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Fair Work Act 2009                                                    






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


AM2020/99 – Aged Care Award 2010 – Application by Ellis & Castieau and Others


AM2021/63 – Nurses Award 2020 – Application by  Australian Nursing and Midwifery Federation-Victorian Branch


AM2021/65 – Social, Community, Home Care and Disability Services Industry Award 2010 – Application by Health Services Union




9.30 AM, MONDAY, 2 MAY 2022


Continued from 29/04/2022



JUSTICE ROSS:  Good morning.  I think we have Dr Charlesworth first for cross-examination.  Any preliminary matters before we get underway?


MR McKENNA:  If the Full Bench pleases, could I just raise two administrative matters with respect to witnesses.  The first of those is a matter that I raised before O'Neill C on Friday but the Full Bench wouldn't be aware of the fact that Mr Bonner is unwell.  He unfortunately has COVID.  He's scheduled for this afternoon.




MR McKENNA:  We'll work with the other parties to find a suitable alternate time for him.


JUSTICE ROSS:  No, that's fine.  Commissioner O'Neill let us know.


MR McKENNA:  Thank you, your Honour.  The second is with respect to Hazel Boucher who has been classified as a union lay witness for the ANMF.  She is an employee lay witness and again, we'll worth with the other parties to identify a suitable time.  She will not be called tomorrow.


JUSTICE ROSS:  Okay.  Thank you very much.


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


JUSTICE ROSS:  You're on mute, Dr Charlesworth.


DR CHARLESWORTH:  Yes, story of my life.  Yes, yes, I can.


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


DR CHARLESWORTH:  Yes, Sarah Catherine Mary Charlesworth, RMIT University, 124 Latrobe Street, Melbourne.


EXAMINATION-IN-CHIEF BY MR GIBIAN                                    [9.33 AM]

***        SARA CATHERINE MARY CHARLESWORTH                                                                              XN MR GIBIAN


MR GIBIAN:  Thank you.  Firstly, Professor Charlesworth, can you hear me?‑‑‑Yes, I can.


Excellent.  I think you've just given your full  name for the record and you're a professor of Gender, Work and Regulation in the School of Management at RMIT?‑‑‑That's correct.


You've made two statements for the purpose of these proceedings, both annexing reports.  The first of those is dated 31 March 2021 I think attaching a report of the same date.  You have a copy of that with you, I think, do you?‑‑‑I do, yes.


Well, we seek to have that as part of the evidence in the proceedings.  For the members of the Full Bench it's document 109 in the digital court book, commencing at page 298.  Or the statement is at 2984 and the report commences at the following page, 2985.  The second report, Dr Charlesworth, was dated 22 October 2021, also annexing a report of that date.  You have a copy of that with you also?‑‑‑I do.


We also seek to have that as part of the evidence in the proceedings.  It is document 110 in the digital court book, commencing at page 3055, or the statement at 3055 and the report on the following page at 3056.  If it please the Commission.  Dr Charlesworth, I think on the screen in front of you, one of the screens should have Mr Ward in it who, as I understand it, now proposes to ask you some questions?‑‑‑Good, yes, I can see him.  Thank you.


JUSTICE ROSS:  Mr Ward.  You're on mute, Mr Ward, but while you are, Mr Gibian, look, I don't - I just want to avoid any point being taken about this later but you haven't sworn the witness up to the statement.


MR GIBIAN:  Okay.  I'll do that then.  I wasn't sure that was necessary.  Dr Charlesworth, have you had the opportunity to read the two statements and the reports that you prepared, both of 31 March and 22 October 2021?‑‑‑Yes, I have.


Are they true and correct to the best of your knowledge and recollection, and do they represent your opinions?‑‑‑They do, although I would note that the earlier one concerning the aged care was written in 2020, so it's - I didn't at that stage have the opportunity to having had a look at the data that was produced at the end of last year by the federal government, in respect of their aged care surveyance census.  So, that data's not included in that.

***        SARA CATHERINE MARY CHARLESWORTH                                                                              XN MR GIBIAN


In terms of that data, or that survey, are you able to tell us just the title of that report?‑‑‑It's called - I don't actually have it in front of me, I'm afraid.  It's called the Aged Care Census and Survey.  It was, in my view, quite inadequate.  A survey that just surveyed providers at the end of last year as to various aspects of workforce in the aged care sector, and it surveyed providers grouped in the particular programs.  So, residential aged care, then home care package providers and then providers that provide services under the commonwealth home support program.  And there are estimates made of the number of workers in the sector and indeed of the qualifications that they hold, although as I note in my report in reference to the Social Community Homecare and Disability Services Award of 22 October at the end of last - end of last year, that data didn't survey any workers.  So, the extent of its reliability is I would argue questionable.


Are you able to just explain briefly what the basis is of your view as to the satisfactory nature or otherwise of the data from the census?‑‑‑Well, look, to be brief, until - and I have just made a submission to the government's aged care data consultation about the parlous state of data on the aged care workforce.  Until 2016 we relied on four yearly surveys, independent surveys, conducted by then the National Institute at Flinders University, which both surveyed facilities and through facilities direct employees, and it provided useful data in terms of characteristics of both those workers in terms of their sociodemographics, importantly also their training that they might have received, but also factors such as (audio malfunction) overseas and what I think is absolutely crucial the hours that they worked.  Typically aged care workers in both sectors work short part-time hours, and the survey that was conducted last year simply asked providers for their starter in worker sociodemographics.


And, sorry, you mentioned you made a submission recently through - - -?‑‑‑Yes.  The aged care data consultation.  I can find my - - -


JUSTICE ROSS:  Just a moment.  Mr Gibian, this isn't really - I wanted you to swear the witness up, not to expand on the evidence she's already put in.  If you want to file further documents you can do that, but it's not an appropriate course for one you're just adopting.


MR GIBIAN:  I understand, your Honour.  The witness just mentioned a particular matter which I thought given that she had raised it maybe of interest to the Full Bench, and I wasn't proposing to take it further than what she said.


JUSTICE ROSS:  All right.  Mr Ward?


MR WARD:  Thank you, your Honour.

***        SARA CATHERINE MARY CHARLESWORTH                                                                              XN MR GIBIAN

CROSS-EXAMINATION BY MR WARD                                           [9.40 AM]


Is it professor or doctor?‑‑‑Professor.


Professor.  Thank you.  I didn't want to get off on the wrong foot straight away.  I will try not to keep you very long, Professor.  You work as I understand it in the School of Management.  Can you help me out, how would you describe your academic discipline, are you an economist, how would you describe yourself?‑‑‑I'm a sociolegal scholar.  I did my PhD in law and legal studies at Latrobe University, completing in 2001.  So I'm essentially concerned with how regulation, regulation and policy works on the ground.  So my broad focus is gender inequality at work, and I've looked at various manifestations of gender inequality over the years, but the last six, seven years I've focused pretty exclusively on aged care.


So part sociology, part legal?‑‑‑Yes.


Yes, okay.  I think you say in your statement that you feel confident talking about personal care workers, but you don't feel confident straying too far out of that?‑‑‑If we're talking about residential aged care, yes.


I would be correct though when you say personal care workers you would mean personal care workers in both an aged care and a home setting as well?‑‑‑Yes, although I tend as most people do to refer to home care workers in home care to distinguish them, but, yes, they're essentially both sets of workers of personal care workers.  That's not to say that I haven't observed other workers.  I've spent a lot of time in aged care facilities, so I've observed kitchen staff, administrative staff going about their work.  That's the kind of (indistinct) work I do in aged care, but my main focus has been on those frontline workers that are delivering the direct care to residents and clients.


Thank you, Professor.  I'm going to sort of try and get to the nub of this if I can very quickly, and if I describe things slightly brutally please give me some tolerance, Professor, if you could.  As I understand your general thesis it seems to have these elements, and I will just go through them one by one and see if we have some accord.  The work of personal care workers - sorry, is there a reason why one of the witnesses for later on is being admitted?


MS JUNOR:  I shouldn't be able to - I shouldn't be here?

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


MR WARD:  No.  I think if Dr Junor leaves the hearing and she will be contacted at the appropriate time to invite her to enter if that suits the Full Bench.


JUSTICE ROSS:  Yes, thank you.


MR WARD:  My apologies, Professor, sorry.  As I understand the thesis it has these elements.  The work of personal care workers is undervalued because it's seen as - I think it's a phrase you use - 'women's work'.  That is characterised by work historically done in the home or family setting - it's just been unpaid - and that society doesn't place an economic value on it.  Is that the first principal proposition that you advance?‑‑‑Broadly, yes, because - yes, I think that generally the work has been undervalued because it is seen as not requiring particular skills, things that women do for free in the home, and therefore if you're a woman then you know how to care for older people.


Just bear with me, I'm trying to understand the boundaries of that if I can.  I will just wait - - -


THE WITNESS:  Because this keeps popping up - - -


MR WARD:  It's popping up for me to.  Is there some reason - - -


JUSTICE ROSS:  Just a moment, Professor Charlesworth.  Can you get onto your witness and explain to her not to do what she's doing.


MR GIBIAN:  That's underway.




MR WARD:  Sorry, Professor, I apologise?‑‑‑No, that's fine.


Can I just understand this.  Is it that there is no value placed by society on all things we might have done in the home?  I will give you an example.  Bear with me, I will give you an example.  In the suburbs I grow up in the men mow the lawn.  My father mowed the lawn, I mow the lawn, my son mows the lawn.  Is it the domestic nature that there's no value placed on, or is it simply that it's women doing it?‑‑‑It's - as you summarised at the beginning it's seen as women's responsibility, women's work, and that they are born knowing how to do it, so therefore it's not skilled.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


So the fact that some work in the home might be seen as men's work that doesn't come into the equation of it not being valued?‑‑‑No.  The focus here is on aged care work, and my aged care work has been historically undervalued, and I would suggest that that is not in dispute.  Indeed judicial notice might be taken of that very fact.  It is to do with the kind of caring work that is seen as, you know, doing - you know, I have a 97 year old mother, my responsibilities in terms of intimate body work I may do as a daughter, but when it's in a residential aged care setting or a home care setting we are expecting people who are employed to do that work to do that work and to know how to do it and to bring a set of skills, knowledge and experience and judgment as to how they do that work.


JUSTICE ROSS:  Professor Charlesworth, can I just clarify, is that what you're going to in your first report at paragraphs 42 to 46?‑‑‑Sorry, just let me call this up, I've got it on the screen.  Yes, it's as I say in para 43 it's viewed as quintessentially women's work and therefore of little economic value.  This work also has various other features that concentrate that view in that the work is undertaken almost exclusively by women.  That proportion particularly at the frontline remains very high.  The data tells us high 80 per cent, around about 90 per cent of frontline workers are women, and it's, as I go on to say, it's seen as natural and therefore unskilled, which leads - given when this is conducted as work - to an undervaluation of it as work.


Thank you.  It's the caring nature of it, it's the fact that historically it's been underpaid in a domestic setting, and society has carried that forward in how it looks at this work in a paid setting?‑‑‑No, I'm actually not drawing that connection between unpaid domestic work.


Yes?‑‑‑What I'm saying is the kind of work that we assume is done, and actually I personally don't have the skills that many personal care workers do to do the kind of work they do - I can't change, for example, catheters; I can't do that kind of work.  I don't have any skills in end-of-life care.  I actually don't know how to manage residents or clients with dementia.


I'll put it to you a slightly different way then:  is it the fact that society sees this work as unskilled that they place limited value on it?‑‑‑Well, I think I'd prefer to - certainly post the royal commission I would say that society has got a far clearer idea of the nature of the work that's preformed but I would say industrially it's taken us a long while to recognise this work as fully work.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


Okay, right, that's helpful.  You also go on to say then that part of the challenge is this:  I think you say that the governments have held that view which leads to underfunding?‑‑‑Yes, I think there has been this view that it isn't particularly skilled but way back in 2011 when the productivity commission looked at aged care, it did say that the government formula for funding bore absolutely no relationship to the care preformed, even the quantum or indeed the nature of that work so the under-funding has got a long history but also, to be quite frank, there's an absolute lack of transparency about that funding.  We don't know today how much of that funding is actually spent on wages, for example.


Can I just take you to paragraph 40?‑‑‑Yes.


You sum that up neatly at the beginning of paragraph 40?‑‑‑Yes.


You say:  'The funding market residential aged care has created through the contracting out of service by the federal government which sets the price for the service tendered for'?‑‑‑Yes.


You seem to draw on that proposition that because the government hold this view about it not being work of value because they hold the purse strings for setting the price, that in many ways the underfunding is a restraint on higher wages.  Is that right?‑‑‑It's a built-in restraint in that it was something that was seen as an indication of gendered undervaluation in a 2009 decision of the Queensland Industrial Relations Commission, that government underfunding itself is based on a lack of recognition of this work as fully work and as work of value.


Bear with me when I try and describe this - I'm just trying to get my head around - is it undervalued by comparison to something?‑‑‑The concept of gendered undervaluation is precisely there because it's not asking for a male comparator.  It's not saying, 'relative to other jobs'.  It's looking at the actual skills that are required and involved and on the basis and the knowledge, the judgment, the discretion and on the basis of that saying it's undervalued.


So it's intrinsically undervalued rather than comparatively undervalued?‑‑‑It is, although back in the mid-1990s I did an interesting comparison between the work of home care workers employed by local government and gardening assistants and surprise surprise, the gardening assistants were paid more than the home care workers.  They were tending plants.  The home care workers were tending frail older people.  The gardening workers got paid wet weather allowances, dirt allowances.  Home care workers deal with bodily fluids.  They're not paid dirt allowances or back in those days when there were such things as dirt allowances and things like that.  So that was some work I undertook for the then pay equity unit within the then federal department of industrial relations.  So that was a comparison which highlighted that undervaluation.  But in Australia and particularly since the pay equity inquiries in both New South Wales and Queensland, late 90s, early 2000s, there is now I think a much better understanding of gendered undervaluation as something of itself where you don't require this male comparator to establish its fact.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


The example you just gave about the gardeners, was that comparing minimum award rates to minimum award rates?‑‑‑It was comparing rates in the then local government award because local government employees and indeed home care workers as paid under a different award and typically they - back in those days before enterprise bargaining really took off they were minimum rates awards.


What jurisdiction was it?‑‑‑It was a federal award in Victoria, yes.


You said there the comparisons can often highlight undervaluation?‑‑‑They kind of tell you something might be wrong.  They don't tell you exactly what is wrong.  So yes, they can on occasions be useful but that's why there has been this move, particularly in care work, to really consider this concept of gendered undervaluation.  The International Labour Organisation has this nice expression:  it's work like no other, but it should be treated like work like all other.  So the nature of the work, the intensive work that is dependent on a relationship between a worker, a resident or a client, is really quite distinctive work and it's very hard to think of comparisons in male-dominated industries if you should wish to do that.


So are you saying it would be - - -?‑‑‑Sorry, I can't see you because people keep trying to come into the hearing and it flashes across your face, Mr Ward.


Some would say that's a good thing.  Are you saying that any comparisons are unhelpful?‑‑‑These days, yes - I think we've actually got to look at the work performed and make an assessment of the value of that work and I think that - I don't think, as far as I know, that there are any comparable areas of work that might be male-dominated that it would be useful to compare.


So just if I can ask that - you don't think any form of comparison with any other work is of assistance?‑‑‑Sorry, you're once again blocked out by someone trying to come in.  No, in this particular case and in considering the value of the work that's undertaken in frontline aged-care work, be it home care or residential aged-care work, I think we need to look at the work that is done and issues such as the increased acuity, the increased complexity of the people who are in receipt of publicly-funded aged care is far more germane to issues of work value than a comparison, an artificial comparison with a male occupation.


Let me hold you on that theme for a minute:  can you go to paragraph 62?‑‑‑Yes.


You say there:  'In my view an important lesson for the Australian context is that to address low wages in residential aged care, increasing wage rates needs to be accompanied by a comprehensive skill classification structure tied to training, full stop?‑‑‑Mm‑hm.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


Could I just focus on that for a minute?  I assume – I'm just going to stay with the personal care worker – I assume you have reasonable familiarity with the Certificate III in Individual Support that personal care workers do?‑‑‑Yes.


Just to be fair to you, you understand that that is a program that involves 120 hours of practical on‑the‑job application competency?‑‑‑Well, yes, and demonstration of that competency.


That's correct, yes.  My understanding is that there's 13 educational units you have to do for that; seven are core and six are electives.  Is that broadly – you have that understanding?‑‑‑I don't have the – I don't have direct knowledge of the number of units that are core and elective.


When you say comprehensive skill classification structure, I want to put a couple of things to you to see if I can understand what you mean by that.  I've sent you some documents.  Did you receive them?‑‑‑I did, yes, but I haven't read them.  I literally got them - - -


That's fine, and I'll be very fair to you, Professor, about this.  One document is the broad outline of what's involved in the Certificate III.  It's the one that's headed, CHC33015, Certificate III in Individual Support?‑‑‑Yes.


And just to be fair to you, if you could get that up?‑‑‑Yes, I've got that up.


If you turn to page 3 of 8, just to give you an indication of this?‑‑‑Yes.


See at the top it says that you've got to have 13 units, seven core units, six elective?‑‑‑Mm‑hm.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


And if you go down a couple of paragraphs, if you want to specialise in Certificate III in Individual Support (Ageing), it says you must do all remaining – 'all remaining electives must be selected from Group B.'  I'll come to that.  You'll see at the bottom of that page the core electives are set out:  Provide individualised supports; Support independence and wellbeing; Communicate and work in health or community services; Work with diverse people; Work legally and ethically; Recognise healthy body systems; Follow safe work practice (indistinct) client care.  And then over the page you have the ageing electives:  Facilitate the empowerment of older people; Provide support to living with dementia; Meet personal support needs; Comply with infection prevention and control policies and procedures.  I then sent you another document which is, if you look at the ones I've just read out, it refers there to the elective CHCAGE005, 'Provide support to people living with dementia.'  That's an actual unit, and I've sent you that?‑‑‑Mm‑hm.


I want to take you to that one to see if this is what you mean.  If you could open that document up?  On page 2 of 4, as it's described in the document, you'll see a heading, 'Knowledge evidence'?‑‑‑Sorry, I'm on page 2.  I don't see 'Knowledge and evidence.'  I see, 'Application' – its heading, 'Provide support to people living dementia; 'Modification history', 'Application', Elements performance criteria.'  Am I on the right page?


No, we'll do our best here, Professor.  Do you have the cover page that says, 'Assessment requirements for CHCAGE005, Provide support to people living with dementia'?‑‑‑I don't, no.  On what page are the assessment requirements?


No, that's just the actual cover page.  That's the front of the document?‑‑‑No, the front of the document says, 'CHCAGE005 Provide support to people living with dementia.'


MR GIBIAN:  I also received that document that Professor Charlesworth has described.


MR WARD:  Okay.  Professor, just bear with me.  I need to remedy this?‑‑‑Okay.  Mr Ward, could I just take an opportunity to perhaps tell you what I meant by that sentence?


I'd rather you wait and let me ask my question, if that's all right?‑‑‑Yes, sure.


I'll do it without the document.  Let me just – I'll read it to you, and I'll just see if this is what you mean.  The document actually says – for the module says this:


The candidate must be able to demonstrate essential knowledge required to effectively complete tasks outlined in elements of the performance criteria for this unit.  This includes knowledge of –


And then it goes on and starts to provide a list –


Up-to-date research on dementia and the different manifestations of dementia, including Alzheimer's disease, vascular dementia or multi‑infarct dementia, Lewy body, excessive alcohol intake or Korsakoff syndrome.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


It goes on and writes an even longer list.  It then talks about needing to demonstrate an understanding (indistinct) dementia.  When you say you should have a more developed classification structure, is it that you want that type of detail about the competency that they're holding actually set out in the award?‑‑‑What I mean by a more developed classification structure is at the moment we've got what you could describe as a really compressed classification structure, absolutely minute relativities in terms of wages between them.  Inadequate classification descriptors, in a classification descriptor I don't think one would expect to find the kind of detail that you have read out, but you would have competency to deal with people with dementia, and to be able to manage agitation.  I mean, I've actually witnessed this in dementia units across Australia and seen people who have off their own bat gone and down a Certificate IV in Dementia, not paid for by their employer, not paid a cent more for doing this, who are highly skilled in being able to de‑escalate a situation, particularly what's known as 'sundowning.'  So towards the end of the day when one person might get agitated, which will then set off everyone in a particular room, really moving very quickly, take that person out, maybe walk them around, just talk to them very, very quietly, help calm them down, which is incredibly important.  Now, that comes both from the acquisition of competencies.  It also comes from considerable experience and understanding that you don't – it's not one size fits all.  Different people have different forms of dementia.  You may have the same form of dementia, but how it manifests for a particular individual is very different, and the work in that de‑escalation and managing is highly skilled.  When you see workers do that, they've got to take time off the floor to do that, and meanwhile there's not enough people to do - you know, getting people dressed or ready for bed or ready for a meal, so - - -


You'd agree with me, wouldn't you, that the competency to de‑escalate in those situations is a competency that I am grounded in when I do my Certificate III?‑‑‑If you've done that with dementia, but workers themselves who have – so, a lot of people in aged care have worked there for a long time, so the content of what was in their Certificate III may be very different.  Australia went down the route of privatising, you know, the training, the Cert III, the Cert IV training, which if you talk to providers, there were some that they said were absolutely inadequate training, and they had to then spend a lot of time with workers training them on the job in terms of being able to do these things.  But the documents you've provided me were generated in April this year, so these new sets of competencies, so some people working within aged care may not have done this formal course.  Typically they were not really doing much to do in terms of detail with dementia, and that's why people have opted to do Certificate IV, which is specialised - - -


Bear with me, because I want to come to that.  In the modern award world, we normally presume that you've either got a Certificate III or you have sufficient experience to be equivalent to the Certificate III?‑‑‑Yes.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


You'd agree with that?‑‑‑I would agree with that.


What I'm asking you is this, and I agree this is - I think the HSU the other day described the Certificate III today as modern, contemporary and robust.  It might be very different to a Certificate III in 2000, I accept that as a proposition?‑‑‑Mm‑hm.


When you say you want a comprehensive skill classification structure, you accept don't you that a large number of the competences that are being exercised emanate from the Certificate III program, inclusive of the 120 hours practical demonstration?‑‑‑Yes, and also skills and experience.  The second part - - -


Can I hang onto experience for a minute because I'm really interested in experience.


MR GIBIAN:  The witness should be allowed to finish her answer to the question.


THE WITNESS:  Do I go on or - - -


JUSTICE ROSS:  No, no, just deal with the answers you've got.  You can deal with it in re-examination, but Mr Ward, just be aware, if you don't let the witness finish, it'll be dealt with in re-examination and you'll have no opportunity to say anything about it then.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


MR WARD:  That's fine.  I assume it's going to be dealt with in re-examination anyway.  You talked about experience.  In your professional opinion as an academic looking at this, at what point does somebody become fully competent on the floor in terms of being a personal care worker?‑‑‑That is going to depend on a number of factors.  Something that people don't think much about is you need time in which to exercise your skills.  So, you can have - you can have completed this particular unit here and if you - the way that work is organised at the particular facility where you're working or the home care service where you're working, and you're not given time, for example, to do that de-escalation, then you don't get to exercise your skill.  A lot of it depends on the degree of supervision and support that you get if you're in residential aged care that you might get from an enrolled nurse, although we've lost them from the system.  A registered nurse, we've also lost them from the system.  But in terms of that additional on the job training is really, really important because you are dealing with real people, diverse people, different people and you need to experience using these competencies in a range of situations.  It's not like learning to make a widget and then you just get better and better at making the widget.  We're dealing with real people, and these real people often have real relatives, so you often see workers having to negotiate between the individual resident and client and the expectations of family members.  So, it's quite complex work, but the better providers, and I have typically had access to the better providers, try and provide that on the job training and that opportunity for people to learn and to exercise their skills in a diverse range of areas.  So, as you'd be aware a lot of large aged care providers now have a closed dementia unit and typically workers who have developed skills and are able to demonstrate that they can work well with a variety of people with dementia will be placed in those units, rather than in the general, you know, say aged care facility.


Are you suggesting that 120 hours practical in my Certificate III is no sufficient to be competent?‑‑‑Well, it gives you a basis but you've got to be able to demonstrate your competence and in aged care you have to demonstrate your competence every day with real people, and as I said these real people are very, very different.


So, hours on the job is more relevant than just the effluxion of time.  So, the fact that I might be on - I might be Cert III plus a year for me might be very different to what Cert III plus a year means for somebody else, depending on the number of hours I've actually been on the job?‑‑‑Not just hours, the amount of time that your employer has allowed you to exercise your skills is also a crucial factor.


Thank you for that.  Thank you for that.  You talked a minute ago about Cert IVs.  Is it your view that to work in a specialised dementia unit I need a Cert IV?‑‑‑If I could be - what I was referring to earlier was the system that they now have in New Zealand where they pin their classification structure to the attainment certificates.  So, you start with nothing, then you get Certificate II, Certificate III, Certificate IV, and there are meaning relativities in terms of pay between those.  And when you have Certificate IV then you are able to work and are given work typically a lot in dementia care, so that the training is very important but as I said so is the opportunity to exercise your skills and the experience of working with a diverse set of clients.  And indeed the supervision and support that you might get from your immediate manager in terms of doing that.


