestyle person in a moment.  So level four is the Certificate III level, is it?‑‑‑Yes, for personal care workers.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Yes, sorry, my apologies - for personal care workers, yes.  And you've adopted this word, 'qualified'.  I take it you mean by that they have a certificate III or they possess equivalent knowledge and skills to be at that level, even though they don't have a certificate III?‑‑‑Yes.


Yes, okay, that's fine.  That's fine.  Could you again turn to level 5, and I think the heading for level 5 is actually cut off at the bottom of page 6.  Level 5 appears on level 7.  Are you with me?  Level 5 I think starts on the top of page 7?‑‑‑Yes, it does, at the bottom of page 5, but it actually - the descriptors are on page 7.




Yes, that's okay.  You see the highlighted part there in the case of a senior personal care worker?‑‑‑Yes.


'May be required to assist residents with medication and hold the relevant unit of competency HLTHPS006 as varied from time to time'.  Do you see that?‑‑‑Yes.


And I sent you a document which I understand is HLTHPS006 assist clients with medication.  Have you got a copy of that?‑‑‑Yes.


Am I right in saying that that's the unit of competency that you're referring to just for clarify?‑‑‑Yes.


Okay.  And could I ask you to go back to the other document, the certificate III in individual support?‑‑‑Yes.


Bear with me, I have to find what I want to take you to, sorry.  Trust me, I didn't mark it.  I did.  Can I ask you to go to page 7 of 8?‑‑‑Yes.


You'll see about three-quarters of the way down, HLTHPS006 assist clients with medication.  Do you see that?‑‑‑Yes.


Am I right in saying that that is an elective for a certificate III?‑‑‑That's correct.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Okay.  And, again, I'm just trying to understand what you're proposing.  So, if I get a certificate III and I've chosen that as one of my electives, even though it's just part of my certificate III, you want that person to be a level 5?‑‑‑No, the classification structure is quite clear that it says 'may be required to assist residents in medication', so it's the practice that an employee, they call them medcomp, medication competent, is engaged to do exactly that, so in terms of - and are remunerated at currently in some agreements a premium, a very small premium for undertaking that medication assistance role.


That's fine.  Just bear with me.  Am I right in saying that I can only play that role if I have this unit of competency?‑‑‑In terms of the level 5?


No, no, no, no, if I want to assist a consumer, a resident, with medications, is it the case that I must have that unit of competency?‑‑‑Yes, it's required by - yes.


It's required, isn't it?  It's required.  So, I can't play that role unless I have the unit of competency?‑‑‑Yes.


Okay.  And what I'm asking you is - I hear what you say, so, if I play that role and I have this unit of competency you're proposing I'd get paid as a level 5?‑‑‑Yes.


Even though the unit of competency is part of my certificate III?‑‑‑If you were to take it as an elective.


Yes?‑‑‑However, some employees or some aged care workers don't make that decision, and then employers or an individual may take on that HLTHPS006 so that they are able to perform or are deemed medcomp.


So you want them to be paid whether they take it as an elective or whether or not they take it in addition?‑‑‑And they're required to use it, yes.


Yes, okay.  Am I right in saying that one of your motivations for that is you have this in some of your enterprise agreements?‑‑‑That's correct.


Okay.  I'll come back to that.  I think I might ask Mr Friend about that.  It might be fairer to him.  Now, could I ask you to go to level 6?  You see down the bottom at level 6 it says, in the case of a specialist personal care worker:


Provides specialist care and may have undertaken training in specific areas of care, e.g., dementia care, palliative care, household model of care.


Do you see that?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


I'll come to the training in a minute, but can I just try and understand what 'provides specialist care' means.  I'm not trying to be facetious when I put this to you, I'm just trying to understand.  Let's assume I'm a personal care worker, and I'm looking after a particular wing of a facility, and I have eight residents in the wing.  And one is diagnosed with dementia, and I am caring for seven who don't have dementia and the one who does.  Does that meet your criteria for providing specialist care to somebody with dementia?‑‑‑If you have been trained in that particular area, and you have been required by your employer to use that specialist training, then, yes, you meet the criteria.


You see you've written words there, 'and may have undertaken training'.  You're now saying but they must have undertaken training, are you?‑‑‑No, they may have undertaken specific training, but they may have also been nominated in their workplace because of their practice.  They may be an exceptional employee who has incredible skills in dealing with residents with dementia and have been appointed by an employer for that particular role.


So, the minute one of the people I'm caring for has dementia then I'm a level 6?‑‑‑No, if you're identified as a specialist carer by your employer, and you're asked to use those skills, even if it's for one resident out of eight, then you would be employed.  It's not ‑ ‑ ‑


Okay?‑‑‑It's the skills themselves that are being required to be used, it's not the quantum of residents that it's applied to.


So, if I'm the employer and I don't designate you, you don't get it?‑‑‑But if you're an employer that then says, 'We need you to work in a specialist dementia area because of your incredible skills' or to undertake some training in that particular area, then, yes.  What we see already existing in the sector is these roles, so this again is actually catching up on what's already playing out in the sector, specifically around the homemaker model.  So we have a number of witnesses who have given evidence in relation to their specialist role that requires additional training or on-the-job training to look at the model of care specifically and they're paid again a small premium as a result of that.


I don't want to get distracted from where I want to take you, but when you say 'they're paid', are you saying they're paid under your enterprise agreements are they?‑‑‑Yes.  So, I can think of two agreements, the HammondCare and Uniting New South Wales ACT agreements that have specific roles that look at a high level of responsibility in a particular model of care.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Okay?‑‑‑The homemaker and the specialist dementia carer are those two roles under those agreements.


Just try and stay with me, because I'm trying to understand what you're telling me.  If I operate a dementia unit, which has - it's a secure unit, and I'm a personal care worker, you would say I would be a level 6 if I worked in that specialised unit?‑‑‑Yes.


And that's irrespective of whether or not I've been trained in dementia care?‑‑‑Well, I would assume that an employer putting a worker into a dementia area would provide them with training, and I think all of our lay evidence would support that, that there is, even for support workers, so if we look at people who work in catering and cleaning, there's a requirement for them to undertake some training.  However, if you were to put a care worker in a dementia specific area, you would assume or you would hope that those workers had been trained.


The only reason I said it was because you said earlier they might be that well‑known for managing dementia patients that they might not have been trained in it.  That's the only reason I asked the question.  That's okay.  So this level 6 would apply if I'm a personal care worker and I'm working in a specialised dementia unit.  It would apply if I was a personal care worker working in a dedicated palliative care unit?  Is that a yes?‑‑‑Yes.


And again, if I'm not in one of those but it happens to be the case that three of the eight people I'm looking after clearly have dementia in some form, do I get it then as well?‑‑‑If your employer has nominated you as a specialist, then you would be entitled to it, and it may - - -


Nominated you?‑‑‑Yes.


Can I just understand this, if you could go back to that document again, Certificate III in Individual Support?‑‑‑Yes.


I think on page 4 of 8, it's got 'Elective units:  Group A electives,' and I'm just going to read from the earlier page, I apologise.  It says, 'Packaging for each specialisation:  All Group A electives must be selected or awarded the Certificate III in Individual Support (Ageing), and all remaining electives must be selected from Group D.'  So even though it's called an 'elective,' if I want the Ageing Cert III, then the group electives, as I understand it, are mandatory; you must do them.  Is that your understanding?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


You see there, 'CHCAGE005:  Provide support to people living with dementia,' do you see that?‑‑‑Yes.


