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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




12.30 PM, MONDAY, 6 JUNE 2022


Continued from 02/06/2022



JUSTICE ROSS:  Good afternoon.  I think I've got Ms Saunders for the HSU, Mr McKenna and Mr Hartley for the ANMF, Ms Lombardelli for ABI and others, and Mr Reeves for the Commonwealth.  Is there anyone for the UWU?  No?  Okay.  I have received the proposed directions from you, Ms Saunders.  They seem fairly self‑explanatory.  What do the other parties say about those?  The ANMF?


MR J McKENNA:  Thank you, your Honour.  I do note that Mr Redford is just waiting in the lobby.




MR McKENNA:  I'll pause until he's in.  Your Honour, the ANMF does not oppose the proposed directions from the HSU.  It may well be that Mr Ward has something to say about those, but that's the ANMF's position.


JUSTICE ROSS:  Yes.  That's fine.  Anything from the UWU?


MR B REDFORD:  Nothing from me, your Honour.




MR REEVES:  Nothing from me, your Honour.


JUSTICE ROSS:  Ms Lombardelli, it looks like it's with you.


MS LOMBARDELLI:  Yes.  Yes, it is.  Thank you, your Honour.  As foreshadowed by Mr McKenna, we do have a concern with the oral hearing date across the two days given Mr Ward's availability, that is, he is unavailable on 24 and 25 August, so it would be our preference if they were all heard together on a date that Mr Ward and all parties were available.


JUSTICE ROSS:  All right.


MS LOMBARDELLI:  Other than that we are happy with the content of the proposed variations in matters one to four.


JUSTICE ROSS:  Okay.  Well, we could do 1 and 2 September for the applicants and the Commonwealth, and then the 5th for ABI and reply submissions.


MS SAUNDERS:  Yes, the difficulty, your Honour, is we understand that Mr Ward is not available on the dates originally proposed by the Commission.  The difficulty is we have availability issues throughout September.  I'm not available at all.  Mr Gibian does have some availability on the dates listed.  The reason the proposal is split the way it is is to try and accommodate that the best we can.  It would be anticipated that Mr Ward would have the benefit of not only his team of juniors but the transcript for his submissions, and so we would seek that those earlier dates be accommodated.


JUSTICE ROSS:  No, I follow that.  Well, Ms Lombardelli - - -


MR REEVES:  If I can add to that - - -


JUSTICE ROSS:  Sorry.  Yes?


MR REEVES:  I was just going to add to that, your Honour, that the Commonwealth's briefed counsel also have very limited availability in September as well.


JUSTICE ROSS:  Yes.  I'm not likely to be influenced by the Commonwealth's counsels' availability.  You can brief somebody else.  You haven't been involved in the case so far and we're trying to accommodate your dates - - -


MR REEVES:  I appreciate that.


JUSTICE ROSS:  - - - dates to allow you in, so I'm afraid you're just going to have to fit in with everybody else.


Ms Lombardelli, can I just go back to you?  Look, I can understand the position where we would be dealing with evidence and the like, but this is a case where it's just closing argument.  We'd order same day transcript, so Mr Ward would have the transcript by Friday the 26th, and then he's not then required until the following 1 September.


Look, in the event that someone says something outrageous on the 24th and 25th, you can reserve your position in respect of that, but I doubt if both days will be needed, because we'll be summarising your submissions in any event, and you'll have those before, and well, you know, you're unlikely to be wanting to read them out.  So it will really be, I would imagine, more the key points the parties want to make, the applicants and the Commonwealth, and anything in reply.  So, in those circumstances, how are your interests prejudiced?


MS LOMBARDELLI:  If it's as your Honour has said, then we would not see that there would be a huge prejudice in that position then.  We were just noting the unavailability of the lead advocate in the proceedings on those dates suggested to see if there was an alternative that could be reached by all parties, but we acknowledge that there would be little to any prejudice, as established by your Honour.


JUSTICE ROSS:  Okay.  Look, I don't know what the WA Chambers' involvement is likely to be, but they'd be also on 1 September.  It might be, just a caution, to reserve the 2nd in the event it's necessary, if the parties can make a note of that, but subject to that change, is there anything anyone else wishes to finally say about the proposed variations?  Mr McKenna?


MR McKENNA:  Your Honour, just this; the previous orders refer to closing submissions on the evidence, and you'll recall - - -




MR McKENNA:  - - - (indistinct) where Mr Gibian raised the issue of - - -


JUSTICE ROSS:  No, no.  Yes, you won't be restricted to the evidence.


MR McKENNA:  Yes.  If your Honour pleases.


JUSTICE ROSS:  Yes.  No, I thought we – didn't I deal with that in an earlier statement?  I thought we had wrapped that point up.  You had raised that on the last occasion.  I dealt with it.


MR McKENNA:  You may well have, your Honour.  I apologise if I've missed it.