In New Zealand, do they pin things to the certificate process because the certificate process is free from gender bias?‑‑‑No, it's a set of recognised stepping stone of the competencies, and it was the New Zealand decision in their pay equity settlement quite a number of years ago to come up with a new classification structure.  New Zealand doesn't have the advantage of Australia with an award system, so because there's no award system per se people are just paid the minimum wage, they provided an opportunity, a substantial opportunity for enhanced wages but those wages are locked to stepping up from, you know, an initiative process from Certificate II, Certificate III, Certificate IV.  And Certificate IV is sitting at the highest level of direct care workers.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


Is that a construct you favour personally?‑‑‑Personally, I think that there are some - if it were - if it were fully funded and New Zealand while better than Australia hasn't fully funded aged care.  So, they do as we do in Victoria in terms of the school system.  We fund on an average - an average kind of set of skills.  So you assume that you have, you know, a certain proportion of Cert II, Cert III, Cert IV, but because the New Zealand system rewards workers when they get to Cert IV, you've got an increasing number of works sitting at Cert IV, which means that that particular agency that's got a lot of people sitting at Cert IV isn't properly funded.  It's not funded on the basis of having 100 per cent of its workers at Cert IV.  The assumption is made that they'll have, you know, evenly spread between Cert II, Cert III, Cert IV.  So, they are underfunded which has a perverse impact, which has been found in several evaluations of workers once they get to Cert IV get fewer hours of work because they're more expensive to employ.


Thank you.  That wasn't quite what I asked.  Do you favour a classification structure being built around the certificate qualifications?‑‑‑I think the certificate - yes, I think the certificate qualifications are an important building block.  They are not the only element one would look at in a revitalised - - -


I wasn't suggesting that, no.  But you see it as an important building block?‑‑‑Important building block, certainly.


Can I take you to paragraph 58 of your statement?‑‑‑Fifty-eight, yes.


You say in paragraph 58 'decent pay'.  Can you tell me what decent pay is?‑‑‑Decent pay is pay that recognises the skill of the work that you're doing.  Decent pay is sitting above the - you would know that most aged care workers, their wages are, you know, two, maximum $3 above the national minimum wage.  That, in my view, is an unacceptable form of remuneration for the work that's done.  And study after study, including my own work, has shown that the conditions of work create the conditions of care.  Now, in Australia, as in most developed economies, we expect and demand good quality care for older people.  We are all happy to demand that .  We haven't been happy, as a society, or indeed as a government, to ensure that there's the pay and working conditions that will provide that.  And one of the most - one of the strongest reasons is that we need to keep people in the system, and if you have a turnover you lose continuity of care and continuity of care is central to good person centred care, relationship based care, which is also something that we have as a country officially embraced.

***        SARA CATHERINE MARY CHARLESWORTH                                                                             XXN MR WARD


So, you don't have a number in mind when you say decent pay.  It's just more than they get today?‑‑‑Yes, but I would - I think that the New Zealand system where they went up from, you know, $15 minimum wage to, you know, sitting at about - going in at 23 and then going up to just under $30 an hour by the time you hit Certificate IV is a good start.  British Columbia where I've just been as part of COVID have decided the government has levelled up wages to the public sector wages paid to people in the nursing homes that are run by the British Columbia Provincial Government.  So, yes, decent pay is living pay.  It's made up both of the base rate.  It's also made up of sufficient hours.  Australia - - -


You will have to help me, I don't know.  Does New Zealand have a set of awards like we do setting minimum rates?‑‑‑No.


No further questions.  Thank you, Professor?‑‑‑Thank you, Mr Ward.


JUSTICE ROSS:  Re-examination, Mr Gibian?

RE-EXAMINATION BY MR GIBIAN                                               [10.20 AM]


MR GIBIAN:  Thank you.  Professor Charlesworth, can you hear me - - -


DEPUTY PRESIDENT ASBURY:  Sorry, Judge, before the re-examination could I just ask a question of Dr Charlesworth?


JUSTICE ROSS:  Certainly.


DEPUTY PRESIDENT ASBURY:  Thank you.  Dr Charlesworth, it's Deputy President Asbury, how are you?‑‑‑Good.  How are you?


I just wanted to ask you about paragraph 56 of your first statement which is on page 2997 of the hearing book?‑‑‑Yes.

***        SARA CATHERINE MARY CHARLESWORTH                                                                            RXN MR GIBIAN


That comment that you make at the end of the paragraph about the lack of sufficient time to practice skills that personal care workers have, could you just tell me your view about whether the lack of time to practice the skills has fed into the undervaluation that you give evidence about?‑‑‑It's actually a very good question.  To the extent to which there is a view, and also as I had at the beginning of that paragraph expressed by the Royal Commission that we've got an under-resourced and under-skilled workforce, my point in responding to that is that it's simplistic to say this workforce is under-skilled.  As I've set out here we've got - a vast majority of workers in the system have got Certificate III, so we know that they've got some level of competencies, formal competencies, but one has to be able to have time to practice skills, and so in that example I gave before of someone, you know, coming off the floor and working to de-escalate an agitated resident, meant her two colleagues were left with 20 residents trying to feed them, not all of them who were able to feed themselves, so that placed extraordinary stress on them.  She made that decision to do it because she realised that otherwise everyone was going to be - there'd be, you know, a lot of agitation and a lot of distressed residents which would take a long time to calm things down.  So you see this fairly constantly.  I've shadowed workers around say in residential aged care, also home care.  They are running.  They are running from person to person, and somebody says, 'Look, can you just speak to me.  You know, my son's been in, I'm really upset.'  And they'll say, 'I'm really sorry, I've got another six people to get dressed, you know, bath' - et cetera - and they can't go back to that person.  Now, I get concerned when you talk to workers, it leaves them in a state of moral distress.  They feel that they can't provide the kind of care that they know is needed.  They don't have the time to sit and engage with somebody who's feeling miserable because, you know, something upsetting has happened to them.  So time is absolutely crucial to the exercise of skills.  We don't expect a fitter and turner to produce the (indistinct) or whatever they're doing, you know, in five seconds.  We allow a certain amount of time.  We know it takes X minutes, X hours to do something, and that time is allowed.  It doesn't happen in aged care.


Do you think that that's a function of payment, or is it a function of the nature of the work and it not being recognised?‑‑‑It's a function of chronic understaffing, one, and it is - and that contributes to the nature of the work that's being done and a degree of responsibility that workers have to take on to manage those situations.


Thank you.


JUSTICE ROSS:  Anything arising, Mr Ward?  Re-examination?

***        SARA CATHERINE MARY CHARLESWORTH                                                                            RXN MR GIBIAN


MR GIBIAN:  Thank you.  Professor Charlesworth, I think there were just three matters.  The first was you were asked some questions by reference to paragraph 62 of your first statement, and particularly the opinion that you express in the first sentence of that paragraph, 'That increasing (indistinct) rates needs to be accompanied by a comprehensive skill classification structure tied to training', and I think you offered to provide an explanation as to what you meant by that sentence.  I'm not sure whether there was more you wanted to add to the subsequent evidence you gave or whether there was a greater explanation you wished to provide?‑‑‑No.  It was drawn out in discussion with Mr Ward.  I was in fact referring to the New Zealand example and saying that that formal training would form a useful basis for a classification structure.  The other important component though is who you're working with, and I note that in the former New South Wales Home Care Services Award and indeed in local government enterprise agreements in Victoria in particular there are distinctions made about the kind of work that you can do and with whom you are doing it.  So if you are working with someone for example with Parkinson's Disease or someone with, you know, uncontrolled body movements, what might be a simple shower becomes far more difficult and more complex than it might be with somebody who is much more physically able, even if they have dementia.  So that it's part, but it's not everything.


Yes, thank you.  You were then asked some questions by reference to the Certificate III qualification in individual support, and it was suggested to you that the competencies required to undertake personal care work reflect those that are dealt with or covered in the Certificate III qualification, and in answer to that question I think you said they provide a ground or a basis, or a grounding, but then you started to say and the skills and experience.  Was there more you wanted to add in relation to that question?‑‑‑No, just to - for example something that I don't see there, and I've only looked at it very quickly, aged care, one of the most common things that happens, clients and residents die.  Workers are involved in the provision of end of life care.  They also then have to if you like after a client or resident dies need to pick themselves up and often they are simply not supported.  There is inadequate supervision and support for the nature of the work that's done, and I think the end of life care is particularly tough for workers, because the way in which you provide good quality care is through developing and maintaining a relationship with an older person, and to be able to manage that, to be able to regulate your own emotions and your own degree of involvement requires skill, and so I would, you know, if I'm looking at what's sitting here I would like to see something about end of life care.  But it also requires time and support.  So I've spoken to aged care workers who on their own time have gone and sat and held the hand of someone who's dying because there's no family members available and everyone's too busy, and they've simply stayed back on their own time to do that.


Yes, thank you.  You were shown two documents in relation to the Certificate III qualification, the first being - it's CHC33015, the Certificate III in individual support, and I think there was some confusion about the documents, but you were then shown another document related to the unit, 'Provide support to people living with dementia'?‑‑‑Yes.


I just wanted to ask, are you - which I think was identified to you as one of the elective units within the Certificate III - - -?‑‑‑Mm-hm.


Do you have knowledge as to whether the extent - whether and the extent to which persons with a Certificate III would have either had the opportunity or completed that particular unit on - in providing support to people living with dementia as part of a Certificate III qualification?‑‑‑No, I don't, and as I responded to Mr Ward, it would depend on the time when people acquired their Certificate III and whether or not they acquired it, you know, through one of the fly-by-night operators that seemed to people the vocational education area for a time here in Australia.

***        SARA CATHERINE MARY CHARLESWORTH                                                                            RXN MR GIBIAN


The last matter was you were asked some questions about the concept or a reference you made in your first report to decent pay and I think you referred to two examples:  one as the equal pay settlement in New Zealand and the second as to the recent changes that had been made in British Columbia in Canada?‑‑‑Yes.


I think in answer to - in relation to the example in British Columbia, you referred to the pay of care workers having been - I think you used the expression, 'levelled up', to match those - - -?‑‑‑It's (indistinct), yes.


Yes, to match those I think you said in government facilities?‑‑‑Yes.


Do you have any knowledge of the degree or amount of the increases that occurred in British Columbia?‑‑‑In Canada, industrial relations or employment law is set at the provincial level, so each province has its own minimum wage.  So in British Columbia the minimum wage is $15 an hour and the way in which you get higher wages is to work in a unionised workplace.  So the entry level for personal care workers in government facilities sits at about $25, $26 Canadian an hour and the minimum rate of pay, as I said, is $15 an hour.  The enterprise agreements, like us they've got an individualised system, union agreements with profit providers I'm advised sit at around about, you know, $20 to $22 an hour.  Not-for-profit providers tend to be slightly higher - $23, $24 an hour.  So the decision to - and the commitment in the last budget of the province of British Columbia to level up wages will make a really substantial difference.  The government there has said that's an ongoing commitment beyond COVID.  It was initially introduced as a COVID measure to attract and retain people and to ensure that single-site working became viable for workers.  But they've decided to continue to do this.


Thank you, Professor Charlesworth.  That's the re-examination.


JUSTICE ROSS:  Thank you for your evidence, Professor Charlesworth.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.32 AM]


JUSTICE ROSS:  Call the next witness, Professor Meagher.


MR GIBIAN:  I understand she's logging in now.


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

***        SARA CATHERINE MARY CHARLESWORTH                                                                            RXN MR GIBIAN


PROFESSOR MEAGHER:  I can hear you and I'm starting to be able to - yes, I can see everybody now, yes.


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


PROFESSOR MEAGHER:  My name is Gabrielle Anne Meagher and I my work address is the School of Social Sciences in the Faculty of Arts at Macquarie University.

<GABRIELLE ANNE MEAGHER, AFFIRMED                             [10.34 AM]

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




MR GIBIAN:  Thank you.  Professor Meagher, can you hear me?‑‑‑Yes, I can, yes.


Thank you.  Can you just repeat your full name again for the record?‑‑‑Gabrielle Anne Meagher.


Your current position?‑‑‑Professor Emerita in the School of Social Sciences at Macquarie University.


You've prepared two witnesses statements for the purpose of these proceedings, the first of those dated 31 March 2021, which annexes a research report of the same date?‑‑‑Yes.


Do you have a copy of that with you?‑‑‑Yes, I do.


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


Is it true and correct to the best of your knowledge and recollection and does it represent your opinion?‑‑‑Yes.

***        GABRIELLE ANNE MEAGHER                                                                                                      XN MR GIBIAN


That's the first witness statement of this witness upon which we seek to rely.  For the purposes of the record it's document 111 within the digital court book, the statement being at page 3112 and the report starting the following page, page 3113.  Professor Meagher, you also made what's termed a supplementary statement of 27 October 2021, annexing a supplementary report dealing with home care issues.  Do you also have a copy of that with you?‑‑‑Yes, I do.


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


Is it also true and correct to the best of your recollection and represents your opinion?‑‑‑Yes, although I did just discover in rereading it just three numbers are that just in the wrong place in one of the tables.


I think that is table 1 on page - it's page 9 internally - sorry, table 2?‑‑‑Table 2, yes, yes.


It's digital court book page 3221?‑‑‑Yes.


It has both a page 9 and a page 13 at the bottom of the page but I think it's page 9 of the report.  What were the corrections that you wanted to make to that table?‑‑‑So in the line for home maintenance in the first grey block it says, 'Home maintenance 368', then it says, '7 per cent', then it says, '13 per cent'.  That 13 per cent should say 5 per cent.


Was there any other correction that needed to be made?‑‑‑Yes, below that where it says 2 per cent, that should say 13 per cent.


Is there then a further correction that needs to be made?‑‑‑Yes, yes - then just below that where it says 5 per cent, that should read 2 per cent.


I understand?‑‑‑So just transposition errors there - sorry about that.


Yes, with those corrections is the statement and the report true and correct to the best of your knowledge and represent your opinion?‑‑‑Yes, yes.


That's the second report of this witness that we wish to have as part of the evidence.  It's document 112 in the digital court book.  The statement itself is at page 3209 and the report starts at page 3210.  I was just going to note that I think that the index to the court book notes this statement commencing at page 3264.  It should be at page 3209, in case there's any confusion in relation to the report.


JUSTICE ROSS:  Thank you, Mr Gibian.

***        GABRIELLE ANNE MEAGHER                                                                                                      XN MR GIBIAN


MR GIBIAN:  Thank you, Professor Meagher.  Mr Ward, who you should see in one of the boxes on the screen, is now going to ask you some questions?‑‑‑Yes.




MR WARD:  Thank you, your Honour.

CROSS-EXAMINATION BY MR WARD                                         [10.39 AM]


MR WARD:  Is 'Professor' sufficient?‑‑‑Yes.  Yes, fine.


Thank you.  Professor, my name is Nigel Ward and I appear in this matter for the employer interests, so just understand where I'm coming from before I start.  Do you have your report in front of you?‑‑‑Yes, I do.


I wonder if I could ask you to go to page 8.  There's a heading which says, '7. Work value issues in residential care class.'  (Indistinct) there?‑‑‑Page 8?


Yes?‑‑‑Sorry, I don't see that heading on page 8.  Could you just give me the heading name again, please?


It's, '7. Work value issues in residential aged care'?‑‑‑Yes.  Okay.  Yes, that's on page 25, yes.


On mine it says page 8, so that's - - -?‑‑‑Okay.  Yes, I see, because maybe it's in the executive summary – no – that's all right.  Anyway, that's fine – 'Work value issues in residential aged care', yes.


My copy reads as follows – it says:


The characteristics of the residential aged care workforce and residential aged care services have affected the valuation of care work in the sector, resulting in low relative pay.


Do you see that?


MR GIBIAN:  I'm sorry, I don't know where Mr Ward is at either.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


THE WITNESS:  No.  Sorry.


JUSTICE ROSS:  He's in the executive summary section.


MR WARD:  It's point 7 in the executive summary?‑‑‑Yes, I see.  Yes.  It's page 4 in the executive summary, yes.


For some strange reason my copy says page 8, but that's okay?‑‑‑Sorry, I'm looking at – so I should use my statement.  I'm looking at my – I should use the statement that's got the form – the previous – you know, the other things in front, because it's got different page numbers.  Okay, so I'll use that as a guide.  Yes, page 8; yes, I see now.  Thank you.  Sorry about that.


Yes, bear with me, I'm using your research report document?‑‑‑Yes.  Yes, I've got that.  Thank you.  Yes.


I'll just say it again.  It says:


The characteristics of the residential aged care workforce and residential aged care services have affected the valuation of care work in the sector, resulting in low relative pay.




Can you explain to us, when you say, 'relative pay', relative to what?‑‑‑Look, there I'm talking about a broader concept of undervaluation of care work, and this relates more to whether the award rates are set relative to similar – to occupations that require similar levels of skill, or even lower levels of skill.


Could you give an example?‑‑‑Of an occupation that's of lower level of skill that's paid - - -?

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


You said you're referring there to – hopefully I've understood you – you said you're referring there to other awards.  I'm just trying to understand which award you're comparing to?‑‑‑Look, I haven't – it's not really – that remark isn't based on a forensic analysis of awards.  It's based on a broader concept of the value of care work in industrial instruments in Australia, and in fact in other countries as well.  So this kind of work where people are providing help and support to others are generally undervalued.  So they take - the skills that they involve aren't well‑recognised in the payment of wages and the setting of wages – sorry, in the setting of wages.  So it just means that there's a kind of pervasive undervaluation of this kind of work, in its complexity and its demands, and there's a range of reasons for that that I go on to talk about - - -


When you say - - -?‑‑‑It's not so much – go on, yes.


When you say 'relative', relative to everybody else?‑‑‑Look, relative to other occupations that are – it's relative to a range of other occupations that don't involve care.


Right - - -?‑‑‑That may involve other sorts of work where the skills are better recognised, and typically that's often in male‑dominated jobs that involve practical and technical skills that are better recognised, but my analysis there – I haven't done an analysis comparing to a male award or anything like that.


Just so I can be clear, that's not a statement saying I've looked at the pay in the Aged Care Award and looked at the pay in the Building Award; that's not what you're saying?‑‑‑Not as specific as that, but it's a generally – so, through all sorts of statistical analyses that have been done on Australian labour market data and on labour market data in many other countries, it has been determined that there's a – relative to the skills required and the educational requirements and so on, on various objective measures of workers productivity - that workers in care‑related jobs are underpaid relative to workers in other jobs that don't involve care, where all those other things are the same.


Yes, and I'll come to that - - -?‑‑‑To some extent.


I understand that, but I'm just trying to clarify that that's - when you say relative, you're not comparing minimum award with the minimum award?‑‑‑No.  I mean, there are a couple of places in my reports where I do compare directly with awards, so there's – about a chef, and also about administrators in the aged care system, compared to other roles, but in the case of the personal care workers who are doing the care work, I haven't done an award analysis.  No, that's not my area of expertise.  I'm more – I have more knowledge about the big studies in sociology and economics that make the statistical comparisons across big populations.


Thank you, Professor.  Can I take you – I'm only going to take you to certain parts, because I have limited time, so just bear with us.  Can I take you to the paragraph directly below what I've just taken you to?  It says:

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


The aged residential care workforce is female‑dominated.


Nobody disagrees with that.  I think we all agree it's somewhere around 86 per cent.  I think we all agree on that.


International research has shown that female-dominated occupations tend to be paid less than male‑dominated occupations, taking into account educational requirements and other factors that objectively influence work productivity.


I just want to cut that into a few parts, if you can help me with it?‑‑‑Yes.


Again, that international research I take it is looking at actual rates of pay, not what we're talking about in this case, minimums?‑‑‑Yes, it's looking at people's earning, taking into account their hours and their education and so on.  Yes, it's not looking at – but it does take into account things such as their hours of work, for example.  Yes.


As in the total number of hours of work for one group versus the total of the other?‑‑‑No.  Look, it says we're going to compare the incomes of a large group of people.  We want to compare people doing care work with people doing other sorts of occupations.  Now, we're going to use statistical techniques to hold constant the amount of education they've had, the hours they work and so on, so that we're really just comparing their earnings relative to their occupational category, and we find that people who are doing the care work are paid less than people doing other jobs; all these other things being held constant.


I'd like to come back to that theme.  You then say in that paragraph:


Taking into account educational requirements and other factors that objectively influence work productivity –

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Can you just sort of help me unpack that so I understand it better?  When you say 'educational requirements', I take it you're suggesting that there's some objectivity in that?‑‑‑Look, I guess how these studies work is that, you know, they take data, but there is - and it sort of comes from two directions, as I understand it.  One direction is that there are attempts in international statistical collections to sort of harmonised what does a Certificate III in Australia mean compared to a - just for argument sake - a Certificate III in Australia compared to another - an entry level vocational qualification in other countries.  What would that be called?  And then when someone says I've got this on a survey, we allocate them to this category.  That sort of thing.  So, they're objective in the best - in the sense that there's an attempt to harmonise the data and give a like category to a like response on a survey, for example.  Yes, go on.


No, I was just going to get you to develop that.  It's not that education itself is an objective criteria.  It's that you've harmonised the education across the survey?‑‑‑Look, education is one of the - so, when economists and, you know, sociologists working with labour statistics try to measure something like the skills people exercise in their work, a proxy measure for the that is their level of education.  And depending on the study and depending on the availability of data, people use other - may have access to more information about what the people do in their job and things like that, and they can - and they have objective measures of the level of skill required.  Again, that's not my area of expertise.  I believe there's another - there may be another witness who knows much more about skill measurement.  But there are - you know, there are - people make serious attempts to compare like with like and to work out how - to work out the level of skill required in a job through all sorts of techniques.  One sort of proxy measure is the amount of education that's required.


Can I put it to you a different way, just to see if I understand that.  Your first proposition is that care work's undervalued.  You've said that and you've explained in your report in some detail why you hold that view.  If - and it seems to be that it's the nature of the work and it's the gendered nature of the work in doing that, I think I'm right in how I've described that.  Can I just understand this issue of education being a proxy measure.  If all other things were equal, you would want to see a female with a Certificate III and a male with a Certificate III, you would say they should have, all other things being equal, the same rate of pay?‑‑‑Look, not necessarily.  I guess - I guess what I'd say is that education is one measure of what economists call human capital.


Yes?‑‑‑And that should give an indication of the level of skill required in a job.  But it may not capture that, and I think it's also important to think about whether or not the - I mean this is - again, this is not - this is not something that I have made an intense study of but it's not - you could - there could be questions asked and I haven't done this research myself but there could be questions asked about how the skills captured in something like a Certificate III, whether they might also reflect the same kind of problem that I'm talking about.  So that if you think about a skill that might be mentioned in a Certificate III for a care worker, that you, you know, make ethical decisions and things like that.  Whereas in a - in a trade certificate it might say that you can - that you can do a certain procedure.  Now, whether they are equal that is - that's an open question.  So, I would be concerned about assuming that Certificate III captures everything about the skills and the level of advanced, you know, sort of cognitive and judgment requirements that might be - might be made just because they've both got the same title.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


No, that's very helpful.  So, you're saying that not all Certificate IIIs might necessarily be the same?‑‑‑Yes, yes.


Okay?‑‑‑But if you're doing a - so the other thing about statistical models is, on the one hand you've got this attempt to harmonise and what have you and on the other - on the other hand you've got these very big numbers.  So if something comes out of a study that's got - that's looking at thousands of data points and it finds a - it finds a gap that can't be explained by the - by the things that the model has in it to try and explain, and you say well, that leftover gap, the only - when you've divided them by male and female and we can see that they're in different kinds of occupations, that's the other thing that gives some robustness and some confidence to the measurement because - do you see my point?


I think what you just tried to say to me is something like this.  That when you crunch all these big data sets, you try and take out of the data sets all of the things might rationally explain differentiation, and if you're left with a difference - the difference equals gender.  Is that what you're trying to tell me, in a very (indistinct) - - -?‑‑‑Sort of, that's right.  That's right.  Because then - and then there are these other.  I mean look, and even since I did these reports, I was just looking yesterday and I - I mean I can't give you, without getting them up now and taking a lot of time and reading over them again.  But it's an ongoing area of research where there's just these persistent attempts to refine the measurement and they are still - they are still finding this care related gap.  And I could - I mean I can submit them if that's - they'll just be research papers, I can submit them if they're of interest.


I'm not asking you to at the moment, professor.  I'm just - - -?‑‑‑I wouldn't be cross-examined on them.


(Indistinct).  Can I just take you to the next page, if I can, under the heading 'Conclusion'?‑‑‑Yes.


And I think the last statement I've got under the heading, 'Conclusion' is:


The current award does not recognise the range of skills and responsibilities aged care workers exercise in providing high quality care to older people.