I think – I don't know if we did, but did we send that to you as well?‑‑‑Yes.


I don't want to be unfair to you, because you might not have read these documents for a while.  Am I right in saying that is the Certificate III module that teaches you how to work with people who have dementia?‑‑‑Yes.


So again, and bear with me, would that module, which is you're obliged to do it if you want a Certificate III in Ageing - would that module meet your requirement of 'may have undertaken training in specific areas of care for dementia?'---It would in the sense that, yes, it provides some understanding of training.  It's not limited to that, and our classification claim hasn't specifically drawn out that unit.


No, I don't want to be unfair to you, but that – when you say, 'may have undertaken training in specific areas of care,' it would include that for dementia?‑‑‑Yes.


And it might include an internal organised program that the employer runs?‑‑‑Yes, or in conjunction with Dementia Australia, or I understand that University of Tasmania has some terrific courses in dementia care.


It's not relevant the quality or length of the employer's course, that doesn't matter?‑‑‑In obtaining the classification?


Yes?‑‑‑No, as long as it meets the criteria that some training may be provided, and that the person has been appointed in a role.


You then talk about palliative care in level 6, and I've sent you 'CHCPAL001 - Deliver care services using palliative approach.'  My understanding is that this is a general group D elective in the Cert III.  Just bear with me.  I think it's on page 5 of 8, CHCPAL001.  Again, if I was in a specialist palliative care unit, that would be sufficient training to meet your criteria?‑‑‑Yes.


Not exclusively, but it would include that?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


You then talk about, 'Household model of care,' which we'll come to a little later.  You might help me with this, I don't know – is there something in the Certificate III that deals with that?‑‑‑Not in terms of the specific models that are undertaken by particular employers, but in terms of – if you look – you know, look at the electives then on page 4 of the Cert III, 'Facilitate the empowerment of older people.'


Yes?‑‑‑You know, 'Meet personal support needs' – there are a number of courses throughout this certificate that look at this, you know, person centre care approach, and how that plays out in the household model then is determined by the employers.


Just the one I was – so, 'Facilitate the empowerment of older people,' that's how you can be an advocate for the person, is it?‑‑‑Not an advocate per se, but understand that – you know, that it's your job as a carer to assist an older person to live out their best life, albeit in residential care.  It's not to necessarily to advocate, but to understand individual choice to allow for those choices to play out, to respect the decisions of older Australians and how they're cared for.  And so really it's not – advocacy I think is probably a small part of it, but it's also how the care plays out.


Now I can take you to - - -


MR GIBIAN:  I thought I should just point out, your Honour, we were thrown out for a moment.  I'm not sure there's much we can do to recover that time, but we're back now.




MR WARD:  Can I take you back to Annexure A, level 4, if I can?  You'll see you've introduced there the recreational lifestyle activities officer – I'm sorry, they join us I think – is level 3 the lowest they can start at?‑‑‑Yes.


They say you should never ask a question you don't know the answer to.  This will worry me.  I've sent you a Certificate IV publication, which is CHC43415 Certificate IV in Leisure and Health.  Am I right in saying that there isn't a Certificate III for recreational lifestyle officers; there's only a Certificate IV?‑‑‑That's my understanding, yes.


So we're on the same page?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


If you go to 'Level 5,' you've got 'Recreational lifestyle activities officer qualified.'  Level 5 would include somebody who has a Cert IV, is that right?‑‑‑Yes.


Am I right in saying that the six months in level 4 in the prior to six months is consistent with what you said before about six months and the personal care worker?‑‑‑Yes, except – well, yes.  Yes.


Except what?‑‑‑Just going back over my notes here; just to note that we have included the – we have included the level 4.  That's the six months there.  So it's not really an exception.  It was just me being clumsy with words.


Sorry, I wasn't trying to catch you out or anything.  An entry level recreational lifestyle activity officer without a Cert III starts at level 3?‑‑‑Yes.


And once I've got six months of service up, without a certificate, I move to level 4?‑‑‑Yes.


Am I right in saying that I only move to level 5 when I've got my Cert IV?‑‑‑Not as the way the classification structure is actually written, it may require formal qualification, but in terms of the hard Cert IV, if you like, it's noted in the six.  However, it's the expectation though the classification structure doesn't actually spell it out that that's how it applies.


So, can I just put that back to you to make sure I understand it.  So, if I've actually got a Cert IV I'm a level 6 - I'm level 6 as a recreational lifestyle officer. Is that right?‑‑‑No, no, if you're a - if you're a recreational activity officer who's qualified, it is a level 5.  I'm just noting that we haven't actually spelt out Cert IV in the classification structure.


Okay, sorry.  I wasn't trying to catch you out.  So, am I right that recreational lifestyle activities officer qualified, which is in level 5 would be somebody with a Cert IV or equivalent?‑‑‑Yes.


And is the distinction then for me to progress to being a senior recreational lifestyle activities officer, level 6, that I would be supervising people?‑‑‑Yes.


Okay.  Thank you.  I'm sorry if that was a challenge but it's been very helpful.  Now, can I take you back to your first statement?‑‑‑Yes.


I don't want to run out of times, Ms Hutchins, just bear with me.  At paragraph 43, can I take you to that?  It's on page 9?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


I'm not quibbling with you, I'm just trying to understand.  When you say aged care workers are skilled professionals, that's consistent with obtaining Certificate III, Certificate IV type qualifications.  You're not suggesting that they're university qualified, are you?‑‑‑No.


Okay, that's fine.  And you offered a number earlier which was interesting.  I'm not sure I caught it.  You say in paragraph 43:


A personal care employee is usually required by the employer to have Certificate III in aged care and disability services.


I take it when you use the phrase 'aged care and disability services' you're talking about the Certificate III in Individual Support, whether or not it's in one area of specialisation or the other?‑‑‑That's correct.


Is that knowledge of yours anecdotal or is there actually some data which tells you how many people have a Certificate III?‑‑‑There is data on this.  It's a significant number and I don't - I believe it's in my second statement, and the Cedar Report spells out the level of employees who currently hold a Certificate III.


I see.  So, that's - just bear with me, that's not what I was asking.  Your statement says that a large number are required by their employer?‑‑‑Yes.


So, is it your - is it your opinion that - it's not your opinion that everybody who holds a Certificate III has been required by their employer to get it, is it?‑‑‑Sorry, can you repeat the question?


You're not saying that everybody who holds a Certificate III has been required by their employer to get it?‑‑‑That those who have it have been required by their employer?


Yes?‑‑‑Sorry, how to explain this that almost exclusively all job ads for personal care workers have as a requirement Certificate III in Individual Support.  Those employers - there are some who are registered training organisations that advertise that if you don't have a Certificate III in Individual Support that the organisation will support you to undertake that training.  It is my experience that almost exclusively people either have got a Certificate III in Individual Support or have been very long term employees in the aged care sector.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


So, this is useful, if I can just clarify that.  So, if I've been in the sector for 20, 30 years I might not have one but I'm sort of deemed qualified from my experience.  Is that right?‑‑‑In most cases, yes.