JUSTICE ROSS:  No, that's fine, and look, we'll be publishing I think O'Neill C's summary on the lay evidence.  I think that's with the parties for some comment; not submissions so much as just in case there's any inaccuracy in it.  We'll look to publish that and a number of other background papers this Wednesday.  That will include the Royal Commission contentions, procedural history, a summary of the claims, and the wage fixing history in respect of the awards, and it will be accompanied by a statement.


The bits to come are the regulatory framework and the workforce composition.  That will probably be next week.  But bearing in mind you have agreed amongst yourselves to an extension for two weeks for when you've got to file your submissions, I don't think any of that will create any problems.


We do identify some questions.  The intent here is to try and – and, you know, it might turn out to be too ambitious, but to try and identify what appear to be the areas of agreement and the areas in contest and to test those propositions, and you can address those in the submissions you're filing on the 22nd.


We're also proposing, I think only in respect of one issue, to express a provisional view - and that is, bearing in mind that there doesn't seem to be an issue between ABI and its clients and the union that the rates of pay that are under consideration here have not been properly fixed, but that appears to be common ground - the provisional view would be to accept that common proposition.


It seems to – I may as well raise this issue with you now – it seems to flow from that that we don't need to spend too much time wondering about whether the current rates were not properly fixed because they didn't take into account the caring nature of the work, et cetera.  We don't really need to go into a historical excursus into that.  The real issue then becomes, well, we have to properly fix those rates and in doing so we would take into account the caring nature of the work and the evidence, et cetera, and the particular matters that we're directed to by the statute.


I know a number of the submissions already in spend some time talking about gender undervaluation, but that sort of becomes more historical than focused on the task.  I'm assuming the unions will use that material to say, well, we want to make sure there's no gender undervaluation going forward, and I understand that argument, but I don't think we need to go too far back into, well, how did we end up with these rates, et cetera.


I'm not wanting to put you on the spot about that, but that was our thinking about it.  If we accept that your collective view – leave aside WA CCI doesn't have that view, and they don't seem to be participating in the proceedings, and we do propose to ask them who they're representing in this case given ABI's coverage, or the clients that it's representing, and just find out a bit more about its position, because they haven't engaged with any of the evidence that are asserting there's been no change, well we wanted to see what their current position is.


But, look, am I missing something?  Does it seem to follow?  Once we reach a point of conclusion that these rates have not been properly fixed, then isn't the real task to properly fix those rates, having regard to the evidence and the submissions?  Ms Saunders?


MS SAUNDERS:  Certainly the HSU would agree with that approach.  The history can inform some of the changes that are needed, but the real task is what the rates should be now.




MR McKENNA:  Yes, your Honour, I think what you've said is uncontroversial from the ANMF's perspective.  The ANMF will be making submissions about how undervaluation has occurred and how skills have not been recognised, but that fits within the framework of what your Honour has outlined.


JUSTICE ROSS:  Okay.  UWU or the Commonwealth have anything to add before I go to Ms Lombardelli?


MR REDFORD:  We had a similar position, your Honour.  Nothing to add.


JUSTICE ROSS:  Okay.  Mr Reeves?


MR REEVES:  I don't think I'm in a position to give the Commonwealth's position - - -


JUSTICE ROSS:  No, that's fine.


MR REEVES:  - - - (indistinct) your Honour.


JUSTICE ROSS:  Ms Lombardelli, that seemed to – I mean, look, I think Mr Ward's submission was along the lines – his oral submission – that well, look, there's a bit of a torturous path to reach that conclusion in respect of the Nurses Award, but it seemed clear in the others, and I think with one of them, I can't recall at the moment which one, the parties had jointly put forward a classification structure and rates of pay, and then the one that emerged from the process set lower rates of pay, with no real explanation.  So I didn't take ABI's position to be at odds with the provisional view, but what do you say about that, and what follows from it?


MS LOMBARDELLI:  Yes, on the face of it, your Honour, it doesn't seem like your proposal is at odds with our position, and we would see that as a reasonable step forward.


JUSTICE ROSS:  Okay.  Look, I mean, as I say it will be a provisional view.  It's really intended to try and test out the position of the respective parties and sort of cut through some of the submissions.  The reliance on the C10 and classification structures and other awards might give rise to a similar issue.  I don't think it's said by the unions that that material is irrelevant.  It's not the only relevant material seems to be more of the argument.  So I think the parties are a little closer than the submissions might give the appearance of.  Anyway, we'll find out whether all of that's a false hope or it turns out to reflect reality.


Is there anything else?  No?  Okay, well, we'll issue the varied directions.  There will be liberty to apply in the event something unforeseen happens, and I'll make sure that the transcript of 24 and 25 August is expedited so that ABI have the benefit of that well before 1 September.  Thanks very much.  I'll adjourn.

ADJOURNED INDEFINITELY                                                          [12.43 PM]