***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


When you say it doesn't recognise, are you saying there it doesn't explain the skills or are you saying - is that your way of saying they don't get paid for them?‑‑‑It's my way of saying they don't get paid for them.  And it's to do with this kind of problem to do with understanding the sorts of things that care workers do are skilled, and they do - they exercise responsibility and judgement even in sort of low level occupations that are sort of not grasped by the industrial instrument.


So, can I just - I'm just trying to understand what that means in the context of a classification structure.  Is what you're saying that the structure might very well understand the physical task but it's not properly understanding the intensity of what's involved in actually engaging with the resident in any given moment, in any given circumstance, which could be determined by their acuity, it could be determined by their personality or it could be determined by their mood on the day.


That's certainly the latter about the sort of interpersonal demands are not recognised.  As to whether it captures the physical demands, I couldn't - I would be on less certain ground about making strong comments there because my area's more on these - things to do with judgment and relationship based care.


When you use the word responsibility in that paragraph, are you - are you talking about the fact that when as a care worker I'm alone with a resident I hold a responsibility for providing the personal care in that situation?  I'm just trying to understand what you mean by responsibility?‑‑‑I do mean that but I guess there are other responsibilities that come up in the day's work.  I mean if we're just talking about residential care or also about home care, about sort of decision making and around prioritising tasks and clients and so on.  I think they also could be categorised as responsibilities.  I think there's just a range of things that need to be negotiated in the moment with the person and you need to - you need to take responsibility for what you're doing in that moment and for that person's welfare in the moment.  It can be - yes, that are quite significant.  Even if people are doing them all day every day I think they're quite significant for the welfare of the person that you're responsible for.


In industrial instruments we tend to - I'm just going to deal with supervision and then I will come back to responsibility - in industrial instruments we tend to look at supervision in the context of direct supervision, indirect supervision and the like?‑‑‑Yes.


Acknowledging that I'm doing that work under indirect supervision you would agree that that acknowledges that I have some personal responsibility that I'm exercising?‑‑‑Indeed.  Indeed.  And even certainly in residential care, but more so in home care there's a lot of indirect responsibility - indirect supervision.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Yes, because I'm by myself in the family home, and while I might have protocols to call for help I don't have somebody, a colleague ready on hand to help me if I need them?‑‑‑No, and you have to make a decision about when to call for help.


Yes, of course you do.  Well, I presume - I think the evidence in this case is that there's sort of rules as to when people call for help, but you're right, within those rules I have to exercise my judgment, don't I?‑‑‑Yes.


Yes.  Can I take you to another page and hope I can get you there - - -?‑‑‑Yes, yes.


I'm sorry, the version I have got is the one I scribbled all over it.  If I can ask you to carry on in that document we were in - - -?‑‑‑Yes.


- - - and I'm going to have a guess at this.  I think it's page 19.  It's the heading '6.1 changing occupational profile'?‑‑‑What number is the heading?


6.1?‑‑‑Yes, got that one, yes, page 19.  Yes, got that, yes.


Just bear with me.  Above 6.1 is the beginning of 6 and you're talking in there about the impact of the sector trends on care work in residential aged care?‑‑‑Yes.


And you actually make a concluding remark just before 6.1, and the concluding remark is in these terms, having discussed those changes.


These changes significantly increase in the skills demands and level of responsibility of work in residential aged care (indistinct) multiple dimensions and occupations covered by the award.




I am not trying to ask a trick question, I'm just trying to understand.  When you say 'increase in the skills demands' are you aware whether or not the - and I will use the Certificate III as the base, but I might go to others - does the Certificate III currently cover all of the competencies I need to be a personal care worker, or are there competencies outside?‑‑‑I'm not - I don't know enough about what's in the Certificate III.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Okay.  That's fine.  It would be unfair for me to ask those questions.  That's fine.  Can I ask you to turn the page then, and you've got a table there that's table 3, do you see that?‑‑‑Yes, I do, yes.


And then about two-thirds down the page you then make a summary again.  You say:


Because of these changes in the occupational profile of direct care workforce personal care assistants are taking on tasks that were previously carried out by nurses.




I just wanted to understand the extent of that, because I think there's a little bit of debate in this case about that.  As I understand it - you then talk about drugs - sorry, that might be a terrible way to describe it.  Sorry, my apologies, I withdraw it - medications.  Pain management, you see pain management?‑‑‑Yes, although I'm not talking so much there about giving medication, and I don't - I wouldn't - I'm just talking more about the role of - and this is based on - this is based on my reading of a number of research papers and the Royal Commission report.  It's more - it's not so much about giving medication, and that's something that may or may not be happening, I don't know about it, I don't have expert knowledge about that.  It's more about assessing whether people are in pain and about the conditions of residents.  So there I cite some studies about how the role that personal carers assistants have in documenting - in assessing and documenting people's pain and then the nurses would be, and other professionals would be responding to that.  So there's just a lot of research saying that personal care assistants have got an important role in understanding, because they are expected to know the patients well and to have a good understanding of them and to know when they're in pain and to be able to assess their pain and report it.  They have that role because of their closeness - - -


That could include - I think we had some evidence the other day from a personal care worker understanding when to apply a heat pack to a resident.  Is that the type of thing you're talking about?‑‑‑Look, that could be - that could be something that they could so to speak prescribe themselves, but I'm also talking about documentation, at least according to these research papers that I've read, that they participate in multi-disciplinary teams, and one study finding that they're uniquely positioned to identify pain in residents with dementia.  So they may make their own interventions with things like heat packs or helping people to move and become more comfortable.  They are also involved in the reporting of pain to other professionals who might take other actions, and that's sort of monitoring role is important.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


We accept that.  When you say documenting is that a reference - we've had evidence from most of them so far about filling out progress reports which identify things like that.  By documenting is that what you meant?‑‑‑Again I'm reporting on studies that talk about their involvement in pain documentation.  So the specific forms they fill in I couldn't tell you about.


That's fine.  Can I ask you to move on 6.2?‑‑‑Yes.


'Unique demands ancillary work in residential aged care settings', and you use a phrase there, 'Food service staff.'  Can you just explain to me who's in that category?‑‑‑People who are preparing - I guess people who are preparing the food and the people who have got - who relate to the client aged care, older people who are receiving aged care in the food service processes.  I probably wouldn't be - I mean I wouldn't be including someone whose only job is a less skilled job in the kitchen.


That's fine, and I didn't want to suggest they were less skilled either.  But can I just understand what I think you just told me.  So the cook would be in that group?‑‑‑Yes.


The kitchen hand would be in that group?‑‑‑Look, I don't - I'm not sure what kitchen hand - if they have a role.  Again this is based on research that I have read about how the importance of food - two things; about older people's food needs and that they have complex food needs because of their health conditions and various needs in the areas of activities of daily living, and feeding and swallowing and things like that, on the one hand, and on the other hand the importance of meal times in providing a kind of - the kind of person-centred high-quality care where the daily life has got some moments of pleasure in it and food can be part of that.  It's a kind of a psycho-social activity as well as just a nutritional activity.  So the research that I was reading about that was talking about both of those:  the specialised demands of the nutritional needs, the activities of daily living needs and the psycho-social needs related to food which make it different from serving food in a café.


I'll come to that.  I'm just trying to understand who is in the category to begin with.  So I think if I'm a personal care worker and I have a resident is not ambulant and requires assistance feeding, you would have them in the category of food service staff?‑‑‑A personal care worker?


Yes?‑‑‑Look, I mean, I guess so - if they're helping people to eat but in a sense I was thinking more of the ancillary staff when I was in this part of the report.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Okay, all right, and you then say that, for example, the royal commission cites evidence that food service staff - and I think you're now saying that's really predominantly the support staff need more increasingly specialised knowledge of older people's nutritional needs, special diets and the psychology of their social interaction.  Can I just pause there?‑‑‑Yes.


I just want to understand if we're sort of at the same - we've certainly had evidence from one cook so far; we might have had two, I can't remember, on Friday - is it your understanding that the cook designs the menu?‑‑‑I don't know about that.  I don't know about that.  My guess is there would be different in different places.  Some places buy the food in, some places would have a dietician.  Some places the cook will design the menu, would be my guess but I don't know.


Do you have an understanding of what's called the international dysphagia diet standardisation initiative?‑‑‑No, I can guess but no.


You're aware that everybody - I'm just going to stick with residential for a minute but it obviously has some application broadly - but you're aware that residents have a care plan which sets out their care needs?‑‑‑Yes.


Are you aware that that care plan sets out their dietary preferences, normally?‑‑‑I'm not - I don't have detailed knowledge of what's in care plans, no.


That's fine, and are you aware that the care plan would normally explain how the food should actually be prepared and that is - should it be easy to chew, soft and bite-sized, pureed and the like?  You're aware of that?‑‑‑I'm aware in general that older people in residential care - that some people have food needs like that.


What I'm interested in is when you wrote this section of your paper about food service staff, is the literature you're referring to - is it suggesting that the chef and their staff make decisions about what people can and can't eat themselves outside of the care plan?‑‑‑Look, not that I'm aware, no, and that's not - I guess this sort of research doesn't address those kinds of questions.


That's fine, that's fine.  I apologise, I should have asked what countries does the research come from?‑‑‑Mostly I sought to use only Australian research.  But I'm under oath so I couldn't say every single thing in those footnotes refers to Australia but in general, unless I say international research has found and it's applicable here, I'm really tried to find Australian research so - I couldn't be 100 per cent sure that that's true in every care but I'm pretty sure.  That was my aim.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


That's fine?‑‑‑I guess just one thing to say is that this kind of research doesn't really deal with - it doesn't assign people to categories that are in industrial instruments.  It's just more talking about the food system in residential care and the sorts of requirements, so to speak, for the food system:  who prepares the food, who helps the people to eat, who is making sure that people get the sort of food that they can both eat and enjoy, and so on.  So they're not so much focused on categories of workers in an award.


That's all right.  I'm just trying to understand - so this research, for instance, doesn't explain what the dietician does as opposed to what the chef does?‑‑‑I don't think so, no.


Okay, that's fine.  You then talk about - Professor, you then go on to talk about - I apologise.  You then conclude:  'The knowledge and skills required of food service workers in residential aged care extend well beyond those of food service staff in non-care settings'.  Which non-care settings were the subject of research?‑‑‑Look, I guess - I do refer there to the General Retail Industry Award, where the - I've got my footnote there - they get the same pay.  I just think it's quite a different thing, to be cooking in a retail setting, than to be cooking in an aged-care facility.  I just think my judgment, given the special needs of people and the different techniques that are required and the different diets that need to be catered for and some people have got diabetes and some people can't swallow and other people have got acid-related and cardiovascular disorders and so on.  That's quite different from cooking in a shopping mall and it requires more skills.


I don't want to be disrespectful to you but your observation there then is what, based on your personal observation of food outlets in shopping centres?‑‑‑No.  I guess it's based on - that's a good question.  I haven't made a study of that.


I've asked (indistinct)?‑‑‑(Indistinct) food safety requirements and so on but they would be - the food safety requirements would be the same in both contexts so it's just - look, it's an inference based on the difference between the specialised requirements of food service planning in a residential care facility compared with a retail setting, where those other things don't have to be taken into account.


Again, I'm not trying to be disrespectful, but you've not done empirical studies of restaurants - - -?‑‑‑No.


No.  You then go on and talk about cleaning staff?‑‑‑Yes.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


In the research you did on cleaning staff, do you understand who actually writes the infection control protocols for the facility?‑‑‑Look, I'm assuming it's not the cleaning staff.


Right, but you don't - your research didn't go to who does it?‑‑‑NO, no, and again this is based on research about other people, other researchers who have gone into residential care facilities and looked at the role of cleaners and more focusing on their sort of psycho-social roles as well as noting the infection-control roles.


Can I come on to the psycho-social in a minute, to be fair to you?  I'll come on to that.  I'm not trying to be unfair with these questions, I'm just trying to understand this material?‑‑‑No, no.


I assume that the material isn't suggesting that heavy industrial chemicals are used in the residential setting or anything like that?‑‑‑Again, it doesn't really go to those issues.  It's more focused on the psycho-social role.


So it doesn't - - -?‑‑‑It's more about the sort of - in a sense it's about the care work and the kind of careful negotiation that might be involved in being a cleaner in a residential facility that might not be there in some other cleaning context where the practical tasks might be more or less the same.


So in other words, the research isn't looking at how I clean the toilet in one setting versus another?‑‑‑No.


I'll just then come to that cycle (indistinct).  I assume you'd agree with me that cleaners have always conversed with residents in aged care?‑‑‑Yes.


I'm sorry, I'm smirking.  I was just thinking about a personal experience?‑‑‑That would be – if you're saying to me do I have research evidence that cleaners talk more to residents than they did a decade ago, I couldn't really say anything.


No, that's fine.  Thank you for that.  I assume when you're talking about this:


If I'm a cleaner I'll obviously have a routine of what I have to clean that morning or that day, and it was clear from some of the care workers' evidence that that work might be done when the resident is sort of at the dining room, but also it's very clear that there might be circumstances where the cleaner has to do their job while the resident's in the room.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


When you say the 'psychosocial element', is that the element you're talking about, in that I have to go about my job while that person's present?‑‑‑Look, that's partly – that's probably largely what I'm talking about there.  I guess the other – if I was talking – if I was going to be considering something else in this context, it would be that a residential facility is a home of the people who live there, and the people that are around in the facility – there are sort of psychosocial demands on them, or sort of skill and judgment demands on them that are related to them needing to attend to the fact that the people whose premises they're cleaning, it's their home, they're highly vulnerable, that someone's going to have – well, half of them have got dementia, and familiarity and things like that is important.  So it's also just being a familiar person in the environment.  So it may not just be negotiating those things when you're in the room with the person.


You'd agree with me though it's always been the resident's home, hasn't it?‑‑‑Yes.  I guess what I would say is that maybe these kind of aspects of the task haven't been recognised previously.


I see?‑‑‑So it's not that that has changed; it's that - it's part of this kind of care; it's the people who work in a residential facility, the people who have contact with the older people, to a greater or lesser extent, depending on whether they're a nurse or a personal care worker at one end or an administrative assistant at another end, need to pay some attention to the needs of the people in the facility and exercise some responsibility and care in relation to their welfare that is particular to the context of residential aged care, or to care settings.


They all have some responsibility to the resident, and that's distinct from being in a hotel where we have less responsibility for the people there?‑‑‑Yes.  And that may not be recognised in the – these are the sort of unrecognised responsibilities and skills that I was talking about when we first started.


We had some evidence I think on Friday, and I think – I'll just use Friday as an example – we had a cook I think who did a 45‑minute online 'Working around people with dementia' course.  Is that the sort of thing you were talking about?‑‑‑I'm – I - - -


In terms of them having to have a greater awareness.  That's a person who was a cook.  He was given an online training course so he's more aware of people with dementia.  It's that awareness issue?‑‑‑I guess – look, I couldn't say anything about the type of training that would support people to exercise the kind of skills I'm talking about.  I guess what I'm talking about is there are both regulatory and community standards about what the aged care setting should be like for older people, and in that context it requires these skills and judgments from anyone who comes into contact with them to a greater or lesser extent.  How they get them, how they're supposed to get those skills, that's another issue.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Are those skills based around sort of issues of respect and empathy and those types of issues, or am I missing something?‑‑‑That's certainly part of it.


Can I just ask you – I won't keep you much longer; I think I'm about to be gonged anyway from my cell phone – can I just ask you to go to 6.4, 'Changing operating environment, changing administrative demands'?‑‑‑Yes.


I might have missed this, Professor, and I apologise if I did – is this just a set of your observations, or are you referring now to again some international studies when you talk (indistinct) - - -?‑‑‑No, in this – let me see – mostly I'm referring to inferences that I make from reading the regulatory requirements and, you know, observing the evolution of regulation over time and the changing – both the changing requirements of quality assessment, but also the introduction of user charges and so on that make administration more complex in facilities, yes.


If I can just drill down on that, if you can help a little bit?‑‑‑Yes.


I take it that aged care facilities have always had to have quality assurance systems?‑‑‑Certainly in the last three decades, yes.


Is what's changed the nature of the quality assurance system, or is it just that it's now more policed?‑‑‑I think both – well, certainly the nature of the system has changed sort of in different ways over time.  So there's a kind of learning burden on organisations and the people who have to take carriage of this work.  There has also been an increased use of information technology.  I mean, some of that could make some things easier to do and some of it means it's also learning and new skills as well with new systems.  But I think there have also been – there are also more standards are being added, as well as changing standards, yes.


You used a phrase there, if you could just help me, where you said, 'the people who take carriage of this work'?‑‑‑Yes.


What's your understanding in the management structure of these facilities as to who is responsible for designing the quality assurances?‑‑‑Again, it would probably – it's a very diverse sector and that would vary quite a bit would be my educated inference, but I couldn't tell you - - -


Well you wouldn't (indistinct) trying to describe that?‑‑‑No.

***        GABRIELLE ANNE MEAGHER                                                                                                     XXN MR WARD


Professor, thank you very much for your evidence.  I have no further questions?‑‑‑Thank you.


JUSTICE ROSS:  Do other Members of the Bench have any questions for Professor Meagher?  No?  Mr Gibian, re‑examination?

RE-EXAMINATION BY MR GIBIAN                                               [11.28 AM]


MR GIBIAN:  Yes, thank you, your Honour.  Professor Meagher, can you hear me?‑‑‑Yes, I can.


I think there were just a couple of matters.  You were asked some questions by reference to a part of your first report, it's page 3119 of the court book.  Page - it's page numbered 8 of the report in the page numbers in the middle of the bottom of the page, by reference to that part that referred to education qualifications and you were asked about the use of educational requirements as being used in studies as a proxy for skills, or I think you said that in answer to one of those questions?‑‑‑Yes.


And I think you referred to studies using education requirements as a proxy, and also other objective criteria in assessing the levels of skills involved in particular types of work.  Are you able to give us any indication of what other objective criteria are used in studies to indicate the or describe the type of skills and responsibilities involved in different forms of work?‑‑‑Look, there are (indistinct) skills (indistinct) to job tasks and so on that are, you know, technical exercises that I don't have specific expertise about.


You just broken up a little bit.  The audio just broke up a little bit in the answer you just gave.  I think I caught it adequately.  Would it assist the members of the Bench if Professor Meagher repeated that answer or - - -


JUSTICE ROSS:  No, I think the point was fairly clear.


MR GIBIAN:  Yes, thank you, your Honour.  The second matter I just wanted to ask you about briefly was you were asked some questions about food service work and cleaning work particularly, and you referred in answer to those questions to the psychosocial aspect of that form of work undertaken by what you've referred to in the report as ancillary workers, rather than the care workers themselves?‑‑‑Yes.

***        GABRIELLE ANNE MEAGHER                                                                                                    RXN MR GIBIAN


So far as cleaning work was concerned, you referred to two aspects of or two practical aspects of the nature of that work that are relevant to the social - that were relevant to the psychosocial aspect of the work being that the resident may be present when that work has to be done?‑‑‑Yes.


And the fact that the work is done in the context of the facility being the home of the resident?‑‑‑Yes.


You were then asked whether the - an aged care facility has always been the home of residents.  You recall being asked that?‑‑‑Yes, yes, I do, yes.


Sorry, I should have indicated, these questions were asked by reference to - sorry, it's page 3142 of the court book within your first report, page number - I'm sorry, I'm actually at 3143 of the court book, page number 32 of your first report?‑‑‑The number at the bottom of the page?


Yes, the number in the middle at the bottom of the page?‑‑‑Yes, I've got that page, yes.


Starting at page 31 beforehand you were asked some questions about the second last paragraph, I think, on that page in relation to cleaning staff?‑‑‑Yes.


And the report then goes on to list the three matters that you mentioned.  If you could just go over to page 3143, you'll see - of the court book, page 32 of your report.  You'll see there's a heading about a third of the way down that page 6.3, 'providing person centred care is a whole of staff responsibility'.  Do you see that?‑‑‑Yes.  Yes, yes.


I just want to ask you whether you could explain what you mean by the provision of person centred care in that context?‑‑‑Yes.  And look, it does actually relate to the issue of whether a nursing home has always been a person's home.  I mean there is one sense in which it's true that a nursing home has always been a resident's home in that they have resided there.  But in the last - in recent years, this idea of person centred care has tried to give a lot more meaning to the idea that a nursing home is a person's home, by - and it means that the care of a person should be - should be organised around, as much as possible, to each person's specific needs and preferences and abilities and that they should be known as a person rather than a patient or a - or as a client, and that the nursing home isn't an institution.  So, that's really what person centred care is trying to get at.

***        GABRIELLE ANNE MEAGHER                                                                                                    RXN MR GIBIAN


Are you able to comment on the manner in which that effects or that change in philosophy as it were affects the work of ancillary staff, such as cleaning staff or the psychosocial aspect of that work?‑‑‑So, one of the things I write about that, and again this is drawn from some international research is that a nursing home contains kind of private and public spaces and the - and it also has private and public property in that the things in a person's room are their own belongings.  And so a cleaner needs to, for example, needs to think about how they treat a person's belongings and how they interact with the person when they might be handling their personal belongings.  Even if the person's not there, the person needs to feel like their personal belongings that may be very precious because they're quite few that you can take with you are looked after, for example.  So it goes to respect and dignity as Mr Ward was talking about before.  But in the relational dimension it also means that even the - even the cleaning staff are expected to have some kind of understanding of each person as a person, and to - you know, to demonstrate that in their interactions with them, as well as in the way they treat their belongings and their space and so on.  Does that make sense?


Yes, yes, thank you.  One other question in that respect, in terms of the aged care facility always having been the home of the resident, another change that you've referred to elsewhere in your first report particularly is the increase in acuity and frailty of residents in aged care that has occurred over the last - well, increasingly no doubt but over the last 10 years or so?‑‑‑Yes, yes.


Is that a matter that, according to the research you've looked at, effects the work of cleaners and other ancillary staff?‑‑‑I haven't - I haven't read about that.  I haven't read research about that so I couldn't say more about that, no.


I understand?‑‑‑I could speculate but I wouldn't speculate.


Thank you, professor.  Can I just have a moment, your Honour?   Thank you, Professor Meagher, that's the re-examination.


JUSTICE ROSS:  Thank you for your evidence?‑‑‑I could say one thing - sorry, I could just say one thing about communication difficulties and communicating with people with dementia and things like that would make a difference to everybody who is interacting with people, including the cleaning staff.  I could say that.


MR GIBIAN:  Thank you, professor.


JUSTICE ROSS:  Thank you for your evidence, Professor Meagher.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [11.38 AM]

***        GABRIELLE ANNE MEAGHER                                                                                                    RXN MR GIBIAN


JUSTICE ROSS:  We're going to take a short 15 minute break now, come back at five to 12.  There is one thing that's concerning me.  So, we have a further two experts scheduled, three HSU officials and that's only in the remaining hour and then we have - for this morning - and then we have on my count four union lay witnesses in the afternoon.  And whilst we're prepared to go past four, speaking for myself I have a commitment at 4.45 that I can't avoid.  On the current rate of progress I think there's zero chance of completing all of these witnesses in the time that's scheduled.  What I want counsel to discuss during the break is which ones of those we should release and move perhaps to the next day on which the Full Bench is scheduled, which I think is 9 May for Dr Eagar.  It's either that or it might accelerate.


MR WARD:  Can I offer some small assistance?  I've just indicated or my people are just indicating to the ANMF that we won't require one of them.  I think that's - I'm going to get the name wrong - - -


JUSTICE ROSS:  Well, even with that on the current rate we won't get the ANMF experts until after lunch.


MR WARD:  I just want to say that Ms Jennings, even though she's a union official, her evidence is nearly exclusively about being a care worker.  I just don't know whether or not she's in the right category.


JUSTICE ROSS:  I'll leave you to talk about that and the other scheduling issues with the others, otherwise we're going to have a series of witnesses bobbing up across our screens seeking admission, et cetera, so you need to provide them with some sort of guidance about when they're going to be required.  All right, well, we'll now resume at 12 noon.  All right, thank you.

SHORT ADJOURNMENT                                                                   [11.40 AM]

RESUMED                                                                                             [11.59 AM]


JUSTICE ROSS:  Have you had a discussion, and if so who are the next witnesses, Mr Gibian?


MR GIBIAN:  Yes, thank you, your Honour, we have.  Just two matters in relation to the scheduling.  Firstly, so far as today is concerned we're just for availability issues reordering the next three witnesses.  We propose to call first Marion Jennings, then Lindy Twyford and then David Eden.  That may require him to be displaced to the afternoon, but we will see how things are going.  I think Mr McKenna asked whether their experts could be - which I think is agreed - given a listing of not before 2 pm, but they are available this afternoon as I understand it, but would wish them to be dealt with today, reasonably enough.  And we will then I think see how the rest of the witnesses go, but as I understand it the ANMF propose that they remain available and if they're reached they're reached.  If they're not then we will have to rearrange them for another time.


JUSTICE ROSS:  All right.  Can you just give me the order again of your next three witnesses, is it Ms Jennings first did you say?