Yes, right.  And what you're saying is it's your understanding, based on your experience, that when I employ somebody today as the employer, I will likely require you to hold a Certificate III?‑‑‑Likely is not strong enough.


No, that's fine.  What word would you choose?‑‑‑I would say that it is a requirement and the only exceptions I have seen to that have been those organisations that are registered training organisations that are able to provide that training themselves internally.


That's because they're registered training organisations themselves?‑‑‑Yes.


In their case they might take somebody who doesn't have one and through RPL and everything else, they'll get them through it?‑‑‑Yes.


So, you would think it would - putting aside people who might have joined the industry 30 years ago, you would think it was very unusual to find a personal care worker who doesn't have a Certificate III?‑‑‑Yes.


That's fine.  Can I just take you to paragraph 45.  I'll do my best to speed through, Ms Hutchins, if I can.  You talk in paragraph 44 about a number of advertisements, LH5.  And then you summarise them in 45.  Do you see that?‑‑‑Yes.


Can I just - have you got LH5?  If you haven't - - -?‑‑‑I do.  I've got the lot, I've just got to find it.  Here it is.


Do you have it in front of you?‑‑‑Yes.


Now, I take it somebody typed these out from a newspaper or from online or - - -?‑‑‑It was me.  It was a cut and paste job.  It was very frustrating.


You need to lobby your boss for some administrative support, Ms Hutchins?‑‑‑We're a trade union, we don't have a lot of excess in terms of those types of things but maybe next time.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Maybe next time.  Can I take you to the first one.  As I understand it, this is Blue Care Sunshine Coast, sets out the job opportunities and rates of pay, and do you see the heading, 'What you'll need'?‑‑‑Yes.


Okay.  So, I take it this is what you're saying about the employer requiring a Certificate III because this employer requires one, don't they?‑‑‑Yes.


They then say 'Blue card, yellow card or willingness to obtain'.  What is the blue card?‑‑‑Now, that I'm not actually across to be fair.


That's all right, that's okay.  Are you across the yellow card?‑‑‑I'm not across the yellow card either.


I'm going to leave those completely there.  That's fine?‑‑‑No, and I'm assuming - and again apologies but I'm assuming that this is something specific to do with Queensland.  It's not something that I'm necessarily across in New South Wales.


DEPUTY PRESIDENT ASBURY:  They're specific to Queensland, I can inform you reliably.  Yes, they're specific cards that enable to work with certain vulnerable groups of people.


MR WARD:  Thank you, your Honour, for that.  I'll have to ask some questions on that to somebody else later.  That's fine.  I didn't know that.  Putting aside the quirky Queensland blue card and yellow card, experience of technology including smartphones, tablets, laptops, confidence to satisfy the relevant probity checks required by legislation.  I take it there's nothing in this job advertisement outside of that blue card and yellow card that doing the Cert III, getting the Cert III doesn't cover?‑‑‑Can you repeat the question?  What's the - - -


Well, the employer - put the blue card and yellow card which her Honour has helped us with.  There's nothing in the requirements the employer wants, the requirements the employer wants the successful candidate to have.  They're really covered by the Certificate III?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Yes, yes.  And I'm not - I don't want to labour this but I just want to understand this is about the - what you say is the robustness of the Certificate III.'  If you go to the next one, Joseph Banks Aged Care Facility, Fremantle and southern suburbs, this person says you've got to have a Certificate III or Certificate IV, and again, when I read that advertisement, is there anything there above and beyond the Certificate III or Certificate IV that the employer's asking for?‑‑‑Well specifically that they've got 12 months' work experience.  So I'm assuming that this is a more senior role that the facility is looking for here.


We can't quite get that from the advert, but it might be they don't want somebody who has just got their Certificate III with 120 hours?‑‑‑Yes.


And then you've got, 'Goodwin Aged Care Services Limited, ACT.'  I've read, 'Who we need.'  They say a Certificate III in Aged Care is what is desirable, but again nothing in that advertisement seems to be outside of what a Certificate III could deliver.  Have I missed anything in that?‑‑‑No, not that I - - -


Not that you can see?‑‑‑No.


Then the next one is, 'Bupa Aged Care Australia, South West Coast.'  This one actually sets out some duties.  With respect, those duties are fairly common, aren't they?  You'd expect to see those duties for a personal care worker?‑‑‑With the exception of the medication assistance, which is a quite specific role.


That is what we've already discussed with HLTHPS006, Assist - - -?‑‑‑(Indistinct).


- - - for medication?  Yes?‑‑‑Yes.


And I think this provider again is looking for a minimum of a Certificate III – well, they say it's essential but they would highly regard a Certificate IV.  Again, that's what you say they're looking for?‑‑‑Yes.


I'm going to be fairly quick from here, if I can.  Can I take you to paragraph 48?  This is something you've observed when you've been at a facility, is it?‑‑‑Yes.


You attend facilities regularly?‑‑‑Yes, though I do have to admit that particularly the last – well Omicron caused some challenges.  I must say I've had COVID, and so this year I have not been to facilities as much as I would like to, but yes, I do attend facilities on a regular basis.


You've talked earlier about Certificate III being robust and contemporary.  You've talked about in your view it's pretty much mandatory these days.  Do I take it that a Certificate III would cover how I feed a resident and what happens if they're struggling to swallow?‑‑‑If I can go back to the Certificate III, if that's okay?

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Of course you can.  Yes, absolutely?‑‑‑In terms of if you go to – let me just – I mean there's a number you could pick up here that would give you that – you know, that guidance through the actual course itself, and my apologies, I can't bring those up to you.  But in terms of the actual training itself, it is an understanding that a person who comes out with a Certificate III understands particularly the feeding requirements of a person in residential aged care.  Probably the best – and my apologies, if you go to the core electives, 'Recognise healthy body systems,' that's part of it, is also then understanding how to work with residents around food, and it's not always feeding someone.  Really, care is about supporting someone to eat, who may have cognitive issues, who may have depression, who may want to exercise choice around the food that they're eating and decide that they don't like what's been put on offer.  So there's a range of things that come into play around food, not just simply feeding someone.


It's not just the physical act; it's the broader context is dealt with in the Certificate III training?‑‑‑Yes, and also then – but it's also then honing those care skills.


And I take it the 120 hours is part of that process?‑‑‑Absolutely, and you observe as a trainee other carers who will take you through that process of understanding the importance of food and in quality of life.


In paragraph 49 you talk about observing residents' behaviours.  Am I right in saying again that some element of that Certificate III program will be teaching you what to observe and how to respond to it?‑‑‑There's certainly the theoretical part in the course itself, but again, the 120 hours is where you're mentored to watch and you observe, and at some points in time when you're being assessed you actually put that training into practice.


So when I'm being assessed it's not just a classroom assessment, I might be practically assessed; somebody observing how I'm doing that with a resident?‑‑‑Yes.


There's a lot of evidence in this case about resident behaviour, and challenging behaviour towards the personal care worker and the like.  Again, is there some element of the Certificate III that deals with that?‑‑‑Again, there are particular – I think you raised it yourself, providing support to people living with dementia.  Certainly those – some of the behaviours are a result of people having dementia, experiencing dementia, but again, the 120 hours is about an opportunity to observe in real time de‑escalation practice put into place.


