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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




8.30 AM, TUESDAY, 24 MAY 2022


Continued from 12/05/2022



THE ASSOCIATE:  The Fair Work Commission is now in session.  Matters number AM2020/99, AM2021/63 and AM2021/65.  Aged Care Work Value Case for hearing.


JUSTICE ROSS:  Good morning.  As for the appearances I have Mr Gibian for the HSU, Mr Hartley for the ANMF, Mr Redford for the UWU and Mr Ward for ABI.  My apologies for the early hearing but it was the only time that the bench was able to get together.  The purpose is to consider the HSU's application which was forwarded to the Commission by email on Friday at 4.25 pm and what's proposed is that we accept the statements from five of the witnesses who are not available for cross-examination, they being Ms Deborah Kelly, Mr Stephen Barnes, Andrew White, Agnes Sharlia and Roseanne Solomons.  The HSU also indicated that they withdraw the statement of Adrianne Shelly White.  What do you want to say, Mr Gibian, in support of your application?  Your screen is frozen, Mr Gibian.  No, you're just there sitting very still.


MS GRAYSON:  Sorry to interrupt your Honour.  Mr Gibian has just messaged me to say that he hasn't been able to hear you, so he's obviously having some technical difficulties.  Shall I suggest that he leaves and re-joins us?


JUSTICE ROSS:  Yes, I think so.


MS GRAYSON:  Very good.  I'll do that now, if you can give me a minute, thank you.


JUSTICE ROSS:  Sure.  Can everyone else hear me?  Is it only Mr Gibian?  Okay.  Can you hear me now, Mr Gibian?  Okay.  Is there another computer that he can connect on?  Can he connect on his phone or - - -


MS GRAYSON:  I'll see what I can - - -


MR GIBIAN:  I can't hear anyone.




MS GRAYSON:  I'll see what I can do there, your Honour.


JUSTICE ROSS:  Thanks.  We'll also try and connect him by telephone, Ms Grayson.


MS GRAYSON:  He's going to try through another device so hopefully that will work.  The beauties of remote hearings.


JUSTICE ROSS:  Can you hear me now, Mr Gibian?


MR GIBIAN:  I can, yes, apologies.


JUSTICE ROSS:  No, that's all right.  The only thing you missed was I was indicating the purpose of the hearing was to deal with the correspondence from your instructing solicitor received on Friday afternoon in which you press that we accept the statements of five of the witnesses who are not available for cross-examination.


You also indicate that you withdraw the statement of Adrianne White and in the event that the Commission decides not to accept the five statements then you seek leave to file two further witness statements by 30 May, and those witnesses would be available for cross-examination shortly thereafter.  Was there anything you wished to say in support of that application, Mr Gibian?


MR GIBIAN:  Look, there's not much that I think I need to add to what is said into the correspondence.  There was, as the members of the Bench will have seen, simply a relatively small number of the total witnesses who were ultimately unable to arrange to attend for cross-examination and can't immediately for, in short, a mixture of some personal reasons or the passage of time having meant since the filing of the original evidence in the first half of last year, meaning that they have moved onto other jobs and simply aren't willing and the union doesn't feel it can really compel them to, or to at least use compulsory powers to compel them to attend in those circumstances.


The reason why we are somewhat concerned about it and I understand it reflects Mr Ward's position as well, to some degree is that they concern some of the cleaning and maintenance roles that are not otherwise as – or only covered by a relatively small amount of the evidence.  Otherwise we'd probably just let it pass if it was a care-worker work or the food work which has been more thoroughly covered by the other evidence.


Obviously it's a question of balance but as we've said in the correspondence, in terms of what is necessary for appropriate procedural fairness to be afforded, it's a balance between practicality and the Commission being properly informed, and we don't think that there is a compelling need for the witnesses to be available for cross-examination in circumstances where there aren't credibility or reliability issues, and we don't think there is really direct challenge to what is said in their statements or likely to be direct challenges to what is said in those statements.


If the Commission isn't with us in that respect, then we've proposed an alternative course which we think oughtn't delay it in any substantial way, at least the timetable which has been sent.


JUSTICE ROSS:  Thanks, Mr Gibian.  Mr Hartley, anything you want to say about this?


MR HARTLEY:  No, the ANMF takes no position in regard to this application.


JUSTICE ROSS:  The UWU, Mr Redford?


MR REDFORD:  Nothing from me, your Honour.  Nothing from me.




MR WARD:  Thank you, your Honour.  Largely this matter has to some extent already been ventilated before Commissioner O'Neill so I'll largely restate what I've put to the Commissioner.  It's my understanding that these witnesses either simply can't be found or for the most part simply don't want to attend to swear their evidence and be cross-examined.