MR GIBIAN:  Ms Jennings first, then Ms Twyford.  Hopefully we will be able to complete them before lunch.  Mr Eden would then follow, but we might have to deal with him this afternoon.  He's one of the experts.


JUSTICE ROSS:  All right.  We will call Ms Jennings.


MR GIBIAN:  Sorry, I was just going to raise a second matter.  Your Honour President raised that the next date a Full Bench was proposing to sit was 9 May.  There are experts and union official witnesses giving evidence tomorrow morning, Tuesday.


JUSTICE ROSS:  Yes.  No, I appreciate - no, I meant beyond sort of the current schedule if you like.


MR GIBIAN:  Yes.  I understand what your Honour - yes, I understand.  Thank you.  I think Ms Jennings is available now.


JUSTICE ROSS:  Thank you.


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


MS JENNINGS:  Yes, I can.


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


MS JENNINGS:  Marion Lee Jennings, and the work address is 109 Pitt Street, Sydney.

<MARION LEE JENNINGS, AFFIRMED                                        [12.02 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                                  [12.02 PM]

***        MARION LEE JENNINGS                                                                                                               XN MR GIBIAN




MR GIBIAN:  Yes, thank you.  Ms Jennings, can you hear me?‑‑‑Yes, I can.


Can I just ask you to repeat your full name for the record?‑‑‑It's Marion Lee Jennings.


And you're currently an organiser for the Health Services Union in Sydney?‑‑‑Yes, that's correct.


And you formerly as I understand it worked as a care service employee at Uniting?‑‑‑Yes.


Can you tell us when you started as an organiser with the union?‑‑‑I started with the union in March of 2020.


Yes, thank you.  Now, you made two statements for the purpose of these proceedings.  The first of those is dated 26 March 2021.  Do you have your copy of that with you?‑‑‑Yes, I do.


And have you had the opportunity to read that through?‑‑‑Yes, I have - excuse me.


Is it true and correct - I'm sorry?‑‑‑Sorry, I'm just at the tail end of a cold.


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


That's the first statement of this witness upon which we seek to be part of the evidence.  It's document 128 in the digital court book commencing at page 7688.


JUSTICE ROSS:  Thank you.


MR GIBIAN:  You also made a further statement, Ms Jennings, headed 'Reply witness statement of Marion Jennings' dated 15 April.  Do you also have a copy of that statement with you?‑‑‑Yes, I do.


Again have you had the opportunity to read that statement through?‑‑‑Yes, I have.

***        MARION LEE JENNINGS                                                                                                               XN MR GIBIAN


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


That's the second statement of this witness we seek to have as part of the evidence.  It's document 129 in the digital court book commencing at page 7712.


JUSTICE ROSS:  Thank you.


MR GIBIAN:  I think Mr Ward who should appear in one of the boxes in the screen in front of you, and he's now going to ask you some questions?‑‑‑Okay.


JUSTICE ROSS:  Thank you.  Mr Ward?

CROSS-EXAMINATION BY MR WARD                                         [12.04 PM]


MR WARD:  Ms Jennings, can you hear me?‑‑‑Yes, I can, thank you.


Ms Jennings, my name is Nigel Ward and I appear in this matter for the employers.  I will just ask you a few questions if I can.  I'm right in saying that your statement is largely about your work experience as a care services employee?‑‑‑Yes.  Yes, that's right.


That's fine.  Now, in your statement you tell us that you obtained a Bachelor of Dementia Care.  Can you explain why you got that?‑‑‑When I first started working in aged care I came into it and I felt I wasn't prepared with enough knowledge for what I was seeing working in a dementia specific facility, and at the time University Tasmania had been just offering a MOOC, which is an online course, and I thought I'd do that to get a further knowledge, and when I completed that they at that time were trying to increase their numbers in the Bachelor of Dementia Care, and I was offered to apply for a scholarship, which I did, and once I got it I just continued to do the study.


In your opinion what level of qualification do care workers need to work specifically with high needs dementia residents?‑‑‑I don't think going as far as a Bachelor of Dementia Care is required, but having completed the Cert III, having more units perhaps in specifically dementia care I think would be a requirement or something that would be beneficial for the residents, and for the workers themselves.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


So not necessary but useful?‑‑‑Yes.  Look, a lot of it - a lot of the knowledge that you gain is on the job training, but if they had that as well that would be useful.


Most of your evidence is about Uniting and its change in model of care.  Have you got your statement in front of you?‑‑‑Yes, I do.


Could I just ask you to go to paragraph 13 to begin with?‑‑‑Yes.


You say:


In about 2019 while employed at Uniting they sought to change its residential care model to the household model of care.


Am I right in saying that your evidence is about how that household model of care operates?‑‑‑Primarily, yes.  That happened early - well, it happened, sorry, partway through my working with them, but it's what is in operation now.


I am just going to explore that with you a little bit if I can.  You set out in a table there the number of residents and the number of FTE CSEs at any one time.  Do you see that?‑‑‑Yes, I do.


I take it that excludes registered nurses?‑‑‑Yes.  There was only a registered nurse during the day though.


This operation didn't have any enrolled nurses?‑‑‑Yes, we had an enrolled nurse as well.


Was that on a particular shift or - - -?‑‑‑I'm not sure if it was during the day.  I primarily worked afternoon shifts, so my experience is around that, and we had an enrolled nurse in the afternoon shift.


Did you report to that person?‑‑‑Yes, she was also referred to as a team leader.


Okay.  Thank you for that.  And in paragraph 18 you say:

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


The low care level sections generally provide the residents with combination and personal care, including dressing and showering and occasional nursing care.  Low level care residents were those who didn't require continuous nursing care.


By that do you mean that they didn't require a nurse to be available to them?  What do you mean by 'continuous nursing care'?‑‑‑Continuous nursing care - I'm sorry, I'll just read over that - - -


Please read it?‑‑‑Okay, yes.  I was referring to that, if you go back to 16, was when I first started working prior to this new model of care.  So, yes, that was more we had - the sections were regarded as lower care and higher care.  So in that lower care section you had some residents that were able to do some tasks for themselves, but as time progressed and by the time we came into more of a household model it was more of an across the board level of care.  It wasn't distinct lower care and higher care sections by that stage.


When you moved to the household model did it involve any physical restructuring of the building?‑‑‑Yes, yes.  We were in an older building so there was quite a fair bit of work that went on.  Some of the ramps needed to be changed for their gradients, and also for the houses to be able to have the doors locked from one section to another.  Previously residents could go between sections, houses.


So each house is a secure unit in itself?‑‑‑Yes.


If you look at paragraph 14 you say, 'Each household has between 15 and 20 residents with a kitchen, dining and lounge area and a laundry room.'  Do you see that?‑‑‑Yes.


I just want to ask you some questions about that.  Can I just start with the kitchen?  Does the facility you used to work in, does it still have a central kitchen?‑‑‑Yes, it does, and if I could clarify you on that kitchen - it was more a kitchen in I guess, to make it in a home model sense, there was no actual cooking that took place in a kitchen other than toasted sandwiches and coffee making.


(Indistinct) - - -?‑‑‑(Indistinct) operational kitchen as such.


It looked like a kitchen, but it wasn't a fully functional kitchen?‑‑‑Yes.  There was an oven and a stovetop, but they weren't used.


So in terms of the residents being – eat their meals, they were still coming up from a central kitchen?‑‑‑Yes, that's correct.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


Would I be right in saying that when the food arrives, you would then set that food out in the dining room for those residents who were sufficiently ambulant to get to the dining room, and for those who weren't, you would take it to their rooms?‑‑‑Yes, but most of the residents we actually assisted to the dining room.


I take it that there were some who required assistance with feeding, and you would have done that as a care worker?‑‑‑Yes, that's correct.


You say that there's a laundry room.  Did you still operate a centralised laundry?‑‑‑That was sort of changeable.  We did have a centralised laundry, and particular like faeces‑stained linen and clothes would go up to the central laundry, because they had larger, more industrial machines, but the residents' day‑to‑day clothes were done within the household.


Can I just make sure I understand that?  The sheets and the towels and things still went to the central laundry?‑‑‑Well, actually, no, the sheets and towels would go outside to an external laundry, and the dirty linen – sorry, I'm saying linen; the tablecloths would be done within – in that laundry.  Any faecied or badly‑stained clothes would go up, and as would any of the woollen or delicate things that shouldn't be put into a normal laundry washing machine would go up.


So towels, sheets were subcontract laundry; personal items that were delicate would go to your inhouse laundry; soiled clothes, et cetera, would go to your inhouse laundry, but otherwise washing of clothes would be done in the household laundry?‑‑‑Yes, that's correct.


Did Uniting with this model still operate with centralised cleaning services?‑‑‑They had been outsourced.  That actually got outsourced during – I couldn't tell you the exact year, but it was shortly after I started working for them, like within a couple of years I would think.


So the person coming in to do the routine cleaning, be it the vacuuming, the cleaning of the bathrooms, et cetera, that was an outsourced operator?‑‑‑Correct.


If you had a – let's say you had a major spill or something, were they on call to be brought in as required?‑‑‑No.  A lot of the cleaning under this household model then changed over to the carers to do that as well.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


So if somebody had an issue with an incontinent pad, you would deal with that spill rather than calling in a cleaner?‑‑‑Yes.  On afternoon shifts cleaners weren't available.


I take it then that the routine cleaning was meant to be done on the morning shift?‑‑‑A lot of routine cleaning took place as you went, like, obviously the kitchen needed ongoing cleaning, and the floor‑mopping took place at night.


By the outsourced cleaner?‑‑‑No – well, in the dining and lounge area by the care staff.


Can I take you to paragraph 41?‑‑‑Yes.


You talk there about completing the questions in the ACFI.  Do you see that?‑‑‑Yes, I do.


Is that something that's done at the point of admission initially?‑‑‑It's done – it's an ongoing task.  It's done initially - I think it's about two weeks after a resident is admitted, and then it's done I think it's six‑monthly, and then after residents have returned from hospitals.


Is an administration person involved in doing that?‑‑‑Look, there's quite a few different parts to the ACFI, and as a CSE we were really only involved in a few areas of it.  So all the other areas the RN took control of, and I'm not sure who else, because I wasn't involved with that.


In paragraph 42 you talk about recording various information.  Is that done separately to your progress notes you make on the resident during a shift?‑‑‑For ACFIs, yes.


So they don't use the progress notes for that; they use something separate?‑‑‑It's something separate, and the system had changed several times.  I think they do tie into the progress notes as well if they wish to go back and check, but doing ACFI is a separate component.


No, bear with me.  I'm just trying to understand.  So if you take the first one, the time and date the resident passed urine, you would normally put that on the progress notes for the resident, wouldn't you?‑‑‑Not the passing of urine.


What about the time and volume of drinks consumed?‑‑‑Not unless the resident was actually on a food and fluid chart.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


We've had other evidence to say people do.  So that's not something you would be doing on the progress notes?‑‑‑No, not normally.


Can I take you to paragraph 44?‑‑‑Okay.


You talk there about the behavioural questions.  Is this you answering behavioural questions on the ACFI form, is that what you're talking about there?‑‑‑Yes, it is.


So it's not about managing wandering or verbal behaviour; it's about that you would record it?‑‑‑Yes, it is.


If I could take you to paragraph 71, you talk here about the food allergy book.  Do you see that?‑‑‑Yes.


I just wanted to make sure that I understand, because we had a cook give some evidence the other day.  My understanding is that if a resident has food allergies, those will be identified on the resident's care plan at admission.  Is that your understanding?‑‑‑Yes, it is.


My understanding is that the person in charge of the kitchen is informed of that and that goes into the food allergy book, is that right?‑‑‑I imagine that's how it takes place.


And it's your understanding that the food allergy book is sort of kept by the chef or the head cook?‑‑‑Yes.


In terms of your understanding of food allergies, would I be right in saying you were taught about those when you did your Certificate III?‑‑‑You're taking me a long time back.  I can't remember specifically I'm afraid.


So you can't answer that?‑‑‑No.


That's fine.  If you go down to 75, you say, 'Unfortunately I was never specifically told to monitor a resident for signs of dysphagia', and I understand dysphagia to mean that they have difficulty swallowing, is that right?‑‑‑Yes, that's correct.


You were never taught that in your Certificate III?‑‑‑No, not to my memory, no.  Where I learnt about that was during the Bachelor of Dementia Care course.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


So you did learn about that in your university course, but not in your Certificate III?‑‑‑That's correct.


Were you practically aware of that before you did the university course?‑‑‑Yes, I was aware of that from things I had seen.


And how early in your work as a care worker did you become aware of things like dysphagia?‑‑‑It's difficult to say.  It's one of those things that sort of - you just gain the knowledge without really being aware that you've gained the knowledge.


You're just exposed to it and you learn as you go?‑‑‑Yes, that's correct.


Can I take you to paragraph 81 where you talk about care plans?‑‑‑Yes.


You don't say it there but I don't think you - I take it in Uniting, the registered nurse puts the care plan together?‑‑‑Yes, that's my understanding.


Yes, and if you can't answer this question, don't:  am I right in saying that you will fill out your progress notes during your shift and the registered nurse will have the benefit of reviewing those?  Is that normally what happens?‑‑‑As far as I'm aware.


And if there's to be a change in the care plan am I right that the registered nurse is the one authorised to make it?‑‑‑Yes, and the doctor.


And the doctor, sorry, yes - and the doctor.  If I could ask you to go to paragraph 102?‑‑‑Yes.


There you talk in 102:  'I would help residents shower and change.  I would inspect their body and look for changes' and then you've set out some inclusions.  Do you see that?‑‑‑Yes, I do.


Again, were you taught to do that in your Certificate III?‑‑‑I think there was probably some mention of it but I couldn't tell you specifically, I'm afraid.


That's fine, that's fine.  Was this something that was taught in your university degree?‑‑‑No, this was - I learned on the job.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


If I could ask you to turn to paragraph 114, you talk in 113 and 114 about dealing with aggressive behaviour, including physically aggressive behaviour.  Do you see that?‑‑‑Yes, I do.


What was the procedure that Uniting had if you felt unsafe?  What was the procedure to follow?  What were you meant to do?‑‑‑I couldn't tell you offhand if there was a specific procedure or just what we worked out what was best to do ourselves.


You were never - Uniting didn't have a procedure where you set off an alarm for people to come and help you?‑‑‑No, but you were made aware to call for assistance if you were able to and there wasn't always enough phones around.  But - - -


You didn't have an alarm system?‑‑‑No, we didn't have an alarm system.


That's fine, that's fine.  In terms of de-escalation strategies, am I right that you would have learned de-escalation strategies when you were doing your Certificate III?‑‑‑From memory, when I did mine there wasn't a lot of focus on dementia care.


Right.  Did your university qualification cover de-escalation?‑‑‑No, but we did have a unit to talk about behaviours but a lot of de-escalation strategies were learned on the job from staff talking to other staff, telling them what would work with a specific resident, what they've done from experience that they've found to be useful.


When did you feel confident in managing de-escalation strategies in your experience?  How many years were you into the job?‑‑‑I'd estimate that I had probably had a good three years under my belt.


Can I ask you to go to paragraph 169?  You deal in this section with falls.  If a resident had a fall who was required to attend the fall at Uniting?‑‑‑On afternoon shifts we would be - notify the team leader.


Is that the EN you talked about earlier?‑‑‑That's correct.


The EN would make a decision as to whether or not they had to go in an ambulance to a hospital?‑‑‑That's correct.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


Would they do that independently or would they contact the RN?‑‑‑Generally they did it independently.


Am I right in saying that while that was being organised, you would stay with the resident to make sure they remain calm and okay?‑‑‑That's correct.


Yes.  Can I ask you to turn to paragraph 185?‑‑‑Yes.


Is this evidence that you administer medications?‑‑‑No, I did not administer medications.


Is there a reason why you didn't administer medications?‑‑‑Quite frankly because I found it an incredibly responsible role and there was no additional pay for doing that role so - - -


(Indistinct)?‑‑‑That's correct.


That's fine, that's fine.  When you're talking about the medications here in the Webster-paks, are you talking about schedule 4 medications?‑‑‑Yes.


I take it that there were some care workers at Uniting who administered schedule 4 medications?‑‑‑Yes.


I think you've covered it here but can I just understand this, very, very quickly if I can:  I think you say that the medications were kept under lock and key.  That's correct, isn't it?‑‑‑That's correct.


Who had the key?‑‑‑They would be in - the standard medications would be in a locked trolley in the medication room, which was locked.  That room, everyone who was on staff had a key to.


I take it that the person who was administering those medications would go to the cupboard and remove the relevant Webster-paks for the residents?‑‑‑That's correct.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


Let's assume I start my medication round, my schedule 4 medication round.  When I arrive at Mr Smith I assume that I have to take the Webster-pak - at Uniting do I check the actual name of the medication to make sure it's right against their chart?‑‑‑Look, I couldn't say what their procedure was since I didn't do it but that was what I observed carers doing.


So what you've said here on medications is just learned from observing somebody else do it as best as you can?‑‑‑That's correct.


I'll take you to paragraph 194?‑‑‑Yes.


You talk there about being asked to be a team leader.  You say you didn't want to become a team leader.  Am I reading that correctly?  Sorry, I'm - - -?‑‑‑No, no - you were reading that correctly.


I take it - was that your personal decision or were you worried that you - I don't say this disrespectfully - were you worried you didn't have the competence to do the job or you just didn't want the responsibility of doing the job?‑‑‑When I was asked it was just asked without notice and without having been given training to do the job prior.


That's fine, and in 195 you talk about accepting delivery of schedule 8 substances?‑‑‑Yes.


Your team leaders - can you explain to me what, 'accepting delivery' means?‑‑‑The pharmacist would come of an evening with the medications and there would be a system of them having to match the medications and recording the S8 drugs.


The S8 drugs wouldn't come in Webster-paks?‑‑‑No, they wouldn't - from memory, sorry.  I - - -


That's okay.  You might not be able to answer this but if you can fine, otherwise don't - is that - the pharmacist would come over and say, 'This is a pack of 20 Endone', and the person accepting then would have to confirm that that's 20 Endone?  Is that what's meant by accepting them?‑‑‑I had seen it where they had to count off the drugs to make sure what they were told was actually there.


When you say count off the drugs literally count each pill?‑‑‑Literally count them, yes.


That's fine.  Then am I right the Schedule 8 drugs would be put in a drug safe or something like that?‑‑‑Yes.  Yes, they weren't kept with the other drugs.

***        MARION LEE JENNINGS                                                                                                              XXN MR WARD


Thank you, Ms Jennings, thank you very much.  No further questions.


JUSTICE ROSS:  Any re-examination, Mr Gibian?

RE-EXAMINATION BY MR GIBIAN                                               [12.31 PM]


MR GIBIAN:  Yes, thank you.  Ms Jennings, can you hear me again?‑‑‑Yes, I can.


There were just a small number of matters.  Firstly, you were asked some questions by reference to paragraph 15 of your first statement, in particular in relation to the staffing at Uniting, and you indicated two things; firstly there was only an RN on during the day shift.  How many RNs were there for the entire facility?‑‑‑We had - as far as I'm aware there was one during the day.  The facility was a 69 bed facility.  Sorry, excuse me, the manager is actually an RN as well, so I guess that would be classed as two.


And you then gave some evidence about an enrolled nurse who was the team leader on the afternoon shift.  Was she the team leader for the whole facility on the afternoon shift?‑‑‑Yes, she was.


Secondly, you were asked some questions about the ACFI, or the documentation in relation to the ACFI process, and in answer to those questions you said that there were certain areas the personal - sorry, the care service employees had responsibility for in that documentation.  What were those areas?‑‑‑I think it was activities of daily living.  I'm just trying to think.  We would be taking care of their behavioural elements whether it was verbal or physical aggression, and then their bowel and urine outputs.

***        MARION LEE JENNINGS                                                                                                            RXN MR GIBIAN


You were then asked some questions about the - and this was by reference to paragraph 113 of your first statement - about dealing with aggressive behaviour and whether there was an alarm system and the like, and you indicated - and you were asked whether you'd learnt de-escalation strategies and you indicated you mainly learnt them on the job, what would work with specific residents.  What type of strategies and what different strategies work with different residents if you're able to provide any examples?‑‑‑We would have some residents where the strategies would be to try to remove them to a quieter place, because often time the activities from other residents might be what could trigger them or make the behaviours worse.  Also if we had - you know, you knew their background, you knew certain things that they might like talking about you try to engage them on that particular topic, and then - you know, we had one resident, you know, it'd be a friendly cup of tea and sit down and have a conversation with him and that often would calm him down.  So it was a range of different things.  It would depend on the particular resident as to what would work best.


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


JUSTICE ROSS:  Thank you, Mr Gibian.  Thank you for your evidence, Ms Jennings, you're excused, and we will go to Ms Twyford?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                           [12.35 PM]


MR GIBIAN:  Ms Twyford is physically in the same building as I am in and I think is logging in at the moment, so I assume she should be there.  I'm not sure what the delay is.


JUSTICE ROSS:  While we're waiting can we make this suggestion to the parties that we are content to start at 9 am tomorrow if that assists in getting through the remaining evidence.  So if you can give that some thought over the luncheon break and whether that's convenient.


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




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


MS TWYFORD:  Lindy Marie Twyford, and I work for Royal Freemasons based at Lake Haven Masonic Village, Central Coast.

<LINDY MARIE TWYFORD, AFFIRMED                                      [12.37 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                                  [12.37 PM]




MR GIBIAN:  Thank you, Ms Twyford.  Can you just repeat your full name for the record?‑‑‑Lindy Marie Twyford.

***        LINDY MARIE TWYFORD                                                                                                              XN MR GIBIAN


I think your current position is as regional food services and dining manager for RFBI?‑‑‑Yes.  It's actually dining and food services manager for RFBI, that's correct.


And you're also a senior vice-president of the Health Services Union New South Wales/ACT?‑‑‑I am.


And you've made two statements for the purposes of these proceedings, the first of those dated 1 April 2021.  Do you have a copy of that with you?‑‑‑I do.  I have it to the side on the left of me, yes.


And you've had an opportunity to read through that statement, have you?‑‑‑I have.


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


That's the first statement of this witness that we wish to have as part of the evidence.  It's document 126 in the digital court book commencing at page 7653.  There is also a statement which I think the version in the court book is undated, but headed 'Reply witness statement of Lindy Twyford.'  Do you also have a copy of that?  I'm sorry, Ms Twyford, do you have a copy of the reply - - -?‑‑‑Sorry, yes, I do.  Sorry, I thought you were talking to someone else.  Yes, I have that.


And have you also had an opportunity to read through that statement?‑‑‑I have.


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


And that's the second statement of this witness that we seek to have as part of the evidence.  It's document 127 in the digital court book commencing at page 7676.


JUSTICE ROSS:  Thanks, Mr Gibian.


MR GIBIAN:  Ms Twyford, Mr Ward will now ask you some questions.  He should appear in one of the boxes on the screen in front of you.

CROSS-EXAMINATION BY MR WARD                                         [12.40 PM]


MR WARD:  How are you?‑‑‑I'm good, Nigel, yourself?

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


I'm good - - -?‑‑‑I have been a bit nervous, but I'm sort of - - -


That's fine.  Can I just start with your current role, and I'm sorry, I didn't get it down properly, dining and health services manager?‑‑‑Dining and food services manager.


Do I take it that that's a managerial role over the top of all 20 retirement villages run by RFBI?‑‑‑Yes, 22.  Yes, it is.


How many people do you have working for you?‑‑‑Myself personally I'd just oversee the catering side of it, and the general managers have the people under them.  Does that make sense?


Not quite - can you explain what you mean by that?‑‑‑Okay, well, I don't have anyone working under me as - that reports directly to me.  I just cover all the sites with their catering.


So what part of the catering are you responsible for personally?‑‑‑The menu planning, the work clothes of the kitchens, if the facility has any concerns or problems I go out to them and work with them, work through it with them.


Thank you, that's very helpful?‑‑‑Sorry, (indistinct) it was confusing.  Sorry, Nigel.


That's fine, that's fine.  The job before that of head catering manager, how was that different?‑‑‑Well, I wasn't regional, for a start.  I was only responsible for Lake Haven itself, for the residents there, and for the staff under me there.


In that job you would have had cooks working for you and things like that?‑‑‑I had cooks, yes - I was a cook as well.


You were a cook as well?‑‑‑Yes.


Okay, and the job before that you were a head cook?‑‑‑Yes, and - sorry, I go back to the one under where I am now:  I also was responsible for Lake Haven but also for other parts of another site but yes, then I was responsible for just cooks, yes, correct.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


Have you got your first statement in front of you?‑‑‑Yes, I have.


Can I just take you back into a little bit of history:  paragraph 10 you say you did a business catering advanced certificate.  We haven't heard of one of those before yet in this case so what - - -?‑‑‑Business catering advanced certificate?


Yes, what was that?‑‑‑Well, that was very similar to your Certificate III in Cooking; very similar modules.


Yes?‑‑‑I put myself through that because at (indistinct) I was asked to cook.  I wasn't sure what to do or how to do it so I thought that I needed skills and that's got the skills.