Yes?‑‑‑So, absolutely.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


And de-escalation practice is a method I'm taught when I'm doing my Certificate III to actually reduce the tension in the situation?‑‑‑Yes.  And this is one of the real skills of a care worker, is understanding the individuals that they are supporting, the residents.  What it is that a resident likes, dislikes.  Is it noise?  Is it, you know, particular things, food?  There are a range of things that a carer will understand could be problematic, and will then also understand how to de‑escalate.  So if someone is exhibiting signs that may lead to, you know, an issue, a concern, they will get in quickly.  I think the best line I've heard is that the role of a carer is to see the situation, to understand their residents, and to put in place practice that makes sure they remain safe, and that there isn't any requirement for any kind of clinical response, unless, you know, there is a clinical issue.  But certainly having dementia, you know, our carers know how to deal with that every day.  They absolutely understand how to do that, and not only do they demonstrate that when they have a trainee with them, but they also then, with having new staff come on, teach them about the individuals that they're going to be supporting.


Just so I can make sure I got that right, if I am doing my Certificate III, my mentor will be working with me on my de‑escalation skills as part of my 120 hours?‑‑‑Yes.


And I might be the subject of the observed assessment in how well I actually exercise those de‑escalation skills, the theory of which I learnt in my Cert III?‑‑‑If the opportunity arises itself, and it may be that that doesn't occur and so there's not an opportunity at that time.  Certainly, you know, you can't predict.


At paragraph 51 you say, 'When a new resident is admitted to a facility, personal care workers are required to learn everything about them, including what medication they take,' and then you go on.  Am I right in saying that when somebody is admitted, there's a personal care plan put together for the consumer?‑‑‑Yes.


Is the personal care worker inducted into that care plan for that consumer if they're going to work for them?‑‑‑Yes.


Again, it's no trick question, I'm just trying to understand.  I take it, it would normally be a registered nurse who is talking to the personal care worker about this is the care plan, and this is what I want you to do or how to do it?‑‑‑Yes.


I'm going to get gonged soon, so I'll just try and ask you two more questions.  I think we might run out of time?‑‑‑I'm happy to come back.  It's all good.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


I love those invitations.  Can I take you to paragraph 76 of your first statement?  I'm just trying to understand what you mean by the first part, and it reads this way:


There is definitely a ceiling when it comes to career progression in aged care if you do not have a degree in Nursing.  It does not matter how experienced you are or how many additional skills you have, there is just no way for you to progress through the classifications.


Am I right in saying that your view is you should progress to the top no matter what competencies you hold?‑‑‑No.


That's what I wanted to clarify.  So you still accept that you should progress based on your competence, is that right?‑‑‑Yes.  Yes, but what we are trying to provide in the classification structure is an opportunity to recognise those additional skill‑less specialist roles as they currently exist to give people an opportunity to actually make a decision to specialise and then to be remunerated accordingly if their employer has a model of care, for example, that actually requires that specialisation, or has, you know, a particular palliative model or a particular dementia model that they have in place.


And I think you said your view on that is influenced by what you've achieved in some of your enterprise agreements?‑‑‑Yes.


Lastly, can I take you to paragraph 80?  It reads as follows:


More recently there has been a shift towards making residential aged care even more home‑like, with an ever greater emphasis on choice and flexibility.  This home‑like model of care sees residents reside in small groups -


and then it reads on.  Can I just ask you to refresh your memory of that paragraph?‑‑‑Yes.  The whole paragraph?


Yes, the whole paragraph, if that's all right?‑‑‑Yes.


I take it you don't have any information on what percentage of the industry has made this shift?‑‑‑No.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Am I right in saying this model involves more independent living?‑‑‑Well, in the sense – I suppose in the sense of the model itself tries at its core to allow residents to exercise choice, to make decisions about their care, to work with a dedicated group of carers, so there's - that household model is about ensuring that you have continuity of care.  And it is about, I suppose, independence in that decision‑making, yes, but we just also have to appreciate that there are limitations to that independence because of the – you know, the frailty of residents, and that sometimes there is some challenges to exercising those choices.  But it is about – I don't like the term, but it's the best way to describe it – it's about empowering people in residential care to make more decisions about their care and the direction of that care.  It's about working out the activities that you want to do as a group.  It's about making decisions about when you want to eat, when you want to shower; you know, the music you want to listen to; whether or not – sorry - - -


Go on.  I'm happy for you to finish.  I (indistinct)?‑‑‑I'm okay.


I didn't want to interrupt you?‑‑‑I think at its core, you know, it's trying to live out the ideal of person‑centre care, that people can make these decisions; they can make – and they've got the staff there who understand their individual needs, their likes, their dislikes, and can plan activities accordingly; can plan care accordingly - and can also alter that if there's a change in the residents' needs themselves.


What I'm trying to understand is, this type of facility, I take it it wouldn't suit people who ordinarily would be in a closed dementia ward or something like that?‑‑‑That's not true.  The HammondCare specialist dementia cottages are specifically designed for people with dementia in small group‑like arrangements, so a cottage‑like arrangement.  So it absolutely takes that model of continuity of care, of decision‑making, and supporting people with dementia to make – you know, to exercise their rights - - -


Sorry, I'm just trying to understand.  It's the physicality of the setting then that it's as you used the word, 'cottage?'---It's how HammondCare describes it.


Okay?‑‑‑It's a cottage-like arrangement.  In, for example, Uniting, which is our biggest employer in NSW, they have purpose‑built facilities to have the homemaker model exist so that there are smaller – you know, smaller shared spaces that people are able to interact there.  HammondCare has a cottage‑like arrangement where people with dementia are in smaller groups.  They have the same carers.  There's that continuity there.  But the belief behind it is that people with dementia have exactly the same rights to exercise choice over their care as anyone else, and that's why the training is so important, so that how do you ensure that someone with dementia can exercise those rights in a safe way, but also has the right to take risks as well; like, there's – you know, it's quite complex when you try and unpick it there, but that's why you have that training.  That's why you've got a model in place that's supported not just by the carers, but by the support staff, the administrative staff, the registered nurses, who all understand that this is how the model works.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


If you think about HammondCare as an example - and I'm going to tread dangerously, because I don't know the answer to this question – take HammondCare as an example.  In their set up, is the cooking still done in a central place and then sent to the cottage, or is it - - -?‑‑‑No.


- - - an entirely independent unit?‑‑‑No, there is some kitchen support.


Right?‑‑‑But there is an understanding in all of these types of models that there are kitchens or kitchenettes, that there's an expectation that if an individual doesn't want what everyone else is eating, then you attempt to make them something that they prefer.  So it's not the kind of, you know, usual big dining hall experience where everyone is fed at the same time and then go back to their rooms.


So if I'm a personal care worker working in one of those arrangements – I appreciate we don't know how many there are out there, but if I was working in one, I might be a little bit like a personal care worker in a traditional residential setting, and a little bit like a home care worker?‑‑‑I think in that respect, yes, I suppose you could say that is that you're trying to build a home.  The best way I can think about it is two ways:  one, it's like a share house amongst people who, you know, live together or think about it as a group home and disability support services where you have a number of clients who are supported by the disability support worker and that's the way I view it.  I suppose the home carer - the comparison is fair in the sense that you're trying to create a home and all I would suggest though is that obviously the residents in residential care, their needs are generally more complex.  That's the distinction I would draw here, is that you are dealing with people who either -you know, have either quite significant mobility constraints or they've got, you know, cognitive issues - - -


In residential care?‑‑‑Residential, yes, yes.