As I said to Commissioner O'Neill when this matter was originally ventilated, we acknowledge that the Commission has broad discretion in section 590 and 591 but, respectfully, there must be some limits to that in terms of procedural fairness.  As Commissioner O'Neill would be well aware, our cross-examination has not only gone to what they've said, it's gone in many respects to what they haven't said which is quite relevant in the work value case.


That is to say, a lot of the witnesses have painted a picture of part of their role, part of their accountability and part of their function but they have not painted the whole picture and our cross-examination in many regards has gone to the whole picture.  There are some interesting issues in some of these witness' statements and I'll just use one by way of example.  Ms Deborah Kelly, who's a cleaner and laundry hand.  If one does the maths about her day in an eight-hour shift she asserts that she works eleven to thirteen and a half hours.


It's wrong to say that we're not looking to challenge some of the things they've said because we would be.  So our position remains the same as it was before Commissioner O'Neill and that is that while you have a broad discretion, the fact that a witness can no longer be located or refuses to attend, should not prejudice our client, and this would.  Commissioner said at PN13937, a preliminary view that she was not inclined to admit these statements, and we think that is an appropriate view and the Full Bench should take it.


I will say this, we don't intend to make submissions about the amount of evidence relating to cleaners or maintenance people and the like.  We don't intend to make submissions on that.  We're obviously making submissions about the evidence from the cleaners and the laundry hands that have been put on, but we don't intend to make submission about the volume of the evidence or the lack thereof, if that can assist Mr Gibian.  We press our objection.


JUSTICE ROSS:  Yes.  Mr Ward, do you have any objection to the filing of two additional statements?


MR WARD:  Well, I do.  Their evidence was due on 1 April 2021 and the idea that over a year later they're going to be allowed to file new evidence just, with respect, is just beyond the pale.  It is just beyond the pale.  So we object to that as well.  They've had their opportunity.  They sought an extension to the original timetable that was granted.  The idea that a year later the HSU get an opportunity to have another go really just shouldn't be permitted.


JUSTICE ROSS:  Mr Gibian, anything in response?


MR GIBIAN:  Just on that last point, obviously enough the HSU filed its evidence according to a timetable that was set for a different case more than 12 months ago.  The issues that have arisen here in relation to the attendance of a small number of witnesses, as I indicated, have in a number of their cases arisen because of the delay and I'm not blaming anyone specifically for that but because of the delay between the original filing early in the first half of last year and now because of the joinder of the original residential care application with the issues in relation to the Nurses Award and the SCHADS Award because of the - and that has resulted in the situation that we're in now.


So to suggest that there's something beyond the pale in seeking to ensure that the Commission has appropriate material before it in relation to all the classes of work where practical difficulties of the type that I've described have been encountered should not be (indistinct) and we - if the Commission is not minded to accept the existing filed statements in the circumstances then we would seek leave to file that further material and as I say, we don't think that would delay the resolution of the proceedings.


JUSTICE ROSS:  Sorry.  And what do you say about Mr Ward's point that he's not going to take a point about the volume of material.  Do you already have evidence from maintenance workers and cleaners in?


MR GIBIAN:  There is some cleaning evidence.  I don't think so with respect to maintenance separately, yes.


JUSTICE ROSS:  Yes, Mr Ward, there is or there isn't.


MR GIBIAN:  Yes, there is.  There's evidence - I think the phrase I used perhaps not entirely appropriately in 2022 but there is evidence from a handyman, yes.


JUSTICE ROSS:  All right.  Nothing further from you?


MR WARD:  Sorry, I just wanted to say one more thing if I could, your Honour.  It seems curious that the union don't want to compel these people to attend but they seem to want to compel the evidence to be admitted and that just seems curious.


JUSTICE ROSS:  Nothing further from anyone?  Look, if you can remain in place and the Bench will have a discussion amongst ourselves and we will come back to you shortly.


MR WARD:  May it please.

SHORT ADJOURNMENT                                                                     [8.43 AM]

RESUMED                                                                                               [8.46 AM]


JUSTICE ROSS:  All right.  The decision we've arrived at is we do not propose to accept the statements of the five witnesses who are not available for cross‑examine.  We will permit the HSU to withdraw the statement of Adrianne White.  We will allow the HSU to file one further witness statement from a maintenance staff employee and that statement should be filed by no later than 4 pm on 30 May.  That witness should be available for cross‑examination on the morning of 2 June.  Commissioner O'Neill will liaise with the parties in respect of that matter.  If there's nothing further then the Full Bench will adjourn.


MR WARD:  If the Commission pleases.


JUSTICE ROSS:  Thank you.

ADJOURNED INDEFINITELY                                                            [8.47 AM]