Back in the early 90s that was similar to the Certificate III in Commercial Cookery?‑‑‑Yes, the same modules, yes, yes - it has the same modules in there as what that has, yes.  It had accounting as well in it as well but basically it covered it.


So it covered the actual cooking, it covered stock (indistinct), all those?‑‑‑Yes, yes.  I have a list here of what it covers if you want me to read it.


Please, if you can very quickly, yes?‑‑‑Okay:  the (indistinct) environmental is the same for work practices, participate in safe food handling, participate in safe work practices, plan and cost basic menus, prepare appetisers, salads, dishes, basic methods of cookery, seafood dishes, meat dishes, stocks, sauces and soups, vegetables, cakes, pastries, treats, preparation equipment, hygiene practices for food safety - where I worked for six months under the local health inspector - work effectively as a cook, work effectively with others, and provide me with a nationally-recognised trade accreditation qualification at the end.


Thank you for that.  Thank you, that's (indistinct).  But can I come back to something you said a minute ago:  you said in your current role you're responsible for menu planning?‑‑‑Yes - you're putting out the central menu.  We have a central menu.  Yes, that's correct.


Do you do that with a dietician or - - -?‑‑‑We have a menu review.  We work in - I have a team of - I involve all the other cooks or catering supervisors across RFBI.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


Yes?‑‑‑It involves the residents, it involves the staff as well and we all have input into it as is expected and they all come back to me with what they'd like in it and then it's reviewed by a dietician, which we do.  I've just been through that process again.


So your cooks at your operation will meet with you and discuss what their preferences might be for the menu?‑‑‑Yes.


I take it they would discuss the current menu as part of that?‑‑‑Yes.  They all have involvement and me too, Nigel.


You would then put a draft together?‑‑‑Yes.


You would send that to the dietician for review?‑‑‑No, I'd send it back to - the draft goes back to all of the catering supervisors, cooks, across RFBI and the relatives as well and then the final draft I put in place and then that goes to - once the menu is decided on it goes back to - it goes for review.


Okay, to the dietician?‑‑‑Yes.


What is the dietician looking for?‑‑‑That we've addressed all the relevant dietary requirements, that it addresses everything that the residents - they've accepted their likes, dislikes, their proteins, their dairy products, all across the board.


If the dietician is not comfortable with that, what will they ask you to do?‑‑‑They'll come back with suggestions and look at - but we had an excellent result.  It came back just recently.  So they would ask - sorry?


I'm not surprised?‑‑‑Nigel, I'm very pedantic with that and more importantly that all the catering staff is involved in it, not just the cooks - the assistants, everybody needs to have involvement because they themselves are responsible for making sure the residents' dietary requirements are met.


At RFBI you let everybody read the draft menu?‑‑‑I send it out, yes, to the cooks and then they send it - they take it to focus meetings and take it to residents' meetings.  I think one good thing we did this time is the relatives have been involved and they had input, which was very productive for us.


Is that a new feature, is it?‑‑‑It's just something that we thought would be good.


Is it your job to authorise the menu?‑‑‑Yes, yes, that's my role.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


That's your responsibility?‑‑‑Yes and of course in conjunction - like, the regional managers have input into it, the (indistinct) - there's everybody.  I just don't take it upon my self to say put in place.


You talked a minute ago about managing work flows?‑‑‑Yes, if for example - another facility might be struggling with areas, I will go out and just have a look at their procedures, their rostering and things like that, to assist them in that area.


Is it your responsibility to make sure that their operating procedures are up to date and current?  Is that part of your job?‑‑‑It can be.  It's more part of the catering supervisor and manager but yes, I assist them with that because that's their role, Nigel.


In terms of - how did you describe that job, the catering manager?‑‑‑There's different ones:  catering supervisor or hospitality manager or catering manager; it just depends on what their roles are - and head cooks.


So in terms of how you might establish your procedures, be it procedures related to food safety to anything like that - are they centrally put together?‑‑‑Yes, we have a food safety program that is put together centrally and that's another area too, you've reminded, that I helped them with their food safety audits, just like we're doing now, due to COVID a lot of it is Zoom now and so we have a system in place, the (indistinct) system with food safety.  So yes, that's across centrally.  That's a central food safety program.


If I come into work in one of your kitchens I'm inducted into those procedures?  I don't bring my own in?‑‑‑NO, that's right.


Can I just briefly take you to a couple of things I if I can?‑‑‑Yes.


Can I ask you to go to paragraph 26?‑‑‑Of the same statement?


Yes - you say there:  'It's necessary for food services staff to remain actively observant of residents as they are eating'?‑‑‑Yes.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


'It's relevant for monitoring nutrition but also can be urgent (indistinct) in the event the resident is in distress or difficulty with their eating and swallowing'.  We've got different evidence on this but are you saying that in your operation the personal care workers will not be in the dining room with the residents when they're eating?‑‑‑There could be times, Nigel, when those personal carers are called away.  There's been emergencies, there's been short staff at the moment in the industry.  All of RFBI's staff are to have - goodness me - first aid, sorry, training and so it's very common for our staff to be in the dining room on their own and if a resident chokes or a resident has coughing or falls, then that staff has to administer first aid.


So they're all - it's a rule in your business, is it, that everybody has to have first aid training?‑‑‑Yes.


Is that the standard St John's Ambulance type training?‑‑‑Yes.  As a matter of fact, they're doing one now but we regularly go through it.  And the staff in there, you know, they need to know - they could be in there to observe what that resident, if they have a puree meal or if they have to have fluids and that catering assistant is on her own and she has to have knowledge of that.  Definitely.


Are you like the other people we spoke to recently in the case.  A particular resident's position in the International Dysphagia Diet Standardisation Initiative scale, that's in their care plan.  Is that the same with you?‑‑‑I think - are you talking about the - everything's in the care plan that the resident has, yes.  Everything.  So, that care plan also too we have a dietary nutrition forms that comes to the kitchen and all catering staff, assistants as well, need to know that.  They need to know - - -


I think what we heard today - sorry, I wasn't trying to cut you off?‑‑‑No, no, no.


I think what we've heard already is that all of those things are in the care plan and there's a food allergy book normally kept in the kitchen.  Is that the same with you?‑‑‑Yes, we have - yes, there's food allergies.  There's likes and dislikes, there's everything that you - if you come in, Nigel, to the kitchen and you need to work there, everything is there for you.  Everything.  Knowledge about that resident, all staff need to know that.


Can I just - you might not know the answer to this but one of the chefs earlier said that when they leave things for the afternoon like sandwiches and things like that, they put different coloured stickers on them depending on whether or not they're gluten free or where they sit on the IDDSI scale.  Do your people do that as well?‑‑‑We do different ways.  The - as I said, our catering staff know everything about the resident.  They have - they write on the stickers that they write on there what the resident's name is, they have, and what their diet is.  But the catering assistants because mostly if the cooks not there of an evening or morning, they need to know the diet - dietary requirement for that resident.  Similar thing, Nigel.  People have different work protocols.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


Yes, so that would be in the written material that's kept in the kitchen?‑‑‑Yes.  Yes.


And paragraph 34, can I just take you to that?‑‑‑Yes.


When you refer to safety skills, sorry, I apologise, safe food skills?‑‑‑Yes.


I think we had some evidence about how you had to maintain certain temperatures in foods and if you didn't what you had to do.  Is that the style of thing you're talking about when you talk about safe food skills?‑‑‑Yes, yes.


Am I right, the witness last time said those apply everywhere where food's served.  Is that your understanding?‑‑‑Yes, yes, every - yes.  They're very strict with it, the food authority has put that in place and it's something that our - all staff in the industry needs to be aware of, definitely.


Yes.  Can I take you to 37.  You say:


Ordering at a facility level involves taking responsibility for stock management.




I think you said earlier that when you did your Cert III that was part of your Cert III didn't you?‑‑‑Yes.


Yes.  Do you have central stock suppliers?‑‑‑What do you mean by, sorry, central stock suppliers?


So, the cook doesn't decide where he wants or she wants to go and buy the stock from do they?‑‑‑No, we have a - at the moment we've got a - one supplier for dry goods, chilled goods and we have a choice there, a list of all products that they can purchase from for the dry goods.  And the others if the milk - and different sites out there use either local suppliers but it's all on our - in the intranet, it's everyone, they all know who they supply from, yes.


So I'll just understand this.  You authorise, you sign off on a menu?‑‑‑Yes.

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


And I assume the menu then based on the number of residents in each facility explains what stock you need to actually do the menu.  Is that right?‑‑‑Yes, so what we put out besides the menu is we put out the recipes for them and we don't tell them they have to use that but we guide them and that's a guide and if they have their own we let them do that.  We put out the ordering, what's needed for that particular recipe on stock and assist in that way, yes.


So, if I was the cook at one of your facilities I would be able to go into my dry goods pantry and I would be able to see that if I'm preparing a particular part of the menu for tomorrow, I might be getting short on flour or something like that, I would - I would place an order online with the approved stockist for that?‑‑‑Yes.


I take it that - is that a kind of go online and I sort of click I need 20 of these and 30 of those?‑‑‑Well, you go online or you can do it paper based.  We have both systems.  But yes, we deal with a company called Epiq Wright and they set up their own system with us that we don't go with anyone else in that area.  So, they go in and there's a list of products that they can purchase and they only purchase from there.


In terms of the pricing of that product, you've negotiated with them at a high level in the organisation?‑‑‑Yes.  Yes.


So, the cook's not involved in the pricing?‑‑‑No, the cook's not involved in the pricing for the dry goods and the chilled goods.  If they're with the butcher themselves, we also have a company called Andrews Meats where a lot of the sites go with but if the cook decides to go with their local butcher to keep the local area going, then they negotiate that price.  But they also communicate with me the pricing and, you know, that it's level with what we don't want it to go over.  At the moment, as you know Nigel, it's quite - the food has gone up, pricey.


So, you have the ultimate responsibility for approving that pricing?‑‑‑Yes, I have the responsibility of making sure that their cost per head does not go over what - the amount is allocated and then the general manager also assists in each facility with that particular - - -


The general manager could be actually the person signing off you can buy X from Y?‑‑‑Yes, could be, could be, yes.  But mostly we have put in place a central system where we're trying to keep it across the board that it's easy for the cooks to go in.  If the cook can't do it, the assistants can go in and order so that it's - yes.  Does that make sense to you?

***        LINDY MARIE TWYFORD                                                                                                             XXN MR WARD


No, it does.  The system's set up to help with that?‑‑‑Yes, yes.


Just a minute.  Thank you very much?‑‑‑No, you're all right, Nigel.


Take care.  No further questions?‑‑‑That's it.  I'm finished, okay.


JUSTICE ROSS:  No, no, not yet?‑‑‑Sorry.  I breathed a sigh of relief.


No, that's all right.  Any re-examination?‑‑‑Sorry?

RE-EXAMINATION BY MR GIBIAN                                               [12.58 PM]


MR GIBIAN:  There were just a couple of questions.  Ms Twyford, can you hear me again?‑‑‑Yes, I can hear you.  Sorry, it's (indistinct) - yes.


Initially, in the cross-examination you were asked some questions about your responsibilities, and you described your responsibilities in your current role as extending across all the sites?‑‑‑Yes.


I just want to clarify.  Who do you report to within the RFBI?‑‑‑Chief of Operations.


Secondly, you were asked some questions about  menu planning and you said it was a process that involves input from cooks, residents and managers at least.  Can you just describe for us the process that is gone through for seeking feedback and input in relation to menus?‑‑‑Okay.  So, I send - we have the menu, we - there's a team that sits with me and we go through what we need to change for seasonal.  We used to go that where - we do it seasonally but what we've decided is instead - we need to have availability just of summer meals, winter meals, all across the board.  So, we phase in and phase out.  So, then when we've done the first part of it and changed it, we send out the first of that change in the menu to the other cooks and regional managers who the - and general managers.  Sorry, I'm just trying to think of the procedure.  That goes out to everybody and everybody has the input into it, and especially the residents.  So then they have their meetings and they go through, so it's not just me deciding that this is how we're going to change our menu.  So does that make sense?

***        LINDY MARIE TWYFORD                                                                                                            RXN MR GIBIAN


Yes.  And what staff within a facility will be involved in seeking the feedback from residents?‑‑‑Well, okay, the staff in the facility.  Personally, they need to - the Activities have the residents meetings, they hold residents meetings and they are involved in there.  The catering assistants can be involved by talking one on ones to them.  The cooks, the catering managers, everybody.  Everybody needs to have that communication with the resident - that's my opinion - because they're the ones that work with them daily and the reason I say Activities they hold, where I am, the residents' meetings.


And one last matter.  You described part of role as being managing work flows and that if a particular kitchen was struggling then you'd go in and look at their rosters and some other things.  What did you mean by 'struggling' in that context, or what types of difficulties are you addressing in that part of your role?‑‑‑Well, at the moment it's – as you know, the industry at the moment is in crisis and it's really hard, the staffing, hard to get staff, the workflows, and just knowing that we might employ a chef that comes onboard and that chef's come from another industry, so I go out there and work - and the new catering managers or hospitality manager, I'll sit and work with them, and then include all the other staff, and work through it like that, but that's – yes, they have different problems or issues, and I just helped address it.  Does that - - -?


Yes, and what types of problems are they sometimes experiencing, if you can provide any example?‑‑‑Look, getting staff is one of them, and knowing how to roster.  Food safety, knowing how the training and that – we need to go out and talk about training and that.  The pureed foods, talking to them about that; what's expectations; putting - making sure in the kitchen that the likes and dislikes are standard and – yes, is that enough or you need - - -?


Yes, that's great.  Thank you, Ms Twyford?‑‑‑Sorry, I'm just trying to think of the work – you know, it could be anything.  It could be – the way the industry at the moment is, you know, it could be any issue – COVID, they could be all at the moment in COVID lockdown so we need to go out and help with that.


Yes.  Thank you.  That's the re-examination.


JUSTICE ROSS:  Thank you for your evidence, Ms Twyford?‑‑‑Thank you.


Thank you.

<THE WITNESS WITHDREW                                                             [1.02 PM]


JUSTICE ROSS:  We'll adjourn and resume at 2 pm.  We've been advised that ABI does not require Ms Wischer or Mr Crank for cross-examination.  That's right, Mr Ward?

***        LINDY MARIE TWYFORD                                                                                                            RXN MR GIBIAN


MR WARD:  Your Honour, it is.  Can I just also indicate that Professor Junor will be cross‑examined by my colleague, Ms Rafter, not myself.


JUSTICE ROSS:  All right.  Thank you very much.  See you at 2.

LUNCHEON ADJOURNMENT                                                            [1.03 PM]

RESUMED                                                                                                [2.01 PM]


JUSTICE ROSS:  We'll call David Egden.


MR EDEN:  It's David Eden, E-d-e-n.


JUSTICE ROSS:  Eden, sorry.  Sorry, Mr Eden.


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


MR EDEN:  I certainly can.


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


MR EDEN:  David John Eden, Level 5, 222 Kings Way, South Melbourne, Victoria.

<DAVID JOHN EDEN, AFFIRMED                                                    [2.01 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                                    [2.01 PM]




MR GIBIAN:  Thank you, Mr Eden.  You can hear me?‑‑‑Yes, I can.


Excellent.  Can I just get you to repeat your full name for the record?‑‑‑David John Eden.


And you're Assistant Secretary of the Health Workers Union in Victoria?‑‑‑That's right.

***        DAVID JOHN EDEN                                                                                                                        XN MR GIBIAN


You've made one statement for the purpose of these proceedings dated 12 October 2021.  For the record, it's document 1023 in the digital court book commencing at page 7549.  I think there was just something you wanted to clarify about the final sentence of paragraph 5 on the first page of that statement.  Paragraph 5 you're referring to work that you've previously undertaken as an enrolled nurse with the St John of God Healthcare and you make an observation at the final sentence at paragraph 5 right at the bottom of the first page, that because you worked alone you had a greater degree -


Level of responsibility than if I worked in a hospital or residential facility, as I had no senior staff for guidance or advice.


?‑‑‑Yes, that should be - - -


Is there something you wanted to clarify about that?‑‑‑Yes, that should be direct guidance because obviously working remotely I wasn't working alongside a registered nurse.


And, sorry, what sources did you have of guidance and advice then that were not direct?‑‑‑If I required any further advice then I was provided a mobile phone so I could contact the Division 1 nurse back at the office.


Yes, thank you.  With that clarification, you've had an opportunity to review that statement have you?‑‑‑Yes, I have.


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


So we seek to have that document or that statement as part of the evidence in the proceeding.  You should see Mr Ward in one of the boxes in the screen.  He'll now ask you some questions.


JUSTICE ROSS:  Thanks, Mr Gibian.  Mr Ward.

CROSS-EXAMINATION BY MR WARD                                           [2.04 PM]


MR WARD:  (Indistinct)?‑‑‑Good.

***        DAVID JOHN EDEN                                                                                                                      XXN MR WARD


I'm appearing in these proceedings for the employer, so be aware of that.  I've only got a couple of questions for you if I can.  Just to begin with can I just understand that your union's not a separate union.  It's part of the HSU is it?‑‑‑Yes, it's Health Services Union Victoria No.1 Branch grading as the Health Workers Union.


I won't ask you anymore questions about that, that sounds quite complicated.  How long is it since you were an enrolled nurse?‑‑‑So, since I worked as an enrolled nurse or since my registration lapsed as an enrolled nurse?


No, how long since you worked as an enrolled nurse?‑‑‑Nine years.


Nine years.  And do I take it that you were, when you worked as an enrolled nurse, you worked in home care, not residential care?‑‑‑That's right.  I was working for Health Choices which is the district nursing arm of St John of God Healthcare and a very good employer by the way.


At least somebody's finally said that in these proceedings.  Can I just understand this, when you arrived at a client's home, were you required to do any risk assessment on arriving?‑‑‑Absolutely.  That was one of - well, it was probably the second thing that we would do.  The first thing we would do is if we were - we were all provided a vehicle at Health Choices and we'd do an inspection of that vehicle before we even left, and then if we've got a new client we do a complete assessment of the home environment and home situation.  As in who else was living there, were they at a risk?  Were there animals et cetera.


If you felt that that environment was unsafe, what was the procedure you had to follow?‑‑‑I would remove myself if it was immediate risk.  If it was - like, if part of my assessment picked up that the bathroom needed alterations prior to us coming and providing that service that'd be a different thing.  It'd just be part of the risk assessment.  But St John of God Healthcare are one of the few employers in Victoria that are self-insured when it comes to WorkCover.  So they are particularly switched on when it comes to OH&S.


Okay.  And I take it that when you were an enrolled nurse, if you found yourself in an unsafe situation, did your training teach you how to de-escalate from that?‑‑‑It did and we would also - we would remove - we'd certainly remove ourselves from the situation if we thought we were at great risk and also at the time, we were provided a mobile phone but I believe that they've even got higher levels of security for the staff since I left (indistinct) personal alarm system.


So, they carry like a personal alarm that they can set off, do they?‑‑‑I believe so.  I think even go as far as if they're idle for too long, it might just give a bit of a nudge saying are you okay, yes.

***        DAVID JOHN EDEN                                                                                                                      XXN MR WARD


John of God Healthcare, how big are they in Victoria?‑‑‑They've got a - they've got a number of sites;  Warrnambool, Geelong, Ballarat, Bendigo.  There's a couple of sites in Melbourne too but not all of them offer health choices, the in-home district nursing.  Warrnambool's got a pretty big service out of there and Ballarat is ticking along or was ticking along quite nicely when I worked there.


Can I ask you to go to paragraph 37.  I'm just trying to understand the slightly emotive word there of 'dangerous'.  Do you see that word 'dangerous'?‑‑‑Yes.


I take it if you're required to do a risk assessment on arrival, you've got protocols about leaving and maintaining your safety.  When you use the word dangerous there, what are you - what does that mean; dangerous?‑‑‑What was it?  Thirty-seven did you say?


You're not suggesting you're putting yourselves in harm, are you?‑‑‑Yes.  No, we certainly wouldn't put ourselves in harm.  We would retreat from that sort of environment.


Okay.  No, that's fine, that's fine.  I'm not being cute when I ask this, Mr Eden, so bear with me?‑‑‑No, that's okay.


You've described Employee A and Employee B?‑‑‑Yes.


I take it you're not going to tell me who Employee A is?‑‑‑No.


No, you're not, no.  I've learnt not to play games with that.  I assume you're not going to tell me who Employee B is?‑‑‑No.


And you're not going to - - -?‑‑‑I would go so far as to say Employee A is covered by a different agreement than Employee B I suppose, yes.


That's so generous of you.  I'm not suggesting that you've made them up and you're lying.  I'm not suggesting that but you don't intend to tell me who they are?‑‑‑No.


And am I right in saying that you told those people they could give evidence in these proceedings?‑‑‑Yes.

***        DAVID JOHN EDEN                                                                                                                      XXN MR WARD


And am I right in saying they elected not to give that evidence?‑‑‑They wanted to withhold their names.  We actually put out a survey across our membership asking if there were people prepared to come forward and give evidence, and they were two of that group.


I'm just going to ask it again if I can, Mr Eden.  You told them that they could put on a statement of evidence in these proceedings?‑‑‑Yes.


And they declined to do that?‑‑‑I believe - I believe they did not.


No, they did not, no.  So, they're not actually appearing as a witness in these proceedings are they?‑‑‑No.


No further questions.


JUSTICE ROSS:  I'm not sure I follow the last answer when you were asked whether and they declined to make a witness statement and you said, Mr Eden, they did not.  What is their position?‑‑‑Well, they've put in a statement through us, if you like, but they wanted to withhold their name.


So they haven't put a statement in the proceedings.  The information they've provided to you is incorporated in your statement under Employee A and B.  Is that what you're saying?‑‑‑That's what I'm saying.


I follow.


MR WARD:  On an entirely anonymous basis, Mr Eden?‑‑‑Yes, that's right.


Your Honour, I'll deal with it in submissions.


JUSTICE ROSS:  Okay.  Re-examination?


MR GIBIAN:  There's no re-examination, thank you, your Honour.


JUSTICE ROSS:  All right.  Thank you, Mr Eden, for your evidence.  You're excused?‑‑‑Thank you.  Have a great week.

***        DAVID JOHN EDEN                                                                                                                      XXN MR WARD


It speeds up as the day goes on, Mr Eden?‑‑‑Yes, that's right.  Glad to be of assistance.

<THE WITNESS WITHDREW                                                             [2.11 PM]


JUSTICE ROSS:  Do we have - is it Professor Junor is to be called next.  Is that correct?


MR WARD:  Your Honour, can I just indicate that Ms Rafter from my office is dealing with this and I'll just take my leave while that's being done if I might.


JUSTICE ROSS:  No, certainly.


MR GIBIAN:  And if the Full Bench pleases, if I can indicate that Mr Hartley will be taking Professor Junor as well.


JUSTICE ROSS:  Sure.  All right, well we'll call Professor Junor.


MR HARTLEY:  Your Honour, she's been called and she'll join shortly.


JUSTICE ROSS:  While we're waiting, I take it you're not planning on taking the witness through the large number of changes to the statement.  You're just going to somehow refer to those and ABI and the rest of us have a copy of them, and you can file a revised statement which just accepts all the changes in due course and that will be then included in the digital court book.


MR HARTLEY:  Yes, as it pleases the Commission.


JUSTICE ROSS:  Any update on where the professor is?


MR HARTLEY:  I'm told she's on her way in.  I don't have any further update.  I apologise to the Commission for the delay.


JUSTICE ROSS:  When you say on her way in - - -


MR HARTLEY:  She should be re-joining the Teams link - - -

***        DAVID JOHN EDEN                                                                                                                      XXN MR WARD


JUSTICE ROSS:  Okay.  So, she's not in a tram or anything like that?


MR HARTLEY:  No, no, your Honour, no.


JUSTICE ROSS:  Okay, thanks.


THE ASSOCIATE:  Professor Junor, can you see and hear me?




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


PROFESSOR JUNOR:  Yes, Anne Merilyn Junor, University of New South Wales, Kensington.  Is that sufficient address?


THE ASSOCIATE:  Yes, it is.

<ANNE MERILYN JUNOR, AFFIRMED                                           [2.14 PM]

EXAMINATION-IN-CHIEF BY MR HARTLEY                               [2.14 PM]


JUSTICE ROSS:  Yes, your witness.


MR HARTLEY:  Dr Junor, can you see and hear me?  This is Jim Hartley speaking?‑‑‑Jim, yes, I can.


Thank you.  Now, for the benefit of the Commission, Professor Junor's report is at tab 117 of the court book, commencing on page 3473.  Professor Junor, could you please just state your full name again?‑‑‑Yes, Anne Merilyn Junor.


You're a honorary associate professor within the Industrial Relations Research Group of UNSW Canberra.  Is that right?‑‑‑That's correct, although I'm located in Sydney.


Yes.  And you produced a report dated 28 October 2021?‑‑‑I did.


Do you have a copy of that report with you?‑‑‑Yes, I do.