I take it if I'm a personal care worker in one of these cottages, my certificate III would be sufficient for me to do the job?‑‑‑No, the employers that we deal with require additional training and that's - - -


Is that in‑house training?‑‑‑That's the particulars model of care.  For example, HammondCare has a specialist dementia carer role that requires additional training.  Uniting has a homemaker role that requires additional training.  It's to understand, to implement the model that's best, you know.


If you take the home care model training you have just talked about - - -?‑‑‑Homemaker.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


Homemaker, my apologies.  Is that classroom training or on‑the‑job training?‑‑‑It's a combination of both.


How long is the classroom training?‑‑‑That, I cant tell you, but I believe that at least one of our witnesses, Virginia Ellis, who is a homemaker, will have that in her statement.


Thank you very much.  I'll bother her with that, not you?‑‑‑Please do.  She's fantastic.


I'm sure she will be.  No further questions.


JUSTICE ROSS:  Ms Hutchins, can I just ask you a question about the classification structure.  You remember you were taken to the amended application?‑‑‑Yes.


Can I take you to aged care employee level 5?‑‑‑Yes.


You were asked a question about the section that's underlined, 'May be required to assist residents with medication.'  What does that mean in a practical sense?  They would distribute medication or is there something else involved in that?‑‑‑Yes, absolutely.  It is about the distribution, but it is also about then the documentation. It's also about ensuring that the right medication has been provided, so, you know, counting the tablets.  It's delivering the medication in a way that is reflective of the residents' needs.  So, for example, some residents require medication to be crushed, other residents require it to be mixed with - you know, the best example I can give is custard.  There are different things, you know, in assisting with medications, so - and it may also be, you know, medicated creams if there is an issue with skin and the administering of eye drops in the event that, you know, that's required, as well.  So it's not just as simple as putting out, you know, a blister pack and then popping the pills out.  It's about making sure that the medication is consumed, that it's documented and that a personal carer worker is also across if there is any changes in those medications.


MR WARD:  Can I have a question arising from that?


JUSTICE ROSS:  Certainly.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           XXN MR WARD


MR WARD:  Am I right in saying that the personal care worker obviously cannot determine what medications the persons has?‑‑‑No.  You are right.


I didn't think we would argue with that.  When the personal care worker is assisting, who hands out the medication?‑‑‑The personal care worker.


So where do they go and get it from?‑‑‑From the registered nurse.


Okay.  Do they receive it normally in a Webster pack?‑‑‑Yes.


So they will then take that to the consumer, the resident?‑‑‑Yes.


Am I right in saying that they have to match to make sure that what's in the Webster pack for that occasion is what's meant to be given?‑‑‑Yes.


Is that done on like a colour chart or a visual chart?‑‑‑I couldn't answer that.  It may be that there are different methods for different employers.


I have to visually see the person take the medication?‑‑‑Yes.


Then I write on the chart that I visually saw them take it?‑‑‑Yes.


No further questions.


JUSTICE ROSS:  Thank you.  Any re‑examination, Mr Gibian?


MR GIBIAN:  Yes, thank you.  Just a few matters.

RE-EXAMINATION BY MR GIBIAN                                       [3.46 PM]


MR GIBIAN:  Right at the end of the cross‑examination, Ms Hutchins, you were asked some questions about the homemaker model.  You mentioned two providers at least that are using that model, HammondCare first of all.  First of all, am I right in understanding that the HammondCare facility you referred to with the dementia cottages is one of the facilities that is proposed to be visited on the inspections that the Commission is to participate in?‑‑‑Yes, that's correct.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           RXN MR GIBIAN


Do you have any knowledge of the extent to which HammondCare has adopted the homemaker model - as you've referred to it - throughout its operations?‑‑‑It has and it's one of the, I suppose - how to describe it?  HammondCare has had the cottage arrangement in place for quite some time.  It was a very early adopter of this model, so they have put it in place throughout their facilities as best they can, appreciating that some of the facilities may not lend themselves as comfortably to a cottage‑like arrangement.  There are occasions that you need to modify a facility to make that occur, but it is certainly something that in numerous conversations that I have had with the CEO, Mike Baird, that the organisation is incredibly proud of.


You also mentioned Uniting Care, which I think you said was the largest provider in New South Wales at least.  They have also to some extent adopted the homecare model - - -?‑‑‑Yes.


Do you have knowledge of the extent to which they have run - they have implemented that model throughout their operations?‑‑‑So my understanding is that they have now implemented this across all of their facilities in New South Wales and the ACT.  They had a staggered rollout as they were bringing it into place and that is my - you know, that's my understanding having seen the consultation take place in various areas as it rolled out, because it wasn't - it's just not a matter of you become a homemaker work site.  You need the training in place, you need the infrastructure in place.


I think Mr Ward asked you whether you had any knowledge of the extent to which - leaving those operators to one side, the homemaker‑type model that has been rolled out more generally within the industry, are you able to give any evidence about that?‑‑‑Yes.  You know, at the start of 2020 - and it's now put in place now - RSL LifeCare management met with myself and my deputy manager, Ben (indistinct) to explain how they were rolling out their version of a homemaker model.  The distinction they had was that they would maintain a higher level of support services, particularly in the catering area at that time.  However, we have - and that has started to roll out.  There are a number of organisations that have purchased, I think, off‑the‑shelf kind of training.  It's called - I believe it's the Butterfly program that takes you through how to put a homemaker‑like model into your workplace.  I believe Harbison Care - perhaps Mr Friend might be able to go into more detail around that, but certainly those are two facilities that absolutely I can immediately say have put those in place.


Thank you, Ms Hutchins.  I was told in my last question I said 'home care'; it's 'homemaker'.  If I did, that was a slip on my part and I correct that retrospectively.  If I can go back then to the - sorry, you mentioned RSL Life Care.  Were there other operators who are going down this path that you have knowledge of?‑‑‑Not at hand.  I will have to say that this also may reflect two years of a pandemic and the ability to actually have staff come off the job to undertake that specialist training is very challenging, particularly given the staff shortages that have been experienced as a result of ongoing outbreaks.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           RXN MR GIBIAN


If I could go back then maybe more sequentially from the start of the cross‑examination.  You were asked initially some questions about the process for developing the classification proposal in the amended application and taken to that.  I think you described your involvement in it as claiming to be a driving force.  Can I just ask you if you're able to describe the process that was involved in developing that part of the application and whether others were involved or consulted in relation to that matter?‑‑‑Yes.  So, there's I suppose two parts.  There's the classification structure itself and the claim itself.  So, the classification structure I worked heavily with Christopher Friend, Mr Friend, and because of his experience as our bargaining officer - so, he works exclusively in the aged care area and works in bargaining with our major employers and also with the peak industry bodies.  We sat down with the classification structure and from the basis of is it fit for purpose but also do we ensure - and came to the conclusion that no, which is why there's a number of amendments that we proposed.  But also that we were mindful there was a tendency in these discussions between us to - there was a desire for us to put a lot of information there.  We realised that that probably wouldn't help the process, so we, in putting forward those changes, tried to make it as succinct but reflective of where the sector was at as best possible.  We had a lot of discussion about it.  We confirmed particular role titles to make sure that we were comfortable with those.  It was a process that we then took - and then ultimately we came up with, between the two of us, a classification structure that we believed was fit for purpose, reflected where the sector was at and we thought delivered for us the - you know, the desired outcome of giving opportunity for carers to progress through at particular times.


