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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




12.59 PM, TUESDAY, 3 MAY 2022


JUSTICE ROSS:  Thank you.  I wanted to firstly just record my appreciation to the parties for their assistance in the scheduling, particularly the way that you've been able to condense the time that the Full Bench has been required in respect of the witness evidence.  It's particularly assisted me because I'm sort of in the middle of family and domestic violence leave and the annual wage review at the moment.  The email I sent is, you know, fairly self-explanatory.  Behind it is that the more I look at the material, the more there seems to be material that is not in contest - certainly some of the background information, some of the material that's captured on the joint statement, et cetera.


I think we'd benefit from the opportunity to see if we can just crystallise what that is rather than the Bench running the risk of - after the hearing's over - trying to make its own assessment about what's agreed and what's not agreed.  I also understand that putting you to that task, particularly when you're still engaged with the witness evidence, is likely to be onerous and I've got to read all the material in any event, so what was proposed was that Commissioner O'Neill has advised when she can get a draft report on the lay employee witness evidence to you.  You'll have a short opportunity to comment on that.


Then it doesn't necessarily reflect your agreed - it's not an agreed report.  But if there are any obvious errors or omissions that can be corrected and you will of course have the opportunity to comment on it in your closing submissions.  Then I've identified some documents that I think we could usefully work on that may assist in confining the amount of work you need to do in the closing written submissions but you would also need an opportunity to obviously comment on those and they pose some questions to you about whether you agree with particular propositions.


Then to provide you with sufficient time to do that, it's proposed to slip slightly the filing and hearing schedule.  So that's it in a nutshell.  Perhaps if I could hear from the applicant unions first and then the employers about the proposal.


MR GIBIAN:  Yes, thank you, your Honour.  Broadly, we don't have a difficulty and indeed welcome the proposed course and the dates of 2 and 3 August, which I understand are now proposed for the hearing of final oral submissions are convenient on our side.  The only observation I was going to make about it is - and perhaps this is what we would propose to do anyway - but it would appear to us to be most useful both having regard to the additional matters that the Full Bench has raised to date and no doubt in order to respond to the documents the Commission is proposing to prepare that we would - our submissions at least would be consolidated final submissions, as it were:  that is incorporating and superseding the earlier submissions which should have been prepared, which I think is somewhat contrary to what was contemplated by the existing directions.


JUSTICE ROSS:  Yes, and, look, I'd welcome that course as well, generally.  I've lost count of the number of these cases where there are four or five submissions that come in and they're cross-referencing earlier versions and it just becomes much more difficult to get on top of what a party is actually putting.  I also should have mentioned, Mr Gibian, that the four background materials that I've mentioned - I'm certainly open to any additional suggestions.  If a party believes that there is scope for agreement on some other aspect, then please - or it's uncontentious - then please identify that.  You don't need to do that now.  Think about it over the next few days and you can get back to me by the end of the week.


All right, can I go to the ANMF?


MR MCKENNA:  Thank you, your Honour.  Look, for the ANMF we think it looks like a sensible proposal and welcome it and the dates work.  Just one point of clarification, your Honour - as I understand it's proposed that the Commission will prepare that material, including draft agreed issues, documents and so forth.  Is it expected that that document and the other document - for example, the paper on the relevant (indistinct) history - will follow further - is the Commission expecting the parties to provide the Commission with something that will assist in the preparation of those documents?  Your Honour raised on the first day - - -


JUSTICE ROSS:  Yes, look, if we do then - it's canvassed in some of the witness evidence as well.  That evidence hasn't been challenged.  We have - where it's sort of leading is if you've got the award history, and if in fact on examination the position is as Mr Ward suggested, that there is no contest between the parties in relation to the proposition that these rates have never been properly fixed, well, I mean - you know, whilst your agreement in that regard is of assistance, ultimately we will have to form our own view.  So we'll look at the award history and we might express a provisional view about that matter in that paper.  But, look, if we do require any further assistance, we'll definitely be in touch but at this stage, I think there is at least - look, on my relatively superficial review, at this stage, of the material, I think there is sufficient in the various witness statements and the documents filed to extract that information.


MR MCKENNA:  Thank you, your Honour; that's helpful.


JUSTICE ROSS:  Can I go to Mr Redford and then I'll go to Ms Lombardi - Lombardelli, sorry.


MR REDFORD:  No objection from the UWU, your Honour.


JUSTICE ROSS:  All right.  Now that I've got you, Mr Redford, you need to get in your Word documents.


MR REDFORD:  Yes, indeed.




MR REDFORD:  I'll attend to it.


JUSTICE ROSS:  All right, thank you.  ABI, Ms Lombardelli.


MR LOMBARDELLI:  Thank you, your Honour - there's no objections to that timetable.


JUSTICE ROSS:  Okay, well, thank you very much for your assistance.  As I've said, if you have any questions about the process or any of these issues, just get in touch with my chambers.  If in terms of the documents to be provided you think they might usefully - look, for example - and this will depend on time, but I was thinking it would be useful to have a timeline of the regulatory frameworks that have applied in these sectors, because that assists when you're examining the witness evidence as well.  So, we would probably include that in also.


The advantage of putting in documents before your submissions is you'll then have an opportunity to correct any errors or omissions in those documents.  All right.  Well, thanks again and I hope you enjoy your afternoon.  I am certain I will.  Thank you.  I'll adjourn.


MR GIBIAN:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                            [1.08 PM]