***        ANNE MERILYN JUNOR                                                                                                            XN MR HARTLEY


That's a report of 270 pages including its annexures.  Is that the right one?‑‑‑That's correct.


You've also prepared a marked up version of your report in which certain typographical and other corrections are marked up.  Is that right?‑‑‑That's correct.


Now, in addition over the weekend you've noticed five further additional cross-referencing changes.  Is that right?‑‑‑That's correct.


Now, could you go to page 51 in the main body of your report?‑‑‑Yes.


And that's paragraph 200 is the paragraph I'd like you to look at?‑‑‑Yes.


Now, in that paragraph in the second from last line where the words 'paragraph 197' appear, should that read paragraph 199?‑‑‑Yes, it should.


Can you turn now to page 67?‑‑‑Yes, I'm there.


In paragraph - I'm  sorry, I've taken you one page too far.  It's - no, that's right.  Paragraph 252?‑‑‑Yes.


Where in the first line you refer to paragraph 249, should that be a reference to 251?‑‑‑It should.


Now, on page 68 in paragraph 257?‑‑‑Yes.


There's one full paragraph and then a second paragraph commencing beneath that which is unnumbered.  Where you refer to section 3.5, should that refer to sections 3.3 to 3.5?‑‑‑Yes, it should.


And I apologise to make you go backwards, my notes were out of order, but on page 65 and paragraph 247, could you go there please Professor Junor?‑‑‑Yes.


Now, the first, second, third and fifth dot points, there's a reference to paragraph 244.  Should that be a reference to 246?‑‑‑It should.

***        ANNE MERILYN JUNOR                                                                                                            XN MR HARTLEY


And finally on page 71, please, Professor Junor?‑‑‑Yes.


In paragraph 267, in the third line you've referred to paragraphs 131 to 136. Should that be a reference to paragraph 268?‑‑‑It should.


Thank you.  And your intention is that your report dated 28 October should be read subject to those five corrections and also subject to the corrections marked up in the document that you've circulated last week?‑‑‑Yes, that's correct.


With those corrections the report expresses your genuine opinions and is true and correct to the best of your knowledge and recollection.  Is that right?‑‑‑It is, yes.


If the Bench pleases, we rely on that report.


JUSTICE ROSS:  Thank you, Mr Hartley.  Ms Rafter, cross-examination.

CROSS-EXAMINATION BY MS RAFTER                                        [2.19 PM]


MS RAFTER:  Good afternoon, Professor Junor.  Hi, my name is Alana Rafter and I'm appearing today on behalf of the employer interest.  I wanted to start off with confirming your qualifications to make sure I don't ask any questions that are unfair to you or going outside your expertise.  So, the major area of research for you is skills identification.  That's correct?‑‑‑Skills identification and gender, yes.


Excellent.  And you have a PhD in sociology I understand?‑‑‑That's correct.


Is that distinct from behavioural psychology, so those would be two different areas of specialisation.  Would that be right?‑‑‑Yes.


Excellent, thank you for that.  That's helpful.  So, for these proceedings - my apologies.  Would it be fair to say that you were also a major contributor to the development of the spotlight tool, which features quite heavily in your report?‑‑‑Yes.


And you were asked to apply that tool, spotlight tool, to some particular classifications, being the registered nurse, the enrolled nurse and the assistant in nursing, also personal care worker.  Is that right?‑‑‑Correct.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Now, if I may provide - just to ensure I've got it - understanding all correct, a very high-level summary of what that involved (indistinct) the spotlight onto those classifications so you started off with a spotlight work book, which you drafted the questionnaire for, based upon your expertise of what would be appropriate for that, is that correct?‑‑‑That's correct.


Then you undertook some interview, not all of the interviews of the participants but just as a follow up for some of them to collect some further information, get some clarification, I assume?‑‑‑Not quite correct - I and a colleague interviewed all people who completed the workbook into our interviews.


Thank you for that clarification.  After you collected that data you applied it to using the spotlight tool, which was aided by reference to what is the spotlight taxonomic framework or the spotlight taxonomy?‑‑‑Yes, the taxonomic framework is the nine skills at five levels.


Yes, thank you.  I'll ask you some more questions about that momentarily.  With that taxonomy, if I might just stay with that for a second, that's not specific, is it, to the care industry or care workers, is it?‑‑‑No.


It can have a more general application?‑‑‑Yes.


So I could - just to make sure I've got it all right - so I could apply it to a female-dominated industry such as teachers?‑‑‑Yes.


I could also use it in a more male-dominated industry such as construction?‑‑‑Yes.


Could I also apply it to a specific activity, say right now me asking you a question:  could I apply it with that level of precision to this single activity?‑‑‑The whole taxonomic framework?


Could I use that - sorry, just for clarification make sure that - could I take a random activity and - such as asking a question or conducting an interview - to see whether that activity involves spotlight skills by reference to the spotlight taxonomy?‑‑‑I'm sorry, I really don't understand that question because the taxonomy applies to a work process.


That's fine.  I'll move on from that.  After you collected your data and applied the tool, you've analysed it using the tool and you also - is that correct?‑‑‑Yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Then you also analysed the data you collected by reference to research that is separate to the tool, would that be a fair statement?‑‑‑Yes.


I want to turn to the spotlight tool to ask some more questions really diving into what it is to flesh it out.  So the spotlight tool, it's my understanding, is designed to help us to identify hard-to-define skills, would that be a fair statement?‑‑‑Yes.


Hard-to-define skills may include a whole array of skills such as skills described as talent?‑‑‑No.


So you say it would not apply to skills described as talent?‑‑‑Talent is not a word I would use.


Would you say it would apply to skills described as soft skills?‑‑‑Yes.


Do you say it would describe to skills described as emotional intelligence?‑‑‑When you say, 'apply', I mean, we're contesting the concept of emotional intelligence and redefining it.  So when you say, 'apply to skills called emotional intelligence', it implies that there is a thing called such skills we have redefined skills in terms of skilled emotional labour, for example.


I should say I may have been misleading you unintentionally with my words so when I'm saying it's helping to recognise skills that are hard to define, I was by reference to words such as soft skills and talent, I did not mean to suggest that the skill itself was that, but that these words may potentially lead to people not identifying the skill as such, that it's getting considered to be talent so it's not identified expressly?‑‑‑Yes, it's not a word I would use.


This skill, this (indistinct) - the tool achieves identification of these hidden skills by reference to two key components or two domains:  skillset domain and skill level domain.  Would that be a fair statement?‑‑‑Yes.


I think I'll start off my turning to the skillset - just asking some (indistinct) questions with that.  So there are three broad categories that make up the skillset domain and they are sharing awareness, interacting and relating and coordinating, is that correct?‑‑‑Yes - sharing awareness - - -


Shaping awareness, my apologies - I withdraw the reference to shaping awareness?‑‑‑Yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


So those are the three broad categories with that correction that was my slip, and that those skillsets are then broken down further into three subcategories each?‑‑‑Correct.


Together making nine elements?‑‑‑Correct.


If we turn to the first one of the categories, shaping awareness, that's broken down into - its three subcategories are sensing context or situations, monitoring and guiding reactions and judging impact?‑‑‑Correct.


Would it be fair to say that each of those subcategories can be used as descriptors to prompt identification of skills that fit that broad category of shaping awareness?‑‑‑Look, I'm sorry, I'm a bit hard of hearing.  I didn't hear all your words.


My apologies, I will repeat and I will speak louder.  Let me know if ever I'm going soft?‑‑‑Slower, slower.


No worries, I'll slow it down as well.  I was turning to one of the skillsets, which is shaping awareness, and I was seeking your agreement that - seeking your confirmation, I should say - that it can be broken down into three subcategories and those are sensing, context or situations, monitoring and guiding reactions, judging impacts?‑‑‑Yes.


My question with respect to those subcategories was can those - can they be used as descriptors to prompt identification of a skill related to shaping awareness?‑‑‑Can what be used?  As subsets of shaping awareness?


Yes?‑‑‑Yes, yes.


So if I wanted to test - I could refer to the words, 'monitoring and guiding reactions', as a guide to see if a skill corresponds to that?‑‑‑Yes.


Now, would it be fair to describe - this next section I really want to make sure I've got the terminology correct.  So would it be fair to describe the nine elements as spotlight skills?‑‑‑Yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Would it be fair to refer to them - these spotlight skills - as hidden skills?‑‑‑No, it's a terminology refer to them as hidden skills, as if the two concepts were completely synonymous, the skills in the spotlight framework can be hidden, undefined, et cetera, my category of types of invisibility, yes, but definitionally the concepts are not identical.


So would that equally apply to using the word, 'invisible'?  Would you say it would be incorrect to describe all spotlight skills as invisible skills?‑‑‑Yes, it would be incorrect.  Some skills, some spotlight skills, may be invisible.


Now, these skill categories - just for completeness - the skill categories, referring to the three broad categories, were specifically chosen after a period of research, peer review, testing and refining.  So they weren't - these aren't randomly selected categories, and equally these categories could not be characterised as an exhaustive means of identifying all skills?‑‑‑Correct.


Thank you.  That's very helpful once again.  I am now going to move on, I am going to turn to the levels, the second dimension of the spotlight.  So it's fair to say there are five levels from the spotlight tool?‑‑‑Correct.


They are numbered 1 through to 5, and they range from orienting at the Level 1, the lower scale, through to expert creating systems which is Level 5?‑‑‑Expertly creating systems, yes.


Thank you.  And you would describe skills - you would describe levels towards Level 5 as higher level skills?‑‑‑Yes.


And when I say higher level that's referring to the proficiency, a level of proficiency?‑‑‑Yes.


Thank you.  And these levels, is it also correct that they may integrate with experience, and just to illustrate what I mean by that if someone is doing a skill that's measured as Level 3 you would assume, it would be correct to assume that they already have demonstrated or have achieved the proficiency of Level 1 and Level 2; would that be correct?‑‑‑Correct.


Thank you.  I now want to return to the spotlight taxonomy.  So that is in annexure 4 to your report at page 4, and for the benefit of the Full Bench it is at digital court book reference page 3593.  So this annexure as I see it is filled with descriptors that correspond to each skill content and level.  Is that correct?‑‑‑I didn't pick up your first couple of words, I'm sorry.  Is skilled with - is still with - - -

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


My apologies.  So I'm looking at this framework on the annexure.  We can see down the left-hand side, the left-hand column we have the skillsets that we earlier discussed, and then horizontally on the top row we have the levels, the levels of proficiency that we were discussing?‑‑‑Yes.


Then below that we see text on each row that corresponds to the skillset and the level?‑‑‑Yes.


And this can aid us in identifying where potential unrecognised skills may fall.  This can help us identify potentially unrecognised skills?‑‑‑Yes.


Now, I just wanted to confirm that with skills that are unrecognised would you accept that there are multiple reasons why a skill could be considered unrecognised?‑‑‑Yes.


I want to run some examples by you to see if I'm on the right track.  A skill might - and it ties a little bit back to what I was getting at before.  So a skill - activity or skill that relates to tact, so a work process that requires some level of sensitivity, for example if I was wanting to foster independence in someone that has a disability, but wanted to do it in a discreet manner to avoid any embarrassment, would you accept that tact could be why a skill is under-recognised?‑‑‑Yes.


Now, another concept I want to raise for your consideration is tactility.  So for work that incorporates non-verbal learnings, for example if I wanted to know how to hold a newborn baby, that type of tactility, would you accept that the presence of tactility could be a reason why that particular skill is unrecognised?‑‑‑Yes.


The next concept I want to run by you is tacitness in work processes.  What I'm referring to by that word is knowledge that may be passed on through imitation.  It's embedded in muscle memory, so it's not something I picked up and learn in a textbook, I learn on the job.  Would that be another type of activity that might be unrecognised because of the tacits?‑‑‑Yes.


Thank you, that's helpful.  Now, another proposition I wanted to put to you for consideration is whether the status of a jobholder might impact the ability for a skill to necessarily be recognised, and when I say status of jobholder I am referring to an array of factors relevant to an individual, so that is age, gender, cultural background, their education level.  Would you accept that those factors collectively, or individually if you will, could lend itself to a skill being unrecognised?‑‑‑Yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Thank you, that's very helpful.  Now, I'd like to turn to the application - return back to the application of the tool, having collected all that information from you as to the terminology and how to use this tool.  As I do this I want to make sure you have the spotlight taxonomy in front of you.  That's annexure 4, page 4.  Prior to going to this exercise I wanted to take you to I understand you have a strong familiarity with skill identification in the care sector.  Would that be correct?‑‑‑Yes.


Would you be familiar with the Diploma of Nursing?‑‑‑Yes.


And you've seen a diploma before?‑‑‑Sorry, I didn't hear your question.


So you're familiar with the Diploma of Nursing and understanding?‑‑‑Yes.


In that case what I would like to do is take you to one of the units of competency in Diploma of Nursing.  I have sent you through a lot of documents I understand.  We will first identify it.  So it is the unit of competency titled 'Work with diverse people.'  It has code number CHCDIV001?‑‑‑Okay.  Sorry, I've just got to find it.


That's perfectly fine.  I'd rather you find it?‑‑‑Okay.  So again it was called?


'Work with diverse people', but it's preceded by a code, CHCDIV001?‑‑‑It must be down here.  I'm not sure why it's not opening up.  My apologies, I'm just having a little bit of IT problems.  I've got the document, but it's not opening.


What we can do for now is I will - we will move on for now and we can return to it.  I will see if I can arrange for someone to resend the document through.  I think that might be the best?‑‑‑I don't know if I'm allowed to bring somebody else into the room, but my IT assistant could help me open it, if I can just bring him in now.  Is that permissible?


I might divert that to President Ross to - - -


JUSTICE ROSS:  Do you have any objection, Ms Rafter?


MS RAFTER:  I have no objection.


JUSTICE ROSS:  That's fine.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


THE WITNESS:  It's all right, we've got it, thanks.


MS RAFTER:  Excellent.  So just confirm it's on the first page there.  It says, 'Work with diverse people'?‑‑‑Yes.


And if you turn the page to page 2, it sets out that this unit of competency has elements and performance criteria?‑‑‑Yes.


On the left-hand side column, that lists the elements, and then on the right‑hand side column, that is the corresponding performance criteria that needs to be met to achieve that element – to satisfy it for the purpose of the qualification?‑‑‑Yes.


I want to take you to one of those elements, not all, so if you could turn to page 3?‑‑‑Yes.


On page 3 you see there's a few elements listed there in the left‑hand column.  We have, 'Appreciate diversity and inclusiveness (indistinct)'; then we have, just below that, 'Communicate with people from diverse backgrounds and situations', element 3; and 4 is 'Promote understanding across diverse groups.'  What I wanted to do with this is to test my understanding of your methodology.  So I was going to direct your attention to a particular part of this and ask you a question?‑‑‑Mm‑hm.


If we could start with element 3 (indistinct) of the page.  It's, 'Communicate with people from diverse backgrounds and situations'?‑‑‑Yes.


I'm next going to turn to the performance criteria, but with each of the performance criteria I want you to bear in mind that context that's connected to communicating with people from diverse backgrounds and situations.  So 3.1 states, 'Show respect for diversity and communication with all people.'  Would it be correct that that performance criteria relates to the broad spotlight category of connecting and interacting and relating?‑‑‑Yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Would it be correct to go further, because of that context of diverse backgrounds - could I go further and connect it to the subcategory of 'Work across diverse cultures and communities'?‑‑‑The problem with the way you're expressing it is that the spotlight skill is capacity to work across; it is not work across, because that is a distinction between a skill, which is a human capacity or capability, and a behaviour.  I want to make it very clear that the spotlight framework isn't about behaviours.  It's about the capability to carry out behaviours, and that's a very important distinction.


Thank you for that.  So I can't apply it in the way I was doing it as with your first answer.  I could go as high as saying it relates to it, but it would not be correct to say I can apply it?‑‑‑Well, the word 'apply' is rather vague, and particularly if it means 'identify.'  But yes, certainly the spotlight skill of working with people from diverse backgrounds, it's a capacity that would apply to the competency standard.


Thanks for that.  I'll now - - -?‑‑‑See, it's a performance criterion which is a behavioural standard.  The spotlight skill is about the skills needed in order to carry that out, and that's a fundamental distinction.


I'll now apply that to – if we go up to 3.2, so that's 'Use verbal and non‑verbal communication constructively to establish, develop, maintain effective relationships, mutual trust and confidence.'  That would be the learning that underpins a capacity that may be found on the spotlight skill, so I shouldn't conflate the two?‑‑‑The spotlight skill enables you to carry out that work performance.


If I might use that performance criteria to narrate a task that might connect to it, to test if that would connect, because I want to ensure I'm grappling with the methodology right.  So in this competency unit it's referring to use of – 'form of communication to develop and maintain trust.'  So if I took that into a different context of I'm a care worker and I decide if I might – I might engage an interpreter to assist me to better communicate with someone that doesn't necessarily speak my language.  Are you saying I need a narrative in order to apply it to the spotlight tool?‑‑‑Yes, you need a context.


And so with that example with a person making a decision to engage an interpreter so that they can better communicate with a person, that would be a spotlight skill that would better fit to that category of connecting, interacting and relating to?‑‑‑(Indistinct) - - -


Because I (indistinct) the context?‑‑‑I'm really having trouble understanding what you're saying.  I'm sorry.


That's all right.  I might move on.  I might be making it more complicated than it is.  What I'll take you to now is – bear with me one moment – in your report you refer to care work as being 'gendered', is that correct?‑‑‑Can you point me to where I said that, because it seems like a translation into a different way of thinking.  Did I actually say care work is gendered?

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


My apologies.  I'll take it back.  I didn't mean to suggest anything to it.  I noted you used the word, 'gendered', and wanted to understand what you meant by it, and in fairness to you I'll find the passage.  What I'll take you to first is page 68 of your report at paragraph 257?‑‑‑Okay.  I'm just – I've got too many screens running.  Page 68?


Page 68, and I might take you actually to the next page, 69, apologies.  I will be taking you back to that page?‑‑‑Okay.


Let me know when you have that page in front of you?‑‑‑What was the paragraph, please?


259, and I should note, to be fair, it's in quotations.  There's a reference to 'gendered jobs', and my question is would you consider the work in nursing to be a gendered job first?‑‑‑Yes.


And when you describe it as a 'gendered job', what does that mean to you; what do you mean by that?‑‑‑I think I've described it.  It's predominantly - the people performing the word are predominantly women.  It's perceived as a caring job and caring work in society is considered work that is performed mainly by women.  There is - - -


I'm happy to take that - if you're still going I don't want to interrupt you?‑‑‑Yes, I mean, I cover this in paragraphs 248 onwards.


Thanks for that.  I now want to put a word to you that you haven't used just to see if you would consider it applies.  So this is not your word I'm putting to you.  Some other experts have described similar work, like care work and personal care work, as women's work.  Would you agree with that term as well?‑‑‑Well, it's - - -


Use that term, I should say?‑‑‑Yes, yes, yes - gendered is fine too, yes.


Thank you for that.  You described why the care work is a gendered job.  I just want to ask does - would you describe all the skills as gendered that make up the job or only some skills?‑‑‑Some.


That's fine.  I now want to take you back to your words on a different section.  If could go back a page, to page 68?‑‑‑Which paragraph, please?

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Paragraph 257 - now, at that paragraph you state that you consider that care skills that you have systematically documented have been undervalued for gender reasons and state that:  'This is because they were identified using the spotlight tool, which is a tool for making visible skills that were hitherto invisible on gender grounds'?‑‑‑'This is because', refers to my consideration.


My apologies, Professor - I haven't asked you the question just yet.  You might be seeing where I'm going.  I've read the paragraph correctly?‑‑‑Yes.


The question I have with regard to that is my understanding of the spotlight tool was that you can use it to identify numerous skills that may have been unrecognised for multiple reasons?‑‑‑Yes.


And gender was one of them?‑‑‑Yes.


I just wanted to ask with this paragraph, how does - do you need to refer to secondary resources to conclude that the spotlight skills are connected to gender grounds?  That question might be a bit unfair.  I'll break it down a bit more.  So the spotlight tool is not used to - cannot provide the reason why a skill is unrecognised?‑‑‑No - it's a skill identification tool.


Yes.  So how does the gender grounds connect to the spotlight tool?  I'm just trying to see if that connects to the research that followed or if you were connecting it to the process of applying this tool?‑‑‑The spotlight tool was originally developed in order to identify skills that were under-recognised on gender grounds.


Yes, I understand that was its original purpose.  But at the end of the project the final tool that's now published on the New Zealand employment website isn't designed to just identify skills that may not be recognised due to gender bias.  Is that correct?  The tool has broader application, to put it - - -?‑‑‑It has broader application.  Its primary purpose though is to identify skills that are under-recognised on gender grounds as a basis for undertaking a further valuing of those skills through an evaluation or work value process.  It's a job analysis tool.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


Where in the tool do you connect it to gender, because from our understanding of going through the skillsets, and the levels, they can apply to a male-dominated industry, a female-dominated industry and an array of activities with a range of different contexts.  So how can you can sustain the conclusion that it expressly shows gender bias by applying it?‑‑‑It doesn't seem to me that that's what I was arguing.  The purpose isn't to prove gender bias.  The purpose is to identify skills that have not been identified on gender grounds.  The purpose isn't to document gender bias.  The purpose is to bring to light skills that had hitherto been under-recognised on gender grounds.


I would put to you that based upon your earlier answers that gender grounds is indeed one of the grounds that a skill may be under-recognised but there are other grounds on which a skill may be recognised and the spotlight equally helps you identify those skills?‑‑‑It could.


Thank you.  I'll move on.  If you could go to page 73 of your report - and bear with me, I'm turning to it as well - if I could ask you to direct your attention to paragraph 275?‑‑‑Yes.


My understanding of your opinion in that paragraph is that you're stating that the work maybe - referring to the work considered in the spotlight application that you did for this report - the work may be undervalued by reference to the under-recognition of job sites and the under-recognition of skills?‑‑‑Yes.


Those skills, which I'll ask a few more questions about - so the fact that they're under-recognised, that doesn't mean that they're necessarily new skills, would that be correct?‑‑‑They're necessarily - - -


That they're not necessarily new skills?‑‑‑Not necessarily new skills?


That the skills have existed prior to applying the spotlight tool?  I'll frame that differently?‑‑‑I (indistinct) the question.


I'll come back to it in a different way, that's my clarity, not yours.  Going back to the under-recognition of skills, the skills you're referring to you describe as having high levels of complexity.  Is that, 'high levels', referring to first the levels on the spotlight tool - so the level three, four five, those higher levels there?‑‑‑Yes.


Is that the levels you're referring to?‑‑‑Yes.


Would it be fair to say - and I think you do refer to it later in the paragraph - you're also referring to the presence of clusters making the work more complex?‑‑‑Yes.


Clusters refer to a combination of spotlight skills?‑‑‑Of the use of spotlight skills - the use of spotlight skills in combination, yes.

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


And that combination, would it - to be a cluster, just to ensure no confusion - does it need to be between the different skillsets, so a skill from the shaping awareness and a skill potentially from (indistinct).  Would that be a cluster?‑‑‑It could.


Could a cluster also be within its own category if you had multiple sub-categories, or would that just not be (indistinct)?‑‑‑It could be a cluster.


Thanks for that clarity.  Would it be fair to say that these high levels, referring to the spotlight levels, have always been present in care work?‑‑‑I'm having real problems with your question.  Have always been present.  Is that a time concept or - I'm just not sure what you're talking about.


I will rephrase it.  So what I'm trying to understand is that in applying the spotlight tool you found high levels of particular categories in care work relating - and high levels relating to say problem solving.  That was a feature throughout - what I'm trying to understand is there is a change from your analysis of the data.  Did you understand these high levels to be a feature, a new feature that didn't exist say 20 years ago?‑‑‑Did we - - -


Using more problem solving skills, is it a new element of the care?‑‑‑The higher level skills, yes.  I got confused because you were bringing the concept of cluster in.


My apologies, I didn't make it clear I was moving on?‑‑‑Yes.  A more intensive and extensive use of complex skills has occurred over the past 20 years.


And with these clusters - and I am going back to the clusters - would it be fair to say clusters have always existed in the delivery of care work?‑‑‑I'm not in a position to answer that.


That's fine, I'll move on to the next question.  So I'd like you to go to page 55, so go back some several pages in your report, please?‑‑‑And what number, please, what - - -


And I'll be taking you momentarily just as I pull it up as well - if you could go to paragraph 223.  Now, in that paragraph at the end you say, 'If a job requires high level skills but is low paid one can reason that it is undervalued.'  I'm correct in reading that?‑‑‑(No audible reply)

***        ANNE MERILYN JUNOR                                                                                                           XXN MS RAFTER


The reference to high level skills there that would be the same as we've just discussed by reference to the spotlight tool, that would be correct?‑‑‑(No audible reply)


Now, I just want to ask - so I note you say 'but is low paid.'  What is it low paid in comparison to?‑‑‑Low paid in comparison with the national minimum wage.  Low paid in comparison to the distribution of wages generally.  A rate of anywhere between $20 an hour and $25 an hour really under $30 an hour I would consider to be low paid.