Yes, thank you.  You were then asked questions by reference to the amended application and the different levels in it.  Among those you were asked some questions about level 6 and the - on page 7 of the application, and the proposal to insert the underlined text in the final dot point referable to a specialist personal care worker.  And in answer to those questions you said that that was to reflect what existed in industry.  And you were then asked questions by reference to provisions in enterprise agreements which provided for some additional payment for persons who were recognised as specialists in different areas.  I just wanted to understand whether your evidence that these were positions that existed in industry was limited to areas in which the HSU has enterprise agreements with those classifications or to your knowledge it exists in industry more generally?‑‑‑Well, my experience with those rolls have been through the enterprise agreements.  That's my experience.  What we have seen, and I suppose this is also reflected in the Aged Care Royal Commissions recommendations is a focus on particularly dementia and palliative care.  So, whilst I can only speak from my experience in terms of the enterprise bargaining agreements that I've engaged with, there's certainly an acknowledgement that those areas of specialisation are desired.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           RXN MR GIBIAN


You were then asked some questions about the extent to which employers require at least new employees to have Certificate III, and I think your evidence was to the effect that that was universally required at least - unless the employer was itself a registered training organisation and able to provide that training.  I understood those answers to be referable to the Certificate III in Individual Support.  Are you able to - do you have any knowledge of the extent to which employers either require or preference specifically the Certificate III in Individual Support (Aged Care)?‑‑‑I don't - it's not my experience that there is - that a person who has individual - Certificate III in Individual Support that is either a - for lack of a better term - generic Certificate III or a Certificate III that then specialises in disability care would be necessarily excluded from employment.  Those, as pointed out in the Seek job advertisements at the time, there is a preference from employers that it is specialised in aging.


You were then asked some questions about personal - sorry, one of the units of competency you were asked about was it's - I think HLTHPS006 Assist with Medication, and I think you indicated in that respect that that will be engaged by the or a form of training that would be relevant to a person at level 5, if required to undertake that work by the employer?‑‑‑Yes.


I just wanted to ask whether you were familiar with whether personal care workers involved in assisting - I just have to find the right terminology - assisting residents with medications, undertake refreshers or renewals of that training?‑‑‑I can't answer definitively on that one, so it would be my understanding that there is ongoing training, particularly if - you know, particularly if there is a better way to support a resident more broadly.  Whether or not that's specifically around medication, I couldn't tell you.


And the final matter was that you were asked about the development of personal care plans upon admission to a residential facility, and whether the care worker would be inducted.  I think the terminology that was used was inducted into that plan.  Do you recall being asked about that?‑‑‑Yes.

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           RXN MR GIBIAN


On your understanding what would ordinarily be involved in the care worker being inducted into the care plan?‑‑‑So, there would be - a new resident would be brought into the facility, their care plan would be developed by the registered nurse.  The registered nurse would go through that care plan with the carer, understanding the needs of the residents in terms of clinical, in terms of social and emotional and as well as physical support that's required.  There may be in that care plan some understanding of the residents' families, of their likes, their dislikes and some special - or information that may assist with the actual care of the individual as, you know, a resident particularly doesn't like a, b, c, d, and - or responds better to approaches that are a, b, c, d.  So, going through those so the carer understands from - well, ideally understands from day one how to provide the best care.  Because to be - you know, a carer is the first point of contact for a resident.  The carer is the person who is there for them every day.  The carer is the person who has those conversations, monitors their behaviour, reports back to an RN, tries to ensure that a resident is, you know, able to exercise choice, is, you know, provided with dignity and respect in the care that they get.


Thank you, Ms Hutchins.  That's the re-examination, your Honour.


JUSTICE ROSS:  Thank you for your evidence, Ms Hutchins.  You're excused.

<THE WITNESS WITHDREW                                                   [4.01 PM]




MR GIBIAN:  Is the Full Bench content to proceed with Mr Friend?  I'm not sure what Mr Ward's estimate of time is.


JUSTICE ROSS:  We're happy to keep going.  How long do you think you'll be, Mr Ward?  Sticking to your half-hour estimate or are you - - -


MR WARD:  It wasn't my estimate, Your Honour.  It was their estimate.  I will finish quickly.




MR GIBIAN:  I think the half hour was the estimate we were provided with by Mr Ward's people, at least.


JUSTICE ROSS:  Anyway, is Mr Friend available?


MR GIBIAN:  He is.


JUSTICE ROSS:  Here we are.


THE ASSOCIATE:  Mr Friend, can you see and hear me?


MR C FRIEND:  Yes, I can.


THE ASSOCIATE:  Can you please state your full name and work address?

***        LAUREN ELIZABETH BEAMER HUTCHINS                                                                           RXN MR GIBIAN


MR FRIEND:  Yes, my name is Christopher Louis Friend and my work address is level 2, 109 Pitt Street, Sydney.

<CHRISTOPHER LOUIS FRIEND, AFFIRMED                     [4.02 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                          [4.02 PM]




MR GIBIAN:  Thank you, Mr Friend.  Can you repeat your full name for the record?‑‑‑Yes, my name is Christopher Louis Friend.


You're an industrial bargaining officer under the Aged Care division for the HSU New South Wales/Act branch?‑‑‑Yes, that's correct.


You've made two statements, I think, for the purposes of these proceedings, the first being dated 1 April 2021.  I think it's document 124 in the digital court book at page 7591.  The text of the statement itself runs to 24 paragraphs over five pages.  Do you have a copy of that, Mr Friend?‑‑‑Yes, I do.


You've had an opportunity to read that statement?‑‑‑Yes, I have.


And is it true and correct to the best of your knowledge and recollection?‑‑‑Yes, it is.


I - to the extent necessary - indicate that the HSU relies upon that statement.  There is a further statement headed, 'Supplementary statement of Christopher Louis Friend' which I think is dated 20 October 2021, document 125 in the digital court book commencing at page 7620.  Do you also have a copy of that, Mr Friend?‑‑‑Yes, I do.


I understand there was a correction that needed to be made to paragraph 48 at the bottom of page 9?‑‑‑Yes, that's correct.


As I understand it, in the first sentence reads under the heading, 'Funding', reads:  'The primary obstacle to achieving higher rates of pay through enterprise bargaining in residential aged care, is' - I think that should be a reference to home care rather than residential aged care, is that correct?‑‑‑Yes, that's correct.

***        CHRISTOPHER LOUIS FRIEND                                                                                              XN MR GIBIAN


With that correction - if I could ask the Full Bench to note it - is that statement also true and correct to the best of your knowledge and recollection?‑‑‑Yes, it is.


The HSU also relies upon that statement as well.  I think Mr Ward will now ask you some questions?‑‑‑Thank you.

CROSS-EXAMINATION BY MR WARD                                 [4.04 PM]


MR WARD:  Can I just ask for indulgence from the Bench?  We weren't aware Mr Friend had made a second statement, if I could just have a couple of minutes?


JUSTICE ROSS:  Certainly.