When you say wages distribution generally have you considered the wage rates in other awards or in other industries?‑‑‑Well, one of my purposes in annexure 8 was to look at wages in aged care relative to hospital nursing for example.


And would you also say - do you consider the undervalue rates of wages to be inherently undervalued?  Would that be a fair statement?  (Indistinct) your answer it's because it's not - you refer to the minimum wage - - -?‑‑‑I see what you're saying.  As well as relatively they're undervalued in terms of the size of the job, et cetera, yes.  Yes, inherently in that sense, yes.


No further questions.


JUSTICE ROSS:  Re-examination?


MR HARTLEY:  Very briefly, your Honour, thank you.

RE-EXAMINATION BY MR HARTLEY                                            [3.06 PM]


Professor Junor, can you hear me again, this is Jim Hartley?‑‑‑Yes, Jim, I can.


Thank you.  Early in the cross-examination you were asked a question about whether the spotlight tool could be applied to a single task, and your answer was that the taxonomy applies to a work process.  Do you remember that question and that answer?‑‑‑Yes, I do, yes.


Could you explain what you meant by the taxonomy applying to a work process?‑‑‑Well, the taxonomy is used in order to analyse a narrative describing the way in which work is performed.  It's not - it's sort of itemised, if you know what I mean.  The taxonomy is used - like when we use the taxonomy applying it to narratives about the work we use the taxonomy in order to assign elements of the taxonomy to a description of work performance.

***        ANNE MERILYN JUNOR                                                                                                         RXN MR HARTLEY


Thank you.  Now, not long after that you were asked some questions - you were taken to the taxonomy and you were asked whether all spotlight skills were invisible, and your answer was according to my note that some might be, but others might not be.  Do you recall that answer that you gave to that question?‑‑‑Yes, I do.


Can you explain why it might be that some skills might be invisible, but others might not be?‑‑‑Skills are invisible by virtue of non-recognition, and non-recognition can be explained in terms of our criteria for invisibility, and we did go through some of these and we talked about hidden skills that are kept discrete in order - for reasons of diplomacy, skills that are non-verbal.  Then there are the skills associated with emotional labour, the underspecified skills, and very importantly skills that we haven't talked about yet are under-codified skills that are used in order to tie a work process together and to negotiate ongoing and interactive work process.  So there's a group of if you like higher level, higher order coordinating skills through which a person ties together a line of work during - during the day, during a longer period of time, interacts with co-workers in order to create an overall interwoven arc of work in a workplace.  So those coordinating skills which do require to think ahead to purpose and think - take stock if you like and reprioritise in the course of a day.  Those sorts of coordinating skills are also very often invisible.


Thank you.  Now, thirdly, towards the end of your cross-examination you were asked some questions about the differences between the use of high level skills as between 20 years ago and today, and after that you were asked whether clusters of skills had always existed in the delivery of care work, and your answer was that you weren't able to answer whether that was always the case.  Arising out of that can I ask you this; if the time period were limited to say the previous 20 years could you identify that there are any differences between the use of clustered skills between 20 years ago and today, or is that also not something that you're able to address?‑‑‑The way we asked the questions didn't really allow that to be answered.  Certainly from what the interview participants told us, their work was more complex, more dense, more intense and more clustered than it had been.  So I guess yes, they were doing more, they were doing a wider range of things in a more intensive way, so I guess that's, yes, a clustering of work that has increased over time.


Thank you.  I have no further questions in re-examination.


JUSTICE ROSS:  Thank you for your evidence, Professor Junor.  You're excused.

<THE WITNESS WITHDREW                                                             [3.11 PM]

***        ANNE MERILYN JUNOR                                                                                                         RXN MR HARTLEY


JUSTICE ROSS:  We might take a short five‑minute break while we get Professor Smith on the line, then we'll resume.


MR HARTLEY:  If it please the Commission.


JUSTICE ROSS:  We won't formally adjourn.  We'll just have a short break.  Thanks.

SHORT ADJOURNMENT                                                                     [3.11 PM]

RESUMED                                                                                                [3.16 PM]


THE ASSOCIATE:  Professor Smith, can you see and hear me?




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


PROFESSOR SMITH:  My name is Meg Smith, and my work address is 169 Macquarie Street, Parramatta, NSW.

<MEG SMITH, AFFIRMED                                                                  [3.16 PM]

EXAMINATION-IN-CHIEF BY MR HARTLEY                               [3.17 PM]


JUSTICE ROSS:  Professor Smith - - -


MR HARTLEY:  Yes, thank you, your Honour.  Professor Smith, this is Jim Hartley.  Can you hear me?‑‑‑Yes, I can.


Could you please just state your name once more?‑‑‑My name is Meg Smith.


Have you prepared a report dated 26 October 2021 in this proceeding?‑‑‑Yes, I have.


For the benefit of the Commission that's at tab 116 of the court book commencing on page 3372.  Professor Smith, you're the Deputy Dean of the School of Business at Western Sydney University, is that right?‑‑‑That is correct.

***        MEG SMITH                                                                                                                                XN MR HARTLEY


And your report runs to 101 pages including annexures, is that about right?‑‑‑That's correct.


You've prepared a document of two pages entitled, 'Table of amendments', which you provided on Friday last, is that right?‑‑‑Yes.


That table indicates certain typographical and other corrects that you wish to make to your report, is that right?‑‑‑Yes, it is.


Could I ask you to turn to pages 4 and 5 of your report, and you'll see there tables 1 and 2?‑‑‑Yes.


You indicate in paragraph 10 that those tables were produced using what was then the most recent version of ABS data?‑‑‑That is correct.


And you've prepared an updated version of those two tables, which are in a document also of two pages entitled, 'Updated ABS data, tables 1 and 2', is that right?‑‑‑That is correct.


That document, if it assists the Commission, was also circulated to the Commission and the parties on Friday at about 1.27 pm.  Professor Smith, at paragraph 10, updates of this kind would mean that if you were writing your report today, for example, in the third line, last figure, instead of writing 14.2, you would have written 13.8.  Is that the way that these updates should be understood?‑‑‑That is correct.


But apart from changes like that, the updated tables don't otherwise affect or alter the opinions that you express in your report?‑‑‑They do not.


And your intention is that your report dated 26 October should be read as corrected by that table of corrections and as supplemented by the updated ABS data, is that right?‑‑‑Yes, it is.


With those corrections and as so supplemented, the report expresses your genuine opinions and is true and correct to the best of your knowledge and recollection, is that right?‑‑‑Yes, it is.


Thank you, Professor.  Mr Ward, who I hope you can see on screen, will now ask you some questions.

***        MEG SMITH                                                                                                                                XN MR HARTLEY


JUSTICE ROSS:  Thank you, Mr Ward.


MR WARD:  Thank you, your Honour.

CROSS-EXAMINATION BY MR WARD                                           [3.19 PM]


MR WARD:  Professor Smith, can you hear me okay?‑‑‑Yes, I can.


My name is Nigel Ward, Professor Smith.  I act in these proceedings for the major employer interests.  I'm not going to take you through your report page‑by‑page.  I'm interested in exploring six or seven themes, so it will be fairly limited.  Can I start with the gender pay gap - and I'm just going to refer to the updated ABS data table.  Could you just have that in front of you?‑‑‑Yes, I have it in front of me.


Thank you.  You've used a variety of data sets in that table, which as I read it include the average weekly earnings, the average weekly ordinary time earnings, the average hourly ordinary time cash earnings and a variety of others.  I wonder if you can just help me:  what's included in those?  What wage components are in each of those?‑‑‑Okay, so I would just make the point that in table 1, for example, that data is drawn from two separate ABS series.  So the first three lines is drawn from the average weekly earnings survey and the remainder of the table is drawn from the employee earnings and hours survey.  That might foreground some comments that I may make.  So the distinction, for example, to go to your first question, between average weekly ordinary time earnings for full-time adults and the issue of average weekly earnings for full-time adults, so that would be the distinction between the second data line and the third data line, would be the inclusion, for example, of overtime in the distinction around the inclusion of overtime or otherwise.


Can I just get you to pause there:  in terms of average weekly earnings to begin with - - -?‑‑‑Yes, sorry - average weekly earnings for total earnings, for example, I beg your pardon, is inclusive of overtime whereas ordinary time earnings is not inclusive of overtime.


When I look at average weekly earnings, could that include earnings I receive because I'm covered by an enterprise agreement?‑‑‑Yes, it could, yes.


Could it include over-award payments I receive by way of my employment contract?‑‑‑Yes, it could.

***        MEG SMITH                                                                                                                                   XXN MR WARD


Would all of those data sets that you've described include those types of things or would any exclude them?‑‑‑No, to my knowledge the key distinction in the data that I've presented is - includes the distinction between ordinary time and total earnings.  It's not distinguishing the industrial instrument by which those employees may be receiving their wages or salaries.


But not - this isn't a trick question, I'm just trying - - -?‑‑‑No.


So these data sets, none of them compare minimum award wages earned by men and minimum award wages earned by women?‑‑‑No, they do not.


I'm going to tread on dangerous ice because you're never meant to ask a question you don't know the answer to.  Do you know if there is any analysis of the gap between minimum award wages earned by women and minimum award wages earned by men?‑‑‑The employee earnings and hours survey, the latest release for that was in January of this year, and that data was at May 2021.  That data set aggregates different types of industrial arrangements but it isn't what may be listed as award wages.  It's - the data does not guarantee that the person is receiving the minimum award rate.  They may be receiving an over-award payment, for example.


Thank you, Professor.  So when you talk about the gender pay gap in this paper, you're talking about it in the context of average weekly earnings or average weekly ordinary time earnings.  It's not about minimum rates of pay in awards?‑‑‑No, it's not, and the other distinction I should make is in the second part of that table it distinguishes our non-managerial earnings.  I should have made that comment at the beginning.


Thank you for that.  You go on in your report to discuss the gender pay gap in the context I've just understood and as I understand it - please correct me if I'm wrong - from paragraph 18 through to about 40-something, you talk about the competing academic schools of thought as to why that gap exists.  Is that a reasonable summation of what's going on in that part of the report?‑‑‑Yes, in the answer to question two, which I think is around 18 to paragraph 41.


Yes?‑‑‑Yes, we distinguish between standard econometric analysis and institutional and sociological analysis.

***        MEG SMITH                                                                                                                                   XXN MR WARD


Thank you for that.  I'm always encouraged when I've read it correctly.  The people who hold the standard economics view, as you describe it, are they the economists?‑‑‑Not necessarily - they deploy a standard econometric analysis but they may - they would have economics training to utilise that progression analysis but they would - they come from a number of disciplines.


Which disciplines would they come from?‑‑‑They would come from sociology, political science, in some instances - there are scholars in the UK from a broad range of disciplines that utilise econometric analysis.


Then in paragraph 34 you discuss the institutional, sociological approaches.  Again, is that - are there economists, sociologists?  Is that a broad sweep or is that emanating from particular academic disciplines?‑‑‑It's a broad sweep of who are deploying that type of analysis.


Am I right in saying that you are - you lean to the in situational, sociological approach, not the standard economics approach?‑‑‑Yes, that is correct.


I tried to say that sensitively, that it's my understanding.  Can I take you to paragraph 60?  Just trying to understand some of the things you've said in the context of some of the things other academics have said in the proceedings.  I'm going to come back in a minute to the very beginning of paragraph 60.  I'll come back to it.  But about two thirds of the way down paragraph 60, you start talking about this notion of women's work and I appreciate it's not necessarily your phrase.  As I understand what's written there - and I'm happy for you to take time to read it if you need to, to refresh your memory - this is a notion that certain types of work have historically been done predominantly by women, predominantly in a domestic, unpaid setting, and therefore the society doesn't place economic value on that work.  Is that a reasonable summation of that concept?‑‑‑In a sense, yes, that it's a struggle to gain a sense of being deemed skilled work or, to use your phrase, of value in a sense; the recognition of its value has been impacted by the nature of the work and some of the normative assumptions about the work.


Sorry, can I just explore that?  You said something, I think, that might not have come up before.  It's not just that there is no - society doesn't attribute economic value to it, it's that society has perceived it to be unskilled or less skilled?‑‑‑Yes, it's struggled to have that sense of being identified as skilled or gradations of skilled work. Skills can be overlooked or discounted in the worker.


I'd be right in saying that in your analysis you believe that's a true today as it's ever been?‑‑‑I say that it remains - I would conclude that it remains.  Clearly, gains have been made so it's not as - not as evident now as it would have been in the early 60s, for example.

***        MEG SMITH                                                                                                                                   XXN MR WARD


I don't want you to try and say something, I'll come to it.  So it's - we've evolved along the journey since the 1960s.  Is the 1960s the jump off point of are there moments after the 1960s where we've evolved further away from that proposition?‑‑‑I think the sense of there's been matters that have been more easily addressed in that journey, in terms of determining people doing exactly the same work, for example.


Could you help me a bit more with that?‑‑‑You know, female clerk, male clerk, so the changes in the 1960s and the wage fixing system addressed that more institutionalised form of, you know, institutionalised form of what may have been called at that stage discrimination in wage setting.  But this - the area that's pointed to in paragraph 60 points to the area of (indistinct) work that is predominantly done by women and so that has raised, you know, some challenges, which have been evolving since 1972, in the Australian context clearly.  So, that is an extended answer to your question.


No, thank you, professor.  Can I bring you back to the first paragraph, sorry, first sentence in paragraph 60.  You say that in our opinion, undervaluation of work refers to labour being supplied of higher quality and a given wage rate.  Now, I'm going to try and ask this question as best as I can and I might not do a very good job, so bear with me.  Does that mean that you've formed an opinion about what quality of work we are paying for today and what's the delta of the quality of the work we're actually not paying for?‑‑‑No, I would pose it as a broader level of obstruction to that which is in your question.  The start of paragraph 60 points to the requirements of the job.  The exercise of work being at a higher level, so the word quality there refers to value in a broad sense than the level at which the work is being remunerated.


So you haven't evaluated - let's say the current rate for a Certificate III personal care worker, let's just say a hypothetically was $800, you haven't evaluated what value of work that's actually paying for compared to what you say is the quality of work that's present today.  You haven't sort of done that delta analysis?‑‑‑I haven't.  Our report did not involve any examination, primary examination, either by myself or Dr Lyons, of the work but we drew on - our work did draw on an analysis of the classification structure.  And that - yes.


Can you - you examined the classification structure as it operates today?‑‑‑As it operates today, yes.


And is that the nurses classification structure in the Nursing Award or is that the aged care classification structure?‑‑‑We've examined the classification structures in both awards.

***        MEG SMITH                                                                                                                                   XXN MR WARD


Can you give me an example then - sorry, and I'm going to assume you're familiar with it and if you're not, tell me.  Do you remember that level 4 in the Aged Care Award is the Certificate III care worker.  Do you recall that?‑‑‑Yes, I do, yes.


So, what is it in the way that's set out, what's elements of the quality of work is that missing today that's not being paid for?‑‑‑Our conclusion was that the classification structures have - there was limited evidence of any amendment to those classification structures and the evidence available to us from the Royal Commission and also the census of the aged care workforce, three census of the aged care workforce indicated increased complexity in the work, increased depth and breadth of knowledge of the work that was required, and on our conclusion that change in the demands of the work were not evident in changes to the classification structure or a recent work value assessment.


Okay.  So, if I can just put that back to you so I've understood it.  The fact that the classification structure itself hasn't evolved over the time, you draw an inference from that that it sort of hasn't kept up to date with, as you describe it, the complexities of the job.  Is that a reasonable way of putting it?‑‑‑Yes.


That's fine.  Thank you for that.  I take it that - and I don't want this to sound facetious professor, I apologise if it does.  Your analysis on undervaluation generally, am I right in saying that arises in large measure from your - as you've just described it, your analysis of the lack of work value review in the industry?‑‑‑Yes, coupled with the evidence of change in the industry.


And you draw that evidence, as I understand it, from things like the Royal Commission.  You draw that evidence as well from a variety of employee response surveys.  Would that be right?‑‑‑Yes.  The - just as a correction in the most recent census didn't include the same interview data as the 2012 and 2016 census.  It deployed a different methodology.


You were - putting aside that issue, you've been relying on generally available census data in relation to what you understand to be happening in the industry?‑‑‑And the Royal Commission, yes.


And the Royal Commission.  No, thank you.  Could I ask you to go to paragraph 163.  My apologies, just bear with me, professor, I'm sorry.  Sorry, professor, it's 106.  Could I ask you to go to that?‑‑‑Yes.


I think this is at the back end of your answers to the union's Question 6 and you've followed a very detailed history of equal remuneration cases and things of that ilk?‑‑‑(No audible reply)

***        MEG SMITH                                                                                                                                   XXN MR WARD


Thank you.  In 105 you talked about the very recent Educational Services (Teachers) Award decision, and then you make some observations about, respectfully, about the Fair Work Commission and where it's up to, and then if I could ask you to turn the page, page 38, and I'm intrigued by the last sentence of 106 and it says this:


Relevant also is the challenge of assessing work value in a bias‑free manner.  Objectivity is an illusive goal and comparisons across different types of work require complex and contested decisions -


And there's a reference there to Whitehouse and Smith, and I'm assuming, with respect, Professor, that's you.  Are you suggesting that it's not possible to objectively review work value where gender's involved?  Is that the elusive goal?‑‑‑No, I'm not suggesting that it's not possible.  I'm noting, and it's referenced earlier in the report, and it's a point also made in the article with Professor Whitehouse, that any assessment of skill carries with it some subjectivity.  Any assessment of work involves judgments by the assessor of the work, so there's their assessment; even the description of criteria and standards of work do themselves in a sense represent a particular view about work.  So it's very difficult to say around any work value assessment, or any different type of work value instrument, that it's completely objective.  I'm not making that point with regard to assessment of feminised work.  I make that comment broadly.


And I'm right in saying that your opinion is that there is an undervaluation, but you've not proffered what increase needs to be applied to remedy that undervaluation; that would be correct, wouldn't it?‑‑‑That is correct.


Respectfully, is that because you don't feel that's within your academic realm to do?‑‑‑No.  We were not asked to do that, and we've not undertaken any work in that regard.


Have you done any analysis of the teacher's decision?‑‑‑Yes - some analysis of that decision, yes.


Did you do that analysis in terms of considering whether or not there had been any remedying of gender‑based undervaluation?‑‑‑No, I didn't examine precisely the remedy that was ultimately evident.  My initial analysis was the particular interpretation and way forward provided by the Full Bench and the Commission in those particular proceedings are extended proceedings, as I'm sure you're aware.

***        MEG SMITH                                                                                                                                   XXN MR WARD


So it wouldn't be the case that you, from your professional opinion, formed any view as to the outcome of that case?‑‑‑No, I haven't examined the remedy in sufficient detail to do so.


I don't want to ask you questions that aren't appropriate.  Can I take you then, and I'm coming to my last theme, if I can, Professor – can I take you to paragraph 169.  I'll withdraw that; my second last theme – 163, if I can take you to that.  In paragraph 163 you talk about the Royal Commission's recommendations in regard to the Certificate III becoming the mandatory, minimum qualification.  Do you see that?‑‑‑Yes.


Are you saying there that you endorse that as an appropriate step?‑‑‑No, our view doesn't make a particular view on that, I guess whether it's an emphatic requirement.  The view expressed in that paragraph is with a view to the training requirements of the industry and what it, in our view, says about the specialised aged care knowledge and skills.  That's what we drew from that.


I'm just trying to clarify this then.  When you say about halfway through 163:


In our opinion, the recommendation that Certificate III and IV courses should be reviewed reflects the demands for specialist aged care knowledge and skill.


When you say that, that's not based, is it, on your personal academic analysis of the content of Cert III and Cert IV?‑‑‑No.  That's drawing from the Royal Commission's assessment of the requirement for training.


So you're simply endorsing that as a good idea, not necessarily because you've independently reviewed the current content and what's in it?‑‑‑I wouldn't use the word, 'endorse.'  I said we drew from it as reflective of the requirements for training and the knowledge and skills in the industry.  That was our assessment of that material.


Perhaps I'm being unclear.  You don't have any personal professional view that the Certificate III or IV course is inadequate at this time?‑‑‑No.  We only noted the Commission's recommendations regarding the requirement for specialist sector material in those certificate courses.

***        MEG SMITH                                                                                                                                   XXN MR WARD


I wasn't trying to be unfair to you.  We had a (indistinct) take issue (indistinct) describe it as modern, contemporary and robust, and I was just trying to see if you had some knowledge that was different.  I don't think you do.  Can I take you to the last bit of 169?  You say in 169, 'The failure to make substantive updates to the classification descriptions of aged care', and you go on, and I think you helped us with that earlier today – this is the fact that in your view, the fact that it hasn't evolved would suggest there's a difficulty with it.  I've sent you – and I'm not doing very well when I start sending things to people – I had sent you a copy of the HSU application in these proceedings.  Did you receive it?‑‑‑Yes.  That was this afternoon?  Yes.


It would have been.  For the Bench's benefit, the application appear at page 257 of the court book.  I don't want to do anything that's unfair to you.  Have you read the application before?‑‑‑I haven't read the HSU application before.


Have you read the ANMF application before?‑‑‑Yes, I have.


Can I – unless Mr McKenna jumps up and says I'm not telling the truth, my understand is that in relation to the care streams they're the same; obviously different for enrolled nurses and registered nurses.  I'm looking at Mr McKenna.  He's not jumping up, so I've probably done reasonably well with that.  Can I ask you to go to that document?


MR HARTLEY:  I'm sorry to interrupt, Mr Ward. It's Mr Hartley rather than Mr McKenna.  I missed what it was that you said in description of the ANMF application.  Could you just repeat it, and then I'll jump up if there is an issue?


MR WARD:  Well, stay on your feet.  It's my understanding that the classifications that relate to care workers are the same in both claims.


MR HARTLEY:  I'm sorry, Mr Ward, is the point that the same increase is sought in regard to - - -


MR WARD:  No, the same descriptors.  I will do it a different way.  I will do it a different way.  Professor, I sent you earlier today a copy of the ANMF application.  Do you have a copy of that?‑‑‑Yes, I do.


It's not numbered - can I ask you to go to page - bear with me - can I ask you to go to level 4.  I will just do this once, I am just interested if you could help us.  My document says it's on page 5.  It says it's (b) point 4 aged care employee level 4.  Do you see that?‑‑‑Yes.  Yes, I do.

***        MEG SMITH                                                                                                                                   XXN MR WARD


Professor, I'm not trying to ask you a trick question in any sense here.  As I understand it that's what's claimed for that level 4 care worker, and my understanding is that level 4 care worker is ordinarily the Certificate III care worker.  Mr Hartley will challenge me if I'm wrong.  Is that what you had in mind about evolving the classification structure?‑‑‑I think - I'm not entirely clear about your question, because in the material, if I'm at the same place in the ANMF application, the personal care worker material has been excised from the general - the other descriptions into its own stream for want of a better description.


You don't have the aged care employees in the document that I sent you?‑‑‑Yes, I do, and I have some striking out of material, and then down further I have new classification for personal care workers.


I am just trying to ask you this in general terms if you can just stay with me, and if we get to a point where you think it's unclear you just tell me.  Okay.  If you look at the aged care employee level 4 - do you see that in front of you?‑‑‑Yes, I do.


I am just trying to understand what you mean by - what you're looking for in the skills explanation.  This structure has these features, it talks about how people prioritise work in the first dot point.  Do you see that?‑‑‑Yes, I do, yes.


You see it talks about the responsibility for work.  Do you see that?‑‑‑Yes.  Yes.


Then it talks about supervision, communication skills, specific on the job training that might be required, or may require formal qualifications.  Do you see those descriptors?‑‑‑I do, yes.


In what you've said about, 'We need to have an evolution of these classification structures', what more would you want to see in that structure that's not there today?‑‑‑I think in general terms in - when classification structures evolve, and it's always a challenge to get the correct level of abstraction, but I think if I could use - you'd want something about some of the behavioural and technical confidence potentially, but also the progression between the levels.  Clearly I'm aware of the comments about the classification structure made by the Royal Commission and I think they made those points about behavioural and technical features and around progression, and I think as a general point they are a good - that's a good piece of guidance for any classification structure, but I'm unable to make any other comment other than that.


That's fine.  Is the notion of the technical that you've referred to, is that the quite detailed technical competencies that flow out of the Certificate III and the Certificate IV and the associate diploma and so forth?‑‑‑It wouldn't necessarily.  It would have to be at a level of obstruction that's suitable for a classification structure.  I think that's - - -

***        MEG SMITH                                                                                                                                   XXN MR WARD


Professor, thank you, there's no further questions.


MR HARTLEY:  Your Honour was on mute, but I imagine Your Honour asked me if there was re-examination?


JUSTICE ROSS:  I did, yes, thank you.


MR HARTLEY:  There is no re-examination.


JUSTICE ROSS:  Thank you.  Thank you for your evidence, Professor.  I should ask are there any questions from my colleagues?  No.  Thank you for your evidence, Professor Smith, you're excused?‑‑‑Thank you, your Honour.  Thank you.