MR WARD:  If the Commission pleases, I wasn't aware there was a second statement.  I'm not sure if we need to cross-examine Mr Friend on his second statement but I should just inform the Bench that I'm not in a position to (indistinct) with that today.  It might be that I don't need him back.  I'll do everything in my power to make sure that I don't need him back but I'm just not in a position to read it that quickly, I'm afraid.  I'm sorry.  I just wasn't aware he'd made one.  That being the case, Mr Friend, I don't we've ever met before.  My name is Nigel Ward.  I'm appearing in these proceedings for the employer parties.  I won't keep you very long, sir, I promise you.  I sent you a document earlier today.  Did you receive that?‑‑‑Yes, I did, Mr Ward.


It's a very long document, I'm sorry if you've printed it out.  I think it's 90 pages in length or thereabouts, is it that document?‑‑‑Yes.


It's got written on the front, 'The chosen' - this will sound strange - 'The chosen name, NSW NMA, an HSU New South Wales enterprise agreement 2017-2020'.  Do you have that in front of you?‑‑‑Yes, I do.


You say at paragraph 8 of your first statement:  'The HSU is covered by approximately 235 enterprise agreements'.  It's my understanding that the document I've shown you is a multi-employer agreement that you use, is that right?‑‑‑That's not quite correct.  It's not a multi-employer agreement under the terms of the Act.  It is what I would probably refer to as a template agreement or something similar that, you know, where there is similar terms and conditions in a number of enterprise agreements but they're not negotiated under the terms of the multi-employer agreement arrangement which exists in the Act.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


That's helpful.  Am I right that the templates - and this is the current template, isn't it, 2017 to 2020?‑‑‑That's correct, it hasn't been replaced yet.


Am I right in saying that you negotiated the template with ACSA?‑‑‑The HSU does negotiate this particular template with ACSA.


Is it you who then send the template out to members or is it ACSA who send it out to theirs?‑‑‑In the case of this template - and I should caution this by saying it was not me as the officer who was employed at the time, who negotiated this particular document.  But my understanding of the mechanics of how that operates is that after it's negotiated between the HSU and ACSA, ACSA's members, being the employers who will make the offer to the staff who are employed by those various employers, will then commence the bargaining process so they'll issue the notice of employee representational rights.  We will then communicate with members about what's on offer, which is really the terms of this document and we'll go through the process of each of the employers to discuss this document, discuss what the terms and conditions of this mean.  The employer will obviously do the same thing with their employees and then the vote will take place.


So it could be the case that this document is adopted in whole or it could be the case that it's adoptive of some small modifications?‑‑‑That's correct.  There are a number of examples of where this particular document was amended.  There were other examples where a group of employees voted this down, didn't accept that offer, and we went back to the bargaining table in those cases.


When you say in paragraph 8 the 235 enterprise agreements across New South Wales and the ACT, how many are, generally speaking, based on this template?‑‑‑So my recollection is that there were about 85 employers covered by this particular template.  There is another template which you'd no doubt be aware of covering the - another peak body, LASA, which would cover approximately 25 employers in the sector.  There are other employers in the sector who would not choose to take this document completely but may be led by it and would be influenced by it.  So I think it's probably fair to say that there's another 30-odd employers that would effectively use this as a base for their bargaining.


When they do bargain they bargain in the normal way of single employer bargains?‑‑‑Correct.


But they're using this template?‑‑‑Yes, and whether they use this as a complete template or would look at this for guidance on particular clauses, I think it's something that the industry often looks to as a bit of a benchmark for what is considered to be sort of acceptable, particularly in the not-for-profit sector, I should say.  As you'd be aware there is the, you know, split between - or there was, things have changed a little bit recently - a little bit of a division between the peak bodies and this was the template for the - it was primarily adopted by the not-for-profit employers in the aged care sector.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


You might know more than I do about their amalgamation, Mr Friend, so I probably won't ask it.  So when that 85/25/30 group adopts this template whole, or largely adopts it, do they adopt the recommended rates of pay that are in the template?‑‑‑Generally, yes.


And it's not a trick question, but do you often bargain the rates of pay?  Do you succeed in bargaining for rates of pay above the template, or is the template the norm?‑‑‑Do you mean at other employers or - - -?


Yes, at other employers?‑‑‑Yes.  At other employers there are certainly others that pay above the template.  I don't know what number that would be, but there are – I would say there are many employers that would bargain above the template.  I did some wage comparison some period of time ago for a bargaining – you know, during the course of bargaining in order to provide that sort of comparison and do that comparative analysis, and the ACSA template would generally be I think about sort of – you know, a little bit above the mid‑point.  So there'd be I reckon, off the top of my head, about 30 per cent of employers that are probably a bit better than this, a large cohort that would be at this level, and then some which are below.


When you talk about your averaging about enterprise agreements above the award, all of that's in that mix?‑‑‑In the analysis that I provided in my statement?


In the first statement, yes?‑‑‑Yes.  So in my first statement, the analysis that I provided was based on – it was a mix of employers deliberately for that purpose, to make sure it was a reasonable cross‑section of the industry.  It was really chosen based on the employers that are the largest employers, so that we were capturing the most number of people working in there.  So if you look at my statement, I think, you know, Uniting is one of the largest employers in NSW in the not‑for‑profit space; Anglicare, Southern Cross Care are all major employers, and then others in the for‑profit space, so people like Estia, Bupa are very major players from the for‑profit side of the sector.


I don't want to ask you an unfair question.  Are you familiar with the content of this document?‑‑‑I am.  Yes, I believe that I'm fairly familiar with it.  Yes.


You know what comes now?‑‑‑Yes, I do.


Can I ask you to go to page 56?‑‑‑Certainly.  Yes.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


I'm just interested in a few things, if I can?‑‑‑Sure.


The election of the 500 hours of work experience in the industry, are you able to explain how the 500 hours came about?‑‑‑As I said earlier, I wasn't the individual that negotiated this particular template.  Having said that, it's not an uncommon clause in other agreements that I've negotiated, and you know, I think this is just to closely reflect the provision in the Aged Care Award that has, you know, the first step of the Aged Care Award, the ACE level 1, is generally considered to be an entry level where somebody has no aged care experience.  I think in the Aged Care Award it's termed as the first three months of employment, whereas in this enterprise agreement it's simply expressed in a number of hours.  I think they work out – maths is not my strong suit – I think they work out to be roughly the same amount of time.


Okay?‑‑‑(Indistinct) employee.


Can I ask you to go to page 57?‑‑‑Yes.


This is a grade 2 employee.  Am I right in saying there's two levels of grade 2?‑‑‑Yes, there is.


Am I right in saying level 1 has more than 500 hours, and am I right in saying level 2 kicks in with two years' experience, is that right?‑‑‑Yes.  So there's obviously, as you can see, a number of qualifying steps for a level 2.


Yes?‑‑‑As being a period of time to have been employed and possessing the Certificate III in Individual Support.


Bear with me.  Where is the reference to Certificate III?‑‑‑It's on page 58, the next dot point down.


So a grade 3 with - - -?‑‑‑No, I'm sorry, I'm talking about the level 2.  There are a number of criteria to be considered a care service employee grade 2, level 2.  The employee must be a CSE level 2, have worked in the care 3 for a minimum of two years, and possess a Certificate III in Individual Support or a Certificate III in a similar effect.