<THE WITNESS WITHDREW                                                             [3.56 PM]


JUSTICE ROSS:  Is the next witness Ms Butler?


MR McKENNA:  It is, your Honour.  Ms Butler is the next witness to call.  I note that your Honour has indicated you're available until 4.45 today.  I think the Full Bench has also indicated that it wouldn't propose to avoid having people under cross-examination at the end of the day.  It might be worth seeking an indication from Mr Ward whether 45 minutes will suffice.


MR WARD:  I will certainly work in that timeframe.


JUSTICE ROSS:  Okay.  Well, let's go.


MR McKENNA:  I'm indebted to Mr Ward and to the Commission.  Ms Butler has joined the hearing room.


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


MS BUTLER:  Yes, I can see and hear you.


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


MS BUTLER:  My full name is Annie Butler, and my work address is Level 1, 365 Queen Street, Melbourne.

***        MEG SMITH                                                                                                                                   XXN MR WARD

<ANNIE BUTLER, AFFIRMED                                                           [3.57 PM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                              [3.57 PM]


JUSTICE ROSS:  Your witness.


MR McKENNA:  Thank you, your Honour.  Ms Butler, can I confirm that you can see and hear me?‑‑‑Yes, I can, thank you.


If at any time you have any difficulties with the technology please raise that immediately.  Ms Butler, can you please again state your full name?‑‑‑My name is Annie Butler.


And your occupation?‑‑‑I am the Federal Secretary of the Australian Nursing and Midwifery Federation.


And your professional address, please?‑‑‑My professional address is Level 1, 365 Queen Street, Melbourne.


Thank you, Ms Butler.  And you have prepared a witness statement for the purpose of these proceedings?‑‑‑Yes, I have.


Do you have a copy of it with you today?‑‑‑Yes, I do.


That is a statement dated 29 October 2021?‑‑‑That's correct.


And if I can indicate for the benefit of the Full Bench it is in the electronic court book at document 131 commencing at page 7750.  Ms Butler, that's a statement running to 239 paragraphs?‑‑‑Correct.


And I think on my count there are eight annexures, direct annexures to it?‑‑‑Yes.


And you also refer to a number of other documents titled 'ANMF documents' which are in the tender bundle.  Is that correct?‑‑‑That's correct.


Have you had a chance to read that statement recently?‑‑‑Yes, I have.

***        ANNIE BUTLER                                                                                                                        XN MR MCKENNA


I understand there are a number of corrections or clarifications that you'd wish to make to it.  Is the first of those at paragraph 13?‑‑‑Yes.


Paragraph 13 currently provides that, 'At 30 June 2021 the ANMF has more than 300,000 financial members.'  Is it correct that that figure includes student members who may or may not be financial?‑‑‑That's correct.


And so would you change that paragraph to remove the word, 'financial', so that it read:  'The ANMF has more than 300,000 members'?‑‑‑Yes.


Ms Butler, I also found at paragraph 177 there is a reference to paragraph x?‑‑‑Yes.


I take it that should be a reference to paragraph 155, is that correct?‑‑‑Yes, that's correct, it should be.


Are there any other changes, corrections or clarifications you would wish to make?‑‑‑No, thank you.


Subject to those two changes, are the contents of your witness statement true and correct?‑‑‑Yes, they are.


Have you also had a chance to review the eight annexures you refer to in your statement?‑‑‑Yes, I have.


Are those annexures true copies of the documents you refer to?‑‑‑Yes, they are.


With respect to the other ANMF tender bundle documents that you refer to, are they also true copies of the documents that you refer to?‑‑‑Yes, they are.


Thank you.  If the Full Bench pleases, that statement is relied upon by the ANMF.


JUSTICE ROSS:  Thank you.  Cross-examination, Mr Ward?


MR WARD:  Thank you, Your Honour.

CROSS-EXAMINATION BY MR WARD                                           [4.01 PM]

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


JUSTICE ROSS:  Ms Butler, hopefully you can see Mr Ward?‑‑‑Yes, thank you, I can.




MR WARD:  Ms Butler, can you hear me okay?‑‑‑Yes, I can, thank you.


Thank you, Your Honour.  Ms Butler, my name is Nigel Ward and I appear in these proceedings for the employer interests.  Can I just start with the claim:  Mr Hayes, who is the HSU President, the other day said in his evidence that they engaged an external economics consultancy to construct the claim.  Were you a participant with that economic consultancy or did you act independently?‑‑‑I wasn't a participant in that, I was independent of that.


Okay, and are you able to tell us how you determined your 25 per cent claim?‑‑‑The ANMF made our own assessment and taking into consideration all the factors we think that the Commission itself needs to take account of in considering the case, we thought that the 25 per cent increase that we're seeking meets those various factors according to our assessment.  You had a variety of people inside the union exercise their judgment to arrive at that.  You didn't use external parties?‑‑‑No, we did not.  We did that internally and across our branches.


Thank you very much.  I think you said in your evidence that you've not personally worked in aged care.  That's correct?‑‑‑That is correct, except for my time in community, but no, not in aged care.


No, that's fine.  When you worked in the health sector, are you able to let me know where you actually worked?  Was that in a public hospital or where was it?‑‑‑Yes, as it's outlined in my statement, principally in public hospitals, a series of public hospitals, all in New South Wales, and in the community setting as a community nurse and also in publicly funded community health projects.


When you were in the hospital sector, did you specialise in any particular part?‑‑‑My specialty would be described broadly as surgical nursing.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


Okay.  You've talked in your statement about what you describe as the overview of nursing care in aged care.  I'd like to just, if I can, ask you some questions to clarify the role of the registered nurse, if you can assist with that.  You understand that a lot of aged care facilities employ registered nurses and clinical care managers?‑‑‑Yes.


Do you understand the distinction in terms of what the registered nurse does versus the clinical care manager?‑‑‑It would probably depend at occasion on the facility.  There is variation across facilities.  But ordinarily the registered nurse would be the team leader of the nursing care that is being provided.


So the registered nurse is the principal clinical care leader of that team?‑‑‑That's correct.


Am I right in saying that in the aged care sector the registered nurse has always played that role?‑‑‑That's fair to say, that the registered nurse has been the leader of nursing care in the aged care sector as occurs in other settings.


Yes, yes.  To that extent, enrolled nurses or personal care workers - however one describes them - would have always reported into a registered nurse?‑‑‑Typically yes, those classifications have changed over time.


Yes, yes.  Can I just ask some questions about medication, just to clarify:  it's my understanding that only a registered nurse can administer schedule 8 medications.  That's correct, isn't it?‑‑‑Yes.


Is it possible that somebody other than a registered nurse can do that if the registered nurse is observing them?‑‑‑Not typically, no.


I'm not trying to - - -?‑‑‑No, it's just the poisons and drugs legislation is different in each state and territory.


Okay?‑‑‑There are - you know, at this point I don't think I could answer more extensively than in aged care it's the registered nurse who has that role.


From your experience, does the registered nurse usually administer schedule 4 medications if they're available to do so?‑‑‑Yes, they would - the registered nurse would always administer schedule 4 medications - I mean can always.


Yes, yes, and if they're - what I'm asking is if they're available to do so, do they normally do it, in your experience?‑‑‑Well - - -

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


Is it an issue to formally delegate it to somebody else?‑‑‑An enrolled nurse with the right skills, qualifications and training and in that right state would be able to do some of that and actually administer those medications under the supervision of the registered nurse.


I think one of your other officials has talked about the fact that that qualification is now part of the diploma or Certificate IV for the enrolled nurse, is that correct?‑‑‑That's right, it's not just an intrinsic, inherent part of the diploma qualification following the transfer of all nursing education under - when we transferred to national registration.


Can I just explore a couple of other elements of clinical practice, if I can?  Who is competent to check blood pressure in an aged-care facility?‑‑‑Again, that's quite a variation across because people - you know, not every single aged-care resident presents with the same set of circumstances in every situation or even every day just themselves.  When assistants in nursing and personal care workers have a qualification they will have been educated to take a blood pressure.  Of course that is - they're what we call baseline observations.


Yes?‑‑‑They fall easily within the ordinary normal scope of practice for both enrolled nurses and registered nurses.  So people can take, for example, a blood pressure.  It's the reporting and then the interpreting of those results that then pass along within the care team along the nursing line.  So a personal care worker could take it but would need to understand the circumstances where you report to the registered nurse.  The registered nurse is the person who then would make the assessment of what that variation means for that individual.


So if I was a personal care worker and trained to do it I could physically do it.  I could put it on the progress notes but it would be something for the EN or RN to understand what has to happen because of that?‑‑‑Depending on the result, exactly.


Depending on the result, okay - go on?‑‑‑Well, a personal care worker would just have to be alert to when to tell the EN or the RN.


And would that be something that would emanate from the resident's care plan or would that just be they would understand what is high or low blood pressure?‑‑‑Well, again, it's hard to comment on every circumstance but typically it would probably involve both.  People would be aware that someone might be on anti-hypertensives, or that they have a tendency to, you know, low blood pressure therefore they'd be markers about what's normal.


Yes?‑‑‑But then the - and then the process of referral.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


This is very helpful.  Very.  In terms of checking for blood glucose, and I'm sure there's a technical name for it which I haven't got right, is the same that you've just said applied there?  That is it's something a personal care worker could be competent to do but in terms of what occurs from the result, that would have to be escalated up to the registered nurse?‑‑‑Correct.


We've had some evidence about personal care workers injecting insulin.  Is that something - is that a procedure that doesn't technically require an EN or an RN?‑‑‑It is - it's a difficult question to answer and I'll tell you why because it is - there are diabetics all around the country who self-administer.  There are parents who administer insulin to children.  There are people, you know, daughters who administer insulin in a home to their father or their mother.  The difference when you have someone who is not your relative, who is in a particular setting is that anyone can be a performer just to do a simple task.  But it's understanding the nature of how to know whether to withhold insulin or give insulin, give insulin and then report it on, and that requires a number of factors.  There would be personal care workers who would know that the person in their care today isn't quite right or they want a check and would be able to refer to it.  So, it requires a slightly more complicated - complicated answer because it requires a bit more of a complicated assessment and again it's just not uniform.


No, that's fine, that's fine.  So, if I - just bear with me.  If I was a personal care worker and I was observing Mr Smith, Mr Smith wasn't - was falling asleep and whatever, I might form a view that it's - glucose might be a problem.  Would I have the - would I act on that on my own volition or would I go and talk to the registered nurse?‑‑‑Ideally you'd talk to the registered nurse.


Ideally?  In an unideal world what would I do?‑‑‑Well, because there are circumstances when there aren't registered nurses available at some placed.  There are some - or they're just not immediately available.


We've had some evidence of PRNs which as I understand it is sort of on the spot pain medication.  That's my understanding of it.  Have I got it right?‑‑‑Yes.


Okay, good.  Generally speaking, the evidence to date has been that the registered nurse has to confirm that.  Is there a particular reason why the registered nurse has to confirm that?‑‑‑Yes, an enrolled nurse would have capacity to assess this as well but normally - typically it would be the work of the registered nurse because a PRN is just in Latin for as required, and so it's not just the normal - the normal medication as ordered by whoever's the GP or the nurse practitioner or whoever's ordered the medication, it's something additional required.  Therefore, in order to know whether you need to give, you know, it can be breakthrough pain medication which can be - include Panadol, it can be a range of different things, an assessment's required.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


And hence you need to talk to the person with the clinical training?‑‑‑Yes.


Okay.  In terms of clinical activity, can you just describe for me what the registered nurse will do and the enrolled nurse won't do in terms of actual clinical practice?‑‑‑So, it's - this again is complicated and it's - I understand it's - - -


That's why I'm asking you?‑‑‑Yes.  I understand it's hard for people to understand what we mean by nursing practice and nursing care.


Yes?‑‑‑So, while we - so, the way that our registration work is we - it's registration of title, it's not practice registration because scopes of practice evolve, and we have long shifted away from a task based approach to nursing to a holistic - as I point to my statement, you know, a holistic approach.  That's nursing care and that's nursing practice.  So I can't say that in any - that in every residential aged care facility an EN does this definitely and then the RN does this and takes over.  Nursing practice occurs along a spectrum, nursing care, and we would say that assistants in nursing and personal care workers, they contribute to aspects of nursing care.  There's crossover between ENs and what ENs deliver and then ENs and RNs, up to - the highest level of that continuum is the nurse practitioner.  There are somethings for the nurse practitioner that are more clearly and easily defined because they're in legislation, prescribed (indistinct) et cetera.  But there would be - there would be enrolled nurses who have advanced knowledge and possibly even qualifications in wound management.  But generally wound management would, you know, be - that's a normal scope of practice - manner of practice for registered nurses.  And so when we look at that, so a scope of practice is what someone is educated to do and when we have enrolled nurses and registered nurses, they come (indistinct) to practice because they've got - were registered, qualifications for entry to practice are clear and must contain a range of - you know, matters related to nursing practice.  So they're to be educate, competent to perform the task and that needs to be documented.


That's helpful, thank you.  Can I just go on to some other matters if I can.  I sent you earlier today some documents dealing with admission.  Did you receive those?‑‑‑I did.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


I'm not suggesting you're familiar with them.  I thought they might - I thought they might help jog your understanding of what I'm about to ask you questions really.  I sent you a pre-admission checklist, an admission team checklist and an admission day checklist and I just was hoping this might prompt your memory of what happens in the aged care instance.  Obviously there's a pre-admission process before somebody comes in to the aged care facility.  I'm just trying to understand, do you know what role the registered nurse plays in pre-admission?‑‑‑I'm not really in a position to answer that.  So I've got to admit when I received these I did just check with my lawyer and question, because I thought maybe they weren't meant for me because I'm not familiar with them.  And so I - again, they look to me like they are very much specific to a certain facility.


They were a particular facility but I'm not - - -?‑‑‑That's all right because there's a couple of things I know wouldn't be occurring across all facilities, so I'm not really in a position to answer that in this facility who takes what role.


That's fine.  No, so you - do you have any knowledge of the role the RN plays in the admission of a resident to aged care?‑‑‑I would expect the RN to be involved in the discussion around care needs, care requirements, and how if someone's had an ACAT assessment such as your document suggested, how then they would be with the individual themselves and their family be then interpreting that information and producing a care plan of how those care needs were going to be met.


So, the registered nurse would be a key part of that discussion with the family, possibly with the potential resident and then the registered nurse will out of that develop the care plan for that resident.  Is that what you're understanding is?‑‑‑That's my understanding.


Am I - we've had some evidence, I just want to see if it's consistent with your understanding, once the care plan is constructed, we've had a variety of evidence that says that the registered nurse will have the benefit of the progress notes on a particular resident and will from time to time review those and will make decisions as to whether or not the care plan should be amended.  And that the registered nurse holds the authority to amend the care plan. Is that your understanding?‑‑‑The registered nurse holds the - is the person responsible for developing and assessing and evaluating care and therefore amending the care plan.  It can't be done in isolation, it just can't be.  The contributors - everyone in that - what we would describe the nursing team and the care team has to contribute to any amendment and to changes that happen that then need to be changes made in the care plan so that care can be adjusted.  In many times, you know, the personal care worker is the person making the observations.


Yes?‑‑‑And those observations have to be recorded and have to be – they form a vital part of how the care plan can actually operate effectively.


JUSTICE ROSS:  There might be an issue with your connection, Mr Ward.  You're back, okay.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


MR WARD:  Sorry, I think I'm back.  I'm not sure where I went, but I think I'm back.  If I can put that back to you, if I can, just briefly.  The team day‑to‑day make observations; they'll record appropriate observations in the progress notes; it might well be that the progress notes generate the RN's consideration; it might well be that someone in the team might actually mention something to the RN that they've observed, and all of that will be taken into account if the RN believes the care plan needs to be adjusted?‑‑‑Yes.


Would the RN then engage with the family on the adjustment to the care plan?‑‑‑They should, yes.


We've heard a lot of discussion about administration and how RNs are more and more involved in administration.  Could you just explain to us what you understand the administration activities to include?‑‑‑Much of the documentation.  I mean, care planning activities, that's – you know, the actual writing of something is an administrative task.  It's the other stuff that's the nursing stuff.  But that – we do that in nursing everywhere, but the levels of documentation that have been increasingly required as we've seen changes in the aged care sector - regulations, different standards – have just – you know, it's voluminous the amount of material that now is being required to be produced in documentation, and increasingly we hear from our members too often taking them away too often from the floor, because they're such time‑consuming tasks.  And so there's around funding instruments, around many of the reporting systems, meetings – you know, the new – the aged care standards, all those sorts of things have really increased administrative burden.


So the registered nurse is being drawn away from being the clinical person, the clinical leader, because they're more doing about quality compliance, they're getting more involved in documents related to funding and things like that, and that's drawing them away, is it?‑‑‑That's what our members report.


Let's assume there's a fall – let's say a resident has a fall.  The evidence has been fairly consistent in this case so far that the registered nurse is the sort of primary decision‑maker about the clinical wellbeing of the person who has a fall.  Is that your understanding?‑‑‑The registered nurse has the capacity to make that assessment and decision and what needs to happen.  Apart from all what would be procedurally required and protocols and processes, but in terms of a medical health assessment, yes.


Sorry, could you just develop that thing about procedures and protocols?  What do you mean by that?‑‑‑Well, the documentation has to be – you have to, you know, document it.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


Yes?‑‑‑Yes, you know, an incident, and the nature of the incident, but then there would need to be assessments about why the fall occurred.


Yes?‑‑‑Yes, and the rest of the team would necessarily have to contribute to that information.


If there was an inquiry into why the fall occurred, the personal care worker who looks after that person regularly might be involved; a variety of people might be involved at that time?‑‑‑That's right.


Am I right in saying that the registered nurse is the ultimate decision‑maker about clinically what has to happen with that person if they have had the fall?‑‑‑That's correct, excepting in a circumstance where a registered nurse is not on site at the particular time.  Typically a protocol would exist that tells the care worker what they need to do, in terms of they will need to call


And that might involve - - -?‑‑‑Most likely – most typically call an ambulance.


I've only got a few more, if I can, Ms Butler.  Is the registered nurse the principal point of contact with the doctor?‑‑‑Yes.


It wouldn't be the care manager; it would be the registered nurse themself?‑‑‑It could be both.


As far as I can remember, the registered nurse has been a university qualification for a very long time.  Just bear with me.  How long?‑‑‑Sorry, I just missed the last bit of that question.


To be a registered nurse, how long has it been a university qualification?‑‑‑Okay.  So the transfer of nursing education into the tertiary sector started in 1984 and finished in 1994.  So there was a gradual transition in that decade, but since 1994 it has been a degree program.

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


I see that the Royal Commission suggested a review of the Cert III and the Cert IV.  I'm just – you might not know the answer to this, but I assume there's not been a suggestion of reviewing the university degree for a registered nurse?‑‑‑In fact, there was a national review of nursing education undertaken.  It was directed by the government in 2018, and undertaken and reported on in 2019.  Unfortunately the government did make a response, but we've not seen a lot of action on the recommendations out of that report, because the previous one was in 2002, and so it's timely that we – you know, it makes sense that we review nursing education from time‑to‑time.


Is nursing education reviewed from time-to-time?‑‑‑Well, it was, from 2002 was the last one, and parts of the nursing profession have considered that it was timely for this to occur, particularly as we're trying to plan for the future.


And if you can't answer this question I respect that.  From your knowledge of aged care, when might somebody need more than the standard degree that a registered nurse gets?  Is there a particular type of care which might warrant something or - are you able to assist with that?‑‑‑So nurses – aged care is a compulsory component of the Bachelor of Nursing program.  To have that, you know, nurses are produced to be generalists, like, that's where you end up when you complete your degree.  Aged care is a foundational component of that.  I could suggest that there are areas of particular specialist practice, such as specialist palliative care, that would require further education and training.


What type of education might that be, a graduate certificate or - - -?‑‑‑It can be from a graduate certificate to a master's program.


If I come out of university as a graduate nurse and I go straight into aged care, do you have any opinion on how long it would take me to be sort of fully operational as a registered nurse?‑‑‑So when you complete your degree you're ready for practice.  We understand that with all new practitioners it takes time to consolidate your knowledge and your skills into practice.  So for just a beginning practitioner, you know, within six months to a year, we would say that new graduates typically consolidate their core level, their entry to practice level, of knowledge and skill.


Can I just ask you one last question?  Do you – you might not know the answer to this – is there any distinction between the qualification an assistant in nursing receives and a Certificate III in Individual Support that the personal care worker gets?‑‑‑To the best of my knowledge, no.


You'd accept that they're broadly aligned in terms of what they're covering and what they do?‑‑‑Yes.


Just a minute if I can.  One last question if I can and I will finish.  Can I ask you to go to paragraph 161.  It's late in the day, Ms Butler, so be nice to me when I ask this question.  You say in paragraph 161 in the second line:

***        ANNIE BUTLER                                                                                                                             XXN MR WARD


It is a stressful occupation requiring the right people with the right skills and knowledge.


What do you mean by the right people?‑‑‑We always talk about having the right numbers and the right types of people.  So you need sufficient staff, but you need people with the proper skills, so the knowledge and skills to be able to meet the demands of the care required, and - so that's what we generally mean by that particular phrase.


It wasn't some reference to particular dispositions or things like that, it's a reference to the mix of skills that you would have in - - -?‑‑‑The numbers and the skills, that's right.


Thank you, Ms Butler, no further questions.


JUSTICE ROSS:  Any re-examination?


MR McKENNA:  Thank you, your Honour, I will be very brief.

RE-EXAMINATION BY MR MCKENNA                                           [4.31 PM]


Ms Butler, you recall you were asked a question about whether on my notes you considered that the registered nurse would be the principal point of contact for a doctor.  Do you recall that question?‑‑‑Yes.


And as I recall your answer you agreed with that proposition, and you were asked whether the care manager might be the principal point of contact for a doctor, and I think you said that he could be.  What do you understand is meant by the phrase 'care manager'?‑‑‑I'm not well equipped to answer that, because in my understanding that can be very variable.


Would your answer about who the principal point of contact might be, would your answer differ depending upon whether the care manager had a nursing qualification?‑‑‑Yes.  If the care manager were actually a registered nurse as well, my understanding is sometimes that's the case, then yes, they could also be the point of contact.


And if that person was not a registered nurse would that be a different position?‑‑‑It would be a different position because the doctor would find it difficult to communicate.

***        ANNIE BUTLER                                                                                                                      RXN MR MCKENNA


Thank you.  No further re-examination, and if there are no questions from the Full Bench might the witness be excused?


JUSTICE ROSS:  Certainly.  Thanks for your evidence, Ms Butler, you're excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                             [4.33 PM]


JUSTICE ROSS:  Can I just return to the start time for tomorrow and the witnesses that we are dealing with.  Did you have an opportunity to have a think about a 9 am start to make sure we get through the witnesses that were listed between 9.30 and 1?


MR GIBIAN:  For our part, your Honour, we are content for a 9 o'clock start if that is convenient to the Commission.


JUSTICE ROSS:  Is it inconvenient for any - we have spoken about it and we can manage it - is it inconvenient for any of the counsel?  No.  All right.  Do I take it - - -


MR McKENNA:  At our end we will have some slightly different IT arrangements in the morning.  Hopefully that won't cause any difficulties.


JUSTICE ROSS:  Okay.  Will we deal with Mr Gilbert's evidence tomorrow morning as well?


MR McKENNA:  For our end I think that would be appropriate.


JUSTICE ROSS:  All right.  Who do you have coming tomorrow?


MR GIBIAN:  For our part, your Honour, we had Professor Kerley and Mr Eddington.  If there's to be a 9 o'clock start we were proposing to start with Mr Eddington and then deal with Professor Kerley if that's convenient.  It would perhaps be most convenient for us if the Nurses Federation witnesses were then to follow, including Mr Gilbert, if that is convenient to them.


MR McKENNA:  That is convenient.  The three witnesses who were originally scheduled for tomorrow for the Federation, Julianne Bryce, Kathy Chrisfield and Andrew Venosta to whom we would now be adding Mr Paul Gilbert.

***        ANNIE BUTLER                                                                                                                      RXN MR MCKENNA


JUSTICE ROSS:  Okay.  My notes had the cross-examination of one UWU official.  What do we know about that?  Not much?


MR GIBIAN:  I do not know anything about that.  I think there is someone appearing for the UWU, albeit not on camera at present.


MS BARRY:  Yes.  Apologies I'm not sure if my camera is working - - -


JUSTICE ROSS:  No, that's fine.  Is one of your witnesses being cross-examined tomorrow, do you know?


MS BARRY:  Yes, Ms Coad.


JUSTICE ROSS:  All right.  If there's nothing further we will see you at 9 am tomorrow.


MR GIBIAN:  Thank you, your Honour.


JUSTICE ROSS:  We will adjourn.

ADJOURNED UNTIL TUESDAY, 03 MAY 2022                               [4.36 PM]




EXAMINATION-IN-CHIEF BY MR GIBIAN................................................ PN2471

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GABRIELLE ANNE MEAGHER, AFFIRMED.............................................. PN2593

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