I'm with you, and I'm just interested, do you understand why your union supported the minimum of two years?‑‑‑Look, I'm actually not familiar with the conversation that took place around that.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


Can I ask you to go back to your first statement?‑‑‑Sure.


Could I ask you go to paragraph 16?‑‑‑Mm‑hm.


You say here:


In the current environment, enterprise bargaining is largely an exercise of negotiating with employees to remain a few steps ahead of low award rate of pay.


When you use the word, 'low award rate of pay,' what are you comparing that to?‑‑‑For fair rates of pay for the work performed.


Your opinion of those?‑‑‑That's correct, but it's a low rate of pay for the work undertaken and - - -


Then you're - - -?‑‑‑Or we're able to fit.  That's right, in my opinion.  It's a rate of pay that's below what one should be remunerated for - - -


You're not making that in comparison to anything?‑‑‑Look, this statement – when I made that comment in the statement, it was not – no – in comparison to other awards that I might be familiar with.  It was really just my opinion of the rates of pay.


Can I take you to paragraph 22?‑‑‑Mm‑hm.


You say:


The primary obstacle to achieving high rates of pay through enterprise bargaining in residential aged care is that employers tell us they do not have the necessary funds to increase pay rates beyond the award rate of pay.


Then right at the end of that paragraph, you say:


Employers will blame a lack of government funding for the inability to agree to paying a higher wage rate.


Do you see that?‑‑‑Yes, I do.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


Is that just a bargaining tactic in your experience, or do you actually believe that's real?‑‑‑Look, I believe it's real, because employers will invariably tell us that they think the work performed by their employees should be paid more.  I'm yet to come across an employer in the sector who would say that they feel the employees they have are properly remunerated for the work.  So the conversation with employers is usually them saying that they wish they could pay more, but then explaining that there are a number of constraints on them, and the primary one being lack of government funding and the uncertainty that brings.


Can I ask you now to go back to paragraph 18?‑‑‑Sure.


You say in 18:


If the base rates in awards were lifted to accurately reflect the value of work performed, it would enable employers and employees to focus on enterprise bargaining on a range of other issues which better tailor agreements to their needs, such as –


and then you read on.  I'm just trying to understand your logic, if I can, Mr Friend.  So employers struggle to afford extra wages today, but you seem to be saying that if the award goes up that bargaining will improve even though they can afford less.  I'm just struggling to understand what you mean by that paragraph?‑‑‑Sure.  Sorry, what do you mean by 'struggling to afford less?'


Well, you've made it clear that you don't achieve great results in bargaining, haven't you?‑‑‑Yes, I've said that the wages we achieved - - -


Not the (indistinct) - - -?‑‑‑No.  I realise it's not a personal reflection, but the - - -


Okay, (indistinct).  You've said that the employers blame that on a lack of funding?‑‑‑Yes.


That they'd like to give you more, but they can't?‑‑‑That's right.


If the award rates go up they'll have less to give you?‑‑‑(Indistinct) - - -

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


So how will that improve bargaining?‑‑‑I wouldn't say they'd have less to give us.  I would say that the amount of time and energy that we spend arguing with employers about what is a reasonable base wage would effectively be neutralised, and would mean that we could spend more time constructively at the bargaining table looking at other things, rather than both of us sitting there wringing our hands about why we can't properly remunerate the people in the sector.


So they can't afford to give you too much in bargaining today, we've agreed on that, haven't we?‑‑‑I think it would mean bargaining would not have wage increases as such a crucial focus of bargaining.  You know, bargaining can obviously be about a number of different things.  Bargaining is not constrained to wage rates.  Bargaining might evolve in the sector to look at things more broadly like career structures and how we maintain and develop people in the sector; how do we retain employees?  So I think if we were sort of to take wages out of the equation as the principle focus of bargaining, and the principle motivator for our members, then it would - and the principle motivator largely for the employers to give their employees some sort of increase - I mean, employers often tell me they realise that employees come to the table wanting a significant increase because they're all working their guts out in their roles and they want to be able to deliver that.  If that was effectively neutralised because the award paid that, it would mean that bargaining would be able to look at other things, which I think would be a really useful use of our time.


If I can just make sure I understand what you just told me - - -?‑‑‑Sure.


Today, employers aren't in your mind very generous in bargaining because they say they can't afford to be.  If the award rate goes up you're saying bargaining might no longer be about rates of pay because that's dealt with in the award.  It might be about something else?‑‑‑That's correct.


I have no further - - -


JUSTICE ROSS:  I might just indicate that Deputy President Asbury has to go to the airport in a few minutes - - -


MR WARD:  I've finished.


JUSTICE ROSS:  - - - to get a flight to go to Sydney for the inspections tomorrow.


MR WARD:  I apologise, Your Honour.  I've finished.  I'll come back to the Bench as quickly as I can about Mr Friend with his second statement, if I could just reserve my position.  I apologise that we hadn't seen it earlier.  That's my cross-examination.

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD


JUSTICE ROSS:  Okay, thank you.  Mr Gibian, any re-examination?


MR GIBIAN:  There's no re-examination.  With respect to Mr Friend, our preference would be for him to be released and if Mr Ward does need to ask further questions, he can make an application for him to be recalled.  It's really for the purpose of Mr Friend providing us with instructions as an officer of the union in the meantime, if there's no difficulty with that.


MR WARD:  No objection with that whatsoever, Your Honour - none at all.


JUSTICE ROSS:  All right, thanks very much for your evidence, Mr Friend.  You're excused.

<THE WITNESS WITHDREW                                                   [4.24 PM]


JUSTICE ROSS:  That concludes the witnesses for today.  There will be the inspection in Sydney tomorrow.  By 4 pm we will receive the revised hearing list - or hearing schedule - for the next week or so.  Any final procedural matters?


MR GIBIAN:  I was just going to say, Your Honour, and maybe this is by way of apology to Deputy President Asbury - I was going to be present at the inspections in Sydney but it's wise that I not do so because there has been some COVID in my household in the last week or so and so I apologise and mean obviously no discourtesy in that respect.  There will be obviously other representatives present.


JUSTICE ROSS:  Okay, thank you very much.  We'll adjourn.

ADJOURNED UNTIL FRIDAY, 29 APRIL 2022                      [4.25 PM]

***        CHRISTOPHER LOUIS FRIEND                                                                                             XXN MR WARD



GERARD JOHN HAYES, AFFIRMED.................................................... PN518

EXAMINATION-IN-CHIEF BY MR GIBIAN......................................... PN518

CROSS-EXAMINATION BY MR WARD................................................ PN532

RE-EXAMINATION BY MR GIBIAN..................................................... PN579

THE WITNESS WITHDREW.................................................................... PN590


EXAMINATION-IN-CHIEF BY MR GIBIAN......................................... PN596

CROSS-EXAMINATION BY MR WARD................................................ PN617

RE-EXAMINATION BY MR GIBIAN..................................................... PN843

THE WITNESS WITHDREW.................................................................... PN858

CHRISTOPHER LOUIS FRIEND, AFFIRMED..................................... PN871

EXAMINATION-IN-CHIEF BY MR GIBIAN......................................... PN871

CROSS-EXAMINATION BY MR WARD................................................ PN882

THE WITNESS WITHDREW.................................................................... PN950